Weighing Lives in War 0198796188, 9780198796183

Table of contents :
Contents
Notes on Contributors
Introduction • Jens David Ohlin, Larry May, and Claire Finkelstein
PART I. NECESSITY AND THE LIVES OF COMBATANTS
1. The Dispensable Lives of Soldiers • Gabriella Blum
2. Sharp Wars Are Brief • Jens David Ohlin
3. Humanity, Necessity, and the Rights of Soldiers • Larry May
4. The Deaths of Combatants: Superfluous Injury and Unnecessary Suffering in Contemporary Warfare • Michael L Gross
PART II . PROPORTIONALITY, CIVILIAN HARM, AND SOLDIERS
5. Proportionate Defense • Jeff McMahan
6. Proportionate Killing: Using Traditional Jus in Bello Conditions to Model the Relationship Between Liability and Lesser-Evil Justifications for Killing in War • Jovana Davidovic
7. Compensation and Proportionality in War • Saba Bazargan-Forward
8. A Theory of Jus in Bello Proportionality • Adil Ahmad Haque
9. Proportionality in Warfare as a Political Norm • Ariel Colonomos
PART III. COMBATANCY AND THE VALUE OF LIVES IN ASYMMETRIC CONFLICT
10. The Equality of Combatants in Asymmetric War • Claire Finkelstein
11. Rewriting the AUMF: Bringing Guidance to Executive Decisions on Combatancy and Returning the US to the Path of the War Convention • Jon Todd
12. Weighing Unjust Lives • Andrew T Forcehimes
13. Joint and Combined Targeting: Structure and Process • Michael Schmitt, Jeffrey Biller, Sean C Fahey, David S Goddard, and Chad Highfill
Index

Citation preview

i

W E IGH I NG L I V E S   I N   WA R

ii

iii

Weighing Lives in War Edited by

J E NS DAV I D   OH L I N L A R RY   M AY and

CLAIR E FINKELSTEIN

1

iv

1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © the several contributors 2017 The moral rights of the authors‌have been asserted First Edition published in 2017 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2017945335 ISBN 978–​0 –​19–​879618–​3 (pbk.) ISBN 978–​0 –​19–​879617–​6 (hbk.) Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

v

Contents Notes on Contributors  Introduction  Jens David Ohlin, Larry May, and Claire Finkelstein

vii 1

PA RT I .   N E C E S S I T Y A N D T H E L I V E S OF C OM BATA N T S 1. The Dispensable Lives of Soldiers  Gabriella Blum 2. Sharp Wars Are Brief  Jens David Ohlin 3. Humanity, Necessity, and the Rights of Soldiers  Larry May 4. The Deaths of Combatants: Superfluous Injury and Unnecessary Suffering in Contemporary Warfare  Michael L Gross

17 58 77 111

PA RT I I .   PROP ORT IONA L I T Y, C I V I L I A N H A R M , A N D S OL DI E R S 5. Proportionate Defense  Jeff McMahan 6. Proportionate Killing: Using Traditional Jus in Bello Conditions to Model the Relationship Between Liability and Lesser-​Evil Justifications for Killing in War  Jovana Davidovic 7. Compensation and Proportionality in War  Saba Bazargan-​Forward 8. A Theory of Jus in Bello Proportionality  Adil Ahmad Haque 9. Proportionality in Warfare as a Political Norm  Ariel Colonomos

131

155 173 188 217

PA RT I I I .   C OM BATA NC Y A N D T H E VA LU E OF L I V E S I N A S Y M M E T R IC C ON F L IC T  10. The Equality of Combatants in Asymmetric War  Claire Finkelstein 11. Rewriting the AUMF: Bringing Guidance to Executive Decisions on Combatancy and Returning the US to the Path of the War Convention  Jon Todd

241 259

vi

vi Contents

12. Weighing Unjust Lives  Andrew T Forcehimes 13. Joint and Combined Targeting: Structure and Process  Michael Schmitt, Jeffrey Biller, Sean C Fahey, David S Goddard, and Chad Highfill

284

Index 

325

298

vi

Notes on Contributors Saba Bazargan-​Forward is Associate Professor of Philosophy at UC San Diego. Jeffrey Biller, Major, United States Air Force, is the Associate Director for the Law of Air, Space, and Cyber Operations at the Stockton Center for the Study of International Law at the US Naval War College. Gabriella Blum is the Rita E Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School. Ariel Colonomos is Research Professor at the Center for International Studies, Sciences Po. Jovana Davidovic is Assistant Professor of Philosophy at the University of Iowa. Sean C Fahey, Commander, United States Coast Guard, is the Associate Director for the Law of Maritime Operations at the Stockton Center for the Study of International Law at the US Naval War College. Claire Finkelstein is Algernon Biddle Professor of Law and Professor of Philosophy at the University of Pennsylvania, as well as the Founder and Director of the Center for Ethics and the Rule of Law. Andrew T Forcehimes is Assistant Professor of Philosophy at Nanyang Technological University, Singapore. David S Goddard, Lieutenant Commander, a Royal Navy barrister, was formerly Associate Director for the Law of Coalition Operations at the Stockton Center for the Study of International Law at the US Naval War College. Michael L Gross is Professor and Head of the School of Political Science at the University of Haifa. Adil Ahmad Haque is Professor of Law and Judge Jon O Newman Scholar at Rutgers Law School. Chad Highfill, Major, US Army, is the Associate Director for the Integration of Law and Technology at the Stockton Center for the Study of International Law at the US Naval War College. Jeff McMahan is White’s Professor of Moral Philosophy at the University of Oxford. Larry May is W Alton Jones Professor of Philosophy, Professor of Law, and Professor of Political Science at Vanderbilt University (emeritus). Jens David Ohlin is Vice Dean Affairs and Professor of Law at Cornell Law School. Michael N Schmitt is Professor of Law at Exeter University and Chairman of the Stockton Center for the Study of International Law at the US Naval War College. Jon Todd received his JD from University of Pennsylvania Law School in 2015.

vi

1

Introduction Jens David Ohlin, Larry May, and Claire Finkelstein

1.  The Building Blocks of Just War: Proportionality and Necessity The chief means to limit and calculate the costs of war are the philosophical and legal concepts of proportionality and necessity. Both categories are meant to restrain the most horrific potentials of war. Concerning proportionality, it is generally assumed that one of the best ways to diminish the horrors of war is for it to be brief, even if that means that for that brief time war will be nearly inhumane. For example, this is one way to justify the infliction of collateral damage on civilians. If collateral damage were strictly prohibited, the conduct of warfare might drag on ad infinitum, thus resulting in greater loss of life overall. Furthermore, proportionality calculations must consider not just the number of soldiers or civilians lost in a given campaign or a specific military operation, but also the number of lives lost in the entire war—​a question that is often asked under the rubric of jus ad bellum. Turning to the principle of necessity, recent interventions in both law and philosophy have addressed—​skeptically—​the age-​old tradition of viewing soldiers as “cannon fodder” during war. Today, some are asking not just about the rights of civilians but also about the human rights of soldiers: Should their rights count in considering whether or not to engage in a particular armed conflict? If jus ad bellum determinations are to take account of all of the lives potentially lost by a military venture, including the soldiers whose lives will be lost on both sides of the conflict, few wars will be justified even if the just cause is clear-​cut. Indeed, perhaps more than any other theoretical intervention, the push to make the lives of soldiers “count” for more, either in jus ad bellum or jus in bello, has the potential to radically reorient the practice of warfare on the ground (if the reimagined constraints are accepted and adhered to in practice). Concerning necessity, one obvious point is that most killing in war is not absolutely necessary, in the strictest sense, since many non-​lethal means can be employed, including pulling back from the battlefield, or even using non-​lethal weapons (though modern militaries do not use them). To the uninitiated, some of these questions might seem to confuse war with sport, as if the world’s militaries could settle geopolitical disputes through non-​lethal wrestling matches. But this is a caricature of the underlying question, which is how the customs and norms developed, and whether it is possible to imagine a more humane future. Indeed, one should never fetishize the status quo and refuse to consider a world with radically different normative assumptions about how warfare will be conducted. In the context of necessity, the question is when a military unit should be permitted to resort to lethal force against enemy combatants. Introduction. Jens David Ohlin, Larry May, and Claire Finkelstein. © Jens David Ohlin, Larry May, and Claire Finkelstein, 2017. Published 2017 by Oxford University Press.

2

2 Introduction

In the past, the assumption has been always. But if we take the principle of necessity more seriously, then perhaps it is possible to think that lethal force should be restricted to situations where it is (strictly) necessary. However, as noted above, few things are ever “strictly” necessary because there is almost always an alternative course of action, though sometimes that alternative course of action is unreasonable. Specifically, the question is whether such alternative demands—​such as retreat—​are reasonable to impose on the military force that needs to exercise overwhelming lethal force. Then there is the issue of exceptions, that is, whether the regular rules that give lives a high value should be curtailed or dispensed with during states of emergency. Things look different if a state (the so-​called “homeland”) is being attacked or if a battle is about to be lost. For example, Aquinas considers that any rules must admit of exceptions, and this includes that “if there be a sudden danger that does not allow enough time to be able to have recourse to a superior, the very necessity includes an implicit dispensation, since necessity is not subject to law.”1 However, the recent evolution of both international criminal law and just war theory has sharply curtailed, or even eliminated, the conceptual space in which necessity can operate as an exception to generally applicable rules of warfare. So it seems as if there is little tolerance for deviating from our settled legal and philosophical conclusions that each human life should be afforded equal dignity and respect, even if ticking-​time-​bomb hypotheticals might tempt some to deviate from this conclusion. Philosophers in the just war tradition once argued that killing soldiers is the moral right of each of the parties to an armed conflict. Recently, though, a revisionist strain of just war theory has been arguing that the human rights of soldiers on the just side of a war need to be given much more weight than was previously acknowledged. Yet the rights of so-​called “unjust combatants” are not given similar status. Should we accept this asymmetrical balancing or should we extend equal protections—​equal value—​ to all soldiers, since they are not responsible for whether the war they fight is just or unjust? Other contemporary theorists are questioning the old assumptions in other ways, for example, asking about the idea that the lives of soldiers are dispensable or replaceable. In traditional international humanitarian law (IHL), there are some restrictions on how enemy soldiers may be killed (for example, unnecessary suffering is prohibited), but there are few rules of jus in bello that limit the number of enemy soldiers who may be killed, provided that the manner of their death is humane (that is, not gratuitously painful). Is there any way to take account of the sacred value (or dignity, if you will) of a given soldier’s life and still justify a particular military operation? Indeed, does taking seriously the lives and rights of soldiers inevitably lead to even more restrictions on how wars are conducted, or perhaps to some kind of contingent pacifism? In other words, tinkering with the basic “war convention” that dictates that soldiers may be killed at any time, regardless of their individual level of threat, could constrain war to such an extent that many or even most military operations are deemed impermissible. And can it make sense to tell a commander on the ground that

  Thomas Aquinas, Treatise on Law (Hackett Publishing Co 2000) 61.

1

3



The Building Blocks of Just War

3

he or she must conform to highly complex rules of engagement that take into account the justice of the cause for which soldiers fight? These are just two ways in which some of the new controversies about the value of lives in war, and the positions asserted by recent theorists, have uncertain application during the actual conduct of hostilities. Today, there are even controversies about how to regard the traditional prohibitions on cruelty during battle. Are governments doing enough to protect their soldiers from improvised explosive devices (IEDs) commonly used by insurgents in Afghanistan and Iraq, or to protect civilians from barrel bombs dropped by helicopters in Syria? Can high-​a ltitude bombing be supported on the theory that our own troops are put at less risk, even if target verification is compromised and therefore more civilian casualties are caused by mistaken identifications? As this introduction was being written, yet another US military official stated that whenever bombs are employed in Syria it is practically impossible to prevent the civilian deaths that result. Finally, there are continuing controversies about how to regard “soldiers” who are under the employ of non-​state actors in asymmetric wars. Protocol I of the Geneva Conventions calls for irregular fighters to have the same rights as regular fighters. But there is a raging controversy about that provision in Protocol I, with states such as the US not ratifying the protocol because of concerns that terrorists would seek the rights that had traditionally only been extended to regular soldiers. But if irregular fighters are not true soldiers, how should they be regarded? Should their lives count for less than civilian lives? Human rights advocates also have challenged the traditional manner in which the lives of soldiers are valued in the Law of Armed Conflict. This is in addition to the traditional constraint that an attack that is disproportionate—​by causing too much collateral damage to civilians—​is impermissible and illegal. Historically, neither international law nor the just war tradition thought much about whether soldiers could (or should) be killed during a military engagement that threatened no civilians. In this context, consider Part IX of the International Committee for the Red Cross’s Interpretive Guidance on Direct Participation in Hostilities.2 Here is one of the most important parts of the ICRC findings for our purposes: In sum, while operating forces can hardly be required to take additional risks for themselves or the civilian population in order to capture an armed adversary alive, it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.3

The ICRC cited Jean Pictet for the idea that if we can put a soldier out of action by capturing him we should not wound him, if we can obtain the same result by wounding him, we must not kill him, if there are two

2  See J Kleffner, “Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello Proportionality as We Know It?” (2012) 45 Israel Law Review 35–​52. 3  ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009) 82.

4

4 Introduction means to achieve the same military advantage we must choose the one which causes the lesser evil.4

The idea here is that from a human rights perspective, soldiers are only prima facie justified in disabling, not killing, other soldiers. Whether this view is justified or not, it certainly represents a break from historical practice. Part IX of the ICRC Interpretive Guidance is highly controversial.5 Military practitioners have sharply objected to the commingling of the non-​derogable right to life derived from human rights norms with the notion of military necessity and lawful targeting inherent in the jus in bello. But is there room—​perhaps a need—​for human rights law, or even just human rights principles (as opposed to the Law of Armed Conflict), in today’s wars? This question is especially pertinent when the “battlefield” is no longer an isolated field but a bustling city, or perhaps even several cities (wherever a non-​state actor has located its strategic assets and operatives across the globe). In an important book, The Humanization of International Law, Theodor Meron summarized and defended the myriad ways in which human rights law has intruded into international law generally. Meron recognized the primary problem when he noted: To speak of the humanization of humanitarian law or the law of war is thus in many ways a contradiction in terms. Consider, for example, the law of war term “unnecessary suffering.” To genuinely humanize humanitarian law, it would be necessary to put an end to all kinds of armed conflict. But wars have been part of the human condition since the struggle between Cain and Abel, and regrettably they are likely to remain so.6

Notice here that Meron forthrightly recognized the radical potential of human rights law to change the very nature of the laws of war. With Meron’s warning in mind, it is worth asking whether human rights law could ever be made compatible with the Law of Armed Conflict, since that project would require harmonizing human rights law with war itself, which seems impossible. While the Law of Armed Conflict treats war as given—​as a bare fact—​and then proceeds to regulate it, it is unclear whether human rights law can (or should) take the same approach. Indeed, human rights law seemingly does not recognize the category of a just war, at least not given the way in which wars are fought today. One recent commentator, Marko Milanovic, has raised a skeptical question: If human rights accrue to human beings solely by virtue of their humanity, why should these rights evaporate merely because two states, or a state and a non-​state actor, have engaged in armed conflict? More limited these rights may be, but they  Ibid.   John B Bellinger III and William J Haynes II, “A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law” (2007) 89 Intl Rev Red Cross 443; Kleffner (n 2); W Hays Parks, “Part IX of the ICRC ‘Direct Participation in Hostilities’ Study:  No Mandate, No Expertise, and Legally Incorrect” (2010) 42 NYU J Intl L & Poly 769, 828; Dapo Akande, “Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities” (2010) 59 Intl & Comp L Q 180, 192. 6   Theodor Meron, The Humanization of International Law (Brill 2006) 9. 4 5

5



This Volume’s Contribution to the Debate

5

cannot be completely extinguished or displaced if their basic universality premise, that they are immanent in the human dignity of every individual, is accepted.7

Notice, though, that Milanovic allows that the human rights of soldiers can be limited or restricted during war, but cannot be extinguished. Today more than ever, how lives are weighed and valued during armed conflict is of paramount concern. In some respects, all human lives are of equal value. And yet, even if this is accepted, does that mean that two valuable human lives outweigh one? It seems to matter whether a person has forfeited or waived certain of his or her rights by the conduct employed. Surely, the person with a gun who threatens to kill has forfeited a right not to be attacked, if the defensive force can stop the aggressor from killing an innocent individual. But is this the right way to think of soldiers? Are they like a person with a gun who threatens to use it? Finally, there are difficult questions being asked about who is responsible for the loss of life—​of civilians or soldiers—​during armed conflict. If the political leaders of a party to an armed conflict do not recognize reasonable and humane restraints on tactics and weaponry, do the political leaders then become like pirates who can be killed as enemies of humanity (as the Romans held)? Or is it the case that in asymmetric war things have changed so much that issues of responsibility and culpability no longer make sense? The chapters in this anthology address many of these pressing issues. As a matter of methodology, this volume combines philosophical analysis with normative legal theory. In this vein, the goal of the volume is to continue the harmonization of the legal and philosophical discourses. Although both disciplines have spent the past fifty years investigating the nature of the principles of necessity and proportionality, these discussions were all too often walled off from each other. However, the boundaries of these disciplinary conversations have recently broken down, with many legal scholars confronting the major philosophical issues and many philosophers using legal materials with which to make their arguments. The richness of these cross-​disciplinary investigations has been apparent to all who care about normative arguments. In this volume, we continue the cross-​disciplinary effort by bringing together philosophers concerned with the real-​world military implications of their theories and legal scholars who frequently build doctrinal arguments from first principles, many of which herald from the historical just war tradition or from the contemporary just war literature. What unites each of the contributions into a singular conversation is their common skepticism regarding whether the traditional doctrines and theories, in both law and philosophy, have correctly valued the lives of civilians and combatants at war.

2.  This Volume’s Contribution to the Debate The first part of the volume deals specifically with the principle of necessity and the lives of combatants, as opposed to the lives of civilians. Each chapter, in its own way,

7  Marko Milanovic, “Norm Conflicts, International Humanitarian Law, and Human Rights,” in Orna Ban-​Naftali (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press 2011) 95–​125, 101.

6

6 Introduction

asks whether the lives of soldiers should be given more priority than the current state of the Law of Armed Conflict. The answers are, predictably, divergent. In “The Dispensable Lives of Soldiers,” Gabriella Blum surgically dissects the current state of IHL and questions whether soldiers should be reduced to mere cannon fodder by international law. Indeed, the value of lives in war depends almost entirely on status. If one is a civilian, one’s life is strongly protected by international law; if one is a soldier, well, that’s another story. Blum canvasses the full range of legal and philosophical justifications for the current state of affairs and finds all of them wanting. Consequently, Blum cautiously endorses, with some reservations, proposals that would restrict the use of lethal force against enemy soldiers when less lethal means (such as capture) are available. However, Blum is clear that she does not find evidence of this more restrictive norm in current international legal materials, but rather views it as a philosophical position that ought to be incorporated into a progressive evolution of the law going forward. She defends the proposal from multiple vantage points, but as to the critique that the constraint would be unworkable or unfair, she notes that “[g]‌iven that modern war-​power allows the armed forces to be much more destructive at relatively lower costs than before, adding constraints to this destructive power is not unreasonable.” Blum’s chapter consequently sets the stage for a philosophical and legal debate over the limits of progressive development of the Law of Armed Conflict where it comes to valuing the lives of soldiers. In Chapter  2, Jens David Ohlin excavates and articulates an argument for why “Sharp Wars Are Brief.” The chapter is an attempt to meet Blum’s challenge—​to, as it were, put the orthodox interpretation of the principle of necessity in the best possible light. That principle allows for the unrestrained killing of enemy combatants, as Francis Lieber carefully articulated in his code. Ohlin takes Lieber’s central insight, that “sharp wars are brief,” and spins it out into an entire ethical program for killing in warfare. According to Ohlin, there is an equilibrium point at which warfare is neither under-​regulated nor over-​regulated. The risk of over-​regulation is that any constraints on the use of force justified by a supposed concern for humanitarianism may be ultimately self-​defeating if the constraints merely prolong armed conflict and allow a greater number of individuals to suffer during the course of a “more humane” stalemate (a contradiction in terms). Although Ohlin recognizes that Lieber’s “sharp wars are brief” argument can be abused to oppose almost any humanitarian restriction on warfare, this fact should not obscure the deep truths that Lieber’s statement was issued as a warning to future lawyers about the dangers of over-​regulation, and that it is, in theory, possible to over-​regulate warfare. Ohlin argues that this “sharp wars are brief” conception of necessity is not only a central pillar of the Lieber Code, but more importantly continues to play a key role as part of the scaffolding of contemporary jus in bello. In the third chapter, “Humanity, Necessity, and the Rights of Soldiers,” Larry May explores the relationship between the principle of necessity and the principle of humanity, on the assumption that the current dismal state of affairs for soldiers in war is caused not simply by the principle of necessity but rather by the current balancing of the principle of necessity with the principle of humanity. Under the current legal scheme, the weight is placed virtually entirely on the necessity side

7



This Volume’s Contribution to the Debate

7

of the scale, with humanity considerations receding into the background (at least where soldiers are concerned). Rules prohibiting unnecessary suffering and prohibiting mistreatment after capture are the one exception. But a requirement to capture, based on the principle of humanity, is noticeably absent from the law. Based on a dialogical investigation of the relationship between the two principles, May argues that there is room to push the balancing back toward the principle of humanity and to insist upon greater prohibitions on the use of lethal force. Even in war, soldiers are still human beings, and any state of affairs that reduces them to cannon fodder offends whatever moral principle articulates their moral significance (whether couched in terms of dignity or some other principle). That being said, May also believes that the balancing between humanity and necessity must be made with at least an eye towards its application on the ground, and that the law should encode new restrictions that can plausibly find their way into a successfully revised Law of Armed Conflict. For May, that restriction is the right of any soldier not to be killed unnecessarily in battle. In Chapter 4, “The Deaths of Combatants,” Michael Gross notes, in agreement with the other contributors in Part I, that the legal principle of necessity embodies few constraints on the use of lethal force. The Law of Armed Conflict has looked at more specific prohibitions as a way of restraining force, especially prohibitions on particular weapons and tactics. In that vein, the prohibition on the use of chemical weapons is notable, as well as developing (and still controversial) prohibitions on cluster munitions and landmines. However, it is remarkable that most other attempts to prohibit particular weapons, or weapons technology, have failed. Gross’ chapter provides a historical and conceptual answer to the question of why these initiatives have, more often than not, failed to result in a treaty ban. Gross notes that new technologies such as neuroweapons bring both benefits and dangers. The benefit is that the technology could incapacitate enemy soldiers without killing or permanently injuring them, which would advance the cause of military necessity and its requirement—​explored in prior chapters by Blum, Ohlin, and May—​to exhaust non-​lethal measures first. On the other hand, such weapons might run afoul of a deeper right to cognitive liberty—​but in the end, Gross argues in favor of continued research into non-​lethal weapons as a way of advancing a vision of military necessity that requires the deployment of non-​ lethal weapons. Part II of the volume shifts focus from the value of the lives of soldiers in jus in bello to the value of lives in war more broadly. In Chapter 5, Jeff McMahan articulates a vision of “Proportionate Defense” that explicitly considers the demands of moral theory and then asks how the law might evolve to better account for them. McMahan starts by distinguishing between narrow and wide proportionality. Narrow proportionality involves a constraint on harming individuals who are liable to be harmed because they represent an unlawful threat to someone else. So, for example, if one kills an aggressor who is merely threatening to pinch his victim, one has violated narrow proportionality in using disproportionate defensive force against him. Wide proportionality involves a constraint on harming individuals who have not made themselves liable to any harm, but are nonetheless subject to being harmed through a utilitarian calculation of the variety one finds in the lesser-​evils defense. So, for

8

8 Introduction

example, if a defendant asserts the lesser-​evils defense but through their actions imposes a greater harm than the one they are seeking to avoid, then their actions are disproportionate in the sense of wide proportionality. The prohibition on excessive collateral damage is an example of wide proportionality, while the prohibition on the excessive killing of enemy combatants (discussed in the prior chapters) might be considered an example of narrow proportionality. McMahan argues that “[a]‌lthough neither the traditional theory of the just war nor the law of war seems to recognize the possibility of narrow disproportionality either in the resort to war or in the conduct of war, morality itself clearly imposes a proportionality constraint on expected harms to enemy combatants, both in the resort to war and in the conduct of war.” Consequently, McMahan believes that although enemy combatants are liable to be killed in war, it is still the case that they can be harmed beyond their liability, that is, disproportionately. In Chapter  6, “Justification and Proportionality in War,” Jovana Davidovic analyzes the switch from traditional “collective” just war theory to the more contemporary “individualist” just war theory that makes the individual soldier (or civilian) the relevant unit of moral analysis, based on the paradigm of self-​defense and defense of others. Davidovic works to combine two particular types of arguments that, she argues, should guide the action of individual soldiers in war. These arguments are liability-​based justifications (based on whether the individual has contributed to an unjust threat) and lesser-​evil justifications. Davidovic argues that these can be combined together to yield a workable jus in bello framework. As Davidovic notes, “if we can show that the interplay between jus in bello conditions can in many circumstances capture the all-​things-​considered judgment derived from careful examination of the way liability and lesser-​evil justifications work in ordinary cases and cases of war, then we have a response to the common criticism that responsibility-​based revisions of theories of war fail to provide combatants with useful guidance because of their complexity.” However, Davidovic does not combine the liability and lesser-​evil justifications into a single, hybrid justification, but instead would assign each justification a separate role in a larger all-​things-​considered judgment. In Chapter 7, “Compensation and Proportionality in War,” Saba Bazargan-​Forward takes as his starting point the inevitable fact that innocent civilians will be harmed by the conduct of warfare. Bazargan-​Forward argues that these civilians are owed compensation—​not just for disproportionate attacks but also for proportionate attacks where the civilians are subject to collateral damage for which they were not liable (based on their conduct). The question then is: Who should pay the compensation? Presumably, the unjust aggressor in the armed conflict should be required to pay, since it started the unjust war in the first place. But the unjust aggressor is likely to refuse to pay the compensation (and may even refuse to recognize its status as the unjust aggressor). Bazargan-​Forward says that the duty to compensate then falls to the just defender in the conflict, though in reality it is unlikely that the just defender will pay the compensation either. Consequently, the victims of proportionate collateral damage will go uncompensated. This is a problem, and one that needs to be considered before the attacks begin, when the proportionality calculations are first being conducted. Bazargan-​Forward wants military commanders to consider that the harm

9



This Volume’s Contribution to the Debate

9

imposed on civilians will likely be an uncompensated harm, which ought to increase the value that we assign to civilians who are harmed by an attack against a military target. In Chapter 8, “A Theory of Jus in Bello Proportionality,” Adil Haque considers the value of combatant and civilian lives in service of articulating a complete theory of jus in bello proportionality. The traditional problem with jus in bello proportionality is that it allegedly requires balancing incommensurable values: the loss of civilian lives with the military advantage to be gained by destroying the military target. This has led many to suggest that this apples-​to-​oranges comparison is either obscure or, in the more extreme criticism, impossible. In contrast, Haque presents his preferred solution, which involves a revised balancing test. He argues that collateral damage is proportionate only if the destruction of the military target “prevents opposing forces from inflicting substantially greater harm on attacking forces or civilians in current or future military operations.” In other words, what is weighed is present harm and future harm. The present harm is the harm done to the civilians who are caught in the crossfire. The future harm is the number of deaths that will be caused by the military target if it is not destroyed. If the military target will, in the future, end up being responsible for killing a greater number of combatants and civilians than are killed as collateral damage in the initial attack against the target, then the attack is proportionate. On both sides of the equation, one should presumably incorporate the likelihood of the negative occurrence—​a numerical operator that represents uncertainty over future events. In the case of civilian collateral damage, the military commander must determine the likelihood of civilian casualties; the level of likelihood might change from attack to attack. Similarly, there is no certainty that the military target, if left standing, will in return contribute to x number of deaths in a future military operation. More properly, there is some risk that the military target will contribute to x number of deaths, and that risk might be less or more depending on the situation. In Chapter 9, “Proportionality in Warfare as a Political Norm,” Ariel Colonomos argues that proportionality cannot be understood in isolation from political values. In particular, Colonomos notes, as many others have, that the valuing of lives required by the rule prohibiting disproportionate attacks seems to require a particular calculation that can rarely, if ever, be produced with any confidence. The results of the balancing—​ what he calls the “riddle of non-​commensurability”—​are always contestable. While these are familiar criticisms, Colonomos offers a way forward that is strikingly original. Instead of tinkering with the norm or clarifying the details of the balancing test, we ought to engage in a far more radical reorientation: We should explicitly appreciate that proportionality implicates political values. Indeed, Colonomos argues that proportionality was originally a political value before it ripened into an ethical and legal framework. The chapter concludes that by returning proportionality to its political origins, the concept might have more value to our public discourse on the use of force, and do more work in improving state behavior. Simply put, “[w]‌e should not try to measure ‘military advantage,’ but rather aim at understanding the political benefits or harms of using force.” The final part of the volume considers how lives are valued in contemporary asymmetric conflicts. In Chapter 10, “The Equality of Lives in War and the Principle of

10

10 Introduction

Distinction,” Claire Finkelstein argues that jus in bello cannot treat non-​state actors as being the same as state actors, and therefore the moral equality of combatants does not apply to them. (The moral equality of combatants holds that each soldier, regardless of which side of the conflict they are on, has an equal value for purposes of jus in bello calculations.) In this respect, there is some similarity between Finkelstein’s view and the early Bush administration (circa 2000–​04) view of terrorists, who were considered “unlawful combatants” because of their non-​state status. But whereas the early Bush administration advanced this argument to suggest that the targeting of terrorists was beyond legal scrutiny, Finkelstein takes this principle and reaches the opposite conclusion. The fact that the moral equality of combatants does not apply to terrorists entails, instead, that terrorists should not be viewed as combatants at all, but rather treated as extra-​territorial criminals. In practical terms, this means that status-​based targeting in the so-​called “armed conflict” with al-​Qaeda is impermissible and should be replaced with a targeting regime more consistent with extraterritorial law enforcement. More boldly, though, Finkelstein’s view suggests that there is no such thing as an armed conflict in the absence of state authority on both sides of the conflict. In Chapter  11, “Guiding Executive Decisions on Combatancy in War,” Jon Todd catalogs the struggles that the US government has faced in defining who can be targeted as a combatant in armed conflicts with non-​state actors. As made clear by prior chapters, the specific question of who can be targeted during an armed conflict—​ and under what conditions—​is parasitic upon a more foundational inquiry into the value of the lives of combatants and civilians. For example, the wider the definition of “combatancy” one adopts (or the narrower the definition of “civilian” one adopts), the more likely it is that individuals will be subject to lethal targeting and, by extension, that their lives will be less protected. Indeed, it is in the legal doctrine that the rubber meets the road and where the philosophical theories articulated in the prior chapters can be codified into legal reality or rejected, as the case may be. In the United States, articulating a legal standard for who counts as a combatant has involved a push and pull between three branches of government:  the President, Congress, and the judiciary. While the executive branch has sought to preserve its discretion in defining who can be captured or killed during armed conflict with al-​Qaeda and other terrorist organizations, both Congress and the judiciary have, to a certain extent, pushed back and insisted that they retain a seat at the table during this important debate. Todd combines close doctrinal analysis of the relevant Supreme Court decisions with a philosophical consideration of what Michael Walzer calls the “War Convention”—​ the idea that civilians are immune from attack but soldiers are targetable at any moment in time. Todd believes that the US approach to targeting and detaining terrorists is an attempt to unilaterally alter the War Convention—​something that one state, on its own, cannot and should not do. However, Todd is also sympathetic to the idea that governments need coherent and rational standards for where and when terrorists can be targeted with lethal force. Todd concludes with a plea for reorienting the War Convention. “[R]‌ather than reverting to bygone understandings of combatancy,” Todd writes, “the United States should use its significant authority to pull the War Convention toward greater inclusion and protection and not exclusion and a

1



This Volume’s Contribution to the Debate

11

diminishing of rights—​a move which would be a regression in our understanding of war and a retreat to a state of more limited bounds on the conduct of war.” One way of doing this would be to recognize that non-​state actors could, in theory, obtain the privilege of combatancy if they meet the functional criteria for the privilege (such as wearing a fixed emblem, carrying their arms openly, disclaiming perfidy, etc). This would be a substantial evolution of the current legal landscape, which at the moment limits the privilege exclusively to government forces. But allowing non-​state actors to qualify for the privilege might give these groups an incentive to comply with the laws of war and operate within the War Convention, rather than outside of it. In Chapter 12, “Weighing Unjust Lives,” Andrew Forcehimes tackles the weighing problem along a different axis: how to comparatively evaluate the lives of just combatants against the lives of unjust combatants. Traditionally, just war theory assumed that combatant lives should all be treated equally, regardless of whether the combatants belonged to the just or the unjust side of the armed conflict. However, recent revisionist work in just war theory has called that assumption into doubt, with some wondering whether the lives of the just combatants should be valued more. Or, put conversely, perhaps the lives of the unjust combatants should be given a discount so that they are worth less? The argument for this discount is that it would be a good thing if the value of lives was influenced by moral desert—​so that those who acted culpably were counted less and those who acted justly were counted more. This view would have profound implications for the practice of war, because it would entail a new asymmetry in how lives are counted. In addition to the value distinction between combatants and civilians, one might also insist on a value distinction between just and unjust combatants (and, even more radically, between just and unjust civilians too). In his chapter, Forcehimes takes issue with this “desert-​adjusted” account and argues that, despite our initial intuitions, we should not devalue lives based on their culpability for wrongdoing, because “desert does not adjust the intrinsic goodness or badness of a death.” If Forcehimes is correct, then soldiers fighting for the just side of a military conflict should be weighed equally with the soldiers fighting for the unjust side. In the end, Forcehimes concedes that domestic social policy is sometimes advanced when people act as if the desert-​adjusted account is true, but he concludes that the desert-​ adjusted account only has instrumental value. The final chapter in the volume is “Joint and Combined Targeting: Structure and Process,” by Michael Schmitt, Jeffrey Biller, Sean C Fahey, David S Goddard, and Chad Highfill. Among the scholarly interventions in the volume, this is the chapter most closely connected with actual military practice. The authors are all experts on the law of military targeting and their contribution catalogs a mysterious process that is often opaque to outside observers:  how commanders make specific judgments about the permissibility of launching a particular military strike, especially with regard to the prohibition against causing disproportionate civilian casualties or the requirement to take all feasible precautions to reduce collateral damage as far as possible. This topic, all too often ignored in normative assessments of distinction and proportionality, is crucial for two reasons. First, if philosophers and legal theorists are critiquing military practice for failing to live up to the demands of the law or morality, it is imperative that scholars understand the specifics of current practice. Second, if those same scholars

12

12 Introduction

wish to make normative proposals that have any chance of being operationalized in practice, then they need to understand existing operational procedures so that they can propose and defend amendments to them. The specifics of the targeting process outlined in the chapter include numerous revelations. First, of course, the process is not uniform across different nations, but perhaps more surprising is the fact that it is not uniform across the different service branches of the armed services. However, there is a common core. Of particular note is the fact that the higher the collateral damage estimate, the higher up in the chain of command the authorization must go—​terminating, in extreme cases, with the White House and the President. The underlying assumption of this procedural mechanism is that military commanders and higher levels of authority—​just by virtue of their position—​will do a better job of weighing whether the lives lost to collateral damage are not disproportionate to the value of the military target. Also, the higher the authorization required, the less likely the strike will be approved and carried out. The military does not have some secret solution to the vexing problem explored in prior chapters—​how to weigh civilian lives with military value—​but instead has crafted bureaucratic procedures designed to support and enhance this opaque and mysterious balancing calculation. Another procedure that serves this function is the one requiring that the commander responsible for approving the strike have the necessary information (on military value and expected collateral damage), a bureaucratic requirement that will inevitably prevent some questionable attacks (that may cause disproportionate collateral damage) from advancing to the execution stage. Most of the information in this chapter will be eye-​opening to philosophers and legal theorists with no personal military experience.

3.  Future Directions The arguments outlined in this volume reveal a set of principles, including necessity and proportionality, whose core essence remains essentially contested. What does military necessity mean, and are soldiers always subject to lethal force consistent with the principle? What is proportionality, and how should military commanders attach a value to a military target and weigh it against civilian collateral damage? Do these valuations remain the same for both sides of the conflict, or should the lives of those attached to an aggressive state matter less? For some of these questions, there is comfort to be found in the existing lex lata—​the law as it currently stands. From the secure viewpoint of the purely descriptive, lawyers might confidently describe some of these questions as settled. But many others, even from the vantage point of descriptive theory, remain under-​analyzed and radically lacking in clarity and certainty. To name just one obvious example, codified law reveals precious few insights on how to ascertain the military value of a legitimate target. That being said, even those principles that are fairly settled in the lex lata can be (and perhaps should be) subject to withering criticism. Moreover, this normative approach to the law is not just the purview of philosophers, or of international organizations and advocacy initiatives. Only the naïve could believe that a military or human rights lawyer can apply the existing law

13



Future Directions

13

without, in some small way, changing it. That is because every interpretative argument and every application of law to fact necessarily adds content to laws that, in the abstract, have little meaning. So in working with the law, lawyers inevitably shape the law at the same time. And in this sense, it is the duty of every lawyer who works with human rights law and the Law of Armed Conflict—​not just the academics and the scholars—​to participate in the dialogical project of determining what the law ought to be. This volume, we hope, is a good place for that conversation to start.

14

15

PA RT   I N E C E S SI T Y A N D T H E   L I V E S OF   C OM BATA N T S

16

17

1 The Dispensable Lives of Soldiers Gabriella Blum1

1. Introduction In 1951, the US naval command struck the Kapsan compound in North Korea, where Chinese and North Korean officials were attending a meeting.2 The surprise attack destroyed the entire camp, killing an estimated 510–​30 Chinese and North Korean personnel—​including 144 party officials3—​and obliterated the archives of the North Korean Communist Party.4 The outraged Communist broadcasts on Radio Pyongyang put a price on the heads of the Navy pilots, referring to them as the “butchers of Kapsan”—​a term proudly adopted thereafter by the Navy itself.5 In 1991, the US military pounded with airstrikes and gunfire a convoy of Iraqi troops retreating from Kuwait. Although the ultimate death toll was lower than the initial reports of thousands of casualties,6 reporters who arrived on the scene “recorded the carnage that stretched along that road for miles, producing gut-​wrenching images of charred bodies in the blackened hulks of bombed-​out vehicles. Trucks, personnel carriers, and hundreds of civilian vehicles lay strewn along the road”—​a road they later dubbed “the Highway of Death.”7 Military officers were reported to be “sickened by what they saw.”8 In 1993, Bosnian-​Serb soldiers fired mortar rounds at Bosnian soldiers playing soccer on an improvised neighborhood field, killing and injuring civilian spectators nearby. The International Criminal Tribunal for the former Yugoslavia found the Bosnian-​Serb commanders guilty of harming civilians, but found no legal violation in the targeting of the sporting soldiers.9 In 2008, Israel struck an entire group of Palestinian police cadets (on the theory that they were part of the Hamas forces) while they were marching in their graduating ceremony, killing scores.10 The number  I  am grateful to Ken Anderson, Yishai Beer, Rachel Brewster, Glenn Cohen, Jack Goldsmith, Jim Greiner, Moshe Halbertal, Stephen Holmes, Sam Issacharoff, Asa Kasher, Adriaan Lanni, Daryl Levinson, Larry May, Gerry Neuman, Ben Sachs, Roy Schondorf, Jed Shugerman, Matthew Stephenson, Roberto Unger, and Adrian Vermeule, and the reviewer for the Journal of Legal Analysis, for their helpful comments, suggestions, and debates. I also thank the participants at the Harvard Law School faculty workshop and the Just and Unjust Wars seminar at NYU Law School for their engagement with this piece. Natalie Lockwood provided outstanding research assistance and contributed her own thoughts and suggestions. All errors are mine. 2   C Peebles, Twilight Warriors: Covert Air Operations Against the USSR (Naval Institute Press 2005) 79. 3   See C Pontrelli, “The Butchers of Kapsan,” Naval History (2007, October) 64–​65; C G Reynolds, On the Warpath in the Pacific (Naval Institute Press 2005) 463. 4 5   Peebles (n 2) 80.   Pontrelli (n 3) 60–​66. 6   J G Heidenrich, “The Gulf War: How Many Iraqis Died?” (1993) Foreign Pol’y, March 22. 7   D Waller and J Barry, “The Day We Stopped the War” (1992) Newsweek, January 20. 8 9  Ibid.   Prosecutor v Galic, Case No. IT-​98-​29-​A (November 30, 2006). 10   M Colvin, T Allen-​Mills, and U Mahnaimi, “Israeli Strike Kills ‘At Least 225’ in Strikes on Gaza” (2008) Times Online, December 28. 1

The Dispensable Lives of Soldiers. Gabriella Blum. © Gabriella Blum, 2017. Published 2017 by Oxford University Press.

18

18

The Dispensable Lives of Soldiers

of Taliban, al-​Qaeda, and other insurgent groups’ members who have been killed by Coalition forces in Afghanistan is estimated at more than 22,000 at the time of writing. Coalition casualties are around 1,200. Much of the criticism of how countries fight wars goes to the question of how many civilian casualties their military operations inflict. Almost none goes to how many combatant casualties they inflict. For those parties who engage in propaganda wars over “hearts and minds” with regard to both domestic and international public opinion, the tendency is to exaggerate the number of one’s own civilian casualties and, correspondingly, minimize the number of one’s own combatant casualties. Civilian casualties are illegal, immoral, and unjust. Combatants, as a matter of international law, are fair game. All combatants are fair game. But why should this be so? This chapter suggests that it should not be, and that the prevailing legal perspective, which accepts the unlimited and indiscriminate killing of soldiers, is less justifiable than is commonly held. In Just and Unjust Wars,11 Walzer famously takes on the question of the Naked Soldier, first raised by Robert Graves in his memoir Good-​bye to All That: Is a soldier stripped naked and swimming in the lake a legitimate target during an armed conflict?12 The answer, says an uncomfortable Walzer, is unequivocally “yes.” The existing interpretation of the laws of war supports Walzer’s conclusion. The principle of military necessity allows parties to a conflict to use all necessary lawful force to achieve their goals. The foundational principle of distinction, often heralded as the humanitarian pillar of the laws of war, grants immunity to civilians. Together, the two principles sum up the tradeoff that the law seeks to induce—​sacrificing the lives of soldiers to protect the lives of civilians. Soldiers are allowed to kill enemy soldiers, with few limitations; in exchange for the right to fight and kill others, they assume the risk of being killed themselves. On the other hand, civilians must not partake in hostilities and, if they do, may be punished (and under some circumstances, targeted); in return for their abstention from fighting, they enjoy immunity from deliberate attack and must be protected to the extent that this is possible. The laws of war are, thus, status-​based: One is either a civilian or a combatant; once identified as one or the other, one is subject to the privileges and obligations that the laws prescribe for each group. The additional fundamental principles of the laws of war—​namely, humanity (which forbids the use of means and methods of warfare that cause superfluous injury or unnecessary suffering) and proportionality (which calls for the minimization of civilian casualties)—​have all been interpreted in ways that do not add much limitation on the right to kill enemy soldiers. In fact, other than some limitations on the types of weapons that can be employed to kill enemy combatants, the legal rules that apply to the fate of soldiers on the battlefield are still much the same as they were in the nineteenth century. Soldiers are legitimate targets when they are asleep in their barracks, swimming in the lake, retreating, and probably when they are on leave.13 There is no   M Walzer, Just and Unjust Wars (Basic Books 2006) 143.   R Graves, Good-​bye to All That (J Cape 1929). 13   See Y Dinstein, “The System of Groups in International Humanitarian Law,” in Wolff Heintschel von Heinegg and Volker Epping (eds), International Humanitarian Law Facing New Challenges: Symposium 11

12

19

Introduction

19

duty to offer enemy combatants surrender or to warn them in advance of attack, nor is there a duty to try to apprehend them alive. There is no difference between volunteers or conscripts, between those fighting just or unjust wars, or between those fighting for democratic or nondemocratic regimes. The only general limitation on the killing of enemy combatants is once the latter are rendered hors de combat, through capture, surrender, or incapacitating injury. A vast literature in both law and philosophy has been dedicated to the protection of civilians in war, inquiring into the rationale behind noncombatant immunity, the extent to which the immunity applies, its translation into various theaters of war, and the conditions under which it is lost. Special attention has been accorded to civilians on the modern battlefield, namely in wars of terrorism and insurgency, where distinguishing between civilians and combatants is more problematic both in terms of identification (for the lack of military uniform) and in terms of the function and role each group plays. The striking feature of the mainstream literature is its general acceptance (albeit with some moral discomfort at times) of the near-​absolute license to kill all combatants and of the law’s view of combatants as nothing more than instruments of war. Moreover, although some discussions of the principle of distinction in the context of the war on terrorism have called for narrowing the scope of civilian immunity, these discussions have not been accompanied by any calls for correspondingly narrowing the scope of combatant targetability. The outcome has been that, overall, more individuals have become potentially susceptible to intentional killing in war. Only a handful of scholars, most notably philosophers Larry May and more recently Asa Kasher, have challenged this mainstream view of the dispensable lives of soldiers.14 Each relying on his own perception of concepts of humanity, dignity, or compassion, both ultimately conclude that soldiers who do not pose a real threat at a certain place and time should be spared. In a discussion limited to asymmetrical warfare, Paul Kahn has suggested that where there is a gross asymmetry in power, war turns into a police-​enforcement operation, which should focus only on the guilty/​ threatening, and not on others.15 Adam Roberts has suggested seeking ways to compel the enemy government to surrender rather than killing as many of its soldiers as possible.16 Recently, also, the International Committee of the Red Cross (in the course of a study dedicated to civilian immunity) suggested that the license to kill enemy combatants should be narrowed by a functional test of how necessary this killing is.17 This in the Honour of Knut Ipsen (Springer 2007) 144 (“As far as ordinary combatants are concerned, it must be perceived that they are running a risque du métier. They can be attacked (and killed) wherever they are, in and out of uniform, even when they are not on active duty. There is no prohibition either of opening fire on retreating troops (who have not surrendered) or of targeting individual combatants”). 14  See L May, War Crimes and Just War (Cambridge University Press 2007) 108–​17; A  Kasher, A Combatant’s Life and Human Dignity: A Plea for a Major Change (draft on file with author). 15   See P Kahn, “War and Sacrifice in Kosovo” (1999) 19 Phil & Pub Pol’y Quart 1–​6; P Kahn, “The Paradox of Riskless Warfare” (2002) 22 Phil & Pub Pol’y Quart 2–​8. 16   A Roberts, “The Equal Application of the Laws of War: A Principle Under Pressure” (2008) 90 ICRC Rev 931–​62. 17   The subject of combatant targetability occupies six out of more than eighty pages of the report. See N Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (ICRC 2009) 77–​82.

20

20

The Dispensable Lives of Soldiers

suggestion remains a non-​binding “interpretive guidance,” which, as the ICRC report itself notes, has been met with resistance on the part of the experts who participated in the study.18 This chapter suggests that beyond any moral stance or recommended interpretive guidance, there is a case to be made that the legitimate scope of combatant targetability should be narrowed as a matter of legal obligation, one that would be incorporated into the military’s rules of engagement. The laws of war have grown with evolving moral perceptions and strategic geopolitical and military developments. I study the moral justifications offered for combatant targetability, and join May and Kasher in challenging the enduring rationale of the class-​based distinction between civilians and combatants. I then turn to examine the changing nature of wars and of combatants, questioning the strategic arguments in favor of maintaining combatant targetability. I argue that changes in the ways in which wars are fought and won, in the roles of soldiers in militaries, in the civilianization of the armed forces, and in technological capabilities cast doubt on the extent to which the killing of as many enemy combatants as possible is either necessary or sufficient to end wars. Once the military benefit of killing as many enemy soldiers as possible is diminished (even though not eliminated), legal permission to do so can no longer be easily justified under the principle of military necessity; instead, it threatens to become exorbitant cruelty. Undoubtedly, war is about killing, and mankind has yet to imagine wars without death. The argument here does not engage with the question of whether killing in the short run preserves more lives later on.19 The laws of war restrict themselves to tactical calculations—​minimizing cruelty in particular engagements—​rather than focusing on overall calculation of the “body count” of the war; were it not so, any and all humanitarian limitations on the conduct of war could be done away with on the theory that they only make war more bearable, possible, and perhaps even attractive. Accordingly, I limit my argument to the claim that by making all killing of enemy soldiers “legal,” the laws of war make belligerent parties more callous about some of the war’s human costs.20 If we believe that all lives have an affirmative value, then limiting the permissibility of killing enemy soldiers is a worthy task. In suggesting a possible alternative reading of the laws of war, the greatest challenge is one of manageability. The obvious advantage of the existing paradigm has been its purportedly straightforward applicability to the battlefield:  In reliance on a status-​ based rule of distinction, soldiers need not engage in a costly and dangerous process of ascertaining the merits of each individual target. Any alternative rule for permissible targeting that requires more fine-​grained distinctions among combatants would raise the costs of decision-​making, training, and monitoring of compliance. These increased costs would have to be weighed against the value of human lives.   Ibid fn 221.   For a discussion about the limiting rules of international humanitarian law (IHL) and the possibility of breaking them to preserve more lives, see G Blum, “The Laws of War and the Lesser Evil” (2010) 35 Yale J Intl L 1–​69. 20   On the numbing effects of the legal discourse of IHL norms, see D Kennedy, Of War and Law (Princeton University Press 2006). 18

19

21



Soldiers—The View from the Laws of War

21

Moreover, given the changing nature of the battlefield, the current class-​based paradigm itself is becoming increasingly dependent on case-​by-​case judgments. The reality of a mixed combatant-​civilian population within and outside the battlefield, coupled with a growing humanitarian conscience that is sensitive to civilian casualties, already requires states to invest in military technologies that enable them to tell combatants apart from civilians and target the former without harming the latter. To do this, they must often engage in individual-​based determinations of the identity and role of their target. Here we have a logical basis for the same action for the opposite purpose: These same capabilities that are currently used to comply with the distinction between civilians and combatants can be put to use to tell threatening combatants apart from unthreatening ones. With these considerations in mind, the last part of the chapter offers two amendments to the current doctrine of targeting combatants. The first is based on a more fine-​grained application of the principle of distinction, suggesting that as a mirror image to the presumption of civilian immunity, which is lost when the civilian takes a direct part in hostilities, the presumption about soldiers’ targetability will be similarly rebuttable where a soldier poses no threat. The second suggests a re-​reading of the principle of military necessity to incorporate a least-​harmful-​means test, mandating the capture or otherwise disabling of the enemy rather than direct targeting, wherever feasible. I discuss the challenges of applying these amendments on the battlefield and the possible legal strategies for their adoption. Ultimately, the decision as to whether or not to adopt these amendments must rest on the value we want to assign human lives, particularly those of enemy combatants. The focus in this chapter is on the combatant side of the principle of distinction, as complementing the existing scholarship that addresses civilian immunity. I therefore largely ignore the implications of the argument for noncombatant immunity, although I intend the suggestions of limiting combatant targetability as a corollary—​ rather than a threat—​to civilian immunity. The chapter proceeds as follows. Section 2 offers an overview of the general principles of the laws of war, as they pertain to the permissible targeting of combatants on the battlefield. Section 3 summarizes the mainstream philosophical justifications for subjecting combatants to deliberate targeting and the dissenters’ voices in challenging them. Section 4 fleshes out three fundamental strategic changes in the nature of wars and combatants, namely the declining value in killing generic combatants in modern conflicts, the civilianization of the armed forces, and the technological sophistication of at least some militaries. In Section 5, I propose possible alternative doctrines, which aim at limiting the legitimate targeting of combatants. I discuss the practical implications of this amended reading and the possible legal strategies for bringing it about.

2.  Soldiers—​The View from the Laws of War Throughout the ages, fighting on behalf of one’s country/​state/​nation has been a concept synonymous with honor, masculinity, and patriotism.21 In Athens, military 21   On the relationship among soldiers, chivalry, and masculinity, see generally L Braudy, From Chivalry to Terrorism: War and the Changing Nature of Masculinity (Vintage Books 2005).

2

22

The Dispensable Lives of Soldiers

service was a duty and a privilege reserved for and incumbent upon citizens of the polis, distinguishing them from slaves or foreigners. In medieval times, the status of knighthood was reserved for the nobility (from the young age of seven), whereas footsoldiers were serfs and criminals. Only the nobility had a right to bear arms. It was for this reason that the use of the crossbow (which allowed a commoner to strike a nobleman from afar—​thereby bypassing the chivalric code of combat) was prohibited.22 With the development of the nation state, beginning in the fifteenth century but gaining greater force in the seventeenth century, volunteers (and mercenaries) were replaced with national standing armies. The Napoleonic wars saw mass recruits of poorly armed, poorly trained, and ill-​equipped soldiers, who were sent to charge attacks by constituting a human wave, ultimately earning the label of “cannon fodder.”23 The development of modern national armies required reformulating the laws of war, from derivatives of notions of honor and chivalry—​which befitted battles fought by privileged classes—​to rules based on reciprocity and professionalism that could be generalized for mass armed forces. Military dress, although known in some form or another as early as the Spanish infantry of Hannibal and the Spartan hoplites, became more uniform and standardized, distinguishing soldiers from civilians. Laws and customs of warfare once again became preoccupied with how armies fought each other, largely neglecting the Enlightenment era’s concern for the well-​ being of civilians until after the Second World War. The religious-​based justifications for restraint in war gave way to more secular, utilitarian prohibitions that corresponded to geopolitical and technological changes affecting military strategies and capabilities. Some new rules were driven by lingering remnants of medieval notions of honor and fairness on the battlefield (banning treacherous killing or masquerading as the other side’s combatants), and others by the wish to reinforce the principle of distinction and protect civilians (prohibiting the practice of shielding or disguising oneself as a civilian). Specifically negotiated agreements further banned some types of weapons believed to cause unnecessary suffering (dum-​dum bullets or poisonous gas). None of these limitations, however—​with the exception of the rules pertaining to hors de combat (on which I elaborate further later in the chapter)—​concerned the right to kill all enemy combatants; they only constrained how one could exercise that right by prohibiting certain means and methods of warfare.24 In effect, the rules pertaining to the permissible killing of combatants have remained much as they were in the nineteenth century. The four basic principles of the laws of war—​or international humanitarian law (IHL), as they are also known—​are military necessity and humanity, distinction, and proportionality. In what follows, I expand on how the existing understanding of these principles allows for the permissible targeting of all combatants.

22   The prohibition, which later applied to wars among Christians but not with “infidels,” was never adhered to. See M Strickland, War and Chivalry: The Conduct and Perception of War in England and Normandy, 1066–​1217 (Cambridge University Press 1996) 72. 23   See François-​René De Chateaubriand, De Buonaparte et des Bourbons (London 1814). 24   See discussion in Section 1.1.

23



Soldiers—The View from the Laws of War

23

2.1  Military necessity and humanity As introduced into the Lieber Code of 1863—​the first modern codification of the laws of war—​at the beginning of the American Civil War, the principle of military necessity was at once both an enabling and a limiting concept.25 It allowed the use of “those measures that are indispensable for securing the ends of the war and that are lawful according to the modern law and usages of war.”26 In Lieber’s time, these measures included all direct destruction of life and limb of armed enemies, and of other persons whose destruction is incidentally unavoidable . . . it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of particular danger to the captor; it allows of all destruction of property and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy.27

But alongside this comprehensive list of “Do’s,” military necessity had a more implied “Don’t”: It “does not admit of cruelty.”28 This meant that destruction and pain that were not strictly “necessary” for securing the war’s ends were impermissible. This limiting feature has sometimes been framed under a separate principle of humanity, according to which the means and methods of warfare that cause superfluous injury and unnecessary suffering are proscribed.29 Five years after the Lieber Code, the principles of military necessity and humanity were codified within the 1868 St Petersburg Declaration.30 Negotiated among military officials from the various powers, the Declaration sought to “[fix] the technical limits at which the necessities of war ought to yield to the requirements of humanity,”31 and stated that “the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy; that for this purpose it is sufficient to disable the greatest possible number of men.”32 The century and a half that separates us from the St Petersburg Declaration saw little change in the understanding of the principles of military necessity and humanity.33 The 1899 and 1907 Hague Regulations and the 1929 and 1949 Geneva Conventions added and codified rules on hors de combat (on which I elaborate later in the article) and on permissible tactics of war, while other subsequent conventions (such as the Biological Weapons Convention, the Convention on Certain Conventional Weapons, and the Chemical Weapons Convention) stipulated prohibitions on specific types of weapons that cause superfluous injury and unnecessary suffering. On the whole,

  Lieber Code, General Orders No 100 (U.S. Adjutant General’s Office 1863). 27 28   Ibid, Art 14.   Ibid, Art 15 (italics added).   Ibid, Art 16. 29   See Hague Regulations Art 22, annexed to the Convention Respecting the Laws and Customs of War on Land, October 18, 1907, 36 Stat 2277 [hereinafter Hague Convention of 1907, Hague Regulations]: “[t]‌he right of belligerents to adopt means of injuring the enemy is not unlimited.” 30   Declaration Renouncing the Use, in Time of War, of Certain Explosive Projectiles, November 29/​ December 11, 1868 [hereinafter St Petersburg Declaration]. 31 32  Ibid.   Ibid (emphasis added). 33   As the ICRC concedes, “Historically, the modern concept of military necessity has been strongly influenced by the definition provided in Art. 14 of the Lieber Code.” See Melzer (n 17) fn 215. 25

26

24

24

The Dispensable Lives of Soldiers

however, the enabling features of “military necessity,” as far as soldiers are concerned, have taken precedence over any limiting components. In its present-​day formulation, the principle of military necessity accordingly permits only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.34

“Necessity” thus justifies not only what is required to win the war, but also what reduces the risks of losses or costs of the war.35 As the ICRC itself recognizes in its Interpretive Guidance, “Apart from the prohibition or restriction of certain means and methods of warfare, however, the specific provisions of IHL do not expressly regulate the kind and degree of force permissible against legitimate military targets.”36 This statement is compatible with the instructions given by militaries to the armed forces on the battlefield. The US Army Field Manual, for instance, accepts, as a general matter, that “The law of war places limits on employing any kind or degree of violence that is not actually necessary for military purposes,”37 but in its operational section, it instructs that “Wartime ROE [Rules of Engagement] permit U.S. forces to open fire upon all identified enemy targets, regardless of whether those targets represent actual, immediate threats.”38

2.1.1 The “hors de combat” exception The broadest exception to the general right to kill enemy combatants is the category of combatants who are hors de combat (in French, “outside the fight”)—​those who have been rendered incapable of fighting, through surrender, capture, or injury. Some rules prescribing certain behavior toward the injured, captured, or dead have been part of the laws of war since their earliest incarnation.39 Motivated by religious dictates and codes of honor and chivalry, such rules regulated the payment of ransom

  UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press 2004) § 2.2 (Military Necessity). See also US Department of the Army, Field Manual 27-​10 (1956) § 3; US Department of the Navy, The Commander’s Handbook on the Law of Naval Operations (2007) § 5.3.1; NATO, Glossary of Terms and Definitions, AAP-​6 (2009). 35   See also the decision by the American Military Tribunal in Nuremberg in the Hostage Case, proclaiming that “Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel, the complete submission of the enemy with the least possible expenditure of time, life, and money”:  USA v List et  al., 11 NMT 1230, 1253 (American Military Tribunals, Nuremberg, 1948). 36 37   Melzer (n 17) 78.   US Dept of the Army, Field Manual 7-​21.13 (2003). 38   US Dept of the Army, Field Manual 27-​100 (2000). The Manual then proceeds to instruct that once a threat has been declared a hostile force, US units and individual soldiers may engage without observing a hostile act or demonstration of hostile intent. The basis for engagement becomes status rather than conduct. 39   For a general history of the laws of war, see Stephen Neff, War and the Law of Nations: A General History (Cambridge University Press 2005) and Geoffrey Best, Humanity in Warfare (Methuen & Co 1983). 34

25



Soldiers—The View from the Laws of War

25

in exchange for release of POWs, the duty to allow the enemy to collect its dead and bring them to burial, and so on. First formally codified in the Lieber Code, rules on hors de combat were subsequently elaborated in the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949, and the Additional Protocols of 1977. These negotiated treaties included prohibitions on the denial of quarter (meaning the refusal to accept an offer to surrender),40 on harming those who have surrendered,41 and on mistreating POWs.42 The treaties further instructed that those who are wounded, sick, or shipwrecked be safeguarded from violence, treated humanely, and cared for.43 The rules about hors de combat all share one underlying principle: Once soldiers are incapacitated—​through surrender, capture, or injury—​they no longer pose a threat. As the ICRC commentary to the Geneva Convention explains, “it is only the soldier who is himself seeking to kill who may be killed. The abandonment of all aggressiveness should put an end to aggression.”44 All soldiers who are not injured or captured are presumed to be “seeking to kill,” and therefore the deliberate targeting of all enemy combatants—​regardless of their role on the battlefield, or whether they are off duty, asleep in the barracks, bathing in the lake, or retreating—​is permissible.45 There is no duty to warn enemy combatants prior to an attack, to try to capture enemy combatants as POWs instead of killing them (a duty that existed under the medieval codes of knightly conduct in respect to other knights),46 to injure them instead of killing them, or to minimize combatant casualties in any other way. An interesting historical anomaly is the rule prohibiting shooting at aircrew parachuting in distress (as opposed to shooting at parachuting soldiers in deployment).47

40   See Hague Regulations Art 23(g); Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) Art 40, June 10, 1977, 1125 UNTS 3 [hereinafter API]. 41   Hague Regulations Art 23(g); API Art 41. 42   See Chapter II of the Hague Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat 1803 [hereinafter Hague Convention of 1899]; Chapter II of the Hague Convention of 1907, and Geneva Convention Relative to the Treatment of Prisoners, August 12, 1949, 75 UNTS 135 [Geneva Convention III, hereinafter GCIII]. The Additional Protocol from 1977 expanded the entitlement to POW status but did not add much to the rights of POWs. 43   Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field Art 12, August 12, 1949, 75 UNTS 31 [Geneva Convention I, hereinafter GCI]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea Art 3, August 12, 1949, 75 UNTS 85 [Geneva Convention II, hereinafter GCII]. 44   J Pictet, Commentary: I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (International Committee of the Red Cross 1952) 136. 45   See W Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, Department of the Army Pamphlet 27-​50-​204: “Combatants are liable to attack at any time or place, regardless of their activity when attacked  . . .  An individual combatant’s vulnerability to lawful targeting (as opposed to assassination) is not dependent upon his or her military duties, or proximity to combat as such.” 46   See Robert C Stacey, “The Age of Chivalry” in Michael Howard, George J Andreopoulos, and Mark R Shulman (eds), The Laws of War: Constraints on Warfare in the Western World (Yale University Press 1994) 30. 47   Claude Pilloud, Jean de Preux, Yves Sandoz, Bruno Zimmerman, Philippe Eberlin, Hans-​Peter Gasser, Claude F Wenger, Sylvie-​S Junod, and Jean Pictet, in Yves Sandoz, Bruno Zimmerman, and Christophe Swinarski (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross 1987) 495; API Art 42. Although the provision in API was a new one, several military manuals contained a similar provision.

26

26

The Dispensable Lives of Soldiers

This constraint was borne out of the early admiration of pilots: During the First World War, “The adversary who had been brought down in flames was entitled, not to bullets, but to a salute as he went down, to wishes for his recovery if he were wounded, and flowers if he were dead.”48 Although this provision could be understood as being akin to the protections accorded to shipwrecked seamen who were hors de combat, it was probably more inspired by notions of chivalry (aircraft being the new “steed,” fit for gallant knights alone, and air-​fights being the new “tournaments”), as the bailing aircrew were protected even when they parachuted back into their own territory and were able to resume their combat activity shortly thereafter.49 In sum, the exception of hors de combat is the only manner by which the class-​ based distinction is supplemented by a threat-​based analysis. In the following sections, I argue that this threat-​based analysis can and should be expanded beyond this exception.

2.2  Distinction Described as “cardinal” by the International Court of Justice, the principle of distinction is the foundation of much of the current laws of war: “remove the ‘principle of distinction’ and the entire IHL system collapses.”50 Together with the principle of military necessity, it makes up the “deal” that IHL strikes between the need for war, and for killing in war, and the humanitarian concern for those affected by wars: It allows the sacrifice of combatants and military objects in exchange for sparing civilians and their property. The exact scope of the principle of distinction has been the center of centuries-​long religious, philosophical, and legal debate over just war theory. In the fifth century, Augustine’s justification for war as a just and even loving punishment for the wrongdoing of the enemy allowed the killing of all enemy nationals—​civilians and combatants alike. The dependency of the justness of killing on the justness of war remained the predominant view throughout the following centuries (rearticulated by Averroes, Thomas Aquinas, and Francisco de Vitoria).51 It was only in the seventeenth century that Hugo Grotius—​followed a century later by Emmerich de Vattel, and relying on a secular conception of natural law—​insisted on separating the justness of the cause of war from the justness of the means of prosecuting the war. Accordingly, the fate of people could no longer depend on whether their country should be “punished,” but instead on whether they played a role in fighting. This was not only a secular move, but also a strategic one; for once the knightly model of war was replaced with mass armies and mercenaries, the ability to ascribe “guilt” to individual soldiers, even those fighting unjust wars, was further diminished. Both these notions—​the independence of the jus in bello from the jus ad bellum, and the sparing of all those who do not partake in hostilities—​are at the foundation of modern laws of war.

49   Pilloud et al (n 47) 494.  Ibid 494–​ 6.   50  Dinstein (n 13) 146.  For the intellectual history of the notion of civilian immunity, see Colm McKeogh, “Civilian Immunity in War:  Augustine to Vattel,” in Igor Primoratz (ed), Civilian Immunity in War (Oxford University Press 2007) 62–​83. 48 51

27



Soldiers—The View from the Laws of War

27

The present-​day principle of distinction, which is both customary and treaty-​based, has two dimensions: One applies to people, the other—​which requires a more fine-​ grained judgment in application—​to objects.

2.2.1 The distinction between civilians and combatants The human aspect of the principle of distinction is status-​based: One is either a “civilian” or a “combatant,” with a set of distinct protections and obligations that is attached to each. This seemingly neat division between the two categories, however, is subject to much debate. IHL’s definition of “civilians” is a residual one and comprises all those who do not fall under the category of combatants.52 In cases of doubt, an individual must be presumed to be a civilian. Civilians are not allowed to take part in hostilities, and in exchange for their non-​participation, they are entitled to immunity from any deliberate attack (even if not from unintentional harm). Article 51(3) of Additional Protocol I, 1977 (“API”) sums up this principle when it ensures immunity to civilians “unless and for such time as they take a direct part in hostilities.”53 If a civilian takes a direct part in hostilities, he turns into a de facto combatant for purposes of targeting; but unlike the privileged combatant, he may also be tried and punished for his mere participation in the war effort. The exact scope of civilian immunity thus hinges upon the definition of “combatants” (civilians being defined in a residual manner) as well as on the interpretation of Article 51(3) (the conditions under which a civilian turns into a combatant). The terms “combatants,” “belligerents,” and “members of the armed forces” are used interchangeably, while the term “soldier” is nowhere used or defined in the basic documents on the laws of war. Article 43(2) of API stipulates that “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” It then proceeds to stipulate that “Members of the armed forces of a Party to a conflict other than medical personnel and chaplains  . . .  are combatants, that is to say, they have the right to participate directly in hostilities.” The right to participate in hostilities means that, unlike civilians who take part in the fighting, combatants break no law by merely participating in combat, so long as they follow the laws of war. On the battlefield, they may kill enemy soldiers, with few limitations; if captured, they may not be tried or punished for doing so, unless they have also committed war crimes. They may only be subject to detention by enemy forces as POWs. Hence, although in the ordinary meaning “combatant” means a person who fights, in the legal sense “combatant” means anyone who has a right to fight under international law, and this right is accorded to all members of the armed forces, other than medical personnel and chaplains. Another exceptional category is soldiers assigned

  API Art 50.   API Art 51(3). On the interpretation of Art 51(3), see HCJ 769/​02 The Public Committee Against Torture in Israel v The Government of Israel [2005] (not yet published), available at:  (Barak’s opinion). 52

53

28

28

The Dispensable Lives of Soldiers

exclusively to civil defense tasks.54 All three—​medics, chaplains, and civil defense forces—​must wear a distinctive emblem to identify them as such. Other than these categories, all soldiers are targetable unless they become hors de combat, and it is irrelevant whether they are conscripted or volunteers; serving on the frontline or in the rear; engaging in combat, combat support, or noncombat activities. An earlier distinction between members of the armed forces who are combatants and those who are not, which appeared in Article 3 of the 1907 Hague Regulations, was considered and expressly rejected during the negotiations of the 1977 API. The ICRC’s commentary on API states: In fact, in any army there are numerous important categories of soldiers whose foremost or normal task has little to do with firing weapons. These include auxiliary services, administrative services, the military legal service and others. Whether they actually engage in firing weapons is not important. They are entitled to do so, which does not apply to either medical or religious personnel, despite their status as members of the armed forces, or to civilians, as they are not members of the armed forces. All members of the armed forces are combatants, and only members of the armed forces are combatants.55

The claim that “all members of the armed forces are combatants” is generally undisputed. There are heated debates, however, about the status of those who are not members of national armed forces, namely irregular forces. Without elaborating on its scope and background, the dispute is essentially over a question that is pivotal to the modern battlefield: Should non-​state paramilitary forces who do not distinguish themselves from the civilian population be considered lawful combatants, unlawful combatants, or else civilians who take part in hostilities?56 This controversy has re-​ emerged with full force with the advent of the “war on terror” and the need to classify terrorists as either combatants (lawful or unlawful) or civilians for purposes of targeting or detention.57 I return to the implications of this controversy later in the chapter.

2.2.2 The distinction between civilian and military objects Article 52(1) of API expresses the obligation to distinguish between military and civilian objects in targeting. As in the case of human beings, the definition of civilian objects is residual and encompasses all non-​military objectives. Unlike the case 55   API Art 61(a).   Pilloud et al (n 47) 515.   On the distinction between lawful and unlawful combatants generally, see Dinstein (n 13)  150–​ 56, and cf Marco Sassòli, “Terrorism and War” (2006) 4 J Int’l Crim Just 959–​981; Nathaniel Berman, “Privileging Combat? Contemporary Conflict and the Legal Construction of War” (2004) 43 Colum J Transnat’l L 1–​71. For the view that unlawful combatants are essentially civilians, see Michael N Schmitt, “Asymmetrical Warfare and International Humanitarian Law” (2008) 62 A F L Rev 1–​42. 57   On the debates surrounding the status of al-​Qaeda or Taliban members, see generally Ryan Goodman, “Editorial Comment: The Detention of Civilians in Armed Conflict” (2009) 103 Am J Intl L 48–​74; Derek Jinks and David Sloss, “Is the President Bound by the Geneva Conventions?” (2004) 90 Cornell L Rev 97–​ 202; Joseph Bialke, “Al Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency and the International Laws of Armed Conflict” (2004) 55 A F L Rev 1–​85; Kenneth Anderson, “What to Do with Bin Laden and Al Qaeda Terrorists? A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base” (2002) 25 Harv J L & Pub Pol’y 593–​634. 54 56

29



Soldiers—The View from the Laws of War

29

of human beings, however, the definition of military targets is not one of status but of function. Article 52(2) of API states that “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”58 There are thus striking differences between the rules on the permissible targeting of individuals and those on the permissible targeting of objects: Although any member of the armed forces is presumed to be contributing to military action so that his or her killing is presumed to gain a definite military advantage, objects must stand a case-​by-​case test of contribution and advantage to justify their destruction, capture, or neutralization.59 Specifically, the Protocol makes no distinction between “military objects” and dual-​use objects, which would have followed the distinction between military personnel and civilians who may or may not serve military functions; instead, it treats all objects as potentially dual-​use. Thus, a tank exhibited at the Smithsonian is not a legitimate target, but an exhibition-​guide soldier is. This difference in targeting standards might be justified on the account that there is often more time to assess the nature of an immovable target than the identity of moving human beings. But this is not always the case, nor does the Protocol limit the obligation to engage in case-​by-​case evaluations to instances where the assessment can be made at leisure.

2.3  Proportionality The principle of proportionality signifies the distinction between the deliberate killing of civilians (or attacking civilian objects), which is always prohibited, and the realization that no war can be fought without inadvertently affecting the innocent. Following the Catholic doctrine of double effect, which distinguishes between intended and foreseen consequences, it allows for the foreseen-​yet-​unintended killing of civilians (or damage to civilian objects), provided that such “collateral harm” is not excessive in relation to the overall military advantage that is to be gained from the attack. The principle of proportionality further mandates that combatants take all feasible precautions to minimize collateral harm that might result from their military actions. The principle of proportionality in jus in bello has never been interpreted, nor does its language suggest that it should be interpreted, as applying to enemy combatants. There is thus no duty to minimize harm to enemy combatants. The Rome Statute of the International Criminal Law, which lists all indictable war crimes, makes no reference to excessive killing of combatants.60 In fact, the killing of more enemy combatants has

58   Other specific provisions accord special protection to cultural objects and places of worship (Art 53), objects indispensable to the survival of the civilian population (Art 54), the natural environment (Art 55), or works and installations containing dangerous forces (Art 56). 59   For an elaborate and illuminating analysis of legitimate military objectives, see W Hays Parks, “Asymmetries and the Identification of Legitimate Military Objectives” in Wolff Heintschel von Heinegg and Volker Epping (eds), International Humanitarian Law Facing New Challenges: Symposium in Honor of Knut Ipsen (Springer 2007) 65–​116. 60   See Rome Statute of the International Criminal Court Art 8, July 17, 1998, 2187 UNTS 90.

30

30

The Dispensable Lives of Soldiers

been generally understood as a central component of “military advantage,” against which harm to civilians must be measured. Some commentators have linked the excessive killing of combatants in war to the necessity and proportionality requirements of the just use of force under the jus ad bellum prong of the laws of war. There are debates in the literature as to whether the necessity and proportionality requirements of jus ad bellum apply to any act in war or govern only the initial use of force, or, in other words, whether they apply tactically, strategically, or even politically.61 It is unnecessary here to chime in on this debate, for even to those advocating the law’s most expansive reading, these requirements have not been read as prohibiting the killing of all enemy combatants in the course of legitimate military operations under jus in bello. Nor do military manuals seem to support such a reading in instructing their troops on the laws of war.

2.4  A note on international human rights law There has been a noticeable effort among human rights activists to complement and interpret IHL norms with or in light of the more expansive and protective norms of international human rights law (IHRL). This humanitarian drive has been promoted, in part, by the existence of judicial institutions, such as the European Court of Human Rights, which have jurisdiction over IHRL claims but not IHL ones.62 A recent context in which this effort has been particularly evident is the “war on terror” and the debates over the standards that should apply to the targeting and treatment of terrorists.63 And still the human rights community, advocates and scholars alike, has remained fairly silent in discussions of the right to life of a country’s own military forces (discussions that have taken place among political theorists).64 In particular, it has failed to advance principled claims about the obligations owed by the government to its own soldiers, or to comment on the legitimacy of the interstate consensus around governments’ sacrifice of some portion of their domestic population (for example, soldiers) for the benefit of the rest (for example, civilians). True, governments try to protect their soldiers, partly by employing more aggressive force toward the enemy (including by “risk transfer” from soldiers onto enemy  Compare Christopher Greenwood, “The Applicability of International Humanitarian Law and the Law of Neutrality to the Kosovo Campaign” in Yoram Dinstein and Fania Domb (eds), The Israeli Yearbook on Human Rights, Vol 30 (Martinus Nijhoff 2000) 111–​4 4 (arguing that the jus ad bellum requirements must be kept separate from the jus in bello), with Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues (Pearson/​Prentice Hall 2004). 62   See e.g. Isayeva v Russia, App No 57950/​0 0, 41 Eur H R Rep 847 (2005) (applying right-​to-​life analysis to Russian military strikes in Chechnya); Ergi v Turkey, 1998-​IV Eur Ct H R 1751 (applying a similar analysis to a clash between Turkish forces and members of the Workers Party of Kurdistan). Note, however, that in these cases, the state in question itself denied that the context was one of an armed conflict, thus denying the application of IHL altogether. For a discussion of these cases, see William Abresch, “The Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya” (2005) 16 Eur J Intl L 741–​767. 63  See generally K Anderson, “U.S. Counterterrorism Policy and Superpower Compliance with International Human Rights” (2007) 30 Fordham Intl L J 455–​84, and Natasha Balendra, “Defining Armed Conflict” (2008) 29 Cardozo L Rev 2461–​2516. 64   See e.g. Thomas Hill Green, Lectures on the Principles of Political Obligation (Longmans, Green, & Co 1895). 61

31



Soldiers—The View from Philosophy

31

forces and civilians). But the terms of engagement, as far as the soldiers are concerned, are that death on the battlefield is not only an occupational hazard, but also something the government has agreed to in advance as lawful and legitimate. This makes soldiers’ terms of engagement conceptually different from the occupational hazards of police officers, firefighters, or any other public servant: Not only do they undertake risk but, in effect, they are expected to forfeit their right to life.65

3.  Soldiers—​The View from Philosophy Philosophers have paid far more attention to combatant targetability than their colleagues in the legal profession have. And even though the present-​day philosophical literature that offers justifications for killing in war might still be preoccupied mainly with the non-​k illing of noncombatants (with some notable exceptions that I reference later), it is within this scholarship that some doubts concerning the legitimate scope of targeting combatants—​doubts that are largely absent from legal scholarship—​are voiced. Three strands of modern justifications for killing in war stand out, and I  group them roughly in three categories:  immunity theory, honor theory, and convention. I  note those criticizing these justifications as well as those questioning their implications with regard to the permissible killing of soldiers. These critiques are used in Section 5 of this chapter to support my own normative argument.

3.1  Immunity theory The most common strand of justification for killing in war largely relies on the paradigm of self-​defense and is forwarded by those who have been dubbed “immunity theorists.”66 Early versions of the immunity theory hark back to earlier versions of just war theory and the coupling of the just cause of war with its just prosecution. For Elizabeth Anscombe, combatants are targetable when they pose a threat and are engaged in “an objectively unjust proceeding.”67 Some contemporary writers, such as Jeff McMahan (2006), Paul Ramsey (1968), and Robert Holmes (1989), follow in Anscombe’s footsteps and reject the principle of the “moral equality” of soldiers by which the status of combatants fighting just wars is equal to those fighting on behalf of unjust aggressors.68 An obvious problem with this position—​one that first drove Grotius, in the seventeenth century, to argue for a separation of the jus ad bellum from the jus in bello   Kasher (n 14) 10.   The term was offered by George I Mavrodes, “Conventions and the Morality of War” (1975) 4 Phil & Pub Aff 117–​31, and then followed by others, such as Robert K Fullinwider, “War and Innocence” (1975) 5 Phil & Pub Aff 90–​97. 67  Elizabeth Anscombe, “War and Murder” in Richard A Wasserstrom (ed), War and Morality (Wadsworth 1970) 42–​53. 68  See Jeff McMahan, “On the Moral Equality of Combatants” (2006) 14 J Pol Phil 377–​93; Paul Ramsey, The Just War: Force and Political Responsibility (Scribner 1968); Robert Holmes, On War and Morality (Princeton University Press 1989). See also Daniel S Zupan, War, Morality, and Autonomy: An Investigation into Just War Theory (Ashgate 2004). 65

66

32

32

The Dispensable Lives of Soldiers

principles—​is the lack of an arbitrator to determine which wars are just and which are not. Almost all parties who engage in war believe they are fighting for just causes; if the justice of the cause cannot be easily determined, there could be no practical benefit from a system that purports to impose limitations on the “unjust” party alone. Another difficulty is the assumption of collective guilt on the part of all soldiers or the collective innocence of all civilians, and the inevitable realization that some civilians (e.g. the informed farmer who supports Nazi propaganda) would always be more morally culpable than some of their naïve and uneducated compatriot soldiers.69 It is for this reason that most contemporary immunity theorists, such as Thomas Nagel (1972) and Robert K Fullinwider (1975), follow present-​day IHL and reject notions of morality and guilt as a basis for determining targetability.70 They juxtapose “innocence” not with “guilt” but with “threat” or “danger,” and justify the targeting of soldiers under the principle of self-​defense. Being innocent (that is, unthreatening), the civilian is immune from attack, while the dangerous soldier is susceptible to it.71 But even if “innocence” is juxtaposed with “danger” and not with “guilt,” the collective determination that all civilians are unthreatening and all soldiers are threatening is an uneasy one. Questioning the scope of civilian immunity that could be justified on the basis of the self-​defense paradigm, Lawrence Alexander concludes that “the intentional killing of innocent noncombatants is not necessarily immoral . . . [because] the right to kill in self-​defense requires only that the person killed be a necessary or sufficient cause of a danger, not that he be morally guilty.”72 C A J Coady expands the groups of civilians who might be targeted on the basis of “threat” to include “the political leadership of an unjust war, civilian scientists developing weapon systems for that enterprise, civilian conspirators who have successfully plotted to bring about the war for their own purposes, and so on,” acknowledging that his stance allows the targeting of more civilians than the laws of war currently allow.73 And Michael Green goes even further to argue that civilian innocence is a relic of the past, when “the people had no part to play in legitimizing, commanding, or controlling the activities of the government.”74 Such is not the case today, because “war became a conflict among nations and peoples involving the total mobilization of those nations.”75 His assertions are especially resounding if one considers the claim that democratic accountability improves the war performance of the country.76 Although emphasizing the growing   Mavrodes (n 66) 81.   Thomas Nagel, “War and Massacre” (1972) 1 Phil & Pub Aff 123–​4 4, or Fullinwider (n 66). 71   See Fullinwider (n 66), explaining that “the distinction between combatants and noncombatants derives from the operation of the Principle of Self-​Defense. Our obligation not to kill noncombatants stems from our obligation not to kill without justification; and the Principle of Self-​Defense justifies killing only combatants.” For a similar argument, see also John Ford, “The Morality of Obliteration Bombing” in Richard A Wasserstrom (ed), War and Morality (Wadsworth 1970) 15–​41. 72   Lawrence A Alexander, “Self-​Defense and the Killing of Noncombatants: A Reply to Fullinwider” (1976) 5 Phil & Pub Aff 408–​15, 415. 73   C A J Coady, “The Status of Combatants” in David Rodin and Henry Shue (eds), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (Oxford University Press 2008) 153–​75. 74  Michael Green, “War, Innocence, and Theories of Sovereignty” (1992) 18 Soc Theory & Prac 39–​62, 43. 75  Ibid 43. 76   See Samuel Issacharoff, “Political Safeguards in Democracies at War” (2009) 29 Oxford J Legal Stud 1–​26. 69 70

3



Soldiers—The View from Philosophy

33

responsibility of civilians in society, Green stops short of challenging the corresponding assumption about the “threat” or “culpability” of all combatants. Some accounts for why all soldiers should be considered threatening are offered by other immunity theorists, who rely on the collective nature of war and on the role of soldiers as agents of their country. Walzer argues that war cannot be fought without discriminating between fighters and non-​fighters, where the former “are subject to attack at any time.”77 The reason for this, he claims, is that the soldier has allowed himself “to be made into a dangerous man.”78 Acknowledging that not every soldier is dangerous at every time, and that simple soldiers are not necessarily “responsible” for their government’s actions,79 he believes the class of soldiers is dangerous, and this fact is what distinguishes any individual soldier from all civilians. Noam Zohar further develops this notion to create what he terms “extended self defense,” which accounts for the killing of soldiers who are neither directly responsible for their government’s actions nor threatening at a particular moment: War is perceived and described properly only when we see it as being waged between nations rather than simply between two hosts of individual soldiers . . . Civilians too are members of the nation, but their identity as individuals is paramount whereas those who wear the national uniform are rightly identified as embodying the nation’s agency.80

This class-​oriented variation of immunity theory thus allows for a uniform treatment of all soldiers, regardless of their immediate role or function, or the degree of threat they pose. They are denied any individual identity and are instead considered all to be members of a group, which the state sends to kill and be killed on its behalf so that a larger group—​namely, civilians—​can be protected. The obvious problem with the class-​based theory is its circularity: We designate soldiers as agents of the state, and once designated as such, they are targetable. But why should only soldiers be agents of the state? Why should all soldiers be agents of the state? Taken to the extreme, why should the class theory not revert back to Augustine’s punitive model of the fifth century that collapsed any distinction between the king and his subjects? These questions are especially pertinent as most class theorists also   Walzer (n 11) 138. See also C A J Coady, “Terrorism and Innocence” (2004) 8 J Ethics 37–​58, and Noam Zohar, “Collective War and Individualistic Ethics:  Against the Conscription of ‘Self-​Defense’” (1993) 21 Pol Theory 606–​22, 615, who emphasizes that killing in war cannot be justified by direct analogy to self-​defense on the private level: “Where the basic analogy to self-​defense does function is on the collective level, justifying self-​defensive war itself despite its necessary cost in innocent lives.” See also Uwe Steinhoff, who argues that what should underlie the distinction discipline is not so much the actual non-​innocence or innocence of any individual target as much as what the attacker can know with some degree of certainty about the individual. In this, Steinhoff’s emphasis seems to be on the administrability of the moral rule more than on its application in each particular case. See Uwe Steinhoff, “Civilians and Soldiers” in Igor Primoratz (ed), Civilian Immunity in War (Oxford University Press 2007) 42–​61, 54. 78   Ibid 145. 79   Ibid 28. Walzer does distinguish between conscripted soldiers and volunteers. He describes his disagreement with Thomas Hill Green over his own proposition that “no wrong is done in war if ‘the persons killed are voluntary combatants’.” As he notes, Green questions the degree to which soldiers actually volunteer to go to battle, as opposed to serving a state action. See Green (n 64). 80   Noam Zohar, “Innocence and Complex Threats: Upholding the War Ethic and the Condemnation of Terrorism” (2004) 114 Ethics 734–​51, 739. 77

34

34

The Dispensable Lives of Soldiers

share a strong commitment to democracy. One could easily make an argument, as Michael Green does, that voting (and perhaps non-​voting) citizens in a democracy should be considered as responsible as any soldier for their government’s actions.81 Immunity discussions at times express some uneasiness about the targeting of all enemy combatants under all circumstances. Alexander emphasizes that some combatants might be less dangerous and contribute less immediately to the war effort than their civilian compatriots.82 Thomas Nagel is willing to admit that not all those in uniform are necessarily threatening.83 And Coady concludes that there should be a presumption that warriors are entitled to direct lethal force against opposing warriors where they have some plausible warrant for seeing them as wrongdoers or attackers . . . the presumption is much weaker, even rebuttable, in cases where the enemy troops are palpably in the right, or offer no serious threat.84

None of these discussions, however, elaborate on the limitations pertaining to the killing of enemy combatants or on their practical implications, at times merely noting that such limitations would be “an indictment of widely accepted norms of warfare.”85

3.2  Honor theory Another strand of justification for non-​combatant immunity (and thus, by extension, for combatant targetability) relies on medieval notions of honor and dignity. Nagel employs the distinction between “fighting fair” and “fighting dirty” to explain why killing enemy combatants is compatible with treating them as human beings, whereas killing civilians is not.86 Henry Shue has argued that preserving the principle of non-​combatant immunity “allows for a ‘fair fight’ by means of protecting the utterly defenseless from assault.”87 Under the honor theory, civilian immunity is not a matter of innocence from either moral culpability or threat, but rather of the ability to participate in a fair and honorable fight. The present-​day reliance on notions of honor is reminiscent of Thomas Hobbes’s rejection of unnecessary violence or cruelty 81   Green writes, “In a perfect democracy each and every person would be . . . fully responsible, because if the method of consent has been in operation, each has agreed to the decision reached by that method, or, if not that, to be bound by whatever decision was reached by that method.” Green (n 74) 43. A similar argument has been advanced by Igor Primoratz, “Michael Walzer”s Just War Theory:  Some Issues of Responsibility” (2002) 5 Ethical Theory & Moral Prac 221–​43. 82   Alexander (n 72) 413. Alexander’s conclusion nonetheless focuses on expanding the permissible targeting of civilians without a corollary contraction of the permissible targeting of combatants. 83   Nagel (n 70) 140. 84   Coady (n 73) 164. Earlier in his chapter, Coady adds: “there are wrong ways to treat enemy troops, some of which are covered by the proportionality requirement of the JIB [jus in bellum]. When we know that enemy troops are demoralized and ready to surrender, then further prosecution of lethal attacks upon them is surely showing disrespect for human life and for the humanity in them specifically, your entitlement to injure and kill them is restricted by its necessity for furthering the war aims that are legitimated by your just cause, and when attacks upon them are no longer required by those aims, then the normal respect for human life should resume and be exhibited in your conduct.” Ibid 157. It is unclear whether the just cause is the determining factor in weighing the legitimacy of the decision to continue to fight, or if it is the state of the enemy troops. In any case, Coady’s claim that this issue is covered by the “proportionality requirement of the JIB” is inaccurate. 85 86   Alexander (n 72) 413.   Nagel (n 70) 134. 87   Henry Shue, “Torture” (1978) 7 Phil & Pub Aff 124–​43, 129.

35



Soldiers—The View from Philosophy

35

in war: “though there be in war no law, the breach whereof is injury, yet there are those laws, the breach whereof is dishonour. In one word, therefore, the only law of actions in war is honour; and the right of war providence.”88 Why it should be honorable to kill all soldiers, regardless of their role or their actual ability to participate in a “fair fight,” however, remains unanswered. Paul Kahn’s ideal of fair fighting is more nuanced, prohibiting not only the killing of civilians, but also the killing of combatants who are substantially inferior in power. For Kahn, addressing asymmetrical warfare, the right of combatants to kill one another depends on some rough notions of equality of power, as a reciprocal claim of self-​defense can exist only “as long as they stand in a relationship of mutual risk.”89 Asymmetric war is “an image of warfare without the possibility of chivalry.”90 Without mutual risk, war is no longer war, but a policing action: “The moral condition of policing, however, is that only the morally guilty should suffer physical injury. There might be exceptions to this rule, but there is no wholesale license to target the morally innocent.”91 Kahn, however, does not extend his argument to all theaters of war; in essence, his challenge is not so much to the right to kill soldiers in war, but to labeling asymmetrical conflicts as “wars” in the first place.

3.3  Convention A third strand of theory denies any moral content to the principle of distinction and views it instead as a mere convention upon which states have agreed in regulating their warfare. The pre-​eminent advocate of this theory, George Mavrodes, argues that this convention is intended to limit the destructive effects of wars in some readily applicable way, but cannot be justified on any inherently moral grounds, any more than a convention about driving on either the left-​or right-​hand side of the road can be.92 For Mavrodes, the sacrifice of soldiers for the benefit of civilians is essentially an extension of the dueling idea: If we could resolve all conflicts by a single duel, fought by one volunteer from each side, then that would undoubtedly be the best compromise between the ideal of pacifism and the resigned acceptance of the necessity of war. But because the single duel is a utopia unlikely to be accepted by warring rivals, a different convention—​one of armies fighting one another—​has been adopted. Mavrodes is ready to concede that if an alternative convention, one capable of further reducing the harmful effects of war, is adopted, then there is no essential moral superiority to the current one. Mavrodes’s arguments can be formulated in the following manner: The principle of distinction is useful only to the degree that it approximates, in the best possible way, the values we want to promote in regulating warfare—​namely recognizing the need to

88   Thomas Hobbes, The Elements of Law: Natural and Politic, J C A Gaskin (ed) (Oxford University Press 1999 [1640]) 104. 89 90 91   Kahn (n 15) 3.  Ibid 4.  Ibid 4. 92   See Mavrodes (n 66). For similar arguments, see Michael Green (n 74) and Gabriel Palmer-​Fernandez, “Innocence in War” (2000) 14 Intl J Applied Phil 161–​74.

36

The Dispensable Lives of Soldiers

36

allow parties to prosecute wars, including by killing some individuals, while protecting other individuals as far as is possible.

3.4  Critiques But does the current status-​based principle best approximate these values? At least two philosophers argue that it does not. The first is Larry May, who accepts the general self-​defense paradigm but objects to its rigid status-​based application, not only as it pertains to civilian immunity but also as applied to combatant targetability. Like others before him, May begins by rejecting the application of a simplistic distinction between combatants and civilians on the basis of the threat they pose (“most soldiers never fire a shot”).93 Consequently, it becomes questionable to what degree status-​based or class-​based distinctions between “combatants” and “civilians” are useful in informing targeting decisions: “What is at stake here is whether social group categories should be used as absolute rules that are in themselves sufficient for action decisions, or whether the group categories are merely guides that inform but do not determine our actions.”94 The stakes are heightened when one embraces, as May does, considerations of humanity and human compassion, even where the lives of one’s enemies are concerned. These considerations dictate that the permissible killing of combatants in war is merely a rebuttable presumption, which must be tested on a case-​by-​case basis. In any particular case, testing the presumption requires a real consideration of the value of human life, so that intentional killing is only justified by the threat emanating from the individual target under the prevailing circumstances. The just or unjust cause for which combatants fight is irrelevant in May’s analysis, which thus ensures the integrity of jus in bello as independent from jus ad bellum. May’s ally in challenging the status-​based distinction is Israeli philosopher Asa Kasher, who attacks the existing principle of distinction as violative of soldiers’ human dignity. Kasher emphasizes the value of all human life, including that of enemy combatants, and finds that the license to kill all enemy combatants without further justification other than a presumption of dangerousness pays insufficient heed to this value. In consideration of the lives of a state’s own soldiers, he advances an argument about the state’s obligations to its own citizens—​civilians and soldiers—​thereby questioning the normative acceptability of an interstate agreement that permits the killing of all soldiers.95 Like May, he ultimately demands finer-​grained distinctions that would spare the unthreatening combatant.96 For both philosophers, the move away from status-​based distinctions to individual-​ based determination has the simultaneous effect of sparing more soldiers and endangering more civilians. The naked soldier, who, under existing IHL, is a legitimate target, is saved, while the munitions factory owner, who is currently probably immune from deliberate attack, loses that immunity. 94   May (n 14).  Ibid 115.   Asa Kasher, “The Gaza Campaign and the Ethics of Just War” (2009) 37 Azure 55–​86. 96   Kasher (n 14). 93

95

37



Soldiers—The View from the Battlefield

37

In the following sections of this chapter, I join the critics and explain why the current understandings of the principle of distinction, as well as of the principle of military necessity, no longer serve as best approximates of the values that IHL seeks to promote. Following the moral intuitions of those who challenge the status-​based orientation of the targeting doctrines, I  work within the existing legal frameworks to show how the status test should be complemented by a functional test. I employ a positive analysis of the changing nature of wars and warfare to make a normative argument about the effects these changes should have on the reading of the laws of war. My attempt is to show that even without demanding that warring parties demonstrate compassion toward each other, there are reasons to question whether modern warfare still warrants an interpretation of the principle of military necessity as justifying the killing of as many combatants as possible.

4.  Soldiers—​The View from the Battlefield The laws of war have always been a creature of their time, being shaped and evolving in correspondence to geopolitical developments, technological innovation, and changing social and cultural preferences.97 It is beyond the boundaries of this present work to elaborate at great length on the historical evolution of the changing nature of wars since the nineteenth century and the early formulations of the principle of military necessity in jus in bello. However, certain crucial differences in how wars are fought and won are relatively straightforward and obvious, notwithstanding the many similarities that persist. Of these differences, three major developments can be identified. The first is a declining importance of the “generic combatant,” which calls into question the understanding of “military necessity” as justifying killing as many enemy soldiers as possible. The second is a growing civilianization of the armed forces, which calls into question the rationale and applicability of the traditional principle of distinction. And the third is the development of new technologies that allow for greater discrimination in targeting, which suggests the possibility of revising the existing targeting doctrines in ways that would require more fine-​grained distinctions.

4.1  The declining importance of the “generic combatant” Ancient, medieval, and early modern wars were fought over territory and domination. To conquer a territory and control it effectively, the military was essential. And to defend territory, harming as many enemy soldiers as possible was the most effective strategy. Modern wars may be still fought over territory and domination even though the acquisition of territory through war is outlawed, but combatants play a declining role in winning them. Military power itself is diminishing in its decisive 97   For the effects of the changes in political structures, economy, and technology on the laws of war, see the various contributions in Michael Howard, George J Andreopoulos, and Mark R Shulman (eds), The Laws of War: Constraints on Warfare in the Western World (Yale University Press 1994), and Philip Bobbitt, The Shield of Achilles: War, Peace, and the Course of History (Knopf 2002).

38

38

The Dispensable Lives of Soldiers

ability to determine the fate of disputes. As one expert has put it, “tactical supremacy alone is unlikely to achieve national strategic objectives except in the most particularized of cases.”98 In fact, a decisive victory can no longer be achieved through total submission of the enemy, in terms of its capacity to fight or threaten. In this reality, economic power, access to resources, infrastructure, international alliances and institutions, and domestic and international public opinion have become as, if not more, crucial to national strategic goals generally and the war effort particularly.99 This is especially true in non-​traditional military-​to-​military international armed conflicts, where the ability of military power alone to bring about victory is even more doubtful than in the traditional conflicts:100 see the American defeat in Vietnam, France’s in Algeria, Israel’s in Lebanon, the Soviets’ in Afghanistan, or the survival of al-​Qaeda or the Ugandan Lord’s Resistance Army. This point should not be overstated. I do not mean to suggest that military power is inconsequential in determining the outcome of wars, nor that economic power or access to resources were unimportant two hundred or two thousand years ago. The claim I make is much more modest, but important nonetheless. Of the entire set of factors that contribute to “victory,” the weight of military power is declining in comparison with previous eras. The second reason for the declining importance of combatants is the progress of technology on the battlefield (and I return to other implications of this development later in the chapter). In advanced militaries, there is no “generic” soldier; instead, soldiers contribute in vastly different proportions to the war effort: Some fly airplanes or command tanks, while others serve in laundry facilities—​k illing “as many as possible” is less important than disabling the more dangerous ones. Again, although there was clear differentiation in roles and importance between the infantry, cavalry, artillery, or the Marins of Napoleon’s Grande Armée, and between all of those and support units, killing as many as possible of the enemy’s soldiers in the Napoleonic era would have increased one’s chances of victory by an overwhelming margin (which might explain the 3.5–​6.5 million military casualties of the Napoleonic wars).101 Today, this margin is much smaller.102

98   G K Cunningham, “Landpower in Traditional Theory and Contemporary Application,” in J Boone Bartholomees Jr (ed), U.S. Army War College Guide to National Security Issues Vol 1 (Strategic Studies Institute US Army War College 2008) 107–​28, 116. 99   Rupert Smith, The Utility of Force: The Art of War in the Modern World (Allen Lane 2005). 100   Mary Kaldor, New and Old Wars (Polity Press 2006). 101   John Robert Elting, Swords Around a Throne: Napoleon’s Grand Armée (Da Capo 1988); Gregory Fremont-​Barnes and Todd Fisher, The Napoleonic Wars: The Rise and Fall of an Empire (Osprey 2004). 102   See also Schmitt (n 56) 24–​25: “With forces facing each other across a FEBA (forward edge of the battle area), the immediate objective of warfare was to weaken the enemy sufficiently to allow one’s own forces to seize territory. You wore the enemy down through attrition warfare, the serial destruction of its military . . . Today, battlefields are multi-​dimensional, i.e., technology has evolved to the point where the concept of a line marking the heart of the battle (with combat fading the greater the distance from that line) no longer makes sense. There may be ground forces facing each other, but the conflict is everywhere. Consider Operation Iraqi Freedom (OIF) . . . Indeed, the first blow of the war was not the crossing of the Iraqi border by an invasion force, but rather an attack by Tomahawk cruise missiles and F-​117s designed to kill Saddam Hussein.”

39



Soldiers—The View from the Battlefield

39

Consider, for instance, long-​term sieges on cities and states that in past times were intended to cut off the inhabitants from any supply that would help them maintain their resistance. Such sieges required the deployment of mass armies to enforce them. But today, they can be replaced by control from the air or the sea, or by cyber attacks on economic and utilities infrastructure, of the kind employed by Russia to dismantle the Georgian banking and utilities systems during their 2008 war.103 It is hardly surprising that the US military now identifies cyber warfare as a major threat to national security.104 For these types of action, as well as to defend against them, a mass army is not useful or necessary, and consequently nor is the killing of as many enemy soldiers as possible. Sheer numbers of enemy casualties might nonetheless have an indirect contribution to the war effort in terms of garnering and maintaining domestic support. Recent decades have seen the birth and growth of an international “humanitarian conscience” (or “universal benevolence”), which comprises various trends, including a growing general aversion to war, a lower tolerance for civilian casualties,105 and an increased care for the well-​being of others, including enemy nationals. But this trend, to the extent that it exists, does not as of yet include a general aversion to enemy combatant casualties. In fact, in 2004, US military spokespersons began reporting the number of enemy deaths in Iraq (a practice that had been abandoned after Vietnam) in an effort to “frame” the casualties of coalition forces. The intuition was that the Western public would perceive the war effort more positively if the ratio of coalition deaths to enemy deaths was low; a controlled study subsequently confirmed this intuition.106 The effects of killing enemy combatants on garnering domestic support for the war or weakening the morale of the enemy might suggest that killing as many enemy soldiers as possible is in fact still necessary. But the term “necessary” here is probably closer to “convenient” or “beneficial” than it is to “crucial” or “vital.” If generic enemy combatants are less useful as a war machine, killing them is less necessary to win the war. It might be “necessary” only indirectly, to garner domestic support or diminish the enemy’s morale. Whether we allow the killing of people because it has a positive effect on domestic support or a negative effect on the enemy’s morale is ultimately a normative judgment. The laws of war certainly ban other practices that might have

103   David E Sanger, John Markoff, and Thom Shanker, “US Plans Attack and Defense in Web Warfare” (2009) New York Times, April 28, A1. 104   As the US general in charge of network warfare put it, “Maintaining freedom of action in cyberspace in the 21st Century is as inherent to U.S. interests as freedom of the seas was in the 19th Century, and access to air and space in the 20th Century.” Keith Alexander, “Cyberspace as a Warfighting Domain: Policy, Management and Technical Challenges to Mission Assurance” (2009) Hearings before the Subcommittee on Terrorism, Unconventional Threats and Capabilities, of the House Armed Services Committee, 111th Cong, 1st Sess 3. 105   Azar Gat, Victorious and Vulnerable: Why Democracy Won in the 20th Century and How It Is Still Imperiled (Rowman & Littlefield 2009); A P V Rogers, “Zero-​Casualty Warfare” (2000) 837 Intl Rev Red Cross 165–​81. Naturally, civilian casualties are tolerated more where there is a perception that national interests are at stake. Of course, there are those who claim that this humanitarian conscience is detrimental as well as dangerous to US (and Western) interests. See e.g. Robert Mandel, The Meaning of Military Victory (Lynne Rienner 2006). 106   William A Boettcher III and Michael D Cobb, “Echoes of Vietnam? Casualty Framing and Public Perceptions of Success and Failure in Iraq” (2006) 50 J Conflict Res 831–​54.

