Resolving Ethical Challenges in an Era of Persistent Conflict

8/7/2019 Resolving Ethical Challenges in an Era of Persistent Conflict

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RESOLVING ETHICAL CHALLENGES

IN AN ERA OF PERSISTENT CONFLICT

Tony Pfaff

Volume 3

Professional Military Ethics Monograph Series

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STRATEGIC

STUDIES

INSTITUTE

The Strategic Studies Institute (SSI) is part of the U.S. Army WarCollege and is the strategic-level study agent for issues related tonational security and military strategy with emphasis on geostrate-gic analysis.

The mission of SSI is to use independent analysis to conduct strategicstudies that develop policy recommendations on:

Strategy, planning, and policy for joint and combinedemployment of military forces;

Regional strategic appraisals;

The nature of land warfare;

Matters affecting the Armys future;

The concepts, philosophy, and theory of strategy; and

Other issues of importance to the leadership of the Army.

Studies produced by civilian and military analysts concern topicshaving strategic implications for the Army, the Department of De-fense, and the larger national security community.

In addition to its studies, SSI publishes special reports on topics ofspecial or immediate interest. These include edited proceedings ofconferences and topically-oriented roundtables, expanded trip re-

ports, and quick-reaction responses to senior Army leaders.The Institute provides a valuable analytical capability within theArmy to address strategic and other issues in support of Army par-ticipation in national security policy formulation.


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FOREWORD

This monograph is the fourth in a series on theArmys Professional Military Ethic (PME) that theChief of Staff of the Army, General George W. Casey,Jr., inaugurated in October 2009. In his series fore-word, General Casey encouraged the Army to thinkcritically about our PME and promote dialogue at alllevels as we deepen our understanding of what thistime-honored source of strength means to the profes-sion today.

In this monograph, Colonel Tony Pfaff exploresthe ethical challenges facing the Army in an era ofpersistent conict dominated by a variety of irregularthreats. Pfaff argues that these challenges arise becauseirregular adversaries change the character of their warfrom imposing ones will on the enemy to compelling

the enemy to accept ones interest. While this shiftmay seem subtle, Pfaff argues, it suggests a numberof important practical and ethical implications for ourway of war. Formerly, civilians were largely separablefrom warghting, meaning that our strategies of an-nihilation and attrition were the most effectiveandethicalpaths to victory. But now, when combatingirregular threats, civilians are no longer separablefrom warghting. Consequently, strategies of annihi-lation and attrition not only undermine a successfulresolution of the conict, but they are unethical.

This last point suggests that the Army needs toadapt the PME to account for these changes and toadopt a number of policies and procedures to accountfor the expanded role irregular conicts demand Sol-

diers play. Colonel Pfaff offers a number of practicalmeasures the Army should take to meet this challenge.


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I invite our readers to learn more about this impor-tant topic, to test their own assumptions regarding the

moral challenges posed by the changing character ofwar, and to initiate discussions on how our organiza-tion, the U.S. Army, should respond.

DOUGLAS C. LOVELACE, JR.DirectorStrategic Studies Institute


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ABOUT THE AUTHOR

TONY PFAFF is a Foreign Area Ofcer for theMiddle East and North Africa, currently serving asthe Chief of International Military Affairs for ArmyCentral Command. Colonel Pfaff began his militarycareer as an Infantry ofcer and rst served as pla-toon leader and company executive ofcer in the 82ndAirborne Division, with whom he deployed to Op-

erations DESERT SHIELD and DESERT STORM. Hethen served as a company commander and battalionoperations ofcer in the 1st Armored Division, withwhich he deployed to Operation ABLE SENTRY inthe former Yugoslav Republic of Macedonia. ColonelPfaff has also served on the faculty at West Point andas the Senior Intelligence Ofcer for the Joint Staffs

Iraq Intelligence Working Group. He has served twicein Iraq, once as the Deputy J2 for a Joint Special Opera-tions Task Force, and as the Senior Military Advisorfor the Civilian Police Assistance Training Program.Most recently, he served as the Defense Attach inKuwait. He also served as a consultant for the In-dependent Panel to Review Department of DefenseDetention Procedures headed by former Secretary of

Defense James Schlesinger and contributed to the eth-ics section of the Army and Marine Corps counterin-surgency eld manual. Colonel Pfaff has authored anumber of articles in professional and scholarly publi-cations including, The Ethics of Complex Contingen-cies, published in The Future of the Army Profession,2nd Ed, Don Snider and Lloyd Matthews, eds.; Bun-

gee Jumping Off the Moral High-ground: The Ethicsof Espionage in the Modern Age, published in Ethicsof Spying: A Reader for the Intelligence Professional, Jan


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Goldman, ed.; The Ethics of Espionage, in the Jour-nal of Military Ethics; Toward an Ethics of Detention

and Interrogation: Consent and Limits, publishedin Philosophy and Public Policy Quarterly; and Chaos,Complexity, and the Modern Battleeld, publishedin Military Review. Colonel Pfaff has a bachelors de-gree in Philosophy and Economics from Washingtonand Lee University, a masters degree in Philosophyfrom Stanford University, and a masters in NationalResource Strategy from the Industrial College of theArmed Forces.


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SUMMARY

Combating irregular threats has challenged theAmerican way of war in a number of ways. Not onlydoes it challenge how U.S. forces ght, it also bringsinto question the ethical norms they employ to gov-ern the ghting. The resulting confusion is especiallyevident in the public debate over the rules of engage-ment used in Afghanistan. On the one hand, many are

concerned that restrictions on the use of force haveplaced Soldiers' lives needlessly at risk. On the other,many are concerned that risking civilian casualties isnot only immoral in irregular war, but underminesthe war effort.

The rules of war entail balancing three compet-ing imperatives: (1) accomplishing the mission; (2)

protecting the force; and (3) minimizing harm. Deter-mining that balance entails determining where oneshould accept risk. Accomplishing missions risks Sol-diers and civilians; protecting the force risks missionaccomplishment and civilians; and minimizing harmrisks mission accomplishment and force protection.Where risk should be accepted depends on the endsthe use of military force is intended to achieve, as well

as the character of the adversary.To understand why the ends and adversaries as-

sociated with combating irregular threats pose specialchallenges to ethical decisionmaking, one must rstgrasp the complex relationship these competing im-peratives have with the amount of risk Soldiers mayaccept or the amount of risk to which they may assign

to others. Confronting such threats emphasizes pop-ulations rather than military forces and capabilities.In doing so, it expands the ends and means of war,


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requiring Soldiers not only to defend the state, butto impose civil order outside the state as well. These

complications fundamentally change the character ofwarfare, requiring Soldiers to rethink where they mayincur and assign risk when balancing the ethical de-mands of their profession.

This point has important implications for the wayU.S. forces should ght irregular adversaries, and thenorms they should employ. First, it suggests that de-struction of the enemy combat capability may para-doxically put true mission accomplishment at risk, es-pecially when civilian lives are jeopardized. Second, itsuggests that as the supported government developsthe capacity for governance, the use of military forcemust itself transition from warghting, where somecollateral damage is inevitable, to law enforcement,where it is not. This monograph will offer a number of

policy recommendations to accommodate these twopropositions.

What should also be obvious from this introduc-tory framework is that the identity of the military pro-fessional will have to evolve to meet the demands ofthe environment of irregular conict. The good quali-ties of a military professional derive from the purposeand function of the profession and the environment inwhich it is practiced. As the function and the environ-ment change, so must the qualities of the good profes-sional. This monograph will thus offer policy recom-mendations for future Army leader employment anddevelopment.


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RESOLVING ETHICAL CHALLENGESIN AN ERA OF PERSISTENT CONFLICT

ETHICS AND COMBATING IRREGULARTHREATS

It is famously observed that in war armies often re-ght their last war. This observation suggests that mil-itary capabilities rarely evolve faster than the threatsto which they must respond. The same is sometimestrue for the ethics intended to regulate ghting. Theethics of warhas, for the most part, evolved to governarmed conict where the warring parties attempt toimpose their will on each other. As such, militaries as-sociated with states that recognize these restrictionshave developed the weapons and tactics that permitthem to destroy another states military forces while

observing their own ethical standards.1

But the character of warfare against irregular

threats2 is different from the kind of wars that tradi-tional just war norms were meant to regulate. Ratherthan facing enemies in open battle, for which the U.S.military is well-suited, U.S. forces nd themselves em-broiled in complex counterinsurgencies and counter-terrorist campaigns where identifying the enemyaswell as identifying the best means to defeat himislled with uncertainty. This practical uncertaintyentails ethical uncertainty as well: it is impossible toknow what the rules of the game are if one does notknow what game one is playing.

