PEACEKEEPING

AND THE JUST WAR TRADITION

Tony Pfaff

September 2000
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Sciences Department for his invaluable efforts in developing and 

this monograph.

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ISBN 1-58487-034-6

ii
FOREWORD

In the following monograph, Major Tony Pfaff, a f

Assistant Professor of Philosophy at the United S

Military Academy, addresses an important source of 

of the confusion that currently surrounds many o

Operations Other Than War (OOTW) that the military 

itself participating in with increasing frequency. The a

points out that, though the source of this confus

primarily ethical, it has important operational implica

as well. In the Just War Tradition, as well as the L

War, there has always been a tension between winnin

fighting well, and the peacekeeping environment do

change this. Commonly, the resolution of this tens

expressed in the maxim: always use the least amo

force necessary to achieve the military objective. 

maxim applies, regardless of the environment one is i

author’s contention is, however, that the understand

necessary is radically different in the peaceke

environment than what it is in more convent

operations.

Others have intuitively grasped this point. A

International Military Ethics Symposium in Trond

Norway, for example, the Judge Advocate General f

Norwegian Army claimed that the police ethical doctr

the most appropriate one for peacekeeping missions. H

not, however, explain why. By comparing and contra

military and police ethics with the range of environme

which soldiers find themselves, the author tries to fi

void by first demonstrating that the Just War Traditi

generally understood, cannot extend to peaceke

operations. The author then discusses what must be d

solve this problem and, by so doing, resolve much 

confusion generated when soldiers look like policem

the outside but have to think like soldiers on the i

Thus, this monograph should be of great interest not o

iii
those in the field who are routinely confronted wit

ambiguities of the peacekeeping environment, but a

those charged with forming the policies that those 

field must observe.

This monograph is being published in cooperation 

the Center for the Professional Military Ethic to en

discussion of military professionalism within the Arm

sister services.

DOUGLAS C. LOVELACE, JR

Director

Strategic Studies Institute

iv
BIOGRAPHICAL SKETCH OF THE AUTH

TONY PFAFF, a U.S. Army major, taught i

Department of English and Philosophy at West Poin

received a BA in Economics and Philosophy 

Washington and Lee University and an MA in Philo

from Stanford University, where he was also a gra

fellow at the Stanford Center for Conflict and Negoti

An Infantry officer, he served in the 1/505 PIR, 82d Air

Division from 1987 to 1991 with which he deploy

Persian Gulf. He also served in the First Armored Di

from 1992 to 1995, holding several brigade and bat

level positions including Company Commander 

Battalion S3. During that time he also deploy

Macedonia for Operation ABLE SENTRY. Major Pfa

written on a variety of topics including military e

ethics of development, chaos theory, and conflict resolu

v
PEACEKEEPING

AND THE JUST WAR TRADITION

Introduction. 

For most people, considerations about the use of d

force are most commonly and readily thought of as wh

and in what circumstances (if ever) it is permissi

deploy such means. However, in the case of soldier

presume that deadly force is a legitimate and often 

upon means to their chosen end. It is, in fact, part of ou

conception of what soldiers are and what they do, tha

rely on and face deadly force in order to realize 

objectives. This much is uncontroversial and, in some s

obvious. It may still not be clear, however, that, fro

soldier’s point of view, the issue of deadly force 

primarily a matter of how much force should be 

Rather, soldiers most commonly and readily think in 

of how much force can they use.

When soldiers consider how to accomplish their 

they are legally, morally, and pragmatically obliga

consider how much forceto use.

1

 As a general rule of t

the more indirect and long-range direct fire soldiers ca

on an objective is inversely proportional to the amo

resistance they will experience when they try to tak

objective. The less the resistance, the less the co

friendly soldiers’ lives necessary to take the objective. 

the more force soldiers apply, the less risk they have t

in order to accomplish their missions. Viewed this 

what soldiers understand as the amount of force nece

is that which reduces risks to soldiers the most. Somet

however, the application of this force endangers ci

lives and property. Because of this, soldiers must als

how much force should they apply.

In order to limit the misery caused by war, the la

morality of war attempt to answer the question of 

1
much” by requiring soldiers to consider certain 

principles, and consequences that may restrain the am

of force they may apply.

2

 To determine how much forc

should place on an objective, soldiers must temper 

judgments not only with the pragmatic concern of how 

is practical, but also with the moral and legal conc

protecting civilian lives and property. A commander m

able, with a high degree of accuracy, to place a single 

in a specific building, but he cannot always be sur

many civilian lives will be lost if he does so. And th

there is nothing in the law or morality of war that abso

prohibits him from doing so, he is morally and l

required to take into account the due care he owes civ

when deciding how much and what kind of force he wi

Often, this means lowering the amount of force soldier

want to apply in order to minimize risk. Thus ther

tension between the amount of due care commander

civilians and the amount of due risk they and their so

are expected to take in order to accomplish mi

missions.

3

Given the logic of warfare, it is always i

commander’s interest to place as much force as is m

and legally permissible on any particular objective in 

to preserve soldiers’ lives. This means when comma

and their soldiers determine what is necessary, the

always asking themselves how much force is allowab

how little is possible. What is necessary when resolvin

tension between due care and due risk is minimizing 

not force. The most force allowable then become

necessary force since it is what is necessary to pre

soldiers’ lives without violating the law or morality of w

Sometimes, however, and in some situations soldie

morally obligated to consider the least force possible—

that this force is sufficient to accomplish the mission—

deciding how much force to apply. If this last view i

then it is the case that the law and morality of war 

extend well into certain kinds of missions. What I wish 

2
in this paper is show that this is in fact the case, and 

offer some considerations for filling in this ethical ga

To fully demonstrate this point, I will do several di

but related things. First, I will demonstrate that the 

and legal considerations soldiers must take into accou

in fact, obligate them only to consider the maximum 

permissible, rather than the minimum force possible. 

