Military Commanders and the Conduct of Just War

Av Johan Reinboth

A study of the moral dilemmas commanding officers (CO) face in combat

The Commanding Officer (CO) is a moral agent of the state he or she represents. Given their mission to win and the obligation of following the rules of armed conflict, one important question naturally occur:

Are there moral dilemmas reserved to the CO?

I answer the question as follows: Firstly, I will lay out two reasons why the CO as holder of office is a key player in Jus in Bello – somewhat contrary to contemporary emphasis of the «strategic corporal».¹ Secondly, I present and discuss the results from my survey from June 2010, a series of in-depth personal interviews (n=9) of relatively young commanding officers with experience from the tactical level of combat service.

Not unexpectedly, I argue that there indeed are moral dilemmas reserved to the CO, and, with the help of political theorist Michael Waltzer, sort three types of dilemmas already identified before adding two on my own account.

As a side product from the survey, I point out two important trends. First, the principle of proportionality in contemporary warfare seems to be on its way out. Second, excessive force based on dubious means of identification and recognition of target has a low threshold. It is critical that these findings become areas of future research.

Jus in bello and the CO.

Why then, is the CO so important when it comes to the conduct of jus in bello? Is it not sufficient to focus on the soldier as such, independent of rank and position? Surely, every soldier is bound by the rules of war, but I will start answering the question by asking what it is that separates the CO from every other officer.

The following outlines three important issues, of which two are directly related to power and influence, and one to responsibility:

The specificity of the CO – Power

First, the CO is the sovereign on her turf. She is, in the extreme end, the state sovereign’s representative² as both commander and employer. On a ship, for example, she has the power to perform tasks normally related to the state, such as marriage and burial, punishment and reward. She has the power to utilise the weapons of the unit, and ultimately to decide upon life and death of her own crew, the enemy and the non-combatants within the reach of her unit’s weapons. More importantly, she does not share this power with anyone. This fact makes the CO, solely by «holding office»,³ a more influential person than most, whose personal attributes are carefully followed and discussed by the crew. Thus, a COs attitudes and principles, or lack of such, quickly gets adopted by her soldiers.

Second, the CO on the tactical level is the link between the (strategic or) operational level and the tactical level, the battle environment itself. He is the one on the spot. Thus, he is the hub through which orders and directives from a higher level flow, and are interpreted filtered, evaluated against possibilities and capacities and made into sub-orders and tasks before they ultimately reach the soldiers and the environment of battle. No real-time data linked picture can ever replace him. This in turn, makes the CO, solely by «holding office» a maker of premises, and whose personal and professional attitudes and abilities influence both the faith and conduct of his unit.

A well known example to describe both the situation of superiority on one’s turf and that of interpreting orders is one from General Erwin Rommel’s service in Africa during World War II. When he received the famous order from Hitler, saying that all enemy soldiers encountered behind enemy lines should be killed at once,⁴ he simply burnt it. He would not have his men shoot prisoners, and no one could do anything about it.

The specificity of the CO – Responsibility

This responsibility is thoroughly researched in social psychology. Even under extreme deprivation of sleep and food, the one in a group of officers whose turn it is to be in command rises from fatigue and manages to be just a little more ready and attentive than the rest of the group. This is explained by how we adapt to own and others’ expectations of a chosen/not chosen role⁵ thus the term that «one rises» with responsibility. There are other sides to responsibility of command; in the Norwegian Navy, up to approximately the late nineties, a CO of a Fast Patrol Boat would be turned ashore for running aground, regardless of the fact that he himself was not navigating, or even on the bridge.⁶ The parole was that he was responsible for his ship and his crew under all circumstances. In the same manner, rumour has it that German fast patrol boat COs were economically responsible for their ships up until the nineties.

Responsibility however, also takes on less glorious forms, as in the judicial context of responsibility of command, namely command responsibility, and leads the way to the second specificity of the CO, the being accountable of her almost unlimited power. Thus she is, to some extent, responsible for the behaviour of her subordinates.

