Jus In Bello Analysis
The Conduct of War
The tensions between the United States and Canada have been extremely high, since the accusations started by both countries of sending terrorists into eachs countries oil production facilities. On June 2017 after mysterious explosions and fired destroyed the North Dakota town of Willistin, the united states, claiming self defense, declared war on Canada. The European union negotiated a truce but irritated Canadian civilians are now waging guerilla warfare in hopes of restarting the American-Canadian War. The Combat Brigade Team (CBD) is in charge of launching a counterinsurgency campaign against the Canadian guerillas that want to provoke the US military into war, and has asked me to prepare rules of engagement brief …show more content…
for the brigade. I will have to undertake the different positions between the two junior officers, Michael L. Gross and Steven P. Lee, and explain what conduct in war and the rules of war should be in, in terms of the jus in bello principles and the basic tenants of international humanitarian law (IHL). Explaining how war should be conducted is based on using the jus in bello principles of the just war tradition along with the principles of IHL, and how Gross and Lee consider these guidelines in conducting war. While both Gross and Lee use the jus in bello principles and IHL to justify and explain their stances on conducting warfare, they view them very differently as Gross wants to expand the number of people who can be targeted, Lee is looking to do the exact opposite, saving more innocent lives, while holding the same goal of conducting a counterinsurgency campaign to stop the Canadian guerillas.
“Sides will always ask whether they might violate humanitarian imperatives to gain a military advantage”, says junior officer lieutenant Michael L. Gross. (Gross 239). This is a rather touch accusation and important point to research and understand. In recognizing the rules and conduct of war, we must realize how important the jus in bello principles and the IHL are in this discussion. A war is justly fought only if the military means used to wage it are proportionate to the tasks of winning the war and cause no gratuitous harm or unnecessary suffering. This takes into account the principles of proportionality and military necessity. In terms of military necessity Gross states “necessity forces us to redraw the lines of who is an acceptable target” (Gross 91). Gross asks what is necessary in order to wage asymmetric conflict and then how necessity as newly defined by fighting a non-conventional enemy is forcing us to reconsider humanitarian principles in asymmetric warfare. “While torture, assassination, and blackmail may have started their lives as exceptions to the established norms of conventional warfare, there are many signs that they are evolving into rules” (Gross 234). Because of the new ways of war, old principles have to change and one of the principles that must shift is necessity, where a fighting power must use almost unlimited ways to beat the enemy. This sole statement is giving humanitarian principles second importance in discussing what the conduct of war should be. Humanitarianism prohibits unnecessary harm to combatants and unnecessary and direct harm to noncombatants. “Asymmetric war does not change these principles” Gross states, “but it does strongly affect how we define their terms” (Gross 246). Here the U.S. will be fighting Canadian guerillas and it will be difficult to separate combatants from non-combatants. Instead of looking for a way to not risk harming innocent civilians, Gross says that these civilians find themselves at risk from many different types of harm, and declares, “The principle of non-combatant immunity protects civilian noncombatants from direct lethal harm but may expose them to nonlethal injuries” (Gross 247). The fact that since these innocent civilians are not exposed to the risk of lethal harm, their risk of nonlethal harm will be a must if there is military necessity, as Gross defines necessity. This puts a whole nation in danger of harm and gone is the peace of mind that enemies will respect innocent people who have nothing to do with the war. Gross here is saying that necessity is defined in terms of the one who is waging war to do so successively and beat the enemy.
“Without targeting civilians it may be well impossible for either side to prevail in an asymmetric conflict” (Gross 154). This quote from Gross is making it very hard to uphold the jus in bello discrimination principle, where this principle defines that the acts of war should be directed towards enemy combatants, and not towards non-combatants caught in circumstances they did not create. “Fueled by military necessity such practices as targeted killing, aggressive interrogation, non lethal warfare and attacks on civilians are slowly emerging as new norms of war making” (Gross 199). When the enemy is attacking combatants, innocent civilians now would find themselves in danger of collateral harm when an attack is deemed to be necessary, and here no distinction is used between combatants and non-combatants. This is defeating the principle of discrimination, as civilians are an open target. Here is another example of how Gross is looking to widen the number of people that a nation fighting in asymmetric warfare can target. Thus, targets that were prohibited historically now become acceptable as long as those waging war require targeting them to defeat their enemy. “Nations are not simply adopting new practices but also confronting international prohibitions” (Gross 24). This quote should be a red flag in itself, as it can become very worrisome when nations decide to bypass international humanitarian laws that have been agreed upon and imposed. Along with these humanitarian laws the principle of discrimination is also being ignored when it becomes accepted to target civilians in order to defeat the enemy.