40

The Dispensable Lives of Soldiers

40

had a negative effect on the enemy’s morale (such as torture of POWs, the killing of civilians, the use of chemical weapons, and so on). Moreover, the correlation between killing enemy combatants and greater domestic support or diminishing enemy morale is in itself a product of how we construct the battlefield. Because we allow the killing of as many enemy combatants as possible, and only as many combatants as possible, the measurement of (lawful) success is tied to the number of combatants killed. One could imagine, however, that under a different normative construction of the rules—​one that would limit the lawful killing of combatants to that which is directly “necessary”—​the excessive killing of combatants would be tantamount to other practices that are banned under the laws of war, which might only outrage the enemy and domestic audiences, weakening the attacking forces. Domestic support, particularly, is tied to perceptions of lawful and unlawful behavior, a fact evident from negative popular domestic sentiments about civilian casualties on the enemy’s side. To sum up this section, if the role of military power alone in determining political outcomes is indeed declining, and the degree of contribution to the military power by some individual combatants is minuscule, then the formulation of the principle of “military necessity” as allowing belligerent parties to “disable the greatest possible number of men”107 might be less apt today than in the days of the St Petersburg Declaration. A much narrower formulation—​one that only allows killing that is clearly necessary to achieve the war’s aims—​is in order. If so, the ICRC’s submission that “in classic large-​scale confrontations between well-​equipped and organized armed forces or groups, the principles of military necessity and of humanity are unlikely to restrict the use of force against legitimate military targets beyond what is already required by specific provisions of IHL” is a correct assertion of the law but unwarranted as a normative matter.108 Moreover, and perhaps more disturbing from a humanitarian perspective, many civilian functions—​political, financial, infrastructural—​have become more central to the war effort than military functions; maintaining the fiction of a status-​based distinction between combatants and civilians becomes increasingly difficult to justify on any functional basis. This point is reinforced by the development discussed next.

4.2  Civilianization of the armed forces The changing nature of wars has been accompanied by a change in the nature of the armed forces fighting them, and in particular the greater intertwining of combatants and civilians. Although this point has often been made with regard to insurgents or other non-​state forces, it is no less true for modern standing armies. This development poses obvious challenges to the principle of distinction, both conceptually and practically. Armed forces were always dependent on civilians for their function. Civilians ran the politics, drove the economy, and provided the support needed for the armed forces

  St Petersburg Declaration (n 30).

107

  Melzer (n 17) 80.

108

41



Soldiers—The View from the Battlefield

41

to function. It is largely for this reason—​practical rather than ethical—​that in ancient times, by and large, peasants and civilian property were kept alive, as conquerors knew they were dependent on the crops and labor that civilians produced once the war was over. This is not to say that cases of wholesale slaughter and acts of wanton cruelty did not occur—​only that they were not the rule. The limited necessity of killing civilians helped define and maintain a principle of distinction from the beginning. It allowed war to be constructed as a phenomenon of combat between soldiers, who were distinguishable from civilians. Once war was established in that way and accepted in such form by the pool of potential adversaries, the need to target civilians further diminished. Military necessity and distinction were thus two facets of the way in which sovereigns designed the battlefield. Over the past several decades, however, the process of civilianizing the army has become more and more pronounced. The change is not merely a matter of degree: It involves blurring the geographical lines of front and rear, reshuffling roles and functions, and reallocating risk. It is in part for this reason (in addition to sheer cruelty or revenge) that the ratio of civilian to combatant deaths has been on the rise since the beginning of the twentieth century. The civilianization of the American military has been a growing trend in recent conflicts. In Vietnam, the ratio between civilian contractors and uniformed military personnel was 1:5; in Desert Storm, it plunged to 1:100; but in Bosnia, it rose to 1:1. In Iraq today, the ratio is 1:1, and at some points in time it has been even higher on the contractors’ side.109 The greater reliance on civilians is driven by considerations of efficiency (over the long run, the costs of contractors are lower than of employing soldiers),110 as well as a wish to decrease the public uneasiness about the number of troops deployed to war zones (on the assumption that the public is more sensitive to casualties among the armed forces than among contractors).111 Within the US military, a growing number of positions are now performed by civilians employed by the military, including billeting, logistical support, meteorological monitoring, and healthcare. Civilian contractors in Afghanistan and Iraq increasingly perform a variety of roles that had traditionally been thought of as exclusively military, including security detail, prisoner watch, and weapons systems analysis. Outside a few exceptions, it has become virtually impossible to guess who performs which tasks: The Army Corps of Engineers is building bridges in Afghanistan, while civilian contractors are in charge of the engineers’ security.112 And, as one military officer observed, “[g]‌iven the current operational environment, military support personnel and their civilian counterparts are as vulnerable, if not more so, to attacks than 109   Peter Grier, “Record Number of US Contractors in Iraq” (2008) Christian Sci Monitor, August 18; David G Manero, Military Transition to Contractors: Are We Getting Less for Less? (Air War College 2007) 5. 110   US Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq, Pub No 3053 (Government Printing Office 2008). 111   Deborah Avant and Lee Sigelman, What Does Private Security in Iraq Mean for Democracy at Home? (2008) 34–​37. 112   See, for example, a government solicitation of contractors to perform security operations for the Army Corps of Engineers in Afghanistan, available at .

42

The Dispensable Lives of Soldiers

42

combat units on patrol.”113 These developments have posed increasing challenges for the principle of distinction, both practically and conceptually: The degree of military threat that an individual poses no longer correlates with whether she is in uniform or not. In fact, militaries could choose to outsource all non-​combat operations to civilian contractors, just as they could choose to outsource combat operations to civilian contractors (notwithstanding the question of how these contractors would be treated if captured on the battlefield). Alongside the civilianization of Western countries’ standing militaries, the role of non-​state actors as participants on the battlefield has increased dramatically. Among these actors, the blurring lines between civilians and combatants are even more structural, given the integration with and reliance on the civilian population by the insurgents. This integration is in part a result of and reaction to the IHL principle of distinction. By according civilians greater protection on the battlefield, the principle encourages the insurgents to assume the posture of civilians (a moral hazard problem). Moreover, distinguishing among individuals as either combatants or civilians is a difficult task when it comes to non-​state actors, not only because the latter generally do not wear uniforms or maintain distinctive emblems, but also because, functionally, insurgents are often combatants only “part time.” In addition, political leadership and military commanders are more closely intertwined in non-​state groups than in national structures, not only in purely military factions, such as al-​Qaeda, but also in armed groups with national political aspirations such as Hezbollah, Hamas, or the former IRA. All of these have posed a significant challenge for countries fighting insurgents, terrorists, or other non-​state actors. Naturally, the civilianization of national militaries poses similar problems for the principle of distinction, even if the trend is driven by other considerations; indeed, it is somewhat ironic that countries’ efforts to expand the exceptions to civilian immunity in the context of counterinsurgency take place just as these countries expand their own militaries’ reliance on civilians. For present purposes, however, I want to focus on the recent debates surrounding the targeting and detention of non-​state actors, particularly terrorists, because they demonstrate an important shift in the application of the principle of distinction. They also offer a better case study for the current application of the principle of distinction, because as a generalization, militaries (particularly Western militaries) exhibit greater commitment to follow the principle of distinction than insurgents or terrorists do. Terrorists are classified either as combatants (lawful or unlawful) or as civilians who are taking direct part in hostilities.114 On the traditional battlefield, this distinction would have made a great difference for purposes of permissible targeting, because combatants might be targeted at any time, in any place, for any role they play, while civilians might only be targeted “for such time” that they take a “direct” part in hostilities. As applied to the context of the “war on terrorism,” however, this distinction proved to be much less significant, because it was replaced instead by a functional test

  Marc Lindemann, “Civilian Contractors under Military Law” (2007) 37 Parameters 83–​94, 84.   See notes 56–​7 of this chapter.

113 114

43



Soldiers—The View from the Battlefield

43

of “threat” or “guilt” (with the distinction between “threat” and “guilt” not being consistently preserved). In 2005, the Israeli High Court of Justice (HCJ), when reviewing the government’s policy of targeted killings of terrorists in Gaza and the West Bank, classified terrorists as civilians taking direct part in hostilities.115 It ordered that terrorists be targeted only when there was sufficient intelligence to show that the individual targeted was directly, substantially, and continuously involved in terrorism—​a standard that would have been unnecessary had members of paramilitary groups been labeled “combatants.” Still, when interpreting the limitation “for such time,” the HCJ rejected the possibility of a “revolving door” allowing a terrorist to act as a terrorist by day and a civilian by night, substantially weakening the temporal constraint. In effect, the Court allowed the government to target terrorists any time, any place, as long as the “guilt” of the terrorist had been established. In other words, the functional test of the nature of the target made the distinction in labeling the individual a “civilian” or a “combatant” less meaningful. Unlike its Israeli counterpart, the American Supreme Court was ready to accept the US government’s position that terrorists should be classified as combatants, specifically unlawful combatants.116 The question of when and how terrorists might be targeted has never been addressed. But from the discussions of their permissible detention, a similar functionality test can be noticed. In March 2009, the US government stated its position on the detention of terrorists in its submission in the Re Guantanamo case.117 The submission argues for an expansion of the criteria for detaining suspected terrorists beyond members of al-​Qaeda or the Taliban, to include “associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”118 In determining who “directly supported hostilities,” the submission proceeds to argue: It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of “substantial support”, or the precise characteristics of “associated forces”, that are or would be sufficient to bring persons and organizations within the foregoing framework . . . Accordingly, the contours of the “substantial support” and “associated forces” bases of detention will need to be further developed in their application to concrete facts in individual cases.119

Although the submission was careful to limit itself to the question of detention, case-​ by-​case assessment of the conduct of particular individuals might carry important implications for targeting as well.

115   HCJ 769/​02 The Public Committee Against Torture in Israel v The Government of Israel [2005] (n 53). 116   Hamdi v Rumsfeld, 542 US 507, 518 (2004) (relying on Ex parte Quirin, 317 US 28, 30 (1942)). 117   Resp’ts’ Mem. (Misc. No. 08-​4 42), In Re: Guantanamo Bay Detainee Litigation, DDC, available at . 118 119  Ibid 2.  Ibid.

4

44

The Dispensable Lives of Soldiers

Moreover, the American counterinsurgency doctrine orders commanders to distinguish between “reconcilable” and “irreconcilable” insurgents for targeting purposes, so that even among those who are prima facie targetable, those who might be susceptible for reconciliation are to be spared:  “We must strive to make reconcilables a part of the solution, even as we identify, pursue, and kill, capture or drive out the irreconcilables.”120 To sum up, there are at least three aspects to the civilianization of the armed forces. First, the growing enmeshing of civilians within both national and subnational military groups renders the status-​based principle of distinction conceptually more difficult to defend and pragmatically more difficult to follow. Second, in the context of counterterrorism and counterinsurgency, distinction (at least as it is interpreted by some governments and courts) already seems to move away from status-​based classifications of status toward a determination of individual “guilt.” In this sense, the human aspect of the principle of distinction is becoming more similar to the object aspect, which requires a case-​ by-​ case determination of the contribution of the intended target to the military effort.121 The third aspect is that this move from class-​ based to guilt-​based determinations presumes an ability to make such individual determinations—​which is the subject of the next section. After these determinations are possible, the justification for maintaining group-​based decisions about targeting further diminishes.122

4.3  Modern technologies When governments undertake to engage in a case-​by-​case determination of particular individuals’ involvement in hostile activity, they must believe that they can do so. What makes it possible for military or other security forces to engage in such determinations and act upon them? More than anything else, it is the development and deployment of sophisticated intelligence-​gathering and targeting technologies. While the human component of military intelligence remains as important as ever, the contributions of signal and visual intelligence to military decision-​making are continuously increasing. The introduction of more intrusive and less visible technologies enables better remote gathering and analysis of information in real time. Operational advances in communication, speedy deployment, and precision fire enable more direct and immediate targeting. All this advancement does not amount to perfect distinction in targeting; inadvertent civilian casualties are still abundant due to errors, miscalculation, malfunctioning, or mere indifference. Nor is modern technology omnipotent. But the technology enables forces who care about minimizing civilian casualties to do so to some degree, 120   MNF-​I Guidelines, reprinted in Thomas E Ricks, The Gamble:  General David Petraeus and the American Military Adventure in Iraq, 2006–​2008 (Penguin Press 2009) 369. 121   See note 57 of this chapter. 122   I  ignore for present purposes the rejection of the principle of civilian immunity on the part of insurgents and terrorists, under a purportedly similar rationale. For the most part, this is a disingenuous claim, and in any case, it is hardly ever accompanied by individual-​based distinctions but rather by indiscriminate attacks on populations, regardless of their role or function.

45



Soldiers—The View from the Battlefield

45

even in theaters that make such distinctions highly complex, by identifying and firing at only those directly involved in hostile activity. The same technology that is currently used to tell civilians apart from combatants, and hostile civilians apart from the innocent, can be employed to distinguish among members of the armed forces to target only those who pose a real or immediate threat. The technological revolution on the battlefield also makes for a growing disparity of power between warring parties on the modern battlefield. Although such disparities have always shaped the geopolitical map of the world (recall Athens’ invasion of Melos), the gaps in military power and capabilities are growing, and with them the gaps in risk assumption on the battlefield. Technological advances enable combatants to strike targets from miles away and high above, exposing themselves to little or no risk of counterattack. Often, the target is unaware of the looming attack and is given no opportunity to surrender. A greater reliance on unmanned instruments (drones, robots, and the like) further diminishes the risks for those employing them.123 Asymmetries in power invite questions about fairness in war. Recall Kahn’s point about the unfairness of killing all combatants in grossly asymmetric wars.124 Fairness becomes a particularly hard issue when one considers the implications of the greater reliance on unmanned instruments:  The fact that our machines are killing human beings on our behalf makes the dehumanization of soldiers even more striking. If there was ever an element of fairness, of a “boxing match” kind of logic, this has been entirely lost once robots are doing the boxing for us.125 But even without inquiring about the underlying fairness of the current system, these developments do shed a different light on the application of the principle of military necessity on the battlefield. For powers that enjoy a substantial qualitative and quantitative advantage, it becomes more feasible and less risky to invest time and resources in determining the specific nature of targeted individuals. Leaders and commanders can be told apart from the rank and file, the highly trained pilots from the militarily insignificant cook, the armed from the unarmed, and so on. If so, it becomes less necessary to target all enemy combatants in the name of speedy victory and preservation of resources. This argument does suggest that powers with greater capabilities might be held to stricter standards in complying with the laws of war. Although the normative legitimacy of a differentiated scale of compliance might be debated, as a positive matter, such differentiation already exists with regard to the protection of civilians. Weaker military or paramilitary forces already have every incentive—​at times strategic, at other times ideological—​to violate the laws of war. Stronger militaries with better

123   Peter Singer reports that there currently are more than 5,300 drones in the US inventory and about another 12,000 on the ground. Peter W Singer, “America’s Killing Machine” (2009) LA Times, January 30. 124   Kahn (n 15). 125   For a similar argument, see Kahn (n 15)  3:  “A regime capable of targeting and destroying others with the push of a button, with no human intervention but only the operation of the ultimate high tech weapon, propels us well beyond the ethics of warfare. Such a deployment of force may be morally justified—​it might be used to promote morally appropriate ends—​but we cannot appeal to the morality of warfare to justify this mode of combat.”

46

46

The Dispensable Lives of Soldiers

technologies and more discriminatory capabilities are often expected by the international legal and humanitarian community to employ better precautions in conducting attacks and to minimize civilian casualties, under the intuition that “can” implies “ought.”126 For instance, in consideration of the rule prescribing taking precautions in attack to minimize civilian casualties, the more advanced militaries are expected to employ more discriminatory weapons (“smart bombs” and the like), even though these weapons are more expensive than ordinary munitions. As a matter of principle, then, “can” may imply “ought” with regard to enemy combatants’ lives as well.

5.  An Alternative Doctrine The advantages of the current doctrines of military necessity and distinction lie in their purportedly straightforward application on the battlefield. The current doctrines that permit the targeting of (almost) all combatants and ensure the immunity of (almost) all civilians allow military forces to make multiple determinations in a quick and self-​protective manner, for simpler training of soldiers who ultimately have to apply the rule on the battlefield, and for more straightforward monitoring of compliance after the fact.127 To the degree that these doctrines suffer from some elements of moral arbitrariness, a similar challenge could probably be raised against any alternative framework. And still, given that human lives are at stake, there is reason to question whether the administrability of the current doctrines justifies the degree of their arbitrariness. This is particularly so since the application of the given doctrines on the modern battlefield is not as straightforward as the rules imply. Several classes of combatants are already exempt from targeting. These include the hors de combat, military chaplains, medical units, and civil defense forces. Civilians lose their immunity when they take direct part in hostilities. On the modern battlefield, which is often geographically undefined and where civilians and combatants coexist, attacking forces already have their work cut out for them: They must try to distinguish civilians from combatants (even where neither group wears uniforms); actively hostile civilians—​a combined test of fact and judgment—​from bystanders; and objects the disabling of which would contribute to the military effort from those that should be spared. They must also aim their weapons in a way that minimizes collateral harm to those immune. In other words, the nature of the modern battlefield both already calls for and enables an application of the principle of distinction in a way that departs from the crude combatant/​civilian status-​based distinction without prohibitively impairing the value of military necessity. More nuanced targeting decisions already require a substantial investment at the stage of application, limiting the advantage of the current rule-​like

126  Kenneth Anderson, “The Rise of International Criminal Law:  Intended and Unintended Consequences” (2009) 20 Eur J Intl L 331–​58. 127   On the importance of clear guidance to soldiers on the battlefield, see Martha Minow, “Living Up to Rules: Holding Soldiers Responsible for Abusive Conduct and the Dilemma of the Superior Orders Defence” (2007) 52 McGill L J 1–​54.

47



An Alternative Doctrine

47

doctrines over a more complex standard that would place further limits on the targeting of combatants.128 The problem of administrability of an amended targeting doctrine is nonetheless intertwined with several related difficulties. The first is that any change in the doctrine of distinction, especially one that narrows opportunities for targeting, is likely to raise the costs of lawful combat and of realizing the interest of military necessity, even beyond what is called for by the current complications of the modern battlefield. It would require some additional investment in intelligence gathering, target identification, precision fire, and even pre-​targeting legal advice.129 Second, a standard of targeting that relies on capabilities would apply differently to more advanced militaries than to less sophisticated ones, potentially causing a moral hazard problem (such as avoiding investment in more discriminating technologies and weapons). Third, by its very nature, the realization of the standard would take different forms in different theaters of war. Fourth, regardless of a differentiated application depending on military capabilities or theater of war, the standard is likely to be followed by some while intentionally ignored by others. Fifth, the greater indeterminacy of a standard makes post hoc assessments—​and, particularly, potential criminal enforcement—​less determinate too. This leads to the sixth problem, of the indeterminacy of a standard opening up opportunities for legal and political exploitation in the form of “lawfare,” propaganda, and the like. None of these problems should be dismissed or underestimated, but there are also mitigating aspects that should be pointed out. Conceptually, an amended standard would not be different from other limitations imposed by the rules of IHL, such as prohibitions on certain types of weapons or the need to spare civilians, which all add to the costs of lawful war. Adding further to these costs through a more complex targeting doctrine would be no different from agreeing on any other humanitarian constraint, beyond what the current law prescribes. Given that modern warpower allows the armed forces to be much more destructive at relatively lower costs than was previously the case, adding constraints to this destructive power is not unreasonable. Moreover, in consideration of the declining role of military power in determining the outcome of international disputes, constraints on the killing of enemy combatants might in fact create more incentives for warring parties to turn to alternative methods of resolving the conflict (negotiations, adjudication, economic incentives, and so on). The prediction about asymmetrical compliance should similarly not serve as either a normative or a prescriptive block. Asymmetry is already prevalent with regard to the existing norm of distinction, as well as to other humanitarian rules of war—​some forces comply with them, some ignore them, and some manipulate them to their own advantage. Already, some militaries are held to higher standards of compliance by

128   Here I follow Louis Kaplow’s distinction between rules and standards as “the extent to which efforts to give content to the law are undertaken before or after individual acts”. Louis Kaplow, “Rules Versus Standards: An Economic Analysis” (1992) 42 Duke L J 557–​629, 560; emphasis in original. 129   See ibid 563, 571–​72, noting that legal advice in the case of standards is more costly than in the case of rules.

48

48

The Dispensable Lives of Soldiers

the media, public opinion, or international monitoring bodies than others, based on their capabilities. The moral hazard problem that exists today as a result of the status-​ based distinction doctrine will in all likelihood be replicated in different forms once the doctrine is amended; no doubt, parties that would seriously accept a more refined and complex legal targeting scheme might find themselves further disadvantaged by asymmetrical compliance. But, as in raising the costs of lawful war, concerns about asymmetrical compliance are present whenever any improvement of humanitarian protections is contemplated. I nonetheless acknowledge that these mitigating factors might not be fully responsive to all the concerns noted earlier with regard to amending the targeting doctrine. Consequently, if and when the suggested amendments become impossible to apply without significantly raising the risk or costs to a party’s ability to effectively prosecute its war, they would have to be forgone or reformed, as previous rules in the past have been. Ultimately, the decision whether to pursue them or not must rely on the value we want to assign the lives of human beings, including those of our enemies. For these reasons, the proposals set forth are suggestive rather than conclusive, intended more as examples of how we should rethink the existing paradigms on targeting combatants. In the face of uncertainty with regard to the operation of the proposed amendments, and given the unlikelihood of a broad political agreement over their adoption, a more phased and limited approach should be considered. Thus, there is a possibility for some armed forces to adopt more restrictive targeting schemes as a unilateral self-​imposed constraint (much in the same way that some military doctrines—​such as the revised US military Counter-​Insurgency Manual—​ call for more restrictive targeting schemes for the sake of safeguarding civilians, beyond what the laws of war mandate). In fact, if the call to demonstrate concern for enemy combatants has any traction, it is under the assumption that some armed forces can afford to absorb a certain degree of risk in exchange for caring for the enemy. It is also possible that moral, cultural, and aesthetic sensibilities would drive other militaries—​a lthough certainly not all fighting forces—​to adopt similar doctrines. Whether or not these self-​imposed restrictive doctrines would ultimately evolve into a binding legal norm is difficult to predict, and would probably depend on whether the changes in warfare earlier identified continue to characterize the modern battlefield. In what follows, then, I offer several possible modifications of the existing doctrines, which might be complementary to one another, and which strive to limit the terms and conditions of targeting enemy combatants. My focus is on the combatants’ side of the equation of the principle of distinction, leaving aside the question of civilian immunity; this is so because civilian immunity is already at the center of moral, political, and legal debates about war, while the fate of combatants is marginalized. As I noted in my introduction, it is possible to adopt these modified targeting schemes as complementary to the doctrine of civilian immunity, rather than as threats to it, with the outcome of reducing the direct targeting of human beings overall.

49



An Alternative Doctrine

49

5.1  From status-​based to threat-​based determination: Rereading “distinction” The first alternative framework calls for the relaxation of the status-​based determination by supplementing it with an obligation to assess the individual threat emanating from any particular human target. This would require an amendment to the principle of distinction, from one separating combatants from civilians to one distinguishing threatening combatants from unthreatening ones. It is particularly striking that such a case-​by-​case determination is called for, in principle, for military objects but not for human beings.130 This amendment would essentially operate as the mirror image of the doctrine of civilian immunity: Civilians are presumed innocent and immune unless and for such time as they take direct part in hostilities.131 The proposed change would make combatants presumptively dangerous, unless they pose no or marginal threat. After there is reason to believe that the level of threat is low, even if the enemy soldier is not hors de combat, the targeting forces would have to refrain from direct fire. A rebuttable mirror-​presumption about combatant targetability remains generally faithful to IHL’s reliance on a status-​based distinction, and stops short of a “policing model” test that would be based entirely on individual threat. Naturally, non-​threatening combatants could still be killed where distinguishing them from others is impossible or where they are affected as collateral damage. The point to emphasize here is that they should not be targeted intentionally, and that reasonable efforts to spare them should be made. “Threat” in this context is not easily defined. The notion must be wider than in a classical self-​defense paradigm (even though it is this paradigm that is so often employed to justify killing in war), but also narrower than the current understanding that allows the targeting of combatants on the assumption that they all have the potential to inflict damage. I employ the term “threat” here to denote something close to the “guilt” or “involvement” test that has been employed by governments in the war on terrorism. Three dimensions of possible threat are role, time, and geography. As a general matter, it is possible that the application of each of these dimensions would depend on some subjective psychological perception of the concept of “threat,” which is hard to prescribe for or to pass judgment on. Zealous ideological/​religious terrorists might be seen by one military commander as more threatening than a soldier in the Iraqi army, making the former targetable even while swimming in the lake, and the latter a life we can spare. As in the case of the civilian who takes direct part in hostilities, the determination of threat would require a factual determination (characteristics of the individual target) as well as a judgment call (the degree to which these characteristics pose a threat).

130

  See note 58 of this chapter.

  Art 51(3) of API.

131

50

50

The Dispensable Lives of Soldiers

5.1.1 Role Threat might be a function of role. For instance, a military cook’s contribution to the war effort, despite Napoleon’s famous observation, is minimal. In fact, in many armed forces billeting has been outsourced to private contractors for exactly the reason that one requires no military training in order to be a cook. The irony here is that under the existing status-​based distinctions, the military cook is targetable, while the one working for the KBR company is probably not, as he or she would not meet the “direct participation” standard.132 A useful way to test the presumption about threat might therefore be to ask whether the role played by the individual soldier is essentially a military one, or whether it is of the type often played by civilians who do not meet the “direct participation” standard. Naturally, the more militaries become reliant on civilians even for traditional “military” functions, such as those performed by Blackwater in Iraq, the less this form of rebuttal is useful. Still, soldiers who play roles and functions that have a clear civilian corollary, and which in their civilian corollary do not give rise to loss of immunity, should be spared. Such roles would include, among others, military spokespersons, judge advocate general officers, bandspersons, financial management personnel, military police officers, and so on. It is rare that soldiers performing these roles should take an active part in combat. Their exclusion from direct attack would follow a similar logic to the protection accorded to medical units, military chaplains, or military personnel assigned to civil defense units. Of course, in different militaries various units might be assigned different roles (for instance, in some armies, military police takes an active part in the fighting), so that the role distinction would have to depend on the particular structure of the enemy forces. Although role distinctions are certainly less bright than the soldier/​civilian line (provided, that is, that soldiers are wearing uniforms), they are not impossible to make. In many military contexts distinctions between combat, combat support, or combat service roles already exist, such as in differentiated salary payment (for instance, through special compensation for combat role or training level) or in military deployment plans. To make such distinctions obvious to an outside observer (who should presumably base his targeting decisions on them), differentiation also exists in military dress: There are different markings for different ranks, some units have their own colored berets (for example, the “Green Berets”), and the various services all have their own sets of uniforms.133 It is not inconceivable to think about different military dress that would correspond to combat/​non-​combat roles.134 To the extent that soldiers can cheat and wear different-​colored berets or uniform, they can also cheat by disguising themselves as civilians. From a legal standpoint, this change would require a reinterpretation of Article 43 of API (which states that members of the armed forces are “combatants”), in differentiating soldiers who are clearly not serving in any combat role from those who are. In this sense, the 1907 formulation in the Hague Regulations that did distinguish   Third Expert Meeting on the Notion of Direct Participation in Hostilities, Summary Report (2005).   US Department of the Army, “Wear and Appearance of Army Uniforms and Insignia” (2005) Army Regulation 670–1, February 3. 134   This proposal was raised by Kasher (n 14) 24. 132 133

51



An Alternative Doctrine

51

among members of the armed forces in combat roles and those who were not should be revived. I do not suggest a distinction between conscripted and volunteer soldiers. Although I follow Walzer’s moral distinction between those who have been coerced to fight and those who seek fighting as a profession, I also agree with his ultimate conclusion that members of both groups might be equally threatening.135 In departing from Walzer, individual members of both groups might be unthreatening.

5.1.2 The temporal dimension “Threat” might depend on an individual’s ability to cause harm at a particular moment; thus, a military pilot is undoubtedly contributing to the war effort, but not while he is sleeping, bathing, playing soccer, or on leave. This temporal test is trickier than the role one, as the individual resumes his threatening stance once back on duty. But taken ad absurdum, any person (including children) might become dangerous at a later point, either by joining the armed forces or by taking direct part in hostilities. Walzer’s presumption—​that the soldier “allowed himself to become a dangerous man”—​is simply unconvincing at a moment in which a particular soldier is clearly not dangerous. Adopting a temporal test for “threat” would require moving even further away from bright-​line rules of status or even role toward a standard of reasonableness. It will also require consideration of the possibilities of preventing the threat from materializing at some later point. One limitation of a standard of reasonableness appears as one considers the temporal test of threat as applied for civilians-​turned-​combatants under Article 51(3). To recall, the Israeli High Court of Justice interpreted the text “for such time” in an expansive manner, rejecting the notion of a “revolving door” (for example, the frequent change in status from civilian to combatant and back to civilian again). After sufficient ties were formed between the civilian and the hostile activity, the civilian could be attacked even when he was not taking part in hostilities at that particular time—​a position contested by some experts.136 Any temporal test adopted for combatants must ensure that we do not reach an absurd result by which the bathing soldier cannot be attacked, while the bathing civilian can. A particularly complicated case for the temporal test is that of retreating soldiers. Although soldiers in retreat are currently fair game, a temporal test of threat may impose limitations on the legitimacy of targeting them, even if they might become threatening at some later point. The argument against such limitations is obvious—​ the retreating soldiers choose not to surrender, but instead to rearm and regroup and possibly return to the battle zone better equipped and better prepared. But there are 135   Walzer (n 11)  138–​45. In his discussion of “The Status of Individuals,” Walzer does not make any distinction between targeting conscripts and targeting volunteer soldiers or mercenaries. See also Coady’s description of a pre-​battle speech delivered by a British military commander in Iraq, Col Tim Collins, to his troops, ordering them to distinguish between those who “have resolved to fight and others [who] wish to survive.” Coady (n 73) 167. 136   Melzer (n 17) 65–7.

52

52

The Dispensable Lives of Soldiers

valid arguments in favor of limiting the permissible killing of retreating soldiers. One is that it is possible that these soldiers would not return to the battle zone or that the war will end before they do so. This is particularly so if one considers the rising importance of alternative factors and forces in bringing a conflict to an end. Another reason is the intuition of unfairness, as expressed by Kahn and others. This intuition, although resonant of deontological sensibilities, is not necessarily devoid of strategic consequences. Consider, for instance, the “Highway of Death” incident: On the night of February 26–​27, 1991 (and then again on March 2), US airplanes struck an Iraqi convoy on Highway 80, leading from Kuwait City to Basra. The strikes resulted in the deaths of hundreds of retreating Iraqi soldiers. The convoy retreat was highly welcomed by the American forces: Now, it is almost like you flipped on the light in the kitchen late at night and the cockroaches start scurrying and we are killing them . . . The long wait for the Iraqis to come up and fight has finally come to an end . . . They are moving in columns; they are moving in small groups and convoys. It is exactly what we have been looking for and it looks to me like Saddam has lost his marbles.137

Human rights groups, on the other hand, were outraged. Kenneth Roth, deputy director of Human Rights Watch at the time, argued: “It wasn’t a tactical retreat . . . It was a panicked, desperate flight and these were just lowly soldiers trying to get the hell out of there. It appears that this was a case of senseless slaughter.”138 Under the existing rules, the “Highway of Death” incident was a lawful military action, despite Roth’s protest; it is only if a temporal limitation on “threat” were to be adopted that the legitimacy of the “turkey shoot” would be questionable. Ultimately, however, and despite the formal legality of the strikes, the images of the carnage generated such public uproar that the US leadership was forced to cease its military campaign soon afterwards.139 Of course, one could argue that by contributing to the war’s speedy end, the incident might have ultimately saved more lives than would have been the case had the convoys been spared and the war been allowed to continue. But there are two responses to this argument: One is that “we got the wrong people” (killing the beat-​up retreating soldiers instead of continuing a campaign against the higher military or political leadership, the Republican Guard, the weapons developers, and so on); the other is that this type of strict-​utilitarian argument is both impossible to assess and quickly collapses any type of humanitarian constraint on warfare. What is also interesting to note about the Highway of Death incident is that the decision to attack the retreating soldiers was not made by low-​level officers on the ground, but by the top echelons of the American military. In that sense, concerns about excessive discretion—​and responsibility—​of young soldiers who would have to

137   Words of Lieutenant-​Colonel Dick “Snake” White, commander of the Tomcat Squadron of US Harrier. See Christopher Walker, “Allied Pilots Queue up for ‘Turkey Shoot’ in the Desert” (1991) The Times, February 2. 138   Waller and Barry (n 7) 16. 139   Michael Evans, “The Final Turkey Shoot” (1991) The Times, March 27.

53



An Alternative Doctrine

53

apply complex targeting doctrines are less acute when large numbers of enemy troops are concerned.

5.1.3 The geographical dimension Finally, “threat” might have a geographical component, which together with the temporal dimension might further help to define the concept of threat. A  soldier bathing near his post is more threatening than the one bathing in a remote lake, and a soldier playing soccer on a military base is probably more dangerous than the one playing soccer in a civilian neighborhood. This lower degree of threat has not been considered any impediment for legitimate targeting. In the case of Prosecutor v Galić, Bosnian Serb forces were accused of indiscriminate targeting when they shelled rounds at a group of Army of Bosnia-​Herzegovina forces playing soccer in a makeshift field in a parking lot in the neighborhood of Dobrinja, Sarajevo. About 200 civilian spectators were watching the game. As a result of the shelling, more than ten soldiers and civilian spectators were killed and more than one hundred were injured. In finding the defendants guilty, the International Criminal Tribunal for the former Yugoslavia stated: Although the number of soldiers present at the game was significant, an attack on a crowd of approximately 200 people, including numerous children, would clearly be expected to cause incidental loss of life and injuries to civilians excessive in relation to the direct and concrete military advantage anticipated.140

The crime, therefore, was the killing of civilians, not of soldiers who were clearly off duty, playing soccer, unarmed, and unthreatening. What makes these footballing soldiers so different from the civilian spectators who were watching them play is unclear, other than the fact that they have military training and return to the fray. Which brings us back to the temporal dimension of “threat” and to the question whether a potential threat that might (or might not) materialize at some later point in time justifies killing here and now. Neither the geographical dimension nor the temporal aspect of the concept of threat is compatible with the deliberate killing of soldiers playing soccer in an improvised field. Both the temporal and geographical dimensions of “threat” might require different applications to different theaters of war. American forces fighting a “global war on terrorism” might deny any geographical dimension to the concept of threat, while Russian forces targeting Chechen separatists will be more constrained in defining the theater of war. These dimensions of threat also vary with capabilities: Technologically advanced armies, which can plan and execute military operations from a great distance in real time, are less exposed to threat than less sophisticated forces that are more geographically concentrated and whose movement is slower. In those cases, “front” and “rear” become increasingly difficult to distinguish, as the operator of a predator drone might be many miles away from the drone itself. In particular, where drones or

140

  Prosecutor v Galic, Case No IT-​98-​29-​A, 387 (November 30, 2006).

54

The Dispensable Lives of Soldiers

54

other robots are deployed, the concept of threat becomes harder to apply, because the questions of “threat to whom” or “to what” become more difficult to answer.

5.2  From shoot-​to-​kill to kill-​when-​necessary: Rereading “military necessity” Nothing in the current laws of war requires combatants to exercise restraint when targeting enemy forces: They are not obliged to injure instead of kill or capture instead of injure. As the ICRC acknowledged in its Interpretive Guidance on Direct Participation in Hostilities: Clearly, the fact that a particular category of persons is not protected against offensive or defensive acts of violence is not equivalent to a legal entitlement to kill such persons without further considerations. At the same time, the absence of an unfettered ‘right’ to kill does not necessarily imply a legal obligation to capture rather than kill regardless of the circumstances.141

In a footnote, the ICRC added the following caution: It is in this sense that Pictet’s famous statement should be understood that “[i]‌f we can put a soldier out of action by capturing him, we should not wound him; if we can obtain the same result by wounding him, we must not kill him. If there are two means to achieve the same military advantage, we must choose the one which causes the lesser evil.”142

Although citing Pictet with agreement, the ICRC was then forced to concede: During the expert meetings, it was generally recognized that the approach proposed by Pictet is unlikely to be operable in classic battlefield situations involving large scale confrontations . . . and that armed forces operating in situations of armed conflict, even if equipped with sophisticated weaponry and means of observation, may not always have the means or opportunity to capture rather than kill.143

Clearly, Pictet’s call for the exercise of less harmful means does not reflect the customary interpretation of the laws of war, nor is it suggested in any military manual instructing soldiers on battlefield conduct. In fact, the attempt by the ICRC to introduce the less-​harmful-​means test as part of the principle of military necessity has been rejected by the expert group meeting not only, as the previous footnote from the Interpretive Guidance seems to suggest, for large-​scale confrontations, but also as a limiting feature of the principle of military necessity altogether. But why should a less-​harmful-​means test not be a feature of the principle of military necessity? Certainly, fighting forces already decide where and how to invest resources in the most efficient and effective way, operating under a perpetual resource constraint. However, the current interpretation of “necessary” as including what is less costly or less risky or even merely convenient allows too broad a discretion for forces to attack available—​rather than clearly “necessary”—​targets. To bring the term 141

  Melzer (n 17) 78.

142

  Ibid fn 221.

143

 Ibid.

5



An Alternative Doctrine

55

“necessary” closer to its literal meaning, it should include a least-​harmful-​means component; it is entirely possible to conceive of “necessary” as the least measure of harm by which to achieve a desired end. If the end might be achieved by incapacitating the enemy without killing him, then that is what “necessary” should mean. If so, attacking forces should prefer capture to killing, wherever feasible. And although feasibility might depend on tactical capabilities in a particular time and place, it is unclear why it should be ruled out altogether from classic battlefield situations involving large-​scale confrontations. A first move toward bringing “necessity” closer to its ordinary meaning has been made by the Israeli Supreme Court, which, in the aforementioned decision on targeted killing, ruled that when there was a feasible alternative of arrest, the government must exercise that alternative and refrain from killing. As commentators have noted, this requirement was not based on the existing laws of war, either with regard to civilians or combatants.144 Rather, it was introduced under a domestic constitutional principle of proportionality. In essence, it was an expression of the court’s uneasiness about the full implications of a “war on terror” paradigm and its backlash toward a law-​enforcement model, in which the use of lethal force must be a last resort. In this sense, the court followed Kahn’s move of importing policing doctrines into the laws of armed conflict. Another move in this direction has been the research into and development of non-​ lethal weapons (NLW) and the employment of police-​like NLW in various theaters of conflicts. In fact, the US defense establishment (the military and Department of Defense) is an active promoter of research into and development of NLW.145 Originally, interest in less-​than-​deadly weapons arose from the military’s deployment to non-​ traditional theaters, including involvement in humanitarian interventions or military operations other than war. But this interest seems to have expanded beyond riot control or law-​and-​order operations in complex environments, to include potential wartime capabilities, such as putting to sleep or stunning combatants, in more traditional settings.146 If NLW prove effective, the question becomes why it is necessary to employ lethal means, unless there is independent value in actually killing combatants. Another different manifestation of a less-​harmful-​means test would be favoring the targeting of military objects over military personnel. For instance, if one party has the opportunity to disable enemy aircraft, vehicles, munitions, supplies, and so on, it should do so with preferably as few—​rather than as many—​human casualties (military and civilian) as possible. After the tools of war are destroyed, it will become easier to capture or otherwise disable enemy combatants without having to kill them.147 Of course, capturing enemy combatants imposes costs and burdens on the captor in terms of holding, transferring, and catering to the captives (the military, political, and legal costs of holding enemy combatants in Guantanamo Bay create a strong

144   Amichai Cohen and Yuval Shany, “A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killing Case” (2007) 5 J Intl Crim Just 310–​21. 145   Graham T Allison, Paul X Kelley, and Richard L Garwin, Nonlethal Weapons and Capabilities (Council on Foreign Relations 2004) 3; Global Security, Non-​Lethal Weapons (Global Security 2009) 146 147   Ibid 9–​10.   Roberts (n 16) 960.

56

The Dispensable Lives of Soldiers

56

incentive to kill rather than capture); an advance warning might alert the enemy and allow it to better prepare for the attack; and stunned combatants might return to combat activity once the effects of the non-​lethal strike wear off. But IHL already requires warring parties to assume certain burdens: It prohibits announcing that no quarter shall be given and orders the holding, transferring, and catering to captured or surrendering POWs; it prohibits the use of certain weapons that cause superfluous injury and unnecessary suffering; and it does not allow the breaking of any these rules in the name of military necessity. Ultimately, as in the case of an amended doctrine of distinction, the question must be whether adding a less-​harmful-​means condition to the interpretation of the principle of military necessity imposes such burdens as to fundamentally break the balance struck by current IHL between the necessities of war and humanitarian concerns. This question might undoubtedly vary from one battlefield to another, and different combat scenarios would allow—​or restrict—​the application of a capture-​a lternative. But ultimately, it would depend on the human value we choose to assign to the lives of combatants.

6. Conclusion The fate of the civilian harmed by war has been the focus of international law’s attention ever since the end of the Second World War, and has shaped the rhetoric and consciousness of those concerned with war. The term “enemy civilians” has been taken out from the Army Field Manuals, leaving only the generic protected class of “civilians.” International human rights activists consistently campaign on behalf of civilians affected by war, alongside the International Committee of the Red Cross that provides them with humanitarian assistance. An entire body of crimes against humanity has developed to supplement an older body of war crimes, with the well-​being of civilians in mind. Whether or not enemy civilians are actually better off today than they were in past times is debatable, but they are undoubtedly entitled to greater protections as a matter of law. The fate of combatants fighting wars has benefited far less from these developments. As far as combatants are concerned, the laws and customs of war have changed very little since the American Civil War, especially for those who are not hors de combat, adding some limitations on the types of weapons that may be used to kill but not on killing as such. Drew Faust has described the dismayed attitude of Confederate soldiers toward Union sharpshooters: To shoot a man as he defecated, or slept, or sat cooking or eating, or even as he was “sitting under a tree reading Dickens”, could not easily be rationalized as an act of self-​defense. Soldiers in camp wanted to think themselves off duty as targets as well as killers, and they found the intentionality and personalism involved in picking out and picking off a single man highly disturbing.148

148

  Drew Gilpin Faust, This Republic of Suffering (Knopf 2008) 42.

57

Conclusion

57

And yet this sharpshooting was perfectly legal during the Civil War; more remarkably, it is still so today. The question why we should treat combatants any differently from civilians on the battlefield largely depends on the values we want our system of laws of war to promote. Our current system of IHL sacrifices soldiers in the name of protecting civilians. It is an extension of the dueling system, whereby we send a group of soldiers to fight another group of soldiers, and the outcome of that fight determines the fate of compatriot civilians. Soldiers are thus instruments of war. We dress them up in uniform and that uniform defines them as instruments and obliterates their individual identity.149 In an international system that is state-​centered, the dueling logic might persist in the face of any liberal individualistic commitments. As our system changes, the status of the dueling system might grow more precarious. For now, though, any amendment that departs from a rule-​based right toward a standard-​based judgment faces several difficulties, including asymmetries in compliance, more complex administrability, and potential for military and political exploitation. These are all real and substantial challenges, even if not conceptually or fundamentally different from other limitations on lawful warfare. Ultimately, the recognition of soldiers’ non-​instrumental human value might require the absorption of some degree of enhanced risk or cost to the enterprise of war. Attempts at an amended reading of the principles of military necessity and distinction or a narrowed interpretation of the definition of “combatants” have so far been met with resistance. But such attempts have been sparse and distant from the focus of the international humanitarian community’s attention. Geopolitical, normative, and technological advances, which have all shaped and reshaped the laws of war throughout history, make these attempts worthy and possible of success today. There is no reason to reject them as improbable or unrealistic—​at least, not more than banning anti-​personnel landmines, or prohibiting the use of physical pressure in interrogating POWs, or requiring warring parties to show concern for the environmental impact of military operations. The laws of war change as public preferences and sensibilities call them to. They might very well change further to reflect a growing care for the enemy, even enemy combatants.

149   Uniforms are the “stamp of ownership the sovereign puts on his army.” See Christopher Kutz, “The Difference Uniforms Make:  Collective Violence in Criminal Law and War” (2005) 33 Phil & Pub Aff 148–​80, 160–​61.

58

2 Sharp Wars Are Brief Jens David Ohlin

1. Introduction “Sharp wars are brief,” Francis Lieber wrote in his code, encapsulating in four short words an entire ethical worldview that would ground his work on the law of war. The phrase ends Article 29 of the Lieber Code, the first American codification of the laws of war, prepared by Lieber at the request of President Lincoln during the US Civil War.1 The “sharp wars are brief” statement comes right after the Code declares that “[t]‌he more vigorously wars are pursued, the better it is for humanity.”2 The Lieber Code is notoriously difficult to get a handle on, in part because it is written with odd turns of phrase: legalistic rules and curt prohibitions, but mixed with philosophical explanations for those rules, written almost as asides. The “sharp wars are brief” statement in many ways captions everything else that comes in the Lieber Code. Lieber believed that the over-​regulation of war was dangerous because it risked prolonging the conflict, which in the long run was damaging to human affairs. For Lieber, as for Kant, the goal of war was to return to a state of peace, and anything that made the “return to peace more difficult” should be discouraged or outlawed.3 However, outlawing too much might make war too comfortable, with perverse effects: It risked prolonging the war indefinitely, thus delaying the return to peace. War was supposed to be nasty so that it could be defined as exceptional; peace is normal. If war is too comfortable it can be normalized, and the result might be perpetual war—​not Kant’s perpetual peace. Sharp wars are brief and that is how they should stay.4 On the other hand, though, “sharp wars are brief” is a horrible argument, and subject to abuse.5 It can be used to defeat almost any regulation of war, whether sensible or not.6 Should we be allowed to summarily execute prisoners? Yes, because sharp

1   Francis Lieber, Instructions for the Government of Armies of the United States in the Field, General Order No 100, art 60 (April 24, 1863) (hereinafter Lieber Code). 2 3   Ibid, art 29.  Ibid. 4   See John Witt, Lincoln’s Code: The Laws of War in American History (Free Press 2012) 235–​6 (“If this was so, then the least destructive means were not necessarily the most humane. The opposite might be true. Indeed, if war was sufficiently terrible, there might be fewer wars. Human suffering from warfare might be reduced most by a rule that not only permitted but required the greatest possible destruction”). 5   For a discussion, see Janina Dill, “The American Way of Bombing and International Law:  Two Logics of Warfare in Tension,” in Matthew Evangelista and Henry Shue (eds), The American Way of Bombing: Changing Ethical and Legal Norms, From Flying Fortresses to Drones (Cornell University Press 2014) 131, 140. 6   See Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War:  An Introduction to International Humanitarian Law (Cambridge University Press 2011) (“sovereignty and military necessity are the two evil spirits in our story—​a nd evil spirits we will not be able to exorcise soon”).

Sharp Wars are Brief. Jens David Ohlin. © Jens David Ohlin, 2017. Published 2017 by Oxford University Press.

59

Introduction

59

wars are brief. Should soldiers suffer in battle, even unnecessarily? Of course, sharp wars are brief. Should civilians be targeted? Sharp wars are brief, so you can guess the answer.7 But each of these examples represents behavior that Lieber condemned. He viewed soldiers hors de combat as sacred and not subject to summary execution. Civilians ought to be protected from the horrors of battle. Suffering for its own sake, or that of revenge or sadism, had no place on the battlefield. So although sharp wars are brief, Lieber recognized that the argument had its limits. Indeed, if the argument had no limits in its application, it could stand for the proposition that there should be no legal limits on warfare at all. Whatever Lieber meant by the phrase “sharp wars are brief,” it was not that. The principle of necessity is the cornerstone of Lieber’s “sharp wars are brief” conception of the law of war. At first glance, it sounds as if it should be a regulatory concept designed to constrain battlefield killings by prohibiting the unnecessary killing of enemy soldiers. However, as we shall see in more detail below, Lieber’s principle of necessity does no such thing.8 The general idea behind the principle of necessity is introduced in Article 14 of the Code, but the specifics of it spill over into Articles 15 and 16, thus complicating its interpretation. But as we will see, Lieber’s conception of necessity is more license than constraint, because the killing of enemy soldiers is always considered necessary for the war effort unless the killings are performed out of sadism, anger, or revenge.9 Why focus so much on the philosophical musings of a seemingly obscure theorist of war? The answer lies in the fact that the Lieber Code’s conception of necessity provides almost no protection for enemy soldiers. While the intentional killing of civilians is carefully circumscribed, soldiers are subject to summary killing at almost any time, as long as they are not hors de combat by injury or internment. Indeed, even the commonsense idea that soldiers should not be killed unnecessarily in wartime has little purchase in the Lieberian worldview, since necessity is defined by fiat to include all cases of injuring and killing enemy soldiers. While civilians count for a lot, the lives of soldiers are not valued at all.10 While it would be an exaggeration to refer to soldiers as cannon fodder, the exaggeration would only be slight.11 7   See Henry Shue, Fighting Hurt: Rule and Exception in Torture and War (Oxford University Press 2016) (“Those who embrace truly net-​consequentialist reasoning will likely find fault with our framework. The claim that often the direct killing of civilians will minimize human death and suffering overall because it is more efficient than allowing combatants to kill each other and thus means that a war ends sooner has been made from time immemorial”). 8   Ibid (noting a lack of constraint in the Lieberian efficiency argument). 9   For more detail on this interpretation of Lieber, see Jens David Ohlin and Larry May, Necessity in International Law (Oxford University Press 2016) 95–​106. 10   This tension was most recently explored by Gabriella Blum, “The Dispensable Lives of Soldiers,” in this volume, who writes: “The striking feature of the mainstream literature is its general acceptance (albeit at times, with some moral discomfort) of the near-​absolute license to kill all combatants and of the law’s view of combatants as nothing more than instruments of war. Moreover, although some discussions of the principle of distinction in the context of the war on terrorism have called for narrowing the scope of civilian immunity, these discussions have not been accompanied by any calls for correspondingly narrowing the scope of combatant targetability. The outcome has been that, overall, more individuals have become potentially susceptible to intentional killing in war.” 11   Ohlin and May (n 9) 270; Larry May, War Crimes and Just War (Cambridge University Press 2007) 108–​17. The phrase originates in François-​René De Chateaubriand, De Buonaparte et des Bourbons (1814). See Blum (n 10) 22.

60

60

Sharp Wars Are Brief

In this chapter I wish to make three key claims. First, Lieber’s conception of necessity stems directly from his philosophical claim that sharp wars are brief. Second, the Lieberian conception of necessity is not a relic of the historical past; rather, it represents the basic structure of today’s law of war. If one wants to know why today’s law of war does so little to value the lives of combatants—​while protecting civilians—​one need look no further than the Lieber Code. More specifically, one should look no further than Lieber’s argument that sharp wars are brief. Finally, the third section of this chapter will critically evaluate Lieber’s argument and ask why the laws of war assign so little value to the lives of combatants.12 The chapter will conclude with a very limited normative defense of this state of affairs, but the existing law will not emerge unscathed. I will suggest that even if Lieber is correct that sharp wars are brief, this insight still leaves open the question of their optimal level of sharpness, which we arguably have not yet reached. Reform is still permitted and, indeed, required.

2.  The Basic Structure of the Lieber Code The Lieber Code begins its definition of necessity with the following statement: “Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.”13 The key word here is “indispensable,” which suggests a robust constraint on the use of force.14 If a particular killing of a particular enemy soldier is not “indispensible” for winning the war, it would seem to be impermissible according to Article 14 of the Lieber Code. Indeed, lawyers often assume, on the basis of this provision, that the Lieber Code’s definition of military necessity restricts the use of force.15 And if one trains one’s gaze on this single passage—​and its invocation of indispensability—​then indeed it is restrictive.16 The lives of soldiers would seem to count for a lot, since they are only to be killed if their killing is necessary for securing the ends of the war. If the war is winnable some other way, the lives of soldiers are protected and should not be abrogated. However, this is only one-​third of the story. Article 15 then includes a provision that effectively pushes back in the other direction:

12   “If we believe that all lives have an affirmative value, then limiting the permissibility of killing enemy soldiers is a worthy task” (Blum, n 10) 20. 13   Lieber Code (n 1) art 14. 14   See Ganesh Sitaraman, The Counterinsurgent’s Constitution: Law in the Age of Small Wars (Oxford University Press 2012) (“Lieber’s central contribution was the doctrine of military necessity as a limitation on violence, though necessity enabled violence as much as it curtailed it”). 15   Luban argues that the Lieber Code definition of military necessity, though very broad, is less permissive than the definition of military necessity articulated in the Hostages Case. See David Luban, “Military Necessity and the Cultures of Military Law” (2013) 26 Leiden J Intl L 315, 341–​2. For a discussion, see also Witt (n 4) 4. 16   Burrus M Carnahan, “Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity” (1998) 92 Am J Intl L 213, 216 (“By defining military necessity to include all measures ‘indispensable for securing the ends of the war,’ Lieber ensured that, whatever other limits this legal principle might place on military operations, it would be broad enough to include President Lincoln’s standard for military emancipation—​‘a necessity indispensable to the maintenance of the government’ ”).

61



The Basic Structure of the Lieber Code

61

Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.17

The effect of this provision is to stipulate, by fiat, that the direct killing of enemy armies is consistent with the principle of necessity. Unlike Article 14, which seems to say that the lives of soldiers count for a lot because soldiers cannot be killed unnecessarily, Article 15 says the exact opposite: The lives of soldiers matter little, because killing them is always necessary for securing victory. The destruction of “life or limb” is included among a long list of examples that meet the requirements of necessity, such as capturing enemy soldiers, property destruction, obstruction of travel, and even the withholding of sustenance. How can these examples be squared with the requirement of indispensability?18 One possible solution is that Lieber believed the necessity analysis should be run for particular tactics, not for particular incidents or events during battle. In other words, one should not ask whether this particular killing or this particular destruction is allowed by the principle of necessity. Rather, one should ask whether this tactic is allowable by the principle of necessity, defined as those tactics that are indispensable for the securing of victory. And on that analysis, killing, injuring, and capturing the enemy are always allowable because such things are necessary for winning wars. The difference between these tactic-​based and incident-​based evaluations of necessity boils down to, among other things, the difference between a general and specific justification, or perhaps the difference between a rule justification and an act justification. Evaluating the appropriate and “necessary” tactics of war, in Lieber’s sense, resides at the level of general rules. Indeed, this should be no surprise, as Lieber was using the principle of necessity to spin out a code that would guide the ethical and legal behavior of soldiers on the battlefield. And the construction of the code required an articulation of tactics that were either ruled in or ruled out of bounds by reference to background principles such as necessity. This method of articulating the rules of warfare provided a set of identifiable rules that were easy for soldiers to follow, yet at the same time easy for the world community to enforce (through reputational sanctions or self-​ help measures) when violations occurred. Incident-​based evaluations would require

  Lieber Code (n 1) art 15.   For a discussion, see Eliav Lieblich, “Beyond Life and Limb:  Exploring Incidental Mental Harm Under International Humanitarian Law,” in Derek Jinks et al (eds), Applying International Humanitarian Law in Judicial and Quasi-​Judicial Bodies (Springer 2014) 185, 194. 17 18

62

Sharp Wars Are Brief

62

specific facts about isolated events that would be hard to come by, but tactic-​based evaluations could be adjudicated once it became clear which tactic was employed by the military forces. There are some circumstances when the principle of necessity requires an incident-​ based evaluation. At the very least, a tactic-​based evaluation would apply to the licensing function of the principle of necessity, though not to necessity as an exception, which would still require reference to particular events. The difference between necessity as a license and necessity as an exception is an important one, which I have explored elsewhere in greater depth.19 The concept of necessity can be used to license certain conduct, so that, for example, the killing of enemy soldiers is part of a broad license given to privileged combatants during an armed conflict. In these situations, the concept is not doing much (or any) constraining work. Indeed, it is doing the exact opposite: It is giving license to performing an action in armed conflict that is considered basically normal (killing the enemy), which in peacetime is not permitted. In contrast, necessity as an exception involves an incident-​based, fact-​specific determination that a rule of armed conflict can be ignored if necessity demands it. Since this use of the necessity principle is, by definition, exceptional, it necessarily requires consideration of the specific incident’s facts. As I  have argued elsewhere, I believe that necessity as an exception is no longer a viable category in today’s jus in bello because rules of warfare are no longer subject to abrogation simply because they place heavy burdens on attacking forces. That being said, necessity as a license endures to this day—​it is one commonality that links the structure of the Lieber Code with the deep architecture of today’s IHL, which licenses the killing of enemy combatants. Consequently, when necessity was invoked in the past as an exception to pre-​existing norms (e.g. only targeting civilian objects when unavoidably necessary), the analysis required consideration of the specific facts of the event. But when necessity is invoked as a broad license, as it is often today, the analysis requires reference to general tactics, such as the killing of enemy soldiers as a tactic necessary for securing the end of war. What actions or strategies would be disallowed under Lieber’s necessity analysis? Fortunately, the Code answers this question: Military necessity does not admit of cruelty—​t hat is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.20

This shows that Lieber’s notion of necessity is mostly a license with just a hint of constraint. Killings against enemy soldiers are allowable as a category, and the only thing that is prohibited is killings—​or other violence—​performed not from a desire to win the war sooner, but instead out of an emotional or vindictive desire to see the enemy suffer. Those actions are by definition unnecessary, because they do not directly advance the goal of ending the war and ushering in the return to peaceful relations. 19

  See Ohlin and May (n 9) 2–​6, 95–​106.

20

  Lieber Code (n 1) art 16.

63



The Basic Structure of the Lieber Code

63

By looking at the entirety of the Lieber Code’s provisions on necessity, what first looked like a powerful constraint on killing during wartime emerges as quite the opposite: a broad license to kill as many enemy combatants as possible. The value of combatant lives appears to count for very little, though they are protected from purely vengeful or sadistic killings—​a lthough that is not saying much. But if an attacking force has the opportunity to slaughter tens of thousands of enemy soldiers, there is nothing in the Lieber Code that would prohibit it.21 Although Article 14 by itself might suggest that such slaughter is prohibited, a deeper reading of Articles 14–​16 together demonstrates that such slaughter is lawful because the principle of necessity permits “all direct destruction of life or limb.” I suggested above that the key to understanding this apparent tension is that Lieber seems to be using the concept of necessity to evaluate the permissibility of particular tactics, as a general category, rather than the permissibility of specific actions at particular points in time. Why would he do this? Is this a legitimate way to conduct the inquiry? One could see why Lieber would insist on using legal principles to evaluate classes of behavior, rather than specific events. The goal of the Lieber Code, as with any codification of the laws of war, is to provide specific legal guidance for soldiers in the field. Indeed, the Code was originally printed as a pamphlet to be carried on the battlefield.22 It was less a lawyer’s document and more an operational one. Consequently, it makes sense that Lieber would seek to evaluate general tactics. The Code tells soldiers which tactics are permitted and which are not. Killing the enemy is fine, but making him suffer for revenge is not. Torturing detainees to elicit confessions is illegal, as is the use of poison.23 These are easy-​to-​apply rules that are specific in nature. They are clear and understandable for regular soldiers seeking guidance for their behavior on the battlefield. If one interprets the Lieber Code as advancing a principle of necessity that prohibits each individual killing that is not “indispensable for securing the ends of the war,” the concept of necessity would act like a broad standard to be applied to the particular facts of a given situation. In today’s legal culture, we are accustomed to the positive and negative consequences of broad standards in constitutional litigation and theory.24 Their flexibility is their greatest strength but also allegedly a pernicious vice. Critics of standards complain that their lack of precision invites judges to “legislate” an answer, which is fundamentally incompatible with the rule of law.25 According to the skeptics, bright-​line rules are far more determinative, predictable, and legalistic. Judges should be applying rules, otherwise when they apply standards they are simply legislating from the bench.26

  Blum (n 10) 23–4.   Witt (n 4) 2 (“It is a working document for the soldier and layman, not a treatise for the lawyer or statesman”). 23   Incidentally, this is one tactic on which Lieber changed his mind. In his early lectures, Lieber argued that poison was sometimes justified—​a position that he later reversed when he wrote his code. Witt (n 4) 183. 24   See Kathleen M Sullivan, “The Justices of Rules and Standards” (1992) 106 Harv L Rev 22, 62–​9. 25   See Antonin Scalia, “The Rule of Law as a Law of Rules” (1989) 56 U Chi L Rev 1175, 1179. 26   Ibid 1176 (“Executives and judges handle individual case; the legislature generalizes”). 21

22

64

64

Sharp Wars Are Brief

A similar argument could be made about soldiers in battle. Soldiers are ill equipped to apply broad standards to particular facts. This is not because soldiers are poorly educated or stupid. Rather, it is because the open-​endedness of standards is only compounded by the lack of information stemming from the “fog of war.” Soldiers on the battlefield will rarely have access to the type of information required for a reliable application of a broad standard—​such as “indispensable for securing victory”—​to each particular act of battlefield killing. This would be difficult indeed. Consider a particular example. Suppose a group of platoon leaders have been ordered to take control of an apartment that enemy soldiers are using as a base of operations. The soldiers in the platoon are preparing to assault the building. Under the principle of necessity as presented in the Lieber Code, the soldiers need only understand the basic categories of permissions and prohibitions. The soldiers are permitted to kill all enemy soldiers in the battle, unless they have surrendered or were rendered hors de combat by injury or illness. They cannot torture or execute any soldiers they capture as prisoners. But as for all other enemy soldiers, they can kill as many of them as they can. Now let us imagine the same tactical situation when the principle of necessity is understood solely in terms of “indispensable for securing victory” and must be applied to each act of killing on the battlefield. The soldiers are not privy to the military installation’s overall tactical significance to the overall war effort. Moreover, they may not even know how close—​or how far—​their side of the conflict is from victory or defeat. So it will be nearly impossible for them to discern how important it is to engage in these particular killings. Even if they had access to this information, of course, they would have difficulty engaging in this complex assessment in the heat of battle before each particular killing. After shooting one soldier, they would need to assess whether killing the second enemy soldier is truly necessary, etc. This would be impractical, or at the very least complicated. So one could see why Lieber would say: No—​that is not how necessity works. Necessity applies to particular tactics. And the tactic of killing enemy soldiers is always permitted according to the principle of necessity. Lieber seems to accept that the contrary argument—​that the lives of soldiers should sometimes be spared—​is inconsistent with his “sharp wars are brief” argument. He wants the war to be brutal, nasty, and short, followed by a return to peaceful co-​existence. In this sense, Lieber is the poster-​child for the argument that the humanitarian project can be risky. If it civilizes and normalizes war to the point that it becomes palatable, we run the risk of creating a Forever War—​an objection that gains renewed salience in the current climate of our foreign policy.27 Why then does Lieber accept any restraints on the use of force? The prohibitions he does recognize stem entirely from his Kantian reading of the law of war.28 In Perpetual Peace, Kant lays out a somewhat unexpected justification for restrictions on the conduct of warfare.29 One might assume, given Kant’s deontological account of morality,   See Dexter Filkins, The Forever War (Knopf 2008).   Witt (n 4) 182. Strangely, Lieber noted in his lectures that Kant’s “Perpetual Peace” essay was his least profound—​a strange comment given how much Lieber relies on its intuitions. 29   Immanuel Kant, “Perpetual Peace: A Philosophical Sketch,” in HS Reiss (ed) and HB Nisbet (trans), Kant: Political Writings (Cambridge University Press 1970) 93. 27

28

65



The Basic Structure of the Lieber Code

65

that he would straightforwardly argue that soldiers have a personal right to humane treatment, based on their human dignity, their capacity to reason, and the categorical imperative. Not so, however. Kant’s argument is far more collectivist and embedded in his overall account of international relations. Kant’s version of international morality suggests that the goal of international relations is the achievement of perpetual peace, which is more than simply the cessation of hostilities, but rather a deeper equilibrium where each nation forgoes violence in favor of peaceful co-​existence. The best way of achieving perpetual peace is for each nation or society to live according to a republican constitution, because this constitution is “pure in its origin (since it springs from the pure concept of right)” and it also offers a prospect of attaining the desired result, i.e. a perpetual peace, and the reason for this is as follows.—​If , as is inevitably the case under this constitution, the consent of the citizens is required to decide whether or not war is to be declared, it is very natural that they will have great hesitation in embarking on so dangerous and enterprise. For this would mean calling down on themselves all the miseries of war, such as doing the fighting themselves, supplying the costs of the war form their own resources, painfully making good the ensuing devastation, and, as the crowing evil, having to take upon themselves a burden of debt which will embitter peace itself and which can never be paid off on account of the constant threat of new wars.30

Perpetual peace is the horizon to which international relations should be directed. It is against this normative background that Kant evaluates restrictions on military tactics. If the tactics make the return to peace too difficult, then they are impermissible during warfare. Of the problematic tactics, Kant singles out the “employment of assassins or poisoners, breach of agreements, [and] the instigation of treason within the enemy state” as impermissible.31 Why these tactics? Kant calls these “dishonourable stratagems” part of the “diabolical arts” because each one involves a form of deception—​that is, dishonesty—​that is not only “intrinsically despicable” but also “would not long be confined to war alone if they were brought into use.”32 In other words, “[s]‌uch practices will be carried over into peacetime and will thus completely vitiate its purpose.”33 Dishonorable stratagems make the return to peace difficult because they introduce dishonesty into the relationship of the belligerents, and if the belligerents are ever to return to a stable peace, they must learn to trust and co-​exist with each other again. We therefore see an early form of international reparative and transitional justice in Kant’s conception of jus in bello. The common theme behind the use of poison, breach of agreements, spying, and treason is that they all involve a fundamental form of dishonesty or lying. The practitioners of these “diabolical arts” get the enemy to receive them into their confidence and then betray that confidence. The enemy drinks the water believing it is unadulterated; they are deceived because it is poisonous. The enemy collaborates with his fellow citizen because he trusts his loyalty, but is deceived because the collaborator is treasonous. The spy crosses the front lines and pretends to be a member of his enemy’s political community, and receives secret information  Ibid 100.

30

 Ibid 96.

31

32

  Ibid 96–​7.

 Ibid 97.

33

6

66

Sharp Wars Are Brief

on that basis; the community that is victimized by the spy feels the resulting betrayal deeply, in ways personal and political. This obsession with dishonesty should come as no surprise given Kant’s well-​k nown and inflexible views on lying, which he considered immoral regardless of the consequences.34 Lieber’s justification for the specific prohibitions in jus in bello is borrowed directly from Kant’s discussion of these prohibitions in Perpetual Peace. The prohibition on spying, poison, and perfidy must be zealously enforced because they make the return to peace difficult and frustrate the goal of attaining a perpetual peace.35 The proper conduct of belligerents during war is reverse-​engineered based on the needs of society after the war is concluded. Jus post bellum is the driving force behind the jus in bello.36 The Lieber Code is a Kantian document through and through. As Section 3 will demonstrate, much of the Lieber Code’s basic structure has been retained in the current legal landscape of jus in bello. No mere historical oddity, the structure outlined above in many ways describes the current legal regulation of warfare, although many of the details are different. But what has remained constant is the broad brushstrokes of the framework: a very permissive notion of military necessity that justifies military tactics such as the killing of enemy combatants, combined with specific prohibitions outlawing particular methods and weapons.37

3.  The Modern Principle of Necessity The question now is whether the basic structure of the law of war articulated in the Lieber Code has survived to this day. In the present section, I argue that it has endured, subject only to minor amendments regarding the specific prohibitions that act as an overlay on top of the principle of necessity. But the core notion of necessity has remained. The result is that in today’s legal landscape, the lives of soldiers are protected only in a very weak sense. They are entitled to the right not to be tortured or subjected to unnecessary pain and suffering, but they are still subject to killing simply because they are soldiers, as long as they have not surrendered or been rendered hors de combat. In this sense, the killing of large numbers of enemy soldiers might be constrained by jus ad bellum, but not by jus in bello. To this day, the principle of necessity

34   Kant famously concluded that it was immoral to lie to a murderer who was searching for a victim who had taken refuge in your house. See Immanuel Kant, “On a Supposed Right to Lie from Altruistic Motives,” in Lewis White Beck (trans), Immanuel Kant: Critique of Practical Reason and Other Writings in Moral Philosophy (University of Chicago Press 1949). 35   The prohibition on perfidy was introduced by Lieber and not explicitly discussed in Kant, though one might argue that Kant’s prohibition on “dishonourable stratagems” implicitly covers all cases of perfidious conduct in battle. 36   See Carsten Stahn, “‘Jus ad bellum’, ‘jus in bello’ . . . ‘jus post bellum’? Rethinking the Conception of the Law of Armed Force” (2006) 17 Eur J Intl L 921, 935 (“Kant’s ideas were novel, because he linked the rules of war to the broader perspective of eternal peace”). 37   For an argument along similar lines, see Michael N Schmitt, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance” (2010) 50 Virginia J Intl L 795, 796 (“various external pressures have fueled a gradual shift in emphasis toward humanitarian considerations. Although the trend may represent one form of “progress,” it equally risks destabilizing the delicate balance that preserves the viability of IHL in a state-​centric normative architecture”).

67



The Modern Principle of Necessity

67

in IHL remains a broad license to kill the enemy, rather than a robust constraint on battlefield killings. In recent scholarship, Ryan Goodman has suggested that the principle of necessity embodied in Additional Protocol I to the Geneva Conventions is, in fact, a substantial constraint.38 In particular, Goodman argues that the Protocol embodies a stricter definition of necessity that requires attacking forces to use the “least restrictive means” (LRM) to accomplish the military objective.39 In most cases, the least restrictive means will entail killing the enemy, but in some situations it will entail capturing or disabling them.40 Furthermore, the least restrictive means may sometimes require killing fewer rather than more enemy soldiers. If this is what necessity means, then it certainly represents a meaningful constraint on battlefield conduct, and protects the lives of soldiers in a way that Lieber’s conception of military necessity did not. The question is whether the LRM model of necessity was incorporated into the final text of the Additional Protocol I, or whether it has a determinate existence in the rules of customary international law. Goodman notes that Jean Pictet, a major diplomatic figure at the negotiations in 1973–​74 that led up to the adoption of Additional Protocol I, was a strong advocate for the LRM model.41 And this is certainly true. Pictet famously wrote: if we can put a soldier out of action by capturing him we should not wound him, if we can obtain the same result by wounding him, we must not kill him, if there are two means to achieve the same military advantage we must choose the one which causes the lesser evil.42

Based on a close reading of the travaux preparatoires for Additional Protocol I, Goodman argues that Pictet’s endorsement was not just an expression of his own personal philosophy, but rather embodied the diplomatic consensus that eventually made its way into the final text of the Protocol.43 Indeed, it is certainly true that other diplomats involved in the negotiations, most notably Hans Blix and Frits Kalshoven, were sympathetic to the LRM model.44 There is a difference, though, between a view espoused by multiple members of a diplomatic conference and a view that is codified in the final treaty that comes out of the process. And on that score, the story becomes murkier. First, it is clear that some nations did not share Pictet’s enthusiasm for LRM. Second, reference to the actual text of the Protocol shows little evidence of the LRM model in any particular treaty

  See Ryan Goodman, “The Power to Kill or Capture Enemy Combatants” (2013) 24 Eur J Intl L 819. 40 41  Ibid 839.  Ibid 840.  Ibid 841. 42  Jean Pictet, Development and Principles of International Humanitarian Law (1985) 75, cited in Goodman (n 38) 820. 43   Goodman (n 38) 822 (“In particular, critics contend that the notion of RUF was simply the product of Pictet, a leading but solitary expert in the 1970s whose idea was flatly rejected at the time and ‘lay moribund for almost four decades’ until the ICRC attempted to resurrect it in 2009. The critics’ account is at best a serious oversimplification, and at worst involves misattributions and a disregard for other sources of authority on the subject”). 44  Ibid 842. 38 39

68

68

Sharp Wars Are Brief

provision. The most explicit reference to necessity is in Article 35, which includes the following two sentences: 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.45

Based on the bare text, there is no explicit reference to LRM or anything like it. There is a reference to “unnecessary suffering,” though it is a stretch to include cases of unnecessary killings under the rubric of “unnecessary suffering,” which would seem to apply to situations where soldiers are subject to needless pain through weapons that increase the pain and suffering of the enemy without increasing their lethal effectiveness.46 A similar argument can be made about causing superfluous injury, which tells us nothing about whether unnecessary killing of enemy soldiers is prohibited by the provision. An injury is “superfluous” only if we have an explicit account of the proper purposes for which killing and injuring are permitted during warfare. A close reading of the text also reveals another problem—​t his one more pressing. The prohibition applies to the use of weapons, projectiles, material, and methods that run afoul of the aforementioned standard regarding superfluous injury and unnecessary suffering. Like the Lieber Code, Article 35 of the Additional Protocol asks us to evaluate general tactics and methods, not individual instances of their use. In other words, the Protocol does not outlaw specific actions that cause superfluous injury. Rather, the provision outlaws methods or tactics or weapons “of a nature” that run afoul of the standard. And that is far afield from the LRM model, at least as articulated by Pictet and later Goodman. According to the terms of Article 35, the analysis should take place at the general—​not specific—​level. The provision does not ask us to evaluate every single battlefield killing and ask whether the killing was truly necessary or not, or whether disabling or capturing the enemy was the least restrictive means of accomplishing the same ends. To accomplish that type of regulation, one would need to do more than simply evaluate general methods and tactics, but would instead need to evaluate every single act of battlefield killing and ask whether it was truly the least restrictive means or not. This Article 35 does not contemplate. At issue here is the very essence of the concept of necessity. Goodman argues that: Under modern LOAC, the legal right to use armed force is limited to the objective of rendering individuals hors de combat (taken out of battle) or, in the collective 45   See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3 (hereinafter cited as Additional Protocol I), art 35. 46   Goodman quotes a 1973 expert report—​presumably representing the views of multiple experts, not just Pictet—​which stated: “This interpretation is in line with the philosophy that if a combatant can be put out of action by taking him prisoner, he should not be injured; if he can be put out of action by injury, he should not be killed; and if he can be put out of action by light injury, grave injury should be avoided.” ICRC, Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects: Report on the Work of Experts (1973) para 23, cited in Goodman (n 38) 842. Again, this demonstrates that a few experts supported LRM, but does not demonstrate that LRM was codified in the final text. Indeed, if LRM were represented in the final text, one would have expected the provision to be drafted quite differently.

69



How Sharp Should Sharp Wars Be?

69

sense, to defeating enemy forces. Parties have a right to kill enemy combatants during hostilities, but that right is constrained when killing is manifestly unnecessary to achieve those ends.47

While I wish this were an accurate statement of the existing law, it is not. It is, however, an accurate statement of the LRM model of necessity articulated in 1973–​74 by Pictet and others. But it finds no support in the adopted provisions of the Additional Protocol, nor does it find expression in the battlefield conduct of most modern militaries. If the Pictet LRM model of necessity had been incorporated into Additional Protocol I, one would expect to see a reference to a prohibition against unnecessary killing, perhaps even with “unnecessary” in this context defined in a rather strict way. However, one finds in the Protocol neither a reference to LRM or the Pictet language nor indeed any reference to unnecessary killing at all.48 Rather, the concept of necessity has remained largely intact since Lieber’s era, and continues to allow killing of enemy combatants as a general strategy, unless they are hors de combat or have successfully communicated their surrender. While this textual analysis may resolve the legal question of the status of LRM under the Additional Protocol, it does nothing to assuage the legitimate moral concerns that many have regarding the permissive sense of necessity that dominates in IHL. Soldiers are protected from certain vicious treatment, including torture, and cannot be killed when they are hors de combat. As Lieber says, the soldier hors de combat is a sacred person.49 However, they are still liable to be killed at almost any other time—​regardless of whether their deaths in that particular instance will lead to a discernible and verifiable outcome to the armed conflict. This is the hallmark of brutal warfare. Section 4 will interrogate whether the existing legal structure of necessity is morally defensible, and, if not, what moral principles might be brought to bear to chasten the application of necessity as it pertains to the lives of soldiers.

4.  How Sharp Should Sharp Wars Be? There is no shortage of putative moral justifications for the broad principle of necessity that emerges in Lieber and still reigns in IHL. They are frequently grouped into roughly three categories based on the following principles:  soldiers as threats, the requirements of chivalry, and status-​based targeting as a “convention” of warfare.50 Although each type of argument has much to recommend it, none by itself persuasively demonstrates why all soldiers should be subject to summary killing all of the   Goodman (n 38) 822.   See also Michael Schmitt, “Wound, Capture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’” (2013) 24 Eur J Intl L 855–​61; Geoffrey S Corn, Laurie R Blank, Chris Jenks, and Eric Talbot Jensen, “Belligerent Targeting and the Invalidity of a Least Harmful Means Rule” (2013) 89 Intl L Stud 536, 552 (“From the first codified articulation of military necessity until the present day, this principle has been understood to authorize the application of deadly combat power against any belligerent opponent under the operational authority of enemy leadership and physically capable of acting to effectuate that leader’s will”). 49   Francis Lieber, Law and Usages of War, Notebook VIII (1861). 50   I follow Blum, who helpfully groups the arguments in these three categories, though with somewhat different labels: immunity, honor, and convention. Blum (n 10) 31. 47

48

70

70

Sharp Wars Are Brief

time, in the way contemplated by the current principle of necessity. This section will canvass these putative justifications and their critiques, and ultimately advance a preferred defense for the modern principle of military necessity—​one that appeals to fundamentally Lieberian conceptions of warfare. One argument for why soldiers are subject to summary killing in warfare, regardless of context, is that soldiers as a class constitute a threat or are dangerous—​an argument deployed by Walzer and many others.51 Soldiers are dangerous because of their training, because of the weapons they carry, and because of the role which they have been assigned by the social convention of warfare: that of killing the enemy in battle.52 However, as many have noted, not all soldiers are dangerous all of the time. Some soldiers are only dangerous at particular times, such as when they are actively deployed or when they are engaged in military operations. At other points in time—​ when sleeping, training, or in between operations—​they are not terribly dangerous.53 Historically, the answer to this objection has been that all soldiers are potentially dangerous in the future because although they are not attacking now, they might attack in the future. They are the repositories for their nation’s institutional investment in the form of tactical training that can be brought to bear at any time in the future. To require that soldiers only attack enemy combatants during such time as they directly constitute a threat would be to reduce the rules of warfare to the rules of individual self-​defense, which embody strict imminence and necessity requirements. Of course, it might be possible to build a war convention around such principles—​or, more properly, it would entail dropping the concept of a war convention entirely and denying that special rules regarding defensive force should apply during armed conflict. The result would be a harmonization of rules regarding peacetime and wartime conduct. But the deeper objection is that some soldiers will never be dangerous, or rather will never constitute a direct danger, because although they wear a uniform, they are not likely to pose substantial resistance, either because their unit is ineffective or because they themselves will refuse to fight. Should they be killed summarily?54 The most that can be said is that such individuals make indirect contributions to the war effort, though of course civilians do that as well, and in general indirect contributions to the war effort are not considered a sufficient basis to make someone subject to lethal targeting during war.55 The result of this argument is substantial unease with the threat and dangerousness arguments. While they have a kernel of truth to them, and apply in broad brushstrokes to soldiers in general, the arguments fail to line up precisely 52   Michael Walzer, Just and Unjust Wars (Basic Books 2000) 145.  Ibid.   Blum (n 10) 51. 54   Walzer (n 51) 144 (“The case of the ‘naked soldier’ is resolved in this way: soldiers as a class are set apart from the world of peaceful activity; they are trained to fight, provided with weapons, required to fight on command. No doubt, they do not always fight; nor is war their personal enterprise. But it is the enterprise of their class, and this fact radically distinguishes the individual soldier from the civilians he leaves behind”). 55   For a discussion, see Jeff McMahan, Killing in War (Oxford University Press 2009) 255 (“Even when there are some civilians in a society who bear a significant degree of responsibility for an unjust war, they are difficult to identify with confidence and even when they are they rarely concentrate themselves together in isolation as a target for a discriminate and proportionate attack. Rather, responsible civilians are usually interspersed among a larger number of wholly innocent civilians and therefore cannot be attacked militarily without disproportionate harm to the innocent as a side effect”). 51

53

71



How Sharp Should Sharp Wars Be?

71

with the contours of the contemporary principle of necessity. To justify the principle of necessity, we will have to look elsewhere. The second class of arguments appeals to the notion of chivalry. In addition to explicit legal and moral constraints on warfare, warriors conduct their operations on the battlefield in accordance with professional norms of honor and chivalry that structure how the battlefield killings should be performed.56 At one point in time, knights on the battlefield conducted warfare through decidedly personal confrontations with swords and other weapons. Eventually, the bow and arrow (and then the crossbow) allowed killing at a distance.57 Since that time, the distance from which lethal force can be deployed has increased, first with cannons and firearms, and later with missiles. Now, in the age of remotely piloted vehicles, cyber weapons, and autonomous weapons, it seems as if the distance and remoteness of lethal force has been taken to its logical conclusion.58 Some scholars have argued that deeper norms of chivalry require reciprocal risk; soldiers meet each other on the battlefield with the understanding that they perpetrate killings—​and risk being killed—​each time they go to war.59 Under this conception, in exchange for soldiers being entitled to kill in war, they must also subject themselves to a reciprocal level of risk, to summary killing at any moment in time. This would suggest that chivalry is part of the normative groundwork for the licensing conception of necessity in modern IHL. Soldiers kill in battle, and must therefore subject themselves to killing at any moment in time, because this is how chivalrous knights fight. However, it is unclear whether norms of chivalry still require reciprocal risk, a notion that would seem to have fallen by the wayside once the sword was abandoned as a weapon of knightly physical contests in war.60 In any event, though, even if reciprocal risk is still required, it would seem as if chivalry, upon further analysis, simply degenerates into a notion of a “bargain” that soldiers agree to when they decide to engage in war-​fighting. But the fact that soldiers submit to a “bargain” does not tell us what that bargain should be—​only that, allegedly, the “bargain” ought to be reciprocal and apply to all sides of the conflict. That is what chivalry requires: an equality of arms, at least in terms of basic rules or conventions of warfare. A fair fight means both sides fight according to a set of mutually accepted rules. So the notion of chivalry turns out to be closely related to the third group of arguments, the conventionalist conception of warfare, which posits the existence of a bargain underlying contemporary warfare: Soldiers can be killed while civilians must be 56   The principle is both ancient and modern at the same time. Compare Matthew Strickland, War and Chivalry:  The Conduct and Perception of War in England and Normand, 1066–​1217 (Cambridge University Press 1996) with Terry Gill, “Chivalry: A Principle of the Law of Armed Conflict?” in Marcel Brus and Brigit Toebes (eds), Armed Conflict and International Law: In Search of the Human Face: Liber Amicorum in memory of Avril McDonald (Asser Press 2013). 57   See Robert L O’Connell, Of Arms and Men:  A  History of War, Weapons, and Aggression (Oxford University Press 1989) 26. 58   For a longer discussion of this topic, see Jens David Ohlin, “Remoteness and Reciprocal Risk,” in Jens David Ohlin (ed), Research Handbook on Remote Warfare (Edward Elgar Press 2017). 59   See Paul Kahn, “The Paradox of Riskless Warfare” (2002) 22 Phil & Pub Policy Quarterly 2, 4. 60  Strickland (n 56)  72 (discussing the banning of crossbows); Malcolm Vale, War and Chivalry (University of Georgia Press 1981) 129 (discussing the introduction of firearms in the fifteenth century and the undermining of the knightly ideal).

72

72

Sharp Wars Are Brief

spared. Of course, the convention has important details: Civilians can still be targeted if they are directly participating in hostilities, and even if they are not, their collateral targeting is limited by the principle of proportionality. But in the main, the “war convention” preserves the lives of civilians while condemning the lives of soldiers, who are always subject to killing. However, as noted by others, the existence and necessity of a war convention does not tell you much about what the content of that convention should be, and it is certainly possible to imagine a war convention with a more restrictive notion of necessity that limits the killing of enemy soldiers to certain situations, which more closely approximates the commonsense notion of necessity than does the current notion of necessity that reigns in contemporary IHL. Indeed, as Larry May and I argue elsewhere, pragmatic concerns suggest that wholesale revision of the war convention, effectively turning it into a glorified peacetime law-​enforcement operation, could not be operationalized in reality without significant problems.61 However, it is equally true that it is an exaggeration to say that the war convention cannot be revised at all. Indeed, it would seem possible to increase the number of situations in which soldiers should not be subject to lethal force, and to require at least the consideration and exhaustion of some non-​lethal measures first before lethal force is then resorted to. And these non-​lethal measures could be required as long as they do not require the attacking force to bear an unreasonable risk.62 The duty to take “reasonable risks” in pursuit of non-​lethal actions that are equally efficacious is a very mild obligation, because in most situations of battlefield killings, non-​lethal measures will either be operationally ineffectual or would require the attacking forces to take on unreasonable risks. Nonetheless, a war convention revised along these lines would give far more weight to the lives of soldiers and protect them from morally unnecessary killings. It is possible. All of this leaves us with substantial unease regarding the current state of the war convention and the principle of necessity. However, the standard arguments fail to consider one more argument that can be found right at the center of the war convention:  the Lieber Code itself. Lieber tells us that sharp wars are brief—​an argument that is not simply reducible to the arguments that we have already canvassed above. Rather, the argument is based on the idea that wars should be neither under-​nor over-​ regulated. In other words, an equilibrium point exists at which the regulations are sufficiently robust so as to make war more humane, but not sufficiently restrictive so as to hinder a positive outcome. What is the positive outcome in this case? There must be some outcome in mind in order to evaluate the point of efficiency.63 For Lieber, the positive outcome is the successful return to peace. If war is over-​regulated, that would run the risk that the return to peace is delayed, which would ultimately result in more soldiers being killed 62   Ohlin and May (n 9) 275–​76.  Ibid 185.   For a discussion of efficiency in these arguments, see Janina Dill, “The 21st-​Century Belligerent’s Trilemma” (2015) Eur J Intl L 83, 102 (noting that the “logic of efficiency” is best expressed in the “sharp wars are brief” maxim). For a discussion of jus in bello efficiency, see also Kenneth Anderson, “Efficiency in Bello and ad Bellum: Making the Use of Force too Easy?” in C Finkelstein, J D Ohlin, and A Altman (eds), Targeted Killings:  Law and Morality in an Asymmetrical World (Oxford University Press 2012) 374, 389. 61

63

73



How Sharp Should Sharp Wars Be?

73

and in prolonging the conflict. Indeed, it might even result in more civilian casualties too, given that civilian collateral damage is an inherent part of most conflicts. And the broad notion of necessity is the centerpiece of the conceptual architecture of the laws of war. It is what prevents the law from being over-​regulated. If war is over-​regulated, then you get the situation in which blunt wars are long—​which is a disaster. The question, of course, is how we know that the current regulations reside at the point of efficiency, and also whether the broad notion of necessity is an essential part of that regulatory efficiency. This empirical question is difficult to answer, but one could very well imagine the answer to the question being yes. Of course, the answer might be no, but one could see why necessity, as it is currently constructed, is efficient. If soldiers are not permitted to kill each other at will, a conflict could easily fall into stalemate, linger for too long without a victor, and needlessly prolong the conflict and the return to peace. The resulting state of restrained warfare would be a pyrrhic victory. It would advance the goal of humanitarianism but, ironically, not advance the goal of peace. The reason for this conclusion is simple: In order for a war to end quickly, it must permit the use of devastating force. If force is over-​regulated, soldiers will be unable to do the one thing that is absolutely necessary to win the war:  use physical force against the enemy. Restraining the use of military force is laudable, but only up to a certain point. After that point—​after the point of efficiency—​restraints on the use of military force become counterproductive in the long run. That is why sharp wars are brief. The Lieberian argument, appealing to global consequentialist concerns, may be of little comfort to the individual soldier who is killed summarily on the battlefield in accordance with the permissive notion of necessity. If the individual soldier has a human right—​a moral right—​not to be killed unnecessarily (in the strict sense of that phrase), then the fact that his killing contributes to the overall return to peace—​a utilitarian goal—​is neither here nor there. Indeed, the right of the soldier should be a trump card that prohibits his life from being balanced away in service of consequentialist goals.64 The “sharp wars are brief” argument would seem not to have an answer to this objection.65 The one response that can be mustered is that even Kant, no stranger to deontological rights based on human dignity, understood that the rules of warfare were to be designed with reference to the goal of achieving “perpetual peace.” So the “sharp wars are brief” argument is already deeply Kantian—​a fact that should give deontologists some comfort. Now, it is true that we should not let historical pedigree dictate the analysis; the fact that Kant himself would have endorsed the argument is little reason for modern-​day Kantians to endorse the argument as well. But it simply shows that there is value to understanding the rights of war in collective terms, so that the relevant question is not whether the permissive principle of necessity respects the deontological rights of soldiers, but rather to ask, as Kant did, whether the regulations of warfare respect the rights of the nations that are engaged in the armed conflict. 64   See Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978) 6 (“Individual rights are political trumps held by individuals”). 65   Walzer (n 51) 144.

74

74

Sharp Wars Are Brief

Indeed, the whole point of warfare is that it is an institution (or social practice) for the advancement of national rights. And all nations have an interest in securing, if not an international state or a world republic, then at least a federation of states committed to rejecting war as much as possible and striving towards perpetual peace.66 One final question remains. If the “sharp wars are brief” argument is accepted, the question is whether the current nature of armed conflict is essentially immutable or whether the principle of necessity might be chastened in mild ways, consistent with the efficiency argument, that make war more humane without preventing the return to a lasting peace.67 There are two strategies that could make war more humane, and respect the rights of soldiers, without running afoul of the efficiency argument.68 First, there are other constraints on killing in warfare outside of jus in bello. In particular, jus ad bellum and jus ex bello constrain the use of force against defenseless soldiers in situations when the war itself should be deemed as concluded, rather than continued until every last enemy soldier is killed.69 Second, there are some situations in which attacking forces should be morally required to use non-​lethal force when doing so achieves operational objectives without imposing additional and unreasonable risks on the attacking force.70 For example, in some limited situations, attacking forces that could capture rather than kill the enemy, without taking on additional unreasonable risks, should be required to do so. This requirement to explore non-​lethal options first could be classified as a mild amendment to the permissive notion of necessity, but would still recognize Lieber’s central insight that war is, by necessity, a brutal contest (a sharp war), and not by any means a law enforcement operation. Soldiers are subject to summary killing in war under the principle of necessity, though there should be some restrictions on the application of that principle. One might question whether we have misidentified the equilibrium point for regulating warfare, and feel that war should be much more heavily constrained—​even to the point of producing a functional or contingent pacifism.71 I  have suggested that such an outcome would produce very negative results (prolonged conflict ultimately resulting in more suffering), but others might disagree with that prediction. If the conditions for the acceptable killing of enemy combatants were sharply curtailed (or even brought closer to elimination), maybe wars would become more exceptional and

  Kant (n 29) 105.   See e.g. Janina Dill and Henry Shue, “Limiting the Killing in War: Military Necessity and the St. Petersburg Assumption” (2012) 26 Ethics & Intl Aff 311, 323 (“It is important, however, not to appear to overstate the military utility of killing combatants. It is far from the case militarily that the more killed, the better”). 68   These two arguments are explored in greater detail in Ohlin and May (n 9). 69   See Darrel Mollendorf, “Jus Ex Bello” (2008) 16 J Political Phil 131, 134 (“The principles governing how the withdrawal of troops ought generally to be conducted require the minimization of casualties, of damage to vital infrastructure, and of damage to institutions required to uphold law and order. The justification of these principles derives from the basic approach of just war theory since the principles concern minimizing some of the kinds of evil that war itself produces, and because of which war requires special justification”). 70   See Schmitt (n 48) 861 (“The fact that a killing is lawful when capture might be feasible does not mean that killing is sensible operationally or from a policy perspective, or even that it is ethical”). 71   See generally Larry May, Contingent Pacifism:  Revisiting Just War Theory (Cambridge University Press 2015). 66 67

75

Conclusion

75

less frequent, in part because the constrained nature of warfare would make states less likely to resort to armed conflict. The argument has surface appeal. If you want to make something less frequent (war), then you should make it less attractive as a tool for advancing statecraft. If war becomes too difficult to wage, states will have a greater incentive to explore and exhaust non-​military options. Even assuming that this prediction is correct about the effects of a tighter regulation of armed conflict, one point must be factored into the analysis. If the law makes it harder for states to resort to armed conflict (but does not give them the tools to win the contest quickly and decisively), then war will be sharply reduced, but not eliminated. And this effect will be consistent across the jus ad bellum divide. In other words, the law would make just and unjust wars alike more difficult to win and more difficult to prosecute. If one factors in the invariance of jus ad bellum, in practical terms this means that unjust aggressors might be less likely to engage in armed conflict, but it also means, unfortunately, that justified defenders might be less likely to engage in armed conflict too. Once one factors this (presumably) negative consequence into the analysis, the prediction becomes slightly less attractive.

5. Conclusion In the present chapter, I have argued that Lieber’s use of the phrase “sharp wars are brief” is more than just a pithy turn of phrase; rather, it is the cornerstone of a distinctive theory regarding the principle of necessity. The chapter began with a conceptual unpacking of the “sharp wars are brief” phrase and a descriptive mapping of the Lieber Code’s conception of necessity. Although the principle of necessity holds out much promise as a normative constraint, the overall use of the principle in the Lieber Code is much more a license. The regulatory “bite” of jus in bello is provided by the more specific prohibitions of IHL, rather than the principle of necessity. The chapter then argued that Lieber’s notion of necessity as a license has been maintained through to the present day and that attempts to find a more restrictive principle of necessity in codified IHL (lex lata) will inevitably fail.72 Although a more restrictive version of necessity is certainly promising and has been widely discussed over the years by diplomats and lawyers, both the text of the relevant treaties and, just as importantly, the practice of modern militaries confirm that necessity, as currently understood, permits the summary killing of all enemy combatants who are legitimate targets. The reformist position has much to recommend it but was ultimately unsuccessful as a matter of law. The second half of the chapter turned to a normative assessment of the “sharp wars are brief” argument. The chapter canvassed the leading arguments in favor of a broad conception of necessity and found most of them wanting (as have other philosophers), though conventionalist arguments come closest to articulating a normative foundation for today’s current practice of warfare. Lieber’s “sharp wars are brief” argument 72   See also Walzer (n 51) 36 (“Though there is no license for war-​makers, there is a license for soldiers, and they hold it without regard to which they are on; it is the first and most important of their war rights”).

76

76

Sharp Wars Are Brief

turns out to be a distinctive contribution to this normative landscape—​a unique argument that articulates an efficiency argument for unrestrained warfare. Or, more specifically, the “sharp wars are brief” argument suggests that there is an optimal point of regulation that constrains warfare, but does not constrain it so much that it prolongs warfare excessively. The result is a quasi-​consequentialist argument that owes as much to Kant’s notion of perpetual peace as it does to the Lieber Code. The goal of warfare is to return to a state of peace, and over-​regulated warfare runs the risk of preventing that return. We ended with the suggestion that, in theory, the Kantian argument is nonetheless consistent with minor modifications to the principle of necessity. As a matter of moral theory, the chapter concludes that the optimal point of efficiency may allow for slightly more regulation than is currently embodied in the principle of necessity. It is therefore possible to imagine a situation in which non-​lethal measures should sometimes be considered. The goal of making war more humane is a laudable one. However, there are limits to the humanitarian project because war is not, nor will it ever be, an exercise in domestic law enforcement. Although this insight is an old one, the connection between this point and the principle of necessity is sometimes lost on international lawyers. And the connective tissue between these points is provided by Lieber’s argument that sharp wars are brief. The humanitarian project is inherently constrained, at the outer limits, by the very notion of warfare—​the idea that the killing of soldiers has replaced the killing of civilians as a procedure for determining the outcome of geopolitical disputes.73 If soldiers are prohibited from attacking each other, the entire “war convention” might collapse, with the result being a moral disaster—​a return to total warfare and the targeting of civilians. Reforming the principle of necessity is certainly an important goal, but incrementalism remains the best approach. A radical reworking of the principle of necessity risks being ignored completely by major military powers. For the law of war to work effectively, it must push military nations gently towards compliance.

73   See generally James Q Whitman, The Verdict of Battle: The Law of Victory and the Making of Modern War (Harvard University Press 2012).

7

3 Humanity, Necessity, and the Rights of Soldiers Larry May Every human being has human rights. Those who are soldiers are human beings. So, soldiers must have human rights. But this is not the end of the story. Soldiers are not types of humans—​rather, “soldier” is a role that humans can occupy. And a role is not a human and hence cannot have human rights. True, the human being occupying a role has human rights. But soldiers, per se, do not have human rights. There is a difference between asking whether those who occupy the role of soldier have human (or other) rights, and asking whether soldiers per se have human rights. I shall argue that even though there is an important difference between human rights and humanitarian role-​based rights, the humanitarian rights of soldiers should be seen to be much more significant than is normally acknowledged, as when soldiers are called mere cannon fodder. In this chapter, I will argue that we need to give more attention to, and support for, an expanded range of the rights of soldiers. In both morality and law, it is still common to say that soldiers’ lives do not count for very much in assessments of whether or not a particular war or armed conflict is justifiably initiated and conducted. Even for those philosophers and lawyers who believe that soldiers forfeit some of their most basic rights, such as the right to life, the humanitarian rights of soldiers should be seen as nearly as strong as those of civilians. Specifically, I argue that soldiers should be acknowledged to have the humanitarian right not to be killed unnecessarily. Such a right is granted in many domestic contexts, even to those who are criminals. Yet there is an oddity in that many moral and legal theorists grant greater rights to fleeing bank robbers than to soldiers who are simply trying to do their jobs. I will reflect on what the categories of humanitarianism and dignity entail when understood in the context of armed conflict—​where taking a soldier-​centered perspective is the overarching viewpoint, since soldiers are the ones most directly affected by armed conflict. Also, I will argue that military necessity is best conceived as a form of practical necessity. I will argue for a strengthening of the principle of military necessity, so that a soldier’s life can only be taken if it is practically necessary to achieve a needed military objective. I shall argue that if, during armed conflict, civilians have very extensive rights qua civilians, it would be odd for soldiers, qua soldiers, not to have extensive rights in armed conflict as well. I will then set out a new way to understand humanitarian norms that is in keeping with the idea that the humans who are soldiers should be treated with at least minimal dignity. But the rights of soldiers may not be properly human rights, or at least not understood in the unrestricted way in which human rights often are understood. Instead, I shall support the need for an expanded view of humanitarian rights that takes account of soldiers’ unique vulnerabilities. Humanity, Necessity, and the Rights of Soldiers. Larry May. © Larry May, 2017. Published 2017 by Oxford University Press.

78

Humanity, Necessity, and the Soldiers’ Rights

78

1.  Humanity and Humaneness 1.1 Humanity and humane treatment The main focus of this section of the chapter is to delineate the ways in which humanity can be understood, as a prelude to understanding some key moral and legal concepts today that are derived from the ideas of the human and humanity—​namely, humaneness, humanitarianism, and human rights. I will then argue for a change in the way that necessity is understood, as well as for a corresponding right for soldiers not to be killed unnecessarily. “Humanity” is perhaps most basically a shorthand way to refer to all humans, or alternatively to the special characteristic that makes humans what they are. Both etymologically and conceptually, humanity also refers to the characteristic (genetic, family resemblance, etc) feature of those who are members of the group “human.” Being human is what is characteristic of all individuals called humans. How humans are indeed identified is not an easy matter to articulate in a simple formula. Genetic characteristics are perhaps the simplest, but identification by one member or another is rarely made on the basis of genetic composition, or at least not on this alone. Rather, humans are identified on the basis of appearance and other recognizable features, such as the ability to speak a language. Bernard Williams has argued that humans interact by using language in an especially sophisticated way, and these interactions enable them to engage in joint projects in a wide variety of forms. These institutional features of humanity point toward the characteristic of “intentionality,” which humans display more than any other animal species. The use of language and the construction of dwellings is so complex and varied as to suggest a different inspiration than instinct.1 Intentionality is itself very hard to characterize without making many controversial assumptions. But there is a sense of acting intentionally that is relatively uncontroversial in its application to humans. Humans can solve complex problems that require months or even years of goal-​directed activity. Humans can engage in “campaigns,” such as military campaigns, that bring very large numbers of fellow humans together in intricate arrangements, interacting with often highly complex technology, both for good as well as for bad ends. Humanity is also a value and an ideal. Humanity is often referred to as a kind of principle, where the principle of humanity is the principle that all humans are deserving of respect because of the dignity that is found in each member of humanity. Dignity has been variously understood to be grounded in the idea of a will or soul that is unique to humans among all other creatures and is of ultimate value. Humans were seen to be special because they could do something that no other creature could do, and this was something that had high instrumental value—​namely, thinking and problem-​solving.   Bernard Williams, Making Sense of Humanity (Cambridge University Press 1995), 79–​80.

1

79



Humanity and Humaneness

79

The concept of humanity has had an increasingly prominent role in the origination and justification of legal institutions. The most significant of these contemporary legal institutions is the United Nations. The Preamble of the Charter of the United Nations says: We the People of the United Nations determined • to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and • to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and • to promote social progress and better standards of life in larger freedom.2 This pre-​eminent international legal institution declares as its grounding idea faith in human rights and dignity. This founding goal has proven to be more important than the first mentioned goals, namely, to end war or to promote social progress. In addition to the United Nations, and quite a bit earlier, the idea of humane treatment during war was espoused at least as early as Hugo Grotius’ seminal work De Jure Belli ac Pacis (1625).3 Humaneness is the idea that people should act toward one another with restraint, especially with the restraint that would come from being compassionate or having sympathy for another person’s plight. This idea was especially significant in the development of the laws of war that would restrain activities that could bring suffering to soldiers and civilians alike. The idea of humaneness spawned another idea that is at least as significant, especially today—​the idea of humanitarianism. Humanitarianism is the idea that people should be ready to go to one another’s aid when human need exists due to such events as famine, natural disaster, or war. Michael Walzer has recently described humanitarianism as a “two in one, a gift that we have to give,” combining aspects of charity and duty in a single concept.4 Humanitarianism is the key concept in the institutions that deal with relief efforts after major catastrophes such as civil wars or typhoons. And humanitarianism has been especially prominent in discussions of whether there is a duty on states to go to the aid of people in other states who are being abused by their states. The term “humanitarian intervention” has been coined to refer, in particular, to military operations to stop a civil war or an atrocity. The idea of humanitarianism is also the guiding idea behind such organizations as the International Committee of the Red Cross and Doctors without Borders. These groups send their members into some of the most inhospitable situations in order to minister to fellow humans who have become incapable of providing for their own needs or fending for themselves. These organizations support human staff members who put themselves at great risk in order to help those who are especially vulnerable

  Preamble, Charter of the United Nations (1945).   Hugo Grotius, De Jure Belli ac Pacis (1625) (On the Law of War and Peace) translated by Frances W Kelsey (Clarendon Press 1925). 4   Michael Walzer, “On Humanitarianism,” (2011) Foreign Affairs, vol 90, 69. 2 3

80

80

Humanity, Necessity, and the Soldiers’ Rights

to death or great suffering.5 And the staff of these humanitarian organizations put themselves at such risk simply because there are other humans who are in dire need—​ not people they know, but total strangers, often living in areas as distant from the aid workers’ home countries as possible. And the connection between these people who give and those who receive aid is merely that they are fellow humans, where human vulnerability is one of the key things that brings them together. In addition, the idea of humanity has spawned an even larger source of contemporary institutions: the idea of human rights. Human rights are rights that individual humans have by virtue of being human. The proliferation of human rights institutions has fueled some of the interest in figuring out what it means to be human, such that one could have rights simply by satisfying the conditions for being human. Here there is a clear move to connect the descriptive status of being human with a normative status, being the bearer of rights. As we will see as this chapter proceeds, humanity is also importantly talked of as a principle: “the principle of humanity,” which stands in opposition to the military necessity of winning a battle or a war. The principle of humanity, while controversial, reminds us that the people whose lives are taken in battle are humans who have dignity that must be respected. Yet, the question that emerges is whether humans can intentionally kill other humans during war and still respect each other’s dignity as humans. This will be the overarching puzzle that this chapter aims to solve. The proposal I  will be defending was seen by early just war theorists who discussed the principle of necessity in jus in bello contexts. Aquinas held that “if a man in self-​defense uses more than necessary violence, it will be unlawful.”6 Hugo Grotius famously regarded the principle of necessity as a strongly restrictive principle: “War in defense of life is permissible only when the danger is immediate and certain . . . The danger again must be immediate (praesens) and imminent (hic).”7 And a bit later in the text, Grotius adds: “I maintain that he cannot lawfully be killed, either if the danger can in any other way be avoided, or if it is not altogether certain that the danger cannot be otherwise avoided.”8 Over the centuries the principle of military necessity has been considerably weakened with respect to the killing of soldiers. I will be defending a return to the Grotian understanding of the principle of necessity.9

1.2  Human rights and role-​based rights The crucial feature of human rights is that they attach to every human person regardless of role or situation. And on many accounts, human rights also have the feature of being absolute or near-​absolute norms—​they cannot generally be overridden by even very compelling moral considerations. As Ronald Dworkin has argued, rights 5  See Michael Barnett, Empire of Humanity:  A  History of Humanitarianism (Cornell University Press, 2011). 6   Thomas Aquinas, Summa Theologica, II-​II, Qu. LXIV, Art 7, translated by Fathers of the English Dominican Province, Benzinger Bros, 1948, 1465. 7 8   Grotius (n 3) 173.  Ibid 175. 9   For a defense of the more restrictive notion of military necessity see Jens Ohlin, “Sharp Wars Are Brief,” in this volume.

