Assess the legality of the uses of force accordi

The Unintended Consequences of War: Self-Defense and Violence against Civilians

in Ground Combat Operations1,2

M A R C U S S C H U L Z K E

University of Leeds

Although extensive research has been done on the causes of violence against civilians, it is usually directed at explaining why civilians are delib- erately targeted or how militaries organize themselves in ways that lead soldiers to endanger civilians. As I show, many civilians are injured or killed by members of armed forces who strive to comply with the norms of war. Some attacks on civilians during ground combat operations in contemporary wars can be explained in terms of the tension soldiers experience between their indefeasible right of self-defense and their un- certainty about the identity and location of civilians on the battlefield. I illustrate this tension and explore its consequences by drawing on inter- views with American and British veterans of the wars in Afghanistan and Iraq. This helps to explain the persistence of attacks on civilians even as the American and British armed forces make greater efforts to respect noncombatant immunity.

Keywords: civilian casualties, war, military, Afghanistan, Iraq

The principle of noncombatant immunity (PNCI), which forbids civilian targeting and indiscriminate uses of force that put civilians at high risk of being harmed, is an almost universally accepted norm. It is one of the basic tenets of just war the- ory (Walzer 1977; Orend 2006; Lee 2012), a core element of international human- itarian law (Gardam 1993, 1999), and a fundamental value of most armed forces’ ethical codes (Toner 1995; Cook 2004). The importance of protecting civilian lives is regularly proclaimed by state leaders (Ben-Porath 2007) and shapes citi- zens’ expectations of how wars should be waged (Sapolsky and Shapiro 1996; Gentry 2006; Walsh 2014). Nevertheless, states continually inflict heavy civilian ca- sualties during armed conflicts (Slim 2010; Rothbart and Korostelina 2011; Tirman 2011). This raises the question of why violence against civilians persists de- spite the appearance of widespread support for the PNCI.

One potential answer to this puzzle is that belligerents willfully violate the PNCI when they have overriding strategic, cultural, or personal motives for doing so. Many studies offer this type of explanation by exploring the reasons why violent organizations (Harff 2003; Mitchell 2004; Valentino, Huth, and Balch-Lindsay 2004; Downes 2006, 2007, 2008; Kalyvas 2006; Valentino, Huth, and Croco 2006; Hultman 2007) or individual combatants (Fujii 2013; Manekin 2013) choose to

1Support for this research was provided by a Franklin Research Grant from the American Philosophical Society. 2I would like to thank the veterans who shared their experiences with me, the anonymous peer reviewers, the

editors of ISP, and the American Philosophical Society for the invaluable assistance they provided.

Schulzke, Marcus (2016) The Unintended Consequences of War: Self-Defense and Violence against Civilians in Ground Combat Operations. International Studies Perspectives, doi: 10.1093/isp/ekv008 VC The Author 2016. Published by Oxford University Press on behalf of the International Studies Association. All rights reserved. For permissions, please e-mail: [email protected]

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attack civilians. These studies’ shared focus on deliberate violence against civilians leads them to suggest that armed forces have a high degree of control over the ci- vilian casualties they inflict. The persistence of civilian casualties correspondingly indicates an unwillingness to abide by the PNCI.

Others attribute attacks on civilians to institutional characteristics that, while not direct endorsements of violence against civilians, increase its likelihood in fairly predictable ways. Examples of these institutional characteristics include risk management strategies (Benvenisti 2006; Rasmussen 2006; Smith 2008; Levy 2010), internal norm enforcement mechanisms (Kahl 2007; Dickinson 2010), and weapons technologies (Der Derian 2009; Zehfuss 2011; Kaag and Kreps 2014). From this perspective, violence against civilians is indirectly chosen because orga- nizations have some ability to control these institutional causes.

