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

Several steps led to the situation that exists in the United States armed forces today. In 1974, the Department of Defense promulgated a law of war program directive. (9) This directive began a comprehensive approach to effective implementation of the law of war. The directive contained four key points. It assigned responsibilities within the Department of Defense for law of war implementation. It assigned primary responsibility for training and compliance to each unit commander. It required reporting of war crimes for timely and proper investigation and appropriate disposition. (10) Finally, it established a training requirement, mandating training for each member of the military "commensurate with his duties and responsibilities."

Implementation of the last point coincided with international discussion of law of war training. In March 1977 the International Committee of the Red Cross (ICRC), in conjunction with the Polish Red Cross, hosted a meeting in Warsaw to consider law of war dissemination. I participated in a working group at the Warsaw conference that prepared basic law of war rules for the individual soldier. The rules were consistent with the military "principle" of "KISS"--keep it simple, stupid--and also with the Department of Defense law of war program directive that each member of the military receive law of war training "commensurate with his or her duties and responsibilities" (United States Department of Defense, 1998b, para. 5.1.1). At the tactical level, the average soldier need not be overwhelmed with the details of a highly complex and esoteric subject. Shortly after the Warsaw conference, the rules were promulgated by the United States Marine Corps as part of its law of war training program (United States Marine Corps, 1983: 1-27). Subsequently the Army and Navy also adopted these rules. In their present form in the Army, they are:

1. Soldiers fight only enemy combatants.

2. Soldiers do not harm enemies who surrender. They must disarm them and turn them over to their superior.

3. Soldiers do not kill or torture prisoners.

4. Soldiers collect and care for the wounded, whether friend or foe.

5. Soldiers do not attack medical personnel, facilities or equipment.

6. Soldiers destroy no more than their mission requires.

7. Soldiers treat all civilians humanely.

8. Soldiers do not steal. Soldiers respect private property and possessions.

9. Soldiers should do their best to prevent violations of the law of war. They must report all violations of the law of war to their superior. (11)

Other than rule number nine, these requirements preceded any law of war treaty. (12) Minor editorial changes may be required for military operations other than war, such as substituting "detainee" for "prisoner of war." Rules of engagement provide guidance with respect to using deadly force against an individual who poses a threat of death or serious bodily harm to a soldier. This does not alter the first rule.

At the national level, government lawyers and their political leaders may address the applicability of some law of war treaty in part or in its entirety with respect to a particular military operation. At the tactical level, however, the basic principles stated in "The Soldier's Rules" are not treaty dependent, and are consistent with the customary law of war and human rights law.