Killing enemy combatants--a justification
The profession of arms talks about ‘morality and war’ using legal terms and concepts. For example, we justify our decision to deploy and fight when the President orders us because we signed a contract to obey the officers appointed over us. Similarly, we consider ourselves blameless when we kill enemy combatants as long as we do not violate the laws of war or the rules of engagement in doing so. These legal rules are so important to our professional identity that all soldiers receive instruction on the laws of war in basic combat training and then annually thereafter, and soldiers at war review the rules of engagement much more often, sometimes daily.
Not everyone in our society, however, accepts these legal answers to moral questions. War pacifists are people who believe that war is morally unjustifiable. They claim that soldiers are morally wrong to participate in war and to kill other human beings, regardless of what’s legally permissible at the time.
Currently, we military leaders do not do enough to prepare our soldiers to understand and justify their actions in moral terms. This not only leads many soldiers to needlessly suffer moral guilt, but it also leaves them vulnerable to the arguments of war pacifists. Our troops deserve better from us.
In this essay, I investigate “morality and war” from a soldier’s perspective without resorting to legal justifications. My intent is to empower our profession to better understand the moral reality of war. What I write here is not doctrine. I speak only for myself—a career officer and Army-educated ethicist—and hope that our discussions around this topic will deepen our commitment to and comfort with our vocation as warriors.
This paper is divided into two sections. The first section puts forth an explanation of why soldiers are morally justified in killing enemy combatants, and it offers a framework for moral decision-making in those tragic circumstances of war when our actions will likely cause unintentional harm to non-combatants (i.e., collateral damage). The second section challenges the age-old notion of the “moral equality of soldiers” and suggests that soldiers’ moral justification for killing in war depends on the overall justice of the war.
Section I: Killing in War
thesis: When we kill enemy combatants, we are not violating their rights to not be killed, because they have already forfeited that right by their free choice to violate the rights of others not to be killed.
The term “right not to be killed” also makes clear that we possess rights only in relation to other human beings. If a dog bites us, the animal has not violated our rights. Perhaps the dog’s owner has, if she negligently allowed the dog to roam unleashed, but the dog itself cannot be said to have violated our rights. We possess rights only in relation to other human beings who can be held accountable for their choices.
Our rights as human beings put limits on how others can act towards us. One person’s right has priority over another person’s freedom. For example, my right not to be killed trumps my angry neighbor’s freedom to kill me over our dandelion dispute. Were he to kill me, he would commit a moral wrong. To paraphrase the philosopher J. S. Mill, we possess the freedom to choose our actions provided they do not violate the rights of another. Rights must trump freedoms, if rights are to have any meaning at all.
Rights themselves are absolute, but possession of them is not. People forfeit their rights if and while they are engaged in violating the rights of others. This explains the rights of self defense and defense of others. When an attacker violates the right not to be killed of those who possess it, he forfeits his own right not to be killed.
Enemy combatants are people who are engaged in violating and threatening the rights of others not to be killed or enslaved. Thus, when we kill combatants, we do no moral wrong; we violate no rights. In fact, we vindicate the rights of those people whom the enemy combatants were threatening.
The Problem of Collateral Damage
thesis: In war, the least morally wrong option is the morally right choice.
War would be morally less complicated if our enemy would agree to face us on a field of battle away from noncombatants. That way, we could be sure to kill only those who had already forfeited their right not to be killed.
Unfortunately, our enemy is our enemy precisely because he seeks the death of non-combatants, if not by his own guns than even better by ours. Thus, we must fight against an enemy who hides among noncombatants, using them as human shields to create for us a moral dilemma—whether to protect the noncombatants (which is our end, or goal) or to kill enemy combatants (which is a primary means to achieve our goal).
What should a soldier do when faced with a situation in which a proposed plan of action to kill enemy combatants will likely also kill noncombatants? It is impossible to say outside of the context of the particular battle space; the soldier will have to make difficult decisions that involve tradeoffs. The decision, however, should be based on a framework that respects the rights—short-term and long-term—of those who still retain them, i.e., their own soldiers and noncombatants.
A Framework for Choosing a Course of Action
In a situation where a combat action could foreseeably risk the rights of non-combatants, soldiers are morally obligated to choose the course of action that in their judgment best respects the rights of those affected. Leaders must take into account: the mission, their fellow soldiers, and non-combatants.
Mission accomplishment can be understood in terms of rights. In a just war, the overall mission is to defend human rights. The many missions that subordinate units accomplish in support of that overall mission are the means by which the overall mission gets accomplished. These sub-unit missions may vary in how directly and substantively they support the overall mission, but they do contribute. The more directly and substantively they contribute, the more significance they have to supporting human rights. Any mission, then, can be evaluated in terms of its importance to the long-term defense of rights of everyone involved.