These studies provide strong evidence that a great deal of violence against civil- ians can be accurately described as resulting from deliberate targeting decisions, from institutional design decisions, or from some combination of the two. They are particularly valuable when accounting for variance in the levels of violence cross-nationally or across time. However, my contention is that the causal mecha- nisms these perspectives identify cannot account for all the violence against civil- ians, especially attacks perpetrated by armed forces that show a high degree of respect for the PNCI and that appear to make genuine efforts to minimize civilian casualties. The existing explanations of violence against civilians are primarily based on elite or organizational decisions that cause or allow analysts to overlook the reasons why individual soldiers harm, or at least endanger, civilians. I will use interview data to show that some attacks on civilians in ground combat operations are the unintended by-product of the tension between two structural conditions that exist regardless of belligerents’ efforts to respect noncombatant immunity.

The first structural condition is uncertainty. Combatants are frequently un- aware of which perceived threats are real or imagined (identity uncertainty) and where civilians are on the battlefield (locational uncertainty). It is well known that uncertainty is compounded in wars against nonuniformed opponents because of the lack of clear visual indicators that might facilitate target identification (Kutz 2005; Reisman 2006). However, the concealment offered by vehicles and struc- tures presents an additional barrier to properly identify enemy combatants, even when combatants wear uniforms or openly carry weapons. Vehicles and structures can completely conceal enemy combatants and civilians, making it difficult to de- termine when potential threats are real and when civilians are in close proximity to enemy combatants. Faced with insuperable uncertainty in these two forms, combatants may have enormous difficulties predicting how their actions will affect civilians.

The second structural condition is the indefeasible right of self-defense, which raises an exception to the rules of engagement (ROE) that govern soldiers’ con- duct. The right of self-defense permits soldiers to use force to protect themselves when they feel threatened, regardless of their ROE or the risk to civilians. Nevertheless, identity and locational uncertainty complicate the application of the right of self-defense in two ways that put civilians at risk. First, identity uncer- tainty hinders soldiers’ efforts to determine when potential threats are real and when they are imagined. If they lack vital information about when they are threat- ened and by whom, soldiers face the dilemma of either responding to apparent threats with lethal force, at the risk of inadvertently harming civilians, or acting with restraint, at the risk of being killed by misidentified enemy combatants (Schulzke 2013). Second, when soldiers contend with known threats from enemy combatants, they may be unable to determine whether civilians are at risk because of locational uncertainty. Acting defensively against known enemy threats that may be in close proximity to unseen civilians can lead soldiers to inadvertently harm innocent bystanders.

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Accidental violence resulting from soldiers exercising their right to self-defense under conditions of profound uncertainty is extremely difficult to prevent. Uncertainty is a pervasive condition of war, which may be mitigated with better in- telligence collection (see Lyall and Wilson 2009), but cannot be completely overcome—especially in the circumstances that are identified in my interviews. And the right of self-defense is generally treated as a fundamental right that sol- diers cannot be deprived of and that provides the moral grounds for authorizing them to use lethal force during war (Walzer 1977). Any efforts to impose stricter constraints on soldiers may reduce some unjustified attacks, but would be unable to prevent accidental attacks in which soldiers are acting defensively against per- ceived threats. These conditions may exist during any conflict in which soldiers are seen as having a right to self-defense, yet they become particularly important for explaining the persistence of violence against civilians when armed forces make a concerted effort to improve compliance with the PNCI, as the American and British militaries did during the wars in Iraq and Afghanistan (Kahl 2007). Moreover, these structural conditions that lead to accidental violence against civil- ians may persist whenever armed forces recognize that soldiers have a right of self-defense that can be enacted with lethal force, making them generalizable be- yond the cases that I analyze here.

Explaining the Persistence of Violence against Civilians

Much of the literature on violence against civilians is directed at explaining why organizations or individual combatants choose to attack civilians (Harff 2003; Mitchell 2004; Valentino, Huth, and Balch-Lindsay 2004; Downes 2006, 2007, 2008; Kalyvas 2006; Valentino, Huth, and Croco 2006; Hultman 2007). Usually this decision is explained as being the result of strategic calculations made by elites, such as policymakers or high-ranking military commanders. Although these studies do not deny that some violence against civilians may be unintentional, they usually refrain from discussing this type of violence in any detail or consider- ing why it occurs.

