“[T]ake all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.”
They further state that,
“[A]n attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
That,
“[E]ffective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit”
That,
“When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.”
And finally that,
“effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit”
However, as we have discussed above, law and morality do not always coincide. These may be a soldier’s legal obligations as regards the protection of civilians, but are they also his moral obligations? The following example raises some interesting questions regarding this.
A British soldier notes in his diary that he was among those who had the job of clearing cellars in France during the close of the Second World War. Official policy informed him to simply throw grenades down into the cellar without any warnings, as if German soldiers were hiding in them this would alert them to the presence of British soldiers. However, this individual chose to shout warnings down into cellars in order to ensure that civilian families who may have been hiding in them were not killed. In at least one case this decision resulted in him not bombing a cellar in which a French family were hidden. Neither the Geneva Convention nor the Additional Protocol was obviously in force at that time. However, the policy that soldiers were advised to follow would, claimed Walzer, have been perfectly legal as judged by modern standards. The soldier was not legally obligated to give advance warnings of his attack as this would have endangered himself. However, the soldier’s own sense of personal morality led him to take a different action, more risky to himself. Walzer argues that “He was acting as a moral man ought to act; his is not an example of fighting heroically, above and beyond the call of duty, but simply of fighting well. It is what we expect of soldiers.” But is this the case? What risks do we have a right to ask soldiers to take upon themselves in order to protect civilians?
We can begin to answer this question by looking at two similar examples: bombers operating in occupied France during World War II and in the recent NATO action in Kosovo. In occupied France members of the French resistance operated an air force which bombed German military targets in the country. However, this necessarily entailed a degree of risk for any civilians in the area. At this time, bombs were nowhere near as accurate as they are today. The members of the Free French Air Force, as they were known, chose to fly and bomb from a lower altitude than they would have usually have done in order to reduce the risk to civilians. However, this increased the risk to themselves by making themselves more vulnerable to anti-aircraft fire. In Kosovo, on the other hand, NATO bombers operated at 15’000 feet in order to avoid anti-aircraft fire from the ground. However, this meant that not only was the accuracy of its bombing reduced, but pilots were unable to obtain visual confirmation that there were no civilians present in target areas. Arguably, this policy directly resulted in the deaths of a number of civilians. One now infamous incident involved the deaths of 70 Kosovan Albanian refugees who were killed on April 14th 1999 when bombers mistakenly targeted a convoy of refugees outside the village of Djakovica, believing it to be a military convoy. Should the air crew have risked their own lives in order to ensure more accurate targeting? General Michael Short, Commander of Allied Air Forces, Southern Europe, related a conversation with air crew after the incident at Djakovica:
‘They came back to me and said “we need to let the forward air controllers go down to 5’000 feet. We need to let the strikers go down as low as 8’000 feet and in a diving delivery to verify their target, and then right back up again to 15’000 feet. We think that will get it done. We acknowledge that this increases the risk significantly, but none of us want to hit a tractor full of refugees again. We can’t stand that”’
As a result of this conversation and incidents in which civilians were killed, NATO altered its rules of engagement so that pilots flew from 8’000 feet rather than the original 15’000. This would appear to me to indicate that the aircrew themselves accepted that they should shoulder increased risk rather than transfer that risk to civilians. This seems to me to be a link between the two cases – the soldiers themselves are prepared to accept more risk then is required by international law, and subsequently what is asked by their respective militaries. Cook argues that force protection (in other words keeping soldiers alive and operative) will often outweigh other considerations such as civilian safety when military commanders decide upon rules of engagement for a particular incident or war. However, in the two cases above at least, individual soldiers appear willing to take more moral responsibility than what is legally required of them.
A relevant issue here, and a major difference between the two cases, is that of whether soldiers have the same obligations towards foreign civilians as they do towards their own civilians. When soldiers sign up they sign a covenant between themselves and their nation. They agree to protect and serve their nation in exchange for being “sustained and rewarded by commensurate terms and conditions of service.” Is it therefore any more problematic to ask soldiers to put themselves at greater risk to protect foreign civilians, not in direct protection or defence of their home nation? Cook argues that soldiers sign up to protect their own country rather than other peoples and that in cases such as humanitarian intervention force protection is a higher priority than normal. Legal guidelines for the protection of civilians do not make any such distinction between national and non-nationals. However, as discussed above, legal and moral obligations do not always coincide.
