RESOLVING ETHICAL CHALLENGES

IN AN ERA OF PERSISTENT CONFLICT

Tony Pfaff

Volume 3

Professional Military Ethics Monograph Series

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Professional Military Ethics Series

RESOLVING ETHICAL CHALLENGES

IN AN ERA OF PERSISTENT CONFLICT

Tony Pfaff

April 2011

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ISBN 1-58487-485-6
iii

FOREWORD

This monograph is the fourth in a series on the 

Army’s Professional Military Ethic (PME) that the 

Chief of Staff of the Army, General George W. Casey, 

Jr., inaugurated in October 2009. In his series foreword, General Casey encouraged the Army to “think 

critically about our PME and promote dialogue at all 

levels as we deepen our understanding of what this 

time-honored source of strength means to the profession today.” 

In this monograph, Colonel Tony Pfaff explores 

the ethical challenges facing the Army in an era of 

persistent conflict dominated by a variety of irregular 

threats. Pfaff argues that these challenges arise because 

irregular adversaries change the character of their war 

from imposing one’s will on the enemy to compelling 

the enemy to accept one’s interest. While this shift 

may seem subtle, Pfaff argues, it suggests a number 

of important practical and ethical implications for our 

way of war. Formerly, civilians were largely separable 

from warfighting, meaning that our strategies of annihilation and attrition were the most effective—and 

ethical—paths to victory. But now, when combating 

irregular threats, civilians are no longer separable 

from warfighting. Consequently, strategies of annihilation and attrition not only undermine a successful 

resolution of the conflict, but they are unethical.

This last point suggests that the Army needs to 

adapt the PME to account for these changes and to 

adopt a number of policies and procedures to account 

for the expanded role irregular conflicts demand Soldiers play. Colonel Pfaff offers a number of practical 

measures the Army should take to meet this challenge. 
iv

I invite our readers to learn more about this important topic, to test their own assumptions regarding the 

moral challenges posed by the changing character of 

war, and to initiate discussions on how our organization, the U.S. Army, should respond.

DOUGLAS C. LOVELACE, JR.

Director

Strategic Studies Institute 
v

ABOUT THE AUTHOR

TONY PFAFF is a Foreign Area Officer for the 

Middle East and North Africa, currently serving as 

the Chief of International Military Affairs for Army 

Central Command. Colonel Pfaff began his military 

career as an Infantry officer and first served as platoon leader and company executive officer in the 82nd 

Airborne Division, with whom he deployed to Operations DESERT SHIELD and DESERT STORM. He 

then served as a company commander and battalion 

operations officer in the 1st Armored Division, with 

which he deployed to Operation ABLE SENTRY in 

the former Yugoslav Republic of Macedonia. Colonel 

Pfaff has also served on the faculty at West Point and 

as the Senior Intelligence Officer for the Joint Staff’s 

Iraq Intelligence Working Group. He has served twice 

in Iraq, once as the Deputy J2 for a Joint Special Operations Task Force, and as the Senior Military Advisor 

for the Civilian Police Assistance Training Program. 

Most recently, he served as the Defense Attaché in 

Kuwait. He also served as a consultant for the Independent Panel to Review Department of Defense 

Detention Procedures headed by former Secretary of 

Defense James Schlesinger and contributed to the ethics section of the Army and Marine Corps counterinsurgency field manual. Colonel Pfaff has authored a 

number of articles in professional and scholarly publications including, “The Ethics of Complex Contingencies,” published in The Future of the Army Profession, 

2nd Ed, Don Snider and Lloyd Matthews, eds.; “Bungee Jumping Off the Moral High-ground: The Ethics 

of Espionage in the Modern Age,” published in Ethics 

of Spying: A Reader for the Intelligence Professional, Jan 
vi

Goldman, ed.; “The Ethics of Espionage,” in the Journal of Military Ethics; “Toward an Ethics of Detention 

and Interrogation: Consent and Limits,” published 

in Philosophy and Public Policy Quarterly; and “Chaos, 

Complexity, and the Modern Battlefield, published 

in Military Review. Colonel Pfaff has a bachelor’s degree in Philosophy and Economics from Washington 

and Lee University, a master’s degree in Philosophy 

from Stanford University, and a master’s in National 

Resource Strategy from the Industrial College of the 

Armed Forces.
vii

SUMMARY

Combating irregular threats has challenged the 

American “way of war” in a number of ways. Not only 

does it challenge how U.S. forces fight, it also brings 

into question the ethical norms they employ to govern the fighting. The resulting confusion is especially 

evident in the public debate over the rules of engagement used in Afghanistan. On the one hand, many are 

concerned that restrictions on the use of force have 

placed Soldiers' lives needlessly at risk. On the other, 

many are concerned that risking civilian casualties is 

not only immoral in irregular war, but undermines 

the war effort. 

The rules of war entail balancing three competing imperatives: (1) accomplishing the mission; (2) 

protecting the force; and (3) minimizing harm. Determining that balance entails determining where one 

should accept risk. Accomplishing missions risks Soldiers and civilians; protecting the force risks mission 

accomplishment and civilians; and minimizing harm 

risks mission accomplishment and force protection. 

Where risk should be accepted depends on the ends 

the use of military force is intended to achieve, as well 

as the character of the adversary. 

To understand why the ends and adversaries associated with combating irregular threats pose special 

challenges to ethical decisionmaking, one must first 

grasp the complex relationship these competing imperatives have with the amount of risk Soldiers may 

accept or the amount of risk to which they may assign 

to others. Confronting such threats emphasizes populations rather than military forces and capabilities. 

In doing so, it expands the ends and means of war, 
viii

requiring Soldiers not only to defend the state, but 

to impose civil order outside the state as well. These 

complications fundamentally change the character of 

warfare, requiring Soldiers to rethink where they may 

incur and assign risk when balancing the ethical demands of their profession. 

This point has important implications for the way 

U.S. forces should fight irregular adversaries, and the 

norms they should employ. First, it suggests that destruction of the enemy combat capability may paradoxically put true mission accomplishment at risk, especially when civilian lives are jeopardized. Second, it 

suggests that as the supported government develops 

the capacity for governance, the use of military force 

must itself transition from warfighting, where some 

collateral damage is inevitable, to law enforcement, 

where it is not. This monograph will offer a number of 

policy recommendations to accommodate these two 

propositions. 

What should also be obvious from this introductory framework is that the identity of the military professional will have to evolve to meet the demands of 

the environment of irregular conflict. The good qualities of a military professional derive from the purpose 

and function of the profession and the environment in 

which it is practiced. As the function and the environment change, so must the qualities of the good professional. This monograph will thus offer policy recommendations for future Army leader employment and 

development.
1

RESOLVING ETHICAL CHALLENGES

IN AN ERA OF PERSISTENT CONFLICT

ETHICS AND COMBATING IRREGULAR 

THREATS

It is famously observed that in war armies often refight their last war. This observation suggests that military capabilities rarely evolve faster than the threats 

to which they must respond. The same is sometimes 

true for the ethics intended to regulate fighting. The 

ethics of war has, for the most part, evolved to govern 

armed conflict where the warring parties attempt to 

impose their will on each other. As such, militaries associated with states that recognize these restrictions 

have developed the weapons and tactics that permit 

them to destroy another state’s military forces while 

observing their own ethical standards.1

But the character of warfare against irregular 

threats2 is different from the kind of wars that traditional just war norms were meant to regulate. Rather 

than facing enemies in open battle, for which the U.S. 

military is well-suited, U.S. forces find themselves embroiled in complex counterinsurgencies and counterterrorist campaigns where identifying the enemy—as 

well as identifying the best means to defeat him—is 

filled with uncertainty. This practical uncertainty 

entails ethical uncertainty as well: it is impossible to 

know what the rules of the game are if one does not 

know what game one is playing. 

At its most basic level, the rules of war entail balancing three often-competing imperatives: (1) accomplishing the mission; (2) protecting the force; and (3) 

minimizing harm. Determining where the balance 

should lie depends on where one should accept risk. 
2

Accomplishing missions puts Soldiers and noncombatants at risk; protecting the force puts mission accomplishment and noncombatants at risk; and minimizing 

harm puts mission accomplishment and force protection at risk. Where risk should be assigned depends 

on the ends the use of military force is intended to 

achieve. What those ends are depends on the character of the adversary.

