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About this book

Public anger at perceived ethical and legal failures in recent wars has reinforced the importance of understanding military ethics. Ethics, Law and Military Operations is one of the first texts to examine both the ethical and the legal considerations of contemporary military conflict. It adopts a practical approach to explore the ways in which legal and normative issues combine to affect the entire spectrum of military operations, from high-intensity conflict to peacekeeping activities and the provision of humanitarian aid.

With an operational perspective in mind, this text delivers accessible frameworks for evaluating and applying fundamental legal and ethical concepts. Written by an international team of military practitioners and academics, this book provides interdisciplinary insights into the major issues facing military decision-makers. The first half of the book explores the ethical and legal underpinnings of warfare. Later chapters use case studies to examine specific issues in the contemporary operating environment.

Table of Contents

Introduction: Purpose, Content and Structure

Public interest in military ethics and the laws of war has been heightened in recent years, beyond that of the traditional military practitioner community. Contemporary ‘wars of choice’ or ‘discretionary conflicts’, particularly where vital national interests are not obviously at stake, appear to pose different ethical and legal challenges for democracies when compared to wars of national survival. This has led to an increasing fascination with the subject around the world. Perceived ethical and legal failures, at both the ad bellum level (decision to go to war) and in bello level (the actual conduct of war), have caused some real problems in a number of different conflicts. At the same time, the potential range of problems is widened by the varied types of activity the military can become involved with — peacekeeping and peace enforcement or humanitarian relief operations can pose different types of dilemma to ‘traditional’ high-intensity, state-on-state warfare, while counter-insurgency and stabilization operations introduce their own ethical and legal issues and dilemmas that need to be engaged with and resolved if campaigns are to be successful in achieving their ultimate political goals.
David Whetham

Chapter 1. Ethics, Law and Conflict

For many people perhaps unfamiliar with the subject, the idea of ‘military ethics’ or ‘the law of war’ appears somewhat of an oxymoron. However, despite the fact that warfare takes place when the normal rules of political interaction no longer apply, it has consistently been one of the most rule-bound activities that mankind conducts. This apparent contradiction presents us with something of a conundrum; one that deserves further exploration and will therefore be the focus of this chapter.
David Whetham

Chapter 2. A View from Realism

This chapter presents a realist perspective on the role of ethics in war. More specifically, it offers a view from the discipline of Strategic Studies, which is heavily infused with realist principles.1 When taken together with the next chapter — ‘A Nonviolent Challenge to Conflict’ — some of the influences on either side of the ‘mainstream’ Just War Tradition (Chapter 4) that underpin much of the contemporary legal framework can be seen.2 It will be instructive to begin the analysis for this chapter with a brief description of the core concepts behind realism. From here, the work will consider the three overriding factors that should influence the conduct of war: strategy, the nature of war and victory. The chapter takes a rational, amoral approach to the subject. However, while recognizing the rational basis for war, the chapter does acknowledge that ethical considerations cannot entirely be ignored. This creates something of a dilemma for the modern strategist: how can they act in a purely rational manner, and yet take sufficient account of ethical concerns? This is particularly pronounced, and discussed, in relation to coercion. Having identified the problem, the chapter presents a potential solution for the modern strategist: ‘strategic necessity’.
David J. Lonsdale

Chapter 3. A Nonviolent Challenge to Conflict

So far, nobody has managed to rid the world of war using nonviolence. But neither have they done so using violence. Let us proceed from the basis of such mutual deficiency. We saw in the previous chapter how David Lonsdale laid out a ‘realist’ position on war — what he calls a ‘rational, amoral approach’.1 Whilst I would not wish to presume that this is necessarily his personal ethos, he has helpfully explained the value-free — one is tempted to say, ‘valueless’ — rationality of thinkers like Clausewitz who are driven by the singular premise that war is ‘an act of force to compel our enemy to do our will’. It follows, says David, that military ethics should be ‘purely instrumentalist in nature’. The commander’s estimate therefore becomes an arid calculus to ensure that a ‘chosen approach to war does not undermine the whole project through moral outrage’. Rather than asking whether an action is ‘right’, the realist commander should ask, ‘How will this action be perceived?’ Victory is all, and from that logic we are moved to the abject conclusion: ‘while realism will normally seek to exert substantial levels of control … over violence, it will also tolerate extreme levels of violence (even nuclear war) should the need arise’.
Alastair McIntosh

Chapter 4. The Just War Tradition: A Pragmatic Compromise

The origins of the Just War Tradition in the West lie in a synthesis of classical Greco-Roman and later Christian values.1 It can be seen developing and evolving all the way through to the codification of customary international law in the nineteenth and twentieth centuries, and beyond as it continues to grapple with the challenges of the new millennia. Influential contributors to its development have included Plato, Aristotle, Cicero, Augustine, Aquinas, Vitoria, Suárez and Grotius, all the way up to James Turner Johnson and Michael Walzer in the twentieth century. Although the Tradition is often associated with Western or even Christian traditions, it contains a broad resonance with ideas, cultures and religious principles found all over the world. For example, ‘Islam, like Judaism, starts from its earliest history to develop restrictions on conduct in war’.2 As such, the Just War Tradition represents a common language for discussing and debating the rights and wrongs of conflict.
David Whetham

Chapter 5. War Law and Its Intersections

One of the aims of this book is to bring together in one place three subjects normally treated apart: ethics, law and military strategy. Since this is a chapter on law, the bulk of it will be on what the law on the use of force actually is. It will also address how the law is evolving and where controversies arise in the law (though to be clear from the start, controversies arise much more in the application of law to facts than with respect to the law itself). Before getting to that, however, it will be useful to briefly return to the nature of the relationships between law and ethics and between law and strategy that have been raised in the Introduction. The former relationship has seen much ink spilt, but the latter is only coming to the fore now. Both provide a necessary backdrop to this chapter.
Christopher P. M. Waters

