Critical Evaluation of the Ethics of Using Deception in Special Operations Missions

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This essay will present a critical evaluation of the ethics of using deception in special Operations Missions. Deception has played a fundamental role in Special Operations since its early inception due to the force multiplication, far-reaching effects, and proven success. While the effectiveness of deception in Special Operations Forces operations is tried and tested, the ethical considerations remain relatively underdeveloped. The ethical considerations discussed in this paper will focus on the approaches to ethics, including principals-based and consequences-based, and the relevant challenges applicable to deception.

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For the purpose of this evaluation the generic concept of deception is defined as “causing another to believe what is not true; to mislead or ensnare”. Following this, the definition of Military Deception is based on US military doctrine, specifically Joint Publication 3-13.4, which defines deception as actions executed to deliberately mislead adversary military, paramilitary, or violent extremist organization decision-makers, thereby causing the adversary to take specific actions (or inactions) that will contribute to the accomplishment of the friendly mission. Although this definition is limited as it does not include non-combatants in its scope, which is prevalent in information operations, the use of deception against non-combatants will remain outside the scope of this essay. Several military and scholarly articles reference the alignment of both deception and denial, in addition, to covering and camouflaging, however, these will also be excluded in this evaluation.

Deception within military operations is accepted within the military doctrine and foundational strategic literature as fundamental. In a military sense, deception is still commonly used in modern warfare in addition to historical examples. A historical example is OPERATION GRIEF, utilized in World War 2. OPERATION GRIEF saw German commandos employ deceptive tactics to infiltrate US lines. A modern example is the assassination of Osama bin Laden in 2011 which reportedly involved US special operation forces using deceit to confuse and differentiate adversary elements. From a scholarly perspective, Sun Tzu highlighted the significance of deception through the state in the art of war that “all war is based on deception”. This is furthered by Carl Clausewitz who referred to the secrecy of plans as a form of deceit and something that is common throughout the history of warfare.

This evaluation considers the core ethical challenges of deception do not change between conventional and special operation forces missions. However, special operation forces elements are more likely to employ deception, particularly in a standalone tactical environment, as opposed to conventional forces that may be utilized in a larger holistic operational or strategic level deception plan. In addition to this differentiation, special operation forces are suited to deception operations based on specialized methods of insertion, linguistic capabilities, specialized equipment, and highly developed combat skills. This alignment enables special operation forces units to embrace deception operations into their everyday training and operating model. Additionally, as masters of irregular warfare, deception operations are a natural fit for special operation forces elements.

Depending on the approach to ethical frameworks, being principals based or utilitarianism, the ethical challenges will vary. The primary difference is a rule-based order, being agreed upon values or principles, as opposed to which decision is the best for most people. In evaluating the use of deception, both approaches will be discussed.

Regarding the principal-based approach, the current ‘accepted terms’ which best relate to deception by special operation forces is the Rules of Armed Conflict, the Geneva Convention. Therefore, this will be utilized to evaluate the ethics of deception for special operation forces operations. The most relevant aspect of this convention is the prohibition of “Perfidious acts” in accordance with the 1977 Protocol I Additional to the Geneva Conventions 12 August 1949. Additional Protocol I states that “Killing, injuring or capturing an adversary by resort to perfidy is prohibited”. Perfidy in this context is defined as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence”. The prohibition of perfidy inexplicitly excludes certain types of deception of operations, such as special operation forces utilizing aid workers’ uniforms and associated protections to infiltrate an adversary’s lines and inflict harm. However, this definition only precludes acts that are betraying the protections or obligations in accordance with International Law and do not regulate acts that betray general trust outside these guidelines.

In these instances, the Ruse of War is evoked and is outlined in Article 37(2) of the 1977 Additional Protocol I:

Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations, and misinformation.

This is then reverberated through state laws, as seen in the Australian Law of Armed Conflict Manual 2006 which states the Ruse of war and the employment of measures necessary for obtaining information about the enemy and the enemy country are permissible. The ruse of war is used to obtain an advantage by misleading the enemy. They are permissible provided they are free from any suspicion of treachery or perfidy. Legitimate ruses include surprises, ambushes, camouflage, decoys, mock operations, and misinformation. Psychological operations are also permitted.

