Ethical Issues in Recent U.S. Military Engagements

Dr. David L. Perry
Prof. of Ethics, U.S. Army War College

Presented at a meeting of the American Association of University Women, Dickinson College, Carlisle, PA, 27 April 2004.

I'm very grateful to Sandy Kornish for the wonderful opportunity and privilege to talk with you about this important topic.  (Please note that none of my views should be construed necessarily to reflect those of the U.S. Government.)

I want to distinguish two broad categories of ethical issues: 1) those that are newly emergent since 9-11 and the Iraq War, and 2) other ethical concerns that are not new but which remain important today. I'll address the second category first.

At the most fundamental level, there is an ancient and enduring question about the ethics of killing. Can it ever be right to use deadly force against people intentionally?

Strict pacifists say that killing is always wrong. Jewish and Christian pacifists often appeal to the claim in Genesis that all people are made in the image of God, suggesting that killing them represents a kind of sacrilege as well as a violation of human dignity.   Christian pacifists also refer to sayings of Jesus in the Gospels to love one's enemies and not retaliate against force with force.  Hindu and Buddhist pacifists would cite their basic obligation of ahimsa, avoiding harm to any sentient creature. And nonreligious pacifists often say that violence only begets more violence. (See my "Ethics and War in Comparative Religious Perspective.")

But I tend to think that killing can be justified in defense of the innocent against unjust attack, whether the victim is yourself or someone you could help. All people have a basic, prima facie right not to be killed. But that right is not absolute: someone can forfeit that right if they wilfully threaten or take the lives of innocent people. Further, if killing in such cases can be morally justified, it seems both prudent and morally permissible for societies and nations to train and equip a special class of professional warriors to do be prepared to defend them with force. These assumptions form the foundation for what's known as the just-war tradition.

But there are moral risks inherent in training officers and soldiers to be effective killers on our behalf. (That's a crude way of putting it, but we need to recognize what we're doing when we authorize the creation of a military force.) First, when multiple countries enlarge their military forces ostensibly to deter others or defend themselves in case of invasion, that alone can increase the chances of them going to war against each other, even when there is no rational basis for such conflict; consider the origins of the First World War. Second, discipline in obeying orders is vital in making groups of soldiers effective in achieving military objectives, or even in protecting themselves. But what if they're ordered to do something immoral, such as to destroy a whole village or shoot prisoners? And third, commanders often deem it necessary to induce rage against their nations' enemies, to increase their soldiers' motivation to fight when extreme dangers might otherwise produce overwhelming fear. But that makes them unlikely to show mercy to enemy soldiers who surrender in combat, or to avoid killing civilians.

These are credible risks, but in practice soldiers can be trained and led in ways that minimize their occurrence. Soldiers need not be encouraged to hate the enemy in order to be effective in combat; and they can and must be allowed and encouraged to disobey immoral orders. In regard to American soldiers, I believe that our military commanders and training are much better today than they were 35 years ago in guarding against the risks of atrocities in war. During the Gulf War as well as recent wars in Afghanistan and Iraq, our soldiers have almost always shown admirable restraint and humanity toward enemy soldiers and civilians, even when enemy combatants shoot from behind civilians, hospitals and mosques.

One of my Army War College students recently wrote a fascinating paper on the degree to which respect for the laws of war is incorporated into Army training simulations at various levels (COL Kevin McClung, "The Law of Land Warfare and Rules of Engagement: A Review of Army Doctrine and Training Methodologies"). Although he determined that some improvements were warranted, both he and I were pleasantly surprised by the quality of that training. Another Army colonel who had served in Iraq during the 2003 invasion stated during a conference at the Naval War College that his soldiers are trained so thoroughly in the laws of war, "They know what the right thing to do feels like." That suggests that Army training is wisely attempting to reinforce moral knowledge and critical reasoning with moral emotions and admirable character traits.

Another encouraging development since the end of the Cold War has been a significant reduction of the number of nuclear weapons possessed by the U.S. and Russia. However, the remaining weapons are unlikely to be dismantled completely. So we still face the possibility of global nuclear war, which almost certainly would fail every test of moral justification. At the same time, if the possession of nuclear weapons still offers the best deterrence against nuclear attack by other countries, then we also continue to face the horrific moral dilemma of threatening to commit mass murder in order to prevent mass murder.

You may have read in the news during the past two years about a desire on the part of senior Pentagon officials to develop new tactical nuclear weapons for the U.S. arsenal, specifically as earth-penetrating "bunker-busters" for possible use against regimes like North Korea. In my view, any tactical benefits of such weapons cannot outweigh their strategic and diplomatic risks.  They're dangerously provocative, and threaten to undermine global nonproliferation efforts.

In addition to lingering concerns about nukes, many people around the world have criticized our use of cluster bombs and depleted-uranium weapons in places like Yugoslavia, Afghanistan and Iraq, as well as our continued reliance on landmines on the border between North and South Korea. Could we substitute other weapons that would be just as effective in combat, but less likely to cause civilian deaths long after combat ends? At the very least, we need to ensure that any mines or cluster bombs we use have highly reliable self-destruct mechanisms so that they can be disarmed quickly after their combat usefulness ends.  Unfortunately there's no way to make depleted uranium safe; and the Pentagon believes that if we removed them from our inventories our soldiers would be put at greater risk from enemy tanks.

