Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Killing in the Fog of War

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Killing in the Fog of War

Article excerpt

Imagine that you are a soldier, fighting in an irregular armed conflict against a non-uniformed enemy that intermingles with the civilian population. Imagine that your unit is under fire and that you see an individual standing on a nearby roof talking on a cell phone. He may be a spotter or a lookout calling in your location, or he may be a bystander warning his family to stay out of harm's way. Now imagine that you are remotely piloting an Unmanned Aerial Vehicle (a "drone"), and on your video monitor you see a group of armed men riding on the back of a truck. These men may be members of an implacable insurgency or merely locals carrying arms for their own protection in a dangerous area. Finally, imagine that you are the President of the United States and that a team of intelligence analysts informs you that they are "between forty and sixty per cent" confident that Al Qaeda leader Osama bin Laden is living in a residential compound in Abbottabad, Pakistan, surrounded by civilians. (1)

What would you do? What may you lawfully do? What should you ethically do? How certain must you be that someone is a combatant (more precisely, a legitimate target) rather than a civilian (more precisely, an illegitimate target) before using lethal force? I believe these are among the most difficult and important questions in the law and ethics of armed conflict. I also believe that these questions have answers.

The relevant legal rules are suggestive but unclear, and have been widely interpreted in ways that are morally indefensible. For example, Additional Protocol I to the Geneva Conventions states that "[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian." One might think this means that a soldier must be certain beyond a reasonable doubt that someone is a combatant before attacking her. But this is not how the rule has been received or interpreted. For example, the International Committee of the Red Cross, one of the world's leading expositors of international humanitarian law, writes the following:

   Obviously, the standard of doubt applicable to targeting decisions
   cannot be compared to the strict standard of doubt applicable in
   criminal proceedings but rather must reflect the level of certainty
   that can reasonably be achieved in the circumstances. In practice,
   this determination will have to take into account, inter alia, the
   intelligence available to the decision maker, the urgency of the
   situation, and the harm likely to result to the operating forces or
   to persons and objects protected against direct attack from an
   erroneous decision. (2)

Similar interpretations of this and related legal rules have been adopted by leading states, scholars, and practitioners. On this approach, the required level of certainty is not fixed but varies with the situation. More precisely, the required level of certainty varies with the balance of military and humanitarian considerations, including, most importantly, the potential harm to your own forces if you hold your fire and the potential harm to civilians if you use deadly force. As the potential harm to your own forces rises, the required level of certainty falls; as the potential harm to civilians rises, the required level of certainty rises as well. To capture this dynamic, I call this approach "the balancing approach."

Unfortunately, the balancing approach rests on morally questionable premises and yields morally indefensible results. Let me briefly explain why. In 2005, U.S. Marines deployed in Iraq were presented with the following scenario as part of their ongoing training:

   You are in a five-vehicle convoy moving ... at 60 mph. As you pass
   under an overpass you observe an adult male, with a grenade-sized
   object in his hand, looking over the pedestrian railing above your
   lane. You cannot tell what's in the man's hand. What do you do? (3)

The U. …

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