I will offer an example of the application of military 

that will meet the criteria of both the law and mora

war, but which will not conform to a broader understa

of morality. I will then employ a domestic analogy to 

that this discrepancy is a result of a very impo

misconception about how the roles soldiers play alter 

moral obligations. I trust this will demonstrate that 

the traditional role of the soldier is conflated wit

traditional role of the police officer, moral (as w

pragmatic) confusion results. Finally, I will offer wa

extend the Just War Tradition so that it resolve

confusion created by this conflation.

The Law and Morality of War.

The moral and legal distinctions of jus in bel

captured in the concepts of proportionality and dis

ination. Proportionality, which is a legal as well as 

requirement, requires soldiers to do more good than 

Discrimination requires that soldiers distinguish be

legitimate and illegitimate targets AND only e

legitimate ones. While these considerations tend to lim

amount force soldiers will use, that is not always the ca

the Appendix, there is further discussion regardin

complex relationship between these three categor

obligation.

Soldiers, when establishing peace abroad, do h

legal obligation to take into account the damage that w

done to civilian life and property when they apply 

When the duly appointed representatives of a nation 

to ratify a treaty, the nation, including the indiv

3
subject to its laws, become subject to the provisions o

treaty.

4

 For this reason, soldiers belonging to nation

have signed international treaties regarding proper co

in war are legally obligated to consider those prov

when applying force. The provision that most di

applies to the application of force is the one that deal

proportionality. According to the Law of War, soldie

obligated to ensure

. . . loss of life and damage to property incidental to attacks m

not be excessive in relation to the concrete and direct milit

advantage expected to be gained. Those who plan or decide u

an attack, therefore, must take all reasonable steps to ens

not only that the objectives are identified as military object

or defended places . . . but also that these objectives may 

attacked without probable losses in lives and damage 

property disproportionate to the military advant

anticipated.

5

While this can require soldiers to limit force b

constraint of how much military advantage is to be ga

it does not require them to minimize it. Further

proportionality does not preclude some actions that 

would still find objectionable. For example, it wou

preclude killing some civilians in order to achiev

military objective, as long as the harm done 

proportional to the advantage gained. Take, for exa

the situation at No Gun Ri, where American soldie

accused of intentionally killing hundreds of civilians 

beginning moments of the Korean War. Some o

arguments advanced to justify their actions have bee

killing the civilians was necessary to prevent the g

harm of allowing enemy agents and soldiers th

friendly lines.

6

Although the letter of the law may not prohibit a

we would like to call immoral, the spirit of the law doe

that spirit is found in the Just War Tradition (JWT). J

that body of thought that represents the soldiers’ str

with the tension between winning and fighting well. S

has a long and deep history, it is difficult to make ge

4
comments regarding its content. To illustrate my 

however, I have chosen one of the more recent, and 

restrictive versions of the ancient doctrine of double eff

The doctrine of double effect is a Christian doctrin

formulated by St. Thomas Aquinas as a response 

Augustine’s moral prohibition against self-defense.

doctrine results from the recognition that there is a 

difference between the consequences of our actions th

intend and those we do not intend, but still foresee. 

according to this doctrine, it is permissible to perform a 

act that has bad consequences, if certain other cond

hold. Those conditions are (1) the bad effect is uninte

(2) the bad effect is proportional to the desired m

objective, (3) the bad effect is not a direct means to the 

effect, and (4) actions are taken to minimize the forese

bad effects, even if it means accepting an increased r

soldiers.

8

Double effect could further restrain how much fo

permissible, and would preclude the soldiers’ actions 

Gun Ri. However, it does not require soldiers to under

necessity in terms of the least amount of force one ca

and still accomplish the desired end.

9

 This can be a pr

in certain kinds of military operations.

Applying the Law and Morality of War

to Peacekeeping.

The law and morality of war only obligate soldi

consider the most force permissible, rather than 

possible, and it is this feature of the morality of wa

causes problems when we want to extend it t

peacekeeping environment. To understand why, con

the following example:

On 21 January 1996, an AK-47 let loose near a US dismoun

patrol in the Zone of Separation. As rounds ripped through t

troop formation of D Company, 3d Battalion, 5th Cavalry, t

soldiers realized that this fire was not celebratory a

instinctively sought cover. Tumbling behind the protection 

5
their overwatching M2 Bradley Fighting Vehicle, the pa

chambered rounds and brought their weapons off safe.

10

From this point, the soldiers had at least three po

courses of action that cover the spectrum from assum

risk at the expense of civilian lives to accepting too 

risk at the expense of accomplishing the mission:

11

(1) Use the Bradley 25 mm main gun and fire in the directio

the gunman. This would cause the most damage and most lik

result in the death of gunman as well as some others (if th

were any) in the building. This would pose the least amoun

risk to the soldiers.

(2) Leave cover and, using squad fire and maneuver techniqu

assault the gunman’s position. As long as they only fired at 

gunman, this course of action posed the greatest risk to 

soldiers, but would likely result in the least amount of civi

casualties.

(3) Remain behind cover until a local authority of some sort t

care of the gunman. In this course of action, they accept no 

but do no harm.

According to the legally binding considerati

proportionality, the soldiers would be permitted to p

any of those courses of action. If the harm is simp

death of the gunman and the destruction of some pro

and the military gain is that peace is maintain

belligerent is eliminated, and soldiers lives are protec

would be hard to argue that the first course of action, th

it is the most destructive, would not be permitted.

Furthermore, even if it was likely that there were 

civilians in the building, it is not clear at all that the so

would not be permitted to risk injuring or killing 

Unless the building was clearly marked “Hospital” o

obviously occupied by a number of civilians, any civ

inside would not enjoy any protection from the Law of 

Given that several soldiers’ lives could potentially be 

and given the added gain of eliminating the belligeren

balance would tip in favor of permitting course of act

6
The choice is further complicated by the fact th

mission (maintaining the peace) depended to a large d

on how the people regarded the peacekeeping force. 

could not appear too reluctant to use force, but neither 

they afford to apply force too strongly—that would ali

subgroups and make their job more difficult and dang

In fact, it was the failure to properly balance this te

that led to the failure of the United Nations (U.N.) m

in Bosnia, which precipitated NATO’s involvement.

