Dr. Ted A. van Baarda
Both combat operations and peacekeeping operations can put the moral integrity of a soldier under pressure. This, in turn may lead to unethical behaviour, war crimes or a lack of understanding for humanitarian considerations. The key-issue is the need of members of the military to retain a measure of integrity and humanity which transcends a world of hatred and bloodshed. The author commences his paper with two examples from the Falkland Islands He subsequently lists the main causes for moral confusion and the difficulties in distinguishing morally right from wrong. Several of these causes are the same for humanitarian fieldworkers. He concludes by emphasising the need for the moral education of members of the military, including ethical decision-making skills.
In April 1982, Patricio Perez was nineteen years old. He had just finished high school when he was summoned for military service. That was a week after the Argentinean take-over of a group of small islands from the British. The islands were known as the Malvinas to the Argentineans and to the British as the Falklands. Patricio Perez became a Private serving with A Company, 3rd Infantry Regiment of the Argentinean Army. He was positioned on the main island, East Falkland, just north of the capital. He had rejoiced in the islands coming under Argentinean control. He was eager to defend them though neither he, nor his superiors expected the British to attempt to re-take the islands by force. Only a few months later however, a British amphibious force landed successfully at San Carlos Bay on East Falkland and was making deep inroads into the Argentinean defences.
Let us consider his recollections: “Combat is an extraordinary experience. (…) What I felt at that moment was mostly hatred. I wanted revenge. I had forgotten fear by then, what sort of risk I was taking; the only thing I wanted to do, my obsession, was to avenge my fallen comrades. Whenever I saw one of my friends hit it was worse, it just made me want to continue fighting, it didn’t matter for how long or at what cost. (…) I once heard a Vietnam veteran talk about the ‘drunkenness of war’. He was quite right, and it is like being drunk and I enjoyed it at that moment. As children we all play at war because we have seen it on television or films, so as a child you play up to this role with a wooden gun, only this time I had a real gun in my hands and perhaps I forgot that I could actually kill and be killed.”
By mid-June the British had recaptured the islands. The Argentinean garrison had surrendered. Private Patricio Perez felt humiliated and frustrated. He tells us about his experience on board a British Royal Navy ship, HMS Canberra, which takes him back home as a prisoner of war: “On the return home on Canberra I became friendly with one of the guards. Little by little we realised we had a lot in common and I tried to communicate with him in my broken English. We both loved music. I played the guitar and he played the piano. He was Welsh, his name was Baker, and we also realised we also loved rugby. He played for a Welsh club and I played in Buenos Aires. We used to sing along together in our cabin to the music from the BBC. We both realised the war was over now and now we could be friends, but was hard to think that I could have killed him.”
It remains striking that individuals, who have never met and who have no personal hatred towards each other, can change their opinion so rapidly that they become eager to slay each other within a matter of months. One can be amazed by “… the human capacity to see others as things to be destroyed or damaged, once the society they are part of so defines them.” Private Patricio Perez is no exception. We assume that he is an ordinary young man with no lust for murder. Yet, he describes his joy when he is killing British soldiers. Far less common, though not unique, is the change of heart of Private Patricio Perez on board HMS Canberra. He views the British soldier guarding him no longer as an enemy combatant. In fact, he stresses his commonality with this fellow soldier.
Captain Haracio Losito served with the Argentinean commandos during the Falklands/Malvinas conflict. About two weeks prior to Patricio Perez’s surrender, he was wounded in combat. “I fell into the bottom of the trench and I remember seeing the British soldier pointing his rifle at me and at that moment I commended my soul to God. I thought this was the last minute of my life. But all he said in English was: ‘Hands up’. I couldn’t even raise my hands. The British soldier dragged me out and said: ‘The war is over for you’. He applied a tourniquet on my [wounded] leg and gave me his jacket to keep me warm.”
His recollections were noted seven years after the conflict. Captain Losito continues: “After the battle at Top Malo House I was able to appreciate the human side of the British troops. Of the thirteen men in our patrol two were killed and six were wounded quite badly. We were all very well treated [by the British commander] Captain Boswell and his people: he was obviously a good officer. He helped the wounded as much as he could and sent us to hospital as quickly as possible. I would like to take the opportunity to thank him for the way he treated us on the battlefield. I would also like to thank Dr. McGregor, the [British] surgeon at the San Carlos hospital, and everybody on Canberra where we were treated so well. We were very grateful for all this. I would like to get together with Captain Boswell to discuss the battle and our common memories but obviously the circumstances are not quite right yet.”
Moral confusion and actual warfare
Similar stories have been quoted from the both the First and Second World Wars. What remains so interesting about them is the magnanimity of the individuals involved which enables them to rise above the confinements of their situation. Their situation is one of war. A world of bloodshed and stark contrast: black and white, friend or foe, kill or be killed. In war, there exists little room for a nuance holding the middle ground in a world of black-and-white conceptual frameworks. A nuance may be a reason to hesitate before firing, which in turn works to the advantage of the enemy who may not know of such scruples. Wars are fought to prevail over the enemy. Comparatively few reports exist of soldiers who transcend the conceptual framework of friend-or-foe when circumstances become permissive. Both the joy of killing and the framework of black and white concepts become a major challenge. They become a major source of moral confusion and an impediment to retaining a measure of humanity. Let us identify the main factors which put under pressure the elementary considerations of humanity.
Firstly, social conflict can frequently be defined as a struggle between two or more competing value systems, with the accompanying uncertainty which value system will prevail. In certain layers of a given society, people feel unable to recognise themselves in the values dominant in that society. They may even wish to challenge them. Until the outcome of that struggle becomes clear it remains uncertain what will be determined just or unjust. Social conflict – even if that conflict evolves peacefully – is frequently focussed on the distinction between justice and injustice as the parties to the dispute see it. In the most extreme version of social conflict, armed conflict, the bone of contention frequently is an issue of justice as well. In time of armed conflict there exists disagreement on what is just to such an extent that the parties prefer recourse to arms.
During armed conflict a premise that frequently holds sway is quintessentially nationalistic: Right or wrong, my country. In a world of stark contrast, of black-and-white conceptual frameworks, the distinction between morally good and morally wrong becomes virtually synonymous with the national, i.e. partisan interest. Morally right is what supports the nation’s ability to prevail, almost no matter what the cost. Morally wrong is the contrary. The nationalistic premise is frequently reinforced by the legal system of the nation to which a soldier belongs. The frightening result is that there exists a strong possibility war crimes will be committed without the perpetrator recognising them as such. After all, it is apparently a good cause he is fighting for. The cause, the national interest, appears to justify his actions.