At its most basic level, the rules of war entail bal-ancing three often-competing imperatives: (1) accom-

plishing the mission; (2) protecting the force; and (3)minimizing harm. Determining where the balanceshould lie depends on where one should accept risk.


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Accomplishing missions puts Soldiers and noncomba-tants at risk; protecting the force puts mission accom-

plishment and noncombatants at risk; and minimizingharm puts mission accomplishment and force protec-tion at risk. Where risk shouldbe assigned dependson the ends the use of military force is intended toachieve. What those ends are depends on the charac-ter of the adversary.

To understand why the ends and adversaries as-sociated with combating irregular threats pose specialchallenges to ethical decisionmaking, one must rstgrasp the complex relationship these competing im-peratives have with the amount of risk Soldiers maytake or place on others. Combating irregular threatscomplicates that relationship because it places empha-sis on populations rather than military forces and ca-pabilities. In doing so, it expands the ends and means

of war, requiring Soldiers not only to defend the state,but to impose civil order as well. These complicationsfundamentally change the character of warfare andrequire Soldiers to rethink where they may accept andplace risk when balancing the ethical demands of theirprofession.

THE ETHICAL PROBLEM: PERMISSIONS ANDRESTRICTIONS IN THE USE OF FORCE

Nothing captures the difculties that combatingirregular threats places on the military ethic betterthan the recent controversy surrounding the rules ofengagement (ROE) employed by U.S. Soldiers in Af-ghanistan. While these rules correctly recognize the

importance of minimizing risk to noncombatants,they often increase the risk to Soldiers and, by exten-sion, mission accomplishment. For example, while re-


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ceiving mortar re during an overnight mission, a ser-geant requested supporting artillery rea 155mm

howitzer illumination roundso that his unit couldbetter see the enemys location. Despite the fact thatillumination rounds are not designed to inict casual-ties, higher headquarters rejected the request on theground that it could cause collateral damage.

Later, the same sergeant reported that his unitcame under heavy small arms and rocket propelledgrenade (RPG) re, and he requested artillery to bered on the enemys position. This support was alsodenied because of the proximity of Afghan civiliansto the ghting. To break contact with the enemy, thesergeant then requested the supporting artillery unitto re smoke rounds to conceal their movement. Likeillumination rounds, smoke rounds are not designedto cause casualties, though there is always a remote

possibility that the nonexplosive canister carrying thesmoke could hit someone. But while this request wasgranted, the rounds were deliberately aimed one ki-lometer off the requested position for fear of injuringcivilians. As a result, the rounds were not effective forconcealing the units movement.3

On the other hand, playing by the traditional rulesof war, rules that permit noncombatant casualties,comes with its own risks. For example, in late 2003,U.S. military commanders in Iraq adopted a range ofaggressive tactics intended to increase lethality andmake the cost of resistance too high for insurgents tobear. In response to this guidance, Soldiers went intoIraqi towns and villages kicking in doors and detain-ing scores of ghting-age angry young men.4 As one

embedded New York Times reporter noted, while thesemeasures may have been absolutely necessary, theydrained whatever good will the Sunnis had left forthe Americans.5


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U.S. forces have seen similar reactions to collat-eral damage in Afghanistan. In fact, Afghan President

Hamid Karzai, responding to public outcry, has re-peatedly called for International Security AssistanceForces (ISAF) to curtail operations and eliminate ci-vilian casualties altogether.6 Despite the fact that U.S.strikes against insurgent positions are almost alwaysproportionate and discriminate, insurgents are oftenable to portray their casualties as civilian casualties.Additionally, insurgents are able to exploit the factthat Coalition forces operate in a way that toleratesnoncombatant casualties. Insurgents thus portray notonly their own casualties, but also the civilian casual-ties the insurgents themselves cause, as being a resultof Coalition operations. The result is civilian outrageand calls by Karzais government to constrain U.S. op-erations.7

What these examples show is that there is an inher-ent tension between the imperatives of accomplishingmissions, protecting the force, and minimizing harmto noncombatants that often makes nding ethicallypermissible courses of action difcult. Further, theseexamples suggest that nding such courses of actionrequires assessing where to accept risk; they also sug-gest that where one should accept risk is situation-de-pendent. This means that general rules meant to covera wide range of situations will be difcult, if not im-possible, to establish. Rather, ethical behavior againstirregular adversaries will be somewhat ad hoc, that is,it will require individual Soldiers and their leaders tobe sensitive to local conditions at the time and the par-ticulars of their mission, their organization, and the

civilians in their area of operations.Toward the end of articulating a method for Sol-

diers to make ethical decisions when combating irreg-


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ular threats, the next section will discuss the compet-ing imperatives and the impact combating irregular

threats has on their application. This will allow aclearer formulation of the ethical problem from whichit will be possible to determine an ethical approachbetter suited to the demands of this kind of war.

THE PROFESSIONAL MILITARY ETHIC:BALANCING RISK

Accomplishing the Mission.

Military ethics begins with the utilitarian im-perative to accomplish missions. The logic is fairlysimple. If ones cause is just, one maximizes the goodby achieving it. Thus, actions that lead to victory oravoid defeat are not just permissible, they are obliga-

tory. Additionally, it is a feature of any utilitarianethic that the greater the good, the greater the kinds ofharms that may be done in its name. While the use ofweapons of mass destruction (WMD) or mass killingsof noncombatants would normally be ruled out, ifvictorydepending on what was at stakebecomesmore elusive or defeat more imminent, indiscriminateacts of violence may under certain circumstances bejustied.8

However, this permission does entail a restraint.Though utilitarian ethics do not rule out any particularkinds of acts, they do rule out acts whose outcomes re-sult in more harm than good.9 This restriction, referredto as proportionality, requires Soldiers to limit the useof force relative to the value of the military objective.10

The value of the military objective is measured againstits contribution to the ethical objective of war: to es-tablish a better state of peace than the status quo ante


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bellum.11 Thus indiscriminate acts would most often beunjustied because the harm they cause undermines

the chance for a better peace.

Protecting the Force.

In tension with the requirement to accomplish themission is the competing requirement to protect onesSoldiers.12 While the imperative to accomplish mis-sions obligates ofcers to put their Soldiers lives atrisk, a broader view of military ethics must also con-sider the obligations ofcers have to preserve theirSoldiers lives and well-being. Such measures haveboth utilitarian and moral aspects to their justica-tion. From the perspective of military necessity, of-cers are obligated to preserve their forces so they maycontinue the ght. From a deontic perspective, ofcers

are morally bound to give force to the proposition thatSoldiers are human beings with their own rights to lifeand liberty.13

Minimizing Harm.

In fact, it is these rights to life and liberty that jus-tify ghting in the rst place. Most Just War theoriesdene war in terms of some violation of a states po-litical sovereignty or territorial integrity.14 But thesestate rights are not in themselves worth defending,but rather derive their value to the extent that theirpreservation secures the rights of citizens to life andliberty.15 Because these rights are universal, they re-strict the kind of harms Soldiers may commit. This

restriction, referred to as noncombatant immunity,requires Soldiers to discriminate when applying forceand prohibits intentionally targeting civilians as well


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as surrendered or incapacitated enemy Soldiers.16 Be-cause Soldiers receive training, equipment, and other

resources to reduce their risk when ghting, it followsthat they must accept some additional risk if it meanspreserving the lives of noncombatants who, by deni-tion, have not received those resources.17

The Ethical Problem.

From this admittedly brief analysis, it is easy tosee how difcult ethical decisionmaking for Soldierscan be. They are required to achieve a trifectato winwars, preserve Soldiers lives, and minimize harm tononcombatants. Even in conventional conicts, wherecombatants are easier to distinguish from noncomba-tants, such a trifecta can be difcult enough. But en-emies like Hamas, al Qaeda, and the Taliban are not

only indistinguishable from the civilian population,they deliberately operate close to densely populatedareas in order to exploit any collateral damage inict-ed by our forces.18 Figure 1 depicts the multidirection-ality of forces affecting ethical decisionmaking, whichentails trading off between risks associated with thetriple imperatives of accomplishing the mission, pro-tecting the force, and avoiding harm to noncomba-tants.


