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INCOMPLETE DRAFT
FORCE PROTECTION, RISK ACCEPTANCE, AND NONCOMBATANT IMMUNITY:
WHAT RISK SHOULD COMBATANTS ACCEPT TO MINIMIZE HARM TO
NONCOMBATANTS?
John W. Lango
Professor
Department of Philosophy
Hunter College of the City University of New York
695 Park Avenue, New York, NY 10065
john.lango@hunter.cuny.edu
917 318-1929
A Tactical Directive for Counterinsurgency Operations
U.S. and NATO counterinsurgency operations (COIN) in Afghanistan have caused Afghan
civilian casualties. With the goal of limiting such casualties, General Stanley McChrystal,
Commander of those COIN operations, issued recently (July 2, 2009) a Tactical Directive to U.S.
and NATO forces in Afghanistan.1 This Tactical Directive involves, or appears to involve, the
three ideas named in the title of this paper, the ideas of force protection, risk acceptance, and
noncombatant immunity.
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A concept of force protection is stated emphatically in the Tactical Directive:
(NOTE) This directive does not prevent commanders from protecting the lives of their
men and women as a matter of self-defense where it is determined no other options
(specific options deleted due to operational security) are available to effectively counter
the threat.
Traditionally, the just war principle of noncombatant immunity prohibits combatants
from harming noncombatants intentionally. Frequently, however, this principle is also construed
as permitting combatants to cause foreseen but unintended harm to noncombatants, but only if
that harm is not disproportionate. Such a concept of noncombatant immunity is implied, or
appears to be implied, in the Tactical Directive:2
I expect leaders at all levels to scrutinize and limit the use of force like close air support
(CAS) against residential compounds and other locations likely to produce civilian
casualties in accordance with this guidance. Commanders must weigh the gain of using
CAS against the cost of civilian casualties, which in the long run make mission success
more difficult and turn the Afghan people against us.
In Just and Unjust Wars, Michael Walzer revised the traditional noncombatant immunity
principle. In particular, he inserted a qualification about risk acceptance: “If saving civilian lives
means risking soldier’s lives, the risk must be accepted.”3 Such a qualification also occurs in the
new U.S. counterinsurgency field manual (COIN FM): "Combat, including counterinsurgency
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and other forms of unconventional warfare, often obligates Soldiers and Marines to accept some
risk to minimize harm to noncombatants."4 And a comparable qualification is expressed, or
appears to be expressed, by General McChrystal in the Tactical Directive: “I recognize that the
carefully controlled and disciplined employment of force entails risks to our troops -- and we
must work to mitigate that risk wherever possible.”
A crucial reason for limiting the use of force in Afghanistan in order to minimize civilian
casualties is stated in the the Tactical Directive as follows. “We must avoid the trap of winning
tactical victories -- but suffering strategic defeats -- by causing civilian casualties or excessive
damage and thus alienating the people.” Indeed, in the words of the Tactical Directive, this is “an
overarching operational issue,” but also it is “a legal and a moral issue.” While acknowledging
the operational and legal facets of the issue, I am concerned in this paper with the moral facet.
The Question of Risk Acceptance
In particular, I want to investigate the moral question stated in the subtitle. What risk should
combatants accept to minimize harm to noncombatants? I shall term this the question of risk
acceptance. To begin with, I need to sharpen this moral question.
Although jus in bello principles can be used retrospectively to make moral judgments
about past military operations, it is most important that they be used prospectively to make moral
judgments about future military operations, or military operations that are presently occurring.
For their fundamental purpose should be to morally constrain agents from engaging in unjust
military actions. Accordingly, the risk-acceptance question can be reformulated more specifically
as follows. When agents plan a future military operation or reexamine an ongoing military
operation, what risk should they require their combatants to accept in order to minimize harm to
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noncombatants?
The noncombatant immunity principle is controversial. For the sake of brevity, I have to
set aside much of this controversy. How are noncombatants distinguished from combatants?
What is the difference between intentionally harming noncombatants and knowingly but not
intentionally harming them? When agents plan a future military operation or reexamine an
ongoing military operation, are they warranted in expecting that their combatants will not
intentionally harm noncombatants? I shall term the preceding question the question of
intentionality. How is the harm of foreseen but unintended noncombatant casualties to be
weighed against the good of achieving a military objective? When agents plan a future military
operation or reexamine an ongoing military operation, are they warranted in expecting that the
good of achieving their military objective will outweigh the harm of foreseen but unintended
noncombatant casualties? I shall term this last question the question of proportionality. I have to
set aside these and other questions about the principle. In what follows, it is assumed that they
can be answered adequately.