Downes (2006, 2007, 2008) offers a prime example of this perspective, as he finds that two factors—both rooted in strategic incentives—explain the decision to attack civilians. First, he argues that belligerents tend to target civilians out of desperation to win. “According to the desperation logic, states that are embroiled in costly and prolonged struggles become increasingly desperate to snatch victory from the jaws of defeat and reduce their own losses” (Downes 2008, 3). Second, attacking civilians facilitates territorial conquest by preemptively eliminating dis- senters which assists in tightening control over the conquered territory. These two mechanisms allow Downes to explain civilian targeting with a single underlying as- sumption: That belligerents act based on “a preference for victory” (2008, 11). These causal mechanisms and the underlying idea that attacks on civilians follow from a particular incentive structure lead to a plausible and parsimonious theory of why civilians are targeted, yet Downes fails to give much attention to the possi- bility that some attacks may be perpetrated by combatants who intend to comply with the PNCI.

A number of other studies attribute violence against civilians to militaries’ or states’ institutions. The focus here is generally on the structure of organizations, rather than on elite decisions, yet the organizations are generally described as em- bodying elites’ attitudes toward civilians. One possibility is that violence against ci- vilians is a by-product of risk management strategies (Walzer 1977, 61; Shaw 2002; Kasher and Yadlin 2005; Benvenisti 2006; Rasmussen 2006; Smith 2008; Levy 2010; McMahan 2010). By this account, armed forces indirectly choose to endan- ger civilians via decisions to displace the risk to their own forces. For example, Smith (2008) argues that despite war’s unpredictability, belligerents can make

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fairly clear decisions about how to balance risks to their own forces against the risks of harming civilians. “The fog of war can never be dispelled completely, but to a large degree, modern strategies fix the levels of risk that combatants and non- combatants face. Civilian casualties flow from policy preferences in predictable ways” (Smith 2008, 145). This suggests that structural conditions like uncertainty play a fairly minor role in explaining violence against civilians and that belliger- ents indirectly choose to attack civilians even when they do not directly target them.

Some commentators are concerned that new military technologies may facili- tate violence against civilians. By some accounts, weapons like precision-guided munitions and drones lower inhibitions against attacking civilians by making it easier to hide casualties (Der Derian 2009; Zehfuss 2011). Others contend that these weapons hinder efforts to distinguish between combatants and noncombat- ants by removing humans who are capable of making that distinction from the battlefield (Kreps and Kaag 2012; Kaag and Kreps 2014). Conversely, the use of advanced weapons by powerful states could arguably force weak states and non- state actors to attack civilians out of desperation (Killmister 2008). Thus, the choice to develop these weapons is treated as a choice to wage wars in ways that increase the likelihood of civilian casualties.

Other studies explain attacks on civilians with reference to how violent organi- zations enforce norms. Kahl (2007) and Dickinson (2010) argue that the presence of norm and law enforcement mechanisms in the US military help to discourage violence against civilians. Kahl’s work is particularly important, as he goes beyond other studies in recognizing that there are limits in the extent to which militaries can conform to the PNCI. Kahl correctly notes that the US military has made a concerted effort to respect civilian immunity and that it is far more sensitive to ci- vilian casualties than it was in previous wars. Its policies are informed by the “anni- hilation-restraint paradox”—“a commitment to the use of overwhelming but lawful Force” (Kahl 2007, 8). This suggests that some violence against civilians may be attributable to residual institutional imperfections. However, Kahl also briefly discusses the kind of accidental violence against civilians that I will focus on in the following sections and indicates that this type of violence will persist de- spite institutional reforms. My analysis will build on Kahl’s by exploring the rea- sons why stricter norm enforcement cannot eliminate violence against civilians.