81



Humanity and Humaneness

81

are trumps in that most other consequentialist considerations are trumped by claims of rights.10 But even for Dworkin there are different types of rights that have different weights, even though the general category of rights is best understood as having overriding status when in conflict with consequentialist considerations. Role-​based rights, in contrast to human rights, are not only restricted to the class of people who occupy a certain role, say that of doctor or lawyer, but role-​based rights also are not well described as trumps against all consequentialist concerns. Instead, calling something a role-​based right is primarily a means of indicating that that right is highly restricted both to its class of possible holders as well as to its reach or extent. Nonetheless, role-​based rights are such that they will override certain consequentialist considerations within the context of the specific circumstances where they apply. A lawyer’s right to maintain the confidences of his or her client trumps most specific consequentialist considerations concerning the good of such a disclosure, but this is not true of all consequentialist considerations, for instance when someone’s life is at risk by non-​disclosure. Role-​based rights and human rights can resemble each other, if those that occupy a given role are, or could be, nearly any human. It is my view that role-​based rights of soldiers are of this sort. While it takes special training to be a soldier, very many humans could be trained to be soldiers. This is different from those who are lawyers or doctors, for instance. Most people could not become doctors or lawyers because of the highly specialized skill that is involved and which is not something that it is easy, or even possible, for many people to learn without already having a special aptitude for it. Of course, the humans who occupy these various roles have human rights, but as “doctors” or “lawyers” they have role-​based rights that differ in significant ways from their human rights, and role-​based rights also differ among the various roles that a person can assume. I do not mean to diminish the importance or level of skill required to occupy the role of soldier here. Boot camp, where people are put through very rigorous physical training, is certainly not something at which everyone could succeed. But a very large percentage of the human population could succeed at boot camp and become competent soldiers, as was seen in the two world wars of the twentieth century, where very high percentages of people in many very diverse societies were transformed into reasonable soldiers in times of need. In this sense, most people could fill the role of soldier, in ways that are not true of other important roles. So, the range of application of some role-​based rights that resemble human rights in terms of their extent, such as that of soldiers, is different from that of most role-​based rights, and closer to the range of application of human rights than is true of most role-​based rights. Even as the range of some role-​based rights is nearly as extensive as that of human rights, these role-​based rights still can be distinguished in terms of their overridingness. All role-​based rights are restricted in terms of the range of what they can trump or override. Typically, role-​based rights only trump other, primarily consequentialist, concerns involving matters having to do with the role. In the case of human rights, by

  Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1976), ch 7.

10

82

82

Humanity, Necessity, and the Soldiers’ Rights

contrast, the domain over which these rights are trumps is considerably larger than is the case for role-​based rights. Indeed, as the domain over which role-​based rights operate increases, the corresponding overridingness will increase as well. Soldiers’ role-​based rights are grounded in two conditions: the status of being a soldier and the value of having people serve in that role, on the one hand, and the various vulnerabilities that attach to those who occupy the role of soldier, on the other hand. While this will be explained in much more detail in Section 2, let me here just say that the kind of vulnerabilities that soldiers are exposed to by occupying their role is also closer to that of those who have human rights than many other role-​based rights holders. The vulnerabilities experienced by soldiers are similar to the vulnerabilities experienced by all humans who are exposed to situations of war and armed conflict. By this I  mean that situations of war or armed conflict are artificially constructed situations that expose anyone in the area to extraordinary threats to life and liberty, although soldiers also have unique vulnerabilities here because of their role. In just war theory, civilians’ vulnerabilities during times of war or armed conflict have been well recognized. Indeed, most of the traditional rules of war in humanitarian law have followed ideas in the just war tradition, in that they are aimed at providing protection for vulnerable civilians caught up in the effects of war. But soldiers are not often thought to be vulnerable in the same way civilians are, since soldiers carry weapons and have specialized training in self-​defense not normally available to civilians. Indeed, rules such as those propounded by the International Committee of the Red Cross, especially the Geneva Conventions, are generally aimed at the protection of civilians who happen to take a direct part in armed conflict, or to soldiers who are no longer in battle because they have surrendered or become incapacitated by their injuries, not strictly the soldiers who participate in armed conflict. Nonetheless, in what follows I will argue that it is a mistake to disregard soldiers’ increased vulnerabilities in armed conflict and I will argue that we should extend to soldiers protections that are normally only afforded to civilians who are involved, or even just caught up, in armed conflict.

1.3  Humanitarianism and human dignity The rights of soldiers are often described in international law as humanitarian rights. By this is meant, in part, the right to be treated humanely—​where a soldier is not supposed to be subjected to unnecessary or overly severe treatment, even as it is generally acknowledged that in many situations soldiers can be killed without violating their rights. And in this sense, it is odd that humanitarian rights of soldiers are often defended on grounds of dignity, since there are at least two major dignity considerations that would seem to apply to armed conflict. The first is how a soldier is treated in terms of his or her suffering, and the rules or laws of war have addressed this directly with what I consider to be proper restraints on tactics and weapons used during war. But the second aspect of the dignity of soldiers concerns how the right to life is regarded. For human beings generally, the right to life is normally thought to be the most significant of the human rights, rather than the right not to suffer—​ although certainly these two rights are very close to the top of any rights hierarchy.

83



Humanity and Humaneness

83

But traditionally a soldier in armed conflict is thought to have a much more heightened right not to suffer than a right to life. And the question is whether this is consistent with calling the rights of soldiers humanitarian. As I said, the label “humanitarian” makes reference, among other things, to the idea of certain types of treatment being humane. In this sense, someone can be executed humanely even though that person is being intentionally killed. Here humaneness is seen as equivalent to “not cruel” or “not unnecessarily causing suffering among humans.” And these are laudable goals. But the question is whether promoting human dignity is exhausted by this relatively narrow understanding of humanitarianism. Why do humanitarianism, and its cousin humaneness, not call for respecting the soldier’s right to life? Or if soldiers should not have their right to life protected, are there not still related special rights that need to be recognized so that the dignity of soldiers can be protected? It seems to me that the notion of humanitarian rights should extend beyond what is called for from a concern that people are humanely treated, in the narrow sense of not suffering unnecessarily. In some respects all humans should be treated humanely, that is, they should be treated in a way that does not cause unnecessary suffering for them. But there are other special rights that are important for the protection of human dignity. Later, I will explore the topic of the specific types of rights during war in more detail. Here I wish to begin to defend the general idea that dignity might require taking account of special roles and circumstances of humans beyond what is required for protecting the dignity of all humans. Humans, qua humans, are vulnerable in many ways. As David Hume once pointed out, if humans had hard shells, like some other creatures, they would not be so vulnerable to so many kinds of bodily injury.11 If humans had a stronger sense of smell, they would not be vulnerable to factors that cause impaired vision since they would be better able to compensate for loss of one sense by the use of another. Humans are also uniquely intentional creatures whose dignity, or worth, is largely associated with the higher mental faculties. The Merriam-​Webster Dictionary says this about dignity: “a way of appearing or behaving that suggests seriousness and self-​control.” It is the self-​ control of the will associated with humans, and paradigmatically so, that makes them uniquely vulnerable to factors that would impair the ability to exercise their intentional decision-​making. Kant famously put the dignity of humans at the center of his moral philosophy. Here is a passage from his Metaphysics of Morals, Part II: But man as a person, i.e., as the subject of a morally-​practical reason, is exalted above all price. For such a one (homo noumenon) he is not to be valued merely as a means to the ends of other people, or even to his own ends, but is to be prized as an end in himself. This is to say, he possesses dignity (an absolute inner worth) whereby he exacts the respect of all other rational beings in the world, can measure himself against each member of his species, and can esteem himself on a footing of equality with them.

11   David Hume, A Treatise of Human Nature (1739), edited by L A Selby-​Bigge (Oxford University Press 1888).

84

84

Humanity, Necessity, and the Soldiers’ Rights

The humanity in one’s person is the object of the respect which he can require of every human being, but which he must not forfeit.12

For Kant, human dignity is the value of a human life as an end in itself. This value is premised on the idea that humans have a noumenal life, a certain kind of higher mental capacity including intentionality, which distinguishes them from all other animals.13 Interestingly, Kant does recognize that a person can, to a certain extent, forfeit his or her dignity—​primarily by not fulfilling his or her moral duties. And many of these duties are grounded in showing respect for other humans as themselves having dignity in their humanity. Kant says that he has in mind the person who attempts suicide. So, we should be reluctant to jump too quickly to draw conclusions about the case of a soldier who takes up arms. Indeed, there is no reason to think that Kant has in mind that a soldier forfeits his or her dignity, because it is not immediately evident what duty it is that the soldier violates. Indeed, it is somewhat notorious that serving in the military is often associated with paradigmatically doing one’s duty, rather than failing to do one’s duty. To treat people with dignity is to treat them as responsible agents. This means that we should not ignore the bad things that a person does, just as we should not ignore the good things that a person brings into the world. A society can punish a person and still respect that person’s dignity; and a society might even be able to execute a person and still respect that person’s dignity, if the means of execution minimizes suffering. It has sometimes been thought that in such cases, the society not making the person suffer unnecessarily is sufficient for it to show that it still respects the person’s dignity. But I have been suggesting that a person’s capacity for suffering, while important, is not the source of that person’s dignity. From a Kantian perspective, and from other deontological perspectives, humanitarianism means more than not making people suffer unnecessarily—​the life of the person also needs to be taken seriously. In international law there is a movement in favor of strengthening the principle of humanity so that the domains of international humanitarian law and human rights law come closer together.14 Yoram Dinstein has challenged the idea that there is a principle of humanity that is similar to the principle of distinction or the principle of proportionality. Instead he argues: There is no overarching, binding, norm of humanity, that tells us what we must do (or not do) in wartime. What we actually encounter are humanitarian considerations . . . these considerations do not by themselves amount to law: they are meta-​ juridical in nature  . . .  If benevolent humanitarianism were the only factor to be

12   Immanuel Kant, “The Metaphysics of Morals, Part II: Metaphysical Principles of Virtue” (1797), in Immanuel Kant’s Ethical Philosophy, translated by James W Ellington (Hackett Publishing Co 1983), 97. 13   It should be noted that while I often appeal to Kant in this chapter I do so not because I am convinced that Kantianism is the best normative moral theory, but because Kant best captures the idea and importance of dignity, which itself has been crucial to contemporary debates about human rights as well as humanitarian considerations. 14   See Kjetil Mujezinovic Larsen, Camilla Guldahl Cooper, and Gro Nystuen (eds), Searching for a “Principle of Humanity” in International Humanitarian Law (Cambridge University Press 2013).

85



Humanity and Humaneness

85

weighed in hostilities, war would have entailed no bloodshed, no human suffering, and no destruction of property; in short war would not be war. IHL [International Humanitarian Law] must be predicated on a subtle balance—​and compromise—​ between conflicting considerations of humanity, on the one hand, and the demands of military necessity on the other.15

We find a major international legal theorist supporting the idea of balancing, even recognizing that combatants should be protected in such a balancing, and yet not willing to move away from the traditional idea that soldiers’ right to life counts for very little. There certainly is legal precedent for seeing a principle of humanity as a strong principle in international law. I would cite a decision by the High Court of Israel in 2005. Here the Israeli court held that terrorists needed to be treated humanely. The High Court held that “a civilian taking part in direct hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed.”16 Previously in this chapter, I also cited the ICRC and the ICJ. The idea is gaining strength that not only human rights norms but also a principle of humanity should be held to be applicable to soldiers and other combatants. Last, let me cite the famous Martens Clause, originally appended to the 1899 Hague Convention and often incorporated into other international law documents, which holds as follows: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of public conscience.  17

As Dinstein and others have pointed out, the reference to the “principles of humanity” is rather vague and not defined. Yet the principle of humanity has become an entrenched part of international law. The principle of humanity overlaps with various human rights principles, but I would suggest that we keep the idea of humanitarian rights separate from human rights during armed conflict. As I argued at the beginning of this chapter, the rights of soldiers should be seen as role-​based rights, since soldiers are not humans standing alone but humans occupying a specific social role. The rights and dignity afforded to fellow soldiers, as soldiers, are not the same as the more general rights and dignity afforded to fellow humans. The principle of humanity in wartime carries with it the idea of humanitarian rights, not yet full-​scale human rights. Yet, the humanitarian rights of soldiers should be expanded from the traditional model of understanding humanitarian law. And a minimum of dignity should be afforded to those who occupy the role of soldier.   Yoram Dinstein, “The Principle of Proportionality,” in ibid, 72, 73.   Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel, ILDC 597 (IL 2006), para. 40. 17   See the Preamble to the 1907 Hague Regulations; all four Geneva Conventions of 1949; the Preamble of the 1977 Additional Protocol II; Art 1 para 2 of the 1977 Additional Protocol I; and the Preamble of the 1980 Conventional Weapons Convention. 15 16

86

86

Humanity, Necessity, and the Soldiers’ Rights

1.4  Dignity and vulnerability At this stage, we have two important concepts on the table: vulnerability and dignity. Before moving to Sections 2 and 3 of this chapter, which deal with more specific issues in the morality and legality of war, in this brief section I wish to explore the relationship between these two concepts that are so important in understanding the rules and laws of war. One issue, explored in this section, is that humans are especially vulnerable because they have the ability to choose how to live their lives and are not constantly driven by instinct and other forces of natural necessity. A person’s ability to choose how to lead their life is at the center of both one’s dignity, understood as one’s ultimate worth (“beyond price,” as Kant put it), but also one’s uniquely human vulnerability. The ability to make choices concerning how one wants to live one’s life has both positive and negative aspects. The positive aspect is obvious—​humans are the only creatures that have this capacity, and it allows them to form intentions and act on those intentions to create short-​term and long-​term, individual and coordinated enterprises, as I discussed earlier. The negative side of making choices is that the human person is accountable for what he or she does in ways that are not true of the creatures that lack this ability. And so if humans make bad choices they are vulnerable, in that they are responsible for the consequences of those choices, such as the death of other humans. In the context of war, this vulnerability is often described in terms of being liable to punishment, or even liability to be harmed or killed, because of what they have chosen to do on the battlefield. Vulnerability for bad, or good, choices is especially important in the context of war and armed conflict. Even in cases of conscription, a person makes a choice as to whether to resist or not. In cases of volunteering for military service, the person is responsible for what results from such a choice. The human person cannot claim to be relieved of liability, or even from responsibility due to natural necessity, the forces of natural instinct, etc, which would be the motivator for non-​human animals. And even in cases of volunteering for military service, we must investigate what considerations moved the person to volunteer. In some cases, the “volunteer” may have felt compelled by economic or family circumstances to join, seeing no other reasonable options at that point in his or her life. And similar things can be said about those who are conscripted. The severity of the consequences for resisting conscription will matter. In some cases, the penalty for resisting conscription may be so low that acquiescing to conscription is closer to being a volunteer than was the case in some cases of “volunteering” where there was intense pressure to enlist but no conscription. In addition, part of a human’s vulnerable nature is that he or she can lose the capacity for choice through a myriad of injuries that would not be nearly so catastrophic if experienced by non-​human animals. Head injuries are especially likely to affect capacity for choice, and yet humans are not well protected by nature in their heads. And once one realizes that the center of dignity for humans is connected to choice over how to live one’s life, there is a sense that humans are vulnerable to certain kinds of injury, because those injuries affect choice and hence also the dignity of these humans. The dignity of humans is not exhausted by considerations of their choices—​the sheer capacity for choice, rather than the actualization of choice, may be sufficient

87



Humanity and Humaneness

87

for establishing the minimal dignity of a human life. But as one loses one’s ability to choose, there is a diminishment in the kind of dignity that Kant spoke of, and that has animated most discussions of this topic, including those at the time of the drafting of the United Nations Charter. Dignity is also affected by a loss or diminishment of one’s ability to make choices for the better in one’s life. Soldiers who return from battle and who are “shell shocked” or suffering from post-​traumatic stress disorder often feel incapable of making decisions about how to make their lives better.18 In addition, returning soldiers often have trouble adjusting to the mundane decisions of ordinary life after having spent a long time in a realm where all choices seemed extraordinary and consumed with basic survival. Here again dignity, as understood in first-​personal terms, is affected by vulnerabilities that are exacerbated by wartime situations. Not all people who experience combat are adversely affected in the ways I have been indicating. What is important, though, is that anyone in combat is much more at risk of being so harmed than they normally would be, due to the vulnerabilities that all humans have by virtue of being human. So, while soldiers qua soldiers should not be said to have general human rights, the special rights they have by virtue of their roles will warrant strong protections, even if the protections are not as sweeping as such things as the absolute human right to life. It is in these ways that we can begin to see how vulnerability and dignity are linked, especially in the context of war and armed conflict. In Section 2 of this chapter I will discuss how the dignity and the vulnerabilities of humans affect how they are treated in terms of their human and humanitarian rights. These rights are supposed to protect people in the most vulnerable of circumstances. Yet, as we will see, humanitarian rights in particular have not lived up to the promise of protecting some of the most vulnerable during war, namely soldiers and other combatants. Humanitarian rights protect the dignity of people, especially those who are in precarious situations in terms of vulnerability. This is because sentience is not the key consideration for human dignity. Humans are not unique in being able to suffer—​ many non-​human animals can also suffer. Rather, humans are unique in terms of the capacity for intentional acts of willing, and it is the denial or abrogation of that feature that would be a paradigmatic assault on a person’s dignity. It is true that a human can experience suffering more deeply in some cases than is true for a non-​human animal, because of the human’s capacity for self-​reflection. But even this characteristic is not unique to humans, and in any event is not at the core of a human’s dignity, the person’s ultimate worth. For dignity to be respected for those who assume certain highly vulnerable roles, there must in most cases be some specific right that is recognized and granted special protection in a given society. The reason for this is that there must be something dignity-​enhancing that offsets the dignity-​diminishing situation. The prisoner who has had his or her liberty restricted has had a dignity-​diminishing experience. And while punishment may be justified in a host of ways, including retribution, deterrence,   See Nancy Sherman, Stoic Warriors (Oxford University Press 2007).

18

8

88

Humanity, Necessity, and the Soldiers’ Rights

expressivism, etc, in addition there must be something dignity-​affirming that would not normally be extended to persons who are not imprisoned. Instead, what often happens is that the prisoner is treated in multiple ways that are dignity-​diminishing, or there is no special consideration given so that the dignity of the prisoner is affirmed even as his or her liberty is restricted. Some might argue that the prisoner has waived or forfeited his or her right to liberty.19 Even if this were true (which I would deny), the prisoner, or soldier, remains a human being whose dignity should not be unalterably transformed unless the person has somehow ceased to be human. I will have more to say about the forfeiture idea later. Here I merely wish to point out that even those who hold a forfeiture theory of rights, for the prisoner or soldier, need a separate argument to show that the person has forfeited the right to be treated, in whatever way that person is treated, as a person with dignity. The problem that I wish to investigate in Section 2 is how to understand the principle of military necessity in light of the dignity and vulnerability of soldiers. In Section 3, I will then look specifically at the right not to be killed unnecessarily and the moral status of soldiers in a revised understanding of humanitarianism. Even those who seem to forfeit their rights temporarily must still be treated as persons having at least minimal dignity. The soldier, unlike the suicide-​attempter, is not attempting to forfeit human rights forever. And so, while it might be true (although I think it is not) that someone who joins the military may forfeit some human rights temporarily, this certainly does not give others the right to treat the soldier as if the person occupying this role does not have dignity. As I will argue, while a person might forfeit certain rights, it makes little sense to say that a person would ever forfeit their dignity by joining the military. We must think about what limits remain on what can be done to a soldier despite, or perhaps because of, the soldier’s participation in armed conflict.

2.  Necessity and Humanitarianism 2.1 The concept of necessity The idea that one should only use lethal force when it is necessary is one of the most important concepts in the humanitarian restrictions of action during war or armed conflict. Yet for centuries necessity has been understood in the rules and laws of war in terms of “military necessity.” For many theorists and practitioners, the concept of military necessity has little to do with the common-​sense understanding of necessity. Rather, military necessity means simply that there is some goal that a commander is pursuing, and that goal has some clear connection to the winning of a particular battle and the overall winning of the war. In this section, I wish first to give a sense of the different relevant meanings of the term “necessity” in debates about the humanitarian treatment of soldiers and civilians. But I will also argue in this section that the kind of necessity that warrants extraordinary treatment of various persons for a military 19  See Christopher Heath Wellman, “The Rights Forfeiture Theory of Punishment” (2012) Ethics 122(2), 371–​93.

89



Necessity and Humanitarianism

89

objective is not the right kind of necessity to justify suspending or abrogating the humanitarian rights of the soldier. To highlight the issue, let me give several examples of attempts to explain what military necessity consists in. I begin with two judgments from the post-​Second World War trials of Nazi German officials, where somewhat different standards of military necessity are set out. First, consider the Hostage Case. The American military tribunal rejected the argument of the legality of reprisal killings of civilians, describing the general principle of military necessity and then its limits: Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war.

Notice that this statement of the principle of military necessity does not set limits on the use of force needed to kill enemy soldiers, as long as those deaths are “incidentally unavoidable” to achieve military objectives. The term “incidentally unavoidable” bears some relationship to the common-​sense understanding of necessity. If something is unavoidable then it is fair to say that it is necessary, and necessity here seems to be an appropriate label. But the qualifying term “incidental” raises suspicions that military necessity here is not really necessity as it would be understood in common parlance (or by metaphysicians, as we will see in Section 3). Something can be “incidental” in that it is part of one way of accomplishing something, not the only way to accomplish the objective, as would seemingly be true if it were really necessary. Yet there is a second part of the Hostage Case in which it is made clear that military necessity protects civilians and civilian property more strictly than it protects the lives of soldiers. Military necessity does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war . . . There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.20

Here we have the words “imperatively demanded” rather than “incidentally unavoidable,” signaling that civilian life and property is to be valued more highly than the lives of soldiers, since “imperatively demanded” is much closer to the common-​sense meaning of necessity than “incidentally unavoidable.” Another case from Nuremberg uses different language from either of these parts of the Hostage Case. In the German High Command Case, military necessity is described as follows: 20   United States v List (The Hostage Case), Case No 7 (February 19, 1948), reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1950), 1253–​55. For a comment on this passage see Michael N Schmitt, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance” (2010) Virginia Journal of International Law 50(4) 795–​839.

90

90

Humanity, Necessity, and the Soldiers’ Rights

A bare declaration that what was done was militarily necessary has no more probative substance than a statement contained in an answer or other pleading. In order to make out a valid defense of destruction or pillage on the ground of military necessity, the defendant must prove that the facts and circumstances were such at the time he ordered these measures that he would be justified in believing them to be necessary to save his troops from an imminent disaster.21

Here we have an account of military necessity that is much closer to commonsense understandings of necessity. The situation has to be one in which, if lethal force were not used, the commander’s troops would suffer “imminent disaster.” The terminology employed in the German High Command Case sets the bar very high indeed, and seems to me to be quite close to what necessity should mean in military necessity if “necessity” were indeed the correct term—​that is, some type of practical or normative necessity, as explored in Section 3.  Notice the use of two terms. First, there is the idea that a disaster would ensue if the lethal action were not taken. We are not merely to contemplate accomplishing a military objective, only one that would save the lives of one’s own troops. And then there is also the term “imminent,” signaling that if this particular lethal action is not taken here, the lives of one’s troops will be lost. Third, in the just war literature, imminence, along with immediacy, has been employed for centuries to make sense of the principle of necessity in jus in bello considerations. As mentioned earlier, in Hugo Grotius’ great work, De Jure Belli ac Pacis, he says that “The danger again must be immediate and imminent.” 22 He follows this up by saying: “I maintain that he cannot lawfully be killed, either if the danger can in any other way be avoided, or if it is not altogether certain that the danger cannot be otherwise avoided.”23 There are three standards of necessity articulated here. The first is the “imminence” standard just discussed. The second is “immediacy,” the temporal equivalent of the spatial category of imminence. The third is the standard that there cannot be “any other way [the killing can] be avoided.” The “no other way” standard is stronger than either the “incidentally unavoidable” standard, where incidental is the modifier, or the “imperatively demanded” standard which seems to be restricted to civilian deaths. In Grotius’ view, military necessity is not incidental but central to incidents of war, and military necessity is not restricted to lethal action taken against civilians, as it was for both of the Nuremberg cases. Normatively, as we will see in subsequent chapters, Grotius’ standard for military necessity seems to be more defensible than either of the two standards of military necessity that we can find in the Nuremberg proceedings. I will say more about this issue in Section 2.2 as well as at the end of Section 3.2.24

21   US v Wilhelm Von Leeb and Thirteen Others (The German High Command Case), United States Military Tribunal, Nuremberg, December 30, 1947–​October 28 1948, reprinted in The United Nations War Crimes Commission, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 1949, Vol XII, 125. 22 23   Grotius (n 3) 173.  Ibid 175. 24   For much more discussion of Grotius and the various standards of necessity in Nuremberg cases see Jens Ohlin and Larry May, Necessity in International Law (Oxford University Press 2016).

91



Necessity and Humanitarianism

91

2.2  Military necessity as a form of practical necessity Let us next turn to several attempts to separate the various meanings of necessity in philosophical discourse in recent years. Kit Fine urges us to understand the varieties of necessity by beginning with logical necessity: “a proposition is necessary if it must be true.”25 He then divides logical necessity into two further categories:  narrow or broad logical necessity. In the narrow sense, a necessary proposition would be of the sort “red is red.” Logically necessary propositions are necessary because they are true by application of some law such as the law of identity, namely, a thing must be identical to itself. In the broad sense, sometimes called “metaphysical necessity,” we begin from the identity of things, where one thing is necessarily not another thing; a red thing is not also a green thing. Of somewhat more relevance for discussions of military necessity is what Fine calls conceptual necessity. “Conceptually necessary truths” are those that are logically “necessary relative to or conditional upon the basic conceptual truths.”26 I am especially interested in seeing necessity as conditional, since that is clearly the way that we must understand military necessity if this term is to have any practical meaning at all. In a sense, all necessities are conditional on something—​logical necessity is conditional on the laws of logic, and metaphysical necessity is conditional on the laws of nature. But conceptual necessity is somewhat different than these other two in that it can be relative to what a particular person’s conceptual framework is, although this is clearly not the usage Kit Fine has in mind. Fine is thinking about fixed, objective conceptual truths that are “perhaps given by the definitions of the concepts.”27 Yet, it seems to me, definitions are not utterly fixed in the way that logic or nature is—​i ndeed, to a certain extent, they can change every time a dictionary is updated. In the remainder of this section I will consider this idea, and in so doing hopefully make progress on ascertaining a plausible notion of military necessity. Of greatest relevance to our topic of military necessity is the category of “practical necessity.” Bernard Williams has posed a puzzle for the way in which we understand the necessity of doing something because it is our duty to do it. In his essay “Practical Necessity,” Williams is attempting to respond to a Kantian understanding of morality, where there are actions that are morally necessary for us to engage in, and where this takes on an objectivity that is independent of a person’s subjective standpoint. Williams says: It is worth mentioning that there are important second-​and third-​person uses of what is in effect, this ought, in contexts of advice or of discussion of what it is reasonable for an agent to do. So used, this ought also reveals itself to be relative, in a broad sense, to the projects, motives, and so on of the agent in question.28

25  Kit Fine, “The Varieties of Necessity,” in Tamar Szabo Gendler and John Hawthorne (eds) Conceivability and Possibility (Oxford University Press 2002) 253, 254; and reprinted in his book Modality and Tense: Philosophical Papers (Oxford University Press 2005). 26 27  Ibid 255.  Ibid. 28   Bernard Williams, “Practical Necessity,” ch 9 of Moral Luck (Cambridge University Press 1981), 125.

92

92

Humanity, Necessity, and the Soldiers’ Rights

Practical necessity is about what must be done, but where “must” is often relative to facts about the agent as well as facts about the external world. Williams makes two points that I believe are importantly relevant to discussions of military necessity. First, on the question of what one must do, he says: “It is very rarely the case that there is only one thing I can do . . . Usually, the alternatives are vastly more costly, or are excluded by some moral restraint.”29 He follows with this comment: The recognition of practical necessity must involve an understanding, at once of one’s powers and incapacities, and of what the world permits, and the recognition of a limit which is neither simply external to the self, nor yet a product of the will, is what can lend a special authority or dignity to such decisions.30

Here we come back to the idea of dignity. Practical necessity involves restraint of one’s behavior at least partially in conformity with what is morally or legally required, but also in consideration of what a person understands of himself or herself. Practical necessity, and I  want to say also military necessity, is based in both an external restraint and a subjective sense of what it is reasonable for a person to do. To return to the specific ways of cashing out the idea of military necessity, we can make progress in two respects. Remember the Grotian construal of military necessity that I endorsed above and that involves imminence and immediacy, as well as the third standard that there cannot be any other way in which the killing can be avoided. Our discussion of Kit Fine is relevant here in that we do not mean it is inconceivable in an objective sense of what is a conceptual truth, but in a somewhat subjective sense of what the commander takes to be conceivable in the circumstances. Indeed, as Bernard Williams argued, one must have a recognition of one’s own powers as well as what seems to be accomplishable in the world at the moment. In addition, even among the options that are conceivable, it is fair to rule out those that are vastly more costly than what one contemplates doing. We are not in the realm of logical or metaphysical necessity. Williams makes another point that will be important for our analysis of military necessity: if A wants X, and if it is true that if he wants X he must do Y, it does not follow that he must do y; that will follow only if , further, X is the thing that he must pursue. So, in the first person: if I conclude that I must do Y, then it is because I have come to see not just that it is the only means to some end I have, but that it is the only thing I can do.31

As we will see later, there is a double necessity in military necessity, understood in a morally plausible way. It needs to be necessary that I take this action to achieve this military objective; and it must be necessary that I achieve this military objective. And these assessments are to be made from the first-​person standpoint of the commander in a given situation.

 Ibid.

29

  Ibid, 130–​31.

30

 Ibid, 125.

31

93



Necessity and Humanitarianism

93

Military necessity, as a form of practical necessity, is the employment of objective legal standards by a person who must judge at the moment from a significantly subjective standpoint. Military necessity is a mixture of these objective and subjective factors, and cannot easily be reduced to merely one or the other perspective.32 So, the nineteenth-​century German doctrine of Kreigsraison, which saw military necessity as a matter of what is perceived by a commander to be needed to win an important battle and which overrules all legal restraints, is wrong in that it only considered one component of the practical necessity of military necessity.33 But the very strict standard of necessity that may be employed by a pacifist, and that takes no account of the subjective considerations of the commander at the moment, is also mistaken—​at least in part because it fails to understand what is reasonably conceivable in such situations. I will say more about this point in a later section.34 One more thought might be helpful as we try to get a preliminary sense of what a reasonable understanding of military necessity might entail. Kit Fine asks us to consider two claims of normative necessity concerning the claim that “every war is wrong.” For this might be meant in the sense that every war in the circumstances that actually prevail, is wrong; or it might be meant in the sense that every war, in whatever circumstances might prevail, is wrong. In the latter case, the claim is taken to be necessary—​to hold unconditionally, or in all possible circumstances; while in the former, the claim is not taken to be necessary, but merely to hold conditiona lly upon the circumstances that actually obtain. The distinction between accidental and necessary generalizations in nature is often drawn in terms of the ability to sustain counterfactuals.35

I think this distinction is quite useful for sorting out what is a reasonable understanding of military necessity. But the counterfactuals that should be employed do not ask about all possible worlds, only about possible worlds that very closely resemble our current world. I set out the argument for this position in Section 3.3. There may be a reasonable, and very strong, moral sense of necessity that asks about all possible worlds. But military necessity, as a concept of moral or legal necessity, cannot reasonably ask of a commander in a given situation that all possible alternative counterfactual situations be examined. It does, however, involve asking about many possible alternatives that are within the realms of what is conceived by the commander to be realizable. In this sense, military necessity does not merely require considering one or two alternatives, just as it does not require considering all possible alternatives. And when decisions are made that take into account a fairly rich set of alternatives there is also a sense, as Bernard Williams put it, that such decisions have a certain dignity that calls out for respect, just as such decisions must take many alternatives into

32   For a similar analysis of the principle of proportionality in armed conflict see Michael Newton and Larry May, Proportionality and International Law (Oxford University Press 2014), ch 2, s 5. 33   See Schmitt (n 20). 34   See Larry May, Contingent Pacifism (Cambridge University Press 2015). 35   Fine (n 25), beginning of s 4.

94

94

Humanity, Necessity, and the Soldiers’ Rights

account before using lethal force so that those against whom the lethal force is used are also treated as having dignity.

2.3  The ICRC and military necessity For a century and a half, the International Committee of the Red Cross has understood its role as protecting the dignity of soldiers in war and armed conflict. When the founder of the ICRC, Henry Dunant, stumbled onto a mid-​nineteenth-​century battlefield he was struck by how ill-​treated soldiers on both sides were, even by their fellow comrades. There were more veterinarians at the battle site than there were medical doctors, and the soldiers, unlike the horses, were often left to die horrible deaths for lack of medical attention. From Henry Dunant’s experience at the battle of Solferino, the ICRC was instituted with the specific mission of securing the dignity of soldiers’ lives even on the battlefield, where the lives of soldiers were constantly threatened.36 Modern international humanitarian law was also codified in the Geneva Conventions, in the home city of the ICRC. In 2009, the ICRC issued a controversial Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law. The most controversial and also most revealing recommendation is Part IX, which says this about military necessity: IX. Restraints on the use of force in direct attack In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.37

Notice the use of the term “actually necessary.” In what follows over the next few sections I will argue that this standard should be understood as the appropriate standard of military necessity. Another crucial component of the ICRC’s Interpretive Guidance made a seemingly strong point in saying: It would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force. In such situation, the principles of military necessity and of humanity play an important role in determining the kind and degree of permissible force against legitimate military targets.38

36   See David P Forsythe, The Humanitarians: The International Committee of the Red Cross (Cambridge University Press 2005). 37   International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Part IX: Restraints on the Use of Force in Direct Attack (ICRC 2009). 38  Ibid 82.

95



Necessity and Humanitarianism

95

The ICRC also cited Jean Pictet, one of its most important theoreticians, for the idea that if we can put a soldier out of action by capturing him we should not wound him, if we can obtain the same result by wounding him, we must not kill him, if there are two means to achieve the same military advantage we must choose the one which causes the lesser evil.39

The idea here seems to be that military necessity is to be understood in a very restrictive way—​that of “what is actually practically necessary”—​instead of the very expansive way in which military necessity was traditionally understood—​that of serving any legitimate military objective—​and would make this one of the chief documents to afford to soldiers what respecting their dignity seems to require. In the accompanying commentary, the ICRC makes the case for such a narrowed reading of the military necessity requirement: Loss of protection against direct attack, whether due to direct participation in hostilities (civilians) or continuous combat function (members of organized armed groups), does not mean that the persons concerned fall outside the law. It is a fundamental principle of customary and treaty IHL that “[t]‌he right of belligerents to adopt means of injuring the enemy is not unlimited.” Indeed, even direct attacks against legitimate military targets are subject to legal constraints, whether based on specific provisions of IHL, on the principles underlying IHL as a whole, or on other applicable branches of international law.40

Again, this document seems to say that even if the soldiers in question are your enemy and even if these soldiers are part of a force that is involved in a direct attack against your unit, what you can lawfully do, as a matter of military necessity, is greatly limited. What the ICRC here seems to be calling for, or what someone could argue in favor of, is the use of some human rights norms in battlefield situations—​a lthough it seems that the human rights understanding of necessity, often employed in speaking of domestic law enforcement situations in which a police officer is confronted by someone acting in a threatening way, is not quite what the ICRC has in mind when addressing the rights of those who directly participate in armed conflict. One could conjecture that the reason that the ICRC might be moving toward incorporation of something like human rights norms into a traditional humanitarian norm setting is that there is a need to support human dignity, and that the demand to respect the dignity of all parties during war seems not to be well supported merely by concentrating on the traditional humanitarian norm of military necessity. After much criticism, in 2012 the ICRC convened an Expert Meeting to reassess its policy statement of 2009. A report was issued in November of 2013 in which the ICRC raised doubts about how the 2009 Interpretive Guidance should be understood. While the 2013 report begins by saying that “it does not purport to provide the ICRC’s legal position on these issues,”41 nonetheless there seem to be significant differences 40  Ibid.   Ibid, Commentary on Part IX.   ICRC Report of the Expert Meeting, The Use of Force in Armed Conflict (Geneva, November 2013) v.

39 41

96

96

Humanity, Necessity, and the Soldiers’ Rights

between the 2013 Expert Meeting report and the 2009 Interpretive Guidance. This discrepancy can be seen in the following statement by an ICRC lawyer: “Killing combatants can be lawful in armed conflict unless there is manifestly no need to use lethal force, which is a pretty limited set of circumstances in armed conflict.”42 Here is a relevant passage from the 2013 ICRC report, “The Interplay between the Conduct of Hostilities and Law Enforcement Paradigms”: Under the law enforcement paradigm, the presumption is that State agents must arrest persons and not kill them on sight (i.e. “capture rather than kill”). It is only if the arrest is at risk, and if the person poses an imminent threat to life, that the use of lethal force is authorized as a last resort. Under the conduct of hostilities paradigm, the presumption is the reverse. In the ICRC’s view, a legitimate target may be killed at any time, unless it is clear that he/​she may be captured or otherwise rendered hors de combat without additional risk to the operating forces. This is so because “it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.” This fundamental difference indicates that the determination of the applicable paradigm is crucial.43

The ICRC appears now to be saying that it only defies notions of humanity to kill when one could capture an adversary if capturing had no additional risks, of any sort, for the soldier. Yet this view seems not to be obviously justified by reference to the principle of humanity, or, more importantly, to the principle of military necessity which we have been exploring in normative terms. If soldiers have forfeited their right to life, at least as it would normally be understood for civilians, I  will argue that there should be a heightened concern for how necessity is understood. In domestic law in many states, suspected criminals are treated as having forfeited the right to life or liberty, to at least a certain limited extent. But the police officer who would shoot at a fleeing suspected criminal has the burden of showing that shooting at the suspected criminal was (strictly practically) necessary. In the case of violating the suspect’s right to liberty, the police have the right to shoot to maim the suspect, and in the case of threats to the life of the police officer, the police can shoot to kill the suspect either to stop the suspect from fleeing or for the self-​defense of the police officer. In either case, with the goal of stopping the fleeing suspect or that of preventing the suspect from killing the police officer, the actions taken by the police must be necessary for accomplishing that goal, with no less violent means being a viable option that is reasonably conceivable by the police officer. It is my view that such a view can be defended as a matter of international law, as also applied to wartime situations and decisions by commanders, and I have attempted to do so.44 But in what follows I will offer a normative argument in support of linking the forfeiture of human rights by soldiers to a corresponding heightening of the necessity requirement. As I have mentioned already, traditional humanitarian norms have 42   Private correspondence with Gary D Brown, International Committee of the Red Cross, Deputy Legal Advisor, Regional Delegation for the United States and Canada, February 2014, on file with the author. 43 44   ICRC Report of the Expert Meeting (n 41) 17.   See Newton and May (n 32), Chapter 5.

97



Necessity and Humanitarianism

97

largely only protected soldiers from unnecessary suffering, although not from death. Such traditional norms also protected soldiers in cases of capture or disabling injury. But soldiers have not been protected in terms of the right to life while functioning as soldiers in war or armed conflict.45 There is, though, a serious debate on the matter, spurred by the ICRC Guidance about applying various rights protections to soldiers during war or armed conflict that have not previously been extended by international humanitarian law and the corresponding discussion among just war theorists of the moral rights of soldiers.46 The new understandings of necessity are meant to apply predominantly to the killing of noncombatants, but in my view they are clearly also applicable to at least some soldiers. If one focuses on protecting the dignity of people, it is hard to see how one can distinguish noncombatants who take a direct part in hostilities from combatants who operate in a similar manner. And while it is possible to distinguish the lives of combatants from those of noncombatants in many respects, the dignity of soldiers, at least in terms of the moral minimum that must be displayed so as not to deny dignity of a human, is on the same level for combatants and noncombatants. One thing this means practically is in a few cases it may be that the rights of combatants will outweigh the rights of noncombatants, perhaps in decisions about whether to send large numbers of soldiers into a civil war to try to stop what seems to be only a possibility of civilian loss of life. There have been several significant criticisms of applying this idea to soldiers. I agree that the ICRC Guidance should make us all rethink the rights of soldiers and that it is now imperative to do so given the changing character of war and armed conflict, which has blurred the distinction between combatants and civilians. In Section 2.4 I will discuss three of the most important of those objections to the possible new model that the ICRC may be supporting, or that someone could advocate inspired by the ICRC Guidance. I remain convinced that the overwhelming interpretation of the original 2009 ICRC Guidance was on the right track.

2.4  Objections to the reconfiguration of military necessity In this section I want to consider three objections to the ICRC view of restricting the right to kill during war to those killings that are strictly necessary for accomplishing a needed objective. The first two objections argue, from different standpoints, that the expanded notion of necessity goes too far, in that it makes armed conflict very difficult to justify in most cases. The third objection is that the ICRC has not gone far enough, in that dignity cannot truly be protected unless a more robust sense of human rights is made applicable to armed conflict situations. Jens Ohlin has argued that, as a matter of lex lata (the actual state of international law), the ICRC has little basis for its claims concerning how necessity should be

45   Ibid. For a discussion of the contrast between humanitarian norms and human rights norms, see Chapter 6 of this work. 46   See Gabriella Blum, “The Dispensable Lives of Soldiers” (2010) Journal of Legal Analysis 2, 69–​124, reprinted in this volume.

98

Humanity, Necessity, and the Soldiers’ Rights

98

understood in international humanitarian law, or even in the case where international humanitarian law and international human rights law both apply.47 Ohlin bases much of his initial argumentation on the Lieber Code, which in his interpretation permitted nearly all killing of combatants by other combatants during armed conflict. At one point he refers to the Lieber code as providing “the principle of necessity’s codified birth.”48 I largely agree with Ohlin, but primarily if we look at the Lieber Code and not at other legal documents at the time. The Lieber Code was only codified law for the Union soldiers during the US Civil War in the middle of the nineteenth century. If one were to search for another contemporaneous modern statement concerning necessity it would be better, in my view, to look at the St Petersburg Declaration, which speaks in terms of soldiers having the right to disable one another, not the right to deprive enemy soldiers of their right to life. In one of the first modern international statements of the rules of war in modern times, the St Petersburg Declaration stated: That the progress of civilization should have the effect of alleviating as much as possible the calamities of war;That the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy;That for this purpose it is sufficient to disable the greatest possible number of men;That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable;That the employment of such arms would, therefore, be contrary to the laws of humanity.

Notice that the proper aim of military operations is said to be to “disable the greatest possible number of men,” not to kill as many of the enemy as one can. And such a declaration was said to be important “in order . . . to conciliate the necessities of war with the laws of humanity.” Unlike the St Petersburg Declaration, the Lieber Code does more straightforwardly countenance killing during war: Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor . . . Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.49

Notice two things here. First, killing must be necessary for it to be legal. Second, the rules of war are thought to be intimately connected to what it means to be a moral soldier. Of course, there is also the “incidentally unavoidable” wording that was in the Hostage Case which I earlier criticized, although on normative grounds. The Lieber Code was drafted by Francis Lieber for the Union Army during the US Civil War. Lieber set out to diminish the carnage of war and to provide rules that

47

  Jens David Ohlin, “The Duty to Capture” (2013) Minnesota Law Review 97, 1268–​1342. 49   Ibid 1300. Also see Jens Ohlin, “Sharp Wars Are Brief,” in this volume.  Lieber Code.

48

9



Necessity and Humanitarianism

99

would be supported by legal practice and also by moral tenets. Military necessity was the key component of the rules of war. Yet, I would argue that for military necessity to make the most sense it should refer to what is non-​incidentally indispensable to do in order to achieve legitimate military objectives. Limiting military activities on the battlefield to those that are militarily necessary was the key to humanizing war. So, while killing could be justified by military necessity, there had to be a deliberative act concerning whether or not lethal force was strictly necessary that preceded the commander’s order to kill enemy soldiers. In addition, we should consider other limits posed by military necessity on tactics and weaponry by the Lieber Code. Military necessity does not admit of cruelty—​t hat is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

Again, note two things. First, note how extensive the rules are in terms of what is ruled out, contrary to some theorists’ characterization of the permissiveness of the Lieber Code. Second, from a normative perspective, note that there is a special consideration in the Lieber Code that deals with limitations based on jus post bellum considerations. Even if one thinks that other traditional rules of war do not need to be adjusted, one still might worry about the interpretations of the rules of war after war ends. Specifically, I am thinking of the way the mass killing of soldiers will sometimes make reconciliation much harder at the end of war. When the other side’s killing of one’s comrades is not seen to have been necessary, hostility will often be so intense as to last into the peace process after war ends.50 Ohlin maintains that in international humanitarian law today, “the general principle of necessity  . . .  allows prosecution of the war effort with maximum speed.”51 Other than making sure that soldiers do not employ cruelty, which “a rational actor would have little reason to pursue,” the attacking force does not need “to sacrifice more in order to comply with the principle” of necessity.52 Ohlin puts much weight on responding to skepticism in providing a history of the use of the term “military necessity,” which in his view is utterly antithetical to what the ICRC Guidance calls for. Yet, while I agree with Ohlin’s restatement of the lex lata rules of war, I think there are serious normative reasons not to embrace this standard today.53 It is odd to think that something called “the principle of necessity” would have so little to do today with any meaning of the word “necessity” available in the English language. In what follows in this section, let me offer some normative reflections on the ICRC Guidance and other documents that seem to support a new standard.

  See Larry May, After War Ends (Cambridge University Press 2012) ch 5. 52   Ohlin (n 47) 1301.  Ibid. 53   I am not suggesting that Ohlin would disagree with me about the lex ferenda or normative thesis of this chapter. 50 51

01

100

Humanity, Necessity, and the Soldiers’ Rights

First let me say that the idea of necessity in law has a host of meanings, perhaps the most significant for our purposes being the one concerning the restrictions on lethal use of force by police officers who are pursuing a criminal suspect. Here it is often assumed that the fleeing suspect has forfeited his or her rights and can be attacked, even lethally, if this is necessary to prevent the suspect’s escape or to protect the life of the police officer. Despite the suspect’s having forfeited his or rights, including the right to life, to justify shooting the fleeing criminal suspect, the police officer must establish that a rather strict level of necessity is met. One might think that capturing the fleeing criminal suspect would justifiably allow for “prosecution of the criminal justice effort with maximum speed.” Indeed, prosecuting someone for a criminal justice objective seems in many ways more important than prosecuting someone for a military effort or goal. Yet it is uncontroversial that the police must only shoot at all if it is necessary to stop the fleeing suspect, where necessity here is a fairly strict notion—​no other less violent means being available to achieve the objective. And even in cases where the safety of the police officer is in jeopardy, only that type of force can be used, again, that is strictly necessary to prevent the injury or death of the police officer. So, here is the problem. We extend greater limitations of necessity on fleeing criminal suspects than we do on enemy soldiers. Even if we assume what is often not true, namely that all enemy soldiers are engaged in collective wrongdoing, we still treat these soldiers worse than we treat criminal suspects who have been engaged in individual wrongdoing. The worse treatment, as I have been arguing, comes in terms of the standards of necessity that are employed if we follow the traditional international humanitarian law model. The reason for this disparity cannot be that the fleeing suspect is only suspected of doing wrong whereas the enemy soldier is known to be engaged in collective wrongdoing. Even the staunchest proponents of the international humanitarian law model would admit that it is often unclear whether a soldier is indeed engaging in culpable wrongdoing. In neither case has there yet been an authoritative determination of guilt—​the fleeing suspect has not yet been tried, and the enemy soldier is rarely serving on the side of a war that has been authoritatively declared to be unjust. The reason for the disparity also cannot be that soldiers participating in an unjust war have made themselves liable to attack and fleeing suspects have not, for many would agree that the suspect has indeed forfeited his or her rights by his or her intentional choice to join enterprises that are criminal in nature. And in other cases, the forfeiture of rights comes from the overwhelming evidence of having participated in wrongdoing that follows upon fleeing from the police. I do not subscribe to the forfeiture view of rights, as I have said. But the point I wish to make here is that even if one does subscribe to this view, it is difficult to claim that the enemy soldier has forfeited rights in a way that is more unfavorable to him or her than is true of the forfeiture of rights by a fleeing criminal suspect. A second objection to the view I have endorsed is that applying a strict notion of necessity to armed conflict situations will mean that very few wars can ever be justified. This concern is directed primarily at the jus in bello branch of just war theory. For wars to be justifiably fought, commanders must be given sufficient latitude to

10



Necessity and Humanitarianism

101

launch attacks on enemy soldiers without satisfying the strong requirement of necessity. Indeed, I have suggested elsewhere that various forms of pacifism are made more tenable when one takes necessity more seriously as a strict requirement.54 So, there is a basis of worry about the ICRC position if one wants to defend most wars in jus in bello terms, although certainly not a reason to rule out such conduct in advance. There are nonetheless ways to understand even a fairly strict necessity requirement that would give commanders in the field enough latitude to do their jobs reasonably effectively. One reason that this is true is that commanders will not only need to take the rights of enemy combatants more seriously than they used to, but will also have to take the rights of their own soldiers seriously, as they were already doing in most cases. The fact that commanders already take the lives of their own soldiers into account in necessity and proportionality assessments is already to indicate that despite the way in which the laws of war are often characterized, soldiers’ lives do matter. But just because the rights of enemy soldiers are to be scrutinized more carefully does not mean that the commander is stopped in his or her tracks. The commander can take lethal action to advance a military objective as long as the tactics employed are no more lethal than necessary. Capture instead of killing enemy soldiers has to be contemplated. But in at least some situations, capturing large numbers of enemy soldiers is not a realistic option. Wounding rather than killing is perhaps a bit less practically problematic than the option of capture, but again not all cases are such that wounding will indeed achieve a needed military objective. Such considerations will, I admit, have a far greater effect on bombing campaigns than actions taken on the ground. In bombing campaigns, the necessity requirement is sometimes offset by a concern for the safety of one’s own troops. Low-​flying, as compared with high-​a ltitude, planes will be better able to determine the degree of lethal attack needed to accomplish a given military objective. But low-​flying, as compared to high-​a ltitude, planes are much more risky for the soldiers who are flying those planes, since they are so much more likely to be hit by low-​tech missiles. For these and other reasons, commanders will still be able to engage the enemy in a reasonably effective way, but it remains true that they will have to show more self-​restraint than is often true today. A third objection is that the expanded and more stringent necessity requirement does not go far enough. Pacifists could argue that respect for human rights of soldiers should be seen as leading to the elimination of all war, since war involves the intentional attacking and killing of humans. I have endorsed such a model in other writings, and have nonetheless found the revised understanding of necessity to take us quite a ways toward the elimination of war, although this depends on how one understands the current conditions of war and armed conflict. One response to this objection is that there may indeed be wars that need to be fought on human rights grounds, and so we should not opt for a conception of the rights of soldiers that makes such wars turn out always to be unjustified. In addition, in some cases it could matter that the soldiers fighting on one side are clearly

  See May (n 34).

54

012

102

Humanity, Necessity, and the Soldiers’ Rights

unjustified in their actions, and so again they should not be seen as vulnerable in the same way as those who are clearly justified in the war they fight. Once again, while I do not endorse this view, it seems prudent to keep the option open. In any event, I believe that the strengthening of the necessity principle in just war theory and international humanitarian law will have quite beneficial offsetting results for diminishing the violence of war, and especially the killing on a massive scale that has been characteristic of wars for millennia.

3.  Humanitarianism and the Rights of Soldiers 3.1 Humanitarian rights The idea behind humanitarianism is that people who are in special situations or roles, where they have a heightened vulnerability to risk, should be seen as having rights that protect them in their dignity. But these humanitarian rights are not the same as human rights, which apply to every human in every situation, which attach to humans qua humans, and which do not take account of special circumstances or roles. Indeed, for human rights, the only role that matters is being human. Yet protecting the dignity of humans may need different or additional protection when these humans are in situations of increased vulnerability, where their vulnerability is not merely due to the fact that they are human. Humanitarian rights should not be seen as a domain of rights in competition with that of human rights. In my view, a properly humanitarian conception of war puts soldiers at the center of concern, since soldiers and combatants are those most directly affected by war and armed conflict. The UN document that is most directly relevant to these issues sees civilians and noncombatants as those most directly affected by armed conflict. In the 1970 Report of the Secretary-​General on Respect for Human Rights in Armed Conflict, there was a very strong statement about the intended effect of having the General Assembly examine armed conflicts in human rights terms. “It is an endeavor to provide a greater degree of protection for the integrity, welfare and dignity of those who are directly affected by military operations pending the earliest possible resolution of such conflicts.”55 Yet the United Nations’ examination of the effects of human rights in battlefield situations was mainly restricted to the protection of civilian lives, even though the lives of soldiers are certainly those that are most directly affected by military operations. While civilians are increasingly attacked, even targeted, in wars, targeting of people is most often directed at soldiers rather than at civilians, even in today’s asymmetric wars.56 Even if it were true that soldiers forfeited some of their most basic rights by becoming soldiers, it may still be true that they need extra protection due to assuming this role. On the assumption that soldiers can be killed, or are liable to be killed, because

55   Respect for Human Rights in Armed Conflict. Report of the Secretary-​General, A/​8052, para 13 (1970). 56   See Michael Gross, Moral Dilemmas of Modern War (Cambridge University Press 2010).

013



Humanitarianism and the Rights of Soldiers

103

they have assumed a different, more dangerous status from other humans, what this also means is that soldiers are more vulnerable than all other humans who retain the right not to be killed. Because soldiers are at increased vulnerability to be killed, it would make sense also to say that soldiers should have special rights that minimize the harm that is likely to occur to them because of their loss, even if only temporarily, of basic rights. In some respects, this is what humanitarian law has traditionally sought to do:  to provide a set of special rights not to suffer unnecessarily, that are especially apt for soldiers who are more vulnerable to such suffering since they lack the protections of basic human rights, such as the right to life and the right not to be attacked. Even if it is true that soldiers have forfeited basic general rights, there is a kind of special vulnerability that occurs for soldiers in wartime circumstances. But the specific level of soldiers’ vulnerability varies, as do the specific ways in which soldiers are vulnerable. This variability is due to the changing character of war and armed conflict over the ages. In traditional ways of thinking of humanitarian law, the key right is that soldiers not suffer unnecessarily. What counts as necessary, as I argued above, is and has been contentious. But what the specific vulnerabilities are is not so contentious. Consider that concern for the rights of civilians during war has meant that they can be directly attacked only if it is clear that they pose a threat to other civilians or soldiers. It is my view that in such a situation the special rights of soldiers must also be expanded, so as to protect the soldiers in their special vulnerabilities. This protection is needed due to the increased vulnerability that these soldiers face, which is itself due to the restrictions on the rules of engagement aimed at protecting civilians. Consider a situation in which the soldiers must first announce themselves before entering a building believed to be occupied by enemy warriors, so as to give civilians in these buildings a chance to speak up.57 This restriction on the rules of engagement again would warrant an expanded set of role-​based rights for soldiers, aimed at protecting the soldiers in their now more vulnerable state. In cases where soldiers face increased vulnerability, it would make sense to say that soldiers should only take on this increased risk if it were clear that taking on a risk of death was strictly necessary for achieving a legitimate military objective. And in this way we could see a strengthened principle of necessity, perhaps of the sort contemplated by the ICRC in its 2009 Interpretive Guidance. Indeed, the fact that soldiers are supposed to risk their lives while in combat does not make them have less special rights. Rather, their increased vulnerabilities should be seen as supporting increased special rights. The special rights are extended at least in part to compensate for the decrease in general rights that they face because of their supposed forfeiture of basic general rights when they assume the role of soldier. This is an appropriate place to say again that the forfeiture idea is weakened in many cases where the soldier is coerced into taking on their dangerous role. The idea of forced forfeiture is itself peculiar. The idea of forfeiture makes the most sense in terms of the choices a person makes that are not coerced—​where one is held responsible for

  See Michael Walzer’s fascinating discussion of this case in Just and Unjust Wars (Basic Books 1977).

57

014

104

Humanity, Necessity, and the Soldiers’ Rights

one’s choices and, if those are especially bad choices, then one loses some of one’s previous rights or status in the society. But since many soldiers are conscripted, the idea that they could forfeit their rights, or their dignity, by these acts is, to say the least, hard to justify. Of course it will matter what the options were to acquiescing in one’s conscription, but in general something seems suspicious about the idea that all soldiers, even those who have been conscripted, have by their own coerced acts forfeited their rights. In any event, my view is that even if one finds the forfeiture view plausible, this can still be seen as giving rise to special rights that are more extensive than those normally afforded to soldiers by traditional just war theory and international humanitarian law.

3.2  The right not to be killed unnecessarily If one recognizes the special vulnerability of soldiers, and the dignity of humans, one is led to the question of what rights soldiers have. In this section I will defend the idea that soldiers have the right, among others, not to be killed unnecessarily. This humanitarian right is crucial as counteracting the adverse effects of the duties that soldiers have toward civilians and their property, as well as by the fact that soldiers are faced with lethal actors on the other side of an armed conflict. I will develop these points in this section. And I will argue that this right sits between an absolute right of soldiers not to be killed, which certain pacifists have espoused, and the traditional understanding of soldiers as having no right, of any sort, not to be killed. Consider an example from the first Iraq War. On February 26–​27, 1991, Iraqi soldiers mingled with a column of panicked civilians who had commandeered any form of transportation possible to leave Mutlai, Kuwait and escape to Basra, Iraq. Responding to Iraqi small arms fire, a five-​mile-​long column of retreating Hammurabi Division forces was attacked. As the coalition land assault began to the west, US airpower disabled vehicles at the front and rear of the convoy, thereby creating a seven-​mile-​long traffic jam. Unknown numbers of Iraqi soldiers and civilians died in the seven hours of subsequent strafing along what became known as “the Highway of Death.”58 General McCaffrey’s official report concluded that 34 tanks were destroyed, along with 224 trucks, 41 armored personnel carriers, 43 artillery pieces, and 319 anti-​tank guns; an estimated 400 Iraqi soldiers were killed, with no loss of American life.59 It seems that it would be hard to defend such killings on the grounds of the self-​ defense rights of the coalition forces that killed these 400 Iraqi soldiers. Indeed, that there were no coalition casualties is partial support for this proposition. In addition, fleeing soldiers, at the time they are fleeing, do not pose a threat to anyone. And unlike the soldier taking a bath, fleeing soldiers are unlikely to reverse course in the immediate future. The question is whether or not these soldiers have the overall status of being without the right to be attacked in this situation.

58   See Carl Connetta, “The Wages of War: Iraqi Combatant and Noncombatant Fatalities in the 2003 Conflict,” Project on Defense Alternatives Research Monograph # 8, Appendix 2 (October 2003), . 59   For more on this example also see Newton and May (n 32), ch 4.

015



Humanitarianism and the Rights of Soldiers

105

One of the traditional defenses of actions such as those which occurred on the “Highway of Death” is that even fleeing soldiers could easily regroup at another place and launch an attack on one’s own soldiers. Killing as many enemy soldiers as one is able to conforms to the traditional view, associated with the Lieber Code, of shortening the war and hence shortening the amount of time during which the killing of soldiers takes place.60 In most cases, the overall saving of life is best accomplished by granting to each combatant the right to kill as many enemy soldiers as possible in the shortest period of time. And in some respects, the Iraq War was probably shortened by the slaughter that took place on the “Highway of Death.” But notice that many commentators used the term “slaughter,” just as I did—​not calling what occurred a normal exercise of pursuing a needed military objective. Fleeing soldiers, and even soldiers taking a bath or playing games, are especially vulnerable. But it is true that they could pick up their weapons and put on their uniforms and become active threats again. In the second case, our moral intuitions would counsel that it would be in some sense wrong to kill the unarmed and naked “soldier.”61 Intuitions can sometimes be unreliable guides to what should be done, especially in an all-​things-​considered context. But many people who have been faced with such a case have thought that it was wrong to kill.62 In domestic legal contexts, fleeing suspects have the right not to be killed unnecessarily. So, one question to ask is whether there is some salient difference between fleeing suspects and fleeing enemy soldiers. One supposed difference concerns the different domains of everyday life and of wartime. Respect for the dignity of those who occupy the roles of soldier and bank robber would seem to require the same standard be used. Of course, this does not yet determine how stringent that standard should be. In the next section I take up the issue of how to understand the moral status of soldiers vis-​à-​vis each other. Before turning to that issue, let me explore a bit further the limits of the expanded notion of military necessity and the corresponding right of soldiers not to be killed unnecessarily. In some respects, it seems as if one could easily accept the right not to be killed unnecessarily by appeal to the traditional understanding of the killing of soldiers, through looking to the long-​term consequences and recognizing that all killing of enemy soldiers is in some sense necessary to ending the war. In response, I wish to return to the ideas of Grotius outlined above. Military necessity is best understood normatively if it is qualified by both temporal and spatial restrictions. The ideas of “imminence” and “immediacy” are crucial for a plausible understanding of the principle of military necessity. From a Grotian standpoint, for an action to conform to a plausible view of military necessity, that action must be the least lethal means to accomplish a needed military objective at this point in time and in the current circumstances, or in temporal and special conditions that are very close to the actual ones at the moment.

  See Jens Ohlin, “Sharp Wars Are Brief,” in this volume.   See my book War Crimes and Just War, Cambridge University Press, 2007, ch 5. 62   See Walzer (n 57). 60 61

016

106

Humanity, Necessity, and the Soldiers’ Rights

It is simply too easy to be allowed to say that sometime in the undetermined future this war, like all wars, will be for the best if it is ended more quickly than not. In some cases it may indeed be that a war is likely to end quite quickly if lethal means are used when they are not practically necessary. But a principle that allowed for whatever is necessary to shorten a war would not be accepted by just war theorists, or international legal theorists either. It is possible simply to drop an atomic bomb on a region, or poison the water supply of a region, and obliterate all of the enemy soldiers therein. Yet the use of atomic bombs or poisons is generally seen as illegal or immoral, regardless of the fact that it will bring a war to a conclusion very quickly indeed. And we certainly do not want a principle of military necessity that is so strong that it becomes impossible to fight justified wars of any sort. Even many pacifists today (who call themselves contingent pacifists, just war pacifists, or conditional pacifists) would not argue for ruling out in advance the possibility of justifiably fighting in any war. There seem to be at least some conceivable worlds in which it would be justified to kill enemy soldiers for a needed military objective. The strategy that I have pursued is to try to find a reasonable principle of military necessity that neither permits every action in war, nor rules out every action in war. Of course, there are many points along the spectrum between these two extreme positions of the supporter of Kreigsraison and absolute pacifism. I will say more about this point in subsequent sections, but I remain open to precisely where to draw the line along this spectrum. What seems to me to be clear, though, is that the line needs to be drawn somewhere in the middle rather than at or near either end of this spectrum. One other thing to say about the question of how a commander is to ascertain whether it is militarily necessary to kill an enemy soldier is that the commander need only consider possible worlds that are close to the actual here-​and-​now world which the commander currently occupies. In this respect, I am adapting David Lewis’ idea of counterpart analysis.63 To ascertain if something is possible or necessary in a practical sense, we need only consider possible worlds that resemble our world “closely enough.”64 In a sense, to talk of what it is possible or necessary to do is to talk of what are vicarious experiences for a given agent here and now. To say that it is possible that I regain my fluency in ancient Greek is to say that it is vicariously so in some world that is close enough to the actual world I  occupy here and now. To say that it is necessary that I employ a certain tactic in an armed conflict is to say that it is vicariously so in all worlds that are close enough to the world I occupy here and now. In the second case, the commander need not think beyond what is conceivable, understood in this way as being close enough to the commander’s actual world here and now. This is to say that possible worlds are counterparts to this world insofar as they are vicarious worlds for me. And to say something practically relevant about what is

63   David K Lewis, Counterfactuals (Harvard University Press 1973) 39–​43. I adapt Lewis’ counterpart analysis so as to make it relevant for practical decision making since in this chapter I am concerned with practical necessity, not logical or metaphysical necessity. 64   Ibid 39. I thank Jeffrey Tlumak for suggesting this line of argument.

017



Humanitarianism and the Rights of Soldiers

107

possible or necessary for me is to say what is vicariously experienced in worlds that are close enough to my actual world here and now. This analysis has not yet said where on the spectrum to locate decisions about what is possible or necessary, but it does locate the point along the spectrum as those points that are “close enough” to my actual world here and now. The “here and now” is a way to make a bit more conceptual sense of the Grotian dictum that what counts as militarily necessary is what satisfies imminence and immediacy. The tricky questions, of course, are what “close enough” means and who is to make that decision. My answer to both questions is to restrict our domain to the commander on the ground, and only to stipulate that while it is the commander who is to determine how to understand “close enough,” he or she is to do so bound by considerations of what a reasonable commander would agree to in this commander’s shoes. The reasonableness constraint is aimed at ruling out utterly arbitrary characterizations of the realm of possible worlds in the assessment of military necessity. Appeal to a reasonableness standard is also not supposed to allow the determination of military necessity to be based completely on the commander’s subjective considerations. Reasonableness is at least a partially objective standard, as I indicated earlier. How such a standard will be enforced is not part of the purview of this chapter, but I envision commanders continuing to be under the purview of international criminal standards that would hold open the possibility of sanctions against those commanders who acted in disregard of the humanitarian rights of soldiers.

3.3  Revisiting the moral equality of soldiers Since Michael Walzer’s book Just and Unjust Wars, many philosophers have argued that all soldiers, by virtue of their role, have the same status: namely, both the right to kill and the liability to be killed. Recently, philosophers have argued that there is no equality among soldiers in armed conflict. Soldiers on the unjust side of a war have no right to kill, but are liable to be killed. Soldiers on the just side of a war have the right to kill and no liability to be killed. My view is that soldiers all have roughly the same moral status, but not of the sort that Walzer argued for. Rather, all soldiers have the right not to be killed unnecessarily, and also the liability to sanction if they violate the rights of other soldiers, even enemy soldiers. Since I argued in favor of that right in the previous sections, I will begin by arguing in this section that it is an equal right of all soldiers. I will then argue that there is also a corresponding equal liability for all soldiers who violate the right of soldiers not to be killed unnecessarily. The liability for soldiers is primarily a moral liability. The legal liability remains primarily on those commanders who make decisions about who is to be attacked and with what level of force. Many philosophers and legal theorists today deny that there is a moral equality of soldiers. One way to understand this position begins from the plausible assumption that one’s moral status varies based on whether one is engaged in rightful or wrongful behavior. It matters whether one has a right to act a certain way, or fails to have such a right. Someone who robs a bank no longer has the strong self-​defense right to kill a police person who is shooting at them.

018

108

Humanity, Necessity, and the Soldiers’ Rights

My view is that all soldiers have roughly the same rights and liabilities because it is normally so difficult for a soldier to figure out if the war in which he or she is fighting is a just or unjust war. There are cases where it may be easy to do this or even where a soldier has already figured it out, but as I have argued elsewhere, these are very few cases indeed. In any event, we should not merely attribute the injustice of a war to a soldier, given that what made the war unjust was the decision of a state and not a decision of that soldier. The right not to be killed unnecessarily is important for showing respect for the person who occupies the role of soldier. Even if one were to think that some soldiers (who are on the unjust side of a war) have forfeited some of their basic general rights, there are two other considerations that are important. The first is something we have already discussed, namely that the soldier may have special rights connected to that soldier’s vulnerability that must be taken into account. The second consideration is that while it is possible to forfeit one’s basic rights, at least temporarily, one cannot forfeit one’s dignity without ceasing to be human. I wish now to take up this second consideration. At the beginning of this chapter I distinguished between the general rights of all humans and the special rights of those who occupy various roles, such as that of being a soldier. Soldiers, qua soldiers, do not have human rights. But I want to argue now that since those who occupy the role of soldiers are humans, that they are humans sets a minimal standard for how they are to be treated as soldiers. The standard is that soldiers must be treated in a way that respects their dignity as humans. My view is that recognizing the right of soldiers not to be killed unnecessarily is one of the best ways to respect the dignity of soldiers. It is not sufficient that soldiers be recognized as having the right not to be made to suffer unnecessarily, which is the traditional way to understand the humanitarian rights of soldiers. This is not sufficient, given the vulnerabilities that soldiers face. It is true that humans are more than normally vulnerable to suffering when they occupy the role of soldier. But it is even more significant that humans are much more than normally vulnerable to being killed when they occupy the role of soldier. For soldiers, killing in war is more significant than suffering in most cases because of how war has been understood for centuries, namely in part as a conflict between groups that engage in lethal violence against each other. And while the attempt to kill an enemy soldier may wound that soldier instead and cause suffering, the killing of the soldier was the objective. There are other cases where a soldier is intentionally made to suffer as a matter of retaliation, or as a way of causing the soldier to answer questions under interrogation, where the suffering is intentional and in most cases cruel, since this suffering is not necessary for achieving the objective. Such cruelty can be as significant as death for the soldier. And it is also true that just as making soldiers suffer for retaliation is rarely necessary for securing a military objective, nor is intentionally killing an enemy soldier. As I  said in discussing the St Petersburg Declaration, war has been sometimes understood as primarily about incapacitating rather than killing, since most frequently it is incapacitating enemy soldiers rather than killing them that is directly related to achieving needed military objectives. In any event, the key consideration

019



Concluding Thoughts

109

that has made it nearly universally accepted that soldiers should not to be made to suffer unnecessarily is the fact that it is indeed unnecessary. If, as I have been arguing, it is also true that much killing in war is also unnecessary for achieving a needed military objective, then for similar reasons it should be universally accepted that soldiers should not be killed unnecessarily either. The moral equality of soldiers turns on this issue of soldiers’ heightened status as vulnerable to both suffering and death due to the nature of their role. All soldiers are humans, and minimally soldiers should be shown respect for their dignity by being recognized as having the right not to suffer unnecessarily or to die unnecessarily. The dignity of humans can be denied in at least two ways—​by forcing them to suffer and by forcibly killing them. Because of the self-​consciousness characteristic of humans’ intentionality, both suffering and death are very bad indeed, even if they are not the absolute worst thing that creatures can suffer. The moral equality of soldiers turns on the moral equality of these features of all humans. While soldiers may be treated differently from one another in many respects, due to what those soldiers deserve, for instance, it is minimally required that soldiers not be treated differently from one another by virtue of their dignity. To treat them unequally in this respect, where one human or group of humans is denied the minimal moral treatment respecting their dignity, requires us to treat this human or group of humans as not fully human. For many centuries soldiers were referred to as cannon fodder, or by some equivalent expression. The idea was that soldiers were dispensable.65 Soldiers could be killed at will by enemy soldiers because they were primarily only extensions of their king or their state. Notice that the rhetoric in the use of the term “cannon fodder” displays the way in which the traditional view of soldiers effectively denied their humanity. To respect soldiers, this practice needs to stop. My proposal to recognize soldiers’ equal right not to suffer or be killed unnecessarily is aimed at just this objective.

4.  Concluding Thoughts on the Principles of Humanity and Necessity At the beginning of this chapter, I discussed various meanings of the term “humanity,” one of which was that humanity is a source of norms and values. In this final section I  will discuss one of the most significant norms associated with humanity, a principle that calls for people, especially during war or armed conflict, to exercise special vigilance in how fellow humans are treated. As I have been arguing, the special protections of humans during times of war should extend to soldiers and other combatants. Kant characterized one of the versions of the categorical imperative as the “formula of the end in itself” or “the principle of humanity.” In Kant’s view, there is a practical imperative for all people, namely: “Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and 65

  See Gabriella Blum (n 46).

10

110

Humanity, Necessity, and the Soldiers’ Rights

never simply as a means.”66 This principle is deeply connected to Kant’s notion of the dignity of a human person. To respect the dignity in each person, we must treat each person as an end in itself, not simply as a means to our own ends. In situations of war or armed conflict, it is hard to understand how the various participants, especially the soldiers shooting at enemy soldiers, could still treat the enemy soldiers as ends in themselves. Indeed, in its traditional formulation, the idea of military necessity that has been the subject of this chapter saw the soldier’s role as one of killing as many enemy soldiers as possible. It is also true that this military goal was related to the further goal of bringing the war to an end as soon as is possible so as to have the least number of casualties in the long run. But there is no denying that the traditional principle of military necessity was aimed at using enemy soldiers as a means to ending the war as quickly as possible, and did not see enemy soldiers as ends in themselves.67 Yet it is also part of the more modern understandings of military necessity that this principle is to be balanced against what international lawyers call the principle of humanity. Indeed, this is why Michael Schmitt gives his essay entitled “Military Necessity and Humanity” the subtitle “Preserving the Delicate Balance.”68 Schmitt characterizes the principle of humanity in international humanitarian law as an imperative “which operates to protect the population (whether combatants or noncombatants) and its property.”69 Yet the question to consider is whether these principles can indeed be balanced if the principle of military necessity contains such a strong presumption in favor of soldiers’ right to kill as many enemy soldiers as possible. How, though, can soldiers be treated humanely if they can be killed at will? Indeed, notice that the formulation that Schmitt gives for the principle of humanity calls for the protection of combatants, not only noncombatants. I should note at this stage that I regard my proposal of extending to soldiers the right not to be killed unnecessarily as a moderate one. Some authors have recently argued for a more expansive principle, namely, the least-​harmful-​means principle. This principle would sweep across all decisions by commanders during war and would require that commanders only order that use of force that is the least harmful. My proposal only calls for less than lethal force when it is not necessary to use lethal force. My proposal will not affect non-​lethal use of force and is hence not nearly as restrictive as the least-​harmful-​means principle. Throughout this chapter, I have attempted to defend a commonsensical way to think of humanitarian rights, namely, as applying a strict necessity constraint on military actions that risk the killing of soldiers, whether our own or enemy states’. I have proposed a change in our understanding of the scope of the principle of humanity so that it is broadened. I have also proposed a restriction in the scope of the principle of military necessity so it is more strict. And I have proposed an expansion of the humanitarian rights of soldiers to include the right not to be killed unnecessarily.

66   Immanuel Kant, Grounding for the Metaphysics of Morals (1785), translated by James W. Ellington (Hackett Publishing Co. 1981) 36. 67 68   For much more on this topic see Ohlin and May (n 24).   Schmitt (n 20) 795. 69  Ibid, 799.

1

4 The Deaths of Combatants Superfluous Injury and Unnecessary Suffering in Contemporary Warfare Michael L Gross In contrast to killing noncombatants, there are few moral or legal constraints on killing combatants. The Geneva Conventions are concise: In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.1

Unease about the suffering of combatants has led modern states to ban a limited number of weapons since the American Civil War. These include exploding and hollow-​ point bullets, serrated bayonets, asphyxiating gases, chemical and biological weapons, and blinding lasers. Further concern for civilian casualties restricts (but does not prohibit) the use of landmines, cluster bombs, and white phosphorus. Combatants, however, remain legitimate targets of these weapons. At first glance, these restrictions evoke a sense of barbarism that civilized armies must shun. A second glance upends this assumption: Why ban asphyxiating gases but not white phosphorus; each causes equally horrific wounds? And, if horrific wounds are the standard, why permit high explosives? On the other hand, why regulate killing combatants at all? Why must a soldier fighting for his life restrict the ways in which he may defend himself? There are several answers to this question and they depend on how one understands the suffering of combatants. First, “unnecessary suffering” may emphasize unnecessary and refers to harm that exceeds that required to disable a combatant. Alternatively, the stress may shift to unnecessary suffering—​suffering that is, in some sense, inhuman or barbaric regardless of military necessity. Finally, one may look beyond the individual combatant to unnecessary suffering and injury that adversely affects state interests. Here reciprocity is important. Nations facing a weapon in kind will seek its ban; nations holding a technological monopoly will not. Some of these approaches are unworkable, while others are ambiguous and contradictory. As a result, there is little logic behind existing restrictions on weaponry, or cogent guidelines for future developments. The sections below unpack the idea of superfluous injury and unnecessary

1   Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, Art 35: 1–​2.

The Deaths of Combatants. Michael L. Gross. © Michael L. Gross, 2017. Published 2017 by Oxford University Press.

12

112

The Deaths of Combatants

suffering and then discuss the challenges posed by asymmetric war and future technological developments in nanotechnology, non-​lethal warfare, and neuroweaponry.

1.  Superfluous Injury, Unnecessary Suffering, and Military Necessity In 1868, the major European nations convened in St Petersburg, Russia to evaluate the rapid development of weaponry during the American Civil War. At issue were “explosive projectiles,” bullets designed to explode 1¼ seconds after entry. “When [soldiers] were hit and the ball exploded,” observed General Ulysses S Grant, “the wound was terrible. In these cases, a solid ball would have hit as well. Their use is barbarous, because they produce increased suffering without any corresponding advantage to those using them.”2 Notice how Grant defines “barbarous.” It has little to do with the direct effect of the bullet; rather, he objects to its lack of purpose. Presumably, if “increased suffering” did have some “corresponding advantage,” Grant would have little to condemn regardless of the “terrible” wounds explosive bullets cause. Grant’s view was the same as that of the St Petersburg delegates. Following the conference, the delegates declared: • The progress of civilization should have the effect of alleviating as much as possible the calamities of war; • The only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; • For this purpose it is sufficient to disable the greatest possible number of men; • This object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; • The employment of such arms would, therefore, be contrary to the laws of humanity.3 The St Petersburg Declaration was a watershed in the development of humanitarian law. Its point-​by-​point progression shows how the delegates tied condemnation of certain weapons to an enlightened view of humanity, dignity, and necessity. War, they reasoned, is an act of extreme violence to attain a political goal. Its purpose is not simply to erase an enemy from the face of the earth. The next step was then obvious: nations might only pursue those means and methods that sufficiently cripple an army so that it is no longer a political or military threat. This means disabling (not necessarily killing) large numbers of men (that is, soldiers). Anything beyond this point is unnecessary, and the suffering it brings is superfluous and, therefore, contrary to the laws of humanity. Contemporary international humanitarian law (IHL) takes a

2   Ulysses S Grant, The Memoirs of General Ulysses S. Grant, Part 3, ch 37, , emphasis added. 3   International Committee of the Red Cross, Customary International Humanitarian Law, Rule 70. Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering, .

13



Superfluous Injury and Military Necessity

113

similar view. Commenting on the prohibition of superfluous injury and unnecessary suffering, the ICRC explains how the rule requires that a balance be struck between military necessity, on the one hand, and the expected injury or suffering inflicted on a person, on the other hand, and that excessive injury or suffering, i.e., that which is out of proportion to the military advantage sought, violates the rule.4

“A weapon is not banned  . . .  merely because it causes ‘great’ or even ‘horrendous’ suffering or injury,” observes Yoram Dinstein. “A weapon is proscribed only if it causes injury or suffering that can be avoided, given the military constraints of the situation.”5 This thinking deserves scrutiny because it subordinates humanity and humanitarian law to necessity. Suffering that is unnecessary or disproportionate violates the laws of humanity; suffering that is necessary does not. This creates two intractable problems. The first is practical:  Superfluous injury and unnecessary suffering are functions of how and when a weapon is used, not functions of its intrinsic properties. The same rifle shot necessary to disable a combatant in one case may be superfluous in another if it is possible to disable the same combatant by less lethal means. Should the laws of war ban rifles? Alternatively, banned weapons may prove exceptionally useful. The British argued that only hollow-​point (dum-​dum) bullets could stop the native tribes they fought to subdue.6 During the Second World War, moreover, some favored poison gas to dislodge Japanese troops entrenched in Iwo Jima, claiming it would cause fewer American causalities than a frontal assault.7 Under these circumstances, the weapons are no longer inhumane but necessary. They do not aggravate the injuries of disabled soldiers but are necessary to render them hors de combat. Should poison gas be banned or permitted? The answer seems to depend on the circumstances—​a criterion that offers little chance of removing any weapon from the battlefield. Ultimately, recourse to necessity cannot regulate particular weapons. This observation only underscores a second, theoretical problem evident in the St Petersburg declaration: The delegates, just like modern commentators, could never coherently state the relationship between necessity and humanity. The declaration concludes with a call “to conciliate the necessities of war with the laws of humanity.” The laws of humanity surely condemn “uselessly aggravating the sufferings of disabled men,” but only military necessity can define when the sufferings are useless or useful. This circularity undermines any attempt to formulate an independent criterion of humanity that could govern superfluous injury and unnecessary suffering   Protocol I, Commentary, Art 35, §1417; Bill Boothby, “How Will Weapons Reviews Address the Challenges Posed by New Technologies” (2013) 52 Military L & L of War Rev 37–​61, 42. 5   Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Second Edition (Cambridge University Press 2010) 64–​5. 6   Hitoshi Nasu and Thomas Faunce, “Nanotechnology and the International Law of Weaponry: Towards International Regulation of Nano-​Weapons” (2009) 20 J of L Information & Sci 21–​54, 39. 7  PBS, ; Norman Polmar and Thomas B Allen, “Another Alternative—​P OISON GAS!” (2015) 29 Naval History 42–​3. 4

14

114

The Deaths of Combatants

or military necessity more generally. The need for such a criterion cries out from the Geneva Convention’s recurring definition of military necessity: Military necessity means the necessity for measures which are essential to attain the goals of war, and which are lawful in accordance with the laws and customs of war . . . Consequently, a rule of the law of armed conflict cannot be derogated from by invoking military necessity.8

Placing unnecessary suffering and superfluous injury in the context of force beyond that which is required to disable the enemy, as nineteenth-​and twentieth-​century commentators do, subordinates suffering to military necessity. Yet, as the previous paragraph suggests, the principle of humanity does not derive its force from military necessity but sits atop it. It is no wonder then that a measure of injury and suffering that springs from military necessity cannot serve IHL’s purpose of regulating weaponry. To shore up the rule prohibiting superfluous injury and unnecessary suffering, the norms of war require an absolute criterion to proscribe all weapons in a particular class. To this end, attention turns to “great” or “horrendous” suffering that is impermissible regardless of necessity. This must draw, as Lauterpacht suggests, from “more compelling considerations of humanity, of the survival of civilization, and of the sanctity of the individual human being.”9

2.  Superfluous Injury, Unnecessary Suffering, and Inhumanity Cognizant of the difficulties posed by military necessity, the International Committee of the Red Cross (ICRC) undertook an ambitious project to develop firm humanitarian guidelines to flesh out superfluous injury and unnecessary suffering. Initiated in 1997, the SIrUS (superfluous injury and unnecessary suffering) project proposed four criteria to determine whether a weapon causes superfluous injury and unnecessary suffering: (1) Specific disease, specific abnormal physiological state, specific abnormal psychological state, specific and permanent disability or specific disfigurement, or (2) Field mortality of more than 25 per cent, or (3) Hospital mortality of more than 5 per cent, or (4) Effects for which there is no “well recognized and proved treatment”.10 Underlying these criteria is an attempt to move away from the situational relativism of military necessity, whereby the same weapon may be either necessary or superfluous

9   Protocol I, Commentary, Art 35, §1389.  Ibid §1394.   The SIrUS Project: Towards a Determination of Which Weapons Cause “Superfluous Injury or Unnecessary Suffering” (ICRC 1997) 23. See also Robin M Coupland, “The Effect of Weapons: Defining Superfluous Injury and Unnecessary Suffering” (1996) 3 Medicine and Global Survival A1; Robin M Coupland, “The SIrUS Project: Progress Report on ‘Superfluous Injury or Unnecessary Suffering’ in Relation to the Legality of Weapons” (1999) 835 Intl Rev of the Red Cross 583–​92; Robin M Coupland, “Abhorrent Weapons and ‘Superfluous Injury or Unnecessary Suffering’: from Field Surgery to Law” (1997) 315 British Med J 1450–​2. 8

10

15



Superfluous Injury and Inhumanity

115

depending upon battlefield circumstances, and toward an objective and absolute standard. The guidelines encompass two distinct criteria. The first (guidelines 1 and 4) capture the inherent repugnance of certain weapons (poison gas, blinding lasers, or biological weapons), while the second (guidelines 2 and 3) embrace epidemiological data that specify the necessary limits of field and hospital mortality in modern warfare. Moral and/​or physical repugnance is difficult to describe objectively. Many would agree with Martin van Crevald’s observation that “the distinction between chemical and other weapons exists solely in man’s mind,” infused with a “cultural” aversion to killing people by choking them to death.11 The SIrUS guidelines, however, objectify this aversion as an assault on human physiology and in terms of weapons that offer no prospect of medical treatment. The latter echoes the call at St Petersburg to prohibit weapons that render death [of disabled men] “inevitable,” a prohibition further captured in the 1980 Protocol banning “any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-​rays.”12 There are certain wounds that inflict unspeakable suffering regardless of any military benefit. Intentionality is important. Any weapon can cause disease, disability, or disfigurement, but the ICRC only proposes to ban a weapon that cause anatomical injury, disability, or disfigurement which is specific to the design of the weapon.13 Why is this particularly reprehensible? Why not design a weapon to kill or wound by disease, disability, or disfigurement? A primordial fear of disease, apprehension about tampering with the physiological systems of the human body, and deep concerns about defenselessness may partially explain the aversion to certain forms of death and injury. Diseases may morph into epidemics for which neither military technology nor military virtues (bravery, courage, fortitude) offer any defense. Through the First World War, disease was the scourge of war, killing as many, if not more, soldiers as arms did. Largely vanquished today, the threat that disease on the battlefield may resurface as a genetically engineered bacteria or virus raises the specter of incurable and devastating epidemics.14 Consider, too, the role of medicine and its practitioners. Bringing pathogens to the battlefield enlists medical science in the cause of war, thereby blurring the line between physicians as healers, whose role in modern warfare is well defined and beneficial, and physicians as killers, whose role is inimical to medicine’s ethos.15 For these reasons, “most people,” writes Robin Coupland of the ICRC, “consider warfare waged with weapons developed in laboratories by biomedical scientists unacceptable.”16 It is not clear why this is so (or even if it is empirically true), yet the ICRC clearly harbors a strong but unarticulated fear of weapons that are in some sense medicalized. When weapons   Martin Van Crevald, The Transformation of War (The Free Press 1991) 85–​87.   Protocol on Non-​Detectable Fragments (Protocol I), Geneva, October 10, 1980. 13   ICRC, “A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977” (2006) 88 Intl Rev of the Red Cross 947. 14   Seumas Miller and Michael J Selgelid, “Ethical and Philosophical Consideration of The Dual-​Use Dilemma in the Biological Sciences” (2007) 13 Sci & Engineering Eth 523–​80. 15   Michael L Gross, Bioethics and Armed Conflict: Moral Dilemmas of Medicine and War (MIT Press 2006) 245–​86. 16   Coupland, “The Effect of Weapons” (n 10). 11

12

16

116

The Deaths of Combatants

push beyond blunt trauma, blood loss, and death to cause a viral disease, interfere with neural networks, depress the central nervous system, or induce hallucinations then they have moved from the sphere of the military to the medical, a development that many rightly fear for its insidious, if not sorcerous, effects. Nanoweapons, neuroweapons, chemical calmatives, and convulsants play on these fears directly. Yet fear of disease or medical manipulation does not explain aversions to weapons designed to disfigure or for which there is no treatment. One reason for this antipathy suggests that such injuries are simply not necessary. Rather, disfigurement represents a special form of humiliation and debasement that violates human dignity. Certainly, one may ask why the Philistines did not simply kill Samson but instead “seized [him] and gouged out his eyes, and brought him down to Gaza and bound him in bronze fetters; and he ground at the mill in the prison” (Judges 17:21). Blinding an enemy, parading his indignity in the streets, and working him like an animal was a special kind of punishment that had little to do with disabling a combatant. Nevertheless, one might yet consider the utility of permanently blinding combatants, particularly expensively trained pilots, to keep them from ever flying again. The utility principle is exceptionally broad with regard to combatants. One merely asks: Does the ensuing suffering exceed the military advantage of using a particular weapon? The answer is always dependent upon the magnitude and probability of the expected military advantage and the collateral costs attributable to civilian deaths and injuries, property damage, and the superfluous combatant suffering. But the weight of combatant suffering is marginal. Combatants are liable to deadly harm, thus the number of combatant deaths a weapon brings cannot count against its use. Combatants are also liable to injuries, so that their collective injuries are also not counted as part of the proportionality calculation. Utility will only play out at the margins, with regard to a specific soldier who suffers wounds beyond what is required to disable. Blinding a pilot does not obviously violate this rule. Still, blinding makes people wince. One reason looks to the life a soldier can expect after the war ends. “If,” writes Antonio Cassese, “a weapon by its very nature produces the normal effect of putting men out of action for a period largely exceeding the length of a war, that weapon could be regarded as illegal.”17 What Cassese has in mind can be called a “window of liability,”18 during which combatants may suffer only as long as their suffering serves some military purpose. They are, therefore, only liable to harm as long as the war continues. A weapon specifically designed to cause untreatable injuries, like blinding lasers, violates this constraint by threatening a soldier with wounds that inevitably persist beyond the window of liability. This window, however, is problematic. During asymmetric wars that wax and wane indeterminately, the window is open for a long time, during which there is no reason to inflict only treatable wounds. To be sure, the ideal wound is untreatable until the window closes. Not knowing when the window will close, is it better to assure that wounds will outlast it? Or do we give soldiers the benefit of the doubt? Military 17   Antonio Cassese, “Weapons Causing Unnecessary Suffering: Are They Prohibited?” (1975) Rivista di Diritto Internazionale LVIII 12–​42, 18. 18   Gross (n 15) 228.

17



Injury and Epidemiological Necessity

117

necessity argues for the first option, human dignity for the second. In the first case, there is an obvious military advantage. In the second, deliberately inflicting an untreatable wound upon a morally innocent combatant impinges upon human dignity in the most basic way. A dignified life delivers more than subsistence. It speaks to an autonomous life characterized by a level of self-​worth and fulfillment that allows an individual to realize a life plan that develops his intellectual, emotional, physical, and social capacities. Among the conditions necessary to pursue any plan is a relatively pain-​free and healthy life. A soldier may forfeit his right to life as he fights or may suffer wounds from weapons designed for self-​defense, but may not suffer from weapons designed to permanently deny him the conditions necessary for a dignified life. What, then, about weapons whose lack of available treatment assures death rather than permanent injury? The St Petersburg declaration condemns weapons that render death inevitable. Why is this a problem if combatants are liable to deadly harm and proportionality rarely, if ever, imposes limits on the number of combatants who lose their lives? Morally, of course, a doomsday weapon that assures the utter destruction of humanity is reprehensible, if not counterproductive. Alternatively, such a weapon may render war obsolete and, therefore, of supreme moral value. This is the paradox of nuclear weapons whose capacity for mass destruction assures deterrence. Military necessity therefore offers grounds for developing but not using a doomsday weapon that will kill everything it touches. But this is only true when the weapons threaten indiscriminate mass casualties on par with a thermonuclear blast. Threatening any single soldier with certain death or injury will not be disproportionate. In this case, the weapon will simply kill (disable) soldiers one by one until the enemy army surrenders. Until they do, military necessity justifies each death. In this way, the incremental use of a doomsday weapon might be justified and, conceivably, cause fewer overall casualties than an all-​out war. On the other hand, the collective use of a killer weapon—​for example, the annihilation of an enemy army without any option of surrender—​violates proportionality and humanity in an obvious way. This overview suggests that the driving force behind the prohibition against superfluous injury and unnecessary suffering lies in a general aversion to killing by certain means. Nevertheless, the repugnant means of war are exceptionally vague but are linked, perhaps, to fears of disease or epidemic, or a general trepidation about tampering with the human body. This makes the ban difficult to implement with any consistency, particularly when we consider the vagaries of weapons that kill, disfigure, or cause untreatable wounds. More promising, then, are clear epidemiological criteria that address field and hospital mortality.

3.  Superfluous Injury, Unnecessary Suffering, and Epidemiological Necessity The remaining SIrUS principles attach superfluous injury and unnecessary suffering to any weapon causing more than 25  percent field mortality or 5  percent hospital mortality causes. These figures are not arbitrary but draw from historical casualty rates. Since the American Civil War and through the twentieth century, field mortality—​that is, the percentage of soldiers hit and killed—​has hovered around

18

118

The Deaths of Combatants

20 percent. Hospital mortality, on the other hand—​the percentage of soldiers who die of wounds—​has improved significantly in the past century, and sat at 2.5 percent by the Vietnam War.19 In both cases, these numbers point to the casualties necessary to reasonably wage war and secure victory. Higher percentages of casualties exceed what nations have historically required to conduct warfare and are, therefore, unnecessary or superfluous. These figures, however, only speak to conventional war. No past war can dictate the norms of future wars. For example, increased use of non-​lethal weapons, precision-​guided munitions, and, indeed, pinpoint assassination may bring these numbers down as Western powers battle non-​state actors. At the same time, advances in medical and military technology affect Western armies’ field and hospital mortality levels. While body armor, frontline emergency care, speedy evacuation, and anticoagulants have reduced battlefield mortality to 10 percent in the recent wars in Iraq and Afghanistan, increased numbers of wounded have upped hospital mortality (incidences of dying from wounds) to about 5 percent.20 At this point, therefore, there are insufficient data to draw any definitive conclusion about the necessary levels of field and hospital mortality in future wars. For these reasons, the international community rejected these SIrUS recommendations in the final 2006 guidelines.21 Epidemiological criteria fare no better than other forms of military necessity for determining whether a weapon causes superfluous injury and unnecessary suffering. Moreover, short of vague feelings of moral aversion that rarely coalesce, no inherent quality of a weapon suggests a viable criterion for limiting its use. Rather, one must take a broader view. The inherent repugnance of a weapon that blinds, infects, or asphyxiates is only a necessary condition for its prohibition. Sufficient conditions require context, specifically reciprocity and an enemy’s capability to deploy the same or similar weapon.

4.  Superfluous Injury, Unnecessary Suffering: Reciprocity in Conventional and Asymmetric War However fearful or unnecessary a weapon may be, no side is going to give it up unless the other side does too. At St Petersburg, the Russians sought and obtained an international agreement to relinquish certain weapons making their way to market. The American Civil War spawned unprecedented and costly developments in communications, artillery, naval warfare, ordnance, small arms and machine guns, military medicine, transportation, and logistics. Pre-​industrial Russia had no hope of keeping up (as the Russo-​Japanese war would later prove) and could only try to curtail an arms race by trumpeting humanitarian principles.22 The results were mixed. The St   Hospital mortality rates were 4.5 per cent in the Second World War, 2.5 per cent in Korea, and 2.6 per cent in Vietnam. T N Dupuy, Attrition: Forecasting Battle Casualties and Equipment Loss in Modern War (Nova Publication 1990) 53. 20   “Study: 25% of War Deaths Medically Preventable” (2012) Army Times, June 28. See also Nese F DeBruyne and Anne Leland, “American War and Military Operations Casualties: Lists and Statistics” (2015) Congressional Research Service. 21   ICRC (n 13). 22  Ove Bring, “Regulating Conventional Weapons in the Future—​ Humanitarian Law or Arms Control?” (1987) 24 J of Peace Research 275–​86. 19

19



Reciprocity in War

119

Petersburg declaration most certainly laid the foundations for the future development of IHL, but had little impact on banning inhumane weapons or limiting the ways in which combatants could kill one another. Over time, it would become clear that the material costs associated with certain weapons determined their future. While many were moved by the gruesome images of First World War gas injuries, poison gas was far less lethal than high explosives (3 percent vs >25 percent field mortality rate), leaving many gas victims to survive as disabled veterans. But disabled is not dead, and others were quick to advocate gas warfare as a humane form of war.23 Neither view was particularly persuasive. Rather, the Western nations agreed to prohibit poison gas because it offered few military advantages, was difficult to control, demoralized combatants, and required protective clothing that effectively blunted the worst effects of chemical warfare but made fighting difficult.24 Despite the 1925 Protocol Prohibiting the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925 (which the United States did not ratify until 1975), the Western powers continued to develop and stockpile chemical and biological weapons. Never used in the Second World War, chemical and biological weapons lost their luster as the major powers focused on nuclear weapons after the war. Unlike nuclear weapons, chemical weapons were susceptible to effective defensive measures, antidotes, gas masks, warning devices, and protective suits.25 Aware of these limitations, the United States unilaterally decided to destroy its biological weapons in 1969 and curtail chemical weapons production to jumpstart arms limitation talks with the Russians. These measures induced the Soviets to accept biological weapons disarmament and, by 1972, most nations had ratified the Biological Weapons Convention (BWC) agreeing “never in any circumstances to develop, produce, stockpile or otherwise acquire or retain” biological weapons.26 When the Chemical Weapons Convention (CWC) was ratified in 1993, the United States halted offensive weapons research and committed itself to destroying its chemical arsenal. Superior stockpiles of nuclear weapons effected deterrence, making chemical and biological weapons militarily superfluous and expensive. With the US and USSR leading, most nations followed suit, but compliance was motivated by reasons of state, not humanitarian concerns. The horrific wounds and mass destruction threatened by chemical and biological weapons were certainly no more severe than those caused by nuclear weapons—​but no nuclear power ever agreed to ban nuclear weapons; national interest dictated otherwise. Nevertheless, the cost of war only partially explains why nations ban certain weapons. In the cases described, many people still find the likelihood of receiving certain 23   Hugh R Slotten, “Humane Chemistry or Scientific Barbarism? American Responses to World War I Poison Gas, 1915–​1930” (1990) J of Am Hist 476–​98. 24   Daniel P Jones, “American Chemists and the Geneva Protocol” (1980) 71 Isis 426–​40. Stockholm International Peace Research Institute, The Problem of Chemical and Biological Warfare, Volume I: The Rise of CB Weapons (SIPRI 1971) 250, and Volume III: CBW and the Law of War (SIPRI 1973) 139. 25  Brian Balmer, “Biological Warfare:  The Threat in Historical Perspective” (2002) 18 Medicine, Conflict and Survival 120–​37; George W Christopher et al, “Biological Warfare: A Historical Perspective” in Joshua Lederberg (ed), Biological Weapons, Limiting the Threat (MIT Press 1999) 17–​35. 26   Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC), April 10, 1972, Article 1.

210

120

The Deaths of Combatants

injuries inhumane, fearful, and intimidating. Soldiers do not want to fight facing the prospect of permanent blindness, wounds that will not heal, or torture. They do not want to suffer dishonorable treatment, indignity, or abuse. That is, their own aversions come into play as they enter the battlefield. Often, the best way to protect oneself is to protect one’s enemy. Hence, one reason for adopting rules about weapons is mutual self-​interest. Concern moves from considering the suffering of the enemy to weighing the suffering of compatriots. Often, banning a weapon offers a military advantage that both sides covet. Consider again explosive bullets. What Grant really meant is that a mutual ban on the bullets works to everyone’s advantage. Certainly, it seems that if only one side has a monopoly, it will not readily relinquish its explosive bullets. Why give up a weapon that demoralizes enemy soldiers, inflicts wounds that require greater medical care, forces quicker evacuation from the battlefield, and, ultimately, causes greater death and suffering than ordinary bullets? Monopoly is the key word. If both sides have access to explosive bullets, then everyone runs scared, thereby leaving each army to commit greater resources to treating and evacuating their wounded. Now, banning the weapon looks sensible. Prohibiting explosive bullets and similarly fearsome weapons such as blinding lasers, poison gas, or biological weapons restores some measure of traditional military rationale. Without dreading the terrifying injuries this ordnance causes, soldiers can go out and fight as they should. Ultimately, reciprocity, mutual self-​interest, fear of attack in kind, and the prospect of inhuman harm, however vaguely defined, underlie the idea of superfluous injury and unnecessary suffering. Asymmetric war, however, threatens the logic of reciprocity. If fears of a response in kind prompted nations to ban exploding bullets, poison gas, and blinding lasers, then asymmetric war should allay that fear. The Italians, for example, thought little about using poison gas as they fought primitively armed Ethiopian troops in 1935, but thought twice when facing competitively armed forces in the Second World War. Humanitarian impulses aside, military necessity offers an overriding incentive to use (rather than ban) nearly any weapon that comes to hand. But the cost is ultimately figured in compatriot, not enemy, suffering. If the classical notion of military necessity requires belligerents to weigh the usefulness of a weapon against the harm it brings to enemy soldiers and civilians, fear of retaliation adds an additional cost measured by the harm a response in kind will bring compatriots. Shorn of that cost, belligerents should have little incentive to restrain themselves. But they do, in fact, sometimes hold back, and weapons development has taken a new turn since the end of the Cold War. With the collapse of the Soviet Union came a semblance of Western hegemony and a growing role for the law of war, human rights, and humanitarian intervention. Civil wars and wars between states and non-​states overshadowed conventional wars among states. Post-​colonial, post-​Cold War conflicts in places like Yugoslavia, sub-​ Saharan Africa, Indonesia, the Middle East, Chechnya, and elsewhere claimed large numbers of noncombatant lives. In response, Western armies are developing an array of precision and non-​lethal weaponry to limit civilian casualties. These include nanotechnologies, non-​lethal weapons, and neuroweapons. Assuming that these weapons offer a military advantage comparable to conventional weapons but at lower costs and casualties, they will satisfy the demands of military necessity. As such, questions of

12

Nanotechnology

121

superfluous injury or suffering should not arise. But they do, particularly if a sense of inhumanity is an overriding factor.

