Peacekeeping and the Just War Tradition

Introduction

When soldiers consider how to accomplish their ends, they are legally, morally, and pragmatically obligated to consider how much force to use. However, when deciding how much force to use, soldiers initially concern themselves not with how much force should they use, but rather how much can they. The more indirect and long range direct fire one can put on an objective before one must put soldiers on it saves soldiers’ lives. The more powerful weapons those soldiers have when they are on the objective also preserves their lives. Thus, the more force soldiers apply, the less risk they have to take in order to accomplish their missions. Viewed this way, the amount of force necessary then consists in 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.1The use of the word «force» throughout this paper 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.

In order to limit the misery caused by war, the law and morality of war attempt to answer the question of «how much» by putting additional limits on the amount of force soldiers may apply. 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 available, 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 the due care he owes civilians into account when deciding how much and what kind of force he will use. Taking this into account, though, means lowering the amount of force soldiers may want to apply in order to minimize risk. This means, then, that 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. 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. This is because what is necessary when resolving the tension between due care and due risk is minimizing risk, not force. The most force then becomes the necessary force since it is what is necessary to preserve soldiers’ lives without violating the law or morality of war. What I wish to argue in this paper is that sometimes 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 is necessary 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 to show that this is in fact the case, and then offer some considerations for filling in this ethical gap.2James M. Dubik, «Human Rights, Command Responsibility, and Walzer’s Just War Theory,» Philosophy and Public Affairs 11, no. 4 (1982): 355.

To fully demonstrate this point, I will do three distinct but related things. First, I must show that the moral and legal considerations soldiers must take into account really do obligate them only to consider the maximum force permissible, rather than the minimum force possible. Second, 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. To do this in a non–question begging way, I will finally attempt to argue by analogy that this discrepancy is a result of a misconception about how the roles soldiers play alter their moral obligations.3Adam Roberts and Richard Guelff, (Eds): Documents on the Laws of War, (Oxford: Clarendon Press, 1989) p 11.

Legal Obligations

Soldiers do have a legal obligation to take into account the damage that will be done to civilian life and property when they apply force. When the duly appointed representatives of a nation agree to ratify a treaty, the nation, including the individuals subject to its laws, become subject to the provisions of that treaty. For this reason, soldiers belonging to nations that have signed international treaties regarding proper conduct in war are legally obligated to consider those provisions when applying force. The provision that most directly applies to the application of force is that provision that deals with proportionality. According to the Law of War, soldiers are obligated to ensure loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as military objectives or defended places, but also that these objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated. While this does require soldiers to limit force by the constraint of how much military advantage is to be gained, it does not require them to minimize it. Furthermore, proportionality does not preclude some actions that many would still find objectionable. For example, it would not preclude killing some civilians in order to achieve any military objective, as long as the harm done was proportional to the advantage gained.4Department of the Army Field Manual 27–10, The Law of Land Warfare (U.S. Government Printing Office, 1956), Change No. 1, 15 July 1976, para 41, p. 5. Take for example the situation at No Gun Ri, where American soldiers are accused of intentionally killing hundreds of civilians in the beginning moments of the Korean War.5James Webb, «The Bridge at No Gun Ri,» Wall Street Journal, 6 October 1999, Letters to the Editor. Some of the arguments advanced to justify their actions have been that killing the civilians was necessary to prevent the greater harm of allowing enemy agents and soldiers through friendly lines. Moral Obligations: Although the letter of the law may not prohibit all acts we would like to call immoral, the spirit of the law does, and that spirit is found in the Just War Tradition. The Just War Tradition is that body of thought that represents man’s struggle with the tension between winning and fighting well. Since it has a long and deep history, it is difficult to make general comments regarding its content. To illustrate my point; however, I have chosen one of the more recent, and most restrictive versions of the ancient doctrine of double effect.6Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues 2nd ed. (New Jersey: Prentice Hall, 1999) p 52.

