Ethical Issues in Counterterrorism Warfare
By Dr. Martin L. Cook
September 2001
Introduction
Much has been said and written in recent
weeks about the changed nature of “warfare” as it pertains to
responding to the attacks on the Pentagon and the World Trade Center.
The fact that attacks of such vast scale are made directly on US soil
by non-state actors poses important new questions for military leaders
and planners charged with conceiving an appropriate and effective response.
The established moral and legal traditions
of just war are similarly challenged. Forged almost entirely in the context
of interstate war, those traditions are also pressed to adapt to the new
and unforeseen character of a “war against terrorism.” This
paper is a preliminary effort to extrapolate and apply existing fundamental
moral principles of just war theory to this novel military and political
terrain.
Fundamental Moral Principles
The theoretical framework of the just war
tradition provides two separate moral assessments of uses of military
force. The first, jus ad bellum (right or justice toward
war) attempts to determine which sets of political and military circumstances
are sufficiently grave to warrant a military response. It focuses on the
“just cause” element of war, and attempts to determine whether
use of force to redress a given wrong has a reasonable hope of success
and whether non-violent alternatives have been attempted (the “last
resort” criterion) to redress the grievance. Given the horrendous
loss of innocent American (and other) life in these recent attacks, it
is without serious question that a just cause exists to use military force
in response to those attacks. However, legitimate questions remain regarding
reasonable hope of success given the difficult and diffuse nature of the
perpetrators of these events. Indeed, the very definition of success in
conflict of this sort is to some degree ambiguous.
The second body of assessments concerns
jus in bello, right conduct of military operations. The central
ideas here concern discrimination (using force against those who
are morally and legally responsible for the attack and not deliberately
against others) and proportionality (a reasonable balance between
the damage done in the responding attack and the military value of the
targets destroyed).
These fundamental moral principles continue
to have force, even in the quite different “war” in which we
are now engaged.
Jus ad bellum considerations
The scale and nature of the terrorist attacks
on the US without question warrant a military response. The important
questions about jus ad bellum are confined to the other questions
the just war tradition requires us to ask regarding the ability to respond
to those attacks with military force that will, in fact, respond to the
attackers themselves and be effective in responding to the wrong received.
Just cause requires that we identify with
accuracy those responsible and hold them to be the sole objects of legitimate
attack. Who are those agents? In the first instance, those directly responsible
for funding and directing the activities of the now-deceased hijackers.
There is a tremendous intelligence demand to identify those agents correctly.
But, having identified them to a moral certainty (a standard far short
of what would be required by legal criteria of proof, it should be noted),
there is no moral objection to targeting them. Indeed, one of the benefits
of framing these operations as “war”rather than “law enforcement”
is that it does not require the ideal outcome to be the apprehension and
trial of the perpetrators. Instead, it countenances their direct elimination
by military means if possible.
What of the claim that we may legitimately
attack those who harbor terrorists, even if they are not directly involved
in authorizing their activities? The justification for attacking them
has two aspects: first, it holds them accountable for activities which
they knew, or should have known, were being conducted in their territories
and did nothing to stop; second, it serves as a deterrent to motivate
other states and sponsors to be more vigilant and aware of the activities
of such groups on their soil.
How far ought the moral permission to attack
parties not directly involved extend? I would propose application of a
standard from American civil law: the “reasonable person” (or
“reasonable man”) standard of proof. This standard asks not
what an individual knew, as a matter of fact, about a given situation
or set of facts. Instead, it asks what a reasonable and prudent person
in a similar situation should know. Thus, even if a person or government
truthfully asserts that they were unaware of the activities of a terrorist
cell in their territory, this does not provide moral immunity from attack.
This standard asks not what they did know, but what they ought
to have known had they exercised the diligence and degree of
inquiry a reasonable person in their circumstance would have exercised.
Also, legitimate targets include more than
those who have carried out or are actively engaged in preparing to carry
out attacks against US citizens and forces. There will presumably be numerous
individuals who, in various ways, assisted or harbored attackers, or who
possessed knowledge of planned attacks. From a moral perspective, the
circle of legitimate targets surely includes at least these individuals.
A rough analog for the principle here is the civil law standard for criminal
conspiracy: all those within the circle of the conspiracy are legitimate
targets. The analogy is not perfect, but in general it justifies attacks
on those who possessed information about the contemplated terrorist activity
or who supplied weapons, training, funding or safe harbor to the actors,
even if they did not possess full knowledge of their intent.