1

However, as argued before, legal considerations a

the only things that the soldiers must consider. They 

also take into account moral considerations, which i

case are more restrictive. In addition to the condit

proportionality already discussed, double effect also 

that the bad effect must be unintended. In this cas

soldiers may plausibly argue that they only want

eliminate the threat the gunman posed to them and 

peace. That others might be harmed would certain

unintended, especially since the soldiers did not intend 

shot at.

Double effect also holds that the bad effect must no

direct means to the good effect. In this case, even 

course of action 1, the soldiers are not destroyin

building to stop the gunman nor are they putting civili

risk as a means to stop the gunman. Thus, this con

would also hold.

Finally, soldiers must act to minimize the forese

bad effects, even if it means accepting an increased r

themselves. This is the most restrictive element o

doctrine and may make it hard to justify course of 

one. But even this condition has limits. Soldiers ar

required to take risks that may lead to them not bein

to accomplish the mission at hand or make it likely the

not retain enough fighting capacity to contin

accomplish additional missions.

13

One way to resolve the tension of due care and due 

to adopt a course of action where one assumes no ris

7
does no harm—course of action 3. Soldiers could a

refuse to apply force when the possibility of ci

casualties exists and when any other course of action 

place additional risk on the soldiers themselves. This 

often be, however, at the expense of mi

accomplishment. Thus such a refusal would be tantam

to refusing to accomplish a mission, and this is a cou

action seldom available to the soldier.

It is important at this point to acknowledg

complexity of this particular situation. It is a legit

question in the context of this scenario whether accept

risk and doing no harm was, in fact, the best mea

accomplish the mission. In this case it is not 

Nonetheless, course of action three would only 

permissible option if it were the case that it was the bes

to accomplish the mission. What is the case is that so

are not permitted to resolve the tension between gettin

job and getting it done in a moral fashion simply by wa

away. Soldiers have a prima facie obligation to accom

properly assigned missions, and thus can only be oblig

as argued before, to consider the maximum permi

force, not the minimum possible force.

Thus in this situation, the maximum amount of 

permissible would balance the additional risk inher

course of action 2 with considerations of mi

accomplishment. Again, the fog of war makes 

judgments problematic. What the soldiers could not 

was if there were other gunmen or what other weapo

gunman had. It was certainly conceivable that he 

have been equipped with anti-tank weapons that could 

damaged the Bradley. Also, it is not clear from the exa

how risky an assault from their current position w

there were inadequate cover and concealment or i

would have had to remain exposed for long periods in 

to get to the gunman, it is likely that this condition 

also hold.

8
If any one of these considerations were true—and 

would be no way for the soldiers at the time to 

otherwise—then choosing course of action two over cou

action one would no longer be morally obligatory. So a

the application of the Just War Tradition woul

preclude choosing the most damaging and lethal 

possible courses of action. Thus, the law of war an

morality of war would permit the soldiers to elimina

gunman, even if it meant killing civilians.

The Problem for the JWT: There’s a Difference

between War and Peace.

One might reasonably ask why we are applying th

War Tradition to peacekeeping operations. If it is an 

for war, it is not immediately obvious that it applies in 

situations. But though named the Just War Traditio

purpose of the morality of war and the laws derived f

can generally be considered a guide for soldiers’ judgm

regarding the application of force across nat

boundaries. Furthermore, much of the doctrine so

employ is formed with the tenets of JWT in mind. Thu

many soldiers, it will be the natural starting poi

considering any other ethical problem.

Thus, it is appropriate to extend JWT to any situ

outside national borders in which soldiers are involv

takes the form that it does because it is based o

presumption that such force is applied in the abse

peace and that since there is no higher authority to 

belligerent parties can appeal, this force is necessa

create peace. However, increasingly during this deca

U.N. and the North Atlantic Treaty Organization (N

have applied force across national boundaries, not wi

purpose of establishing the peace, but with the purp

maintaining it. Thus, if we are to extend the Jus

Tradition to such operations, it makes sense to con

what it means to apply force across national boundar

order to maintain, rather than create peace.

9
For the Just War Tradition, the appropriate end 

wars is a “better state of peace.”

14

 Such a peace m

more secure than the peace before the war was fought

means it must be the kind of peace in which part

conflict can and want to resolve conflicts nonviole

Thus while an absence of fighting is a necessary con

for peace, it is not a sufficient one. Parties in conflict 

have available to them peaceful means to resolve confl

interest. 

For peace operations, the endstate, then, 

“settlement," which is defined as “a resolutio

conciliation among the competing parties, rather 

termination (of the conflict) by force.”

16

 Thus, the con

of “peace” may be understood as that set of condition

permit nonviolent resolution of conflicts of interests a

individuals and groups. This does not mean grou

individuals will always seek nonviolent means to r

conflicts; but it does mean that those means are ava

and that they are the preferred and normal mea

resolving conflict.

To achieve this settlement, the military prim

conducts two kinds of operations: peace enforcemen

peacekeeping. In peace enforcement operations, the 

have not agreed to a settlement and must be compelled 

so. In peacekeeping operations, the warring sides 

agreed to a settlement, but require outside assista

ensure compliance.

17

 If peace is understood in this 

peace enforcement operations resemble a conven

conflict, in which peace must be established. Peaceke

resembles the domestic situation, in which individua

groups have nonviolent means to resolve conflicts, th

may not always agree to use them. Thus, even thoug

Just War Tradition can apply to peacekeeping opera

the operations themselves more resemble the dom

situation in which police operate. As will be demonst

this will have important implications for how so

should conduct themselves.

10
In the example above, the soldiers chose course of 

3, the one that involved the least risk to themselve

least harm to others, and, which some later argue

most risk to mission accomplishment.

18

 In fact, 

aftermath of the incident, the soldiers were both crit

and praised for the decision they made. Most of the d

revolved around determining the kind of operation 

were engaged in.

Some argued that their purpose was to establish 

where there was none. By failing to send a clear and de

signal to all the factions that NATO forces would im

peace, even at a cost to civilian lives if necessary

soldiers had sent a clear signal that it was now “open s

on [NATO implementation forces] IFOR.”