Rüter has drawn a distinction between functional criminality and dysfunctional criminality within the military. Functional criminality concerns a violation of the laws of war, yet one which supports the war effort. Examples of functional criminality are the torturing of prisoners of war to get information, or the abuse of ambulances for non-medical purposes. Dysfunctional criminality also deals with a violation of the laws of war, but the violation does not support the war effort. Plunder and rape are examples. Rüter observes that national military prosecutorial authorities prosecute cases of functional criminality to a far lesser extent than cases of dysfunctional criminality. Rüter distinguishes three complications if the national military prosecutorial authorities attempt to prosecute cases of functional criminality:
1) Within the society where the perpetrator comes from, there may be little or no sense that an injustice has been done, let alone that one needs to be corrected. While the enemy may see the perpetrator as a criminal, he may be seen as a war hero at home.
2) The system of military justice – as distinct from the system of justice in civil society – is part of an organisation aimed at defeating the enemy. The members of the system of military justice feel solidarity with ‘our boys’ doing a difficult job out in the bush. In most nations, military prosecutors and judges wear a uniform – which in effect stresses this commonality. Intellectual independence is not necessarily in place. It may appear unpatriotic to prosecute someone who is risking his life for the sake of the nation. Rüter emphasizes this point because a system of national military justice cannot afford to lose the confidence of neither the military in which it serves, nor of the society at home. A system of national military justice remains essential to maintain the chain of command, discipline including the ability to prosecute dysfunctional crimes. Hence, a system of national military justice is likely to show a considerable understanding to the legal defence of ‘military necessity’ when the defendant is of the same nationality.
3) A government at war may condone or even justify war crimes. This makes the prosecution by the national military prosecutorial authorities of perpetrators legally impossible, because the crime at issue is likely no longer to be considered a crime under national military law. Furthermore, the crimes at issue are an extension of national governmental policy. Even if it were technically still possible to prosecute the perpetrator, the prosecutorial authorities would in effect be prosecuting the government which they serve.
An example of right or wrong, my country is the case of the Croatian general Rahim Ademi, who is indicted by the International Criminal Tribunal for the former Yugoslavia. The indictment refers to crimes against humanity. It includes the unlawful killing of civilians and captured or wounded soldiers, the inhumane treatment like cutting off fingers, etc. In the summer of 2001 he surrendered himself voluntarily to the Tribunal, but not before a remarkable farewell ceremony. From Zagreb airport he departed in ceremonial dress, with his ribbons on his chest and his wife at his side. He was, in his view, going to The Hague clear his name and that of Croatia: he had done nothing wrong. On the tarmac there was a large crowd of dignitaries wishing him good-bye.
Secondly, the moral confusion is not only a case of the where the distinction between right and wrong becomes virtually synonymous with the national interest. It is also a case of collision between the value system of ‘the’ international community on the one hand and the value system of a society at war on the other. The warring parties frequently think that everything is allowed, even obligatory, to save the nation from destruction. Consequently, chances are high that the nationalistic premise in war, my country can do no wrong will collide head-on with an international value system embodied in international humanitarian law and universal human rights. In the case of general Ademi, one can at least conclude that the value system of the international community has prevailed. It remains a sobering thought that his case is an exception: thousands of cases of war crimes will never become known. If they are, they are not prosecuted.
A third cause for moral confusion on the battlefield concerns the “fog of war” – what Private Patricio Perez calls the “drunkenness of war”. The term refers to a combination of factors that severely impair the ability of an individual to make proper moral judgements. Nationalism and a sense of moral superiority are two of those factors. They are usually carefully nurtured long before an armed conflict commences in the propaganda war. Other factors come into play during armed conflict. They include: fatigue, stress, a frustration because of fallen comrades, the fear of appearing to be weak in the eyes of one’s colleagues, the joy of killing a strong opponent, etc. Fear may impel a soldier to “fire at everything that moves”. At a higher command level, a frustration about enemy successes may lead to tactics that put the principle of proportionality – a principle embedded in military ethics and the laws of war – under pressure. For instance, referring to the US effort to crush the Iraqi resistance, an American general used the figure of speech “…to use a sledgehammer to crush a walnut. I try to translate that same philosophy to my paratroopers here.” He made his comments shortly after the Iraqi resistance had launched a number of bloody attacks against US forces and the Headquarters of both the United Nations and the International Committee of the Red Cross.
The fog of war appears to include the stark difference between what is morally right on the battlefield, as opposed to what is morally right in a civilian life in time of peace. A civilian is disallowed to kill another human being save in self-defence; in armed conflict the killing of an enemy combatant is not only considered obligatory but honourable. Young men have been brought up by their parents with a respect for human life; as soon as they put on the uniform they are to comply with a differing set of values. Some cope, others do not. Those who do not, do not fire their weapon, fire deliberately into the ground, even in their own foot, if only to avoid killing a fellow human being. Those who do, note that their military prowess earns them esteem within their platoon. In other words, the moral confusion does not only exist between peoples and between factions, or between the warring parties and ‘the’ international community. It also exists in the minds individual soldiers themselves, with conflicting value systems and conflicting moral considerations pulling a soldier in different directions, making his behaviour less predictable.
Fourth, there is the possibility that the set of moral values the military upholds may, under circumstances, become contradictory. A crisis of conscience may arise because a soldier feels loyalty to two or more time-honoured military values, but he cannot uphold both. The moral confusion of a soldier becomes difficult to manage when he receives an order which he perceives to be illegal or deeply immoral. He is caught between loyalty toward his commander, his colleagues and his nation’s war effort on the one hand, and his wish to remain an honourable soldier on the other. It is no small matter for a soldier who falls under a military command structure and a military penal code to refuse an order because of its perceived illegality. Usually, the threatening voice of his commanding officer, the pressure of enemy advances, plus the fear of becoming the outcast of his unit – upon which he depends to survive the war – are sufficient to make the soldier swallow his qualms. If a soldier does speak out, it is up to him to prove his case in an intimidating court-marshal that is likely to ruin his career. The issue is being hotly debated in Israel, where soldiers who refuse to serve in the occupied territories – the refuseniks orseruvniks – are prosecuted. In December 2002, the Israeli Supreme Court denied the appeal of eight Army reservists who refuse to serve across the Green Line. They claimed, firstly, that the capture and continued occupation of the West Bank was illegal and that they were under a statutory obligation not to execute illegal orders; secondly they claimed the right to selectively refuse to carry out orders for reasons of conscience.
