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Some thoughts on the moral and legal dimensions of Fourth-Generation Warfare “It bothers me when they say there were seven guys, so they must all be militants,”

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Presentation on theme: "Some thoughts on the moral and legal dimensions of Fourth-Generation Warfare “It bothers me when they say there were seven guys, so they must all be militants,”"— Presentation transcript:

1 Some thoughts on the moral and legal dimensions of Fourth-Generation Warfare “It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.” What the dead can tell us Don Radlauer Institute for the Study of Asymmetric Conflict

2 On today’s Menu The importance of moral considerations in 4GW An outline of Just War Theory A “Theory of Change” Jus in Bello in Asymmetric Conflict Mortality Statistics What we learn from Mortality Statistics

3 Conclusion

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5 The importance of moral considerations in 4GW “Fourth Generation war theory… argues that the moral level of war is the most powerful, the physical level is the weakest, and the mental level lies somewhere in between.” -William S. Lind

6 The importance of moral considerations in 4GW Why might this be? Morality seems to be “hard- wired” at a very basic level—an important survival tool for a social animal.

7 An experimental verification Psychologists gave subjects a logical problem to solve, in two forms. u One was expressed in abstract terms, e.g. “A is greater than B and B is less than C…” u The other form was logically equivalent, but the problem was expressed in a moral context: “Suzy told a secret to Sally, and Sally told it to Benjamin…” Subjects performed much better on the “moral” version of the problem, even though the actual logic involved was identical.

8 The importance of the moral dimension It’s clear that morality provides some of the strongest motivations available; people will endure considerable sacrifices to fight what they perceive as evil. Even strictly materialistic ideologies—notably Communism—based themselves on moral principles.

9 The importance of the moral dimension 4GW is persuasive rather than coercive—and because of the persuasive power of morality, in 4GW we find that “facts” and logic operate in service of moral viewpoints.

10 The importance of the moral dimension Since the moral dimension is so central to modern conflict, it’s important to have some kind of “toolset” for evaluating combatants’ behavior. That toolset is known as “Just War Theory”.

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12 An outline of Just War Theory The idea that war has a moral (or immoral) dimension goes back beyond written history; certainly by Biblical times it was well established that deciding to go to war, and fighting once at war, were governed by moral considerations.

13 An outline of Just War Theory Traditional Just War Theory was generally grounded in religion—e.g. St. Augustine and Thomas Aquinas. The field has undergone something of a renaissance in recent years, triggered by the Vietnam War; the “godfather” of modern Just War Theory is Michael Walzer, author of Just and Unjust Wars.

14 An outline of Just War Theory Just War Theory is divided into three distinct segments: 1. Jus ad bellum deals with the morally defensible reasons for going to war. 2. Jus in bello deals with what is morally defensible in conducting a war. 3. Jus post bellum deals with the administration of justice after war ends—essentially it is the (hopefully correct) enforcement of the principles of jus ad bellum and jus in bello, and not simply “victor’s justice”. Why are jus ad bellum and jus in bello kept separate?

15 An outline of Just War Theory Jus ad bellum, in its modern form, provides six (or sometimes seven) requirements that must be met if a war is to be considered just:

16 An outline of Just War Theory 1. Just Cause This is the most prominent requirement. The most obviously just cause is self-defense; other causes generally considered just are the defense of others subject to (unjust) attack; punishment for grievous wrongdoing; and, in recent times, protecting the innocent from “internal attack” by their own government or by non-governmental forces—a.k.a. “R2P”. This can be summed up as “resistance to aggression”, where “aggression” is defined as “the use of armed force in violation of someone else's basic rights”.

17 An outline of Just War Theory Comparative Just Cause Some theorists add as a separate criterion, meaning that where both sides have just grievances, only the side with the more-just grievance can justly go to war to redress it.

18 An outline of Just War Theory 2. Right Intention It is not enough that you have a good cause; you must actually be motivated by this just cause, and not by considerations such as grabbing territory or carrying out revenge.

19 An outline of Just War Theory 3. Competent Authority A state can legitimately go to war only on the basis of decisions taken by appropriately designated people following appropriate procedures—typically defined by any particular nation’s constitution.

20 An outline of Just War Theory 4. Last Resort War can be a legitimate resort only after peaceful means have been exhausted, or are simply unavailable.

21 An outline of Just War Theory 5. Proportionality (or “macro-proportionality”) A war can be just only if its anticipated benefits from a global perspective outweigh its anticipated harms. 6. Probability of Success War is legitimate only to the extent that it has a “reasonable” chance of success. War that is known in advance to be futile is not justified, even in a just cause.

22 An outline of Just War Theory Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars. Jus ad bellum appears to be especially weak in dealing with asymmetric conflicts.

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24 Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars 1. Everyone believes that his own cause is just; and even third parties seem to pick a “just” side based more on their own predilections than on any set of objective, universal standards. (R2P is an exception— sometimes.) In asymmetric conflict, both sides usually have perfectly valid grievances.

25 Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars 2. Right intention is so subjective that it is of almost no use in real-world evaluation of justice, even for conventional conflicts. (The capacity to act without ulterior motives was probably bred out of our species long ago.)

