This essay is part of the #StrategyAndEthics series, which asked a group of academics and national security professionals to provide their thoughts on the confluence of ethical considerations, the development of strategy, and the conduct of war. We hope this launches a debate that may one day shape policy.

Since the birth of modern Special Operations Forces (SOF) in the Second World War, operating as a strategic enabler for other forces has been a core role for special operators.  Those forces which are the focus of the "through, with, and by" in Unconventional Warfare (UW) operations are generally referred to as surrogates (or sometimes proxies) in United States military parlance.[1] That is less often true in Foreign Internal Defense (FID) missions, presumably because the term surrogate is likely to offend in cases where it is the security forces of a sovereign state, operating within their own borders, who are being trained, advised and assisted. I will, nonetheless, employ this label to cover the subjects of both Unconventional Warfare and Foreign Internal Defense. This is in part because the term is quite an accurate one, but also—and more importantly—because it highlights the particular ethical challenges that arise out of a strategy that seeks to leverage the means of Unconventional Warfare and Foreign Internal Defense operations.

The idea of a surrogate—someone who stands in for, or acts on behalf of, another—immediately conjures up questions of responsibility. If the surrogate does something that he shouldn’t do, is he alone responsible, or does responsibility extend in some manner to the person or persons he is the surrogate of? In the military context that question is no less pressing, as the media regularly reminds us. For example, in a 2015 article in The Nation, journalist Nick Turse protested that “American special forces are still conducting training for some of Africa’s most notorious paramilitaries.” Another article proclaimed that “troops of the Congolese Army trained by a U.S. Special Forces team went on to commit mass rape and murder of women and children while fleeing rebel forces” in 2012. The potential strategic impact, in terms of moral authority and reputation, of such reports is obvious. Less obvious is the ethical question.

Clearly in such cases the individuals who commit these heinous acts bear direct responsibility. But are the special operations teams who train them also responsible, as these articles suggest? Is the government that chooses to use them in this manner equally responsible?  And if so, on what basis and to what degree, and what are the implications?

Surrogate Strategies, Moral Agents and Ethical Responsibility

Generally speaking, the starting point for assessing this question is what I call the "agent-focused" approach. The central feature of this approach is the assumption that we should view the actions of surrogates as the acts of moral agents, and that consequently the key ethical question is about the complicity of special operations teams and their members—and by proxy the governments they serve—in those acts. This is the conventional way of approaching responsibility in these cases, as exemplified by the application of domestic and international law.

The question of the legal responsibility of members of special operations forces for war crimes committed by surrogates they have trained, advised, or assisted has provoked significant controversy.  In fact, Captain Gregory Bart (U.S. Navy), Deputy Legal Counsel to the Chairman of the U.S. Joint Chiefs of Staff and formerly Chief of Operational Law and Policy for U.S. Special Operations Command, published a weighty assessment of this issue in the Harvard National Security Journal during the second half of 2014. Bart summarizes his findings as follows:

...SOF have no general legal duty under the law of war to investigate the surrogates’ past war crimes or to intervene to stop their future ones...Nevertheless, a SOF team does have a general legal duty to detach from and not to aid surrogates in the commission of future war crimes. This depends upon actual knowledge of the surrogates’ criminal purpose and intent. A team could be held criminally responsible for the surrogates’ war crimes if it breaches this duty.[2]

My purpose here is not to engage with Bart or other legal scholars on the legalities of the responsibility of special operations forces for surrogates’ actions. From the perspective of ethics there are important limitations in the legal regime described by Bart. This is not a criticism of the law, but rather an acknowledgement that the scope of what can, and should, be addressed under law is more limited than the scope of ethics on such matters.

From the perspective of ethics then, there are two main limitations in the legal framework that Bart describes. The first arises from the fact that the kinds of capabilities special operations teams contribute to a surrogate force they are working "through, with, and by" are significant, and in many cases result in a considerable enhancement in surrogates’ lethality and combat effectiveness. There is, as a result, a weighty ethical duty associated with this capability enhancement to seriously evaluate the likelihood that it will contribute to surrogates’ potential for committing atrocities. Waiting until atrocities have been committed, and become evident (which is the point at which law begins to apply), is too late—there is a broad forward looking duty that weighs on both strategists and operators to evaluate the likelihood of this occurring and to consider how much weight that risk should have under the circumstances. But this general evaluation of risk, due to the lack of specificity involved, does not fit comfortably with the agent-focused approach, and is thus not adequately captured by existing legal requirements.

Second, the agent-focused framework does not address the responsibility of special operations forces where the problematic actions on the part of the surrogates concerned do not constitute war crimes or criminal acts that are prosecutable under international or applicable domestic law. Consider, for example, the practice of Afghan men keeping prepubescent or adolescent boys for sex, known locally as bacha bazi. While this is not an issue that has confronted only special operations forces in Afghanistan, it is well known and well documented, and a good example of the sort of problem I have in mind here. As former U.S. Marine Corps analyst Chris Mondloch wrote in Foreign Policy magazine in 2013: “Demeaning and damaging, the widespread subculture of pedophilia in Afghanistan constitutes one of the most egregious ongoing violations of human rights in the world.” This raises significant strategic challenges, as discussed previously here at The Strategy Bridge.