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Figure 1. Ethical Decisionmaking.

This complex ethical environment places Soldiersin a difcult position. To win the war, Soldiers mustnd and engage the enemy within the target popu-lation, which increases their vulnerability to attack.

Their alternative is to use weapons of greater lethalityand range, which increases their own safety but de-creases their ability to discriminate combatants fromnoncombatants. Further, the enemies disregard fornoncombatant lives also places enormous pressure onSoldiers to discount that constraint and thus level theplaying eld. It is one thing to say the right to lifeis universal. It is another to say that an enemy non-combatants right to life takes priority over the right tolife of the Soldiers under an ofcers charge. When theenemy intentionally places noncombatants in harmsway, they force Soldiers to weigh mission accomplish-ment and force protection against the rights of thosenoncombatants. If the risks to the mission and onesforces becomes so great as to jeopardize operational

integrity, it is not clear that Soldiers are required totake those risks.19

Risk to Mission

Risk to SoldiersRisk to Civilians


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What should be clear from this discussion is thatthe way many current adversaries ght is putting

pressure on U.S. forces to change the way they ght.To explain the effects of such pressure, the next sec-tion will articulate and compare the conventionalU.S. way of war with the irregular way of war andestablish a foundation from which to articulate an eth-ics for combating irregular threats.

WAYS OF WAR AND ETHICS OF WAR

Clausewitz and the U.S. Way of War.

The Western way of war draws heavily on Carlvon Clausewitzs view that war deals with imposingones will on the enemy. This view entails a number ofdichotomies.20 The actors in war are either friends or

enemies; actions in war entail resistance or surrender;and the end-state of war is victory or defeat. It is truethat enemies may ght to a stalemate, but such a stateof affairs is not stable, representing only a suspensionof hostilities until the sides decide to ght again. Thestate of war itself continues until the hostile relation-ship has transformed into one of peaceful competitionor one or both sides have ceased resisting the otherswill.

The logic of war in the Clausewitzian view is sim-ple in expression, but difcult in application. One hasimposed ones will successfully when the enemy nolonger has the capability to resist. One eliminates theenemys capability to resist by eliminating his combatcapability faster than the enemy can eliminate ones

own. Doing this requires a strategy of annihilationor at least attritionthat seeks a head-to-head battleaimed at destroying as much of the enemys forces, aswell as his ability to generate new ones, as possible.21


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The way of war that emerges from this sort ofconfrontation with the enemy, is, as historian Victor

Davis Hanson puts it, so lethal precisely because it isso amoralshackled rarely by concerns of ritual, tra-dition, religion, or ethics, by anything other than mili-tary necessity.22 Hanson is not saying here that West-ern militaries do not often observe restraint in war.His point is that Western and, by extension, Americanthinking on war is driven by the idea of enemy asexistential threat who must be defeated in order topreserve the kinds of individual freedoms that haveshaped western societies since the time of the ancientGreeks.

From a practical perspective, this way of war ad-judicates better and worse in terms of maximiz-ing the risk to the enemy and minimizing risk to onesown side. Sociologist Martin Shaw refers to this kind

of war as risk-transfer war, which he sees as syn-onymous with the Western and American23 ways ofwar. In such wars, it will always be preferable to ghtin response to threats to national values and inter-ests and in a way that minimizes risk to a societyssocial, political, and economic institutions. Because ofthe democratic nature of Western governments, warsmust also maximize gain and minimize risk to the po-litical leadership that declared the war. To do so, warstypically must be limited in duration and scope.24

In this view, when ghting wars, one must mini-mize ones own casualties while killing the enemy ef-ciently, quickly, and discreetly.25 Recognizing thatwars destruction tends to alienate the electorate andundermine the legitimacy of the war effort, destruc-

tion of the enemy is better when it remains invisibleto the outside world. Such invisibility entails a prefer-ence for precision weapons and a reliance on airpowerso as to limit risking ones ground forces and inicting


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collateral damage. But despite the emphasis on mini-mizing collateral damage, this way of war will sub-

ordinate risk to noncombatants in order to minimizerisk to friendly combatants.26

It is not hard to see how this view of war shapesits ethics. Just as Clausewitz limits war to militaryforce, the Western ethics of war requires Soldiers todiscriminate between targets associated with the en-emys military capability and those that are not. Whenforce protection and mission accomplishment togeth-er would seem to put noncombatants at risk, the West-ern solution is to put force protection at greater risk infavor of reducing noncombatant risk while preservingmission accomplishment. There are limits to this risk.The imperative of mission accomplishment dictatesthat neither suicide nor mission failure can ever beethically obligated. Thus Soldiers are not obligated to

accept so much risk that they either cannot accomplishthe mission or continue the war effort.

Thus, this ethics not only informs the way theUnited States wages war, but also harmonizes withit. This balance of imperatives does not interfere withthe successful waging of war; moreover, by limitingthe damage to civilian lives and property, this ethic ofwar limits post-conict grievances and facilitates thetransition to peace. Of course, there have been timeswhen Western militaries have attacked purely civil-ian targets. But here is where the exception proves therule. Even Air Force General Curtis LeMay believedthat bombing purely civilian targets was opposed tothe law (if not ethics) of war but fell within the scopeof how wars are won.27

The point of this discussion is not to suggest thatthe Western way of war is useless. In conventionalterms, the U.S. military in particular has often beenmore effective than its non-Western counterparts. One


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need not look far for afrmation. The Allied victoryover Japan in World War II and the U.S. victory over

conventional Iraqi forces in 1991 and 2003 serve as buttwo examples in a very long list.

But ethics aside, this way of war also has its limi-tations. The United States defeated the Iraqi military,but it has not yet achieved its political goals in Iraq.Going a little farther back, it is also worth noting thatwhile the U.S. military was successful in its opera-tions against the North Vietnamese military, militarysuccess did not achieve the desired political ends. Infact, there have been a number of times when mili-tary might actually worked against achieving politicalends. The reason is that imposing ones will is only theinstrumental end of war. Given that there are othermaterial ends of war, enabled by imposition of will,strategies of attrition and annihilation are not always

the best ways to achieve them.Political scientist Patricia Sullivan attributes such

less than optimum approaches to a misalignmentbetween war aims and war strategies. She notes thatwar aims fall into two broad categories: (1) targets ofacceptance, and (2) targets of compliance. The formercategory involves imposing ones will and thus a cer-tain state of affairs on an enemy. The latter involvespursuading an enemy to see to ones interests and actin a way that realizes and maintains a certain state ofaffairs. As noted earlier, one succeeds in the formerkind of war by pursuing strategies of annihilation andattrition. Sullivan notes, however, that such strategiescan often work against targets of compliance. In fact,she notes, when larger states have lost to weaker states

in the past, it has often been in attempts to make theweaker state change its policy. This counterintuitiveresult comes from the fact that while military force can


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force acceptance, it cannot change someones mindabout what they want.28 For that, one needs to be able

to shape the enemys interests.

Sun Tzu and the Irregular Way of War.

