Let necessity, and not your will, slay the enemy who fights against you – Saint Augustine

Thomas Paine once said, “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.” With a minor wording substitute, the same can be said of special operations forces (SOF) – those who expect to reap the blessings of [SOF] must, like men, undergo the fatigues of supporting it. A responsible government and subordinate military must create and maintain an environment where SOF are raised, trained, and sustained appropriately, as well as employed ethically and responsibly. 

There is inalienable organisational accountability for creating and maintaining a system, and its people and processes, which adhere to an ethical standard. For the Australian Defence Force to confront and advance beyond Afghanistan’s Long Shadow[i] we must understand and embrace this. 

Ethics are a system of moral principles by which human actions may be judged good, bad, right, or wrong.[ii] The term is also applied to a system or theory of moral values or principles, therefore a choice that comprises moral considerations, such as whether a behaviour is good or bad, fair or unfair, just or unjust is said to be an ethical decision-making process.[iii] Military ethics, with its core foundation principles, are known collectively as the Just War Tradition and are among the most mature sets of ethical principles that exist.[iv] 

The principles concerning entry into a war termed Jus ad Bellum – just entry to war. They provide an examination as to whether a just cause exists, whether a party has legitimate authority to enter a war, whether the group has the right intentions, that they exercise proportionality, that war is the last resort after all feasible solutions have been exhausted, and there is a chance of success of the military operation. Military ethics also scrutinizes conduct and behaviour within a military operation, termed Jus in Bello – just fighting in war, against the moral principles of discrimination, proportionality and necessity, and describes the norms and values that guide combatants’ actions. 

Supplementary principles that have been added in more recent decades and are still contested include Jus post Bellum – the ethics of the aftermath of war, Jus ex Bello – the ethical conditions under which wars should be ended; and Jus ad Vim – the ethics of resorting to force short of war. 

Special operations (SO) warfare is conducted by uniformed military forces and while SOF are typically either clandestine, covert, or low visibility – they are not civil intelligence agencies and this difference aids in separating SO from subversion operations as well as law enforcement-led internal security operations.[v] 

While certain missions, such as special reconnaissance are comparable to civil agencies, there is an organisational distinction between them since SOF are under military chains of command and have uniformed personnel, whereas intelligence organisations are not. Therefore, the two core principles of Jus ad Bellum and Jus in Bello with well-established values around contemporary military operations, are also applicable in SO. 

However, in SO where unconventional military actions against enemy weaknesses are undertaken by specially selected, trained, equipped, and supported units identified as special forces or SOF[vi], the application of these guiding ethical principles is, much like SO themselves, much less understood. Special operations can involve precision use of force, problematic calculations and considerations of political and operational risk such as jurisdictional access or plausible deniability. It is these perceived risks that see SO warfare differ from conventional combat. 

To mitigate these risks and provide superior outcomes to the government, SOF are organised, trained, supported, and therefore, selected with greater resourcing and diligence than conventional forces. 

This essay will critically evaluate ethical issues associated with SO and SOF, which rightly or wrongly, have become the ‘go-to’ solution for governments as a mainstream element of state military power. First, it will discuss the foundational concepts of Just War Theory and their applicability to SOF through an analysis of constraints, consequences, and ethical principles. 

Second, it will address Jus ad Bellum and the use of SOF to justify entry to war, particularly the moral hazard of governments anticipating less risk with SOF and therefore being more likely to take on greater risk than they otherwise would. Third, it will evaluate SOF and Jus in Bello and the friction points of rules of engagement within SO, oversight, and accountability within SOF and culpability for the environment of autonomy the SOF function within. 

Lastly, ethical risk factors specific to SO will be analysed, discussing both social and cognitive risk factors. Sun Tzu in 'The Art of War' said "Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat." This essay posits that the ethical ‘tactics’ used by the SOF on the ground are a result of the ethical considerations in the strategy of their (SOF) employment. 

The strategy will feed the tactics as the environment will generate the behaviour, so accountability for ethical behaviour or otherwise should be fairly apportioned to leadership at each level, but greater weight belongs to the strategic level of leadership and their inadequate ethical decision-making.

The Just War Tradition foundation of Jus Ad Bellum applies to the use of SOF to justify entry to war, particularly the moral hazard of governments anticipating less risk with SOF as opposed to conventional armed forces, and therefore being likely to take on more risk than they otherwise would. 

Renowned military ethicist Michael Walzer voiced concern over the ethical use of SOF, "Special Operations Forces should be employed only when more conventional forces cannot act or have already failed. We should sustain for as long as we can the possibility of abiding by either the rules of peace or the rules of war because we have a pretty clear sense of what these rules are; we know what police and soldiers can and cannot do”[vii]. 