On closer scrutiny, the command structure and penal code raise a fifth issue of moral confusion. Military penal codes are written inter alia with the aim of enforcing discipline and the chain of command. A soldier receiving an order shall assume its legality. He is under a statutory obligation to carry it out. Thus, a military penal code ensures that an army will operate in battle as a coherent, unified force which is able to function both effectively and responsibly. However, justified this may be, there exists a draw-back which tends to be underemphasised despite the legacy of Immanuel Kant (1724-1804). He argued the existence of a universal moral law which obliges us that we never treat the humanity in the person of another (or, for that matter, in one’s own person) merely as a means – a tool – but always at the same time as an end in itself. Kant’s legacy thus demands of us a high respect for persons. To merely use someone is to treat him as an instrument and not as a responsible individual. It denies the other the possibility of consent or the possibility to bear responsibility or define a purpose by himself. Morality is part of our ability to consider a purpose to life itself and to make our actions meaningful. It is also part of our ability to distance ourselves from the rapidly changing events surrounding us and to consider whether these events are just or unjust. In that sense, morality is part of freedom – the quality that makes us truly human.
The point here is that a military chain of command entails the risk of the instrumental use of people by the commander who issues an order. Soldiers are obliged to obey orders. On the battlefield there is no time for soldiers to meet in working groups and democratically discuss the military options available. Hierarchy and speed are justified and essential. Soldiers have to be both obedient and confident. Obedient in the sense they shall follow lawful orders; confident in the sense that they can trust the moral integrity of their commander who will not require them to carry out acts which will reduce them to cannon-fodder, or acts that amount to war crimes. Total obedience however – in German Kadaverdisziplin – is extremely dangerous; an issue which was discussed at the famous trail of Eichmann.
Both Arendt and Isarin discussed the risks of instrumentality within a military culture: the danger of a human acting like a machine, following external impulses without considering their nature or moral significance. It raises a knotty issue. If laws codify the nationalistic premise of right or wrong my country, if there exists a statutory obligation to follow military orders, if the distinction between morally good and morally evil under the influence of propaganda becomes virtually synonymous with the distinction between friend or foe, then it becomes particularly difficult for a soldier to make his own, independent assessment of what is morally right. Discussing the Second World War, Isarin asks: “What is the essence and function of the human ability to pass judgements? Are people able to distinguish good and evil when they are completely dependent on their own ability to judge, when their own judgement conflicts with that of virtually everyone else? (…) Are individuals able to decide in a situation which is new to them what good and evil are, when their legal surroundings have become evil and murder has become the rule?”
There is no reason for the military in democratic countries to sit back and think that war crimes are only committed in far away countries where there is no tradition of respect for human rights. The question has been asked whether ‘ordinary people’ who have no previous record of violence and criminality and who have been brought up in a democratic tradition, can commit war crimes. The disturbing answer which experts have given to that question is: yes. Amid the literally tens of thousands of stories of atrocities committed during armed conflict, the stories of magnanimity and humanity like those of Private Patricio Perez, Captain Haracio Losito and their British captors on the Falkland islands are few and far between. Consequently, there is a strong need for knowledge and skill in the fields of military ethics and the laws of war in order to reduce the atrocities mentioned to a minimum.
Moral confusion and peacekeeping
When we turn to peacekeeping, the picture is slightly different. The peacekeeper has no necessity to defeat an enemy. A world of black and white conceptual frameworks exists, but it is not his. The soldiers and guerrillas of the warring parties are welded to this world, and they are not likely to have much understanding of the purposes and principles of a peacekeeping mission. It comes as no surprise when the warring parties attempt to abuse the presence of a peacekeeping force – and, for that matter, the presence of a humanitarian organisation – for their own purpose. Food aid for instance, is a weapon. It is a very effective one too.
Traditionally, peacekeepers have been mandated to safe-guard a cease-fire or a troop separation agreement in international armed conflicts. During the nineteen-nineties, this has changed. Peacekeeping has evolved from the traditional practice of over-seeing cease-fires, to complex operations including military, civilian and humanitarian elements to engage not only in peacekeeping, but also in post-conflict peace-building. The emphasis has shifted from international, to non-international armed conflicts. The evolution of peacekeeping raises a host of confusing issues, some of which are ethical:
Firstly, there exists moral confusion concerning the ill-defined value system of ‘the’ international community which the peacekeeper is expected to represent. A peacekeeper is not in the crisis area to represent his own country and the value system of the military organisation to which it belongs – that is, the value system he knows best. To a far lesser extent he is familiar with the United Nations Organisation he serves, its value system including the Code of Conduct for Peacekeepers.The value systems that peacekeeping forces – and for that matter humanitarian organisations – represent are not synonymous with the nationalistic value systems of the warring parties. However ill-defined and imperfect, they represent the overtly universalistic value systems of human rights and humanitarian law – that is to say, yardsticks that exist independently of the national interest of the warring parties.
To be able to represent these principles, peacekeepers ought to have an understanding of those value systems. What is more, they should have a thorough understanding of how these can be adhered to under operational, that is adverse circumstances. Many peacekeepers however, come from countries which are undemocratic and where the neglect of human rights is common. To ask of these peacekeepers to uphold and respect human rights and humanitarian values, is to ask them to uphold value systems which are alien to them.
