The Moral Hazard of Inaction in War

August 19, 2016

When earlier this month the Obama administration released a newly declassified memorandum detailing the U.S. government’s policy on drone strikes, there was little new to be found. It mainly repeats the policies that were released in 2013, to include the vastly-more-than-what-the-law demands requirement of a “near certainty” that there would be zero civilian deaths in a given strike. What is glaringly missing is any formal appraisal of the civilian casualties likely to occur if a strike is not conducted.

Whatever political or even moral imperative there may be for the administration’s extralegal no-civilian-casualty drone policy, it is not the only ethical issue these strikes engage. After all, British philosopher John Stuart Mill observed in his 1859 essay that a “person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury.”

A failure to formally include any evaluation of the consequences of not striking raises what I would call a “moral hazard.” Traditionally, “moral hazard” is an economics term defined as “the lack of any incentive to guard against a risk when you are protected against it (as by insurance).” However, as applied to drone operations (and other use-of-force situations), I would interpret it as decision-makers having a lack of any incentive to guard against the risk to civilians who might be killed if a targeted terrorist is not struck, because they are protected against the risk of criticism in the absence of a strike.

No one is criticized for a strike not taken, but plenty of second-guessing can occur if one is ordered and goes awry. Obviously, the incentive – especially for politicos – is to find a reason to block a strike because no one will blame them for the suffering the terrorist, who would have been killed, goes on to cause.

Though the term was not used in the movie or by its critics, the film “Eye-in-the-Sky” about a fictional drone strike portrays in dramatic and concentrated form the kind of issues that can arise in modern targeting killing cases, and particularly the “moral hazard” phenomena. Of course, I understood the scenario, i.e., an essentially British operation executed by an American drone crew against a target in a friendly third country – Kenya – was not an effort to tell the story of a specific incident, but rather simply a fictional platform designed to touch upon almost every controversy that these strikes might raise.

Though there are some details that are obviously artistic license and not military realities, the film presented a relatively even-handed discussion of the sort of issues that could arise. However, a stinging review (“Just Warfare Entails Risk; Movie ‘Eye In The Sky’ Perverts Just War Laws”) by retired Air Force Lt. Gen. Dave Deptula has me thinking that I under-appreciated the impact of what the general public – unfamiliar with actual combat operations – might take away from it.

Deptula is no ordinary movie reviewer. This former fighter pilot was one of the key architects of the air campaign not only against the Taliban in the immediate aftermath of 9/11, but also of the 1991 air war against Iraq. Immediately prior to his retirement in 2010, he was the deputy chief of staff for intelligence, surveillance, and reconnaissance, which essentially made him the Air Force’s expert on drones. As the current director of the Air Force Association’s Mitchell Institute for Aerospace Power, he is among the nation’s foremost authorities on air operations in general, and drone operations in specific. He wrote this review with Joseph Raskas, currently participating in The Public Interest Fellowship.

Basically, the plot of the movie (spoiler alert!) centers around a joint U.K.-U.S. effort to strike al-Shabaab terrorists in a Nairobi slum. They are organizing themselves to imminently conduct a suicide attack on a market (in real life, al-Shabaab is a vicious organization who conducted the 2013 attack on a Nairobi mall that killed 67).

The drone strike is about to take place when a young girl unknowingly sets up a bread-selling stand within the planned blast zone. Even though the strike was clearly lawful (the risk of one innocent death in order prevent a suicide attack that would surely kill scores meets the law’s proportionality requirement), the attack is held up.

As Deptula and Raskas put it: “It is surely a sign of the times then that Eye in the Sky trudges on in a manner that perverts the rationale for just warfare.” They point out that the film documents the urgency and strategic value of the mission, as well as the extensive efforts made to minimize risk to civilians that succeeded to a point well beyond what the law might require. Yet there is the hesitation, which leads Deptula and Raskas to ask: “[W]hat explains the ethical confusion?” In answering their own question, they say:

Unfortunately, this is the result of the vacillation, political dimness, and unnecessary restrictions that are the hallmarks of military engagements today. Increasingly, liberal democracies will impose policy constraints — rules of engagement — that exceed the level required by law.

They state that reluctance to strike obvious threats “is self-defeating at best, and counterproductive at worst. To be sure, it is immoral.”

In actual military targeting, the law of proportionality does require commanders to weigh “the concrete and direct military advantage anticipated” in relation to the “incidental loss of civilian life, injury to civilians.” However, the legal rule, as is the wont of the law, is set in the negative, that is, circumstances which would bar a strike. The law doesn’t tell commanders when they should use force to save lives. Consequently, the question here is one essentially beyond the law of war, that is, an affirmative moral responsible of taking action to protect others.

The problem today, as revealed by the Obama administration’s new memorandum, is that the formal policy never tries to address what Mill calls the “evil’ of “inaction.” Moreover, nothing in it seeks to hold anyone accountable for the injury caused by decision-makers who do not to exercise the moral courage to take a political risk to prevent a terrorist from wreaking havoc on the powerless. There is no one speaking for these helpless non-combatants.

To be clear, I am not suggesting that the law of war be anything other than strictly followed. Nor is anyone saying that there are not circumstances where for any number of legitimate political and strategic concerns that the require the application of force – drones or anything else – to be limited more then what the law might permit.

Rather, in the face of adversaries who as a matter of course inflict the most unthinkable atrocities on civilians, it’s time to formally incorporate (by whatever name) a “moral hazard” assessment into our use-of-force polices. And, indeed, we ought to consider holding accountable those who yield to inaction when it results in unnecessary misery to others.

 

Charlie Dunlap is the Executive Director of the Center on Law, Ethics and National Security at Duke Law School and is a retired Air Force major general. His blog is Lawfire.