For the sake of clarity, I shall consider only those military operations concerning which
the questions of intentionality and proportionality can be answered affirmatively. I shall term
them proportionate military operations. My purpose is to disentangle controversies about the
doctrine of double effect (DDE) and controversies about the concept of proportionality from
controversies about the idea of risk acceptance. Accordingly, the risk-acceptance question can be
reformulated even more specifically as follows. When agents plan a future proportionate
military operation or reexamine an ongoing proportionate military operation, what risk should
they require their combatants to accept in order to minimize harm to noncombatants? More
briefly, to coin a phrase, the question is this. Within the compass of intentionality and
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proportionality, what risk should be accepted?5
Frequently, when agents plan a military operation, they envisage alternative courses of
action for achieving the military objective. In the Tactical Directive, General McChrystal
mentions military operations with close air support, but there also are ground operations without
air strikes. Once again, in order to disentangle controversies about double effect and
proportionality from controversies about risk acceptance, I shall consider only those courses of
military action concerning which the questions of intentionality and proportionality can be
answered affirmatively. I shall term them proportionate courses of military action. Accordingly,
I shall not consider, for example, military operations of the following two sorts: The most
efficient course of military action would be disproportionate, but the acceptance of sufficient risk
would make it proportionate. The most efficient course of military action would be
proportionate, but the acceptance of too much risk would make it disproportionate.
A key point is that, within the compass of intentionality and proportionality, there can be
alternative proportionate courses of military action, some of which result in more noncombatant
casualties than others. For an illustration, let me sketch hypothetically some planning for a
proportionate U.S. military operation in Afghanistan. A credible intelligence report confirms that
a high-level al-Qaeda leader is hiding in a safe house nestled in the center of a village. In
planning a military operation to kill him, two courses of military action are envisaged, an air
strike and a ground operation. It is expected that, if he were killed by an air strike, quite a
number of noncombatants would be killed. Nevertheless, the proportionality question is
answered affirmatively. Alternatively, it is expected that, if he were killed by a ground operation,
far fewer noncombatants would be killed, but also there would be a significant risk that a few
U.S. combatants would be killed. Nonetheless, this al-Qaeda leader is so high-level that the
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proportionality question is again answered affirmatively, despite the risk of U.S. combatant
casualties. Evidently, a particular risk-acceptance question can be raised about this hypothetical
military operation. In order to minimize harm to noncombatants, should U.S. combatants be
expected to accept this risk of death?
How, then, should the question of risk acceptance be answered? “It is best,” Walzer
maintained, “to say simply that civilians have a right that ‘due care’ be taken.”6 But how should
agents take due care? In Double-Effect Reasoning, T. A. Cavanaugh asserted: “Due care is a
prudential matter about which reasonable people reasonably disagree.”7 To the contrary, I shall
argue in this paper that due care is a moral matter, that the question of risk acceptance can be
answered by means of a deontological principle of distributive justice.
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This paper is incomplete (as of September 29, 2009). Relevant literature appears to be
sparse. Concerning the question of risk acceptance, Cavanaugh remarked: “Most advocates of
double effect have not addressed this question.”8 The question is discussed briefly by Tony
Coady,9 Anthony Hartle,10 and Brian Orend.11 It is discussed at greater length by James M.
Dubik12 and Tony Pfaff.13 In the completed paper, I intend to discuss these and other writings,
especially Walzer’s Just and Unjust Wars.
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Notes
1. Portions of this directive have been publicly released, and are available at
http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf.
2. Instead of the term “noncombatant,” the Tactical Directive uses the term “civilian.”
Disputably, the concept of civilians is different from the concept of noncombatants, but I cannot
engage in that dispute here. The line of reasoning in this paper would not be affected if the word
“civilian” were substituted throughout for the word “noncombatant.”
3. Michael Walzer, Just and Unjust Wars, 4th ed. (New York: Basic Books, 2006), p. 156.
4. The U.S. Army/Marine Corps Counterinsurgency Field Manual (Chicago: University of
Chicago Press, 2007), ch. 7, par. 21.
5. See Walzer, p. 156n. In this note, Walzer interrelates proportionality and risk acceptance.
6. Walzer, p. 156.
7. T. A. Cavanaugh, Double-Effect Reasoning: Doing Good and Avoiding Evil (Oxford: Oxford
University Press, 2006), p. 35.
8. Cavanaugh, p. 34.
9. C. A. J. Coady,, Morality and Political Violence (Cambridge and New York: Cambridge
University Press, 208), pp. 142-5.
10. Anthony Hartle, “Discrimination”, in Moral Constraints on War: Principles and Cases , ed.
Coppieters, Bruno, and Nick Fotion, (Lanham, Md.: Lexington Books, 2002), pp. 146-47.
11. Brian Orend, Michael Walzer on War and Justice (Montreal: McGill-Queens University
Press, 2000), pp. 119-20.
12. James M. Dubik,“Human Rights, Command Responsibility, and Walzer's Just War Theory,”
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Philosophy and Public Affairs 11:4 (Autumn, 1982), pp. 354-371.
13. Paff, Major Tony Pfaff, “Non-combatant Immunity and the War on Terrorism,” JSCOPE
2003. Available at http://www.usafa.edu/isme/JSCOPE03/Pfaff03.html.