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Friday, January 06, 2006

Stealth and the Laws of War

If you rent only one film this year about a computer-piloted fighter jet which goes rogue after being hit by lightning (!) but ultimately comes to recognize the sanctity of human life, I highly recommend Stealth, the latest philosophical blockbuster from the makers of The Fast and the Furious. Stealth often succumbs to the limitations imposed by its genre, but the moments in which it surpasses them are well worth watching.

On two separate occasions, a team of elite fighter pilots declines to strike a primary target in a manner which will guarantee its destruction while minimizing risk to themselves because the foreseeable number of civilian deaths will be too high. In the first case, one pilot risks death himself to execute a maneuver which achieves the objective while minimizing loss of innocent life. In the second, the pilots shift their attention from the primary target (nuclear warheads which if destroyed would send a radioactive dust cloud into a neighboring village) to secondary targets (missile casings and firing platforms), leaving the primary targets for retrieval by ground forces. This may be the first time principles of discrimination and proportionality have been referenced in a mainstream action movie. If you know of others please share.

The movie also features two short but intelligent discussions of the ethical implications of routine use of pilotless warplanes. A commanding officer defends the program as a rational means to achieve strategic objectives without risking the lives of human pilots. A pilot responds that such technology, by decreasing the internalized costs of warfare, will reduce disincentives to engage in armed conflict. (“War is horrible. It’s supposed to be horrible. If war stops being horrible, what’s to stop us?”) Every good action movie is loud; this one is pretty bright (in spots) as well.

It might seem that these moments in the film are unconnected: the proportionality principle is a norm of jus in bello which applies to commanders and soldiers in the field, while the prospect of dead soldiers primarily bears on political decisions to initiate, perpetuate, or terminate conflict. Yet it occurs to me that they might be connected in at least two ways.

The first connection has to do with certain nativist biases which distort moral reasoning.  I heard an Air Force lawyer (who’s name I’ve long forgotten and have not been able to find) at the New York Bar Association around two years ago, who said that the problem with the proportionality principle is that military commanders value their soldiers’ lives far more than the lives of foreign civilians, particularly civilians from different ethnic or religious groups. Similarly, the political evaluation of armed conflict is measured in the numbers of (our) soldiers lost, not the number of (their) civilians killed. By contrast, in the film the pilots deviate from their mission plans to save the lives of foreign civilians of two different ethnicities.

The second connection has to do with the nature of the proportionality principle itself, which demands a comparison of apparently incommensurable values: the preservation of human life and the achievement of military objectives. This fragmentation of value prompts Michael Walzer to write that “because I don’t know how to measure the relevant values or how to specify the proportionality, and because I don’t think anyone else knows, I prefer to focus on the seriousness of the intention to avoid harming civilians, and that is best measured by the acceptance of risk.” Arguing About War 137 (2004). Absent human pilots, the internalized risk incurred by future aerial strikes will be limited to the possibility of losing planes to anti-aircraft fire.

This does not mean that nations that are serious about minimizing loss of innocent life cannot use pilotless planes. On the contrary, subject to norms adapted to keep pace with technological innovation, pilotless planes may lead to fewer civilian deaths and a stricter regime of legal oversight. The use of human pilots in a mission indeed speaks to the importance placed on its success. But the fear of losing human pilots understandably leads commanders to adjust mission parameters to protect their safety (e.g., increasing the altitude at which bombs are dropped or missiles fired, increasing pilot safety but decreasing accuracy), and for better or worse international law permits some trade-off between the lives of soldiers and the lives of civilians. By contrast, where pilotless planes are used, it will be difficult if not impossible to justify failure to accept essentially financial risks where necessary to reduce civilian deaths. Since the loss of pilotless aircraft lacks the moral weight and demoralization costs of lost soldiers, commanders can also be fairly expected to comply with stricter legal requirements. Pilotless aircraft may therefore make war (politically) easier to start yet (legally) harder to prosecute. That’s hardly a wash, of course, and certainly no cause for celebration, but it may be the best we can expect from “the moral pit where [we] appear to have settled, surrounded by enormous [and ever-advancing] arsenals.” Thomas Nagel, War and Massacre (1972).