U.S. adversaries have exploited the misalignmentSullivan has identied. Recognizing that the UnitedStates is unrivaled as a conventional military power,these adversaries have largely abandoned the ideathat a war with the United States will ever result in im-posing their will. Rather, they have undertaken meansand ends aimed at compelling the United States to ac-commodate their interests. To illustrate this point andthe implications it has for the U.S. way of war, con-trast Clausewitzs view articulated above with that ofthe ancient Chinese general, Sun Tzu. Noting that war

is a matter of vital importance to the state,29

he doesnot limit its application to the use of military force atall. In fact, he admonishes the would-be general not toput a premium on killing, adding that to subdue theenemy without ghting is the acme of skill.30

Thus, for Sun Tzu, war is paradoxically limited inits goal but unrestricted in its means. But by unrestrict-ed, he is not referring to violence as much as he is themeans employed. War begins long before the rst shotis red and requires all the elements of national powerto set the conditions for a preferably bloodless acqui-escence of the enemy. As historian Michael Handelnoted, Sun Tzu views the political, diplomatic, andlogistical preparations for war and the ghting itselfas integral parts of the same activity.31


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Working in the tradition of Sun Tzu, two Chinesesenior colonels, Qiao Liang and Wang Xiansui, in the

book Unrestricted Warfare, argued that failure to rec-ognize this broader view of war is a U.S. vulnerabilitythat weaker states, like China, can exploit.32 Writingin the aftermath of the 1991 Gulf War, they acknowl-edged that it would be suicide for any state to take onthe U.S. conventional forces. But they also observedthat the U.S. military does a poor job of deliberatingupon future ghts: lucid and incisive thinking . . . isnot a strong point of the Americans. . . . U.S. militarypreparations for future conict focus almost exclu-sively on conventional forces.33 They go on to pointout that such ridiculous thinking has caused theUnited States to be unprepared to ght terrorism andother unconventional threats.34

More importantly, the situation they describe

would appear to be enduring. This point does notsuggest that the United States will never ght a con-ventional war again. But as long as the United Statesremains unchallenged in its conventional capabilities,its prudent enemies will avoid directly confrontingthose capabilities. Employing the language of Clause-witz and Sun Tzu, Qiao and Wang implicitly arguethat U.S. conventional success has more or less perma-nently transformed the character of war: war is no lon-ger using armed force to compel the enemy to submitto ones will, but rather using all means, includingarmed force or nonarmed force, military and nonmili-tary, and lethal and nonlethal means to compel theenemy to accept ones interests.35

Thus, as Dr. Sullivan suggested, the shift of wars

aim from imposing ones will to gaining acceptanceof ones interests in turn changes what it means toght well, in both the practical and ethical sense. Inthis view, military force is just one element of national


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power that can be used to wage war against an en-emy. The list of such elements includes nuclear, diplo-

matic, nancial, network, trade, bio-chemical, intelli-gence, resources, ecological, psychological, economicaid, space, tactical, regulatory, electronic, smuggling,sanction, guerrilla, drug, news media, terrorist, vir-tual, ideological warfare, and many more.

Additionally, these elements of warfare can becombined in innite ways to form various kinds ofwarfare.36 For example, the Chinese colonels describethe U.S. war on terror as national terrorist warfare+ intelligence warfare + nancial warfare + networkwarfare + regulatory warfare. They also describe ef-forts by the Hong Kong government in 1998, just priorto its return to Chinese government control, as a warfought with nancial speculators, using nancialwarfare combined with regulatory, psychological,

and news media warfare.37

From this shift in ends emerges a view of war thatexpands on Clausewitz, changing wars scope. Friendand enemy are joined by collaborator and competitor;38resistance and surrender are replaced by acceptanceand rejection; and victory and defeat are replaced bysuccess and failure. Further, friend and enemy do notrefer simply to states, but to substate and nonstate or-ganizations as well. Additionally, such conicts arenot zero-sum. If one can achieve ones interests bybeneting the enemy, or some subgroup within theenemys community, so much the better.

The Ethical Implications of Combating IrregularThreats.

This description of multifaceted warfare againstirregular adversaries better accounts for the kinds ofconicts the United States is currently facing. By shift-


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ing the emphasis away from imposing ones will toaccepting ones interests, this view of war shifts the

emphasis of engagement from military capability tothe people. This shift subjects civilians and civilianinstitutions to competing efforts of co-option andcoercion where both sides attempt either to win thepopulace to its cause or prevent the enemy from doingthe same. As Rupert Smith notes in The Utility of Force,in such conicts, the loyalties, attitudes, and qualityof life of the people do not simply impact the outcomeof a conict: they determine it.39 Because of this shiftin emphasis, Smith argues that these conicts are bestdescribed as wars amongst the peoples where theenemy operates among the civilian population in partbecause of ones conventional prohibitions againsttargeting them.40

Operating within the civilian population, the ene-

my depends on that population for shelter, food, med-ical assistance, nances, and other types of support.This relationship entails collaboration on the part ofsome, if not all, of that population, though it does notfollow that this support is given willingly: the ability ofthe enemy to exact it determines his strength. Hamas,for example, routinely places rocket and mortar posi-tions near schools, residences, and other civilian sitesto exploit any resulting collateral damage. Similarly,it forcibly moves civilians into areas where the Israelisare expected to attack.41

Willing or not, this relationship draws the civilianpopulation into a status logically inseparable fromwarghting, making them necessary, if not legitimate,targets of war. What makes them necessary targets is

the fact that the irregulars (or militarily weaker side)could not ght without their support, and we (themilitarily stronger side) cannot win if we do not un-dermine it.


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The Ethics of Combating Irregular Adversaries.

This shift in emphasis from combat forces to popu-lations poses a signicant ethical as well as practicalchallenge to the Western way of war. In terms of prac-tical challenges, population emphasis suggests thatthe United States must incorporate all the elements ofnational power to ensure success; moreover, to realizeits interests, it must do so in a way that both coercesand attracts the population. It is beyond the scope ofthis discussion to amplify this point much further.But it does suggest that there is an ethical as well aspractical requirement to develop and implement thesebroader means. In ethical terms, the challenge arisesbecause of the intermingling of combatant and non-combatant as adversaries exploit civilian populations.

Challenges also result, of course, from the necessaaryprohibitions intended to protect the population fromthe suffering caused by war.

It is for this reason that combating irregular threatsdoes not lend itself to the easy dichotomies of civilian-military or combatant-noncombatant. Irregular actorshide among civilian populations, making civilianscomplicit, if not willingly so, in their activities. Butone must not assume that civilian complicity and li-ability cause a loss of their immunity when we oper-ate against irregular threats. This line of argument isessentially the same as the one made by controversialacademic Ward Churchill in echoing Osama Bin Lad-ens justication for striking the World Trade Centerin New York. Alleging the Twin Towers occupants

indirect contribution to American military might, bothargued that the terrorist attacks of September 11, 2001,were justied because of their relationship to U.S. mil-


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itary policies they believed were unjust. Setting asidethe sheer illogic of these claims, it is worth examining

whether and to what extent civilians should be target-ed in the course of combating irregular threats.42

Thus, it does not follow that by virtue of beingmembers of a particular population, individuals havenecessarily made a choice that justies our killing oreven targeting them. However, to the extent that agovernment or other political entity represents itselfas a threat to some other group, the way its memberschoose to participate in that effort can affect whetheror to what degree they may be ethically exposed tocertain kinds of retaliation. As the philosopher Thom-as Nagel notes, a person may be subjected to hostiletreatment by virtue of the threat that person repre-sents, since hostility or aggression should be directedat its true object.43

In Nagels view, one is ethically permitted tosubject a person to hostile treatment only because ofsomething that person does, and further, the hostiletreatment must be directed at the person in virtue ofthe threat posed. In conventional jus in bello terms, itfollows from this argument that combatants may bekilled, since they embody the threat represented bythe enemy state; and noncombatants may not, sinceby virtue of being noncombatants, they do not rep-resent that threat. Of course, this argument does notnecessarily exempt civilians from being targeted. Forexample, it is permissible to target munitions workerseven though they are not uniformed members of themilitary. This permission is due to the fact that theiractivity is not logically inseparable from warghting.44


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Discrimination: Enemies, Criminals, and a JustPeace.

In determining what measures are permissible insuch a complex environment, one must also take intoaccount the ethical aim of the states use of force inthe rst place. Despite the change in the character ofwar, the fundamental question about the ethicality ofwar is still a question of justice. While there are manyconcepts and forms of justice, at its most basic justiceis about getting what one deserves.45 In the context ofnational security, what one deserves is what one has aright to, which as I have previously stipulated is, at aminimum, life and liberty.

The responsibility for ensuring that individualsenjoy such rights falls on the state by virtue of the so-cial contract. The state ensures these rights by creating

law enforcement and military institutions that providethe kind of security required for the exercise of thoserights. Security, being indivisible and nonexcludable,is a public good, meaning that its provision is subjectto the demands of distributive justice.46

Providing security requires the sovereign to forminstitutions around which the distribution of socialgoods is organized. These institutions identify a pub-lic system of rules that dene how other individuals,which I will refer to as the states agents, identify theirpositions, rights, roles, and duties.47 Institutions, in thissense, can be both abstract and concrete. For example,one may speak of the military when determiningthe roles, rights, duties, powers, prohibitions, permis-sions, and obligations associated with certain aspects

of national security.48 More concretely, one may referto the Department of the Defense (DoD), which isthe practical U.S. manifestation of the military actu-ally charged with the roles and responsibilities associ-


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ated with maintaining national security. Collectively,the institutions which employ the various powers of

the state are the state. Individuals who operate withinthese institutions thus take on the obligations of thestate insofar as the exercise of such obligations is com-patible with the role they play within that institution.