5. Nanotechnology Nanotechnology manipulates matter at the molecular and atomic level so that, “by grinding down a substance to such small sub-​particles and then building it back up again, its characteristics can be altered potentially in a useful way.”27 Military uses include armor, sensors, miniature communication devices, armor-​piercing munitions, and antipersonnel weapons.28 And while munitions are often precision-​guided to minimize civilian casualties, they may nonetheless cause superfluous injury if nanoparticles invade the human body. This is a concern regarding DIME (dense inert metal explosives) munitions. Originally developed by the United States Air Force to reduce collateral harm in dense, urban areas, DIME munitions disperse an intense spray of very small particles of a tungsten alloy over a four-​meter radius. Within this small circle, micro-​shrapnel severs limbs and major blood vessels. Outside the circle, shrapnel falls harmlessly to the ground like dust. By some unverified accounts, Israel utilized DIME munitions in Gaza in 2008 to disable Hamas fighters ensconced in populated apartment buildings.29 Precise DIME attacks could disable combatants with very little property or collateral harm. Concerns about DIME are several-​fold and include environmental damage and direct harm to humans due to the undetectable nature and/​or possible carcinogenic effects of tungsten alloy micro-​fragments.30 Worries about invisible shrapnel speak directly to the 1980 Protocol prohibiting weapons that utilize undetectable fragments. As such, Nasu and Founce argue that the Protocol prohibits DIME munitions “given the potential seriousness of injuries caused by DIME attacks and the difficulty of treatment due to the size of the fragments.”31 While there is ample room to debate this question because newer scanning technologies might detect the fragments, the more interesting question is why it matters that micro-​shrapnel might be undetectable. To evaluate military necessity in its baldest form, one asks: Does the ensuing suffering exceed the military advantage of using a DIME weapon? Considering that military advantage speaks to the elimination of a military threat at minimal cost to civilians, the question seems to answer itself. No other weapon could minimize these costs further, thereby offering a prima facie case for necessity. Does the suffering of   Boothby (n 4) 57.   Hitoshi Nasu, “Nanotechnology and Challenges to International Humanitarian Law: A Preliminary Legal Assessment” (2012) 94 Intl Rev of the Red Cross 653–​72, 656–​7. 29   United Nations Human Rights Council, document A/​HRC/​12/​48, Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact-​Finding Mission on the Gaza Conflict (Goldstone Report), 2009 § 902–​5. 30   Nasu (n 28) 656. 31   Nasu and Faunce (n 6) 32. For an empirical study of the relationship between invisible projectiles and moral aversion see Benjamin P Buch, “The Roots of Moral Aversion to Novel Weapons,” paper presented at the conference “The Future of Just War: Theoretical and Practical Challenges,” Naval Postgraduate School, Monterey, CA, October 7–​9, 2015. 27

28

12

122

The Deaths of Combatants

the combatants killed or wounded by DIME munitions tip the balance in a different direction? Or might the utility of minimizing civilian deaths override a combatant’s right to fight without facing superfluous injury or unnecessary suffering? This depends, I think, on the distinction between inevitable death and untreatable wounds. Large numbers of combatant deaths define military advantage; they do not offset it. Military necessity, therefore, cannot regulate superfluous injury and unnecessary suffering. Doomsday weapons, as suggested earlier, may render war futile (if both sides possess them) or tyrannical (if only one side possesses them), but not inherently horrific or cruel. Weapons that bring untreatable wounds such as blindness, on the other hand, invoke the kind of suffering that bumps up against the window of liability and the conditions necessary for a dignified life. Charges that DIME weapons are carcinogenic remain unproved, but a cancer-​causing weapon or one that inevitably leaves embedded shrapnel to fester and cause debilitating lifelong pain might deny combatants the prospect of a dignified life. One may nevertheless ask whether combatants enjoy an absolute right to treatable wounds when these are the price to be paid for fewer civilian casualties. This perilous territory recalls the torture debate between those who permit exceptional cases of human rights abuses to save many lives (i.e. ticking bombs) and those who do not. The difference, of course, is that nanoweapons are not designed to inflict horrific wounds. Nor are untreatable wounds necessary for the weapon to disable soldiers and spare civilians. These wounds are its collateral effects that future technology or medical care may remedy without eroding the weapon’s utility. If so, then it seems that untreatable wounds (unlike torture) are a bearable cost to prevent large numbers of civilian casualties. This latter point is important. Both blinding lasers and DIME munitions may cause wounds that deprive a combatant of a dignified life. Nevertheless, the effects of the DIME munitions may be offset by saving noncombatants. Happily, this conundrum disappears with the advent of non-​lethal and neuroweapons because, unlike DIME munitions, these weapons cause no lasting injuries at all.

6.  Non-​Lethal Weapons Non-​lethal warfare takes advantage of technological advances in biology, chemistry, and physics to incapacitate combatants and noncombatants without causing permanent injury or significant loss of life. Non-​lethal weapons include chemical calmatives, electromagnetic technologies, and low-​impact kinetic arms that carry no more than a 1 percent chance of killing or severely injuring those affected.32 Underlying the development of non-​lethal weapons is the desire to provide an intermediate point on a “force continuum” between using high explosives and doing nothing. Chemical calmatives 32   Michael L Gross, Moral Dilemmas of Modern War: Torture, Assassination and Blackmail in an Age of Asymmetric Conflict (Cambridge University Press 2010) 77–​99; P Kaurin, “With Fear and Trembling: An Ethical Framework for Nonlethal Weapons” (2010) 9 J of Military Eth 100–​14; David Koplow, Nonlethal Weapons:  The Law and Policy of Revolutionary Technologies for the Military and Law Enforcement (Cambridge University Press 2006); John W Lango, “Nonlethal Weapons, Noncombatant Immunity, and Combatant Nonimmunity: A Study of Just War Theory” (2010) 38 Philosophia 475–​97.

123



Non-Lethal Weapons

123

render subjects unconscious by depressing neurological functions and, in theory, allow troops to take a military facility with minimal loss of life. Although the United States endorses the development of calmative weapons, they remain largely untested, having scored only mixed success when the Russians overcame Chechen insurgents in Moscow in 2002.33 Electromagnetic technologies utilize microwaves to create the sensation of intense burning but without causing tissue damage. Such “active denial systems” (ADS) are designed to repel mixed crowds of combatants and noncombatants without causing permanent harm. Acoustical and kinetic non-​lethal weapons (e.g. pepper balls, beanbags, or rubber bullets) also ward off or subdue crowds by causing minimal pain and suffering.34 Because non-​lethal weapons can offer the prospect of military advantage without collateral harm, various agencies, such as the National Research Council and Council on Foreign Relations, have championed their use in modern warfare.35 Amid objections that non-​lethal weapons may open the door to the use of banned chemical or biological weapons and undermine hard-​earned international treaties are charges that non-​lethal weapons cause superfluous injury and unnecessary suffering. These are two different claims. The first echoes utility:  The long-​term military costs of weakening the ban on chemical weapons trump the short-​term military benefits of subduing an enemy non-​lethally. Critics of chemical non-​lethal weapons often make this point, but their solution is to suggest an alternative non-​chemical, non-​lethal weapon, such as the ADS. This was precisely the view of the Council on Foreign Relations in 2004.36 The council was not so much worried about the harm that calmatives may cause to victims as it was about the likelihood that any permissible chemical weapon, no matter how non-​lethal, will eventually lead nations to build chemical weapons of mass destruction. This concern is difficult to evaluate. As warfare changes and the international community wrestles with many changing norms, there is no reason to think it will slide down a slippery slope rather than construct firm red lines around the use of different weapons in various situations. Certainly, successful attempts to prohibit antipersonnel land mines and cluster bombs demonstrate the resolve to ban weapons that greatly imperil civilians. Preventing the proliferation of chemical non-​lethal weapons does not, however, address reservations about a weapon specifically designed to target human physiology and, thereby, cause unnecessary suffering and superfluous injury.

33   D P Fidler, “The Meaning of Moscow: ‘Nonlethal’ Weapons and International Law in the Early 21st Century” (2005) 87 Intl Rev of the Red Cross 525–​52; Koplow, Nonlethal Weapons (National Academies Press 2003) 100–​12. 34   Koplow (n 33). 35   National Research Council, An Assessment of Nonlethal Weapons Science and Technology. Committee for an Assessment of Nonlethal Weapons Science and Technology Naval Studies Board Division on Engineering and Physical Sciences (Washington DC:  The National Academies Press, 2003); , p. 81. See also G N T Whitbred, Offensive Use of Chemical Technologies by US Special Operations Forces in the Global War on Terrorism: The Nonlethal Option. Air War College, Maxwell Paper No 37 (Air University Press 2006). 36   Council on Foreign Relations, Nonlethal Weapons and Capability; Report of an Independent Task Force Sponsored by the Council on Foreign Relations (Council on Foreign Relations 2004) 30–​32.

124

124

The Deaths of Combatants

The ADS, for example, exploits a twenty-​five-​second physiological “safety” zone between the threshold of pain and the threshold of tissue damage (i.e. targeted persons feel pain twenty-​five seconds before tissue damage occurs). Optical weapons—​ blinding lasers and flash grenades—​cause temporary blindness and disorientation. Acoustical weapons employ inaudible infrasound that can resonate in body cavities to cause disorientation, nausea, vomiting, and bowel spasms.37 Calmatives—​ chemical agents that depress or anesthetize the central nervous system—​can cause unconsciousness or incapacitating hallucinations, while innovations in neuroscience facilitate intelligence-​gathering and undermine enemy capabilities. What is wrong with weapons that disable but don’t kill? Current ICRC guidelines caution against weapons that “cause anatomical injury or anatomical disability which are specific to the design of the weapon.”38 Accepting this caveat means that a weapon specifically designed to depress the central nervous system, trigger convulsions, induce unconsciousness, or heat the skin to painful temperatures inflicts unnecessary suffering and superfluous injury, regardless of the magnitude or permanence of the harm it causes. As with nano and other novel weapons systems, this concern rests on an inarticulate and unsubstantiated fear of disease or medical manipulation. This alone should not tag a weapon with superfluous injury and unnecessary suffering. Rather, one must consider the concrete costs and benefits. Unlike DIME munitions, non-​lethal weapons pose no serious threat of death, long-​term injury, or untreatable wounds. As such, the tactical benefits offered by non-​lethal weapons should override any reservations about primordial harm or about compromising physicians into making weapons. Nor does the harm suffered by individuals impinge on human dignity in any obvious way. Can we say the same of neuroweapons?

7. Neuroweapons Drugs, brain-​machine interfaces, neural prostheses, genetic engineering, and mechanical cybernetic improvements to improve the fighting capability of soldiers, keep them alert, help them survive longer on less food, alleviate their pain, and sharpen and strengthen their cognitive and physical capabilities drive the art of enhancement.39 While most neurological interventions aim to improve the capabilities of compatriot soldiers, some take aim at enemy soldiers. “There is increasing military interest in the development of techniques that can survey and possibly control and manipulate the mental processes of potential enemies,” write Neil Davison and Nick Lewer. One of these is transcranial magnetic stimulation (TMS). TMS is painless; it “focuses an intense magnetic field on specific brain regions, and can affect thoughts, perceptions   J Altmann, “Acoustic Weapons—​A Prospective Assessment” (2001) 9 Sci & Global Sec 165–​234.   ICRC, “A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977” (2006) 88 Intl Rev of the Red Cross 947. 39   Jonathan Moreno, Mind Wars: Brain Research and National Defense (Dana Press 2006) 114–​38; A Saniotis, “Present and Future Developments in Cognitive Enhancement Technology” (2009) 14 J of Future Stud 27–​38; T Wang, “Towards a Military Medical Ethics Framework for Genetic Human Enhancement” (2010) 6 Penn Bioethics J 28–​12. 37

38

125

Neuroweapons

125

and behaviors that are dependent on those regions.”40 With TMS, it might then be possible to alter a person’s mood and to change hostility and hatred into trust and cooperation. TMS may also detect deception. Although the TMS device is small and requires an operator to pass a small coil directly over a person’s head, future applications may allow for long-​distance operation. TMS may then enable an armed force to painlessly and non-​lethally alter an enemy’s state of mind and behavior, and thus prevail in battle.41 But there are potential medical costs: “While TMS appears to be quite versatile and non-​invasive,” Bostrom and Sandberg, warn, there are “risks of triggering epileptic seizures, and the effects of long-​term use are not known.”42 In addition to TMS, there is fledgling interest in incapacitating weapons that use radiofrequency (RF) radiation to control the release of neurotransmitters in the nervous system. Early research indicates that RF radiation can cause the adrenal glands to produce excessive amounts of neurotransmitters, which, in turn, may immobilize or otherwise incapacitate those affected.43 The results are a long way from implementation, but the idea is to produce an incapacitating weapon similar to chemical weapons, without the attendant transient pain or legal difficulties of using a chemical agent that flirts with the CWC restrictions. At the same time, RF radiation would not be subject to fluctuating atmospheric conditions or difficulties of delivery that plague airborne chemical weapons. Finally, consider the possibilities of functional magnetic resonance imaging (fMRI), so named because it maps brain activity with an MRI device while a person is performing a cognitive task or function. FMRI does not alter behavior, but it can detect deception by watching brain activity when subjects are asked to identify photos of possible confederates, hideouts, or weapons. It may then be a useful tool for interrogators who suspect that a detainee has specific information about a terror attack or knows its perpetrators.44 Larger and heavier than a TMS apparatus, fMRI is pushing researchers to search for a small portable model that can map the brain from a distance. This might allow an armed force to detect and identify combatants who are otherwise indistinguishable from noncombatant civilians.45 Physiologically, the technology is harmless and painless (assuming the subject cooperates), but like all neuroweapons, fMRI confronts us with the prospect of invading the recesses of the human brain. Neuroweapons, like many other non-​lethal weapons, sharpen the debate over the harm we permit ourselves to inflict on other human beings. While ADS skillfully exploits physiology and chemical weapons deaden neurological responses, neuroweapons push their way into a person’s brain to alter behavior.46

40   Neil Davison and Nick Lewer, Bradford Nonlethal Weapons Research Project, Research Report No. 8 (University of Bradford, Centre for Conflict Resolution, Department of Peace Studies, March 2006) 16. See also Roy Hamilton, Samuel Messing, and Anjan Chatterjee, “Rethinking the Thinking Cap Ethics of Neural Enhancement Using Noninvasive Brain Stimulation” (2011) 76 Neurology 187–​93. 41   Turhan Canil et al, “Neuroethics and National Security” (2007) 7 Am J of Bioethics 3–​13. 42   N Bostrom and A Sandberg, “Cognitive Enhancement:  Methods, Ethics, Regulatory Challenges” (2009) 15 Sci & Engineering Eth 311–​41. 43 44 45   Davison and Lewer (n 40) 37.   Moreno (n 39) 112.   Canil et al (n 41) 9. 46   Moreno (n 39) 107–​8.

126

126

The Deaths of Combatants

This is, perhaps, the final assault on human dignity and free will, but the fundamental puzzle of non-​lethal warfare remains: Why is any of this worse than shooting an enemy dead? Non-​lethal weapons neither kill nor bring permanent injury, yet they do cause pain and suffering. Calmatives render targets unconscious; acoustical weapons cause severe nausea, and ADS intense pain. Effects are transitory but painful nonetheless. Neuroweapons neither incapacitate nor cause pain, making it simpler to see that they meet the demands of military necessity. This leaves opponents to either accept neuroweapons or quantify their costs in something other than suffering and loss of life. How might this be done? Do neuroweapons constitute an unforgivable assault on human autonomy and dignity by invading privacy and undermining free will in a fundamental way? If so, do these outcomes pale before the benefits? These are questions not easily answered. Military personnel enjoy only limited personal autonomy. Lack of autonomy is a constant feature of military life. While enlisted soldiers (in contrast to conscripts) have the right to leave service, those remaining must risk their lives on command, restrict their freedom of movement, and accommodate any demand necessary to perform their designated roles. Neurological interventions, however, raise dangers of dehumanization, violations of personality, and infringements of “cognitive liberty” whether the targets are friends or enemies.47 Cognitive liberty echoes Mill’s attention to the “inward domain of consciousness  . . .  liberty of conscience, in the most comprehensive sense; liberty of thought and feeling.”48 Cognitive liberty comprises the right to think for oneself free of external constraints or mind control. Tied closely to the right of privacy, cognitive liberty prohibits others from invading one’s personal mind-​space to either disrupt its processes or reveal its contents. Undermining cognitive liberty compromises the autonomous decision-​ making capability essential for individual self-​development in a free and democratic society. And, while deprivations of physical liberty (e.g. incarceration) depend upon due process, one may intuitively argue that deprivations of cognitive liberty, if permissible at all, require a much higher bar. But what happens during armed conflict? Commenting on the rules necessary to safeguard cognitive liberty, Sententia insists that “individuals should not be compelled against their will to use technologies that directly interact with the brain as long as their behavior does not endanger others.”49 While a healthy polity must safeguard the cognitive liberty of its citizens, enemy soldiers do, in fact, endanger others. Nevertheless, the threat posed by enemy soldiers cannot justify every use of force. This is where the discussion of superfluous injury and unnecessary suffering began. So, one must ask whether violations of personality or deprivations of cognitive liberty 47   R G Boire, “On Cognitive Liberty” (2001) 2 J of Cognitive Liberties 7–​22. See also Paul Root Wolpe, Kenneth Foster, and Daniel D Langleben, “Emerging Neurotechnologies for Lie Detection: Promise or Peril” (2005) 5 Am J of Bioethics 39–​49. See also Jonathan J Marks, “A Neuroskeptic’s Guide to Neurethics and National Security” (2010) 1 Am J of Bioethics Neuroscience 4–​12. 48   John Stuart Mill, On Liberty and Other Writings (Cambridge University Press 1989) 12. 49   W Sententia, “Neuroethical Considerations:  Cognitive Liberty and Converging Technologies for Improving Human Cognition” (2004) 1013 Annals of NY Acad of Sci 221–​28; emphasis added.

127



Concluding Remarks

127

are tantamount to superfluous or unnecessary injury in any of the ways described. And, if they are, is the right to cognitive liberty absolute, or might other factors override it? Given the infancy of neuroweapons and the lack of sufficient data about their effects, we might only hazard a few tentative answers. The deprivation of cognitive liberty by the neuroweapons described is transitory. Once enemy soldiers are compliant and jailed, physical deprivation replaces cognitive deprivation. Nor is there any incapacitating pain or suffering such as that which results from non-​lethal weapons. Because combatants are liable to loss of life, physical injury, or deprivation of physical liberty, there is no place or reason to carve out special consideration for deprivations of cognitive liberty, assuming that neuroweapons do not cause long-​term, untreatable injuries. The weapons, however, generate other fears. On the battlefield, neuroweapons, like non-​lethal weapons, raise concerns about bloodless war and lack of constraint. While reciprocity may prevent some states from fighting one another, those enjoying a monopoly of advanced non-​lethal weaponry might be tempted toward aggression. Off the battlefield lurks the slippery slope, and with it the inability to draw a bright line between enemies and compatriots. Weapons of war often make their way into law enforcement and no polity could allow its government the tools of mind manipulation without undermining its own health. Such fears are independent of superfluous injury and unnecessary suffering, but should lead us to closely monitor—​but not summarily reject—​t he development and utilization of non-​lethal and neuroweaponry.

8.  Concluding Remarks There are very few restrictions on killing combatants, and those that do exist are weak and ambiguous. Subordinating superfluous injury and unnecessary suffering to military necessity leaves decisions about using weapons in the hands of commanders in the field. In this sense it is little different from calculations of proportionality that are equally elastic and of little practical value. Attempts to establish criteria independent of military necessity face two difficulties. First, most nations resist firm criteria to regulate weapons development. This is the lesson from the failed SIrUS project whose suggestions were largely rejected in the final ICRC guidelines. Second, independent criteria often turn on horrific suffering that is profoundly subjective. No international instrument has successfully defined severe suffering. There are some vague rules of thumb—​cultural aversions rooted in fears of permanent blindness, asphyxiation, or persistent disease. But new generations of weaponry sidestep some of these aversions while at the same time offering the counterweight of saving civilian lives and reducing casualties. Some may argue that this claim echoes arguments surrounding the humanity of poison gas—​and they may be right. That debate was settled when the costs of poison gas, coupled with the development of chemical weapons of mass destruction (e.g. nerve gas) and the threat of retaliation in kind, were considered sufficient to outweigh the benefit of lower mortality rates among combatants. The debate over nano-​, neuro-​, and non-​lethal weaponry faces the same challenge. There are now,

218

128

The Deaths of Combatants

as then, humanitarian concerns about sophisticated weaponry that focus not so much on horrendous wounds but rather on long-​term or untreatable wounds and affronts to human dignity. These costs will grow if, and when, state armies lose their monopoly on sophisticated weaponry. Against these costs, the prospect of reducing casualties weighs heavily, and strengthens arguments for the development and deployment of nano-​, neuro-​, and non-​lethal weapons.

129

PA RT   I I PROP ORT IONA L I T Y, C I V I L I A N H A R M , A N D S OL DI E R S

310

13

5 Proportionate Defense Jeff McMahan*

1. Introduction Proportionality in defense is a relation between the good and bad effects of a defensive act. Stated crudely, proportionality requires that the bad effects of such an act not be excessive in relation to the good. If this seems simple, the apparent simplicity is an illusion. The purpose of this chapter is to explore some of the hitherto unappreciated complexities in the idea of proportionality. I will explain how a requirement of proportionality differs from a requirement of necessity, distinguish among various types of proportionality, and examine the ways in which proportionality in defense differs from proportionality in punishment. I will also suggest that certain good or bad effects may have less weight than others, or even no weight at all, in the assessment of proportionality. Finally, I will argue that proportionality is not just a matter of the consequences of action but is also sensitive to the ways in which consequences are brought about. Although I will discuss proportionality in the law of private defense and the law of armed conflict, my main concern is with proportionality itself—​that is, with proportionality as a moral constraint on action. I assume that acts of self-​defense or defense of others can be disproportionate in the absence of law, and therefore independently of the law. That such acts are disproportionate is, I further assume, an objective moral fact that is independent of what we may believe or what our customs or practices are. Whereas proportionality constraints in law are statutory or customary in origin, proportionality constraints in morality are not designed but are discovered or discerned. Proportionality in morality is thus logically prior to proportionality in law and provides the standard against which proportionality constraints in law are to be evaluated. My aim in this chapter is thus not to report how proportionality is understood in the law, or to suggest an interpretation of proportionality in the law, but to offer an understanding of the nature of proportionality as a constraint on defensive action that may help to guide the evaluation and possibly the reform of the ways in which proportionality is understood in the law.

*  This chapter is a revised and expanded version of Jeff McMahan, “Proportionate Defense” (2013–​ 14) 23 J Transnational L & Policy 1–​36. I have greatly benefited from written comments by Alejandro Chehtman, Roger Crisp, Shelly Kagan, and Ken Simons, and from discussion with Ruth Chang, Nicolas Frank, Frances Kamm, and Larry Temkin.

Proportionate Defense. Jeff McMahan. © Jeff McMahan, 2017. Published 2017 by Oxford University Press.

132

132

Proportionate Defense

2.  Proportionality, Necessity, and the Opportunity Costs of Defensive Action The concept of proportionality is often conflated with the concept of necessity, particularly in some of the legal literature, as I will indicate later. It is important, therefore, to clarify at the outset the precise nature of the distinction between a requirement of proportionality and a requirement of necessity as they apply to acts of defense. The relevant notion of necessity here is necessity as a constraint on a justification for harming. I will not be concerned with the related notion of necessity according to which necessity is itself a form of justification for harming. The difference between necessity and proportionality is in the different comparisons they require. The determination of whether an act of defense is necessary as a means of avoiding a threatened harm requires comparisons between its expected consequences and those of alternative means of achieving the same defensive aim. As the requirement of necessity is usually understood, an act of defense is necessary if and only if there is no alternative means of achieving the defensive aim that would cause less harm. This is, however, not accurate, and the correct understanding of necessity is rather complicated. For example, an act of defense may satisfy the requirement of necessity even if it would cause greater harm overall than some alternative defensive act, provided that it would cause less harm to those who are not morally liable to be harmed. And an act of defense can be unnecessary even if there is no alternative means of achieving the defensive aim that has an equally high probability of success. For there must be trade-​offs between the likelihood of success of different possible means of avoiding a threatened harm and the harms that these different means might inflict on innocent people as a side effect. An act of defense may be ruled out as unnecessary if, for example, there is an alternative act that would have only a slightly lower probability of success but would cause significantly less expected harm to bystanders. In this case, the significantly decreased harm to innocent bystanders might outweigh the slightly lower probability of success. But because my topic is proportionality rather than necessity, I will pass over these and other complexities in the requirement of necessity.1 Whereas necessity requires comparisons between an act of defense and alternative means of avoiding a threatened harm, proportionality requires a comparison between an act of defense and doing nothing to prevent the threatened harm. Another way of making this point is to say that necessity compares the expected consequences of an act of defense with those of other means of defense, negotiation, or retreat, while proportionality compares the consequences of an act of defense with those of submission or, in the case of third party defense, non-​intervention.

1   For illuminating discussions of many of the subtleties and complexities in the requirement of necessity, see Seth Lazar, “Necessity in Self-​Defense and War” (2012) 40 Phil & Public Affairs 3. Also see Jeff McMahan, “The Limits of Self-​Defense” in Christian Coons and Michael Weber (eds), The Ethics of Self-​ Defense (Oxford University Press 2016).

13



Proportionality and Opportunity Costs of Defensive Action

133

This explains why the failure of an act of defense to satisfy the proportionality requirement may be worse for the defender than a failure to satisfy the necessity requirement. If an act of defense satisfies the proportionality requirement but fails to satisfy the necessity requirement, there must be an alternative means of avoiding the threatened harm. But if an act of defense satisfies the necessity requirement but fails the test of proportionality, the potential victim has no morally permissible alternative but to submit to the threatened harm. When an individual is threatened with attack, her doing nothing to avoid the harm usually involves nothing other than being harmed. But the failure to engage in third party defense, preventive defense, collective defense, or humanitarian intervention unavoidably involves doing something else. Yet there are indefinitely many things an individual or a state can do rather than defend another person or other people. Suppose, for example, that one state is considering conducting a humanitarian intervention in another state and the question arises whether the intervention would be proportionate. With which of the many alternative courses of action that the state could take should its going to war be compared?2 One possibility is that the consequences of the state’s going to war should be compared with the consequences of its doing whatever it would be most likely to do if it were not to go to war.3 But this suggestion is vulnerable to various objections, one of which seems decisive. If what the state would be most likely to do if it were not to conduct the humanitarian intervention (for example, carry out a genocide) would cause more harm than the intervention would cause, the intervention would be proportionate no matter how much harm it would cause.4 Other terms of comparison might be suggested—​for example, what the state would have been most likely to do among the permissible alternatives, or whatever would be the best of the permissible alternatives. But the first of these seems arbitrary, in that it makes proportionality depend on contingent inclinations, while the second would convert proportionality into a maximizing requirement. Thomas Hurka has proposed a different comparison—​namely, that “we should compare the net effect of war with that of the least beneficial alternative that is morally permitted.”5 But suppose that the worst of a state’s permissible alternatives to war would involve its working to collect debts owed to it by poor countries that it would not collect if it were to go to war. It seems arbitrary to suppose that the benefit to the poor countries of the state’s going to war should weigh and potentially offset against the war’s bad effects, such as the killing of innocent bystanders as a side effect of military action, in determining whether the war is proportionate. 2   This problem of specifying the relevant counterfactual situation with which the consequences of an act of defense must be compared was first noticed, to the best of my knowledge, by Gregory Kavka, “Was the Gulf War a Just War?” (1991) 22 J of Social Phil 20. For an extended discussion of the problem, see generally David Mellow, “Counterfactuals and the Proportionality Criterion” (2006) 20 Ethics & Intl Aff 439. 3   For a defense of this proposal see Kavka (n 2). 4   For this and other objections, see Jeff McMahan and Robert McKim, “The Just War and the Gulf War” (1993) 23 Canadian J Phil 501. 5   Thomas Hurka, “Proportionality and Necessity” in Larry May (ed) War: Essays in Political Philosophy (Cambridge University Press 2008) 127, 130.

314

134

Proportionate Defense

Proportionality in defense does not, it seems, take account of either the opportunity costs (that is, the good effects the agent was prevented from causing) of defensive action or the “opportunity benefits” (the bad effects the agent was prevented from causing, such as the further impoverishment of poor countries through the collection of debts). Proportionality, it seems, takes account only of good and bad effects that defensive action causes. It does not take account of the effects that a defensive act allows to occur because engaging in the act prevents the agent from being able to prevent them. Nor does it take account of those effects it allows not to occur because doing the act prevents the agent from being able to cause them. Proportionality, in other words, does not require a comparison between entire possible worlds. It requires only a comparison between the relevant bad effects that defensive action (including war) would cause, either directly or indirectly, and the relevant good effects it would cause—​in particular, the prevention of harms that would otherwise be caused by others. What a person or a state would or could do if he or it were not to engage in some defensive action is irrelevant to the determination of whether the defensive action is proportionate. This is not to say that the opportunity costs (or benefits) of defensive action are irrelevant to the permissibility of the action; it is just that they are not relevant to proportionality. Nor are they relevant to necessity. Necessity is concerned with alternative means of achieving the same ends that some act of defense would be intended to achieve. But it may well be that an act of defense is impermissible because it excludes action that is morally required because it is necessary to achieve a different end. Suppose, for example, that a state has resources that are sufficient either to fight a just war of humanitarian intervention or to eradicate a fatal disease in a certain area of the world, but insufficient to do both. If the state goes to war, it will prevent 10,000 innocent people from being wrongly killed. But if it uses its resources instead to eliminate the disease, it will save 100,000 people. It is at least arguable that even if the war would satisfy both the necessity and proportionality requirements, it would still be impermissible because the state is morally required to use its resources to eradicate the disease instead.6 If that is right, just war theory must include a new principle of jus ad bellum that states the conditions in which war is impermissible specifically because it would exclude the pursuit of different, more important goals. But, while it may be necessary for just war theory to incorporate such a principle, the law of jus ad bellum cannot plausibly include a principle of this sort. It would be futile, and indeed counterproductive, to try to hold states legally liable for resorting to war solely on the ground that they could have done even more good by doing something else instead.7

6   There are obvious parallels here with the question whether, when one engages in charitable giving, one can act impermissibly by giving to a less rather than more effective charity. On this issue, see Theron Pummer, “Whether and Where to Give” (2016) 44 Phil & Public Aff 77; Jeff McMahan, “Doing Good and Doing the Best” in Paul Woodruff (ed), Philanthropy and Philosophy: Putting Theory Into Practice (Oxford University Press, forthcoming). 7   I have discussed the issue of war’s opportunity costs with Victor Tadros but our views have developed, and to some extent converged, quite independently. For his views, see Victor Tadros, “Unjust Wars Worth Fighting For” (2016) 4 J Practical Eth 52–​78.

135



Narrow and Wide Proportionality

135

3.  Narrow and Wide Proportionality Particularly in the legal literature, discussions of proportionality in individual self-​ defense are typically concerned with the question whether the harm the defender inflicts on the threatener is proportionate in relation to the harm the defender thereby averts. If, for example, the only way one can prevent oneself from being viciously pinched is to kill the potential pincher, the necessary defensive action would be disproportionate and one must submit to being pinched. The literature on proportionality in war, by contrast, is almost exclusively concerned with the question whether harms that a war or act of war would inflict on innocent bystanders (usually identified with civilians) as a side effect of military operations would be proportionate in relation to the aims of the war or act of war. The harms that a war or act of war would inflict on enemy combatants are generally assumed to be irrelevant to questions of proportionality. This is true both in just war theory and in the law. To the extent that people assume that proportionality in individual self-​defense is a matter only of harm to aggressors, whereas proportionality in war is a matter only of harm to innocent bystanders, they are mistaken, at least as a matter of morality. There are in fact two distinct dimensions of proportionality.8 One of these is concerned with harms inflicted on people, such as wrongful aggressors, who are potentially liable to some degree of harm. People sometimes act in a way that involves the forfeiture of their right not to be harmed in a certain way. In some instances these people may deserve to be harmed; in others they may only be morally liable to be harmed. I will elucidate the difference between desert and liability in Section 6. Here I will confine the discussion to liability. When a person is liable to be harmed, there is, in principle and in practice, a limit to the amount of harm to which he can be liable. When a person is liable to be harmed in defense of someone he will otherwise harm without justification, but the harm the defensive act inflicts on him exceeds the maximum harm to which he can be liable, the act is disproportionate in what I call the narrow sense. Narrow proportionality is thus a constraint on a liability justification for harming. The other dimension of proportionality is concerned with harms to which the victims are not liable. The most common form of justification for harming people who are not liable to be harmed is a lesser-​evil justification. This label should not be understood literally. The claim is not that it can be justifiable to harm a person whenever doing so would prevent a greater harm, even if the harm prevented would be only slightly greater. Rather, there is a lesser-​evil justification for harming a person who is not liable to be harmed when that is necessary to avoid a substantially greater harm to another, or to others, who are also not liable to be harmed. Whereas a liability justification for harming a person involves his having forfeited a right not to be harmed, a lesser-​evil justification applies when the victim’s retained right not to be harmed is overridden. When an act inflicts harm on a person to which he is not liable and that

8   The distinction between narrow and wide proportionality is drawn in Jeff McMahan, Killing in War (Oxford University Press 2009) 20–​21.

316

136

Proportionate Defense

harm exceeds what can be justified as the lesser evil, the act is disproportionate in the wide sense. (The labels “wide” and “narrow” are intended to reflect the fact that in most situations there are more people who are not liable to be harmed than there are people who are liable to be harmed. The scope of harm to which people are not liable is therefore wider.) People can sometimes make themselves liable to suffer defensive harm that is greater than the harm they would otherwise inflict. A person can, for example, make himself liable to be killed if killing him is the only way to prevent him from culpably torturing another person, even though death would be a greater harm than the torture. But while defensively inflicted harm that is greater than the harm it prevents can thus be proportionate in the narrow sense, it seems that it cannot be proportionate in the wide sense. It seems, in other words, that it cannot be permissible to inflict greater harm on a person who is not liable to be harmed as a means, or even as a side effect, of preventing a lesser harm to another person who is not liable to be harmed. (The only possible exception to this might be the infliction of a greater harm on a bystander as a side effect of preventing a somewhat lesser harm to someone to whom one is specially related in an important way, such as one’s child.) It is a corollary of this that the violation of wide proportionality is sufficient for impermissibility. That is, if there is no lesser-​evil justification for harming a person who retains and has not waived her right not to be harmed, the infliction of that harm cannot be permissible. But the same is not true of narrow proportionality. An act of defense that is disproportionate in the narrow sense can nonetheless be permissible. It can be permissible if the harm it inflicts on the threatener beyond that to which he is liable can be justified as the lesser evil. Suppose, for example, that because of his partial responsibility for a threat of unjustified harm, a person is liable to be harmed up to degree x as a means or side effect of preventing the unjustified harm. But suppose further that the only way to prevent the threatened harm is to cause the person to suffer harm x + n. The infliction of the additional harm n would be disproportionate in the narrow sense. But if the harm for which he is partially responsible would be sufficiently great, there could be a lesser-​evil justification for causing him to suffer the additional harm n as a means or side effect of preventing it. It would therefore be permissible to do the defensive act that would cause this person to suffer harm x + n. The harm up to degree x would have a liability justification, while the additional harm n would have a lesser evil justification. I call such a justification a combined justification. The idea of a combined justification raises a potentially quite important question. Call the person who bears partial responsibility for the threat of an unjustified harm P1. He is liable to be harmed only up to degree x. But to prevent the unjustified harm, it is necessary to inflict harm x + n. In the previous example, the additional harm n had to be inflicted on P1. But suppose the unjustified harm could be prevented equally effectively by inflicting harm x on P1 and inflicting the additional harm n on another person, P2, who is in no way responsible for the threat of unjustified harm and is thus not liable to be caused any harm at all. If there is a lesser-​evil justification for inflicting n on P1, there should also be a lesser-​evil justification for inflicting it on P2. For neither of them is liable to suffer harm n. Is it then a matter of moral indifference whether it is

137



Narrow and Wide Proportionality

137

inflicted on P1 or P2? Ought one to flip a coin? Or is there a reason to inflict it on one rather than the other? The question here is similar to the question whether there is a moral difference between punishing a guilty person by a certain amount more than he deserves and punishing a wholly innocent person by the same amount. Many people have the intuition that the punishment of an innocent person is worse than the over-​punishment of a guilty person to an equivalent degree. It may seem, similarly, that it would be worse to inflict the additional harm n on P2, who is not liable to any harm at all, than to inflict it on P1, who is already liable to be harmed to some degree to prevent the harm for which he is partially responsible. I am uncertain about this matter. But it is potentially quite important for the morality of war. Suppose, as I believe, that the criterion of liability to be harmed in war is moral responsibility for a threat of unjustified harm. When a state fights an unjust war, many adult civilians in that state bear some responsibility for the war and the unjustified harms it inflicts, though the degree of their responsibility is usually very slight. These civilians may therefore be liable to suffer a certain amount of harm, presumably quite small in most cases, as a means or side effect of thwarting their state’s unjust aims. They might not, for example, be wronged by being made to suffer certain small harms as a result of the imposition of economic sanctions. Suppose that the constraint against inflicting harms to which the victims are not liable is weaker in the case of those who are already liable to some harm than in the case of those who are not liable to any harm. In that case, there would be a stronger lesser-​evil justification for causing harms to civilians beyond the minor harms to which they might be liable than there would be to cause them those same harms if they were not liable to any harm at all. That is, combining the idea that civilians can be liable to some harms with the idea that harms that exceed the victim’s liability count less than equivalent harms inflicted on wholly non-​liable people leads to a somewhat more permissive view of the morality of harming civilians in war. This is an unsettling implication. One possible response for those who believe that a harm in excess of liability counts less than an equivalent harm to a wholly non-​liable person would be to claim that the extent to which harms beyond liability are discounted varies with the degree of harm to which the victim is liable. On this view, a fixed harm beyond the harm to which the victim is liable has less weight if the victim is already liable to suffer great harm than it would if the victim were liable to suffer only a small harm. Then, assuming that most civilians in a state that is fighting an unjust war are liable at most to only relatively small harms, the acceptance of the view that harms beyond liability have less weight than equivalent harms inflicted on wholly non-​liable people would not increase the moral vulnerability of civilians by much. The view that harms to which the victims are not liable have less weight if the victims are liable to some harm than if they are not liable to any harm has one implication that may not be unwelcome. Suppose that a significant proportion of the adult civilians in a state fighting an unjust war are liable to small harms but that civilians in an opposing state that is fighting for just aims, as well as civilians in neighboring neutral states, are not liable to any harm at all. Suppose further that certain acts of war by the just side will unavoidably harm some civilians as a side effect but that it is possible to choose

138

138

Proportionate Defense

whether the harm will be suffered by civilians in either the state fighting unjustly, the state fighting justly, or a neutral state. If the magnitude of the harm would be the same in each option and would be widely proportionate in each case, the harm ought to be inflicted on civilians in the state fighting unjustly, as some of the harm to them could be justified on grounds of liability, which would leave less harm to be justified as the lesser evil. But if harms to those who are already liable to some harm have less weight, then the harm ought to be inflicted on civilians in the state fighting unjustly even if the total harm would be somewhat greater than in the other options, for the harms inflicted on those civilians would have somewhat less weight than equivalent harms inflicted on civilians in the other states who are not liable to any harm. I do not claim that this is correct, but it does not seem to me obviously implausible.

4.  Narrow Proportionality in War I noted at the beginning of Section 3 that discussions of proportionality in the morality and law of individual self-​defense tend to focus on the harm that defensive action inflicts on the threatener, so that these discussions are generally concerned with narrow proportionality only. But individual self-​defense is also governed by a requirement of wide proportionality. It is just that it less frequently happens that individual self-​defense harms or imposes unjustified risks on innocent bystanders. When, in 1984, Bernard Goetz shot four panhandlers in a New York subway car, he exposed other passengers who were trapped in the car to risks of harm that seem clearly excessive in relation to the threat of harm, if any, that he faced from the panhandlers. His repeated firings of the gun were thus instances of individual self-​defense that were disproportionate in the wide as well as the narrow sense.9 In contrast with discussions of proportionality in individual self-​defense, discussions of proportionality in war tend to ignore harms to threateners—​that is, combatants—​and thus to take account only of harms inflicted on bystanders who pose no threat—​that is, civilians. In both just war theory and the law of war, there is one set of principles that govern the resort to war (jus ad bellum) and another distinct set of principles that govern the conduct of war (jus in bello). In just war theory, each set contains a principle of proportionality. Thus, for it to be permissible for a state to resort to war, the expected bad effects the state’s war would cause must not be excessive in relation to the importance of achieving the just cause for war, together with any other good effects that may weigh against the bad. Similarly, for each individual act of war to be permissible, its expected bad effects must not be excessive in relation to its expected good effects. The bad effects that count in the assessment of in bello proportionality are the same as those that count in the assessment of ad bellum proportionality—​ namely, harms to those who are “innocent,” or not liable to be harmed. In the traditional theory of the just war, those who are not liable to be harmed are noncombatants (whom for present purposes we may identify with civilians, though the two categories are often defined in ways in which they are not coextensive). Proportionality in war is

 Ibid.

9

139



Narrow Proportionality in War

139

thus understood in the just war tradition as wide proportionality only. Narrow proportionality, which is concerned with harms to those who are liable to some degree of harm—​combatants—​is not recognized as a moral issue. There are various mutually compatible explanations of why just war theory excludes harms inflicted on enemy combatants from the assessment of both ad bellum and in bello proportionality. Foremost among these is that the traditional theory assumes that all combatants are liable to be killed at any time during a state of war. That assumption leaves little scope for harming them in excess of the harm to which they are liable. In law the situation is rather more vexed. Although there are references in the legal literature to the notion of proportionality in jus ad bellum, in neither statutory nor customary international law does there seem to be a legal prohibition of the resort to war when the war’s expected bad effects would be excessive in relation to its expected good effects.10 Certainly there is no suggestion that a war as a whole could be disproportionate in the narrow sense—​that is, that it could be disproportionate, and therefore illegal, because the expected harm it would cause to enemy combatants would be excessive in relation to the importance of achieving the just cause, such as national self-​defense. There is, however, a statutory proportionality requirement in in bello law (sometimes referred to as the law of armed conflict or, more often, as international humanitarian law, or IHL). This requirement is in Article 51(5) of Additional Protocol I of the 1977 Geneva Conventions.11 It prohibits any “attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”12 This principle, to which I will return, is a principle of wide proportionality, in that it restricts only acts that are expected to harm civilians, who are not legally liable to attack. It says nothing about harms to those, such as enemy combatants, who are liable to attack and are thus legitimate targets. (Curiously, this principle is referred to in Additional Protocol I as a principle of discrimination rather than as a principle of proportionality. This reflects a common practice in the law of what seems to me to be mislabeling or conflating of categories. I will cite other examples presently.) It is widely held, however, that IHL also contains principles of proportionality that limit the harm that it is permissible to inflict on enemy combatants—​that is, principles of narrow proportionality. It is even said that when proportionality was first introduced as a principle governing the conduct of war, its aim was the protection of combatants, and that a parallel principle aimed at the protection of civilians did not enter the law until later, after the ratification of the United Nations Charter.13 Yet references in the legal literature to proportionality in the harming of enemy combatants seem, 10   For references to the notion of proportionality in ad bellum law, though with indications that the notion has no practical function, see Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge University Press 2004) 14, 20, 22–3, 74. 11   “1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts” in Adam Roberts and Richard Guelff (eds), Documents in the Laws of War (Oxford University Press 1982) 416. 12 13  Ibid.   Gardam (n 10) 29, 50.

410

140

Proportionate Defense

on inspection, to be claims about necessity rather than proportionality. The relevant statutes concern prohibitions of certain types of weapon. Consider, for example, an early agreement to prohibit certain weapons—​the St Petersburg Declaration of 1868.14 Its preamble contains these phrases: That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.15

This is a clear statement of a requirement of necessity, which condemns weapons that inflict more harm on combatants than is necessary to disable them from participation in combat. Because the additional harms exceed what is necessary to achieve the legitimate aims of combat, they are gratuitous or wanton. Statements such as this are the basis of subsequent regulations that prohibit certain weapons because they cause “superfluous injury” or “unnecessary suffering.” An injury is superfluous when it involves more damage to the victim than is necessary to incapacitate him or render him hors de combat—​for example, an injury that inevitably kills rather than merely disabling the victim. And suffering is unnecessary when it exceeds whatever suffering is unavoidable in rendering a combatant hors de combat. When it is claimed that a weapon inevitably causes superfluous injury or unnecessary suffering, there is an implicit comparison with other weapons that could incapacitate enemy combatants equally effectively without inflicting the additional injury or suffering. And comparisons between one way of achieving an aim and alternative means of achieving that same aim are, one may recall, precisely what is required to test for necessity. Thus, according to one commentator, “the crucial question is whether other weapons or methods of warfare available at the time would have achieved the same military goal as effectively while causing less suffering or injury.”16 This is a succinct statement of the test of in bello necessity, yet it is quoted by another writer as a formulation of “the proportionality equation.”17 There could scarcely be a clearer conflation of proportionality with necessity than a brief passage from the International Committee of the Red Cross (ICRC) commentary on antipersonnel mines, which observes that it is a “basic rule” of IHL that “it is prohibited to use weapons which cause unnecessary suffering. Therefore, the use of weapons whose damaging effects are disproportionate to their military purpose is prohibited.”18 In bello proportionality in law is indeed, as Additional Protocol I makes

14   Declaration Renouncing the Use in Time of War of Explosive Projectiles Under 400 Grammes Weight, December 11, 1868, 138 Consol TS 297 [hereinafter St Petersburg Declaration]. 15  Ibid. 16   Christopher Greenwood, Command and the Laws of Armed Conflict (SCSI, The Occasional No 4, 1993) 24. 17   Gardam (n 10) 69. 18  International Committee of the Red Cross [ICRC], Anti-​Personnel Landmines—​Friend or Foe?: A Study of the Military Use and Effectiveness of Anti-​Personnel Mines, 24 (March 1, 1996).

41



Narrow Proportionality in War

141

clear, a relation between the expected “damaging effects” of an act of war and the “military purpose” it is expected to achieve. But this is quite different from the relation between the suffering caused by one means of achieving a military purpose and that which would be caused by alternative means of achieving that military purpose. It is this latter relation that determines whether the suffering caused by the one means is unnecessary. An act of war is disproportionate if the harm or suffering it causes is excessive in relation to the military advantage it provides. The same act of war is unnecessary if the harm or suffering it causes exceeds that which would be caused by an alternative, equally effective means of achieving the same military advantage (or a different military advantage of equivalent importance). These are entirely different judgments about the act of war, one based on a comparison between an act’s good and bad effects, the other based on comparisons between its combined good and bad effects and the combined good and bad effects of alternative possible means of achieving the good effects. Judith Gardam, whose book, Necessity, Proportionality, and the Use of Force by States, provides a scholarly survey of legal thought about proportionality in war, acknowledges that “[t]‌he use of the term ‘proportionality’ in relation to the rules that regulate the means and methods of warfare for the protection of combatants has been criticised.”19 She goes on to observe, however, that “the relevance of proportionality to the assessment of weapons is borne out by the fact that many articulations of the test of superfluous injury or unnecessary suffering use this term,” citing as an example the passage from the ICRC quoted in the preceding paragraph.20 What this suggests is that the conflation between proportionality and necessity is quite systematic in legal thinking about proportionality in harms to combatants in IHL. As a consequence, it is doubtful whether IHL recognizes a genuine proportionality constraint on the harming of enemy combatants. I know of nothing in IHL that would rule out an act of war on the ground that the harm it would inflict on enemy combatants is too great to be justified by the military advantage the act would bring, given that it would afford some military advantage. Although neither the traditional theory of the just war nor the law of war seems to recognize the possibility of narrow disproportionality either in the resort to war or in the conduct of war, morality itself clearly imposes a proportionality constraint on expected harms to enemy combatants, both in the resort to war and in the conduct of war. This may seem an almost a priori truth. Most just war theorists assume that many combatants are liable to be harmed in war, though they differ in their accounts of the bases of liability. In my view, there cannot be a just cause for war unless the combatants whom it is necessary to attack to achieve the aims of the war are liable to be attacked.21 But if many combatants are liable to be attacked in war, it seems that it must be possible to harm them in excess of the harm to which they are liable, just as

  Gardam (n 10) 15.   Ibid 69. See also ibid 15, fn 57 (“commentators constantly use the word ‘proportionate’ in relation to the regulation of weapons to protect combatants”). 21   For elaboration, see Jeff McMahan, “Proportionality and Just Cause: A Comment on Kamm” (2014) 11 J Moral Phil 428–​53. 19

20

412

142

Proportionate Defense

this is possible in individual self-​defense. Hence there must be a possibility of disproportionate harm to combatants in war. Yet, as I noted, the traditional theory of the just war claims that all combatants are liable to be killed at any time in war. One might think that this entails that it is impossible to harm them beyond their liability. There are two replies to this. One is the familiar point that there are harms worse than death, or at least worse than immediate death. Suppose a group of enemy combatants are occupying a relatively unimportant military facility. Gaining possession of the facility in an intact condition would confer a minor military advantage but the combatants occupying it cannot be killed or driven out in any of the ordinary ways without destroying it. The only way to take possession of the facility is to release a gas into it that will kill the combatants only after causing them to suffer incapacitating agony for a week. Even if these combatants are liable to be killed, they may not be liable to be killed in this way as a means of securing a minor military advantage. The second reply is more important. It is that, as a matter of morality, not all combatants are liable to be killed during a state of war. I have argued at length elsewhere that “just combatants” who fight for a just cause, in a just war, and by permissible means are not morally liable to be harmed in any way.22 I also believe, though I will not argue for it here, that not all “unjust combatants” who fight for an unjust cause in an unjust war are liable to be killed. Some pose no threat, others pose only a minor threat, and some—​such as some child soldiers—​may be barely responsible at all for the threat they do pose. It is arguable that none of these is liable to be killed. It may seem that the most obvious way in which the killing of unjust combatants might be disproportionate is that the number killed might be excessive in relation to the importance of the end for which they are killed. Suppose, for example, that it had been necessary to kill half a million Argentine combatants to preserve British sovereignty over the Falkland Islands. I believe that in that case the Falklands War would have been disproportionate because of the harm it would have inflicted on unjust combatants. Yet the war would have been proportionate in this respect if it had been necessary to kill only one Argentine combatant. So it seems that each Argentine combatant was potentially liable to be killed; hence the reason it would have been impermissible to kill half a million is not that that would have been widely disproportionate. The problem here is that, although wide proportionality takes account of the number of individuals harmed, narrow proportionality does not. Narrow proportionality is a constraint on a liability justification for harming a single individual. It is a measure of the degree of harm to which an individual is liable. It can thus take account of numbers only indirectly. The number of wrongful aggressors it can be proportionate to kill is, therefore, not a matter of either wide or narrow proportionality, but of a third, distinct form of proportionality that I call “proportionality in the aggregate.” I believe it is intuitively clear that killing half a million minimally culpable combatants would have been disproportionate in the aggregate in relation to the importance of preserving British sovereignty over the Falkland Islands. It follows from this, I think, that none of those half-​million

  McMahan (n 8) 7–​15.

22

413



Narrow Proportionality in War

143

combatants would have been liable to be killed. Killing any one of them on his own would have done no good, or perhaps only a tiny bit of good. If effectiveness and narrow proportionality are internal to liability, it follows that each combatant would not have been liable to be killed on his own. Although killing all half-​million combatants would have made the killing of each effective and narrowly proportionate, it would nevertheless have been disproportionate in the aggregate. It would, therefore, have been impermissible to kill all half-​million combatants and no one of them would have been liable to be killed, in the circumstances.23 From the fact that morality does impose a proportionality constraint on the number of unjust combatants it can be permissible to kill, it does not follow that either the law of jus ad bellum or IHL ought to include such a proportionality requirement. There are various reasons for thinking that the law ought not to mirror morality in this respect. I will mention only two. One derives from the fact that there is as yet no mechanism for the coordinated international enforcement of the prohibition of unjust war. It is therefore necessary for the deterrence of unjust war that victims of unjust aggression should often fight defensively rather than submit. And a legal ad bellum proportionality requirement that might inhibit defense against unjust aggression would therefore threaten to weaken deterrence. In determining whether the law ought to recognize any ad bellum proportionality constraint, this consideration would have to be weighed against the otherwise obvious appropriateness of the legal enforcement of the moral prohibition of disproportionate war. The second reason for doubting that there should be ad bellum and in bello proportionality requirements governing the killing of enemy combatants is in tension with the first. It is that such requirements would be pointless because they would not be taken seriously. It is hard to imagine any state refraining from engaging in an otherwise just war on the ground that the war would require harming enemy combatants to an extent that would be disproportionate in relation to the importance of achieving the just cause. I will conclude this section with a very brief rehearsal of a point that I believe to be important, but that I have stated at length elsewhere.24 As we saw earlier in this section, traditional just war theory has distinct ad bellum and in bello proportionality constraints. In the assessment of both of these forms of proportionality, the bad effects that must be outweighed if a war or act of war is to be proportionate are harms inflicted on civilian bystanders, or noncombatants, as a side effect of military operations. Yet in both traditional just war theory and the law, the good effects that weigh against these harms are different in the two forms of proportionality judgment. In ad bellum proportionality, the good effects that weigh against the harms a war can be expected to cause are primarily the achievement of the just cause and perhaps some other justified 23   For elaboration, see Jeff McMahan, “Liability, Proportionality, and the Number of Aggressors” in Saba Bazargan-​Forward and Samuel C Rickless (eds), The Ethics of War: Essays (Oxford University Press 2017). 24   Jeff McMahan, “War Crimes and Immoral Action in War” in Antony Duff et al (eds), The Constitution of Criminal Law (Oxford University Press 2013) 178; Jeff McMahan, “Proportionality and Necessity in Jus in Bello,” in Seth Lazar and Helen Frowe (eds), The Oxford Handbook of the Ethics of War (Oxford University Press 2017) section 3.

41

144

Proportionate Defense

aims (weighted for probability), as well as certain good side effects (about which I will say a little in Section 6). In in bello proportionality, by contrast, there is only one type of good effect that weighs against the bad: military advantage. The reason for this discrepancy is primarily that if in bello proportionality depended on the contribution that an act of war would make to the achievement of a just or justified aim, the acts of war of combatants fighting in the service of unjust aims could not be proportionate and would therefore be impermissible. But just war theorists and international lawyers have understood that, to have any effect, the rules and laws of war must constrain rather than simply prohibit the military action of unjust combatants. It would of course be foolish to disparage the aim of regulating and constraining the action of unjust combatants. But that practical imperative cannot render coherent the weighing of harms to innocent bystanders against military advantage. The problem is that military advantage has no value in itself. Whatever value it has is instrumental—​ that is, it lies in what the advantage is advantageous for. If the aims of a war are unjust, military advantage for the unjust side is itself a bad effect and cannot weigh against or offset harms to innocent bystanders. As a matter of morality, therefore, most acts of war by unjust combatants cannot be proportionate and thus cannot be permissible. It is less obvious what the solution is for the law.

5.  Punishment and Desert, Defense and Liability Proportionality is perhaps more familiar as a constraint on punishment than it is as a constraint on defense. It is therefore important to understand the ways in which proportionality in defense differs from proportionality in punishment. As I  mentioned earlier, proportionality in individual self-​defense is normally assumed to be concerned only with the harm inflicted on the threatener by the defender—​that is, it is assumed to be a matter of narrow proportionality only. A parallel assumption is generally made about punishment as well—​that it is concerned only with harms inflicted on those who are punished. But this is a mistake that has had terrible consequences. Punishment often harms innocent bystanders as a side effect, just as military action in war does. This is particularly true of capital punishment. The death of a child is one of the worst misfortunes that a parent can suffer. And the death of a parent, perhaps especially by killing, can also be a dreadful misfortune for a child, particularly when the child is young. Yet capital punishment often inflicts these terrible harms on the parents or children of the person who is executed. This is an important moral reason in many cases to sentence an offender, no matter how evil or depraved, to life imprisonment rather than execution. Proportionality in punishment is generally thought to be a relation between the wrongdoing a person has done in the past and the harm that is later inflicted on him as punishment. It is therefore essentially retrospective, in that it requires a comparison between past action and present harm. Disproportionate punishment inflicts harm that is excessive in relation to what the criminal has done in the past. Many people assume that proportionality in defense, and particularly ad bellum proportionality in war, is similarly retrospective. During and after the Israeli invasion of Gaza in 2008, for example, many critics of the invasion claimed that it was

415



Punishment and Desert, Defense and Liability

145

disproportionate because the harms that the Israeli forces inflicted on Palestinian civilians were vastly excessive in relation to the harms that Palestinians in Gaza had inflicted on Israeli civilians, which provoked the invasion. These critics pointed out that the rockets that the Palestinians had fired into Israel had killed only a few Israeli civilians, whereas the invasion killed over a thousand Palestinian civilians. If the Israeli attack on Gaza had been a reprisal, this way of assessing proportionality would have been appropriate. In law, a reprisal is a use of force intended to compel an adversary to halt or repair some breach of international law, and it is generally held that the harm done by way of reprisal must be proportioned to the harm caused by the initial offense. In the International Criminal Tribunal for the former Yugoslavia, for example, the Trial Chamber ruled that “reprisals must not be excessive compared to the precedent unlawful act of warfare.”25 But it would be a mistake to conflate proportionality in reprisal with proportionality in defense. The aim of defensive violence is the physical prevention of harm by a threatener. Proportionality in defense is therefore essentially prospective. It weighs the harms that an act of defense will cause against those that it will prevent. For this reason, the harms that Palestinians in Gaza had inflicted on Israeli civilians in the past were relevant to the proportionality of the Israeli invasion only insofar as they provided evidence of the Palestinians’ intentions and capabilities in causing further harm in the future. That proportionality in punishment is retrospective while proportionality in defense is prospective is only one difference between them. It is generally thought that another difference is that proportionality in defense is simpler, in that it is concerned only with weighing harms caused against harms prevented, whereas proportionality in punishment must take account of the mental elements in the crime for which punishment is imposed. Proportionality in punishment must take account not only of how much harm an offender caused but also the extent of the offender’s culpability, for both of these considerations together determine how much harm the offender deserves. How much harm an offender deserves as punishment depends, therefore, on what his motives and intentions were in committing the offense for which he is to be punished, what he knew or ought to have known, whether he acted recklessly or under duress, and so on. That proportionality in defense does not take account of the mental elements that are essential to the determination of proportionality in punishment is a natural assumption for those concerned with proportionality in war, since it has been assumed that proportionality in war is wide proportionality only—​that is, that it is concerned only with harms caused to innocent civilian bystanders, who are assumed not to be liable to be harmed. Their mental states are clearly irrelevant to how much harm it can be proportionate to cause them as a side effect of military action. Yet the mental states of someone who is potentially liable to be harmed in certain ways are highly relevant to the determination of the degree of harm to which he is liable, and thus to how much harm it can be proportionate to inflict on him in defense. A threatener’s mental states are, in other words, highly relevant to narrow proportionality. The degree of harm 25   Prosecutor v Kupresic, Case No. IT-​95-​16-​T, Judgment, para 535 (Int’l Crim. Trib. for the former Yugoslavia, January 14, 2000).

416

146

Proportionate Defense

that it can be proportionate to inflict on a threatener in defense varies, for example, with the degree of his moral responsibility for the threat he poses, as well as, in particular, with whether he is culpable and, if so, the degree of his culpability for posing the threat. If, as I argued in Section 4, narrow proportionality can be a serious issue in war, then there is a dimension of proportionality in war that is sensitive to considerations of motive, intention, epistemic limitation, duress, and so on, just as proportionality in punishment is. The main difference between narrow proportionality in punishment and narrow proportionality in defense is that while the former is concerned with harms that people allegedly deserve, the latter is concerned with harms to which people are liable. To understand the difference between narrow proportionality in defense and narrow proportionality in punishment, we must therefore understand the differences between desert and liability. Both desert and liability are corollaries of the forfeiture of rights, but the moral implications are different in the two cases. (Some philosophers reject the idea that people can deserve to be harmed but nevertheless accept that a practice of punishment can be justified. They tend to argue that punishment can be justified in much the same way that defensive harming can be justified, even when the main aim is not defense but deterrence.26) It is generally agreed that, to deserve to be harmed, a person must be culpable. Yet according to many accounts of the basis of liability to defensive harm, liability does not require culpability. There are, however, accounts of liability to defensive harm that claim that culpability is a necessary condition of liability. It is therefore not a conceptual difference between desert and liability that the former requires culpability whereas the latter does not. There are two main differences between desert and liability, at least as I understand the latter notion. The first is that a person can deserve to be harmed even when harming her will have no good effects other than the fulfillment of her desert, whereas a person cannot be liable to be harmed unless harming her will have good effects, such as the prevention of a harm that she will otherwise unjustifiably cause. Giving a person what she deserves can be an end in itself, but a person can be liable to be harmed only if harming her is a means or unavoidable side effect of bringing about some good effect. It is a corollary of this claim that there is a necessity condition internal to the concept of liability. The reason why liability, as I understand it, is necessarily instrumental is that the assignment of liability is a matter of justice in the distribution of harm when some harm is unavoidable. Thus, whenever a person is liable to be harmed, this is because, if he is not harmed, someone else will inevitably be harmed instead. Suppose, for example, that it is unavoidable that one person in a group of people will be harmed but it is a matter of choice which person it will be. If one person rather than any of the others is responsible for creating the threat, or if he is more responsible than anyone else and the harm cannot be divided, he is then liable to be harmed—​t hough if 26   The best work of this sort has been done by Daniel Farrell and Victor Tadros. See, for example, Farrell, “The Justification of General Deterrence” (1985) 94 Philosophical Rev 367–​94; Tadros, The Ends of Harm (Oxford University Press 2011).

417



Punishment and Desert, Defense and Liability

147

harm could be avoided altogether, there would be no reason to harm him. By contrast, a person can deserve to be harmed even when further harm is wholly avoidable. Normally it is hoped that the infliction of deserved harm will, through defensive or deterrent effects, diminish the overall level of harm that people will suffer; but it is usually held that the infliction of deserved harm can be permissible even when it will not have any such good effects and will simply increase the net amount of suffering in the world. The second important way in which liability differs from desert is that the amount of harm a person is liable to suffer can vary with the circumstances whereas the amount of harm a person deserves to suffer cannot, or at least not in the same ways. The amount and perhaps even the kind of harm a person deserves to suffer is fixed by the nature of the wrongdoing of which he is guilty and the degree to which he is responsible for that wrongdoing. There is, of course, controversy in the philosophy of punishment about whether the nature of the wrongdoing that is the basis of desert can be a matter of chance—​for example, whether a person who attempts a murder but fails as a result of conditions beyond his control deserves the same punishment as he would have deserved if he had succeeded. But whatever position one takes on the relevance of luck to desert, it remains true that liability is vulnerable to chance in ways that desert is not. There are, of course, disagreements about the ways in which liability is vulnerable to chance. Some believe that the degree of harm to which a person can be liable is limited by the degree of his responsibility or culpability. On this view, a person who is responsible for a threat of harm but is not culpable, or only minimally culpable, cannot be liable to suffer a very great harm. Others believe that liability is essentially comparative, so that if a very great harm is both unavoidable and indivisible and one person bears some responsibility for it and other potential victims bear none at all, the responsible person is liable to suffer that harm. That could be so even if the degree of his responsibility was slight. Even on this view, however, the harm to which a person can be liable is limited by the amount of harm for which he would otherwise be responsible. There is an even more expansive view of liability according to which a person can be liable to be harmed as a means or side effect of the prevention of a harm for which he is in no way responsible, provided that he is culpable for other reasons.27 However the limit to the degree of harm to which a person can be liable is determined, there are ways in which liability can vary beneath that limit as a result of chance. Desert does not vary in these ways. Here are two examples. First, the harm to which a person is liable can vary with the action of others. Suppose that liability to harmful defensive action arises from moral responsibility for a threat of unjustified harm. On that assumption, if I alone am responsible for the fact that either I or another person will unavoidably suffer a harm, I am liable to suffer that harm. But suppose that I and the other person share responsibility for the fact that one of us must be harmed, yet the greater share of the responsibility is his. In that 27   I suggested this possibility but did not embrace it in “Self-​Defense and Culpability” (2005) 24 Law & Phil 751–​74. For a defense, see Lars Christie, Harming One to Save Another: Liability and Lethal Luck (University of Oslo 2015).

418

148

Proportionate Defense

case, although I may bear as much responsibility as I did in the case in which I alone was responsible, it is the other person who is liable to suffer the harm, assuming that all of the harm must go to one or the other of us. That is, whether I am liable to suffer the harm depends on whether someone else’s responsibility for the fact that someone must be harmed is greater than my own. If, furthermore, the unavoidable harm is divisible between the other person and me, I may be liable to a share of the harm that is proportional to my share of the responsibility. The amount of defensive harm to which a person is liable can also vary with the defensive options of others. Suppose, for example, that one person is charging toward another wielding a meat cleaver with the evident intention of lopping off the other’s head. Suppose the only means of defense the potential victim has is a flamethrower. Assuming that chopping the intended victim’s head off would be unjustified and that the threatener is morally responsible for the threat he poses, he is, in these circumstances, morally liable to be killed. But suppose that in addition to the flamethrower, the potential victim happens also to have a pistol and is a skilled marksman. In that case, the threatener is not liable to be killed but is liable only to be incapacitated by being shot in the leg. This example illustrates my earlier claim that there is a necessity condition implicit in the notion of liability, so that a person cannot be liable to suffer a greater defensive harm if the infliction of a lesser harm would have an equal or greater probability of fully achieving the defensive aim. One implication of the fact that the harm to which a person is liable can vary in these ways, though the harm a person deserves cannot, is that a person can be liable to suffer far more harm, or far less harm, than he might deserve. A driver who is momentarily distracted by the use of her mobile phone is liable to be killed if that is necessary to prevent her from running over a pedestrian, but she certainly does not deserve to be killed. Similarly, a person whose attempt at murder can be thwarted by knocking him unconscious is liable only to be knocked unconscious, though he may deserve a substantially greater harm.

6.  The Deontological Nature of Proportionality It is often said that proportionality is the consequentialist element in doctrines of self-​ defense and just war. But if this is meant to indicate anything more than that proportionality is concerned with the consequences of action, it is highly misleading. The assessment of proportionality involves a great deal more than simply aggregating harms and benefits to see how the sums compare. It instead takes into account various principles and distinctions found in deontological ethics. This is because narrow proportionality is a constraint on a liability justification and wide proportionality is a constraint on a lesser-​evil justification. Both of these forms of justification are non-​consequentialist. In this final section I will examine some of the ways in which the weighing of harms and benefits in the assessment of proportionality is complicated by deontological considerations. Thomas Hurka, the author of several seminal and important articles on the nature of proportionality, was among the first to identify some of the deontological elements

419



The Deontological Nature of Proportionality

149

in proportionality and to appreciate just how extensive they are.28 Much of the discussion in this section draws its inspiration from his work, though it also takes issue with some of his explanations of the non-​consequentialist dimensions of proportionality. One of Hurka’s claims is that certain harms caused by war are either excluded from or discounted in the assessment of proportionality. He says, for example, that “if an aggressor nation’s citizens will be saddened by its defeat, that does not count at all against a war to reverse its aggression.”29 Perhaps this is right. If so, the explanation may be that this is an instance of a type of harm that people have no right not to be caused to suffer. Another instance is the frustration that a man suffers when the threat of punishment effectively deters him from engaging in child molestation. If this is the only kind of sexual fulfillment he could enjoy, it seems that he is harmed by being forced to live without it. But because he has no right not to be forced to endure this deprivation, his frustration does not weigh at all against the establishment and enforcement of the law. This may not, however, be the right explanation in the case of sadness caused by defeat. Compare the sadness that parents on the unjust side in a war experience when their child is killed in combat. If their child is liable to be killed, perhaps they have no right not to be caused to grieve at his death. Yet it seems that this sadness must count in assessing the proportionality of an otherwise just defensive war. It counts in the assessment of wide proportionality, just as the grief of parents whose child has been judicially executed counts in the assessment of whether an instance of capital punishment is widely proportionate. I remain uncertain about why the sadness people may feel at the defeat of aggression does not count in the assessment of wide proportionality. Perhaps it is that displeasure at what is impartially good in itself is not a bad effect that there is any reason to prevent for the sake of the person who experiences it. Hurka also suggests that harms inflicted on enemy combatants must be “discounted” both in the assessment of ad bellum proportionality and perhaps even more so in the assessment of in bello proportionality.30 Yet this way of understanding the matter seems to derive from the failure to distinguish between narrow and wide proportionality. (Hurka’s failure here is not surprising, as this distinction had not been drawn when he wrote the passages under discussion.) If there were only one proportionality constraint that applied equally to harms to culpable aggressors and harms to innocent bystanders, then at least those harms inflicted on combatants fighting for unjust aims in an unjust war would have less weight than equivalent harms inflicted on civilian bystanders. One could understand their lesser weight as a form of discounting. But once it is recognized that narrow proportionality is distinct from wide proportionality, harms inflicted on unjust combatants can be understood as counting fully in the assessment of narrow proportionality but nevertheless being fully proportionate in relation to the combatants’ liability. They only seem not to count because they are fully justified by the combatants’ liability to suffer them. 28   Hurka (n 5); Thomas Hurka, “Proportionality in the Morality of War” (2005) 33 Phil. & Pub. Aff 34; Thomas Hurka, “The Consequences of War” in N Ann Davis, Richard Keshen, and Jeff McMahan (eds), Ethics and Humanity: Themes from the Philosophy of Jonathan Glover (Oxford University Press 2010). 29 30   Hurka (n 5) 135.  Ibid 136.

510

Proportionate Defense

150

While Hurka believes that only a few types of harm are excluded from or discounted in the assessment of proportionality, he argues that “many types of benefit are irrelevant.”31 He cites various plausible examples: the pleasurable excitement that one’s own soldiers might get from combat; the stimulation of creativity in artists who will produce more profound works of art; and economic benefits, such as the United States’ recovery from the Depression as a result of the Second World War.32 Yet in determining whether or how such benefits might count in the assessment of proportionality, it is again essential to distinguish between narrow and wide proportionality. Consider economic benefits, which Hurka says “seem incapable of justifying war” even when they are substantial.33 “An otherwise disproportionate conflict cannot,” he says, “become proportionate because it will boost gross domestic product (GDP).”34 But he later qualifies this judgment by distinguishing between different ways in which a benefit may be caused in war. He argues that if an economic benefit “results from a means to the war’s just cause,” it does not count in the assessment of proportionality.35 But if “the benefit results from the achievement of the war’s just cause itself,” it does count.36 His contention, in short, is “that economic goods count when they are causally downstream from a war’s just cause, but not when they result only from a means to that cause.”37 This seems an inadequate explanation and justification of the intuitions that Hurka is trying to defend. Indeed, Hurka himself supplies a counterexample: “If a nation’s citizens get pleasure from its military victory, that seems irrelevant to the war’s justification even if the pleasure results from the nation’s achieving a just cause.”38 There is, however, a different explanation of why some economic benefits count in the assessment of narrow proportionality while others do not. Consider two instances of economic benefits resulting from the same war. First, a state’s just war of defense against an aggressor state requires that it make substantial purchases of expensive armaments from a third state, thereby stimulating that third state’s economy. Second, the first state’s defeat of the aggressor involves the overthrow of its despotic regime, which has been forcibly imposing damaging economic constraints on a neighboring state. As a result of the regime’s overthrow in the war, the neighboring state’s economy begins to flourish. Hurka would say that the economic benefit from the arms sales does not count in the assessment of proportionality because it results from the means to the achievement of the just cause, but that the economic benefit to the neighboring state from the removal of imposed economic constraints does count because it results from the achievement of the just cause itself. A better explanation, at least with respect to narrow proportionality, is that the benefits from the arms sales do not weigh against the harms to the aggressors because the aggressors are in no way responsible for the fact that the third state has lacked the benefits of those sales. Only if the aggressors were responsible for the absence of those benefits would they be liable to be harmed as a means of providing them. By contrast, the economic benefits to the neighboring state do weigh against the harms to the  Ibid 135.  Ibid.

31

37

38

32  Ibid 131.  Ibid 134.

 Ibid.

33

 Ibid.

34

 Ibid 133.

35

 Ibid.

36

15



The Deontological Nature of Proportionality

151

aggressors, because the aggressors are responsible for the conditions that prevented the neighboring state’s economy from flourishing. The aggressors are therefore liable to be harmed as a means of eliminating the harmful economic constraints they have unjustifiably imposed. There remains the question whether either of these economic benefits can weigh against harms to people who are not liable to those harms in the assessment of wide proportionality. Hurka’s distinction between benefits that result from means to the achievement of the just cause and those that result from the achievement of the just cause seems irrelevant to whether the economic benefits can weigh against harms to non-​liable bystanders. The question whether an economic benefit produced by the state fighting a just war can help to justify harms it causes to innocent bystanders as a side effect in the course of the same war seems unaffected by whether the benefit derives from the fighting or from the victory. Yet there does seem to be one way in which either of the two economic benefits—​ the arms sales or the lifting of wrongly imposed economic constraints—​can weigh against harms to non-​liable people in the assessment of wide proportionality. These benefits can offset or compensate for economic harms suffered by the same people who receive the benefits. Suppose, for example, that a military operation by the state fighting a just war will have as an unavoidable side effect the destruction of an unoccupied warehouse in the territory of the third state that contains a stockpile of advanced and therefore expensive weapons. It seems that this economic harm should count against the military operation in the assessment of wide proportionality. But it also seems that it can be offset and rendered proportionate by the economic benefits that the owners of the warehouse are deriving from the increased sale of arms. It may seldom happen, though, that civilians who suffer a certain type of harm as a side effect of military operations in war also receive benefits of a corresponding type as a further side effect. In practice, whatever benefits are produced as a side effect of war usually go to different civilians from those who suffer harms as a side effect. Indeed, the benefits often go to civilians on one side while the harms go to civilians on the other. And here Hurka’s intuitions about economic benefits seem correct. It may be doubtful, for example, that economic benefits to some non-​liable civilians can weigh against and cancel economic harms to others. And it seems even less likely that economic benefits to some can outweigh and render proportionate certain other types of harm—​such as death and wounding—​inflicted as a side effect on others. But this is not, as Hurka suggests, because economic benefits as a type do not count at all in the assessment of proportionality, or count only when they are side effects of the achievement of the just cause. As we have seen, they do count in some instances, such as when they compensate the victims of economic harm. The issue seems to be the quite general one of when acts that harm some people are morally offset or outweighed because they also provide benefits for others. There are many dimensions to this issue, which is much too large to be more than superficially addressed in the remainder of this chapter. But it is worth mentioning a few distinctive elements of deontological morality that seem highly relevant to the ways in which harms and benefits weigh against one another in the determination of narrow and wide proportionality.

152

152

Proportionate Defense

One consideration that seems relevant to the weighing of harms and benefits is whether what is called a “benefit” is the conferral of a pure enhancement—​for example, making the already affluent even more affluent—​or the prevention or elimination of a harm—​for example, preventing civilians from being wounded or releasing political prisoners from captivity. Benefits of the latter type are more likely than those of the former to weigh against harms inflicted as a side effect. (Similarly, a “harm” may have greater weight if it involves causing people to be in an intrinsically bad state, such as a state of suffering, than if it involves only a loss that leaves the victims in a good state overall, such as a modest financial loss suffered by the highly affluent.) Some philosophers have argued that even when a harm and a benefit go to the same person, the ability of the benefit to outweigh the harm depends in part on whether it takes the form of a pure enhancement or involves the prevention of a harm.39 There are also various ways in which the weight that a benefit or harm has in the assessment of proportionality may depend on the way in which it is brought about. It seems to make a difference, for example, whether a harm to a person who is not liable to suffer it is inflicted as an intended means of achieving a goal in war or as an unintended but foreseen side effect of military action. Traditional just war theorists generally claim that intentionally harming or killing civilians as a means is ruled out by the requirement of discrimination, so that the issue of whether such harms can be rendered proportionate by benefits that outweigh them does not arise. But very few people, and very few moral philosophers or just war theorists, are genuine absolutists about discrimination. Most of us accept that it can be permissible to harm or kill a wholly innocent or non-​liable person as a necessary means of preventing a much greater harm to other innocent people. That is, we accept that there can, in rare conditions, be what I call a lesser-​evil justification for the intentional harming or killing of a person who retains her right not to be harmed or killed. But the proportionality constraint governing such acts is generally recognized as more demanding than that which governs the harming or killing of a non-​liable person as an unintended side effect. It may help to elucidate this claim to offer an illustration that presupposes an admittedly artificial and unrealistic degree of precision. Suppose that it would be proportionate to kill five innocent people as a side effect of action necessary to save 100 innocent people, but that it would be disproportionate to kill six innocent people as a side effect of saving 100. It would then be clearly disproportionate to kill five innocent people as a means of saving 100 and might be disproportionate to kill five even as a means of saving 300. But it would be permissible to kill five as a means of saving 10,000. Wide proportionality is particularly sensitive to the mode of agency by which harms and benefits are produced. It is sensitive not only to the distinction between means and side effects but also to the distinction between doing harm and allowing harm to occur. Thus, an act of war that causes a certain amount of harm to innocent people as a side effect is not rendered proportionate in the wide sense just because it also prevents an equivalent, or even somewhat greater, amount of harm to other innocent people. 39   See e.g. Seana Valentine Shiffrin, “Wrongful Life, Procreative Responsibility, and the Significance of Harm” (1999) 5 Legal Theory 117.

153



The Deontological Nature of Proportionality

153

Suppose, for example, that by destroying a certain military target, just combatants can prevent twenty innocent civilians from being killed. But the strike on the target will unavoidably kill ten different innocent civilians as a side effect. Most people judge that this attack would be disproportionate even though it would save twice as many civilians as it would kill. This is because of the moral asymmetry between killing people and allowing them to die, or allowing them to be killed. Next, consider a variant of this example. Suppose that the strike on the military facility that would prevent twenty innocent civilians from being killed would not kill any civilians as a side effect, but it would kill ten enemy combatants (who are on the unjust side). Suppose that these combatants have two roles, alternating between fighting and serving as medics. Today they are fighting but tomorrow each of them is scheduled to perform life-​saving surgery on a civilian. If these ten combatant-​medics are killed today, the ten civilians whom they would have saved will die in the ensuing days. It seems that in this case, in contrast to the previous one, it is proportionate to strike the military target, even though in both cases the strike will result in the deaths of ten civilians as a side effect. The reason why the strike is disproportionate in the first case but proportionate in the second is that in the first case, it kills ten innocent people, whereas in the second it prevents ten innocent people from being saved. And the constraint against killing people is stronger than the constraint against preventing people from being saved.40 (These constraints can of course interact with others. It might be, for example, that if the number of people who could be saved were high enough, it would be proportionate to kill ten innocent civilians as a side effect of saving them but disproportionate to intentionally prevent ten people from being saved as a means of saving them.) I will conclude by noting one further way in which considerations of agency seem to affect the assessment of proportionality. Suppose that Aggressia, a state that is fighting an unjust war, sincerely threatens that if its adversary, Justitia, continues to fight, it will destroy the capital of its adversary’s closest ally with a nuclear weapon. Suppose that in the absence of this threat, it would be clearly proportionate for Justitia to continue to fight. The question is whether the prospect that Aggressia will kill millions of innocent people if Justitia continues to fight can make it disproportionate in the wide sense, and therefore impermissible, for Justitia to continue. What is distinctive about this issue is that what might make the action of one agent disproportionate is the action of another. In the moral philosophy literature, this is referred to as the problem of intervening agency. There are four broad responses to this problem. One is that whether an agent’s action is proportionate in either the wide or the narrow sense cannot be affected by the consequences of the acts of other agents. Agents cannot be responsible for what other free agents choose to do. It is, however, hard to believe that this could be right. Decision makers in Justitia know that if they decide to continue to fight, their ally’s capital city will be destroyed, whereas if they cease to fight, it will not be. These facts

40  Matthew Hanser, “Killing, Letting Die and Preventing People from Being Saved” (1999) 11 Utilitas 277.

514

154

Proportionate Defense

must be relevant to the permissibility of continuing to fight, and the way they are relevant is through their effect on proportionality. The second response is to treat the acts of others as if they were natural forces. To the extent that it is predictable that another agent will inflict a harm if one does a certain act but not if one refrains from doing the act, that harm should count in the assessment of proportionality in just the same way as an equivalent harm one’s act might cause through purely physical processes, with no intervening agency. This too is hard to believe. If whether an agent causes or allows a harm to occur can affect the weight that the harm has in the assessment of wide proportionality, then whether the agent causes a harm or another agent causes it must also make a difference. The third response is that harms that an agent’s action provokes through the intervening agency of others must count in the assessment of wide proportionality, but must have a somewhat discounted weight in relation to equivalent harms of which the agent’s action would be the proximate cause. A fourth response is perhaps most plausible. It is that, depending on the circumstances, harms caused through the intervening agency of others sometimes have the same weight in assessing the proportionality of one’s action that they would have if one were to cause them directly, yet in other instances their weight may be discounted, though never to zero. There are various other complexities in the proportionality restrictions on defensive action that I cannot discuss here. I hope, however, to have revealed some of the intricacies in the notion of proportionality. Until these hitherto unappreciated dimensions of proportionality are taken into account, discussions of proportionality in self-​defense and war will continue to be inadequate and misleading.

15

6 Proportionate Killing Using Traditional Jus in Bello Conditions to Model the Relationship Between Liability and Lesser-​Evil Justifications for Killing in War Jovana Davidovic Traditionally, just war theory treats proportionality in war as simply a question of collateral damage or civilian casualties; combatant deaths are, in orthodox just war theory, “free.” Recent individualist revisions of just war theory have begun to cast doubt on this orthodox view that any number of combatants may be killed in pursuit of militarily necessary aims. As just war theory has moved away from the assertion that all combatants are liable to be killed in war by virtue of posing a threat (or by virtue of implicit consent to be treated as legitimate targets), a vast number of difficult questions arise regarding what counts as proportionate and justified in war. After all, if not all combatants are liable to be killed by virtue of being combatants, then for any action in war to be justified, one must first evaluate who is liable to be harmed and to what extent. But that is not all: The justification of any action in war doesn’t solely depend on liability justifications; it clearly also depends on lesser-​evil calculus. That is why in the light of the individualist revisions of just war theory, questions regarding what counts as proportionate and justified become more complex than they were under traditional just war theory. The complexity comes in at two levels: first, in trying to answer the fact-​relative questions about what actions in war are proportionate, and second, in trying to answer the evidence-​relative question of whether combatants will have access to relevant information necessary to make proportionality calculations. The difficulty of answering these questions has led many just war theorists either to move to a position of contingent pacifism, suggesting that combatants can’t be expected to engage in these difficult moral evaluations each time they are required to engage with the enemy, or to reject the revisionist and individualist theories of war that rely on a criterion of liability that rests on moral responsibility for an unjustified harm.1 In this chapter, I attempt to show that the liability justification that rests on moral responsibility for an unjustified harm can in fact be used in conjunction with the lesser-​evil justification to answer many of those difficult questions about fighting in war, including questions about what counts as proportionate.2 I  suggest that the   Larry May, Contingent Pacifism (Cambridge University Press 2015).   Showing that the relationship between liability justification and lesser-​evil justification for actions in war can be meaningfully and straightforwardly captured by the familiar jus in bello conditions is also meant to show that revisionist theories of war that rely on liability justification can in fact give useful and 1 2

Justification and Proportionality in War. Jovana Davidovic. © Jovana Davidovic, 2017. Published 2017 by Oxford University Press.

516

156

Proportionate Killing

relationship between jus in bello proportionality and other jus in bello conditions (such as discrimination, right intentions, and necessity) can model the way lesser-​evil and liability justifications combine to provide all-​things-​considered judgments for actions in war. If it is the case that the individualist liability-​based approach to justice in war and proportionality can be “captured” by traditional jus in bello conditions, the claim that it (the individualist account) can guide individual behavior might become more plausible. In other words, I focus primarily on the complexity at the first level, but argue that once we are clear about what features are morally salient in making proportionality calculations we can also have more confidence that combatants might be able to make such assessments in war. I start by discussing proportionality in war and its relationship to the overall question of what counts as just in war. I ask what sorts of problems arise for proportionality calculations once an individualist approach has been accepted. By “individualist approach,” I simply mean any approach to just war theory that starts a moral analysis of war and actions in war by examining morally salient considerations that would hold in similar cases in ordinary circumstances. These ordinary and similar circumstances often include cases of “ordinary” self-​defense and other-​defense. I then provide a (limited) survey of the positions others have taken with respect to proportionality in war and the question of the relationship between the liability and lesser-​evil justifications in war. I explain what reasons we have to think that both the liability justification and the lesser-​evil justification work together to explain what combatants may or may not do in war. Third, I explain how the traditional jus in bello conditions and the separation of labor between them might be helpful in understanding exactly how these two justifications are meant to work together to account for some of our intuitions regarding the more difficult cases of collective action and limited or minimal moral responsibility. I also examine some consequences of my view, in particular with regard to contingent pacifism. The consequences of my view are particularly important when it comes to providing reasons to think that committing to a more complex picture of justification for actions in war does not need to commit one to pacifism.

1.  Proportionality, Justification, and Jus in Bello Generally speaking, we say that a harmful action is proportionate if the harm it causes is less than the harm it seeks to avert. Traditionally, in just war theory, the condition of proportionality was almost exclusively focused on the issue of “collateral damage,” in other words on whether or not unintentionally but foreseeably killing a certain number of civilians was proportional to some purportedly good aim. The exclusive focus on the harm caused to civilians in the traditional just war theory was a direct result of seeing all combatants as liable to be killed, because they all equally fit the

practical answers to difficult problems that arise in war. In other words, if we can show that the interplay between jus in bello conditions can in many circumstances capture the all-​t hings-​considered judgment derived from careful examination of the way liability and lesser-​evil justifications work in ordinary cases and cases of war, then we have a response to the common criticism that responsibility-​based revisions of theories of war fail to provide combatants with useful guidance because of their complexity.

157



Proportionality and Jus in Bello

157

traditional criterion of liability, namely, posing a threat.3 More recently many scholars have rejected this criterion of liability in favor of the responsibility-​based account of liability that suggests that one is liable to harm only if one is morally responsible for posing an unjustified threat.4 With this understanding of liability in hand, the question of proportionality becomes more complicated. This is in part because it becomes clear that not all combatants are liable to be killed or harmed. For example, on this view, combatants that are posing a justified threat in virtue of the justness of their cause would not be liable to be defensively harmed. In addition, since the liability to harm depends on the level of threatened harm and the responsibility for that harm, it becomes obvious that not even all the combatants that are liable to harm (in virtue of lacking a just cause, for example) are liable to be killed, and so we end up with varying kinds of agents in war, whose varying liability to harm suggests a rather more complicated criterion of proportionality and justness in war than the traditional one.5 The realities of war further stress how important these issues are, in part because we have good reason to think that the majority of active participants in war will neither be fully innocent nor fully culpable. This is largely a result of the fact that much of the liability to harm that arises out of actions in war arises out of collective actions. In fact, the most complicated and probably most relevant considerations for proportionality in war regard cases where there are multiple agents and/​or where their moral responsibility is minimal, where being minimally morally responsible is to not be culpable, by virtue of having a strong epistemic or other excuse for one’s action. The set of considerations that comes into play in deciding who may or may not be killed in trying to avert an objectively harmful action of a set of minimally responsible aggressors is vast. They include the extent of the threatened harm, the moral responsibility for that extent of the harm, the chances that the harm will actually occur, and others. But the complexity of the issue does not simply arise from the fact that there are many considerations to take into account; it also arises from the fact that grounding the analysis of proportionality simply or solely in liability leads to a number of problems. Consider one such problem that has been widely discussed in the literature: that of a minimally responsible driver.6 This driver has maintained her car well, is obeying the speed limit, and is, in spite of having taken all of the precautions, posing a lethal threat

3   Simply put, on the traditional view, all combatants pose a threat that all or almost all civilians, by virtue of being civilians, do not, and thus all combatants are liable to be killed and ought not to be considered in proportionality calculations. 4   Jeff McMahan, Killing in War (Oxford University Press 2009) and other recent McMahan articles, including Jeff McMahan, “The Basis of Moral Liability to Defensive Killing” (2005) 15 Philosophical Issues 386–​405. Also Victor Tadros, “Duty and Liability” (2012) 24 Utilitas 259–​77; Saba Bazargan, “Killing Minimally Responsible Threats” (2012) Ethics 114–​36; Helen Frowe, “Self-​Defence and the Principle of Non-​Combatant Immunity” (2011) 8 J of Moral Phil 530–​46. 5   There is a straightforward sense in which we ought not to be speaking of liability to harm, since those defensive actions to which one is liable are not harm in the same sense as those to which they are not liable. I nonetheless speak of liability to harm and justifying harm greater than the harm one is liable to (mostly to avoid overly cumbersome language). There are some scholars who do think that liability to be killed is not proportional in this way to the threatened harm, but dependent on whether or not killing is necessary. 6  Jeff McMahan, “Liability, Proportionality, and the Number of Aggressors” (forthcoming); Bazargan (n 4).

518

158

Proportionate Killing

to an innocent bystander. One can argue—​and many have—​that this driver is liable to at least some amount of defensive harm since, unlike the innocent bystander, she is not fully innocent, her moral responsibility for the threat arising out of having knowingly engaged in a risky activity. The issue becomes complicated when we consider whether or not the innocent bystander may, if necessary, kill this minimally responsible driver in self-​defense, and whether that can be justified simply by appealing to her liability to harm in virtue of her moral responsibility for the threat of harm. Those that believe that we can justify killing in this case and ground it in liability most often point to the relative difference in liability to harm between the innocent bystander and the minimally responsible driver.7 After all, the driver is more morally responsible for this situation than the innocent bystander. The intuition that this justification of lethal self-​defense can be grounded solely in liability to harm becomes shaky, however, when the case of the minimally responsible driver is contrasted with two other cases. On one comparison, we may consider what may be done to a fully culpable murderer in self-​defense. On at least the first pass, it seems that the harm that is justified (namely, lethal self-​defense) is exactly the same in both cases (murderer and driver), even though the moral responsibility and thus liability seem vastly different. Probably more problematically, and more relevantly for our purposes of deciding what action is justified in war, consider a case where there are multiple such aggressors (in succession).8 While it seems right that we may, in self-​defense, kill a rather large (or any) number of fully culpable murderers, this intuition does not hold when we consider what may be done to, for example, fifteen minimally responsible threateners (such as fifteen minimally responsible drivers that are in succession posing a lethal threat to the same innocent bystander).9 And yet, if the justification for why we may kill a single minimally responsible threatener was her responsibility for the threatened harm, it seems like we should be equally justified in killing the fifteen (or 1,500). These two parallel examples point to a set of related problems. First, what could explain how, in spite of varying responsibility for threatened harm, we can justify the same amount of defensive harm (namely death in the case of lethal self-​defense)? Second, if moral responsibility for the threatened harm and liability are sole grounds for justifying lethal self-​defense, then what could explain why we have the intuition that we are justified in killing a vast number of fully culpable aggressors, but not a large number of minimally responsible threateners?10 The worries these questions raise have led some scholars to turn to the more traditional justifications of proportionality to make sense of these problems—​namely, lesser-​evil justifications. Some have, for example, used the lesser-​evil justification to

7   If this scenario does not evoke the same intuition, presumably similar scenarios with less than fully culpable threats give rise to the same problems. 8   McMahan, Bazargan, and others consider these sets of scenarios in some of the same articles. 9  For a much more developed and sophisticated analysis of these cases and their comparisons, see Jeff McMahan, “The Relevance to Proportionality of the Number of Aggressors” and “Liability, Proportionality, and the Number of Aggressors” (forthcoming). 10   It is important to note that these questions are questions about what we ought to do (all things considered), not simply questions about what a proportionate action would be.

159



Minimally Responsible Threateners

159

explain how the addition of harms to minimally responsible agents might add up more quickly than the addition of harms (beyond those to which they are liable) to fully culpable agents. I believe that the basic intuition behind appealing to the lesser-​ evil justification of harm to account for the problems that arise from relying simply on the liability justification is right. However, I am not persuaded that the accounts that have been offered up to now are fully successful, or that they give a complete picture of the way in which these two types of justifications are meant to work together to inform our actions. They fail to be successful, I believe, because they fail to meet one or more of, what I  take to be, the desiderata for a successful account. These include:  (a)  the account should be able to explain how the lesser-​evil justification might work together with the liability justification to account for the mixed intuitions above. In other words, our account should at least hint at a theoretical/​pre-​theoretical justification for why we think we are entitled to simultaneously appeal to these apparently incompatible types of normative justification; (b) we also need an account that can in fact be used (prospectively) to decide difficult cases.11 By this I mean that an account that is more familiar and usable by an officer or a combatant in the field is preferable to the one that is less familiar and accessible. This is in part because we would ideally want to be able to answer those pacifists and practitioners that reject responsibility-​based revisionist accounts because the complexities would commit one to suggesting no war can be fought justly. In what follows, I propose an account that I think can meet these desiderata better than the alternatives. That account is modeled on jus in bello conditions. I  suggest that the interplay between the jus in bello conditions can help us keep the relationship between the liability and lesser-​evil justifications clear in our all-​things-​considered judgment, and in that way also provide us with an account that helps us to apply these justifications together in difficult cases. Furthermore, if my account is successful, then one might argue that the traditional jus in bello conditions are mutatis mutandis justifiable tools for decision-​making in war.12

2.  Proportionality and Minimally Responsible Threateners Several accounts have been offered that attempt to explain how liability justifications (with or without lesser-​evil justifications) might work to answer some of those difficult questions regarding proportionality. Jeff McMahan does a thorough job of discussing various ways of understanding proportionality and justification in cases of minimal moral responsibility and varying numbers of aggressors.13 He rejects a set of theories, including the variable contribution explanation, which rests primarily in the varying levels of liability to harm, 11   Ideally, the account should also be able to explain why in some cases (very typical cases in war) we might be justified in killing five specific combatants of the band of 100 if killing five is necessary, but where all of them are equally morally responsible for the harm we are trying to avert. Finally, we also hope that a successful account would not confuse, as some have, the notions of proportionality and all-​ things-​considered justification. 12   That in turn gives us reasons to think that contingent pacifist accounts grounded in the worry about our ability to act justly in a world of minimally responsible threateners are less potent. 13  McMahan (n 6).

610

Proportionate Killing

160

and the combined justification, which tries in a straightforward way to put together lesser-​evil and liability justifications. Having rejected these theories for their inability to fully answer a range of issues that arise as the conditions of moral responsibility for the harm and the number of aggressors are varied, he settles on what he calls “proportionality in the aggregate.” This account is specifically designed to deal with what he considers the most important consequence of taking the responsibility-​based approach seriously, namely, the fact that it is unclear why we may not kill 100 minimally responsible threateners to save the life of one fully innocent victim, whereas we are justified in killing 100 fully culpable threateners. This presents a particular problem for someone like McMahan, who at times seems to think that comparative moral responsibility is sufficient to ground a justification to kill. McMahan believes that when there is an unavoidable threat of death that must be distributed to a single individual, and where one individual is minimally morally responsible while the other is fully innocent, it follows that we are justified in killing the minimally responsible threat, and that this is the case because of the relative difference in their moral responsibilities for the threat of such unavoidable harm. But on this account, where liability to harm is not proportional to responsibility for such harm but instead to the amount of harm threatened, the problem of 100 minimally responsible threateners gives rise to a new problem. This is what McMahan calls “the circularity problem.”14 Specifically, if one thinks that comparative liability (between victim and threat) is sufficient to ground liability to be killed, and if liability to be killed is instrumental in the sense that one can only be liable to harm which is necessary for aversion of the threat, then in the situation where there are 100 successive minimally responsible threateners it seems like one is only justified in killing the first if one is justified in killing them all. After all, to avert the threat one must kill them all, but each one is only liable to be killed if it is justified to kill them all.15 McMahan’s way out of this conundrum is to propose that “[p]‌roportionality in aggregate is derivatively internal to liability, that is, whether a threatener is liable to defensive harm depends on whether harming him would be proportionate in the narrow sense, which in turn can depend on whether harming some number of threateners would be proportionate in the aggregate.”16 This suggests that contingent facts about whether there are other threateners can affect whether or not one is liable to be harmed, and this, after all, is not surprising given that liability is instrumental—​we commonly acknowledge that many contingent facts (in addition to the fact of moral responsibility for the threat) are relevant to whether or not one is liable to harm. This proportionality-​in-​aggregate account is meant to capture the relevance of the number of aggressors and the level of the threatened harm for liability to be killed, but I  believe it fails to capture the level of moral responsibility for such harm. On this account, whether or not we are justified in killing a threat is fully determined by whether or not it is necessary that we kill them and whether or not the threat we are averting is significantly large (so, threat of death). It seems unclear, then, to what

14

 Ibid 7.

15

 Ibid 7.

16

 Ibid 15.

16



Minimally Responsible Threateners

161

extent such an account is in fact responsive to the differential in moral responsibility for the threatened harm. McMahan suggests that when we consider all the harm that would be involved in the killing of a thousand minimally responsible killers, taking into account that each is only minimally responsible for the threat he poses, and compare it to the threatened harm to the victim that can be prevented only by killing all thousand, taking into account that the victim bears no responsibility for the fact that killing is unavoidable, we can judge intuitively that killing all thousand would be disproportionate.17

But it seems unclear why this would be so—​in fact, this is the very thing we are trying to show, namely, that it would in fact be disproportionate. At best, what we may take McMahan to be doing here is exactly appealing to some sort of a lesser-​ evil justification—​the comparison between harm that would be caused to minimally responsible threateners and that to the innocent victim. It seems to me that this proposal fails to actually answer the original worry in the first place, that is: How do we know how many minimally responsible threateners we may kill in an effort to protect one innocent life? Also, it seems unclear why this account would not also put a similar upper limit on culpable threats. After all, either the harms we are considering in our calculations of lesser evils are broad harms (not just to the threatener, but to those that care about the threatener) or they are not. If we are including these broad harms in calculations of lesser evil, then clearly there is an upper limit to killing fully culpable threateners and it is an upper limit similar to that of minimally responsible threateners. If we are not including such harms in our calculations of harm, then it is not clear why McMahan thinks he can conclude that such harm clearly is disproportionate. After all, for McMahan, being minimally responsible for a threat of death to an innocent is sufficient, all things being equal, to be liable to be killed. This is because the minimally responsible threateners are more morally responsible for such a threat than the fully innocent victim. In other words, it is not clear on this account why we should think that it is proportionate to kill a hundred culpable threats but not a hundred minimally responsible ones, unless we assume that there is a difference in the harms caused by killing a culpable threat and a minimally responsible one. That seems intuitively right, but is not available as grounds to an answer for someone who holds that the reason we may kill one minimally responsible threatener is because they are more responsible for the threat than the victim and the killing is necessary to avert the threat—​that is, it is not available to McMahan if he thinks in those cases one is simply liable to be killed (as opposed to liable to some amount of harm).18  Ibid 14.   In an earlier account of the relationship between proportionality and the number of aggressors, McMahan seemed to rely heavily on a notion of fairness—​t hat when some amount of harm is unavoidable, it seems that there must in principle be an ideally just distribution of harm in which different people receive no more than their fair share. The fair distribution according to this earlier account would proportionally capture our moral responsibility for the harm that is unavoidable, so that if I am 80 per cent responsible and you are 20 per cent responsible the fair distribution of harm would be 80–​20. But in cases when all such harm must go to a single individual, it goes to the one with a greater level of moral responsibility (so in our case to the one 80 per cent responsible), leaving a level of injustice, a residual injustice which seems to linger and aggregate with each attacker. This would explain why in cases of multiple minimally morally responsible attackers there comes a time when it would not be justified to kill them, 17 18

612

162

Proportionate Killing

In addition to the worries about whether the proportionality-​in-​aggregate account answers the original concern, there are other possible problems with this account. Some of these problems become apparent when one considers situations when both sides are (not equally, but) somewhat responsible for the lethal threat and the harm must be distributed to only one side. Other problems become apparent in situations when alternatives to killing (which involve harming the innocent) are available. Regarding the first problem, it seems that on McMahan’s account the party that is more responsible for the threat would be liable to be killed, even though in this case the threat would not exist (given the example) without the less responsible party’s involvement. It seems like there ought to be a difference between liability to be killed in the cases when one is the only responsible party and when one’s threat of harm would not even be possible without the other party’s contribution. This matters in part because we want our account to have tools to explain when compensation might be justified and to what extent. On McMahan’s account we have the tools to explain neither whether the compensation is justified to the minimally responsible threat when threatening an innocent bystander, nor whether it is justified in the case when there are two partly responsible parties. Other scholars have also tried to address the problem at hand. Some have rejected the claim that minimal moral responsibility can ground justification of lethal self-​ defense on its own. Saba Bazargan, for example, proposes what he calls “the hybrid account,” which relies on both the lesser-​evil and liability justifications to account for why it is impermissible to defensively kill multiple minimally responsible threats. Bazargan’s hybrid responsibility-​based account of liability is composed of two claims: the first is the proportionate responsibility based account of liability, which limits the degree of harm to which an individual is liable to the degree of responsibility she bears for the wrongful threat she poses. The second claim is the lesser evil discounting view according to which the disvalue of the defensive harm imposed on the minimally responsible threatener who bears greater responsibility ought to be discounted.19

So for Bazargan, the amount to which one is liable is proportional to one’s moral responsibility. That seems absolutely right to me. If moral responsibility is going to ground liability then the extent of that moral responsibility had better be able to explain the amount of harm for which one is liable. I think it is, however, important to note that the harm to which one is liable is not only proportional to the responsibility, but also to the degree of harm they are threatening.20 What Bazargan then proposes is that the remaining amount of harm go to the one who is liable to be harmed, since (in most cases) it is less bad to impose harm on those that are liable to harm than on while in cases of fully culpable aggressors such time either never arrives or arrives significantly later. So McMahan argues that when the number of minimally responsible threateners reaches that point where the residual injustice is larger than the injustice of killing the less morally responsible individual then killing becomes disproportionate. Jeff McMahan, “The Just Distribution of Harm Between Combatants and Non-​Combatants” (2010) 38 Philosophy and Public Affairs 4; Jeff McMahan, “Duty, Obedience, Desert and Proportionality in War: A Response” (2011) 122 Ethics 135–​67. 19 20   Bazargan (n 4) 7.   It is not clear that Bazargan’s account acknowledges that.