Conscious ethical behaviour requires awareness of one's own biases as well as the justifications for one's beliefs and actions, this is the same for unconscious bias inherent within a government and its considerations for going to war.[viii] 

The dominant approaches to ethics in Western society are constraints, consequences, and character. Constraints, known in philosophy as deontological ethics are sets of ethical rules that can include both constraints and permissions, a notable example being the Laws of Armed Conflict (LOAC). Directly distilled and subordinate to the LOAC are a subset of rules created by an operating force called Rules of Engagement (ROE). 

Military orders known as ROE specify the conditions under which a force will engage an enemy and carry on the conflict. ROE are the directives given by a competent military authority that specify when, where, how, and against whom military force may be used.[ix] They have implications for both the actions that soldiers may take on their initiative and the orders that a commanding officer may give. 

In SOF risk and decision-making, done in an extreme environment and situation, are pushed to the absolute lowest tactical level possible to enable fast decision-making and autonomy of action. Great consideration must go into the ROE for SOF, as ambiguous ROE will leave soldiers in doubt about what they can and cannot do in combat, and against whom they can and cannot use force, and in what circumstances – with the potential for unlawful killing or unnecessary deaths.[x]

Consequences in its dominant form of consequentialist ethics are termed Utilitarianism. This evaluates which path of action will have the best outcomes by identifying the ethical course of conduct considering which actions will create the greatest good for the greatest number of those affected. For instance, society imprisons criminals upon conviction in the idea that doing so will benefit society more than limiting their rights. 

According to utilitarian ethics, measures are acceptable if they achieve goals that benefit a greater number of people than they damage. Although the utility strategy appears to be enticing on the surface, there can sometimes be unfavourable outcomes. The most famous of these was the atomic bombing of Japan, with the justification that by obliterating two cities, more lives were spared from a pending ground invasion. 

For SOF, utilitarian ethics were clearly at play during the US strike on Osama Bin Laden in Pakistan, with intelligence gathered through a false vaccination program. This may be termed perfidy, a type of deceit that international law and military ethicists have long prohibited because of the harm it does to crucial institutions that promote humane treatment, like said vaccination programme.[xi] 

Furthermore, the supposed US partner government of Pakistan neither authorised nor knew about the raid. The United Nations Charter's Article 2(4) enshrines respect for territorial integrity and political sovereignty as a moral safeguard against the worst tendencies of anarchic international relations. However, arguably, the raid benefited a greater number of people than it damaged, assuredly to US citizens more than Pakistani.

Character, in which ethics is inextricably tied to what sort of person we are, is one’s beliefs, purpose, core values, and identity expressed in attitudes, personality traits, and behaviour. When speaking in an ethical framework character is known as Virtue Ethics, whereby ‘excellences of character’ such as honour, bravery, and kindness should guide our behaviour. These elements, which define the essence of a person, enable someone to make meaning of experiences, behave ethically, live morally, and persevere through challenges when faced with fear, chaos, and danger in combat[xii]. 

A coherent worldview leads to a strength of character that can help prevent physical injury, mental illness, and moral injury. In a character Virtue Ethics approach, we would continually ask ourselves “what would x do?” However, this consistency of Virtue Ethics response in SO tasks is less dependent on the outstanding discipline required to carry out orders consistently and reliably in the face of a peer enemy than large-scale conventional operations are. 

An SO mission might be endangered by excessively rigid adherence to a plan, as special operations call for an autonomous mindset; a combination of ingenuity, adaptability, and flexibility that enables SOF to investigate non-doctrinal alternatives and operate with a lack of orders from above.[xiii] From such freedoms a risk of elitism exists, with a greater acceptance of diversion from orders by SOF and a bottom-up driven approval of divergence from authority. 

Eventually a poor or even resentful environment with gradual erosion of standards can form, unless strong leadership inculcates and maintains a professional, normalised discussion of expected values, virtues, and behaviours regarding SOF and warfighting.[xiv] This must be reinforced throughout the entire chain of command into the highest echelons, and a duty of due diligence exercised, knowing this risk exists. Failure to do so is a failure of ethical leadership.

The principles of Jus ad Bellum are just cause, legitimate authority, right intention, proportionality, last resort, and likelihood of success. The ethics of entering armed conflict have a deep underpinning in the Just War tradition, having evolved as a result of hundreds, if not thousands of years of state-vs-state warfare.[xv] However, the contemporary conflict environment is dominated by aversion to political risk domestically, manifesting through casualty aversion, and further evolves in conflicts between states and non-state actors. 

