When considering how to balance competing priorities, it can be difficult to know which way is the appropriate one. For example, striking a balance between Military Necessity vs. Ethical Concerns where one needs to navigate situations where military effectiveness might conflict with ethical principles. Or weighing Ends vs. Means in an effort to ensure that positive outcomes justify any negative impacts, while keeping in mind questions about proportionality.
1. Taking a rules-based approach: limitations
2. But which principles should take priority if/when they collide?
3. But what happens when there is no overriding value at play?
1. Taking a purely rules-based approach may work for many situations, but very often, blindly following the rules can lead to the ‘wrong’ result. This can come about in all sorts of ways, but often it is caused by the assumptions that underpin the rules not matching the reality of the case in front of you. For example, Article 57(2)(c) of
Additional Protocol I (1977):
- This article requires that effective advance warnings must be given to the civilian population before attacks which may affect them, unless circumstances do not permit. One might assume that if warned in time, people can simply leave an affected area, but that is not necessarily a safe assumption.
- What about if there was a high percentage of elderly or infirm people in the area about to be attacked, or the people there were too scared to move, or their paths to safety were blocked (or they believed them to be blocked) or they believed the warning to be a trap? Clearly, the warning does not discharge the duty to take care in distinguishing between combatant and non-combatant, and just because the rule has been adhered to, does not mean that those left in the area of attack are due any less protection from harm.
Real decisions are quite rightly going to involve an element of professional discretion to ensure that they are considered just, fair, appropriate and acceptable to those connected with the decision. In actual practice, experienced military operators usually know quite well how to deal with situations in which values clash, and are able to arrive at solutions that most people – peers, chiefs, lawyers, and even the enemy, in most situations, will find acceptable. This is sometimes referred to as the “reasonableness test”.
2. But which principles should take priority if/when they collide?
Back to our example, a civilian population has the right not to be deliberately harmed, while the needs of the military operation may require a target to be destroyed even though it could result in civilian harm. Context is everything – and this is understood when one understands that moral judgement is embedded in sound military practice, and also why one cannot simply code for “reasonableness”.
- Sometimes the context makes the solution easy – the right for civilians not to be deliberately harmed, and the needs of military necessity are easily resolved if the operation is at sea with no civilian vessels left within 5 miles of the area.
- Sometimes, the context means that two irreconcilable values get trumped by a third, overriding factor. For example, a medic trying to decide which of two equally wounded patients should be operated upon first will find such a decision much easier if one of the patients suddenly starts deteriorating due to an internal bleed.
3. But what happens when there is no overriding value at play?
What is called professional discretion is not the same as simply following the rules and needs to involve a careful balancing act informed by the information available – the everyday moral judgement of the competent member of a community of practice. For any decision that involves life or death, it is therefore imperative that should such a decision be based on information that is presented by an AI-system, that the information is presented in a way that permits that judgment to applied accurately and in an appropriately informed way.
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