To what lengths may a state go to protect its soldiers in war? May it design its military operations to further that goal if this significantly increases civilian casualties? International law currently offers no clear answers. Because recent wars have seen many states prioritize soldier safety over avoiding civilian casualties, spirited debate has arisen over the legal defensibility of this practice. This debate currently focuses on an ethics code proposed by two influential Israeli thinkers and allegedly embodied in Israel's conduct of its 2008-2009 Gaza war with Hamas. This Article shows that current discussion fails to appreciate how judgments about proportionality in the use of military force necessarily differ at the tactical, operational, and strategic levels of warfare. It illustrates this with empirical material from recent armed conflicts. If international law is to address war's inescapable moral complexities, it must be interpreted to reflect the variation in the kind of decisions that soldiers confront at distinct organizational echelons. This approach largely resolves one of the most vexing conundrums that has perennially bedeviled the law of war.
TABLE OF CONTENTS I. INTRODUCTION II. CURRENT DEBATE ON FORCE PROTECTION A. Safeguarding Soldiers Comes First: Asa Kasher and Amos Yadlin on Israel's Code of Military Ethics B. All Civilian Lives, Regardless of Nationality, Deserve Priority: Avishai Margalit and Michael Walzer C. All Lives, Soldier and Civilian, Are of Equal Value: David Luban 1. The Risk-Transfer Ratio Between Civilians and a State's Soldiers 2. Assessing the Value of Soldiers' Lives. 3. Force Protection as a Strategic Aim III. PROPORTIONALITY AT WAR'S MULTIPLE LEVELS A. Disagreement on the Legal Elements of Proportionality B. Jus in Bello Proportionality and Force Protection: Operational Issues C. Proportionality at the Tactical Level D. Jus ad Bellum Proportionality and Force Protection as a Strategic Concern IV. AIR POWER AND THE FORCE PROTECTION POLICIES OF WESTERN STATES V. CONCLUSION I. INTRODUCTION
Consider three questions arising from the following circumstance of armed conflict:
Border skirmishes have been occurring for some time between a state and one of its military adversaries. In these encounters, that adversary regularly attacks small units of the state's soldiers who are patrolling the shared border. The enemy also plants roadside bombs within the state's territory, near its military bases, to kill its soldiers. After one of these bombs causes extensive casualties, the state finally responds, opening a large-scale military campaign, intended to deter the enemy from continuing these practices. The state directs its response against enemy military forces and installations; these are "military objectives," hence lawfully subject to being targeted. (1) Even so, this response will likely produce greater harm to civilians, though unintentional, than the enemy's intentional actions have caused the state and its troops. To what extent does international law limit the state's response in light of these facts?
Second, during the ensuing conflict, the enemy captures one of the state's soldiers. Her company knows that she is being held in a nearby house also containing an elderly civilian couple unable to escape the combat. Does international law allow the company to rescue its fellow soldier, even if it is probable that the couple will die in the crossfire?
Third, in the same war, the state orders a division commander to capture a town that houses both civilians and enemy combatants. The commander can either ask for aerial support to bombard the town, seeking to target only enemy locations (insofar as these can be identified), or alternatively deploy ground units to take the town house by house. The first option minimizes the risk that soldiers will be harmed, but imposes much greater danger to civilian residents. May the division commander, consistently with international law, call for aerial support?
These three scenarios respectively arise at the strategic, tactical, and operational levels of decision making. They all pose the same essential question: to what extent may a state take protection of its soldiers (hereinafter force protection) into account when determining the proportionality (2) of contemplated military action? The question bears on both the legality and morality of that action.
