Thursday, July 28, 2005

Fighting a Just War Justly

Written for and posted on the CompanyCommand professional forum in Feb03

Why think about this?
On a rainy September day in 1994, I was participating in pre-jump training at Ft. Bragg. That night we were going to conduct the largest parachute assault since WWII to restore democracy in Haiti. I remember a trooper asking a chaplain, in all sincerity, "Is what we're doing right?" The chaplain responded, "Of course it's right. The president told us to do it. We're soldiers. That makes it right." Needless to say, many of us found that response unsatisfying.

After I commanded an infantry company in the 82nd, the Army sent me to study philosophy, and I used the opportunity to seek an answer to the trooper's question. I wrote my thesis on the moral justification for killing in combat, and I have since taught ethics and just-war theory for four years at West Point.

The Army has no official just-war doctrine (unless you count FM 27-10), and nowhere does it address the morality of killing. Soldiers are expected to do their duty, which is to fight and kill without violating the laws of land warfare. However, the inattention to soldiers' moral concerns has had consequences: more than 1,000 conscientious objectors in the 1991 Gulf War; soldiers and units that have refused to engage the enemy in combat; and soldiers who have felt needlessly guilty about their actions in combat.

Leaders who train their soldiers how to kill, and who order them to kill, owe it to their soldiers to explain to them why it is morally permissible for them to kill. And soldiers who believe in what they're doing will fight more effectively.

I am not currently assigned to a deployable unit, but if I were, this is what I'd talk about with my soldiers. Of course, these are just my unofficial thoughts, but use them if you find them helpful.

Is this a just war? Are we fighting it justly?
The morality of any war is judged at two levels: the morality of going to war (Is it a just war?); and the morality of how the war is being fought (Are we fighting it justly?). Political leaders bear responsibility for the first judgment; after all, they make the decision whether or not we go to war. Military leaders, however, must bear responsibility for the second judgment, because soldiers are the ones "on the ground" actually doing the damage.

When is a war a "just war"?
The traditional criteria used to judge (legally and morally) the political decision to go to war are:

Just Cause. The state must be fighting for a morally justified end. What is a morally justified end? A state may fight to resist an attack (or to help another state resist an attack), to restore the rightful borders of a state that was attacked, and to do what is reasonable to prevent an aggressor state from attacking once again. A state may also launch a pre-emptive strike against a state that threatens it if the threat is imminent and if waiting will make it impossible to successfully defend against the imminent attack.

Right intention. The state must not only have a just cause, but also it must actually be fighting for it. For example, the US had a just cause for liberating Kuwait; the Iraqi invasion was a violation of Kuwaiti territorial integrity and political sovereignty. Consequently, it was a violation of the rights of all those who valued the Kuwaiti political community. However, if the actual intention of the US was to keep the price of oil down, then the US would not have actually been fighting (and dying and killing) for a just cause. IMHO, I disagree with this long-held condition. What's wrong with accomplishing a moral good, even if the intention isn't good? For example, if a police officer rescues someone from an attacker, but he does so with the intention of earning awards and promotion, does that mean that he shouldn't have stopped the attacker and saved the victim? Of course not. He accomplished an objective good. The same judgment should be applied to states that accomplish good results with ulterior motives.

Legitimate authority. Only the leaders of a political community have the moral authority to commit its people to war. In our case, that's the president.

Formal declaration. You can't sucker-punch another nation. See FM 27-10, para.20.

Chance of Success. Don't waste human lives in a hopeless cause. This is always a judgment call for the political leaders. In the history of war, some underdogs have won. Appeasement is a tough pill for a nation to swallow; it's the forfeiture of those people's fundamental human rights.

Last resort. War should not be the first option for resolving disputes. If it's possible to accomplish an outcome without resort to war, then it's morally obligatory for political leaders to do so. "Last resort," though, is a misleading term. Read literally, it would require appeasement. So, it should be read to mean, "Non-violent means to resolve the conflict have been tried and failed."

Proportionality. When political leaders commit their nation to war, what they expect to gain must be proportional to what they expect to lose. This ties in closely with criterion #5. It might, for example, be immoral to fight to defend Easter Island if the expected loss of life is two million soldiers. However, it is hard to put a price on concepts such as human rights and national sovereignty.


This laundry list of conditions has its limitations. It assumes that all wars are between states (inter-state wars), but the majority of recent wars have been and continue to be intra-state wars (Somalia, Bosnia, Kosovo, Chechnya) or non-state wars (the wars against narco-trafficking and terrorism). Perhaps we need to examine the moral principles that serve as the foundation for the traditional rules of war, and apply those principles to today's international situation.

