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John S.

Frye October 18, 2011 PHL 443

The Conduct Of War
By: John S. Frye

The principle of proportionality (how much force is morally appropriate) is embedded in almost every national legal system and underlies the international legal order. The term proportionality boasts a long history within the rules of war. Some texts claim that the concept was already a part of the medieval laws of war, which suggested that war, could be deemed to be just, and hence legitimate, only if its gains exceeded the losses . Proportionality, in the context of the conduct of war, is implied in the idea that war must be illegal if the ends cannot justify the means. Taking it one step further, in international law, there are various parameters adopted as basic rule. One in particular, the principle of distinction, outlaws direct attacks against non-military targets. However, this does not mean that all other attacks, for instance attacks against targets that were both civilian and military, could be undertaken without restraint. The principle of proportionality is based on two complementary ideas. Measures have to be taken to minimize the effect upon civilian populations, whether inflicted directly or indirectly. Another aspect to consider, geographically, the military target should be defined in the narrowest possible way in order to minimize risk.

Proportionality for jus in bello requires tempering the extent and violence of warfare to minimize destruction and casualties. The result is basically inconsequential to the overall issue (only the actions are considered). the attacker should have to consider whether there is a way to achieve the military objective with less or no damage to the civilian population. it would likely consider various instances where the loss of innocent life is acceptable. As Kant would see it.Similarly.S. however. in that. 2 . There is a means to an end. A proper example would be if the U. This would be an example of Kantian Ethics. an action is just based upon the motives or obligations of the acting party. The difference between the two can best be expressed through the principle of distinction. All of this pertains specifically to times of war. The difference between the two lies within the focus of the good . in this perspective. if the ends justified the means the actions would be legitimized. This goes against basic Utilitarian views. felt an Pg. Kant would argue civilians (of country being attacked) have innate rights and cannot be harmed or killed in any manner during wartime. proportionality constitutes a logical extension of the principle of distinction. The utilitarian view would contrast Kant s. and it is qualitatively less focused on the events leading up to the desired goal. It is generally utilitarian in that it seeks to minimize overall suffering (result). everything should be done to target only military objectives. as the actions are secondary to the final result. Thus. but it can also be understood from other moral perspectives. This would obviously only pertain to the most extreme instances. from the application of aggression. for example.

it is never right to slay the guiltless. As seen through staunch views. almost in a cautious utilitarian view. Comparing them to another doctrine. gives insight to a more complex situation. If I were to apply this statement to a spectrum (ranging between Kantian and utilitarian) I would say this leans more toward the latter. However. This quote sounds highly Kantian in nature. and we therefore decided to bomb their country as a pre-emptive strike. 3 . as it appears neither the Kantian nor the utilitarian view is absolute in this case. According to de Vitoria s doctrine. Where as. The overarching principle here is that force can only be applied to the innocent if there is no other course of action available. To me this seems as though Pg. a Kantian perspective would say this is not just simply due to the fact that there was loss of non-combatant life. and the morality would be brought into question. regardless of the actions that led up to it. even as an indirect and unintended result (de Vitoria 41). he continues with except when there is no other means of carrying on the operations of a just war (de Vitoria 41). By that. such as Francisco de Vitoria s Law of War . Here in lies the dilemma. Of course. I mean the doctrine is largely utilitarian but also contains stipulations.impending (rapidly approaching) threat coming from Iran. The loss of civilian life would be almost assured. This exhibits utilitarian ideals as he becomes more concerned with achieving a desired result. a utilitarian perspective would justify the means with the ends by claiming that there was an immediate threat to our nation s safety and that the loss of life was proportional to the preservation of our community. there can be instances where both views are applicable to the same action.

The question in this case. There are many instances in the story that can be applied to the proportionality principle. An officer (or soldier) is assumed to be an excellent marksman. to try and justify his reasoning. He uses the context of a police officer firing a warning shot in an urban setting. which in our case is The Kill Company. one could assume there is sufficient risk (or else officer would remain docile) and also that the officer had been trained to effectively manage such a situation. The idea that firing a warning shot is too risky seems rather absurd. I find there to be issues between this example and de Vitoria s definition of just force. how do we quantify risk in a war environment. 4 . However. which is of course utilitarian in nature. I would expect an officer to act in a composed manner as well as in accordance with the law. Now in any case. The use of the proportionality principle is paramount to understanding whether or not the unit acted in a just manner. the actions of Colonel Steele and his troops (during Operation Iron Triangle) are portrayed to the reader in a manner that suggests there may be a moral conflict to consider. This leads to the next question. In the story. and at what cost are we willing to procure our own agenda? In order to bring context to these questions. is where is the line between eminent threat and simply a threat? In the case of a police officer firing a warning shot into the appeals to the idea of maximizing the overall good . or Pg. one may consider a real life example. Rather he preferred that they either would or fatally shoot a potential attacker. The first example I came across was Colonel Steele explaining to his men that warning shots were not going to be used.

it was hard to differentiate civilians from insurgents. military tactic for years. The issue with status-based targets is the fact that a righteous kill is based upon who the person is rather than the actions being taken into account. our troops were dealing with very hostile insurgents and often times were forced to make decisions that could be viewed as rash. Based off of this information.S. 5 . In this case. the duty of the soldiers was to identify and execute any person on the list. to infer that an officer doesn t have the proper instincts to react in a manner that is just seems irrational to me. Another example I found particularly intriguing was the unit s approach to the task of disarming the Al Muthanna chemical-weapons complex during Operation Iron Triangle. The point de Vitoria makes is simply that one must exhaust all other avenues before resorting to deadly force. When detailing the preparation leading up to the operation. This has been a common U. I don t believe shooting to kill would be a just course of action. the potential for Pg. and thus. There should be a distinction made between shooting to wound and shooting to kill. made the task of identifying hostile persons a life or death task. however the morality of the action can be debated. in a case such as this. They however neglected to consider various uncertainties. So. In order to identify these status-based targets. various covert actions were implemented (such as informants). but they go through training to practice dealing with problematic situations such as this. Also. Not only that. During Operation Iron Triangle. the story touches on the subject of status-based targets . such as.was at least trained to be one.

soldiers were acting in a hostile manner of their own. According to the proportionality principle. a soldier must be either in imminent danger or a witness to a third party who is being threatened. it seems as though the U. Whether or not the U. it appears that the proportionality principle could justify their actions. The proportionality principle is an essential qualification for determining a just conduct of war.S.S. however. In order to act in accordance with the proportionality principle. acts in full accordance with these laws is debatable. Although it can be argued that these targets were almost assuredly working to conspire against the U.misinformation or mistaken identity. It is the right of soldiers to be able to protect themselves as they see fit. Pg. The simple fact that someone is on a list should not condemn him or her to execution. 6 . It is the duty to correctly assess the situation as either being hostile or non-hostile.S.. as well as the de Vitoria doctrine. to execute someone simply because you believe they are hostile (even if no hostile actions are taken) is unjust. it is our duty to try and preserve these doctrines to the best of our ability in hopes that other countries will follow accordingly. according to de Vitoria. however. However. In this particular case. The soldiers were then basically being asked to shoot first and ask questions later. war must be illegal if the ends cannot justify the means. I feel that the use of deadly force is unjust in this case.