Unlimited Liability

Soldiers and Unlimited Liability

Military members are routinely asked to perform tasks and respond to things that ordinary members of the civilian population are not expected to do. Military members are exposed to significant risk of physical and mental impairment, forced to take medications, unable to refuse medical treatment (even if they do not believe it is the most appropriate treatment), are subjected to medical experimentation (not always with full consent), and can even be required to sacrifice their life for the benefit of others.

In ordinary civilian professions there is an inalienable right to workplace safety which means that a worker has no obligation to obey a directive that he/she foresees will lead to injury or death. Ethically, we can ask what makes members of the military different from ordinary civilians, that we expect so much more of them than we do of other people in relation to what members of the military are expected to do or respond to?

As a society we do not accept that civilians can be sent to their certain death, so what makes members of the military unique, or so distinctive, that justifies us as a society allowing these things to be done to them?

According to some military theorists, the difference is that military members have distinguished themselves from the rest of society by “signing up” for this treatment, and thus by enlisting have agreed to the “unlimited liability contract” (ULC). This is an implied (i.e. not actual) contract which, despite seeming to be on the periphery of what is important in military ethics, is used by many countries as a basis for justifying how and why they treat their military service personnel differently from ordinary citizens – in that they can order members of the military to undertake certain actions that they would never be able to order an ordinary citizen to do. In other words there is no limit to the sacrifice that military personnel can legitimately be ordered to make, for the benefit of others.

The core concept of the ULC is that when members of the military ‘sign up’ for military duty they surrender certain rights due to the very nature of their military service – in that they must obey legal orders, and are placed at an increased risk of harm or death in certain situations. Therefore, members of the military are able to be placed in situations of unlimited liability – not that they are able to mete out death and destruction in an unlimited way, but that they may potentially be exposed to the risk of their own death and destruction in an unlimited way, merely because they are members of the military and have implicitly accepted their ‘unlimited liability contract’ (ULC) by becoming members of their country’s military service. This unique situation faced by members of the military is also what sets them apart from other “ordinary” citizens.

Although General Sir John Hackett (Hackett 1983) was the first to use the term ULC, he did not define it, seemingly assuming that his audience fully understood the concept without his expanding on it. The main point that Hackett made about the unlimited liability contract, is that it “sets the military apart from most other groups” (Hackett 1983), p 73) – the implication here being that members of the military are set apart from ordinary citizens, as in time of war they are legally able to be killed and to kill others.

More recently Martin Cook (Cook 2004) has briefly discussed the idea that there is an implicit contract between a Military Officer and their government, such that the members of the military shall serve on terms of unlimited liability and shall “follow lawful orders in full recognition that they may die or be severely injured in fulfilment of those orders” (Cook 2004), p. 74). Cook argues that this contract is “justified in the mind of the officer because of the moral commitment to the welfare” of their country (Cook 2004), p. 74). However, Cook’s main argument in relation to the concept of unlimited liability, drawing on the work of Hackett, is that the ULC is what separates the military from ordinary citizens, in that it is what makes the military as a profession sui generis (i.e. unique).

This view of the ULC as being “seen as the distinctive feature of the military profession vis-à-vis other professions” was raised in 2011 by Australian Major General C.W. Orme (Orme 2011), p. 24) in his review of the Australian profession of arms, and also by Stephen Coleman (Coleman 2013) who claims that the nature of the contract also helps to define “what it is to be a member of the military profession.”(Coleman 2013), pp. 270-1)

Interestingly, modern militaries are now looking at the concept of unlimited liability in relation to policy surrounding ‘military culture’ and in regard to professional development. In 2000 the British Army underwent a process of defining the moral component of military effectiveness and fighting power in the publication “Soldiering. The Military Covenant” (MOD Army, (2000). In this publication it was claimed that “all British soldiers share the legal right and duty to fight and if necessary, kill, according to their orders and an unlimited liability to give their lives in so doing. This is the unique nature of soldiering.” (Quoted by Ross McGarry in The workplace of war: unlimited liability or safety crimes?)(McGarry 2012), p. 6) This reinforces the idea that the ULC is a defining part of the profession of arms, in that soldiers have a duty, under the concept of unlimited liability, to give their lives if required, a duty which sets soldiers apart from the wider community who do not share this unlimited duty of sacrifice.

The Canadian Forces Leadership Institute similarly produced a manual in 2009 titled "Duty with Honour. The profession of arms in Canada." (Chief of Defence Staff 2009) in which they argued that “Unlimited liability is a concept derived strictly from a professional understanding of the miltary function” (p. 27), which seems to be a recurring theme in regards to the ULC. The Canadian understanding went further towards a definition by arguing that the ULC is “integral to the military ethos and lies at the heart of the military professional’s understanding of duty” (p. 27). Whilst the Candian and British manuals use the ULC as a foundation in their respective understandings of duty and service, neither manual defines what unlimited liability actually is, which seems to be a major flaw in the policy creation process.