To understand why the ends and adversaries associated with combating irregular threats pose special 

challenges to ethical decisionmaking, one must first 

grasp the complex relationship these competing imperatives have with the amount of risk Soldiers may 

take or place on others. Combating irregular threats 

complicates that relationship because it places emphasis on populations rather than military forces and capabilities. In doing so, it expands the ends and means 

of war, requiring Soldiers not only to defend the state, 

but to impose civil order as well. These complications 

fundamentally change the character of warfare and 

require Soldiers to rethink where they may accept and 

place risk when balancing the ethical demands of their 

profession. 

THE ETHICAL PROBLEM: PERMISSIONS AND 

RESTRICTIONS IN THE USE OF FORCE

Nothing captures the difficulties that combating 

irregular threats places on the military ethic better 

than the recent controversy surrounding the rules of 

engagement (ROE) employed by U.S. Soldiers in Afghanistan. While these rules correctly recognize the 

importance of minimizing risk to noncombatants, 

they often increase the risk to Soldiers and, by extension, mission accomplishment. For example, while re-
3

ceiving mortar fire during an overnight mission, a sergeant requested supporting artillery fire—a 155mm 

howitzer illumination round—so that his unit could 

better see the enemy’s location. Despite the fact that 

illumination rounds are not designed to inflict casualties, higher headquarters rejected the request on the 

ground that it could cause collateral damage. 

Later, the same sergeant reported that his unit 

came under heavy small arms and rocket propelled 

grenade (RPG) fire, and he requested artillery to be 

fired on the enemy’s position. This support was also 

denied because of the proximity of Afghan civilians 

to the fighting. To break contact with the enemy, the 

sergeant then requested the supporting artillery unit 

to fire smoke rounds to conceal their movement. Like 

illumination rounds, smoke rounds are not designed 

to cause casualties, though there is always a remote 

possibility that the nonexplosive canister carrying the 

smoke could hit someone. But while this request was 

granted, the rounds were deliberately aimed one kilometer off the requested position for fear of injuring 

civilians. As a result, the rounds were not effective for 

concealing the unit’s movement.3

On the other hand, playing by the traditional rules 

of war, rules that permit noncombatant casualties, 

comes with its own risks. For example, in late 2003, 

U.S. military commanders in Iraq adopted a range of 

aggressive tactics intended to increase lethality and 

make the cost of resistance too high for insurgents to 

bear. In response to this guidance, Soldiers went into 

Iraqi towns and villages kicking in doors and detaining scores of fighting-age “angry young men.”4

 As one 

embedded New York Times reporter noted, while these 

measures may have been absolutely necessary, they 

drained “whatever good will the Sunnis had left for 

the Americans.”5
4

U.S. forces have seen similar reactions to collateral damage in Afghanistan. In fact, Afghan President 

Hamid Karzai, responding to public outcry, has repeatedly called for International Security Assistance 

Forces (ISAF) to curtail operations and eliminate civilian casualties altogether.6

 Despite the fact that U.S. 

strikes against insurgent positions are almost always 

proportionate and discriminate, insurgents are often 

able to portray their casualties as civilian casualties. 

Additionally, insurgents are able to exploit the fact 

that Coalition forces operate in a way that tolerates 

noncombatant casualties. Insurgents thus portray not 

only their own casualties, but also the civilian casualties the insurgents themselves cause, as being a result 

of Coalition operations. The result is civilian outrage 

and calls by Karzai’s government to constrain U.S. operations.7

What these examples show is that there is an inherent tension between the imperatives of accomplishing 

missions, protecting the force, and minimizing harm 

to noncombatants that often makes finding ethically 

permissible courses of action difficult. Further, these 

examples suggest that finding such courses of action 

requires assessing where to accept risk; they also suggest that where one should accept risk is situation-dependent. This means that general rules meant to cover 

a wide range of situations will be difficult, if not impossible, to establish. Rather, ethical behavior against 

irregular adversaries will be somewhat ad hoc, that is, 

it will require individual Soldiers and their leaders to 

be sensitive to local conditions at the time and the particulars of their mission, their organization, and the 

civilians in their area of operations. 

Toward the end of articulating a method for Soldiers to make ethical decisions when combating irreg-
5

ular threats, the next section will discuss the competing imperatives and the impact combating irregular 

threats has on their application. This will allow a 

clearer formulation of the ethical problem from which 

it will be possible to determine an ethical approach 

better suited to the demands of this kind of war. 

THE PROFESSIONAL MILITARY ETHIC: 

BALANCING RISK

Accomplishing the Mission.

Military ethics begins with the utilitarian imperative to accomplish missions. The logic is fairly 

simple. If one’s cause is just, one maximizes the good 

by achieving it. Thus, actions that lead to victory or 

avoid defeat are not just permissible, they are obligatory. Additionally, it is a feature of any utilitarian 

ethic that the greater the good, the greater the kinds of 

harms that may be done in its name. While the use of 

weapons of mass destruction (WMD) or mass killings 

of noncombatants would normally be ruled out, if 

victory—depending on what was at stake—becomes 

more elusive or defeat more imminent, indiscriminate 

acts of violence may under certain circumstances be 

justified.8

However, this permission does entail a restraint. 

Though utilitarian ethics do not rule out any particular 

kinds of acts, they do rule out acts whose outcomes result in more harm than good.9 This restriction, referred 

to as proportionality, requires Soldiers to limit the use 

of force relative to the value of the military objective.10

The value of the military objective is measured against 

its contribution to the ethical objective of war: to establish a better state of peace than the status quo ante 
6

bellum.

11 Thus indiscriminate acts would most often be 

unjustified because the harm they cause undermines 

the chance for a better peace. 

Protecting the Force.

In tension with the requirement to accomplish the 

mission is the competing requirement to protect one’s 

Soldiers.12 While the imperative to accomplish missions obligates officers to put their Soldiers’ lives at 

risk, a broader view of military ethics must also consider the obligations officers have to preserve their 

Soldiers’ lives and well-being. Such measures have 

both utilitarian and moral aspects to their justification. From the perspective of military necessity, officers are obligated to preserve their forces so they may 

continue the fight. From a deontic perspective, officers 

are morally bound to give force to the proposition that 

Soldiers are human beings with their own rights to life 

and liberty.13

Minimizing Harm.

In fact, it is these rights to life and liberty that justify fighting in the first place. Most Just War theories 

define war in terms of some violation of a state’s political sovereignty or territorial integrity.14 But these 

“state rights” are not in themselves worth defending, 

but rather derive their value to the extent that their 

preservation secures the rights of citizens to life and 

liberty.15 Because these rights are universal, they restrict the kind of harms Soldiers may commit. This 

restriction, referred to as noncombatant immunity, 

requires Soldiers to discriminate when applying force 

and prohibits intentionally targeting civilians as well 
7

as surrendered or incapacitated enemy Soldiers.16 Because Soldiers receive training, equipment, and other 

resources to reduce their risk when fighting, it follows 

that they must accept some additional risk if it means 

preserving the lives of noncombatants who, by definition, have not received those resources.17 

The Ethical Problem.

From this admittedly brief analysis, it is easy to 

see how difficult ethical decisionmaking for Soldiers 

can be. They are required to achieve a trifecta—to win 

wars, preserve Soldiers’ lives, and minimize harm to 

noncombatants. Even in conventional conflicts, where 

combatants are easier to distinguish from noncombatants, such a trifecta can be difficult enough. But enemies like Hamas, al Qaeda, and the Taliban are not 

only indistinguishable from the civilian population, 

they deliberately operate close to densely populated 

areas in order to exploit any collateral damage inflicted by our forces.18 Figure 1 depicts the multidirectionality of forces affecting ethical decisionmaking, which 

entails trading off between risks associated with the 

triple imperatives of accomplishing the mission, protecting the force, and avoiding harm to noncombatants.
8

Figure 1. Ethical Decisionmaking.

This complex ethical environment places Soldiers 

in a difficult position. To win the war, Soldiers must 

find and engage the enemy within the target population, which increases their vulnerability to attack. 

