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Abstract
Recent discussions in the just war literature suggest that soldiers have a duty to assume certain risks in order to protect the lives of all innocent civilians. I challenge this principle of risk by arguing that it is justified neither as a principle that guides the conduct of combat soldiers, nor as a principle that guides commanders in the US military. I demonstrate that the principle of risk fails on the first account because it requires soldiers both to violate their strict duty of obedience and loyalty and to exceed their special obligations to protect their fellow comrades, the state, the state's constituents and other protected civilians. I then illustrate that the principle of risk fails on the second account since it conflicts with the commander's primary obligation to protect and promote the welfare and lives of his or her soldiers. I conclude by arguing that we cannot reasonably expect soldiers and commanders to adhere to the principle of risk until there is a radical, institutional-level transformation of militaristic goals, values, strategies, policies, warrior codes and expectations of service members in the US Armed Forces.
ACKNOWLEDGEMENTS
The author would like to extend a special thank you to Kevin Gibson, who helped her develop this manuscript by proving a number of insightful comments on multiple drafts. In addition, thanks to Kimberly Engels, Jennifer Kiefer Fenton, Susanne Foster, Margaret Urban Walker and Theresa Tobin, who all offered constructive criticism and feedback during a presentation at a workshop for women philosophers at Marquette University. Special thanks are also due to Helen Frowe and Michael Walzer himself, who provided valuable feedback during a presentation of an earlier draft at the 2013 War and Peace as Liberal Arts Conference organized by the Gaede Institute at Westmount College. Finally, thank you kindly to the two unknown reviewers and the editor of Journal of Military Ethics who offered a number of stimulating challenges to this piece.
Notes
1. This is not necessarily an exhaustive list of all possible civilians who could be classified as ‘protected civilians’, yet it will suffice for the purpose of the following discussion.
2. In this article, my attention is limited to a discussion of the US Armed Forces. My argument fundamentally relies on an analysis of the virtues emphasized in the US military; since other militaries might promote different military virtues, the arguments included in this paper may not be applicable to those militaries.
3. Walzer (Citation1977), Christopher (Citation1994) and Lee (Citation2004) are concerned with the principle of discrimination as it should be used to prevent harm to civilians and protect human rights.
4. For a more in-depth discussion of just war theory, see Toner (Citation2010).
5. The scope of this paper is limited to considerations of jus in bello, which addresses the principles of fighting justly once engaged in war. I bracket the issues concerning jus ad bellum (the justice of resorting to war in the first place) or jus post bellum (considerations of peace agreements and the termination phase of the war), assuming that soldiers are morally obligated to adhere to the principles of jus in bello regardless of whether the war is just or unjust.
6. For examples, see Lee (Citation2004), Walzer (Citation1977) and Coady (Citation2008), who are three among many who describe the relationship between just war theory and the DDE. The noted principles of jus in bello (no means mala in se, military necessity, discrimination/distinction, proportionality) are described in the Law of War (also known as the Law of Armed Combat), which is derived from international treaties. For example, see: 1949 Geneva Convention (IV): Relative to the Protection of Civilian Persons in Time of War and 1907 Hague Convention: Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V). The principles of jus in bello can also be found in the US Army's Rule of Land Warfare (Citation1914: 130, para. 366).
7. Note that in describing the double intention, Walzer (Citation1977) indicates that it requires soldiers to foster a ‘positive’ (159) effort to minimize or reduce harms to civilians (155) and to ‘save civilian lives’ (156). It is unclear if Walzer equates reducing harm with saving lives, but it is clear that he believes that the double effect covers both possibilities (if they are separate categories). Thus some of the examples I give to illustrate my points will be of ‘reducing harms’ and ‘saving lives’, since it appears that Walzer believes that both are entailed by the principle of double intention and risk. It is outside the scope of my paper to argue if there is a moral distinction between the two. However, one could argue that Walzer meant that preventing a harm that might have happened is in fact an instance of saving a life. Also note that neither Lee nor Christopher mention the duty to ‘save lives’; rather, they speak in terms of ‘minimizing harms’. A special thank you to Helen Frowe who encouraged me to consider how the distinction between ‘saving lives’ and ‘reducing harms’ would apply to this discussion.
8. This comes from Lee (Citation2004).
9. See Van de Pitte (Citation2007) and Hartle (Citation1989: 46–47) for extensive discussions of this issue.
10. Note that a commander is restrained by the Rules of Engagement (ROE), which are the primary tools for regulating force. See CJCSI 3121.01B (2005), Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces.
11. See The Hague: The Convention (Iv) Respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, Article 23; Article 27; Article 52 (1907); and the Additional Protocol I, Protocols to the Geneva Convention, Article 51 (1977).
12. See the Fourth Geneva Convention: The Protection of Civilian Persons in Time of War, Article 52 (1949), and the Additional Protocol I, Protocols to the Geneva Convention, Article 51 (1977).
13. Lawful order is key here. This rules out the ‘obligation’ of soldiers to partake in morally heinous actions such as torturing or raping another human being.
14. This is not to say that soldiers should be unquestioningly obedient: soldiers are required to challenge, disobey and report unlawful orders, such as those that violate the Law of War.
15. For a thorough discussion of why soldiers are said to be held to a higher standard than ordinary civilians, see Ficarrotta (Citation2010).
16. Keep in mind that this is a clear instance of ‘saving lives’ (which Walzer argues is entailed by the principle of double intention). We can also imagine instances where soldiers are required to assume a risk in order to ‘minimize harm’ to ‘protected civilians’, such as co-nationals. For instance, imagine that several American journalists are held hostage by a terrorist group in a building that American troops are directed to clear. In such a situation, the troops would be required to attack on foot so that while destroying the enemy, they could also prevent the death of the American journalists, as opposed to attacking by an air strike, which would pose an imminent threat to the journalists. It appears that there is a significant difference between how the situation would be handled, and furthermore should be handled, if there were ‘enemy civilians’ in the building rather than co-nationals, in this case American journalists.
17. The Soldier's Creed is the standard that all US Army personnel are encouraged to live by. It accurately summarizes the core duties of a soldier. It is taught at basic training and recited at all training events, ceremonies, and so forth.
18. This terminology (to-be-liberated) is borrowed from Overland (Citation2011). However, the usage differs: Overland draws a further distinction between to-be-liberated civilians and regime-supporting civilians, where the term to-be-liberated civilians refers to only those civilians in a corrupt regime who refuse support of the regime. I use the phrase to-be-liberated to refer to all civilians who live in a corrupt regime, in that our aim is still to liberate (and perhaps educate) the oppressed, regardless of how they respond to the intervention.
19. I will, at times, refer to the soldier or commander as ‘he’, since when writing this paper, the Direct Combat Exclusion Rule (DCER), which prohibits females from serving in infantry units below the brigade level and combat Military Occupational Specialties, was still in effect in the US military. Although I recognize that females may still engage in combat under the old DCER, many of the scenarios I describe are that of an infantry unit below the brigade level. With the DCER rescinded in 2013, these arguments will now come to apply to female soldiers and commanders as well.
20. For the purpose of this following section, ‘unnecessary’ risks will refer to non-mission essential risks.
Additional information
Notes on contributors
Cheryl Abbate
Cheryl E. Abbate is a PhD student and philosophy lecturer at Marquette University in Milwaukee, Wisconsin. She holds a Master's Degree in Philosophy from Colorado State University. Her areas of specialization are nonhuman animal ethics, military ethics and feminist philosophy. Cheryl is also a First Lieutenant and Company Commander in the Army Reserve.