The United States military and the law of war: inculcating an ethos - International Justice, War Crimes, and Terrorism: The U.S. Record

Social Research, Winter, 2002 by W. Hays Parks

MARTIN Peretz observed in his introduction to this section that the law of war sets forth goals for established militaries in established nations. I agree, but would substitute standards for goals, preferring the former because it should be something expected of a military rather than something one hopes might be achieved. The recent record of the United States military has been a good one in this respect. But the road traveled has not always been smooth and without problems.

How a military performs in battle is not dependent solely upon law of war training. As I will explain, it is dependent upon an ethos, of which law of war training is an important part. My comments will look at the issue from this larger viewpoint. (1)

   The United States defines law of war as:

   That part of international law that regulates the conduct of
   armed hostilities. Also called the law of armed conflict
   (United States Department of Defense, 1998a: 257).

Given the near universality of the 1949 Geneva Conventions--188 of 192 nations are parties to the conventions--the dissemination obligation can be said to be universal. My informal assessment through the years suggests that this obligation is honored by other governments more in its neglect than its observance.

This brings me to one of my points. Effective implementation of the law of war requires more than a manual and dissemination. It requires an ethos within the military. There must be appropriate internal regulations and/or doctrine for a variety of issues, such as for the care, handling, processing and housing of enemy prisoners of war. Law of war training is but one facet of an integrated program to implement a government's international law obligations. This includes, for example, compliance with arms control agreements; the conduct of weapons reviews to ensure that weapons, weapons systems, and ammunition comply with law of war and arms control agreements; (2) and other day-to-day compliance measures, in peace and war. Adherence to the law of war in operations across the conflict spectrum--a point to which I shall return in a moment--will be in proportion to the degree a military operates in peacetime in adherence to the rule of law.

Next, a bit of clarification why "law of war training" is necessary. There is law of war training as such, as when military personnel are seated in a classroom to receive a lecture on the law of war, or some facet thereof. Other training may cover law of war topics, or address law of war obligations, without necessarily referring to the law of war. An example is teaching a soldier how to handle an enemy prisoner of war (EPW). Once the prisoner of war has reached an EPW collection point, or a theater EPW camp, military police personnel working in each will go about their assigned duties to process and care for the prisoner of war. In all likelihood each soldier handling an EPW will have received training relative to his or her assigned duties. But the training of each will not necessarily be listed or categorized as "law of war training," since it is based on doctrine or regulations. Similarly, military medical personnel are trained to treat battlefield wounded and sick solely on the basis of medical priority. This training may be done without acknowledgment that it is a treaty requirement. (3) The same may be said for training provided to combat engineers in laying minefields. The doctrine will have been reviewed for compliance with treaty requirements, and the mines employed will have been reviewed in compliance with the country's treaty obligations. The combat engineer will employ lawful mines in a manner consistent with his or her doctrine. It is unlikely this will be classified as law of war training.

If I may borrow from my personal experience. I received extensive training on counterinsurgency operations prior to my deployment to Vietnam in 1968. In 1964 I attended a two-week counterinsurgency course. In 1966 I was a student at the Basic School for Marine Corps lieutenants. Prior to departing for Vietnam, I went through mandatory counterinsurgency training within the Second Marine Division at Camp Lejeune, North Carolina. In each location, considerable time was devoted to how to conduct a cordon-and-search operation of a village, including a "country fair," a civic action activity (including dental and health care and feeding) for village citizens while their village was searched for guerrillas or their supplies. Respect for the individual and his or her property was stressed in this block of instruction and in every other aspect of each course. I do not recall hearing that this respect was based on the law of war. It was, of course, but it received emphasis because it was the right thing to do, both morally and operationally, and the way the Marine Corps expected us to conduct ourselves.

Other training assists in law of war implementation without being law of war training. Leadership and discipline are essential to an effective military. Our experience in Vietnam and Desert Storm confirmed that well-trained soldiers and units led by effective leaders do not have, or are less likely to have, problems adhering to the law of war. Military commanders of all ranks who have attended law of war classes I have taught have said that law of war obligations are consistent with good leadership. It also identifies the positive approach we have taken teaching the law of war in the United States over the past quarter century, a point to which I shall return. But adherence to the law of war entails more than law of war training. It requires quality personnel, discipline, and unit cohesiveness in combat. As I noted in an article I wrote in 1976 commenting on United States violations of the law of war in Vietnam, "It was the teams, not the mobs, which best accomplished their mission" in a manner consistent with the law of war, and "it was the mobs, not the teams, which tended to suffer from serious incidents of misconduct" (Parks, 1976: 34). This remains true today. With the exception of a rogue leader bent on doing "whatever it takes" to win, such as a Saddam Hussein, Slobodan Milosevic, or Osama Bin Laden, the war crimes being committed today are the result of poor leadership of poorly trained, ill-disciplined troops. (4) In contrast, a unit led by a commander who has made it clear that he will not tolerate violations of the law of war generally will not suffer such violations.