Their alternative is to use weapons of greater lethality 

and range, which increases their own safety but decreases their ability to discriminate combatants from 

noncombatants. Further, the enemies’ disregard for 

noncombatant lives also places enormous pressure on 

Soldiers to discount that constraint and thus “level the 

playing field.” It is one thing to say the right to life 

is universal. It is another to say that an enemy noncombatant’s right to life takes priority over the right to 

life of the Soldiers under an officer’s charge. When the 

enemy intentionally places noncombatants in harm’s 

way, they force Soldiers to weigh mission accomplishment and force protection against the rights of those 

noncombatants. If the risks to the mission and one’s 

forces becomes so great as to jeopardize operational 

integrity, it is not clear that Soldiers are required to 

take those risks.19 

Risk to Mission

Risk to Civilians Risk to Soldiers
9

What should be clear from this discussion is that 

the way many current adversaries fight is putting 

pressure on U.S. forces to change the way they fight. 

To explain the effects of such pressure, the next section will articulate and compare the “conventional” 

U.S. way of war with the irregular way of war and 

establish a foundation from which to articulate an ethics for combating irregular threats.

“WAYS OF WAR” AND ETHICS OF WAR 

Clausewitz and the U.S. Way of War.

The Western “way of war” draws heavily on Carl 

von Clausewitz’s view that war deals with imposing 

one’s will on the enemy. This view entails a number of 

dichotomies.20 The actors in war are either friends or 

enemies; actions in war entail resistance or surrender; 

and the end-state of war is victory or defeat. It is true 

that enemies may fight to a stalemate, but such a state 

of affairs is not stable, representing only a suspension 

of hostilities until the sides decide to fight again. The 

state of war itself continues until the hostile relationship has transformed into one of peaceful competition 

or one or both sides have ceased resisting the other’s 

will. 

The logic of war in the Clausewitzian view is simple in expression, but difficult in application. One has 

imposed one’s will successfully when the enemy no 

longer has the capability to resist. One eliminates the 

enemy’s capability to resist by eliminating his combat 

capability faster than the enemy can eliminate one’s 

own. Doing this requires a strategy of annihilation—

or at least attrition—that seeks a head-to-head battle 

aimed at destroying as much of the enemy’s forces, as 

well as his ability to generate new ones, as possible.21 
10

The “way of war” that emerges from this sort of 

confrontation with the enemy, is, as historian Victor 

Davis Hanson puts it, “so lethal precisely because it is 

so amoral—shackled rarely by concerns of ritual, tradition, religion, or ethics, by anything other than military necessity.”22 Hanson is not saying here that Western militaries do not often observe restraint in war. 

His point is that Western and, by extension, American 

thinking on war is driven by the idea of “enemy as 

existential threat” who must be defeated in order to 

preserve the kinds of individual freedoms that have 

shaped western societies since the time of the ancient 

Greeks. 

From a practical perspective, this way of war adjudicates “better” and “worse” in terms of maximizing the risk to the enemy and minimizing risk to one’s 

own side. Sociologist Martin Shaw refers to this kind 

of war as “risk-transfer war,” which he sees as synonymous with the Western and American23 ways of 

war. In such wars, it will always be preferable to fight 

in response to threats to national values and interests and in a way that minimizes risk to a society’s 

social, political, and economic institutions. Because of 

the democratic nature of Western governments, wars 

must also maximize gain and minimize risk to the political leadership that declared the war. To do so, wars 

typically must be limited in duration and scope.24 

In this view, when fighting wars, one must minimize one’s own casualties while killing the enemy “efficiently, quickly, and discreetly.”25 Recognizing that 

war’s destruction tends to alienate the electorate and 

undermine the legitimacy of the war effort, destruction of the enemy is better when it remains “invisible” 

to the outside world. Such invisibility entails a preference for precision weapons and a reliance on airpower 

so as to limit risking one’s ground forces and inflicting 
11

collateral damage. But despite the emphasis on minimizing collateral damage, this way of war will subordinate risk to noncombatants in order to minimize 

risk to friendly combatants.26

It is not hard to see how this view of war shapes 

its ethics. Just as Clausewitz limits war to military 

force, the Western ethics of war requires Soldiers to 

discriminate between targets associated with the enemy’s military capability and those that are not. When 

force protection and mission accomplishment together would seem to put noncombatants at risk, the Western solution is to put force protection at greater risk in 

favor of reducing noncombatant risk while preserving 

mission accomplishment. There are limits to this risk. 

The imperative of mission accomplishment dictates 

that neither suicide nor mission failure can ever be 

ethically obligated. Thus Soldiers are not obligated to 

accept so much risk that they either cannot accomplish 

the mission or continue the war effort.

Thus, this ethics not only informs the way the 

United States wages war, but also harmonizes with 

it. This balance of imperatives does not interfere with 

the successful waging of war; moreover, by limiting 

the damage to civilian lives and property, this ethic of 

war limits post-conflict grievances and facilitates the 

transition to peace. Of course, there have been times 

when Western militaries have attacked purely civilian targets. But here is where the exception proves the 

rule. Even Air Force General Curtis LeMay believed 

that bombing purely civilian targets was opposed to 

the law (if not ethics) of war but fell within the scope 

of how wars are won.27

The point of this discussion is not to suggest that 

the Western way of war is useless. In conventional 

terms, the U.S. military in particular has often been 

more effective than its non-Western counterparts. One 
12

need not look far for affirmation. The Allied victory 

over Japan in World War II and the U.S. victory over 

conventional Iraqi forces in 1991 and 2003 serve as but 

two examples in a very long list. 

But ethics aside, this way of war also has its limitations. The United States defeated the Iraqi military, 

but it has not yet achieved its political goals in Iraq. 

Going a little farther back, it is also worth noting that 

while the U.S. military was successful in its operations against the North Vietnamese military, military 

success did not achieve the desired political ends. In 

fact, there have been a number of times when military might actually worked against achieving political 

ends. The reason is that imposing one’s will is only the 

instrumental end of war. Given that there are other 

material ends of war, enabled by imposition of will, 

strategies of attrition and annihilation are not always 

the best ways to achieve them. 

Political scientist Patricia Sullivan attributes such 

less than optimum approaches to a misalignment 

between war aims and war strategies. She notes that 

war aims fall into two broad categories: (1) targets of 

acceptance, and (2) targets of compliance. The former 

category involves imposing one’s will and thus a certain state of affairs on an enemy. The latter involves 

pursuading an enemy to see to one’s interests and act 

in a way that realizes and maintains a certain state of 

affairs. As noted earlier, one succeeds in the former 

kind of war by pursuing strategies of annihilation and 

attrition. Sullivan notes, however, that such strategies 

can often work against targets of compliance. In fact, 

she notes, when larger states have lost to weaker states 

in the past, it has often been in attempts to make the 

weaker state change its policy. This counterintuitive 

result comes from the fact that while military force can 
13

force acceptance, it cannot change someone’s mind 

about what they want.28 For that, one needs to be able 

to shape the enemy’s interests. 

Sun Tzu and the Irregular Way of War.

U.S. adversaries have exploited the misalignment 

Sullivan has identified. Recognizing that the United 

States is unrivaled as a conventional military power, 

these adversaries have largely abandoned the idea 

that a war with the United States will ever result in imposing their will. Rather, they have undertaken means 

and ends aimed at compelling the United States to accommodate their interests. To illustrate this point and 

the implications it has for the U.S. way of war, contrast Clausewitz’s view articulated above with that of 

the ancient Chinese general, Sun Tzu. Noting that war 

“is a matter of vital importance to the state,”29 he does 

not limit its application to the use of military force at 

all. In fact, he admonishes the would-be general not to 

put a premium on killing, adding that “to subdue the 

enemy without fighting is the acme of skill.”30 

Thus, for Sun Tzu, war is paradoxically limited in 

its goal but unrestricted in its means. But by unrestricted, he is not referring to violence as much as he is the 

means employed. War begins long before the first shot 

is fired and requires all the elements of national power 

to set the conditions for a preferably bloodless acquiescence of the enemy. As historian Michael Handel 

noted, Sun Tzu “views the political, diplomatic, and 

logistical preparations for war and the fighting itself 

as integral parts of the same activity.”31
14

Working in the tradition of Sun Tzu, two Chinese 

senior colonels, Qiao Liang and Wang Xiansui, in the 

book Unrestricted Warfare, argued that failure to recognize this broader view of war is a U.S. vulnerability 

that weaker states, like China, can exploit.32 Writing 

in the aftermath of the 1991 Gulf War, they acknowledged that it would be suicide for any state to take on 

the U.S. conventional forces. But they also observed 

that the U.S. military does a poor job of deliberating 

upon future fights: “lucid and incisive thinking . . . is 

not a strong point of the Americans. . . . U.S. military 

preparations for future conflict focus almost exclusively on conventional forces.”33 They go on to point 

