Killing in the Fog of War

Abstract

Imagine that you are a soldier, fighting in an irregular armed conflict against a non-uniformed enemy that intermingles with 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 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 President of 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 most difficult and important questions in 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 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 rule has been received or interpreted. For example, International Committee of Red Cross, one of world's leading expositors of international humanitarian law, writes following: Obviously, standard of doubt applicable to targeting decisions cannot be compared to strict standard of doubt applicable in criminal proceedings but rather must reflect level of certainty that can reasonably be achieved in circumstances. In practice, this determination will have to take into account, inter alia, intelligence available to decision maker, urgency of situation, and harm likely to result to 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, required level of certainty is not fixed but varies with situation. More precisely, required level of certainty varies with balance of military and humanitarian considerations, including, most importantly, potential harm to your own forces if you hold your fire and potential harm to civilians if you use deadly force. As potential harm to your own forces rises, required level of certainty falls; as potential harm to civilians rises, required level of certainty rises as well. To capture this dynamic, I call this approach the balancing approach. Unfortunately, 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 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 pedestrian railing above your lane. You cannot tell what's in man's hand. What do you do? (3) The U. …