Secondly, peacekeepers are expected to remain neutral and impartial. They are expected to retain that neutrality and impartiality both as individual soldiers and as a peacekeeping force as a whole. The reason is clear: the United Nations, desirous of maintaining open negotiating channels with all parties to the conflict, cannot afford to affront one of those parties. An affront could prejudice the UN effort to seek a diplomatic solution to the conflict. However, should this policy of neutrality and impartiality be retained at all cost? What if it is mainly one party which commits the war crimes? Should the UN remain silent for reasons of diplomatic nicety? Reports from peacekeepers on the ground indicate that they witness horrendous crimes. Sometimes they are in a position to catch the perpetrators red handed. Common decency and morality dictates them to prevent the crime on the spot, yet they are under orders not to interfere because of the neutral posture of the peacekeeping force. This has given rise to moral confusion, excruciating questions of conscience and, at times, the decision to disobey orders. Ethics of virtue seem to appear at this juncture. From the perspective of ethics of virtue, the main question asked is not: “What should I do?” Rather: “What does it say about my character, if I decide this, or ignore that?” In other words, the focus is on the decision-maker, not the decision. The moral question becomes one of personal integrity: if a peacekeeper, by obeying orders not to interfere remains an onlooker to a war crime which he could have halted, he may cast away everything he believes in to be right, honourable and just. In other words, he may loose his moral integrity. This may, in turn lead to a deep trauma and possibly even suicide. The key-issue appears to be a conflict between a strong impulse to act by the peacekeeper concerned, and the inability or lack of authority to do so. In other words, he may be forced to act or to stand down contrary to his professional judgement.
It is one thing to remain neutral to the political issue which keeps the warring parties apart; it is another to remain neutral in the face of gross human rights violations. Consequently, a distinction should be made between operational neutrality on the one hand and moral neutrality on the other. The term operational neutrality refers to the refusal by the peacekeeping force to take a position on the political issue which fuels the conflict. The term moral neutrality means that the ethical distinction between morally good and morally bad has lost practical significance. Thus, when a choice is made in favour of moral neutrality, it becomes virtually impossible, to take a stance against those parties to the conflict which commit war crimes.
The comparison between a peacekeeping force and a police force has frequently been made. Policemen represent and uphold the law impartially. If a political demonstration turns violent, their job is to stop the fighting, arrest the culprits and bring them to justice. If they do that properly it is no interference with the issue which caused the demonstration to be held in the first place. In that sense they are neutral. Because they also uphold the law appropriately, they will arrest the culprits on both sides of the political divide. In that sense they are impartial. Apparently, it is at this juncture that the comparison with peacekeeping forces collapses. The reluctance of the UN to uphold basic human rights and humanitarian law is born out of the wish to remain not only neutral, but also to retain a status of ‘perceived neutrality’ in the eyes of the warring parties – parties, who would not allow the UN to apprehend a member of their own side even if that apprehension would be justified under the laws of war. Thus, the desire to retain ‘perceived neutrality’ effectively coincides with moral neutrality.
Thirdly, peacekeeping missions have, mainly since the early nineties, have received mandates that overlap with those of humanitarian organisations. In turn, this has blurred the differences in the core business of both. As a result, moral dilemmas typical of humanitarian organisations have now been experienced by peacekeepers. One example concerns the emotive issue how long one should tolerate the abuse of food aid by the warring parties for the sake of the intended beneficiaries. During the days of UNPROFOR food convoys were so frequently plundered that the question was raised whether the aid was feeding the war, rather than the intended beneficiaries. A second example concerns the question whether, and under which circumstances, peacekeepers should assist in the evacuation of civilians trapped in the fighting.
While a gradually growing number of humanitarian organisations is prepared to cooperate on a limited basis with peacekeeping forces, the ICRC is more reluctant. Any association of a humanitarian organisation with ‘the’ foreign military – perceived or real – can entail loss of independence from political or military priorities. This, it is claimed, can lead to an increased insecurity for humanitarian fieldworkers. The underlying assumption is that neutrality and impartiality provide protection. However, is that assumption still valid?
The blur has spilled over from peacekeeping operations into combat operations. The issue is topical in Afghanistan and Iraq, where extremist groups are willing to target humanitarian fieldworkers simply because they are seen as representing “the West” and its political agenda. Indeed, a large number of NGOs rely heavily on donor governments for their funding, even to the point where the observation has been made that certain NGOs have become sub-contractors for government policies. While the international coalition forces in Afghanistan and Iraq are willing to engage in humanitarian and reconstruction activities such as rebuilding schools, the humanitarian community remains apprehensive. The charge has been lodged that international coalition forces abuse aid in Iraq as a tool to win the hearts and minds of the local population – it has led, in 2002, to a letter being addressed to the US Secretary of Defence and the National Security Advisor. Reconstruction activities have been exploited for intelligence gathering purposes. Aid and reconstruction hence become a means of (psychological) warfare. They are no longer neutral and impartial with the best interests of the receiving population as the only consideration in mind. The fear is that international coalition troops in Afghanistan and Iraq wish to have it both ways: they wish to have non-combatant immunity while engaging in humanitarian operations, but at the same time reserving the right to act as a combatant.
Slim is wary about cooperation between ‘the’ military and humanitarian organisations because of the political agenda behind military activity. “The root of NGO resistance to military kindness is, therefore, not about the impossibility that soldiers can be kind but about the political and military interest behind such kindness. It is the problem of belligerent interests and enemy perception of these interests that I assume to be at the heart of NGO anxiety about soldiers being humanitarian. NGOs do not, I hope, object to the idea of soldiers being kind but are suspicious of what makes them so. And – as the Srebrenica example shows – they can have good reason to be wary. Humanitarians have always known that aid can be exploited and that Marcus Aurelius once reminded his generals that ‘benevolence is a great weapon in war’.”
In peacekeeping, just as in actual combat, there exists, fourthly, a possibility that the moral values upheld by the armed forces may conflict with each other. As we have seen, a potential conflict exists between on the one hand neutrality and on the other hand considerations of justice, i.e. upholding humanitarian law. In other cases one can observe the tension which is also known to actual combat, between force protection on the one hand and execution of the mission on the other. UNPROFOR was frequently confronted with the dilemma whether it was, given the risky circumstances, morally acceptable to escort a humanitarian convoy through beleaguered terrain in order to save civilians from starvation, but, by doing so, to risk the lives of the drivers of the convoy. UNPROFOR’s former Force Commander General Sir Michael Rose gives an example in his memoirs.
When a peacekeeping force deviates from its original peacekeeping mandate, confusion may arise as to which military values are pertinent. UNPROFOR and UNOSOM are examples where the modest posture of non-interference, neutrality and impartiality was dropped in favour of enforcement measures. However, once a peacekeeping force crosses the infamous “Mogadishu line” it is no longer a disinterested third party. It becomes part of the fray. As a result, its ‘perceived neutrality’ is lost. Does a peacekeeping force which crosses the Mogadishu line become a “party to the conflict” in the meaning of the laws of war? Or should its embroilment only be seen as incidental, with its status of standing above the fray remaining the dominant consideration? Clarity is necessary because one cannot stand above the parties and be part of the conflict at the same time.