These facts significantly challenge the applicability of the well-developed concepts of the Just War tradition. States are using SOF more frequently across all spectrums to carry out both what might be considered conventional missions and ‘grey zone’ missions that present new ethical challenges. These same SOF also find themselves fighting alongside and assisting irregular and non-state forces that use a distinctly unconventional style of warfare.[xvi] However, in an example of overuse of SOF, and in contradiction to Michael Walzer’s pronounced concern over the ethical use of SOF, Australia's political and military leadership stretched the Special Air Service throughout the Afghanistan conflict. 

With the discovery of 39 suspected killings committed by Australian special forces, one of the most important recommendations of the Brereton Report is also one of the least obvious: they should no longer be regarded as the "force of first choice" by default (Knox 2020).[xvii] It could be argued that the fact that they had, by necessity, changed their primary role from long-range reconnaissance to the prescribed killing of High-Value Targets under the guidance of Australia's highest political and military authorities, created the circumstances and environment for what came next. 

None of those politicians or commanders seem to have considered the repercussions of continually using the Special Air Service as a first-resort force when many of the tasks they were assigned could have been conducted by conventional Australian military units. The political and military leadership traded a political and physical risk for a moral and ethical risk, which eventuated.

After the World Trade Centre attacks on September 11 2001, Australia initially sent SOF to Afghanistan. Australia's involvement in Afghanistan was justified as self-defence, arguing that depriving al-Qaeda and other jihadist organisations a haven greatly enhanced our national security, and that the best way to do this was by aiding in the development of a more secure and democratic Afghanistan. A state's justification for using force outside of these extraordinary circumstances however, is unlikely to meet the just cause or right intention requirements of the ad Bellum principle. 

In addition, Jus ad Bellum principles demand that the legitimate governing authority of a state only use armed action as a last resort, and only after making a fair assessment that it can accomplish its just aims without inflicting disproportionate injury or damage.[xviii] An example of a brazen failure to meet the Jus ad Bellum criteria for entering war is the Russian annexation and invasion of Crimea; Just Cause is the first. 

The annexation of Crimea falls well short of the mark if, generally speaking, a reasonable purpose for armed force is confined to self-defence, the defence of victims of aggression, and, occasionally, humanitarian intervention; in fact, it is difficult to imagine a more egregious breach of political sovereignty and terrestrial integrity. Just War theorists have never given credence to Moscow's assertion that the annexation returned Crimea to its former sovereign.[xix]

Even while a just cause, legal standing, and good intentions provide a solid foundation for war, there are consequentialist reasons that can still render war indefensible. Proportionality is the key consideration; decision-makers must weigh the value of advancing the right cause against the anticipated overall cost of the battle. If the cost is too high, war should not be utilised as an instrument of policy to address a problem. However, when morality is seen through the lens of the proportionality standard, strategic SO and other forms of coercion other than war, frequently receive high marks. 

Indeed, commanders frequently cite concerns about proportionality as a key factor in their decision to use SOF. Why not undertake SO if they might be able to accomplish a strategic goal with few human casualties? A SOF strategy is motivated by the idea that governments may accomplish certain strategic goals without crossing any “redlines” that would result in open conflict. However, this premise makes the presumption that one can know what an opponent's thresholds are. 

It is a universal truth of international relations that there is ambiguity regarding capabilities and intentions. Motives, mistakes in judgement, blunders, and miscalculations are common, and these make this presumption a risky premise. When analysing the immediate harms and comparing them against the potential benefits of the operation, the decision to use a limited-lethal attack by SOF may first appear proportional. 

The leader's assertion, however, is dubious if they neglected to take into account the chance that the strike would escalate hostilities past their proportionality estimations. Making a pre-emptive accurate calculation of the harms of a strike may be elusive for an extended period and be wholly erroneous since the attacked state has a voice over the choice to escalate the crisis. This is a well-known difficulty in consequentialist ethics – look at Iran and Israel as an example. 

The protagonist is prone to overestimate how much their intended victims are ready to tolerate aggressive conduct.[xx] A state must determine precisely, and with caution, the target's receptivity before launching a Special Forces operation, as the target state may decide that it must escalate to war at some unknowable or miscalculated tipping point.

Principles of Jus in Bello posit the notion that the use of force in war should be limited in certain ways. Just fighting in war – Jus in Bello, is judged against the moral principles of discrimination, proportionality, and necessity and describes the norms and values that guide combatants’ actions. Discrimination requires that combatants use force deliberately only against other combatants, for which the principle provides permission, and not intentionally against non-combatants, for which the principle provides a constraint. 