One of the most important principles of jus in bello is proportionality.
Gross ties proportionality to necessity, reasoning that what it is necessary to do can influence what it is proportionate to do. He suggests that proportionality is to be considered by looking at what has historically been necessary to win wars and that this then must be adjusted to asymmetric warfare. Gross argues that “when the weaker side of a conflict has comparatively crude weaponry, it may justifiably claim that this must broaden the scope of proportionality and allow it more collateral harm than the principle traditionally permits.” (Gross 169). This seems to me an incredible take on proportionality, which should be considered differently and apart from the principle of necessity. He is permitting to disregard a crucial principle in conducting a just war because another crucial principle may be satisfied. These two principles are independent of one another and should not be compared to allow or justify one or the other. Gross’s point of allowing non-lethal weapons and thus a broader scope of people being targeted in asymmetric warfare is constantly being stated. His main defense for this argument is that, “the use of non-lethal weapons against civilians reduce harm to civilians: Civilians suffer incapacitating harm to save them from lethal harm” (Gross 150). While this could be true, non-lethal weapons could now allow for proportionate attacks that would have been disproportionate with lethal weapons. By following Gross’s guidelines, we would be creating more war, more suffering, and more harm, to a broader scope of people. It is unnecessary, disproportional, and almost ignoring completing the principle of discrimination. These three humanitarian principles are crucial in conducting a war where the nation leading the counterinsurgency campaign wants it to follow jus in bello principles and international humanitarian laws. Gross not only describes a type of warfare that defies the
three jus in bello principles but wants to increase the amount of people being targeted, leading to a greater amount of harm to many innocent civilians. A counter insurgency campaign needs the support of the people and this is not close to a moral let alone smart way to get the people’s support.
The second junior officer, Lieutenant Steven P. Lee has a very different stance on the conduct of war. The U.S. is launching a counterinsurgency campaign against the Canadian guerillas. Lee is a strong believer of the jus in bellum principle and international humanitarian law. He states that the “principles of discrimination, proportionality, and due care (military personnel and their leaders are supposed to try hard each day to keep civilian casualties to a minimum) are necessary conditions and military action in war is justified only if it satisfies all three of these principles” (Lee 154).
Opposing Gross in terms of discrimination, Lee states, “combatants may neither attack a target deliberately intending to kill civilians nor attack a target indiscriminately, that is, in a way that makes no effort to distinguish between combatants and civilians” (Lee 156). This is a humane way to look at attacking the enemy; by following the principle of discrimination, civilians cannot be intentionally targeted or attacked. A way to view the difference between the ways civilians should be treated described by Gross and Lee, is to recognize the depth they allow for civilian harm. Lee states that “deliberate or indiscriminate (reckless) attack on civilians that is intended is prohibited”, while Gross encourages the use of non-lethal weapons on civilians. (Lee 175-176). Lee then states, “that war cannot be fought without civilians being attacked and describes the unintended harm, which would be incidental (harm foreseen) or accidental harm (harm unforeseen)” (Lee 176). Even though I think civilian casualties or potential harm of civilians should be avoided at all costs, Lee has a much more humane way to describe what should be aloud in the conduct of war. Even though he also agrees that civilian harm should be avoided as much as possible, he does allow for the unintended civilian casualties that might be ultimately inevitable.
When defining proportionality, Lee states that, “proportionality requires that the evil created by a articular military attack not be disproportionate when compared with the contribution of the attack to victory in the overall war” (Lee 156). Lee is rightly proclaiming that an attack should not be carried through if more innocent lives are taken than the actual combatants needed to be attacked on. Lee further explains proportionality when he explains, “those who plan an attack shall refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive to the concrete and direct military advantage anticipated” (Lee 213). Here, Lee is designing the prohibition of the intentional and disproportional harm to civilians, while Gross actually encourages this harm (non-lethal) on civilians. In my opinion, civilian causalities should really be kept to minimum if at all, but Lee describes a more moral way of deciding when to attack. In asymmetric warfare, this is a principle that must be followed, as both sides can follow this principle and decide to refrain from intentionally harming civilians and carefully observing the scope of their attacks.