Morally, when is a war just? When it defends the innocent from those who threaten them. All human beings possess the rights to life and liberty, and they can best exercise those rights within ordered communities, so they establish governments and become recognized as countries. The primary purpose of any country (i.e., government, state) is to protect the rights of its people. That is why it is morally right to defend a state against an attacker-because you are protecting the rights of the innocent. And that is why it is presumptively wrong to attack another country-because its government is protecting the rights of its people. However, that is also why it is morally acceptable to intervene militarily in a country where the government is violating its own people's rights (Haiti; Yugoslavia; Iraq?). Remember, governments don't have natural rights; their people do. States and their governments have rights only to the extent that they support their own citizens' rights and they respect other states' citizens rights.

The profession of arms is a noble profession because its Soldiers, sailors, airmen, Marines, and Coast Guardsmen willingly risk their own lives and liberty to protect the lives and liberty of others.

Fight with Honor!
This brings us to the question of what actions are morally right within a war. Just because a war is just does not mean that any military action in that war is just. Soldiers still have to conduct themselves morally.

FM 27-10 (Law of Land Warfare) is a great starting point for discussing moral conduct in war, but it does not address every situation that our soldiers face. It is largely unchanged from its initial, 1956 publication, so it addresses 20th Century warfare more adequately than 21st Century warfare. It is therefore very important that soldiers understand the moral principles that serve as the foundation and inspiration for the written laws of war and even for our rules of engagement. Morality is enduring and universal. Let's focus on assessing the morality of actions within war.

How do we fight morally? By killing only combatants. Who are combatants? Morally, combatants are those who-through some choice of their own-have forfeited their right not to be killed by choosing to engage in an activity that is threatening to others. As such, all soldiers are combatants, and any "civilians" who choose to threaten you are combatants.

Why is this so? All human beings have the rights to life and liberty (or, stated another way, the rights not to be killed or oppressed). But, they forfeit those rights if and when they threaten the rights of another. That is why it is ok to use lethal force against someone who attacks you on the street or in your home. The attacker has forfeited his rights by threatening yours. Likewise, that is why it is morally permissible for you to kill enemy combatants. By participating in a force that is trying to kill you and others, and that violates or threatens the rights of innocent people, enemy soldiers have forfeited their right not to be killed by you. Of course, this applies to all combatants, on both sides of the conflict. By being a soldier during time of war, you are a threat to the enemy, and they do nothing morally wrong when they try to kill you.

In general terms, when is it morally ok to kill someone? When that person threatens someone else, thus forfeiting his own right to not be killed. (See Ethics, Killing, and War by Richard Norman for a full discussion of these criteria.) Think of it in terms of killing in self defense in everyday life. Imagine someone attacking you as you walk down the street. When is it morally permissible to kill him in self-defense? When he:

  1. -is responsible for his actions;
  2. -threatens a value worth killing for (life or liberty);
  3. -poses an imminent threat;
  4. -and leaves you no other option to avoid the threat.

Significantly, these conditions also apply to killing an accomplice of the attacker. For example, if a gang member were chasing you with a knife with the intent to kill you, and you had to escape from a room, and another (unarmed) gang member were consciously blocking your escape, then you would be justified in using lethal force against your attacker's unarmed accomplice. In legal terms, that person would be a conspirator to attempted murder. Morally, that accomplice would have made the choice to threaten your life, and you would have had no other way to avoid the imminent threat.

When soldiers kill enemy soldiers in war, they act in justified self-defense.

Enemy soldiers are responsible for the threat that they pose. At some level, they chose to be soldiers, and they must know that they are at war. Fully informed volunteers, of course, are more responsible than poorly informed conscripts, yet the fact remains that even conscripts chose to become soldiers. They had other options, however unpleasant they may have been. Human beings, after all, are not responsible for circumstances beyond their control, such as whether their nation goes to war. They are, however, responsible for the choices they make within those circumstances. People who make the choice to be soldiers in war are morally responsible for the threat they pose to their enemy.

Soldiers do fight to defend values that are worth killing and dying for, when the war is just.

Soldiers also do face an imminent threat from enemy soldiers. All enemy soldiers are either direct threats or accomplices to direct threats. They all act for the same end-to deny the soldier and/or those he is defending their rights to life and liberty. Soldiers have no recourse to a "higher authority" to defend them. They must fight, or they and other innocent persons will lose their cherished rights.

Finally, soldiers do not have a non-lethal option. If they flee before the enemy, the threat will follow them. Again, there is no "higher authority" to offer protection to soldiers and to those who depend on soldiers to defend their lives and freedom.

Therefore, not only is it morally permissible for us to kill enemy soldiers in combat, but also it is morally obligatory for us to use the force necessary to defend the rights of those who depend on us. We soldiers are the last line of defense for the rights of life and liberty.

How should we treat civilians in a combat zone? We should assume that civilians are noncombatants, and thus they retain their right not to be killed. We should respect their rights. If, however, a civilian chooses to become a threat, then he or she forfeits her right not to be killed. Remember, though, to treat enemy civilians as noncombatants until they give you a reason to believe otherwise, whereas enemy soldiers should be treated as combatants unless they surrender or become incapacitated.

