a. Non-conventional threats
Conventional just war thinking is also facing a set of practical challenges. One problem for the conventional just war approach is the challenges posed by non- conventional threats. States are finding themselves involved in conflicts with non- conventional actors, such as international terrorists, in a way that blurs conventionally- understood moral categories. In particular, asymmetric armed conflict complicates the
444 Ibid.
445 According to McMahan, collective violence in the context of domestic society that is unauthorized by
the state is normally subject to the law of complicity, whereby individuals may become liable to
punishment for crimes of violence through certain forms of collective association, even in the absence of any personal engagement in acts of violence. Killing in War, 82.
conventional understanding of war. According to Christopher Kutz, recent developments in modern violent conflict has witnessed the increasing use of
“asymmetrical” tactics, such as guerrilla raids, hiding among either one’s own or one’s enemies’ populations, infiltration of enemy lines, sabotage and joint operations with collaborating civilians.448 Such conflicts, Kutz suggests, generally involve
collaborations between intelligence units of one nation and military units of another, or foreign units of one nation and military units of another, or foreign volunteers linked by ideological or religious affiliations.449 Rod Thornton suggests that asymmetric tactics allow a weaker actor to target vulnerabilities of a much stronger opponent using methods that are unexpected, including actions outside the conventional norms of warfare.450
Non-conventional threats have the effect of blurring the lines between combatants and non-combatants. Blank and Guiora suggest that the essence of modern warfare is that states are now engaged with non-state actors in a way that blurs conventionally understood categories. They conclude that the problem with these new types of armed conflicts is that military forces face a lack of clarity regarding both the purpose of operational missions and identification of the enemy.451 According to David McCraw,
contemporary terrorism is a major focus for Defence Policy revisionists who believe that the current era is dominated by unconventional rather than conventional warfare.452 Fritz Allhoff suggests that armed conflicts involving terrorists are being fought in urban environments rather than conventional battlefields. And terrorists are (usually) not state
447 Ibid.
448 Christopher Kutz, "The Difference Uniforms Make: Collective Violence in Criminal Law and War," Philosophy & Public Affairs 33, no. 2 (2005): 154-55.
449 Ibid., 155.
450 Rod Thornton, Asymmetric Warfare: Threat and Response in the 21st Century (Cambridge, UK: Polity
Press, 2007), 1-2.
451 Blank and Guiora, 46-47.
452 David McCraw, "The Defence Debate in Australia and New Zealand," Defence Studies 7, no. 1
actors and so their command structure is often unclear and decentralised.453 According to Allhoff, the distinction is further blurred because non-combatants often provide material support for terrorist combatants through positioning, sustenance,
communication, and so on.454
Another aspect of non-conventional threats is the move towards the criminalising of armed conflict. Michael Gross notes that the tendency to view non-conventional conflict as a criminal activity creates a problem, because adversaries are more likely to conclude that their enemies are despicable villains rather than honorable foes.455
According to Gross, this signifies a sea of change in the conventional way of thinking about war, since an important norm of conventional war asserts the moral innocence of combatants on any side. Although they threaten bodily harm, soldiers are not criminals but agents of their state. Asymmetric warfare challenges this assumption.456 Gross
suggests that a particular concern is that some states are responding to asymmetric threats by resorting to low-tech, primitive and prohibited forms of warfare (such as torture, assassination and blackmail) when international law had been largely successful in banning them.457
In short, the rise of non-conventional threats has made the important distinction between combatants and non-combatants more difficult to determine. This is a challenge to conventional just war thinking because it relies on this distinction for the purposes of discriminating who is a legitimate target. States are now more likely to conclude that non-state adversaries, using asymmetric methods, are criminals with no rights, leading to the increasing use of targeted killing and morally prohibitive practices such as torture, rendition and murder.