The third principle Lee thinks is crucial in defining the conduct of war is due care. The principle of due care states that, “a military attack must be in such that it has a direct bearing on a concrete military objective (necessity), it is the least harmful of the available alternatives to achieve that objective, and it involves the assumption by combatants of a due degree of risk” (Lee 220). Here we can understand that a counterinsurgency following due care will be more costly, as it will need to figure out methods following the due care principle to achieve their goal, but “costliness is not impossibility” (Lee 270). The U.S. in this case probably has much greater resources than the Canadian guerillas and should have no problem in following this jus in bello principle. While Gross preaches that the main goal should be to defeat the enemy and these principles should be changed when applying them to asymmetric warfare, Lee states that these principles are based on humanitarian laws and there is no need for weakening these principles. Lee’s take on these principles still even allows for the unintentional and accidental harm of civilians (questioning the morality of these statements), but at least prohibits the horror of intentional harm on civilians that Gross supports.
In conclusion, Lee’s take on the jus in bello principles and international humanitarian law is a greater moral way to conduct war and this counterinsurgency against the Canadian guerillas. Lee values the jus in bello principles and describes the importance of the support of the people in a counterinsurgency. By fighting this war with Lee’s philosophy there will be less harm overall to the country and innocent civilians. With this being said, if these humanitarian principles described by both lieutenants were to be given priority, pacifism might be the best response to asymmetric warfare. Both lieutenants state the difficulty of following these principles in asymmetric war, as each side has very different circumstances, weaknesses, and strengths. After evaluating the principles of a just war, it is extremely viable that warfare is an inadequate answer to threats posed by guerillas. Nevertheless, I wish both sides luck in fighting in the most moral way they can by following humanitarian laws and principles; as Lee states, there is no reason why both sides can’t engage in war adhering to the jus in bello principles in the conduct of war.
Works Cited
Gross, Michael L. Moral Dilemmas of Modern War. New York City: Cambridge University Press, 2010.
Lee, Steven P. Ethics and War An Introduction. New York City: Cambridge University Press, 2012.
Woods, Mark. Handout Proportionality. 2013. 1-2.
The tensions between the United States and Canada have been extremely high, since the accusations started by both countries of sending terrorists into eachs countries oil production facilities. On June 2017 after mysterious explosions and fired destroyed the North Dakota town of Willistin, the united states, claiming self defense, declared war on Canada. The European union negotiated a truce but irritated Canadian civilians are now waging guerilla warfare in hopes of restarting the American-Canadian War. The Combat Brigade Team (CBD) is in charge of launching a counterinsurgency campaign against the Canadian guerillas that want to provoke the US military into war, and has asked me to prepare rules of engagement brief …show more content…
for the brigade. I will have to undertake the different positions between the two junior officers, Michael L. Gross and Steven P. Lee, and explain what conduct in war and the rules of war should be in, in terms of the jus in bello principles and the basic tenants of international humanitarian law (IHL). Explaining how war should be conducted is based on using the jus in bello principles of the just war tradition along with the principles of IHL, and how Gross and Lee consider these guidelines in conducting war. While both Gross and Lee use the jus in bello principles and IHL to justify and explain their stances on conducting warfare, they view them very differently as Gross wants to expand the number of people who can be targeted, Lee is looking to do the exact opposite, saving more innocent lives, while holding the same goal of conducting a counterinsurgency campaign to stop the Canadian guerillas.