19

 Others a

that their purpose was to maintain the peace establish

the Dayton Accords.

20

 They further pointed out that k

everyone who posed a threat, no matter how minima

threat might be, would only serve to polarize the fa

against IFOR and make maintaining the peace even 

difficult.

21

Certainly, when settling the issue of “should,” so

must also consider a practical dimension. What the so

should do does depend on what will most likely fac

mission accomplishment. A problem did arise fo

soldiers, however, because there was no agreement on 

the mission really was. It is interesting to note 

pragmatically speaking, right or wrong depended 

accurate understanding of what purpose the soldiers 

served. In addition to this practical conundrum, so

must also deal with its moral analog.

Resolving the Problem for JWT: An Argument

by Analogy.

While such ambiguity does make it difficult for so

to make certain practical decisions, as argued before, 

are not the only considerations soldiers must 

Further, just as judging the best course of action depen

11
settling the issue of ends, it is also the case that as the 

change, so do to some degree the ethical requirements 

application of force.

If we look at this situation from the analogous posi

the police officer, much of the moral ambiguity is cla

Police maintain, rather than establish, peace. Thus, i

not make sense for police officers to breach the pea

order to maintain it. If a sniper were firing from a bu

that contained civilians, we would not likely claim th

police were morally permitted to use the maximum 

allowable under the principles of proportionality or do

of double effect. Even if a sniper were likely to kill se

people if he were allowed to remain in the building, it 

still not be permissible to destroy the building if by do

innocent people would be killed. Even in extreme 

police would be obligated to try every possible cou

action that precludes civilian casualties before they 

be morally permitted to engage in a course of action 

could potentially lead to civilian casualties. But, fro

standpoint of the law and morality of war, this just is n

case. 

This is not to say that police are prohibited from t

some risks that might place civilian lives in dange

example, police are permitted to engage in high-

pursuits even though such pursuits can and have res

in accidents in which innocent bystanders have been k

The difference is police are not permitted to engage in 

pursuits, or any other activity in which they know civ

will be killed or seriously injured.

22

 But, as discussed 

there are many conditions under which such actions 

be permissible for soldiers.

Of course, it remains to be shown that this analogy 

fact, appropriate. Soldiers, after all, protect the nation 

external threats, while police protect it from internal 

Soldiers traditionally fight wars; police traditionally p

the peace. It would seem unfair then to claim that 

truths from one professional ethic should then infor

12
other. Nonetheless, as soldiers find themselves mor

more in situations where there is a peace, even tho

may be a tenuous one, the military profession would d

to reconsider some of the principles upon which they 

their legal and moral judgments.

Extending the JWT: When Soldiers Have to Act 

Police.

When it is the case that there is no peace and that it 

be established, it only makes sense to think of apply

much force as is permissible given the law and mora

war. This facilitates the defeat of the enemy, and def

the enemy facilitates the reestablishment of peace

appropriate end of all wars. However, in peaceke

situations the peace exists. It may be tenuous, and a

above discussion indicates, not always recognized, 

exists nonetheless.

When peace exists, people who break the peace are 

like criminals than soldiers in that they destroy the se

the rest of the society enjoys as a result of this state of p

However, because those who break the peace are mor

criminals, they enjoy roughly the same kinds of right

protections that criminals generally enjoy—nam

presumption of innocence.

To underscore this point, as well as underscore th

between how police and military consider the applicat

force, consider the following example that occurred d

the riots in Los Angeles in 1992:

Police officers responded to a domestic dispute, accompan

by marines. They had just gone up to the door when t

shotgun birdshot rounds were fired through the door, hitt

the officers. One yelled “cover me!” to the marines, who th

laid down a heavy base of fire . . . The police officer had n

meant “shoot” when he yelled “cover me” to the marines. [H

meant . . . point your weapons and be prepared to respond 

necessary. However, the marines responded instantly in t

precise way they had been trained, where “cover me” mea

13
provide me with cover using firepower. . . . over two hund

bullets [were] fired into that house.

23

The good news is that no one was hurt. Wh

interesting about this example is that, even in the f

mass rioting where peace and civil authority were te

and not always recognized, it was still inappropriate

the police officers’ point of view, for the Marines to re

the way they did. At one level, such a response was pro

imprudent. At another, it was certainly immoral.

24

 

morally appropriate end of the use of force is to mainta

peace, it does not make sense, especially moral sen

breach the peace in order to preserve it. Though there 

riot in progress, the civilians in question were not di

partaking in it. Though the peace was being disr

elsewhere, it was not being abandoned everywhere. 

the Marines responded to a potential breach of the 

with an actual breach of the peace. This would make 

morally culpable for any further breaches of the peace 

actions engendered.

25

Furthermore, while rioting may represent a m

disruption of the peace, it is not the same as the destru

of the peace. This of course begs the question rega

what to do in the face of large angry mobs, who are obv

bent on disrupting, if not destroying, the peace. It als

the question regarding the differences between a mo

an army. Given the way belligerents have cond

themselves in the Balkans, in Rwanda, as well as in 

ethnic conflicts, it is not always easy to tell.

Nonetheless, it can never be the case that police co

morally permitted to resort to deadly force first, s

aside the presumed innocence of any suspect as well 

right of innocent civilians not to be killed or sev

injured. For it to be moral for police to do this, it would 

to be the case that, where conditions of peace do not ex

are tenuous at best, it would be appropriate for 

officers to adopt the law and morality of war to guide 

actions. This, however, is rarely the case. Soldiers, 

14
acting as soldiers, fight enemies; police, when acti

police, protect citizens. They may have to harm c

citizens in order to do so, but this can never be a 

resort.

26

It is a different and probably dangerous thing for 

to consider as “enemies” any members of the comm

whom they are sworn to protect. The political philos

Carl Schmitt labeled the enemy distinction: “the u

degree of intensity of . . . separation.”