613



Minimally Responsible Threateners

163

those that are not. On his account it would be impermissible to kill multiple minimally responsible threats because each one of them was harmed to a greater degree than they were liable to, so in that sense their rights were infringed, and such infringement is on his view additive. One possible worry about Bazargan’s account is that it engages in a type of double counting—​it relies on the liability justification twice, without being entitled to do this (after the harm that responsibility grounds has been exhausted). Bazargan responds to this worry by suggesting that using liability to explain the distribution of the “extra” harm to the one that is liable is justified, because liability can ground harm in two senses: in the absolute sense, since one is morally responsible for some harm, and in the relative sense, because one is more morally responsible than the other actors in the scenario. This sort of response to the double-​counting worry suggests that Bazargan’s second claim of the hybrid account is best understood (or interpreted) as suggesting that the reason it is a lesser evil to impose harm past that to which one is liable is because of one’s status as a somewhat responsible threatener. In other words, for Bazargan’s response to the double-​counting criticism to be available, we must interpret the second claim of his hybrid account as a claim about the moral status of the responsible party, not as a claim about the amount of harm “left over” after the liability justification has been exhausted. This is particularly relevant for distinguishing my account of proportionality from Bazargan’s. Finally, I turn to one other account that proposes that the relationship between liability and lesser-​evil justifications is relevant for questions of proportionality and all-​ things-​considered justifications of actions in war. David Rodin has argued that both are forms of justifications for proportionality and, as such, are justifications of harm. For Rodin, “both the liability and the lesser evil justification of harm are at root rich forms of proportionality relationship between a substantially shared set of underlying normative factors.”21 Rodin believes that they can work together to get us to all-​ things-​considered judgments of permissibility. And while I agree that these two sets of justifications do interact to give us all-​things-​considered judgments of permissibility, I believe that they are not simply to be understood as proportionality calculations, and that instead they also act as tools for explaining other considerations that come into play (other than proportionality) when considering whether an action is morally permissible. On Rodin’s account, while each of the minimally responsible threats is liable to be killed in the case of successive threats, the reasons of beneficence override such liability to explain why one must not kill a great number of minimally responsible threats. At least one problem with this account is the same one that I think McMahan’s account suffers from, which is that it is unclear how this type of an approach can make sense of the original intuition that a significantly greater number of culpable threateners (or any number) than of minimally responsible threateners can be killed. It seems like on both of their accounts, there are same reasons to think that killing a great number of culpable threats is also prohibited by the same lesser-​evil justification.

21

  David Rodin, “Justifying Harm” (2011) 122 Ethics 74–​110.

614

164

Proportionate Killing

What all these views seem to share (most of the time explicitly, and at other times implicitly) is an understanding that the lesser-​evil justification and the liability justification both figure in different ways into deciding what sort of an action is proportionate (or justified). However, each of them fails in different ways to provide us with a clear understanding of how these come together to explain which actions are morally justified. McMahan’s account seems ultimately to rest on the same intuition it is trying to explain—​namely, that killing many minimally morally responsible threats becomes disproportionate sooner than killing many culpable threats. Bazargan’s account gets the calculation of lesser evil wrong, in particular because it relies on liability (and the status of being morally responsible for the threat of harm) to exhaust the question of lesser evil. There might also be worries about some of these accounts double-​counting liability. And while, as we saw, Bazargan does have a response to this worry, I will suggest that an account that avoids the appearance of double-​counting altogether might be preferable. Rodin’s account suggests that both liability and lesser-​evil justifications are forms of proportionality, and in that way identifies the notion of proportionality with all-​things-​considered justifications. In fact, one of my main worries about all of these accounts is that they identify proportionality calculations with all-​things-​ considered judgments.

3.  Liability and Lesser-​Evil Justifications and Jus in Bello Conditions It is in the light of all of these problems and my desiderata for a theory of justification and proportionality in war that I turn to jus in bello conditions, since it seems to me that the way in which these conditions work together can be a good model for explaining the relationship between lesser-​evil and liability justifications. The basic idea is to use the interplay between the classic jus in bello conditions to model a structure on which lesser-​evil justifications and liability justifications can work together to answer some of the difficult questions regarding proportionality and justification. In providing this type of analysis I will be using the jus in bello principles as a model allowing us to acknowledge that the justifications come in at two levels of analysis (they explain why we impose the conditions we do and then they explain how to apply those conditions). In this way, my approach will at least start to provide an explanation of how these two apparently incommensurate or incompatible analyses could work (or would be allowed to work) together to account for some of our basic intuitions about fighting in war, as well as giving us a model that is useful as a prospective tool for several reasons, including the familiarity of this approach. Conditions that are traditionally (albeit not non-​controversially) considered as necessary to fight justly in war—​that is, jus in bello conditions—​include discrimination, necessity or the requirement of minimal force, proportionality, using no means mala in se, and right intentions. I believe that using the interplay between these conditions can be a useful guide for explaining how the two types of justification work together to answer difficult moral questions. In particular, I believe that this approach can solve many of the problems that appear to be suffered by other analyses that rely on both justifications.

615



Liability and Lesser-Evil Justifications

165

The condition of discrimination requires that we differentiate between those that are not liable to be harmed and those that are liable, or in other words to apply different considerations of proportionality (and intention) between those liable to be harmed and those not liable to be. This condition is met when we use an appropriate measure to distinguish between the two, namely the assessment of their moral responsibility for an unjustified threat that we are trying to avert. The imposition of this condition itself is therefore explained by a liability justification and can be applied by drawing the line between those minimally responsible and those fully innocent. As I will argue later, this does not mean that the harms imposed on those that are minimally responsible beyond the harms to which they are liable must be explained in the same fashion as the harms to which they are liable. It is also important to note that the assessment of the moral responsibility for an unjustified threat that we are trying to avert will greatly depend on the scope within which this is assessed. Given that I am attempting to provide an account that is meant to be useful in the field, I suggest that the scope within which we can ask whether or not one is posing an unjustified threat is significantly smaller than that of the war as a whole. In fact, I take it that in many instances the unjustified threat which is to ground our assessment of one’s liability to harm must be the immediate threat, the one we are trying to avert. I take it that the scope within which one is justified and expected to evaluate liability to harm will depend on one’s access to information, so that the scope within which an ordinary combatant in the field is justified in making such assessments will be smaller than that of her superior officer. In particular, what counts as an immediate threat that we are trying to avert will very straightforwardly differ between a combatant and a superior officer engaged in strategic decisions. But I take it that it is not novel to propose that the judgments of jus in bello justifiability are made at different levels with different expectations.22 The hope is that suggesting such a gradation in who is entitled to make which types of assessments can preserve a certain level of epistemic certainty at all levels of decision making. The necessity condition has different interpretations in legal and in philosophical literature. For my purposes here I combine the necessity condition with the minimal force requirement. On that understanding of the necessity condition, it requires that we always use the minimal amount of force or harm to achieve the desired end (including no force). This condition (understood in this way) is justified by the lesser-​evil justification, and fully so. It can override the proportionality considerations because actions that are proportional might still not be justified if the action is not also one of minimal force. An action must be necessary in the sense that if an action that would cause less harm and accomplish the same aim is possible (or probable), then we must perform that action rather than this one. This interpretation of the necessity condition as one of minimal force, which is justified by the lesser-​evil justification, is not arbitrary. It is meant to separate this notion of necessity from the notion of necessity wrapped up with the notion of liability. To be liable to defensive harm of a certain level is to have 22   For an excellent analysis of proportionality application at different levels of the military, see Ziv Bohrer and Mark Osiel, “Proportionality in Military Force at War’s Multiple Levels: Averting Civilian Casualties vs. Safeguarding Soldiers” (2013) 46 Vanderbilt J of Transnatl L 747.

61

166

Proportionate Killing

a proportionate level of responsibility for an unjustified threat of harm, which we are trying to avert, and for that defensive harm to be necessary in averting the unjustified threat. Clearly the necessity condition internal to liability and the necessity condition external to it impose (at times) different limitations on action. The “no means mala in se” condition suggests that even if all other conditions are met, if what is proportionate and necessary is to use torture or chemical weapons, or other “bad in themselves means,” we must abstain from such action. We traditionally think of this condition as one justified by something akin to liability justifications, even though we might also (less traditionally) explain this condition by the lesser-​evil justification as well.23 Classically, mala in se conditions are justified exactly by drawing a line of where utilitarian calculus becomes applicable. Mala in se conditions are set in terms of what one is liable to, suggesting that there is no level of moral responsibility or culpability that would result in one being liable to these sorts of means/​harms. All that matters for our purposes here is to understand that what justifies imposing this condition is not a combination of the liability or lesser-​evil justifications. The right intentions condition is often considered a controversial one, even jus ad bellum, where I  take it to be more straightforward than here. To have right intentions in fighting in war is to act for the reasons of the (just) military aim that one is attempting to achieve. The right intentions condition, just like the proportionality condition, ought to be understood as two separate conditions; this separation is required by the discrimination condition. At a minimum, the claim of having right intentions in actions that harm those that are not liable to be harmed requires that the main goals not be aimed at via such harm, that is, that such harm is unintended. That is not required so as to have right intentions in actions that harm those who are liable to be harmed, at least in as much as they are liable for such harm. This split in what is required to have right intentions is dictated on liability grounds, which justify the imposition of the discrimination condition. Finally, I turn to the notion of proportionality. My hope is that, having set aside various concerns about right intentions, necessity, and discrimination, the justificatory work left to be done by the notion of proportionality is clearer and more straightforward; that is, it will be easier to assess whether an action is proportionate. Having taken the discrimination condition seriously, we might claim that there are actually two separate conditions of proportionality and that they are justified in different ways. There is proportionality that refers to what it would mean for an action to be proportionate with respect to those who are not liable to be harmed: This is the question of wide proportionality.24 The question is itself defined by the conditions of discrimination and right intentions, which can themselves be explained by the liability justification. However, whether or not one is acting proportionally in the wide sense is fully answerable by an appeal to the lesser-​evil justification. To be widely proportionate the harm we are trying to avert must be much greater than the harm we might foreseeably,

23   The reasons can be restated in lesser-​evil terms by suggesting that the long-​term consequences of using means which are bad in themselves are so egregious that one cannot justify using them. 24  Once again McMahan has done much of the groundwork on this distinction in his Killing in War (n 4).

617



Liability and Lesser-Evil Justifications

167

but unintentionally, cause to those not liable to be harmed. The assessment of wide proportionality (and, for that matter, narrow proportionality) is complicated by the incommensurability of things that are usually compared in order to assess it—​namely, proportionality calculations traditionally ask us to compare loss of human life (and other serious harms) to the value of some military aim. I take it that individualist approaches are (in most cases and for good reasons) more likely to argue that the value of military aims needs to be cached out in terms of human lives saved and other significant harms averted. A similar, albeit more complicated, analysis applies in the case of narrow proportionality. The question of narrow proportionality is a matter of whether the harm inflicted exceeds that to which the victim is liable.25 One is acting in a narrowly proportionate manner when the harm that they impose on one who is liable to be harmed does not exceed their moral responsibility for that harm. Of course this is at a minimum a two-​dimensional proportionality: The smaller the harm for which one is morally responsible, and the smaller their moral responsibility for that harm, the smaller the amount of harm we can impose on them. Conversely, even the smallest amount of moral responsibility for a great harm might be sufficient to impose a rather large amount of harm in an attempt to avoid the greater harm. The question, of course, is: In what sense is liability to harm proportionate to moral responsibility for that harm? On one hand, the proportionality calculation might for its analysis compare this moral responsibility to that of a fully culpable individual committing the same act. On the other, it might appeal to the moral responsibility of others in our scenario. I am using the term “amount” of moral responsibility to compare the moral responsibility of the threatener to that of a fully culpable individual threatening the same amount of harm; I am not using it in the relative sense, that is, moral responsibility compared to that of others involved, because then the level of the threatener’s moral responsibility would always (when others are innocent) be 100 percent. This would then further lead us to an account similar to the one McMahan proposes, where minimally morally responsible threats are liable to be killed when killing is necessary to avert the threat. Instead it seems to me that liability should also depend on the level of moral responsibility for the threat of harm. The minimally morally responsible threat in the driver case should be liable to some level of harm, but not liable to be killed. It does not follow, however, that on my account we would never be justified in killing a minimally responsible threat; all it means is that liability justification is not sufficient to explain why and when we are justified in killing a minimally responsible threat. So how, then, do we explain why we might be justified in killing a single minimally responsible threatener, while we might not be justified in killing multiple minimally responsible threateners? The particular problem arises in cases like that of the minimally responsible driver, where there is unavoidable harm of death that has to be distributed either to the driver or to the innocent bystander. It seems to me that we should think of the harm above and beyond that to which the driver is liable as the same sort

 Ibid.

25

618

168

Proportionate Killing

of harm that one would impose on the innocent. In other words, in cases of minimally responsible threats we might apply first the narrow proportionality analysis and then the wide proportionality analysis. However, the amount of harm that would need to be imposed on the person that is liable is simply smaller in cases of minimally responsible threats, assuming that the harm of death is equal, since the harm that needs to be imposed is that of death minus the harm to which one is liable. This then explains why, even though a minimally responsible threat is not liable to be killed to avert a lethal threat that they are posing, they nonetheless might be justifiably killed in those circumstances when the harm of death is equal between the threat and the innocent bystander. It also explains why we quickly run out of justification for such killing. Given this picture of how we ought to assess whether or not an action in war is justified, it might seem that the complexities once embedded in proportionality calculations are now just pushed onto some of the other conditions. For example, it might seem that we now end up with the difficult question of what sorts of intentions count as right in the cases involving minimally responsible threateners. If the harm above that to which one is liable is genuinely to be assessed in the same way as the harm to an innocent, then we might worry that we must somehow have different intentions with respect to the harm we impose which is justified via the lesser-​evil justification and that which is justified via the liability justification. It seems to me that for minimally responsible threateners it must be the case that in our evaluations of the proportionality we are justified in asking what sorts of intended harms we may impose on them, even though parts of the harm will be justified in the same way as for those that are fully innocent. In other words, while minimal moral responsibility for a harm is not sufficient to ground liability to lethal harm, it is sufficient to assert that both harms to which the threatener might be liable and harms above that can be intentional. This seems to be the case since, if it is ever the case that we can justifiably kill a minimally responsible threatener in an effort to avert the threat, it seems that often, if not always, we will be using her as a means to avert that very threat. The benefits of this approach are to be found in the fact that many of the complexities have been “pulled out” of the proportionality calculation, making it easier to apply.26 In other words, this account is careful not to identify all-​things-​considered judgments with proportionality calculations in war. One worrisome consequence that arises when analyses of proportionality are confused with analyses of all-​things-​considered judgment is that we end up with a world in which it would be almost always acceptable to kill a minimally responsible threatener when the other party is innocent. Worse yet, some of the accounts that are not sensitive to this distinction may have to be committed to the claim that even if it is possible to distribute harms between the minimally responsible threat and the innocent party, we need not. For example, imagine that S is partly morally responsible for a lethal threat of harm to P. Further imagine that S is only 20 percent responsible comparative to a fully culpable threat in the same scenario. Further still, imagine that it would be necessary to inflict y amount of harm 26   Furthermore, this account keeps the liability and lesser-​evil justifications separate and not interdependent, and thus begs fewer questions with respect to our entitlement to appeal to both in our all-​ things-​considered judgments.

619



Liability and Lesser-Evil Justifications

169

on the threat to avoid the harm, but that their moral responsibility for the lethal threat only justifies imposing y-​2. Since liability depends in part on necessity then one will only be liable to y-​2 harm if we can, via lesser evil, justify the extra two units of harm. This sort of analysis then makes liability to harm dependent on the lesser-​evil analysis of harm, which is exactly what my account has been trying to avoid. This is why I tried to suggest that we have two notions of necessity: one internal to liability, which simply asks whether the harm grounded by one’s moral responsibility (in this case y-​2) would be necessary but not how much of that harm is necessary, and another, external jus in bello notion of necessity which is better understood as minimal force necessity.27 One helpful way to think of these two necessities is as upper and lower limits on harm: So the necessity internal to liability asks whether the amount of harm that the moral responsibility of the threatener can ground (as comparative to a fully culpable threat) is necessary to avert the threat, and the jus in bello necessity condition asks whether the overall harm that both liability and lesser-​evil justifications have deemed proportionate is the minimal amount of force and, in that sense, necessary. This then allows these two types of justification to remain independent. It also gives us tools to say that in most scenarios where the minimally responsible threat is threatening lethal harm to an innocent, we will end up with all-​things-​considered judgments that suggest that killing the minimally responsible threat is justified if necessary. But remember that (as on most other accounts discussed here) it will not be the case that we may kill multiple such threateners. The second worry that was raised for most of these accounts was that they might encourage not distributing harms when that is possible. Regarding this second worry, it seems pretty clear that we can, if we take the approach I suggest here, ask to what amount of harm one is liable, then simply attempt to compare the various alternative methods of distributing the rest of the harm that would allow for the threat of harm to be successfully averted and, applying the jus in bello necessity condition, choose the one that is least harmful.28 Another benefit of this account is that it avoids what some have called double-​ counting. McMahan, for example, worries that both the liability justification and the lesser-​evil justification rest their calculations on preventing 100 percent of the harm.  One further benefit of this is that the notion of necessity that is internal to liability is a non-​ consequentialist notion—​it doesn’t require comparing harms to answer. 28   There is an interesting question of what the proposal I make here tells us about the rights of the minimally responsible driver with respect to her self-​defense, and what the possible consequences of this view are for the relative moral status of combatants in war. So one might ask whether the minimally responsible driver is justified in engaging in self-​defense against the innocent bystander. I argue that she is not, and that this account preserves the moral inequality of combatants. On this account we are justified in killing a single minimally morally responsible threatener because the harm that needs to be imposed on them above the harm to which they are liable is simply less. This makes it so that killing the threatener is the all-​t hings-​considered right thing to do when no other options are available. Furthermore, on this account, saying that an action is one that is less bad is to say that it is an objectively justified action. The fact that we often think that the minimally responsible threateners have a right of self-​defense is often grounded in the claim that they have an agent-​relative justification to favor one’s own life. But I think we ought to be careful when we consider favoring of one’s own life as justificatory rather than excusatory in considering the possible self-​defense of a minimally responsible threatener. I take it that if the minimally responsible threatener was to engage in self-​defense she could be morally excused because of a right to favor one’s own life, rather than justified because of it. 27

710

Proportionate Killing

170

While I  too worry that Bazargan’s account might suffer from double-​counting, the model I  present above is driven exactly by the desire to keep the two justifications independent. On the view presented here, the harm above that to which one is liable is justified by whether or not it is a lesser evil. These two are discrete since the notions of necessity internal and external to liability are kept separate; since the calculations of lesser evil are raw calculations, they need not take into account worries about qualitative differences between unintended and intended harm, and then need not assert that one’s moral responsibility for the threat is what makes it the lesser evil to harm the minimally responsible threat (i.e. re-​using reasons that we have preempted with liability calculations).29 Finally, I think another benefit of this account is that it is more accessible to participants in armed conflicts today, that is, that at least in some circumstances these sorts of analyses can be made by combatants in the current technology-​driven conflicts. I believe that we have good reasons to assume that the harm of death is equal for everyone, barring extremely unusual circumstances, and that combatants and officers are justified in thinking that the harm of death is equally great for all people around them. It is not unusual not to expect such calculations (of value-​of-​life differentials) in ordinary cases, so I am not persuaded that we need to worry about such calculations in cases of war. This further simplifies our calculations of proportionality—​after all, we may think of harm above that to which one is liable as harm that needs to be justified in the same way as the wide proportionality harm may need to be, namely, by a simple analysis of lesser evil. In this way the lesser-​evil justification does not rely in any way on the liability justification, but both of them jointly can give us separate and additive reasons to think that killing a minimally morally responsible threatener is justified. At the same time, this account explains why we might not be justified in killing multiple threateners—​most likely not even three or four. This account does not attempt to roll liability and lesser evil into a single interdependent justification. Instead it explains that the liability justification explains how the conditions of proportionality and right intentions are to be applied and then, in a different level of analysis, relies on the liability or lesser-​evil justifications to explain which actions are proportionate and which are justified. This account allows us to track the meaning of claims such as “that action is proportionate, but not justified.” It also suggests that when we say the killing of the minimally morally responsible threatener is both narrowly and widely proportionate, we actually do not simply mean that the harm to which they are liable was not exceeded and no innocents were harmed, but that the harm to which they were subjected above and beyond that to which they were liable was the lesser evil under the same standard that would have been used to harm an innocent. All of this ultimately matters since it informs our questions regarding what may be done to a group of attackers, where each one of them is only minimally responsible for the threat. It is hopefully clear why I do not think we are justified in killing all of them to avert the threat of a single death of an innocent bystander. This account seems to be particularly well suited for most proportionality calculations in war, which will often involve threats of harm to

  I am grateful to Herlinde Pauer-​Struder for this phrasing of the issue.

29

71



Liability and Lesser-Evil Justifications

171

both civilians and combatants, since it allows us to think of the “remaining” harm that needs to be imposed on the minimally morally responsible threats (some of the combatants) as collateral damage which needs a weighty value on the other end to be justified. That doesn’t, however, mean—​as many contingent pacifists would have us believe—​that most actions in war will be disproportionate and thus impermissible. In practice, I assume that this account would suggest that combatants may almost always be targeted (since they will almost always be at least minimally morally responsible for the harm we are trying to avert) when innocents are not, but that the number of combatants that may be killed (given some basic suppositions about responsibility to harm, access to facts, etc) is not significantly greater than the number of civilians that may be unintentionally but foreseeably killed in similar circumstances. With that in mind, I now turn to an examination of some of the consequences for contingent pacifism of taking my proposal seriously. Contingent pacifists take many forms, but many accept that just war theory (in some form or another) is the appropriate way to justify war. Those pacifists that accept just war theory by and large think that such justifications of war and fighting in war are always going to fail. The reasons for this are various, and the corresponding affirmation of the claim that justifications of war will always fail will be filled out by various contingent claims. Some of the prominent contingent pacifists suggest that approaching the justification of war via the liability analysis is altogether mistaken. Scholars such as Larry May argue that in today’s world it would be difficult to meet either the jus ad bellum or the jus in bello conditions. I set aside the arguments against the jus ad bellum and focus here, for obvious reasons, on arguments for contingent pacifism that are grounded in the rejection of the view that the jus in bello condition can be met. Two possible arguments come to mind—​one grounded in the analysis akin to the one I present here—​ namely, of those contingent pacifists that accept the liability approach but think this makes it close to impossible for anyone to fight the war justly, and of those, such as May, who reject the idea that the liability approach is the best way to examine justness of fighting in war in the first place. It is interesting to note that on both sets of arguments, the main point that does most of the justificatory work is the assertion that, given the facts of our world as it is, it will be close to impossible in most or all cases to decide who is a just target and who is not. This claim often goes hand in hand with the assertion that there aren’t a lot of just targets in war in general, since war seems to be mainly fought by minimally responsible agents, rather than fully culpable ones. Some—​namely, those that reject the responsibility-​based approach to just war theory altogether—​might in fact go further and argue that the war is in fact most often fought by innocents. For example, May argues that complicity on the unjust side is not sufficient to make one liable to be attacked or killed. This is relevant since it is sometimes argued that the complicity of the combatants on the unjust side is sufficient to ground their minimal moral responsibility. By arguing that complicity is not sufficient for combatants to become legitimate targets of attack (in a primary or secondary sense) and that complicity would be a primary general way (if not the only one) for soldiers on the just side to assess the moral status of the combatants on the opposing side, one can argue that it would be wrong to kill those on the unjust side even if the side was objectively unjust.

712

172

Proportionate Killing

The two separate questions here are whether combatants on the other side are complicitous, and whether minimal moral responsibility of such kind can ground liability to be killed. I agree with May that simply complicitous combatants (or those complicitous in such a way that they have a strong excuse for their actions) are not liable to be killed, but on the account presented here, it is clear that that is not necessary for the enemy combatant to be justifiably killed. Most types of complicity will ground some minimal moral responsibility for posing a threat, so ultimately the questions are the extent of the complicity, the size of the threat, and how many enemy combatants need to be killed to avert it. The account I defend here suggests that that number is lower than if we were simply considering innocent civilians.

4. Conclusion In conclusion, my hope is that the account provided here gets closer than the alternatives to meeting the desiderata that I set out in the beginning for an account of fighting in war that takes seriously the idea that liability and lesser-​evil justifications work together to give us all things considered judgments in war. I  have argued that the relationship between the jus in bello conditions can be a helpful tool in modeling an appropriate way to understand the interplay between liability and lesser-​evil justifications for killing in war.

713

7 Compensation and Proportionality in War Saba Bazargan-​Forward

1. Introduction Wars—​including just wars—​inflict massive casualties on innocent civilian populations. These civilians, I will argue, are owed compensation even if inflicting such casualties satisfies the proportionality constraint. But who bears this compensatory duty? The primary bearer is the war’s unjust aggressor, even if it is not they who committed or benefited from the harm imposed on the civilians. But often the unjust aggressor will be unable or unwilling to discharge this compensatory duty ex post. The duty then falls, I will argue, upon the just side that committed and benefited from those harms (even if inflicting those harms satisfied proportionality). But what if it is reasonable to surmise antecedently that the just side in a war will culpably fail to discharge its compensatory duties ex post? This is exactly the situation we are typically in; rarely, if ever, do the victors or the vanquished compensate the victims of war. I will argue that this amplifies the weight that those rights infringements ought to receive in the calculation of proportionality. The upshot is that if we know antecedently that civilians will be culpably left uncompensated ex post, it will be substantially more difficult to satisfy the proportionality constraint ex ante. The lesson is that we need to take compensation seriously in order to wage war permissibly. I will begin with a discussion of compensation in general by focusing on individual rights infringements. In subsequent sections, I will apply the lessons learned to war.

2.  Rights Infringements and Compensation There are circumstances in which acting contrary to an individual’s rights can be justified—​specifically, when doing so is necessary to avoid catastrophic consequences. For example, it might be morally permissible to grievously harm an innocent if doing so is necessary to prevent a hundred other innocents from being killed. In such a case, the grievously harmed innocent’s rights are infringed, as opposed to violated. A right is infringed when there is an all-​things-​considered consequentialist justification for acting contrary to that individual’s rights. An individual’s rights are violated when there is no such justification (or any other).1 Even when consequentialist considerations make it permissible to act contrary to an individual’s rights, that individual is still wronged by that rights infringement. An act that is morally permissible all things considered can still wrong the individuals 1   For more on the distinction between infringing and violating rights, see Jeff McMahan, Killing in War (Oxford University Press 2009) 10.

Compensation and Proportionality in War. Saba Bazargan-Forward. © Saba Bazargan-Forward, 2017. Published 2017 by Oxford University Press.

174

174

Compensation and Proportionality in War

foreseeably harmed by that act. This is evidenced by the fact that the putatively wronged individuals have a right to compensation. To see this, consider the following emendation of a canonical trolley case.

Trolley 1 An innocent, J, is trapped on one side of a forking trolley track. On the other side, a dozen other innocents are trapped. A trolley is headed toward the dozen and will kill them all unless the switch is pulled, in which case the trolley will head toward J, thereby severing one of her arms. Suppose the dozen together throw a rock which hits the switch, thereby saving their own lives at the cost of J’s arm. Presumably this act is morally justified. Yet J can justifiably demand compensation from the dozen individuals who were saved by the sacrifice they imposed upon her. Moreover, those dozen individuals are morally obligated to compensate J, provided that doing so does not impose disproportionate costs on them. (Some might argue that the community at large owes compensation rather than the individual beneficiaries of the justified rights infringement. But I  will abstract from this possibility by stipulating that the individuals in the example exhaust the population of the community.) If we think that J is owed compensation then this suggests that there is indeed a residual “moral deficit” in having imposed a harm upon her in furtherance of preventing a substantially worse outcome. Put differently: The view that J is owed compensation vindicates the analysis according to which we act contrary to her rights when we inflict an all-​things-​considered morally permissible harm upon her. Note, though, that those who owe compensation are not necessarily those who inflicted the harm on J. To see this, consider:

Trolley 2 Just as in Trolley 1, except the dozen trapped individuals do not throw a rock at the switch. Instead, B, a bystander unrelated to J or the dozen other individuals, happens upon the scene; he pulls the switch. We might ask whether a compensatory duty falls solely upon B, solely upon the dozen individuals he saves, or whether it ought to be divided between the two groups. Fortunately, we need not answer this question, since the situation most analogous to war (or so I will argue) is one in which the dozen individuals antecedently hire B as a bodyguard; they authorize B to pull the switch in order to save them. In such a case, it seems clear that the dozen individuals owe J compensation even though it is B who pulled the switch. We might think that normally the individual who actually commits the harm bears special compensatory duties over and above those who merely benefited from that harm. But the relevance of this distinction is diminished, if not outright eliminated, when the individual who committed the harm is hired or otherwise authorized to act by the beneficiaries of that harm. The result is that when B switches the tracks at the behest of the dozen individuals he thereby saves, those individuals (along with B) will owe compensation to

715



Diachronicity vs Synchronicity

175

J for having (justifiably) infringed her rights, even though they weren’t the ones who committed the rights infringement. Their status as beneficiaries who authorized the rights infringement suffices to impose upon them duties of compensation toward J. But now complicate the example in the following way. Suppose we know antecedently that neither B nor the dozen individuals he will save will compensate J. Moreover, suppose we know that their failure to do so will be abjectly culpable. Does this affect the calculation determining the permission to inflict a harm on J? In one sense, it clearly does; it affects the wide proportionality constraint which determines whether the amount of harm we impose on non-​liable parties is outsized relative to the amount of good that imposing that harm does.2 But how do we include future benefits in the calculation of wide proportionality? I turn to this issue next, since it plays a crucial role in arguing that a failure to compensate ex post can affect proportionality calculations ex ante.

3.  Diachronicity vs Synchronicity in the Proportionality Constraint We can categorize versions of the proportionality constraint according to whether it allows into its calculation only temporally proximate harms and benefits, or temporally distal ones as well. We can also categorize versions of the proportionality according to whether it allows into the calculation only temporally proximate actions, or temporally distal actions as well. The combination of these two bifurcated dimensions yields four possibilities, categorized in the chart which follows. After making these distinctions more clear, I’ll argue in favor of a doubly diachronic interpretation of proportionality. Act Harm

Diachronic Synchronic act-​diachronic act-​synchronic harm-​diachronic harm-​synchronic

Suppose we know that although a candidate’s course of action imposes a substantial harm on an innocent right now, next week we will compensate her for half that harm. In calculating proportionality, if we include only the consequences of what we are doing right now, then the future compensatory benefit plays no role in determining whether the candidate act satisfies proportionality. We’ve thus adopted an act-​ synchronic version of the proportionality constraint. If, alternatively, we do include in the calculation of proportionality the consequences of what we know we will do later on, then the future compensatory benefit can indeed play a role in determining whether the candidate act satisfies proportionality, by subtracting the compensatory benefits we’ll be providing later from the harms we are committing right now. This exemplifies an act-​diachronic version of the proportionality constraint.  Ibid 40.

2

176

Compensation and Proportionality in War

176

It is important to note that an act-​diachronic version of the proportionality constraint does not commit us to the view that it is permissible to impose some harm on a victim provided that we fully compensate that victim later on. Even if the benefit we provide later on is so substantial that the victim herself would have been antecedently indifferent between the options of (a) suffering the harm and accruing the benefit, and (b) nether suffering the harm nor accruing the benefit, forcing the victim to choose (a) still wrongs her insofar as it violates her autonomy. We are not permitted to inflict harms even when we fully compensate the individual afterward, because doing so, in the words of Robert Goodin, wrongfully “pushes the victim along her indifference curve”; it treats her value-​equivalent options as fungible, when in fact she has the right to decide among them despite their being, by her own lights, value-​equivalent.3 Someone convinced by this argument can still adopt an act-​diachronic interpretation of the proportionality constraint by stipulating that we cannot completely subtract to zero a harm we are inflicting right now by adverting to a future compensatory act, no matter how substantial that compensation is. The compensatory benefit can, however, partially discount the disvalue of the current harm. The act-​diachronic/​synchronic distinction should be kept distinct from the harm-​ diachronic/​synchronic distinction. With respect to the act-​diachronic/​synchronic distinction, the issue is whether we include the effects of only current acts in the proportionality calculation, or the effects of future acts as well. With respect to the harm-​diachronic/​synchronic distinction, we look only at current acts. The issue, rather, is whether we include in the proportionality calculation just the immediate effects of that current act, or the future effects of that current act as well. To appreciate the difference between these two distinctions, consider the following example.

Radiation We are considering using a radiological weapon in a conflict. That weapon will cause immediate harms (e.g. burns) and future harms (e.g. cancer). Presumably, the future harms should be included in the proportionality calculation (discounted according to epistemic limitations in predicting such harms). This is just to say that we ought to adopt a harm-​diachronic view of the proportionality calculation. But now suppose we plan on providing some degree of compensation for the victims. We’re wondering whether the consequences of that future act—​that is, providing the compensation—​should be included in the proportionality calculation right now. If so, we ought to adopt a harm-​diachronic and act-​diachronic view of the proportionality calculation. Alternatively, we might think that the long-​term consequences (such as the harm of cancer) of a current act ought to be included in the proportionality calculation, but not the consequences of acts we have not yet performed (such as acts of compensation   Robert E Goodin, “Theories of Compensation” (1989) 9 Oxford J Legal Stud 56–​75.

3

71



Diachronicity vs Synchronicity

177

we plan on committing next year). In this case, we’ve adopted a harm-​diachronic and act-​synchronic view of the proportionality constraint. I presume that everyone reading this will agree that we ought to adopt a harm-​ diachronic interpretation of the proportionality constraint. That is, we ought not to exclude the long-​term consequences of the harms we are including right now. There might be disagreement on whether we ought to partially discount the disvalue of those future harms on the grounds that they will occur in future—​especially if the victims of those future harms are persons who do not yet exist. There might also be disagreement on whether we ought to treat future harms and benefits symmetrically. And of course, we might discount the disvalue of the harms in accordance with uncertainty about whether they’ll occur. But I take it that no one will say, for example, that in the radiation case, the calculation determining the permissibility of using the radiological weapon ought to exclude the harms of causing cancer years from now. That would be absurd. I will accordingly assume that some version of the harm-​diachronic interpretation of the proportionality constraint is correct. But is the act-​diachronic interpretation of the proportionality constraint also correct? I will argue that when evaluating an act that will infringe the rights of others, whether we will compensate those victims in the future can affect whether that act satisfies proportionality. Suppose avoiding harm to others requires inflicting a harm on an innocent where doing so infringes her rights. As I have argued, even if inflicting the harm on her is justified insofar as it prevents greater harm to others, the innocent is still owed compensation. But now suppose that inflicting the harm on the innocent does not satisfy the proportionality constraint, but also suppose that we know antecedently that we will partially compensate the victim ex post. This diminishes the overall amount of suffering that the victim will have to endure. So, for example:

Broken arm Inflicting a broken arm on an innocent is necessary as a side effect to prevent two other individuals from suffering broken arms. We have available $200,000 in the form of compensation to the innocent should we decide to infringe her right in furtherance of preventing two others’ equally stringent rights from being infringed. Though we are presumably not permitted to break one arm as a side effect of preventing two others from suffering broken arms, inflicting the broken arm, followed by a substantial compensatory payment offsetting some of the suffering that the rights infringement causes, might result in a total amount of suffering satisfying the proportionality constraint. Accordingly, knowing that we will compensate the victim ex post can help satisfy proportionality. But in evaluating whether a current harm satisfies proportionality, what entitles us to look to the benefits that future acts will confer? That is, why believe that the act-​d iachronic interpretation of the proportionality constraint is correct? The answer is that the harm-​d iachronic interpretation suggests as much. Consider this case:

718

178

Compensation and Proportionality in War

Poison Inflicting a harm on an innocent—​in the form of a poisoning—​is necessary to avoid some equivalent harm to each of many others. Poisoning the innocent will cause her to suffer severe short-​term abdominal pains and nausea, but will have the beneficial side effect of extending her life by ten years. If we think that the future benefit caused by a current act ought to be included in the proportionality calculation, then it is unclear why we ought not to include benefits conferred by future acts as well. We might be inclined to think that the following is a morally relevant distinction between harm and act diachronicity. In Poison there’s a sense in which it is no longer up to us whether the victim will experience the long-​term benefits of the short-​term harm once we poison them. In Broken Arm we must act at some point in the future in order to ensure that the victim benefits. The compensation in that case depends on our goodwill in a way that the future benefits in Poison do not. Insofar as our goodwill is potentially capricious in a way that the laws of nature are not, this might explain why we might be less inclined to adopt act-​diachronicity even once we’ve accepted harm-​diachronicity. Suppose, though, we know antecedently that there is an n% chance that after inflicting some harm h1 we will compensate the victim by conferring some benefit b next year. We also know antecedently that there is an n% chance that inflicting some harm h2 will itself cause some benefit b next year. We ought to treat h1 and h2 the same as far as the calculation of proportionality is concerned. It is true that adopting a probabilistic attitude towards one’s own behavior involves a sort of gestalt shift from intending to predicting—​from a first-​personal to a third-​personal standpoint regarding ourselves. This might seem to belie the supposed sovereignty we have over our own decisions and action. There is something disconcerting, after all, about a friend responding purely in terms of probabilities when you ask whether she is going to fulfill a promise. By responding in such a way, she treats herself as if she did not have a say over whether she is going to do what she promised to do. But, far from undercutting the normative nature of our promises and commitments, adopting a third-​person standpoint toward one’s self is a condition of making such promises and commitments. For if I know that I am not the kind of person who follows through with promises of the relevant kind (e.g. a promise to help a friend move, or a promise to stop drinking next month), then making such a promise is done in bad faith, precisely because I know that there is a low probability that I will choose to follow through. Likewise, if we know that we are unlikely to keep our commitment to provide our victim with compensation, then we cannot felicitously make such a commitment, which in turn means that we cannot include it in the benefits column of the proportionality calculation. The moral, then, is that the problem worrying those skeptical about the act-​ diachronic interpretation of the proportionality constraint is self-​correcting:  The cases in which we ought to harbor significant doubts about our own commitment to providing compensation ex post are precisely those cases in which we cannot include that act of compensation in the proportionality calculation. Of course, there are other

719



Culpable Failures to Compensate

179

factors that might diminish our confidence in our ability to follow through with a commitment—​we might doubt whether we have access to the funds necessary to compensate the victim, for example. When the source of the uncertainty comes not from our will but from the world, we ought simply to do a weighted discounting of the benefit in accordance with the probability of its occurrence, just as we would if the benefit were the downstream result of a non-​agential process. The upshot is that we ought to adopt not just a harm-​diachronic interpretation of the proportionality constraint, but an act-​diachronic one as well. I will call this the “Principle of Diachronic Equivalence.”

4.  Culpable Failures to Compensate So far I have characterized compensatory benefits as something that makes satisfying the proportionality calculation easier. But such a characterization can be misleading. As I claimed at the outset, we are often morally required to compensate the victim of a rights infringement. If we are unable to compensate the victim through no fault of our own, compensation plays no role in calculating proportionality. But suppose that the failure to compensate is culpable. Suppose we simply have no intention of compensating our victim, despite knowing or being in a position to know that we ought to do so, and despite having the means to do so. In this case, it is misleading to construe the situation as one in which a potential benefit is removed from the proportionality calculation. Rather, inflicting a harm on the victim while knowing that we will culpably fail to compensate the victim aggravates the rights infringement. I will call this the “Principle of Culpable Compensatory Failure.” In support of this principle, consider the following pair of examples.

Trolley 3 A trolley is heading toward a dozen individuals trapped on one side of a forking trolley track. The trolley will sever all of their arms unless a track is switched, in which case the trolley will head toward a single innocent trapped on that side of the track, thereby severing her arm. A bystander who happens upon the scene is able to switch the track. However, both she and the dozen individuals are destitute; they will never have the funds necessary to compensate the victim.

Trolley 4 A trolley is heading toward a dozen individuals trapped on one side of a forking trolley track. The trolley will sever all of their arms unless a track is switched, in which case the trolley will head toward a single innocent trapped on that side of the track, thereby severing her arm. A bystander who happens upon the scene is able to switch the track. However, she knows that the dozen individuals have no intention of compensating the single victim for the loss of her arm, even though they could easily do so at comparatively little cost to any one of them by pooling together their wealth.

810

180

Compensation and Proportionality in War

They simply do not want to do so. Moreover, the bystander is destitute; she lacks anything close to the funds required to even partially compensate the victim for the loss of her arm. The harm inflicted and the harm prevented in Trolley 3 and Trolley 4 are exactly the same. In neither example is the single innocent compensated for her loss. The only difference is that in the former case, those who would ideally provide compensation are unable to do so through no fault of their own, whereas in the latter case those who would ideally provide compensation culpably refuse to do so. This difference explains why we might be more inclined to permit pulling the switch in Trolley 2 than in Trolley 3, even though the harm inflicted and the harm prevented are exactly the same between the two cases. In Trolley 3 the rights infringement is made much worse by the fact that the beneficiaries of that infringement will culpably fail to fulfill their duty to compensate the victim. Doing so manifests an appalling disregard for the victim. Treating a severe infringement of her rights as unworthy of rectification is tantamount to regarding the victim as a disposable object rather than a person with attendant rights. This aggravates the wrong of infringing those rights; hence the amount of good that infringing her rights must achieve in order for doing so to be permissible is substantially higher than it would be if they treated the infringement as they should: as a pro tanto wrong necessitating rectification. Note that a culpable failure to compensate ex post does not rule out the possibility of permissibly infringing the victim’s rights. Consider this example:

Trolley 5 A trolley is heading toward a dozen individuals trapped on one side of a forking trolley track. The trolley will kill all of them unless a track is switched, in which case the trolley will head toward a single innocent trapped on that side of the track, thereby severing half of her pinky finger. A bystander who happens upon the scene is able to switch the track. However, she knows that the dozen individuals have no intention of compensating the single victim for the loss of her finger even though they could easily do so—​they refuse since she is a member of an ethnic minority they detest. Moreover, the bystander is destitute; she lacks anything close to the funds requires to even partially compensate the victim. It is presumably permissible for the bystander to sacrifice half of the single victim’s pinky to save the lives of the hundred who culpably refuse to compensate her. This is because the refusal to compensate makes the rights infringement worse, but only up to a point. Given a sufficiently large moral catastrophe, or a sufficiently small rights infringement, a culpable failure to compensate for the rights infringements will not be dispositive, even given the Principle of Culpable Compensatory Failure. The upshot is that a culpable failure to compensate the victim of a rights infringement ex post can affect ex ante the proportionality calculation determining the permissibility of inflicting that rights infringement. This assumes that the act-​diachronic interpretation of the proportionality constraint is correct, as I  have argued. Now I apply what I have argued so far to warfare.

18



Compensatory Duties in War

181

5.  Compensatory Duties in War Wars—​even permissible ones—​typically involve committing rights infringements against civilians on a massive scale. This includes, of course, the immediate and proximate collateral harms foreseeably but unintentionally inflicted upon civilians when military installations, personnel, and combatants are targeted. But this is just the tip of the iceberg. We also infringe the rights of civilians when we: damage or destroy private civilian property (such as living abodes, businesses, livestock, farms, etc); damage or destroy public sector facilities necessary to maintain the welfare of civilians (such as health-​care clinics, hospitals, schools, power plants, water treatment systems, etc); and traumatize civilians psychologically by exposing them to the horrors of warfare. Warfare also obviously interrupts economic output in ways that have lasting detrimental effects. As I  have pointed out elsewhere,4 the compensatory duty owed post-​war is not merely a financial duty, but a life-​saving one (which often can be implemented financially). This is because the majority of citizen deaths due to warfare occur after hostilities are over. Neta Crawford has concluded that “although it is difficult to estimate the number of those killed indirectly by war with confidence, it is safe to say that indirect deaths outnumber direct deaths.”5 The Geneva Declaration Secretariat states, based on data from armed conflicts between 2004 and 2007, that “a reasonable average estimate would be a ratio of four indirect deaths to one direct death in contemporary conflicts.”6 Consequently, the post-​war compensatory duties are not limited to redressing the families of those wrongly killed in the course of the armed conflict; in addition, and more importantly, there is a compensatory duty to prevent misery and death. These harms count as rights infringements to the extent that the civilians have done nothing to forfeit their right against suffering such harms. Suppose, though, that most of the civilians individually play an active, voluntary, and causally significant role in supporting their government’s unjust military aggression—​and they are in a position to recognize that their government’s aggression, along with their own support of it, is unjust. I believe that the civilians, under these circumstances, will be morally (though not legally) liable to some of the aforementioned harms, in which case inflicting such harms upon them foreseeably but unintentionally in furtherance of preventing their state’s unjust military aggression will not count as a rights infringement (provided that the constraint of proportionality is met). Suppose, though, as is often the case, that we are waging a war in which any given individual civilian contributes little, if at all, to the unjust war that their government is waging. Suppose, further, that the war we are waging against them has a just cause. Though this further supposition obtains less often, my purpose is to show that waging a war that satisfies proportionality is more difficult than is commonly thought. So for   Saba Bazargan, “Defensive Wars and the Reprisal Dilemma” (2014) 93 Australasian J Phil 597.   Neta Crawford, Accountability for Killing: Moral Responsibility for Collateral Damage in America’s Post-​9/​11 Wars (Oxford University Press 2013) 151. 6  Geneva Declaration Secretariat, Global Burden of Armed Violence (Cambridge University Press 2011) 32. 4 5

812

182

Compensation and Proportionality in War

this reason it is necessary to take as an example cases in which the war being fought has a just cause. (A war has a just cause if waging that war averts an evil of the right type and of sufficient importance necessary to provide at least a prima facie justification for killing liable parties in furtherance of averting that evil.) So inflicting rights infringements on civilians will be permissible if doing so is the least harmful means of waging a war with a just cause and if the harms we inflict are not disproportionate relative to the wrongful harms we prevent. But even when the rights-​infringements we inflict are permissible on these grounds, the victims are owed compensation because the rights infringements, despite being all-​things-​considered permissible, are still pro tanto wrongful. But who has the duty to compensate the innocent civilians whose rights we infringe? The following example suggests it is the wrongful aggressor that owes compensation, even if it is the justified defender that commits the rights infringement.

Individual Defense 1 The only way to prevent an unjust aggressor from killing you is by throwing a grenade that will incapacitate him without killing him. Unfortunately, an innocent bystander is present. Throwing the grenade will injure the bystander as a side effect (perhaps it causes burns, or the concussive force breaks her arm). You throw the grenade, which it is arguably permissible to do, since (a) the cost to you is much greater than the cost to the civilian, and (b) you do not intend to harm the civilian. Presumably the bystander is owed compensation on the grounds that her rights were infringed, albeit permissibly. But who owes the civilian compensation? You, or the unjust aggressor? In this case, you both commit the rights infringement, and you are the beneficiary of doing so in that by committing it you save your own life—​though you do so by shifting a cost to the bystander. On the standard account of compensation, as both the beneficiary of a rights infringement and the actor who committed it, you would be liable.7 Yet it seems unfair to impose the cost of compensation upon you. This is because another party—​the unjust aggressor—​culpably and gratuitously created a situation in which it became morally permissible and practically rational for you to infringe the rights of the bystander. This makes the unjust aggressor a more appropriate bearer of a compensatory duty than you. If this is correct, it has implications for duties of compensation in war. Suppose again that we are waging a defensive war against an unjust aggressor; the war satisfies the constraints of necessity and proportionality. In doing so, we ineluctably infringe the rights of millions of innocent civilians who are not liable to be harmed in this way. But insofar as it is the actions of the unjustly aggressing state that made it morally permissible for us to infringe the rights of those civilians as a side effect of

7   See e.g. Daniel Butt “On Benefiting from Injustice” (2007) 37 Canadian J of Phil 129–​52; Christian Barry and Robert Goodin, “Benefiting from the Wrongdoing of Others” (2014) 31 J App Phil 363–​76; Gerald Øverland and Bashshar Haydar, “The Normative Implications of Benefiting from Injustice” (2014) 31 J App Phil 349–​62.

813



Compensatory Duties in War

183

preventing much worse harms, we do not owe compensation to those civilians; rather, the unjustly aggressing state does. Though states—​especially economically privileged ones—​often undertake reconstruction efforts post-​bellum, it is rare that this counts as compensation for the harms inflicted. This is because compensation requires not merely ameliorating the suffering and devastation wrought by war, but in fact bringing the civilians back to the level of well-​being they enjoyed antebellum. This will require massive economic resources that a losing state will typically lack. So achieving the aim of winning a defensive war with a just cause will deprive the vanquished of the ability to fully discharge its compensatory duties toward its own civilians—​if it ever had that ability in the first place. What happens, then, when the primary party owing compensation cannot discharge it? It would be premature to hold the compensatory duty in abeyance. Rather, there are secondary parties upon whom the duty falls. In the sorts of cases I have been discussing, the duty would fall on the party who both committed the rights violation and benefited from doing so. To see this, consider a version of the previous example:

Individual Defense 2 The only way to prevent an unjust aggressor from killing you is by throwing a grenade that will incapacitate him without killing him. Unfortunately, an uninvolved bystander is present. Throwing the grenade will injure the civilian as a side effect. The unjust aggressor is destitute; he lacks the funds to compensate the bystander. Again, it is arguably permissible to throw the grenade since the cost to you is much greater than the cost to the civilian, and you do not intend to harm the civilian. And again, the bystander is presumably owed compensation on the grounds that her rights were infringed, albeit permissibly. But whereas in the first version of the example the compensatory duty fell on the unjust aggressor, in this version he is unable to discharge that duty. In this example, however, there is another party who can be properly called upon to compensate the victim: the party that infringed the victim’s rights and who benefited from doing so. These relational properties toward the victim can ground a duty to compensate her for the infringement of her rights, provided that there is no one else who is both (a) more blameworthy for that infringement and (b) capable of providing that compensation—​that is, the unjust aggressor himself. I do not mean to claim that there is a strict lexical ordering of who ought to compensate. There might be factors that make it appropriate for the unjust aggressor and the defender to share the compensatory duty. For example, the unjust aggressor might be capable of only providing some compensation. Or the unjust aggressor might be partially excused, in which case it might be unfair to impose the entirety of the compensatory duty on him. Or it might be that imposing the entirety of the compensatory duty on him will incur disproportionate costs relative to the good that the compensation does.8 But absent these sorts of circumstances, the status of the proper bearer of

  This point is made nicely in David Miller, “Distributing Responsibilities” (2001) 9 J Pol Phil 453–​71.

8

814

184

Compensation and Proportionality in War

the compensatory duty moves from the unjust aggressor first, to the defender second. I will call this the “Principle of Secondary Compensation.” If this principle is correct, then the justly defending state has a duty to “pick up the slack” by compensating for the harms it permissibly caused in furtherance of defending itself, provided that upon winning the war the unjustly aggressing state is unable to do so. Now, it is quixotic to think that any government would possess the political will and wherewithal required to undertake this sort of economically massive aid towards one’s former enemies in the aftermath of a costly war. Indeed, it is not mere cynicism to say that we can confidently predict the following of any just war fought in the near future: The victorious party will likely fail to discharge its compensatory duties toward the civilians whose ruination enabled that victory. Recall now the Principle of Culpable Compensatory Failure:  If we know ex ante that we will culpably fail to discharge our compensatory duty toward those whose rights we infringed in furtherance of defending ourselves, then those rights infringements will receive substantially augmented weight in the proportionality calculation. As I argued in Section 4, it’s much harder to justify rights infringements when we are in a position to know antecedently that (a) we will have a duty to compensate for those harms, and (b) we’ll culpably fail to do so. The upshot is this: It is even more difficult than was previously thought to permissibly wage a war with a just cause, since doing so will often require compensating its innocent victims. If we know antecedently that we’ll culpably refrain from doing so, then it is highly unlikely that the war satisfies proportionality. The following example demonstrates this:

Individual Defense 3 Aggressor is intent on unjustly killing Defender. Defender is unable to personally defend herself, but she has wisely hired Bodyguard, who is capable of defending her. One day Aggressor shows up, leveling a firearm at Defender. The only way for Bodyguard to prevent Defender’s death is by throwing a grenade that will incapacitate Aggressor. Unfortunately, doing so will also sever innocent Bystander’s arm. Now consider two versions of this example. Version A: None of the parties in this example (nor anyone else) is able to compensate Bystander.

In this version, the failure to compensate is non-​culpable. Is it permissible for Defender to authorize Bodyguard to throw the grenade in Version A? Suppose that it is: Though the loss of an arm is grievous, it is small enough relative to the harm of a lost life to permit imposing the former on an innocent in order to prevent another innocent from suffering the latter. But now consider: Version B: Defender is indeed perfectly capable of compensating Bystander (Aggressor and Bodyguard remain unable). However, we know that Defender will culpably refuse to provide any compensation to Bystander ex post for the loss of her arm.

815



Strong vs Weak Secondary Compensation

185

In the two versions, the amount of harm inflicted is exactly the same, as is the amount of harm prevented. (Compare with the pair of Trolley examples discussed in Section 1). But in Version B, unlike Version A, Defender’s failure to compensate is culpable. If the Principle of Compensatory Failure is correct, we must augment the weight that the lost arm receives in the calculation of proportionality. Since it is harder to satisfy proportionality given a culpable refusal to compensate, it might turn out that Defender is not permitted to authorize Bodyguard to throw the grenade unless Defender will compensate Bystander ex post. A state that embarks on an otherwise just defensive war but will foreseeably culpably fail to compensate its civilian victims is in a position analogous to Defender in Version B; its culpable failure to compensate makes the rights it infringes morally worse, to the point that waging the war might not satisfy proportionality. I have argued in favor of the Principles of Diachronic Equivalence, Secondary Compensation, and Culpable Compensatory Failure. Together, they yield the following result when applied to the morality of war: It is highly unlikely that an otherwise just war will satisfy the proportionality constraint if we will culpably fail to compensate our victims ex post.

6.  Strong vs Weak Secondary Compensation So far I  have argued that the defending state that commits and benefits from permissible rights infringement in the course of waging a war has a compensatory duty only if the unjust aggressing state is unable to discharge that duty. This follows from the Secondary Compensation Principle that states that the party which authorized or committed the infringement from which she benefited owes compensation only if the culpable party is unable to discharge that duty. In what follows I will argue in favor of a stronger version of that principle: The party which authorized or committed the infringement owes compensation even if the culpable party is able to compensate but culpably refuses to do so. An application of this principle to the proportionality constraint in war yields the view that the defending state has a compensatory duty even if the unjustly aggressing state culpably refrains from assisting its own civilians. To better grasp what the stronger version of the Secondary Compensation Principle claims, consider the following variation of Individual Defense 2. Version C: Defender is perfectly capable of compensating Bystander (though Bodyguard is not). Aggressor is also capable of compensating Bystander. However, we know that Aggressor will culpably refuse to provide any compensation to Bystander ex post for the loss of her arm.

Unlike the previous version of this example, it is Aggressor who culpably refuses to compensate despite being perfectly capable of doing so. The issue, then, is this: Does the duty to compensate fall upon Defender? Those inclined to accept that the compensatory duty falls upon Defender if Aggressor is unable to compensate Bystander might demur in cases where Aggressor’s failure to compensate is culpable. Perhaps

816

186

Compensation and Proportionality in War

there is a duty of beneficence to “fill in” when others culpably fail to discharge their compensatory duties, provided the victim is left sufficiently badly off. But this is not a case where a duty to compensate falls upon us; rather, we have a Samaritan duty to help anyone who is in dire need through no fault of her own. The strong version of the Compensatory Principle, however, says that the compensatory duty falls upon Defender when Aggressor culpably fails to discharge that duty. One reason to accept the stronger version is that what grounds the weaker version is no less present in cases where Aggressor culpably refuses to compensate. Recall that what militates in favor of the view that Defender can owe compensation when Aggressor is unable to compensate is that Defender authorizes the infringement of Bystander’s rights, and benefits from that infringement in that it shifts a harm from herself to Bystander. This relation is also present in cases where Aggressor culpably refuses to discharge her duty. It is, after all, Defender’s relation to the victim—​the bystander—​that grounded her compensator duty, rather than Defender’s relation to Aggressor. This suggests that Defender that has a compensatory duty regardless of why Aggressor fails to discharge her compensatory duty. Whether it is because she is unable to do so or merely unwilling, the duty can subsequently fall upon Defender, whose relation to Bystander remains unchanged. I take it, though, that the stronger version of the Secondary Compensation Principle will be more controversial than the original, weaker version. Perhaps one reason is this. We might worry about the publicity of a norm admitting that abjectly flouting a moral duty generates the self-​same duty in others. If we adopt such a norm, Aggressor can reasonably surmise that her culpable failure to compensate will not leave Bystander in the lurch, since that duty will pass to Defender. So she need not worry that flouting her compensatory duties will make Bystander worse off. Yet this is certainly not how we want people to reason. Insofar as the stronger version fails a publicity condition, this speaks against it. But note that if the stronger version is correct, then Aggressor, by culpably flouting her compensatory duty, gratuitously shifts her own compensatory duty to Defender. This clearly is a setback for Defender; after all, she can now be called upon to transfer substantial assets to Bystander by dint of Aggressor’s culpable disregard for her own compensatory duty. This means that now Defender has a claim against Aggressor that Aggressor compensate Defender for the amount that Defender was wrongly made to compensate Bystander. The upshot is this: To the extent that the stronger version of the Secondary Compensation Principle imposes burdens on Defender for Aggressor’s culpable disregard of her own duties, Defender thereby has a claim against Aggressor for doing so. Of course, Aggressor might then culpably disregard that second-​order compensatory duty. But my goal here is to show that when the primary party owing compensation does indeed wrongly and culpably flout that duty, consequently requiring a secondary party (bearing the appropriate relation to the victim) to pick up the slack, the primary party does not thereby escape her moral duty. Rather, what has changed is to whom she owes that duty.

817

Conclusion

187

7. Conclusion I have defended the strong version of the Secondary Compensation principle. But even if only the original, weaker version is correct, it too enjoins us to take duties of compensation in war more seriously than has previously been the case. Even in just wars we infringe the rights of countless civilians whose ruination enables us to protect our own rights. By any standard, that requires compensation. I  have argued that those who authorize or commit the infringements and who also benefit from those harms will bear that compensatory duty if the unjust aggressor cannot or will not discharge it. If we suspect antecedently that we will culpably refrain from compensating those victims, then this makes satisfying the war’s proportionality constraint substantially more difficult. The lesson here is that failing to take duties of compensation seriously constrains our moral permission to protect ourselves.

81

8 A Theory of Jus in Bello Proportionality Adil Ahmad Haque* Under the law of armed conflict, the proportionality rule prohibits attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”1 The importance of this prohibition is difficult to overstate. While the precautions rule regulates how armed forces may pursue a particular military advantage, the proportionality rule regulates whether a particular military advantage may be pursued or must be abandoned. Even if attacking forces select the weapons, tactics, and targets that best avoid or most reduce harm to civilians, even at their own risk, they must forego one path to victory if the expected civilian losses are too great. Rather than inflict disproportionate harm on civilians, attacking forces must find another way to win. An account of jus in bello proportionality must satisfy two apparently conflicting demands. First, such an account must explain how we can rationally compare civilian losses with military advantages. At the same time, such an account must apply symmetrically to all parties to every conflict independently of the jus ad bellum status of their war effort. Existing accounts of jus in bello proportionality satisfy either one demand or the other. In this chapter, I offer a new account that satisfies both demands. In addition, I offer an account of how combatants should cope with predictive uncertainty regarding the likely humanitarian costs and likely military benefits of their actions, as well as moral uncertainty regarding their relative weight. I argue that an attack that inflicts incidental harm on civilians is objectively proportionate only if it prevents opposing forces from inflicting substantially greater harm on attacking forces or civilians in current or future military operations. This account reflects the moral asymmetry between doing harm and allowing harm while looking beyond particular tactical engagements to the broader operational context. I argue that an attack is epistemically proportionate only if the attacker reasonably believes—​on the basis of decisive epistemic reasons—​that the attack will prove objectively proportionate. Put another way, an attacker must reasonably believe that, of all the possible outcomes of the attack, it is probable that the actual outcome of the attack will be objectively proportionate.

* This chapter appears, with some modifications, as Chapter 8 of Adil Ahmad Haque, Law and Morality at War (Oxford University Press 2017). 1   Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted June 8, 1977, entered into force December 7, 1978)  1125 UNTS 3, Art 51(5). See also International Committee of the Red Cross, Customary International Humanitarian Law, vol 1 (Cambridge University Press 2009) 46. A Theory of Jus in Bello Proportionality. Adil Haque. © Adil Haque, 2017. Published 2017 by Oxford University Press.

819



Elements of the Proportionality Rule

189

My account of jus in bello proportionality is in one way more determinate than existing accounts—​for example, it does not compare incommensurable values but instead compares immediate losses to civilians with future losses to civilians and to attacking forces. At the same time, my account must still grapple with the predictive uncertainty inherent in determining whether immediate losses inflicted will be redeemed by future losses avoided. Accordingly, I explore a number of decision procedures and rules of engagement that officers may use to make the best possible decision given the limited information available to them.

1.  Elements of the Proportionality Rule Let us begin by briefly reviewing key elements of the proportionality rule. First, civilian losses are excessive in relation to military advantage if and only if the former exceed, outweigh, or are unjustified by the latter.2 Strangely, it is sometimes suggested that civilian losses are not excessive in relation to military advantage unless the former significantly outweigh the latter.3 This suggestion has no obvious basis in language or logic. In ordinary language, “excessive” simply means “exceeding” or “going beyond” some normative standard.4 Moreover, it seems bizarre to concede that the humanitarian considerations against an attack outweigh the military considerations in favor of the attack yet insist that the attack is nevertheless lawful. Second, international law prohibits attacks that may be expected to cause civilian losses which would be excessive in relation to the military advantage anticipated. In other words, the lawfulness of an attack depends not on its actual consequences but on its reasonably foreseeable consequences.5 Attackers must do everything feasible to assess whether an attack will cause excessive civilian losses and must cancel or suspend an attack if it becomes apparent that it will do so.6 It follows that In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-​informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.7

  See US Dep’t of Defense, Law of War Manual 2.4.1.2 (“Proportionality generally weighs the justification for acting against the expected harms to determine whether the latter are disproportionate in comparison to the former”). 3   See e.g. Israel Ministry of Foreign Affairs, The 2014 Gaza Conflict: Factual and Legal Aspects (2015) 185 (“As long as there is no significant imbalance between the expected collateral damage and the anticipated military advantage, no excessiveness exists”); Geoffrey S Corn, Laurie R Blank, Chris Jenks, and Eric Talbot Jensen, “Belligerent Targeting and the Invalidity of a Least Harmful Means Rule” (2013) 89 International Law Studies 536 (“an attack does not become unlawful when the expected collateral damage or incidental injury is slightly greater than the military advantage anticipated (as is suggested by the term ‘disproportionate’), but only when those effects are ‘excessive’.”). 4   See e.g. Merriam-​Webster Dictionary (defining “excessive” as “exceeding what is usual, proper, necessary, or normal”); Oxford English Dictionary (“More than is necessary, normal, or desirable”). 5   Cf Program on Humanitarian Policy and Conflict Research, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (Program on Humanitarian Policy and Conflic Research 2010) 91 (“The standard is objective in that expectations must be reasonable”). 6   Protocol I Arts 57(2)(a)(iii) and 57(2)(b); ICRC, Customary IHL Study 58 and 60 (n 1). 7   Prosecutor v Galić (Judgment) IT-​98-​29-​T (December 5, 2003), para 58. 2

910

190

A Theory of Jus in Bello Proportionality

Put another way, international law does not prohibit objectively disproportionate attacks, but instead prohibits epistemically disproportionate attacks. Much more on this is to come. Third, only military advantages that are concrete and direct can legally justify civilian losses. A  military advantage is “any consequence of an attack which directly enhances friendly military operations or hinders those of the enemy,” such as disabling opposing combatants, destroying their equipment, denying them opportunities to attack, and creating opportunities to attack them.8 By contrast, “forcing a change in the negotiating position of the enemy only by affecting civilian morale does not qualify as military advantage.”9 A military advantage is concrete only if it is substantial and clearly identifiable. A military advantage is direct only if it is proximately caused, either without further intervening agency (as with the destruction of weapons to prevent their future use) or with reasonably foreseeable intervening agency (as with strikes intended to lead an adversary to divert troops or resources away from one’s true objective). It has been claimed that military advantages are concrete and direct only if they are “relatively close” to the attack in space and time, and that advantages “which would only appear in the long term should be disregarded.”10 However, it seems clear that the destruction of weapons in a factory or armory would yield a concrete and direct advantage even if the weapons would not have been sent to the front lines for many weeks. Accordingly, a concrete and direct advantage “may or may not be temporally or geographically related to the object of the attack” so long as it is “foreseeable by the [attacker] at the relevant time.”11 When the achievement of a military advantage requires coordinated attacks, the proportionality rule compares the harm expected and the military advantage anticipated from the operation as a whole.12 Paradigmatically, it may be necessary to destroy several bridges in order to prevent the movement of troops or supplies. The military advantage of destroying any one bridge may be trivial if the opposing force could simply use one of the other bridges. Accordingly, we should compare the advantage anticipated and the harm expected from destroying all the bridges. Fourth, it is sometimes claimed that “Remote harms resulting from [an] attack do not need to be considered in a proportionality analysis.”13 On the contrary, unlike military advantages, civilian losses need not be concrete and direct to fall under the proportionality rule. Moreover, it is hard to believe that temporally remote harms foreseeably resulting from placing a mine or improvised explosive device in a civilian area do not need to be considered in a proportionality analysis. Similarly, destroying bridges or roads necessary to bring food or medicine to a civilian population may

9   Program on Humanitarian Policy and Conflict Research (n 5) 45.  Ibid.   International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC/​Martinus Nijhoff 1987) para 2209. 11   See e.g. International Criminal Court, Elements of Crimes (ICC 2011) fn 36. 12   See e.g. UK Ministry of Defense, Law of Armed Conflict Manual (Oxford University Press 2005) 5.33.5; ICRC, Protocol I Commentary para 2218 (n 10). 13   US Dep’t of Defense, Law of War Manual 5.12.3. 8

10

19



Elements of the Proportionality Rule

191

predictably result in civilian deaths when existing supplies run out.14 It seems that such foreseeable remote harms also need to be considered in a proportionality analysis. Fifth, an attack may be rendered disproportionate by loss of civilian life, injury to civilians, or damage to civilian property.15 Other bad consequences of an attack may render the attack morally impermissible all things considered, but will not render an attack legally disproportionate. My account of jus in bello proportionality compares harms inflicted with harms prevented, and is compatible with different accounts of how to compare death, injury, and property damage to one person or across persons. To take but one example, nothing in my account precludes measuring the harmfulness of death, injury, and property damage in terms of quality-​adjusted life years, or QALYs, and simply aggregating such QALYs across persons. Although my account prominently includes a deontic asymmetry between doing and allowing harm, it is compatible with broadly utilitarian accounts of measuring and aggregating harms. As it happens, I  believe that it would be impermissible to collaterally kill one innocent person as a side effect of preventing small harms to many people, even if the total harm prevented (however measured) would be substantially greater than the total harm inflicted. On this roughly prioritarian view, we should consider not only total harm inflicted or prevented but also distributions of harm that leave some much worse off than others.16 Accordingly, it may be impermissible to collaterally kill or injure civilians merely to prevent a great deal of damage to military or civilian property. Conversely, it may be permissible to collaterally damage a great deal of civilian property if this is necessary to prevent soldiers or civilians from being killed or injured. In principle, those who would be killed or injured would be made far worse off than those who would lose only their property. Of course, in practice, damage to military or civilian property often leads to death, injury, destitution, or illness. Accordingly, proportionality may

 See Prosecutor v Prlic (Judgment) IT-​04-​74, Trial Chamber, May 29, 2013, paras 1582–​84.  Environmental damage raises interesting issues. For example, Protocol I  prohibits methods or means of warfare that may be expected to cause widespread, long-​term, and severe damage to the natural environment: Protocol I, Art 55(1). Accordingly, environmental damage is prohibited if it is severe even if it is not excessive, but is not prohibited if it is excessive but not severe. In contrast, the Rome Statute of the International Criminal Court recognizes a war crime of knowingly inflicting “widespread, long-​term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”:  Rome Statute of the International Criminal Court (opened for signature July 17, 1998, entered into force July 1, 2002) 2187 UNTS 3, Art 8(2)(b)(iv). Accordingly, environmental damage is punishable only if it is both severe and clearly excessive. Finally, the ICRC takes the view that customary international law prohibits attacks “which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated”: ICRC (n 6) 143. Accordingly, environmental damage is prohibited if it is excessive even if it is not severe. I will not attempt to reconcile these approaches here. See also Eliav Lieblich, “Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law,” in Derek Jinks, Jackson Nyamuya Maogoto, and Solon Solomon (eds), Applying International Humanitarian Law in Judicial and Quasi-​Judicial Bodies:  International and Domestic Aspects (TMC Asser 2014) 185. 16   For more on prioritarianism, see Derek Parfit, “Equality and Priority” (1997) 10 Ratio 202–​21. 14

15

912

192

A Theory of Jus in Bello Proportionality

depend not on property damage as such, but instead on its predictable downstream consequences. Similarly, it may be objectively impermissible to kill civilians to prevent many more civilians or soldiers from being injured. Conversely, it may be objectively permissible to prevent soldiers or civilians from being killed even if it means collaterally injuring many more civilians. In principle, those who would be killed would be made far worse off than those who would be injured. Of course, in practice, it is often very hard to predict whether an act will kill or injure. Accordingly, often it will be epistemically permissible to launch attacks that will (in fact) collaterally kill civilians in order to prevent attacks that would (in fact) have only injured. In any event, my account of jus in bello proportionality does not depend on any particular resolution of these difficult issues of measurement and comparison. Finally, civilian losses may be legally justified only by advantages that are causally downstream from harming, capturing, or neutralizing opposing combatants or military objectives. In contrast, the proportionality principle excludes advantages that are causally downstream from collateral harm to civilians. Attackers may not opportunistically take advantage of the presence of civilians to obtain military advantages. Accordingly, the fact that collateral harm to civilians would spread terror or damage morale may not render an otherwise disproportionate attack proportionate.

2.  Incommensurable and Incomparable Values On its face, jus in bello proportionality seems to call for a comparison between two incommensurable values—​civilian losses and military advantage—​irreducible to any more basic value.17 Civilian losses may be ranked according to their relative moral gravity and military advantages according to their relative contribution to military victory, but there appears to be no single standard according to which both may be ranked by their relative value. Although civilian losses and military advantages seem incommensurable, they are not entirely incomparable.18 Certainly, we often make confident proportionality judgments in extreme cases. As Henry Shue observes, “[i]‌t is undeniably excessive to inflict very large civilian losses for the sake of a very small military advantage.”19 17   See e.g. A P V Rogers, Law on the Battlefield (Manchester University Press 1996) 17 (“Some delegations at the diplomatic conference at which Protocol I was negotiated . . . were reluctant to include any reference to the proportionality rule because of the difficulty of comparing things that were not comparable (i.e. military advantage and civilian losses”); Michael N Schmitt, “The Principle of Discrimination in 21st Century Warfare” (1999) 2 Yale Hum Rts & Dev L J 143, 151 (“Optimally, balancing tests compare like values. However, proportionality calculations are heterogeneous, because dissimilar value genres—​military and humanitarian—​are being weighed against each other. How, for example, does one objectively calculate the relative weight of an aircraft, tank, ship, or vantage point in terms of human casualties?”). 18  See Ruth Chang, “Introduction” in Ruth Chang (ed), Incommensurability, Incomparability, and Practical Reason (Harvard University Press 1997) 14 (noting that incommensurable values often permit “nominal-​notable” comparisons in extreme cases). 19   Henry Shue, “Proportionality in War” in Gordon Martel (ed), The Encyclopedia of War (Wiley-​ Blackwell 2012) 6.

193



Incommensurable and Incomparable Values

193

For example, the ICRC writes that the presence of a soldier on leave obviously cannot justify the destruction of a village. Conversely, if the destruction of a bridge is of paramount importance for the occupation or non-​occupation of a strategic zone, it is understood that some houses may be hit, but not that a whole urban area be leveled.20

Similarly, the Israeli High Court writes that “shooting at [a sniper firing on soldiers or civilians] is proportional even if as a result, an innocent civilian neighbor or passerby is harmed. That is not the case if the building is bombed from the air and scores of its residents and passersby are harmed.”21 However, our less confident judgments in close and intermediate cases suggest that military advantages and civilian losses are at most imprecisely or roughly comparable. If civilian losses and military advantages are only imprecisely comparable, we should not expect jus in bello proportionality to provide clear guidance in the vast majority of tactical situations confronted by attacking forces. Nevertheless, Shue proposes that we can improve our proportionality judgments by sorting particular military advantages and civilian losses into rough categories along the following lines:

Level 1 Level 2 Level 3

Military advantage Important Compelling Decisive

Civilian losses Moderate Severe Catastrophic

According to Shue, “it is excessive to inflict civilian losses of a category higher than the category of military advantage anticipated.”22 On this view, an attacking force may inflict moderate civilian losses in pursuit of an important, compelling, or decisive military advantage; severe civilian losses in pursuit of a compelling or decisive advantage; and catastrophic civilian losses only in pursuit of a decisive military advantage. Shue does not attempt to fix the boundaries of each category, but he imagines that the task of doing so would proceed along parallel tracks, with military experts categorizing military advantages according to military standards and “morally sensitive” individuals categorizing civilian losses according to moral standards. Independent moral judgment would then be exercised to sort the categories created by the two groups into three (or more) levels. Each level would then contain categories of losses and advantages that are roughly equal in moral weight. The virtue of Shue’s approach is that it can apply symmetrically to all sides of a conflict independently of the justice of their respective war aims. The basic shortcoming of Shue’s approach is that it leaves our intuitive judgments opaque. Since it does not identify the moral principles or empirical assumptions underlying our judgments,

  ICRC (n 12) para 2214.   Public Committee Against Torture in Israel v Israel (Judgment) HCJ 769/​02, December 11, 2005, para 46. See also Beit Sourik Village Council v Israel (Judgment) HCJ 2056/​04, June 30, 2004, para 41. 22   Shue (n 19) 7. For a similar approach, see Jason D Wright, ““Excessive” Ambiguity: Analysing and Refining the Proportionality Standard” (2012) 94 Intl Rev of the Red Cross 819, 852. 20 21

914

194

A Theory of Jus in Bello Proportionality

it cannot tell us when those principles are inapplicable or those assumptions are unsound. Since it does not illuminate the basis of our intuitive proportionality judgments in extreme cases, it cannot help us make inferential proportionality judgments in non-​extreme cases. This approach cannot tell us what to consider or ignore when we make such judgments, or what circumstances might render our intuitive judgments more or less reliable. On a practical level, Shue’s approach organizes our intuitive moral judgments but cannot replace or improve upon them. Certainly, we can rank civilian losses by their moral gravity and military advantages by their military utility, but we lack a common standard of value through which the two rankings can be integrated. True, we could directly judge one item in the first ranking comparable to one item in the second ranking, and use this direct comparison as an anchor for integrating the remainder of the two rankings. However, simply ranking two items does not reveal the degree of difference between them. It is not enough to know that a “compelling” military advantage is greater than an “important” military advantage and that “severe” civilian losses are greater than “moderate” civilian losses. We also need to know how much greater advantages or losses in one category are than advantages or losses in another category. Only then can we use our anchor point to generate parallel rankings of imprecisely comparable values. It seems unlikely that Shue’s approach could generate such a complete ranking.

3.  Intrinsic and Instrumental Values Thomas Hurka and Jeff McMahan both reject the view that civilian losses and military advantages are incommensurable values on the grounds that military advantages have no intrinsic value at all.23 Indeed, soldiers ought not harm opposing combatants, capture strategic territory, or destroy military equipment for its own sake. Such military advantages have instrumental or derivative value only if they contribute to some further, intrinsically valuable state of affairs. Importantly, defeating an opposing armed force has instrumental value only if one fights for a just cause—​such as national self-​ defense or humanitarian intervention—​that morally justifies resorting to or continuing the use of military force. Hurka and McMahan conclude that the value of a military advantage, if any, lies in the contribution that it makes to the achievement of a just cause. Conversely, a military advantage that contributes to an unjust cause has no moral value. Hurka and McMahan therefore reject the independence of jus ad bellum just cause and jus in bello proportionality, and with it the symmetrical application of jus in bello proportionality. Put another way, jus in bello proportionality is just a special application of jus ad bellum proportionality. Just as jus ad bellum proportionality compares civilian losses inflicted by the war as a whole with the importance of a just cause, jus in bello

23   See Thomas Hurka, “Proportionality in the Morality of War” (2005) Phil & Pub Aff 33, 34; Jeff McMahan, “Proportionality and Necessity in Jus in Bello,” in Helen Frowe and Seth Lazar (eds), The Oxford Handbook of the Ethics of War (Oxford University Press 2016); McMahan, “Proportionate Defense” (2013–​14) 23 J of Transnational L & Poly 1, 20–​21.

195



Inflicting and Preventing Harm

195

proportionality compares civilian losses inflicted by a particular military operation with the contribution of that operation to the achievement of the same just cause. For just combatants, this moral standard makes for an impossible decision procedure. Soldiers would first have to measure the moral importance of their war aims, since a similar contribution to a more important war aim would justify more extensive civilian losses. Soldiers would then have to measure the degree to which the achievement of a particular military advantage would increase the probability of achieving their war aims, discount the value of their war aims by this marginal increase in probability, and compare the resulting expected value with the civilian losses that they expect to inflict. Finally, if their just cause depends on collective values such as national self-​determination then soldiers will have to somehow compare incommensurable (individual and collective) values. Nor is it clear how a more manageable decision procedure could be derived from the moral standard proposed. Importantly, on this view, unjust combatants cannot conform to jus in bello proportionality. A military advantage cannot inherit moral value from a war aim that has no moral value to pass on, and a military advantage with no moral value cannot morally justify inflicting civilian losses. On this view, every harm that unjust combatants inflict on civilians is morally disproportionate. It follows that, on this view, proportionality prohibits but cannot regulate the conduct of unjust combatants. This view provides no moral guidance to combatants who are forced to fight without a just cause. To be sure, unjust combatants can still choose to minimize the harm that they inflict on civilians in pursuit of their war aims, and even to place themselves at greater risk to reduce the risks that they impose on civilians. But since unjust combatants cannot pursue their unjust war aims by proportionate means, it is useless for them to try. Nor can observers judge a particular military operation proportionate or disproportionate simply by comparing the military advantage that it aims to achieve with the civilian losses that it predictably inflicts. Except in extreme cases, observers must first judge the war as a whole. If this view prevails then proportionality judgments will become even more politicized than they are already. Hurka and McMahan offer an account of jus in bello proportionality that is morally intelligible but applies asymmetrically and yields an impractical decision procedure. Shue offers an account that applies symmetrically but is morally inexplicable and of limited practical use. In the following sections I will try to do better.

4.  Inflicting and Preventing Harm Killing and injuring other human beings presumptively infringes their basic moral rights. In some cases, these others may, by their voluntary conduct, make themselves morally liable to be killed or injured. In such cases, the relevant moral rights are forfeited and not infringed. Alternatively, killing or injuring some may be the lesser of two evils, necessary to prevent greater harm to others. More precisely, killing or injuring some may be morally permissible as a necessary means of preventing far greater harm to others or as an unavoidable side effect of preventing substantially greater harm to others. This qualification reflects the view that, other things equal, intentionally doing harm is morally much worse—​that is, harder to justify—​than unintentionally doing

916

A Theory of Jus in Bello Proportionality

196

harm, which is, in turn, morally substantially worse than allowing harm. In such cases, the relevant moral rights are overridden and therefore justifiably infringed. I propose that it is jus in bello proportionate to collaterally harm civilians as an unintended side effect of achieving a military advantage that will prevent or enable one to prevent opposing forces from inflicting substantially greater harm on one’s own forces or civilians in current or future military operations. The last qualification (“in current or future military operations”) is important because, while attacks on opposing forces sometimes prevent imminent harm to attacking forces or to civilians, most attacks on military equipment or strategic locations prevent or avoid such harm only over the medium or long term. If the proposed standard is satisfied then the moral rights of the civilians harmed may be permissibly overridden to protect the moral rights of others. On this view, the moral value of a military advantage lies in the harm to soldiers and civilians that it prevents. This standard applies symmetrically to all sides of a conflict, independently of their war aims, yet identifies a morally compelling explanation for when military advantage justifies civilian losses. While my account may seem unfamiliar to readers steeped in military practice, it should not. Targeting decisions are often driven by considering the criticality of a target, including the target’s importance to the adversary’s ability to conduct operations (value), the time interval between a strike on the target and a measurable impact on the adversary’s ability to conduct operations (depth), and the time and cost required for the adversary to regain its functional capability (recuperation).24 My account simply focuses targeting decisions on the adversary’s capacity to inflict serious harm. Let me illustrate the account by applying it to a series of skeletal cases. To keep things simple, these cases will assume an international armed conflict between state armed forces. At the end of the chapter I will apply the account to targeted killing operations within a non-​international armed conflict between state armed forces and organized armed groups. The first case is the simplest: Simple Prevention: State A is at war with State B. If State A destroys State B’s long-​ range missiles then some of State B’s civilians will be killed as a side effect. However, if State A does not destroy State B’s long-​range missiles then State B will use those missiles to kill many more of State A’s soldiers and civilians in future military operations.

A strike on the long-​range missiles directly prevents State B from harming State A’s soldiers and civilians (hence Simple Prevention). On my view, this operation seems proportionate since the immediate harm that it inflicts is substantially less than the future harm that it prevents. Importantly, we can judge the operation without reference to the war aims of either State A or State B. More on this to come. It might seem that the preceding case calls for a simple comparison between the consequences of action and the consequences of inaction, but that is not quite correct. The harm that an attack will prevent depends not only on what the opposing party

24

  US Joint Chiefs of Staff, Joint Publication 3-​60: Joint Targeting (2007) D-​2–​D-​4.

917



Inflicting and Preventing Harm

197

will do if the attack is not carried out, but also on what the attacking party will do if the attack is not carried out and how the opposing force will respond. The preceding scenario assumes that if the operation is not launched then State A will not simply surrender but will continue to fight State B by other means. However, State A’s alternative means of fighting will not prevent State B from launching its long-​range missiles. In this sense, my view assumes that parties will pursue victory until they either win or lose. My view compares only the harms inflicted and prevented by intervening military operations. Now let us add some facts to the first case: Triple Prevention: If State A destroys State B’s anti-​aircraft missiles then some of State B’s civilians will be killed as a side effect. However, if State A does not first destroy State B’s anti-​aircraft missiles then State A’s air forces will be shot down before they can destroy State B’s long-​range missiles.

A strike on the anti-​aircraft missiles will not directly prevent State B from harming State A’s soldiers and civilians. Instead, the strike will prevent State B from preventing State A from preventing State B from harming State A’s soldiers and civilians (hence Triple Prevention). On my view, jus in bello proportionality is satisfied only if the losses inflicted on State B’s civilians by both the strike on the anti-​aircraft missiles and the subsequent strike on the long-​range missiles are substantially less than the losses that the long-​range missiles would inflict on State A’s soldiers and civilians. Cases like Triple Prevention illustrate the general truth that the proportionality of an attack depends not only on the harm that it prevents but also on the harm that it enables additional attacks to prevent. For example, “If, in order to prevent the enemy’s army from advancing, planners decide to destroy all the bridges that span a river . . . each driver or pilot may judge that his own action is disproportionate, [but] the operation as a whole may meet the proportionality requirement.”25 Now let us change the facts of the second case slightly: Timely Prevention:  If State A  destroys State B’s anti-​aircraft missiles then some of State B’s civilians will be killed as a side effect. However, if State A  does not first destroy State B’s anti-​aircraft missiles then it will take longer for State A’s air forces to destroy State B’s long-​range missiles and the long-​range missiles will kill many of State A’s civilians before they are destroyed.

In this case, State A  can prevent State B from using its long-​range missiles to kill State A’s soldiers and civilians without first destroying State B’s anti-​aircraft missiles. However, if State A  first destroys State B’s anti-​aircraft missiles then fewer of State A’s civilians will be killed. Evidently, Timely Prevention is just a special case of Triple Prevention, in which we compare the losses inflicted by the attack on the anti-​aircraft missiles with the losses prevented by destroying the long-​range missiles sooner rather than later. 25   Jean-​François Quéguiner, “Precautions under the Law Governing the Conduct of Hostilities” (2006) 88 Intl Rev Red Cross 804.

918

198

A Theory of Jus in Bello Proportionality

Now consider the following variation on the previous cases: Costly Triple Prevention: If State A destroys State B’s anti-​aircraft missiles then some of State B’s civilians will be killed as a side effect. However, if State A does not first destroy State B’s anti-​aircraft missiles then State A’s air forces will suffer substantial losses before destroying State B’s long-​range missiles.

In this case, State A  can prevent State B from using its long-​range missiles to kill State A’s soldiers and civilians without first destroying State B’s anti-​aircraft missiles. However, if State A first destroys State B’s anti-​aircraft missiles then fewer of State A’s soldiers will be killed trying to prevent State B from using its long-​range missiles. It follows that an attack on the anti-​aircraft missiles is justified only if the losses that those missiles would inflict on attacking forces are substantially greater than the civilian losses that the attack itself would inflict. Arguably, cases like Costly Triple Prevention are not governed by the proportionality principle but by the precautions principle. On this interpretation, the true targets are the long-​range missiles and attacking forces must choose between one method of attacking those targets that involves greater harm to civilians but less harm to attacking forces and another method of attacking the same targets that involves greater harm to attacking forces but less harm to civilians. In my view, the precautions principle should be interpreted to prohibit the method that is more harmful to civilians unless the alternative method would be substantially more harmful to attacking forces.26 On an alternative interpretation, there are two distinct targets in such cases, each of which offers distinct though related military advantages. The advantage of destroying the long-​range missiles lies in the losses that this will prevent, assuming that the attacking force will not surrender and would otherwise pursue victory by other means. The advantage of destroying the anti-​aircraft missiles lies in the losses that this will prevent, assuming that the attacking force will, and could proportionately, attack the long-​range missiles. On this view, Costly Triple Prevention simply combines two cases of Simple Prevention, one nested within the other. An attack on the anti-​aircraft missiles will prevent substantially greater harm than it will inflict, because it will enable an attack on the long-​range missiles that will in turn prevent substantially greater harm than it will inflict. The proper classification of such cases is conceptually interesting but makes no practical difference. Both the precautions rule and the proportionality rule are best understood in terms of the moral asymmetry between doing harm and allowing harm and will prohibit the same conduct. However, as a matter of legal interpretation, it seems better to classify such cases under the proportionality rule. The precautions rule governs the choice of alternative means and methods of carrying out a single attack on a single target, or a choice between targets. However, attacking a secondary target does not seem like a method of attacking a primary target. Instead, we should view these as distinct attacks on distinct targets.

  See Haque, Law and Morality at War, Chapter 7.

26

91



The Value of Military Advantage

199

As a general matter, attacks on opposing combatants, military equipment, and military facilities will share the same causal structure as the four preceding cases. Such attacks either prevent the object of attack from inflicting future harm, prevent the object of attack from preventing the attacking force from preventing some further object of attack from inflicting future harm, prevent the object of attack from delaying the attacking force preventing some further object of attack from inflicting future harm, or prevent the object of attack from inflicting harm on the attacking force or its civilian population as it seeks to prevent some further object of attack from inflicting future harm. Such attacks are proportionate if they (or the sequence of attacks of which they are a necessary part) prevent (or enable the prevention of) substantially greater harm than they inflict. Attacks that aim to capture strategic locations introduce an additional causal step between the initial attack and the prevention of harm. Such attacks either indirectly prevent harm by denying such locations to the opposing force, or enable the attacking force to prevent harm in subsequent operations. Though the causal structure of such cases is more complex, their moral structure is the same. Such attacks are proportionate only if they indirectly prevent (or indirectly enable the prevention of) substantially greater harm than they (or the sequence of attacks of which they are a necessary part) inflict.

5.  The Value of Military Advantage We can now see where, on my account, the value of a military advantage lies. Let X represent the total losses that one’s own forces and civilians will suffer in current or future military operations if a military advantage—​say, destroying a munitions factory or killing an insurgent leader—​is not achieved. Let Y represent the total losses that one’s own forces and civilians will suffer in current or future military operations if that military advantage is achieved. The value of the military advantage is the difference between X and Y, that is, the total overall losses prevented by achieving the advantage. Let Z be the losses that one would unintentionally inflict on opposing civilians in pursuit of the advantage. On my view, an attack is proportionate just in case the difference between X and Y is substantially greater than Z. In more familiar terms, collateral harm to civilians is proportionate only if it is outweighed by military necessity. According to one influential formulation, “Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.”27 Since the complete submission of the enemy seldom depends on a single attack, almost all attacks are supported by military necessity only to the extent that their execution will reduce the expenditure of time, life, and money in pursuit of military victory, relative to their non-​execution. Evidently, the conservation of time and money cannot justify collateral harm to civilians, except insofar as shortening the conflict

  US v List (American Military Tribunal, Nuremberg, 1948), 11 NMT 1230, at 1253.

27

20

200

A Theory of Jus in Bello Proportionality

or conserving resources would avoid or enable the avoidance of comparable harm to others. It follows that attacks that collaterally harm civilians are supported by military necessity only if their execution reduces the expenditure of life and serious injury in pursuit of military victory, relative to their non-​execution. Put another way, the value of a military advantage is the difference between the harm that attacking forces and their civilians will suffer during a given military campaign if that advantage is obtained and the harm they will suffer during the same military campaign if that advantage is not obtained or, if the advantage is necessary to the success of the campaign, during any otherwise permissible alternative campaign that does not require that advantage to succeed. Harm to civilians inflicted in pursuit of a military advantage satisfies jus in bello proportionality only if the same campaign without that advantage, or any otherwise permissible alternative campaign, would involve substantially greater harm to civilians and to the attacking force. Advanced militaries already compare possible courses of action when planning operations, typically in terms of effectiveness, risks to attackers, and costs.28 On my view, they should also compare possible courses of action in terms of the harms they will inflict on civilians and the harms they will allow their adversary to inflict on attackers or on civilians. Why should the proportionality of an attack depend on a comparison between possible campaigns? Such a comparison is unavoidable because the harms that an attack will prevent are just the harms that the opposing party will inflict if the attack is not carried out, which in turn depend on what the attacking force will do instead of carrying out that attack: retreat, surrender, or (more likely) design and carry out a modified or alternative military campaign. Again, jus in bello proportionality assumes that parties will pursue military victory, by otherwise permissible means, at the lowest cost to their forces and civilian population. The harm that a particular attack prevents is just the harm that the attacking force would suffer if it pursued the next least costly and otherwise permissible campaign.29 Of course, it is often the case that a series of attacks overdetermines the success of a military campaign. In such cases, each attack is causally connected to success even though success is not counterfactually dependent on any individual attack. In my view, an act that infringes rights can only be justified by its results if those results are counterfactually dependent on the act. It follows that attacks that harm civilians and make no difference to the success or cost of a military campaign may be objectively impermissible. However, since the results of an attack are always difficult to predict, it may be epistemically permissible to launch a series of attacks some of which will prove superfluous and therefore objectively impermissible. Only such a view seems to

28   See e.g. Allied Joint Publication AJP-​5, Allied Joint Doctrine for Operational-​Level Planning (2013) 3-​37; US Naval War College, Workbook on Joint Operations Planning Process, NWC 4111H, January 21, 2008. 29  Note that full moral justification requires a comparison between campaigns that each satisfies the jus ad bellum and other jus in bello norms. Certainly, an attack cannot be morally justified on the grounds that if the attack is not carried out then the attackers will pursue a campaign that violates other moral or legal standards.

210



The Value of Military Advantage

201

capture the moral reality that war inevitably involves pointless suffering that is recognizable as such only in retrospect. In rare cases, securing a particular military advantage is strictly necessary for military victory. In such cases, there is no campaign sufficient for military victory that does not require securing this advantage. As we have seen, jus in bello proportionality compares the costs of pursuing victory by first securing a particular military advantage with the costs of pursuing victory without first securing that advantage. It follows that an attack violates jus in bello proportionality only if victory can be achieved without first securing that advantage. We may say that attacks necessary to secure advantages that are necessary for victory necessarily satisfy jus in bello proportionality.30 Jus in bello proportionality can foreclose many ways to win, but cannot foreclose the only way to win. Of course, “the rules of international law must be followed even if it results in the loss of a battle or even a war.”31 However, following the rule of jus in bello proportionality may result in the loss of a battle but not the loss of a war. While jus in bello categorically prohibits attacking civilians irrespective of anticipated military advantage, it only prohibits collaterally harming civilians out of proportion to anticipated military advantage. Accordingly, civilian losses cannot outweigh the military advantage of winning a war under jus in bello. However, as we shall see, civilian losses can outweigh the aims of the war under jus ad bellum. Crucially, to say that attacks necessary for victory do not violate jus in bello proportionality is not to say that such attacks are lawful, let alone morally permissible. In particular, if an attack necessary for victory would cause more harm than victory itself would justify, then the war effort as a whole would violate jus ad bellum proportionality. Properly understood, jus ad bellum proportionality compares the harm inflicted by an overall military strategy, including by all of its constituent attacks, with the aims of the war as a whole. Accordingly, attacks necessary to the success of the overall strategy may satisfy jus in bello proportionality while the broader strategy violates jus ad bellum proportionality. If an attack necessary for victory would cause more harm than victory itself would justify then the problem lies not at the jus in bello level but at the jus ad bellum one, not with the attack as such but with the overall strategy of which it is a necessary part. In other words, to say that an attack necessary for victory is disproportionate is just to say that the pursuit of victory is disproportionate. In such circumstances, combatants should not carry out the attack because they should stop fighting entirely. The legal standard of jus ad bellum proportionality is not found in any treaty but resides instead in customary international law. Unfortunately, state practice and opinio juris remains confused and fractured, with substantial support for three very different approaches. On one approach, proportionality requires that defensive force must be comparable in its scale and effects to that of the armed attack to which it responds. On

30   Seth Lazar suggested to me that attacks that secure such necessary advantages necessarily satisfy jus in bello proportionality because if the war aim is achieved then the war will end, thereby avoiding all the harm that would have occurred had the war continued. Unfortunately, wars do not always end when one party achieves its aims. 31   US v List (n 26), at 1272, para 128.

20

202

A Theory of Jus in Bello Proportionality

a second approach, proportionality requires that defensive force must be no greater than is necessary to prevent or repel the armed attack to which it responds. Finally, on a third approach, proportionality requires that the harm inflicted by defensive force must be outweighed by the harm prevented by defensive force.32 Many scholars favor the second, “instrumental” or “functional” approach, often adopting a state-​centric view of jus ad bellum while relegating humanitarian considerations to jus in bello.33 This rationale is somewhat surprising, since the object and purpose of the modern jus ad bellum regime is “to save succeeding generations from the scourge of war.”34 Accordingly, humanitarian values should inform both the law of force and the law of armed conflict.35 In my view, exclusive reliance on the instrumental approach is unsustainable. Suppose that a non-​state armed group G launches a series of armed attacks against State A from the territory of State T. Each attack harms a small number of persons in State A, but any defensive response sufficient to stop these attacks would collaterally kill hundreds of civilians in State T. Under the instrumental approach, such a defensive response by State A  would be “proportionate.” This result alone seems hard to accept. Now suppose that State T is unable to quickly prevent group G from launching armed attacks against State A from State T’s territory. Perhaps State T, seeking to minimize harm to its civilians, plans and begins a ground campaign against G that will take weeks or months to succeed. However, State T does not consent to State A’s use of force on its territory out of concern for its civilians. If State A attacks group G in State T, killing hundreds of State T’s civilians, then international law should permit State T to use force against State A, in defense of its territory and civilian population. Yet, under international law, “there can be no self-​defense against self-​defense.” 36 In my view, we should avoid this conflict of rights by rejecting the instrumental approach and finding State A’s use of defensive force disproportionate. When states disagree over the content of a customary rule, which interpretation should prevail, at least provisionally, until general consensus is reached? If states disagree over the content of a prohibition then generally the prohibition should be construed narrowly, since international law presumptively permits (in the weak sense) what it does not clearly prohibit.37 In contrast, if states agree regarding the content of a prohibition but disagree over the content of an exception to that prohibition then generally the exception should be construed narrowly, since the prohibition

32   See e.g. Dapo Akande and Thomas Liefländer, “Clarifying Necessity, Imminence, and Proportionality in the Law of Self-​Defense” (2013) 107 AJIL 563, 566; David Kretzmer, “The Inherent Right to Self-​ Defence and Proportionality in Jus Ad Bellum” (2013) 24 EJIL 235, 278–​9. See also Tom Ruys, “Armed Attack” and Article 51 of the UN Charter (Cambridge University Press 2010) 121–​2; US Dep’t of Defense, Law of War Manual 3.5.1 (“in jus ad bellum, proportionality refers to the principle that the overall goal of the State in resorting to war should not be outweighed by the harm that the war is expected to produce”). 33  See e.g. Yoram Dinstein, War, Aggression and Self-​Defence (Cambridge University Press 2005) 237–​42. 34   United Nations Charter, preamble. 35   Cf Tom Dannenbaum, “Why Have We Criminalized Aggressive War?” 126 Yale LJ 1242 (2017). 36   US v Von Weizsaecker et al (Ministries Case) (Nuremberg, 1949), 14 NMT 314, 329. 37  See SS “Lotus” (France v Turkey) (Judgment) [1927] ICGJ 248.

230



The Value of Military Advantage

203

presumptively applies absent an agreed-​upon exception. Importantly, international law generally prohibits the use of military force, with a limited exception for self-​ defense. Accordingly, if states disagree over the limits of self-​defense then we should favor the more restrictive position, namely that the resort to force, even if commensurate with and necessary to prevent the armed attack to which it responds, may be rendered disproportionate if the total harm it inflicts is out of proportion to the defensive aim it seeks. Before moving on, let me take a moment to distinguish my view from one that McMahan effectively criticizes, namely the view that jus in bello proportionality compares harms inflicted on civilians with harms avoided to combatants in the very same engagement.38 On this view, just combatants may inflict harm on civilians if such harm is a necessary and proportionate side effect of using defensive force against unjust combatants. This view could at most explain the permissibility of unit self-​defense, that is, of force used to repel a direct attack on particular combatants. However, as McMahan observes, this view would preclude all offensive operations, since if a party refrains from offensive operations then the necessity to use defensive force on behalf of its members often will not arise. In particular, McMahan argues that this view would preclude humanitarian military interventions. Since attacking forces could simply not intervene, attacking forces will inflict losses on civilians that are not strictly necessary to protect their members. In addition, it is not clear how this view would apply to targeted killing operations in which the attacking force is never in danger. My view is not subject to these objections. On my view, we hold constant the war aim of the attacking force and ask whether an attack is a necessary part of a broader campaign for achieving military victory. Attacks are proportionate, including as part of a humanitarian intervention, only if the immediate losses that they inflict are substantially less than the future losses that they will prevent in current or future military operations, assuming always that the attacking force will pursue military victory. According to McMahan, “Whereas necessity requires comparisons between an act of defense and alternative means of avoiding a threatened harm, proportionality requires a comparison between an act of defense and doing nothing to prevent the threatened harm.”39 On this view, it might seem that, by tying the harm prevented by an attack to what the attacking force would permissibly do if it does not carry out the attack, I  am conflating proportionality and necessity. Not so. It is just that, in war, there are two threats to consider: the micro-​threats posed by particular military targets (such as infantry units or artillery positions) and the macro-​threat posed by the opposing armed force as a whole. Accordingly, if jus ad bellum permits a strategic

38   Jeff McMahan, “War Crimes and Wrongdoing in War,” in RA Duff et al (eds), The Constitution of Criminal Law (Oxford University Press 2013). 39   McMahan, “Proportionate Defense” (n 23)  3. McMahan also writes that “necessity compares the expected consequences of an act of defense with those of other means of defense, negotiation, or retreat, while proportionality compares the consequences of an act of defense with those of submission”: ibid. This view seems plausible with respect to jus ad bellum. If force is necessary to prevent or repel an armed attack, then the only remaining decision is to resist or submit. However, assuming that jus ad bellum is satisfied, the remaining decision under jus in bello is how to resist.

204

204

A Theory of Jus in Bello Proportionality

response to the macro-​threat posed by the opposing force then the micro-​threats posed by particular targets depend on which otherwise permissible strategy is chosen. For example, suppose that State A launches an unjust war against State V. To end State A’s aggression, State V plans a land invasion of State A, in full conformity with jus ad bellum. Before and during the invasion, State V attacks military targets deep inside State A  that would otherwise pose micro-​threats to State V’s invasion force. Surely such attacks are governed by the proportionality rule rather than by the necessity or precautions rule. Yet the alternative to destroying the targets and preventing the micro-​threats they pose is hardly “doing nothing.” If the targets are not destroyed then the invasion force will still invade, but will take heavier losses in the process. Accordingly, the micro-​threats posed by the targets depend on what the invading force would permissibly do if the targets are not destroyed. Indeed, if the proportionality rule applied only to micro-​threats that cannot be avoided through non-​forcible means, as McMahan seems to suggest, then it would apply only to cases of unit self-​defense, and perhaps to cases like Simple Prevention, but not to offensive military campaigns that make up much of war. Such a view seems open to many of the objections offered by McMahan to the simple view discussed above.