The juridical element of command responsibility can be divided in two parts, active and passive.⁷ The active part is the actual ordering of a subordinate to commit crimes, or otherwise acting positively to encourage her subordinates to commit crimes. All ICTY, the ICTR and the ICC have similar statutes for this under the formulations «Planning, committing, Instigating, Ordering or Preparing a crime».⁸ This part is relatively easy to judge and prove. The passive part, describes the legal term «mens rea», or the criminal intent of the CO. This is the responsibility of knowing, or having reason to know that your soldiers are about to commit a crime, and failed to take the necessary steps to prevent it, or that your soldiers have committed a crime and you have failed to punish the crimes as they have occurred. Even though duly mentioned in the 1977 additional protocol 1 of the Geneva Convention, the passive part is more controversial, as Danner and Martinez put it: «evidence is circumstantial and therefore necessarily contestable». Furthermore, the trials and sentences of COs on different levels have varied an leaves a certain degree of ambiguity, if not stark contradiction; Japanese General Yamashita was sentenced to death for failing to control his soldiers in the Philippines during WW2 under command conditions severely deteriorated by the enemy. The link between command and actual responsibility was faint, and one could be tempted to say that had he not been on the losing side of WW2 he would probably not be put on trial at all. Walzer is clear on that the «Supreme court (…) failed to do justice to General Yamashita».⁹ Whereas Captain Medina was found not guilty for his men’s conduct at My Lai in 1968 during the Vietnam War under command circumstances and a link between command and responsibility that was clearly more visible than that of Yamashita.¹⁰

The COs and their dilemmas

My findings on CO dilemmas are to a certain extent manageable in the same manner as Walzer has suggested, and I will present them accordingly. I start with the utilitarian argument to defend the breaking of the rules of war, meaning that rules are violated to serve the greater good, namely victory. Next, I present the moral degrading of the enemy as an argument to violate the rules of war. Thirdly is the argument of moral absolutism, meaning that the rules of war should not be violated, no matter the cost of own soldiers’ lives and mission fulfilment. In addition, I suggest two new categories; what I will call hierarchical/organisational dilemmas and dilemmas tied to accidents, or unintentional killing. They have proven to be an important part of combat service, and clearly affect the commander’s ability to fight justly. This somewhat modifies Walzer’s normative argument, and is probably not logical in a political theory sense. Nevertheless, it is a set of challenges that, being real, cannot be neglected.

1. The dilemma of following the rules of war and utilitarianism and the «greater good»

When the goal is to win the fire fight with a minimum loss of own soldiers, or to fulfil the given mission of advancing, the rules of war sometimes stand in the way of progress and victory. In the following, I will give two accounts where the rules of war are left behind in order to achieve the greater good – victory. One is from Northern Ireland and one from Afghanistan. Apart from the fact that the rules of war are steadily broken under the utilitarian argument, there is one important finding here that emerged during interviews that does not strictly have to do with the CO’s dilemmas: the principle of proportionality of force at the tactical level seems to be on its way out.

Covering Northern Ireland riots

The dilemma lies in whether a young commander should follow orders to cover up a situation that clearly displays a gross violation of the safety of civilians or not. Was he to follow his ethics and not cover up, he thought it would put gasoline to the fire regarding the criticism of British actions in Northern Ireland. He solves the dilemma by doing what he is told, and thereby passively accepts what happens, but he draws a clear line to what he will definitely not do, participate actively in the violations.

I was a young CO then, and it was during the «marching season». The Protestants would claim their right to march a specific route, and if the weather was nice, you know there would be riots. My men I and were working with the police to keep a large group of Protestants on the right side of a buffer zone between Catholics and themselves. Then the riots started. My civil commander, the head of police, told me: «I want you and your men to cover the TV - cameras when we go in». The policemen started to throw smoke grenades into the rioting Protestants to dissolve them and went into the group with gas masks and their batons, beating people up quite seriously. People would start to crawl out of the smoke, bloody and messy, and remaining policemen would then beat them as they emerged. My men and I covered the TV-cameras and the journalists, so no one could broadcast the mess. But just afterwards, when we were about to clear the street walking aside some specially-designed vehicles I told my men: «We can cover up cameras, but we don’t beat civilians to pulp».