Although most of the literature on violence against civilians addresses organiza- tions and the choices made by elites, several studies have investigated why individ- ual soldiers attack civilians. These tend to focus on attacks that reflect a lack of respect for civilian immunity. Manekin (2013) seeks to explain why soldiers en- gage in “opportunistic violence,” which is a personal decision to attack civilians without orders to do so. Using a survey of Israeli Defense Forces (IDF) veterans, she shows that the incidence of this kind of violence increases as soldiers spend longer periods of time in contact with civilians. Manekin hypothesizes that oppor- tunistic violence results from growing resentment between soldiers and civilians. Similarly, Fujii (2013) contends that soldiers who engage in extralethal violence— violence that goes beyond what is necessary to kill and that often involves extreme attacks on civilians—are influenced by a performative logic. Soldiers play particu- lar roles that encourage them to carry out atrocities and enable them to disassoci- ate themselves from their actions.

As this overview of the literature shows, violence against civilians is generally studied as a type of direct choice on the part of elites or indirect choice that is evi- denced in organizational behavior. And the relatively limited research on noneli- tes is likewise primarily concerned with intentional violence. Of course, explanations based on institutional decisions and those based on decisions by elites or nonelites are not mutually exclusive. Some accounts of violence against civilians, and unethical conduct more generally, explain how organizational

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decisions may enable individual soldiers to act wrongly by creating opportunities for misconduct (Osiel 1999). Others show that individuals can influence militar- ies’ institutions and cultures in ways that promote misconduct (Pryer 2009, 8; Couch 2011; Fujii 2013). This leads some of the research on direct decisions to at- tack civilians to overlap with studies that focus on institutional causes.

Existing studies of violence against civilians have identified important causal mechanisms that can explain some types of attacks, yet they generally overlook the ways in which the structural conditions of the battlefield may lead combatants to inadvertently attack civilians and the extent to which these structural conditions are beyond elite or organizational control. Aside from a few studies that attempt to account for “collateral damage” that is inflicted on civilians as a by-product of attacks on military targets (Hultman 2012; Cronin 2013; Kahl 2007), there seems to be limited attention to the reasons why civilians may be unintentionally harmed. A more complete view of attacks on civilians should not only account for the violence that is directly or indirectly chosen, but also the vio- lence that persists even when belligerents seem to show a genuine commitment to minimizing civilian casualties. Moreover, research on this topic could benefit from greater attention to the experiences of the nonelite soldiers who are directly involved in attacks that injure or kill civilians.

Methodology

I illustrate the tension between uncertainty and the right of self-defense using sto- ries drawn from interviews that I conducted with thirty-four US Army soldiers, twelve British Army soldiers, and eight British Royal Marine Commandos. All par- ticipants were veterans of combat operations in Afghanistan or Iraq between 2003 and 2011. Each had served at least one tour of duty in a unit that was deployed to one of these conflicts, though the average number of tours was three for American participants and two for British participants. I interviewed the American soldiers in 2011 and 2012, the British Army soldiers in 2012, and the Royal Marine Commandos in 2014. Fifteen of the American soldiers were on ac- tive duty and were contacted in person at Fort Bragg, North Carolina. The other American soldiers and all the British soldiers and marines had left service, though some worked as military contractors. These participants were contacted through veterans’ organizations or were referred to me by other participants using snow- ball sampling.

All interviews were semistructured and lasted between one and two hours. The interviewees were asked to describe some of the most difficult ethical dilemmas they encountered while deployed, without being directed to talk about any partic- ular event or type of ethical dilemma (see the Appendix for a list of the questions that were asked). Almost all interviewees said that the most ethically challenging situations they encountered were those in which uncertainty and the need to act in self-defense led them or other soldiers to endanger civilians. They found that three types of situations were particularly apt to raise the tension between self-de- fense and uncertainty: guarding traffic control points (TCPs), protecting vehicles in convoys or patrols, and attacking enemy combatants who were inside civilian structures. The stories I recount here are only a few of the many interviewees told and were selected because they exemplify the events that were most frequently reported.

