Laws of war and the new century

[minmax]

Well just like the young lady last year asking me about the morality of playing wargames another young brain has posed another interesting question.

In my military history classes I taught the students about the rules of war and how they were codified in the Laws of War and also talked about the Geneva Convention.

Here is the question, since the fundamental nature of warfare has dramatically changed (Conventional Wars 20th Century, Cold War, and now regional hotspots with the UN and NATO playing the Cop on a beat) should the Laws of War be scrapped and a new set be created?

Second question, Isn't it insane to impose laws on the conduct of war (violence) when the goal is to win?

I will post what I think later but I am interested in what a number of you think.

"Death is life's way of saying, 'hey slow down'."

Bull- Night Court.

[Jeff Gilbert]

Interesting questions. [climbing off my lurker perch] If you will all indulge me, I will address them seperately and site some historical references at the end ... this will probably drag on ... sorry

Q1: since the fundamental nature of warfare has dramatically changed ... should the Laws of War be scrapped and a new set be created?

Response to Q1: In a word, NO. One of the things that seperates us from the "Bad Guys" is our adhearance to the rule of law. Yes, I will agree that this makes our tasks much harder however, I don't think any of us would countance the idea of the idea or practice of engaging in what is now codified as a "War Crime" just because our enemies may practice such injustices.

Q2: Isn't it insane to impose laws on the conduct of war (violence) when the goal is to win?

[very thought provoking question from a youngen]

Response to Q2: No, not insane but actually very practical. By restricting the conduct of warfare helps preserve the cultures involved in said conflict. A lot of the Laws of Land Warfare deal with the preservation of historical and religious sites and items, protection of civilians by codifying non-combatant status and rules for the treatment of captured enemy soldiers.

I don't find these insane, quite rational when you look at what their design is about. These rules and laws did not just spring into being but were developed slowly over more than 2,000 years beginning back with the Roman orator Cicero then through St. Augustine [4th Century], St Thomas Aquinas [13th Century], Grotius [16th Century], and finally Daniel Webster [19th Century]. I realize there are many others but these were the prime movers in actually putting their thoughts into writing for presentation.

Okay, that should about do it for now. I actually sat down and prepared a 3 page paper on this ... way too much to post here ... way too much time on my hands ...

Thanks for indulging me.

[Coyote]

IMHO, Law has historically lagged behind other societal advances and behind technological advances most of all. The current debate on Iraq is an excellent case in point. Western democracies have traditionally been loathe to strike first, on the principle that any amount of negotiation is always better than any amount of combat. But weapons of mass destruction in the hands of unstable leaders turn the equation on upside-down. The first hint a nation may get of danger is a mushroom cloud, smothering one of its cities. To make matters more complicated, the common people of a "rogue" nation may have no say in the selection of the leadership or the conduct of the nation's foreign policy. Yet they are the most likely to suffer in a major armed conflict.

How do we balance our right to defend ourselves against the lives of people who might not be our enemies if they had a choice in the matter? What do we do if radioactive, chemical, or biological agents are blown over neighboring countries because of our strike against a rogue nation? If we have an opportunity to take out a rogue nation's leaders and thereby prevent war, is it morally justifiable to kill them?

This is no longer just an idle academic exercise. Young people in high school today will be debating, voting on, and acting on these very issues within the next few years. It won't hurt them at all to give these problems some serious thought right now.

[Jeff Gilbert]

A little something I wrote a while back dealing with the "Just War" issue ...

St. Thomas Aquinas (1225-1274). Aquinas based himself upon St. Augustine's view of war, elaborating on these teachings. In refining his theory regarding the justness of a war, Aquinas focused on defining the right to make war and the importance of the intent which stands behind the decision to go to war. His attempt was to formulate simple rules which would give guidance on these issues, Aquinas argued that a war is justified when three basic, necessary conditions were met:

1 - the war was prosecuted by a lawful authority with the power to wage war

2 - the war was undertaken with just cause

3 - the war was undertaken with the right intention, that is, "to achieve some good or to avoid some evil."