“Sides will always ask whether they might violate humanitarian imperatives to gain a military advantage”, says junior officer lieutenant Michael L. Gross. (Gross 239). This is a rather touch accusation and important point to research and understand. In recognizing the rules and conduct of war, we must realize how important the jus in bello principles and the IHL are in this discussion. A war is justly fought only if the military means used to wage it are proportionate to the tasks of winning the war and cause no gratuitous harm or unnecessary suffering. This takes into account the principles of proportionality and military necessity. In terms of military necessity Gross states “necessity forces us to redraw the lines of who is an acceptable target” (Gross 91). Gross asks what is necessary in order to wage asymmetric conflict and then how necessity as newly defined by fighting a non-conventional enemy is forcing us to reconsider humanitarian principles in asymmetric warfare. “While torture, assassination, and blackmail may have started their lives as exceptions to the established norms of conventional warfare, there are many signs that they are evolving into rules” (Gross 234). Because of the new ways of war, old principles have to change and one of the principles that must shift is necessity, where a fighting power must use almost unlimited ways to beat the enemy. This sole statement is giving humanitarian principles second importance in discussing what the conduct of war should be. Humanitarianism prohibits unnecessary harm to combatants and unnecessary and direct harm to noncombatants. “Asymmetric war does not change these principles” Gross states, “but it does strongly affect how we define their terms” (Gross 246). Here the U.S. will be fighting Canadian guerillas and it will be difficult to separate combatants from non-combatants. Instead of looking for a way to not risk harming innocent civilians, Gross says that these civilians find themselves at risk from many different types of harm, and declares, “The principle of non-combatant immunity protects civilian noncombatants from direct lethal harm but may expose them to nonlethal injuries” (Gross 247). The fact that since these innocent civilians are not exposed to the risk of lethal harm, their risk of nonlethal harm will be a must if there is military necessity, as Gross defines necessity. This puts a whole nation in danger of harm and gone is the peace of mind that enemies will respect innocent people who have nothing to do with the war. Gross here is saying that necessity is defined in terms of the one who is waging war to do so successively and beat the enemy.
“Without targeting civilians it may be well impossible for either side to prevail in an asymmetric conflict” (Gross 154). This quote from Gross is making it very hard to uphold the jus in bello discrimination principle, where this principle defines that the acts of war should be directed towards enemy combatants, and not towards non-combatants caught in circumstances they did not create. “Fueled by military necessity such practices as targeted killing, aggressive interrogation, non lethal warfare and attacks on civilians are slowly emerging as new norms of war making” (Gross 199). When the enemy is attacking combatants, innocent civilians now would find themselves in danger of collateral harm when an attack is deemed to be necessary, and here no distinction is used between combatants and non-combatants. This is defeating the principle of discrimination, as civilians are an open target. Here is another example of how Gross is looking to widen the number of people that a nation fighting in asymmetric warfare can target. Thus, targets that were prohibited historically now become acceptable as long as those waging war require targeting them to defeat their enemy. “Nations are not simply adopting new practices but also confronting international prohibitions” (Gross 24). This quote should be a red flag in itself, as it can become very worrisome when nations decide to bypass international humanitarian laws that have been agreed upon and imposed. Along with these humanitarian laws the principle of discrimination is also being ignored when it becomes accepted to target civilians in order to defeat the enemy.
One of the most important principles of jus in bello is proportionality.
Gross ties proportionality to necessity, reasoning that what it is necessary to do can influence what it is proportionate to do. He suggests that proportionality is to be considered by looking at what has historically been necessary to win wars and that this then must be adjusted to asymmetric warfare. Gross argues that “when the weaker side of a conflict has comparatively crude weaponry, it may justifiably claim that this must broaden the scope of proportionality and allow it more collateral harm than the principle traditionally permits.” (Gross 169). This seems to me an incredible take on proportionality, which should be considered differently and apart from the principle of necessity. He is permitting to disregard a crucial principle in conducting a just war because another crucial principle may be satisfied. These two principles are independent of one another and should not be compared to allow or justify one or the other. Gross’s point of allowing non-lethal weapons and thus a broader scope of people being targeted in asymmetric warfare is constantly being stated. His main defense for this argument is that, “the use of non-lethal weapons against civilians reduce harm to civilians: Civilians suffer incapacitating harm to save them from lethal harm” (Gross 150). While this could be true, non-lethal weapons could now allow for proportionate attacks that would have been disproportionate with lethal weapons. By following Gross’s guidelines, we would be creating more war, more suffering, and more harm, to a broader scope of people. It is unnecessary, disproportional, and almost ignoring completing the principle of discrimination. These three humanitarian principles are crucial in conducting a war where the nation leading the counterinsurgency campaign wants it to follow jus in bello principles and international humanitarian laws. Gross not only describes a type of warfare that defies the
three jus in bello principles but wants to increase the amount of people being targeted, leading to a greater amount of harm to many innocent civilians. A counter insurgency campaign needs the support of the people and this is not close to a moral let alone smart way to get the people’s support.