The number of interviewees I consulted is too small to permit reliable generali- zations about how common unintentional attacks on civilians are compared to at- tacks that are directly or indirectly chosen. However, the interviews are helpful for illustrating how and why soldiers inflict accidental civilian casualties. They also provide a sense of how soldiers explain their involvement in attacks. Individual soldiers’ experiences provide vital information about conflicts, which is often

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overlooked in international relations research because of a general tendency of focusing on elites and belligerent organizations (Parashar 2013; Sylvester 2013). Interviewing veterans and others who have first-hand knowledge of war provides a way of gaining a new perspective on what wars are like, which may be inaccessible using other research methods (Lomsky-Feder 1995; Parashar 2013; Pain 2015). As Mirra points out, interviews are the only way to get at the critical issue of: “What goes through a soldier’s mind when he or she witnesses (or participates) in kill- ing?” (2008, 1). In this case, what goes through a soldier’s mind when he or she witnesses or participates in attacks directed against civilians?

There are, of course, limits to this approach. First, the interviews do not give a clear sense of how common accidental attacks on civilians are. Indeed, the inter- views I conducted indicate that it may be impossible to grasp the extent of this problem because the people who are attacked are often unidentified or have con- tested identities. Second, soldiers may give biased accounts of their own actions. Of particular concern is that they may attempt to excuse intentional or negligent attacks on civilians by saying that these were accidental. Nevertheless, the pattern of soldiers providing similar explanations for violence against civilians in my inter- views, as well as in many narrative accounts of combat in Afghanistan and Iraq (Hedges and Al-Arian 2008; Spiller 2014), suggests that the phenomenon I iden- tify is genuine. Moreover, the risk of bias is an unavoidable consequence of ex- ploring the issue of violence against civilians from the perspective of those who are the most directly involved in it.

Operationalizing the PNCI

The exact number of civilian casualties caused by the wars in Afghanistan and Iraq are heavily contested, with most estimates of the total casualties inflicted by fighters on both sides ranging from 18,000 to 21,000 for Afghanistan (Costs of War 2014a; Rasmussen 2015) and from around 100,000 to nearly 500,000 for Iraq (Iraq Study Estimates 2013; Costs of War 2014b). Whatever the true numbers are, it seems fair to conclude that the American and British armed forces were respon- sible for inflicting thousands of civilian casualties during those wars. Much of the existing research on violence against civilians suggest that our search for the causal mechanisms behind these attacks should be directed either at discovering the incentives that led the American and British militaries to disregard civilian im- munity or at analyzing the institutional dynamics that resulted in the attacks. However, the American and British armed forces’ have made concerted efforts to comply with the PNCI, which indicates that such explanations may not be able to account for all the civilian casualties.

Since the Vietnam War, the US military has devoted considerable attention to training soldiers to make independent ethical decisions. Each branch of the US military has its own code of values that soldiers are trained to embody and each provides ethics education (Challans 2007; Robinson 2007; Cook 2009). The British military has made similar efforts to improve compliance with the norms of war. This is evident from publications that affirm the importance of military ethics, such as The Values and Standards of the British Army (British Army 2008), the formal ethics education given to officers (Deakin 2008; Mileham 2008), and the development of ethics training activities that specifically address the proper treat- ment of civilians (Ledwidge 2011, 177).

The trajectory of weapons development and doctrinal innovations in both countries likewise signal a willingness to comply with the PNCI. Each military has sought to develop more discriminate and proportionate weapons, such as preci- sion-guided munitions, drones, and an assortment of nonlethal weapons (Mandel 2004; Krishnan 2009; Singer 2009). They have likewise framed their counterinsur- gency doctrines to emphasize the importance of seeking nonlethal methods of

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conflict resolution (Mockaitis 1995; Chin 2007; Kilcullen 2010; Perez 2010). These new weapons and doctrinal innovations have been heavily criticized for fail- ing to achieve their goals and for introducing new ethical problems (Branch 2010; Gilmore 2011; Boyle 2013; Dunn 2013; Kaag and Kreps 2014). Nevertheless, the range of efforts to reduce civilian casualties suggests that the American and British armed forces are making a genuine effort to respect noncombatant immunity.

