Good day, Good day, everyone.  James [Acton] asked me to say a few words offering my perspective on the relationship between targeting, the Law of Armed Conflict (a.k.a. the “LOAC”), and morality.  These are only my personal views, of course, and don’t necessarily reflect those of anyone else, but I hope they are helpful.

The Moral Wisdom Encoded in LOAC Principles 

I’m sure it’s not the case among audiences like this group, of course, but sometimes in the media and the broader policy community it seems to be assumed that the exigencies of militarily-effective targeting and the dictates of morality are antonyms, and that it must therefore be the role of the law to pick sides between them – thus, impliedly, standing up for morality against targeting.

What I’d like to stress, however, is what a cartoonish and wrongheaded view that would be, how there are in fact moral arguments to be made both on the side of “morality” and of “targeting,” and how the LOAC – as a framework for moral reasoning in its own right – provides a framework for managing the tension that can arise between these compelling but sometimes competing moral values.

The LOAC, as I see it, is not just a system of rules.  It is a system for thinking about and balancing the demands of moral values that are unquestionably important, but that do not all point cleanly in the same direction.  The law of war is thus a system for moral or ethical reasoning in itself, and I think it’s very important that we understand it as such.  Morally-informed equity balancing isn’t incidental to the LOAC project; it is the LOAC project. 

And it’s crucial here that we are talking about moral equity balancing.  If your sole objective were to constrain the conduct of warfare with legal rules that maximize civilian welfare, it wouldn’t be too hard to create some crisp, bright-line targeting standards that would – if observed – make it all but impossible to fight a war in the real world. 

Yet such no-compromise approaches to reducing civilian harm are quite emphatically not what the LOAC demands, and with good reason.

From the perspective of moral reasoning, it’s a critical point that preventing all harm to civilians is actually not the moral objective of the LOAC, nor is even minimizing harm to civilians its only moral objective.  The LOAC certainly aims to protect civilians, but it is also informed by the fact that there can be a compelling moral case for it being permissible to conduct war. 

Defending oneself against aggression, for instance, has to be understood as a vital moral objective too.  A genuinely moral law must therefore permit self-defense, and presumably also defense of others (e.g., one’s allies, those who otherwise request help against aggression, or perhaps defenseless civilians).   And if war is ever morally permissible, it must perforce also be permissible to use reasonably effective means to fight it.  And, unfortunately, it is basically impossible to imagine war being waged without any chance of harm to civilians.

It is only with this in mind – that is, seeing that the law of war understands that there can be moral value in waging war as well as in protecting civilians from harm – that one can see the shrewd logic embedded in the LOAC and the sophisticated reasoning it brings to such matters.

Striking the Balance

With respect to targeting, the LOAC thus recognizes that there are at least two moral equities involved here: targeting of some sort must remain permissible, even while one should also be required to prevent undue harm to civilians.  So let’s not beat around the moral bush: I believe that serving either of these moral values, exclusively, would be immoral.

So the framers of the LOAC over the years – that is, the world’s sovereign states who have come together to frame agreements on these subjects, or whose state practice coupled with opinio juris has given rise to customary law – have attempted to craft what is in effect an Aristotelean Mean.  Just as courage, per Aristotle, is something appropriate to the circumstances in between the extremes of recklessness and cowardice, so the LOAC seeks to avoid both the immorality of declaring a free-fire zone on innocent civilians and the immorality of prohibiting states from being able to wage war in a just cause such as self-defense.

But that’s also why targeting and LOAC issues are so challenging and so complicated.  This balancing process can give rise to enormous complexities of fact and nuance, and often some very uncomfortable decisions in which one or the other of these moral values is explicitly not maximized. 

If a target is of sufficient military significance, for instance, you need to be willing to accept some civilians being killed incidentally to its destruction – and potentially, in pursuit of a very important military objective, quite a lot of them.  So being genuinely moral in such equity-balancing situations is by no means necessarily comfortable.

Admitting that these questions can be undeniably difficult, however, it is the genius of the LOAC that is does offer a framework for providing answers that intelligibly and conscientiously work to serve competing values at the same time.

The Doctrinal Framework

I don’t imagine that this audience needs much by way of a reminder of the basic conceptual framework the LOAC provides, but here’s a quick primer. 

A key starting point is the idea of “distinction.”  As emphasized in U.S. legal training materials such as the U.S. Army’s Law of Armed Conflict Deskbook, one must always make a distinction between combatants and non-combatants. 

One of the few per se rules in the law of war is that one cannot ever deliberately target civilians: by definition, they are not lawful targets.  To be sure, there are ways civilians can lose this protection, such as by taking part in fighting.  For so long as they remain genuine civilians, however, they are not lawful targets.  Conversely, the enemy’s combatants, its military assets, and the facilities where they are located or from which they operate are legitimate targets.

But things get interesting, when these two categories are not cleanly separable in time and space, so that you have to start to worry about when or to what degree you can pursue legitimate military targets even though such attacks would also cause harm to civilians.  And that’s where you see this complicated conceptual dance develop in the LOAC between “military necessity” and “proportionality.”

The principle of proportionality prohibits attacks in which the expected loss of life or injury to civilians would be excessive in relation to the concrete and direct military advantage expected to be gained.  This is how the LOAC seeks to protect civilians: parties must avoid making purely civilian targets the object of attack and seek to prevent harm to them except that which cannot be reasonably prevented when pursuing compelling military objectives.  Accordingly, collateral harm to civilians – and, as I noted, potentially a great deal of it, as the International Court of Justice conceded when accepting in 1996 that even a state’s use of nuclear weapons might be permissible where its very existence were threatened – is indeed permissible, such harm just needs to be limited to what cannot feasibly be avoided. 

This, I submit, is a real process of moral reasoning. 