Military leaders must also take into account the rights of their own soldiers, who are fighting to defend the rights of others. Although soldiers are volunteers who willingly accept the risks of their profession, their leaders must develop and choose courses of action that accomplish the mission without unduly risking the lives of those entrusted to them.
Finally, leaders must incorporate the rights of potentially affected noncombatants into their course-of-action analyses. To some in our profession, the leadership mantra “Mission First, People Always” is interpreted as “Mission First, Soldiers Always,” thus overlooking our duty as military professionals to protect noncombatants. The fact is, every human being possesses the right not to be killed, unless by his own choice to violate the rights of someone who retains her rights, he forfeits his own right. This is not a binary condition; people can forfeit some of their rights claim, according to their participation in a rights violation. Thus, civilians can lose some of their right to not be killed if they support the rights-violating activities of enemy combatants. For example, a noncombatant who allows enemy combatants to assemble in her house forfeits much of her right to not be killed, so it is less of a moral wrong to take action against morally legitimate targets that results in her death.
Because there are, in combat situations, a nearly infinite number of possible situations involving varying levels of risk to mission, soldiers, and noncombatants, it is impossible to develop a flow-chart-like algorithm that would produce morally justified courses of action. Leaders have to assess their particular situations and use their professional judgment. As a guideline and to foster discussion on this important topic, I offer the following two examples to demonstrate how the Mission-Soldiers-Noncombatants framework can inform leaders’ decisions.
Situation 1: a water-supply convoy that is moving through a built-up area in a town receives poorly aimed small-arms fire to their flank at 250 meters.
Analysis 1: in this situation, accomplishment of the mission (water re-supply) does not require the soldiers to kill their attackers. In the big story of the war, the ambush will not even be a footnote. Also, given the distance of the ambush, the safety of the soldiers is not a major issue as they continue their mission. Finally, there is no evidence that the noncombatants who may be in the line of fire to the ambushers have forfeited their own rights not to be killed.
One reasonable conclusion: the soldiers would NOT be justified in returning large volumes of un-aimed fire. The risk to the rights of noncombatants would not be balanced by a commensurate benefit to mission accomplishment (long-term rights) or force protection (soldiers’ rights).
Situation 2: an infantry unit that is deliberately attacking a fortified urban area is receiving effective fire from an enemy strongpoint that is adjacent to the occupied homes of non-combatants. Civilians in the area had been warned about the attack and given opportunity to relocate. The enemy fire has halted the main effort of the operation.
Analysis 2: in this situation, accomplishment of the mission does require destruction of the enemy. Our own soldiers are already at great risk; their loss of momentum is likely providing the enemy time to maneuver. Moreover, other soldiers in adjacent units are relying on the soldiers’ continued progress to protect their flanks. Finally, the civilians had the opportunity to escape the situation, so they must bear some of the risk; they have compromised some of their own rights not to be killed.
One reasonable conclusion: destroy the enemy position with direct tank or fighting-vehicle fires. Respect for noncombatant rights should limit our use of less discriminating systems such as unguided field artillery and close-air support. Respect for our own soldiers’ rights impels us not to attempt a dismounted assault.
Section II: The Supposed “Moral Equality of Soldiers”
Traditional Notion of the Soldiers’ Moral Equality
thesis: Those who defend rights do not forfeit their own rights.
My argument thus far has assumed that we are the “good guys” and enemy combatants are the “bad guys”; that we retain our right not to be killed while they have forfeited theirs. Believe it or not, the long tradition of just-war thought rejects this notion—instead claiming that all combatants, on both sides of a conflict, are “moral equals” (Walzer 1977; Christopher 1999).
Briefly, the argument for the “moral equality of soldiers” states that since combatants on both sides take up arms against each other, then all combatants are both threats to their enemy and threatened by their enemy. Combatants on both sides, by this account, are equally guilty of being threats, so they all forfeit their right to not be killed. Consequently, all combatants are also equally innocent of violating their enemy’s rights. Thus, soldiers on both sides are moral equals, and no moral wrong is committed when one combatant kills another.
The moral equality of soldiers has an obvious superficial appeal to both soldiers and politicians. To soldiers, it anesthetizes them of their responsibility to fight only for a just cause, and it relieves them of any moral responsibility for killing enemy combatants. To politicians, it ensures that their armies will wage the wars they launch. We should not be surprised, then, that the moral equality of soldiers has been written into the laws of war. It makes war more palatable, morally and politically.