26 Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars 3. Competent authority does not exist for non- governmental actors in asymmetric conflict. Even if the “competent authorities” governing a particular organization decide to end a conflict, it is not uncommon for part of the organization’s membership to split off in order to continue the conflict.

27 Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars 4. Last resort is one of the few requirements of jus ad bellum that is genuinely applicable to 4GW; however, there is still a problem of subjectivity here, as “lastness” is not really something objectively verifiable. Memes such as “the other side only understands violence” are very common, and tend to destroy the ability of the last- resort test to prevent violent conflict.

28 Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars A further problem is that when one side doesn’t recognize the legitimacy of the other side, direct negotiations and other peaceful means of conflict resolution can be perceived as an acceptance of defeat. Israel and Hamas are a good example of this.

29 Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars 5. Proportionality is problematic even in conventional conflicts. The cost-benefit calculations of a war typically include imponderables such as “deterring aggression” that are not directly commensurable with direct costs such as casualties.

30 Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars Proportionality is thus subject to abuse, intentional or otherwise—witness the “Domino Theory” used to justify U.S. involvement in Vietnam. On the other hand, what would have happened had Britain and France engaged in a “disproportionate” war with Germany over Czechoslovakia?

31 Even in conventional conflicts, jus ad bellum has not been a great success in preventing wars 6. In conventional conflict, it is (or should be) possible to judge probability of success with reasonable accuracy; certainly it should be clear to a nation facing overwhelmingly superior adversaries that such is the case. Two German counter-examples from WWII: first, overemphasizing the value of tactics such as blitzkrieg; and second, underestimating the military capacity of the U.S. because of the Great Depression. See Paul Kennedy, The Rise and Fall of the Great Powers.

32 Military Advantage In asymmetric conflict, it is more or less assumed that the governmental side has an overwhelming advantage in conventional military terms, at least at the beginning of the conflict.

33 Military Advantage Theorists/advocates of asymmetric warfare have developed strategies to overcome this advantage; Mao Zedong (successfully) and Che Guevara (not so successfully) promulgated “long war” theories. The newest flavor of long-war theory is muqawama, as promulgated by Hassan Nasralla, Yasser Arafat, et al.

34 Theory of Change In an asymmetric conflict, the conventional military/economic judgment of probability of success needs to be replaced by a theory of change: a coherent, realistic notion of how a given set of means is likely to bring about a desired end.

35 Theory of Change A non-military example: Head Start programs. “Head Start promotes school readiness by enhancing the social and cognitive development of children through the provision of educational, health, nutritional, social and other services.” See, for example, “What is Theory of Change”,

36 The advantage of a “credible theory of change” test 1. It forces governments involved in asymmetric conflict to realize that their superior physical resources may not be decisive, or even very useful; and 2. It forces both sides, at least in theory, to justify their actions based on actual evidence and analysis rather than wishful thinking.

37 The advantage of a “credible theory of change” test Functionally, “credible theory of change” should be equivalent to “probability of success”—but one hopes that the new formulation would help to avoid such fatuous justifications for conflict as “Let the IDF win” or “This ‘Israel’ that owns nuclear weapons and the strongest air force in this region is more fragile than a spider web.”

38 The story so far… Jus ad bellum has been of somewhat limited value in regulating conventional war, and appears to have failed spectacularly in dealing with asymmetric/fourth-generation war. There is some hope, though, that revision and emphasis of the “last resort” and “probability of success” (or, in my formulation, “credible theory of change”) tests can result in a more successful jus ad bellum standard for asymmetric conflict.

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40 Components of Jus in Bello Jus in bello is based upon two fundamental principles: distinction and proportionality. u Distinction requires that combatants make a good- faith effort to direct fire only at enemy combatant targets. u Proportionality requires that combatants use force in such a way as to minimize unnecessary damage, particularly to noncombatants.

41 Proportionality The principle of proportionality is commonly expressed in two different ways: u An attack must not be carried out if it is known that the damage to civilians will be out of proportion to the military advantage to be gained by the attack. u An attack must not be carried out with weapons that are significantly more destructive than are necessary to achieve the military objective of the attack. This is sometimes referred to as the principle of minimum force.

42 Proportionality Although proportionality is usually invoked in relation to damage to civilian targets, it can also be applied to military targets. For example, a military formation should not be killed to the last soldier if it is possible to compel it to surrender.

43 Jus in Bello in Asymmetric Conflict Asymmetric conflict presents special challenges in applying jus in bello: Obviously, distinction becomes an especially difficult problem when one’s enemy does not wear uniforms and carry arms openly, and may even store weapons in religious sites or use ambulances to transport fighters or weapons. When combatants look like everybody, everybody looks like a combatant.

44 Jus in Bello in Asymmetric Conflict Similarly, proportionality (which can be a very slippery concept even in conventional war) becomes difficult to judge when combatants deliberately shelter among a civilian population, and even more so when terrorists deliberately target civilians.