Grotius [16th Century AD] A Dutch Protestant who some call the father of international law. Grotius lived through the aftermath of the Thirty-Years War in Europe and wrote extensively on the right of nations to use force in self-defense in his book Jure Belli ac Pacis ("On the Rights of War and Peace"), which was published in 1625. It was largely Grotius who secularized just war theory, making the theory more acceptable for the age of the Enlightenment. For Grotius, a war is just if three basic criteria were met:

1 - the danger faced by the nation is immediate.

2 - the force used is necessary to adequately defend the nation's interests.

3 - the use of force is proportionate to the threatened danger.

Grotius agreed with Cicero's belief of the need for a declaration of war, and also argued that the "purpose of just war theory" is to provide "succor and protection for the sick and wounded in war, combatants and civilians alike." A result of this view is the notion that just war theory exists externally of any recognized legal system, that it is a part of the "law of nations" which is followed by all civilized nations. For Grotius, it is not necessary to prove just war theory by consulting with any of the established laws of the nations of Europe, or their customs. Instead, those laws are known through the universal medium of the natural law, a law which transcends nations and their own particular legal codes, a law which is binding on all human societies in their interactions with each other.

Daniel Webster [1842] while serving as the U.S. Secretary of State, acknowledged the legitimacy of the customary norms employed by Grotius to define the just war. This recognition occurred as a result of attempts to resolve the so-called "Caroline Incident."

The Caroline Incident occurred while the British were attempting to prevent supplies from reaching Canadian rebels. During these efforts to restrict shipping to the rebels, the British burned the U.S. ship Caroline and killed several U.S. citizens. When the United States protested, the British government responded that its actions were justified as a matter of self-defense. Webster responded by stating that the only way for the British claim to self-defense to stand was if it met the traditional elements of just self-defense. Webster outlined those elements which are based mostly on the writings of Grotius:

1 - consisting of necessity of self-defense

2 - the reasonable and not excessive use of force.

[Jeff Gilbert]

Okay ... I'm back on my lurker perch.

[Stoffel]

IMHO one thing should be changed.

An individual soldier knows he should not commit such crimes and is told by these laws to refuse to carry them out,but on the other hand he also runs the risk of getting a conviction for refusing orders if he denies to carry out an order to do so.

This places a huge burden on the shoulder of a regular soldier.

[Redwolf]

Theres days there is even trouble about the definition of what is a war, and what is a prisoner of war. As opposed to a criminal prisoner, see current discussion about Al Quida and Taliban on Cuba.

Most recent conflicts also had at least one side who openly give a damn about any kind of war laws.

[Jeff Gilbert]

A few remarks about ...

#1 <An individual soldier knows he should not commit such crimes and is told by these laws to refuse to carry them out,but on the other hand he also runs the risk of getting a conviction for refusing orders if he denies to carry out an order to do so. This places a huge burden on the shoulder of a regular soldier.>

Not so, in my opinion. The "threat" of a court martial does exist however, this only reinforces the seriousness of the decision. On the whole, the average Joe needs to execute the orders given, not to question them. When an order is so egregious that is forces the soldier to sit up and contimplate a refusal to carry it out. Beleive me, a court mrtial is worth much less than my soul.

#2 <Theres days there is even trouble about the definition of what is a war, and what is a prisoner of war. As opposed to a criminal prisoner, see current discussion about Al Quida and Taliban on Cuba.>

The definition of what is a war has not changed. The people who choose to wage war without the sanction of a Legitimate Government violate their non-combatant status and generally fall into one of two catagories ... spy or criminal ... and need to be treated as such. If they are activly carring arms, they are combatants and need to be dealt with by the force of arms.

[minmax]

Thanks for the thoughtful replies.

Here is my take based on limited experience.

Rules are neccesary so as to distinguish the good guys from the bad guys. Case in point.

Bad Guys- fly airplanes into buildings killing innocents on purpose.

Good Guys- Get Congressional approval and attack only enemy combatants. If they take prisoners they give them 3 meals a day in a tropical paradise.

