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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 signs of when someone is threatening, which pro- vide some guidance for determining when the right of self-defense can be justifi- ably invoked. Soldiers cannot claim to be acting defensively if they deliberately target civilians or if they use disproportionate force that is apt to inflict “collateral damage.” Soldiers must, at a minimum, have a reasonable suspicion that there is a genuine threat and they must only use the level of force that is necessary to elimi- nate that threat. This is why visual signifiers of hostility, such as wearing uniforms and carrying arms openly, are so important. They mark combatants and make it easier for soldiers to make informed judgments about who is a genuine threat. The problem is that visual signifiers are often unavailable when soldiers have to make critical decisions about the use of force.

It is well known that unconventional fighters may deliberately conceal their combatant status by refusing to wear uniforms and by opportunistically discarding their weapons to blend in with civilian populations (Kutz 2005; Reisman 2006). Unconventional fighters’ efforts to hide among civilians create serious challenges when soldiers are attempting to distinguish combatants from noncombatants. However, it is important to avoid linking this difficulty too closely to unconven- tional fighters’ refusal to wear uniforms, as this would suggest that the tension be- tween uncertainty and the right to act in self-defense only arises during unconventional wars. The stories that I will discuss later suggest that although the challenge of identifying nonuniformed combatants was serious, it was over- shadowed by the environmental obstacles of urban battlefields that may be used by uniformed and nonuniformed combatants alike (Antal 2003; Joes 2007; DiMarco 2012).

Although some interviewees did recall instances in which they were unable to determine whether a nonuniformed individual was threatening, these were sur- prisingly uncommon. Soldiers generally found that they could identify insurgents by their type of civilian dress, age, sex, and, most importantly of all, whether they appeared to be armed. By contrast, soldiers invariably struggled to determine whether the occupants of civilian vehicles or structures were threatening and

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when civilians might be in close proximity to enemy fighters located in vehicles or structures. Uncertainty in these instances sometimes led soldiers to defend them- selves against apparent threats that turned out to be civilians or against known threats that were in close proximity to unseen civilians. Therefore, although the interviewees described challenges of identifying insurgent fighters, these chal- lenges could also exist in combat against uniformed enemy combatants using ci- vilian vehicles or operating in urban areas.

Encountering Civilians at TCPs

Checkpoints, which are also known as TCPs or snap TCPs when they are estab- lished temporarily to catch insurgents by surprise, are extremely dangerous for ci- vilians and soldiers alike. They produce frequent interactions between soldiers, enemy combatants, and civilians under conditions that make it likely for check- point guards to misidentify civilians as threats. Most vehicles that approach check- points conceal their occupants. This causes identity uncertainty by denying guards any visual information that could indicate whether the occupant is hostile. Checkpoint guards also have an urgent need to be able to defend themselves against unexpected threats. Soldiers must remain in stationary positions, often with minimal cover, and allow a steady flow of unidentified people to approach them. Soldiers are at risk of being attacked by insurgents hidden inside of vehicles or nearby buildings. Most threatening of all is the prospect that a suicide bomber might approach a checkpoint and detonate a bomb before there is an opportu- nity to respond. The risks of sudden attack make it critical for soldiers to be able to defend themselves against suspicious vehicles.

EOF procedures are supposed to deter civilians from acting in ways that appear threatening, such as approaching a checkpoint at a high speed or failing to stop. As Bagwell (2008, 5) says, “soldiers were too often misidentifying threats and shooting the wrong people—people who posed no actual threat to them”. The soldiers I interviewed found that correct threat identification was exceedingly dif- ficult even with the EOF. One problem was that soldiers may have a very limited time in which to run through the escalation sequence. A US Army TCP Operations Smartcard published in 2010 estimated that soldiers at a checkpoint have around 11.6 seconds to stop a vehicle using the EOF before it reaches the le- thal force zone (Center for Army Lessons Learned 2010). This estimate was based on the assumption that the EOF will begin when approaching vehicles are 300 meters away from the checkpoint, which is unlikely in dense urban areas. Thus, while the EOF helped to identify when defensive violence could be used, the prac- tical demands of choosing whether to respond to a potential threat with lethal force were such that soldiers had no choice but to rely heavily on their own judg- ment, which was seriously impeded by uncertainty.

