John S.

Frye October 18, 2011 PHL 443

The Conduct Of War

By: John S. Frye

The principle of proportionality (how much force is morally appropriate) is embedded in almost every national legal system and underlies the international legal order. The term proportionality boasts a long history within the rules of war. Some texts claim that the concept was already a part of the medieval laws of war, which suggested that war, could be deemed to be just, and hence legitimate, only if its gains exceeded the losses . Proportionality, in the context of the conduct of war, is implied in the idea that war must be illegal if the ends cannot justify the means. Taking it one step further, in international law, there are various parameters adopted as basic rule. One in particular, the principle of distinction, outlaws direct attacks against non-military targets. However, this does not mean that all other attacks, for instance attacks against targets that were both civilian and military, could be undertaken without restraint. The principle of proportionality is based on two complementary ideas. Measures have to be taken to minimize the effect upon civilian populations, whether inflicted directly or indirectly. Another aspect to consider, geographically, the military target should be defined in the narrowest possible way in order to minimize risk.

Similarly, the attacker should have to consider whether there is a way to achieve the military objective with less or no damage to the civilian population. Thus, proportionality constitutes a logical extension of the principle of distinction; everything should be done to target only military objectives. All of this pertains specifically to times of war. Proportionality for jus in bello requires tempering the extent and violence of warfare to minimize destruction and casualties. It is generally utilitarian in that it seeks to minimize overall suffering (result), but it can also be understood from other moral perspectives, for example, from the application of aggression. This would be an example of Kantian Ethics. The difference between the two lies within the focus of the good . As Kant would see it, an action is just based upon the motives or obligations of the acting party. The result is basically inconsequential to the overall issue (only the actions are considered). This goes against basic Utilitarian views, as the actions are secondary to the final result. There is a means to an end, in this perspective, and it is qualitatively less focused on the events leading up to the desired goal. The difference between the two can best be expressed through the principle of distinction. Kant would argue civilians (of country being attacked) have innate rights and cannot be harmed or killed in any manner during wartime. The utilitarian view would contrast Kant s, in that, it would likely consider various instances where the loss of innocent life is acceptable. This would obviously only pertain to the most extreme instances, however, if the ends justified the means the actions would be legitimized. A proper example would be if the U.S. felt an

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impending (rapidly approaching) threat coming from Iran, and we therefore decided to bomb their country as a pre-emptive strike. The loss of civilian life would be almost assured, and the morality would be brought into question. As seen through staunch views, a Kantian perspective would say this is not just simply due to the fact that there was loss of non-combatant life. Where as, a utilitarian perspective would justify the means with the ends by claiming that there was an immediate threat to our nation s safety and that the loss of life was proportional to the preservation of our community. Of course, there can be instances where both views are applicable to the same action. Comparing them to another doctrine, such as Francisco de Vitoria s Law of War , gives insight to a more complex situation. According to de Vitoria s doctrine, it is never right to slay the guiltless, even as an indirect and unintended result (de Vitoria 41). This quote sounds highly Kantian in nature. However, he continues with except when there is no other means of carrying on the

operations of a just war (de Vitoria 41). This exhibits utilitarian ideals as he becomes more concerned with achieving a desired result, regardless of the actions that led up to it. Here in lies the dilemma, as it appears neither the Kantian nor the utilitarian view is absolute in this case. If I were to apply this statement to a spectrum (ranging between Kantian and utilitarian) I would say this leans more toward the latter, almost in a cautious utilitarian view. By that, I mean the doctrine is largely utilitarian but also contains stipulations. The overarching principle here is that force can only be applied to the innocent if there is no other course of action available. To me this seems as though

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it appeals to the idea of maximizing the overall good , which is of course utilitarian in nature. This leads to the next question; how do we quantify risk in a war environment, and at what cost are we willing to procure our own agenda? In order to bring context to these questions, one may consider a real life example, which in our case is The Kill Company. In the story, the actions of Colonel Steele and his troops (during Operation Iron Triangle) are portrayed to the reader in a manner that suggests there may be a moral conflict to consider. The use of the proportionality principle is paramount to understanding whether or not the unit acted in a just manner. There are many instances in the story that can be applied to the proportionality principle. The first example I came across was Colonel Steele explaining to his men that warning shots were not going to be used. Rather he preferred that they either would or fatally shoot a potential attacker. He uses the context of a police officer firing a warning shot in an urban setting, to try and justify his reasoning. However, I find there to be issues between this example and de Vitoria s definition of just force. The question in this case, is where is the line between eminent threat and simply a threat? In the case of a police officer firing a warning shot into the air, one could assume there is sufficient risk (or else officer would remain docile) and also that the officer had been trained to effectively manage such a situation. Now in any case, I would expect an officer to act in a composed manner as well as in accordance with the law. The idea that firing a warning shot is too risky seems rather absurd. An officer (or soldier) is assumed to be an excellent marksman, or

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was at least trained to be one. Not only that, but they go through training to practice dealing with problematic situations such as this. So, to infer that an officer doesn t have the proper instincts to react in a manner that is just seems irrational to me. The point de Vitoria makes is simply that one must exhaust all other avenues before resorting to deadly force. There should be a distinction made between shooting to wound and shooting to kill. In this case, I don t believe shooting to kill would be a just course of action. Another example I found particularly intriguing was the unit s approach to the task of disarming the Al Muthanna chemical-weapons complex during Operation Iron Triangle. When detailing the preparation leading up to the operation, the story touches on the subject of status-based targets . The issue with status-based targets is the fact that a righteous kill is based upon who the person is rather than the actions being taken into account. This has been a common U.S. military tactic for years, however the morality of the action can be debated. During Operation Iron Triangle, our troops were dealing with very hostile insurgents and often times were forced to make decisions that could be viewed as rash. Also, in a case such as this, it was hard to differentiate civilians from insurgents, and thus, made the task of identifying hostile persons a life or death task. In order to identify these status-based targets, various covert actions were implemented (such as informants). Based off of this information, the duty of the soldiers was to identify and execute any person on the list. They however neglected to consider various uncertainties, such as, the potential for

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misinformation or mistaken identity. The soldiers were then basically being asked to shoot first and ask questions later. Although it can be argued that these targets were almost assuredly working to conspire against the U.S., I feel that the use of deadly force is unjust in this case. According to the proportionality principle, war must be illegal if the ends cannot justify the means. In this particular case, it appears that the proportionality principle could justify their actions. However, according to de Vitoria, it seems as though the U.S. soldiers were acting in a hostile manner of their own. It is the right of soldiers to be able to protect themselves as they see fit, however, to execute someone simply because you believe they are hostile (even if no hostile actions are taken) is unjust. It is the duty to correctly assess the situation as either being hostile or non-hostile. The simple fact that someone is on a list should not condemn him or her to execution. In order to act in accordance with the proportionality principle, as well as the de Vitoria doctrine, a soldier must be either in imminent danger or a witness to a third party who is being threatened. The proportionality principle is an essential qualification for determining a just conduct of war. Whether or not the U.S. acts in full accordance with these laws is debatable, however, it is our duty to try and preserve these doctrines to the best of our ability in hopes that other countries will follow accordingly.

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