The doctrine of double effect is a Christian doctrine first formulated by St. Thomas Aquinas as a response to St. Augustine’s moral prohibition against self–defense.7Augustine held that self–defense was inherently selfish and that acts motivated by selfishness were not morally justifiable since selfishness is not morally justifiable. Ibid. p 93. This doctrine results from the recognition that there is a moral difference between the consequences of our actions that we intend and those we do not intend, but still foresee. Thus, according to this doctrine, it is permissible to perform a good act that has bad consequences, if certain other conditions hold. Those conditions are: 1) the bad effect is unintended, 2) the bad effect is proportional to the desired military objective 3) the bad effect is not a direct means to the good effect and 4) actions are taken to minimize the foreseeable bad effects, even if it means accepting an increased risk to soldiers. Double effect would further lower how much force is permissible, and would preclude the soldiers’ actions at No Gun Ri. However, it does not require soldiers to understand necessity in terms of the least amount of force one can use and still accomplish the desired end. What I would like to discuss now is why that can be a problem in certain kinds of military operations.

Case Study

Now that I have made the case that the law and morality of war only obligate soldiers to consider the most force permissible, rather than least possible, I now need to show that this causes a problem for extending these doctrines into the peacekeeping environments. It is not the case that I am arguing that soldiers are always obligated to consider the least amount of necessary. Sometimes, certainly in conflicts we would normally call wars, it is appropriate for commanders to consider the most amount of force that is legally and morally permissible so that they may better preserve soldiers’ lives.8David Fastabend, «The Categorization of Conflict,» Parameters, Summer (1997): p 75. http://www.carlisle–www.army.mil/usawc/Parameters/97summer/fastaben.htm This approach, however, makes it difficult to extend current legal and moral doctrine to the peacekeeping environment. To understand why, consider the following example: On 21 January 1996, an AK–47 let loose near a US dismounted patrol in the Zone of Separation [between Bosnian Serbs and Bosnian Muslims]. As rounds ripped through the troop formation of D Company, 3d Battalion, 5th Cavalry, the soldiers realized that this fire was not celebratory and instinctively sought cover. Tumbling behind the protection of their overwatching M2 Bradley Fighting Vehicle, the patrol chambered rounds and brought their weapons off safe. From this point, the soldiers had at least three possible courses of action:9I do not wish to suggest that there may not have been other options. However, whatever other options there may have been, they would have fallen along the same spectrum created by the tension between due care and due risk.

  1. Use the Bradley 25 mm main gun and fire in the direction of the gunman. This would cause the most damage and most likely result in the death of gunman as well as some others (if there were any) in the building. This would pose the least amount of risk to the soldiers.
  2. Leave cover and, using squad fire and maneuver techniques, assault the gunman’s position. As long as they only fired at the gunman, this course of action posed the greatest risk to the soldiers, but would likely result in the least amount of civilian casualties.
  3. Remain behind cover until a local authority of some sort took care of the gunman. In this course of action they accept no risk, but do no harm.

Legal Considerations

According to the legally binding consideration of proportionality, the soldiers would be morally permitted to pursue any of those courses of action. If the harm is simply the death of the gunman and the destruction of some property and the military gain is that peace is maintained, a belligerent is eliminated, and soldiers lives are protected, it would be hard to argue that the first course of action, though it is the most destructive, would not be permitted.10Richard Holbrooke, To End a War (New York: The Modern Library, 1999) p 69 & 72.
Michael Walzer: Just and Unjust Wars (HarperCollins, 1992) p 157.

Furthermore, even if it was likely that there were some civilians in the building, it is not clear at all that the soldiers would not be permitted to risk injuring or killing them. Unless the building was clearly marked «Hospital» or was obviously occupied by a number of civilians, any civilians inside would not enjoy any protection from the Law of War. Given that several soldiers’ lives could potentially be saved and given the added gain of eliminating the belligerent, the balance would tip in favor of permitting course of action one.

The choice is further complicated by the fact that the mission (maintaining the peace) depended to a large degree on how the people regarded the peacekeeping force. They could not appear too reluctant to use force, but neither could they afford to apply force too strongly – that would alienate subgroups and make their job more difficult and dangerous. In fact, it was the failure to properly balance this tension that led to the failure of the UN mission in Bosnia, which precipitated NATO’s involvement. This, of course, made the application of proportionality particularly problematic because it allowed for a wide range of actions that could be justified because it is difficult to know, especially in wartime, what the actual consequences of any action could be. Moral Considerations: However, as I have argued before, legal considerations are not the only things that the soldiers must consider. They must also take into account moral considerations, which in this case are more restrictive. In addition to the condition of proportionality I have already discussed, double effect also holds that the bad effect must be unintended. In this case, the soldiers may plausibly argue they only wanted to eliminate the threat the gunman posed to them and to the peace. That others might be harmed would certainly be unintended, especially since the soldiers did not intend to be shot at.11The distinctions I am making do not map neatly onto US Army doctrine. This doctrine divides peace operations into three kinds: diplomacy, peacekeeping, and peace enforcing. Each of these kinds of operations may be conducted in the absence or presence of peace, though peacekeeping operations are always conducted in the presence of some general agreement by the belligerent parties to cease hostilities. The debate in this case centered around whether or not this was doctrinally a peace enforcing or peacekeeping mission. Cfr Fastabend, p 75.