Civilians approaching checkpoints may also be affected by uncertainty for a vari- ety of reasons. People traveling in unfamiliar areas may not know where the local checkpoints are, and those traveling along familiar routes may be surprised by snap TCPs. Those who are illiterate may not be able to read the warning signs— or signs may not be posted at all. Some may misinterpret warning shots for an at- tack and attempt to speed away from the gunfire. Still others may fail to stop be- cause they are scared, driving drunk, or rushing to take someone to the hospital. The soldiers I interviewed reported instances of civilians attempting to pass check- points for each of these reasons and many others. Thus, small errors or misunder- standings led civilians to react to checkpoints in ways that caused the guards to feel threatened, thereby creating situations in which soldiers’ had to decide whether to act in self-defense without being certain of whether they were really threatened.

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An incident that was typical of those interviewees reported encountering at checkpoints involved a sergeant in the American Army who was deployed to Baghdad in 2004. Although checkpoint guard duty was always extremely stressful, the sergeant felt particularly anxious during one posting after his squad had come under attack from insurgents hidden in vehicles during their two previous shifts. Late in the day, a car approached the checkpoint and failed to stop as it passed the warning signs. The soldiers fired warning shots, but these only made the car go faster and increased their fears of attack. The soldiers responded by shooting at the car’s engine and tires in an effort to disable the vehicle without killing its occupants. The gunfire caused the car to swerve off the road and stop, allowing the soldiers to approach it. Inside they found an unarmed man who had been wounded by the shots.

When questioned by a translator, the driver said that he was illiterate and un- able to read the checkpoint’s caution signs. The warning shots had surprised the driver and caused him to accelerate because he thought he was under attack and became desperate to find cover. The interviewee emphasized that this kind of in- cident was common during his two deployments and that civilians who came un- der fire generally had reasonable excuses for failing to stop. However, this particular story stood out in the sergeant’s mind because he later heard rumors that the unarmed man died from his injuries. He described the shooting as a tragic event that happened despite his wishes to avoid harming innocent Iraqis. “I was there to help people,” he told me, “we all were. But you still have to protect yourself if you want to make it home.” It was telling that the soldier explained the attack as a tragedy that followed directly from excusable steps he and the other soldiers had taken to defend themselves against a potential threat.

Another interviewee, who was a corporal in an American cavalry unit, recalled guarding a TCP in Baghdad on a starless night in 2006. He saw the single head- light of an approaching motorcycle and fired two warning shots when it passed the checkpoint warning signs without slowing. The gunshots caused the vehicle to stop immediately, but the corporal was horrified to find that what had appeared to be a motorcycle in the darkness was actually a car with a broken headlight. The warning shots that were meant to pass harmlessly next to a motorcycle had instead gone through the windshield of a car with a family inside. Fortunately, the bullets missed the passengers, but the soldier was visibly upset as he remembered how close he had come to killing the family. Like many of the interviewees, the soldier said that he witnessed other instances in which soldiers attempting to halt vehicles had inadvertently injured or killed civilians, but he declined to describe these in detail.

In both of these stories, as well as in the many similar incidents that inter- viewees reported, soldiers endangered civilians through the use of defensive vio- lence. Moreover, these were instances in which it is doubtful that stricter ROE or other institutional constraints would have prevented the attacks. The soldiers’ ROE and EOF provided some guidance, yet the choice of whether to use force was ultimately a matter of whether the soldiers felt that they had to protect them- selves and their comrades from a potential threat, which could not be clearly identified based on the limited information available.