This calculus can be frustrating for the uninitiated, of course, because it essentially precludes being able to come up with clear answers absent a very detailed understanding of the context, and decision-making is highly dependent upon great dollops of intrinsically somewhat fuzzy human judgment. 

It is not merely, for instance, that there is no crisp, quantifiable, “scientific” way to judge what amount of harm to civilians is “proportionate” to the necessity of hitting a given military objective.  It is also that precisely because you cannot really make such a call without knowing the importance of striking a particular target in the overall context of a military campaign – that is, not just in terms of “immediate tactical gains,” but also “in the full context of war strategy.”  For this reason, legal conclusions about the propriety of specific potential targets can be very hard for outsiders to assess. 

(Furthermore, what answers there are may change over time for reasons that may be exogenous to the fact pattern of the strike itself.  If the same attack upon the same military target with the same amount of collateral damage were to occur at a different point in a military campaign, for instance, it might bear a very different relationship to the achievement of the attacker’s overall objectives, and hence have a different weight in terms of “military necessity.”)

Moreover, the legality of any given targeting decision must be evaluated on the basis of what information was actually available to a reasonable military commander at the time, “taking into account all circumstances ruling at the time, including humanitarian and military considerations.”  This idea – which U.S. military operational lawyers refer to as a sort of highly context-dependent “reasonableness standard for evaluating command decisions” – can sometimes make after-the-fact second-guessing commanders’ decisions in the field and the heat of and “fog” of battle quite challenging.  (To be a little provocative in front of the present audience, for example, it may be that the perspective of civilian academics in peacetime hindsight may sometimes actually mislead more than they enlighten.) 

Nevertheless, it is less a “bug” than actually a moral “feature” of the LOAC that it understands that real-world decisions in battle are horrifically complicated: made under enormous stress, in conditions of sometimes crushing time-urgency, on the basis of invariably somewhat incomplete or ambiguous information, in a dynamic relationship with adversaries who are doing everything they can to impede your ability to make effective decisions, and amidst all the other unavoidable Clausewitzian “friction” and unpredictability of conflict.  It would not, I submit, truly be moral to hold persons in such conditions to post hoc standards of perfection, and the law acknowledges this.  By the same token, however, it would certainly not be moral to excuse them just anything, and the LOAC goes to considerable trouble to provide a framework that tells operators how to reason responsibly about such challenges and one that allows the broader community to hold them intelligibly accountable for the choices they make. 

I’ll admit that there is thus very little about this reasoning process that can be said to be simple or easy, and – as I noted – it can sometimes involve some very uncomfortable choices.  The LOAC is probably not a moral framework that would please a strict deontologist: it has far too much balancing, and too many trade-offs, in it for that!  Nevertheless, I submit that the LOAC represents a remarkably highly evolved form of moral reasoning – one the thoughtfulness and sophistication of which needs to be understood whether we are applying it to an infantryman’s decisions in the field or to nuclear targeting policy on a geopolitical scale. 

Don’t Forget Honor

Before I conclude, let me add a quick word about a topic that civilian international lawyers – perhaps to their discredit – talk about a lot less than do military lawyers: the concept of honor, and its vital role in helping shape the law of war.

As emphasized in training materials such as the U.S. Army and U.S. Marine Corps’ Commander’s Handbook on the Law of Land Warfare, “honor” is one of the foundations of the LOAC – a foundational element, moreover, that is explicitly said itself to derive from ancient conceptions of “chivalry,” and which “demands a certain amount of fairness and a certain mutual respect between opposing forces.”  The principle of military honor is regarded, for instance, as an important reason for the humane treatment of civilians, as well as combatants’ duty to honor pledges of safe-conduct in wartime, and a basis for prohibitions on slandering, insulting, and humiliating protected persons. 

To be sure, honor is hardly the exclusive basis of the LOAC, and perhaps not even a primary one.  In general, greater importance is probably placed upon some almost game-theoretical understandings of the potential impact of various rules or concepts upon the conduct of warfare.  (Perfidy, for instance – such as feigning the status of a protected civilian in order to treacherously conduct an attack – is not a war crime simply because it is dishonorable.  It is a war crime because if combatants were not prohibited from doing such things, innocent civilians would presumably be much more at risk of attack by combatants who feared their opponents were engaging in such tactics.)

But honor is nonetheless very important in the LOAC’s conceptual scheme.  In fact, the idea of military honor can even be read as a sort of supplemental enforcement mechanism for the laws of war. 

The concept of honor seeks to persuade combatants to follow the law in the heat of combat not by explaining rationally why these particular rules make sense in a kind of overall, game-theoretical sense.  Rather, honor attempts to bake LOAC compliance into the personal self-identity of the combatants, as it were: they must follow these rules not just because a scholar can explain their overall rationality, but also because complying with the LOAC is part of who they are as servicemembers, and it would be personally and professionally disgraceful for them to behave otherwise.  Much like a good citizen might be expected to stop at a red light even when confident that no one else is around, honor is a factor that helps keep a warfighter from crossing the line even if he has every likelihood of “getting away with it” if he did.

That’s why the principle of honor is so important, and why I tend to chafe at it being so often overlooked by secular civilian academics who might otherwise be inclined to sneer at a concept so retrograde and archaic as to be explicitly derived from chivalry.  In fact, I suspect that making the dictates of honor a powerful and compelling part of military culture is very important to the LOAC’s success as an institution.

Conclusion

So if you ask me, there’s indeed a certain genius embedded in the LOAC.  For my part, I regard it as something of a triumph of moral reasoning as a guide to ethical conduct in a world of complexity.

 I hope our discussions here today can usefully employ this framework as we think through the difficulties of U.S. nuclear targeting in the era of our emerging “three-body problem” of strategic deterrence.

-- Christopher Ford