Double effect also holds that the bad effect must not be a direct means to the good effect. In this case, even with course of action one, the soldiers are not destroying the building to stop the gunman nor are they putting civilians at risk as a means to stop the gunman. Thus, this condition would also hold.

Finally, soldiers must act to minimize the foreseeable bad effects, even if it means accepting an increased risk to themselves. This is the most restrictive element of this doctrine and may make it hard to justify course of action one. But even this condition has limits. Soldiers are not required to take risks that may lead to them not being able to accomplish the mission at hand or make it likely they will not retain enough fighting capacity to continue to accomplish additional missions. One way of course to resolve the tension of due care and due risk is to adopt a course of action where one assumes no risk and does no harm. Soldiers could always refuse to apply force when the possibility of civilian casualties exists and when any other course of action would place additional risk on the soldiers themselves. This would often be, however, at the expense of mission accomplishment. Thus such a refusal would be tantamount to refusing to accomplish a mission, and this is a course of action seldom available to the soldier. It is a legitimate question in the context of this scenario whether accepting no risk and doing no harm was, in fact, the best means to accomplish the mission. Perhaps this is in fact the case. Nonetheless, this would only be a permissible option if this were the case. What is the case is that soldiers are not permitted to resolve the tension by walking away from it. Soldiers have a prima facie obligation to accomplish properly assigned missions, and thus can only be obligated, under double effect, to consider the maximum permissible force, not the minimum possible force.

Thus in this situation, the maximum amount of force permissible would balance the additional risk inherent in course of action two with considerations of mission accomplishment. Again, the fog of war makes such judgments problematic. What the soldiers could not know was if there were other gunmen or what other weapons the gunman had. It was certainly conceivable that he could have been equipped with anti–tank weapons that could have damaged the Bradley. Also, it is not clear from the example how risky an assault from their current position was. If there were inadequate cover and concealment or if they would have had to remain exposed for long periods in order to get to the gunman, it is likely that this condition would also hold.

If any one of these considerations were true—and there would be no way for the soldiers at the time to know otherwise—then choosing course of action two over course of action one would no longer be morally obligatory. So again, the application of the Just War Tradition would not preclude choosing the most damaging and lethal of the possible courses of action. Thus, the law of war and the morality of war would permit the soldiers to eliminate the gunman, even if it meant killing civilians.

Extending the Just War Tradition

Though named the Just War Tradition, the purpose of the morality of war and the laws derived from it can be more generally considered as a guide for soldiers’ judgments regarding the application of force across national boundaries. As such, it is appropriate to extend it to any situation, outside national borders, in which soldiers are involved. It takes the form that it does because it is based on the presumption that such force is applied in the absence of peace and that since there is no higher authority to which belligerent parties can appeal, is necessary to create peace. However, increasingly this decade the United Nations and NATO have applied force across national boundaries, not with the purpose of establishing the peace, but with the purpose of maintaining it. Thus, it makes sense to consider what it means to apply force across national boundaries in order to maintain, rather than create peace if we are to extend the Just War Tradition to such operations. In the example cited, the soldiers chose course of action three, the one that involved the least risk to themselves, the least harm to others, and, which some later argued, the most risk to mission accomplishment. In fact, in the aftermath of the incident, the soldiers were both criticized and praised for the decision they made. Most of the debate revolved around determining the kind of operation they were engaged in.12Ibid., p 77.