Jus in bello considerations
How do ethical considerations constrain the
manner of attack against legitimate adversaries? The traditional requirements
of just war continue to have application in this kind of war. Attacks
must be discriminate and they must be proportionate. Discrimination
requires that attacks be made on persons and military objects in ways
that permit successful attack on them with a minimum of damage to innocent
persons and objects. In practical terms, this requires as much precision
as possible in determination of the location and nature of targets. Further,
it requires choice of weapons and tactics that are most likely accurately
to hit the object of the attack with a minimum of damage to surrounding
areas and personnel.
Proportionality imposes an essentially common-sense
requirement that the damage done in the attack is in some reasonable relation
to the value and nature of the target. To use a simple example: if the
target is a small cell of individuals in a single building, the obliteration
of the entire town in which the structure sits would be disproportionate.
There are two important real world considerations
that bear on this discussion. The first is military necessity. Military
necessity permits actions that might otherwise be ethically questionable.
For example, if there simply is no practical alternative means of attacking
a legitimate target, weapons and tactics that are less than ideal in terms
of their discrimination and proportionality may be acceptable. It is important
not to confuse military necessity with military convenience.
It is the obligation of military personnel to assume some risk in the
effort to protect innocents. However, situations can certainly arise in
which there simply is not time or any alternative means of attacking in
a given situation. There, military necessity generates the permission
to proceed with the attack.
The other consideration is the tendency of adversaries of this type to
co-locate themselves and their military resources with civilians and civilian
structures in order to gain some sense of protection from such human shields.
Obviously, when possible, every effort should be made to separate legitimate
targets from such shields. But when that is not possible, it is acceptable
to proceed with the attack, foreseeing that innocent persons and property
will be destroyed. The moral principle underlying this judgment is known
as “double effect,” and permits such actions insofar as the
agent sincerely can claim (as would be the case here) that the destruction
of the innocents was no part of the plan or intention, but merely an unavoidable
by-product of legitimate military action.
It is important to note, however, that
there can be no just war justification for a response to these attacks
with attacks of a similar character on other societies. Not only would
this constitute an unethical and illegal attack on innocent parties, it
would almost certainly erode the moral “high ground” and widespread
political support the US current enjoys.
The moral status of the adversary
The individuals who initiated the terror
attacks are clearly not “soldiers” in any moral or legal sense.
They, and others who operate as they did from the cover of civilian identities,
are not entitled to any of the protections of the war convention. This
means that, if captured, they are not entitled to the benevolent quarantine
of the POW convention or of domestic criminal law. For the purposes of
effective response to these individuals, as well as future deterrence,
it may be highly undesirable even if they are captured to carry out the
extensive due process of criminal proceedings. If we can identify culpable
individuals to a moral certainty, their swift and direct elimination by
military means is morally acceptable and probably preferable in terms
of the goals of the policy.
However, as this conflict proceeds, especially
if ground operations commence against fixed targets, one may foresee that
individuals and groups may come to operate against US forces as organized
military units. It is important to keep in mind that, no matter how horrific
the origins of this conflict, if and when this occurs and such groups
begin to behave as organized units, to carry weapons openly, and to wear
some kind of distinctive dress or badge, they become assimilated to the
war convention. At that point, close moral and legal analysis will be
required to determine the degree to which they become entitled to the
status of “combatant” and are given the Geneva Convention protection
that status provides. The previous permission for swift elimination applies
to the period in which they operate with civilian “cover.” Should
elements of the adversary force eventually choose to operate as an organized
military force, the long-term importance of universal respect for the
Geneva Convention’s provision would make our treating them at that
point as soldiers under the law the preferred course of action.
This essay was originally prepared by Martin L. Cook at the direction
of the Office of the Deputy Chief of Staff, Operations, US Army. Used
by permission of the author. Before being appointed to the faculty of
the Army War College, Dr. Cook taught in the Dept. of Religious Studies
at Santa Clara University.
Related articles by Martin L. Cook:
"'Immaculate War': Constraints on Humanitarian Intervention,"
Ethics and International Affairs 14 (2000).
"Moral and Legal Restraint in Warfare," Ethics and International
Affairs 10 (1996).
"Moral Foundations of Military Service," Parameters
30/1 (Spring 2000), on the web at
http://carlisle-www.army.mil/usawc/Parameters/00spring/cook.htm.
"Soldiering: Can Christians Serve in the Armed Forces?" Christian
Century, July 4-11, 2001, 22-25.
Martin L. Cook is a Elihu Root Professor of Military Science and Professor
of Ethics
Department of Command, Leadership, and Management
US Army War College
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