Ethics Under Fire: Challenges for the Australian Army
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Ethics Under Fire: Challenges for the Australian Army
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Product Details
| ISBN-13: | 9781742242859 |
|---|---|
| Publisher: | UNSW Press |
| Publication date: | 10/19/2017 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 320 |
| File size: | 2 MB |
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CHAPTER 1
WHY ETHICS MATTER
CHARLES J DUNLAP JNR
British war historian Geoffrey Best stated it simply: '[I]t must never be forgotten that the law of war, wherever it began at all, began mainly as a matter of religion and ethics.' Both national and international law hope to achieve a common ethic in warfighting, creating codes and rules of engagement by which national militaries conduct themselves. But when it comes to war in the 21st century, is compliance with the requirements of the law enough? Beyond the law, does adherence to ethical principles pragmatically facilitate battlefield success?
The law of armed conflict (LOAC) 'obliges belligerent nations to keep their armed forces disciplined under responsible command'. Rules of engagement practised by troops in the field, which incorporate both law and policy, are only a small part of battlefield discipline. LOAC sets minimum standards for the conduct of war, with the goal of minimising unnecessary suffering and facilitating the return to peace. Examples of these minimum standards include a distinction between combatants and civilians, a special status for chaplains and medics, and an obligation to treat the sick and wounded humanely.
Unfortunately, even with these rules in place, lapses occur. Former United States Secretary of Defense Chuck Hagel – a Vietnam veteran himself – highlighted the importance of trust in a memorandum released on the eve of his retirement from office. In this memorandum he emphasised how critical it is for personnel to conduct themselves honourably. Hagel stressed that trust is essential to the military's self-regulated apparatus. General Martin Dempsey, the Chairman of the Joint Chiefs of Staff, speaking at a West Point graduation, likewise underlined this point: 'We trust you [...] We trust you to win our nation's wars, to be leaders of character and competence and consequence [...] We trust you to leave our profession better than you found it'. These two high-ranking officials believe that trust within its ranks – as well as the perception of it to those outside of the armed forces – is integral to military success.
But is a trustworthy military really important to the people it serves? Instances where the implicit trust between the military and civilian population has failed reveal that a positive relationship between these two groups allows national security policies a greater probability of success. The atrocious violations at Abu Ghraib by American military personnel brought into question the United States military's reputation and brought into the public sphere internal lapses in ethical conduct. From a broader view, '[i]t is fair to say that Western societies expect their militaries to unfailingly demonstrate the highest ethical standards regardless of the circumstances'. Policy is more likely to succeed when civil–military trust levels are high, and individual military members who misbehave threaten this institutional trust.
With this at stake, recruiting ethical individuals should be a priority. Based on available polling of Americans and Australians, trust in the military appears to be integral to future recruitment. In the United States, 78 per cent of Americans see 'military officer' as a prestigious occupation and 64 per cent of adults would encourage a child to become a military officer. Further, 18–24-year-olds are more likely than older adults to encourage a child to pursue an officer position. In a Gallup Poll asking American citizens about their confidence in state institutions, the military maintained a consistent positive confidence rating of 73 per cent from 2008 to 2016. These are important statistics when keeping in mind that the United States military is sustained by an all-volunteer core.
In Australia, the Australian Defence Force (ADF) and the Department of Defence recognise that new military technology and the course of modern warfare require specific recruiting. 'As our defence capabilities become more technologically complex, recruiting Australians with the right skills mix for these capabilities will be even more important. It is not enough to have the best equipment – it needs to be operated and supported by the best people'. They see this as a major challenge. Fortunately, public opinion of the Australian military remains high and will likely support recruitment. In a study on the perceptions of corruption and ethical conduct held by the Australian public, confidence was highest in the armed forces (85 per cent). What would be the effect, if any, on the all-volunteer force if public trust eroded because of ethical failings? It is hard to conceive that the best and brightest the armed forces needs would want to join an organisation that has lost public trust.