Some argued that their purpose was to establish peace where there was none. By failing to send a clear and decisive signal to all the factions that NATO forces would impose peace, even at a cost to civilian lives if necessary, the soldiers had sent a clear signal that it was now «open season on IFOR.» Others argued that this was to maintain the peace established by the Dayton Accords. They further pointed out that killing everyone who posed a threat, no matter how minimal that threat might be, would only serve to polarize the factions against IFOR and make maintaining the peace even more difficult. Certainly, when settling the issue of «should» there is a practical dimension to this situation that soldiers should consider. What the soldiers should do in this case does depend on what will most likely facilitate mission accomplishment. A problem does arise for our soldiers, however, in that it is not clear which course of action would do this because there was no agreement on what the mission really was. It is interesting to note, however, that pragmatically speaking, right or wrong depended on an accurate understanding of what purpose the soldiers in fact served. I would like to suggest that there is a moral analog to this practical conundrum.13Ibid. Richard Holbrooke’s analysis suggests the latter interpretation is the more appropriate and that NATO troops were there to maintain, rather than impose, peace. Holbrooke points out that «[i]n any case, we would not employ American or other NATO troops absent ironclad guarantees from all three parties concerning their safety, access, and authority…There is no peace without American involvement, but [ ] there is no American involvement without peace.» p 218.

While such ambiguity does make it difficult for soldiers to make certain practical decisions, these are not the only considerations soldiers must make. Further, just as the judging the best course of action depends on settling the issue of ends, I also want to argue that as the ends change, so do to some degree the ethical requirements of the application of force.

If we look at this situation from the analogous position of the police officer, much of the moral ambiguity is cleared up. If a sniper were firing from a building that contained civilians, we would not likely claim that the police were morally permitted to use the maximum force allowable under the principles of pro­portionality or doctrine of double effect. Even if a sniper were likely to kill several people if he were allowed to remain in the building, it would still not be per­missible to destroy the building, especially if by doing so innocent people were killed. Even in extreme cases, police would be obligated to try every possible course of action that precluded civilian casualties before they would be morally permitted to engage in a course of action that could potentially lead to civilian casualties. From the standpoint of the law and morality of war, this just is not the case.

This is not to say that police are prohibited from taking some risks that might place civilian lives in danger. For example, police are permitted to engage in high–speed pursuits even though such pursuits can and have resulted in accidents in which innocent bystanders have been killed. The difference is police are not permitted to engage in such pursuits, or any other activity in which they know civilians will be killed or seriously injured. But, as I have discussed above, there are many conditions under which that would be permissible for soldiers. Of course, it remains to be shown that the analogy is, in fact, appropriate. Soldiers, after all, protect the nation from external threats, while police protect it from internal ones. Soldiers traditionally fight wars; police traditionally protect the peace. It would seem unfair then to claim that moral truths from one professional ethic should then inform the other. Nonetheless, as soldiers find themselves more and more in situations where there is a peace, even though it may be a tenuous one, they would do well to reconsider some of the principles upon which they base their legal and moral judgments.14John Kleinig: The Ethics of Policing, (Cambridge University Press, 1996) pp 118–122.

When it is the case that there is no peace and that it must be established, it only makes sense to think of applying as much force as is permissible given the law and morality of war. This facilitates the defeat of the enemy, and defeat of the enemy facilitates the reestablishment of peace—the appropriate end of all wars. However, in peacekeeping situations the peace exists. It may be tenuous, and as the above discussion indicates, not always recognized, but it exists nonetheless.

When peace exists, people who break the peace are more like criminals than soldiers in that they destroy the security the rest of the society enjoys as a result of this state of peace. However, because those who break the peace are more like criminals, they enjoy roughly the same kinds of rights and protections that criminals generally enjoy—namely, a presumption of innocence.

To underscore this point, as well as underscore the gap between how police and military consider the application of force, consider the following example that occurred during the riots in Los Angeles in 1992:

«Police officers responded to a domestic dispute, accompanied by marines. They had just gone up to the door when two shotgun birdshot rounds were fired through the door, hitting the officers. One yelled ‘cover me!’ to the marines, who then laid down a heavy base of fire. [ ] The police officer had not meant ‘shoot’ when he yelled ‘cover me’ to the marines. [He] meant [ ] point your weapons and be prepared to respond if necessary. However, the marines responded instantly in the precise way they had been trained, where ‘cover me’ means provide me with cover using firepower. Over two hundred bullets [were] fired into that house.»15James D. Delk, Fires & Furies: The L.A. Riots (Palm Springs, Calif.: ETC Publications, 1995). Quoted in Christopher M. Schnaubelt «Lessons in Command and Control from the Los Angeles Riots», Parameters, Summer, (1997) p 1. The good news is that no one was hurt. What is interesting about this example is that even if the face of mass rioting, where peace and civil authority were tenuous and not always recognized, it was still inappropriate, at least from the police point of view, for the Marines to respond the way they did. At one level, such a response was probably imprudent. At another, it was certainly immoral.16I wish to emphasize that the judgment of immorality is against the act, and not the Marines in question. They were acting in good faith in accordance with their training and their understanding of the situation. Since what I am arguing is not generally accepted at this point, it would be unreasonable to hold any particular individual responsible for not acting in accordance with it. Kleinig points out that, «the use of force represents a nonrational and nonloving response to a situation involving conflict between rational beings, it does nothing to defuse, but only serves to perpetuate, and may even magnify the violence» (p 98). This suggests that resorting to violence to preserve the peace will only serve to escalate the violence until one side has run out of the capacity to continue acting violently. Peace may eventually be restored, but only at a cost. This underscores why police should never resort to deadly force before they have attempted all other possible courses of action. It also suggests they are partially responsible for any further violence if they do. Kleinig pp116–117. If the morally appropriate end of the use of force is to maintain the peace, it does not make sense, especially moral sense, to breach the peace in order to preserve it. Though there was a riot in progress, the civilians in question were not directly partaking in it. Though the peace was being disrupted elsewhere, it was not being abandoned everywhere. Thus, the Marines responded to a potential breach of the peace with an actual breach of the peace. This would make them morally culpable for any further breaches of the peace their actions engendered. While rioting may represent a massive disruption of the peace, it is not the same as the destruction of the peace. This of course begs the question regarding what to do in the face of large angry mobs, who are obviously bent on disrupting, if not destroying, the peace. Can it ever be the case that police could be morally permitted to resort to deadly force first, setting aside the presumed innocence of any suspect as well as the right of innocent civilians not to be killed or severely injured? For it to be moral for police to do this, it would have to be the case that where conditions of peace do not exist or are tenuous at best, it would be appropriate for police officers to adopt the law and morality of war to guide their actions. I would like to suggest, however, that this is never the case. Soldiers, when acting as soldiers fight enemies; police, when acting as police protect citizens. They may have to harm citizens in order to do so, but this can never be a first resort. Now we might think of crime as an enemy, but it is a different and probably dangerous thing for police forces to consider as enemies any members of the community they are sworn to protect. To understand the importance of this claim, it is important to understand the significance of the enemy distinction. The political philosopher Carl Schmitt labeled the enemy distinction «the utmost degree of intensity of separation.»17Carl Schmitt: The Concept of the Political trans. George Schwab (Chicago: The University of Chicago Press, 1996) p 26. Enemies represent the most intense threat there can be to the security of a community. The presence of an enemy represents the absence of peace. As such, the enemy becomes the class of persons it is permissible to kill since failure to defeat or at least contain them would mean the loss of the community, and thus the loss of peace. Since citizens, even ones suspected of committing a crime, enjoy a presumption of innocence, they do not represent the same threat that enemies do and thus do not belong to the class of persons it is permissible to kill. Only when a citizen presents him or herself as a threat to other citizens may police be permitted to use deadly force, and then only after they have tried other means to apprehend the citizen peacefully. It is certainly the case that there is room for judgment in both police and military applications of force. It may seem as though police are merely further lowering the most amount of force permissible, rather than applying the least necessary, so that they may afford protection to a larger group of people than soldiers must. However, this is not the case. There is a fundamental gap between the ranges of force permitted to soldiers acting as soldiers and police acting as police, which results from a difference in orientation regarding its application.18Kleinig, p 116.

The gap exists because for soldiers the application of force is oriented toward the upper limit allowable. This makes sense since soldiers, when fighting enemies, are preventing the existential negation of the community. Soldiers are permitted to kill as a first resort and are permitted to engage in courses of actions that will result in the certain death of civilians (as long as the provisions of the doctrine of double effect hold) because if they do not, the peace and security the community enjoys may be lost. The problem arises when soldiers import an ethic designed to deal with enemies into an environment where there are none.19Fastabend, p 77.