out that “such ridiculous thinking” has caused the 

United States to be unprepared to fight terrorism and 

other unconventional threats.34 

More importantly, the situation they describe 

would appear to be enduring. This point does not 

suggest that the United States will never fight a conventional war again. But as long as the United States 

remains unchallenged in its conventional capabilities, 

its prudent enemies will avoid directly confronting 

those capabilities. Employing the language of Clausewitz and Sun Tzu, Qiao and Wang implicitly argue 

that U.S. conventional success has more or less permanently transformed the character of war: war is no longer “using armed force to compel the enemy to submit 

to one’s will,” but rather “using all means, including 

armed force or nonarmed force, military and nonmilitary, and lethal and nonlethal means to compel the 

enemy to accept one’s interests.”35

Thus, as Dr. Sullivan suggested, the shift of war’s 

aim from imposing one’s will to gaining acceptance 

of one’s interests in turn changes what it means to 

fight well, in both the practical and ethical sense. In 

this view, military force is just one element of national 
15

power that can be used to wage war against an enemy. The list of such elements includes nuclear, diplomatic, financial, network, trade, bio-chemical, intelligence, resources, ecological, psychological, economic 

aid, space, tactical, regulatory, electronic, smuggling, 

sanction, guerrilla, drug, news media, terrorist, virtual, ideological warfare, and many more. 

Additionally, these elements of warfare can be 

combined in infinite ways to form various kinds of 

warfare.36 For example, the Chinese colonels describe 

the U.S. war on terror as “national terrorist warfare 

+ intelligence warfare + financial warfare + network 

warfare + regulatory warfare.” They also describe efforts by the Hong Kong government in 1998, just prior 

to its return to Chinese government control, as a war 

fought with “financial speculators,” using financial 

warfare combined with regulatory, psychological, 

and news media “warfare.”37

From this shift in ends emerges a view of war that 

expands on Clausewitz, changing war’s scope. Friend 

and enemy are joined by collaborator and competitor;38

resistance and surrender are replaced by acceptance 

and rejection; and victory and defeat are replaced by 

success and failure. Further, friend and enemy do not 

refer simply to states, but to substate and nonstate organizations as well. Additionally, such conflicts are 

not zero-sum. If one can achieve one’s interests by 

benefiting the enemy, or some subgroup within the 

enemy’s community, so much the better. 

The Ethical Implications of Combating Irregular 

Threats.

This description of multifaceted warfare against 

irregular adversaries better accounts for the kinds of 

conflicts the United States is currently facing. By shift-
16

ing the emphasis away from imposing one’s will to 

accepting one’s interests, this view of war shifts the 

emphasis of engagement from military capability to 

the people. This shift subjects civilians and civilian 

institutions to competing efforts of co-option and 

coercion where both sides attempt either to win the 

populace to its cause or prevent the enemy from doing 

the same. As Rupert Smith notes in The Utility of Force, 

in such conflicts, the loyalties, attitudes, and quality 

of life of the people do not simply impact the outcome 

of a conflict: they determine it.39 Because of this shift 

in emphasis, Smith argues that these conflicts are best 

described as “wars amongst the peoples” where the 

enemy operates among the civilian population in part 

because of one’s conventional prohibitions against 

targeting them.40 

Operating within the civilian population, the enemy depends on that population for shelter, food, medical assistance, finances, and other types of support. 

This relationship entails collaboration on the part of 

some, if not all, of that population, though it does not 

follow that this support is given willingly: the ability of 

the enemy to exact it determines his strength. Hamas, 

for example, routinely places rocket and mortar positions near schools, residences, and other civilian sites 

to exploit any resulting collateral damage. Similarly, 

it forcibly moves civilians into areas where the Israelis 

are expected to attack.41 

Willing or not, this relationship draws the civilian 

population into a status logically inseparable from 

warfighting, making them necessary, if not legitimate, 

targets of war. What makes them necessary targets is 

the fact that the irregulars (or militarily weaker side) 

could not fight without their support, and we (the 

militarily stronger side) cannot win if we do not undermine it. 
17

The Ethics of Combating Irregular Adversaries.

This shift in emphasis from combat forces to populations poses a significant ethical as well as practical 

challenge to the Western way of war. In terms of practical challenges, population emphasis suggests that 

the United States must incorporate all the elements of 

national power to ensure success; moreover, to realize 

its interests, it must do so in a way that both coerces 

and attracts the population. It is beyond the scope of 

this discussion to amplify this point much further. 

But it does suggest that there is an ethical as well as 

practical requirement to develop and implement these 

broader means. In ethical terms, the challenge arises 

because of the intermingling of combatant and noncombatant as adversaries exploit civilian populations. 

Challenges also result, of course, from the necessaary 

prohibitions intended to protect the population from 

the suffering caused by war. 

It is for this reason that combating irregular threats 

does not lend itself to the easy dichotomies of civilianmilitary or combatant-noncombatant. Irregular actors 

hide among civilian populations, making civilians 

complicit, if not willingly so, in their activities. But 

one must not assume that civilian complicity and liability cause a loss of their immunity when we operate against irregular threats. This line of argument is 

essentially the same as the one made by controversial 

academic Ward Churchill in echoing Osama Bin Laden’s justification for striking the World Trade Center 

in New York. Alleging the Twin Towers occupants’ 

indirect contribution to American military might, both 

argued that the terrorist attacks of September 11, 2001, 

were justified because of their relationship to U.S. mil-
18

itary policies they believed were unjust. Setting aside 

the sheer illogic of these claims, it is worth examining 

whether and to what extent civilians should be targeted in the course of combating irregular threats.42

Thus, it does not follow that by virtue of being 

members of a particular population, individuals have 

necessarily made a choice that justifies our killing or 

even targeting them. However, to the extent that a 

government or other political entity represents itself 

as a threat to some other group, the way its members 

choose to participate in that effort can affect whether 

or to what degree they may be ethically exposed to 

certain kinds of retaliation. As the philosopher Thomas Nagel notes, a person may be subjected to hostile 

treatment by virtue of the threat that person represents, since “hostility or aggression should be directed 

at its true object.”43

In Nagel’s view, one is ethically permitted to 

subject a person to hostile treatment only because of 

something that person does, and further, the hostile 

treatment must be directed at the person in virtue of 

the threat posed. In conventional jus in bello terms, it 

follows from this argument that combatants may be 

killed, since they embody the threat represented by 

the enemy state; and noncombatants may not, since 

by virtue of being noncombatants, they do not represent that threat. Of course, this argument does not 

necessarily exempt civilians from being targeted. For 

example, it is permissible to target munitions workers 

even though they are not uniformed members of the 

military. This permission is due to the fact that their 

activity is not logically inseparable from warfighting.44
19

Discrimination: Enemies, Criminals, and a Just 

Peace.

In determining what measures are permissible in 

such a complex environment, one must also take into 

account the ethical aim of the state’s use of force in 

the first place. Despite the change in the character of 

war, the fundamental question about the ethicality of 

war is still a question of justice. While there are many 

concepts and forms of justice, at its most basic justice 

is about getting what one deserves.45 In the context of 

national security, what one deserves is what one has a 

right to, which as I have previously stipulated is, at a 

minimum, life and liberty. 

The responsibility for ensuring that individuals 

enjoy such rights falls on the state by virtue of the social contract. The state ensures these rights by creating 

law enforcement and military institutions that provide 

the kind of security required for the exercise of those 

rights. Security, being indivisible and nonexcludable, 

is a public good, meaning that its provision is subject 

to the demands of distributive justice.46

Providing security requires the sovereign to form 

institutions around which the distribution of social 

goods is organized. These institutions identify a public system of rules that define how other individuals, 

which I will refer to as the state’s agents, identify their 

positions, rights, roles, and duties.47 Institutions, in this 

sense, can be both abstract and concrete. For example, 

one may speak of “the military” when determining 

the roles, rights, duties, powers, prohibitions, permissions, and obligations associated with certain aspects 

of national security.48 More concretely, one may refer 

to the “Department of the Defense (DoD),” which is 

the practical U.S. manifestation of “the military” actually charged with the roles and responsibilities associ-
20

ated with maintaining national security. Collectively, 

the institutions which employ the various powers of 

the state are the state. Individuals who operate within 

these institutions thus take on the obligations of the 

state insofar as the exercise of such obligations is compatible with the role they play within that institution. 