The implications for ethical failures on the relationship between national militaries and the public they serve are substantial. But moral and ethical fighting behaviour can also affect warfighting capability on the battlefield. We recognise the power of perception today with the 'weaponisation' of ethics by our chief adversaries. Professor William Eckhart observes:
Knowing that our society so respects the rule of law that it demands compliance with it, our enemies carefully attack our military plans as illegal and immoral and our execution of those plans as contrary to the law of war. Our vulnerability here is what philosopher of war Carl von Clausewitz would term our 'center of gravity'.
Armed conflict, particularly when prosecuted by democracies, requires robust public support. In their book The Laws of War, W. Michael Reisman and Chris Antoniou suggest '[t]hat support can erode or reverse itself if the public believes that the war is being conducted in an unfair, inhumane or iniquitous manner, regardless of how worthy the political objective':
[Bin Laden's] guerrilla war, with women and children as collateral damage, is part of a broader military strategy to ensnare the United States in a larger East-West conflict [...] the September 11 attack [according to an expert] was to be so 'audacious, impudent and massively inhumane' as to ensure a massive, inordinate United States retaliation that would further inflame Muslim opinion against the United States and the Arab regimes allied with Washington. [Emphasis added.]
This 'weaponisation' of ethics is strategic in nature, and it bears Clausewitzean features. We can recognise this relationship mentioned above between the military and the public as one element of Clausewitz's 'remarkable trinity'. In the trinity, the Government, the Military and the People make up an interactive set of forces that collectively drive the events of war. Public opinion shapes the government's policy-making, and the government must justify its actions to the public. Public opinion also influences military doctrine, and the military's doctrine may influence public opinion. Finally, military strategies influence policy objectives, and the government influences military resources.
The Western approach to war traditionally seeks to destroy the enemy's capability to wage war through strategies of denial. Today's adversaries are not seeking to militarily defeat the West through purely kinetic force per se, but rather to win by separating the People from the Military and the Government. In other words, to erode public 'will'. As a prime example, the torture at Abu Ghraib was rightly deemed an 'ethical implosion' by the journalist Seymour Hersh. General David Petraeus, then-head of the United States Central Command, summed up America's struggle with this unanticipated form of warfare: 'Whenever we have, perhaps, taken expedient measures, they have turned around and bitten us in the backside'. Whenever Americans have used methods that violated the Geneva Conventions or the standards of the International Committee of the Red Cross, he said: 'We end up paying the price for it ultimately. Abu Ghraib and other situations like that are non-biodegradable. They don't go away. The enemy continues to beat you with them like a stick'.
There may be a link between this tragic event and the origins of the continuing strategy of the Islamic State in Iraq and Syria (ISIS). News outlets have reported that Islamic State militants are hiding among civilians, employing them as human shields and then claiming that the United States-led coalition is targeting innocent people during air strikes. In June 2016, ISIS was able to turn back Iraqi forces from Fallujah with the use of human shields. This tactic has also made it extraordinarily difficult for Iraqi Security Forces and coalition air support to root out the ISIS fighters.
Moral and ethical behaviour can substantially affect war fighting capability in coalition operations. 'A perception of poor conduct by a belligerent erodes the just cause of war and undermines its legitimacy because causing unnecessary deaths or damage is seen as counter to international norms and customs. In modern coalition warfare, attention to the law of war is a strategic imperative' (emphasis added). As Brian Egan, the legal advisor to the State Department, explained in early 2016:
It is not enough that we act lawfully or regard ourselves as being in the right. It is important that our actions be understood as lawful by others both at home and abroad in order to show respect for the rule of law and promote it more broadly, while also cultivating partnerships and building coalitions.
Egan rightly points out that a state at war must now be able to demonstrate to the global community that its 'most consequential national security and foreign policy decisions are guided by a principled understanding and application of international law'.