Protecting Convoys and Patrols

Interviewees who protected convoys or patrolled in vehicles were regularly forced to decide whether to attack vehicles that appeared to be threatening, but whose occupants could not be seen. Many interviewees were uncertain of who was inside other vehicles even after attacking them because the standard operating proce- dure was usually to speed away from contact to avoid being ambushed. As one

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American soldier told me, “We shoot the cars because we might be under attack, and if you’re in the middle of an ambush you can’t stop everything for an investi- gation.” Thus, identity uncertainty about vehicles’ occupants was frequently total and interfered with efforts to ascertain when civilians were mistakenly attacked, thereby preventing soldiers from even knowing when they caused civilian casualties.

A private in an American cavalry unit who was deployed to Baghdad in 2004 and 2006 said that he routinely operated a heavy machine gun that was mounted on one of the convoy escort vehicles. This gave the soldier enormous firepower, though at the expense of making it more difficult to use low levels of force. Shots meant to disable a vehicle’s engine or to destroy its tires could easily kill a vehi- cle’s occupants, especially when driving at high speeds that interfered with aim- ing. This soldiers’ exposed firing position also made him feel vulnerable to enemy attacks, which, he said, gave him reason to use lethal force to defend him- self against potential threats on multiple occasions.

The soldier described one incident that was particularly memorable because it was one of the few times he discovered the identity of someone who was attacked. The private was positioned in the lead vehicle of a large convoy traveling along a two lane road when a car approaching from the other lane failed to pull off the road as it came within range of the convoy. The commander of the private’s vehi- cle gave the order to engage the approaching car, but on this occasion, the pri- vate did not shoot. “I wasn’t trying to disobey the order” he told me, “I just froze. I wasn’t afraid either. It didn’t feel right.” The private went on to explain that he had fired at other vehicles approaching in the exact same way on many occasions, but that in this one instance, the feeling of uneasiness made him hesitate for the few seconds it took for other soldiers to open fire. That gunfire sent the car off the road as the convoy sped away from what might have been an insurgent threat.

Later, the private learned that a team investigating the incident discovered two unarmed adults inside the vehicle. The private said that this gave him a feeling of relief. He did not, as he worried, put himself and his comrades in danger by not shooting and he was not responsible for killing innocent people. When I asked him whether he was concerned about the possibility that he might have attacked civilians when he shot at other vehicles, he said that he had some qualms about this but that they were outweighed by his own defensive needs. “You just can’t take the risk” he said. “You have to defend yourself when someone’s a threat. We don’t know when they’re armed, so if they’re acting threateningly, you know, if they’re not responding to our warnings and ignoring our warning shots, then they’re a threat.” He went on to cite his inherent right of self-defense as the rea- son for shooting at vehicles despite the persistence of identity uncertainty. “It’s right there in the ROE,” he said. “We are authorized to defend ourselves, and sometimes we have to.”

One of the British Royal Marine Commandos I interviewed said that he and his fellow marines frequently had to shoot at or ram vehicles during their patrols. The chances of being ambushed were too high to do otherwise, he told me. The marine reported several instances in which this led to inadvertent attacks on civil- ians. In one fairly typical event, he was driving the lead vehicle through the nar- row streets of an Afghan town when a car pulled in front of the patrol. “I hit the gas and knocked it out of the way,” he said. “You don’t have much choice, since they could be boxing you in for an ambush.” The marine saw a terrified old man inside the vehicle as he hit it, but the patrol had to leave the scene of the accident immediately in case the man was being used as bait for a trap.

The marine was emphatic when telling me about the importance of not harm- ing civilians. As he put it “marines don’t shoot civvies.” Nevertheless, he was also quick to say that he was justified in attacking anyone who appeared to be danger- ous. When I asked whether it was difficult to decide when self-defense was

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justified he told me that “when you’re in combat, or might be attacked, the deci- sion is made for you.” I then asked whether he was bothered by the possibility that he could have injured or killed civilians hidden inside of vehicles when they were rammed out of the way to which he responded by explaining that civilians have a responsibility to not act threateningly. “I don’t want to kill any civvies, but I wouldn’t lose sleep killing someone over their own stupidity.” The marine knew that this seemed like a callous statement, yet he explained that the persistent threat of being suddenly attacked made that attitude essential for survival. Thus, as in the previous examples, the marine explained instances in which he had harmed, or at least endangered, civilians as being necessary expressions of his right to self-defense on a battlefield shrouded in uncertainty.