453 Allhoff, 36. 454 Ibid. 455 Gross, 12. 456 Ibid.
b. Emerging technologies
A second set of challenges for the conventional just war approach are the
emerging technologies that are transforming the norms of armed conflict. One example is the development of military drone technology and their use in targeted killing. Outside the conventional battlefield, the use of military drones has created more opportunities to employ targeted killing against terrorist groups.458 Patrick Lin and Shannon Ford point out that drone technology provides extensive reconnaissance and surveillance capabilities. We suggest that arming drones then gives the military the capability to both identify and then attack particular terrorists.459
According to Kenneth Anderson, this type of targeted killing involves a premeditated attack on specific individuals rather than seeking to target military
combatants more generally.460 Mark Maxwell suggests that the crucial distinction is the
difference between targeting for reasons of an individual’s conduct versus targeting on the basis of an individual’s status as the member of a group. A standard military attack is concerned with the status of the target as a member of the enemy military force. In contrast, targeted killing is a judgement about the individual’s conduct; that it is sufficiently threatening and/or harmful to provide sufficient justification to act with lethal force.461 Since targeted killing is a practice that often involves the determination of an identified person to be killed (rather than a mass of armed and obvious
457 Ibid., 2.
458 See: O'Connell; Bradley Jay Strawser, "More Heat Than Light: The Vexing Complexities of the Drone
Debate," Raza, S. Abbas, http://www.3quarksdaily.com/3quarksdaily/2013/02/the-quarterly-dag-3qd- peace-and-justice-symposium-drones.html; Bradley J. Strawser, Killing by Remote Control: The Ethics of an Unmanned Military (New York: Oxford University Press, 2013); C. Finkelstein, J.D. Ohlin, and A. Altman, Targeted Killings: Law and Morality in an Asymmetrical World (Oxford: Oxford University Press, 2012).
459 Patrick Lin and S. Brandt Ford, "I, Spy Robot: The Ethics of Robots in National Intelligence
Activities," in Ethics and and the Future of Spying: Technology, National Security and Intelligence Collection, ed. J.C. Galliott and Warren Reed (London and New York: Routledge, 2016), 14.
460 Kenneth Anderson, "Efficiency in Bello and Ad Bellum: Making the Use of Force Too Easy? ," in Targeted Killings: Law and Morality in an Asymmetrical World, ed. C. Finkelstein, J.D. Ohlin, and A. Altman (Oxford: Oxford University Press, 2012), 379.
combatants), Anderson suggests that it has brought with it an increased involvement of intelligence agencies in operations.462
Another example of a transformative technology is the development of
cyberwarfare. The internet’s emergence and global expansion have become central to developing an understanding of national security (and insecurity). The rapid
development of computer technology has been important, but it is also the emergence of the complex global system of interconnected networks – linking billions of computers around the world – that makes technological developments in cyber an important security issue. The modern world’s dependence on digital or information-based assets, and the vulnerabilities of critical national cyber-infrastructure, mean that a non-kinetic attack (e.g. cyber-weapons that damage computer systems) could do serious harm.463 This is why the U.S., for example, takes the cyber-threat seriously in declaring that, as part of its cyberpolicy, it reserves the right to retaliate with kinetic means to a non- kinetic attack. Or as one U.S. Department of Defense official said, “If you shut down our power grid, maybe we will put a missile down one of your smokestacks.”464
In his article on cyberwar,465 Thomas Mahnken highlights the unique attributes of what he describes as the “cyber instrument of warfare.” Mahnken suggests that, unlike other military capability, the effects of cyber-weapons can be both instant and global. He also suggests that because cyber-weapons are a new military instrument they are
461 Mark Maxwell, "Rebutting the Civilian Presumption: Playing Whack-a-Mole without a Mallet?," ibid.,
37.
462 Kenneth Anderson, "Efficiency in Bello and Ad Bellum: Making the Use of Force Too Easy? ," ibid.,
379.
463 Lin and Ford, 14.
464 Siobhan Gorman and Julian E. Barnes, "Cyber Combat: Act of War," The Wall Street Journal,
http://online.wsj.com/articles/SB10001424052702304563104576355623135782718; George R. Lucas Jr, "Jus in Silico: Moral Restrictions on the Use of Cyberwarfare," in Routledge Handbook of Ethics and War: Just War Theory in the 21st Century, ed. Fritz Allhoff, Nicholas G. Evans, and Adam Henschke (Taylor & Francis, 2013).
