Readings: Peter Margulies, "Valor's Vices: Against a State Duty to Risk Forces in Armed Conflict"

By Kenneth Anderson
Wednesday, March 14, 2012, 1:42 PM

Peter Margulies, professor at Roger Williams University school of law and FOL ("Friend of Lawfare") who occasionally contributes commentary to this blog, has a new paper up at SSRN:  "Valor's Vices:  Against a State Duty to Risk Forces in Armed Conflict."  (It will appear as a chapter in a book that also looks quite exciting, New Battlefields/Old Laws: Shaping a Legal Framework for Counterinsurgency, edited by the eminent national security law scholar William Banks, and appearing from Oxford UP in 2012.)

Claims that states have an obligation to put their military personnel at personal risk are offered in several different circumstances.  One is the claim - often seen these days as an argument against drones and related technologies enabling ever more remote and stand-off uses of force - that unless political leadership feels the pressure of the personal risk of their soldiers, they will be tempted to "excessive" resort to force.  I have argued against this claim as illegitimate hostage-taking - by refusing to embrace new technologies that are more sparing of civilians and soldiers in order to keep pressure on political leaders, one immorally holds these parties hostage to pressure political leadership.  A moral policy would insist on direct pressure on political leadership if the concern about "excessive" were perceived as significant.

Another is the claim - one that was most on display in the aftermath of the Kosovo war, and is associated as an argument particularly with Michael Walzer - that the distinction between combatants and non-combatants is absolute in the sense that the only ground on which one could favor combatants and accept collateral damage to non-combatants is military necessity, the necessity of preserving one's fighting forces for military ends.  If there is no issue (as was the case in Kosovo, presumably) that one had the forces necessary to prevail, then military necessity was by definition not an issue, and there could be no justification for collateral damage to civilians.  If one looks, presumably, at the standard proportionality test for lawful and moral collateral damage, if there is by assumption no military necessity at issue, there is no ground by which to incur any anticipated civilian harm.  There is no "military necessity" against which it can be set.

That would be so, under this argument in its most insistent form, even if the anticipated collateral damage were one civilian life and the anticipated military deaths required to prevent harm to that one civilian were 10,000 or, really, any number.  The only limiting factor is not "lives" against "lives" as ends in themselves, but instead military lives solely as pure instrumental means to ends of military necessity.  Until the military deaths bump up against the demands of military necessity, there is no ground - and this is true of Walzer's theory of just and unjust war - for the anticipated death of a civilian.  In practice, military ethics ordinarily avoided these problems with a sufficiently capacious notion of military necessity so as to conceal the real calculation - lives against lives - often conjoined with implicit arguments about inability to anticipate with the required accuracy.  Nonetheless the problem remained.  (I myself asked this question of Walzer at a conference many years ago - in passing, so it was not a serious discussion - but his one line answer was that this was the nature of the combatant-noncombatant distinction. He did not appear then, or now, to offer any relaxation of the line between combatant and non-combatant in this regard.)

This is not how the US military looks at the issue of soldier's lives, as I understand it.  As I have heard explained in many presentations by JAG to other JAG, or to regular line officers, or in other settings, soldiers do not lose their individual rights of self-defense as a human rights matter.  They are entitled to protect themselves and to take risks with civilians and civilian objects to do so - and the reason given at bottom is not that they are war materiel, but because they have their own human rights.  They must do so within the confines of the laws of war, but they retain their individual rights to life.  The difficulty with this argument, of course, is that if the relevant laws of war define lawful collateral damage in terms of military necessity, that concept is entirely instrumental and does not on its face accept the notion of individual human rights of soldiers when set as such against civilian rights.  In practice, then, and given the notorious conceptual difficulties posed by the proportionality test and its weighing of "incommensurables," the US military operates on a casuistical basis of what is taken in practice as acceptable collateral damage and what is taken in practice as risks that must be borne by soldiers.  The operating legal rule is not the abstract collateral damage test, but instead the practices taken as lawful regarding both civilian harm and soldiers' lives-as-lives.

Peter Margulies has taken up this very difficult moral and legal issue, and argues against the Walzerian position.  This is impressive work, whether or not one ultimately agrees with his argumentation.  It is also of increasing importance, given the gradual drift of the laws of war - or at least its academic and advocacy wings - to assign greater and greater obligations to the more powerful, more organized, more technologically equipped side in a conflict.  This puts Margulies' arguments squarely within the broad debate within the laws and ethics of war over the loss of reciprocity and the forced internalization of the costs of compliance with the laws of war on, in practical terms, one party alone.  The paper is powerful in melding moral argument with economics-regulatory arguments around such concepts as signaling behavior and incentives.  As the SSRN abstract says:

This paper questions the claim that armed forces have a categorical duty to risk themselves to protect civilians. Wary of air power that limits risk to an attacking state’s own forces, the great political philosopher Michael Walzer and others have criticized NATO’s Kosovo campaign in 1999 and Israel’s 2008-09 Gaza incursion. While international humanitarian law (IHL) already bars the targeting of civilians and requires proportionality between collateral harm and a military goal, champions of the duty to risk assert that more is required.

Although champions of the duty to risk deploy the rhetoric of valor to justify this new obligation, that rhetoric masks questionable judgment and skewed signals. The duty to risk is a myopic approach that would discourage technological innovation and precautions such as warnings. It would also subject commanders to a withering hindsight bias, in essence imposing strict liability on states for civilian casualties. Finally, the duty to risk send perverse signals in conflicts between states and violent non-state actors like terrorist groups, encouraging non-state groups to intermingle civilian and belligerent operations in order to hamstring state responses. This flawed signaling puts even more civilians at risk.

Lowering civilian casualties calls for a structural approach that enhances deliberation about targeting decisions by military lawyers and senior officials. A state would also have to use the most precise weaponry that is practically available, and use the least amount of force required to disable dual-use targets such as power plants where civilian casualties are likely. Finally, a state would have an ethical obligation to cooperate with international investigations. These measures may not produce more heroes, but they promise to save more civilians.