It is important to note, however, that despite the 

fact that military and law enforcement institutions 

share a common purpose—to protect citizens of their 

state—they differ significantly because of the different kinds of threats they confront. Militaries confront 

enemies who are capable of violating the state’s right 

to political sovereignty and territorial integrity. Criminals, on the other hand, threaten individual rights. 

While widespread criminal activity can place so much 

pressure on government institutions that they collapse, normally they do not represent a threat to the 

state itself. How these dual roles inform the ethics of 

combating irregular threats is discussed later. 

It is, of course, beyond the scope of this paper to 

establish what appropriate state institutions should 

exist, given the range of cultural, social, and political conditions. But the paper does suggest that if the 

purpose of fighting wars is to establish a just peace, 

then, once established, the purpose of continued military operations is to maintain that peace. A just peace 

entails not simply a cessation of hostilities, but the 

presence of just institutions capable of sustaining that 

peace. Given these considerations, one can say a state 

of peace exists under the following conditions: 49

• The enemy is defeated or transformed into 

a nonexistential threat either to one’s state or 

to the imposition of a just host-nation government. 
21

• There exist institutions necessary for enforcing 

the rule of law, including police, courts, and 

prisons. 

• These institutions must be fair, honest, and 

credible, where citizens are willing to rely on 

them to resolve disputes rather than resort to 

violence to resolve disputes themselves. 

Of course, these conditions do not spontaneously 

emerge when the war ends. In fact, it may not be clear 

when a particular conflict ends. There is no clear signal, like an offer of surrender, marking when an irregular threat no longer exists. If the enemy does surrender, it usually comes long after the threat has been 

contained. As a matter of course, “winning” is usually manifested by the ability of one side to impose 

its order on the population in question, however that 

population is identified. 

This point means that counterinsurgent forces 

must often transition from conditions of war, where 

no institutions associated with civil society exist, to 

conditions of peace where such institutions come into 

existence and are capable of enforcing the just rule 

of law on their own. It is a fact of many conflict and 

post-conflict situations that even when such institutions exist, they are not always effective. Institutional 

development in conflict and post-conflict situations 

proceeds in stages. It begins with imposing order, 

then transitions to protecting minority rights, and 

then ends with local institutions capable of sustaining 

a just social order.50

As the operating environment transitions from 

warfighting to civil society, the state’s obligation to 

protect its citizens may fall on foreign military forces 

supporting it as well. Whatever the actual reasons the 

higher headquarters had in the ROE contretemps dis-
22

cussed earlier, it was right to take into account how 

the sergeant’s request for smoke and illumination 

might endanger civilians. As the Afghan government 

continues to develop institutions necessary to provide 

security in a just manner, U.S. forces must not only 

shoulder their responsibility to avoid harm to themselves, but also their responsibility to protect those 

civilians. Figure 2 depicts the inverse relationship between the strength of civil institutions on one hand, 

and permissions regarding the use of force and collateral damage on the other. As the capability of civil 

institutions increases to the point that they are strong 

enough to provide basic security needs for a given 

population, collateral damage becomes no longer permissible since it represents the kind of violence those 

institutions are supposed to prevent. 

Figure 2. The Inverse Relationship

between the Strength of Civil Institutions

and Permissions Regarding the Use of Force

and Collateral Damage.

Transitions to Civil Society

Strength of Civil

Institutions

War fighting

Most force permissible

Law Enforcement

Least force possible

Less

Less

Use of Force

More

More

Risk to Civilians

Risk to Soldiers Collateral damage

not permissible
23

Thus, as civil institutions become stronger, susceptibility to risk decreases for civilians while increasing 

for Soldiers, as well as police and other security services. In other words, the risk shifts from civilian to 

security provider.

Whether the decision to withhold fire support was 

in fact the right one depends on whether the state, in 

fact, had control over that territory. As noted earlier, 

the state’s responsibility to protect is enabled by its 

right to sovereignty and territory. Where an enemy 

has effectively taken territory and displaced the state’s 

institutions, then the threat is no longer criminal, and 

great force is permitted. This point will be discussed 

in more detail later.

However, as this example shows, in the context of 

this transition from war to peace, the central difficulty 

when combating irregular threats is sorting out the 

combatants from enemy collaborators among one’s 

own supporters. This sorting is further complicated 

by the fact that some collaborators are coerced, and 

some nominal allies have ties to and even sympathies 

for the enemy. Additional complications arise when, 

unlike in conventional conflicts, the activities of insurgents and their supporters take place in the same 

space as routine and peaceful civilian activity, making 

it difficult to determine who is complicit with the enemy and who is not. 

Thus as a practical matter, distinguishing between 

combatant, noncombatant, and supported can be very 

difficult, if not impossible. In such contexts, restricting 

one’s efforts to engaging only armed elements of the 

insurgency can have the dual effect of jeopardizing 

the stronger side’s chances for victory, and prolonging the conflict, paradoxically leading to more harm 

to noncombatants. 
24

Resolving the paradox requires expanding the set 

of legitimate targets while reducing the occasions for 

the lethal use of force. Further, in expanding the set 

of legitimate targets, one must take into account their 

relationship to the actual threat Soldiers face. Taken 

together, these points suggest the following permissions and restrictions regarding the requirement to 

discriminate permissible targets from the impermissibles:

• Members of the general population may be subject to law enforcement measures regardless of 

their level of cooperation with the enemy, such 

as curfews and increased security measures, as 

well as information operations.

• Members of the population who indirectly, but 

unknowingly, support enemy activities may be 

required to cease such activities, even if it negatively impacts their quality of life.

• Members of the population who directly and 

knowingly support the enemy but do not engage in violent activities—the actual threat 

they represent being indirect and they being 

no threat if there were no enemy—may not be 

targeted for killing, but rather must be treated 

as criminals.

• Members of the population who participate in 

violent activities may be killed or detained. To 

the extent that these members of the population 

represent a threat to the government, collateral 

damage may be permitted.

• Members of insurgent and terrorist groups 

may be targeted for killing if they represent an 

enemy threat in the sense described above. If 

they represent a criminal threat, again in the 
25

sense described above, they must be targeted as 

criminals and killed only when it is not possible 

to detain them.

In addition to standard jus in bello restraints, this 

analysis also suggests that it would not be permissible 

to target the following:

• Members of the population who, if targeted, 

will not have an effect on the outcome of the 

conflict. This is not controversial, as no theory 

of just war would endorse gratuitous targeting.

• Members of the general population may not be 

harmed, even collaterally, if the threat represented by the adversary may best be described 

as criminal.

SUMMING UP: BALANCING COMPETING 

IMPERATIVES

As discussed above, the aim of operations against 

irregular adversaries should be the establishment of 

a just civil society capable of securing the rights of its 

members without representing a threat to the rights 

of members of other societies. As in Iraq and Afghanistan, such conflicts often start as wars, where combatants are relatively easy to distinguish from noncombatants. In such cases, traditional just war norms would 

apply. 

However, as these conflicts also show, the battlefield defeat of those forces does not always mean an 

end to fighting. However, though the fighting continues, it does not follow that the conflict is unchanged. 

Where the major combat operations that began the 

war were aimed at imposing U.S. will on the Iraqi and 

Taliban governments, after their defeat the aim of the 

war transitioned to persuading elements of the popu-
26

lation to accept the other’s interest and manifest that 

acceptance in the form of a government they would 

all accept. 

What norms apply then depends on the kind of 

threat the adversary represents. At this point, warfighting ceases to be about defeating enemy forces but 

compelling the population to accept the legitimacy 

of a new government. The burden of risk thereupon 

should shift to reflect the rights and responsibilities of 

that government. If the rights of a state rest on its citizens’ rights to life and liberty, individuals and groups 

that threaten those individual rights but not the state’s 

rights, are then best conceived as criminal. While they 

do not directly threaten those state’s rights, their 

threat to individual rights still places a burden on the 

new state to protect those individual rights. 

When it comes to the use of force, military and law 

enforcement organizations instruct their forces to always use the least force necessary. However, these entities have very different conceptions regarding what 

is the least force necessary. Under conventional just 

war norms, the military seeks to use the most force 

permissible, given the requirements of proportionality 

and discrimination. In the conditions of civil society, 

law enforcement seeks to use the least force possible. 