The second junior officer, Lieutenant Steven P. Lee has a very different stance on the conduct of war. The U.S. is launching a counterinsurgency campaign against the Canadian guerillas. Lee is a strong believer of the jus in bellum principle and international humanitarian law. He states that the “principles of discrimination, proportionality, and due care (military personnel and their leaders are supposed to try hard each day to keep civilian casualties to a minimum) are necessary conditions and military action in war is justified only if it satisfies all three of these principles” (Lee 154).
Opposing Gross in terms of discrimination, Lee states, “combatants may neither attack a target deliberately intending to kill civilians nor attack a target indiscriminately, that is, in a way that makes no effort to distinguish between combatants and civilians” (Lee 156). This is a humane way to look at attacking the enemy; by following the principle of discrimination, civilians cannot be intentionally targeted or attacked. A way to view the difference between the ways civilians should be treated described by Gross and Lee, is to recognize the depth they allow for civilian harm. Lee states that “deliberate or indiscriminate (reckless) attack on civilians that is intended is prohibited”, while Gross encourages the use of non-lethal weapons on civilians. (Lee 175-176). Lee then states, “that war cannot be fought without civilians being attacked and describes the unintended harm, which would be incidental (harm foreseen) or accidental harm (harm unforeseen)” (Lee 176). Even though I think civilian casualties or potential harm of civilians should be avoided at all costs, Lee has a much more humane way to describe what should be aloud in the conduct of war. Even though he also agrees that civilian harm should be avoided as much as possible, he does allow for the unintended civilian casualties that might be ultimately inevitable.
When defining proportionality, Lee states that, “proportionality requires that the evil created by a articular military attack not be disproportionate when compared with the contribution of the attack to victory in the overall war” (Lee 156). Lee is rightly proclaiming that an attack should not be carried through if more innocent lives are taken than the actual combatants needed to be attacked on. Lee further explains proportionality when he explains, “those who plan an attack shall refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive to the concrete and direct military advantage anticipated” (Lee 213). Here, Lee is designing the prohibition of the intentional and disproportional harm to civilians, while Gross actually encourages this harm (non-lethal) on civilians. In my opinion, civilian causalities should really be kept to minimum if at all, but Lee describes a more moral way of deciding when to attack. In asymmetric warfare, this is a principle that must be followed, as both sides can follow this principle and decide to refrain from intentionally harming civilians and carefully observing the scope of their attacks.
The third principle Lee thinks is crucial in defining the conduct of war is due care. The principle of due care states that, “a military attack must be in such that it has a direct bearing on a concrete military objective (necessity), it is the least harmful of the available alternatives to achieve that objective, and it involves the assumption by combatants of a due degree of risk” (Lee 220). Here we can understand that a counterinsurgency following due care will be more costly, as it will need to figure out methods following the due care principle to achieve their goal, but “costliness is not impossibility” (Lee 270). The U.S. in this case probably has much greater resources than the Canadian guerillas and should have no problem in following this jus in bello principle. While Gross preaches that the main goal should be to defeat the enemy and these principles should be changed when applying them to asymmetric warfare, Lee states that these principles are based on humanitarian laws and there is no need for weakening these principles. Lee’s take on these principles still even allows for the unintentional and accidental harm of civilians (questioning the morality of these statements), but at least prohibits the horror of intentional harm on civilians that Gross supports.
In conclusion, Lee’s take on the jus in bello principles and international humanitarian law is a greater moral way to conduct war and this counterinsurgency against the Canadian guerillas. Lee values the jus in bello principles and describes the importance of the support of the people in a counterinsurgency. By fighting this war with Lee’s philosophy there will be less harm overall to the country and innocent civilians. With this being said, if these humanitarian principles described by both lieutenants were to be given priority, pacifism might be the best response to asymmetric warfare. Both lieutenants state the difficulty of following these principles in asymmetric war, as each side has very different circumstances, weaknesses, and strengths. After evaluating the principles of a just war, it is extremely viable that warfare is an inadequate answer to threats posed by guerillas. Nevertheless, I wish both sides luck in fighting in the most moral way they can by following humanitarian laws and principles; as Lee states, there is no reason why both sides can’t engage in war adhering to the jus in bello principles in the conduct of war.
Works Cited
Gross, Michael L. Moral Dilemmas of Modern War. New York City: Cambridge University Press, 2010.
Lee, Steven P. Ethics and War An Introduction. New York City: Cambridge University Press, 2012.
Woods, Mark. Handout Proportionality. 2013. 1-2.