These principles have been upheld in historical cases, such as OPERATION GREIF. This case study highlights the legality, but also the ethical considerations with regards to the liability of deception operations under a principal-based ethical framework. OPERATION GRIEF was a German Operation conducted during the Ardennes Offensive of 1944, which used the guise of US military personnel by employing US uniforms, vehicles, and equipment. The purpose of the operation was for kinetic action in the form of demolition teams, reconnaissance, and confusion within allied lines. The result of OPERATION GRIEF, although reported unintended, was the suspicions within the US forces that the Germans were planning on capturing General D Eisenhower through German soldiers employing the same deception ploys. As such, mistrust ran rife, resulting in legitimate personnel being detained and even killed based on suspicion of being German infiltrators.

The pursuant trial of ten German Military personnel involved in the development and coordination of OPERATION GRIEF was held in Aug 1947, with all members being acquitted in Sep 1947. While the trial focussed on several aspects of OPERATION GRIEF, the use of deception through using US uniforms and equipment was found to fit within the bounds of the Ruse of War. Therefore, it meets the legal aspects of the time, but also that it fell within the principal-based ethical framework and is deemed ethical.

Under principal-based ethical frameworks, deception is considered an acceptable action ensuring that it meets the requirements the most relevant rule under the Geneva Convention relating to deception operations, being Protocol I Additional. Furthermore, any action of conflict must also meet the other key elements of just war, including the principles of discrimination, necessity, and proportionality to meet the ethical standards of principal-based ethics and the agreed terms of the Geneva convention.

In comparison to the Principal-based ethics, utilitarianism or consequences-based ethics presents a more complicated approach to Deception used by special operation forces. This concept was even raised during the trial of the German Command following Operation Greif, with LTCOL Donald McLure stating that “in the second world war there were no days of chivalry”, implying that, while the charges were acquitted under the legal system and a rules-based ethical framework, the actions were still unethical under a different lens. This approach must take into account the impacts of a deception mission, which has a significantly broader scope than rules-based ethical frameworks. These impacts are very difficult to assess or determine prior to a mission, and therefore determining if a special operation forces mission utilizing deception under a utilitarianism model is ethical would likely have to occur after the mission. Additionally, this introduces the notion of intent in assessing the ethics of a consequence. The deliberate and inadvertent effects of mission planning are then brought into the evaluation of ethical action. This is furthered through how far the liability for these effects or consequences runs, in terms of immediate or first-order effects compared to an inadvertent third-order effect. To better understand these ethical challenges of a utilitarianism approach to deception operations by special operation forces a scenario will be discussed.

The key themes of OPERATION GRIEF will be used to explore the ethical challenges of a utilitarianism approach to a deception operation. If a special operation forces element used an adversary’s uniform to enter a previously inaccessible facility for the purpose of Intelligence, Surveillance, and Reconnaissance collection. In the instance said collection resulted in an avoiding an ambush attempt, this would most likely be deemed as an ethical deception mission by special operation forces noting the avoidance of harm and mitigation to risk. However, if the adversary identified the deception and then employed the same tactics but used the infiltration to engage the opposing force. In this case, the consequence of the initial deception mission resulted in self-propagation of deceitful tactics and an increase in threat to own force and would therefore be deemed unethical. This scenario intends to highlight the challenge of intent in evaluating the ethics of a deception mission by special operation forces. It is unlikely the special operation forces element intended or anticipated the response of the adversary against their own forces and therefore should not be held ethically accountable for the escalation. However, noting that the reprisal was only directed at personnel classified as combatants, certain utilitarian perspectives would find the entire scenario remains ethical as they are liable to harm.