The different conceptions are due to the way each 

perceives and is trained to deal with threats. To the 

police, the threat is a criminal they must apprehend 

in order to minimize disruption to society. Since the 

use of violence represents a further disruption of the 

peace, police are always looking to use the least force 

possible. In this view, no use of force where civilian 

bystanders will knowingly, though unintentionally, 

be harmed is permitted. 
27

However, Soldiers are trained to defeat enemies 

who must be killed if there is to be peace. They are 

always looking to reduce risk to themselves by using 

the most force they have available. As noted previously, that force should be tempered by the amount 

of risk Soldiers must assume rather than putting noncombatants at risk.51 This feature of conflict gives us 

two models of threat that states may face: warfighting 

and law enforcement. States have developed different 

institutions to deal with each; they employ very different forces, methods, and ethics in facing those threats. 

These divergent conceptions of necessity determine 

different permissions regarding the use of force.

Mission Accomplishment and Proportionality.

In both models, mission accomplishment remains 

an imperative. Typically, Soldiers may risk only mission failure—or more accurately, forgo the mission 

altogether—when the degree of risk assigned to noncombatants results in harm done that is disproportionate to the good achieved.52 When calculating proportionality, Soldiers fighting enemies must weigh 

the harm the Soldiers do against the requirements of 

future peace. Actions that will perpetuate animosity 

and make a stable peace difficult to attain need to be 

weighed against any action intended to achieve that 

peace. Soldiers engaging criminals are obligated to 

weigh the harm done against the requirements of the 

current peace. This restriction would not only limit engaging in violent actions, it would also preclude nonviolent actions that nonetheless disrupted the peace, 

such as mass detentions or excessive restrictions on 

movement. 
28

Force Protection.

As noted above, the degree of risk Soldiers are obligated to accept is limited only by the requirements of 

force protection and mission accomplishment. Under 

the law enforcement model, Soldiers are obligated to 

accept certain risks so as to prevent harm to civilians, 

but they may not put those civilians at risk.53 There 

are conditions, for example, in which law enforcement 

officials will allow a suspect to escape rather than put 

bystanders at risk of serious physical injury or death. 

However, they would not stop their pursuit of that 

criminal nor their efforts to prevent future criminal 

acts.54 Thus, if the choice is to forgo harming civilians or 

conducting a particular mission, Soldiers must choose 

to forgo conducting that mission. This requirement 

does not mean, however, they must forgo achieving 

their objective, just that they must find another way 

to do it. Additionally, like police, Soldiers are not obligated to risk serious physical harm or death simply to 

apprehend a single individual unless that individual 

represents an immediate harm to others.

Minimizing Harm.

When discriminating between legitimate and illegitimate targets, Soldiers fighting enemies must 

observe the negative obligation to minimize noncombatant casualties. Soldiers engaging criminals must 

avoid such casualties altogether. Additionally, under 

the criminal model, Soldiers have a positive obligation 

to protect civilians from harm in the same way police 

have an obligation to protect civilians.55 This latter 

condition assumes that Soldiers can act as police in the 

given area of operations. Where that authority does 
29

not exist, Soldiers may engage the adversary under 

the enemy model, but only in order to establish a law 

enforcement capability as rapidly as possible.56 

IMPLICATIONS FOR LEADERS

What should be obvious from this framework 

is that the identity of the military professional will 

have to evolve to meet the demands of the environment of operating against irregular adversaries. The 

good qualities of an officer derive from the purpose 

and function of the profession and the environment 

in which it is practiced.57 As the function and the environment change, so must the defining qualities of the 

good officer. 

When fighting enemies, qualities such as decisiveness, aggressiveness, and unwillingness to compromise are essential to achieving peace. Under the criminal model, traits such as tact, restraint, diplomacy, and 

patience are paramount. Balancing the requirements 

of these sometimes competing models poses a problem for the officer. In fact, several studies have noted 

that the “professional career Soldier is not necessarily the best person for peace-keeping (or law enforcement) tasks.”58

It is worth noting that the traits described above 

for both models are not necessarily mutually exclusive. The difference derives from which traits dominate. Thus the challenge for the officer is to cultivate 

new traits, while not allowing the old ones to atrophy. Additionally, the officer will have to develop the 

judgment to determine how these traits apply across a 

range of environments.59 

As previously discussed, combating irregular 

threats requires Soldiers to have a great deal of lo-
30

cal knowledge so they may best account for local 

needs and interests in order to bolster the supported 

state. However, the higher one is in the chain of command, the more difficult it is to retain and apply this 

knowledge in the context of a particular operation. 

This feature of irregular warfighting puts pressure on 

traditional Army culture, which assigns near total responsibility to the commander for whatever happens 

in his or her command. As a result, commanders tend 

to retain at their level the authority to make critical decisions, a tendency resulting in relatively centralized 

decisionmaking.

However, as the sergeant in the ROE example 

experienced, while higher headquarters are adept at 

applying general rules and guidance, they cannot—at 

least not consistently and effectively—take into account the many nuances associated with combating 

irregular threats, such as the relative value of any particular operation, the relationship of particular locals 

to enemy forces, or how much risk civilians will be 

exposed to by a particular course of action. As a result, 

what emerges is a cacophony of decisions that sometimes place Soldiers at extreme risk and at other times 

lead to unnecessary civilian casualties. 

It is beyond the scope of this discussion to fully 

articulate the implications of this point for traditional 

command responsibility, but it does follow that decisions regarding the use of force should be made at 

the lowest level feasible. This will require leaders to 

have extremely good local knowledge, since they will 

have to live with both the negative and positive consequences of their decisions. However, a leader who has 

developed a sense of obligation toward members of 

the local population will be in a better position to determine what level of force is appropriate within the 

framework articulated in this discussion. 
31

IMPLICATIONS FOR THE PROFESSION

This monograph suggests the following measures 

the profession should take to provide the officer corps 

with the wherewithal necessary to conduct ethical operations when facing irregular adversaries:

• Develop the capability to conduct law enforcement operations and establish civil institutions 

in post-conflict environments. Application of 

force under the criminal model depends on 

access to functioning law enforcement institutions. These institutions are usually not available to foreign forces. This suggests that when 

confronting irregular adversaries, militaries 

must incorporate this institutional capability 

into their organization. In some cases, this capability development will require integrating 

military and civilian capabilities under a unified command. Failing to invest in such capabilities will lead to increased risk to noncombatants that could have been reasonably avoided. 

To the extent that a supporting state would 

have invested in those capabilities to avoid risk 

to its own citizens in similar circumstances, it 

should do so as well when conducting operations in foreign countries.

• In environments where the enemy is sufficiently strong to prevent the establishment of such 

institutions, Soldiers may conduct operations 

under the enemy model even though the adversary may not meet the enemy criteria. But 

these operations must include the goal of creating an environment where police methods and 

forces would be effective. 
32

• Modify ROE to reflect the restrictions inherent 

in the criminal model. Additionally, commanders will need to develop a framework for shifting between the two models. 

• Increase the use of and training in nonlethal 

weapons. This will give Soldiers more options 

when dealing with situations where it is difficult to discriminate between combatants and 

noncombatants.

• Revise the ethical development of officers to 

include traits associated with law enforcement 

and peacekeeping, while preserving those normally associated with warfighting. 

• Revise the conception of command responsibility and intra-command risk-sharing to permit 

greater decentralization regarding the decision 

to use force. Place the decision to use force at 

the lowest level feasible. Determining the appropriate level should take into account the 

individual leader’s experience and knowledge 

of the local environment as well as the means 

employed in achieving military objectives.

CONCLUSION

If one views the character of war as the imposition 

of one’s will on the enemy, then one will naturally emphasize coercive strategies of attrition and annihilation that eliminate resistance. Such a view, of course, 

does not ignore constraints in war, but as the distinction between what is and is not logically separable 

from warfighting blurs, the range of potential targets 

expands. As it does, the burden of risk shifts to the civilian population, increasing the potential for human 

rights violations. 
33

On the other hand, if one’s view of war favors compelling the enemy to accept one’s interests, then one 

must employ a mix of coercive and persuasive inducements aimed at shaping the enemy’s interests in conforming. While this view does not ignore the requirement to kill, it often subordinates eliminating enemy 

combat capabilities in favor of achieving complementary political goals. As the distinction between politics 

and warfighting blurs, risk shifts back to combatants, 

who must often sacrifice short-term military goals for 

the sake of long-term institutional development. But 

if one over-emphasizes such attractive measures over 

coercive ones, one creates space for the enemy to operate, prolonging the war and putting one’s own Soldiers—as well as civilians—at unnecessary risk. 