The commander did neither feel good about his dilemma, nor his decision, but he thought it better than not covering up, and letting the violence of the police be broadcasted.

Afghanistan

We were on patrol in a village, and you could tell we’d end up in a fire fight soon, it was too quiet. I wanted to wait until we were fired upon; we’re supposed to be the good guys. We could have avoided battle by turning and walking away, but it was important to «stay and play», and show who was in control. We wouldn’t let the Taliban spread their propaganda. We prepared for the fight. Ultimately, the fire fight started, but it was dragging out, probably much like trench fighting during World War 1. I made sure no non-combatants were in the target area, called for air support and had them drop a bomb.¹¹

These examples demonstrate the principle of proportionality in contemporary warfare is on its way out. Even though commanders know that they are violating the rules of war, using high explosive measures that are designed to neutralise armoured vehicles or buildings, they seem to accept the violation as being necessary to win rapidly. Thus, the dilemma between fighting in accordance with the rules of war and winning, when it comes to use of disproportionate force is increasingly not perceived as a dilemma. Commanders have pointed two things out clearly: Firstly, their concern for civilians (they would not use disproportionate force when civilian lives are at risk). Secondly; winning a battle and being able to give their own account of what happened to the civilians in an area and as opposed to letting the Taliban tell their version is perceived as important.¹²

2. The dilemma of following the rules of war and the moral urgency of the cause.

If the value of the life of the enemy is degraded in comparison to one’s own life, the repertoire of non-discriminative force widens. Thus, the degree of force to impose collateral damage is seemingly inversely proportional with the perceived value of life of the enemy.¹³ Three accounts exemplify this; one describing early use of unmanned aerial vehicles (UAV) in former Yugoslavia, one describing counter-insurgency operations in Iraq, and the last describing the use of air support in Afghanistan. The two first accounts end well, the first due to the fact that the UAV was not yet carrying weapons. The second ends well due to the combination of a commander’s ethical reflexes and luck. Still, both accounts clearly indicate that the use of excessive force based on dubious means of identification and recognition of a target has a low threshold. This is clearly neither distinguishing combatants from non-combatants, nor using appropriate force according to jus in bello.

The Pilot’s dilemma I: Use of disproportionate force and identification. «The Bosnian wedding»

The dilemma lies in whether a pilot shall use firepower to stop a convoy without proper identification. The dilemma is, I am told, seldom solved in accordance with jus in bello.

My UAV had been shadowing this convoy for quite some time, and I got the order that it had to be stopped. Usually, when armed aircrafts stop a convoy, we neutralise the first and the last vehicle. However, the drone wasn’t armed, so we had to take some time and effort to coordinate with ground forces. Eventually, the convoy was stopped in a peaceful manner. The door of the first vehicle opens, and out comes the bride and the groom. Thank God the UAV wasn’t armed.

The ground commander’s dilemma: Use of disproportionate force and identification.

In the middle of the night, I got a report on a truck moving in my area, loaded with suspicious cargo. Looking at a picture presented to me, I was pretty sure the guy was moving artillery shells. The truck stops at a small house in the middle of nowhere. I decided to send out a patrol to check out if it really was what I suspected. It turned out it was only melons. Who carries melons in the middle of the night? Man, I was this close to giving him a bomb!

In a similar manner as the pilot above, we see a pattern of applying disproportionate force based on scarce identification. The commander clearly indicates that «giving someone a bomb» is common modus operand.

3. Moral Absolutism.

Moral absolutists put the rules of war above their own security. When confronted with the choice between following the rules and winning, the moral absolutist chose the rules, contrary to the utilitarian. The interesting point is that they often focus on the higher mission, or long-term victory, «losing a battle but winning the war».