465 Mahnken distinguishes between “cyber war” which for him is “the independent use of the cyber
instrument of warfare” from “cyber warfare” which he says is “the use of the cyber instrument as a dimension of a larger military conflict.” Thomas G Mahnken, "Cyber War and Cyber Warfare," in
surrounded by a great deal of uncertainty. Thomas Rid, however, has argued that most discussions of cyberwar are exaggerated because there is no known act of “cyber” war. An important part of his argument is that the most widespread use of state-sponsored cyber capabilities is for the purpose of espionage, which, he argues is neither crime nor war.466 Rid makes the point that attacks from cyber-weapons are not physically violent
and, in many cases, will not even result in permanent damage. He argues that “most cyber attacks are not violent and cannot sensibly be understood as a form of violent action” and “those cyber attacks that actually do have the potential of force, actual or realised, are bound to be violent only indirectly.”467 Rid then goes on to explain this
point in more detail and suggests that,
violence administered through weaponised code is limited in several ways: it is less physical, because it is always indirect. It is less emotional, because it is less personal and intimate. The symbolic uses of force through cyberspace are limited. And, as a result, code-triggered violence is less instrumental than more conventional uses of force. Yet, despite these limits, the psychological effects of cyberattacks, their utility in undermining trust, can still be highly effective.468
Rid’s purpose in addressing the issue of cyberwar is to downplay some of the more alarmist discussions surrounding it. He puts it into the category of political cyber offenses, whose purpose is subverting, spying, or sabotaging. According to Rid, all such political cyber offenses, criminal or not, are neither common crime nor common war.469
But it is unclear which actions in cyberspace might escalate a conflict. This increases the likelihood of miscalculation and potentially leads to more serious forms of conflict. It might prove that many of these cyber-threats are not that serious, such as defacing a website. But the ever increasing reliance on cyber systems means that cyber-
America’s Cyber Future: Security and Prosperity in the Information Age, ed. Kristin Lord and Travis Sharp (Washington, DC: DNAS, 2011), 58.
466 Rid, 12. 467 Ibid. 468 Ibid., 34. 469 Ibid., 10.
attacks on software have the potential to damage critical infrastructure and threaten the lives of people to the extent that demands a military response.
A third example of a transformative technology is the use of social media by terrorist groups to further their goals. Social media is being used to instigate violent acts in order to create fear within a target population. For example, Charlie Winter and Haroro Ingram describe the two men who opened fire outside of a Muhammad cartoon contest in Garland, Texas, in May 2015 as being “in contact with low-level jihadis on Twitter” but having “little going for them in terms of organisational ISIS
connections.”470 They were not trained by ISIS nor directed to carry out an attack by its command. Rather, suggest Winter and Haroro, they were merely inspired by its
propaganda.471 Winter and Haroro also examine the impact of the incident on 12 June 2016 when Omar Mateen walked into Pulse nightclub in Orlando, Florida and shot 49 of its patrons and staff. According to Winter and Ingram,
When rumors of his ideological inclination first went public, observers stopped talking about Mateen as if he was an “ordinary” mass shooter and effectively put the full force of ISIS behind him. He stopped being a mere man with a gun and was transformed, via the media and politicians, into a fully-fledged ISIS operative, a human manifestation of the group’s international menace.472
There are clearly some important differences between these two incidents. But the overall goal remains the same for groups such as ISIS. Social media is an important means for proliferating a message that aims to instigate random violence with the intention that the target population becomes fearful about future attacks.
Thomas Nissen argues that social media provides actors with “standoff” capability for delivery of effect or “remote warfare.”473 Social network media, he
470 Charlie Winter and Haroro J. Ingram, "How Isis Weaponized the Media after Orlando,"
http://www.theatlantic.com/international/archive/2016/06/isis-orlando-shooting/487574/.