Responding to Enemy Combatants in Civilian Structures

Soldiers from both militaries said that it was common for insurgents in Iraq and Afghanistan to launch attacks from inside of buildings, including civilian homes. If they were under enemy fire and in areas that offered little cover, soldiers usu- ally felt that they had to counterattack quickly and with overwhelming force to protect themselves. At a minimum, this meant engaging buildings with small arms fire. When it was available, they might also call for air or artillery support to inflict heavier damage. This was particularly important when soldiers came under fire from large compounds in Afghanistan which offered excellent protection from small arms fire and were extremely dangerous for soldiers to enter when held by enemy fighters.

When insurgents hidden inside of buildings attacked soldiers who were in ex- posed positions, there was a clear enemy threat and little doubt that the soldiers were authorized to act defensively. However, the interviewees were frequently unsure of whether civilians were present in or around the civilian structures that were serving as insurgent firing positions. This locational uncertainty left the sol- diers unaware of whether they might inadvertently harm innocent bystanders and unable to determine exactly what level of force might be proportionate given the circumstances. Thus, there was a clear need to act in self-defense, but uncertainty about the location of civilians in the contested area obscured the potential costs of doing so.

The British and American soldiers who reported instances in which they came under attack from insurgents concealed in buildings said that their decisions about how to respond were heavily influenced by how serious the risk to their per- sonal security was. When soldiers felt that they were fairly safe from enemy fire they were generally cautious about counterattacking, preferring to maneuver into a strong position from which they could direct more selective fire at the enemy fighters. Some soldiers expressed concern that insurgents would publicize any ci- vilian casualties inflicted during combat to undermine support for Coalition forces, and said that this in itself was a powerful reason to exercise caution when- ever possible. However, interviewees consistently said that they were willing to de- fend themselves against insurgents even at the risk of harming unseen civilians.

One British Army corporal I spoke with said that he came under attack from Taliban fighters hidden in civilian buildings dozens of times during his two de- ployments to Afghanistan. The attacks typically came while British forces were in an exposed position, such as when they patrolled through open fields. The soldier and the other members of his unit usually fired back at the Taliban positions, de- spite the risk of inadvertently hitting civilians, because the lack of cover made them feel extremely vulnerable. At times, an attack would even open with one or more of the men in his platoon being shot or struck by shrapnel from an explod- ing mortar, which made it feel imperative to launch a quick and overwhelming

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counterattack. I asked the corporal whether he was concerned that innocent peo- ple might be harmed when returning fire. “Not in the moment,” he answered “only afterwards. When you’re engaged everything happens too fast and you’re just thinking about surviving. You only really think about it after and you just hope that any civilians made it through ok.”

The corporal recounted one instance in which his platoon came under fire dur- ing a foot patrol. As the British soldiers were moving through a shallow irrigation ditch, gunfire came unexpectedly from one of the large civilian compounds that are common throughout Helmand. The soldiers’ instinctive response was to take cover the best they could and to return fire. The presence of an immediate threat made it essential to counterattack, but it was unclear whether there were any civil- ians in the compound and this made it difficult to determine what level of force should be used. The platoon returned fire with small arms and shortly thereafter its commander called in air support to bomb the compound.

The interviewee told me that he had not given much thought to the possibility of inflicting civilian casualties while he was shooting because no civilians were visi- ble. However, he said that several were later found in the wreckage. The soldier felt that his platoon leader’s decision to call in air support had been justified be- cause of the imminent threat, yet he thought that less force might have been used if the patrol had known that civilians were inside the compound. Thus, by the sol- dier’s account, an attack that killed several civilians was the direct result of the men in his platoon exercising their right of self-defense by calling in an air strike that could eliminate the insurgents before any soldiers were wounded or killed.