27

 Enemies rep

the most intense threat there can be to the securit

community. The presence of an enemy represent

absence of peace. As such, the enemy becomes the cl

persons it is permissible to kill, since failure to defea

least contain them would mean the loss of the comm

and the loss of peace. Since citizens, even ones suspec

committing a crime, enjoy a presumption of innocence

do not represent the same threat that enemies do and 

do not belong to the class of persons it is permissible t

Only when a citizen presents him or herself as a thr

other citizens may police be permitted to use deadly 

and then only after they have tried other mea

apprehend the citizen peacefully.

28

Of course, the police-peacekeeping analogy i

without weaknesses. Peacekeeping operations are dif

from those on the domestic front, even in situations w

peace is tenuous and not universally recognize

domestic situations, police and soldiers rarely, if eve

permitted to view the citizens they protect as enemi

peacekeeping, soldiers are sent to restore and then pre

peace by preventing groups, who are not their enemies

breaching the peace. In spite of this, they are unlike po

that soldiers on peacekeeping missions are neither a p

the community they find themselves in nor are they go

be a part of it. Furthermore, while neither group invol

the conflict is an enemy to the peacekeepers, the

enemies (or at least were) of each other, thus ther

potential for peacekeepers to become enemies, whic

not exist for police.

15
This last point is significant. In a guerrilla war

Vietnam, it is hard to discern who the enemy is; but 

different from what troops face in places like Bosnia, w

it is not even clear that there is an enemy. Logically, 

this is hard to discern, the morally (as well as pract

appropriate course of action may also be hard to di

While this will have important implications for the sp

policies and rules of engagement for certain operatio

does not alter the principle of using the least amount o

possible when a state of peace exists. Thus, ultimatel

analogy holds.

What is not clear is that the analogy holds in the 

direction. When police find themselves in situations w

the peace must be established, can the ethic of war ap

them? While I am reluctant to grant it, the argumen

imply that when individuals or groups identify them

as an enemy, the police would be permitted to emplo

doctrine of double effect when dealing with them

would mean they would be permitted to use the most 

allowable under that doctrine, even if it meant kill

seriously injuring innocent civilians.

Though the argument does seem to imply this, i

implies that such situations will be rare. Recall that to 

enemy, an individual or group must represen

existential negation of the community and their su

must represent the absence of peace. I would argue 

even terrorist groups do not usually, if ever, represen

level and kind of threat. However, as the threat 

represent increases, selective suspension of this prohi

becomes permissible. For example, police may n

required to attempt to capture a terrorist if by doing s

will not likely be able to stop him from detonati

explosive in a crowded area (for example, the bombing 

Olympics in Atlanta). I would argue, however, that 

would not be morally permitted to risk harming an inn

civilian to do so unless the threat is an unusually great 

16
Having said this, it is certainly the case that th

room for judgment in both police and military applica

of force. It may seem as though police are merely low

the maximum amount of force permissible, rather 

applying the minimum possible, so that they may 

protection to a larger group of people than soldiers 

However, this is not the case. There is a fundamenta

between the ranges of force permitted to soldiers act

soldiers and police acting as police. (See Figure 1.)

The gap exists because for soldiers the applicat

force is oriented toward the upper limit allowable

makes sense since soldiers, when fighting enemie

preventing the existential negation of the comm

Soldiers, when acting as soldiers, are permitted to ki

first resort and are permitted to engage in courses of a

that will result in the certain death of civilians (as lo

the provisions of the doctrine of double effect hold) beca

they do not, the security the community enjoys may b

As we have seen, the problem arises when soldiers i

an ethic designed to deal with enemies into an environ

where there are none.

For police the application of force is oriented towa

least amount possible. When police apply force aga

suspected perpetrator they are not permitted to use d

force as a first resort and never if it is the case tha

perpetrator is not likely to harm anyone (even if he or 

likely to evade capture otherwise). Furthermore, as s

before, police are never permitted to engage in any 

that, if by doing so, will very likely result in the dea

serious injury of a civilian.

Returning to our earlier example, the rul

engagement for the peacekeeping mission in B

included the provision, “to ‘use only the minimum 

necessary to defend yourself.’” These rules also inc

additional provisions that restricted soldiers’ author

return deadly fire.

17
18

Policeman's View:

less more

Soldier’s view:

less more

Police are obligated to apply force with a view to us

least amount possible and still accomplish the desired en

preventing a violent criminal from escaping), never exceeding 

force that an innocent person will be seriously harmed

deliberating on how much force to use, police are obligated t

consider using the amount of force represented by the “no les

arrow and are prohibited from using more force than is represe

the “no more than” arrow.

Soldiers are obligated to apply force with a view to u

more than the most amount permissible (given other legal an

considerations), even if an innocent person is likely to be se

harmed. In this figure, the “no more than” arrow represents t

amount of force that complies with legal and moral restrictio

poses the least risk to soldiers. They are, of course not oblig

use this maximum force, as they are free to take more risk than 

morally required. However, they are not obligated to engag

course of action where they apply so little force that they f

mission or render themselves incapable of conducting 

operations.

no more

than

no more

than

no less

than

no less

than

The fundamental gap

Figure 1.
You may open fire against an individual who fires or aims 

weapon at you, friendly forces, or persons with designa

special status under your protection.

29

While this certainly reduced the amount of 

permissible, it did not require the minimum amount o

necessary. Thus, such rules of engagement would p

the soldiers of D Company, 3-5 CAV firing on the s

even if civilians would likely be harmed because it d

require them to rethink the concept of necessity. Th

War Tradition only requires soldiers to under

“minimum necessary force” to mean the most amou

force allowable (in order to minimize risk) without vio

the doctrine of double effect.

Furthermore, rules of engagement do not supe

laws of war, but only clarify them.

30

 Thus, if so

violated a rule, they may be guilty of violating an orde

they are not guilty of a war crime, or of transgressin

morality of war. Furthermore, such rules do not re

soldiers to change the way they think about the appli

of force. They may encourage soldiers to reduce the am

of force they apply, but they do not require soldi

minimize it. There is nothing in these rules of engage

that make it immoral for soldiers, when opening f

individuals who fire or aim their weapons at them 

others, to engage in a course of action that would 

harm to innocent civilians.