I would argue against Cook’s view that a soldier involved in humanitarian intervention in another country is not directly serving the interests of his home state. I would argue that the prevention of severe human rights abuses such as genocide or other war crimes is of benefit to all nations, not just the one being protected at that particular time. Thus, I would say that in today’s ‘globalised’ world, the conception of the ‘national interest’ is far more broadly defined than it ever has been. That is not to say that states only intervene in cases of human rights abuses when their own interests are at stake. This may be the case, but it is irrelevant to my current question. However, I would argue that the interests of all countries are served by having an international order in which human rights abuses are not tolerated. Thus, there is no conflict between the military covenant and asking soldiers to risk their lives in cases of humanitarian intervention.
Moreover, we are all supposed to be morally equivalent as human beings. Derrida argues that we should have no more moral obligations towards our own family then we do towards strangers. He states that we have a “general and universal responsibility” towards all people equally. We cannot justify giving morally preferential treatment to those who are more familiar to us, as “every other (one) is every (bit) other.” By this, Derrida means that even members of our own family are ‘others’ to us, just as much as complete strangers.
If this is the case, how can we justify having different moral standards for protecting civilians of your own or different nationalities? There is a danger that Derrida’s argument could be seen as being nihilistic – if we cannot prioritise helping any one person or group of people then we must help no-one. However, even if we do not accept the basis of Derrida’s argument, I would assert that his conclusion is correct. All people are morally equivalent, not necessarily because they are all equally ‘other’ to us but because a moral theory should not differentiate between people based on arbitrary characteristics such as their race or nationality.
A relevant moral question in all of this is that of what is the more important when it comes to judging the morality of an action – the action itself or the motive behind it. St Augustine claimed that the heart is the sacred seat of virtue – as long as ones motives and intentions are pure, one is a moral person. So in other words it is the intention that defines the morality of an action, not the action itself. Therefore it could be argued that the killing of civilians is not always immoral if the soldiers do not aim for their death. But is it enough for soldiers simply not to aim for the deaths of civilians; or do they have an obligation to minimise the deaths that they believe they may cause?
Anscombe argues that if we are answerable for the unintended consequences of our action as well as the intended consequences then morality itself breaks down. However, what about the unintended but foreseen consequences of our actions? Obviously these are two related but different things. Unforeseen consequences are those which cannot be anticipated before an act. Unintended consequences however are those consequences which are not intentional, but which may have been foreseeable. As stated above, Walzer argues that with respect to protection of civilians in a situation in which they may be endangered it is not enough for soldier’s merely not to intend to kill or injure civilians. Additionally, they must also make allowances for the foreseeable consequences of their actions. Thus, in a situation where it is known that civilians may be endangered by a particular action it is not enough simply not to aim at this. Rather, being aware before the event of such a danger, action must be taken to minimise it. I would argue that this should be the case. If a person is responsible for the consequences of their actions then this must apply equally to all of the foreseeable consequences of the action, whether intended or not.
Therefore, if we accept that soldiers should accept risk themselves rather than transfer it onto civilians, what is an acceptable level of risk? I will attempt to answer this question using an example from World War II.
The Vermok plant was a heavy water plant in Norway. Its production of heavy water was seen as being essential in German attempts to perfect atomic weaponry. It was destroyed by a joint operation of Norwegian commandos and the UK’s Special Operations Executive. UK and Norwegian officials debated whether the assault should be by air or ground. Both were just as likely to succeed, but a ground assault was decided upon in order to reduce the risk to civilian workers even though this was obviously more dangerous for the commandos themselves. Their first attempt failed, with 34 commandos killed. Their second attempt, however, was successful, with no loss of civilian life. Later in the war, the facility was restarted and the decision was made to bomb it, as security had been tightened and a ground assault was unfeasible. 22 civilians died.
In this incident, soldiers risked their own lives in order to minimise the risk to civilians. However, when it was no longer possible for a ground operation to take place, there was no other option, other than not destroying the plant, than an air attack which would endanger civilians. Thus, Walzer argues, “[t]he limits of risk are fixed…roughly at the point where any further risk would almost certainly doom the military venture to failure.”
However, should we ask soldiers merely to lessen the potential risk to civilians, to minimise it or to attempt to eliminate it altogether? Norman points to the fact that modern warfare will always endanger civilians to some degree, and that to argue that any civilian deaths are morally unjustified is to argue that war itself is immoral. I would argue that this is a valid moral position. However, it renders us unable to make moral judgements about actions within warfare if we dismiss war itself as immoral. All acts would be equally immoral. Therefore, for example, in a situation where a military action left civilians dead, it would be no more moral for a soldier to have risked their life in order to save some civilians than it would be had they not done so. I would also argue that war itself is sometimes necessary, for example to protect civilians. Therefore it is impossible in practical terms to ask soldiers to completely eliminate any potential risk to civilians without rendering war itself morally impossible.
In terms of whether a soldier should lessen or minimise the risk to civilians, Walzer points to the difficulty of attempting to quantify risk.