45 Jus in Bello in Asymmetric Conflict Ultimately, both distinction and proportionality are matters of information and intention; and while it is often possible to reconstruct what information was available, intention can seldom be judged reliably—at least until we become telepathic. This means that the application of jus in bello to real-world conflicts is largely a problem of measurement.

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47 Mortality statistics in asymmetric conflict In one form or another, body counts have been an aspect of warfare for thousands of years: “And the women sang to one another as they celebrated, ‘Saul has struck down his thousands, and David his ten thousands.’” (1 Samuel 18:7) “David arose and went, along with his men, and killed two hundred of the Philistines. David brought their foreskins, which were given in full number to the king, that he might become the king’s son-in-law.” (1 Samuel 18:27)

48 Mortality statistics in asymmetric conflict Until recently, though, fatality statistics were viewed as purely positive: killing large numbers of the enemy was considered an unambiguously good thing. Robert McNamara’s emphasis on quantitative measures of “progress” in Vietnam brought mortality statistics to particular prominence— even though there were some questions about the reliability of these statistics.

49 Mortality statistics in asymmetric conflict This emphasis on body counts as a quantitative measure of combat has persisted, even though the quantification of enemy dead turned out to be an unsuccessful measure of success in Vietnam. In asymmetric conflict, the usual emphasis on fatality statistics has some unfortunate consequences:

50 Mortality statistics in asymmetric conflict u Numbers, while easy to report on, tend to over- simplify complex realities. u The use of relative fatality statistics feeds into the incorrect use of “proportionality” to represent the proportion between the two sides’ fatalities—which almost inevitably punishes the government side in a conflict.

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52 So what can mortality statistics tell us about a conflict? What good are they? Unlike most other things we can measure, deaths are relatively concrete. Even in the Middle East, death generally happens only once to any given person. Further, deaths are generally reported, where non-fatal incidents may make it into the “papers” only on a slow news day.

53 Defeating controversy Certain aspects of fatality reports are contentious: we often find that one side reports the death of an “innocent civilian”, while the other side reports the same person as having been an armed combatant.

54 Defeating controversy However, basic demographic information— names, ages, genders—is usually non- controversial, and can be surprisingly informative when analyzed properly.

55 Defeating controversy In a thoroughly-reported conflict like the Israeli- Palestinian one, there is generally a wealth of reportage on each fatal incident; it may be necessary to read several accounts of an incident to “triangulate the biases”, but it is generally possible to get a pretty good idea of how any particular person died.

56 What we would expect to find Analysis of fatalities begins with a “null hypothesis”: assuming those killed were killed completely at random (e.g. by bombing residential or commercial districts of a town), what would the demographic profile of the fatalities look like?

57 What we would expect to find In the Gaza Strip, for example, the median age of the population is around 17; so if people are killed at random, we would expect roughly half to be younger than 17, and half to be older. Further, we would expect a basically balance between male and female victims. Combatants, at least among the Palestinians, are almost 100% male, and are seldom below the age of 16 or 17. ( 13-year-old kids throwing rocks are not combatants, except in very unusual circumstances!)

58 What we would expect to find Thus, if we were to see a consistent pattern of Palestinian fatalities that closely resembled that of the Palestinian population as a whole (i.e. median age around 17, roughly 50% female), we would be justified in assuming that random killing had accounted for most of these fatalities—and this, in turn, would give us strong grounds for believing that their deaths were the result of indiscriminate fire, disproportionate force, or both.

59 What the findings show In fact, we have not seen this pattern in Palestinian fatalities, except among particular classes of victim such as passersby killed as “collateral damage” in Israeli missile strikes aimed at militants.

60 What the findings show In general, in any particular period of combat we expect to see at least two broad categories of fatality: u A “baseline” group with demographics close to those of the general population; u A combatant-like group of males aged around 17-35, in excess of their proportion of the “baseline” group; u Sometimes, we see other non-baseline groups—for example, in the al-Aqsa Intifada, we saw a large number of boys between 12 and 15 killed, but very few women and girls of any age.

61 What the findings show These demographic categories do not tell us everything, but they give some good indications of what is going on in a conflict: The fact that there are fatalities in the “baseline” group does not itself imply that war crimes have taken place, since innocent civilians are frequently killed even when combatants make good-faith efforts to avoid unnecessary killing. However, if the “baseline” group is larger than normal for the type of combat involved, something is wrong. (The problem, of course, is defining what is “normal”!)

62 What the findings show The fact that there are “excess” male fatalities of combatant age does not imply that all these people were in fact combatants. However, it does give an indication that someone was attempting to distinguish combatants, or at least “likely combatants”, from the general population. The presence of other groups—e.g. young males in the al-Aqsa Intifada—indicates that something non-random is going on; but to determine what that is, we need to learn more about the incidents in which these people were killed.

63 Conclusion: Mortality statistics, used improperly, can create a distorted image of an asymmetric/fourth-generation conflict—particularly when combined with incorrect ideas about the jus in bello principles. However, when compiled and analyzed properly, fatality data can provide one of the few tools we have in reaching an understanding of what’s going on beneath the “fog of war”.


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