Chapter 6. Law at the Operational Level

The complexities of the current operational environment, including advances in global communications and weapons technology, makes it very difficult to define discrete levels of warfare. Doctrine1 describes three levels of warfare — strategic, operational and tactical. General Sir Rupert Smith in The Utility of Force, describes a fourth — political.2 Decisions taken, and the general conduct of troops at the tactical level, can have considerable consequences at the operational, strategic and political levels. This chapter will examine the impact of law at all four levels by addressing the issues from the point of view of the commander and the units, sub-units and soldiers they command. While, due to the author’s background and experience, this chapter is informed by a British Army perspective, the actual issues raised are of wider relevance beyond the UK experience.
Philip McEvoy

Chapter 7. Civilian Protection and Force Protection

At the heart of any effort to maintain some minimal level of civilization is a commitment to attempt, insofar as possible, to settle disputes without the use of force. Our best attempts, however, may fail, sometimes requiring, if the stakes are high enough, military force to be used. But even during the resort to force, not all restraint is abandoned by civilized societies: ‘In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.’2 The three basic limits are necessity, discrimination and proportionality, as is widely understood.3 The devil, as always, is in the details. What do these three concepts mean? And how do they relate to each other?
Henry Shue

Chapter 8. The Ethical Challenges of a Complex Security Environment

La Drang Valley in Vietnam is hallowed by the soldiers who died there in 1965. It was the scene of the first serious battle between US forces and the North Vietnamese Army. Historians regard it as one of the bloodiest battles of the Vietnam War with over 300 Americans and possibly over 3,000 Vietnamese killed in the space of a few days. Many of those who died came from a rural background and had limited knowledge of the political merits of the war. Both sides fought with perseverance and courage and it was only thanks to the superior firepower of the Americans, with their fixed-wing close air support, howitzers and Huey helicopters that the men of the 1st Cavalry Division (Airmobile), 7th Battalion, were not overrun by the Vietnamese, who vastly outnumbered them. What sets the Battle for la Drang Valley apart, from the ethical perspective, is the fact that the then commander, Lt Col. Harold Moore, returned to the valley nearly 30 years later, together with a handful of men from his former battalion.2 During his 1993 trip he met a number of his former enemies, including the commanding officer of the attacking North Vietnamese regiments, Nguyen Huu An, who very nearly defeated him. The Vietnamese welcomed their American counterparts warmly. They exchanged memories and together they visited the battlefield, which the Vietnamese now called the ‘Forest of the screaming souls’ in commemoration of the many who died far too young. Throughout his account, Moore expresses his astonishment at the mutual feelings of friendship which develop. On another occasion, Moore met General Nguyen Vo Giap, who is one of history’s chief architects of modern guerrilla warfare. When the moment of departure arrived, Moore, acting on impulse, took off his inexpensive wristwatch and gave it to Giap, telling that it is a token of appreciation.
Ted van Baarda

Chapter 9. Understanding Atrocities: What Commanders Can Do to Prevent Them

In a BBC documentary on torture, William Menold comes across as a thoughtful man probably in his 70s. Nearly 50 years ago, in 1961, he had just left combat duties in the US Army as he decided to volunteer to participate in Stanley Milgram’s famous experiment on obedience.1 Menold remembers that experience very vividly and in particular ‘the fact that you are acting crazy … I really think I kind of lost track of right and wrong, and good and evil.’2 He was one of several individuals who complied with ‘orders’ and inflicted what he believed to be severe harm on another individual through the deliberate administration of electric shocks.3
Paolo Tripodi

Chapter 10. To Whom Does a Military Medical Commander Owe a Moral Duty?

The original Hippocratic Oath sets out, in a clear and didactic manner, the duties of a physician. In the arena of military medicine, however, conflicting elements of duty can set up friction between the medical and military precepts of the medical officer. There are also natural tensions that arise from the differing roles and requirements of a mission commander and a mission’s medical officer. This is further compounded by the dual roles of the medical officer both as a doctor and as an officer. An exploration of these issues follows below, prompted by further quotes from the Hippocratic Oath.
Duncan Blair

Chapter 11. The Ethics of Nuclear Deterrence

This chapter considers the ethical questions surrounding the strategy and policy of nuclear deterrence. Nuclear weapons are rightly held to have constituted a revolution in warfare, challenging and altering the traditional notions of strategy and war-fighting. But equally they have called into question our settled views about ethics and the use of armed force. The development of ethical thinking about nuclear weapons has run parallel to, and has been influenced by, strategic thinking about these weapons. The chapter therefore begins by examining the strategic idea of deterrence, particularly in the nuclear context. It then goes on to discuss the three main ethical approaches to nuclear deterrence: consequentialism, Just War theory and deontology (see Chapters 1 and 4). The chapter suggests that nuclear deterrence presents a real moral quandary; for our commonly held approaches fail to give us clear-cut ethical guidance in this realm of conflict. Extricating ourselves from this bind is unlikely to be an easy task.
Srinath Raghavan

Chapter 12. The Ethical and Legal Challenges of Operational Command

This chapter will attempt to convey some thinking about the practical application of the Just War Tradition and the legal and ethical principles covered in the earlier chapters. Following a few thoughts on the issues that have prominence at the outset of any new campaign, it will be worth detailing the characteristics of the modern operating environment, before looking in detail at some practical aspects of the legal and ethical conduct of operations.
Peter Wall
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