Alternatively, if the initial deception was identified by the adversary and as a result a suspicious eye is then cast on all personnel within the facility, including non-combatants, leading to a death of a non-combatant as a result of mistrust. In this scenario is the special operation forces who conducted the initial deception ethically liable for the unethical and illegal acts of the adversary? Under a consequences-based framework, it is probable they would be. This scenario highlights the issue of the range of liability of a deception operation, as this is not a first-order or direct result impact of the special operation forces mission as it did not occur as an immediate reaction to their presence during the mission, but more likely a 2nd or 3rd effect following the initial deception. Further to this, special operation forces cannot be reasonably held accountable for the actions of an adversary’s ethical decisions.

Evaluating the ethics of a special operations mission involving deception using a consequence-based ethical framework is complicated in fact the consequences will not be known until after the mission or action has concluded. In most cases, this would not be immediately known upon return of a special forces element after a mission but may even take days months or years to be fully realized. To further complicate this approach deception operations by special forces, by their very nature, rely on subtlety and the varied impacts it will have on individuals and forces. Therefore, it is impossible to pre-empt the outcomes of a deception operation regardless of how much information is gathered on the intended target. Even if all the consequences were able to be known the weight given to the benefits and losses is subjective to the individual and force. These challenges, in addition to the unique nature of deception, make this ethical model unrealistic in achieving an objective determination of ethical practice.

In evaluating the ethics of special operations missions using deception both the consequences in principle-based approaches have been discussed in addition to highlighting the relevant issues with both. The benefits of a principle-based approach are the broadly agreed principles laid out in international law which are a reflection of the communities’ values and therefore inform ethical practice. This enables a clear and well-defined left and right of arc in determining if deception is an ethical practice. In this instance, this is outlined in the Geneva convention and has historical instances that have been tried and tested. The problem with this principle-based approach is that it lacks depth in assessing the broader ramifications of a deception mission by special forces and also is not as adaptive to changes in the communities’ values and subsequent ethical principles. The rigidity which makes rules-based ethical frameworks positive it’s also an undermining factor when seeking a holistic approach to a decision or action in determining if it is ethical. Concavely, with the consequence-based approach, the broad left and right of the arc enable a more in-depth discussion as to what constitutes an ethical decision or action due to its wide scope. However, this wide scope also tracks from the ability to clearly define what is the liability or responsibility of a special operations force utilizing a deceptive mission. Further to the subjectivity of the consequence-based ethical approach suggests that it is impossible to determine if deception missions best on their subtle and far-reaching nature are deemed ethically sound.

The result of this evaluation is an imperfect approach in determining what classifies as an ethical approach to deception by special operation elements. The very notion of deception highlights ideas of mistrust and self-perpetuating deceit, however, as history shows deception is an effective tool when employed by trained special forces operatives. The intent of these missions in the strategic sense is to ultimately win by defeating an adversary in the interest of ceasing hostilities. Therefore, while both these approaches indicate instances where deception is unethical, this method of warfare does serve an ethical purpose. As such, with the human condition, the conflict will continue and as long as deception remains a viable option legally and can also be justified by either an ethical framework, it will continue to be used, particularly by special forces operations as experts in irregular warfare. Therefore, the best means in assessing if deception missions by special forces are ethical is through a combined framework of consequential and principle-based approaches, particularly during the planning stages and then the follow-on effects of an action.

In conclusion, deception is fundamental to warfare and in particular it is a crucial element of special forces operations missions. This is due to the unique skill sets of special forces operators and their ability to align with the requirements of a deception mission. In assessing if deception by special forces elements is ethical, both approaches need to be used to compensate for either’s shortfalls. A principles-based approach, particularly during the planning phase, would determine if the conduct and outcomes of the mission align to the globally agreed rules, best articulated in the Geneva Convention. In addition to this approach, the consequences of the mission must also be assisted from a utilitarian position to assess the risk of self-propagation, escalation in harm, and also the threat to non-combatants. In summary deception missions by special forces are able to be deemed ethical by ensuring the primary principles of both approaches are met and any harm inflicted during or as a result of a deception mission is limited to those deemed liable to harm. However, ethics of deception and broader special operation missions will continue to be a challenge based on their subjectivity and shifting global values in subsequent ethical standards of society.

References:

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24 May 2022

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