6.  Symmetry and Independence On my view, jus in bello proportionality assumes that all parties to a conflict will pursue military victory and asks whether particular attacks prevent substantially greater harm to soldiers and civilians than they inflict on other civilians. One virtue of my approach, then, is that it allows both participants and observers to evaluate the proportionality of particular military operations without reference to the justice or legality of the broader conflict. A party that violates jus ad bellum may still conform to jus in bello proportionality. Conversely, a party that conforms to jus ad bellum may systematically violate jus in bello proportionality. The law assumes that warring parties will pursue military victory at the least possible cost to their own soldiers and civilians. Jus ad bellum proportionality constrains each party’s pursuit of military victory by comparing the value of their war aims with the total cost of their pursuit. In contrast, jus in bello proportionality constrains a party’s attempts to reduce its own losses by comparing the future harm that an attack prevents with the immediate harm that it inflicts. Accordingly, a military strategy may satisfy jus ad bellum proportionality while many of its constituent attacks violate jus in bello proportionality. Alternatively, a military strategy may violate jus ad bellum proportionality while many of its constituent attacks satisfy jus in bello proportionality. Certainly, the law requires both the independence of jus in bello proportionality from jus ad bellum considerations and the symmetrical application of jus in bello proportionality to all sides of a conflict. Presumably, a legal rule that flatly prohibits harming civilians in pursuit of an unjust cause will be ignored both by combatants who believe that their cause is just and by combatants who feel compelled to fight for a cause that they recognize is unjust. Not everyone will see the symmetrical application of my approach as a virtue. Recall that Hurka and McMahan argue that a military advantage that does not contribute to

205



Symmetry and Independence

205

the achievement of a just cause has no moral value that could justify the moral disvalue of harm to civilians. They conclude that any harm inflicted on civilians by unjust combatants in pursuit of an unjust cause is disproportionate from a moral point of view. Hurka and McMahan are clearly right that attacks by unjust combatants are seldom fully morally justified, since they generally kill and injure just combatants, make the achievement of unjust causes more likely, and are in one sense unnecessary if the opposing party would agree to a ceasefire and ultimately to a just peace. However, attacks by unjust combatants may be less wrongful to the extent that they prevent harm to others. Since almost all civilians retain their moral right not to be harmed, there are almost always strong moral reasons to prevent civilians from being harmed. Similarly, since even unjust combatants do not deserve death or dismemberment, there is almost always some moral reason to prevent them from being harmed. An attack is less wrongful to the extent that it is supported by such reasons and more wrongful to the extent that it is not. Since proportionality is in part a function of such reasons, it is almost always morally worse for unjust combatants to harm civilians in violation of jus in bello proportionality than for them to harm civilians without violating jus in bello proportionality. It follows that even combatants who knowingly fight without a just cause (perhaps under duress) have significant moral reasons to comply with jus in bello proportionality. In doing so they will seldom act permissibly, but they will almost always act less wrongfully than they would otherwise. There is an obvious objection to this argument. Suppose that State A is an unjust aggressor, that State B is fighting solely in national self-​defense, and that if State A stops fighting then State B will stop fighting as well. On these facts, State A could prevent all future harm to its own soldiers and civilians without harming any of State B’s civilians, simply by ending its aggression. It follows that State A is not even partially morally justified in harming any of State B’s civilians. This argument succeeds subject to an important qualification. State A’s political and military leaders are indeed responsible for all the harm inflicted by their armed forces, including in operations that do not violate the law of armed conflict. If they are prosecuted for the crime of aggression then their sentences should reflect the total number of civilians and combatants harmed in pursuit of their unjust cause. These leaders may not claim jus in bello proportionality in defense of their conduct or in mitigation of their moral fault.40 However, it is hardly ever in the power of operational and tactical commanders, let alone of ordinary soldiers, to end an unjust war. They cannot do so on their own and are unlikely to succeed in mounting an effective joint or collective effort. As a result, unjust combatants often must choose between harming just combatants and foreign civilians or allowing just combatants to harm their fellow soldiers and their own civilians. In many such cases, individual unjust combatants are partially morally justified in defending their fellow soldiers and their own civilians.41 Often, unjust combatants should refuse to fight on balance—​that is, often their reasons to refuse are even stronger than their reasons to fight. However, their reasons to fight are powerful—​even if   See Dannenbaum, “Why Have We Criminalized Aggressive War?” (n 35).   In rare cases, unjust combatants may be fully justified in participating in an unjust war. See Uwe Steinhoff, “When May Soldiers Participate in War?” (2016) 8 Intl Theory 236. 40 41

206

206

A Theory of Jus in Bello Proportionality

defeated by even more powerful opposing reasons—​and it is in this sense that they are partially justified in fighting.42 It is true that, on my view, jus in bello proportionality does not prohibit unjust combatants from collaterally harming just combatants or civilians in order to prevent harm to unjust combatants (themselves included). Yet many just combatants do not pose unjust threats and therefore are not liable to defensive harm. Moreover, many unjust combatants pose unjust threats and therefore are liable to defensive harm. It follows that it is often objectively impermissible for unjust combatants to collaterally harm either just combatants or civilians in defense of unjust combatants. This inescapable fact seems to favor an asymmetrical standard. At the same time, many just combatants pose unjust threats to civilians who retain their rights not to be harmed. These just combatants may be liable to defensive harm—​perhaps even if the unjust threats they pose to civilians are themselves justified under the proportionality rule. Accordingly, it may be permissible for unjust combatants to collaterally harm such just combatants in defense of such civilians—​ perhaps even if doing so would prevent the prevention of substantially greater harm to others. Moreover, it may be permissible for unjust combatants to collaterally harm such just combatants, as well as civilians, in defense of unjust combatants, if only so that these unjust combatants may defend innocent civilians from unjust threats in the future. Of course, not all just combatants will pose unjust threats to civilians, and not all unjust combatants will defend civilians from unjust threats. It follows that a gap will remain between symmetrical law and asymmetrical morality. This gap may be justifiable, or at least tolerable, for pragmatic and epistemic reasons. After all, most combatants believe that they are just combatants and that their opponents are unjust combatants. Accordingly, in practice, most combatants would simply ignore an asymmetric standard. As a final plea in mitigation, we should recall that the law of armed conflict is prohibitive rather than permissive. Accordingly, the law of armed conflict prohibits acts that violate jus in bello proportionality, but does not permit, authorize, or condone acts that conform to jus in bello proportionality. Acts not prohibited by the proportionality rule may be prohibited by other legal or moral norms. In my view, the moral function of the law of armed conflict is to help all combatants, just and unjust alike, more closely conform to the moral reasons that apply to them. For unjust combatants, full conformity is generally impossible and partial conformity is the most that they can achieve so long as they continue to fight at all. However, given the moral stakes of armed conflict, even partial conformity is most welcome. If unjust combatants stop harming civilians except as a side effect of preventing substantially greater harm to civilians or combatants, then armed conflict will be much less unjust than if they are not so constrained.

42   Cf Vera Bergelson, “Rights, Wrongs, and Comparative Justifications” (2007) 28 Cardozo L Rev 2481, 2493 (“A partially justified act is, therefore, a wrongful act that, due to certain mitigating circumstances, is less wrongful than that required by the charged offense”).

207



Expected Losses and Anticipated Advantages

207

7.  Expected Losses and Anticipated Advantages As we have seen, the proportionality principle requires attacking forces to predict the harm that an attack may inflict on civilians, typically in the form of collateral damage estimates (CDEs). On my view, attacking forces must also predict the harm that their attacks will prevent in current or future military operations. Such predictions may seem impractical but in fact are ubiquitous in warfare and reflect a basic skill of responsible command. Most notably, commanders regularly make such predictions when deciding to carry out attacks that place their own forces in danger. Commanders seek to achieve military victory at the least possible cost to their own forces and civilians. Commanders will therefore place their own forces at risk only if they believe that doing so will prevent greater harm to their own forces and civilians in current or future military operations. My view simply requires commanders to bring together these two predictions in order to determine the epistemic permissibility of an attack. In general, an action is epistemically permissible only if the actor has decisive reason to believe (a) that the action will infringe no rights, (b) that a justifying circumstance exists, or (c)  that a justifying result will occur. Conversely, an action is epistemically impermissible if the actor has decisive reason to believe (a) that the action will infringe rights, (b) that no justifying circumstance exists, and (c) that no justifying result will occur. It follows that an attack is epistemically impermissible if the attacker has decisive reason to believe that the attack will harm civilians (an infringement of unforfeited rights) unless the agent has decisive reason to believe that the attack will prevent substantially greater harm to friendly forces or to friendly civilians (a justifying result). In other words: Probably Proportionate: An attack may be carried out only if, based on the information reasonably accessible to the attacker, the attack will probably prevent opposing forces from inflicting substantially greater harm on attacking forces and civilians in current or future military operations than the attack will inflict on civilians.

In this formulation, the degree of evidential probability reflects the strength of the attacker’s epistemic reasons for belief. An attack is probably proportionate if the attacker’s reasons to believe that it will prove objectively proportionate are stronger than the attacker’s reasons to believe that it will prove objectively disproportionate. In many cases, there will be an amount of harm that an attack will probably inflict—​ for example, using a missile that will probably kill everyone in its blast radius—​and an amount of harm that the attack will probably prevent—​for example, by providing close air support to infantry units under fire.43 However, often there will be no single number that an attack will probably kill or probably save. For example, suppose that there is a 40 percent chance that an attack will kill ten, a 30 percent chance that it will kill twenty, and a 30 percent chance that it will kill thirty. Similarly, suppose there is a 40 percent chance that the attack will save twenty, a 30 percent chance that it will save   Cf Program on Humanitarian Policy and Conflict Research (n 5) (“ ‘Expected’ collateral damage and ‘anticipated’ military advantage, for these purposes, mean that that outcome is probable, i.e. more likely than not”). 43

208

208

A Theory of Jus in Bello Proportionality

forty, and a 30 percent chance that it will save sixty. Assume that these probabilities are independent of each other, such that the number who will be killed is unrelated to the number that will be saved. There is no exact harm that the attack will probably prevent and no exact harm that the attack will probably inflict. Instead, there are nine possible outcomes, none of which is very likely to occur. We can illustrate this by adapting the Risk Assessment/​Tolerance Matrix used in NATO operational planning doctrine:44 .4 harm 10

.3 harm 20

.3 harm 30

.4 save 20

.16 (20:10)

.12 (20:20)

.12 (20:30)

.3 save 40

.12 (40:10)

.09 (40:20)

.09 (40:30)

.3 save 60

.12 (60:10)

.09 (60:20)

.09 (60:30)

Nevertheless, we can still determine whether or not the attack will probably result in a proportionate outcome. For example, there is only a 33 percent chance that the attack will prevent at least three times more harm than it will inflict. These possible outcomes are indicated in bold. It follows that if harming is at least three times worse than allowing harm then the attack will probably not prove proportionate and is therefore epistemically impermissible. Alternatively, there is an additional 34 percent chance that the attack will prevent twice the harm that it will inflict. These possible outcomes are indicated in italics. It follows that if harming is less than twice as bad as allowing harm, there is a 67 percent chance that the attack will prove proportionate and is therefore epistemically permissible. If the possible harm inflicted and the possible harm prevented are not independent in this way then the attacking force would have to determine the likelihood of each possible outcome and then determine whether the attack will probably result in one of the proportionate outcomes. Any serious account of jus in bello proportionality will require attackers to make similar probabilistic judgments with respect to both civilian losses and military advantages, however the latter are understood. Nevertheless, such probabilistic judgments may seem too complicated for attacking forces to perform in many situations. Often the probabilities themselves are uncertain or the possible outcomes too numerous to carefully examine. In such cases, attacking forces may be unable to determine the epistemic permissibility—​let alone the objective permissibility—​of their actions. Attacking forces will have no choice but to base their decisions on presumptions, heuristics, and other mental shortcuts. Since attacking forces tend to underestimate the harm that they will inflict and overestimate the harm that they will prevent, they should adopt a decision procedure that skews in the opposite direction. I propose the following: Max-​Min: If an attacker cannot determine whether or not an attack will probably prevent substantially more harm than it will inflict then the attack may be carried out only if the minimum harm that the attack might plausibly prevent is substantially greater than the maximum harm that the attack might plausibly inflict.   Allied Joint Publication AJP-​5 (n 28) 3–​39.

44

209



Expected Losses and Anticipated Advantages

209

To exclude very unlikely outcomes, the phrase “might plausibly” stands in for a qualitative assessment that a given amount of harm is reasonably foreseeable, although its probability cannot be precisely quantified. If attackers cannot determine that an attack will probably prove proportionate then they should assume the worst—​within limits—​and act accordingly. One might think that an attack is permissible if the expectable harm to civilians—​ that is, the average of the possible harms to civilians discounted by their respective probabilities—​is substantially less than the expectable military advantage—​that is, the average of the possible military advantages discounted by their respective probabilities. Let us refer to this concept as expectable proportionality. The attack described above would expectably harm around six and expectably save around twelve. The attack is therefore expectably proportionate if doing harm is at most twice as bad as allowing harm, but expectably disproportionate otherwise. In this case, my approach and the expectabilist approach yield the same result. However, in other cases the two approaches diverge. For example, suppose that a targeted killing operation directed at a particular low-​ level insurgent will almost certainly harm several civilians and prevent little or no harm to soldiers because such fighters are seldom effective and so easily replaced. However, there is a small chance that this low-​level insurgent will one day develop into a senior leader who will make a necessary contribution to the harming of many soldiers. Even if the harm that the attack will expectably prevent is substantially greater than the harm that the attack will expectably inflict, the attack is epistemically impermissible because it will almost certainly inflict far greater harm than it will prevent. If the attack ultimately harms civilians and saves no one then the attacker could not possibly defend the attack to those civilians. Here, as elsewhere, reasonable belief—​that is, belief supported by decisive epistemic reasons—​sets a minimum threshold of epistemic permissibility. However, we can endorse more restrictive standards on expectabilist grounds. For example, even an attack that will probably prevent substantially greater harm than it will inflict is expectably impermissible if it will inflict greater expectable harm than it will prevent. For example, if an attack carries a low probability (say 10 percent) of inflicting very great harm (say 1,000 civilian deaths) and no probability of preventing very great harm then it may be expectably impermissible even if it will probably prevent greater harm (say thirty combatant deaths) than it will inflict (say ten civilian deaths). Thus, an attack should be prohibited if it is either probably disproportionate or expectably disproportionate. Finally, the reasonable belief threshold is no more absolute than other deontological constraints. For example, even an attack that will probably not prevent substantially greater harm than it will inflict is permissible if it will prevent far greater expectable harm than it will inflict. For example, if an attack carries a low probability (say 10 percent) of preventing very great harm (say 1,000 civilian deaths) and inflicting much less harm (say ten civilian deaths), then it may be epistemically permissible even if it will probably prevent only slightly more harm (say twenty civilian deaths) than it will inflict (say ten civilian deaths). Thus, an attack is permissible only if it is either probably proportionate or expectably overriding.

210

210

A Theory of Jus in Bello Proportionality

8.  Moral Uncertainty On my view, proportionality incorporates the moral asymmetry between doing harm and allowing harm. Expected harm to civilians is excessive in relation to anticipated military advantage when the former exceeds what the latter would justify. The value of a military advantage lies in the harm to combatants and civilians that its achievement will prevent in current or future military operations. Since doing harm is substantially worse than allowing harm, it follows that expected harm to civilians exceeds what anticipated military advantage would justify when the latter will not prevent substantially greater harm to others. As we saw at the beginning of this chapter, proportionality judgments are somewhat imprecise. For example, we rarely judge that an attack would be proportionate if it will likely harm N civilians but would be disproportionate if it will likely harm N+1 civilians. Most scholars suppose that proportionality judgments are imprecise because they compare incommensurable values, namely, civilian losses and military advantage. Of course, I have argued that the value of a military advantage lies in the losses prevented by its achievement. Thus, on my account, proportionality judgments compare fully commensurable values, namely, harms to some and harms to others. On my view, proportionality judgments are imprecise because the moral asymmetry between doing and allowing harm is imprecise. When we say that killing is substantially worse than letting die, we do not mean that killing is precisely X or Y times worse than letting die, where X and Y are exact numbers such as 3.14. Rather, we mean that killing is at least X times worse and at most Y times worse than letting die, where X and Y are substantial figures. Put another way, we mean that collaterally killing one innocent person would be a disproportionate side effect of preventing fewer than X innocent people from being killed but a proportionate side effect of preventing more than Y innocent people from being killed. At the same time, the permissibility of collaterally killing one innocent person as a side effect of saving between X and Y innocent people may be impossible to determine. Importantly, on my view, the imprecision of our proportionality judgments is significant but hardly debilitating. Certainly, it would be disproportionate to collaterally harm one innocent person as a side effect of preventing comparable harm to only one other innocent person. This much seems to follow from any nontrivial asymmetry between doing harm and allowing harm. Yet even requiring a 1:2 ratio of harm inflicted to harm prevented would transform military practice. After all, the imprecision of the proportionality rule is thought by many to render it either fairly permissive or very permissive. In contrast, on my account, the imprecision of the proportionality rule renders it either fairly restrictive or very restrictive. With respect to the upper bound (Y), responses to the famous Trolley Problem suggest that it would be proportionate to collaterally harm one innocent person as a side effect of preventing comparable harm to five other innocent people.45 It is true that

45   See e.g. Helen Frowe, “Claims Rights, Duties and Lesser Evil Obligations” (2015) 89 Proceedings of the Aristotelian Society, Supplementary Volume, 267, 277; McMahan (n 23).

21



Moral Standards and Decision Procedures

211

the Trolley Problem involves redirecting an existing threat, while collateral harming in war involves creating new threats as a side effect of eliminating existing threats. Arguably, it is harder to justify creating new threats than to justify redirecting existing threats. At the same time, it is possible that most people would think it permissible to redirect a threat away from two or three innocents toward one innocent. Accordingly, most people might think it permissible to create a new threat that would collaterally harm one innocent to prevent comparable harm to five innocent persons from an existing threat. Empirical studies of lay and expert judgments on these matters would be most illuminating. Since proportionality judgments are necessarily somewhat imprecise, we should ask whether the law of armed conflict should prohibit attacks that are neither clearly proportionate nor clearly disproportionate. First, we should distinguish how attacking forces should act and how reviewing tribunals should judge. Obviously, reviewing tribunals should only punish individuals if the legal element of excessiveness is established beyond reasonable doubt. This is the truth contained in the view that criminal liability should only attach to attacks that are clearly excessive.46 However, if attacking forces cannot determine whether the military advantage anticipated from an attack would justify the expected civilian losses, they should refrain from attack. As the ICRC comments, “the disproportion between losses and damages caused and the military advantages anticipated raises a delicate problem; in some situations there will be no room for doubt, while in other situations there may be reason for hesitation. In such situations [of doubt] the interests of the civilian population should prevail.”47 Harming civilians is not wrong because it is disproportionate. On the contrary, harming civilians is wrong unless it is proportionate. Attacking forces should presume that collaterally harming civilians is wrong unless they acquire decisive reason to believe that they are justified in doing so. Accordingly, combatants should refrain from attacks that are not clearly proportionate.

9.  Moral Standards and Decision Procedures In war, as elsewhere, often the surest way to miss a target is to aim at it directly, ignoring both adverse conditions and our own imperfections. Instead, we may be more likely to hit our target by aiming a bit above or below, to the left or to the right. Similarly, we may be more likely to satisfy a moral standard not by trying to apply it directly but by applying a decision procedure that anticipates and corrects for potentially distorting factors. The standard of jus in bello proportionality that I propose is a complex one. Attackers may better conform to that standard indirectly, by following a decision procedure that relies as much on intuition as on calculation. In the regulation of armed conflict, the distinction between moral standards and decision procedures corresponds to the distinction between legal rules and rules of engagement (ROE). ROE do not directly track applicable legal rules in all of their

  See Rome Statute, Art 8(2)(b)(iv).

46

47

  ICRC (n 12) para 1979.

12

212

A Theory of Jus in Bello Proportionality

complexity but instead provide clear and straightforward instructions to combatants of varying ages and education levels that, if followed, will more often succeed in eliciting lawful conduct. To help combatants conform to jus in bello proportionality, I  propose two ROE. First, consider: Us = Them: Do not carry out an attack that will endanger civilians unless you would accept the same risk to your own unit to achieve the same goal. Ask yourself: Will the attack harm civilians? If so, would you carry out the attack even if your unit would suffer the same amount of harm? If you would not, then DO NOT carry out the attack.

To illustrate, Us = Them would direct an officer not to order a missile strike against an insurgent that would collaterally kill three civilians unless the officer would be willing to lose three soldiers in order to kill the insurgent. The officer might consider whether he would order a ground assault that would claim the lives of three soldiers, or whether he would order the strike even if three soldiers, held hostage by the insurgent, would be collaterally killed in the strike. In general, officers will endanger their own troops now only to substantially reduce danger to their own troops or civilians later. It follows that most officers who directly follow Us = Them will indirectly conform to jus in bello proportionality. Next, consider the following ROE: Ours = Theirs: Do not carry out an attack that will endanger foreign civilians unless you would accept the same risk to your own civilians. Ask yourself: Will the attack harm civilians? If so, would you carry out the attack even if they were your own civilians? If you would not, then DO NOT carry out the attack.

To illustrate using the same scenario, Ours = Theirs would direct a commander not to order a missile strike against an insurgent that will collaterally kill three foreign civilians unless the commander would order the strike even if it would instead collaterally kill three of his own civilians. In general, officers will endanger their own civilians now to substantially reduce danger to their own troops or civilians later. It follows that most officers who directly follow Ours = Theirs will indirectly conform to jus in bello proportionality. No doubt, soldiers have special duties to protect their fellow soldiers and fellow citizens even at grave risk and at great cost to themselves. However, these special duties do not give soldiers special rights to harm foreign civilians as a means or as a side effect of protecting their fellow soldiers or fellow citizens. Soldiers must bear the costs of their own special duties and may not impose costs on foreign civilians that the latter have no duty to accept. It follows that soldiers may not impose costs on foreign civilians that they may not impose on their fellow soldiers or fellow citizens. Accordingly, my proposed ROE require that attacking forces take losses to foreign civilians just as seriously as they take losses to their fellow soldiers and fellow citizens. Since attacking forces too often take the former much less seriously than the latter, these ROE serve a valuable corrective function in moral deliberation.

213



Superiors and Subordinates

213

Importantly, military officers routinely decide how many soldiers under their command they are willing to risk or lose in order to obtain a given military advantage. Us  =  Them simply prohibits these officers from imposing greater risks or losses on civilians in order to obtain the same military advantage. With respect to Ours = Theirs, Ian Henderson reports that I have used this simple concept [that collateral harm to foreign civilians is proportionate only if comparable harm to fellow civilians would be proportionate] in lectures, exercises and operations and can attest to its usefulness in helping military members “grasp” the concept of applying proportionality rather than merely thinking about it in abstract terms.48

Hopefully, these proposed ROE will provide military officers with practical decision procedures that are simpler and more direct than the proportionality principle itself. Of course, these ROE are only decision procedures and not moral or legal standards. For one thing, much like the Golden Rule, these ROE depend for their application on the subjective values of the applicant. The less value an officer places on the lives of his own forces and civilians, the less value these ROE require him to place on the lives of foreign civilians. These ROE only tell us to place equal value on the lives of our own forces, our own civilians, and foreign civilians. They do not tell us how much absolute value to place on the lives of anyone. At the same time, since most attackers—​ consciously or subconsciously—​place as much or more value on their troops and civilians than they place on foreign civilians, most attackers will act less wrongfully if they follow these ROE than if they allow their implicit biases to affect their targeting decisions.

10.  Superiors and Subordinates Up to now we have discussed the duties of attacking forces as collective agents without attending to the moral division of labor between individuals. However, the moral and legal duties of superiors and subordinates differ in potentially significant ways. One obvious difference is that operational commanders must ensure the proportionality of entire military campaigns, while tactical commanders must ensure the proportionality of particular attacks. More interesting differences arise between those who order attacks and those who carry them out. For example, Protocol I requires “those who plan or decide upon an attack . . . [to] refrain from deciding to launch any attack” that would inflict disproportionate harm on civilians.49 This norm clearly applies only to those who select targets for attack. However, Protocol I also directs that “an attack shall be cancelled or suspended if it becomes apparent” that the attack will inflict excessive harm on civilians.50 The use of the passive voice suggests that this norm applies to all soldiers at all levels, including those who only carry out attacks on targets selected by others. According to the ICRC, 48  Ian Henderson, The Contemporary Law of Targeting:  Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I 229 (Martinus Nijhoff Publishers 2009). 49 50   Protocol I Art 57(2)(a)(iii).   Protocol I Art 57(2)(b); ICRC (n 6) 60.

214

214

A Theory of Jus in Bello Proportionality

“[t]‌he rule set out here . . . applies not only to those planning or deciding upon attacks, but also and primarily, to those executing them.”51 Indeed, if it is apparent to a subordinate that an attack would be disproportionate then the attack is manifestly unlawful, and any order by a superior to carry out the attack must be refused.52 True, subordinates will not always know the value of the military advantage that an attack would yield and therefore cannot always know when new information regarding possible harm to civilians reveals the attack to be disproportionate. In many cases, subordinates will better conform to their moral obligations by deferring to their superiors, whose access to information, analysis, and legal counsel better positions them to make reliable proportionality judgments. If the attack is in fact disproportionate, then responsibility lies with the superiors and not with the subordinates. Importantly, however, there are at least three situations in which subordinates should not defer to their superiors.53 First, subordinates may learn that the possible harm to civilians is much greater than their superiors anticipated. Presumably, a judgment based on false factual assumptions warrants little deference. Accordingly, such subordinates should not carry out the attack unless they relay the new information to their superiors and then receive orders to proceed with the attack. Second, subordinates may have reason to doubt that their superiors are applying the proportionality standard reasonably and in good faith. Accordingly, such subordinates should not carry out attacks unless the information provided by their superiors convinces the subordinates themselves of their lawfulness. Finally, subordinates may conclude, based on the information available to them, that an attack appears so grossly disproportionate as to be manifestly unlawful. In such extreme cases, it is so unlikely that additional evidence, available only to their superiors, would support the contrary conclusion that subordinates may not defer but must insist on additional information before carrying out an attack. For example, suppose that a drone pilot is ordered to launch a missile at an unnamed, low-​level insurgent away from an active battlefield. Before launching the missile, the pilot sees a dozen civilians pass into the expected blast radius of the missile. Presumably, the potential harm to civilians is much greater than the pilot’s superiors anticipated. Moreover, the attack now appears so grossly disproportionate that it is highly unlikely that the pilot’s superiors have specific information regarding the targeted individual that would support a judgment of proportionality. It is very unlikely that the targeted individual will otherwise kill substantially more than a dozen soldiers or civilians, as would be required to render the attack proportionate. In this case, the pilot legally must and morally should suspend the attack.54   ICRC (n 12), para 2220. See also Quéguiner (n 25) 803.   See Rome Statute of the International Criminal Court, Art 33(1)(c) (superior orders are not a defense to war crimes if the defendant did not believe that the orders were lawful or if the orders were manifestly unlawful). 53   Cf Joseph Raz, The Morality of Freedom (Oxford University Press 1986) 42–​6. 54   Cf Program on Humanitarian Policy and Conflict Research (n 5) 94 (“Anyone with the ability and authority to suspend, abort or cancel an attack, must do so once he reaches the conclusion that the expected collateral damage would be excessive in relation to the anticipated military advantage. For instance, a pilot who has the target in view and unexpectedly observes civilians in the target area—​who were not supposed to be there, based on the information provided to him during the briefing preceding the attack—​must assess the collateral damage expected to befall them and cancel the attack if he 51

52

215



Targeted Killings Revisited

215

11.  Targeted Killings Revisited Thus far, I have illustrated my account of jus in bello proportionality mostly using skeletal cases involving international armed conflict. While the US–​Iraq war shows that international armed conflict is hardly a thing of the past, it is worth pausing to apply my account to non-​international armed conflicts between states and non-​state actors. For more than a decade, the United States has pursued a strategy of targeted killing of individual adversaries using unmanned aerial vehicles (UAVs) or “drones.” One of the supposed virtues of drones is that they can hover over a target for an extended period and strike when few or no civilians are in harm’s way. Indeed, the ratio of civilians killed to combatants killed by drone strikes fell from almost 1:1 under the Bush administration to under 1:4 under the Obama administration and continues to fall.55 However, the Obama administration also expanded the drone campaign from targeting mostly high-​level terrorists and insurgents to targeting primarily mid-​level and low-​level Taliban fighters. As a result, the number of drone strikes increased dramatically in 2010, and the annual number of civilian deaths remained very high for several years. These changes in the design and execution of the drone program make it both more difficult and more important to evaluate its morality and legality. To evaluate the proportionality of a particular drone strike, we must compare the losses that the strike will inflict on civilians to the losses that the strike will prevent from befalling soldiers or civilians in current or future military operations. It therefore seems that drone strikes against low-​level insurgents and terrorists that unintentionally kill civilians will seldom prove proportionate. Many low-​level insurgents will never kill anyone, and many are so easily replaceable that killing them will not prevent substantially greater future harm. Such insurgents may be liable to be killed even if they will be replaced if killed. However, attacks that inflict losses on civilians can be proportionate only if the attacks also prevent substantially greater harm to others. It follows that if killing a low-​level insurgent will not prevent substantially greater harm to others, it would be disproportionate to harm any civilians in the process.56 In contrast, a high-​level insurgent commander might make a necessary contribution to the deaths of many soldiers or civilians in current or future military operations. High-​level insurgents may be difficult to quickly replace, or may be replaced by

concludes that the principle of proportionality will be violated”); Quéguiner (n 25)  805 (“[I]‌f, before launching a first salvo against a bridge, a tank driver notices that a crowd of fleeing civilians have taken refuge under the targeted bridge, the driver cannot assume that the planners have correctly considered the principle of proportionality and continue his mission in wilful blindness and impunity. He must, at the very least, suspend his attack in order to allow the civilians to evacuate, or to request that his orders be confirmed in the light of these new circumstances”). 55   See Bureau of Investigative Journalism, “Covert Drone War,” . 56   For a similar conclusion reached on strategic rather than moral or legal grounds, see United States Department of Defense, The U.S. Army and Marine Corps Counterinsurgency Field Manual, para 7-​32 (U.S. Army Field Manual No. 3-​24, 2006)  (“In COIN environments, the number of civilian lives lost and property destroyed needs to be measured against how much harm the targeted insurgent could do if allowed to escape. If the target in question is relatively inconsequential, then proportionality requires combatants to forego severe action, or seek non-​combative means of engagement”).

216

216

A Theory of Jus in Bello Proportionality

others with less skill or charisma. In principle, it could be proportionate to collaterally kill some civilians as a side effect of killing such a high-​level insurgent.57 Importantly, even if a particular drone strike satisfies jus in bello proportionality, the overall strategy of using drones to achieve broader war aims may violate the jus ad bellum.

12. Conclusion An attack that inflicts incidental harm on civilians is proportionate only if it prevents opposing forces from inflicting substantially greater harm on attacking forces or civilians in current or future military operations. This account of jus in bello proportionality does not compare incommensurable values, but only immediate losses to civilians with future losses to civilians and to attacking forces. In addition, this account applies symmetrically to all parties to an armed conflict, independently of the jus ad bellum morality and legality of their use of military force. Attacks that are disproportionate under this account are morally impermissible when carried out by just combatants, and disproportionate attacks carried out by unjust combatants are morally worse than proportionate attacks carried out by unjust combatants. It follows that both just and unjust combatants have decisive moral reasons to avoid attacks that are disproportionate under this account, and the law would guide soldiers well by prohibiting such attacks.

57  Cf Michael N Schmitt, “Unmanned Combat Aircraft Systems and International Humanitarian Law: Simplifying the Oft Benighted Debate” (2012) 30 BU Intl L J 595, 616 (“Multiple civilian casualties may not be excessive when attacking a senior leader of the enemy forces, but even a single civilian casualty may be excessive if the enemy soldiers killed are of little importance or pose no threat”).

217

9 Proportionality in Warfare as a Political Norm Ariel Colonomos Proportionality—​an essential element of both jus ad bellum and jus in bello—​is a bedrock principle of both international law and the just war tradition. It shapes thinking and dialogue among service members, military advisors, scholars, lawyers, and policymakers. Discussions of proportionality also pervade the public space, where commentators apply proportionality tests to both the initial decision to wage war and the magnitude of force that militaries use in battle. Proportionality is a focal point of how specialists and the general public in democratic societies frame discussions of war.1 Proportionality is born out of a compromise between political constraints, military necessities, legal claims, and ethical aspirations. The notion of proportionality, at the center of which we find the issues of military advantage and civilian suffering, constitutes one of the most remarkable pieces of evidence of this attempt to reconcile these different logics. It is noteworthy that proportionality did not exist as a term prior to the codification of international law.2 The term’s creation was highly contingent,3 and has its roots in the necessity to make the use of force acceptable according to shared legal and moral standards without limiting the state’s strategic and tactical margin of maneuver. Although the framing of proportionality in law and in the ethics of war is recent, the idea of finding a balanced measure when making political decisions—​ including those that involve the use of force—​echoes the concerns of both ancient and Enlightenment-​era philosophers. In this chapter I argue that proportionality, as it is generally framed today in ethics and law, is an “empty focal point”:4 deeply flawed, highly resilient, and in need of reconsideration. Either proportionality is perfectible and one should redefine it following the ethical and legal paths set by these two disciplines and traditions, or a more radical shift is needed. I argue here in favor of the latter proposition.

1   Thomas Schelling, The Strategy of Conflict (Harvard University Press 1960) 57; Richard Sparrow and Robert Goodwin, “The Competition of Ideas: Market or Garden?” (2001) 4 Critical Rev of Social & Pol Phil 45–​58. According to Schelling, a focal point is based on “each person’s expectation of what the other expects him to expect to be expected to do.” I refer here to a focal point in the context of a “marketplace of ideas,” that is, as a concept around which, for different reasons, a majority of those who participate in this marketplace converge. 2  Alexander Watkin, “Assessing Proportionality:  Moral Complexity and Legal Rules” (2005) 8 Yearbook of Intl Humanitarian L 33–​53. 3   Amanda Alexander, “A Short History of International Humanitarian Law” (2015) 26 EJIL 109–​38. 4   James Taylor Johnson, Just War Tradition and the Restraint of War (Princeton University Press 1984). Applied to norms of warfare, this terminology is used by Johnson, although he considers that rules of warfare are “more than mere focal points.” As a general normative system, they might be more than that, but proportionality can be particularly the target of such criticism.

Proportionality in Warfare as a Political Norm. Ariel Colonomos. © Ariel Colonomos, 2017. Published 2017 by Oxford University Press.

218

218

Proportionality in War as a Political Norm

This chapter focuses on the narrow proportionality test, 5 which operates as a core concept: In order for a military decision to be proportionate, the harm that it causes (mostly to civilians) ought not to outweigh the military advantage that is being pursued.6 I will start the chapter with an analysis of jus in bello. However, my analysis goes beyond the jus in bello/​jus ad bellum divide and I argue in favor of framing proportionality in political terms; this affects both sequences of ad bellum and in bello. In Section 1, I  develop the reasons why it seems highly improbable that we can improve the epistemic validity of proportionality on the basis of its actual definition, in light of its limitations and shortcomings. Those problems, I argue, are grounded in the limitations and premises of the ethical and legal individualist paradigm, and in the riddle of non-​commensurability that is obscured by this model. More specifically, I place a particular emphasis on the temporal dimension of the non-​commensurability problem. In Section 2, I argue for a reframing of proportionality in political terms, which necessarily departs from the prevailing moral and legal framework upon which proportionality is currently based.7 Proportionality was originally a politically oriented concept, but it deviated from its origins for historical and contingent reasons that I  discuss in this section. Reintegrating proportionality into the sphere of politics would address some of the challenges I raise without canceling the existing moral and legal norms of proportionality. In Section 3, I attempt to define proportionality as a political norm through five principles. Finally, in conclusion, I  use the example of targeted killings to demonstrate proportionality as a political norm in comparison with its legal and ethical interpretations.

5  Paul Gilbert, “Understanding Proportionality in Contemporary Armed Conf lict” in James Turner Johnson and Eric D Patterson (eds) The Ashgate Companion to Military Ethics (Routledge 2015) ch 24. A  note on terminology:  Narrow proportionality has two distinct meanings. What I  describe here is what Gilbert terms the “orthodox” conception of narrow proportionality. This differs from Jeff McMahan’s “revisionist” conception of narrow proportionality, which “involves the harming of those who are liable to be harmed, namely those whose actions harm or threaten to harm their victims.” 6   The damages that are taken into account in this calculus also include property belonging to civilians and property whose destruction will affect their lives. Moreover, in its opinion on the Nuclear Weapons case, the International Court of Justice stated that “respect for the environment is one of the key elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality”: 1996 ICJ 242. 7  On political normativity in international politics and in international relations as a discipline (IR), among others, see Daniel Deudney, Bounding Power: Republican Security Theory from to Polis to the Global Village (Princeton University Press 2007); Richard Beardsworth, “From Moral to Political Responsibility in a Globalized Age” (2015) 29 Eth & Intl Aff 71–​92. Notably, in the realist tradition of IR we find an ample literature on the political critique of the detrimental role of ethics in international politics, and on the epistemic failures of normative approaches in IR. However, this falls outside the scope of this article (and I tend to disagree with many of those critiques). More generally and from a philosophical perspective, on the two dimensions of moral choices and political action, on “political moralism” in contrast to “political realism,” see Bernard Williams, In the Beginning was the Deed—​Realism and Moralism in Political Argument (Princeton University Press 2005).

219



Proportionality in the Individualist Model

219

1.  The Failings of Proportionality in the Individualist Model We find proportionality as a norm in three overlapping spheres. It is codified in both international law (IL) and international humanitarian law (IHL).8 It is a moral norm embodied in jus ad bellum9 and in jus in bello.10 It is also codified in military manuals and doctrines and, as such, it is widely taught in military academies worldwide.11 Although there are differences between these three spheres, they share two key similarities. First, the legal, moral, and military definitions all tend to overlap around the narrow proportionality test. Second, they are all individualistic. The agent responsible is the soldier, or the “reasonable commander.” The current academic debate on proportionality is grounded on this basis and we rarely depart from this comprehensive individualistic model. This consensus contrasts with the fact that proportionality is also a widely disputed norm.12 The general public very often fails to understand proportionality claims made by governments and their lawyers.13 Therefore, the norm lacks legitimacy outside military, governmental, and scholarly circles. This is evident in criticisms of Western powers such as the United States, Israel, and NATO for the force they use against less powerful states or non-​state actors in asymmetric conflicts.14 Disagreement is part of 8   Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge University Press 2004); Yoram Dinstein, “Collateral Damage and the Principle of Proportionality,” in David Wippman and Matthew Evangelista Matthew (eds), New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts (Transnational Publishers 2005) 211–​24; Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press 2010); Michael Newton and Larry May, Proportionality in International Law (Oxford University Press 2014). 9   David Kretzmer, “The Inherent Right of Self-​Defense and Proportionality in Jus ad Bellum” (2013) 24 EJIL 235–​82. 10   Thomas Hurka, “Proportionality in the Morality of War” (2005) 33 Phil & Pub Aff 34–​66; Larry May, War Crimes and Just War (Cambridge University Press 2007) 211–​34. 11   In the US, LOAC (Law of Armed Conflict) is the most comprehensive of these legal manuals. Its most updated version was published in June 2015 (General Counsel of the DoD, 2015). See also W Hays Parks, “Air War and the Law of War” (1990) 32 Air Force Law Review 2. However, proportionality is framed in the doctrines and war manuals of many other different countries. See Jean-​Marie Henckaerts et al, Customary IHL vol. 1 Rules (Cambridge University Press 2005). As a military doctrine, proportionality is part of the “economy of force,” as it is referred to in war manuals such as US Army Field Manual 3-​0. Jonathan Keiler, “The End of Proportionality” (2009) 39 Parameters 53–​63. 12   On the negative perception of proportionality in warfare, see Gabriella Blum, “The Fog of Victory” (2013) 24 EJIL 419. Some authors go as far as to say that the norm of proportionality should be disposed of entirely. See Keiler (n 11). 13   Among the many examples of this controversial debate as it is staged by the media, see the case of the late Israeli military campaign in Gaza as it is reported in Zeke Miller, “Israeli Ambassador: Here’s What “Proportionality” In War Really Means” (2014) Time (accessed 22 September 2016). Proportionality is very often equated with the tit-​for-​tat or lex talionis model, which is largely incorrect according to the current definition. 14   See the debate on NATO bombings during the campaign against Serbia in 1999. The ICTY released a report in 2000 in which the issue of the proportionality of NATO’s strikes over Serbia was raised. ICTY, “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia” (2000) accessed 22 September 2016. On this controversial debate see Paolo Benvenuti, “The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia” (2001) 12 EJIL 503–​29; W J Fenwick “Targeting and Proportionality during the NATO Bombing Campaign Against Yugoslavia” (2001) 12 EJIL 489–​502.

20

220

Proportionality in War as a Political Norm

any democratic debate, but in this case, the controversies around both the definition and the interpretation of proportionality are symptomatic of the norm’s vagueness and resiliency.15 Proportionality is also problematic as a normative category.16 Both in ethics and in law, proportionality is fundamentally a consequentialist pragmatic moral claim.17 No doubt, consequentialism has been the target of numerous controversies in moral philosophy.18 Proportionality quite dramatically exposes itself to such criticism and is particularly vulnerable to the Rawlsian critique of consequentialism, that is, the separateness of persons, which rules out “justifying institutions on the grounds that the hardships of some are offset by a greater good in the aggregate.” Indeed, Rawls considers that “it may be expedient but it is not just that some should have less in order that others may prosper.”19

1.1  Proportionality and the individualist paradigm Both in jus in bello and in IHL, the calculus of proportionality relies upon an individualist paradigm.20 In this framework, the soldier is responsible for the violation of a norm that obliges him or her to refrain from using force if the harm that this would create outweighs the benefits of the direct military advantage that the decision to use force should cause. This is true of every agent-​attributed action in warfare, but it is particularly so here:  Violations of the norm of proportionality cannot be solely attributed to individuals. The predominant individualist paradigm neglects the importance of the state’s responsibility as a collective agent of warfare decision making.21 Nonetheless, for reasons I develop in Section 2, the individualist paradigm is appealing and functional as a legal and moral fiction. It enables an overlapping consensus between ethics, law, and military doctrines. Yet it does so to the detriment of epistemic coherence and undermines the quality of those claims that seek to minimize the use of force.

15   On vague norms, see Timothy Endicott, Vagueness in Law (Oxford University Press 2000). On the ambiguity of proportionality, see Jason Wright, “Excessive Ambiguity:  Analyzing and Redefining the Proportionality Standard” (2012) 94 Intl Rev of the Red Cross 886. 16   Francisco Urbina, “A Critique of Proportionality” (2012) 57 Am J of Jurisprudence 49–​80. 17  We find some deontological elements in the norm of proportionality. See Jeff McMahan, “Proportionate Defense” (2013) 23 J Transnational L & Poly 1–​36. However, both in theory and in practice, searching for an appropriate equilibrium between goods and harms is the purpose of proportionality as a norm. See Hugo Grotius, The Rights of War and Peace (first published 1625, Richard Turk (ed) Liberty Fund 2005) 1140; Book II, ch XXIV, V, “Precautions against Rashly Engaging in War”: “Wherefore in all cases of deliberation, the proportion, which the means and the end bear to each other, is to be duly weighed, by comparing them together.” This pragmatic and consequentialist approach precisely comes from the political origins of proportionality that will be laid out in Section 2. 18  Amartya Sen and Bernard Williams (eds), Utilitarianism and Beyond (Cambridge University Press 1982). 19   John Rawls, A Theory of Justice (Cambridge University Press 1999) 13. 20  Noam Zohar, “War Individualist Ethics:  Against the Conscription of “Self-​Defense”” (1993) 21 Political Theory 606–​22. 21   Neta Crawford, “Individual and Collective Moral Responsibility for Systematic Military Atrocity” (2007) 15 J of Pol Phil 187–​212; Ariel Colonomos, Moralizing International Relations—​Called to Account (Palgrave 2008).

21



Proportionality in the Individualist Model

221

Political decisions lack justice because, due to this vagueness, the norm can be easily manipulated.22 The “reasonable commander” is part of a chain of command that frames the general policy, both tactical and strategic, and both before and during the conflict, that will translate into military decisions on the battlefield. The “reasonable commander” legal and moral fiction dissociates the individual’s decision from that context and organizational structure. The individual’s decision heavily depends on this organizational structure, though, and so the individual should not always be judged independently from the collective. This is particularly true in the military, where the soldier is integrated through discipline and training into a community of people with a shared esprit de corps. Military and government leaders also define what should be the threshold of acceptable civilian casualties beyond which the operation needs to be scrutinized and put to the test. This process—​collateral damage estimation (CDE)—​is inherently collective. If this prediction exceeds the number fixed a priori, then a commission has to review the details of the operation and set a new CDE. If this number is still higher than the acceptable number of casualties fixed a priori, a second commission with greater authority reviews the operation.23 Therefore, the responsibility is collective, as the political body has set rules that are enforced both by the military and the executive power through a chain of command. Any debate about proportionality must also consider that states interpret both the norm and its applications through their own military and political traditions. Each of them follows a specific ethos that is historically and politically contingent (or dependent upon technology), such as a preference for defensive or offensive strategy. Military doctrines are taught to soldiers. This process of socialization is related to their national history, and shapes the thinking of military personnel. We must take this organizational variable into account.24 Indeed, the “reasonable commander” feels a sense of belonging to that culture, and one cannot dissociate the individual’s rationality from that organizational culture which, in many cases, reflects his or her national history and personal identity. There are of course cases in which the reasonable commander ought to distance himself or herself vis-​à-​vis the rules and the military doctrine he or she is supposed to abide by, or simply ought to reject them. In the most extreme case, this is particularly true when he or she is asked to obey illegal orders. I do not mean to suggest that individual proportionality ought to disappear. Rather, I argue that a complementary norm of collective political proportionality might mitigate the effects of claims based solely on individual responsibility. We could still envision a situation in which there is a radical disconnect between individual agency and collective action and responsibility. In such a case, a soldier could be held responsible on the basis of the current IHL rule. Yet clear-​cut cases of IHL proportionality

22   On the contingency of norms and the preference for vague norms that can be more easily distorted and reinvented, see Marine Guillaume, “What is Fighting Justly?” (2015) PhD dissertation, Political Science, Sciences Po and Columbia University. 23   Personal interviews with JAG officers (Washington DC and Charlottesville, March 2016). 24   Crawford (n 21).

2

222

Proportionality in War as a Political Norm

violations are less frequent than in the case of other norms, since the interpretation and the use of proportionality are highly subjective. As an example, consider Israel. Both for historical and political reasons, an ethos of the offensive has long prevailed in the history of war in Israel. This collective dynamic affects proportionality claims. Another example relates to the shock that the events of September 11, 2001 caused in the political community of the United States, and the subsequent decisions to go to war in Afghanistan and then Iraq. In this case as well, the social context is critical to considerations of proportionality. If the US had violated proportionality, it would be unfair to blame individual soldiers without consideration for the shared ethos that shaped the US government’s war policy in the aftermath of September 11. We can draw two conclusions. First, when considering personal responsibility, we should account for the way in which individual rationality is influenced by culture and organizational structure. This social fact does not imply relativism. In a deliberative political space, this political and military culture should be consistent with some universal meta-​principles, such as the need to minimize human suffering. Second, assuming that we agree upon a common definition of proportionality set in the legal and ethical framework, a “reasonable commander” who objectively violates it ought not to be the sole agent accountable for the violation. The Israeli Defense Force’s 2002 targeted killing of Salah Shehade—​the head of the military branch of Hamas—​is interesting in this regard. The IDF used a one-​ton bomb which killed fifteen civilians, including women and children. In the aftermath of the strike, twenty-​ seven reserve pilots signed a letter of protest against the operation and refused to fly assassination missions over Gaza. One of their claims was that the bomb’s tonnage was excessive given the mission’s objective. According to the IHL proportionality rule, the commander would be responsible for the disproportionate force that caused those deaths. The political proportionality norm, by contrast, would emphasize the collective responsibility of decision makers within the Israeli government.25 Collective responsibility here precedes individual responsibility. Current reflections on the ethics of proportionality do not capture this double dimension. They focus exclusively on how soldiers ought to follow an individualistic proportionality norm that would lend itself to a fair and rational interpretation. Moreover, within a group that is collectively responsible, individuals share a joint dynamic and are tied by interlocking expectations.26 As proportionality is a norm that is also embedded with other rules of war such as the doctrine of double effect, and is also directly related to the rules of precaution and necessity,27 this creates a web of meaning and strengthens both a joint dynamic and a set of collective expectations on the part of different actors within the chain of command and the state. Different members of the armed forces and government share this vocabulary and participate in the creation of moral standards of proportionality applicable by their group. 25   The group of Israeli officials includes the Prime Minister, representatives from the military, and lawyers who issue rules over targeted killings. 26   Joel Feinberg, “Collective Responsibility” (1968) 65 J of Phil 674–​88; Margaret Gilbert, “Who’s to Blame? Collective Moral Responsibility and Its Implications for Group Members” (2006) 30 Midwest Stud in Phil 94–​114. 27   May (n 10).

23



Proportionality in the Individualist Model

223

1.1.1 Eclecticism and non-​commensurability Whether we favor the individualist or the collectivist model, we are confronted with a major difficulty when assessing proportionality. The different elements that are needed in order to establish this ratio are difficult to aggregate, and we may even wonder to what extent they are commensurable and comparable. One of the main problems of non-​commensurability is the arbitrary power it gives to judges,28 or, in the context of war, to the “reasonable commander.” Commensurability is a more general problem of proportionality that theorists of law have amply addressed, and we see here the limits of the theory of balancing upon which proportionality is based.29 In the individualist paradigm, authors such as Hurka and MacMahan do not consider that non-​commensurability is a problem, because, as Adil Haque points out in this volume, they argue that military advantages have no intrinsic value. This view is highly problematic, as it relies solely upon the individualist paradigm, and it is meaningless if one departs from this paradigm. Indeed, one may well argue that such advantage has an intrinsic value for the political community: It is the reason why combatants put their lives at risk, because they want to win a battle and preserve their political community, not just save civilians’ lives. Saving civilians’ lives then becomes a derivative of the military advantage of the homeland and not the reverse, as Hurka and MacMahan seem to suggest, precisely because they follow the individualist paradigm. The notion of “military advantage” itself is problematic, because governments and military organizations define not only this category’s empirical content—​that is, the concrete objectives they pursue—​but also the very definition of what constitutes military advantage in the first place. There is no formal agreement over its definition, but several states concur that we should consider “the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the attack” and that “military advantage involves a number of considerations, including the security of the attacking forces.”30 This might appear as a reasonable first step in the definition of what constitutes military advantage, but not all states agree with this statement. Of course, the very notion of “security”—​a disputed term to the extent that it constitutes a field of study of its own in political science, which includes a great variety of definitions—​would also need greater specificity. Moreover, this definition fails to address the question of military advantage in the context of “irregular warfare.”31 I will argue in Sections 2 and 3 that “military advantage,” as a constitutive variable of proportionality, should be replaced by another variable and category. Moreover,

28  Timothy Endicott, “Proportionality and Incommensurability,” in Grant Huscroft, Bradley W Miller, and Gregoire Webber (eds), Proportionality and the Rule of Law—​Rights, Justification, Reasoning (Cambridge University Press 2014) 340. 29   Urbina (n 16). For a defense of balancing in proportionality, see Aharon Barak, “Proportionality and Principled Balancing” (2010) 4 Law & Ethics of Hum Rts 1–​16; Kai Möller, “‘Balancing as Reasoning’ and the Problems of Legally Unaided Adjudication: A Rejoinder to Francisco Urbina” (2014) 12 I•CON 221–5. 30  ICRC, Customary IHL, 2.  Practice, Chapter  4, Rule 14. Proportionality in Attack, Section B Determination of the anticipation of military advantage, accessed 23 September 2016. 31   Colonel C Anthony Pfaff, “Crisis of Norms: Fighting Irregular Wars Well,” in David Jacobson and John Torpey (eds), The Transformation of Warfare (Temple University Press 2016).

24

224

Proportionality in War as a Political Norm

even from an individualistic perspective, it seems impossible to infer from something that remains obscure and undefined—​that is, the military advantage—​the number of persons that it is acceptable to kill, precisely when trying to maximize this mysterious advantage and ruling over a strike. This reasoning is largely symptomatic of two dimensions that are very characteristic of the ethics-​of-​war debate. First, some notions remain unquestioned because it is in the best interests of the various participants in the debate on the norms of warfare to leave them unchallenged. This shows the extent to which ethicists take for granted security concepts that remain unclear. It also shows that it is not something that policymakers lament. On the contrary, such vagueness gives them ample margin of maneuver in their decision making. Ethicists produce a discourse that is detached “from reality,” which is as such left unchallenged by policymakers, who are all the more able to ignore it as it remains obscure and fails to integrate basic empirical information.32 Although in IHL the proportionality norm is meant to limit the use of force, state leaders often invoke the principle of proportionality to explain and justify a military intervention or a military operation. This is all the more frequent in an area of greater precision in warfare, when civilian losses are less important than they were in the past and when minimizing harm is required to make the use of force socially acceptable. Proportionality then becomes a tool of communication between the state and its citizens or advocacy networks, or between the states and other states as well as international organizations. Second, avoiding questioning the definition of military advantage reflects a lack of interest in politics, both in terms of its concepts and the empirical information that is needed to argue in political and military affairs. The ethics-​law-​politics debate is based on this equilibrium. It is important for ethicists, lawyers, and practitioners to use the same term, as this creates a routine within the public debate that accrues the visibility of those who deliberate on the use of force. However, given the vagueness of the term and the ability to interpret it according to one’s preferences and interests, proportionality is trapped in each of these different spheres. This system is stable, which explains the resilience of the norm. However, it operates to the detriment of the robustness of normative arguments that fail to be taken seriously if they are not empirically substantiated and if their variables are not properly defined. In warfare, the security of one group and the harm suffered by this group’s opponent are, at some point, incompatible. But these two goods are not only incompatible; they are also non-​commensurable. From an epistemic perspective, we find no common measure between military advantage and harm, as we find no common ground between the types of knowledge that can address these questions and the types of knowledge that refer to those values. Military strategic thinking and political science differ from epidemiology, the science that, at best, would capture a measurement of the suffering of civilian populations in warfare.33

  Ian Shapiro, The Flight from Reality in the Human Sciences (Princeton University Press 2007).   Historically, medicine and doctors—​Henri Dunant and his followers at the Red Cross—​have been of crucial importance in the development of IHL. 32 33

25



Proportionality in the Individualist Model

225

Epistemic non-​commensurability is a strong limit to the validity of proportionality as a norm in the current ethical and legal frameworks.34 It is all the more so given that “military advantage” and “civilian suffering” are difficult even to conceptualize beyond ethics and law. They are also problematic within those disciplines that would be most susceptible to addressing these questions. Political science has never dealt seriously with the notion of military advantage. In his writings, Clausewitz constantly refers to strategic and tactical advantage, yet never offers a single definition of military advantage.35 For Clausewitz, there is no absolute advantage, but rather circumstantial measurement of the relativity of achievements in warfare. He also raises questions that have not been addressed by those who have framed the norm of proportionality in IHL and jus in bello. For example, Clausewitz asks if an advantageous move can be disentangled from the more general result of the war in itself.36 This would clearly make it very difficult to establish jus in bello proportionality independently from jus ad bellum. As for the suffering of civilian populations, it is of course possible to witness and denounce the suffering of civilians. However, proportionality is also assessed in relative terms as it is compared to other proportionality claims—​for example, counterfactuals—​that would result from other possible military decisions.37 If killing X1 number of civilians in order to reach military advantage Y1 is more acceptable than killing X2 in order to reach Y2, we would need to know what, in those two different contexts, the value of civilian losses is. We would then need to find a common scale in the measuring of civilians’ pain, which is absent from most current analyses.38 Moreover, the current norm of proportionality states that the loss of civilian lives and the damage to civilians’ property are both part of the equation. It does not tell us how to aggregate them in order to compare this total to the worth of military advantage. Epistemic non-​commensurability is reinforced by the knowledge-​uncertain conditions that prevail in the context of war. The “fog of war” reinforces the “fog of norms” that surrounds proportionality.39 Uncertainty can also be unequally distributed. Indeed, in some cases, it could be easier to foresee the damage caused by a specific bombing, whereas it would be more difficult to assess what the benefits of this decision would be. Such epistemic uncertainty is also reinforced by differences in the temporal status of these two variables. I more fully address this problem within the proportionality calculus that follows. Goods in proportionality are also normatively non-​ commensurable. From a Kantian perspective, there is a radical distinction between values with dignity and 34   Ruth Chang (ed), Incommensurability, Incomparability and Practical Reason (Harvard University Press 1997). 35   Carl von Clausewitz, On War (Princeton University Press 1989 [1832]). 36   Ibid, Book III, ch I, 4 (“We might say that, just as in commerce the merchant cannot set apart and place in security gains from one single transaction by itself, so in War a single advantage cannot be separated from the result of the whole. Just as the former must always operate with the whole bulk of his means, just so in War, only the sum total will decide on the advantage or disadvantage of each item”). 37   David Mellow, “Counterfactuals and the Proportionality Criterion” (2006) 20 Eth & Intl Aff 439–​56. 38   In the past, based on the work of Robin Coupland, the ICRC had tried to quantify the unnecessary suffering caused by different categories of weapons in order to reinforce the implementation of the norm of unnecessary suffering. See Ariel Colonomos, The Gamble of War—​Is It Possible to Justify Preventive War? (Palgrave 2013) 90–​2. 39  Ibid.

26

226

Proportionality in War as a Political Norm

those with price.40 In the case of proportionality, the suffering of civilian populations would fall in the first category. As for military advantage, we could argue that an army establishes a set of material goals, such as the conquering of a city, the destruction of the armament of one’s opponents, etc. Yet, these two values are normatively dissimilar. Dignity (in the first case) cannot be substituted with materiality (in the second).

1.1.2 Temporal non-​commensurability Could it be, then, that both terms—​civilian suffering and military advantage—​are related to a meta-​value: in our case, security? Instead of framing proportionality as a ratio where security trumps moral concerns, such as the right not to be harmed, it could be viewed as a security ratio that justifies the possibility of affecting the well-​ being of civilians in the opposing society, and therefore their security, for the sake of maximizing our own security, and notably the security of our civilians. As for utilitarians, they would adopt value monism and consider that security is the common value. They could also adopt another meta-​value, the minimization of suffering, as the broad characterization of war as a “lesser evil” would suggest. Yet even these considerations are unsatisfactory. One of the greatest problems of proportionality lies in the eclecticism of its variables’ temporal status. In jus in bello proportionality, military advantage could be set in the short term, although if we follow Clausewitz it is hard to disentangle the specificity of the gains of one single operation from the more general military advantage of the war itself. The suffering of the population, by contrast, is a long-​term measurement, and it includes the loss of life, the loss of friends and loved ones, the lingering pain of those who are wounded, and the destruction of homes and other material assets. Proportionality presupposes that either we only take into account survival and the loss of present lives, or we establish a measurement of the worthiness of past, present, and future lives. In the latter case—​its actual form—​the norm of proportionality does not explicitly offer that possibility or even suggest that we engage in such analysis. As for the former, it seems extremely difficult to consider that only present lives should count when we are addressing the issue of military advantage and the suffering of civilians. Even though they are poorly defined, we could assume that military advantage and civilian suffering both imply a medium-​term if not a long-​term view. Otherwise, it might seem acceptable to inflict pain by using weapons—​such as radiological devices—​that incapacitate enemies in the short term, but might later kill civilians as well. We need to be aware that military advantage and civilian suffering have different values, notably because of their different temporal statuses. This issue is not addressed by the actual norm. Philosophers have argued extensively about the worthiness of future lives as compared to present ones.41 Usually—​in environmental studies, for example—​philosophers   Chang (n 34).   Derek Parfit, Reasons and Persons (Oxford University Press 1984); J Broome, Weighing Lives (Oxford University Press 2004). We find many reflections on discount rates of future lives in environmental studies. See Simon Caney, “Climate Change, Intergenerational Equity and the Social Discount Rate” (2014) 13 Pol, Phil & Economics 320–​42. 40 41

27



The Importance of Political Proportionality

227

and economists apply discount rates.42 Could that be the case in the context of warfare? This is a difficult question, but an important one that is rarely addressed in the current literature.43 We would need to establish a value for present lives that would serve as a reference for the measurement of civilian losses and pain set in a temporal perspective. This reference point is lacking in the actual theory of proportionality. In the next two sections, I will try to overcome this problem by setting a new perspective for proportionality.

2.  The Importance of Political Proportionality The individualist paradigm acts as a firewall protecting the state, whereas a collective body should be (at least partially) responsible for the violation of rules of war that are most often the result of a policy set by executive and political leaders and the joint dynamic of a whole social and political group.44 The state benefits from this responsibility attribution because individual responsibility—​that is, responsibility for errors made by its “reasonable commanders”—​exonerates the state from being the target of moral and legal accusations. The individualist paradigm backs a crude version of sovereignism, according to which the state is its own judge (that is, the state judges its own agents, but does not challenge its own raison d’État). It is wise here to remember the possible consequences of such a political pattern. This is not only epistemically unsatisfying and politically unjust but is also an outdated framework, detached from a wider social demand that is very much characteristic of the post-​Cold War era, in which international institutions and states have been called to account for their past or present wrongdoings.45 It is also contrary to the foundations of the laws of warfare that implied a reflection on the political legitimacy of war.46 Indeed, we see at the origins of IHL an interest in the proper objectives of war. These are defined by the state and are, as such, highly political. According to IHL, and in the context of proportionality, it would then be illogical to exculpate the state from any critique of the political legitimacy of the war it has decided to wage. Political proportionality is one of the most fundamental traits of proportionality in the wars fought by Western states. Especially for the US, policy goals are fully integrated into the calculus of proportionality.47 In the context of what some refer to as “irregular warfare,” the US tries to gather the largest number of people around a new political project in the countries where it fights. Therefore, the threshold of CDE is set very low, and is in accordance with the pursuit of this political objective.48

  Cass Sunstein, Valuing Life (Chicago University Press 2014).   Ariel Colonomos, “A Cooperative Globalist Approach to the Hostage Dilemma,” in Michael Gross and Tamar Meisels (eds), The Ethics of Soft War (Cambridge University Press 2017). 44   Brian Barry, Why Social Justice Matters (Polity 2005). We can draw a parallel here with Brian Barry’s comments and critiques of neo-​liberal policies and Blair’s political program in the UK. 45   Colonomos (n 21). 46   Rotem Giladi, “Reflections on Necessity and Proportionality and the Clausewitzian War” (2012) 45 Isr L Rev 323–​40. 47 48   Pfaff (n 31).   Some JAGS claim it is often set to zero (n 23). 42 43

28

228

Proportionality in War as a Political Norm

For reasons mentioned in Section 1, the individualist paradigm contributes to the framing of proportionality as a “vague norm.” Those norms that are not made explicit and whose content remains obscure give states and those who exercise power a strong advantage in the public and legal arenas. Contrary to what some of the lawfare literature suggests,49 states benefit from an important legal advantage as they may hire highly skilled military lawyers. They know better than other lawyers—​such as those in non-​governmental organizations—​how to use proportionality as a norm and take advantage of its vagueness, its flexibility, and its contextual nature. This is unfortunate. States are always encouraged to endanger civilians’ lives, especially during times at which security risks and threats to their own civilians are perceived as very high. It is therefore important to put the state and collectives at the center of the debate on proportionality. This not only makes sense from a purely logical perspective; it is also extremely important from the perspective of political justice. In order to preserve its legitimacy, the state must resist those that criticize its behavior based on those standards that prevail within an international society of states. If it fails to do so, it lacks the legitimacy granted by that international society to which it claims to be a member.50

2.1  The “right measure” as the political foundation of proportionality Historically, proportionality originates in the thinking of Plato, who, as a philosopher, was greatly concerned with the necessity of finding a “right measure” in governing the city.51 We find this question raised by other thinkers such as Cicero, as well as in Aristotle’s work.52 This should not come as a surprise, as these philosophers all praise the virtue of temperance, and the ability to find the right measure is considered both a personal virtue and a political skill. In contrast with contemporary moral thinking, proportionality is here defined as an aptitude that requires redefining the common good, discriminating between different political objectives, and measuring the worthiness of material goods. Ante its legalization and ethicization, proportionality was essentially a quest for a right political order in the City. Given the problems posed by proportionality in IHL and jus in bello, it is time to go back to this initial inspiration and stress the implications for international politics of such a vision. A political norm of proportionality would also strengthen the ties between political units within an international society of states. 49   Charles Dunlap Jr, “Lawfare: A Decisive Element of 21st-​Century Conflicts?” (2009) 54 Joint Force Quarterly 34–​9. 50  On the need for a Grotian international society of states, see Hedley Bull, The Anarchical Society: A Study of Order in World Politics (Columbia University Press 1977). It was Hugo Grotius’s ambition to build the norms of an international society of states to which could adhere those political units that would decide to abide by the laws of war. 51   Thomas Poole, “Proportionality in Perspective” (2010) London School of Economics Law, Society and Economy Working Papers, accessed September 21, 2016. 52  Eric Engle, “The History of the General Principle of Proportionality:  An Overview” (2012) 10 Dartmouth L J 7.

29



The Importance of Political Proportionality

229

Although individuals sometimes extract themselves from the chain of command’s decisions, soldiers usually depend upon an orientation and a calculus set by the state. At a more theoretical level, the idea that states make bets and decide over the use of force based on a calculus is far from new. In this tradition, where war appears as a gamble, we find, of course, Machiavelli.53 The Prince should be able to use Virtù and master Fortuna, both of which require a calculus, especially when it comes to warfare. Virtù is grounded in instrumental rationality, and it implies that men ought to master their emotions. Fortuna is also a calculus, but it appears more as a bet. Taming chance is a bold move that every leader should be able to make in order to show his talent and his virtue. Those who followed Machiavelli took good note of the duality of gambling and calculating politics. Hobbes also considered that war is a “gamble,” and calculating the costs of war, both in military and in political terms, is coherent with Hobbes’s ontology and his concept of ratiocinatio. Ratiocinatio is a calculus that men should perform and that, eventually, will lead them to master their passions, coexist within the Leviathan, and pursue their endeavor, or what Hobbes refers to as their “business.” Hobbes and Grotius meet under the auspices of Aristotelian rationality and his definition of the just.54 Aquinas follows the Aristotelian tradition and sets the principle of proportional self-​defense that we also find in Grotius. The project to establish proportionality as a political norm follows this tradition, which preexists the just war moralizing and legalizing process. Moralizing—​with its focus on human suffering—​ is not only excessive as a high moral standard, but is also misleading because of the vagueness and the lack of commensurability of the concepts it uses. Proportionality has developed through law and ethics following the individualist turn. IHL emerged in the nineteenth-​century Geneva Conventions, and individualist ethics in warfare—​as in the revisionist theory—​emerged in the 1990s. Along with other key IHL and ethics norms, proportionality has served as a universal language for states. However, for reasons rehearsed in Section 1, the individualist version of proportionality has led to contradictions with proportionality’s original political meaning and purpose. Indeed, we have lost what appeared as essential in the initial project, that is, finding the right political measure from which the polis in the city would behave as a collective system. The epistemic approximation of proportionality has also had another effect. It has reinforced the national cohesion of military lawyers as national epistemic communities and, concomitantly, it has undermined the cohesion of military lawyers and non-​state IHL experts as a global epistemic community whose members would otherwise share common values, interests, and cognitive maps.55 Building such a global community is important,

53   Johan Huizinga, Homo Ludens:  A  Study of the Play-​Element in Culture (Routledge 2002) (1938); Colonomos (n 38). 54   See Grotius (n 17); Engle (n 52) 4–​7. The author here refers to the theory of proportionality set in Nicomachean Ethics, Book V. 55   Peter Haas, “Epistemic Communities and International Policy Coordination” (1992) 46 International Organization 1–​36.

230

230

Proportionality in War as a Political Norm

as it would reinforce the stability of international politics defined as a “defense community.”56

2.2  Combining quantitative and qualitative variables A new version of in bello proportionality—​a norm of proportionality that would focus on its political dimension—​should combine variables reflecting political concerns. Proportionality would seek to measure the level of political benefit or damage induced by warfare. We should not try to measure “military advantage,” but rather aim at understanding the political benefits or harms of using force. Therefore, it is indispensable to define a priori the political goals of war, and to update those goals, as so commonly occurs, as the war unfolds. Likewise, we should try to measure the political harms done to the targeted political community, as well as the impediments that war creates for that community’s future development. It is important to understand the likely effects on international politics as such, starting with its effects on the regional system where force is being used. Is this calculus more objective than the assessment of military advantage? If we push into this direction, we will find that the political science literature on political cohesion or social integration provides us with studies that are more detailed than what military strategy would define as military advantage. They are relatively specific about the variables that they use when they make assements about social cohesion or social integration.57 Since military advantage depends upon political goals, it is therefore essential to define a norm that raises this issue directly. Building this new ratio is a challenging task that requires the establishment of a measurement scale to hierarchize political goals in warfare. Military goals should not be differentiated from political outcomes, because this would imply equally good knowledge of both political and military affairs on the part of the collective. A new proportionality measurement would emphasize the value of these political goals when they are related to the military objective that is being pursued on the battlefield. For example, in political terms, the predation of a country’s economic goods does not have the same value as freeing a country from dictatorship. We should also try to identify what are true impediments for the future of a political community that is being targeted in warfare. Destroying schools and hospitals durably affects the political future of a country; this is much less the case if more easily replaceable economic facilities are damaged. Similarly, not all civilian lives carry equal value in such a calculation. Indeed, the future of a political community rests on the shoulders of its younger generations, its young leaders, and those who will be their   Karl Deutsch et al, Political Community and the North Atlantic Area: International Organization at the Light of Historical Experience (Princeton University Press 1957). We are here referring to “defense community” from a functionalist perspective. 57   David Siegel, Robert Baron, and Paul Epstein, “The Epidemiology of Aggression: Health Consequences of War in Nicaragua” (1985) 8444 Lancet 1492–​93. Wars have middle and long-​term effects. As in the case of Iraq following the war that began in 2003, the war has had long-​lasting negative social and political effects as it has encouraged professionals from the middle class to leave the country. Epidemiological studies show that criminal violence undermining social cohesion is particularly high in the aftermath of wars (international conflicts or civil wars). We can also rely on the very ample literature on area studies. 56

213



Five Principles of Political Proportionality

231

successors. Therefore, from that perspective, the lives of young people or children are more valuable than the lives of their elders. From a methodological standpoint, we see three main challenges. The first is to define the variables that need to be included in the two broad categories of political benefit on the one hand and political harm on the other. The second is to develop a future-​oriented analytical approach that makes plausible forecasts in a time setting that needs to be defined a priori. Finally, the third is to bridge quantitative data and qualitative analysis within those political assessments. This last point is important as we need to have a debate about what variables should be included in the proportionality calculus, instead of merely concentrating, as is the case in the ethics and law literature, on ways to combine military advantage with human suffering (without defining these two categories). By making more explicit what the commensurable variables will be, it will be easier to put proportionality claims to the test. Therefore, the norm will be taken more seriously and will be less malleable as a tool for propagandist purposes on the part of both those who justify their state’s use of force and those who criticize it. We should try to make use of statistics and indicators. If properly used, indicators can be modes of “global governance,”58 and the history of statistics is closely tied to the development of the state. 59 Indicators are the object of some criticism, since they could be instrumentalized by those who would define them in pursuit of their own interests. However, historically, we see this need not necessarily be the case.60 Indeed, facts—​in this case, statistics—​are and have been powerful tools to criticize political decisions. Building a political norm of proportionality requires new skills, which would rely upon political science and forecasts based on social sciences.61 The aggregation of qualitative and quantitative variables remains a difficult challenge that needs to be overcome. This calls for interdisciplinary work within a large community of both academics and experts, whose task will be to translate their factual and explanatory knowledge of politics into normative terms. In the next section, I develop a tentative list of the main criteria that would serve as a roadmap for the establishment of a political proportionality norm.

3.  Five Principles of Political Proportionality As Walzer argues, one of the main goals of any just war fought by a state is the defense of its political community.62 Although IHL has certainly contributed to the protection

58   Kevin Davis et  al, Governance by Indicators Global Power Through Quantification and Rankings (Oxford University Press 2012). 59   William Petty, Mankind and Political Arithmetic (first published 1690)  was the first to introduce statistics in politics in his attempt to build a “political arithmetic.” 60   Theodore Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public Life (Princeton University Press 1996). 61   Forecasts and predictions in social sciences and area studies have, of course, strong limitations. See Ariel Colonomos, Sellling the Future:  The Perils of Predicting Global Politics (Oxford University Press 2016). But, within an open space of debate and a pluralistic knowledge society, they can also provide some valuable information. 62  Michael Walzer, Just and Unjust Wars:  A  Moral Argument With Historical Illustrations (Basic Books 1977).

23

232

Proportionality in War as a Political Norm

of civilians, it has also contributed to making us forget the importance of this original goal—​a goal that should orient any normative thinking applied to warfare. Jus in bello and IHL also tend to prevail over jus ad bellum, and, indeed, most of the discussion over proportionality focuses on jus in bello. Some of the reasons for this fall outside the realm of this discussion. However, I want to mention one of them: jus in bello is generally seen as more “objective” than jus ad bellum, as, in the case of proportionality, military advantage should be more easy to evaluate than political objectives that are part of the jus ad bellum calculus. This is largely incorrect for two reasons. First, political objectives are already part of jus in bello, as any military advantage is related to a set of political goals.63 Second, it should be easier to define the political good than it is to define military advantage. There is a relevant difference between the two in terms of epistemic quality. The political good is a crucial question at the core of social sciences and political studies. This is not the case for military advantage: Military experts might raise this issue, but there is hardly any public debate over the concept and its validity. It is therefore more satisfying to rely upon ideas that are tested and are born out of a debate in a relatively open public space of discussion. We find detailed discussions of the various interpretations of proportionality and its variables which stress the paradox of proportionality as “fixed standards assessments reached subjectively”;64 however, we find no serious scholarship on military advantage per se. Indeed, military advantage is always and necessarily contextual. This is what makes the norm of proportionality a communication tool, but it is also one of its great limits as compared to some better elaborated debates about the political good. Any reform of proportionality should seek to render homogenous the variables of the proportionality equation and, the two being related, address the problem of non-​ commensurability. Proportionality is a political norm; insofar as it includes political variables, it also has a political function. We should concentrate our efforts on the definition of proportionality as a political norm that not only limits the use of force but also makes the use of force more transparent and increases deliberation over the use of force. Moreover, within a democratic setting, if the quality of the deliberation on the proportionate use of force increases, this should help bring some limitations to the use of force by targeting harmful or wrong doctrines. The following five principles help to reach these goals. The first three principles are structural and procedural, whereas the final two are guidelines that seek to identify the constitutive variables included in the proportionality calculus and how they should be aggregated.

63   For example, given the ambiguities of IHL and the lack of consensus in the ethics literature, one might ask whether a religious site used by combatants could be the target of an attack. When ruling on this decision, a state would try to assess not only the military advantage that such a decision would enable them to pursue, but also the political consequences and implications, particularly in a context in which religious identity is a key factor in the conflict. In such a case, organizational modes and collective identities would appear as key structuring elements of the proportionality calculus. 64   Newton and May (n 8).

23



Five Principles of Political Proportionality

233

3.1  Structural and procedural variables First, the rule of political proportionality applies to states as collective agents. There is no “reasonable commander” as such without a collective determination of who this commander is and how he or she should act and, to some extent, think, especially in a social context such as the army, where (at least in democracies, and in some authoritarian states as well) the military is subordinated to civil command. This is particularly the case in planned military operations, but also to some extent in self-​defense proportionality judgments. States are defined as systems of interlocking expectations,65 characterized by joint commitments on the part of their members.66 Any such reasonable commander is part of that system. Collective responsibility might be distributive. In a context where the collective of which they are part is responsible for using force disproportionately, individuals may share that responsibility or may not. One might also think about cases in which, entirely on his or her own, a commander decides to bomb indiscriminately a city whose strategic importance does not appear essential in winning the war. How many of those cases can we find? Usually, soldiers are part of a joint and collective dynamic. In such cases, responsibility is not merely individual, or not individual at all, but collective. In the context of today’s conflicts, whether they are characterized as “irregular warfare”67 or asymmetrical warfare, this chapter looks at the majority of cases in which political variables are needed to make proportionality assessments. If, in the context of the war, we find (according to the variables to be set out) that the use of force exerted on the enemy causes great and sometimes irreversible damage without improving the political conditions of those states that are involved in warfare, then the responsibility falls upon the state and not on the individual. Indeed, the responsibility to set a just politics of warfare falls upon the state. Even if individuals possessed the information needed to make such assessments, they would not be part of that chain of responsibility, since they would not have taken part in the initial decisions that led their state into the war and would not have followed the whole process. Let us imagine a situation in which state A is shelling a city in state B. State A’s initial airstrikes are compatible with proportionality. However, at some point, because of what the community in State B has already suffered, subsequent bombings become excessive based on what B’s political community can endure. It is the state that bears the responsibility for this continuum, not the “reasonable commander” assigned to this last mission. Indeed, the excesses lie in the initial decision to strike heavily. However, in some cases, if the “reasonable commander” is perfectly aware of the continuum of the state’s war policy, and if he or she could have chosen a less damaging course of action, then he or she is also responsible. What are the social boundaries of the state as a collective? A state is defined as an acting collective body. As such, it would be far too excessive to include citizens that are not part of the chain of collective action. Therefore, a state that is liable for the excesses of the use of force it employs during warfare includes the government, the military, 65

 Schelling (n 1).

  Gilbert (n 26).

66

  Pfaff (n 31).

67

234

234

Proportionality in War as a Political Norm

and the experts that work for these acting institutions. A coalition of states can also be held responsible and accountable,68 as can an international organization.69 Second, political proportionality is a ratio that compares the consequences of the use of force that affect two or more different political communities, that is, the belligerents within a conflict, one state vs another state, or a coalition of states vs one state or another coalition. Proportionality should also include in its calculus the consequences for states that are not directly part of the conflict but that might be affected by it, as well as environmental consequences to the extent that they are likely to affect different political communities. We have to measure the consequences of the use of force for the cohesion of these political communities and for the possibility for these political communities to be sustainable and autonomous. In this regard, the example of debates about military intervention in Libya is very important. Using force will be legitimate if it saves a political community without crushing another society. Indeed, you are authorized to save your political community and destroy the political community of your opponent—​that is, its regime. For example, in the case of the Second World War, the Nazi regime was destroyed by the Allies, yet German society was able to develop after the war. Culturally and economically, it met the expectations of its members. You could argue that Nazism was destroyed but German society was revived after the War. The norm of proportionality implies some commitment to the future, as it will imply that you take into consideration the value of the future political community of those against whom you are fighting. Third, political proportionality is a measurement in continuous assessment. Proportionality has to be captured in the flow of combat, starting with preparation for the war, and continuing as the conflict unfolds. As such, it ought to give an indication about whether a state has to restrain itself and change its military policy and tactics or whether it is possible to augment the pressure on the enemy by increasing the level of the use of force. Proportionality is a forward-​oriented indicator: It is not only designed as a norm whose purpose is to monitor and sanction behavior, but is also a measurement addressed to one’s political community and to the political community of our adversaries, and it is provided in order to stimulate a debate about the need to pursue the war, decrease pressure on the enemy, or stop the conflict.

3.2  Calculating proportionality Fourth, political proportionality seeks to find a balance between the political necessity for a state to pursue its military strategy, and the necessity to protect the future existence of both political societies. We call this the political/​military balance, and the debate about this balance is set in political (not military) terms, because military objectives depend upon political goals. For example, the targeting of a governmental office is an open question. It might be justified if, for example, there are reasons to

68   Robert Keohane and Ruth Grant, “Accountability and Abuses of Power in World Politics” (2005) 99 Am Pol Sci Rev 29–​43. 69   Allan Buchanan and Robert Keohane, “Toward a Drone Accountability Regime: A Rejoinder” (2015) 29 Eth & Intl Aff 67–​70.

235

Conclusion

235

believe that (a) this will help reach some strategic goals, or (b) that governmental office lacks political support and is an impediment in the furthering of a suitable political process. It is important to differentiate two different forms of responsibility: responsibility for planning the use of force, and responsibility for executing military planning.70 In both cases, and most specifically in the first one, state responsibility is crucial. To the extent that this is possible, ruling over the use of force should include concern for the future of the political community that might emerge from the state against which one is fighting. Such responsibility particularly bears upon the shoulders of strong states, such as Western powers, when they fight states and groups that are necessarily less powerful. You are responsible for the future of those people whose government or political representatives you are fighting against. This should also guide the decisions of states fighting in conflicts where there is less inequality between their different parties. Indeed, for their own benefit, in those cases as well, belligerents ought to have a medium-​term or long-​term vision. Fifth, political proportionality establishes that the negative consequences of the decision to use force must not radically compromise the possibility of a peace or, at least, an agreement between the different parties that ought to follow the cessation of the conflict. We call these the non-​humiliation and self-​preservation clauses. This is also valid if one of the belligerents believes that when it crushes its enemy, the opponent state will disappear in its actual form (the Allies vs Nazi Germany, for example).

4.  Conclusion: The Specificity of Proportionality as a Political Norm Using proportionality defined as a political norm would generate different results than a legal or ethical analysis. There are many reasons to believe these results would be beneficial both at the state and the interstate levels. Using proportionality as a political norm could contribute, through better processes of state accountability, to the improvement of state behavior. Eventually, this would help amend some state practices and could reinforce political cohesion within the international system. One of the goals of proportionality as a political norm is to reform security doctrines. This is not the goal of legal and ethical norms. In this regard, the case of targeted killings is illustrative. Both in law and in ethics, we find an ample literature in what has now become a subfield of its own.71 Unfortunately, this is not the case in political studies. Inspired by critical studies, some authors denounce the practice of targeted killings as a political pathology whose effects are to reinforce political injustice in international politics. Some scholars further characterize targeted killing as the equivalent of a “manhunt,” only justified by “necro-​ethics”72 that dehumanize warfare 70   Hamuthal Esther Hamash, “How Much Too Much Is Too Much? An Examination of the Principle of Jus in Bello Proportionality” (2010) 2 Isr Defense Forces L Rev 103. 71  Among the very latest publications:  on a Drone Accountability Regime, see Buchanan and Keohane (n 69); on drones and the US Constitution, see Martin Flaherty, “The Constitution Follows the Drone: Targeted Killings, Legal Constraints, and Judicial Safeguards” (2015) 38 Harv J L & Pub Poly 21. 72   Grégoire Chamayou, Théorie du drone (La Fabrique 2013).

236

236

Proportionality in War as a Political Norm

by rendering bodies invisible.73 This literature is ideologically biased; it essentially interprets selected portions of political discourses and is poorly empirically informed. Hence, there is a lack of scholarship focusing on the politics of targeted killings as a norm from a political perspective.74 What would be the goal of a normative political approach to the discussion of proportionality in targeted killings? A political approach to targeted killings would stress the long-​term effects of targeted killings as a doctrine. As a doctrine, targeted killing is a norm; it shares at least three characteristics of what constitutes a norm.75 It has become, in Israel and in the US, a regular practice. This practice is now a response to a set of collective expectations in segments of Israeli or American society. Given the recent terrorist attacks in France, this policy is likely to affect that country as well. Targeted killing is also a doctrine with the potential to transform itself into a law. In Israel, it has been scrutinized by the Supreme Court, which has referred to international humanitarian law in arguing that civilians lose their immunity if they use force and participate in violent actions against the citizens of another country. On these three accounts, the norm of targeted killing is revealed to be highly problematic, precisely from the perspective of proportionality. There is no clear-​cut evidence that the recurrent use of targeted killings caused the decrease in the terrorist attacks that were predominant during the second intifada. On the contrary, security specialists have identified the wall between Israel and Palestinian territories as the explanatory variable in the decreased attacks.76 Targeted killings are rather popular in Israel, and although other security measures—​such as, for example, house demolitions—​have spurred ample criticism, this is not the case for targeted killings. As such, targeted killings echo the desire for revenge. It must be noted that revenge jeopardizes any further attempt to negotiate peace. From a legal perspective, although the ruling of the Supreme Court builds upon solid reasoning, the consequences of legally authorizing targeted killings are politically problematic at the international level. Israel has set a precedent and served as a laboratory for the US, and in the aftermath of September 11 the US developed a targeted killing policy even more problematic than Israel’s both from a legal and a political perspective. US drone policy considerably weakens the norm of sovereignty without finding any remedy to the harm that it creates by weakening that rule. The drone policy reinforces the political inequality that already prevails in international politics by striking on the territory of those states 73   Thomas Gregory, “Drones, Targeted Killings and the Limitations of International Law” (2015) 9 Intl Pol Sociology 197–​212. 74   There are exceptions, however: see Michael Gross, “Fighting by Other Means in the Mideast: A Critical Analysis of Israel’s Assassination Policy” (2003) 51 Political Stud 350–​68. Gross points at the consequences for Palestinian society of Israel’s targeted killings policy. The precision of those killings relies upon the quality of information provided by Palestinian informants. This creates distrust within Palestinian society. Ultimately, this will be an obstacle in any peace negotiation with Israel. On collective responsibility in drone warfare see also Chantal Meloni, “State and Individual Responsibility for Targeted Killings by Drones,” in Ezio di Nucci and Filippo Santoni de Sio (eds) Drones and Responsibility (Routledge 2016) ch 2. 75   Jack Gibbs, “Norms:  The Problem of Definition and Classification” (1965) 70 Am J of Sociology 586–​94. 76   Edward Kaplan, Alex Mintz, and Shaul Mishal, “Tactical Prevention of Suicide Bombings in Israel” (2006) 36 Interfaces 553–​61.

273

Conclusion

237

that are already the least powerful in international politics. It also reinforces political domination, as targeted killing rules are set unilaterally by strong states. Applying proportionality as a political norm would lead to the rejection of targeted killing as a norm. However, if this measure were not to be applied systematically and therefore were not to be a norm, ethical criteria could be applied to assess what would remain exceptional decisions. There could be some strong political and military reasons to authorize a killing, in cases that are rather exceptional and where it appears essential to eliminate a person whose role is determinant in an imminent attack that will very likely result in the deaths of civilians. Targeted killings ought not to be legalized, otherwise they would become a norm. As a complement to that moral assessment, it is essential to discuss the collective responsibility of those governmental units and groups that have presided over specific decisions to target individuals whom they deem to be immediate security threats. Proportionality as a political norm has three fundamental functions that differentiate it from ethical or legal approaches. First, the purpose of proportionality as a political norm is political as, when needed, it is meant to amend doctrines that are inappropriate and curb certain state practices. Second, it is political to the extent that it targets political bodies and is an essential tool in a democratic public sphere where the use of force ought to be debated. Finally, it is meant to facilitate future interactions between former belligerents once the conflict ends, as belligerents have to anticipate the future political problems that will be the consequence of their use of force. As such, within an international society of states, proportionality is meant to reinforce the political ties between its constitutive members.

238

239

PA RT   I I I C OM BATA NC Y A N D T H E   VA LU E OF   L I V E S I N   A S Y M M E T R IC C ON F L IC T

240

214

10 The Equality of Combatants in Asymmetric War Claire Finkelstein

1. Introduction With the current asymmetric war fought against Islamic extremists, the nature of warfare has undergone dramatic changes in identity. War has lost its location, and the idea of a battlefield appears to be a thing of the past. War is fought on city streets, in homes, in public buildings such as hospitals and schools. The threat of cyberwar underscores the ultimate loss of location in war: The war of the future will be fought in cyberwar, where the weapons of choice are personal computers, smartphones, internet servers, twitter accounts, and the like. War has also lost its timeframe. Wars used to be declared, marking the beginning of the conflict, and they were settled with a peace treaty or armistice agreement, thus marking the war’s end. Wars are officially declared only rarely in current combat, and if the conflict in the Gulf is any indication, they no longer conclude at all. Instead, they seamlessly morph from one sustained combat to another, and we have come to expect that wars will stretch on into the indefinite future, fading away only as the casus belli become eclipsed by shifting priorities and evolving conditions. Finally, war has lost its distinctive actors. While war used to be reserved for professional soldiers organized into standing armies, trained in techniques of combat that were specific to military encounters, today’s wars are fought with the assistance of civilian converts in street clothes, even children. Wars are not only fought by civilians; they are fought in and among civilian populations. War used to be neatly separated from civilians, and soldiers, wearing distinctive clothing in the form of a uniform, were readily identifiable as distinct from ordinary local civilians. Uniforms were once a requirement of war, since in their absence it would be nearly impossible to distinguish one set of combatants from the other, as well as combatants from non-​combatants.1 Now the dramatis personae of war blend in seamlessly with the class of persons they are charged with protecting, and the methods they employ are difficult to distinguish from an escalated street fight. War increasingly blends in with everyday life, while everyday life is shot through with military-​style violence. With this loss in the distinctiveness of war lies a challenge for the law of war. Several of the core principles of war, whose fulfillment is needed to make the fighting of wars both just and constrained by law, depend on the condition of war being separated from peace-​time existence. For example, in order to ask whether a contemplated   Christopher Kutz, “The Difference that Uniforms Make” (2005) 33 Phil & Pub Aff 148–​80.

1

The Equality of Lives in War and the Principle of Distinction. Claire Finkelstein. © Claire Finkelstein, 2017. Published 2017 by Oxford University Press.

24

242

The Equality of Combatants in Asymmetric War

military action is permissible or impermissible, based on the anticipated collateral damage and risks to protected populations, it must be possible to identify the individuals whose lives are at risk as civilians. Danger to combatant lives is not collateral damage, but rather intended harm. Thus the principle of proportionality, which requires that actions in war inflict no more damage to civilian populations than is the product of reasonable and proportionate balancing of military objectives against unwanted harm, cannot be applied in the absence of the ability to distinguish combatants from civilians. In the present configuration of asymmetric war, and given the effacing of boundaries between war and peace, it is difficult to identify the relevant categories of persons with any degree of certainty. It is not only the principle of proportionality, however, that is impacted by this blurring of the military and the civilian domains. As the above discussion suggests, even more critical to just war theory than proportionality is the principle of distinction, according to which combatants and civilians are differentiated with regard to their status. Distinction is not only a bedrock principle in its own right; it is essential for applying all other principles in war. It is necessary for distinguishing the principles of war from the principles of law enforcement; it is necessary to know how to apply the principle of distinction; and it is even important for applying the most fundamental principle of war—​the principle of military necessity. What is distinctive about being in a state of war? From a moral and legal perspective, it is the fact that the ordinary prohibition against intentional killing of innocents is lifted with regard to military persons. This means that combatants are targetable at all moments of an armed conflict, regardless of the immediate danger they pose, by virtue of their status as members of the armed forces of a state that is in conflict with another state. Traditionally, this implies that they are not only targetable when they are engaging in threatening acts. Because they are targetable by virtue of their identity alone, and because they never lose that identity in a period of armed conflict, they become continuously targetable, meaning that they can be lawfully targeted when they are sleeping, watching a movie, taking a shower, and so on, as well as when they are threatening the lives of opposing combatants or civilians. Conversely, civilians are never targetable, and that is dictated by their status as non-​military individuals, regardless of whose civilians they are. Thus German civilians during the Second World War were equally entitled to immunity from targeting by Allied forces, despite the fact that many were supportive of Hitler’s rise to power and thus arguably bore at least some moral responsibility for his illegal and immoral war. Their status as civilians, however, means that they were not directly targetable, a fact that many believe calls into question some of the Allied practices during the war, such as the aerial bombardment of Dresden and the release of nuclear weapons over Hiroshima and Nagasaki. Such actions are best understood as targeting civilians, but where they had military targets as their ostensible aim, the actions taken are difficult to defend from the standpoint of proportionality. Thus under one interpretation the actions violate the principle of distinction because they target civilian populations; under another interpretation they violate proportionality because they impose undue risk on civilians relative to the military aims in question. Under either interpretation, it is critical to be able to distinguish combatants

243

Introduction

243

from civilians—​a task that has become increasingly challenging under conditions of asymmetric war. Several recent cases have brought the issue of the status of so-​called unlawful combatants particularly to the fore, in particular those of Irek Hamedullin and Ibrahim Harun, members of the Taliban and al-​Qaeda, respectively. Both tried to kill and otherwise attack American service members in Afghanistan and are now undergoing criminal trials for a variety of federal crimes, including conspiracy to violate federal terrorist laws. Both argue that their actions fall within combatant immunity, given the position of the US that they are targetable as unlawful combatants against it.2 These cases will provide important tests for the theory of unlawful combatancy and the status of violent non-​state actors in the present conflict. Since their activities took place squarely within the present zone of conflict, namely Iraq and Afghanistan, where we believe we are uncontroversially in an conflict, ​by our own lights these individuals should have the same combatant status, and the same immunity, that we are claiming for US and allied combatants in those same regions. Indeed, one would think it follows seamlessly from our assertion that members of ISIS and al-​Qaeda are continuously targetable because we are in an armed conflict with their organizations, that they are entitled to target us on the same grounds. Combatant immunity is but a straightforward extension of this same logic. The fact that something as fundamental as combatant immunity is still the subject of great debate and unclarity, this many years into the war and past the officially declared end to the wars in Afghanistan (in 2014) and Iraq (in 2011), suggests that our underlying theory of war and the principle of distinction that governs treatment of combatants on and off the battlefield has not been adequately clarified. In Section 2, I will consider in greater detail the principle of the moral equality of combatants in order to understand why the traditional account of the principle of distinction entails moral equality, based on status. In Section 3 I will address the challenge to the principle of distinction posed by asymmetric warfare, particularly when it occurs outside traditional zones of conflict, and will trace the implications of the lack of that principle’s application to contemporary warfare. I will consider some of the solutions to this difficulty posed by others and consider why such approaches may not be availing. In Section 4 I will consider the concept that is arguably at the root of the problem, namely, the idea of role responsibility. As we shall see, the notion of role responsibility, where it applies, has the effect of isolating the rights and duties that pertain to the actor from other segments of morality. It thus enables morality to harbor inconsistent principles, meaning that two principles of right may conflict with one another across the various domains to which they apply. Once we accept the concept of roles as they relate to moral duties, we then have a way to make sense of the moral equality thesis as linked to state status that will help us understand why matters must be different in asymmetric war. In Section 5, I will lay out what I take to be the correct understanding of combatancy with regard to non-​state actors and consider how this 2   See Eric Tucker, “Taliban Fighter Case Stirs Question of Law of Armed Conflict” (2016) Associated Press, November 28; Federal Indictment F.  2011RO1313, United States District Court for the Eastern District of New York, filed 2012.

42

The Equality of Combatants in Asymmetric War

244

would impact our current rules regarding engagement with violent non-​state actors both in and outside zones of conflict. In Section 6, I offer some concluding thoughts.

2.  The Moral Equality Thesis Once we accept the principle of distinction as a status-​based concept, it is difficult to reject the associated principle that combatants on all sides of a conflict have an equal right to kill. Combatants are equal before the law, even if they are not equally morally worthy in life. They are equal with regard to the permissibility of their actions, though we may draw different judgments about their character. In his famous book Just and Unjust Wars, Michael Walzer calls this doctrine the thesis of the “moral equality of combatants,” meaning that in the eyes of the law, combatants on both sides of the conflict are equally permitted to kill.3 It is a secondary implication that all civilian bystanders, who do not directly engage in hostilities, also have equal immunity to attack, regardless of whose civilians they are. It is important to distinguish two different senses of “equality” that are at issue here. Normally when we think about “moral equality” we have in mind the equal moral worth of the individuals. This means that they are equally morally commendable, meaning that they are equally virtuous. In a utilitarian sense, we might say that their lives are equally worth saving from the standpoint of society. The “moral equality of combatants,” however, refers to a different kind of equality: It is the kind of equality we reference when we say that two people have an equal right to do or to have something. If my right to vote and your right to vote are equal, that means that the government must not burden my right to vote in a way that will dilute my vote relative to yours. Similarly, if my right to defend my life is equal to your right to defend your life, the fact that I may be lacking in virtue does not legally or morally impair the strength of my right to act in my own defense, or to have others act in my defense. Thus when we say that opposing combatants in war are morally equal, what we mean is that they have an equal right to kill. The extension of such a right has no bearing on the virtue or moral worth of the cause in the name of which each combatant kills. The rejection of the moral equality of combatants that is put forward by McMahan and others appears to trade on a fundamental misunderstanding between these two kinds of “moral worth.” It is the moral permissibility of acting, based on an equal right to act, which is at issue in the moral equality thesis, not the equal moral worth tout court of combatants. An example may illuminate the distinction and its application in war. Consider a German general under the Third Reich. Would such a general have a lesser duty to act on behalf of his own troops and attempt to minimize casualties in his ranks because these troops were supporting an unjust cause? This would be a curious way to reason in war, and it would make the understanding of military command and hierarchy incoherent. Alternatively, would an American commander during the Second World War have a lesser duty to spare enemy combatant lives because those troops were supporting an unjust cause? Or any greater duty to kill them based on the injustice of

  Michael Walzer, Just and Unjust Wars (Basic Books 2006).

3

245



The Moral Equality Thesis

245

their cause? This would make little sense. The general’s duty to kill enemy combatants rests entirely on what is necessary to win the war, rather than on the merits of the task. Any additional killing of enemies beyond what is required for success would constitute brutality, just as any killing of enemy combatants that fell below the level required for victory would represent an inadequate war effort and, if intentional, would be a dereliction of duty. The required level of killing manifestly has nothing to do with the cause for which either side is fighting. Rather, it has everything to do with the level of harm that must be inflicted in order to meet military objectives, where the military objectives are determined by the purpose of the war, viewed at a great remove from operational decisions. Judged in this light, the recent objections to the moral equality thesis that have been leveled by military scholars appear to miss their mark. These criticisms are of a general nature, unrelated to the intersection of the moral equality thesis and asymmetric war. For example, an objection to the status-​based approach is that it fails to adjust targetability to a person’s actual dangerousness, and thus makes combatants targetable whether or not they are posing a danger. Gabriella Blum has objected to the idea that enemy combatants are targetable on the basis of their status as agents of the state. In addition, she points out, we should not suppose that only soldiers should be considered state agents. Why not see voters who elected their political leaders as equally linked to the state? And if the concept of a state agent is ambiguous, why not focus on what has greater significance overall, namely the threat that an individual poses to the lives of others at a given moment in time? Furthermore, she argues, there is no reason to suppose that soldier status should entail that there are no limitations on when or whether to kill individuals with that status.4 If we are concerned about loss of life in other contexts, why not see the lives of enemy soldiers as worth preserving as well, to the extent that doing so does not conflict with the military’s ability to protect itself and the country? Following Larry May,5 Blum suggests that the permissibility of killing a combatant in war should be thought of as a “reputable presumption,” whose legitimacy must be determined afresh on a case-​by-​case basis. However, from the standpoint of the understanding of the moral equality thesis I have just suggested, Blum’s criticism is unavailing. If what the traditional law of war maintains is that combatants have an equal right to kill, based on the need to meet military objectives regardless of their moral worth, then it does not matter whether that right is exercised in a way that is sensitive to actual dangerousness: The right to kill, after all, is not predicated on the dangerousness of the enemy target, and thus it is not relevant whether the right is exercised in a way that takes the level of dangerousness into account. This is of course not the case with the right to self-​defense, where actual dangerousness in the moment is of great relevance to the permissibility of the action (or, rather, reasonably perceived dangerousness). But the right to kill in war is 4   Blum points out that the only restrictions on killing combatants stem from the principle of proportionality’s concern with the use of certain kinds of weapons, such as chemical weapons. But such restrictions are relatively minimal when one compares them to the restrictions one would expect to see in a system predicated on dangerousness. See Gabriella Blum, “The Dispensable Lives of Soldiers” (2010) 2 J Legal Analysis 117, reprinted in this volume. 5   Larry May, War Crimes and Just War (Cambridge University Press 2007).

246

246

The Equality of Combatants in Asymmetric War

not a right based on the dangerousness of the other side, which is why it is permissible to kill in war even when the other side is in retreat, as long as they have not surrendered and thus are hors de combat. Similarly, from that perspective, it does not matter whether the lives of enemy soldiers are worth preserving. In a more general sense, there might be great value to the lives that are lost in battle. But the worth of the lives in question is once again not the basis for the grant of permission to kill in war, and thus it makes no sense to think of the right to kill in combat as a rebuttable presumption based on the threat posed by the combatant. Another line of attack on the moral equality thesis comes from the just war tradition and Catholic thought. Jeff McMahan, for example, following what he takes to be the lead of Elizabeth Anscombe, has been highly critical of the moral equality thesis.6 McMahan’s emphatic rejection of that thesis is linked to his rejection of another distinction, namely that between jus in bello and jus ad bellum, or justice in the waging of war versus the justice of going to war in the first place. For McMahan, there is only one zone of moral judgment in war, common to all participants, whatever their status or role, and that is the same moral judgment we apply to general moral questions outside of war. There is no way to wage war justly if the cause for which one is at war is itself unjust. Once again, however, justice in the waging of war is not about the underlying merits of one’s actions: It is about the permissibility of one’s actions based on the right to kill. If a combatant kills in exercise of a right to kill, he is acting justly; if he acts in violation of that right, he is acting unjustly. As we know with rights from other contexts, to say someone acts within his rights does not mean he is not acting wrongly. One has a right to act wrongly in many contexts. But to say one acts with right, even if one is acting wrongly, means one is acting permissibly. And that is what is at issue in the moral equality thesis. In my view, Walzer is correct to think that denying the distinction between jus in bello and jus ad bellum will destroy the very premise of conducting war according to rules. But McMahan denies that adherence to the moral equality thesis is necessary to ensure that conduct in war will be governed by rules. He maintains that the underlying justice of the war can serve as a guide to the conduct that is permissible in war, without having to articulate the latter according to a different set of principles according to which combatants have equal moral status. Elsewhere I have defended the traditional moral equality thesis against arguments of these sorts. Focusing specifically on McMahan’s criticisms, I have tried to show that McMahan’s rejection of that thesis rests on a fundamental misconception about the nature of the equality thesis in the context of war.7 While it is not necessary to repeat those arguments here, it will be relevant to the current chapter to note that McMahan’s appeal to general, undifferentiated principles of moral responsibility has more traction where the role of the actor is less determinative. In war, however, there are good reasons to cleave to the traditional approach and treat the status of combatants as the essential factor that establishes the permissibility of killing in war. The argument I shall 6   Jeff McMahan, Killing in War (Oxford University Press 2009). In my view, however, McMahan misunderstands Anscombe’s view on this subject and underestimates the degree to which Anscombe’s account actually supports the traditional approach to the principle of distinction. 7   Claire Finkelstein, “Killing in War and the Moral Equality Thesis” (2016) 32 Social Phil & Poly 184.

247



The Challenge of Non-State Actors

247

make is that status is a reflection of role, and it is by virtue of their role as the officially designated defenders of the country that combatants are permitted to kill one another, regardless of the moral posture of the state that confers that status on them. This makes the position of violent non-​state actors admittedly puzzling, and the question for those of us who cleave to the traditional view of distinction is whether we can continue to adhere to that view in the context of asymmetric war, or whether we will agree with the critics of the traditional view in that particular context. At the very least we must concede that the academic criticisms of the moral equality thesis find new relevance in the context of asymmetric conflict. While the challenges to moral equality from the standpoint of the practical application of that concept in the war on terror raise different issues than those raised by academic commentators, the latter arguments have new traction in this context. It is not that we could not apply the moral equality thesis in asymmetric war, but rather that the implications of that thesis are complex in this new context. Before we give up on the age-​old framework of just war theory, we should at least consider what a rigorous application of traditional principles would look like in applied asymmetric war.

3.  The Challenge of Non-​State Actors and the Concept of Unlawful Combatancy What is the right way to think of members of al-​Qaeda, the Taliban, and ISIS relative to the traditional law of war? On a traditional approach, there are two ways to conceive of violent non-​state actors: we can think of them as combatants, in the traditional sense, or we can think of them as non-​military criminals—​individuals who are acting without any privilege of any sort and who should be criminally convicted rather than captured. On a traditional approach, as combatants, violent non-​state actors would be continuously targetable, but they would also enjoy combatant immunity from prosecution when they target our soldiers. They would also be entitled to POW status in case of capture, as well as repatriation at the cessation of hostilities. They would be “morally equal” with respect to our soldiers, meaning that at least within the zone of hostilities, it would be equally permissible for them to target our soldiers as for us to target them. While unattractive in practice, conceptually this is not an impossible position to adopt. According to this view, the parties would be equal in the eyes of the law of war, not because the equal permissibility of their acts reflects their true equal moral justifiability, but, as we saw in Section 1, because they have an equal right to kill. As McMahan forcefully points out, we are naturally inclined to make highly variable judgments of individual soldiers who, say, volunteer to serve in the military of an expansionist dictator to fight an offensive war of aggression, versus an individual who volunteers to fight in a military responding defensively to an unjustified attack.8 The thesis that the parties have an equal right to kill one another would have been 8   Whether any differential judgment here would apply equally to members of these respective armed forces who were drafted to serve is a fascinating but lengthy question, and one which I  cannot do justice here.