Fifth, moral confusion may arise because the laws of war, the mandate as well as the orders received by peacekeepers are less than clear. The applicable norms are outdated, or were not drafted for the case at hand. The laws of war were – in the main – written for the warring parties. The most important treaties on the laws of war have been drafted either before the Second World War or in its immediate aftermath. This means that they were drafted before the very first peacekeeping force came into existence (which was in 1957 at the Suez Canal).
Currently, a consensus formalised by the UN Secretary General exists that the purposes and principles of the laws of war should apply to peacekeepers. However, this consensus is at times too vague to be helpful in defining the responsibilities of peacekeepers. More crucially, their obligations towards the civilian population remain ill-defined. To what extent are lightly armed peacekeepers obliged to commit themselves to the safety of the local population? Are they supposed to protect the local population with their life? Or is a symbolic presence and hence a symbolic protection sufficient, bearing in mind that peacekeepers do not make up a fighting force?
The uncertainty concerning this issue becomes apparent in the comparison of the case of the Dutch officer Karremans with the case of the Belgian colonel Marchal. Karremans commanded the ill-fated peacekeeping battalion at Srebrenica when the Bosnian Serb Army overran the enclave in July 1995. Col. Karremans has come in for fierce criticism from large segments of the public and from a number of the widows who survived the fall of Srebrenica, for the alleged lack of effort by Dutch UN troops to protect the Moslem population against deportation and mass murder by the Bosnian Serbs. A number of widows from Srebrenica have commenced legal proceedings against the Dutch government based on the alleged negligence of Karremans and his men, who did not put up a fight against the overwhelming fire-power of the Bosnian Serb Army. Colonel Marchal on the other hand was in Kigali in 1994 when the genocidal civil war broke out. Marchal was severely criticised and charged with involuntary manslaughter because he had ordered ten Belgian peacekeepers to proceed to the house of the Rwandan Prime Minister to protect her. The ten arrived at the house of the Prime Minister which was surrounded by an angry mob. Faithful to the principle of peacekeeping, they did not put up a fight and surrendered their arms to the senior Rwandese officer. They were murdered. The widows of the ten peacekeepers filed criminal charges.
A comparison between the cases of Karremans and Marchal challenges experts to square a circle: Karremans has been criticised for not risking enough to protect the civilian population; Marchal has been criticised for risking too much. Both officers had a responsibility for the safety of their men; both had also a responsibility for the safety of the population. In effect, their dilemma boils down to one which is quite old in the military: the tension between force protection and execution of the mandate. What should be borne in mind is that a readily applicable, internationally recognised yardstick, by which one can compare and judge the cases of Karremans and Marchal does not exist, neither in military ethics, nor in the laws of war. The dilemma between force protection and execution of the mandate is already knotty enough during actual warfare, where a balance has to be struck between the military necessity to defeat the enemy on the one hand, and humanitarian considerations on the other. However, the same dilemma in the context of peacekeeping is a venture into the realm of the unknown, even if those peacekeepers are authorised to put their personal safety first. Realities on the ground, including expectations raised among the local population by the UN itself, may dictate a different course of action than “safety first”.
In the Marchal case, allowance is made by the court for the extreme and unexpected nature of the circumstances. The court chooses a procedural criterion as its yardstick, i.e. what “… a prudent and reasonable senior officer would do in similar circumstances”. It acknowledges that even a prudent and reasonable officer can make errors or judgment and is not infallible. Even if damage is inflicted by a prudent and reasonable officer, this, according to the court, does not necessarily entail a measure of guilt – at least no guilt in terms of (Belgian) criminal law.
Interestingly, the court places an emphasis on the ability to pass judgment by a prudent and reasonable senior officer. Many cases exist where the criterion of a prudent judgement “in similar circumstances” has been applied by the courts – and not only in Belgium. Usually it involves cases in time of peace, in less extreme situations. Someone who negligently leaves the hatch of a cellar open and unattended so that an unsuspecting passer-by falls into it has made a serious error of judgement. He is, hence, responsible. In the case of the open cellar hatch, there exist comparable cases by which one can judge. However, can the same be said of the extreme chaos accompanying a genocidal armed conflict during a peacekeeping operation? How should the words what “a prudent and reasonable senior officer would do in similar circumstances” be interpreted if there exist (virtually) no similar, comparable circumstances? By some cruel twist of fate, the question Isarin raised in view of the Second World War can be repeated almost word for word, now with a view to peacekeepers: “What is the essence and function of the human ability to pass judgements? Are people able to distinguish good and evil when they are completely dependent on their own ability to judge?”
We may add: “Can it be expected of peacekeepers – officers and men – to pass sound moral judgements if the society which sends them neglects to make sufficiently explicit the moral yardsticks applicable to them and their situation? To what extent are they required to risk their lives to protect civilians when a warring party reneges on earlier agreements? Under which circumstances can peacekeepers credibly claim force majeure when their mission fails? Should peacekeepers be vilified for the moral decisions they take in a matter of hours or even seconds, if experts in law and ethics sitting quietly in their studies back home, cannot agree on the proper answer even after years of study? How does a peacekeeper distinguish morally good from the morally evil in situations where existing moral values give insufficient guidance?
With a view to both Srebrenica and Kigali one may ask: “How far can one stretch the biblical proverb that I am my brother’s keeper?” The issue is of importance, because only the meaningfulness of actions and the intentions attached to them can decide whether a particular activity was worthwhile, i.e. whether a sense of higher purpose and direction, was involved. This brings us to the fifth ethical issue, which lies at the level of the personal biography of the individual peacekeeper. In its most fundamental form, the question reads: “Why should I risk my life in somebody else’s war?” In marked contrast to the soldiers of the nations fighting a war, individual peacekeepers rarely have a stake in the conflict as such. For the soldiers of the nations fighting a war, the presence of the enemy is enough to reason to fight. Peacekeepers do not have such a motivation. While they may receive a financial bonus from the United Nations, that in itself is unlikely to make them risk their lives for the benefit of the local population – particularly when they have wives and children back home. If they seek a motivation for risking their lives, they may have to find it in their personal convictions which make their presence worthwhile. This conviction can be their commitment to a basic respect for human dignity and the humanitarian rights emanating therefrom. Unsurprisingly, this is for many a remote and arid concept, which is difficult to grasp. Peacekeeping in effect requires of the individual peacekeeper to give a new meaning to his decision to become a soldier in the first place. It is one thing to dedicate one’s life to the protection of one’s own country; it is quite another to do the same for people in a forlorn country on the far side of the globe. Here too, the documentary Warriors provides a useful example: the members of the British platoon do risk their lives. They do wish to retain a measure of humanity in a world of stark contrast and black and white conceptual frameworks. Seen from this perspective, their choice does not differ markedly from the examples from the Falkland Islands given above.