“Do civilians have a right not only not to be affected [by war] but also not to be put at risk to such and such a degree, so that imposing a one-in-ten chance of death on them is justified, while imposing a three-in-ten chance is unjustified?”
He argues that all we can ask of soldiers is that “due care” is taken to prevent civilian casualties. However, this in itself is not very helpful, as it implies that a soldier should take their standard of morality from those of the ‘ordinary’ men and women in their society. However, French argues that “this [the warrior’s] code of honour seems to hold the warrior to a higher ethical standard than that required for an ordinary citizen within the general population of the society the warrior serves.” I would argue that this is the case. This brings up the question of what purpose morality serves for a solider. Osiel argues that a moral code amongst soldiers is the best way of guarding against war crimes. If Osiel is arguing in a purely legalistic sense – that soldiers should be moral in order to avoid prosecution for war crimes, then I would argue that such a functional argument serves to undermine the idea of morality. What if such legal codes did not apply? I would state that the actions proscribed by international law would still be immoral even if no specific law prohibited them. However, if Osiel is arguing that we should encourage our soldiers to act morally in order to encourage moral behaviour then I would agree with this. Morality should be seen as an end in itself, not as the means to some other end.
Finally, it has been argued, based on the proportionality rule discussed above, that certain ends justify the inadvertent killing of civilians:
“The greater the justice of my cause, the more rules I can violate for the sake of the cause, although some rules are always inviolable. The same argument can be put in terms of outcomes: the greater the injustice likely to result from my defeat, the more rules I can violate in order to avoid defeat – though some rules, and so on”
Lang argues that the US in Iraq has often justified actions which have subsequently caused the deaths of civilians using this argument. A similar argument can also be made that if your enemy does not abide by the laws of war then you are justified in breaking them too in order to beat them. A particularly important example of this is the case of Guerrilla fighting or urban warfare in which it may be difficult to distinguish between military and civilian populations. Another example may be of a government who chooses to place military installations in civilian areas. In cases such as these, do soldiers have more or less of an obligation to protect civilians if it is their enemy who is placing them in greater danger? I would argue that they should have more of a moral obligation under such circumstances. Just because their enemy does not abide by their legal and moral obligations for the protection of civilians that does not mean that they do not deserve protection. Walzer argues that there exist two classes of jus in bello. Those rules governing certain aspects of how to fight, for example which proscribe surprise attacks or attacks at night, may be disregarded if they have already been broken by the enemy. However certain rules, chiefly, Walzer argues, those which forbid the deliberate killing of civilians, cannot be broken even if the enemy does so. Also, French argues that “if we give up who we are in order to destroy our enemies, what kind of victory will we have secured for ourselves?” This is a sentiment with which I am inclined to agree.
Conclusion
In this essay I have argued that soldiers should have more moral responsibility for the protection of civilians than is their strictly legal obligation. I began by arguing that the legal obligation that soldiers are under to protect civilians may not cover their moral obligations as the two can be seen as being distinct. I used the principle of double effect and the example of a British soldier during World War II to show that a solider may go further than his legal obligations in order to meet his moral ones. In this particular case, a solider chose to risk his life to forewarn civilians of attack, even though he was under no legal obligation to do so because he believed that it was the right thing to do. I then looked at the question of whether soldiers should take additional risks upon themselves in order to protect civilians as a matter of course. I argued that this should be the case, using the examples of the NATO bombing of Kosovo and the Free French Air Force bombing of occupied France during World War II. The Free French air force chose to bomb from a lower altitude than they usually would have in order to reduce the risk to civilians, even though this placed them under more danger. In Kosovo, however NATO bombers flew from a higher height than usual in order to protect themselves from anti-aircraft fire. However, in this case, this was changed after a number of incidents in which pilots were unable to visually verify targets and unintentionally killed civilians. In both cases, the soldiers argued that they should take more risk themselves rather than transfer that risk onto civilians. These two cases brought up the issue of whether soldiers should have the same obligations towards foreign civilians as towards their own. I argued that they should, based on the fact that morality cannot distinguish between people based on arbitrary characteristics such as nationality. I then argued that it is not sufficient for a solider merely not to intend to kill civilians, that they must also make some effort to address the unintended but foreseeable consequences of their actions. Thus, they should ensure that they always acknowledge the risk to civilians, even if it is not their intent, and transfer risk onto themselves rather than the civilian population. I then discussed what level of risk transfer would be appropriate in such a situation. I concluded that soldiers should take risk upon themselves up until the point where it would endanger the military operation itself. Finally, I argued against the view the certain ends or the conduct of enemy belligerents justified less care being taken over the protection of civilians.
Word Count: 4’524
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