Therefore, rules of engagement (ROEs) ar

sufficient. In order to extend the law of war and by exte

the morality of war on which it is founded to peaceke

operations, we must understand that in certain m

operations where the goal is to maintain peace, applyin

least amount of force possible is morally obligatory.

So, where conditions of peace exist, soldiers, like p

must consider what is the least amount of force pos

rather than what is the most amount of force permissi

there is a peace, even a tenuous one, it makes no se

preserve it by engaging in courses of action that brea

19
Where there is peace, there may be criminals who bre

but they do not, by themselves, destroy it. It is tru

police may harm criminals who will likely harm other

it generally makes no sense to harm those others in or

prevent the criminal from doing so. To minimiz

potential for harm to those others, those with the aut

to use force must use the least amount possible, rathe

the most amount permissible.

It is true that in many cases it is difficult for comma

and soldiers to know if they are in a peace maintain

peace establishing operation. The discussion regardin

actions of 3-5 CAV was not merely academic. Th

labeled a peace maintaining operation, there were 

and places during the initial phases of Operation J

ENDEAVOR where it had all the characteristics of a 

establishing operation. It is also interesting to note 

operations in Somalia fell under the doctrinal distinct

“peacetime” which the Army defines as those oper

that are routine actions between nations.

31

 This c

would fall under the category of peace maintaining, th

to those involved there were significant parts o

operation that were clearly peace establishing.

32

It is true that such practical, as well as epis

difficulties make it very difficult to apply the 

distinction this monograph recommends. However

does not invalidate such a distinction, nor does it ren

useless. Political leaders and senior commanders may 

military operations in certain ways because of po

concerns or limitations in the doctrinal vocabulary

political and doctrinal distinctions do not necessarily 

onto moral ones. As the nature of an operation chang

the ground, commanders and their soldiers must see 

moral obligations more clearly by understanding ho

condition of the state of peace in the area under their c

should affect their moral decisionmaking.

20
Policy Implications.

Several policy implications follow from the 

arguments. 

1. Just War Theorists, as well as those who rely o

Just War Tradition to form policy and law, must w

extend it to peacekeeping operations. It is not en

simply to declare the mission as peacekeeping and 

conclude the police ethic applies. As suggested earlier, 

is only a limited analogy between the police o

maintaining the peace at home and the soldier mainta

the peace abroad. For instance, for police officers the s

of peace in their communities is relatively stable; thus

do not need to be prepared to transition rapidly fro

state of peace to another.

Such stability is not present for soldiers maintaini

peace abroad. If this were so, their presence would n

needed. Because of the potential for rapidly cha

situations and, consequently, rapidly changing 

frameworks, it may not always be appropriate to ado

police ethic, even when the warring parties have reac

settlement. For any particular situation, the answer w

in resolving the tension that exists between the police 

which is designed to preserve peace, and the Just War 

which is designed to establish it.

2. In peacekeeping operations, the langua

operations orders and rules of engagement must be ch

to better reflect the ethical demands of the environ

Rather than requiring soldiers to apply the minimum 

necessary, they should, instead, require soldiers to on

that force which is the minimum amount possib

accomplish the mission.

3. Training for peacekeeping operations mu

changed to reflect the requirements of the police eth

things stand now, even for peacekeeping opera

soldiers still, for the most part, train to apply the max

force permissible. Though ROEs typically restrict w

21
permitted compared to combat operations, they still p

as argued earlier, courses of action which are not m

permissible. 

4. If it is the case that training a force to handle 

situations renders the force ineffective at both, the

argument for establishing a separate peacekeeping 

within the military becomes more compelling. It shou

noted, however, that we would still not want to create a 

that would only be capable of routine policing. Ev

peacekeeping operations, the peace is often unstable; s

force would have to be prepared to handle rapid 

between peacekeeping and peace enforcement. Th

would have to be more robust and more flexible t

conventional police unit.

5. The argument also suggests that the current d

over nonlethal weapons should be resolved in fav

developing and deploying such weapons. While som

concerned that such weapons will “inadvertently brid

gap between peace and war” and thus lead us dow

“slippery slope” to war,

33

 they do give soldiers a wider 

of options in applying the minimum force possible

ultimately makes it easier for soldiers respond a

priately to breaches of the peace.

6. This argument also suggests senior leaders s

reconsider whether certain weapons and ammu

currently not permitted for soldiers’ use, such as CS ga

“dum dum” bullets, should, in fact, be permitted. Th

these can have undesirable effects, they, too, give the s

a wider range of options for applying the least amo

force possible.

34

Conclusion.

Many questions and issues remain. As has 

demonstrated, the epistemic issue of how a command

know if a state of peace exists has not been settled. W

is entirely possible to settle this issue at the political 

22
until it is done it will be difficult for military officers to 

if an operation is peace enforcing or peacekeeping. 

this distinction is uncertain, it will be difficult for sold

discern their moral obligations regarding civilians and 

property. But what has been suggested is that answ

this question will have moral as well as pol

significance. 

In addition, as the police-Marine incident suggest

actions that soldiers are trained to take in warfig

missions may be inappropriate in peacekeeping mis

They have to do the right thing very quickly, without 

time for moral-philosophical reflection. This means 

training for war and operations other than war may be 

difficult than anticipated.

What has been suggested is that as an area of oper

transitions from a state of nature to a state of peace, w

means morally to apply force also changes. This m

when such a distinction can be made, soldiers are affor

powerful and practical conceptual tool for resolvin

inherent conflict between the due care they owe civ

and the due risk they are obligated to take to achieve 

objectives. By understanding the limits on necess

applying the least amount of force possible rather tha

most permissible under the principal of proportionalit

the doctrine of double effect, soldiers avoid the contrad

and self-defeating practice of destroying the peace in 

to preserve it.

ENDNOTES

1. The use of the word “force” throughout this monog

synonymous with “deadly force.” For the sake of simplicity, I 

considering uses of force that do not have the potential to 

seriously injure someone.

2. The way moral and legal considerations shape the use of 

quite complex. While moral and legal considerations do limit the 

caused by war, this does not always (though it does usually

23
limiting the amount of force a soldier should apply. For a more d

discussion, see Appendix.