For police the application of force is oriented toward the least amount necessary. When police apply force against a suspected perpetrator they are not permitted to use deadly force as a first resort and never if it is the case that the perpetrator is not likely to harm anyone, even if he or she is likely to evade capture otherwise. Furthermore, as stated before, police are never permitted to engage in any action that, if by doing so, will certainly or even very likely result in the death or serious injury of a civilian.20Mark Osiel: Obeying Orders: Atrocity, Military Discipline, and the Law of War, (New Brunswick: Transaction Publishers, 1999) p 100.

Now it is the case that the rules of engagement for the mission in Bosnia included the provision, «to use only the minimum force necessary to defend yourself.»21Department of the Army: FM 100–5 Operations, (US Government Printing Office), 2–1. These rules also included additional provisions that restricted soldiers’ authority to return deadly fire. «You may open fire against an individual who fires or aims his weapon at you, friendly forces, or persons with designated special status under your protection.» But while this certainly reduced the amount of force permissible, it did require the minimum amount of force necessary. While such rules are welcome, rules of engagement do not supersede laws of war, but only clarify them. Thus, if someone violated this rule, they may be guilty of violating an order, but they are not guilty of a war crime, or of transgressing the morality of war. Furthermore, such rules do not require soldiers to change the way they think about the application of force. They may lower the bar further, but they do not require soldiers to minimize it. There is nothing in these rules of engagement that make it immoral for soldiers, when opening fire on individuals who fire or aim their weapons at them or at others, from them engaging in a course of action that would cause harm to innocent civilians.

Therefore, though these provisions in the rules of engagement are a welcome addition, by themselves they are not enough. In order to extend the law of war and by extension the morality of war on which it is founded, we must understand that in military operations where the goal is to maintain peace, applying the least amount of force necessary must be understood as morally obligatory.

So for the military, where conditions of peace exist, soldiers, like police, must consider what is the least amount of force necessary, rather than what is the most amount of force permissible. This is because where there is no enemy, there is to some degree at least, peace. If there is a peace, it makes no sense to preserve it by engaging in courses of action that breach it. Where there is peace, there may be criminals who breach it, but they do not, by themselves, destroy it. It may be true that police may harm criminals who will likely harm others, but it makes no sense to harm those others in order to prevent the criminal from doing so. To minimize the potential for harm to those others, those with the authority to use force must use the least amount possible, rather than the most amount permissible. It is not enough just to lower the bar; those with the authority to use force must, in fact, stand under it and resist any efforts to reach it.

Conclusion

It is true that in many cases it is difficult for commanders and soldiers to know if they are in a peace maintaining or peace establishing operation. The discussion regarding the actions of 3–5 CAV was not merely academic. Though labeled a peace maintaining operation, there were times and places during the initial phases of the operation where it had all the characteristics of a peace establishing operation. It is also interesting to note that operations in Somalia fell under the doctrinal distinction of «peacetime» which the Army defines as those operations that are routine actions between nations. This clearly would fall under the category of peace maintaining, though to those involved there were significant parts of the operation that were clearly peace establishing. I would agree that such epistemic difficulties make it difficult to apply the moral distinction I am recommending. However, this does not invalidate it, nor does it render it useless. Political leaders and senior commanders may label military operations in certain ways because of political concerns or limitations in the doctrinal vocabulary. But political and doctrinal distinctions do not map onto moral ones. As the nature of an operation changes on the ground, commanders can understand their moral obligations more clearly by understanding how the condition of the state of peace in the area under their control should affect their moral decision making.

Many questions and issues remain. As I have pointed out, I have not settled the epistemic issue of how a commander can know if a state of peace exists. While I think it is entirely possible to settle this issue, until it is done, it will be difficult to know if an operation is peace maintaining or peace establishing. When this distinction is uncertain, it will be difficult for soldiers to discern their moral obligations regarding civilians and their property. But what I have suggested is that answering this question will have moral as well as political significance.

Furthermore, in war soldiers are asked to risk death or serious injury, because the end to be attained is so important that justice calls for it. But one implication of this argument is that the risk of such sacrifice may be higher in peacekeeping missions than in war fighting. This of course, raises the question: is the end to be attained in peacekeeping operations, which are by nature ambiguous, so important that it justifies an even higher risk of sacrifice than in war?

In addition, as the police–Marine incident suggests, the actions that soldiers are trained to take in war–fighting 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 soldiers to do the right thing becomes more difficult. Should we train to fight wars, to keep peace, or both? Is it realistic to think that we can teach soldiers to do both? Do we increase the risk that they will be injured or killed in either type of mission by training them for both? Should we have special military units for peacekeeping missions, or would that be wasteful duplication? It is beyond the scope of this paper to attempt an answer to these questions, though the argument does suggest that it is important to do so.

