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

I provide these examples to illustrate the depth of American talent for law of war implementation. I also offer it as a caveat: What the United States has been able to accomplish cannot necessarily be suggested as the standard for all nations, as none have the depth and breadth of the United States military. (17) My counterparts in other nations are extremely capable lawyers. But in many cases they work in one-or two-person offices with a broad range of responsibilities. Many would like to spend more time on the law of war, including law of war training, but must balance their interest in implementation with competing demands. Some governments have no active duty judge advocates and in others no one has the assigned responsibility for national implementation of the country's international law of war obligations, including the law of war.

This caveat warrants two counterpoints. First, as previously noted, law of war training is (or should be) a command responsibility. Judge advocates have assumed a large portion of this responsibility because of their philosophy of support to the commander. Second, effective law of war training can occur in any nation if the leadership insists on it. The problem in most nations is not a lack of lawyers, but an indifference about implementing its treaty obligations. If the senior leadership places emphasis on adherence to the law of war and training, a program can evolve.

In discussing law of war training today, a brief point of reference is necessary regarding the top level of the American program. As negotiation of what became the 1977 Additional Protocols I and II began, (18) there was established within the Pentagon the Department of Defense (DOD) Law of War Working Group. Its membership consisted of representatives of the DoD general counsel and the offices of the judge advocate generals of the three military departments (Army, Navy, and Air Force), all of whom had served at one time or another on the United States delegation to the diplomatic conference. These men were responsible for drafting the DoD law of war program directive, as well as the DoD directive requiring the legal review of all new weapons, each previously mentioned. The DoD law of war working group continued to function after the diplomatic conference, and is formally recognized in the current DoD law of war program directive. (19) Their efforts include frequent, often daily, discussions and coordination of draft law of war memoranda with their counterparts in the Office of the Legal Adviser, Department of State; Office of Legal Counsel, Department of Justice; the National Security Council; and, when appropriate, other United States government agencies. They continue to serve as members of United States delegations to law of war negotiations, conferences, and meetings of experts. They do the day-to-day work to carry out United States law of war responsibilities at the national level.

Law of War Training in the United States Military

Law of war training in the United States military is a service responsibility, using the standard previously indicated--that is, training commensurate with each person's duties and responsibilities. In carrying out the training obligation, each military service developed its own law of war training program, consistent with its mission(s) and responsibilities. For example, the Navy established formal levels of individual training, with level one the minimum level of understanding for all members of the United States Navy and Naval Reserve and level two the minimum level of understanding for members whose military specialty or assignment involves participation in combat operations, or whose military specialty or level of rank requires additional training. Examples of the former include naval aviators and bombardier-navigators assigned to fleet units, special warfare personnel, personnel connected with target selection and evaluation, and other combat personnel. The latter includes chaplains and medical personnel, and officers and senior petty officers participating in formal professional military education programs.