3. James M. Dubik, “Human Rights, Command Responsibil

Walzer’s Just War Theory,” Philosophy and Public Affairs, Vol. 

4, 1982, p. 355.

4. Documents on the Laws of War, Adam Roberts and R

Guelff, eds., Oxford: Clarendon Press, 1989, p. 11.

5. “The Law of Land Warfare,” Department of the Arm

Manual 27-10, U.S. Government Printing Office, 1956, Chang

July 15, 1976, para 41, p. 5.

6. James Webb, “The Bridge at No Gun Ri,” Wall Street J

October 6, 1999, Letters to the Editor.

7. Paul Christopher, The Ethics of War and Peace: An Intro

to Legal and Moral Issues, 2nd ed., Trenton, NJ: Prentice Hall, 

52. Augustine held that self-defense was inherently selfish, a

acts motivated by selfishness were not morally justifiabl

selfishness is not morally justifiable.

8. Ibid., p. 93.

9. Sometimes, of course, it is the case that the amount of 

soldier can practically apply is not as great as the amount of forc

legally and morally apply. Thus we must resist the temptation o

the legal and moral considerations as always constraining. Som

in fact, they can have the opposite effect. For a detailed discussio

complex interaction of practical, legal, and moral consideratio

the Appendix.

10. David Fastabend, “The Categorization of Conflict,” Para

Summer 1997, p. 75. Http://carlisle-www.army.mil/ usawc/ Para

97summer/fastaben.htm

11. There may have been other options. However, whateve

options there may have been, they would have fallen along th

spectrum created by the tension between due care and due risk

12. Richard Holbrooke, To End a War, New York: The 

Library, 1999, pp. 69, 72.

13. Michael Walzer, Just and Unjust Wars, New York: Basic 

1992, p. 157.

24
14. Walzer, p. 121.

15. Ibid. 

16. “Peace Operations,” U.S. Army Field Manual FM 

Washington, DC: Department of the Army, December 1994, pp

17. Ibid., pp. 111-112.

18. Fastabend, p. 75.

19. Ibid., p. 77.

20. Ibid.

21. Richard Holbrooke’s analysis suggests the latter interpr

is the more appropriate and that NATO troops were there to ma

rather than impose, peace. Holbrooke points out that

in any case, we would not employ American or other NA

troops absent ironclad guarantees from all three part

concerning their safety, access, and authority...There is 

peace without American involvement, but . . . there is 

American involvement without peace.”(Emphasis in origina

To End a War, p. 218.

22. John Kleinig, The Ethics of Policing, Cambridge: Cam

University Press, 1996, pp. 118-122.

23. James D. Delk, Fires & Furies: The L.A. Riots, Palm S

ETC Publications, 1995. Quoted in Christopher M. Schnaubelt “L

in Command and Control from the Los Angeles Riots,” Para

Summer, 1997, p. 1.

24. I wish to emphasize that the judgment of immorality is 

the act, and not the Marines in question. They were acting in go

in accordance with their training and their understanding 

situation. Since what I am arguing is not generally accepted 

point, it would be unreasonable to hold any particular ind

responsible for not acting in accordance with it.

25. Kleinig, in The Ethics of Policing, p. 98, points out that

the use of force represents a nonrational and nonlov

response to a situation involving conflict between ratio

25
beings, it does nothing to defuse, but only serves to perpetu

and may even magnify the violence.

This suggests that resorting to violence to preserve the peace w

serve to escalate the violence until one side has run out of the cap

continue acting violently. Peace may eventually be restored, but 

a cost. This underscores why police should never resort to dead

before they have attempted all other possible courses of action

suggests they are partially responsible for any further violence 

do.

26. Kleinig, pp. 116-117.

27. Carl Schmitt, The Concept of the Political, George S

trans., Chicago: The University of Chicago Press, 1996, p. 26.

28. Kleinig, p. 116.

29. Fastabend, p. 77.

30. According to Dr. Gary Solis of the U.S. Military Academ

Department, there is no official Department of the Army position 

matter. This claim that the ROE clarify, but do not supersede, th

war follows from the fact that since ROEs are not laws, they m

before the law of war. Since they are not laws, they are con

regulations, orders, instructions, goals, or mandates. If s

violates an ROE, he or she is not tried for violation of the ROE

the underlying offense, e.g., aggravated assault, rape, violatio

underlying military order. For a more complete discussion of th

of ROEs, see Mark Osiel, Obeying Orders: Atrocity, Military Dis

and the Law of War, New Brunswick: Transaction Publishers, 

100. 

31. “Operations,” U.S. Army Field Manual 100-5,Washingt

Department of the Army, U.S. Government Printing Office, p. 

32. Lieutenant Colonel Stephen Parshley, U.S. Military Ac

interview by author, October 28, 1999.

33. F.M. Lorenz,, “Non-Lethal Force: The Slippery Slope to 

Parameters, Autumn 1996, p. 52.

35. While the Law of Land Warfare does not expressly proh

gas, it does prohibit its first use in many situations. For this 

military units seldom deploy with CS gas because it r

presidential approval to employ (“The Law of Land Warfare

26
Department of the Army Field Manual 27-10, July 1956, pp. 1-4

dum” bullets are made of soft lead, and thus they expand wh

enter the body. Because of this, they are prohibited because 

more damage to the individual than is necessary to acco

conventional military missions. A problem arises in that the s

harder bullets are likely to pass through the individual and t

crowd situations, are more likely to strike others. This makes th

by soldiers trying to defend themselves against angry mob

indiscriminate than it otherwise might be.

27
APPENDIX

1

THE LAW AND MORALITY OF WAR

The purpose of the law and morality of war is to pr

war and when that fails, limit the misery caused by 

Because of this function, the law and morality of wa

often conceived as restraining the amount of force 

soldiers can practically apply in any given situation. 

this is certainly the most natural way to understand 

concepts, it is not always the most accurate

relationship among the practical, legal, and m

applications of force is much more complex than tha

possible, for example, to have an application of force t

moral and practical, but not legal. It is also possible f

most amount force legally and morally permissible to a

impractical. Figure 2 illustrates the various categor

29

1

2 4

5

6

7

3

Practical AOF

Legal AOF Moral AOF

8

*AOF= Application of Force

Figure 2.
the application of force generated by the com

interaction of practical, legal, and moral concerns.

