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Ethics & International Affairs
Annual Journal of the
Carnegie Council on Ethics and International Affairs
The Laws of War: A Military View
William L. Nash
I served as a lieutenant in Vietnam. In June 1969, after being in the country for about ten days, I saw my first combat action and it was typically confusing. My platoon was on a reconnaissance mission as part of a larger force when some members of the unit saw a few Vietcong soldiers and began to pursue them through the jungle and marshland countryside. The enemy soldiers were quickly cornered, one was captured, and at least two more cowered in a streambed about 100 yards away. In circumstances I do not fully understand to this day, there was gunfire, many vehicles raced back and forth, and the two radios I was required to monitor broadcast a confusion of chatter. Suddenly, on the higher command radio, I heard the voice of our colonel: "Stop shooting; that's murder," he ordered. The soldiers did stop shooting, the prisoners were secured, and we continued our mission. But that single, short order had great impact on me. It taught me more than any schoolhouse instruction ever could have about the laws of war and how professional soldiers behave in combat.
The war on terror that resulted from the horrific attacks of September 11 has many facets. In addition to the obvious military and homeland security issues, the intelligence, police, judicial, and financial aspects mean there are many "rules" to be observed. It is not a simple process to analyze these considerations. War under any conditions is a gruesome endeavor. But, from the military perspective, the rules of concern are the laws of war as provided by the Hague Convention of 1907, the Four Geneva Conventions of 1949, and the 1977 Protocols to those Geneva Conventions. While there are many other treaties concerning armed conflict, these Big Three provide the majority of regulations. The United States has not ratified the 1977 Protocols, but recognizes the majority of the provisions as "customary international law." The treaties taken together provide a framework by which international armed conflict is to be conducted. Therefore, when U.S. military forces engage in combat, these laws apply. These regulations as a whole address the methods and means of warfare on the one hand, and the establishment of protections for the victims of war on the other. Methods and means include the tactics, weapons, and targeting decisions in war. Primary concerns are the nature of military objectives, the elimination of unnecessary suffering, discrimination between combatants and noncombatants, and issues of proportionality. Protect-and-respect issues include the treatment of civilians, prisoners of war, and the sick and wounded, and the requirements concerning the responsibility of an occupying force.
The principles of the laws of war reflect the driving motivations behind the laws' creation. According to the concepts of military necessity, certain targets are prohibited. The principle governing military objectives stresses that only those persons, places, or objects that make an effective contribution to a military action may be targeted. All combatants must also minimize unnecessary suffering, which is seen as the incidental injury to people and collateral damage to property sustained during a conflict. A crux of these principles lies in the concept of proportionality, which dictates that the loss of life and property incidental to a military attack must not be excessive in relation to the concrete and direct military advantage expected to be gained.
The laws of war are not an abstract concept, or limited to customary and conventional laws, but a reality enforced at the highest levels of the U.S. government. A Department of Defense directive signed by the deputy secretary of defense in 1998 mandates that law-of-war obligations are to be observed and enforced; that all violations of the law of war are to be promptly reported, whether committed by or against U.S. forces; and that all components of the military services are to establish an "effective program to prevent violations of the law of war." The directive assigns specific responsibilities within the Defense Department and establishes a formal Law of War Working Group, the purpose of which is to "develop and coordinate law of war initiatives and issues, manage law of war matters . . . and provide advice to the General Counsel on legal matters covered by this Directive." 1
In his implementing instructions to the Defense Department directive, the chairman of the Joint Chiefs of Staff provides specific guidance to his staff and combatant commanders to fulfill the necessary requirements. 2 An example of staff responsibilities is the order to the director of operations to ensure that all plans and rules of engagement are reviewed for compliance with the law of war as defined by the directive. Even more important, the chairman of the Joint Chiefs of Staff directs his commanders to establish training and exercise programs to "improve evaluation, response and reporting procedures" and to ensure that the command's legal adviser reviews plans, orders and rules of engagement for the conduct of combat operations. 3
The United States Army promulgates its doctrine regarding the law of war in Field Manual 27-10, The Law of Land Warfare</SPAN!. The manual applies the internationally recognized law of land warfare for the actualities of military conduct, providing "authoritative guidance to military personnel on the customary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral States." It reiterates the belief that the law of land warfare is "inspired by the desire to diminish the evils of war" by protecting "both combatants and non- combatants from unnecessary suffering . . . safeguarding certain fundamental rights of those who fall into the hands of the enemy, particularly prisoners-of-war, the wounded and sick and civilians . . . and facilitating the restoration of peace." 4
The field manual specifically speaksto the "prohibitory effect" of the law of war, limiting the exercise of a belligerent's power from transgressing in those three fundamental areas. With regard to the principles of humanity and chivalry, the law also requires that belligerents refrain from any kind or degree of violence unnecessary for explicit military purposes. Furthermore, the prohibitory effect of the law of war is not superceded by actions borne out of "military necessity," that is, those actions deemed necessary by a state in order to subdue an enemy as quickly as possible. The manual adds that the ideal of military necessity has been "generally rejected as a defense for actions forbidden by the customary and conventional laws of war" inasmuch as those laws have been framed with specific consideration for the concept of military necessity. The manual also emphasizes that the law of war is applicable not only to states, but also to individuals and, in particular, the members of armed forces. 5
The best way to illustrate how the United States Army approaches training soldiers on their obligations in complying with the law of war is to list "The Soldier's Rules," taught to all new soldiers in their initial entry training:
Soldiers fight only enemy combatants.
Soldiers do not harm enemies who surrender. Disarm them and turn them over to your superior.
Soldiers do not kill or torture enemy prisoners of war.
Soldiers collect and care for the wounded, whether friend or foe.
Soldiers do not attack medical personnel, facilities, or equipment.
Soldiers destroy no more than the mission requires.
Soldiers treat all civilians humanely.
Soldiers do not steal. Soldiers respect private property and possessions.
Soldiers should do their best to prevent violations of the law of war.
Soldiers report all violations of the law of war to their superior. 6
I served as a colonel in Operation Desert Storm. On the morning of February 28, 1991, I awoke at 6:30 a.m. after about three hours' sleep. We had seized our final objectives four hours earlier, and most of the soldiers had had very little sleep for the previous hundred hours. With the day's first cup of coffee, I got out of my armored command vehicle to survey the scene of my tactical command post and to clean up before the very busy workday sure to come. One of the first things I noticed was a concertina wire enclosure approximately twenty-five yards across with forty to fifty Iraqi prisoners of war inside. Two soldiers guarded the prisoners. The Iraqis were sitting on the desert floor in groups of three or four; it was clear that they were tired, cold, and hungry. But before I could act, I saw four American soldiers going toward the prisoners' enclosure with their arms full of blankets and food rations. No orders had been issued; training had taught the soldiersto do the right thing: the right thing according to the laws of armed conflict.
Notes
Note 1: Department of Defense Directive 5100.77, DoD Law of War Program, December 9, 1998. Back
Note 2: One combatant commander is the commander of Central Command, the organization fighting the war in Afghanistan. Back
Note 3: CJCJSI 5810.01A, Implementation of the DOD Law of War Program, August 27, 1999. Back
Note 4: U.S. Army Field Manual 27-10, The Law of Land Warfare, July 15, 1976. Back
Note 5: Ibid. Back
Note 6: Paragraph 14-3, Army Regulation 340-41, Training in Units, March 19, 1993. Guidance with respect to how to teach these rules requires instructors to "stress their military and moral importance." Back