These principles would seem universal to all ‘Just War’ however due to the unique circumstances encountered during SOF missions, the principles of Jus in Bello are tested to the extreme. During two well publicised Special Reconnaissance missions, the first being of British SAS soldiers under the callsign Bravo Two Zero in the 1991 Gulf War, and again US Navy Seals during Operation Red Wings in the Kunar province of Afghanistan in June 2005, the risk of compromise by civilians (sometimes referred to as a ‘soft compromise’) occurred with dire results.

The law Jus in Bello has no clauses that permit the deliberate killing of non-combatants even at the risk of mission failure and significantly increased threat to Special Forces themselves. The doctrine of double effect, which outlines a certain range of situations in which non-combatants may be killed during military operations, is also not useful in this case. The purposeful use of the detrimental effect, killing the non-combatant, as a method to accomplish the positive effect, the Special Forces team's survival, in this case, rules out the doctrine of double effect incontrovertibly. 

The majority of moral theorists concur that, in some circumstances the likely results of action may be sufficiently severe that repercussions should take precedence over laws against discrimination and non-combatant immunity.[xxi] But that standard is extremely severe, and it calls for a level of confidence about possible outcomes that are often above the capabilities and calculations of a ground operator.

While the previous principle of discrimination is largely incontrovertible and appropriately so, the application of the proportionality and necessity principles may be impacted by the strategic importance of the situation. Calculations of proportionality balance the significance of the military objectives sought against the anticipated but indirect or unintended harm to non-combatants and non-military infrastructure that is projected to emerge from a military attack or operation.[xxii]

It would not be unreasonable to include strategic factors in the scale of military objectives calculations. An example to test the principle of proportionality is the Dam Buster raids on the night of 16-17 May 1943. Wing Commander Guy Gibson led the Royal Air Force's 617 Squadron on a daring bombing mission named Operation Chastise, to destroy three dams in the Ruhr Valley, one of Nazi Germany's economic heartlands, designed to wreak havoc on its industries and power facilities. 

The Mohne Dam in the Ruhr Valley of Germany ensured the water supply for the region and water from its reservoir was also used to generate hydro-electricity; it was argued that the demolition of the dams in the area would severely impair German war production.[xxiii] The immediate damage was indeed significant and numerous factories were destroyed, with steel, coal, and armament production levels greatly diminished and a massive loss of hydroelectric output. 

However, it has been suggested this impact wasn’t enough to justify the deaths of the airmen or the mass deaths of civilians in the region. Initial thoughts of the mission do not elicit images of cities on fire, civilians cowering in terror, or soldiers being cut down by machine guns; however, of the 133 aircrew that took part, 53 men were killed and three became prisoners of war. 

The Dam Busters raid was not victimless. An estimated 1,600 civilians and prisoners of war, including female slave labourers from Poland, Russia, and Ukraine drowned in the flooding. It's vital to understand that while proportionality factors may justify a higher level of risk in causing anticipated but unintended injury, or what is known as collateral damage, they do not support direct, deliberate harm against non-combatants. 

Necessity requires that combatants only exercise their permission to kill enemy combatants when it is necessary to do so – that is, when doing so will achieve a sufficiently important military objective. A use of force is necessary, if and only if, that use of force is the least harmful means of averting the harm being threatened, with the calculation being made by evidence available to the decision maker.[xxiv]

Military necessity justifications alone are insufficient to excuse the killing of hostages or the execution of those whose protection is only inconvenient.[xxv] Certain severe behaviours may be justified by necessity under exceptional situations; however, there is a distinction between a situation developing unexpectedly, and deciding not to prepare for potential scenario outcomes. The ethical issue does not just go away if one chooses in advance to forgo having the resources necessary to behave ethically. A decision to take action or an intentional act of omission that makes it necessary, are much less acceptable justifications for risking necessity than an actual, unforeseen need for self-defence. Extraordinary military necessity cannot supersede indissoluble rules such as at no time purposely harming non-combatants; it can never obligate us to do other than what is already lawful.

‘Good ethical decisions’ is a subjective description of our actions applied by people outside the situation, and any model of ethical decision-making must consider the aspects present in operational and non-operational situations. Experts consider that ethical decision-making practice is like any other form of training and there is a need to continually practice and align morals to ensure decisions are considered ethical. 

To employ SOF well, political and military leaders need an explicit set of moral guidelines, as do the individual operators whose duties involve not only an unusually high risk of physical harm but also moral injury. SO are not ‘special’ in an applied ethical sense; in fact, ethical decision-making proficiency is of greater importance. Due to this, knowing the risks to ethical decision-making is essential at all military and civil leadership levels seeking to employ SOF, and within the SOF themselves. 