While bacha bazi is broadly illegal under Afghan law, in practice it generally goes unpunished, and many Afghan government, military and police leaders themselves engage in this behaviour. Apart from the lack of an enforceable legal regime, there are two general problems with this sort of case. First, with a practice that is as widespread as bacha bazi, it is problematic to point to particular individuals engaged in "through, with, and by" missions with surrogate forces as being ethically responsible for enabling the unacceptable behavior in question. One response to this would be to view ethical responsibility as being held by the supporting force in general, and to say that the appropriate response is for the supporting force to—at minimum—break with their surrogates in order to avoid complicity in the actions of their surrogates.

But this response raises the second problem: at least under some circumstances a principled decision to withdraw support from an ethically unsavoury surrogate force may result in a catastrophic strategic outcome, such as the collapse of the surrogate force and the subsequent victory of brutal extremists. Thus we find ourselves confronted with what the Dean of military ethics, Michael Walzer, famously called "the problem of dirty hands."[3] The reality is that engaging in armed conflict is by its nature a messy and ethically challenging endeavour in which it is rarely possible to keep ones’ hands squeaky clean. The good news is that, given this pressing reality in war, we do have well-developed ways to approach such ethical challenges. Which brings me to the second way of addressing the question of special operations forces' responsibility for the actions of surrogates, what I call the "effects-focused" approach.

An Alternate Option: The Effects-Based Approach and Surrogate "Weapon Systems"

Perhaps the best way to conceptualize the effects-focused approach is that it conceives of surrogates as being more like weapon systems than moral agents. Of course surrogates are moral agents, and are responsible for their actions just like any other moral agent. Nonetheless, for the enabling force the ethical challenges of working with surrogates can usefully be approached by weighing the partnership in terms of the possible effects of doing so, as one would do when evaluating the appropriateness of using a particular weapon system. The ideal weapon would be perfectly precise, affecting only the intended target, with zero chance of causing death or damage beyond the intended target. But real-world weapon systems are not like that, and so there is more often than not a calculation that has to be made—is using this weapon, with this likely collateral effect, appropriate in these circumstances?

Just as all real-world weapon systems have an inherent potential to cause collateral damage...every prospective surrogate has an inherent potential to commit war crimes or other ethically impermissible acts.

My argument here is that the same calculation can, and should, be applied to the use of surrogates. In addition to the strict ethical and legal responsibilities regarding the use of surrogates, there is also a general responsibility to evaluate the risk of working with (and thus potentially enabling) prospective surrogates. Just as all real-world weapon systems have an inherent potential to cause collateral damage, a potential which varies according to the specifics of the weapon system in question, every prospective surrogate has an inherent potential to commit war crimes or other ethically impermissible acts. In both cases what is needed is a calculation of the just war consideration of proportionality—an ethical evaluation of the foreseeable effects of choosing to make use of the enabler in question, whether it be a weapon system or a surrogate force, weighed against the importance of achieving the military objective.

There is, of course, a great deal more to be worked out in considering how to apply this effects-based approach in this context. The principle of proportionality is notoriously challenging, even when something as relatively simple as blast effect is being evaluated. But ethics is not law, it is not confined to neatly defined rules. The principles of ethics are aspirational—where law seeks to set clear restrictions on action, ethics is (or should be) about seeking the good, an activity that must, of necessity, accept a degree of ambiguity. That’s not to say that there is no value to be had in developing an ethical framework to guide decision-makers in dealing with surrogates. To the contrary, such a framework will help decision-makers narrow down the scope of acceptable options available to them, though it will not negate the need for leaders to exhibit wisdom. Nonetheless, a properly developed ethical framework for engaging surrogates—a task that is beyond what can be achieved in this short article - would serve as a valuable guide to special operations strategists and decision-makers operating in the strategically sensitive ethical terrain of "through, with, and by."

Dr. Deane-Peter Baker is a military ethicist based at the University of New South Wales (UNSW) Canberra, the campus of UNSW Australia which delivers undergraduate education to the trainee officers of the Australian Defence Force Academy.

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Header Image: Romanian special-operations soldiers along with their American counterparts prepare to enter a building. (U.S. Army Photo)

Notes:

[1] This is sometimes rendered "by, with, and through." In this article I am using the formulation as in the original published use of this term, in Joint Publication 1-02 Department of Defense Dictionary of Military and Associated Terms 12 April 2001 (as Amended through April 2010).

[2] Gregory Raymond Bart, 2014. "Special Operations Forces and Responsibility for Surrogates’ War Crimes," Harvard National Security Journal 5 (2) http://harvardnsj.org/wp-content/uploads/2014/01/Bart-Special-Operations-Forces.pdf (accessed 17 February 2016), p. 533 - 534

[3] Walzer, Michael, 1973, “Political Action: The Problem of Dirty Hands,” Philosophy and Public Affairs, 2 (2): 160–180.