The dilemma of accepting risk to own soldiers’ lives and mission accomplishing

The CO is responsible for the safety of her soldiers. They rely upon her to make the right judgement on how to fight and to design the fighting in a way that gives minimal casualties of own soldiers and at the same time accomplishes the mission. This dilemma becomes increasingly difficult in peacekeeping or peacemaking operations, where there is no formal enemy, but civilians, who soldiers are supposed to protect against each other in a policing fashion, as in Bosnia. In a parallel manner, the guarding of a secure buffer zone, containing several militias, of which only a few you should fight in order not to disturb a fragile peace, as in Cote d’Ivoire. The main issue is how the commanders risk the lives of their soldiers – as moral absolutists, in order to solve their mission. But also how a commander both risks his men and abandons the tactical mission – to achieve a higher goal, a mission on the operational level. I will give two accounts of different situations, one from Bosnia, dated 2004, one from Cote d’Ivoire dated 2005.

When protecting civilians is the mission.

Mitrovica, Bosnia, 2004: By the bridge of Mitrovica Serbs and Albanians were facing each other, a UN police force was situated on the bridge itself, preventing them from clashing together.

My company was situated on the bank of the river. The water was flowing extremely low in the river that day, and allowed Albanians to try and cross the river without using the bridge. To make a long story short, we got caught between Serbs and Albans throwing stones, glass and grenades at each other. Of course, most of what was thrown never reached the intended target but landed among us, being in the middle. To worsen the situation, militant elements from both sides picked up battle on yet another axis, shooting at each other over our heads. A neighbouring platoon, some Danes, tried to dissolve one of the parties by using tear gas, but both aimed badly and miscalculated the wind, and thus gave us the best part. It was a hard day at the job, we had several wounded, but we managed to keep ourselves together and keep the adversaries apart, and the situation ultimately calmed down. We accomplished our mission.

The moral absolutism is best explained by the fact that the commander never thought of solving the situation with firepower, thinking that it was contrary to the mission.

When protecting peace is the mission

Côte d’Ivoire, 2005:

The overall mission was to keep a part of a buffer zone between the north and the south safe, which was not easy due to different militia profiting from the relative stability to conduct raids and rob people. At the time, there was one group that had to be stopped, and my company got a mission to set up an ambush during the night.

As it turns out, one of my soldiers was sighted by someone, who in turn went to his or her village, gathered some people and came back with guns. The problem is that our adversaries were not the militia we were looking for, and it would be counter-productive to just gun them down, that would worsen the situation. So, in the following fire fight, we take a beating, but we manage to not kill anyone and ultimately withdraw. We failed our mission, but managed to keep the situation from escalating, and thereby accomplished the higher mission, which was keeping the sector safe. We could find the right militia another time.

4. Hierarchical /organisational dilemmas

As shown above, there clearly is a set of CO’s dilemmas that can be sorted and categorised according to Walzer’s just war theory. Just as important, however, are the dilemmas that cannot be categorised, but that nevertheless have an impact on the ability to fight justly. These dilemmas are not accounted for by theorists because they emerge from unclear or unlucky hierarchical problems within or between military organisations, or in the meeting point between military and civil organisations and are deemed to be an internal issue, and thus not a problem to describe on a normative, principle basis.¹⁴ That however, neither makes the dilemmas disappear, nor lose their importance. I will discuss examples of three different dilemmas, namely commander’s integrity, cooperation with other nations’ forces and civil-military confusion to describe this.

Commander’s integrity towards superior orders

Upon asking the COs about their most important responsibility, all have answered that the safety of their men is the most important, sometimes equalled by the importance of accomplishing the mission. Thus, many dilemmas emerge from the tension between the two. What then, when the commander is given a superior order to jeopardise the lives of his or her soldiers in a way that the CO, given the unique knowledge of the environment in which he operates, thinks irresponsible? The moral integrity of the tactical commander is often put at the test, and the result of following orders that are perceived as hopeless, has impact on morale, and may ultimately, affect the ability to fight justly.