One more important issue that predated 9-11 but which remains with us today is humanitarian intervention: How serious does a government's abuse of its citizens' human rights have to be before other countries are justified in stepping in militarily without that government's permission? Technically if there is no threat to any other state, then the U.N. Security Council must formally approve the intervention. But what if the Security Council refuses to do that, as occurred in both Rwanda and Kosovo? We have not been able to achieve a clear international consensus on when humanitarian military intervention is justified. As a result, horrendous civil wars have gone on for many years in places like Angola, Sudan, Congo and Liberia with little or no outside intervention.

What then are some moral issues emerging from recent American decisions to go to war in Afghanistan and Iraq?

In response to the 9-11 terrorist attacks, the U.S. demanded that the Taliban government cooperate in apprehending Bin Laden and other members of Al Qaeda. That seems clearly justified, since they had permitted Al Qaeda to operate training camps for years, and had directly benefited from Bin Laden's money and arms. But when the Taliban did not cooperate, the U.S. invaded. Even though that was apparently the first time in the modern era that a state was invaded and its government overthrown in response to a warlike action by a sub-state actor, the international community seemed to accept it as a legitimate infringement of state sovereignty.

How should we treat captives whom we suspect are members of Al Qaeda or other organizations that kill noncombatants indiscriminately? Should they be treated as criminal suspects, as prisoners of war, or something else?

I don't have a satisfactory answer; but I'm persuaded by David Luban and Ronald Dworkin that our current practice of denying detainees any rights is unacceptable. It's even inconsistent with President Bush's claim in his September 2002 National Security Strategy that "America must stand firmly for the nonnegotiable demands of human dignity," which were said to include the rule of law, limits on the absolute power of the state, and equal justice (p. 3). The President's "war on terror" is too ambiguous, in part because that kind of "war" may never end.

When is rigorous interrogation of suspected terrorists equivalent to torture? This is a gray area in some respects. Think of similar situations faced by domestic police in dealing with criminal suspects. The police might sometimes be tempted to make a threat that they don't really intend to carry out (because it would be immoral), in order to frighten a detainee into cooperating.  Right now the U.S. Army is investigating an accusation along those lines against a colonel in questioning an Iraqi terror suspect.

Would torturing suspected terrorists be morally justified in order to prevent mass murder? In theory, yes, since a real terrorist has forfeited his right not to be tortured. But in practice this risks the torture of innocent people, since the interrogator may not have enough evidence to know that the suspect is guilty. Also, if we train or otherwise authorize our soldiers to torture, their character may become morally indistinguishable from the terrorists themselves. And if we instead send captives to other countries that are notorious for using torture, we can't deny culpability for what happens to them. All of these approaches wrongly undermine respect around the world for conventions against torture. We ought to uphold the highest standards that still permit us to prevent terrorist attacks on our citizens.

Let's examine the war in Iraq using traditional just-war principles:

Jus ad bellum:

Just cause and proportionality: Was the invasion of Iraq morally justified in the defense of the U.S. and/or its allies? Could it have been justified solely on humanitarian grounds? Was it necessary to invade, or could less violent means have sufficed?

I'm persuaded by Kenneth Pollack and Thomas Nichols that nothing short of invasion would have prevented Saddam Hussein from developing nuclear and biological weapons, which he would have been likely to use against his neighbors or given to terrorist groups to use on the U.S. homeland. But some of the reasons for war cited beforehand by our senior officials appear now to have been weakly supported by hard evidence, or perhaps even intentionally misleading. This not only undermines our credibility, it sets a dangerous precedent for future wars by opportunistic states.

Legitimate authority: The U.S. Congress gave the President a pretty clear mandate in October 2002 to invade Iraq if necessary to protect the U.S. But was the invasion clearly authorized by the Security Council? On the one hand, it could be seen as enforcing 12 years of SC resolutions that Iraq flagrantly violated. But an invasion was not specifically authorized by France, Russia or China. Of course, those countries had also sold material to Iraq that violated the terms of the SC sanctions, so it may not have been possible to achieve unanimity among SC members.

Does the U.S. invations set a dangerous precedent for "preventive" wars? Or should the U.N. Charter be modified to permit them? It's probably best not to codify such an exception in the Charter; but it's not clear to me what its international legal status should be.

Jus in bello (distinguish between discrimination and proportionality):

Should we uphold the rules of war under the Hague and Geneva conventions even if our enemies do not? Yes, otherwise we lower ourselves to terrorists, and the justice of our own cause is undermined.

How much risk should our soldiers incur in order to minimize harms to civilians living near a combat zone, or being used as human shields? They should avoid firing unless doing so clearly risks their own lives. I'm generally pleased with the care exhibited by U.S. forces to avoid targeting civilians and to minimize the risks of collateral damage from attacks against legitimate military targets.

But our leaders have been too quick to blame the Taliban and Saddam Hussein for all civilian deaths that have occurred during our recent and ongoing wars. We also have not tried hard enough to count how many have died, let alone how often we were responsible for their deaths even if only unintentionally in attacking military targets.

(In August 2002, I assessed a potential invasion of Iraq using just-war criteria in "Can an Invasion of Iraq Be Justified Ethically?")

Go to Dr. Perry's CV.