In this diagram, the lower left-hand circle represen

any given situation, the most amount of force a soldie

legally apply. The lower right hand circle represen

most amount of force a soldier may morally apply an

upper circle represents the most amount of force a s

may practically apply.

2

 In this way, the diagram su

the various judgments we can make regardin

application of force.

Region One. Some practical applications of for

neither legal nor moral. This region represents the am

of force that a soldier can practically employ, but shou

because of legal and moral considerations. The events 

Lai serve as an obvious and extreme example. How

many would argue that strategic bombing of civilian ta

that have no military significance whatsoever also fal

this category.

Region Two. Some practical applications of for

legal, but not moral. This region represents the amo

force that is both practical and legally permissible, b

morally. In this monograph, COA 1 for the 3-5 CAV sol

as well as the actions of the marines during the Los An

riots, fell into this category. Another good illustration 

would be Sherman’s drive to Atlanta. At the time, ther

no law prohibiting the intentional and wanton destru

of civilian property and lives, but strong arguments c

made that these actions were immoral.

3

Region Three. Some practical applications of fo

both legal and moral. This region represents that amo

force that is practically, as well as legally and mo

permissible. This is where soldiers, sailors, airmen

marines should endeavor to be at all times. Fortunate

the monograph suggests, there are also numerous exa

in this category. The course of action (COA) the sold

3-5 CAV chose (COA 3) falls into this category. The iss

military leaders is to ensure that this is not accidenta

30
is rather the result of intelligent, reflective leadershi

ensures that soldiers, sailors, airmen, and ma

understand the law and morality of war and can app

Region Four. Some practical applications of for

moral, but not legal. This region represents the amo

force that is practically and morally permissible, but l

prohibited. Walzer describes such situations i

discussions of supreme emergency in Chapter 16 of Ju

Unjust Wars. Under the doctrine of supreme emerge

is sometimes morally permissible to set aside the la

war when the threat of defeat is imminent and the d

itself represents slavery, genocide, or some 

catastrophe of similar magnitude, for the defeated. T

was morally permissible under this doctrine for the B

to bomb civilian targets during World War II before 

when they were the only nation resisting the Nazis. T

because a Nazi victory would, in fact, result in slaver

genocide for millions. But it would not have 

permissible for the Argentinians to have strateg

bombed civilian targets in London or the Falklands d

the war in the Falkland Islands since their defeat d

represent slavery, genocide, or some other like consequ

Region Five. Some applications of force are leg

are neither practical nor moral. This region repres

condition where the law of war does not prohibit a CO

it is the case that it is not practical for the belligerent 

in question to carry it out. Certain uses of tactical nu

weapons would fall into this category. Such weapons a

outlawed, but given the likelihood that their use coul

to a nuclear holocaust, their use is not prac

Furthermore, since a nuclear holocaust is immora

action directly leading to it would also be immoral.

4

Region Six. Some applications of force are lega

moral, but not practical. If we accept the doctr

invincible ignorance

5

 and agree that soldiers ar

morally responsible for the wars they fight, then this 

describe many situations the German Army found its

31
after Stalingrad and D-Day. There were many inst

where they would have been morally and legally perm

to use more force than they could at the time. From a 

perspective, this category is problematic since accord

Kant ought implies can. But recall that pra

considerations take into account many factors, no

what can be done. For example, it may not have 

practical for Hitler to order the German Army to 

Stalingrad at all costs or to launch the offensive i

Ardennes in 1944, but it is obvious it could have been 

The interesting thing about these cases is that 

represent instances where practical consideration

legal and moral ones, limit the amount of force so

should apply.

Region Seven. Some applications of force are 

but neither legal nor practical. This region represen

amount of force that would be permitted by the doctr

supreme emergency, but which would not be available

the British not been able to bomb German civilians p

1942, England would have found herself in this unfort

position. 

Region Eight. Some applications of force are n

practical, legal, nor moral. On the surface this ca

would hardly seem worth mentioning since it see

represent a null set. However, rather than being empt

category can be, and has been, filled with many we

development projects. The development of biolo

weapons is one example that comes to mind. Such we

are neither moral nor legal, and, given the adverse e

they can have on friendly forces and civilian populatio

well enemy ones, they are also not practical. This 

category that those who are charged with developin

weapons systems of the future should avoid.

While this has been meant to be a fairly comprehe

list of the different categories of the application of forc

by no means a complete discussion. Much more can b

about the examples used to illustrate each category a

32
as the categories themselves. Nonetheless, this discu

illustrates how these categories can be applied to a

decisionmaking process military people must go th

when deciding, in any given situation, how much forc

should use.

ENDNOTES - APPENDIX

1. I am most grateful to Lieutenant Colonel Timothy Challa

Major Benton Danner of the Department of English, U.S. M

Academy, for their assistance in developing this appendix.

2. Practical judgments regarding the application of fo

themselves complex. Soldiers must consider not only the effect

available weapons on the enemy soldiers and civilians, but 

friendly soldiers and civilians. Additionally, when making p

judgments, soldiers must consider logistic as well as myria

prudential factors.

3. For a more detailed discussion, see Walzer, pp. 32-33.

4. See Christopher, pp. 224-234.

5. This is the doctrine that holds that soldiers of any side 

guilty of the crime of war, but can only be held morally and 

responsible for their actions in war. See Walzer, chapters 3 and 

more detailed discussion.

33
U.S. ARMY WAR COLLEGE

Major General Robert R. Ivany

Commandant

*****

STRATEGIC STUDIES INSTITUTE

Director

Professor Douglas C. Lovelace, Jr.

Director of Research

Dr. Earl H. Tilford, Jr.

Author

Major Tony Pfaff

Director of Publications and Production

Ms. Marianne P. Cowling

Publications Assistant

Ms. Rita A. Rummel

*****

Composition

Mrs. Christine A. Williams

Cover Artist

Mr. James E. Kistler