There are two main types of individual ethical risk factors in ethical decision-making: cognitive risk factors and social risk factors. Cognitive risk factors include combat exposure, stress including time pressure and cognitive load, surprise, visceral states i.e. heightened emotions, environmental cues such as fear, fatigue, adolescence, and brain injury.[xxvi] 

Unconscious bias also plays a part. Everyone has unconscious prejudices towards other social and identity groups, and these prejudices are brought on by a propensity to categorise social environments. Heightened dangers in a warzone – especially in ambiguous settings where SOF operate – enhance the cognitive risks. The contemporary trend of governments and senior military leadership for the sustained use of Special Forces to conduct what may largely be conventional operations, means a limited pool of special forces personnel are required to deploy on multiple rotations, with little respite between deployments, reinforcing these biases and leading to fatigue.[xxvii] 

Fatigue has a profound impact on team interactions at the operational level. It not only affects individual cognition, but can also impede soldiers from recognising their teammates' severe signs of fatigue. Remote sensing and night vision technology are increasingly supporting continuous operations, with SOF also subject to information and sensory overload, repeated combat exposure, and stress: all cognitive risks to ethical decision-making. Remotely piloted vehicles – both air and ground – also create a detachment from the very real act of killing other people, and repeated exposure to this has seen killing become routine to SOF; this environment creates a lack of empathy for the humans targeted by Special Operations, a moral numbing.[xxviii][xxix]

Social risk factors all tie back to our deeply social nature, they can encourage us to act morally, but also increase our chance of engaging in unethical behaviour. ‘In and Out’ groups or us/’them-ing’, which can result in problems like unethical in-group loyalty and unethical deference to authoritative individuals, is a major influence. Destructive leadership entails the negative consequences that result from a confluence of a ‘toxic triangle’ of destructive leaders, susceptible followers, and conducive environments.[xxx] 

Any form of leadership emerges through the interaction of a person's drive and leadership skills, their followers' need for guidance and control, and situations that demand leadership. This point of view is in line with a systems viewpoint emphasising the interaction of leaders, followers, and circumstances rather than just individual leaders' traits.[xxxi] Other exacerbating factors in this category include the effects of adolescence; testosterone; anonymity; ambiguous orders; animalistic dehumanisation; cues such as hierarchy, race, and gender; and moral credentialing. 

When categorising social risks to ethical decision-making, the primary point is that destructive leadership is a function of elements in three domains – leader, followers, and environment – creating a ‘toxic triangle’ of catalysing issues. Therefore it is the obligation and duty of care of leadership in government and military at strategic, operational, and tactical levels who hold an absolute wider organisational accountability, for creating a system that makes these failures possible, or mitigating them, within their SOF, or any professional, ethical, and effective arm of government power.[xxxii]

SO raids, recoveries, reconnaissance missions, and affiliations with rebels are only a few of the numerous options at the disposal of warfighting commanders and government leaders in the context of employment of SOF. Although conducting SO during a conflict may occasionally test, to the extreme, moral and legal standards, this essay argues that government and military leaders, field commanders, and the special operators they direct are morally restricted by the same Jus in Bello principles that guide regular military operations. 

The overuse of SF has led to a moral risk to the SOF in place of the political risk to the government and physical risk to the conventional forces it sought to mitigate. The long-term moral ramifications for the force are catastrophic if SO continue to be the go-to first choice for a state's national security policy. This essay contends that nations that decide to use their special operators in perpetual conflicts where conventional forces are the more suitable force, run the danger of morally numbing these extraordinary soldiers, causing injury that may be fatal, and inadvertently raising total overall government and political risk, see the Brereton Report. 

After decades at war, the West is starting to realise that the danger of morally harming the soldiers assigned to fight in those conflicts is part of the price of perpetual war. These expenses are probably going to be borne disproportionately by SOF. We must shine light on the shadows, and embed the awareness that to employ SOF well, political and military leaders need to be cognisant of the existing ethical and moral guidelines, as do the individual operators whose duties involve not only an unusually high risk of physical harm but also moral injury. 

SO are not ‘special’ in an applied ethical sense. In fact, ethics is of greater importance, from government decisions to tactical actions. When governments task SOF with complex, hazardous, and politically sensitive operations, they demand that they return successful. States should also insist that their SOF return home as whole human beings. They need to equip their special operators with an enhanced moral playbook to match their enhanced capabilities, but not a ‘special’ one. 

In short, government and military leaders must attend to the shortfall that Walzer recognized nearly a decade ago. Only when more conventional troops are incapable of acting or have already failed, should SOF be used. We should maintain the potential of adhering to either the rules of peace or the rules of war for as long as we can since we are quite certain of what these rules are.

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End Notes