It is important to note, however, that despite thefact that military and law enforcement institutionsshare a common purposeto protect citizens of theirstatethey differ signicantly because of the differ-ent kinds of threats they confront. Militaries confrontenemies who are capable of violating the states rightto political sovereignty and territorial integrity. Crim-inals, on the other hand, threaten individual rights.While widespread criminal activity can place so muchpressure on government institutions that they col-lapse, normally they do not represent a threat to the

state itself. How these dual roles inform the ethics ofcombating irregular threats is discussed later.

It is, of course, beyond the scope of this paper toestablish what appropriate state institutions shouldexist, given the range of cultural, social, and politi-cal conditions. But the paper does suggest that if thepurpose of ghting wars is to establish a just peace,then, once established, the purpose of continued mili-tary operations is to maintain that peace. A just peaceentails not simply a cessation of hostilities, but thepresence of just institutions capable of sustaining thatpeace. Given these considerations, one can say a stateof peace exists under the following conditions: 49

The enemy is defeated or transformed intoa nonexistential threat either to ones state or

to the imposition of a just host-nation govern-ment.


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There exist institutions necessary for enforcingthe rule of law, including police, courts, and

prisons. These institutions must be fair, honest, and

credible, where citizens are willing to rely onthem to resolve disputes rather than resort toviolence to resolve disputes themselves.

Of course, these conditions do not spontaneouslyemerge when the war ends. In fact, it may not be clearwhen a particular conict ends. There is no clear sig-nal, like an offer of surrender, marking when an ir-regular threat no longer exists. If the enemy does sur-render, it usually comes long after the threat has beencontained. As a matter of course, winning is usu-ally manifested by the ability of one side to imposeits order on the population in question, however that

population is identied.This point means that counterinsurgent forces

must often transition from conditions of war, whereno institutions associated with civil society exist, toconditions of peace where such institutions come intoexistence and are capable of enforcing the just ruleof law on their own. It is a fact of many conict andpost-conict situations that even when such institu-tions exist, they are not always effective. Institutionaldevelopment in conict and post-conict situationsproceeds in stages. It begins with imposing order,then transitions to protecting minority rights, andthen ends with local institutions capable of sustaininga just social order.50

As the operating environment transitions from

warghting to civil society, the states obligation toprotect its citizens may fall on foreign military forcessupporting it as well. Whatever the actual reasons thehigher headquarters had in the ROE contretemps dis-


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cussed earlier, it was right to take into account howthe sergeants request for smoke and illumination

might endanger civilians. As the Afghan governmentcontinues to develop institutions necessary to providesecurity in a just manner, U.S. forces must not onlyshoulder their responsibility to avoid harm to them-selves, but also their responsibility to protect thosecivilians. Figure 2 depicts the inverse relationship be-tween the strength of civil institutions on one hand,and permissions regarding the use of force and col-lateral damage on the other. As the capability of civilinstitutions increases to the point that they are strongenough to provide basic security needs for a givenpopulation, collateral damage becomes no longer per-missible since it represents the kind of violence thoseinstitutions are supposed to prevent.

Figure 2. The Inverse Relationship

between the Strength of Civil Institutionsand Permissions Regarding the Use of Force

and Collateral Damage.

Transitions to Civil SocietyStrength of Civil

Institutions

War fghting

Most force permissible

Law EnforcementLeast force possible

Less

Less

Use of Force

More

More

Risk to Civilians

Risk to SoldiersCollateral damagenot permissible


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Thus, as civil institutions become stronger, suscepti-bility to risk decreases for civilians while increasing

for Soldiers, as well as police and other security ser-vices. In other words, the risk shifts from civilian tosecurity provider.

Whether the decision to withhold re support wasin fact the right one depends on whether the state, infact, had control over that territory. As noted earlier,the states responsibility to protect is enabled by itsright to sovereignty and territory. Where an enemyhas effectively taken territory and displaced the statesinstitutions, then the threat is no longer criminal, andgreat force is permitted. This point will be discussedin more detail later.

However, as this example shows, in the context ofthis transition from war to peace, the central difcultywhen combating irregular threats is sorting out the

combatants from enemy collaborators among onesown supporters. This sorting is further complicatedby the fact that some collaborators are coerced, andsome nominal allies have ties to and even sympathiesfor the enemy. Additional complications arise when,unlike in conventional conicts, the activities of in-surgents and their supporters take place in the samespace as routine and peaceful civilian activity, makingit difcult to determine who is complicit with the en-emy and who is not.

Thus as a practical matter, distinguishing betweencombatant, noncombatant, and supported can be verydifcult, if not impossible. In such contexts, restrictingones efforts to engaging only armed elements of theinsurgency can have the dual effect of jeopardizing

the stronger sides chances for victory, and prolong-ing the conict, paradoxically leading to more harmto noncombatants.


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Resolving the paradox requires expanding the setof legitimate targets while reducing the occasions for

the lethal use of force. Further, in expanding the setof legitimate targets, one must take into account theirrelationship to the actual threat Soldiers face. Takentogether, these points suggest the following permis-sions and restrictions regarding the requirement todiscriminate permissible targets from the impermis-sibles:

Members of the general population may be sub-ject to law enforcement measures regardless oftheir level of cooperation with the enemy, suchas curfews and increased security measures, aswell as information operations.

Members of the population who indirectly, butunknowingly, support enemy activities may berequired to cease such activities, even if it nega-

tively impacts their quality of life. Members of the population who directly and

knowingly support the enemy but do not en-gage in violent activitiesthe actual threatthey represent being indirect and they beingno threat if there were no enemymay not betargeted for killing, but rather must be treatedas criminals.

Members of the population who participate inviolent activities may be killed or detained. Tothe extent that these members of the populationrepresent a threat to the government, collateraldamage may be permitted.

Members of insurgent and terrorist groupsmay be targeted for killing if they represent an

enemy threat in the sense described above. Ifthey represent a criminal threat, again in the


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sense described above, they must be targeted ascriminals and killed only when it is not possible

to detain them.

In addition to standard jus in bello restraints, thisanalysis also suggests that it would not be permissibleto target the following:

Members of the population who, if targeted,will not have an effect on the outcome of theconict. This is not controversial, as no theoryof just war would endorse gratuitous targeting.

Members of the general population may not beharmed, even collaterally, if the threat repre-sented by the adversary may best be describedas criminal.

SUMMING UP: BALANCING COMPETING

IMPERATIVESAs discussed above, the aim of operations against

irregular adversaries should be the establishment ofa just civil society capable of securing the rights of itsmembers without representing a threat to the rightsof members of other societies. As in Iraq and Afghani-stan, such conicts often start as wars, where combat-ants are relatively easy to distinguish from noncomba-tants. In such cases, traditional just war norms wouldapply.

However, as these conicts also show, the battle-eld defeat of those forces does not always mean anend to ghting. However, though the ghting contin-ues, it does not follow that the conict is unchanged.

Where the major combat operations that began thewar were aimed at imposing U.S. will on the Iraqi andTaliban governments, after their defeat the aim of thewar transitioned to persuading elements of the popu-


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lation to accept the others interest and manifest thatacceptance in the form of a government they would

all accept.What norms apply then depends on the kind of

threat the adversary represents. At this point, war-ghting ceases to be about defeating enemy forces butcompelling the population to accept the legitimacyof a new government. The burden of risk thereuponshould shift to reect the rights and responsibilities ofthat government. If the rights of a state rest on its citi-zens rights to life and liberty, individuals and groupsthat threaten those individual rights but not the statesrights, are then best conceived as criminal. While theydo not directly threaten those states rights, theirthreat to individual rights still places a burden on thenew state to protect those individual rights.