The German experience in the Second World War demonstrates another outcome of the failure to engage in ethical warfare in compliance with international law. According to British historian Richard Overy, German troops during the war were indoctrinated with the image of a 'bestial enemy' and given licence to fight by any means, criminal or otherwise. As a result, '[t]he criminalisation of warfare produced a growing indiscipline and demoralisation among German forces themselves. The German army shot fifteen thousand of their own number [...] The regime imposed ever more draconian terror on its own forces to keep them fighting'. The perception of moral conduct clearly still matters. Furthermore, a military's enforcement of an ethical culture will likely aid in deterring law-breaking. This was illustrated early in the post-9/11 era when American military lawyers found themselves at odds with their civilian, political-appointee counterparts. Professor Richard Schragger noted:
Military lawyers seem to conceive of the rule of law differently. Instead of seeing law as a barrier to the exercise of the client's power, these attorneys understand the law as a prerequisite to the meaningful exercise of power. Law allows our troops to engage in forceful, violent acts with relatively little hesitation or moral qualms [emphasis added].
Schragger explains that law makes just wars possible. A set of ethics that aligns with international law creates what he calls a 'well-defined legal space' where 'soldiers can act within this space safely and thus more efficiently, without having to resort to their own personal moral codes'. But why should an individual soldier not retain some personal moral code on the battlefield? The United States military has examined this issue, balancing soldiers' private rights with maintaining order and command: 'The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order'. In a pluralistic nation with a multitude of personal moral codes, allowing individual soldiers to pick among them as a condition for order obedience would lead to battlefield chaos.
Today's 'millennials' – whose demographic mirrors that of most militaries – have strong views on personal ethics in the workplace. According to the 2016 Deloitte Millennial Survey, personal values have the greatest influence on millennials' decision making. Millennials are by no means a 'benign workforce'. Almost half (49 per cent) have chosen not to undertake a task at work because it went against their personal values or ethics. Clearly, today's troops need to know, and perhaps even be convinced, that what they are doing is legal and ethical. This may help ameliorate moral injury, best defined as the damage to a soldier's moral conscience as a result of a perceived morals transgression and subsequent emotional shame.
Even with this evidence on the importance of ethical warfare, some still question whether ethical and legal restraints in fact inhibit effective warfighting. In reality, most of the constraints on warfighting are not dictated by legal and ethical imperatives, but rather by the strategic judgments of operators. For example, air strike campaigns can cause collateral damage. Effective leaders weigh the benefits of every air strike against this risk. Collateral damage can provide insurgents with a major propaganda victory. Even when justified by law, it works to the insurgents' benefit. But coalition leaders can weigh these risks too heavily. Exceeding what ethics and law require is sometimes counterproductive. Establishing a 'zero tolerance' model for casualities has come back to haunt coalition leaders. Predictably, in 2008 US Air Force Colonel Eric Holdaway, the Director of Intelligence at the USAF's Central Command, revealed, 'some of [the coalition's] enemies have clearly located themselves among civilian populations'. With more conservative policy on air strikes from 2009 to 2010 alone, the number of civilian deaths in Afghanistan rose by 31 per cent. Along similar lines, one of the chief arguments against drone strikes is that they can potentially radicalise civilians in the strike zone. While the American drone campaign is not 'winning hearts and minds', the locals may still agree with the results because 'they viscerally hate the militants and feel betrayed by their own government. [T]he drones were the closest thing to getting your prayers answered'. It may well be counterproductive to go beyond what international law requires regarding collateral damage.
Constraints are typically based on military judgments, not ethical or legal mandates. Do such constraints, ironically, engender just war issues? General John Michael Loh, the former Commander of the United States Air Combat Command, believes:
the current policies regarding rules of engagement, noncombatant casualties, and emphasis on body count in the war against the Islamic State overly constrain the air campaign, will cause an endless duration to the conflict, misread the Geneva Conventions and violate accepted principles of a morally justifiable war. These excessive restrictions prevent winning.