For bringing the laws of war to mainstream movie audiences, Stealth is my Number 5 International Law Movie of 2005.

Posted by Adil Haque on January 6, 2006 at 05:55 PM in Film | Permalink


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Hey Steve. I remember the take-home point of Wargames to be that there can be no winner of a nuclear war, that global catclysm is the inevitable result, and that traditional principles of discrimination and proportionality have no meaning when applied to nuclear conflict. Weapons of mass destruction seem to represent a wholesale rejection of the humanitarian impulses that animate the laws of war. To me that makes Wargames closer to Crimson Tide, which I rather enjoyed.

Posted by: Adil Haque | Jan 8, 2006 4:29:58 PM

Adil -- I haven't see Stealth, but your description of it makes the theory sound a lot like that which is central to the plot of the old classic, Wargames, the cheesy Matthew Broderick 1984 movie ("Greetings, Professor Falken..."). As I recall, the movie began with several nuclear missile launch technicians failing to launch their missiles in a live drill (i.e., one that they didn't know was a drill). So, this seems a fairly common (and oft-invoked) theme...

Does Stealth really deal with the issue that much differently than Wargames did?

Posted by: Steve Vladeck | Jan 8, 2006 2:36:49 AM

Thanks for both comments. So, the general issue is how advancing technology may result in stricter application of the laws of war. The film gets at one issue: technololgy designed to remove or protect soldiers from harm. Dylan raises a different but important issue: increasingly precise weaponry. Questions: Are nations with smart bombs etc. legally obligated to use them to the exclusion of conventional weaponry? Are nations without such technology under an obligation to obtain it? Paul Robinson raises a parallel issue in an SSRN working paper (link to follow): As non-lethal personal protection devices become more effective and available, will the criminal law of self-defense continue to protect gun-users? A similar question may soon arise with respect the permissible use of lethal technology in warfare. Lots of ffod for thought and advocacy here, I suspect.

Posted by: Adil Haque | Jan 7, 2006 5:08:54 PM

Laser designation is still one of the primary methods of identifying targets, see the recent controversy on "Iraqification" and on the Special Forces turning over laser designation duties to Iraqis. According to an article by Seymour Hersh in the New Yorker, Air Force commanders are worried that their planes will be used to settle local feuds.

I enjoyed the analysis. I like seeing deeper motifs in popcorn movies and this post was exceptional in that genre.

Posted by: Bart Motes | Jan 7, 2006 12:41:02 PM

"But the fear of losing human pilots understandably leads commanders to adjust mission parameters to protect their safety (e.g., increasing the altitude at which bombs are dropped or missiles fired, increasing pilot safety but decreasing accuracy), and for better or worse international law permits some trade-off between the lives of soldiers and the lives of civilians. "

I've always believed that "higher elevation = lower accuracy" only applied to dumb bombs. Laser and GPS guided should in some instances be more accurate the higher they're dropped, inasmuch as they have more time to adjust their profile mid-drop and have a larger target "basket" in which they can release. The trade off between pilot safety and accuracy is therefore a false one, given universal use of precision guided bombs. Now it's the case that in the first Gulf War a fairly small proportion of the bombs dropped were precision guided, and this may have also been a problem in Kosovo. Additionally, laser guided bombs, before replacement by GPS guidance, were limited by cloud cover, forcing the designator to get below it. It's not clear that any of these restrictions are true for the United States today. JDAM kits are much cheaper than pilots and aren't obviously scarce.

(It is true that ground forces prefer air support by slower moving (and lower) elements, but that involves short duration tactical targets in close proximity to friendly troops, where time on station and getting an eyeball on the target and friends to make sure the GPS coordinates you punched in make sense.)

Posted by: Dylan | Jan 6, 2006 7:32:51 PM

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