Sixth, peacekeepers can experience moral uncertainties that are comparable to soldiers of the warring parties who fight an enemy. For peacekeepers too, the fatigue, stress, frustration about war crimes witnessed, corruption, theft and robbery by the local population can cause peacekeepers to loose their moral direction and commit serious crimes, including rape and torture. In the case of the Belgian contingent a photograph was published depicting two Belgian paratroopers holding a Somali boy by his hands and feet and roasting him above a campfire. The Belgians were simply fed up with the continuous harassment and attempts at theft from their compound, when more subtle means to dissuade the local population failed. Also, a Belgian petty officer collected a fourteen year old Somali girl from the street and “gave” her as a birthday present to a colleague at the base, where she was raped. Because of their behaviour in Somalia in 1993, the Italian, Belgian and Canadian contingents of the peacekeeping force UNOSOM became the subject of formal investigations. In these cases the fog of war has impaired the ability of peacekeepers to make proper moral judgements.
One can easily agree with colonel Hartle’s opening statement that the environment in which the military operates poses a severe threat to consistent moral behaviour. This is true during peacekeeping operations and during combat. Consequently, a high standard of moral integrity for officers and men is essential, including the skill to pass precisely those moral judgements Isarin calls for. Naturally, the perfect moral judgement will never be reached. It does not exist. Yet, it is possible to train our men and women in uniform to pass moral judgements which are both balanced, courageous and, where possible, magnanimous. There exists a strong chance that an individual will uphold moral values if those values are not perceived as a varnish which has no deep root in his personal convictions, but when those values have become, as a result of moral (self)education, a part of his sense of personal identity. “When there is perceived unity between self and morality, judgement and conduct are directly and predictably linked and action choices are made with great certainty.” Amidst the despair and destruction which is inherent to armed conflict, in is perhaps a consolation to consider that it is possible to promote a perceived unity between the self and morality, hopefully to the point where soldiers will transcend the world of black-and-white concepts. Examples like that of Private Patricio Perez, Captain Haracio Losito and their British captors in the Falklands islands show how to exercise this responsibility.
 The author heads of the Bureau for Ethics and the Armed Forces at Netherlands Defence College, The Hague. This text is based on a guest-lecture held at the University of Amsterdam, on 2 October 2003, in the course of a lecture series of the Masters program The United Nations in a divided world. The publication of the complete series of lectures is forthcoming. Comments can be sent to: <TA.v.Baarda@mindef.nl>
 Patricio Perez, quoted by Michael Bilton and Peter Kominsky, “Speaking out. Untold stories from the Falklands war,” London, 1989, pp. 191-193.
 A.J.F. Köbben, “What is a human life worth?” speech delivered on December 10, 1993 at Leiden University, PIOOM Newsletter, summer, 1994, vol. 6, no. 1; A. Bandura, “Moral disengagement in the perpetration of inhumanities,” in:Personality and social psychology review, vol. 3, 1999.
 Capt. Haracio Losito, quoted by Bilton and Kominsky, op. cit., pp. 196-197.
 Köbben, op. cit.; Alain Finkielkraut, L’ humanité perdue, 1996, pp. 31, 48-51. For a study on the magnanimity of civilians during the Second World War, see: Samuel Oliner and Pearl Oliner, The altruistic personality, New York, 1988.
 C.J.M. Schuyt, Recht, orde en burgerlijke ongehoorzaamheid, thesis, 1971, pp. 78-79; Ted Robert Gurr, Why men rebel, 1970, pp. 42 and pp. 134 et seq. Three basic types of anomie have been distinguished: the weakness of norms per se (little persuasive power), the presence of several strong but conflicting norms and, ignorance of norms. They will not be discussed here.
 C.F Rüter, Enkele aspecten van de strafrechtelijke reactie op oorlogsmisdrijven en misdrijven tegen de mensheid, thesis, 1973, p. 23-24, p. 27-30 and p. 48-49.
 ICTY <www.icty.org>, The Prosecutor against Rahim Ademi, case no. IT-01-46-PT, second amended indictment, 1 February 2002, at § 17.
 NRC Handelsblad, 10, 14, 16 and 25 July 2001.
 N. Keijzer, Hoop en wanhoop om het oorlogsstrafrecht, inaugural address, November 1997, Deventer, 1997.
 This collision between the value system of ‘the’ international community on the one hand and the value system of a society at war on the other not only arises during actual combat, but also during belligerent occupation. On the one hand, the occupying power is party to a conflict – at least as long as hostilities continue. Seen from this perspective, it is only natural that is will act to its best, that is, partisan interests. On the other hand, it assumes the power of the de facto government of the occupied territory. In the latter capacity the occupying power cannot act according to its partisan interest, but is constrained by basic principles of good governance, non-derogueable human rights and the principle of non-discrimination. It will have to maintain public order in an impartial fashion. Yet maintaining public order can become a catalyst for unrest if public order is maintained according to partisan interests. Th.A. van Baarda, “The applicability of the Fourth Geneva Conventions in the Occupied Territories,” in: Netherlands Quarterly of Human Rights, vol. 10, 1992, no. 1 at p. 24.
 Major general Charles Swannack, Jr., commander of the 82nd Airborne Division, televised press conference, broadcast by BBC World, 19 November 2003; see also <www.wrap.com>
 That assumes of course that the soldier involved has known a time of peace. In armed conflicts which continue for two or more decades, a generation has grown up without having any experience in living and working under peaceful conditions.
 Rüter, op.cit, p. 23.