471 Ibid. 472 Ibid.
473 Thomas E. Nissen, "The Weaponization of Social Media," (Copenhagen, Denmark: Royal Danish
suggests, are weapon-systems in their own right, providing actors with new intelligence, targeting, influence, operations and command and control capabilities.474 Nissen notes a
number of ethical concerns with the use of social media in this way. For instance, he asks, what are the ethical implications of conducting “military” activities against threats on social media? Using social media for warlike activities is counter to their “social” or “civilian” purposes. Trying to deny audiences the ability to speak freely on social network media sites and platforms can be ethically problematic, especially for Western liberal democracies where the notion of keeping the moral high ground and defending freedom of speech are deeply rooted values. It might also make them “dual-purpose” objects and thereby lawful military targets.475 Nissen points out that when we refer to social media as weaponised, we “securitize” the issue, which might unnecessarily undermine human rights. Such labels frame the activity as being conducted in a state of emergency and render all responses to be a security, intelligence or defence issue.476 The ethical problem being described by Nissen here is one of militarising the use of social media. Militarisation is where something designed for civilian use is adapted for a military function or purpose. This is appropriate in some circumstances, particularly in warfighting. But it can develop into a problem when it leads to an overarching ideology of militarism. Andrew Bacevich defines this problematic type of militarism in terms of the following three elements:
the prevalence of military sentiments or ideals among a people; the political condition characterised by the predominance of the military class in government or administration; the tendency to regard military efficiency as the paramount interest of the state477
474 Ibid., 103. 475 Ibid., 112. 476 Ibid.
477 Andrew J. Bacevich, The New American Militarism: How Americans Are Seduced by War (Oxford,
And there are a host of other emerging technologies that will pose significant challenges in the future, such as artificial intelligence, human enhancement, autonomous weapons, and so on and so forth.
In short, the conventional just war approach is being challenged by emerging technologies and their novel uses. In some cases, it has a difficult time clarifying key ethical distinctions. Just war thinking holds to a moral framework around war but these new technologies challenge the concept of war. Hence, they challenge the exceptional moral framework that justifies killing in war.
c. The military’s peacetime role
A third set of challenges are the non-conventional uses of the military to serve a wide-range of institutional roles and purposes. Simply put, military capabilities are not only used in wars, thus the peacetime (or non-war) role played by military capabilities should be better acknowledged. These types of military operations encompass a wide- range of tasks including peacekeeping, supporting civil authorities, counter-terrorism, disaster relief, enforcement of sanctions, and so on.478 Many of these activities do not require the military to use lethal force. But in some cases, because they are working in an environment of dangerous conflict, the military are prepared to use lethal force. In particular, the last twenty years or so has witnessed increasing use of the military for purposes other than fighting conventional wars. This is due, in part, to the emerging norm in the 1990s favouring military intervention to protect civilians whose lives are seriously threatened.479
478 According to Alan Stephenson, “terms such as Gun-Boat Diplomacy, Low-Intensity Conflict (LIC),
Small Scale Contingencies (SSC) and Military Operations Other Than War (MOOTW) attempt to capture the nebulous region between peace and war where civilian authorities retain significant control of the military power used to achieve political purpose.” Alan J. Stephenson, "Shades of Gray: Gradual Escalation and Coercive Diplomacy," (DTIC Document, 2002).
479 Ned Dobos, Insurrection and Intervention: The Two Faces of Sovereignty (Cambridge University
The international response to Libya, for example, demonstrates how the politics of humanitarian intervention has shifted to the point where it is harder to do nothing in the face of atrocities.480 According to Thomas Weiss, changes in the character of warfare and the impact this has had on contemporary humanitarian action has led to an increased requirement for military intervention to protect human beings living and working in the midst of armed conflicts.481 Weiss suggests that armed humanitarian intervention is increasingly necessary because of the treacherous and unfamiliar terrain of the “new wars.” But that those new war contexts have led to problems in pursuing humanitarian strategies and using humanitarian tactics developed for conventional warfare. 482 Weiss says that aid agencies are now more likely than in the past to call for the use of military force.483 As the challenges in delivering aid to war victims and protecting them have changed, Weiss suggests that some civilian humanitarians have come to support military force for human protection purposes.484
Another reason for the increasing use of the military outside of war is the recognition, by some, that the military can perform a variety of political functions in peacetime. This is the use of military capabilities to impact the decision-making of a target without resorting to (or intending to use) actual violence. Barry Blechman and Stephen Kaplan, for example, argue that most uses of the armed forces have a political dimension; that is, they “influence the perceptions and behaviours of political leaders in