When it comes to the use of force, military and law

enforcement organizations instruct their forces to al-ways use the least force necessary. However, these en-tities have very different conceptions regarding whatis the least force necessary. Under conventional justwar norms, the military seeks to use the most forcepermissible, given the requirements of proportionalityand discrimination. In the conditions of civil society,law enforcement seeks to use the least force possible.The different conceptions are due to the way eachperceives and is trained to deal with threats. To thepolice, the threat is a criminal they must apprehendin order to minimize disruption to society. Since theuse of violence represents a further disruption of thepeace, police are always looking to use the least forcepossible. In this view, no use of force where civilian

bystanders will knowingly, though unintentionally,be harmed is permitted.


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However, Soldiers are trained to defeat enemieswho must be killed if there is to be peace. They are

always looking to reduce risk to themselves by usingthe most force they have available. As noted previ-ously, that force should be tempered by the amountof risk Soldiers must assume rather than putting non-combatants at risk.51 This feature of conict gives ustwo models of threat that states may face: warghtingand law enforcement. States have developed differentinstitutions to deal with each; they employ very differ-ent forces, methods, and ethics in facing those threats.These divergent conceptions of necessity determinedifferent permissions regarding the use of force.

Mission Accomplishment and Proportionality.

In both models, mission accomplishment remains

an imperative. Typically, Soldiers may risk only mis-sion failureor more accurately, forgo the missionaltogetherwhen the degree of risk assigned to non-combatants results in harm done that is dispropor-tionate to the good achieved.52 When calculating pro-portionality, Soldiers ghting enemies must weighthe harm the Soldiers do against the requirements offuture peace. Actions that will perpetuate animosityand make a stable peace difcult to attain need to beweighed against any action intended to achieve thatpeace. Soldiers engaging criminals are obligated toweigh the harm done against the requirements of thecurrent peace. This restriction would not only limit en-gaging in violent actions, it would also preclude non-violent actions that nonetheless disrupted the peace,

such as mass detentions or excessive restrictions onmovement.


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Force Protection.

As noted above, the degree of risk Soldiers are ob-ligated to accept is limited only by the requirements offorce protection and mission accomplishment. Underthe law enforcement model, Soldiers are obligated toaccept certain risks so as to prevent harm to civilians,but they may not put those civilians at risk.53 Thereare conditions, for example, in which law enforcementofcials will allow a suspect to escape rather than putbystanders at risk of serious physical injury or death.However, they would not stop their pursuit of thatcriminal nor their efforts to prevent future criminalacts.54 Thus, if the choice is to forgo harming civilians orconducting a particular mission, Soldiers must chooseto forgo conducting that mission. This requirementdoes not mean, however, they must forgo achieving

their objective, just that they must nd another wayto do it. Additionally, like police, Soldiers are not obli-gated to risk serious physical harm or death simply toapprehend a single individual unless that individualrepresents an immediate harm to others.

Minimizing Harm.

When discriminating between legitimate and il-legitimate targets, Soldiers ghting enemies mustobserve the negative obligation to minimize noncom-batant casualties. Soldiers engaging criminals mustavoid such casualties altogether. Additionally, underthe criminal model, Soldiers have a positive obligationto protect civilians from harm in the same way police

have an obligation to protect civilians.55 This lattercondition assumes that Soldiers can act as police in thegiven area of operations. Where that authority does


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not exist, Soldiers may engage the adversary underthe enemy model, but only in order to establish a law

enforcement capability as rapidly as possible.56

IMPLICATIONS FOR LEADERS

What should be obvious from this frameworkis that the identity of the military professional willhave to evolve to meet the demands of the environ-ment of operating against irregular adversaries. Thegood qualities of an ofcer derive from the purposeand function of the profession and the environmentin which it is practiced.57 As the function and the envi-ronment change, so must the dening qualities of thegood ofcer.

When ghting enemies, qualities such as decisive-ness, aggressiveness, and unwillingness to compro-

mise are essential to achieving peace. Under the crimi-nal model, traits such as tact, restraint, diplomacy, andpatience are paramount. Balancing the requirementsof these sometimes competing models poses a prob-lem for the ofcer. In fact, several studies have notedthat the professional career Soldier is not necessar-ily the best person for peace-keeping (or law enforce-ment) tasks.58

It is worth noting that the traits described abovefor both models are not necessarily mutually exclu-sive. The difference derives from which traits domi-nate. Thus the challenge for the ofcer is to cultivatenew traits, while not allowing the old ones to atro-phy. Additionally, the ofcer will have to develop thejudgment to determine how these traits apply across a

range of environments.59As previously discussed, combating irregular

threats requires Soldiers to have a great deal of lo-


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cal knowledge so they may best account for localneeds and interests in order to bolster the supported

state. However, the higher one is in the chain of com-mand, the more difcult it is to retain and apply thisknowledge in the context of a particular operation.This feature of irregular warghting puts pressure ontraditional Army culture, which assigns near total re-sponsibility to the commander for whatever happensin his or her command. As a result, commanders tendto retain at their level the authority to make critical de-cisions, a tendency resulting in relatively centralizeddecisionmaking.

However, as the sergeant in the ROE exampleexperienced, while higher headquarters are adept atapplying general rules and guidance, they cannotatleast not consistently and effectivelytake into ac-count the many nuances associated with combating

irregular threats, such as the relative value of any par-ticular operation, the relationship of particular localsto enemy forces, or how much risk civilians will beexposed to by a particular course of action. As a result,what emerges is a cacophony of decisions that some-times place Soldiers at extreme risk and at other timeslead to unnecessary civilian casualties.

It is beyond the scope of this discussion to fullyarticulate the implications of this point for traditionalcommand responsibility, but it does follow that de-cisions regarding the use of force should be made atthe lowest level feasible. This will require leaders tohave extremely good local knowledge, since they willhave to live with both the negative and positive conse-quences of their decisions. However, a leader who has

developed a sense of obligation toward members ofthe local population will be in a better position to de-termine what level of force is appropriate within theframework articulated in this discussion.


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IMPLICATIONS FOR THE PROFESSION

This monograph suggests the following measuresthe profession should take to provide the ofcer corpswith the wherewithal necessary to conduct ethical op-erations when facing irregular adversaries:

Develop the capability to conduct law enforce-ment operations and establish civil institutionsin post-conict environments. Application offorce under the criminal model depends onaccess to functioning law enforcement institu-tions. These institutions are usually not avail-able to foreign forces. This suggests that whenconfronting irregular adversaries, militariesmust incorporate this institutional capabilityinto their organization. In some cases, this ca-

pability development will require integratingmilitary and civilian capabilities under a uni-ed command. Failing to invest in such capa-bilities will lead to increased risk to noncomba-tants that could have been reasonably avoided.To the extent that a supporting state wouldhave invested in those capabilities to avoid riskto its own citizens in similar circumstances, itshould do so as well when conducting opera-tions in foreign countries.

In environments where the enemy is sufcient-ly strong to prevent the establishment of suchinstitutions, Soldiers may conduct operationsunder the enemy model even though the ad-versary may not meet the enemy criteria. But

these operations must include the goal of creat-ing an environment where police methods andforces would be effective.


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Modify ROE to reect the restrictions inherentin the criminal model. Additionally, command-

ers will need to develop a framework for shift-ing between the two models.

Increase the use of and training in nonlethalweapons. This will give Soldiers more optionswhen dealing with situations where it is dif-cult to discriminate between combatants andnoncombatants.

Revise the ethical development of ofcers toinclude traits associated with law enforcementand peacekeeping, while preserving those nor-mally associated with warghting.

Revise the conception of command responsibil-ity and intra-command risk-sharing to permitgreater decentralization regarding the decisionto use force. Place the decision to use force at

the lowest level feasible. Determining the ap-propriate level should take into account theindividual leaders experience and knowledgeof the local environment as well as the meansemployed in achieving military objectives.

CONCLUSION

If one views the character of war as the impositionof ones will on the enemy, then one will naturally em-phasize coercive strategies of attrition and annihila-tion that eliminate resistance. Such a view, of course,does not ignore constraints in war, but as the distinc-tion between what is and is not logically separablefrom warghting blurs, the range of potential targets

expands. As it does, the burden of risk shifts to the ci-vilian population, increasing the potential for humanrights violations.