Conclusion

Although many attacks on civilians may be attributable to deliberate targeting de- cisions or institutions that lower barriers against attacking civilians, these explana- tions fail to account for the structural conditions that can lead to attacks even when armed forces and individual soldiers seem to make genuine efforts to com- ply with the PNCI. It is impossible to make generalizations about the extent of vio- lence that is misdirected against civilians based on the relatively small sample of soldiers included in my interviews. However, the scenarios I have discussed help to illustrate the mechanisms that can lead to mistaken attacks. Each of the exam- ples provided by interviewees demonstrates how uncertainty and the right of self- defense can come into conflict in ways that put civilians at risk.

The checkpoint, convoy protection, and patrol scenarios were instances in which soldiers were uncertain about whether the vehicles approaching them con- tained civilians or enemy combatants. This identity uncertainty led interviewees to feel threatened by any vehicles that did not respond to warnings and EOF proce- dures, and resulted in soldiers using lethal force in an effort to protect them- selves. Soldiers were authorized to act defensively in these situations based on the right to self-defense and generally excused their attacks by appealing to that right, yet the soldiers’ defensive actions seriously endangered civilians. As the incident with the car missing a headlight showed, uncertainty sometimes even lead soldiers to mistakenly attack civilians when they were attempting to defuse a situation with- out resorting to lethal force. Instances in which soldiers responded to known threats that might have been near unseen civilians raised the same type of chal- lenge in a different form. The authorization to use defensive violence was clear when interviewees came under fire from insurgents positioned in buildings, yet the cover provided by those buildings was often so strong that soldiers felt com- pelled to use overwhelming force that was apt to harm civilian bystanders who were not visible.

Uncertainty and the need to act in self-defense are persistent structural condi- tions that exist regardless of elites’, organizations’, or individual soldiers’ attitudes

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about civilians and civilian immunity. Soldiers cannot be denied their right to self-defense and yet they are often unaware of when and how this right may be in- voked against genuine threats. It may be possible to alleviate the tension between uncertainty and the right of self-defense to some extent with the application of better ROE and EOF procedures. Nevertheless, because the right of self-defense creates an exception to these rules and procedures, it does not seem possible for these or any other institutional correctives to overcome the problem of attacks be- ing misdirected against civilians without also infringing on soldiers’ rights. Stricter ROE and EOF procedures may help to prevent intentional or negligent vi- olence, but may be suspended when the right of self-defense is invoked.

The structural conditions I identify can help to account for why US and British armed forces inflicted thousands of civilian casualties in Iraq and Afghanistan de- spite their efforts to avoid inflicting civilian casualties (Kahl 2007; Deakin 2008; Mileham 2008; Dickinson 2010) and to assist civilians who were harmed (Tracy 2007; Carroll and Schulzke 2013). The structural roots of some types of attacks also explain why American and British forces injured and killed civilians even when doing so was contrary to their counterinsurgency doctrines that prioritized efforts to earn the trust of indigenous populations in contested areas (Mockaitis 1995; Chin 2007; Kilcullen 2010; Perez 2010).

The tension between the right to self-defense and uncertainty suggests that ci- vilians will be attacked even when armed forces and individual soldiers attempt to respect the PNCI and that changing elite opinion and reforming institutions will not be able to overcome this source of violence. Nevertheless, there are ways that armed forces could attempt to manage this tension more effectively in the future. New technologies may be used to reduce uncertainty, alleviate the need to act in self-defense, or provide soldiers with ways of defending themselves without resort- ing to lethal force. Reducing uncertainty via more accurate intelligence gathering and surveillance tools is probably the most challenging of these three potential routes to improved compliance with the PNCI, especially when fighting takes place in urban areas or is against irregular enemy combatants. New forms of un- certainty persistently appear when new intelligence collection tools are deployed, and at times, these tools may even aggravate uncertainty by producing overwhelm- ing amounts of data that cannot be used effectively.

