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Authored by Colonel Tony Pfaff. | September 2000
For most people, considerations about the use of deadly force are most commonly and readily thought of as whether and in what circumstances (if ever) it is permissible to deploy such means. However, in the case of soldiers, we presume that deadly force is a legitimate and often relied upon means to their chosen end. It is, in fact, part of our very conception of what soldiers are and what they do, that they rely on and face deadly force in order to realize their objectives. This much is uncontroversial and, in some sense, obvious. It may still not be clear, however, that, from the soldier?s point of view, the issue of deadly force is not primarily a matter of how much force should be used. Rather, soldiers most commonly and readily think in terms of how much force can they use.
When soldiers consider how to accomplish their ends, they are legally, morally, and pragmatically obligated to consider how much forceto use.1 As a general rule of thumb, the more indirect and long-range direct fire soldiers can put on an objective is inversely proportional to the amount of resistance they will experience when they try to take the objective. The less the resistance, the less the cost in friendly soldiers? lives necessary to take the objective. Thus, the more force soldiers apply, the less risk they have to take in order to accomplish their missions. Viewed this way, what soldiers understand as the amount of force necessary is that which reduces risks to soldiers the most. Sometimes, however, the application of this force endangers civilian lives and property. Because of this, soldiers must also ask how much force should they apply.
In order to limit the misery caused by war, the law and morality of war attempt to answer the question of ?how much? by requiring soldiers to consider certain rules, principles, and consequences that may restrain the amount of force they may apply.2 To determine how much force they should place on an objective, soldiers must temper their judgments not only with the pragmatic concern of how much is practical, but also with the moral and legal concern of protecting civilian lives and property. A commander may be able, with a high degree of accuracy, to place a single bomb in a specific building, but he cannot always be sure how many civilian lives will be lost if he does so. And though there is nothing in the law or morality of war that absolutely prohibits him from doing so, he is morally and legally required to take into account the due care he owes civilians when deciding how much and what kind of force he will use. Often, this means lowering the amount of force soldiers may want to apply in order to minimize risk. Thus there is a tension between the amount of due care commanders owe civilians and the amount of due risk they and their soldiers are expected to take in order to accomplish military missions.3
Given the logic of warfare, it is always in the commander?s interest to place as much force as is morally and legally permissible on any particular objective in order to preserve soldiers? lives. This means when commanders and their soldiers determine what is necessary, they are always asking themselves how much force is allowable, not how little is possible. What is necessary when resolving the tension between due care and due risk is minimizing risk, not force. The most force allowable then becomes the necessary force since it is what is necessary to preserve soldiers? lives without violating the law or morality of war.
Sometimes, however, and in some situations soldiers are morally obligated to consider the least force possible?given that this force is sufficient to accomplish the mission?when deciding how much force to apply. If this last view is true, then it is the case that the law and morality of war do not extend well into certain kinds of missions. What I wish to do in this paper is show that this is in fact the case, and then offer some considerations for filling in this ethical gap.
To fully demonstrate this point, I will do several distinct but related things. First, I will demonstrate that the moral and legal considerations soldiers must take into account do, in fact, obligate them only to consider the maximum force permissible, rather than the minimum force possible. Next, I will offer an example of the application of military force that will meet the criteria of both the law and morality of war, but which will not conform to a broader understanding of morality. I will then employ a domestic analogy to show that this discrepancy is a result of a very important misconception about how the roles soldiers play alter their moral obligations. I trust this will demonstrate that when the traditional role of the soldier is conflated with the traditional role of the police officer, moral (as well as pragmatic) confusion results. Finally, I will offer ways to extend the Just War Tradition so that it resolves the confusion created by this conflation.
Many questions and issues remain. As has been demonstrated, the epistemic issue of how a commander can know if a state of peace exists has not been settled. While it is entirely possible to settle this issue at the political level, until it is done it will be difficult for military officers to know if an operation is peace enforcing or peacekeeping. When this distinction is uncertain, it will be difficult for soldiers to discern their moral obligations regarding civilians and their property. But what has been suggested is that answering this question will have moral as well as political significance.
In addition, as the police-Marine incident suggests, the actions that soldiers are trained to take in warfighting missions may be inappropriate in peacekeeping missions. They have to do the right thing very quickly, without much time for moral-philosophical reflection. This means that training for war and operations other than war may be more difficult than anticipated.
What has been suggested is that as an area of operations transitions from a state of nature to a state of peace, what it means morally to apply force also changes. This means when such a distinction can be made, soldiers are afforded a powerful and practical conceptual tool for resolving the inherent conflict between the due care they owe civilians and the due risk they are obligated to take to achieve their objectives. By understanding the limits on necessity as applying the least amount of force possible rather than the most permissible under the principal of proportionality and the doctrine of double effect, soldiers avoid the contradictory and self-defeating practice of destroying the peace in order to preserve it.
1. The use of the word ?force? throughout this monograph is synonymous with ?deadly force.? For the sake of simplicity, I am not considering uses of force that do not have the potential to kill or seriously injure someone.
2. The way moral and legal considerations shape the use of force is quite complex. While moral and legal considerations do limit the misery caused by war, this does not always (though it does usually) entail limiting the amount of force a soldier should apply. For a more detailed discussion, see Appendix.
3. James M. Dubik, ?Human Rights, Command Responsibility, and Walzer?s Just War Theory,? Philosophy and Public Affairs, Vol. 11, No. 4, 1982, p. 355.