Moral Implications of the Moral Equality of Soldiers
thesis: To subscribe to the moral equality of soldiers is to equate soldiers to mafia thugs or gang members, no better or worse than their enemies.
Should we accept the idea that enemy combatants are our moral equals? As a soldier, I am offended at the claim that soldiers who fight for human rights and freedoms have the same moral standing as those who fight for Nazi or Islamist fascism. Moreover, as an ethicist, I am concerned that we would accept an argument that rationalizes killing on the basis that no one is morally wrong because everyone is morally wrong; i.e., all combatants have forfeited their right to not be killed, so none of them is wrong to kill each other. This line of reasoning has implications that we should be unwilling to accept. As we will see in the ensuing paragraphs, it is only the moral inequality among people in a context that gives killing in self defense its moral authority.
Consider, for example, a situation in which someone who has forfeited his right not bo be killed engages in conflict with someone who retains that right. Imagine that an armed bank robber has taken a hostage at gunpoint. By threatening the life of the hostage, the robber has forfeited his right not to be killed. Imagine further that a police officer then arrives at the scene and aims her firearm at the robber. Has the officer done anything wrong? No. Not only has the robber already forfeited his right not to be killed, but also the police officer has an obligation to protect innocent people, including the hostage. Would we say that the police officer, by virtue of “threatening” the robber, forfeits her own right not to be killed? Would the robber be justified in shooting the officer in “self defense”? Of course not, on both counts. Context matters. The officer cannot violate the rights of someone who has already forfeited them. The moral inequality between the robber and police officer makes it morally acceptable for the officer to kill the robber, but not vice versa.
Consider, on the other hand, a situation in which all parties have forfeited their rights not to be killed. Imagine two organized crime “families” that make their money by threatening the lives of businessmen and who compete over the same turf. They are “at war,” ready to knock off their rival extortionists at any opportunity. In this situation, “family members” on both sides who participate have forfeited their rights not to be killed. If a member of one family attacked someone from the other family, there would be no violation of rights. If the body guards fended off the attack and killed the attacker, they would not be morally justified. Nor, by this argument, would they be morally wrong. They would simply be killing in self interest, not justified self defense. In itself, that is not a violation of rights. However, if any innocent bystanders were killed in the exchange, the Mafioso would bear a grave moral burden, because they would have violated the victims’ rights to not be killed, and have done so for no morally worthy reason.
Are American soldiers analogous to the police officer or to the mafia hit men? Are we defenders of rights or amoral mercenaries? To subscribe to the moral equality of soldiers is to equate soldiers to the mafia thugs, no better or worse than their enemies. On the other hand, to subscribe to the idea that soldiers are analogous to the police officer entails that soldiers must act for a just cause. Soldiers must maintain their moral authority by threatening only those people who have already forfeited their rights not to be killed, and they must not do anything that forfeits their own rights. In other words, they have to fight in wars that are just. Is this a reasonable requirement?
The notion of the moral equality of soldiers can be traced to the Medieval Age and the concept of soldiers’ “invincible ignorance.” Invincible ignorance was the claim that soldiers are either too ignorant or uninformed, or both, to determine whether their side is the aggressor or the defender in a war. Thus was born the conditions that gave rise to the moral equality of soldiers. These conditions, however, no longer apply, at least not in the developed world. Perhaps it was once the case that soldiers were invincibly ignorant, when feudal lords rallied their illiterate serfs to battle, but it is certainly not true today. Today’s soldiers are educated and have access to a wealth of information. To assume that all soldiers are “invincibly ignorant” and thus incapable of judging the justice of a war is misinformed, inaccurate, and insulting to soldiers.
 The right to not be killed and the right to not be enslaved are both rights that are worth killing and dying for. For the sake of brevity, in this article I will refer only to the right to not be killed, but the same argument applies to the right to not be enslaved.
 For the sake of brevity, in this article I will treat “violate rights” to include “threaten imminently to violate rights.” We do not have to wait for our rights to be actually violated for the violator to forfeit his or her own rights.
 The right of self defense and the right to defense of another are distinct but based on the same principles. Also, the justification of killing in war relates to both rights. For the sake of brevity in this article, I will refer only to the right of self defense, but the right to defend another also applies.
Christopher, P. (1999). The Ethics of War and Peace: An Introduction to Legal and Moral Issues. Upper Saddle River, NJ, Prentice Hall.
Walzer, M. (1977). Just and Unjust Wars: A Moral Argument with Historical Illustrations. United States of America, Basic Books.