The price of useless intelligence

I put my men’s life on the line every time we go on patrol. That‘s not a problem. When on patrol, we sometimes get into fire fights. That’s not a problem either; risk is part of the job.But knowing that all our efforts are useless, that the intelligence we gather is not used (things would look different down here if it was), makes it hard to maintain morale.¹⁵

This situation describes the CO’s perception of useless intelligence missions. The dilemma between own safety and mission accomplishment is difficult, because it is not immediate; it is the steady deteriorating of the perception of meaningfulness and responsibility towards the higher mission. Ultimately, the tension between own soldiers’ safety and mission accomplishing becomes so frustrating that it is hard for the CO to maintain morale. Intelligence is a particularly difficult field to work in, because most aspects are kept secret, and information is given on a «need to know basis» where «the need to know» is determined by someone not present in the actual theatre of fighting. I will not go further than saying that a lack of morale has an impact on soldiers’ ability to fight justly, which is in our first interest.¹⁶

We are left then, with the responsibility of COs on the operational level to give tasks or missions that do not seem meaningless, and if they do, thoroughly explain why, and open up for dialogue with the tactical commander.

«I was not going to cross that river»

The dilemma of safety versus mission is easily recognised in the situation where a superior orders a mission or even worse, how a mission should be executed contrary to better knowledge. It is a moral dilemma of the CO that occurs regularly.

I found myself in the situation of politely trying to tell my superior, who knew the theatre by map only, that this mission was not doable due to terrain constraints. In order to accomplish a mission, one of the things you need to do is to get to the action area in one piece. He had no idea of what it really looked like, and thought I could get my men over a particular river safely. I knew what it was like, I knew what I could and could not do with my men, and I was not going to cross that river.

Jus in bello and working with local forces in another country

In contemporary warfare, where armed forces are often deployed to a foreign country, the CO finds him- or herself working side by side with a local CO of the host country. In this kind of service, difference in values between the two nations’ forces, such as the treatment of civilians, are often discovered. A commander representing one country may find that the host nation commander’s treatment of civilians counter his or her moral values. The dilemma lies in when or, if at all, the commander will intervene in what he or she sees as immoral or unethical behaviour. The matter is both politically, military as well as morally sensitive, thus references, names, locations and time will be left out of the account.

We were on a shooting range in the middle of nowhere. The hosts had finished their training, but we still had some night exercising to do. After a short break, we discovered that a bag with gear was gone. It wasn’t weapons, but still the kind of gear you don’t want to lose. I radioed to the other commander that something was missing and perhaps stolen, and before I had time to think twice, my colleague had organised a search in the vicinity of the range. He told me that the surroundings were inhabited by homeless who’d collect empty cartridges and sell them, and that the gear was probably stolen by them. The effectiveness and the organisation of his soldiers really impressed me. In almost no time they had fanned out, systematically searching the area, dragging out people from the bush. What followed wasn’t equally impressive. They lit a gigantic bonfire, and placed their captives, tied down hands and feet on their backs, so close to the bonfire you could tell they were not comfortable with the heat. Then, in succession, captives were dragged aside, beat up, and asked where our gear was. It didn’t look nice. I went over and told the other CO not to kill anyone, and he said he wouldn’t. In a matter of an hour or so, our gear was found; the homeless released and kicked back into the bush. The search and the interrogation had been effective, but it wasn’t a pleasant experience. I confess I wasn’t prepared to deal with that dilemma.¹⁷

Civil – Military confusion. About being the «wrong tool» and not being able to meet the needs of the local civilians

The dilemma describes the Commander’s choice between one, taking on what he perceives as the important issues in an area of operations, some of which the CO perceives itself to be fully capable of doing, but to which he or she is not formally entitled to do, due to political/strategic regulations, and two, staying with his originally stated task, knowing that doing so doesn’t help the overall, higher mission.