What I have suggested is that as a region transitions from a state of nature to a state of peace, what it means to apply force morally also changes. This means when such a distinction can be made, soldiers are afforded a powerful 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.

Fotnoter   [ + ]

1. The use of the word «force» throughout this paper 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. James M. Dubik, «Human Rights, Command Responsibility, and Walzer’s Just War Theory,» Philosophy and Public Affairs 11, no. 4 (1982): 355.
3. Adam Roberts and Richard Guelff, (Eds): Documents on the Laws of War, (Oxford: Clarendon Press, 1989) p 11.
4. Department of the Army Field Manual 27–10, The Law of Land Warfare (U.S. Government Printing Office, 1956), Change No. 1, 15 July 1976, para 41, p. 5.
5. James Webb, «The Bridge at No Gun Ri,» Wall Street Journal, 6 October 1999, Letters to the Editor.
6. Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues 2nd ed. (New Jersey: Prentice Hall, 1999) p 52.
7. Augustine held that self–defense was inherently selfish and that acts motivated by selfishness were not morally justifiable since selfishness is not morally justifiable. Ibid. p 93.
8. David Fastabend, «The Categorization of Conflict,» Parameters, Summer (1997): p 75. http://www.carlisle–www.army.mil/usawc/Parameters/97summer/fastaben.htm
9. I do not wish to suggest that there may not have been other options. However, whatever other options there may have been, they would have fallen along the same spectrum created by the tension between due care and due risk.
10. Richard Holbrooke, To End a War (New York: The Modern Library, 1999) p 69 & 72.
Michael Walzer: Just and Unjust Wars (HarperCollins, 1992) p 157.
11. The distinctions I am making do not map neatly onto US Army doctrine. This doctrine divides peace operations into three kinds: diplomacy, peacekeeping, and peace enforcing. Each of these kinds of operations may be conducted in the absence or presence of peace, though peacekeeping operations are always conducted in the presence of some general agreement by the belligerent parties to cease hostilities. The debate in this case centered around whether or not this was doctrinally a peace enforcing or peacekeeping mission. Cfr Fastabend, p 75.
12. Ibid., p 77.
13. Ibid. Richard Holbrooke’s analysis suggests the latter interpretation is the more appropriate and that NATO troops were there to maintain, rather than impose, peace. Holbrooke points out that «[i]n any case, we would not employ American or other NATO troops absent ironclad guarantees from all three parties concerning their safety, access, and authority…There is no peace without American involvement, but [ ] there is no American involvement without peace.» p 218.
14. John Kleinig: The Ethics of Policing, (Cambridge University Press, 1996) pp 118–122.
15. James D. Delk, Fires & Furies: The L.A. Riots (Palm Springs, Calif.: ETC Publications, 1995). Quoted in Christopher M. Schnaubelt «Lessons in Command and Control from the Los Angeles Riots», Parameters, Summer, (1997) p 1.
16. I wish to emphasize that the judgment of immorality is against the act, and not the Marines in question. They were acting in good faith in accordance with their training and their understanding of the situation. Since what I am arguing is not generally accepted at this point, it would be unreasonable to hold any particular individual responsible for not acting in accordance with it. Kleinig points out that, «the use of force represents a nonrational and nonloving response to a situation involving conflict between rational beings, it does nothing to defuse, but only serves to perpetuate, and may even magnify the violence» (p 98). This suggests that resorting to violence to preserve the peace will only serve to escalate the violence until one side has run out of the capacity to continue acting violently. Peace may eventually be restored, but only at a cost. This underscores why police should never resort to deadly force before they have attempted all other possible courses of action. It also suggests they are partially responsible for any further violence if they do. Kleinig pp116–117.
17. Carl Schmitt: The Concept of the Political trans. George Schwab (Chicago: The University of Chicago Press, 1996) p 26.
18. Kleinig, p 116.
19. Fastabend, p 77.
20. Mark Osiel: Obeying Orders: Atrocity, Military Discipline, and the Law of War, (New Brunswick: Transaction Publishers, 1999) p 100.
21. Department of the Army: FM 100–5 Operations, (US Government Printing Office), 2–1.