To understand the persistence of violence against civilians, it is useful to direct more attention to soldiers’ experiences and to inquire into what they think causes the attacks that they are involved in. From the perspective of the individual sol- diers in the US and British armed forces, the PNCI is primarily operationalized in ROE, which explain when and how soldiers are permitted to use force. ROE are typically framed by military commanders with the help of their legal advisors. They are then filtered down through the chain of command to allow officers in intermediary command positions to impose additional restrictions (British Army 2010, 2–11; Department of the Army 2013).

Despite the variance of ROE cross-nationally and even across various units within the same military, it is possible to identify several consistent features. First, the ROE employed by United States and British forces in Iraq and Afghanistan in- variably forbid the targeting of civilians and instructed soldiers to exercise re- straint during combat to avoid inflicting civilian casualties. Because ROE must agree with international law, they will always have to prohibit soldiers from target- ing or recklessly endangering civilians. This in itself is a powerful indication that at least some of the civilians who were attacked by American and British soldiers were attacked despite efforts to impose stronger institutional constraints on how soldiers act.

Second, ROE are frequently supplemented by escalation of force (EOF) guide- lines that provide a series of actions, gradually increasing in lethality, that soldiers can take when confronted with potential threats. For example, the EOF sequence commonly used by American forces in Iraq and Afghanistan was shout, show, shove, shoot, shoot. This means that soldiers encountering a potential threat were supposed to shout verbal warnings, display their weapons, use nonlethal force, fire warning shots, and finally, shoot to kill. As we will see later, EOF are meant to alleviate the problems associated with identity and locational uncertainty.

Third, ROE include exceptions that allow soldiers to exercise their individual right to self-defense. Soldiers can deviate from the ROE, and even be excused for harming civilians, when taking reasonable actions to defend themselves against a threat. The ROE cards given to American soldiers make the self-defense excep- tion explicit, as they open with statements such as “[n]othing on this card pre- vents you from using necessary and proportional force to defend yourself” or “[n]othing in these rules limits your inherent right to take action necessary to de- fend yourself.”3 These statements are usually highlighted or printed in bold type for emphasis. The ROE cards also tend to frame restrictions on the use of force with explicit self-defense exceptions. For example, one ROE card used in Iraq in 2003 said “[d]o not fire into civilian populated areas or buildings unless the en- emy is using them for military purposes or if necessary for your self-defense” (Human Rights Watch 2003, 138). British ROE cards do not always explicitly refer to the right of self-defense. However, the right is considered to be a fundamental and permanent authorization. The British Defence Doctrine affirms that “[a]n enduring accompaniment to ROE is the inherent and inalienable legal right to act in self-defence, where such activity is both reasonable and necessary” (Ministry of Defence 2008, 1–16).

3Both ROE statements were communicated in interviews.

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Uncertainty and Defensive Violence

Like the PNCI, the right of self-defense is a core element of customary interna- tional law (Dinstein 2001; Rodin 2003; Trumbull 2012) and is widely considered to be an inalienable right by moral and legal theorists (Thomson 1986; McMahan 2002). Soldiers’ authorization to act in self-defense tends to be stated in vague and highly subjective terms in official publications, and when soldiers are given verbal instructions on how to exercise that right, yet this is unavoidable. The cir- cumstances under which soldiers may exercise the right of self-defense must be loosely defined because soldiers have to guard against myriad types of threats, some of which may be unanticipated by their commanders. Judgments about when the right of self-defense can be invoked must also be somewhat subjective because it is an individual right. As the bearers of the right of self-defense, individ- ual soldiers must be primarily responsible for determining when something threatens them.

The right of self-defense provides soldiers with an extremely permissive authori- zation to act in ways that may endanger civilians. And because soldiers are allowed to go beyond the ROE to defend themselves, increasing the strictness of ROE can- not put an end to defensive violence against perceived threats that may turn out to be illusory. Prohibiting soldiers from acting on their own initiative to defend themselves is untenable, as this would deprive them of a fundamental right and render them ineffective against enemy forces. Thus, the right of self-defense pro- vides grounds for soldiers to inflict nonintentional violence on civilians, and this violence cannot be constrained by ROE or other institutional mechanisms with- out breaching soldiers’ rights.

Of course, there are objective

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