Harking back to John Stuart Mills, a person may cause evil not only by his actions, but also by his inactions. Furthermore, inaction could create a 'moral hazard'. If not expertly crafted, Rules of Engagement (ROE) can carry with them a moral hazard of sorts when they operate to prevent a strike that is actually permissible under international humanitarian law. Restrictive ROE can operate to shift risk from militaries, which can then avoid being criticised for causing some civilian casualties if they were to strike, to what might be a much larger number of civilians trapped under ISIS.
Increasingly, liberal democracies will impose policy constraints – rules of engagement – that exceed the level required by law. [...] Such policies limit civilian casualties that may result from attacking terrorists, but allow the certainty of civilians being slaughtered at the hands of those same terrorists if they are not eliminated. That is self-defeating at best, and counterproductive at worst. To be sure, it is immoral.
Policies, not ethics or law, are often the true source of concern among warfighters. Certainly the law or ethics can be wrongly blamed when things go wrong. Consider the ethics and laws at the root of the famous incident chronicled in the memoir Lone Survivor by Hospital Corpsman First Class (HM1) Marcus Luttrell. As he and his colleagues contemplated killing a group of goat herders on an Afghani mountainside who had observed their presence and were likely to report their position to the Taliban, and one of them argued strongly in favour of killing them, Luttrell began to think: 'If this came to a vote, [I] was going to recommend the execution [...] And in my soul I knew [my colleague] was right. [...] But my trouble is, I have another soul. My Christian soul'. Luttrell seems to think that sparing the lives of the goat herders brought on an attack by Taliban fighters that later led to the deaths of his colleagues. Ultimately, the decision not to kill them, however, reveals a different motive. 'Look at me, helpless, tortured, shot, blown up, my best buddies all dead, and all because we were afraid of the liberals back home, afraid to do what was necessary to save our own lives. Afraid of American civilian lawyers'. Others on the scene have questioned Luttrell's story. Mohammad Gulab, a witness who helped save Luttrell, insists that the Navy SEALs did not die because the goat herders informed the Taliban. Instead they were tracked, outmanoeuvred, and outgunned even before they let the goat herders go free.
(Continues…)
Excerpted from "Ethics Under Fire"
by .
Copyright © 2017 Tom Frame and Albert Palazzo.
Excerpted by permission of University of New South Wales Press Ltd.
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Table of Contents
Contributors,
Introduction Tom Frame,
PART 1: ETHICAL CULTURES AND ETHICAL BEHAVIOUR,
1 Why ethics matter Charles J Dunlap Jnr,
2 Avoiding the descent into barbarism Tom McDermott,
PART 2: OPERATING ETHICALLY IN THE JOINT ENVIRONMENT,
3 Ethics and institutional conflict Maurie McNarn,
4 Ethical dilemmas in multinational peacekeeping Pat McIntosh,
PART 3: THE ETHICAL SOLDIER – EXPECTATIONS AND REALITIES,
5 Connecting research, education and training Deane-Peter Baker,
6 Ethics in Special Operations Ian Langford,
7 Moral objection and political dissent Tom Frame,
PART 4: THE ARMY AND COMMUNITY EXPECTATIONS,
8 Humanitarian values and military objectives Beth Eggleston,
9 Operating within an NGO: A uniformed perspective Lee Hayward,
PART 5: THE ETHICS OF EMERGING WARFARE,
10 The individualisation of modern conflict Jai Galliott,
11 The ethics of enhanced human performance Matthew Beard,
12 The ethics of emerging tactics John Hardy,
PART 6: ETHICS AND THE FUTURE BATTLE SPACE,
13 Weaponising social media Shannon Brandt Ford,
14 What cyberweapons tell us about our just war Adam Henschke,
PART 7: ETHICS EDUCATION AND TRAINING,
15 The Australian Defence Force and military ethics Hugh Smith,
16 Military ethics education in the Army: An Achilles heel Jamie Cullens,
17 The practicalities of ethical accountability Chris Field,
Postscript Albert Palazzo,
NOTES,
INDEX,