248

248

The Equality of Combatants in Asymmetric War

just as uncomfortable to articulate during the Second World War, where German and American soldiers killed one another with equal permissibility. What, then, could confer that equal permissibility, when it flies so in the face of our understanding of moral worth? Perhaps another way to ask the question is to ask why we are not concerned about underlying moral worth in this case, and why the permission to kill is granted on the basis of a formal right, rather than on the basis of an assessment of the benefit to the war effort of doing so. What makes the acts of opposing combatants equally permissible is that they are equally authorized by their respective states to exercise the sovereignty of that state. It is ultimately the equality of states before the international community that establishes the equality of their actors, and hence the equal permissibility of (legal) acts in which they engage in war. While states are authorized to act on behalf of their citizens, ultimately individuals are authorized to act on behalf of their states because states can only act through the behavior of their agents. In such instances, the state’s designees act not on the basis of their private opinions as citizens, but as a proxy for the state that is authorized to act on behalf of the people themselves. The role assumed by the soldier, however, is a formal one of representation. His own guilt or innocence is, for this reason, entirely beside the point. In asymmetric war, matters are different. Non-​state actors in asymmetric war lack the connection with a sovereign entity that would give them the entitlement to claim equal status with state actors. Yet asymmetric war may be every bit as organized and dictated by a command structure as traditional state-​based conflicts. Moreover, there is no reason to suppose the risk to our combatants is any less pronounced than conflict with state actors would be. It seems odd to suppose that the rules on targetability, which assist our combatants in protecting themselves against our enemies, would not be applicable to an intense and dangerous conflict that placed our combatants at great risk. Thus at least a part of the point of the rules governing targetability must be to allow combatants to defend themselves without requiring the stringent criteria for self-​defense to be met. This creates a dilemma, of both theoretical and practical dimensions: how to interpret the traditional principle of distinction, and its associated moral equality thesis, in the context of asymmetric war. The principle of distinction and its equality implications for armed conflict have been clearly understood and have rarely been questioned in the history of warfare. The treatment of state-​assigned military agents as having a special status while in combat in defense of the nation has gone hand-​in-​hand with the idea that combatants have a special status for as long as there has been the concept of the state. Wars are fought between and among countries; individual soldiers are but the arms and legs of their states. The moral equality of soldiers is thus fundamentally a thesis about the limitations of soldiers’ personal responsibility for the acts of their states. Political leaders make the policies and choose when and whether to go to war. Soldiers carry out their bidding. The fundamental equality of soldiers in wartime, then, makes sense as a thesis that emanates from the nature of the soldier’s role: Because the soldier is limited to carrying out the policies of his country, he is not responsible for the content of those policies.

249



The Challenge of Non-State Actors

249

In asymmetric war, where that role is absent, labeling violent non-​state actors as full combatants is unattractive for multiple reasons. First, as we have seen, it would commit us to recognizing combatant immunity for both sides in the conflict. Second, it would require us to accord members of the Taliban, al-​Qaeda, and ISIS POW status in case of capture, and finally, it would require repatriation upon cessation of hostilities, which—​at least in the case of the most dangerous terrorists—​we are not willing to allow, given the ongoing threat that terrorism represents. Applying the traditional framework, the other option is to treat violent non-​state actors as civilians engaging in hostilities. In Section 4 we will consider the implications of such an approach. As we shall see, this is basically the approach we have taken thus far outside zones of hostility, such as in Yemen, Syria, Somalia, and elsewhere. The questions we must ask are: First, what is the conceptual framework we are employing toward terrorists in areas outside the zone of hostilities, and second, should this framework be applied within zones of hostilities as well, namely in Afghanistan and Iraq? The concept of combatancy, where government actors carry out a campaign of national defense they did not author, suggests a basis for distinguishing between two levels of justice. As mentioned above, there is jus in bello, meaning the rules to which participants in the war must adhere in order for their acts to be considered legitimate under the theory of war. On the other hand, there is jus ad bellum, which refers to the rules according to which it is legitimate for a country to go to war in the first place. The first set of rules is directed toward combatants actually engaging in battle and is designed to regulate their conduct in that context, based on their status as state combatants. The second is directed toward the political leaders who determine when to go to war, based on the aims of war and the theory under which they claim that an act of war would be appropriate. Where state actors are involved, the principles of responsibility for acts of war are traditionally distinct from the principles by which we gauge the justice of a decision to go to war in practice as well as in conception. Military conflict with non-​state actors is a different matter. For unlawful combatants, the basis for justifying military action cannot be status-​based, as it is with lawful, governmental actors, because there is no official function or role on which to base the identification of such status. The US has been in the vanguard of selectively extending the status-​based reasoning of traditional just war theory to non-​state actors, but this has been done by fiat and reasoning by analogy, not because it was compelled by the logic of the situation. For this reason, there has also been backward revision of the concept of combatancy itself—​a shift in categories based on the felt need to include individuals within its scope who cannot be easily identified according to their role. With the pressures of so-​called asymmetric war, in which the US and other state militaries are fighting non-​state actors organized into powerful terrorist networks, the status of the enemy is no longer clear. Consider the areas where combatants themselves no longer function as combatants, and where status, even on the part of state actors, can be altered by unusual circumstances. First, an injured combatant will often be said to be hors de combat, which means that he is no longer targetable, and also that he lacks the right to target others

250

250

The Equality of Combatants in Asymmetric War

while in that state.9 Similarly, although a civilian is never targetable, he becomes targetable, and thus effectively loses his civilian status, if he directly engages in hostilities. In that case, he has turned himself into a legitimate target for the other side, though his targetability lasts only as long as his belligerent activity. Unlike a true combatant, he reverts to civilian status as soon as his threatening activity is over. Second, the law of war has long recognized that civilians who engage in hostilities do take on some of the characteristics of true combatants, depending on their degree of involvement in the war. Thus, as mentioned above, a civilian who fights alongside combatants makes himself targetable as long as his aggressive activities continue. He reverts to civilian status once he ceases his engagement. But there are other degrees of involvement with hostilities, and these have raised difficult questions for military lawyers. Is it permissible to target those who issue military supplies to active belligerents? If so, then what about those who fund the civilians who provide material support to those engaged in active hostilities? At some point as we move across the scale of civilian engagement with armed conflict, we reach the passive but enthusiastic supporter, one who initiated a war of aggression in which various countries are now engaged. And this, as we pointed out above, goes well beyond the scope of what would make a civilian targetable under the law of war. While the US has failed to identify the complexities of treating violent non-​state actors as unlawful combatants, we have been willing to confront at least some of the challenges outside of traditional zones of hostility. The problem has arisen acutely with respect to the permissibility of targeted killing in this context, and the question of when and whether there is a duty to capture before one kills. In order to clarify the law on this question, the Obama administration released a set of presidential guidelines (PPG) that delineate when it is permissible to kill in such cases. Many aspects of the PPG resemble the rules for the use of force in a civil law enforcement context: Harm must be “imminent” and capture must be “infeasible” before an individual can be killed under the PPG. The result is a stark difference under the Law of Armed Combat (LOAC) between how we treat the same individual inside versus outside zones of hostilities: For example, it is permissible to target and kill an individual who is not aggressing against you in a zone of hostilities, but the same individual, who is otherwise a legitimate target in war, cannot be targeted when he leaves a zone of armed conflict and enters a country with which we are not at war. In those rare cases in which the individual involved is an American citizen, the problematic nature of the underlying status of unlawful combatants is particularly stark. Because of the perceived failure of the notion of combatancy in application to terroristic groups such as ISIS and al-​Qaeda, combined with a simultaneous desire to justify combatant-​targeting of these groups, there has been an effort to revise the concept of combatancy in order to extend it to non-​state actors. Law professors appear to be 9   See Rule 47 of International Humanitarian Law. An individual who is in the power of an adverse party, defenseless because of unconsciousness, shipwreck, wounds or sickness, or who clearly expresses an intention to surrender, is hors de combat, “provided he or she abstains from any hostile act and does not attempt to escape.” Thus Elor Azaria, an Israeli soldier who shot at a wounded Palestinian as the latter lay on the ground, is now undergoing trial for manslaughter. Supporters of Azaria say that this rule should not apply to terrorists.

215



The Challenge of Non-State Actors

251

first in line to subscribe to this approach, and policymakers have been all too grateful to be able to follow suit. A common strategy for doing this is to focus more on the operational structure of the relevant group to which the non-​state actor belongs, rather than the identity of that group. Under this approach, any individual engaged in armed conflict whose role is defined in a hierarchical command structure counts as a combatant, whether or not that command structure has a formal link to a sovereign state. Jens Ohlin, for example, argues that the correct approach to the concept of combatancy is to think of it as a “functionalist” category: If someone functions within an organization in the way that traditional combatants do in the state military hierarchy, then they should count as full-​blown combatants for the purpose of armed conflict. Ohlin writes that we need to find the “functional equivalent” of killing an enemy combatant on the battlefield in application to the targeted killing of terrorists: “The functional equivalent in cases of targeted killings would link the individual to the collective terrorist group if the individual is a card-​carrying member of a terrorist organization or a self-​declared enemy of the United States.”10 He goes on to explain that an individual terrorist bears the right relationship to the terrorist organization for purposes of combatancy if the organization is hierarchically organized, the individual in question is given orders or instructions to act on behalf of that organization, and there is a common ideology or group that unites the members of that organization and makes them into a single entity. Convenient as a middle ground would be for the laws of war’s ability to absorb the non-​state terrorist into their jurisprudence, the functionalist approach Ohlin proposes is arguably problematic. The approach rejects the traditional basis for the concept of combatancy, which has to do with the identity of the state as the organization to which the combatant is attached. The point is not that the concept of combatancy identifies individuals who act as part of a group, any group, as long as that group is sufficiently large and hierarchically organized, and the actions of its members reflect the ideology of the group. If these were the criteria for combatancy, we would be unable to distinguish drug lords from foreign militaries and the meaning of combatant status would be significantly altered. What is significant about the fact that a combatant acts in the name of a state in the traditional account is that it is a politically recognized, autonomous, and sovereign entity, one that possesses the same rights and entitlements as other sovereign entities with whom it might have disagreements. States are special and different from other collective entities in multiple ways, but one which is of particularly great importance is the concept of state sovereignty. Since states do not rule each other, and there is little in the way of common law that governs relations among states, war is the last resort for autonomous entities that have no common judge or other sovereign to whom they can appeal to settle their differences. Within a given state, the matter is entirely different: Where, as Hobbes would say, there is “a common power to keep men in awe,” 10   See Jens David Ohlin, “Targeting Co-​Belligerents” in Claire Finkelstein, Jens David Ohlin, and Andrew Altman (eds), Targeted Killings: Law and Morality in an Asymmetrical World (Oxford University Press 2012) 60.

25

The Equality of Combatants in Asymmetric War

252

there is no need in theory to resort to war. The law, as implemented by the sovereign under whose power it falls, provides the answers, and any resort to force in that context is not war but crime. Accounts like the functionalist approach that attempt to find a middle ground between combatancy and criminal responsibility, or that more particularly attempt to bring terrorism within the fold of combatancy by revising the definition of the latter, create the risk of weakening the limits on war and, with them, the prerogatives of civil authority within a given legal regime. The concept of combatancy is integrally linked to the concept of “armed conflict.” Where there is armed conflict there are combatants, and vice versa. Thus the functionalist view of combatancy, insofar as it broadens that concept, also broadens the concept of armed conflict. There are grave risks, however, to expanding the concept of armed conflict. As discussed in Section 1, even under a traditional formulation, that notion is beginning to lose its boundaries—​we have armed conflicts that know no distinct beginning, middle, or end, and that increasingly represent a permanent state of affairs. With a further loosening of the criteria for what counts as armed conflict, we risk losing the distinctiveness of war entirely, and with it the distinctiveness of the rules of war. It is also important to point out that adherence to the rule of law in war, as elsewhere, means that it is our legal categories that constrain our determinations of what is permissible and what is not. Thus in war, concepts such as “armed conflict,” “combatancy,” “civilian,” “proportionality,” etc, must constrain what counts as permissible conduct in war. It is always a risk to the rule of law when we begin altering our concepts to what we hope to render permissible. This point is a basic one, but lack of fidelity to it abounds, particularly in the domain of national security. Altering the use of normative terms and the concepts associated with them does an end-​run around legal constraints, including the legal constraint that sets out fundamental norms and processes of change. The law contains sanctioned modalities of change, as HLA Hart so eloquently explained when he identified the distinction between primary and secondary rules,11 and change in legal relations that does not observe the rules of change is itself lawless. This is the risk of altering the concepts associated with words as a method of effectuating legal adjustments in our normative relations.

4.  Combatancy and the Importance of Role Responsibility As we saw above, one of the central arguments for the moral equality of combatants is that it helps to preserve the fundamental distinction between jus in bello and jus ad bellum. But this admittedly only pushes the question back a level, and returns us to the question of state agency Gabriella Blum asked in her influential article on the nature of combatancy which we considered earlier: Why does the individual solider not bear either moral or legal responsibility for the policies of his country? The political leaders decide whether and how to go to war; the individual members of the armed forces carry out those decisions. In theory, it is not for soldiers to question the judgment of   See H L A Hart, The Concept of Law (Oxford University Press 1961) ch V.

11

235



Importance of Role Responsibility

253

their political superiors. But why not? Why should morality be segmented and immunize anyone from the moral implications of his act? Why not say, with Blum and McMahan, that the fact that one acts in the name of a state makes no difference to one’s ultimate responsibility? If you follow your leaders into an aggressive, illegal war, you are as responsible for it as they are, provided you understood the acts you were performing and had the opportunity to conform your behavior to the law. At the other extreme, we could say that anyone who carries out a function as part of a group bears no individual responsibility for the acts he performs. Thus the soldier who acts in the name of the state does not act as an autonomous decision maker. It is instead the group that acts, though the group can act only through the conduct of its members. It is my contention that the traditional view strikes the right balance between these conflicting extremes. The individual soldier does not bear responsibility for the acts of his superiors because it is his role to implement their decisions. However, a violent non-​state entity, such as ISIS, cannot confer such immunity on its members, as the organization itself is not legitimate. Role immunity stems from legitimacy: That would explain why membership in a criminal organization can only inculpate, whereas membership in a state in an official capacity can exculpate. Once again, the exception may shed light on the rule: The soldier who receives an illegal order, and who is aware of the illegality, must not act in blind obedience to the dictates of his superiors. He must report his concern up the chain of command, and should refuse to act on the order in question. He rejects an order at his peril, however: If his belief in the illegality of the order should prove incorrect, he will have no defense to insubordination based on “reasonable suspicion of illegality.” He must get it right. This reinforces the connection between the concept of immunity and that of legitimacy: The state has a monopoly that effectively gives rise to a presumption of legality. The individual who acts on the basis of his state-​sanctioned role benefits from that presumption and may determine his own actions in conjunction with his state-​ sanctioned mandate. Awareness of the illegality of an order, however, will reverse that presumption. Now the soldier acts as an individual if he proceeds. The conferral of legitimacy on his actions cannot function here. He must face moral judgment of his actions without intermediary, and hence is responsible for the full character of his acts. This is effectively the position of the members of ISIS or al-​Qaeda. Because the group in whose name he acts is illegitimate, he must face the moral quality of his actions on his own merits. Like the criminal who participates in a conspiracy to commit a group crime, the collective character of his action only heightens his responsibility; it cannot diminish it. The status of the combatant in war, and his relationship to the state, are similar to the state executioner’s relationship to his political superiors. Most notably, the executioner is not guilty of murder when he carries out the execution of a duly convicted criminal sentenced to death. It is not his judgment about the act of killing that is of relevance in determining the character of the executioner’s answer. He is permitted to benefit from the presumption of his country with regard to the moral quality of his act. If he believes the act he is about to perform is illegal, he loses the immunity his state function confers. In the absence of such a belief, he is entitled to rely on

254

254

The Equality of Combatants in Asymmetric War

the legality and morality of the state’s official command and his duty to execute duly issued orders. Note, then, that the executioner’s immunity to punishment does not hang on the justifiability of the death penalty, and so it is not the moral justifiability of the policy in the name of which he acts that allows him to claim a justification for his individual act. Assume the death penalty is morally indefensible, and that the state does wrong in putting a criminal convicted of even a heinous crime to death. Whether the executioner is justified or not in activating the electric chair or in administering a lethal injection would not appear to depend on the defensibility of the death penalty. Rather, it depends on factors that are internal to the role he occupies in the state hierarchy of which he is the agent. Thus the executioner does do wrong, for example, if he knows that the warden has ordered him to carry out the execution in the face of a court order imposing a stay of execution, or a clemency award on the part of the state governor. And if the warden is unaware of the stay or the successful clemency petition and the executioner is not, then it is indeed the responsibility of the executioner to halt the execution and refuse to carry it out, as well as to inform the warden of the reason for his action. Once again, compare the executioner to the person who kills at the behest of a criminal organization of which he is a part with the person who kills on behalf of the state. A member of the Mafia who carries out a “hit” on a member of a rival crime family may be acting under orders from his superior, and the criminal organization may function very much like a state if it is large and complex, but it is not the individual’s function as a “foot soldier” in a hierarchy that confers on him the status of combatant. It is the state—​a n autonomous, sovereign entity with a certain normative status itself—​t hat has the ability to shift responsibility from the individual actor through which the state acts to the state itself. Thus, like the state executioner, the soldier is not a locus of responsibility in his own right when he acts on behalf of the state. As long as he is acting according to orders, or within the discretion he has been accorded, responsibility for the acts he performs lies with the political leaders above him, and with the state itself, in whose name all acts of war are performed. We noted earlier that the mantle of state authority confers legitimacy only insofar as the state actor does not hold a belief in the illegality of the conduct he is ordered to perform. The flip side of this, however, occurs in a situation in which the soldier acts outside the purview of his orders, and his acts either contravene his government’s policies or are grossly immoral, as is often said to be the case when a government agent goes rogue. In some such cases, the soldier has stepped outside the protections inherent in his role and acts not as a representative of his government, but as a private individual. He is then no longer protected by the mantle of state authority according to which combatants normally act, but is subject instead to general principles of responsibility by which individuals are typically assessed. The rules, adherence to which help to define the office within which he acts, are role-​relative. When a state agent steps outside the confines of his role, he loses the protections that accompany his occupation of that role. In effect, he is no longer an agent of the state with regard to those actions, and therefore the state’s mantle of authority does not extend to him.

25



Moral Reasoning and the Rule of Law in War

255

The same point can be made about a soldier who violates the jus in bello principles that set boundaries for the permissible actions of combatants. The combatant who carries out an order to attack civilians, such as occurred at the My Lai massacre during the Vietnam War, acts contrary to the office and role he occupies, which role requires him to protect civilians and restrict acts of war to co-​belligerents. The immunity he enjoys as defined by his combatant status does not extend to illegal acts of this sort. He does, therefore, retain a portion of his individual autonomy in carrying out his duties, but the scope of that autonomy is limited to ensuring that his conduct remains within the boundaries of jus in bello, and does not concern the ultimate justifiability of the policies, or jus ad bellum, on which the war is based. The framework just set out captures what has traditionally been the distinctive logic of just war theory. It is not only engrained in our way of thinking about war, but is also reflected in the treaties and other formal instruments as well as the long-​standing practices that make up international law. McMahan has disagreed both with the idea that the law of war is premised on a distinctive moral logic and with the implicit suggestion that morality contains “pockets” in which separate moral systems can operate. His writing on just war theory has sparked a robust debate about the traditional approach to combatant responsibility, based on an objection to the moral equality thesis. McMahan thinks that whether it is justifiable to kill depends on the background moral justifiability of the killing, and that, in turn, depends on general moral facts about the larger purposes the killing is intended to serve. Rejecting the moral equality thesis, McMahan insists that opposing sides in a military conflict cannot have equal moral entitlement to use force, any more than it would be possible for a person using force in self-​defense and the person against whom force is used, to be equally entitled to attack one another. But as I have shown elsewhere, both the logic of self-​defense and the logic of combatancy in war establish the permissibility of killing without reference to the larger purpose in the name of which one acts.12

5.  Moral Reasoning and the Rule of Law in War As I have stressed above, for war to be governed by law, the law must serve as a constraint on what men and women do on the battlefield in the name of the law. This means that it must be possible—​even advantageous—​to do something that is wrong and not permitted by the law of war. The decision-​making framework we apply to what to do on the battlefield must therefore be capable of ruling out certain courses of action as impermissible. How should an individual reason in war if he is in fact, and not just in form, constrained by the laws of war? How should constraint by law operate in the decision making of the individual soldier, as compared with that of the political or military leader? One answer here with regard to the reasoning of the foot soldier has been famously articulated by Joseph Raz under the heading of “exclusionary reasons,” meaning that the law gives individuals reasons to follow its dictates that exclude considerations of 12

  See Finkelstein (n 7).

256

256

The Equality of Combatants in Asymmetric War

other reasons. Leaders acting within the bounds of the law provide reasons for acting to those who are obligated to obey them by presenting them with a basis for excluding from consideration other reasons they may have for acting differently. That a leader has the power to present his or her subjects with such “exclusionary reasons” is a way of articulating in what his authority consists. The same can be said for the authority of the law.13 I reject the concept of exclusionary reasons because I do not believe legal authority functions by entirely supplanting the actor’s own reasons with the reasons of another. A legal system based on such thorough abandonment of individual autonomy would be, as H L A Hart has written in another context, “deplorably sheeplike.”14 For law to operate on an agent’s reasons, it must not eliminate the functioning of reasons in the psychological processes of the agent. The Razian picture of legal authority as pre-​empting individual reason leaves legal subjects as no better than an agent acting under the influence of a rule-​of-​law drug or hypnotic. Instead, we need a more nuanced story about how individual judgment can incorporate the direction provided by legal authority in a way that operates through the reason of individual subjects, rather than pre-​empting that reasoning altogether. The relevant space between individual reasoning and authoritative directions on the part of a legal authority may be provided by differentiation according to roles. In the context of just war theory, we can articulate the point in terms of different levels of reasoning about war: At the first level, the individual applies the law of war to particular situations (jus in bello) in light of the military purposes of the authoritative leaders he must obey. At the second level, the justice of the military enterprise in which one is engaged is shaped by those providing legal constraint for others, and it is this reasoning that establishes the justifiability of one’s enterprise (jus ad bellum). Instead of Razian exclusionary reasons, a preferable model might be that provided by the framework of so-​called “resolute choice” favored by philosophers such as David Gauthier and Ned McClennen in lieu of pre-​commitment, and the consideration that role-​relative morality lends itself to a more flexible way of thinking about individual reasons.15 In other writings I have discussed resolute choice as an alternative to reasoning by making use of a system of exclusionary reasons.16 The idea of resolute choice in the case of individual rationality is that individuals adopt plans and reason from those plans, because they are aware that reasoning from plans is pragmatically better than reasoning each time based on the costs and benefits of individual actions. If we apply a resolute choice model in this context, we can see how it may be possible to reconcile the autonomy of individual judgment with the authority of the law under which that individual acts. Following authority appeals to the rational individual, 13   For an account of legal authority based on Razian exclusionary reasons, see Scott Shapiro, Legality (Harvard University Press 2011). 14   Hart (n 11) ch V. 15   See David Gauthier, “Commitment and Choice: An Essay on the Rationality of Plans,” in Francesco Farina, Frank Hahn, and Stefano Vanucci (eds), Ethics, Rationality and Economic Behavior (Oxford University Press 1996); David Gauthier, “Assure and Threaten” (1994) 104 Ethics 690. 16   See Claire Finkelstein, “Acting on an Intention” in Gijs Van Donselaar and Bruno Verbeek (eds), Reason, Intention and Morality (Ashgate Publishing 2008); Claire Finkelstein, “Rational Temptation,” in Christopher Morris and Arthur Ripstein (eds), Practical Rationality and Preference: Essays for David Gauthier (Oxford University Press 2001).

257

Conclusion

257

because he is aware that he will fare better if he adjusts his individual reasoning to the legal framework in which he must act. Moreover, taking a leaf from H L A Hart’s book, we might suppose that he comes to internalize that legal framework so thoroughly that he conceives of himself as obligated to obey the law. This process of internalization of legal standards is precisely what occurs in a society governed by rule-​of-​law values. And it is this that we abandon when we give up on articulating legal norms that can supply reasons for acting and seek to motivate action. Legal standards that provide mere propagandistic benefit supply no reasons to act at all, and cannot be internalized sources of guidance of any sort.

6. Conclusion I have argued in favor of the traditional position that the concept of the state is critical to the idea of combatancy. Because of this, I have also argued that members of ISIS or al-​Qaeda are criminal civilians, rather than combatants, based on the fact that they are non-​state actors. The insistence on state agency as a feature of combatant identity connects that concept with the deeper justification for permitting armed combat, namely that states have equal autonomy, and so there is no power over them to resolve disputes between them. A non-​state actor who wages “war” does not in fact possess that justification for resolving differences through combat. Instead of supplying a military justification for acting, he has acted on a principle that lends itself to resolution within the context of existing state or interstate political and legal frameworks. To proceed as though he possessed the same justification as a traditional state actor is to confuse structure or function with normative principle. This is the flaw in the forfeiture theory of compliance with international norms: The fact that al-​Qaeda does not follow international law does not release us from the duty to follow those same norms, since the source of authority of the norms in question is not the compliance the other party’s compliance. The forfeiture theory is a perfect example of formalistic reasoning in the laws of war. Legal reasoning premised on formal features of an agent’s situation, rather than the content of the roles occupied with such a structure, cannot ultimately vindicate the rule of law and, little by little, will erode it. In the context of war, it is essential that reasoning about jus in bello proceeds on the basis of actual rules that reflect the values of just war theory. In the absence of such substantive values, legal constraint of war will be formalistic and ultimately will fail. This discussion gives us every reason to think that the laws of war could be applied to current asymmetric war and non-​state actors in a perfectly coherent way. The real problem does not lie in the conceptual impossibility of applying traditional principles of war to modern conditions, despite what just war theory revisionists have claimed. The real difficulty is that we are not willing to give up on the claim that the continuous targetability of unlawful combatants is not reciprocal with respect to our servicemen and women. Thus we see treating unlawful combatants as full combatants, with regard to their privileges, immunities ​and liabilities, as giving up on a strategic advantage in the war on terror. As a consequence, legal scholars and policymakers have been willing to abandon the old rules in favor of new rules, and, moreover, to select new rules that seem favorable to our efforts to win asymmetric wars.

258

258

The Equality of Combatants in Asymmetric War

This effort, however, appears to be to allow the rule-​of-​law considerations to give way to an impulse to refine those rules to make them “fit” our current ethical challenges, and then declare that we are in compliance with the rules. It is like the shopper who corrects his grocery list to match the things he has in his cart, rather than the other way around. If the law is to serve as a constraint, then the conduct by which we pursue our military aims must actually be constrained by legal principles. If those principles cannot be applied because the concepts on which they rest are unclear, or the fundamental circumstances of war have so shifted that we can no longer apply the conventional law of war, we risk eviscerating the very idea that wars can be fought and still contained by law.

259

11 Rewriting the AUMF Bringing Guidance to Executive Decisions on Combatancy and Returning the US to the Path of the War Convention Jon Todd

1. Introduction As a country, the United States is now halfway through its second decade of the continuing effectiveness of the 2001 Authorization for Use of Military Force (AUMF). This legislation, based on limited information and an immediate legislative reaction to the horrific events of 9/​11, continues to serve as the basis for ongoing military operations worldwide. Those operations include the invasion and continued occupation of Afghanistan; ongoing operations against ISIL in Syria and Iraq; drone strikes throughout the Middle East that have resulted in thousands of deaths, intended and unintended;1 the continued indefinite detention of dozens of persons;2 and the targeting and killing of at least one US citizen, though he clearly may not be the last.3 Among the furor and outrage over the 9/​11 attacks, it is safe to assume that the primary focus of Congress was to empower the President to respond quickly and effectively to the overwhelming threat presented at the time. However, the legislators were unable to provide meaningful guidance on any major questions of international law implicated by the contours of the new era of warfare that had just begun. It is my contention that if the AUMF is to continue to be used as the basis for ongoing military action throughout the world, it must be updated to reflect what I believe to be a trend toward an expanded understanding of combatancy in international law and a broader respect for the long-​standing principle of distinction. Moreover, such an update would address underlying concerns of democratic legitimacy and government accountability. In this update, Congress should address three factors in particular: who is a combatant—​that is to say, who falls in the category of targetable persons under the Law of Armed Conflict (LOAC) as interpreted by the United States; whether or not persons outside of this definition of combatancy can be targeted; and, if so, what criteria will be used to make those persons targetable. Other scholars have discussed updating the AUMF to include geographic limitations and sunset provisions, as well as the elimination of the requirement that the targetable classes of persons be

  Matt Sledge, “The Toll of 5 Years of Drone Strikes: 2,400 Dead” (2014) The Huffington Post, January 1.   Final Report Guantanamo Review Task Force, January 22, 2010, i–​ii. 3   Mark Mazzetti and Eric Schmitt, “U.S. Militant, Hidden, Spurs Drone Debate” (2014) NY Times, February 28, A1. 1 2

Guiding Executive Decisions on Combatancy in War. Jon Todd. © Jon Todd, 2017. Published 2017 by Oxford University Press.

260

260

Rewriting the AUMF

somehow attached to the attacks that occurred on September 11, 2001.4 While these may be legitimate updates, those particular changes are not the focus of this chapter. At the outset of Section 2 of the chapter, I will provide a synopsis of the concept of distinction and explain why it is foundational to any understanding of the concept of combatancy. From that starting point, I will proceed in six additional sections. After the brief discussion of distinction, in Section 3 I will focus on an overview of the US approach to the concept of combatancy in the “War on Terror,” highlighting the issue of the rise of the model of unlawful combatancy. In Section 4, I will provide an historical overview of the concept of combatancy and survey the changing position of that concept in international law in order to provide a foundation for a contrast, and perhaps a preferable approach, to the current stance of the United States. At that point I will return to the US approach to combatancy and analyze it in more depth by dissecting the cases of al-​Aulaqi and Hamdan, as well as the Military Commissions Acts of 2006 and 2009. These cases provide the most detailed and recent instances that illustrate the United States’ position and further clarify the divergence between the United States and the historical and international trend. Moreover, the content of the al-​Aulaqi and Hamdan cases suggest that the US Congress may be the only capable and willing actor to address the issue of US military action and combatancy under international law. I present the heart of my argument in Section 6, namely that since the executive either has not acknowledged or cannot follow this evolving concept of combatancy in the context of modern warfare, Congress must reauthorize and update the AUMF to include and expand the concept of combatancy to include non-​state actors, a recognition of partial compliance of combatants, and an incorporation of the ICRC Guidance on Direct Participation in Hostilities into the actual text of the authorization so that the United States does not fight a losing battle against the development of international law, and instead is in the vanguard of its progress. Finally, I will address counterarguments to my approach and offer some concluding thoughts on the necessity of such an update.

2.  Distinction and Combatancy 2.1 LOAC basic principles and the concept of distinction The conceptions of jus ad bellum, the law governing the right to force, and jus in bello, the law governing the conduct of hostilities and protection of persons during conflict,5 are the two primary foundations within just war theory and international humanitarian law (IHL).6 While jus ad bellum concerns are certainly implicated in this 4   See Graham Cronogue, “A New AUMF: Defining Combatants in the War on Terror” (2012) 22 Duke J of Comp and Intl L 377. 5   See Laurie R Blank, “A New Twist on an Old Story: Lawfare and the Mixing of Proportionalities” (2011) 43 Case W Res J Intl L 707, 708. 6   Also frequently referred to as the Law of Armed Conflict (LOAC). See David Luban, “Military Lawyers and the Two Cultures Problem” (2013) 26 Leiden J Intl L 315–​49 (“Military Lawyers refer to the laws of war as ‘LOAC’—​law of armed conflict—​while civilians from the world of non-​governmental organizations call the laws ‘IHL’—​international humanitarian law”).

216



Distinction and Combatancy

261

discussion, they are beyond the scope of this chapter. Instead I will focus primarily on jus in bello concerns. Under that heading there are three primary tenets creating the foundation of jus in bello: the principle of distinction, the principle of proportionality, and the principle of military necessity.7 Again, while certainly implicated in this discussion, these last two foundational principles of IHL are not the focus of this chapter. The principle of distinction, however, is at the very core of the difficulty surrounding combatant status and presidential action under the AUMF. The principle of distinction, in broad strokes, encompasses the idea that “parties to [a]‌conflict shall at all times distinguish between civilians and combatants.”8 As would intuitively follow, attacks may only be directed at combatants and military objectives, and therefore attacks must not be directed against civilians.9 This rule applies regardless of circumstance, whether or not the party in action is acting offensively or defensively.10 The principle exists primarily to minimize the amount of harm inflicted to noncombatants.11 Nevertheless, while attacks may not be directed against civilians, a necessary and proportional attack of a military objective that will result in foreseeable harm to civilians (including lethal harm) as collateral damage is not prohibited by IHL.

2.2  Distinction, combatancy, and the permission to target By nature of their status, lawful combatants are provided with certain privileges and responsibilities. First among these is the right to carry out attacks on military personnel and objectives. This right also entails combatant immunity—​meaning that the individual or unit has no criminal responsibility for killing or injuring enemy personnel.12 This immunity to prosecution also applies to any damage or destruction to property caused in connection with military operations.13 This immunity only applies so long as the acts of the individual combatant or unit are also in compliance with the rest of the tenets of IHL.14 Finally, combatants are guaranteed prisoner-​of-​war status and humane treatment in the event of capture.15 The corollary to these responsibilities is that a combatant is also thereby subject to “lawful attack by enemy military personnel at any time, wherever located, regardless of the duties in which he or she is engaged,” and may be tried for any breaches of IHL.16 Conversely, a civilian, as part of his or her designation as an untargetable noncombatant, is expected “not to use his or her protected status to engage in hostile acts.”17 This does not completely prevent civilians from assisting in the war effort; it simply 7   Susan Tienfenbrun, “The Failure of International Laws of War and the Role of Art and Story-​Telling as a Self-​Help Remedy for Restorative Justice” (2005) 12 Tex Wesleyan L Rev 91, 118. 8   This tenet of customary IHL was codified in Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict Art 48, June 8, 1977, 1125 UNTS 3 [hereinafter Protocol I]. While codified in this Convention, the historical and normative foundations of the concept run much deeper, as I will discuss more fully in Section 4 of this chapter. 9 10 11   Ibid, Art 51.  Ibid.   Ibid, Art 48. 12   Enemy personnel include civilians taking direct part in the hostilities, a concept that will be discussed in Section 6. See W Hays Parks, “Part IX of the ICRC ‘Direct Participation in Hostilities’ Study: No Mandate, No Expertise, and Legally Incorrect” (2010) 42 NYU J Intl L & Pol 769, 778. 13 14 15 16 17  Ibid.  Ibid.  Ibid.  Ibid.   Ibid 772–​3.

26

262

Rewriting the AUMF

means that they cannot be direct participants in hostilities and continue to be un-​ targetable. In other words, though there is some question as to the types of behavior that constitute direct participation in hostilities, there is no doubt that “[c]‌ivilians who take up arms . . . lose their immunity from attack during the time they are participating in hostilities—​whether permanently, intermittently, or only once—​and become legitimate targets.”18 Equally as accepted is the premise that a worker sewing the uniform for a soldier many miles from a battlefield would not be directly participating in hostilities.19 How to define direct participation in hostilities beyond these two poles is a topic of significant international debate—​a debate that, though interesting, is beyond the scope of this chapter. As was explored above in much greater detail, the United States has taken an approach very close to including every individual between those two poles. From al-​ Aulaqi to Hamdan, the executive branch has determined that all individuals who have purposefully or materially supported al-​Qaeda, the Taliban, or associated forces are unlawful combatants, also referred to as unprivileged belligerents, and thereby devoid of the protections of both civilians and combatants. To me this is an unsustainable course of action, and one that ultimately eviscerates the principle of distinction and undermines the historical conception of a division between combatant and civilian. With that foundational understanding of distinction in mind, let us turn to the problems presented to the concept in the AUMF-​initiated “War on Terror.”

3.  Combatancy in the “War on Terror” 3.1 The emergence of unlawful combatancy in the United States While seemingly straightforward in its declaration, the principles of distinction and combatancy encounter significant definitional problems in the context of modern warfare, especially in conflict with non-​state actors, or state actors who do not comply with the requirements of IHL. This is clearly illustrated in the context of the United States’ “War on Terror.” With the passing of the AUMF in the wake of the 9/​11 attacks, the United States in essence declared war on the Taliban and al-​Qaeda as the primary forces responsible for the attacks. From the outset, the United States declared al-​Qaeda members to be outside the protection of combatant status because al-​Qaeda constitutes a non-​state foreign terrorist group that is not, and cannot be, a member to the Conventions by nature of that status.20

  Laurie Blank and Amos Guiora, “Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare” (2010) 1 Harv Natl Sec J 45, 63. 19   Jens David Ohlin, “Targeting Co-​Belligerents,” in Finkelstein et al (eds), Targeted Killings: Law and Morality in an Asymmetrical World (Oxford University Press 2011) 67. For a more extended discussion of the spectrum between direct and indirect participation in hostilities, see ibid 65–​70. 20   Memorandum from George Bush, President of the United States, to Richard Cheney, Vice President of the United States, Humane Treatment of al-​Qaeda and Taliban Detainees (February 7, 2002). See also Geoffrey Corn, “Thinking the Unthinkable: Has the Time Come to Offer Combatant Immunity to Non-​ State Actors?” (2011) 22 Stan L & Poly Rev 253, 255–​6. 18

263



Combatancy in the “War on Terror”

263

The Taliban presented a different problem. Afghanistan was a party to the Geneva Conventions and because the Taliban was the de facto ruling party of the Afghan state, the United States determined that the Geneva Convention protections afforded to combatants applied to Taliban members, at least initially.21 However, the American military forces almost immediately encountered difficulty in conflict with the Taliban because of their lack of distinguishability from the civilian populace.22 In fact, members of the Taliban forces were known to make use of civilian appearance to create a strategic military advantage in combat.23 In addition to the difficulty presented by an inability to distinguish Taliban combatants from civilians due to their failure to wear uniforms or a distinctive mark, the United States was presented with a further challenge. The Taliban did not have a cognizable military hierarchy and therefore lacked a transparent and accountable chain of command.24 This lack of accountability arguably led to a rise in the tactics listed above, as those in command did not hold individual members of the fighting force responsible for their tactics.25 At any rate, even if those in authority had been able to limit their subordinates’ behavior to the internationally accepted Geneva standards, at least one commentator has argued that the Taliban outright rejected IHL, regardless.26 The difficulty that such tactics presented to the IHL conception of distinction is apparent. If the enemy chooses to carry his arms discreetly, in the attire of a civilian, it unquestionably increases the risk to actual civilians and does little to forward the rule of law.27 Such action makes it nearly impossible to make a meaningful divergence between combatant and civilian. In the view of the United States, this behavior prevented these individuals from being accorded combatant status and the privileges associated with it under the terms of the Geneva Convention.28 The status of such individuals has been labeled “unlawful combatancy.”29

3.2  Unlawful Combatancy and the Civilian-​Combatant Divide The term “unlawful combatants” is relatively modern.30 Formally, it stems from Article 1 of the Regulations Respecting the Laws and Customs of War on Land annexed to the 21   Ibid. That is to say that the United States came to the determination that the Taliban met the standard for the “right kind of person” prong. 22   Lt Col Joseph Bialke, “Al-​Qaeda and Taliban: Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict” (2004) 55 A F L Rev 1, 31. 23   Ibid. As an example of this, Bialke noted that there were even male Taliban combatants captured “while hidden beneath traditional female burqas in mosques.” 24 25 26  Ibid 30.  Ibid.  Ibid. 27   See Derek Jinks, “Protective Parity and the Laws of War” (2004) 79 Notre Dame L Rev 1493, 1526 (“when an enemy combatant removes his uniform (donning only civilian clothing) and conceals his weapons, he has committed conduct that arguably both (1) deprives him upon capture of POW status, and (2) transgresses the rule of distinction (and perhaps the prohibition on perfidy)—​hence, endangering innocent civilians”). 28   George W Bush, Fact Sheet: Status of Detainees at Guantanamo, February 7, 2002. Available at The American Presidency Project, . 29   See Bialke (n 22) 4–​6. 30   My thanks to Ilya Rudyak for his contribution of this section of the chapter. On the term “unlawful combatants,” see Corn (n 20) 257. The term is often associated with the mid-​t wentieth century, probably because in the US the distinction between unlawful and lawful combatants was explicitly pronounced in 1942 by the Supreme Court in Ex parte Quirin (1942) 317 US 1.

264

264

Rewriting the AUMF

Hague Convention of 1899.31 This Article established that in order to qualify as “lawful” combatants and consequently to receive POW status, combatants must be associated with a state and must satisfy the four conditions discussed at length above: (a) to be commanded by a person responsible for his subordinates; (b) to have a fixed distinctive sign recognizable at a distance; (c) to carry arms openly; (d) to conduct their operations in accordance with the laws and customs of war.32 In most cases, in order to qualify for POW status, two different sets of requirements must be fulfilled. These requirements are sometimes referred to as the “right type of conflict” and “right type of person” tests. The “right type of conflict” test examines whether the relevant armed conflict is of international or non-​international character, since according to the traditional reading of Geneva Convention III (GCIII), POW status can only be acquired in the former kind of conflict.33 The “right type of person” test examines whether the person in question is of the type of persons enumerated in Article 4 of GCIII, which in the context of “unlawful combatants” often boils down to the four criteria of Article 4A(2), which are identical to those previously mentioned.34 Taking this section in combination with Section 2, it is not difficult to see how the United States came to the conclusion that the forces with which it was in conflict did not meet the requirements for lawful combatancy and therefore did not qualify for IHL combatant protections. Al-​Qaeda failed because they did not satisfy the “right type of conflict” prong (or the “right type of person” one, for that matter). Taliban fighters did not qualify because they did not satisfy the “right type of person” prong. In the view of the United States, this left the status of these enemies in a state of legal limbo, and so the only protections of IHL the United States believed to apply to those enemies were the very basic protections provided by Common Article 3.35 It is not clear, however, that this status is in line with the foundational conception of distinction or the development of our historical understanding of combatancy. To explore this idea more fully, I will now turn to an analysis of combatancy from a historical and normative perspective.

4.  The Traditional Concept of Combatancy 4.1 The normative foundations of combatancy: Walzer’s War Convention Combatancy and distinction are subsets of a broader concept of a law of warfare and the idea that combat can be bounded and, in some sense, controlled. Political philosopher Michael Walzer calls this broader understanding the War Convention. The War Convention, as Walzer defines it, is the “set of articulated norms, customs, professional 31   Convention (II) with Respect to the Laws and Customs of War on Land Art 1, October 18, 1907, 36 Stat 2277, TS No 403. 32 33   Corn (n 20) 258.  Ibid 255. 34   Ibid 273. These tests were used in 2002 by the US, which was satisfied with examining only the “right type of conflict test” in order to deny POW status from al-​Qaeda detainees, but had to examine also the “right type of person test” in order to deny POW status from Taliban detainees. Ibid 277. 35   Memorandum from the Secretary of Defense on the Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Dept. of Defense (July 7, 2006).

265



The Traditional Concept of Combatancy

265

codes, legal precepts, religious and philosophical principles and reciprocal arrangements that shape our judgments of military conduct.”36 It is more than just the specific rules we have adopted to guide our behavior in war—​it is, more importantly, the judgments, arguments, and agreements that underlie those rules. As Walzer says, “[t]‌he common law of combat is developed through a kind of practical casuistry . . . we look to the lawyers for general formulas, but to historical cases and actual debates for those particular judgments that both reflect the war convention and constitute its vital force.”37 It is my contention that underlying this idea is the assumption that what is understood as the War Convention is being molded over time, taking on the additional contours that time and experience bring. It will take on the colors of historical context while progressing through time with the men and women who shape it by their argument and, eventually, shared foundations of agreement. Put differently, our understanding of the rules of war is a combination of both our historical experience and our collective judgment about those experiences as they develop over time. In Section 4.2 I will attempt to draw out this historical experience that colors our understanding of combatancy in our current notion of the War Convention by surveying the concepts of distinction and combatancy in a historical context, as well as those written rules that arose in that context.

4.2  The historical foundations of combatancy 4.2.1 The deep historical roots of distinction: Pre-​modern combatancy The concept of a discrepancy between lawful combatant and “other combatant” can be traced back to the Roman Empire and the dichotomy that existed between the civilized and barbarian worlds.38 Though the comparison is imperfect, it is useful for illustrating the presence of a concept somewhat similar in structure to the modern distinction between lawful and unlawful combatants. Roman law treated citizens and barbarians as discrete categories: Citizens were offered the protections of Roman civil law while barbarians existed as individuals with little or no rights, and certainly without any of the protections of citizenship.39 In the context of warfare, the citizen/​barbarian difference was essential:  “armed operations against barbarians could be initiated without invoking the blessings and protection of the Roman gods that preceded wars against non-​barbarians because the former did not possess the legal personality necessary to be legitimate subjects of warmaking.”40 Importantly, the legal framework of combat that applied to each category of persons was markedly different. The Roman laws of war that applied to combat with civilized nations, the bellum hostile, limited some forms of combat and military

37   Michael Walzer, Just and Unjust Wars (Basic Books 1977) 44.  Ibid 45.   For an extended discussion of the distinction between civilian and barbarian in the Roman world see William A Bradford, “Barbarians at the Gate: A Post September 11th Proposal to Rationalize the Laws of War” (2004) 73 Miss L J 639, 863–​75. 39   William L Burdick, The Principles of Roman Law (1989) 201. 40   Bradford (n 39) paraphrasing Julius Caesar, The Gallic Wars (H J Edwards trans, 1970). 36 38

26

266

Rewriting the AUMF

action, whereas combat with barbarians was governed by the bellum romanum, which was nearly unlimited.41 In the post-​Roman world, the citizen/​barbarian divide morphed into a Christian/​ non-​Christian divide.42 On the non-​Christian side of the divide, the notion of combatancy held no place—​as with the barbarians in the Roman laws of war, no distinction needed to be made between those able to be targeted and those protected by their status as noncombatants.43 However, rules of conduct in intra-​Christian warfare did begin to develop, and it is during the eleventh century that there first appears to be something resembling the principle of combatancy.44 In part, this development occurred with the rise of a noble class of knights who viewed combat as a part of their profession and an activity in which the laboring class were not supposed to participate.45 In addition to the rise of a fighting class, the Roman church pioneered a movement titled the “Peace of God” that “laid down the principle that the weak who could do no harm should not be harmed.”46 These two factors taken together—​the notions of professional combatants and a subsection of the population who were illegitimate targets—​form the foundation of a more modern conception of combatancy. Along with this development, we see the seeds of a concept of unlawful combatancy—​those who participate in combat are bound by a certain professional code, and there are those who are seen as undesirable and impermissible in combat and therefore without a place on the battlefield.

4.2.2 The Lieber Code and a modern foundation for unlawful combatancy When the feudal system of knights and the limited warrior class began to give way to the professional armies of the Industrial Revolution, distinction between civilian and combatant was once again clouded.47 Discussing this phenomena, Nathan Canestaro writes “[t]‌he expanding scale of warfare, the advent of popular revolutions in some European countries, especially France, and repeated clashes between professional soldiers and armed peasantry during the Napoleonic wars, brought commoners into warfare in significant numbers for the first time.”48 Part and parcel of these extended movements was the development of mass conscription, which further distorted the   Robert E Stacey, “The Age of Chivalry” in Michael Howard et al (eds), The Laws of War: Constraints on Warfare in the Western World (Yale University Press 1994) 27. For a more detailed discussion on the differences between bellum hostile and bellum romanum, see ibid at 27, 34. For the Romans, however, the legitimacy of the target turned only on the question of the legitimacy of the war. Defense of the frontiers and pacification of barbarians were considered legitimate aims and, within these legitimate aims, the conduct of war in the category of bellum romanum was essentially unrestrained. Once the validity of the war had been established there was no “distinction between [barbarian] combatants and non-​combatants.” Rape, plunder, pillaging, and eradication were considered acceptable, if not necessary, aspects of war. Thus, the distinction between citizen and barbarian, while perhaps suggesting the infancy of discerning legitimate from illegitimate targets, still falls significantly short of both the modern conception of distinction and the separation of jus in bello and jus ad bellum. Ibid. 42 43 44 45   Ibid 27, 28.   Ibid 27–​9.  Ibid 30.  Ibid. 46   Geoffrey Parker, “Early Modern Europe” in Howard et al (n 42) 40, 41. 47   Eric Talbot Jensen, “Combatant Status: It’s Time for Intermediate Levels of Recognition for Partial Compliance” (2005) 46 Va J Intl L 209, 215. 48   Nathan A Canestaro, ““Small Wars” and the Law: Options for Prosecuting the Insurgents in Iraq” (2004) 43 Colum J Transnatl L 73, 82, quoted in Jensen (n 48). 41

267



The Traditional Concept of Combatancy

267

line between civilian and combatant by eliminating the concept of a professional warrior class.49 The prospect of an armed civilian populace in combat with a uniformed military arose again in the context of the American Civil War. Faced with the many moral and military difficulties associated with civil war, American professor Francis Lieber began a running discussion with Union General Henry Halleck on the most just ways to pursue the war.50 As a result of his conversations with General Halleck and others, Lieber and a group of Union officers were commissioned to draft what would become “Instructions for the Government Armies of the United States in the Field, General Orders No 100,” also known as the Lieber Code.51 Embedded in this code was an inherent respect for civilian life, especially that of women and children. In Article 19 of the Code, Lieber stipulates that “Commanders, whenever admissible, [should] inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children may be removed.”52 This provision embodies the now legally entrenched IHL concept of distinction between combatants and noncombatants and even extends noncombatant status to men.53 Article 24 of the Code goes even further to express this sentiment explicitly: “the principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.” This was part of a broad theme within the code that recognized that “as civilization has progressed, the distinction made between the state and its army on the one hand, and this private individual on the other hand, has solidified.”54 Prior to the ultimate drafting of the Lieber Code, General Halleck acknowledged a slightly different difficulty involved in prosecuting the war against the Confederacy and distinguishing combatant from noncombatant. In it, we see the most explicit recognition yet of the modern idea of unlawful combatancy. General Halleck’s problem arose because, as he complained, “[t]‌he rebel authorities claim the right to send men, in the garb of peaceful citizens, to waylay and attack our troops, to burn bridges, and destroy property and persons within our lines,” and then “demand that such persons be treated as ordinary belligerents.”55 Faced with the distinct problem of armed individuals operating with no visible connection to the Confederate Army, Lieber wrote in Article 82 of the Code that “[m]‌en  . . .  who commit hostilities  . . .  without being part and portion of the of the organized hostile army, and without sharing continuously in the war  . . .  divesting  See ibid.   Theodor Meron, “Francis Lieber’s Code and Principles of Humanity” (1998) 36 Colum J Trasnatl L 269, 270. 51   Ibid. See also Francis Lieber, Instructions for the Government Armies of the United States in the Field, General Order No 100 (April 24, 1863) (hereinafter Lieber Code). 52   Lieber Code (ibid) Art 19. 53   Though it is worth noting that the emphasis is still put on those perceived to be most vulnerable: women and children. Ibid. 54   Theodor Meron, War Crimes Law Comes of Age (Oxford University Press 1998) 136. 55   Letter from Henry Halleck to Francis Lieber (August 6, 1862) reprinted in Richard Shelly Hartigan, Lieber’s Code and the Law of War (Legal Classics Library 1983) 108. 49

50

268

268

Rewriting the AUMF

themselves of the character or appearance of soldiers” are thereby “not entitled to the privileges of prisoners of war.”56 Under the Code such men were not combatants but merely “highway robbers or pirates.”57 In this provision we see highlighted what would become the primary factors for determining combatancy for the next century: participation in the organized army and maintaining the appearance of soldiers, typically through the wearing of uniforms. Others operating outside these norms were not given any of the protections that we now associate with combatancy and were considered inherently unlawful—​ equivalent to criminals. What is unclear in the Code is what rights, if any, the individual would retain under that status. The only clue within the provision itself is the note that the individuals “shall be treated summarily,”58 suggesting no existence of due process rights.

4.2.3 The Hague Conventions and the baseline of lawful combatancy The Lieber Code in turn provided the foundation for the Hague Conventions of 1899 and 1907. In part, the Hague Conventions were a global response “to a real fear of new weaponry and total war,” and an attempt to limit the potential dangers of such a war.59 More important for the purposes of this chapter, the Conventions ended up being an attempt to make explicit the laws of war. Section 1, Chapter 1, Article 1 of the Convention of 1899 codified the four criteria necessary for militia and volunteer corps to be considered lawful belligerents,60 and, incident to that status, to qualify them for POW status.61 As previously noted, the four conditions necessary to establish lawful combatancy are that units and individuals must: (a) be commanded by a person responsible for his subordinates; (b) have a fixed distinctive emblem recognizable at a distance; (c) carry arms openly; and (d) conduct their operations in accordance with the laws and customs of war.62 Inherent in these criteria was the understanding that such combatants fought on behalf of the state, as the treaty itself only applied to the states.63 While the nations involved managed to agree on many issues, including the criteria for lawful combatancy and a limitation on the types of weapons available to belligerents, there was no general agreement on the status of irregular resistance fighters and those who do not meet the general standard of lawful combatancy.64 The concept of unlawful combatancy as embodied in the aforementioned Article 82 of the Lieber Code65 was not a provision that made the initial transition into the Hague 57 58   Lieber Code (n 52) Art 82.  Ibid.  Ibid.   Adam Roberts, “Land Warfare: From Hague to Nuremberg,” in Howard et al (n 42) 116, 120. 60   For the purposes of this chapter, the terms “belligerent” and “combatant” will be used interchangeably. 61   Corn (n 20) 258. 62   Convention (ii) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War of Land. The Hague, July 29, 1899 (hereinafter Hague Convention 1899). 63   Corn (n 20) 258.    64  Roberts (n 60) 121–2. 65   Stating that “[m]‌en . . . who commit hostilities . . . without being part and portion of the of the organized hostile army, and without sharing continuously in the war . . . divesting themselves of the character or appearance of soldiers” are thereby “not entitled to the privileges of prisoners of war.” Lieber Code (n 52) Art 82. 56 59

269



The Traditional Concept of Combatancy

269

Conventions. In its stead, the drafters included a passage in the Preamble of the 1899 Hague Convention stating simply: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.66

On its face this paragraph arguably incorporates the concept of unlawful combatancy in the form of resistance movements, but it is strikingly unclear how such a vague statement of “the principles of international law, as the result from the usages established between civilized nations” would apply in any particular set of circumstances. Beyond this limited gesture at rights existing outside the bounds of the treaty, Article 2 of the Convention provides protection to civilian resistance forces, that is, un-​uniformed and in a non-​occupied territory, under the imminent approach of enemy forces, and to the spontaneous taking up of arms of the populace—​so long as the population did not have time to organize itself in accordance with the principles of Article 1.67 Even then, such an armed population was required to comport with the rest of the laws of war.68 In the context of the deliberations that occurred during the Convention, however, the status of non-​uniformed combatants remained unclear. Beyond the very limited circumstances of imminent invasion, there were arguments in favor of legitimizing continuing armed civilian resistance—​especially in the context of a larger nation invading a smaller nation.69 In opposition, other nations raised the argument that by legitimizing resistance, conflict was prolonged and intensified, ultimately increasing its destructive power.70 The status of the un-​uniformed, unidentified belligerent—​the fighter who did not abide by Article 1—​was ultimately left unresolved. The topic was raised again at the 1907 Convention, but encountered the same underlying issues and ended in the same stalemate, with one minor exception:  Article 2 was amended to include an explicit restatement of the requirement that the spontaneously resisting populace must carry their arms openly.71 Whether that minor change signifies a special emphasis on the open carrying of arms or an acknowledgement that the other aspects of Article 1 are not particularly feasible under the circumstances of imminent invasion is unclear.

4.2.4 The Geneva Conventions and the beginnings of expanded lawful combatancy The next major gathering of nations on the laws pertaining to the waging of war was the Geneva Convention of 1929, which attempted to codify some of the lessons of the First World War. This Convention was concerned primarily with the treatment of prisoners of war. Toward that end, the Convention chose to reaffirm the stance 67 68   Hague Convention 1899 (n 63) pmbl.   Ibid §1 Ch 1 Art 2.  Ibid. 70   Roberts (n 60) 122.  Ibid. 71   §1 Ch 1 Art 2, Convention (ii) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War of Land. The Hague, October 18, 1907. 66 69

270

270

Rewriting the AUMF

of the Hague Convention of 1907 on what qualified a belligerent for POW status.72 The Convention did so without making any substantive changes to those provisions.73 It did, however, vary from the foundation provided by the Hague Conventions by enumerating its provisions as those necessary to achieve POW status and not lawful belligerent status.74 But, because POW status was derived from the original Hague standard for lawful belligerency, it is almost universally accepted that POW status and lawful combatancy are synonymous in the modern context.75 After sixteen years and the most destructive global conflict in history, the world reconvened for the Geneva Convention of 1949. The first three agreements of the 1949 Convention largely built upon the two Hague Conventions and the 1929 Convention relative to the Treatment of Prisoners of War. The revision of the third agreement on POWs did clarify at least one unresolved question from the previous treaties, however. Article 4, paragraph 2 states that members of organized resistance forces, even in already occupied territories—​that is, areas which were no longer facing an imminent threat of invasion, but had in fact already been invaded—​were to be granted POW status, as long as they met the four criteria for legal belligerency.76 This was not the only expansion of combatancy coverage that was considered in 1949. As Jensen notes, the “issue of extending combatant status to those participating in civil wars was also debated at the Diplomatic Conference of 1949”; however, “[t]‌he delegates decided against it because they did not want to grant combatant protections to groups fighting against their own government.”77 The contention was that too broad a net of combatancy protection was unworkable and perhaps even dangerous.78 This issue would arise again in the context of the Additional Protocols discussed later in this section. The final important addition of the 1949 Convention was that of Common Article 3, which provided the standard for treatment of persons involved in a conflict “not of an international character occurring in the territory of one of the” parties to the treaty.79 This provision arose in part because “the experiences of the inter-​war years had apparently generated enough concern to justify an intrusion of international regulation into the realm of intra-​state hostilities.”80 The protections of such persons according to Common Article 3, however, are significantly limited in scope in comparison to the protections afforded to POWs. Under Common Article 3, those no longer participating in combat are “to be treated humanely,” which in practice means that such individuals should not be subject to “violence to life and person . . . outrages upon personal dignity, in particular humiliating and degrading treatment,” or “the passing of sentences and the carrying out of executions without the previous judgment pronounced by a regularly constituted court.”81 Such provisions are provided to these individuals even though they   Convention relative to the Treatment of Prisoners of War. Part I, Art 1, Geneva, July 27, 1929. 74 75  See ibid.   Corn (n 20) 259.  Ibid. 76   Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field Art 4, August 12, 1949, 6 UST 3114, 75 UNTS 31 (hereinafter GC I). 77 78 79 80   Jensen (n 48) 221.  Ibid.   GC I (n 77) Art 3.   Corn (n 20) 263. 81   GC I (n 77) Art 3. 72 73

271



The Traditional Concept of Combatancy

271

were not to be accorded lawful combatant status. Because individuals and groups covered under this heading are presumably individuals taking up arms against their government, there was reluctance among the ratifying states about granting POW status to such fighters, and concern over the accompanying combatant immunity.82

4.2.5 Additional Protocols I and II and the continuing trend of the expansion of lawful combatancy As is illustrated by the preceding sections, for the majority of the late nineteenth and early twentieth centuries the distinction between civilian and combatant was largely dependent on the combatant comporting with the four criteria of lawful belligerency, primarily through the open carrying of arms and the wearing of a distinctive sign—​ either as a part of the military forces of a nation state, or in response to the invasion of another nation state. The rise of anti-​colonial forces and revolutionaries in the later half of the twentieth century presented a serious challenge to this definition of combatancy because it left uncovered many of those who were actually involved in fighting.83 Combat in the post-​ 1945 world often took the form of guerrilla warfare directed at imperially sponsored regimes or imperial nations themselves, precisely because it traditionally empowered weaker forces to confront stronger ones.84 The existing status of the law, however, did not necessarily cover many of these conflicts, because they were not inherently international conflicts and the fighters themselves did not behave in the traditional way that armed forces of nations had in the past. It was under these conditions, and indeed in part as a response to these conditions, that the Additional Protocols of 1977 were added to the tomes of international law.85 Additional Protocol I (API) begins by expanding the scope of international conflicts, and thereby also the range of individuals considered lawful combatants. Included in international conflicts after the passage of Additional Protocol I are “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-​determination.”86 This was by no means the only change that API introduced to the existing standards for combatancy. Indeed the most substantive changes to the existing legal regime come in Article 44. Article 44 explicitly acknowledges the difficulty in the application of the uniform requirement in the post-​Second World War environment, stating: “there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself.”87 Therefore the treaty signatories agreed that such a combatant shall remain a combatant so long as he carries arms openly “(a) during each military engagement, and (b) during such time as he is visible to the adversary   Corn (n 20) 264–​5.   George Andreopoulos “The Age of National Liberation Movement” in Howard et al (n 42) 192–3. 84 85  Ibid 193.   Ibid 191–​3. 86   Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 UNTS 3, Art 1. 87   Ibid Art 44 § 3. 82 83

27

272

Rewriting the AUMF

while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.”88 This provision fundamentally altered the existing paradigm by guaranteeing lawful combatancy solely on the basis of the open carrying of arms.89 Additional Protocol II (APII) addresses the other problem: that of internal conflict, an issue previously thought to be almost beyond the reach of international law due to concerns about state sovereignty, but which was, however, minimally addressed by Common Article 3. The treaty added slightly stronger protections than the baseline added by Common Article 3, but did not stipulate extending the protections of lawful combatants (that is, POW status and combatant immunity) to fighters in an intra-​ state conflict.90

4.2.6 The current War Convention on combatancy and the US approach Having made our thousand-​year trek over the course of a just few short pages, what historical contours do we see in our current War Convention? First and foremost, there does appear to be a historical foundation for the concept of unlawful combatancy—​ a status that is, depending on which period you analyze, bereft of some, many, or all of the rights of lawful combatancy. The roots of it were present as early as the Roman Empire and it is unequivocally stated in clearly recognizable form in the Lieber Code. However, embedded in this idea is the second theme—​the concept that unlawful combatants are only a subset of all combatants. Even in the rebelling Confederate army there were far more fighters who were lawful combatants than unlawful ones. That is to say, unlawful combatants were the exception and not the norm. Finally, and in my view most importantly, we see a trend toward the expansion of the coverage of traditional protections afforded by combatant status, particularly in the last century. The Additional Protocols were an open attempt to reach and protect individuals whom the War Convention did not explicitly address at that time. So what relevance do these three themes have for the current iteration of unlawful combatancy? First, the US position that the Taliban, al-​Qaeda, and “terrorists” more broadly are unlawful combatants is prima facie historically viable. The status of non-​ state actors under IHL has not yet coalesced, and even if it had coalesced in favor of inclusion of those entities, none of the current US enemies comply with the full set of the four traditional criteria required for lawful combatancy. However, the United States’ particular approach is unusual in that it puts its entire class of current enemies in the category of unlawful combatants—​a point that will be discussed more fully in

 Ibid.   Corn (n 20) 273–​4. The drafters of the article do, however, attempt to limit the reach of the provision in para 7, which states that “[t]‌his Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict.” Protocol I Art 44 § 7. As the Commentary on the Protocol compiled by ICRC states, though it is not stipulated, “this article is mainly aimed at dealing with combatants using methods of guerrilla warfare.” Commentary on the Additional Protocols of June 8, 1977 to the Geneva Conventions of 1949, 1684 (1984). 90   Corn (n 20) 269. 88 89

273



Combatancy in the Courts and in Congress

273

Section 5. The third theme presents a much broader and more direct challenge to the United States’ approach in that it suggests our current War Convention is generally moving in the opposite direction of the United States by seeking to expand the class of lawful combatants and the protections available to all persons. This third point will be discussed in more detail in Section 6. At this juncture, however, I will turn to a much more nuanced account of the US approach to combatancy by looking at the government’s defense of unlawful combatancy in the US courts, the courts’ response to those assertions, and Congress’ very limited handling of the subject in the Military Commissions Acts.

5.  Combatancy in the Courts and in Congress under the AUMF There are two primary arenas in which combatant status and the principle of distinction is implicated and where the executive has claimed the AUMF as the basis for its authority in the United States’ legal system:  targeted killings by drone strikes, and indefinite military detentions. The determination that an individual is an enemy or unlawful combatant should be foundational to determining whether that individual can be a target for killing or detention under the AUMF, a point that will be discussed further in Section 6.  As it stands, it is unclear what, if any, criteria the legislature intended to guide this determination. This is particularly concerning given the wide range of individuals that the executive has determined to fall under these categories. To illustrate this point I will discuss two potentially problematic individuals whom the government has argued before the Supreme Court to be covered by the AUMF as unlawful combatants: Salim Ahmed Hamdan and Anwar al-​Aulaqi.

5.1  Combatancy in the courts 5.1.1 Salim Hamdan: The unlawful combatant by conspiracy Salim Ahmed Hamdan was detained by the United States shortly after the opening of hostilities against al-​Qaeda in late 2001.91 Hamdan was to be tried by military commission under the Detention, Treatment, and Trial of Certain Non-​Citizens in the War Against Terrorism military order on the charge of conspiracy to commit war crimes.92 Under that charge, Hamdan was to be held responsible for “willfully and knowingly join[ing] an enterprise of persons who shared a common criminal purpose to commit . . . offenses triable [by] military commission,” including attacking civilians, civilian objects, murder by an unprivileged belligerent, and terrorism.93 In the government’s brief submitted to the Supreme Court in Hamdan, the attorneys argued unequivocally that “[i]‌n the AUMF, Congress authorized the use of military commissions in the ongoing conflict against al Qaeda.”94 More explicitly, they argued from the direct text that the AUMF authorized the President “to use all necessary 92   Hamdan v Rumsfeld (2006) 548 US 557, 568–​69.  Ibid.   Brief for Respondents at 16, Hamdan v Rumsfeld (2004) 548 US 557.

91

94

93

 Ibid 570.

247

274

Rewriting the AUMF

and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States.”95 Further, they contended the authorization included a recognition that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” quoting the AUMF preamble, 115 Stat 224.96 The government then argued from the plurality of the Court’s ruling in Hamdi that “the AUMF authorized the President to exercise his traditional war powers,” and it relied on Quirin for the proposition that “the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice’, are ‘important incident[s]‌of war’.”97 Because “[t]he trial and punishment of enemy combatants” is a fundamental incident of war, it follows that, in authorizing the President “to use all necessary and appropriate force” against al-​Qaeda, the AUMF authorized the use of military commissions against enemy combatants such as Hamdan. The government’s primary contention, in other words, was that Hamdan, through his association with members of al-​Qaeda, became an enemy combatant and thereby a legitimate target for military detention, and presumably targeted killing, under the AUMF. In regard to Hamdan’s status as a combatant, the Supreme Court made sure to note that Hamdan did not have any command authority, did not play a leadership role, and did not participate in the planning of any of the triable offenses.98 In fact, there were only four actions taken by Hamdan himself that were said to be in furtherance of the conspiracy:  acting as Osama bin Laden’s bodyguard and driver; transporting weapons used by al-​Qaeda members; driving Osama bin Laden to al-​ Qaeda-​sponsored camps; and receiving weapons training at said camps.99 A plurality of the Court found the claim that conspiracy was a triable violation of the laws of war to be a troubling contention. It notes that for Hamdan to be tried by a law-​of-​war military commission, the government “must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war.”100 The Court noted succinctly: “[t]‌hat burden is far from satisfied here.”101 There has almost never been a charge of conspiracy brought before a military commission and indeed the charge does not appear in either the Hague or Geneva Conventions.102 As the Court notes, “it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt.”103

96 97 98 99  Ibid.  Ibid.   Ibid (internal citations omitted).  Ibid.  Ibid. 101   Hamdan v Rumsfeld (2006) 548 US 557, 603.  Ibid. 102   Ibid. For an extended discussion of the illegitimacy of conspiracy to commit war crimes as an offense against the laws of war, see ibid 604–​61. See also Raha Wala, “From Guantanamo to Nuremberg and Back: An Analysis of Conspiracy to Commit War Crimes Under International Humanitarian Law” (2010) 41 Geo J Intl L 683. But see Hamdan v Rumsfeld, 548 US 557, 689–​91 (Thomas J dissenting). 103   Ibid 604, quoting W Winthrop, Military Law and Precedents (rev 2d ed 1920) 841. 95

100

275



Combatancy in the Courts and in Congress

275

5.1.2 Al-​Aulaqi: The unlawful combatant by position and speech Anwar al-​Aulaqi was a dual Yemeni-​American citizen and Muslim cleric who was operating out of Yemen in early 2011 when he was killed by a drone strike authorized and executed by the US government.104 What led the US government to place the cleric on its target list? Below is the DC District Court’s summary of the offenses that put al-​ Aulaqi on that list and ultimately led to his death as a result of a drone strike: On July 16, 2010, the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) designated Anwar Al-​Aulaqi as a Specially Designated Global Terrorist (“SDGT”) in light of evidence that he was “acting for or on behalf of al-​Qaida in the Arabian Peninsula (AQAP)” and “providing financial, material or technological support for, or other services to or in support of, acts of terrorism[.]‌” In its designation, OFAC explained that Anwar Al–​Aulaqi had “taken on an increasingly operational role” in AQAP since late 2009, as he “facilitated training camps in Yemen in support of acts of terrorism” and provided “instructions” to Umar Farouk Abdulmutallab, the man accused of attempting to detonate a bomb aboard a Detroit-​bound Northwest Airlines flight on Christmas Day 2009. Media sources have also reported ties between Anwar Al–​Aulaqi and Nidal Malik Hasan, the U.S. Army Major suspected of killing 13 people in a November 2009 shooting at Fort Hood, Texas. According to a January 2010 Los Angeles Times article, unnamed “U.S. officials” have discovered that Anwar Al-​Aulaqi and Hasan exchanged as many as eighteen e-​mails prior to the Fort Hood shootings. Recently, Anwar Al-​Aulaqi has made numerous public statements calling for “jihad against the West”, praising the actions of “his students” Abdulmutallab and Hasan, and asking others to follow suit.105

In short, it appears that the US government was arguing that al-​Aulaqi became a targetable combatant by virtue of his “leadership position” within AQAP and by virtue of something similar to inciting others to take violent acts. As was discussed above, IHL recognizes the principle of distinction that demands differentiating civilian from combatant, and this concept is deeply troubled by an executive scheme that recognizes little or no separation between civilian support of a military effort and active participation in combat. However, it appears that the government may have believed that in addition to the claim that al-​Aulaqi became a combatant by his acts, he was also a combatant by nature of his status within AQAP. Perhaps more importantly, this decision was made not by an elected body of representatives, but by a small bureaucratic arm of the US Treasury department.106 If the legislature chooses not to provide guidance, the courts occasionally choose to curtail the executive. However, as a general rule, the courts have been hesitant to address the outer boundaries of the reach of the AUMF’s grant of executive authority in targeting decisions. This is no more clearly represented than in the al-​Aulaqi case,

104   Mark Mazzetti, Charlie Savage, and Scott Shane, “How a U.S. Citizen Came to Be in America”s Cross Hair” (2013) New York Times, March 9, at A1. 105   Al-​Aulaqi v Obama, 727 F Supp 2d 1, 10 (DDC 2010) (internal citations omitted). 106  Ibid.

267

276

Rewriting the AUMF

in which the District Court outright rejected the proposition that it had the authority or the knowledge to rule on the status of Anwar al-​Aulaqi, stating that doing so would require this Court to decide: (1) the precise nature and extent of Anwar Al–​Aulaqi's affiliation with AQAP; (2) whether AQAP and al Qaeda are so closely linked that the defendants’ targeted killing of Anwar Al–​Aulaqi in Yemen would come within the United States's current armed conflict with al Qaeda; (3) whether (assuming plaintiff's proffered legal standard applies) Anwar Al-​Aulaqi’s alleged terrorist activity renders him a “concrete, specific, and imminent threat to life or physical safety.”107

Such considerations involved “complex policy questions” that “the DC Circuit has historically held non-​justiciable under the political question doctrine.”108 This would suggest that absent congressional directive or involvement, the executive is the only branch capable of determining combatant status and, thereby, the possibility for an individual to be killed abroad. This is perhaps best summarized by the Court itself: “To be sure, this Court recognizes the somewhat unsettling nature of its conclusion—​that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.”109 The fact that the courts appear to have abdicated any responsibility in this realm cries out for congressional direction on this point.

5.2  Combatancy in the Congress Congress has come fairly close to endorsing the view taken by the executive on the issue of unlawful combatancy, though not in the AUMF. The Military Commissions Act of 2006 (2006 MCA)110 was the first legislative document to define unlawful combatancy. Subchapter I section 1 of the MCA defines an unlawful combatant as follows: “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-​belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).”111 Subsection (ii) then expands this definition retroactively to include someone “who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy.”112 Additionally, a military

108 109   Al-​Aulaqi v Obama, 727 F Supp 2d 1, 49-​51 (DDC 2010).  Ibid.  Ibid.   Following the Supreme Court’s ruling in Hamdan, Congress passed the 2006 Military Commissions Act (MCA) that contained a number of provisions reaffirming and expanding executive authority in the “War on Terror.” This included sections 5 and 6 which state:  “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” This provision is a prima facie repudiation of the language of Hamdan that found rights associated with the Geneva Conventions to be binding on the United States government. In respect to unlawful combatants, section 5 essentially meant that the combatant had no recourse under the Geneva Convention to have a court hear the legitimacy of the basis of their detention. In what also appears to be a repudiation of the plurality’s decision in Hamdan that conspiracy to commit war crimes was not an offense recognized by IHL, Congress chose to include conspiracy as a crime triable by military commission in the Act. 111 112   MCA 2006, Subchapter I, 948a(1)(i).   Ibid 948a(1)(ii). 107 110

27



Congressional Guidance in an Updated AUMF

277

commission could thereby try any individual determined to be an unlawful combatant under these provisions. In Boumediene v Bush the Supreme Court explicitly invalidated the provisions of the 2006 MCA relating to the suspension of the writ of habeas corpus,113 and so in 2009 Congress was required to pass a similar piece of legislation by the same name to address the Court’s concerns. The 2009 MCA dropped the language of the denial of rights under the Geneva Conventions, but largely maintained its provisions on unlawful combatancy, though under a slightly different moniker. Section 948(a)(7) defines an unprivileged enemy belligerent as an individual (other than a privileged belligerent) who: (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense under this chapter.114

For clarification, “privileged belligerent” was defined as any individual belonging to any of the eight categories enumerated in Article 4 of the Geneva Convention.115 As was the case in the 2006 MCA, the 2009 version explicitly incorporated the idea that “[a]‌ny alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter.”116 In both the 2006 and 2009 MCAs, provisions were included that made any attacks on US forces by unlawful combatants a war crime.117 When this notion is paired with the definition of an unprivileged enemy belligerent from the 2009 MCA and combined with the United States’ determination that neither al-​Qaeda nor the Taliban are covered by Article 4(iii) of the Geneva Convention, it becomes apparent that every member of the Taliban or al-​Qaeda is an unprivileged enemy belligerent capable of being tried for war crimes by US military commission. In short, all current enemies of the United States participating in hostilities against American forces are by nature unlawful combatants who can be tried for war crimes by a military commission. This view seems to wholeheartedly embrace the executive’s collapsing of civilian support of military forces with complete unlawful combatant status.

6.  Congressional Guidance in an Updated AUMF As was discussed in the previous sections, the US government, particularly the executive branch, has largely collapsed the categories of civilian and combatant in the “War on Terror,” while retaining the full rights of neither. Moreover, it has done so under the auspices of the 2001 Authorization for the Use of Military Force. It is my assertion that because that executive has misused and misconstrued the bounds of its authority under the AUMF and does not have strong incentives to alter that position, Congress

  Boumediene v Bush, 555 US 723, 732–​3 (2008).   Military Commissions Act of 2009, 10 USC s 948(a)(7) (hereinafter MCA 2009). 115 116   Ibid s 948(a)(6).   Ibid s 948(c). 117   See MCA 2006 s 950(v)(b); MCA 2009 s 950(t). 113 114

278

278

Rewriting the AUMF

must update the AUMF to include a broader recognition of combatancy that includes applying IHL to non-​state actors, allowing for recognition of partial compliance with the IHL, making an explicit statement in support of the principle of distinction and the concept of combatancy, and, finally, providing criteria for targeting those who do not fall into the expanded definition of combatancy and are therefore unprivileged belligerents or civilians. To demonstrate this point, I  will first turn to the existing statutory language to illustrate the vague and sweeping authority it provides and how it may imply the very stance that the executive branch has taken. From that starting point, I will explore each of my recommended corrections in more detail.

6.1  Statutory language of the current AUMF Though it is ambiguous, the text of the AUMF remains the most obvious place to begin our discussion of a solution to the combatancy problem. There are only two main sections to the AUMF. The first authorizes the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”118 The second acknowledges that the authorization is compliant with the War Powers resolution and that the AUMF does not alter any the requirements of that resolution.119 For the purposes of this chapter, the first section is the most relevant, as it is this section the executive relies on for many of its claims to authority.120 The first three categories in that section, the “nations, organizations or persons,” along with those groups’ or individuals’ association with the September 11 attacks (planned, authorized, committed, or aided), determine who may be targeted under the authorization. However, the answer to this presumably factual question is left solely to the resolution of the President (“he determines”). In other words, “[t]‌he AUMF authorized force against essentially any actor the president determines had sufficient connections to the September 11th attacks.”121 In addition to the authorizing text of the AUMF, there is also a preamble that is relied upon by the government in its legal arguments from time to time. In particular, the US government cites two specific lines from the preamble: “Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”122 It is not a difficult intellectual leap to see how these provisions could be used to undermine the requirement that the targets of force be related to 9/​11, as well as the general necessity of the AUMF. If the threat is ongoing indefinitely, and the President already has the authority under the Constitution, why is the AUMF even necessary and why would the relationship to 9/​11 matter?

119   Authorization for Use of Military Force Pub L 107-​40 115 Stat 224-​225 (2001).  Ibid.   See the arguments made in the government’s briefs in Hamdan and Al-​Aulaqi discussed above. 121   Cronogue (n 4) 379. 122   Authorization for Use of Military Force Pub L 107-​40 115 Stat 224-​225 (2001). 118

120

279



Congressional Guidance in an Updated AUMF

279

There are those who would argue that there may not be a need for the AUMF123 as the War Powers Act may be unconstitutional.124 However, for the purposes of this chapter, I will assume that such a contention is incorrect, that the War Powers Act is constitutional, and that an AUMF is required for a president to legally employ the military use of force abroad. So where does this leave us? The executive branch has claimed that Hamdan’s association to al-​Qaeda as a personal driver made him detainable—​and therefore presumably targetable. In the context of military detention and military commissions, the US Congress has largely endorsed this view. The executive has targeted and killed a US citizen, as a leader of AQAP, for endorsing and promoting attacks on the United States. It is my contention that this state of affairs is unacceptable. For one, the United States has essentially claimed that none of its enemies in the War on Terror are true combatants or civilians within its understanding of the concepts. Instead they are the hybrid unlawful combatant, without the full protections or benefits of either combatant or civilian status. Second, and I believe more importantly, this stance places the United States at odds with the developing trend of the War Convention. To remedy this, I believe that Congress should implement three main ideas into a reauthorized and updated AUMF:  (a)  expand combatant protections to non-​ state actors to remove the argument that al-​Qaeda membership or support alone is grounds for an immediate elimination of all combatant rights and civilian status, thus eliminating the “right type of conflict” problem; (b) provide a framework from which individuals can reclaim some of the rights of combatants by complying with some of the four criteria establishing combatant status under the Geneva Conventions, instead of making compliance an all-​or-​nothing affair; (c) reaffirm the United States’ commitment to upholding IHL, the principle of distinction, and the idea that, whenever possible, there should be a consistent divide between civilian and combatant.

6.2  Extension of combatant status to non-​state actors As mentioned briefly in Section 3 of this chapter, Geoffrey Corn verbalizes the idea that within the Law of Armed Conflict there are traditionally two criteria for lawful combat status—​t he individual must be involved in the “right type of conflict” and also be the “right type of person.”125 While acknowledging that this has been the traditional standard for combatant status and the rights and privileges associated with that status, Corn ultimately comes to the conclusion that the “right type of conflict” prong of the test may not be in the best interest of the international community.126

123   See J T Emerson, “The War Powers Resolution Tested: The President’s Independent Defense Power” (1975) 51 Notre Dame L Rev 187. 124   Ibid 209–​13 (arguing Congress may declare “offensive” wars); Eugene V Rostow, “Great Cases Make Bad Law:  The War Powers Act” (1972) 50 Tex L Rev 833, 864–​66 (some “undeclared wars” are constitutionally legitimate). 125 126   Corn (n 20) 255.   Ibid 293–​94.

280

280

Rewriting the AUMF

The argument for an extension of combatant immunity to non-​state actors is made on largely consequentialist grounds. Making an incentive-​driven argument, Corn suggests that if the primary goal of the equation is to ensure compliance with humanitarian law—​ and in particular to mitigate the risk to innocent civilians by enhancing the distinction between these civilians and belligerents—​t hen extending the opportunity to qualify for combatant immunity to non-​state belligerents could potentially contribute to this purpose.127

After much deeper analysis, Corn concludes that, as the IHL stands, there is “absolutely no incentive for individuals associated with . . . non-​state groups to endeavor to comply with the principles of humanitarian law,” because even compliance with the four criteria will not necessarily protect them under IHL, as non-​state actors are deemed outside the reach of IHL.128 Moreover, extending combatant immunity to these groups would not endanger the current authority of states in any meaningful way.129

6.3  Recognition of partial compliance Paired with this expansion of IHL to non-​state actors should be a system that recognizes intermediate levels of compliance with the four IHL requirements for combatancy. Eric Jensen, rather than arguing for unlawful combatancy or against the IHL combatant/​civilian divide, instead contends that there should be an acknowledgement in IHL of intermediate levels of compliance. Jensen suggests that it is in the best interest of the international community “to evolve the law to allow for intermediate levels of recognition for partial compliance with the requirements clearly identified in article 4 of the GPW, particularly that of wearing a fixed distinctive emblem, or uniform.”130 As it currently stands, Jensen argues, IHL has “only negative incentives to comply with combatant status unless one can meet all four criteria of GPW.”131 This means that once a fighter operates outside of perfect compliance, “unlawful fighters know they will receive no benefits and will be quickly tried as murderers in domestic courts or military tribunals.”132 Jensen’s theory, then, is that through the provision of positive incentives for partial compliance, fighters who would normally operate completely outside the pale of IHL may alter their behavior to come more into line with IHL standards.133 When coupled with the expansion of combatant status to non-​state actors, this recognition of partial compliance creates a much more reasonable basis for combatancy 128  Ibid 280.  Ibid 293.   Ibid 294 (“[E]‌x tending the possibility to qualify for combatant immunity to these belligerents would in no way compromise the authority of states to prevent them from returning to hostilities after they’ve been captured, nor the authority to criminally sanction them for perfidious or treacherous conduct”). 130 131 132   Jensen (n 48) 232.  Ibid.  Ibid. 133   Ibid 233–​34. As an example of what kind of positive incentive the law could provide, Jensen suggests that “[t]‌hese protections and benefits could include immunity from prosecution for speech or association crimes connected with political beliefs; abeyance of execution of punishment until conflict is resolved; offer of parole, including immunity for weapons crimes not resulting in death or injury; compliance with international law as a mitigating factor at sentencing; disallowance of the death penalty; and if the movement which the fighter is a part of eventually achieves combatant status, the fighter’s prior lawful warlike actions may also be covered by combatant immunity.” Ibid 234. 127

129

218



Congressional Guidance in an Updated AUMF

281

in the modern world. Rather than excluding all those who take up arms against the United States and labeling them as unlawful combatants without the full rights associated with combatants or civilians, the United States can expand the concept of combatancy to allow for the targeting of these individuals at any time or place, but do so while ensuring that the rights associated with that status as combatant are still respected.

6.4  Reaffirming the combatant/​civilian divide and defining the criteria for targeting noncombatants This suggestion is perhaps the most nebulous of the three issues that Congress must address, but it may also be the most important. As was hinted at above, the United States has chosen to pursue a course of action that declares all of its current enemies beyond the pale of combatant or civilian status and the protection of those statuses under IHL. This has the troubling result of putting the entire “War on Terror” in a realm of law and decision making that is left solely to the discretion of the executive. With that discretion, the executive branch has offered the minimal protection to those it has deemed enemies, and made combatancy in IHL largely irrelevant in the new era of warfare. To counter this, Congress should announce the United States’ continuing commitment to the long-​standing principle of distinction—​that there is a meaningful difference between civilian status and combatant status and that if you are not a combatant under the expanded heading above, you must, by definition, be a civilian. Moreover, Congress should make explicit within its authorization what rights and responsibilities each category has under IHL—​namely, that civilians may not be targeted unless they are directly participating in hostilities, and that while combatants may be targeted at any time, they are entitled to POW status and the rights encompassed by that status should they be captured. Understanding that there will still be individuals who hover between the expanded combatant status and that of civilian, and realizing that there are still instances in which civilians may legally be targeted historically and in the LOAC, Congress should also provide guidance to the executive on when individuals outside the expanded realm of combatancy can be targeted. I  believe that this recommendation should resemble the ICRC Guidance of Direct Participation in Hostilities. Broadly, the ICRC Guidance recognizes that those who do not make up state armed forces or organized armed groups are civilians and are immune to attack “unless and for such time as they take direct part in hostilities.”134 The ICRC then provides three criteria for direct participation in hostilities (DPH): 1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 134  Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (ICRC 2009) 20.

28

282

Rewriting the AUMF

2. [T]‌here must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. [T]‌he act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).135 In addition to the three criteria that civilians must meet to constitute DPH, there was a remaining question of the lifespan of DPH. In other words, it was not necessarily clear when DPH began and when it ended. The ICRC attempted to answer this question as well. With regard to the timing of DPH, the ICRC first noted that measures taken in preparation to “execution of a specific act of [DPH], as well as the deployment to and the return from the location of execution” are considered part of DPH.136

7.  Counterarguments and Conclusion The United States cannot alter the contours of the War Convention on its own. Nor should it be able to do so, as that would defeat the purpose and fundamental conception of such a convention—​ideally intended to be a reflection of the common understanding of the bounds of war. However, it can move the balance of the scale in the right direction. For the past two hundred years, and especially in the past fifty years, there has been a trend toward the expansion of the protections of combatancy so as to preserve distinctions and maintain our collective belief that war can indeed be bounded. Staring into the face of a new and difficult threat of international terrorism, the United States has blinked and chosen to buck this trend. In its approach to al-​Qaeda, the Taliban, and terrorists more broadly in the “War on Terror,” the United States has chosen to revert to older, more archaic notions of combatancy that limit the rights of and protections afforded to the individual combatant (or civilian DPH). Given the broad scope of historical understandings of combatancy, this is not an inherently unreasonable position. In fact, it is possible that the judgments that define the War Convention will ultimately coalesce around the United States’ current interpretation. As the premier military force in the world and the pre-​eminent global player in the new era of non-​ traditional warfare, the United States undoubtedly has tremendous sway over the direction ultimately taken by the War Convention. In my view, rather than reverting to bygone understandings of combatancy, the United States should use its significant authority to pull the War Convention toward greater inclusion and protection, not exclusion and a dimunition of rights—​a move which would be a regression in our understanding of war and a retreat to a state of more limited bounds on the conduct of war. While a move to expand the notion of combatancy would ideally occur at the executive level, so far there has been little apparent desire to do so. Moreover, outside of

135

 Ibid.   136 Ibid 21.

283



Counterarguments and Conclusion

283

allegiance to the somewhat idealistic notions of the law of war that I have presented, the executive has little incentive to behave in a way that would broaden its understanding of the coverage of combatancy or count our enemies as civilians in DPH as it would, at least in appearance if not in actuality, limit the executive’s options in the pursuit of national security. As was discussed above, the courts have been of limited utility in addressing these questions and have presented mixed messages in discussions of combatancy. This leaves us with Congress. In summary, if you accept the view that the US approach to combatancy is counter to the trend of the War Convention and acknowledge that the executive has little incentive to change its interpretation and the courts appear to be unwilling to meaningfully alter that interpretation, then you are left with the conclusion that Congress must provide guidance to the executive on how and whom the executive can treat as a combatant under the AUMF. To bring us in line with the progression of the War Convention, I  argue that on the question of who is a combatant, Congress should include something like Corn’s extension of combatant privileges to non-​state actors, as well as Jensen’s partial compliance, and a reaffirmation of the combatant/​civilian divide. Those ideas, taken together, provide incentives to groups like al-​Qaeda and the Taliban to comply with IHL standards—​potentially decreasing the likelihood of unnecessary harm to civilians—​and also announce the United States’ commitment to upholding international law and the principle of distinction. On the question of who can be targeted outside this expanded definition of combatancy, Congress should follow the model put forth by the ICRC in regard to civilian DPH. This model preserves civilian status, but recognizes that there are instances when the rights associated with the status can be forfeited by actions taken by the civilian. Whether the use of force takes the form of detention or targeting, the AUMF must not be used as a blanket justification for any military action taken against any actor, no matter how weak their connection to al-​Qaeda or any associated force. More importantly, the United States should not be the actor pulling the War Convention backward. International law is moving toward greater protections and not lesser. The US Congress should update the current AUMF, and any future AUMF, to recognize this reality. It can and likely will be countered by those skeptical of these suggestions that even if the US Congress was able and willing to follow the general suggestions of this chapter, an assumption which is no small logical feat given Congress’ composition and previous legislation, it is exceedingly unlikely that any of the forces with whom the United States is currently in conflict would in any way alter their behavior in response to a broadening understanding of combatancy. This may well be true, but it is an assertion that cannot be proven until such measures are taken. Moreover, even if the assertion is true, incentivizing non-​state actors to comply with IHL is not the only objective of such changes. In my view, the more important objective is for the United States to bring itself into line with the development of the War Convention:  to reaffirm the belief that war can, and should, be bounded, and to reaffirm the long-​held principle of distinction between combatant and civilian.

284

12 Weighing Unjust Lives Andrew T Forcehimes

1. Introduction Are the lives of those fighting on the unjust side of a war worth less than the lives of those fighting on the just side? To get a grip on this question, consider Single Death: Country U unjustly starts a war with Country J. U and J stockpile weapons and rally troops. However, U, given J’s defensive capabilities, spends much of the war posturing. When U and J meet on the battlefield, few shots are fired, mostly for strategic purposes. Whenever U advances on J’s territory, J always forces a hasty retreat. The war drags on. Unable to make substantial progress, U signs a peace treaty with J. In tallying up the costs, it is discovered that, shockingly, only a single combatant was killed, hit by a stray mortar.

In Single Death, we can assume that the combatant is deprived of many years of happy life. Such deprivations are bad. But are they worse if we learn that this combatant fought for J rather than U? All else equal, it is tempting to answer yes. If this stray mortar had to hit someone, and we were in a position to choose, the choice seems obvious. It would be better if it hit the unjust. There is an attractive rationale for this verdict: Things are intrinsically better when people get what they deserve. Being on the just side, all other things equal, the combatant deserved to bear the cost of dying less than her unjust counterpart. Call this view, which treats the goodness of a life as the product of one’s desert-​adjusted welfare, the desert-​adjusted account. There is much to be said in favor of adjusting for desert. People differ in their levels of desert, and this should make a difference. If I am vicious and you are not, it is better that your welfare increase over mine.1 Similarly, if one of us has to suffer, my viciousness counts strongly in favor of it being me over you. These claims seem correct. And the desert-​adjusted account provides a tidy explanation, hence its popularity.2

  Following S Kagan, The Geometry of Desert (Oxford University Press 2012), when talking about desert I will use the language of virtue and vice. This is simply for convenience. Nothing substantive is intended. Virtue is simply the placeholder for whatever it is that makes one more deserving. 2   See F Feldman, Confrontations With the Reaper: A Philosophical Study of the Nature and Value of Death (Oxford University Press 1992); J McMahan, The Ethics of Killing: Problems at the Margins of Life (Oxford University Press 2002); Kagan (n 1). Kant also held this view, it seems. He writes, “What now is the summum bonum? It is the unification of the greatest happiness with the greatest degree of capacity to be worthy of this happiness. If there is to be a highest good, then happiness and the worthiness thereof must be combined . . . If we conduct ourselves in such a way that, if everyone else so conducted themselves, the greatest happiness would arise; then we have so conducted ourselves as to be worthy of happiness.” Quoted from P Guyer, Kant on Freedom, Law, and Happiness (Cambridge University Press 2000) 93. 1

Weighing Unjust Lives. Andrew Forcehimes. © Andrew Forcehimes, 2017. Published 2017 by Oxford University Press.

285



The Desert-Adjusted Account

285

Adjusting for desert provides a powerful justification for weighing the lives of the unjust differently from those of the just. If correct, the desert-​adjusted account has significant implications for just war theory.3 In war, we are forced to weigh lives. Such calculations require an account of what justifies assessing one death as worse than another. The desert-​adjusted account tells us that it is worse for the deserving to be deprived of future welfare than the undeserving. Since an unjust combatant has a lesser moral status, her death is less bad than the death of a just combatant (assuming both are deprived of equal amounts of welfare).4 Given that weighing lives pervades nearly every aspect of war, it is important to know if the desert-​adjusted account is true. Despite its appeal, I  believe that the account is mistaken. The argument proceeds in four sections. Section 2 fleshes out the desert-​adjusted account and explains why many find it attractive. Sections 3 and 4 are critical: Section 3 highlights the troubling implications that adjusting for desert has for ad bellum and in bello proportionality calculations; Section 4 turns to the accounts implications for cases in which the welfare of noncombatants cannot be influenced, but their level of viciousness can be. The implausibility of these implications calls into question the core idea of the desert-​adjusted account: namely, that there is some level of welfare that each person deserves, and things would go best if everyone were at these levels. Section 5 concludes.

2.  The Desert-​Adjusted Account To understand the desert-​adjusted account of weighing lives, we need to understand the badness of death. On the standard account—​deprivationism—​the badness of death is a comparative bad.5 Imagine two possible life trajectories for the combatant in Single Death. On Path A, the combatant is hit by a stray mortar and dies. On Path B, the mortar does not stray and she lives. After her time in the army, she goes on to have a reasonably pleasant life, dying of natural causes in old age. Path A is bad because of how it compares with Path B. Path A is cut short. The combatant suffers a loss. She is deprived of what Path B affords.6 The badness of death is traceable to this difference. 3   A now-​standard line in just war theory is that the unjust have made themselves liable in ways that just combatants or non-​combatants have not: see J McMahan, “The Basis of Moral Liability to Defensive Killing” (2005) 15 Philosophical Issues 386. But notice, the desert-​adjusted account tells us something different. It makes an axiological claim: Unjust lives count for less. Killing the unjust, that is, impacts the total amount of intrinsic good to a lesser extent than killing the just. Perhaps adjusting for desert offers a deeper explanation than rights forfeiture. If consequentialists hope to get an extensional fit with standard just war theory, the desert-​adjusted account offers an attractive option. 4   Unless noted, the equal deprivation of welfare should be assumed. It should also be assumed that the death takes away a good. We can leave aside cases where, because her life would have only negative welfare, the person’s death is a welcome relief. For brevity, I will not always make these assumptions explicit. 5  For the classic defense of deprivationism, see T Nagel, “Death” (1970) 4 Noûs 73. For a recent defense with important clarifications, see J Broome, “The Badness of Death and the Goodness of Life,” in B Bradley, F Feldman, and J Johansson (eds), The Oxford Handbook of Philosophy of Death (Oxford University Press 2013). 6   A number of complications concerning counterfactuals—​e.g. problems of overdetermination—​are here left aside. I am inclined to a “nearest possible worlds” approach. For a defense of this approach, see F Feldman, “Some Puzzles About the Evil of Death” (1991) 100 Philosophical Rev 205. For critique, see McMahan (n 2) 119.

286

286

Weighing Unjust Lives

But what, in particular, does death deprive us of? Is there more than one factor?7 If there are multiple factors, how do they interact? One obvious factor is welfare. If welfare is the only factor lost in death, then we can say that the badness of a person’s death is solely a function of the welfare her life would have otherwise contained. Call this the straight-​welfare approach. On this approach, if we want to know the badness of Single Death, we compare the welfare contained in Path A (where the combatant dies) with her welfare in Path B (where she lives). The difference in total welfare between Path A and B tells us the badness of her death. Cashing out the badness of death solely in terms of welfare fits well with many of our considered judgments. For example, it seems intuitively worse for a twenty-​five-​ year-​old to die than an eighty-​year-​old. Why? Because, assuming a plausible welfare per-​year distribution, the twenty-​five-​year old loses more welfare than the eighty-​year-​ old. That seems like the right verdict. Still, problems loom for the straight-​welfare account. Consider Factory: There has been an explosion at the local factory, and Andy and Becky have both sustained life-​t hreatening injuries. Without immediate medical treatment, they will die. We are EMTs on the scene. We have medicine that can save the life of either Andy or Becky, but not both. We know, however, that Andy culpably caused the explosion—​after being passed over for a promotion, he intentionally left the gas on. All other things are equal.8

In stipulating that all else is equal, we stipulate that the welfare contained in Andy’s and Becky’s lives, were they not to die, is exactly the same. This stipulation, combined with the view that welfare is the only relevant factor in determining the badness of death, tells us that Andy’s and Becky’s impending deaths would be equally bad. If we knew that helping Andy or Becky would have no indirect effects—​for example, incentivizing immoral behavior—​we could decide whom to save by flipping a coin. Surely that would be a mistake. Even if we could keep Andy’s behavior entirely secret, it seems we should help Becky. But, if we think it would be better to save Becky than Andy, then we must think that the badness of death does not consist in the deprivation of welfare alone. Enter desert-​adjusted weighing. If we want to hold that it is better to save Becky, we need to identify a worse-​making feature that sets her death apart from Andy’s. The main difference, of course, is that Andy is less virtuous than Becky. In light of Becky’s greater virtue, she deserves to be better off. Our medicine will prevent a loss of welfare for one of these people. The world, we might plausibly say, is a better place if Becky is given the welfare, as opposed to culpable Andy. According to the desert-​adjusted account, then, the badness of death is a function of the amount of welfare one receives and the amount of welfare one deserves. If we adopt this account, we can maintain, all

7   McMahan (n 2) 183, for example, lists six factors. I will not discuss all six. But I will discuss his fifth, “Were the individual’s previous actions or character such as to make him deserving of the goods he lost?” See ibid. That McMahan endorses this factor commits him to the desert-​adjusted account. 8   Modified from Kagan (n 1) 23.

287



The Desert-Adjusted Account

287

other things equal,9 that we should help Becky, because Andy’s culpability makes his death less bad than Becky’s. We should not, however, be misled by the specifics of Factory. The desert-​adjusted account is not concerned with doling out specific rewards (or punishments) for specific virtues (or vices). Instead, the account is interested in the overall—​bottom-​line—​ amount of welfare one receives. The desert-​adjusted account, in other words, is a whole-​life approach.10 As Kagan clarifies, “[W]‌e look at lives as a whole, to see what one deserves (overall), and whether one has received it (overall).”11 Visualizing the differences between a straight-​ welfare and a desert-​ adjusted approach will be helpful. It will also allow other important details of the desert-​ adjusted account to emerge. In Factory, we can bestow a fixed amount of welfare on either Andy or Becky. We want to know if things go better or worse if we give the medicine to Becky over Andy. If we let the X-​a xis indicate welfare levels (with increasing welfare from west to east)12 and let the Y-​a xis indicate intrinsic goodness of a given state of affairs (with goodness increasing from south to north), then the straight-​ welfare account’s answer to this question can be represented graphically as is shown in Figure 12.1.13

Andy & Becky

Welfare

Intrinsic Goodness

Fig. 12.1  Straight-​Welfare

9   Notice that the “all other things equal” stipulation now tells us that Andy and Becky stand to lose the same welfare and that their desert levels, were they not to die, hold steady. 10   On this whole-​life approach, it matters if, say, Becky experienced a wonderful childhood with unusually high levels of welfare, while Andy had a particularly nasty childhood with very low levels of welfare. If Becky and Andy’s desert levels were close enough and the gap in prior welfare was wide enough, then our verdict might be reversed. For now, we can put this complication aside and assume rough equality between their prior-​to-​Factory welfare. 11   Kagan (n 1) 11. See also Feldman (n 2) 182. 12   Points to the east of the origin are lives worth living. Points to the west of the origin are lives not worth living. I am concerned, at this point, only with the former. I draw the graphs accordingly. 13   In representing the competing approaches graphically, I follow standard practice in the desert literature. See, for example, F Feldman, “Adjusting Utility for Justice:  A  Consequentialist Reply to the Objection from Justice” (1995) 55 Phil and Phenomenological Research 567; T Hurka, “The Common Structure of Virtue and Desert” (2001) 112 Ethics 6; and most impressively Kagan (n 1). Many of the graphs below are modified from Kagan (n 1) ch 3.

28

288

Weighing Unjust Lives

As Figure 12.1 shows, on the straight-​welfare account, Andy and Becky’s lines overlap. Any deprivation in welfare is also a deprivation in intrinsic goodness. It is good that we give the medicine to Andy or Becky: It doesn’t matter whom. Either distribution is equally good. We should be indifferent between the two. The desert-​adjusted account tells us otherwise. As Kagan puts it, [F]‌or each person there is an absolute level that the person deserves to be at. This is what the person deserves absolutely. If people have what they deserve, this is good . . . If people have less than they deserve, then this is less good, or perhaps even bad . . . [If] someone has more than they deserve, this is less good, or perhaps even bad.14

We can capture the core tenets of the desert-​adjusted account with three principles. Peaks: The line for each level of virtue is mountain-​shaped, with a highest point. This peak is what each person, in terms of overall welfare, deserves. Shift: If Becky’s virtue level is greater than Andy’s, then the peak welfare level for Becky is greater than the peak for Andy. Bell Motion: If Becky’s virtue level is greater than Andy’s, then the mountain for Becky rotates counterclockwise.15 Andy has a certain virtue level. So does Becky. But, given Andy’s culpability, Becky’s virtue level is higher. Becky is more deserving. Each of these virtue levels has a corresponding peak. The peak for Andy is what he deserves given his virtue level. Becky also has a peak. Like Andy, her peak indicates the level of welfare she deserves. Peaks thus tells us that welfare contributes to intrinsic goodness up to a point.16 This point is set by one’s level of desert. After this point, welfare’s contribution to goodness drops off.17 So, if Andy and Becky are at their respective peaks, any change in welfare is a change for the worse.18 However, given Shift, Becky’s peak corresponds to a greater level of welfare than Andy’s. In slogan form, “the more deserving deserve more.”19 Peaks and Shift, taken together, tell us that different amounts of intrinsic goodness correspond to different levels of welfare for Andy and Becky.20 They thus set the desert-​adjusted account apart from the straight-​welfare account. Yet recall our stipulation that Andy and Becky would be deprived of the same amount of welfare. Suppose this amount is exactly what it would take to get Andy to his peak. Would the desert-​ adjusted account then tell us to be indifferent? To avoid answering yes, we need Bell Motion.