Uncertainty seems to be an ineliminable feature of war that new technologies cannot overcome, yet some technologies that are aimed at reducing the risks sol- diers face and providing them with alternative means of self-defense appear to be more promising. Remotely piloted vehicles offer one type of technological solu- tion to the problem of misdirected defensive violence. By removing soldiers from the battlefield, they obviate the need to act in self-defense and could, therefore, be used with stricter ROE that do not permit self-defense exceptions. This is one of the most compelling reasons for thinking that drones could potentially be more ethical weapons than piloted vehicles (Strawser 2010; Schulzke 2014). However, remotely piloted vehicles are not yet prepared to take over the kinds of ground combat operations described in the interviews and will probably not be able to replace human soldiers in the foreseeable future. Only the deployment of armed unmanned ground vehicles could actually remove soldiers from the most dangerous situations in which they might have to use lethal defensive force.

Armed forces could also make greater use of the many different types of nonle- thal weapons that are currently in development (Koplow 2006; Davidson 2009). Optical interrupter light emitting diode incapacitators and lasers may be used to temporarily blind drivers of vehicles that may be threatening as well as insurgents operating inside of civilian residences. Radio-beam projectors could be able to dis- able vehicles’ engines without directly affecting the occupants. Heat rays like the active denial system could drive enemy combatants out of civilian residences or at least suppress them for long enough to allow soldiers to withdraw to safer

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positions. And acoustic weapons may be able to emit noises that can deter or even temporarily disable adversaries.

These types of weapons could enable soldiers to defend themselves without re- sorting to lethal force and could, therefore, help to limit the extent of the harm in- flicted on civilians who are misidentified as threats. This might not prevent soldiers from mistakenly attacking civilians, but could help to ensure that civilians usually only sustain minor injuries rather than being incapacitated or killed. Nonlethal weapons raise their own ethical challenges, such as the risk that soldiers may be more inclined to deliberately attack civilians when they can do so without killing them (Mayer 2007), yet this risk may be worth bearing if it leads to a decrease in the number of civilians being killed or wounded in the kinds of incidents that I de- scribed. Nonlethal weapons might be particularly effective when they are restricted by the same ROE that govern the use of lethal force. This could diminish the pros- pects of soldiers using nonlethal weapons to carry out intentional or negligent at- tacks while still ensuring that civilians are exposed to a lower risk of serious injury or death than when soldiers exercise their right of self-defense.

Appendix: Interview Questions

What was your age while you were in the military? What was your motivation for joining? What was your occupational specialization? What led you to choose that specialization? Where were you deployed? What were the time periods of your deployment? What was your rank while you were deployed? What unit(s) were you a part of/attached to during your deployment(s)? How would you describe your moral values before joining the military? Could you tell me

how you tended to resolve ethical challenges you encountered before joining the military? What reasoning processes or values did you apply?

What is your religion? Did it have a significant effect on your moral thinking before train- ing? Did your religious values influence the decisions you made when you were deployed? If so, how did it affect them?

What kind of ethics training did you receive prior to deployment? How useful was it? What went well? What went poorly? Was this training conducted in conjunction with other kinds of training (ex. field exercises) or was it done in the classroom?

Did any of the training you received conflict with your values or cause you to change the way you made ethical decisions?

What legal instructions were you given prior to deployment? Did any part of your training conflict with the ethical and legal instructions that you were

given? If so, how? Could you tell me about some of the ethical challenges you encountered when you were

deployed? Which ethical challenges were the most common and why? Which ethical chal- lenges were the most difficult and why? Could you tell me about your reasoning when you encountered ethical challenges, especially how you were able to resolve them? How did you feel about these challenges and your decisions afterward? (The follow up questions to clarify the scenarios discussed and the reasoning that soldiers employed varied).

Did your training provide useful guidance for resolving the ethical challenges you en- countered during your deployment(s)? Why or why not?

What is your perception of the way other soldiers behaved in your unit and outside of it? What kinds of ethical challenges did they encounter and how did they tend to resolve them?

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