 This graphically illustrates the fact that military ethics are professional ethical standards. As col. Hartle has observed, a given society may have a number of professions which uphold moral values which are at variance with the values of the society to which they belong. Those professions include the police, medical doctors, etc. The members of these professions are legally permitted to commit certain acts which ‘ordinary’ individuals are not allowed to commit. See: Anthony Hartle,Moral issues of military decision making, University of Kansas, 1989. It can be argued however, that the difference between military values during armed conflict and civilian values in time of peace is particularly large and thus confusing.
 Israel High Court, Zonsheine vs. Chief Military Prosecutor (2002). For a flare-up of the discussion, see <www.seruv.org> and the newspaper Ha’aretz daily, 19 and 25 September 2003 concerning the ‘grounding’ of nine pilots by the Commandant of the Israeli Air Force. They refused to fly assassination missions over the occupied territories.
A distinction ought to be made between a refusal to carry out an order on the grounds that the order is allegedly illegal, and the refusal to carry out the order on grounds of conscience. Under international law there exists an obligation to refuse illegal orders; it by contrast doubtful whether a right exists to selectively refuse legal orders for reasons of conscience. See also: Ruth Linn, “Soldiers with conscience never die – They are just ignored by their society. Moral disobedience in the Israeli Defence Forces,” in: Journal for Military Ethics, vol. 1, 2002, no. 2.
 Onora O’Neill, “Kantian ethics,” in: A companion to ethics, Peter Singer (ed.), Oxford, 1991, pp. 178-179.
 Hannah Arendt, Eichmann in Jerusalem. A report on the Banality of Evil, (1964; used edition: Penguin books, 1994), pp. 135-137. In 1945 the German legal philosopher Gustav Radbruch (1878-1948) publicly changed his opinion: before the second world war, he advocated strict obedience of the law on the argument that the law incorporates justice; after the war he showed himself receptive to the philosophy of natural law, which requires obedience once man-made laws such as those of the Reich, become blatantly criminal. Gustav Radbruch, Fünf Minuten Rechtsphilosophie, (1945).
 Jet Isarin, Het kwaad en de gedachteloosheid. Een beschouwing over de holocaust, Baarn, 1994, p. 70 (our transl. – TvB).
 Hubert Michael Mader, “‘Aber das machen meine Leute doch nicht!’ Können auch ‘ganz normale’ Menschen Kriegsverbrechen begehen?” in: Truppendienst, 2000, no. 5, pp. 368-369; Christopher R. Browning, Ordinary men. Reserve police battalion 101 and the final solution in Poland, New York, 1992; Arendt, supra, note 18; Mark Osiel, Obeying orders. Atrocity, military discipline & the law of war, London, 1999; Isarin, supra, note 19; Major Jeffrey F. Addicott and Major William A. Hudson, The twenty-fifth anniversary of My Lai: a time to inculcate the lessons, in: Military Law Review, vol. 139, 1993.
 Joanna Macrae & Anthony Zwi, War & Hunger. Rethinking international responses to complex emergencies, London, 1994. Slim writes: “Perhaps the most extreme example of cruel and wicked aid from belligerent forces has been captured forever on Leslie Woodhead’s excellent film about the massacres at Srebrenica, Cry from the Grave. This film shows footage of General Ratko Mladić personally distributing bread and chocolate to the terrified Bosnian Muslim population cowering in the Dutch peacekeepers’ camp at Potocari. In this moment, Mladić was exploiting aid in an attempt to create goodwill so he could separate men from women and children to massacre the men. Here, the wrong person was giving aid with the wrong interests and for the wrong reasons. There is no way in which what Mladić did can be described as humanitarian.” Hugo Slim, “A balance can be found between military and humanitarian,” <www.alertnet.org> (posted: 28 March 2003).
 Boutros Boutros Ghali, An Agenda for Peace, UN Doc. A/47/277 and S/24111 of 17 June 1992.
 According to col. Hartle, three factors have moulded military ethics into the body of values and norms what it is today. The first is simply practical, the second and third are clearly normative. He mentions (1) the necessity to defeat the enemy quickly and efficiently; (2) the laws and customs of war, which include the four Geneva Conventions on the Protection of the Victims of Armed Conflict (1949); and (3) the values of the society from which a soldier is extracted – in Hartle’s case, the values of the USA. See: Hartle, supra, note 15.
 Code of Conduct for Peacekeepers, in: UN Chronicle, vol. XXXIV, 1997, nr. 3, p. 40, also published at: <www.un.org/Depts/dpko/training/training_material/list_of_publications.htm>
 The little-known letter of resignation, dated December 1935, of James G. McDonald, High Commissioner for Refugees under the League of Nations, provides a precedent. Having dealt unsuccessfully with the flow of Jewish refugees from Germany, he wrote: “But convinced as I am that desparate suffering in the countries adjacent to Germany, and an even more terrible human calamity within the German frontiers, are inevitable unless present tendencies in the Reich are checked or reversed, I cannot remain silent. I am convinced that it is the duty of the High Commissioner for German Refugees, in tendering his resignation, to express an opinion on the essential elements of the task with which the Council of the League entrusted him. When domestic policies threaten the demoralisation and exile of hundreds of thousands of human beings, considerations of diplomatic correctness must yield to those of common humanity.” League of Nations doc. C.13.M.12.1936.XII, at § 17.
 It has been argued that a moral dilemma is being experienced more intensely if it refers to a sense of nearness, proximity that the decision-maker feels for the victims of the act under consideration. People may show more concern for victims standing in front of them (physical proximity), or for family members (social proximity), than for strangers far away. See: Audrey Chia and Lim Swee Mee, “The effects of issue characteristics on the recognition of moral issues,” in Journal of Business Ethics, vol. 27, 2000. The influence of proximity may explain why the on-scene commander and his men may have a different interpretation of a moral dilemma than their commanding officer back at HQ. The former may have to look the needy in the eye, the latter decides from the report filed on his desk.
 Maj.-gen. Bjørn Egge, Mauritz S. Mortensen, and Lars Weisæth, “Armed conflicts, soldiers for peace: ordeals and stress. The contribution of the United Nations Peacekeeping Forces,” in: Yael Danieli, Nigel S. Rodley and Lars Weisæth,International Responses to Traumatic Stress, New York, 1996, p. 270.