14   S Kagan, “Equality and Desert” in L P Pojman and O McLeod (eds), What Do We Deserve (Oxford University Press 1999) 300. 15   I have modified this way of capturing the desert-​adjusted account from B Skow’s review of S Kagan, “The Geometry of Desert” (2014) 124 Ethics 417, 418. 16   The straight-​welfare approach, by contrast, tells us that it is always good the more welfare one receives. 17 18 19   Kagan (n 1) 82.  Ibid.  Ibid. 20   Peaks, it is worth noting, does not favor retributivism—​ t hough, obviously, it is compatible. Figure 12.2 is neutral between retributivists and non-​retributivists. A retributivist holds that it can be good for the vicious to suffer. That is, retributivists affirm, while non-​retributivists deny, the existence of negative peaks—​t hat is, peaks that fall to the west of the origin on the X-​a xis.

289



The Desert-Adjusted Account

289

Bell Motion captures an intuitive thought:  The more virtuous you are, the more important it is that you receive the welfare you deserve. Consequently, if Becky is more virtuous than Andy, it is worse for Becky to be below her peak by a certain amount of welfare than it is for Andy to be below his peak by that same amount.21 Bell Motion ensures that the virtuous convert welfare into goodness more efficiently than the vicious. We can now represent the desert-​adjusted account graphically as follows.

Andy

Becky

Welfare

Intrinsic Goodness

Fig. 12.2  Desert-​Adjusted Account

As Figure 12.2 illustrates, if both Andy and Becky possess welfare below their peaks, distributing additional welfare to Becky increases intrinsic goodness more than distributing welfare to Andy. Becky has a steeper western slope. Bell Motion also tells us that if Becky gets more than she deserves, it is less bad than if Andy gets more than he deserves. If, for example, the welfare benefits of continued existence overshoot Becky’s peak, we should still give her the medicine—​for, given her more gradual eastern slope, it is less bad for Becky to get more than she deserves than Andy.22 It is, in a word, better to shortchange the vicious and overcompensate the virtuous.23 Peaks, Shift, and Bell Motion form the core of the desert-​adjusted account. The desert-​adjusted account delivers the intuitively correct verdict in Factory and Single Death. No doubt, the account is enticing. When death deprives someone of future welfare, better that it fall on the wicked. That is hard to deny. Nevertheless, we should be wary. By turning to the context of war, the problems with the desert-​adjusted account become vivid. In the next section, I focus on Peaks.   Kagan (n 1) 103.   Bell Motion, of course, allows for the possibility that it is better to help the more vicious. We have already seen one possibility, given the whole-​life approach. Another possibility is that we have unequal amounts of welfare to distribute—​e.g. we can give Becky only a few years of happy life but Andy many years of happy life. I am, for now, assuming these complications away. 23   Kagan (n 1) 100. 21

22

920

290

Weighing Unjust Lives

3.  The Problem with Peaks Peaks, recall, tells us that there is some level of overall welfare each person deserves. If one is at her peak, things are going as well as they could. Any increase or decrease in welfare makes things worse. Peaks lies at the heart of the desert-​adjusted account. But consider what Peaks implies for wide-​proportionality calculations—​calculations involving those who have not made themselves liable to be killed.24 Wide-​proportionality calculations are intimately connected with lesser-​evil justification. When making such calculations we compare the good achieved by acting in a certain way with the bad produced by acting in this way. The good effect must be sufficiently good to compensate for the bad effect. Wide proportionality tells us, ad bellum, that the bads inflicted on the non-​liable must not be out of proportion with the goods produced by going to war. In bello, it tells us that a specific act of war, say, the bombing of a munitions factory, is impermissible if the bad caused by the bombing—​for example, the collateral killing of the non-​liable—​is out of proportion with the goods achieved by bombing. With this rough sketch,25 we can draw out the implications of the desert-​adjusted account. Consider a variant of the in bello case just described Eastern Civilians: Country U is unjustly fighting a war with Country J. J knows that U is housing a stockpile of weapons in a factory within bombing distance. These weapons will bring the war to a favorable end sooner, but not by much. J thinks the bombing is worth pursuing, but wants more information on the collateral damage. Reliable reports reveal that 1,000 of U’s non-​combatants will be killed if J bombs the factory, but the lives of all of these non-​combatants are, given their desert levels and welfare levels, east of their peaks. And, despite the war, the future for these non-​ combatants looks bright.

Wide proportionality tells us to refrain from acts in cases where marginal gain comes with tremendous loss. But, if the desert-​adjusted account is true, Eastern Civilians is not such a case. The noncombatants’ welfare levels are east of their peaks. Their welfare levels outstrip their virtue levels. So, assuming that their further lives will have on-​balance positive welfare, things only get worse if U’s noncombatants live. Their deaths, according to the desert-​adjusted account, would make things go better than their continued existence. Wide proportionality would thus not rule out J’s bombing of the munitions factory. We could not say, if the desert-​adjusted account were true, that J’s bombing is impermissible because the badness caused by the bombing is out of proportion with the goodness achieved. Why? Because the deaths would not be bad in the first place. In fact, these deaths would be good. That is hard to believe.

24   For more on the distinction between wide and narrow proportionality, see J McMahan, Killing in War (Oxford University Press 2009) 21. 25   For clarification and development, see T Hurka, “Proportionality in the Morality of War” (2005) 33 Phil & Public Aff 34; M A Newton and L May, Proportionality in International Law (Oxford University Press 2014).

219



The Problem with Peaks

291

The desert-​adjusted theorist might here dig in her heels. Once we fully appreciate that people are getting more than they deserve, she might protest, we should welcome the result that wide proportionality is satisfied. For example, if we focus on the viciousness of the noncombatants in Eastern Civilians, the verdict delivered by the desert-​adjusted account is intuitive. This protest, however, does little to help. We need not postulate that the noncombatants are vicious at all. Two variables determine where we are on our desert-​ mountains: overall welfare and desert levels. And remember that the desert-​adjusted account, as a whole-​life approach, is atemporal. Suppose, then, that the noncombatants in Eastern Civilians happened to be completely virtuous but extremely fortunate. Given the sheer magnitude of welfare their lives already contained, they are on their eastern slopes. J is thus not prevented by wide proportionality from bombing these virtuous noncombatants. That is even harder to believe. The problem made vivid by wide proportionality, as should now be clear, is traceable to Peaks. Past the point at which people are getting their due, additional welfare makes things worse. Accordingly, after this point, the bad usually associated with killing vanishes. The deaths of those on their eastern slopes carry no weight. The potential noncombatant deaths in Eastern Civilians therefore do not factor positively into the wide-​proportionality calculation, as it seems they should. One response to this problem relies on dropping an assumption we’ve been making: namely, that the desert-​adjusted account treats the fit between desert and welfare as exhausting intrinsic goodness. Call this the complete axiology approach.26 Though he does not commit either way, Kagan flags the possibility of taking a different tack. As he explains: [I]‌f we accept a pluralistic theory of the good, where other factors beyond desert have intrinsic value as well, then it might well be the case that in terms of one or more of these other factors, more good overall is done by having one person be at their peak rather than another.27

In adopting this strategy, one could hold that welfare contributes to intrinsic goodness regardless of where the welfare recipient is on her desert mountain. On this incomplete axiology approach, one factor would be one’s desert-​adjusted welfare and another, independent, factor would be one’s welfare. Both of these factors would hence need to come into play to determine total intrinsic goodness. On such an approach, even if killing U’s noncombatants would be good from the point of view of desert, it might still, given their loss of future welfare, be bad overall. An incomplete axiology makes the desert-​adjusted account hard to pin down. If other factors can come into play, then it is difficult to tell if a problem we identify isn’t remedied by one of these other factors.28 But we can still say this: If the desert-​ adjusted account is true, it is (at least to some extent) better if a person east of their

  For example, Feldman (n 13) presents the desert-​adjusted account as a complete axiology.   Kagan (n 1) 141. McMahan (n 2) ch. 2, for example, takes the incomplete approach—​adjusting for desert is only part of his total axiology. 28   Nor do we know how these factors interact. 26 27

29

292

Weighing Unjust Lives

peak does not receive additional welfare. In other words, there is, even on this incomplete approach, some reason to prevent further welfare from flowing to this person. Perhaps this reason is outweighed by other factors. Nonetheless, it is worse, according to the desert-​adjusted account, when people continue to move east of their peaks. We can test this claim. But we need a way of isolating the reason that adjusting for desert provides. To build such an isolation test, it will help to have an example. Consider a narrow-​proportionality case Eastern Army:  Country U is an unjust aggressor, invading J’s abandoned northern territories. J cares little about these territories. Indeed, suspicious of U, J has rigged these territories with landmines. The landmines can be remotely detonated. Detonating is the only way for J to gain back the north. If J detonates the landmines, thousands of U’s troops will be killed. Reliable reports reveal that U has no further plans to press the invasion, and the lives of all U’s combatants are, given their desert levels and previous welfare levels, east of their peaks.

To make the isolation test work, we need to make a somewhat contrived stipulation: the loss in future welfare of U’s combatants is exactly the same amount of welfare that J would lose in giving up the northern territory. This isn’t as gimmicky as it might first appear. Imagine that all of U’s combatants will live lives that, due to ups and downs in welfare, are just barely positive. Next, imagine that J’s citizens care some, but not much, about these lands. If J gives up the northern lands, J’s citizens would lose some welfare. The loss in territory thus brings with it negative welfare, but just barely. Eastern Army is admittedly stylized, but our isolation test is straightforward. To see how it works, we need to fix some terms. An action is impermissible if and only if refraining from the action is required. An action is merely permissible if and only if it is an action that is permissible but not required; we have sufficient (but not decisive) reason to act in this way. An action is required if and only if there is decisive reason to perform the action; it is the uniquely permissible action.29 To repeat, for an action to be merely permissible (permissible but not required), there must be sufficient but not decisive reason to perform the action. This is where the isolation test comes in. Suppose we want to know if something provides us with a reason to act in a certain way. If we know, independently, that some act is merely permissible—​for example, killing in self-​defense—​then we know that any additional reason tips the balance. A reason in favor of killing would make killing required; a reason against killing would make killing impermissible. Suppose that, given U’s unjust invasion, it would be merely permissible for J to detonate the landmines. J’s detonating satisfies narrow proportionality; killing U’s combatants falls within the scope of their liability. So, on the basis of U’s act of aggression, there exists sufficient, but not decisive, reason to detonate. Next, remember that the welfare levels previously experienced by U’s army are such that additional future

29   Defining deontic verdicts in this way is popular and compelling. See, for example, D Parfit, On What Matters, Vol 1 (Oxford University Press 2011) 32; M Schroeder, “What Makes Reasons Sufficent” (2015) 52 Am Philosophical Quart 159; and most importantly for our purposes S Kagan, The Limits of Morality (Oxford University Press 1989).

293



The Problem with Peaks

293

welfare would reduce intrinsic goodness. This badness supplies J with another reason to detonate. Thus, according to the desert-​adjusted account, J is required to detonate. That is not so.30 The incomplete axiology approach makes desert-​adjustments’ contribution to goodness hard to discern. Given that the point here is subtle, another pass is warranted. In Eastern Army, we stipulated that the lives of U’s combatants contained more welfare than deserved. This surplus of welfare puts U’s combatants on the eastern side of their peaks. Any extra welfare, accordingly, will move these combatants farther down their eastern slopes, making things worse. Next we imagined a situation where, for reasons unrelated to the goodness or badness of their deaths, it is merely permissible to kill U’s combatants. The unjust aggression got us most of the way there. But, since U’s combatants had positive future welfare, we needed the contrived stipulation to ensure the balance of reasons. With things balanced, we could run the isolation test. Intuitively, our deontic verdict should stay put at permissibility—​detonating is optional. But the desert-​adjusted account gives J an additional reason to detonate. If J abstains from detonating and U’s combatants receive more welfare by continuing to exist, a worse state of affairs would obtain. This reason tips the balance. J is required to detonate. This result, however, strains credulity. The desert-​adjusted account fails our isolation test. It tells us there is a reason where there is not one. The account thus needs to be either revised or abandoned. As we have seen, Peaks has troubling implications. But the counterexamples above rely on putting combatants and noncombatants on the eastern side of their peaks. A simple revision is thus available. Abandon Peaks in favor of Plateaus: The line for each level of virtue is plateau-​shaped, with a highest point—​t he kink—​followed by a straight line. This kink is what each person, in terms of overall welfare, deserves.31

Plateaus tells us that there is a certain amount of total welfare one deserves. It is bad if one gets less than her due. However, additional welfare beyond what one deserves, unlike Peaks, does not make things go worse. We can represent the Plateaus variant of the desert-​adjusted account by revising Figure 12.2. As is clear from Figure 12.3, Bell Motion and Shift are still in effect. With the presence of Plateaus, however, Shift ensures that Becky deserves more welfare than culpable Andy. And Bell Motion ensures that, if both are below their kinks and we have equal amounts of welfare to distribute, it is better for it to go to Becky. The adoption of Plateaus mitigates the problems introduced by having more welfare than deserved. In Eastern Army, for example, J no longer has a reason to kill. Thus it is

30   Of course, there are different accounts of narrow proportionality: see D Rodin, War and Self-​Defense (Oxford University Press 2002); McMahan (n 24); and S Uniacke, “Proportionality and Self-​Defense” (2011) 30 L & Phil 253. And there are different accounts of the liability to defensive harm: see J J Thomson, “Self-​Defense” (1991) 20 Phil & Public Aff 283; M Otsuka, “Killing the Innocent in Self‐Defense” (1994) 23 Phil & Public Aff 74; McMahan (n 3); and J Quong, ‘Liability to Defensive Harm’ (2012) 40 Phil & Public Aff 45. Eastern Army will need slight modification depending on one’s particular commitments. I trust making such modifications will not prove demanding to the point of distraction. 31   For further development of Plateaus, see Kagan (n 1) ch. 5.

294

Weighing Unjust Lives

294

kink

Andy

Becky

Welfare

Intrinsic Goodness

Fig. 12.3  Desert-​Adjusted Account with Plateaus

permissible, but not required, to detonate. The desert-​adjusted account with Plateaus passes our isolation test. Still, Plateaus faces problems. It tells us that if people are east of their kink, movements east along the X-​a xis are neutral. Accordingly, though things do not get worse by having an abundance of welfare, they also do not get worse if this surplus welfare is lost. Until, of course, we hit the kink. Return to Eastern Civilians. Suppose that a number of noncombatants have welfare and desert levels far beyond their kink. On this supposition, a deprivation of the welfare from the current position west to the kink is not bad. For now, treat the desert-​ adjusted account with plateaus as taking the complete axiological approach. Imagine that the deprivation of welfare caused by the deaths of the noncombatants is less than the welfare from their current position to their kink. On this complete approach, given Plateaus, wide proportionality would again not rule out J’s bombing of the noncombatants. The deaths would not be bad. That is the wrong verdict. But we should not be hasty. The desert-​adjusted account, as an incomplete axiological theory, does not deliver this implausible result. We can now take stock. We’ve considered Peaks and found it delivers implausible verdicts for in bello and ad bellum proportionality calculations. Peaks should be abandoned. Plateaus is an improvement on Peaks. Yet, combined with the complete axiological approach, the desert-​adjusted account still yields implausible results. We should reject the desert-​adjusted account as a complete axiology. But the desert-​ adjusted account with Plateaus, as an incomplete axiology, still stands. So our residual question is this:  Should we accept this more modest version of the desert-​adjusted account when weighing lives? We should not.

4.  The Problem with Shift As an incomplete axiology, the desert-​adjusted account with Plateaus is dialectically slippery. If everyone gets more than they deserve, this is not bad. And if welfare is another feature in the axiology, then getting more welfare is intrinsically good.

295



The Problem with Shift

295

That is, from the point of view of desert, this extra welfare would be neutral. But, since welfare by itself is good, this additional welfare would make things go better overall. Despite this slipperiness, we can test the account by turning to another principle: Shift. Shift, recall, tells us that the more deserving deserve more welfare. As one’s virtue goes up, one’s kink moves east along the X-​a xis. As one becomes more vicious, one’s kink moves west. Notice that if a person is below her kink, Shift tells us that there are two routes to making things better. First, this person can receive more welfare. Second, and more interesting, this person can become more vicious. By becoming more vicious, this person thereby moves her kink west. Less welfare is required for things to be going as well as they could.

Pre-Shift Position

Welfare

Intrinsic Goodness

Fig. 12.4  Pre-​Shift

Post-Shift Position

Welfare

Intrinsic Goodness

Fig. 12.5  Post-​Shift

As Figures 12.4 and 12.5 illustrate, welfare levels stay static. The dot remains fixed along the X-​a xis. But, by moving the plateau west, intrinsic goodness goes up. So, if the desert-​adjusted account is true, then, assuming we cannot adjust welfare levels, we are given (at least some) reason to shift west. After all, things would be better. Since welfare levels can stay fixed, we can test this claim even if the desert-​adjusted account adopts the incomplete axiology approach.

296

296

Weighing Unjust Lives

To see Shift’s troubling implications, consider Western Siege: Country J is fighting a just war with Country U. Sadly, to bring the war to an end J must lay siege to U’s capital, making things go significantly worse for U’s citizens. J cannot raise the welfare levels of U’s citizens, but can provide vicious-​ making reeducation pamphlets. J has spent considerable resources ensuring that if U’s citizens follow the pamphlet’s instructions they will become, given their current low levels of welfare, exactly as vicious as needed to make things as good as they can be.

According to the desert-​adjusted account, J has reason to supply the pamphlets, and U’s citizens have reason to follow their instructions. Such a shift would promote the overall level of intrinsic goodness. But that is hard to believe. J has no reason to offer the opportunity to make people more vicious, and U’s citizens have no reason to take up this offer. Insofar as the desert-​adjusted account tells us otherwise, it should be rejected.32 Of course, many believe that matters beyond your control cannot influence how deserving you are. If we accept this control condition, it might be objected that U cannot cause J’s citizens to become more vicious. For, in that case, J’s citizens would not, in fact, be less deserving. But a control condition will not blunt the force of the objection raised here. U is not causing J’s citizens to become more vicious. U is merely offering an avenue for J’s citizens to increase the overall level of intrinsic goodness. The citizens of J can opt to read and implement the pamphlets’ instructions or not. It is up to them. Shift gives rise to a damning problem:  Things can go better by people becoming more vicious. Yet, unlike the problem with Peaks, no non-​arbitrary revision is open to the proponent of the desert-​adjusted account. But Shift cannot simply be jettisoned. If abandoned, the desert-​adjusted account would be robbed of the idea that the more deserving deserve more—​a devastating result. Indeed, without Shift, the account could not distinguish different virtue levels at all. So long as Shift is part of the account, however, the problems made vivid by Western Siege persist. The desert-​adjusted account should be abandoned.

5. Conclusion Rejecting the notion that we should adjust for desert when weighing lives is a significant result. The desert-​adjusted account provides a powerful and popular rationale for treating just and unjust lives differently. In rejecting this account, we reject the best justification for weighing the lives of the just and the unjust differently. Absent some alternative rationale, assuming equal future welfare, we should weigh the lives of just and unjust combatants equally. 32   Welfare levels in Western Siege are fixed. So assume that, in becoming more vicious, citizens do not reduce overall welfare levels by their viciousness. If that is difficult to believe, imagine that Country U offers a mixed package: viciousness reeducation pamphlets, and welfare to offset any loss in welfare caused by J’s citizens being more vicious. Though this revision makes the case more complicated, the unintuitive implications of Shift should still be obvious.

297

Conclusion

297

As seen above, the desert-​adjusted account, if true, would have important consequences for just war theory. So too would the straight-​welfare account. But I’ll leave defending the straight-​welfare account and its implications for another occasion. Instead, I want to conclude by taking a pass at something left hanging from Section 3. The lingering worry is this: If the desert-​adjusted account is false, why is it so appealing to treat the vicious differently than the virtuous in Single Death and Factory? The answer, I suggest, is that we bring about better states of affairs if we act as if the desert-​adjusted account is true. By having desert-​sensitive norms, we incentivize non-​culpable behavior and disincentivize culpable behavior. Desert helps us get along given the world we live in and the creatures we are. It directs our behavior, supplying incentives and disincentives, when natural inclination isn’t up for the task. In prisoner’s dilemmas, for example, desert serves to change the payoff matrix so as to make coordination rational. This is important because human creatures are especially deficient. People are good at looking after their own interests. No system of sanctions is needed to ensure that people attend to themselves. Rather, we need to correct for our tendency to attend too closely to our own interests, either at the expense of others, or at their neglect. It is then unsurprising that we deploy desert, as a useful fiction, to facilitate this end. Thus the trouble with relying on cases like Single Death and Factory is that we have strong reasons, not provided by the intrinsic normative significance of desert, for treating the just differently from the unjust. If this debunking explanation of our intuitions is correct, although it may appear otherwise, desert does not adjust the intrinsic goodness or badness of a death. Instead, when it comes to desert, we are prone to fetishizing: mistakenly treating what is merely of instrumental significance as if it has intrinsic significance. We should avoid this mistake. Lives, after all, may hang in the balance.

298

13 Joint and Combined Targeting Structure and Process Michael Schmitt, Jeffrey Biller, Sean C Fahey, David S Goddard, and Chad Highfill* While the rule of proportionality may be stated precisely, the foregoing chapters make it clear that it engages numerous issues of deep complexity and controversy. Its application depends on the ability to characterize and measure the seemingly elusive concepts of military advantage and civilian harm, as well as to find a meaningful way to compare the two. The legal framework underpinning the rule must support decisions about the lawfulness of attacks across the spectrum of military operations, from engagements on the front line to the use of nuclear weapons. Application of the rule of proportionality is remarkable for what it apparently leaves to the judgment of individual soldiers and commanders. Notwithstanding the ambiguities concerning the application of the rule, individuals charged with the conduct of hostilities have no choice but to find ways to decide upon the proportionality of attacks. Indeed, countless such determinations have been, and continue to be, made every day. Warfare is often unrelenting in its pace and intensity, meaning that questions concerning proportionality must be answered promptly, efficiently, and confidently. To make this possible, armed forces have developed intricate processes and structures to guide and inform the application of the rule of proportionality in practice. Given the central role of military judgment, any analysis of the rule of proportionality would be incomplete without considering its practical application. Absent such an understanding, legal theory could quickly deviate from reality to reach an outcome that is unworkable in the field. Furthermore, armed forces’ practical application of the rule is of central importance in understanding the content and evolution of the rule of proportionality through state practice. In other words, proposals for normative change must take into account how the rule is applied on the ground, in the heat of combat. They must be sensitive to the realities of modern warfare. Targeting, the systematic analysis and prioritization of entities considered for possible engagement, lies at the heart of warfare.1 It occurs at all levels of conflict (strategic, operational, and tactical2), across all “domains” of military *   The views expressed in this chapter are those of the authors in their personal capacity and do not necessarily represent any position of the governments of the United States or United Kingdom. 1   US, Chairman, Joint Chiefs of Staff (CJCS), Joint Publication (JP) 1-​02, “Department of Defense Dictionary of Military and Associated Terms” (February 2016) 236. 2   The strategic level is that at which a nation determines its objectives and allocates its resources to achieve them. At the operational level, campaigns and major operations are planned, conducted, and

Joint and Combined Targeting: Structure and Process. Michael Schmitt, Jeffrey Biller, Sean C. Fahey, David S. Goddard, & Chad Highfill. © Michael Schmitt, Jeffrey Biller, Sean C. Fahey, David S. Goddard, & Chad Highfill, 2017. Published 2017 by Oxford University Press.

29



Joint and Combined Targeting

299

operations,3 and during operations conducted by a single service, several services (joint operation), or multiple countries (combined operations). Through the targeting process, armed forces seek to match potential targets with appropriate lethal and non-​ lethal actions, the ultimate aim being to achieve specific and measurable “effects” that advance the commander’s objectives.4 While the process is primarily concerned with operational, rather than legal, considerations, decisions made at each stage thereof implicate legal rules, especially those based on the requirements of distinction, proportionality, and precautions in attack. As a result, targeting represents a key context within which international humanitarian law (IHL) is given practical effect. Targeting is a ubiquitous process among modern militaries. While individual states have developed their own detailed targeting methodologies, the discussion that follows will focus primarily on the United States’ “joint targeting cycle,” as its core elements are reflected, to a greater or lesser degree, in the procedures of other states, as well as NATO.5 However, it is important to recognize that while this chapter reflects current targeting doctrine, the detailed implementation of the targeting process in any particular operation may differ in response to the specific requirements of the situation. Additionally, although the joint targeting cycle is often used to coordinate operations intended to achieve effects on an adversary other than through injury or physical damage, the chapter considers its application only to conduct qualifying as an “attack,” an IHL term of art.6 In US doctrine, the joint targeting cycle applies first and foremost at the joint level of command, in which forces drawn from two or more branches of the armed forces are brought together under a single joint force commander (JFC).7 However, individual services apply the principles of the joint targeting cycle in order to conduct targeting within their own specific domain. This chapter therefore begins with an examination of targeting at the joint level, before considering its specific application in each domain of warfare: air, land, sea, and cyber. It concludes with a brief examination of targeting in the combined operations context, where the forces of two of more states engage in armed conflict as a coalition. In such situations, legal obligations may differ between coalition members and, therefore, the targeting process must be adapted to facilitate interoperability. sustained to achieve strategic objectives. Individual battles and engagements are then planned and executed at the tactical level. JP 1-​02 (n 1) 176, 227, 234. 3   US, CJCS, JP 3-​60, “Joint Targeting” (January 2013) I-​6. “Domains” refers to the air, land, sea, and cyber environments. 4   JP 3-​60 (n 3) vii–​i x. 5  See, for example, North Atlantic Treaty Organization (NATO) “Allied Joint Doctrine for Joint Targeting” (AJP) 3.9 (April 2016). 6   “ ‘Attacks’ means acts of violence against the adversary, whether in offence or defence.” Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (concluded June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (Additional Protocol I) Art 49(1). 7   The term “joint” refers to United States military operations in which elements of two or more military services participate, whereas the terms “combined” and “coalition” refer to military operations in which the forces of two or more States operate together. JP 1-​02 (n 1) 40, 121. “Joint force commander” is a general term denoting the officer in command of a joint force. JP 1-​02 (n 1) 125.

30

Joint and Combined Targeting

300

1.  The Joint Targeting Cycle The joint targeting cycle begins at the commencement of planning for an operation and continues throughout its execution. It is intended to provide a “comprehensive, iterative, and logical” method by which the various methods and means of warfare available are employed in support of the JFC’s objectives.8 A key aspect of the cycle is its flexibility in accommodating different timescales. “Deliberate” targeting refers to the future plans of the joint force, typically 24–​72 hours prior to execution (and sometimes beyond that period), whereas “dynamic” targeting is concerned with the current twenty-​four-​hour period and comprises a reactive process.9 Along similar lines, targets may be either “planned,” that is, they are known to exist and are scheduled for engagement as part of the deliberate process, or “targets of opportunity,” which are engaged dynamically. The latter category includes both “unplanned” targets, which are known to exist on the battlefield but have not been scheduled for engagement, and “unanticipated” targets, which appear in the course of hostilities without their existence having previously been known.10 Both the deliberate and the dynamic processes, as well as the engagement of all these categories of targets, are incorporated into the joint targeting cycle. The joint targeting cycle is divided into six distinct phases: (a) understanding the desired end state and commander’s objectives; (b) target development and prioritization; (c) capability analysis; (d) the commander’s decision and force assignment; (e) mission planning and force execution; and (f) assessment.11 As illustrated in Figure 13.1, these form a continuous cycle, with the results of one iteration informing the next. However, while the phases are ordered sequentially, in practice concurrent activity may be taking place at various phases of the cycle in order to develop targets at various stages of maturity. 1. End State and Commander’s Objectives 6. Assessment

2. Target Development and Prioritization

5. Mission Planning and Force Execution

3. Capabilities Analysis 4. Commander’s Decision and Force Assignment

Fig. 13.1  Joint Targeting Cycle12

  JP 3-​60 (n 3) I-​10.   Ibid II-​4.

8

12

  Ibid II-​1–​II-​2.

9

  Ibid II-​2–​II-​3.

10

  Ibid II-​3.

11

310



The Joint Targeting Cycle

301

1.1  Phase 1—​the end state and commander’s objectives The ultimate aim of the targeting process is to facilitate the achievement of the commander’s desired end state.13 Commanders communicate their objectives through a range of operational documentation, especially the operation plan (OPLAN),14 and update their “commander’s intent” throughout the execution of the operation. This includes legal guidance15 that makes clear the applicable legal regime16 and policy guidance regarding how the law is to be applied to the specific operation or theatre.17 The OPLAN is accompanied by rules of engagement (ROE) that set forth the circumstances in which force may be used, as well as any limitations on its use.18 ROE reflect a range of operational, policy, and legal considerations, and may therefore be more restrictive than the law alone. It must be cautioned that while ROE are drafted so that action taken in accordance with them is lawful, this fact does not relieve individual members of the armed forces of their obligation to consider separately the lawfulness of their own actions. An appreciation of the commander’s objectives is also essential vis-​a-​vis application of legal rules. In particular, it is important to understand the significance of a particular target in the context of the operation as a whole in order to make an accurate assessment of the anticipated military advantage to be gained from its engagement.19 In terms of the progression of the joint targeting cycle, it is the understanding of the commander’s desired end state and objectives that informs phase 2: target development and prioritization.

1.2  Phase 2—​target development and prioritization In Phase 2, targets are developed and prioritized.20 Development in the targeting context refers to the identification of targets, the successful engagement of which will   Ibid II-​4 –​II-​5.   An operation plan is a “complete and detailed joint plan,” which sets out the joint force commander’s desired end state, her objectives, and how she will achieve them, together with the supporting information the force will need for its implementation. JP 1-​02 (n 1) 177. 15   The operation plan will typically include a section or annex dealing specifically with the law and its application to the operation. 16   For example, whether a situation amounts to an armed conflict and, if so, whether it is an international or non-​international armed conflict. 17   In particular, this is likely to include additional policy direction, which may act as a further restraint on permitted action, over and above the relevant legal obligations. This might include, for example, policy direction prohibiting attacks that are expected to cause more than a defined level of injury to civilians or harm to civilian objects, even where such an attack would be lawful according to the rule of proportionality. 18   JP 1-​02 (n 1)  207. See, for example, Alan Cole et  al, Sanremo Handbook on Rules of Engagement (International Institute of Humanitarian Law 2009) 2. The Sanremo Handbook represents an effort to publish a representative guide to ROE, without the issues of classification that arise with respect to national documents. It contains a catalog of rules from which the ROE for a particular operation would be drawn. 19   This understanding will be important in considering the proportionality of an engagement, according to which it is prohibited to conduct “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Additional Protocol I  (n 6) Art 57(2)(iii). 20   JP 3-​60 (n 3) II-​5-​II-​13. 13 14

302

302

Joint and Combined Targeting

support the commander’s objectives. It begins with a detailed and systematic understanding of the operational environment, including the adversary and its “centers of gravity.”21 From this, targeteers identify “target systems” that must be affected in some way to achieve the commander’s objectives.22 Development concludes with an analysis of the target system that is designed to identify those specific targets therein that can be engaged in order to achieve the desired effect. Once developed, a potential target is subjected to a vetting and validation process.23 Vetting involves examining the intelligence that has been used to establish the significance of the target. During validation, a board chaired by an officer selected by the JFC and supported by a legal advisor considers each potential target to determine its compatibility with the commander’s direction and its compliance with both the law and the rules of engagement. Validation is not permission to engage the target. Rather, from a legal perspective, it amounts to a determination that the target is a military objective or an individual who may lawfully be targeted, and that everything feasible has been done to verify that status.24 The lawfulness of any actual engagement (i.e. questions of proportionality and precautions in attack) is determined at a later stage in the joint targeting cycle. Validated targets are added either to the “joint target list” or the “restricted target list,”25 the difference being that targets on the latter are subject to specified restrictions on their engagement that have been imposed for operational reasons, such as the adverse effect that the engagement may have on other aspects of the operation, for example, relations with the civilian population during a counterinsurgency campaign. Targets on the lists may be nominated for inclusion on the draft joint integrated prioritized target list (JIPTL), which comprises a list of validated targets in order of priority based on their importance vis-​à-​vis achievement of the commander’s objectives.

1.3  Phase 3—​capabilities analysis Before the joint force commander may approve targets on the JIPTL for engagement, they must undergo “capabilities analysis.”26 Capabilities analysis involves identifying how capabilities at the commander’s disposal might be employed to achieve the desired effect on the particular target system. The goal is to present the commander

21   A center of gravity in this sense is “[t]‌he source of power that provides moral or physical strength, freedom of action, or will to act.” JP 1-​02 (n 1) 29. It is a concept long recognized in military doctrine. See, for example, Carl Von Clausewitz, On War (Michael Howard and Peter Paret eds, Princeton University Press 1984) 595–​96 (describing the center of gravity as that “hub of all power and movement, on which everything depends . . . the point against which all our energies should be directed”). 22   “Targeteers” is an informal term widely used to describe the specialist officers responsible for the targeting process. 23   JP 3-​60 (n 3) II-​11. The target systems are collections of components that are related in their performance of a specific function. For example, an adversary’s military command and control structure is a target system composed of numerous components, including both people and objects. 24   Additional Protocol I (n 6) Art. 57(2)(a)(i). 25   The joint targeting cycle involves a significant administrative effort to track potentially large numbers of targets at different stages of the process. On target list management and the definitions of the various target lists, see JP 3-​60 (n 3) II-​11–​II-​12. 26   Ibid II-​13–​II-​16.

30



The Joint Targeting Cycle

303

with all viable courses of action. Thus, capabilities analysis requires consideration of both lethal and non-​lethal means for engaging the target, as well as the first, second, and higher-​order effects of each. A key aspect of the analysis is “weaponeering,” the process of determining the size and type of munition, as well as the method of delivery, required to achieve the desired effect.27 Capabilities analysis provides much of the information the commander needs in order to determine whether a proposed engagement is lawful. In particular, each option identified through weaponeering is accompanied by a prediction of the injury to civilians and harm to civilian objects expected to be caused by the various means and method of attack. Analytical models that predict the effects of the particular munitions within the framework of a “collateral damage estimation” (CDE) methodology are employed to make the assessment.28 The CDE methodology is not, in itself, a proportionality calculation, but rather a systematic way to analyze and communicate expected collateral damage. It serves three related functions. First, it classifies proposed attacks in terms of their expected collateral damage and thus identifies the level of authority (potentially up to the President) that is required to approve their execution. Second, it provides a systematic technique for selecting means and methods that reduce civilian injury and damage to civilian objects, thereby reflecting the obligation to take precautions in attack.29 Finally, CDE methodology provides the officer responsible for approving the engagement with structured information that can be used, together with an assessment of the anticipated military advantage, in deciding on a proposed attack’s proportionality during the next phase.

1.4  Phase 4—​commander’s decision and force assignment Phase 4 is the point at which the commander authorizes the planned engagement of particular targets using specific means and methods of attack.30 It is in this phase that the proportionality determination is made. In concrete terms, the commander’s decision can take a number of forms. The commander may, particularly at the start of an operation, approve a full or partial JIPTL. As the operation progresses, the decision may be to add or remove a target from the JIPTL or change the means or methods to be used against a particular target. The key point from a legal perspective is that during this phase the commander approves specified courses of action, which requires a determination of compatibility with both law and policy guidance. The commander is guided in his or her decision by the results of the target development and capability analysis work. This means that the commander should be equipped with all of the information required to make a reasoned judgment both as to the anticipated military advantage to be achieved by engaging each target and the injury to civilians and damage to civilian objects expected to be caused by the

27   The precise definition is “[t]‌he process of determining the quantity of a specific type of lethal or nonlethal means required to create a desired effect on a given target.” JP 1-​02 (n 1) 258. 28 29   JP 3-​60 (n 3) II-​14, II-​18.   Additional Protocol I (n 6) Art 57(2)(ii). 30   JP 3-​60 (n 3) II-​16-​II-​20.

304

Joint and Combined Targeting

304

proposed means and method of attack. Before approving the target for engagement, the commander also has to be satisfied that the obligation to take precautions in attack has been met in the course of capability analysis, that is, that all feasible options in the choice of means, methods, and alternate targets have been considered in order to minimize incidental loss of civilian life, injury to civilians, and damage to civilian objects.31 Likewise, while the target will have been through the validation procedure and should, therefore, be a lawful military objective, the obligation to distinguish military objectives from civilians and civilian objects endures throughout the process.32 The commander is therefore not relieved, by virtue of the earlier determination, of his or her obligation to consider the status of the proposed target. The commander’s decisions are informed by the targeting staff and legal advisor. The legal advisor’s role is not to take responsibility for the decision as to the lawfulness of the proposed attack, but rather to guide the commander in understanding the legal dimensions of the decision which he or she faces. The outcome of that decision may be to approve the proposed course of action or to decline it, likely sending the target back to an earlier phase of the joint targeting cycle to undergo further target development or capability analysis. Approved targets, on the other hand, are engaged in phase 5: mission planning and force execution.

1.5  Phase 5—​mission planning and force execution Once approved targets are communicated to the force, detailed planning for their actual engagement can begin.33 In phase 5, the focus of activity moves from the joint level to individual components (i.e. air, sea, land, and cyber) possessing the capabilities that are to be employed to achieve the desired effect. Phase 5 must be, above all else, flexible. While the earlier phases in the joint targeting cycle provided the direction that the force requires to understand and plan its mission, the actual conduct of operations must accommodate changing circumstances and emerging threats and opportunities. At the same time that planned targets are being engaged as the culmination of the deliberate process set out above, the force has to be able to conduct a self-​contained dynamic targeting process, within the execution phase, to deal with targets of opportunity that emerge. All targets, whether planned or not, are subject to a process known as “F2T2EA”: find, fix, track, target, engage, and assess.34 For planned targets engaged through the deliberate process, these steps simply confirm, verify, and validate the decisions taken earlier in the joint targeting cycle, reflecting the obligation to continue to consider the lawfulness of an attack up to and throughout its execution. In particular, within the “fix” step, the force achieves “positive identification” of the target, meaning its identification to a specified standard (e.g. the number of sources and type of information considered sufficient). Doing so is consistent with the continuing duty to do everything feasible to verify the status of a target.35 For targets of opportunity, however, the   Additional Protocol I (n 6) Art 57(2)(ii) and 57(3). 34   JP 3-​60 (n 3) II-​20–​II-​30.   JP 3-​60 (n 3) II-​21. 35   Additional Protocol I (n 6) Art 57(2)(a)(i). 31

33

  Ibid Art 57(2)(b).

32

305



The Joint Targeting Cycle

305

F2T2EA process requires fresh determinations as to the status of an emerging target and the lawfulness of any engagement. For this reason, F2T2EA is associated primarily with dynamic targeting. The find, fix, and track steps involve the identification of a target on the battlefield, the determination of its precise location, and the allocation of resources to maintain a continuous track of its position. Targets subject to the dynamic process usually emerge as a result of intelligence, surveillance, and reconnaissance (ISR) activities that a force conducts throughout an operation. They can emerge at any time and may present only a fleeting opportunity for engagement; accordingly, the force must be ready to react quickly. The “target” step is central to dynamic targeting. Whereas the lawfulness of targets to be engaged through the deliberate process will have already been considered in detail, the target step of the dynamic process must facilitate the same legal (and operational) determinations in a much compressed timeframe. The officer with authority to approve the target has to be furnished with sufficient information about the target and the proposed means and method of engagement to determine the lawfulness of the target and the proportionality of the proposed attack. That officer must also be able to satisfy him or herself that the requirement to take precautions in attack has been met and that the expected harm to civilians has therefore been reduced so far as is feasible relative to the effects sought. This means that difficult and nuanced decisions may need to be taken extremely quickly against the backdrop of a rapidly evolving situation. In these circumstances, access to timely and accurate legal advice is essential. Ideally, legal advisors will be located alongside the decision maker whenever dynamic targeting is underway. This allows them to monitor the situation as it develops and see first-​hand the information that is to be used to support a decision to engage the target. Once engagement is authorized, the process moves on to “engage,” the point at which the attack is conducted. Throughout the engagement, the attack continues to be bound by the applicable law, including the duty to take feasible precautions to reduce civilian harm. For this reason, the asset (e.g. an aircraft) responsible for engagement has to establish and maintain “combat identification,” the characterization of objects on the battlefield, in order to make an informed decision as to the continued lawfulness of the attack.36 The final step of phase 5 is an initial assessment of the engagement’s effect on the target,37 a process known as “battle damage assessment” (BDA).38 BDA is part of the wider process of assessment conducted during phase 6 of the joint targeting cycle.

1.6  Phase 6—​targeting assessment The final phase of the joint targeting cycle consists of a continuous assessment of the effectiveness of operations in contributing to the achievement of the commander’s 36  Combat identification is defined as “[t]‌he process of attaining an accurate characterization of detected objects in the operational environment sufficient to support an engagement decision.” JP 1-​02 (n 1) 38. 37   JP 3-​60 (n 3) II-​30. 38   Battle damage assessment is “[t]‌he estimate of damage composed of physical and functional damage assessment, as well as target system assessment, resulting from the application of lethal or nonlethal military force.” JP 1-​02 (n 1) 23.

306

306

Joint and Combined Targeting

objectives.39 While the assessment primarily informs the reevaluation of the commander’s direction and guidance, it also influences subsequent legal determinations as to the anticipated military advantage to be gained through future attacks. More broadly, it is the assessment phase’s contribution to subsequent targeting activity that ensures that the joint targeting cycle is a focused, iterative process in pursuit of the commander’s objectives. Having considered the joint targeting cycle, the chapter will proceed to discuss its application in each of the domains of warfare, beginning with the air domain.

2.  Targeting in the Air Domain While targeting takes place across all domains, the unique capabilities of aerial bombardment in the engagement of targets render it a key facet of contemporary military operations. As a result, the rhythm of the air campaign will usually be closely aligned with the joint targeting cycle, each phase of which is implemented in part by a corresponding stage of the “joint air tasking cycle.”40

2.1  Key organizational and functional elements In a joint operation, the air component is commanded by a joint force air component commander (JFACC), who reports to the joint force commander in the chain of command. While the joint targeting cycle ultimately falls within the responsibility of the JFC, its implementation in the air domain is usually delegated to the JFACC.41 The precise degree of authority delegated to the JFACC for the approval and engagement of particular targets will depend upon factors unique to each conflict and theatre of operations. There is no particular legal dimension to the extent of delegation, as the same legal rules apply to attacks at whatever level decisions are taken. Rather, decisions as to delegation reflect a balancing of the joint force commander’s desire to retain control over targeting decisions with the efficiency to be gained through delegation. For instance, in a large-​scale conflict, it is likely that greater authority will be delegated, whereas in a low-​intensity conflict involving infrequent strikes against politically sensitive targets, authority might be retained at a higher level. Command and control of aerial targeting is centered in an Air Operations Center (AOC).42 The AOC draws together all of the elements necessary to plan and execute the air component of a joint operation, including the implementation of the joint

  JP 3-​60 (n 3) II-​31.   US CJCS, JP 3-​30, “Operational Procedures for Air Operations Center” (February 2014), III-​18–​III-​26. 41   JP 3-​60 (n 3) III-​16–​III-​17. 42   The AOC is the senior element of the Theater Air Control System (TACS), which is composed of airborne and ground-​based command and control elements. Airborne elements of the TACS (AETACS) are the Airborne Warning and Control System (AWACS) and the Joint Surveillance Target Attack Radar System (JSTARS). The ground elements are the AOC, Control and Reporting Center (CRC), Air Support Operations Center (ASOC), and Tactical Air Control Party (TACP). The AOC is responsible, through the promulgation of theater-​w ide direction and guidance, for the effective integration of TACS elements. JP 3-​30 (n 40) II-​8–​II-​9. 39

40

307



Targeting in the Air Domain

307

targeting cycle in the air domain.43 In the AOC, the JFACC and his or her staff are supported by legal advisors responsible for providing advice across all of the AOC’s activities, including the joint targeting cycle.

2.2  Implementation of the joint targeting cycle in the air domain The cycle that results in a particular target’s engagement typically begins roughly seventy-​two hours earlier, though much of the work that underpins the joint targeting cycle may have been conducted earlier in the operation, sometimes even before commencement of hostilities. In phase 1—​commander’s objectives, guidance, and intent—​the AOC’s Strategy Division considers the joint force commander’s objectives and formulates a proposed course of action to achieve them in the air domain.44 Based on this course of action, the AOC’s Combat Plans Division commences phase 2, target development, about forty-​eight hours prior to the engagement.45 This process results in a list containing targets developed during earlier iterations of the joint targeting cycle, as well as ones that have been freshly developed. These potential targets are then subjected to the vetting and validation process, which typically takes place within the AOC and includes the first formal determination of a potential target’s status as a lawful military objective. Successfully vetted and validated targets are included on either the joint target list or the restricted target list, depending on whether specific conditions are attached to any future engagement. Targets that the JFACC wants to engage within the current cycle are also nominated for potential inclusion in the joint force commander’s draft JIPTL. They will be considered alongside those nominated by the other component commanders in order to deconflict activity and prioritize those targets that best achieve the joint force commander’s objectives. Targets included in the draft JIPTL then enter phase 3, capabilities analysis, also conducted by the AOC’s Combat Plans Division.46 Generally occurring twenty-​four hours before engagement, the analysis identifies potential means and methods of engagement and results in a collateral damage estimation for each option. The capabilities analysis work, together with the results of target development, informs phase 4, the joint force commander’s decision to approve engagement of targets appearing on the draft JIPTL. This is the point at which all aspects of an attack’s lawfulness, including the status of the target, the proportionality of the proposed engagement, and any precautions in attack, are subject to formal consideration. In the air domain, the approved targets are transferred to an air tasking order (ATO)47 that sets out those targets to be engaged by the JFACC’s assets within each twenty-​four-​ hour period. Given that the process to generate an ATO begins as much as forty-​eight

43  The AOC is generally divided into five divisions:  Strategy; Combat Plans; Combat Operations; Intelligence, Surveillance, and Reconnaissance; and Air Mobility. JP 3-​30 (n 40) app E. 44   JP 3-​30 (n 40) III-​22.    45  Ibid III-​22–​III-​23.    46  Ibid III-​23–​III-​24. 47   The air tasking order is “[a]‌method used to task and disseminate to components, subordinate units, and command and control agencies projected sorties, capabilities and/​or forces to targets and specific missions.” JP 1-​02 (n 1) 10.

308

308

Joint and Combined Targeting

hours earlier, the joint targeting cycle supports the simultaneous generation of several ATOs at different stages of development. Upon receipt of the ATO, the AOC’s Combat Operations Division commences phase 5 of the joint targeting cycle: mission planning and force execution.48 This involves turning the ATO into a concrete plan for specific aircraft to fly designated missions and engage particular targets using specified means and methods. The fluid nature of combat means that much may change during execution, and accordingly it must be cautioned that the inclusion of a target on the ATO does not relieve those executing the mission, including the pilot or weapon operator, of their obligation to consider the lawfulness of their actions throughout the mission.49 Aircrew will be provided with additional tailored direction, known as “Special Instructions” (SPINS),50 that reflects the relevant rules of engagement, as well as further guidance on operational matters. Before engaging a target and to the extent that it is feasible, aircrew have to achieve positive identification of the target, as well as situational awareness of the target area, in order to make an informed decision regarding the continued lawfulness of the attack. If they are unable to do so, or conclude that an attack would be unlawful, they may not engage. At times an intervening event requires the diversion of aircraft from their planned missions, such as when it is necessary to support ground forces or engage a time-​ sensitive target.51 Within the AOC, such dynamic targeting is the responsibility of the Current Operations Division, which sometimes establishes a cell to perform this function. The authority to direct the engagement of a dynamic target is usually delegated to an officer with the AOC, who monitors the situation as it unfolds, including, when available, through video feeds from surveillance assets. While the dynamic targeting process may take place within a short space of time, there is no diminution in the applicable legal standards. A legal advisor will therefore be available, usually in person, to provide advice as the process unfolds. The compressed timeframe and reduced opportunity for detailed planning mean that a significant burden may rest on the aircrew engaging a dynamic target to gather the information required to conduct a lawful attack. In particular, the process of combat identification takes on particular importance in a rapidly unfolding situation. As with a planned target, the aircrew retain responsibility for complying with legal requirements throughout the engagement. Assessment, the final phase of the joint targeting cycle, is key to the ongoing effectiveness of the targeting enterprise.52 The JFACC’s ISR plan includes the collection of

  JP 3-​30 (n 40) III-​24–​III-​25.   This reflects the obligation to cancel or suspend an attack “if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Additional Protocol I (n 6) Art 57(2)(b). 50   JP 3-​30 (n 40) III-​24. 51   Ibid III-​25. A number of aircraft may be assigned to provide these “on-​call” functions. 52   Ibid III-​25–​III-​26. 48 49

309



Targeting in the Land Domain

309

data, including imagery, to assess the impact of previous attacks. This information feeds directly into future iterations of the joint targeting cycle, for instance in determining whether re-​attack is necessary.

3.  Targeting in the Land Domain Targeting in the land domain mirrors to a great extent the process and terminology set out above. Nevertheless, not only can land forces make unique contributions to implementation of the joint targeting cycle, but there remain important differences in how targeting is conducted in the land domain.

3.1  Key organizational and functional elements in land targeting Unlike the air and maritime domains of warfare, the land domain is often populated with different forces—​Marine Corps, Army, and Special Operations Forces (SOF)—​ operating in the same space, albeit with distinct command structures. To provide “unity of command” over these elements, the joint force commander typically designates a single joint force land component commander (JFLCC),53 who usually establishes a Joint Operations Center (JOC) from which to monitor, assess, plan, and direct current operations.54 The situational awareness provided by the JOC serves, in part, to ensure that land force operations are synchronized with activities in other domains of warfare, thereby achieving “unity of effort.”55 The processes implemented by the JFLCC are designed to identify, develop, and refine potential targets in order to fulfil the JFLCC’s responsibility for determining “the target priorities, effects, and timing for joint land operations.”56 The JOC’s staff is organized by functional areas and supported by legal advisors.57 Legal advisors “must be immediately available and should be consulted at all levels of command.”58 Two warfighting functions—​fires and intelligence—​are central to the JFLCC’s contribution to the joint targeting cycle. In the land context, the use of weapons to engage targets is referred to as “fires.”59 Fires experts, alongside intelligence

  US CJCS JP 3-​31, “Command and Control for Joint Land Operations” (February 2014) II-​1.   Ibid “Joint Task Force Headquarters” (July 2012) VII-​3. Subordinate land units, such as battalion task forces or brigade combat teams, will normally establish forward tactical operations centers (TOC) to accomplish the same in their respective area of operations. Subordinate operation centers coordinate closely with the JOC, often with liaison officers serving there. While it is common for Special Operations Forces to have at least a legal advisor at battalion level, conventional forces typically have a robust operational law team only at brigade-​level TOCs and above. See generally US Army Field Manual (FM) 1-​04, “Legal Support to the Operational Army” (January 2012). 55   Ensuring that land operations are coordinated with air and maritime operations enables forces from different organizations or commands to work toward common objectives. This cooperation is known as “unity of effort.” JP 1-​02 (n 1) 252. 56   JP 3-​31 (n 53) II-​2. 57   The functional areas are command and control, fires, intelligence, logistics, movement and maneuver, and sustainment. US CJCS JP 3-​0 “Joint Operations” (August 2011) III-​1. 58   JP 3-​60 (n 3) A-​7. 59   “Fires” refers to the use of weapon systems or other actions to achieve desired effects. JP 1-​02 (n 1) 86. It is a term used in particular in the land domain. 53

54

310

310

Joint and Combined Targeting

specialists, are key to the implementation of the joint targeting cycle in the land domain.60 These experts, who operate in fires cells (army) or fires coordination centers (Marine Corps) within a JOC, are trained to understand the specific effects created by individual weapon systems.61 They are primarily responsible for synchronizing the use and effects of organic and other fires capabilities,62 such as fixed-​and rotary-​wing aircraft, against particular targets and in accordance with the joint force commander’s objectives.63 Intelligence personnel also serve a key function, by obtaining an understanding of the operating environment, identifying centers of gravity, and developing intelligence that aids in the identification and location of individual targets. A particularly important role that land forces play in supporting the joint targeting cycle is supplying intelligence to support decision making during the joint targeting cycle. Modern militaries increasingly rely on advanced technology to gather information. However, land forces, by virtue of being “on the ground,” have a more refined grasp of physical terrain and local populations and partner forces than their counterparts in other domains. Therefore, they are uniquely situated to understand the conflict’s political, cultural, historical, geographical, and human characteristics.64 The importance of such context in target selection cannot be overstated.65 This knowledge facilitates the accurate identification of the adversary’s center of gravity, and thus enhances the selection and prioritization of individual targets.

3.2  Unique land-​based capabilities for target engagement While tactical land units do nominate targets within their area of operations, in practice their primary focus is on phase 5 of the joint targeting cycle—​mission planning and force execution. In terms of the means available to the joint force commander to engage targets, the two unique capabilities that land forces contribute are field artillery and ground forces. The joint force relies heavily on the use of modern field artillery due to its portability and flexibility on the battlefield.66 Field artillery encompasses indirect fire cannon, surface-​to-​surface missile launchers, and guided multiple-​launch rocket systems.67 These weapons vary in their precision and the physical radius of their

60   The JFLCC relies on the Army or Marine Corps to act as the primary agency responsible for establishing a fires cell or fires coordination center to synchronize all joint fires throughout the area of operations. JP 3-​31 (n 53) IV-​13. 61   JP 1-​02 (n 1) 86. Fires experts also operate in units subordinate to the JFLCC. 62   “Organic” assets are those permanently assigned to a particular unit, rather than being drawn from elsewhere in the force. 63   JP 3-​31 (n 53) IV-​13. 64   US Army, TRADOC Pamphlet (PAM) 525-​3-​1, “The US Army Operating Concept: Win in a Complex World 220-​2040” (October 2014) 8–​10. 65   It also enables land forces to identify objects in the area of operations for addition to the No Strike List (NSL) or Restricted Target List (RTL). 66   Field artillery assets are generally not limited by terrain or weather to the extent of air-​to-​surface platforms. US Army Field Manual (FM) 3-​09, “Field Artillery Operations and Fire Support” (April 2014) 1-​1. 67   Indirect fire differs from direct fire in that there is no direct line of sight between the shooter and the target. Thus, an observer (physical or through sensors) is generally required for indirect fires. Ibid 1-​1.

31



Targeting in the Land Domain

311

effects, thereby giving commanders a range of options when matching weapons to the target.68 Though historically viewed as imprecise, artillery is increasingly accurate and effective. Today, it can be used for precise strikes against targets at extended ranges. Field artillery is especially useful in situations where other weapon systems cannot be used without considerable risk to the attacker’s forces. For example, consider a case in which the joint force commander prioritizes the destruction of an enemy’s air defense system, but target-​area defenses pose an unacceptable level of risk to air assets. In such a case, the target might be struck instead with long-​range, precision-​ guided artillery fires from a position of relative safety, potentially up to 300 kilometers away.69 Although less accurate than other weapons, area-​fire munitions such as high-​explosive cannon fire can prove useful as well. In particular, they are frequently employed to suppress enemy fire and deny terrain because such weapons provide rapid and sustained fire that cannot be achieved with precision munitions.70 Ground forces likewise may engage targets. This is a particularly useful option in circumstances where other forms of attack would cause disproportionate injury to civilians or damage to civilian objects, or where there is a particular benefit to be gained from capturing, rather than killing, a human target.71 These operations are tactically planned by those who will carry them out. The planning results in a “concept of operation” (CONOP) that is presented to the appropriate commander for approval.72 CONOPs typically include troop insertion and extraction plans, a joint fire support plan (including close air support),73 and a plan to minimize the risk to civilians. The CONOP process categorizes operations according to levels of risk: the higher the risk, the higher the level of seniority at which it must be approved. Risk to one’s own forces, risk of injury to civilians and damage to civilian objects, potential political repercussions, the time available for planning, and resource requirements are factored into the assessment of risk level.74 Whatever the seniority of the officer authorized to approve the mission, he or she will be supported with legal advice in order to understand the operation’s compatibility with the rules of engagement and, most importantly, the law.

68   Precision munitions have a circular error probability (CEP) of less than 10 meters; near-​precision from 10 to 50 meters; and area fire munitions greater than 50 meters. CEP is the radius of a circle, centered on the aimpoint, within which 50 percent of the rounds fired will land. Ibid 2-​24. 69   Ibid 2-​25. 70   US, Army Techniques Publication (ATP) 3-​60, “Targeting” (May 2015), 1-​3, 2-​26. Examples of other area fire weapons are rockets fired from attack helicopters or mortars. Ibid 2-​30. 71  Both the United States and the United Kingdom’s forward-​looking operating concepts forecast future conflicts moving into urban areas, and predict that, “[b]‌ecause urban environments degrade the ability to target threats with precision, joint operations will require land forces capable of operating in congested and restricted urban terrain . . . to defeat those threats.” PAM 525-​3-​1 (n 64) 12; UK Chiefs of Staff, Joint Concept Note (JCN) 2/​12, “Future Land Operating Concept” (May 2012) 2-​2. 72   The CONOP process is used extensively in current operations as a “method for deconfliction, synchronization, assigning assets, and demonstrating how the operation is nested” with the higher commander’s objectives. Edward Sanford, “Optimizing Future Operations for Special Forces Battalions: Reviewing the CONOP Process” (Thesis, Naval Postgraduate School 2013) 1. 73   Close air support (CAS) is an “air action by fixed-​w ing and rotary-​w ing aircraft against hostile targets that are in close proximity to friendly forces and requires detailed integration of each air mission with the fire and movement of those forces.” US CJCS JP 3-​09.3, “Close Air Support” (November 2014) xi. 74   Sanford (n 72) 12.

132

312

Joint and Combined Targeting

Positive identification of targets is essential in both deliberate and dynamic targeting. In this regard, land forces are often ideally placed to identify targets on the battlefield in order to support other platforms, such as aircraft. Tactical land forces deploy with a range of personnel trained in day or night target acquisition, such as laser-​ranging and laser-​designating to support surface-​to-​surface or air-​to-​surface strikes.75 These personnel include forward observers and joint terminal attack controllers (JTAC).76

3.3  Actions during unplanned engagements with the enemy Ground forces can encounter the enemy at any time, whether on patrol or in their operating bases. In today’s complex operating environment, such unplanned engagements are routine. Accordingly, support platforms, including on-​call aircraft, are typically available to respond as required.77 These troops-​in-​contact situations stand in contrast to the deliberate or dynamic targeting processes, in which decisions are taken from the safety of an operations center with the benefit of extensive advice and situational information.78 The authority to support forces engaged in unplanned engagements is usually granted to aircrew and other weapon operators under the terms of their rules of engagement. When directing supporting aircraft, artillery, or other units sent to assist, forward observers and JTACs often work under fire as they gather and communicate information about the location of targets, own forces, and other entities such as civilians and civilian objects in the target area. These are stressful, fast-​paced events, in which adversaries are frequently intermingled with both civilians and one’s own forces. Despite the urgency and complexity of the situation, those executing support missions retain responsibility for compliance with the law, in particular the obligation to take precautions in attack in order to minimize injury to civilians and damage to civilian objects. Although the situation may be desperate, this fact “does not remove the aircrews’/​JTACs’ responsibility to avoid civilian and friendly troop casualties.”79 Such decisions are typically taken without the benefit of on-​hand legal advice, thereby highlighting the need for pre-​deployment training that includes clear guidance on the law.

4.  Targeting in the Maritime Domain Maritime operations implicate many of the targeting issues posed by aerial and land targeting and employ many of the same processes. The operational environment,

  US, Army, Training Circular (TC) 3-​09.31, “Fire Support Training for the Brigade Combat Team Commander” (November 2013) 1-​9, 10. 76   A forward observer operates with frontline troops and is trained to call for and adjust naval and ground gunfire, whereas a JTAC, also operating with frontline troops, is certified to guide attacking aircraft onto a target. JP 1-​02 (n 1) 94, 133. 77   This may include diversion of aircraft from the activity directed in the air tasking order. 78  For those involved with the employment of close air support, troops-​in-​contact (TIC) means “friendly ground forces receiving effective fire.” JP 3-​09.3 (n 73) III-​36. 79  Ibid. 75

13



Targeting in the Maritime Domain

313

however, is somewhat unique. While underway, naval forces are operational around the clock, and are expected to respond to all threats at all times. Additionally, operations may be conducted in international waters, where states uninvolved in a conflict enjoy the right to continue peacetime activities such as shipping, and where the possibility of surprise attack is especially acute. Moreover, certain activities that may involve a form of targeting, such as blockade or visit and search, are unique to the maritime environment. The laws and policy governing United States naval forces (which include both Navy and Coast Guard assets) require that all naval warfare operations be conducted in accordance with international law,80 particularly the law governing naval warfare. This section examines how legal concerns are functionally applied to naval targeting operations in the maritime domain.

4.1  Key organizational and functional elements in maritime targeting The joint force maritime component commander (JFMCC) “wields sea power in support of the joint force commander’s objectives.”81 Although the individual appointed and the forces attached vary depending on the mission, a fleet82 commander typically serves as the JFMCC and controls various task forces,83 most notably the afloat Carrier Strike Group (CSG)84 and the Amphibious Ready Group/​Marine Expeditionary Unit (ARG/​MEU). The JFMCC’s primary responsibilities in the joint targeting cycle are to manage intelligence collection assets (which inform the selection of targets and the timing of targeting operations); nominate targets to the joint force commander, particularly those that exceed the maritime component commander’s organic capabilities or operational boundaries; plan operations; engage targets; and provide input during the post-​operation assessment process.85 In the maritime domain, the work required to support these functions takes place in the Maritime Operations Center (MOC).

80   US Navy, Secretary of the Navy Instruction (SECNAVINST) 3300.1C, “Law of War” (May 2009). See also Navy Regulations, 1990, Article 0705, Observance of International Law; U.S. Navy, U.S. Marine Corps and U.S. Coast Guard, NWP 1-​14M/​MCWP 5-​12/​COMDTPUB P5800.7A, “The Commander’s Handbook on the Law of Naval Operations” (2007) 6-​1. 81   US Navy, Navy Tactics, Techniques, and Procedures (NTTP) 3-​32.1, “Maritime Operations Center” (April 2013) 17. 82   A “fleet” is an organization of ships, aircraft, Marine forces, and shore-​based fleet activities under a commander who may exercise operational as well as administrative control. JP 1-​02 (n 1) 85. A “numbered fleet” (for example, the Third Fleet in San Diego, California) is a major tactical unit of the Navy immediately subordinate to a major fleet command (for example, the US Pacific Fleet) and comprises various task forces, elements, groups, and units for the purpose of prosecuting specific naval operations. JP 1-​02 (n 1) 169. 83   A “task force” is a component of a fleet organized by the commander of a task fleet or higher authority for the accomplishment of a specific task or tasks. JP 1-​02 (n 1) 237. 84   A “carrier strike group” is a standing naval task group consisting of a carrier, embarked air wing, surface combatants, and submarines operating in mutual support with the task of destroying hostile submarine, surface, and air forces within the group’s assigned operational area and striking at targets along hostile shore lines or projecting power inland. JP 1-​02 (n 1) 28. 85   JP 3-​60 (n 3) III-​2, C-​1.

314

314

Joint and Combined Targeting

The JFMCC uses the MOC to control assigned forces. It is also the hub for coordinating support with other component commanders. Permanent MOCs are located at the respective US naval fleet headquarters (Third Fleet in San Diego, California; Fourth Fleet in Mayport, Florida; Fifth Fleet in Manama, Bahrain; Sixth Fleet in Naples, Italy; and Seventh Fleet in Yokosuka, Japan). A highly flexible construct, the MOC is both a planning and execution mechanism adaptable to particular missions and operational environments.86 Within the MOC, cross-​functional teams are formed to manage various tasks. As it relates to the targeting process in the maritime domain, critical teams within the MOC include the Maritime Intelligence Operations Center (MIOC),87 the Current and Future Operations Cells (COP and FOP),88 and the Fires Element (FE).89 Fleet Staff Judge Advocates serve in the MOC and have a position on its “watch floor,” a full-​time, fully manned command center that monitors all ongoing operations.

4.2  The targeting process in the maritime operational domain As in the other domains, maritime deliberate targeting is functionally modeled on the joint targeting cycle.90 It is designed both to develop targets within the maritime area of operation that can be prosecuted with organic assets and to identify those that are to be nominated to the joint force commander.91 In maritime operations, typical deliberate targets include enemy naval command and control infrastructure, coastal defense systems, ballistic missile equipment, mine storage facilities, vessels in port, and amphibious assembly areas. The MOC Fires Element plays a central role in the maritime targeting process. The FE is a multi-​discipline entity composed primarily of specialists in military intelligence, operational planning, and weapons systems. It (a) coordinates the development of the maritime commander’s “targeting guidance, intentions, and risk tolerance”; (b) compiles and prioritizes maritime target nominations; (c) forwards those maritime target nominations to the joint force commander; (d) synchronizes the maneuver of maritime forces in support of targeting operations (generally in the form of a “tasking order”); (e) coordinates the execution of targeting operations with other component commanders and the joint force commander; and (f) monitors the execution of the operation, or “strike.”92 During the first three phases of the joint targeting cycle, the FE analyzes the JFMCC’s guidance and operational objectives. This includes identification and development of targets that meet those objectives, as well as matching appropriate “effects” to targets.93 For instance, a maritime operational objective might be to ensure that 86   NTTP 3-​32.1 (n 81)  1-​3. Examples of missions in the maritime include direct engagement with enemy fleet forces, conducting a blockade of an enemy port, prosecuting operations ashore launched from the sea, or acting as a force provider of tactical aircraft to the joint force air component commander. 87 88 89 90   Ibid 2-​1.   Ibid 3-​3, 3-​8.   Ibid 3-​15–​3-​16.   Ibid E-​3. 91   While the focus of maritime deliberate targeting is on targets within the maritime area of operation, as part of a joint force, maritime commanders may nevertheless recommend targets outside of the maritime area of operations that are better prosecuted with assets and capabilities that may not be under the direct control of the maritime commander (for example, an inland airfield outside the effective range of the maritime component commander’s organic assets, but that can easily be targeted with Air Force strategic bombers). 92 93   NTTP 3-​32.1 (n 81) E-​3.   Ibid E-​4 –​E-​6.

135



Targeting in the Maritime Domain

315

the maritime area of operations remains clear of enemy mines. An appropriate effect to meet this objective could be ensuring that enemy vessels do not leave port, so that they are unable to mine the area. A tactic to achieve this effect could be to target the vessels. During this process, all viable alternative tactics are considered. The FE (in coordination with subordinate tactical commands) is additionally responsible for vetting and validating targets and nominating them to the joint force commander.94 Nominated targets may be engaged by either maritime or non-​ maritime means, such as through the use of air platforms.95 The maritime component commander may also conduct a separate process for prioritizing and engaging targets within the maritime domain.96 At times, the sole role of the JFMCC in deliberate targeting is as a force provider to the joint force commander, who engages targets identified, developed, and nominated by other component commanders. For example, the joint force commander may decide to conduct an airstrike on an inland enemy command-​and-​control complex. Though not a conventional maritime target, tactical aircraft may be launched from a warship and have their control transferred, or “chopped,” to the JFACC. In this case, the JFMCC is considered the “supporting” commander. At other times, the JFMCC will be the operational commander in a targeting operation. For instance, in anticipation of ground or amphibious operations, the joint force commander might want to first establish air superiority over a particular area. If an integrated air defense system (IADS) that threatens the joint force commander’s air assets is located along the coast, he or she could direct the JFMCC to suppress the IADS. The JFMCC might decide, for operational reasons or because it is necessary in order to minimize injury to civilians or damage to civilian objects, to use embarked Marines or SOF to conduct a raid on the IADS instead of conducting an airstrike. In such a scenario, the JFC may keep the JFMCC in command of the entire targeting operation.

4.3  Maritime dynamic targeting and the uniqueness of the maritime domain The fluid nature of the maritime domain means that many targets can only be engaged through the dynamic targeting process. In particular, maritime dynamic targets often require a rapid response because maritime forces are located in waters in which other vessels that may pose an immediate threat operate. Moreover, ships are by nature mobile and therefore the opportunity to engage them may be lost if action is not quickly taken. To accommodate these realities, the JFMCC may delegate dynamic targeting authority to subordinate tactical maritime commanders.

94   Ibid E-​6 (“Weaponing for each target is completed to the greatest extent possible during [target] development and should include many different weaponeering options considering all potential weapons and a variety of aimpoint solutions. Collateral damage estimation should also be done for each weaponeering solution. The SJA will conduct a legal review in conjunction with CDE, reviewing targets for LOAC and ROE/​RUF considerations.”) 95 96   NTTP 3-​32.1 (n 81) E-​8.  Ibid.

316

316

Joint and Combined Targeting

The law of naval warfare includes legal rules unique to targeting in the maritime environment. Of particular importance are those applicable to the capture and, in some circumstances, destruction of merchant shipping. While civilians and civilian objects are generally protected in the maritime domain as they are on land and in the air, the importance of maritime trade to an adversary’s war effort has led to the development of specific rules according to which forces may intercept merchant vessels that act in support of the enemy. For instance, enemy merchant shipping may be attacked if it resists capture, if it is sailing under the protection of a convoy, and in certain other specified circumstances.97 Neutral merchant vessels may be subject to capture, and sometimes destruction, if they meet certain criteria, such as the carriage of contraband or the breach of a blockade.98

5.  Targeting in the Cyber Domain Utilization of computers and information networks to aid the prosecution of warfare is nothing new. However, cyberspace is now considered a warfighting domain on par with the air, land, and sea.99 Initially a contentious subject, broad consensus exists that international humanitarian law applies in principle to cyber operations conducted in the context of an armed conflict, although how it applies to particular types of cyber operation remains subject to debate.100 The term “cyber operations” encompasses only those operations in which the primary purpose is achieving objectives in and through cyberspace.101 For example, an air-​to-​ground strike that destroys a server farm and has an effect in cyberspace would not be considered a cyber operation because the strike occurred through the air, not cyber, domain of operations. That said, kinetic strikes that have an effect in cyberspace should be coordinated to reconcile potential impacts on cyber operations that are underway. The joint force commander should view cyber operations through the same lens as more traditional military capabilities, that is, as a tool by which an effect can be applied against an operational requirement utilizing the basic tenets of targeting doctrine. The JFC should also bear in mind the potential for cyber operations to create effects across various domains.

  NWP 1-​14M (n 80), para. 8.6.6.2.   Ibid paras 7.4.1, 7.10. See also International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (CUP 1995) 26–​27, 37–​38. 99   US JP 3-​12(R), “Cyberspace Operations” (February 2013), GL-​4 (“Cyberspace. A  global domain within the information environment consisting of interdependent networks of information technology infrastructures and resident data, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers”). 100   “Specific law of war rules may apply to cyber operations, even though those rules were developed before cyber operations were possible. When no more specific law of war rule or other applicable rule applies, law of war principles provide a general guide for conduct during cyber operations in armed conflict.” US, Department of Defense, Law of War Manual (June 2015), para 16.2. See also Michael N Schmitt (ed), Tallinn Manual on the International Law Applicable to Cyber Warfare (CUP 2013) rule 20. 101   JP 3-​0 (n 57) IV-​3. 97 98

317



Targeting in the Cyber Domain

317

Space Air Land Electromagnetic Spectrum

Maritime CYBER

Fig. 13.2  Operational Domain Relationships102

The basic joint doctrine that applies in other domains governs the cyber targeting process. For example, the joint operational planning process, which utilizes the six-​phase targeting cycle, provides the framework for planning cyber operations.103 Unfortunately, the particulars of how cyber targeting takes place remain almost entirely classified. To further complicate matters, states rarely acknowledge the extent of their cyber capabilities or explain their positions on the application of the law to them. Open-​source discussion of targeting in the cyber domain therefore lacks detail and remains somewhat speculative. Cyber operations include the denial of access to or the degradation, disruption, destruction, or manipulation of the adversary’s information systems or networks in a manner that supports the joint force commander’s objectives.104 Many cyber targets are rather conventional in the sense of causing an effect on the battlespace. For example, if the joint force commander wants to shut down communications between an enemy’s C2 nodes, a cyber tool or weapon may be just as effective as a kinetic attack, and may avoid placing one’s own forces or civilians’ lives at risk. Such operations differ from most other types of engagement in that a physical presence by cyber operators and military equipment within the theatre of operations is not required. Moreover, they offer an option that is capable, in some instances, of achieving objectives with less physical destruction than their kinetic counterparts.105 Cyber   LeMay Center for Doctrine, Annex to JP 3-​12(R), “Airpower Doctrine: Cyberspace Operations” 18. 104   JP 3-​12(R) (n 99) IV-​1.   Ibid II-​5. 105  US Submission to the UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (2012-​2013) 4 (“Cyber 102 103

318

318

Joint and Combined Targeting

operations are also unusual in the extremely broad geographic range over which they may exert effects. In light of their uniqueness, cyber operations necessitate a high level of interagency and intergovernmental deconfliction, as well as a sufficient level of approval to ensure appropriate consideration of such matters as their foreign policy implications.106 These and other factors have resulted in complicated command and control structures for cyber operations.107 In the United States, cyberspace is not solely the purview of any one military service. Rather, each service maintains cyber forces to operate in cyberspace. The synchronization of these forces is assigned to United States Strategic Command and is primarily executed through its subordinate command, United States Cyber Command.108 Those cyber operations that are conducted under the authority of a regionally based joint force commander (and where the effects of that operation will occur inside the geographic commander’s Area of Operations) are typically conducted through coordination with Cyber Command. Cyber targeting requires an understanding of the system to be targeted, such that its vulnerabilities can be exploited.109 Just as a targeteer working in the air domain has to understand the working of a petroleum production facility to determine the most logical weapon for a kinetic strike, an understanding of an entire cyber network is necessary to ensure that a cyber strike creates its intended effects and to limit unwanted collateral effects. An additional factor cyber targeteers must take into account is the potential to affect friendly networks due to the first, second, or third-​order effects of offensive cyber operations.110 The planning process for cyber operations is becoming fully integrated into the overall joint targeting process,111 including the development of tools for weaponeering cyber operations and for assisting commanders in making determinations relevant to the lawfulness of a particular attack, such as an operation’s effect on civilian systems.112 In most US military operations, cyber planning on behalf of the regional combatant commander is accomplished through the Cyberspace Support Element (CSE), a forward component of United States Cyber Command.113 The CSE takes the JFC’s targeting priorities, determines which desired effects can be achieved through cyber operations, and refers potential targets back to planners at United States Cyber Command for deconfliction and execution through their assigned service components.114

operations that result in non-​k inetic or reversible effects can be an important tool in creating options that minimize unnecessary harm to civilians. In this regard, cyber capabilities may in some circumstances be preferable, as a matter of policy, to kinetic weapons because their effects may be reversible, and they may hold the potential to accomplish military goals without any destructive kinetic effect at all”). 106   JP 3-​12 (R) (n 99) IV-​12. 107   See ibid IV-​8 for the US doctrinal cyberspace command and control construct. 108   JP 3-​12(R), Airpower Doctrine Annex:  Cyberspace Operations (n 102)  19. United States Cyber Command (USCYBERCOM) is the combatant command primarily responsible for planning and prosecuting US military cyberspace operations. 109   JP 3-​60 (n 3) II-​5. 110 111   JP 3-​12(R) (n 99) IV-​3.   JP 3-​12(R) (n 99) II-​9. 112  One such example is the Joint Capabilities Analysis and Assessment System (JCAAS). LeMay Center for Doctrine, Annex to JP 3-​60, “Airpower Doctrine Targeting” 26. 113   JP 3-​12(R) (n 99) IV-​7    .114  Ibid IV-​9.

139



Targeting and Legal Interoperability

319

Legal considerations common to the other domains also govern cyber operations.115 One significant legal challenge is determining expected injury to civilians and damage to civilian objects, a task required in order to meet the requirements of proportionality and precautions in attack.116 For example, the targeting of dual-​use computer networks necessitates an assessment of likely effects on those parts of the network that are distinct and have no military significance, but that are linked to the targeted military-​use portion of the network.117 Other legal concerns include the determination of when cyber operations constitute “attacks” for the purpose of applying rules on conducting attacks; assessment of the feasibility of measures that might avoid civilian harm; and consideration of the legal implications of using civilian personnel in support of cyber operations.118

6.  Coalition Targeting and Legal Interoperability While the armed forces of a state still sometimes act alone, coalitions are pervasive in modern warfare.119 They may be ad hoc, such as the multinational force that invaded Iraq in 2003, or reliant upon existing structures and organizations, like NATO. Whatever the composition, partners must be able to operate and engage in conflict effectively alongside one another, an attribute referred to as “interoperability.”120 An important component of interoperability is “legal interoperability.”121 Recognizing that states may have different legal obligations, or may interpret their obligations differently, measures must be put in place to manage these differences, so as to protect the interests of individual states and prevent the violation of national obligations while not detracting from the effectiveness of the combined operations.

116   DoD Law of War Manual (n 100) 997.   JP 3-​12(R) (n 99) IV-​4.   Harold Hongju Koh, Legal Adviser, Department of State, “International Law in Cyberspace: Remarks as Prepared for Delivery to the USCYBERCOM Inter-​Agency Legal Conference (Sept. 18, 2012),” reprinted in 54 Harv Intl L J Online (December 2012) 8 (“Parties to an armed conflict will need to assess the potential effects of a cyber-​attack on computers that are not military objectives, such as private, civilian computers that hold no military significance, but may be networked to computers that are valid military objectives. Parties will also need to consider the harm to the civilian uses of such infrastructure in performing the necessary proportionality review”). 118   DoD Law of War Manual (n 100) para 16.5. 119  Coalition operations are recognized as an important part of many states’ security strategies. See, for example, President of the United States, “National Security Strategy” (February 2015)  7; HM Government, National Security Strategy and Strategic Defence and Security Review 2015 (November 2015) para 4.39. 120   According to NATO doctrine, “The effectiveness of Allied forces in peace, crisis or in conflict, depends on the ability of the forces provided to operate together coherently, effectively and efficiently. Allied joint operations should be prepared for, planned and conducted in a manner that makes the best use of the relative strengths and capabilities of the forces which members offer for an operation. Interoperability of formations and units of a joint and multinational unit has three dimensions, technical (eg, hardware, systems,) procedural (eg doctrines, procedures) and human (eg language, terminology, and training).” NATO, Allied Joint Doctrine (AJP 01(D), 2010) para 0314. 121   The International Committee of the Red Cross (ICRC) describes legal interoperability “as a way of managing legal differences between coalition partners with a view to rendering the conduct of multinational operations as effective as possible, while respecting the relevant applicable law.” International Committee of the Red Cross, “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts” (31IC/​11/​5.1.2, 2011) 32–​33. 115 117

230

320

Joint and Combined Targeting

This section will briefly examine why differences emerge between coalition partners, before describing some of the mechanisms used to achieve legal interoperability.

6.1  Why differences arise between coalition members on questions of law Generally, states bear responsibility in international law for the actions of their own armed forces,122 whether those forces act alone or in a coalition, and whether or not they follow the orders of a commander of a different nationality.123 Where part of a state’s armed forces is placed at the disposal of an international organization, such as the UN or NATO, it is only if that organization exercises effective control over the elements concerned that conduct may be attributable to it, rather than to the sending state.124 Even in that instance, the sending state may, in certain circumstances, still bear some responsibility for the actions of its own forces.125 Although all states are party to the four Geneva Conventions of 1949 and a substantial body of international humanitarian law undoubtedly applies universally as a matter of customary international law,126 states’ obligations relating to the conduct of their armed forces may differ significantly. Members of a coalition may have differing treaty obligations,127 and may differ in their opinions as to the existence of particular

122   On the responsibility of states, generally, for the actions of their organs, see Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC, Report on the Work of its Fifty-​Third session (23 April–​1 June and 2 July–​10 August 2001), GA, Official Records, Fifty-​Sixth Session, Supplement No 10, UN Doc A/​56/​10 Arts 2, 4. On the responsibility of states specifically for the actions of their armed forces, see Boris Kondoch and Marten Zwanenberg, “International Responsibility” in Terry D Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (2nd edn, OUP 2015) s 30.02. 123   See, for example, Program on Humanitarian Policy and Conflict Research, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (March 2010) (Air and Missile Warfare Manual) r 162. 124   Draft Articles on the Responsibility of International Organizations, Report of the International Law Commission on the Work of its Sixty-​Third Session (26 April–​3 June and 4 July–​12 August 2011), GA, Official Records, Sixty-​Sixth Session, Supplement No 10, UN Doc A/​66/​10 Art 7. On the application of this to the military, see Kondoch and Zwanenberg (n 122) s 30.04. 125   Kondoch and Zwanenberg (n 122) s 30.05. 126   The full extent and precise content of customary international humanitarian law remains subject to debate. However, the ICRC identified a significant corpus in its comprehensive survey, many rules of which are relatively uncontroversial. Jean-​Marie Henckaerts and Louise Doswald-​Beck (eds), Customary International Humanitarian Law (CUP 2005). For a collection of critical views of the ICRC study, see Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007). 127   Notable examples in the field of international humanitarian law include the 1977 Additional Protocol 1 to the Geneva Conventions of August 12, 1949, as well as weapons treaties, including the Convention on Cluster Munitions (2008) and Convention on the Prohibition of the Use, Stockpiling and Transfer of Anti-​Personnel Mines and on their Destruction (1997). As of 2016, the United States is party to none of these examples, whereas some NATO allies, including France, Germany, and the United Kingdom are party to all of them. For a summary of the status of key international humanitarian law treaties, see International Committee of the Red Cross, “State Parties to the Following International Humanitarian Law and Other Related Treaties as of 13-​Jul-​2016” (2016) accessed 23 July 2016. States may also differ in other relevant treaty obligations, particularly in the field of human rights.

321



Targeting and Legal Interoperability

321

customary norms.128 Even where states are subject to the same obligations, they may take different positions on the meaning, scope, or applicability of a particular rule or legal regime. Furthermore, states may have varying tolerance for the risk of being held responsible for breaches of their legal obligations, or for members of their armed forces being found individually liable for crimes under domestic or international law.129 Differences between states on questions of law extend beyond the merely academic and can have important practical consequences for the conduct of coalition operations. Consider, for example, the United States’ view that the category of lawful military objectives includes those that make an effective contribution to the war-​sustaining, as well as the warfighting, capability of an adversary.130 This is a controversial position,131 broader than that of many states, including other NATO members.132 Its application in a targeting context may mean that there are economic targets that the United States believes to be lawful military objectives, but which coalition partners consider to be civilian in nature. According to the latter view, not only must such objects not be targeted, but they must be weighed as collateral damage in any proportionality calculation. Numerous similar examples exist in the realm of international humanitarian law alone,133 even before considering differing positions with respect to other bodies of law, such as human rights law.134 Such differences do not prevent states from working together as part of a coalition.135 However, respecting states’ individual obligations may be in tension with the requirement for coalition members to “operate together coherently, effectively and efficiently.”136 While coalitions will necessarily differ in their structure and composition, unity of effort is achieved through integration, to some extent, of command and control functions.137 As a result, the decision to employ forces for a particular purpose 128   See, for example, the United States’ response to the ICRC Customary International Humanitarian Law Study. John B Bellinger III and William J Haynes II, “A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law” (2007) 89 Intl Rev of the Red Cross 443. 129   An important factor here may be the different enforcement mechanisms (such as human rights monitoring bodies and courts, as well as the International Criminal Court) to which states are subject through their treaty obligations. 130   DoD Law of War Manual (n 100) para 5.7.6.2. 131   See, for example, William H Boothby, The Law of Targeting (Oxford University Press 2012) 106. 132  The apparent differences between NATO members on this point were manifested during the International Security Assistance Force (ISAF) operation in Afghanistan. Marten Zwanenberg, “International Humanitarian Law Interoperability in Multinational Operations” (2013) 95 International Review of the Red Cross 681, 692–​3. 133  Zwanenberg cites various examples from the ISAF operation, including disagreement within NATO as to the existence of an armed conflict during the ISAF operation and disagreement as to whether drug producers and traffickers could be targeted as direct participants in hostilities. Ibid 687–​94. 134   An example of the divergence that exists with respect to human rights obligations is illustrated by the question of their extra-​territorial application. See, for example, Beth Van Schaack, “The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change” (2014) 90 Intl L Stud 20. 135   According to the Air and Missile Warfare Manual: “A State may participate in combined operations with States that do not share its obligations under the law of international armed conflict although those other States might engage in activities prohibited for the first State.” Air and Missile Warfare Manual (n 123) r 164. 136   AJP 01(D) (n 120) para 0314. 137   Within NATO doctrine alone, there are various command and control (C2) models depending on the degree of integration between nations. AJP 01(D) (n 120) para. 0316. On C2 arrangements generally, see Blaise Cathcart, “Command and Control in Military Operations” in Terry D Gill and Dieter

32

322

Joint and Combined Targeting

may be taken by a command structure partly or wholly drawn from the armed forces of a different state than that of the assets and individuals used to execute the mission. In the particular context of targeting, the decision to nominate a target and authorize its engagement, including the determination of proportionality, may be taken by a coalition, rather than national, chain of command. Without mechanisms to take account of different states’ positions, this situation would obviously risk members of a state’s armed forces being directed to take action contrary to that state’s own view of its legal obligations.

6.2  Mechanisms for achieving legal interoperability Various mechanisms exist to reconcile state positions and interests in the design of the operation, as well as in its execution.138 In setting the initial parameters for an operation—​in particular, the combined OPLAN and ROE—​the options open to coalitions have been described as either a “maximalist” or “minimalist” approach.139 According to a maximalist approach, the common parameters for an operation would be set according to the most restrictive rules drawn from across the coalition. While this would mean that the OPLAN and ROE can be applied equally by all coalition members, it restricts states’ freedom to act to the full extent of their perceived legal authority, since each member of the coalition will be adhering to the lowest legal common denominator. Where there exist significant differences between states on questions of law, this may be a significant issue. By contrast, the minimalist approach is to set the common parameters for the operation according to the least restrictive rules from across the coalition, with individual states then further restricting the actions of their respective armed forces through additional national instructions. This has the advantage of maximizing states’ ability to act to the full extent of their perceived legal authority, but means that each member of the coalition will be participating according to different rules, thereby adding a layer of complication to the operation. NATO practice arguably falls between the two approaches. While NATO operates on the basis of a consensus of its members and will set the parameters of an operation, including ROE, on this basis, it has developed a process for its members to caveat their agreement.140 These caveats, which usually amount to prohibitions of particular activities in specific circumstances, are formally reported to NATO and visible to coalition commanders, thereby mitigating some of the potential confusion that may arise from Fleck (eds), The Handbook of the International Law of Military Operations (2nd edn, Oxford University Press 2015). 138   For a general discussion on the mechanisms available to coalitions, see the commentary to Air and Missile Warfare Manual (n 123) r 162. 139   Zwanenberg, “International Humanitarian Law Interoperability in Multinational Operations” (n 132) 700–​3. The terms “maximalist” and “minimalist” are not always used in the literature, but they helpfully describe concepts at either end of the spectrum of available options. 140   According to NATO targeting doctrine, “Nations will always reserve the right to issue national targeting guidance in respect of specific operations. However, any generic national guidance should be communicated to NATO by the appropriate national representative at the political (NAC), military strategic (ACO), and operational (JFC) levels before the onset of, and during, any operation. Nations contributing

32



Targeting and Legal Interoperability

323

different states’ armed forces fighting according to different rules. Unfortunately, the caveats declared by states sometimes fail to express the full extent to which they differ from the coalition position. When this occurs, differences, particularly in the interpretation or application of particular rules, may not be captured by the formal caveat process. Account must be taken of any such differences between coalition members in the execution of an operation. Three aspects of this requirement are of particular importance. First, it is essential that coalition commanders know and understand where differences lie, in order that they can assign forces to tasks efficiently and effectively. For example, a commander needs to know if only some states permit their forces to execute a certain type of mission, or how the forces of each state will respond to a particular situation. To the extent feasible, these differences are typically recorded in a matrix containing each state’s position on a particular type of mission, target, munition, or anything else relevant to the execution of the operation. The matrix is made available to the commander’s staff and used to inform planning and mission execution. Second, individual national positions on questions of law must be incorporated into the process of authorizing particular missions. This may be achieved through the use of “red-​card” holders:141 Individuals empowered to provide or withhold consent for the use of a particular state’s assets, for example its aircraft, to conduct a particular mission. Individual red-​card holders may play a key role in the overall command structure of the coalition; however, when providing consent for their state’s assets to be used for a particular mission, their responsibility is to apply the instructions provided by their national government. Therefore, although a coalition chain of command will typically adopt a targeting methodology broadly similar to the joint targeting cycle described previously,142 the requirement for national consent will necessitate a parallel authorization process. Precise requirements differ from operation to operation, but in practice the red-​ card holder for a particular state is typically a senior officer physically located in one of the coalition’s headquarters. Once a mission—​subject to either the deliberate or the dynamic targeting process—​reaches a certain point in the coalition’s approval process, it will be submitted in parallel to the holders of the red cards for each nation whose assets may be used. Final execution by a particular state’s assets will then depend on authorization from both the coalition chain of command and the relevant red-​card holder. In order for red-​card holders to apply their red cards appropriately, they require ready access to national legal and policy advice throughout an operation, as well as reach-​back to their national authorities, particularly in the case of highly sensitive capabilities for the prosecution of targets will provide refined guidance and national caveats for their employment as early as possible during the planning phase of an operation. This guidance should cover any national requirement for approving targets allocated for prosecution by that nation’s assets, including both the level of that approval and the method required to achieve it.” NATO, Allied Joint Doctrine for Joint Targeting (AJP 3.9, Edition A Version 1, April 2016) para 0309. 141   For a description of the red-​card holder role according to NATO doctrine, see NATO, Allied Joint Doctrine for Air and Space Operations (AJP 3.3, Edition B Version 1, April 2016) para 2.2.1. 142   See, for example, AJP 3.9 (n 140) ch 2.

234

324

Joint and Combined Targeting

missions.143 They will also require access to all of the information—​including target intelligence, as well as the proposed means and method of execution and anticipated collateral damage—​that they need to make an independent decision on the lawfulness of the proposed task. While red-​card holders may sometimes be physically remote from the coalition chain of command, these information requirements mean that they are ideally collocated, like coalition commanders, with the coalition’s targeting cell. In NATO, they are typically located in a Combined Air Operations Centre, essentially the coalition’s equivalent to the Air Operations Center described above. Finally, the involvement of national red-​card holders is alone insufficient to ensure that states’ legal positions are reflected in the execution of authorized missions, or during unplanned engagements. Considerable responsibility often rests with pilots and others on the front line. Consequently, individual members of a state’s armed forces need to understand and apply their own national restrictions, as well as coalition direction. Generally, this means that individuals must act, in any particular situation, according to the more restrictive of two sets of rules—​those issued by the coalition and those issued by their national authorities. It is important that commanders appreciate these differences, so that they understand how the forces of different states will react in particular situations.144 In the modern world, states must be able to fight alongside each other. Reconciling national positions on questions of law with the need to execute coherent, effective, and efficient coalition operations is a complicated task that must be achieved at several levels. In this process, states’ interests must be reflected in setting the parameters for a coalition operation. The practical effect of this requirement is that to maintain operational flexibility, coalition members will often fight according to different rules. Managing such differences in the heat of conflict requires situational awareness of national restrictions, as well as efficient and effective mechanisms in both planning and executing missions.

143   NATO doctrine states that “Individual nations will often authorize specific levels of delegated authority of collateral damage for an operation in accordance with their legal interpretation and policy constraints. This will be passed to a senior national representative, who receives support from national legal, policy and targeting advisors. The senior national representative refers any targets that fall outside their delegated authority back to their nation for clearance.” AJP 3.9 (n 140) para 0127. 144   Neil Brown, “Issues Arising from Coalition Operations:  An Operational Lawyer’s Perspective” (2008) 84 Intl L Stud 225, 229–​31.

325

Index advantage, military, 4, 9, 29–​30, 53–​54, 67, 95, 113, 116–​123, 139, 141–​144, 188–​201, 203–​214, 217–​218, 220, 223–​226, 230–​232, 263, 298, 301, 303, 306, 308 Afghanistan, 3, 18, 38, 41, 118, 222, 243, 249, 259, 263 aggressor, generally, 7, 25, 150 unjust, 8, 31, 75, 173, 182–​184, 187, 205, 292 al-​Qaeda, 10, 18, 28, 38, 42–​43, 243, 247–​250, 253, 257, 262–​264, 272, 274, 277, 279, 282–​283 Anscombe, Elizabeth, 31, 246 Aquinas, 2, 26, 80, 229 Aristotle, 228–​229 armed conflict, generally, 2 international, 38, 196, 215 associated forces, 283 Authorization for the Use of Military Force (AUMF), 259–​282 barrel bombs, 3 Bazargan-​Forward, Saba, 162–​163 Blum, Gabriella, 59, 245, 252–​253 Bush, George W, 10 cannon fodder (see soldiers, as cannon fodder) capture, 3, 6–​8, 10, 19, 21, 24–​25, 27, 29, 42, 44, 54–​56, 64, 67–​69, 74, 84, 96–​98, 100–​101, 115, 155–​156, 247 Cassese, Antonio, 116 chaplains, 27–​28, 46, 50 chivalry, 22, 24–​26, 35, 69, 71 Cicero, 228 civilians, generally, 3, 8–​9, 30–​33, 40, 45, 56, 59, 250, 291 directly participating in hostilities (see direct participation in hostilities) Civil War, 23, 56–​58, 98, 111–​112, 117–​118, 267 Clausewitz, 225–​227 collateral damage (see damage, collateral) collectivism, 8 combatancy, privilege of, 11, 18, 62, 283 combatants, generally, 50, 249 enemy, 1, 6, 8, 18–​22, 24–​27, 29–​30, 34, 36–​37, 39–​40, 45–​48, 55–​57, 62–​66, 69–​70, 74–​75, 101, 135, 139–​143, 149, 153, 172, 245, 274 just, 11, 142, 195, 205, 216 moral equality of, 10, 109, 241–​258 unjust, 2, 11, 31, 142–​144, 149, 195, 203–​206, 216, 284–​297 unlawful, 10, 43, 242–​243, 249–​257, 262–​265, 272–​277, 281 compensation, 8, 173–​186 conscripts, 19, 28, 51–​52, 104, 126 cooks, 45, 50, 56 Corn, Geoff, 283 counter-​insurgency, 48

criminals, 10 cruelty, 3, 20, 23, 34, 41, 62, 99, 108 cyber-​attacks, 39, 316–​319 damage, collateral, 1, 3, 8–​9, 11–​12, 20–​21, 29, 39, 49, 73, 155–​156, 171, 188–​215, 301–​320 desert, 11, 135, 144–​147, 284–​297 Desert Storm, 41 dignity, 2, 5, 7, 19, 34, 36, 65, 73, 77–​80, 82–​88, 92–​97, 102–​105, 108–​110, 112, 116–​117, 120, 124, 126, 128, 225–​226, 270 Dinstein, Yoram, 84–​85, 113 direct participation in hostilities, 3, 21, 27, 42, 49–​50, 54, 72, 250 distinction, principle of, 10, 20–​22, 26–​27, 35, 37, 42, 46, 48–​49, 242 double effect, doctrine of, 29, 222 drones, 45, 53, 215, 236 Dunant, Henry, 94 duress, 145–​146, 205, Dworkin, Ronald, 80–​81 Falkland Islands, 142 Fine, Kit, 92–​93 Finkelstein, Claire, 10, 246, 255, 256 fighters, irregular, 3 force, lethal, 1–​3, 6–​7, 10, 12, 34, 71–​72, 88, 90, 94, 96, 99, 110 Gardam, Judith, 141 Gaza, 43, 121, 144–​145, 222 Goodman, Ryan, 67–​68 Grotius, Hugo, 26, 31, 79–​80, 90, 92, 105–​107, 229 Guantanamo, 55 Hamas, 17, 42, 121, 222 Hart, HLA, 252, 256 Hezbollah, 42 Highway of Death, 17, 52, 104–​105 Hobbes, Thomas, 34–​35, 229, 251 honor, 34 hors de combat, 19, 22–​26, 28, 46, 59, 64, 66, 68–​69, 113, 140 human rights, 1–​5, 12, 30, 56, 77, 80–​81, 85, 321 humanitarianism, 6, 73, 77–​80, 82–​84, 88, 96, 102–​106 humanity, principle of, 6–​7, 18, 23, 40, 78, 80, 84–​85, 96, 109–​110, 112, 114 Hume, David, 83 Hurka, Thomas, 133, 148–​151, 195, 205, 223 imminence, 70, 90, 92, 105–​107, 250 immunity from attack, 18, 19, 21, 31–​33, 36, 48–​49, 262, International Criminal Tribunal for the Former Yugoslavia (ICTY), 17, 53, 145 individualism, 8, 156, 219 Iraq, 3, 17, 39, 41, 49–​52, 104–​105, 118, 215, 222, 243, 249, 259, 319

236

326 Index ISIL (see ISIS) ISIS, 243, 247–​250, 253, 257, 259 jus ad bellum, 1, 26, 30–​31, 36, 66, 74–​75, 143, 249, 255 jus in bello, 1–​6, 8–​10, 26, 29, 31, 36–​37, 65–​6 6, 74–​75, 100, 140, 143–​144, 156, 249, 255, 257 Kahn, Paul, 19, 35, 45, 52, 55 Kant, 58, 64–​66, 73, 76, 83–​84, 86, 109–​110, 225 Kasher, Asa, 19–​20, 31, 36 killing, targeted, 43, 55, 196, 203, 209, 215–​218, 222, 235–​237, 250–​251, 273–​276 unnecessary, 77–​78, 108–​110 Korea, North, 17 Kreigsraison, 93, 106 Kuwait, 17, 52, 104 Law of Armed Conflict (LOAC), 4–​7, 13, 68, 219, 250, 259–​260, 281 lawfare, 47 least-​harmful-​means, 21, 54–​55, 110 least restrictive means, 67–​69 lesser-​evils, 7–​8, 135–​138, 148, 152, 155–​159, 161–​165 lex lata, 12, 75, 97, 99 Lieber, Francis, 6, 23, 58–​6 4, 66, 68, 72–​76, 98 Lieber Code, 6, 23–​25, 58–​68, 72–​76, 98–​99, 105, 266–​268, 272 Machiavelli, 229 Martens Clause, 85 Mavrodes, George, 35 May, Larry, 19–​20, 36, 72, 245 McMahan, Jeff, 31, 159–​162, 164, 167, 195, 203–​205, 223, 244, 246, 253, 255 medics, 27–​28, 153 mercenaries, 26 Meron, Theodor, 4 Milanovic, Marko, 4–​5 Nagel, Thomas, 32–​34 nanotechnology, 112–​113, 121–​122 Napoleon, 22, 28, 38, 50, 266 NATO, 299, 319–​322, 324 necessity, generally, 1–​2, 6, 7, 39, 55, 63, 70, 88–​90, 97, 99, 132–​134, 165 as exception, 62 conceptual, 91–​92 least-​harmful-​means (see least-​harmful-​means) licensing function of, 62, 67, 71, 74, 99 Lieberian conception of, 58–​61, 66 military, 7, 18, 20–​24, 37, 40–​41, 46, 54, 60–​61, 88–​91, 93–​94, 110, 117, 120 practical, 91–​93 neuroweapons, 7, 124–​127 objective, military, 28–​29, 67, 77, 89–​90, 92, 95, 99, 101, 103, 192, 230, 234, 242, 245, 261, 302, 304, 307, 321 Ohlin, Jens, 97–​99, 251

pacifism, 2, 35, 74, 93, 101, 106, 155–​156, 171 paramilitary forces, 28 perfidy, 11, 62, 66, 99 Pictet, Jean, 3, 54, 67–​69, 95 pirates, 5 Plato, 228 poison gas, 113, 119 possible worlds, 106 POWs, 25, 27, 40, 56, 247 proportionality, generally, 1, 131–​134, 148–​149, 159–​167, 173–​186 calculations, 1, 9, 11–​12, 167–​168, 210–​211, 234–​235, 294 in collateral damage to civilians, 3 in jus in bello, 149, 188–​215, 218, 229–​232, 294 in jus ad bellum, 149, 201–​203, 218, 232, 294 narrow, 7–​8, 135–​138, 142, 145, 149–​153, 217–​239 political considerations of, 217–​239 wide, 7–​8, 135–​138, 145, 149, 151–​153, 291 punishment, 26 Raz, Joseph, 255–​256 reprisals, 145 retreat, 2, 51–​52, 104–​105 rights, human (see human rights) role-​based, 80–​82, 103, 108, 254 risk, 30, 35, 41, 71 Rodin, David, 163–​164 roles (see rights, role-​based) Rome Statute (of the ICC), 29, 191, 211, 214, Rules of Engagement (ROE), 24, 211–​213, 301–​320 Russia, 118–​120 St. Petersburg Declaration, 23, 40, 98, 112–​113, 117–​119, 140 Schmitt, Michael, 110 self-​defense, 8, 31–​33, 49, 70, 96, 100, 132–​133, 142–​154, 156, 158, 162, 183–​184, 203, 255 September 11th, 236, 259–​282 Shue, Henry, 34, 192–​193 sieges, 39 smart bombs, 46 soldiers, as cannon fodder, 1, 6–​7, 22, 57, 77, 109 generally (see combatants) spying, 65–​66 suffering, unnecessary, 2, 7, 18, 22, 23, 66, 111–​129, 140 superfluous injury, 18, 23, 56, 68, 111–​129, 140–​141 surrender, 19, 25 Syria, 3, 249, 259 Taliban, 18, 215, 243, 247, 249, 262–​264, 272, 276–​277, 282–​283 targeted killing (see killing, targeted) targeting, generally, 10, 11, 12, 21–​22, 34, 36, 44, 46, 298–​322 dual-​use infrastructure, 29 military vs. civilian objectives, 28–​29

327

Index status-​based, 10, 18, 27, 32–​34, 36–​37, 40, 44, 46, 49, 50, 69–​70, 244–​245, 249, threat-​based, 49–​53, 70 terrorists, 10, 42–​43, 53, 251 torture, 40, 62, 64, 66, 69, 99, 120, 122, 136, 166 treachery, 22, 65 treason, 65 Trolley, 174, 179–​180, 185 Vietnam, 38–​39, 41, 118, 255 Walzer, Michael, 10, 18, 51, 70, 79, 107, 231, 246

327

War on Terror, 19, 28, 30, 42, 49, 53, 55, 59, 123, 247, 257–​282 wars, asymmetric, 3, 9, 35, 45, 47–​48, 102, 116–​121, 233, 241–​257 just, 19, 31, 75, 173, 181–​182 unjust, 19, 26, 32, 75 weapons, chemical, 7 neuro-​(see neuroweapons) non-​lethal, 1, 7, 56, 101, 118, 120, 122–​128 nuclear, 117, 119, 153, 242, 298 Williams, Bernard, 78, 92–​93, 218

238