The dilemma typically occurs in peacekeeping and peacemaking operations and describes the crossroads where civil and military interests meet the needs of those who are deemed to need help. This dilemma is easily solved because a soldier can never be more than the «tool» of his or her state’s interests, yet it creates a bit of frustration and a feeling of uselessness.

The head of the village is told that I am the one that is taking care of security for him and his village. I am the one with whom he negotiates. Security for him, however, is also getting fresh water supply, among other things. I can only say that I cannot provide him that, I’m not a driller of wells. I tell him the civilian experts will take care of water supply as long as they feel safe. He does not understand how I can decide upon life and death, running around shooting people, and still neither provide him with important goods, such as first aid material and medicaments, nor decide when the civilian experts shall come in. He sees me as the boss, and cannot see that the only thing I am entitled to do is to watch my own back. So, we both get frustrated.

5. Accidents – unintentional killing

If speaking of war crimes as unnecessary killing, not all war crimes are evil. Some are the result of unlucky conditions, thoughtlessness, or simply stupidity. The CO’s dilemma lies in dismissing a soldier for an accidental war crime versus keeping her given her possibility to improve. In the pragmatic sense, good, experienced soldiers are hard to find. Leadership theory suggests that anyone can make mistakes, and should be given a second chance. This also enhances trust in the organisation. Furthermore, much practical experience suggests that those who have made a mistake once emerge as even better, more careful craftsmen afterwards.¹⁸ On the other hand, there is also the possibility that the accident is being understated, or that the accident was a result of unethical behaviour as a trend, for example misplaced ROE mixed with suspicious «combat practice». There is also an important question here: How should you punish the soldier for making such a mistake? Here, the international humanitarian law is crystal clear: from Command responsibility follows that a CO failing to punish crimes as they occur will himself be guilty. The problem of this rule is that it says nothing about the punishment itself. The question of how to determine if the act was intentional – and thus punishable is also difficult. Yet another aspect is how unintentional killing as «accidents» is perceived by the state; accidents to own soldiers are a major concern, but accidents to «others» perhaps less so.

Iraq:

Some men are observed in a truck on a highway. A weapon is sighted. I decide the truck has to be stopped, and I radio the order to stop the truck to one of my team leaders, who in turn order his gunner, carrying a 50 calibre rifle to stop the car by shooting at the truck’s engine. Things go badly from here. An unlucky ricochet or debris from the engine seriously hurts the man sitting in the right front seat; he has a hole in his throat/neck and is bleeding a lot. The team leader radios back to me, and tells about the mess. I arrive with a medic, who manages to stabilise the patient, while I call for a medical evacuation.

The CO handled the post-combat situation like this: The gunner was credited for doing his job well, under the rationale that he did only as he was ordered, and had no precondition to see the consequences of his act. The team leader, on the other hand got a serious reprimand for acting unwisely: «…I told you to stop the f…. truck, not everything in it!»

The CO did not dismiss his men, nor did he court-martial them. They turned out to become two of his best and most trusted soldiers. There never was any additional investigation of the accident.

Conclusion

There clearly are moral dilemmas reserved to the CO. Even though each case is unique, the dilemmas seem universal and relatively easy to categorise, namely the utilitarian dilemma, the moral degrading dilemma, the moral absolutist’s dilemma, the hierarchical/organisational dilemmas, and lastly dilemmas tied to accidents. More alarming, the principle proportionality in contemporary warfare seems to be on its way out.

Second, excessive force based on dubious means of identification and recognition of target has a low threshold. In my opinion, it is critical that these findings become areas of future research.

Thus, states should ideally not only have a good incitement to train their COs thoroughly in solving moral dilemmas, they should also have a good idea on how to do it.

Johan Reinboth (f. 1972). Sjøkrigsskolen 2001, MTB sjef 2005, UNIFIL II på kysten av Libanon 2006/7. Master of Arts in International Affairs, the American University of Paris 2010. Sjef KNM Steil fra 2010.