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On the other hand, if ones view of war favors com-pelling the enemy to accept ones interests, then one

must employ a mix of coercive and persuasive induce-ments aimed at shaping the enemys interests in con-forming. While this view does not ignore the require-ment to kill, it often subordinates eliminating enemycombat capabilities in favor of achieving complemen-tary political goals. As the distinction between politicsand warghting blurs, risk shifts back to combatants,who must often sacrice short-term military goals forthe sake of long-term institutional development. Butif one over-emphasizes such attractive measures overcoercive ones, one creates space for the enemy to op-erate, prolonging the war and putting ones own Sol-diersas well as civiliansat unnecessary risk.

Placing the burden of risk on the enemy meansplacing it on the civilian population as well. One could,

and in some cases should, accept more risk to onescitizens and Soldiers, but if one treats that imperativeas an absolute, one abandons ones obligation to thosepersons as well. In these kinds of conicts, it is not un-common to feel that one is placed in the position not ofbalancing ethical demands, but of abandoning them.

However, abandoning ones ethical obligations isnot only unethical, it is unnecessary. It is, of course,beyond our scope here to fully spell out how oneshould balance these imperatives in each instance.However, what this analysis has shown is that whencombating irregular threats in environments wherestable peace exists, Soldiers are ethically obligated toemploy means that avoid harm to noncombatants. Inenvironments where there is no peace, Soldiers may

undertake actions that place noncombatants at risk,but must observe the traditional restrictions of pro-portionality and discrimination.


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The fact that enemy and criminal threats are oftenfound within the same battle space provides extraor-

dinary ethical as well as practical challenges to ofcersof all ranks. To confront such threats without betray-ing the rights and values Soldiers are defending, mili-tary leaders must reconsider the application of force.This will require not only radical adjustments to train-ing, force development, and task organization, it willalso require a fundamental rethinking of the Soldiersidentity.

ENDNOTES

1. While the observation of these restrictions has certainlybeen inconsistent across multiple conicts, nonetheless, for themost part militaries recognize these restrictions and have avoidedemploying weapons and tactics that are inherently indiscriminate.

2. U.S. Training and Doctrine Command (TRADOC) Pamphlet(Pam) 525-3-0, The Army Capstone Concept, Operational Adaptability:Operating under Conditions of Uncertainty and Complexity in an Era ofPersistent Conict, 2016-2028, Washington, DC: Department of theArmy, December 21, 2009. Finding the right label for the kind ofunconventional conicts discussed in this monograph is difcult,as the literature is rarely consistent. As the Army Capstone con-cept denes it, irregular warfare is the violent struggle amongstate and non-state actors for legitimacy and inuence over the

relevant population(s). However, this term risks arbitrarily ex-cluding operations against irregular adversaries that fall short ofwar. Asymmetric warfare, which is an arguably more popularterm, still raises objections from a number of authors and schol-ars who are concerned that it does not sufciently distinguish be-tween conventional asymmetries, where one side simply bringsmore repower to the eld than the other from the range of 21stcentury security threats, which use unexpected means to strikeat vulnerable points. Rupert Smith, author of Utility of Force, for

example, views the term as simplistic and prefers war amongstthe peoples. T. X. Hammes, author of The Sling and the Stone,argues that wars characterized by the use of asymmetric meanssuch as terrorism and insurgency are best described as fourth gen-


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eration war, where rst generation warfare focused on destroyingthe enemys close forces, second generation warfare employedrepower to destroy enemy forces in range, and third generationwarfare employed maneuver to strike at enemy command andcontrol as well as logistic capabilities. Fourth generation warfarechanges the focus of war from the enemys military capabilityto the will of the people. For the purposes of this discussion, Iwill distinguish between regular war and combating irregularthreats.

3. George Will, U.S. tactics in Afghanistan put troops at risk,The Washington Post, June 21, 2010, available from www.courant.com/news/opinion/hc-will-afghanistan-tactics-0621-20100621,0,2660470.column.

4. Dexter Filkins, The Fall of the Warrior King, New YorkTimes Magazine, October 23, 2005, p. 54.

5. Ibid., p. 57.

6. Karzai Demands Halt to Civilian Casualties, Reuters,February 7, 2010, available from www.rferl.org/content/Karzai_Demands_Halt_To_Afghan_Civilian_Casualties/1951260.html .

7. A. Karzai, Lament; Afghanistans president becomes aNATO scold, The Wall Street Journal (Online), February 24, 2010,available from www.proquest.com/.

8. Michael Walzer, Just and Unjust Wars, 2nd Ed., New York:Basic Books, 1992, pp. 130-132. According to Walzer, all a utilitari-an ethic can do is either conrm our intuitions regarding the rulesof war or suggest they be overridden, as under utility theory, noact is immoral by virtue of its character, only its outcome. Walzerdoes argue that cases of supreme emergencies, where the real-ization of catastrophic harm is imminent, may justify the use ofmeans normally ethically off-limits.

9. All theories of utility emphasize the maximization of somegood and the minimization of some harm. They disagree, how-ever, on what exactly the good is. For the father of utility theory,Jeremy Bentham, it was pleasure. For John Stuart Mill, it was hap-piness. Others consider it interest or well-being. In the context of


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Just War thinking, the good is understood as victory for the justside, which is the best outcome of any war, even for the enemy.See William Shaw, The Consequentialist Perspective, JamesDreier, ed., Contemporary Debates in Moral Theory, Malden, MA:Blackwell Publishing, 2006, p. 10.

10. Proportionality is a notoriously difcult requirement tocalculate as it requires one to measure harms that are not alwayscommensurate, as well as calculate the future harms one is try-ing to avoid. Thus, when considering the Israeli case, one mustconsider the impact Hamas attacks over the last several years hashad on the quality of life of the affected Israeli towns. The factthe attacks were not particularly effective did not mean that thoseliving in those villages were less terrorized. Now calculating howmuch collateral damage on the Palestinian side is proportional tothe objective of preventing future attacks and restoring a sense ofnormalcy to the affected Israeli villages is difcult, but not impos-sible, to determine. Additionally, one must calculate the harmsexpected from future attacks, which requires one to consider sec-ond and third order consequences as well. For example, if Israelfailed to prevent the attacks, Hamas may be emboldened to in-crease them. In both cases, judgments are difcult, but not impos-sible. It is beyond the scope of this monograph to examine fullythe complexities associated with calculating proportionality, butwhat should be clear is that proportionality must be measured interms of the overall good achieved by attaining the military objec-tive, not the current balance of harm each side has endured.

11. Because the immediate, short-term military objectives areembedded in the larger, overall military objective, proportionalitycalculations apply to both. But when it comes to the more limited,short-term objectives, proportionality must be calculated in termsof its contribution to that objective, not in terms of the value of theoverall objective.

12. I will use the term Soldier to refer generically to uni-formed members of the military. I will capitalize Soldier, Sail-or, and Airman when referring to uniformed members of theArmy, Navy, and Air Force just as one would capitalize Marinewhen referring to uniformed members of the U.S. Marine Corps.


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13. James M. Dubik, Human Rights, Command Responsibil-ity, and Walzers Just War Theory, Philosophy and Public Affairs,Vol.11, No. 4, 1982, p. 355. Dubik rejects Walzers conception thatSoldiers give up their right to life to gain the right to kill. He ar -gues that if rights to life and liberty are indeed natural, then Sol-diersor anyone for that mattercannot give them up.

14. Walzer, pp. 53-54.

15. Paul Christopher, The Ethics of War and Peace: An Intro-duction to Legal and Moral Issues, 2nd Ed., Trenton, NJ: PrenticeHall, 1999, pp. 164-166. It does follow from this analysis that statesthat threaten the lives and liberty of their citizens do not enjoy therights of political sovereignty and territorial integrity. This ratio-nale has been used to justify humanitarian interventions, such asthose in Bosnia and Kosovo. See Walzer, pp. 101-108.

16. Walzer, pp. 151-152.

17. Dubik.

18. Obviously, these actions are immoral from the perspectiveof the Just War Tradition, and are war crimes from the perspectiveof international law. By ghting in an immoral and illegal man-ner, groups like Hamas expose themselves to justied reprisals,which would permit the Israeli Defense Force to engage in other-wise immoral activity to dissuade Hamas from continued crimes.However, reprisals may be directed only at those responsible forthe crime in rst place, which would preclude targeting noncom-batant lives and property. See Walzer, pp. 207-216.