As the BBC documentary Warriors – concerning British peacekeepers during the UNPROFOR period – exemplifies, the members of a British platoon felt unable to remain onlookers. More than once, the members of the platoon pressed one of the warring parties hard to respect a minimum standard of civilised behaviour. One member even threatened to mention the name of a Croat commander to the Prosecutors Office of the ICTY if the commander would allow his men – as the commander put it – “play with” a group of Muslim women held prisoner in the back of a truck parked a few yards away.
 Th.A. van Baarda and A.H.M. van Iersel, “The uneasy relationship between conscience and military law: the Brahimi report’s unresolved dilemma,” in: International Peacekeeping, vol 8, no. 3, 2002.
 Larry Minear, The humanitarian enterprise. Dilemmas and discoveries, Bloomfield, 2002, p. 99 et seq; Th.A. van Baarda, “The involvement of the Security Council in maintaining international humanitarian law,” in: Netherlands Quarterly of Human Rights, vol. 12, 1994, nr. 2.
 Th.A. van Baarda, “Deportatie is verboden, evacuatie niet. Maar, wat is het verschil?” in: Militair Rechtelijk Tijdschrift (second part), vol. XCV, March 2002.
 Scott Baldauff, “Aid groups in Afghanistan weigh good deeds vs. duty,” in: Christian Science Monitor, 28 October 2003 and <www.reliefweb.int>
 Eric James, “Two steps back: Relearning the humanitarian-military lessons learned in Afghanistan and Iraq,” in: Journal of Humanitarian Assistance, (posted: November 2003), <www.jha.ac>; Ted van Baarda and Larry Minear, “Military haberdashery in Afghanistan,” in: Forced Migration Review, January 2003, no. 16, also posted at <www.fmreview.org>.
 Slim, supra, note 21; Minear, supra, note 29, p. 104 et seq. and 114 et seq. One should distinguish between the ability of an individual to be kind – regardless of him being a soldier or a humanitarian fieldworker – from the ability of an organisation – regardless of that organisation being military or humanitarian – to perform humanitarian activities. In other words, one should discern individual motives from institutional motives. While it is true, as Slim suggests, that a military organisation may have ulterior political motives to hand out humanitarian aid, a humanitarian organisation may have ulterior propaganda motives for limiting the distribution of aid to those areas where camera crews of the international networks are present. The ulterior political motives however, are more likely to have a direct effect on the course the armed conflict takes and purposefully so.
 General Sir Michael Rose, Fighting for Peace, London, 1998, p. 142-143.
 As a matter of course, the general principles of both humanitarian and human rights law apply, but they are not specific enough to supply a conclusive answer. In its concluding remarks of November 1998, the UN Human Rights Committee acknowledged the recognition of Belgium of the applicability of the UN Covenant on Civil and Political Rights to the behaviour of Belgian UN peacekeepers in Somalia: Concluding observations of the UN Human Rights Committee, 19/11/98 at § 14. Unfortunately, the Committee did not enter into an in-depth analysis of the matter.
 Astri Suhrke, “Dilemmas of protection: the log of the Kigali Battalion,” in International Peacekeeping, vol. 5, 1998 no. 2; Howard Adelman and Astri Suhrke, The path of genocide. The Rwanda crisis from Uganda to Zaire, 1999, p. 259 et seq.; Koen Vidal, Stukken van de waarheid. De Rwandese genocide en de Belgische politiek, 1998, p. 70 et seq. Military Court of Appeals, Brussels, Marchal case, 4 July 1996, reprinted in: Militair Rechtelijk Tijdschrift, vol. 40, 1997, no. 3. Marchal was acquitted. On June 18th 2003, following a Parliamentary Enquiry, the Dutch Minister of Defence rehabilitated Col. Karremans and his men during a parliamentary debate: Second Chamber of Parliament documents, session 2002-2003, TK 79-4491, pp. 21-22.
 Netherlands Institute for War Documentation, <www.niod.nl>
 News messages dated 30 October and 8 November 2003, on <www.planet.nl>
 Accounts differ on what happened exactly during those hectic days, particularly concerning the role of col. Marchal. We therefore limit ourselves to the facts which have been established by the Belgian court.
 Here too, it may be suggested that this dilemma is akin to humanitarian organisations and operations as well. To what extent should humanitarian relief workers risk their lives in order to reach the needy population? The question was hotly debated concerning the refugee camps in Congo/Zaïre in 1996, when the Rwandan genocidaires had a major and lethal influence in the camps. More recently, Kofi Annan, reflecting on the devastating terrorist attacks on the UN Headquarters (and soon thereafter on the ICRC Headquarters) in Baghdad in August 2003, remarked: “In taking the difficult decisions that lie ahead, I shall be asking myself questions such as whether the substance of the role being allocated to the United Nations is proportionate to the risk we are being asked to take …” Report of the Secretary General pursuant to Security Council Resolution 1483 and 1511, S/2003/1149, 5 December 2003 at § 112.
 In the same vein was a remark in the white paper Defence 2000 of the Dutch Ministry of Defence at p. 93: “The soldier can be confronted with moral dilemmas and questions of conscience. (…) This concerns in particular the fundamental distinction between good actions and evil actions as well as the sometimes extremely difficult question how to choose the lesser of two evils” (our transl. – TvB).
 Th.A. van Baarda, supra, note 30.
 Peter de Graaf, “Witte marsen gelden niet voor verkrachting Somalisch meisje,” in: De Volkskrant, 8 April, 1998.
 De Volkskrant, 19 August, 1997.
 Donna Winslow, The Canadian Airborne Regiment in Somalia. A socio-cultural inquiry, Ottawa, 1997. The way in which the troop contributing countries dealt with these issues is remarkable. The Canadian authorities disbanded the entire regiment. The Belgian authorities, who prosecuted two of the paratroopers who roasted the boy, saw the two eventually being acquitted. Such conspicuous differences would appear to fall short of a sense of justice.
 Hartle, supra, note 15.
 F.B. de Mink, “Leren en leven met morele dilemma’s,” Enschede, 1993; Paul Vermeer, “Morele vorming voor BBT soldaten. Van het groepsperspectief naar het perspectief van de sociale orde,” in: Carré, 1996, no. 11, p. 23.
 Anne Colby and William Damon, “The uniting of self and morality in the development of extraordinary moral commitment,” in: Gil G. Noam and Thomas E. Wren (eds.), The moral self, Cambridge, Massachusetts, 1993 at p. 150.