Placing the burden of risk on the enemy means 

placing it on the civilian population as well. One could, 

and in some cases should, accept more risk to one’s 

citizens and Soldiers, but if one treats that imperative 

as an absolute, one abandons one’s obligation to those 

persons as well. In these kinds of conflicts, it is not uncommon to feel that one is placed in the position not of 

balancing ethical demands, but of abandoning them. 

However, abandoning one’s ethical obligations is 

not only unethical, it is unnecessary. It is, of course, 

beyond our scope here to fully spell out how one 

should balance these imperatives in each instance. 

However, what this analysis has shown is that when 

combating irregular threats in environments where 

stable peace exists, Soldiers are ethically obligated to 

employ means that avoid harm to noncombatants. In 

environments where there is no peace, Soldiers may 

undertake actions that place noncombatants at risk, 

but must observe the traditional restrictions of proportionality and discrimination. 
34

The fact that enemy and criminal threats are often 

found within the same battle space provides extraordinary ethical as well as practical challenges to officers 

of all ranks. To confront such threats without betraying the rights and values Soldiers are defending, military leaders must reconsider the application of force. 

This will require not only radical adjustments to training, force development, and task organization, it will 

also require a fundamental rethinking of the Soldier’s

identity.

ENDNOTES

1. While the observation of these restrictions has certainly 

been inconsistent across multiple conflicts, nonetheless, for the 

most part militaries recognize these restrictions and have avoided 

employing weapons and tactics that are inherently indiscriminate. 

2. U.S. Training and Doctrine Command (TRADOC) Pamphlet 

(Pam) 525-3-0, The Army Capstone Concept, Operational Adaptability: 

Operating under Conditions of Uncertainty and Complexity in an Era of 

Persistent Conflict, 2016-2028, Washington, DC: Department of the 

Army, December 21, 2009. Finding the right label for the kind of 

unconventional conflicts discussed in this monograph is difficult, 

as the literature is rarely consistent. As the Army Capstone concept defines it, irregular warfare is the “violent struggle among 

state and non-state actors for legitimacy and influence over the 

relevant population(s).” However, this term risks arbitrarily excluding operations against irregular adversaries that fall short of 

war. “Asymmetric warfare,” which is an arguably more popular 

term, still raises objections from a number of authors and scholars who are concerned that it does not sufficiently distinguish between conventional asymmetries, where one side simply brings 

more firepower to the field than the other from the range of 21st 

century security threats, which use unexpected means to strike 

at vulnerable points. Rupert Smith, author of Utility of Force, for 

example, views the term as simplistic and prefers “war amongst 

the peoples.” T. X. Hammes, author of The Sling and the Stone, 

argues that wars characterized by the use of asymmetric means 

such as terrorism and insurgency are best described as fourth gen-
35

eration war, where first generation warfare focused on destroying 

the enemy’s “close” forces, second generation warfare employed 

firepower to destroy enemy forces in range, and third generation 

warfare employed maneuver to strike at enemy command and 

control as well as logistic capabilities. Fourth generation warfare 

changes the focus of war from the enemy’s military capability 

to the will of the people. For the purposes of this discussion, I 

will distinguish between “regular war” and combating “irregular 

threats.”

3. George Will, “U.S. tactics in Afghanistan put troops at risk,” 

The Washington Post, June 21, 2010, available from www.courant.com/

news/opinion/hc-will-afghanistan-tactics-0621-20100621,0,2660470.

column. 

4. Dexter Filkins, “The Fall of the Warrior King,” New York 

Times Magazine, October 23, 2005, p. 54.

5. Ibid., p. 57.

6. “Karzai Demands Halt to Civilian Casualties,” Reuters, 

February 7, 2010, available from www.rferl.org/content/Karzai_

Demands_Halt_To_Afghan_Civilian_Casualties/1951260.html. 

7. A. Karzai, “Lament; Afghanistan’s president becomes a 

NATO scold,” The Wall Street Journal (Online), February 24, 2010, 

available from www.proquest.com/. 

8. Michael Walzer, Just and Unjust Wars, 2nd Ed., New York: 

Basic Books, 1992, pp. 130-132. According to Walzer, all a utilitarian ethic can do is either confirm our intuitions regarding the rules 

of war or suggest they be overridden, as under utility theory, no 

act is immoral by virtue of its character, only its outcome. Walzer 

does argue that cases of “supreme emergencies,” where the realization of catastrophic harm is imminent, may justify the use of 

means normally ethically off-limits. 

9. All theories of utility emphasize the maximization of some 

good and the minimization of some harm. They disagree, however, on what exactly the good is. For the father of utility theory, 

Jeremy Bentham, it was pleasure. For John Stuart Mill, it was happiness. Others consider it interest or well-being. In the context of 
36

Just War thinking, the good is understood as victory for the just 

side, which is the best outcome of any war, even for the enemy. 

See William Shaw, “The Consequentialist Perspective,” James 

Dreier, ed., Contemporary Debates in Moral Theory, Malden, MA: 

Blackwell Publishing, 2006, p. 10. 

10. Proportionality is a notoriously difficult requirement to 

calculate as it requires one to measure harms that are not always 

commensurate, as well as calculate the future harms one is trying to avoid. Thus, when considering the Israeli case, one must 

consider the impact Hamas attacks over the last several years has 

had on the quality of life of the affected Israeli towns. The fact 

the attacks were not particularly effective did not mean that those 

living in those villages were less terrorized. Now calculating how 

much collateral damage on the Palestinian side is proportional to 

the objective of preventing future attacks and restoring a sense of 

normalcy to the affected Israeli villages is difficult, but not impossible, to determine. Additionally, one must calculate the harms 

expected from future attacks, which requires one to consider second and third order consequences as well. For example, if Israel 

failed to prevent the attacks, Hamas may be emboldened to increase them. In both cases, judgments are difficult, but not impossible. It is beyond the scope of this monograph to examine fully 

the complexities associated with calculating proportionality, but 

what should be clear is that proportionality must be measured in 

terms of the overall good achieved by attaining the military objective, not the current “balance of harm” each side has endured. 

11. Because the immediate, short-term military objectives are 

embedded in the larger, overall military objective, proportionality 

calculations apply to both. But when it comes to the more limited, 

short-term objectives, proportionality must be calculated in terms 

of its contribution to that objective, not in terms of the value of the 

overall objective. 

12. I will use the term “Soldier” to refer generically to uniformed members of the military. I will capitalize “Soldier,” “Sailor,” and “Airman” when referring to uniformed members of the 

Army, Navy, and Air Force just as one would capitalize “Marine” 

when referring to uniformed members of the U.S. Marine Corps. 
37

13. James M. Dubik, “Human Rights, Command Responsibility, and Walzer’s Just War Theory,” Philosophy and Public Affairs, 

Vol. 11, No. 4, 1982, p. 355. Dubik rejects Walzer’s conception that 

Soldiers give up their right to life to gain the right to kill. He argues that if rights to life and liberty are indeed natural, then Soldiers—or anyone for that matter—cannot give them up. 

14. Walzer, pp. 53-54.

15. Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues, 2nd Ed., Trenton, NJ: Prentice 

Hall, 1999, pp. 164-166. It does follow from this analysis that states 

that threaten the lives and liberty of their citizens do not enjoy the 

rights of political sovereignty and territorial integrity. This rationale has been used to justify humanitarian interventions, such as 

those in Bosnia and Kosovo. See Walzer, pp. 101-108. 

16. Walzer, pp. 151-152.

17. Dubik.

18. Obviously, these actions are immoral from the perspective 

of the Just War Tradition, and are war crimes from the perspective 

of international law. By fighting in an immoral and illegal manner, groups like Hamas expose themselves to justified reprisals, 

which would permit the Israeli Defense Force to engage in otherwise immoral activity to dissuade Hamas from continued crimes. 

However, reprisals may be directed only at those responsible for 

the crime in first place, which would preclude targeting noncombatant lives and property. See Walzer, pp. 207-216.