19. Christopher, p. 93.

20. Peter Paret, Education, Politics, and War in the Life ofClausewitz, Journal of the History of Ideas, Vol. 29, No. 3, Jul-Sep,1968, p. 395. That Clausewitz would express himself this way isnot surprising, given his exposure to philosophers like Kant, whoemphasized the role of will, and Friedrich Hegel, who empha-sized a dialectical process of reasoning. But Paret notes that whileClausewitz was certainly exposed to Hegel and Kant, he did notseem to apply their insights directly to his own views of politicsand war. Thus one must be careful when inferring philosophical


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inuences on his writing. But while it seems clear that Clause-witz did not deliberately employ a Hegelian dialectic to constructa full-blown philosophy, I am suggesting he was inuenced bythe methods of great thinkers like Kant and Hegel in how he ap-proached the subject.

21. Victor D. Hanson, Carnage and Culture: Landmark Battles inthe Rise of Western Power, New York: Doubleday, Random House,Inc., 2001, p. 22.

22. Ibid., p. 21.

23. For the purposes of this discussion, I will refer to the wayof war that emerges from the kind of thinking I have associatedwith Clausewitz as the Western Way of War, which I take to beroughly synonymous to the American way of war. Although, as amatter of practice it may be more accurate to say there are manyAmerican ways of war of which the irregular way of war that willbe articulated in this discussion may eventually be one.

24. Martin Shaw, The New Western Way of War, Cambridge,UK: Polity Press, 2005, pp. 71-78.

25. Ibid., pp. 79-97.

26. Ibid., p. 97.

27. In the full context of his remarks, General LeMay arguedthat war is itself immoral, implying that restrictions on the useof force that prolonged it were also immoral. Thus, while recog-nizing the illegality of the bombings, it is also fairly clear he didbelieve these actions were immoral.

28. Patricia L. Sullivan, War Aims and War Outcomes: WhyPowerful States Lose Limited Wars, Journal of Conict Resolution,Vol. 51. No. 5, June 2007, p. 505.

29. Sun Tzu, The Art of War, Samuel B. Grifth, ed., Oxford,UK: Oxford University Press, 1971, p. 63.

30. Ibid., p. 77.


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31. Michael I. Handel, Masters of War: Classical StrategicThought, 3rd Ed., Portland, OR: Frank Cass Publishers, 2001, p. 27.

32. Qiao Liang and Wang Xiangsui, Unrestricted Warfare, Bei-jing, China: PLA Literature and Arts Publishing House, February1999, English translation available from www.terrorism.com/docu-ments/TRC-Analysis/unrestricted.pdf.

33. Ibid., p. 24.

34. Ibid., p. 145.

35. Ibid., p. 7 (italics by author). In fact, as Qiao and Wangnote, (t)o a very great extent, war is no longer even war but rath-er coming to grips on the internet, and matching the mass media,assault and defense . . . along with other things which we hadnever viewed as war, p. 140.

36. Ibid., p. 146.

37. Ibid., p. 147. This thinking is reected more comprehen-sively in the Peoples Liberation Armys (PLA) concept of shashou-jian or Assassins Mace. Assassins Mace is an umbrella termfor doctrinal development and acquisition of weapons systemsaimed at enabling the inferior to defeat the superior. Thisdoctrine relies on surprise as well as deceptive and unorthodoxmethods unknown to the adversary. The means employed un-der this doctrinesuch as those described aboveare intendedto achieve the effects of deterrence, decapitation, blinding, para-lyzing, or disintegrating enemy forces. Jason E. Bruzdzinsi, De-mystifying Shashoulian: Chinas Assassins Mace Concept,Andrew Scobell and Larry Wortzel, eds., Civil Military Change inChina: Elites, Institutes, and Ideas After the 16th Party Congress, Carl-isle, PA: Strategic Studies Institute, U.S. Army War College, 2004.

38. I use the term collaborator to dene those persons whooffer some sort of cooperation with the enemy, whether they doso willingly or not.

39. Rupert Smith, The Utility of Force: The Art of War in the Mod-ern World, New York: Alfred A. Knopf, 2007, p. 281.


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40. Ibid., pp. 19-20.

41. Human Rights Watch, Rockets from Gaza, August 6, 2009,available from www.hrw.org/en/node/8567/section/1.

42. Ward Churchill, Some People Push Back: On the Jus-tice of Roosting Chickens,available from www.kersplebedeb.com/mystuff/s11/churchill.html. See also Chickening out, The VillageVoice, February 23, 2005, available from www.proquest.com/.

43. Thomas Nagel, War and Massacre, originally publishedin Philosophy and Public Affairs, Vol. 1, 1972, pp. 123-144. Reprintedin Gregory Reichberg, Henrik Syse, and Endre Begby eds., TheEthics of War, Oxford, UK: Blackwell Publishing, 2006, pp. 654-656.

44. Ibid., p. 656.

45. Robert Audi, ed., The Cambridge Dictionary of Philosophy,Cambridge, UK: Cambridge University Press, 1995, p. 395.

46. Michael Taylor, The Possibility of Cooperation, Cambridge,UK: Cambridge University Press, 1995, p. 5.

47. John Rawls, A Theory of Justice, Cambridge, MA: BelknapPress, 1971, p. 35.

48. Ibid., p. 55.

49. These conditions are adapted from Tony Pfaff, MilitaryEthics in Complex Contingencies, Don Snider and Lloyd Mat-thews, eds., Transformation of the Army Profession, 2nd Ed., Boston,MA: McGraw Hill, 2005, p. 413.

50. Michael J. Dziedzic and Leonard Hawley, The Quest fora Viable Peace,Washington, DC: United States Institute of Peace,2009, p. 17.

51. Tony Pfaff, Military Ethics in Complex Contingencies,Don M. Snider and Lloyd J. Matthews, eds., The Future of the ArmyProfession, 2nd Ed., New York: McGraw Hill, 2005, pp. 412-414.


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52. There may also be cases where Soldiers may be morallypermitted to forgo missions if they face certain death. Intuitively,however, this idea generally runs counter to the obligation of theSoldier to defend the state and its citizens. Resolving such con-icts is difcult since they may entail circumstances where Sol-diers are obligated to risk death. It is beyond the scope of thisdiscussion, however, to go into those concerns in detail.

53. For example, New York City Police Department policyprohibits the use of deadly force when doing so will endangerinnocent persons. This policy also prohibits police ofcers fromdischarging their rearms to subdue a eeing felon as long as thatfelon does not represent an immediate (authors italics) threat ofdeath or serious physical injury to themselves or others. Emailfrom New York City Police Inspector Michael Hurley, April 22,2010.

54. In most U.S. jurisdictions, police would be prohibitedfrom attempting to kill a violent criminal if bystanders would cer-tainly be harmed. This is true regardless of how many others thepolice ofcer may think may be harmed by the criminals escape.See John Kleinig, Chap. 1, The Ethics of Policing, Cambridge, MA:Cambridge University Press, 1996.

55. Paolo Tripoldi, Peacekeepers, Moral Autonomy, and theUse of Force, Journal of Military Ethics, Vol. 5, No. 3, 2006, p. 217.

56. Such permission is a concession to the fact that terroristgroups like Hamas do not neatly fall into either category. Other-wise, the state would be in the paradoxical position of having tofail in its duty to protect its citizens in order to uphold the rightsof a population, elements of which threaten those citizens, simplybecause it cannot conduct law enforcement operations in that ter-ritory. This seems unreasonable. It seems equally unreasonable,however, to suggest that simply because a terrorist group operatesoutside the reach of a states police forces that the open-ended useof military force is permitted. Otherwise, any state could rational-ize the use of military force against any state where terrorists areconducting operations. Thus such use must be clearly directed atcreating the conditions for law enforcement operationswheth-er conducted by the threatened state or host nation police forceswhere the terrorists are operating. This, in fact, has been a feature


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of U.S. operations in Iraq and Afghanistan, where military forceis often employed to prevent local police forces from being over-whelmed or co-opted by insurgents.

57. Charles A. (Tony) Pfaff, Ofcership: Character, Leader-ship, and Ethical Decision Making, Military Review, March-April,2003, p. 68.

58. Tripoldi, p. 217.

59. Pfaff, Ofcership, pp. 70-71. The author addresses anoutline for ofcer character development.


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