Military concern with force protection has increased as Western publics have grown averse to suffering military casualties, even as most people recognize that force protection often comes at the price of increased civilian harm. (3) That harm is itself the object of increasing preoccupation in many quarters. International rules on proportionality are being reassessed and reinterpreted in light of these vexing new realities. A recent code of military ethics, proposed by two prominent Israeli commentators (a leading philosopher and a distinguished army general), explicitly provides that protecting soldiers' lives should always receive priority over safeguarding foreign civilians, when these goals collide. (4) Some have accused the Israel Defense Forces (IDF) of unofficially adopting this code and thereby causing disproportionate harm to Palestinian civilians during the 2008-2009 Cast Lead operation in Gaza. The code's alleged overvaluation of force protection was blamed for the operation's high lethality to innocent Palestinians. (5)
The vexing questions these circumstances present are by no means unique to Israel, even if that country confronts them more acutely than do most other states. Many wars are today fought in heavily populated areas, where enemies of Western armies deliberately intersperse their fighters among civilians in order to capitalize on the aversion of Western democracies both to harming civilians and to incurring losses among their own troops, losses that door-to-door combat (in seeking to minimize civilian casualties) will inevitably multiply. (6)
The resulting predicament has prompted domestic outcry in several countries, as their troops suffer many casualties in ground operations, notably in Afghanistan. NATO policy there shifted in 2009 from heavy reliance on close air support to counterinsurgency, aiming to win "hearts and minds" through patient, day-to-day interaction with locals. (7) This policy change caused an increase in military casualties, (8) however, which generated effective domestic pressure for withdrawal. (9) Public disaffection with soldier casualties also prompted renewed reliance on air power and, with it, an increase in civilian casualties. (10)
This Article seeks to advance the heated current discussion of whether force protection may, consistently with international law and emergent global mores, legitimately influence deliberations about proportionality in the use of military force. Part I describes three leading positions in current debate. First is that of Asa Kasher and Amos Yadlin, authors of the controversial recent code prioritizing force protection over safeguarding civilians. That stance then receives trenchant criticism from Avishai Margalit and Michael Walzer, who contend that, when assessing proportionality, the lives of foreign civilians must virtually always receive priority over one's soldiers. A third standpoint is that of David Luban, also vehemently opposed to the Kasher and Yadlin approach to proportionality, but on somewhat different grounds. Namely, unlike Margalit and Walzer, Luban is ready to acknowledge possible bases for giving value to soldiers' lives. Yet, he argues that in practice force protection must generally give way when this goal clashes with that of protecting civilians.
Part II assesses current international law, which distinguishes between two forms of proportionality. The first is jus ad bellum proportionality, governing the decision to resort to force in the first instance and determining what overall measure of force will be consistent with the goal of national self-defense. Second is jus in bello proportionality, regulating operational and tactical conduct during an armed conflict. Because proportionality turns out to mean very different things at the strategic, operational, and tactical levels of war, it is essential to respect (as many pundits do not) this distinction between ad bellum and in bello proportionality. This Article then shows how each of the three positions in current debate accurately (or at least more accurately than the other two) renders the proportionality norm applicable to one (and only one) of the three levels of military decision making in war.
Part III demonstrates how the place of force protection in proportionality assessment is very different at each of these levels. To illustrate these differences, this Article examines the choice made by Western forces in recent years between aerial bombardment and ground operations, indicating how this choice has distinct aspects and implications when viewed from the strategic, operational, and tactical standpoints. The decisions that commanders confront at these several organizational echelons therefore vary greatly, in ways that the international law of proportionality must respect and reflect.
CURRENT DEBATE ON FORCE PROTECTION
Safeguarding Soldiers Comes First: Asa Kasher and Amos Yadlin on Israel's Code of Military Ethics
Asa Kasher and Amos Yadlin authored the military ethics code that Israel was accused of adopting in Operation Cast Lead. Kasher is a leading Israeli philosopher who has written on professional ethics (including military ethics); Yadlin was a high-ranking military commander. Both have extensive relevant learning and experience. (11) They argue that all states have a duty, (12) to the best of their abilities, to limit civilian casualties. (13) But civilians are not a uniform class. Every state is obligated to protect its own citizens and other civilians who are under its effective control...