How should we treat surrendering or injured enemy soldiers? When an enemy soldier is no longer willing or able to be a threat, then he regains his right not to be killed. It is morally wrong to kill an EPW or incapacitated casualty.

What should we do when our actions will likely cause collateral damage to noncombatants?
We must never target noncombatants, and we must take actions to limit collateral damage that affects noncombatants.

However, sometimes soldiers face tough decisions that involve attacks against legitimate military targets that will likely cause collateral damage. In such circumstances, we should refer to the framework of the so-called "doctrine of double effect" for guidance. This is laid out beatifully in the best text on the topci of justice in war, Just and Unjust Wars by Michael Walzer.

When a proposed military action has an intended good effect (usually, killing the enemy) and an unintended but likely bad effect (collateral damage), then it is morally permissible to take that action only if:

  1. Your action itself is moral. A war crime (like executing a prisoner) can never be justified.
  2. Your direct effect (the intended outcome) is moral. It has to directly impact combatants or other legitimate targets.
  3. Your intent is good. You aim only at the good effect; the bad effect is not the means to the good effect. In other words, you can't do something bad, like kill noncombatants, to bring about a good result, like the surrender of enemy troops.
  4. You must accept some risks to yourself and your own troops to minimize the risk of collateral damage. In other words, you shouldn't put all the risk on noncombatants just to limit your own risk. At the same time, you may put a level of risk on noncombatants that's necessary to accomplish your mission. It's a judgment call that leaders must make. This, I know, is hard for many of us to accept, because we love our soldiers and want to bring all of them home. Still, as soldiers we must remember our calling-to risk ourselves to protect the innocent.
  5. The good effect has to be proportional to the bad. Accomplishing the mission has to be worth the collateral damage. Don't destroy a village to kill a sniper.

Do you have comments or questions about these ideas? Is so, post a comment here or email me directly at peter.kilner@us.army.mil

3 comments:

Chaplain Scott Sterling said...

Great article, Pete! You gave a great and concise summary of the JWT, which, unfortunately too few soldiers know anything about.

My only point of disagreement comes in your discussion of the criterian of INTENTION. My contention is not that this principle should be scrapped, but that it doesn't get the attention it actually deserves. Granted, your law enforcement example is one in which an objective good is accomplished even if the intent is morally suspect. However, intention traditionally refers, in a subjective sense, to attitudes such as revenge, hatred, a desire to inflict as much pain on the enemy as possible, etc. In these cases, even if an objective moral good is accomplished, doing so out of revenge or hatred detracts from the good, or cancels it out.

When teaching soldiers the moral justifications of killing, leaders must include maintaining the appropriate moral attitudes, as well as taking the moral actions necessary to win the war.

Thanks for the Blog!

Pete K said...

Thanks, Scott, for a great challenge! I'm still trying to think this through, so I really appreciate your input. Here's my pushback:

The JWT emphasis on "intention" can be traced back to St. Augustine of Hippo, a 4th Century bishop and philosopher who was the first (as far as I know) Christian to attempt to justify killing in war. For the first few centuries of Christianity, this wasn't an issue, because Christians were pacifists. But the conversion of Emperor Constantine created a challenge--how to defend a political community and be Christian.

Augustine argued that a Christian could use lethal force to defend innocent human life as long as the intention of the soldier was love, not hatred. The soldier could kill the attacking soldier if he did so only to protect the innocent victim's earthly life and the attacker's eternal life. In a sense, the defending soldier would be preventing the attacker from sinning; thus, he was killing out of love.

This strikes me as a reasonable approach to individual moral judgment, but not a workable one for political moral judgment.

My problem with intention in JWT is that it's virtually impossible to know another's true intention. What was the intention for invading Iraq? Low oil prices? To eliminate the threat of WMD? To eliminate the terrorist training bases there? As payback for trying to kill Pres. GH Bush in 93? To foster democracy in SWA?

Really, does ANYONE know the answer? To some extent, perhaps all were factors...so, how do we judge intention? And if we cannot judge intention on collective political decisions like going to war, then what good is accomplished by including intention as a criterion?

So, while I agree that my intention is 100% relevant when I judge my personal behavior, I'm not sure that intention has any practical relevance at the level of making Jus ad Bellum judgments.

Thoughts?

Chaplain Scott Sterling said...

Your point is well taken that on the ad bellum side intention is tricky (okay, maybe impossible) to assess and judge. I've been thinking that intention should be moved to the in bello side instead; or perhaps like proportionality, seen both ad bellum and in bello. To help soldiers truly become just warriors, we want them to consider their intent as they fight. It is up to the legitimate political leadership to to judge the justness of a cause (though I do affirm the concept of selective conscientious objection based on an individual soldier's moral judgment. But I digress). However, soldiers make a moral judgment each time they pull the trigger, and we would want them to kill not only based on the justice of the cause, but on their own individual intent. Augustine said the real evils in war are hatred, enmity, love of violence, etc. Those attitudes can be found in individual soldiers fighting, not just leadership considering war.

Thanks for the discussion!