A number of other writers have written briefly on related topics, including the distinguished Just War theorist Michael Walzer (Walzer 1977) who expressed similar ideas to Hackett and Cook when he spoke of the loss of freedom and increased responsibility which comes with enlistment in the military. Walzer asserted that when citizens become soldiers they waive certain human rights, particularly the right to life, in exchange for what he termed “soldiers’ rights” (Walzer 1977), 136-137) – that is, that soldiers are immune from prosecution for killing enemy combatants on the battlefield. Dubik (Dubik 1982) in his critique of Walzer’s work, counters that the right to life is an inherent natural right that can not be lost or exchanged, as it is not a right that “goes with the job” (Dubik 1982), p 361-362); thus Dubik claims that Walzer’s argument in regard to the right to life of military personnel is invalid. Walzer does soften his theory slightly by arguing that it is morally permissible for soldiers to be sacrificed by their commanders and to die in battle, but that it is wrong that their lives be wasted (Walzer 1977). Walzer does not claim that this is because soldiers have a moral right to life, but rather because they are assets given to their commanders, and no assets should be wasted since this is inefficient. He argues that “I don’t think it can ever be impermissible for an officer to send his soldiers into battle; that is what he is for and that is what they are for” (Walzer 1980),p 20).

Dubik does argue that something special happens when a person becomes a soldier(Dubik 1982), pp. 363-4) which increases their obligations, but he claims that despite this a soldier still retains a natural right to life and that the government retains its responsibility to ensure that this (and other) rights are protected whilst soldiers are in the service of the state. Dubik also emphasises that soldiers accept an increased risk of injury and death, and that these deaths are legitimate because soldiers are actively defending the individual right to life of each and every community member (Dubik 1982), pp. 363-364). Dubik asserts, in contrast to Walzer, that soldiers do not lose or exchange their natural right to life, but rather that soldiers have an increased obligation to protect their fellow citizens, and it is this responsibility which in turn places soldiers at an increased risk of injury and death. Finally, Dubik argues that officers “in addition to being responsible for the control of the means of death and destruction … are directly responsible to the state, and to the soldier to protect the soldier’s right to life”(Dubik 1982), p 366).

Patrick Mileham (Mileham 2010, Mileham 2011) adds a further dimension to the debate over the definition of unlimited liability, arguing that military leaders are endowed with the powers of coercion as well as arguing that Hackett knew that there were limits to the unlimited liability concept. Mileham proposed that military officers have to have fiduciary roles over those they command, and to exhibit officership, of which fiduciary trust is the central concept.

Renewed interest in the concept of the unlimited liability contract has raised further issues which have not yet been examined in depth. For example, modern understandings of individual rights and of the place of the individual in society, mean that the modern focus is primarily on individuals in society, rather than on society as a collective. Such ideas may lead one to question whether there can be such a thing as an unlimited liability contract, given that such a contract focuses on what an individual soldier must sacrifice for society as a whole, rather than on protecting individuals (including soldiers) from harm.

It could also be suggested that the ULC is only relevant in cases where the state faces an existential threat, that is a threat to the very existence of the state. Thus is may be thought that the ULC might have been important during the cold war period, with its threat of nuclear destruction, but is not relevant today. However western politicians continually assert that terrorism is an existential threat, and that we are at a “war on terror”, which justifies many world wide military operations and curbing of freedoms at home. It could therefore be argued that the ULC is still relevant due to the threat of terrorism in the modern context.

All of the writings on the ULC to date have been rather limited in nature and have had no cohesive in-depth analysis, focusing either on the concept of unlimited liability as the defining feature of the profession of arms, or on unlimited liability

as the surrendering of rights. Since no one has examined both these arms of the ULC together, the current definition of the ULC is both dualistic and rather vague. When military institutions use the term as a basis for their doctrine and policy documents, the vague definition of the “unlimited liability contract” becomes particularly problematic. The ULC has yet to be proven as a coherent ethical principle, partly because of a lack of definition and partly due to a lack of deeper analysis. Ultimately the concept of the unlimited liability concept leaves one with a bitter taste in the mouth, with images of soldiers of earlier eras as cannon fodder, because of the implication that their lives are ultimately worthless.

Chief of Defence Staff, C. D. A. (2009). "Duty with Honour. The profession of arms in Canada.". from www.cda-acd.forces.gc.ca/cfli-ilfc.

Coleman, S. (2013). Military ethics : an introduction with case studies. New York, Oxford University Press.

Cook, M. L. (2004). The moral warrior : ethics and service in the U.S. military. Albany, NY, State University of New York Press.

Doctrine, D. G. D. a. (2000). Soldiering. The Military Covenant. Army Doctrine Publication M. o. D. (Army). London. 5.

Dubik, J. (1982). "Human Rights, Command Responsibility, and Walzer's Just War Theory." Philosophy & Public Affairs 11: 4 (Autumn 1982).

Hackett, J. W. (1983). The profession of arms. New York, Macmillan.

McGarry, R. (2012). "The Workplace of War: unlimited liability or safety crimes?" Criminal Justice Matters 89(1): 6-7.

Mileham, P. (2010). "Unlimited Liability and the Military Covenant." Journal of Military Ethics 9(1): 23-40.

Mileham, P. (2011). Risk, Liability and Fiduciary Relationships in the Profession of Arms. Forth Leavenworth Ethics Symposium - Applying the Professional Military Ethic across the spectrum of operations. M. H. W. a. C. M. L. Dabeck. Fort Leavenworth, Kansas, USA, Command and General Staff College Press: 145-158.

Orme, M. G. C. W. (2011). Beyond Compliance : Professionalism, trust and capability in the Australian profession of arms. Report of the ADF Personal Conduct review. Canberra.

Walzer (1980). The proceedings of the War and Morality Symposium. War and Morality Symposium, United States Military Academy, West Point, NY, USA, USMA.

Walzer, M. (1977). Just and unjust wars : a moral argument with historical illustrations. New York, Basic Books.

Article by Nikki Coleman
Added Mon, 14 Oct 2013 07:36

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