19. Christopher, p. 93.

20. Peter Paret, “Education, Politics, and War in the Life of 

Clausewitz,” Journal of the History of Ideas, Vol. 29, No. 3, Jul-Sep, 

1968, p. 395. That Clausewitz would express himself this way is 

not surprising, given his exposure to philosophers like Kant, who 

emphasized the role of will, and Friedrich Hegel, who emphasized a dialectical process of reasoning. But Paret notes that while 

Clausewitz was certainly exposed to Hegel and Kant, he did not 

seem to apply their insights directly to his own views of politics 

and war. Thus one must be careful when inferring philosophical 
38

influences on his writing. But while it seems clear that Clausewitz did not deliberately employ a Hegelian dialectic to construct 

a full-blown philosophy, I am suggesting he was influenced by 

the methods of great thinkers like Kant and Hegel in how he approached the subject. 

21. Victor D. Hanson, Carnage and Culture: Landmark Battles in 

the Rise of Western Power, New York: Doubleday, Random House, 

Inc., 2001, p. 22. 

22. Ibid., p. 21. 

23. For the purposes of this discussion, I will refer to the way 

of war that emerges from the kind of thinking I have associated 

with Clausewitz as the “Western Way of War,” which I take to be 

roughly synonymous to the American way of war. Although, as a 

matter of practice it may be more accurate to say there are many 

American ways of war of which the irregular way of war that will 

be articulated in this discussion may eventually be one. 

24. Martin Shaw, The New Western Way of War, Cambridge, 

UK: Polity Press, 2005, pp. 71-78.

25. Ibid., pp. 79-97.

26. Ibid., p. 97. 

27. In the full context of his remarks, General LeMay argued 

that war is itself immoral, implying that restrictions on the use 

of force that prolonged it were also immoral. Thus, while recognizing the illegality of the bombings, it is also fairly clear he did 

believe these actions were immoral. 

28. Patricia L. Sullivan, “War Aims and War Outcomes: Why 

Powerful States Lose Limited Wars,” Journal of Conflict Resolution, 

Vol. 51. No. 5, June 2007, p. 505.

29. Sun Tzu, The Art of War, Samuel B. Griffith, ed., Oxford, 

UK: Oxford University Press, 1971, p. 63.

30. Ibid., p. 77.
39

31. Michael I. Handel, Masters of War: Classical Strategic 

Thought, 3rd Ed., Portland, OR: Frank Cass Publishers, 2001, p. 27.

32. Qiao Liang and Wang Xiangsui, Unrestricted Warfare, Beijing, China: PLA Literature and Arts Publishing House, February 

1999, English translation available from www.terrorism.com/documents/TRC-Analysis/unrestricted.pdf .

33. Ibid., p. 24. 

34. Ibid., p. 145.

35. Ibid., p. 7 (italics by author). In fact, as Qiao and Wang 

note, “(t)o a very great extent, war is no longer even war but rather coming to grips on the internet, and matching the mass media, 

assault and defense . . . along with other things which we had 

never viewed as war,” p. 140. 

36. Ibid., p. 146.

37. Ibid., p. 147. This thinking is reflected more comprehensively in the People’s Liberation Army’s (PLA) concept of shashoujian or “Assassin’s Mace.” Assassin’s Mace is an umbrella term 

for doctrinal development and acquisition of weapons systems 

aimed at enabling the “inferior” to defeat the “superior.” This 

doctrine relies on surprise as well as deceptive and unorthodox 

methods “unknown to the adversary.” The means employed under this doctrine—such as those described above—are intended 

to achieve the effects of deterrence, decapitation, blinding, paralyzing, or disintegrating enemy forces. Jason E. Bruzdzinsi, “Demystifying Shashoulian: China’s “Assassin’s Mace Concept,” 

Andrew Scobell and Larry Wortzel, eds., Civil Military Change in 

China: Elites, Institutes, and Ideas After the 16th Party Congress, Carlisle, PA: Strategic Studies Institute, U.S. Army War College, 2004.

38. I use the term “collaborator” to define those persons who 

offer some sort of cooperation with the enemy, whether they do 

so willingly or not. 

39. Rupert Smith, The Utility of Force: The Art of War in the Modern World, New York: Alfred A. Knopf, 2007, p. 281.
40

40. Ibid., pp. 19-20.

41. Human Rights Watch, Rockets from Gaza, August 6, 2009, 

available from www.hrw.org/en/node/8567/section/1. 

42. Ward Churchill, “Some People Push Back: On the Justice of Roosting Chickens,”available from www.kersplebedeb.com/

mystuff/s11/churchill.html. See also “Chickening out,” The Village 

Voice, February 23, 2005, available from www.proquest.com/. 

43. Thomas Nagel, “War and Massacre,” originally published 

in Philosophy and Public Affairs, Vol. 1, 1972, pp. 123-144. Reprinted 

in Gregory Reichberg, Henrik Syse, and Endre Begby eds., The 

Ethics of War, Oxford, UK: Blackwell Publishing, 2006, pp. 654-

656.

44. Ibid., p. 656. 

45. Robert Audi, ed., The Cambridge Dictionary of Philosophy, 

Cambridge, UK: Cambridge University Press, 1995, p. 395.

46. Michael Taylor, The Possibility of Cooperation, Cambridge, 

UK: Cambridge University Press, 1995, p. 5. 

47. John Rawls, A Theory of Justice, Cambridge, MA: Belknap 

Press, 1971, p. 35.

48. Ibid., p. 55.

49. These conditions are adapted from Tony Pfaff, “Military 

Ethics in Complex Contingencies,” Don Snider and Lloyd Matthews, eds., Transformation of the Army Profession, 2nd Ed., Boston, 

MA: McGraw Hill, 2005, p. 413. 

50. Michael J. Dziedzic and Leonard Hawley, The Quest for 

a Viable Peace, Washington, DC: United States Institute of Peace, 

2009, p. 17.

51. Tony Pfaff, “Military Ethics in Complex Contingencies,” 

Don M. Snider and Lloyd J. Matthews, eds., The Future of the Army 

Profession, 2nd Ed., New York: McGraw Hill, 2005, pp. 412-414. 
41

52. There may also be cases where Soldiers may be morally 

permitted to forgo missions if they face certain death. Intuitively, 

however, this idea generally runs counter to the obligation of the 

Soldier to defend the state and its citizens. Resolving such conflicts is difficult since they may entail circumstances where Soldiers are obligated to risk death. It is beyond the scope of this 

discussion, however, to go into those concerns in detail. 

53. For example, New York City Police Department policy 

prohibits the use of deadly force when doing so will endanger 

innocent persons. This policy also prohibits police officers from 

discharging their firearms to subdue a fleeing felon as long as that 

felon does not represent an immediate (author’s italics) threat of 

death or serious physical injury to themselves or others. Email 

from New York City Police Inspector Michael Hurley, April 22, 

2010.

54. In most U.S. jurisdictions, police would be prohibited 

from attempting to kill a violent criminal if bystanders would certainly be harmed. This is true regardless of how many others the 

police officer may think may be harmed by the criminal’s escape. 

See John Kleinig, Chap. 1, The Ethics of Policing, Cambridge, MA: 

Cambridge University Press, 1996.

55. Paolo Tripoldi, “Peacekeepers, Moral Autonomy, and the 

Use of Force,” Journal of Military Ethics, Vol. 5, No. 3, 2006, p. 217.

56. Such permission is a concession to the fact that terrorist 

groups like Hamas do not neatly fall into either category. Otherwise, the state would be in the paradoxical position of having to 

fail in its duty to protect its citizens in order to uphold the rights 

of a population, elements of which threaten those citizens, simply 

because it cannot conduct law enforcement operations in that territory. This seems unreasonable. It seems equally unreasonable, 

however, to suggest that simply because a terrorist group operates 

outside the reach of a states’ police forces that the open-ended use 

of military force is permitted. Otherwise, any state could rationalize the use of military force against any state where terrorists are 

conducting operations. Thus such use must be clearly directed at 

creating the conditions for law enforcement operations—whether conducted by the threatened state or host nation police forces 

where the terrorists are operating. This, in fact, has been a feature 
42

of U.S. operations in Iraq and Afghanistan, where military force 

is often employed to prevent local police forces from being overwhelmed or co-opted by insurgents. 

57. Charles A. (Tony) Pfaff, “Officership: Character, Leadership, and Ethical Decision Making,” Military Review, March-April, 

2003, p. 68.

58. Tripoldi, p. 217.

59. Pfaff, “Officership,” pp. 70-71. The author addresses an 

outline for officer character development. 
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