So the laws of war are very important in the sense it provides a moral and legal justification of a state's actions against an opponent.

Violence itself has really received a bad rap in the last 20 years. People poo poo acts of violence never realizing if it were not for those who face violence protecting them, then they would be targets of violence. Sanity in war is truly a fine line but Laws of War help provide a foundation that meets a universal moral.

The students have read these and are surprised by the answers. I think they expected a more complicated issue but all of you have made it simple in my view. Thanks again!

[tar]

Re: Making it simple.

The principles are indeed simple. But as in so many things, the devil is in the details.

What is "immediate danger"?

What is appropriate or proportionate force?

It is always those issues that are subject to debate or dispute.

In some ways it ends up being like the criminal case a few years ago where a man shot someone in Halloween costume who mistakenly came to his door looking for a party in the neighborhood. There is clearly a right to self-defense, but it wasn't at all clear that the facts and circumstances of that incident met those requirements.

[Tony Talbert]

Interesting discussion -- particularly Jeff Gilbert's thoughtful comments.

I was commissioned as an army 2nd Lieutenant in 1965 and have always looked at this issue as having three components:

1) The Geo-political - i.e, the determination of war, just or otherwise, declaration of war, etc. Obviously outside my ability to control except via the ballot box and public opinion.

2) Strategic Military - i.e, target selection, theatre operations, etc. At this level a senior commander would need to decide, for example, whether collateral non-combatant casualties &/or property distruction are justified by military necessity. An positive example would be General Von Choltitz's refusal to obey Hitler's order to burn Paris.

3) Tactical Military - i.e, the day to day operations by the small and medium units. This is the level that really impacts every soldier in the field. Mr. Gilbert's eloquent comment about a violation of the rules of land warfare not being worth his soul says it all. Apparently LT Calley forgot this at My Lai -- or perhaps never understood it.

The rules have been developed to give us all guidelines in an endeavor that is frought with the danger of atrocities, and, to allow for punishment of nations/individuals which violate them.

A situation to ponder: a SF team is deep behind enemy lines on a recce mission. Despite their best precautions they are discovered by an enemy patrol and, after a brief fire fight, one enemy soldier remains alive and surrenders. They don't believe that the mission has as yet been compromised. What do they do? Is the prisoner a non-combatant now?

[ October 22, 2002, 03:46 PM: Message edited by: Tony Talbert ]

[minmax]

Tony,

I remember that situation coming up when an SF team was compromised in Iraq and it was a little boy I believe. If it was a POW I would pop him without a second thought and quickly displace to an alternate site. If its a little boy I don't know. I hate to say it but I would prolly pop him too. I base this on the fact that I am in Indian Country and far from any help.

My Christian leanings are screaming out at me. So its a tough nut to crack anyway you look at it.

Geo-Political is often a matter of Civillian policy makers where the military is the last group asked an opinion but the first group to go.

Strategic is Generals so as a grunt I know what is expected of me in relation to the ROE (Rules of Engagement) and Mission Objectives. Generals would order a Corps or a Division to pour it on or back off. Colin Powell in Washington says to Bush to continue this rout of the Iraqis borders on Dishonorable. Swartzkoff is in Ridyad screaming at 10th Corps commander to close with the Republican Guard with haste and obliterate them. So strategic is in the eye of the beholder and the location of the guy in charge. BTW- 10th Corps C.O. caught hell for not charging in to stomp the Iraqis. He said he wanted the full force of the Corps to strike not little Battalion or Team sized jabs.

Tactical is the environment I have the most experience with and honestly when its a matter of survival or laws of war no contest. POWs are going to get it between the eyes.

One of my complaints about Saving Private Ryan are the rookie mistakes that Capt. Miller makes when he is portrayed as a combat vet who knows the score. In the end Fritz pays Capt. Miller back for his violation of the unwritten rules of war that fly in the face of the Laws of War. I as an NCO knew the letter of the law and I had to balance that with entering the zone with 5 functioning Marines and leaving the zone with 5 functioning Marines.

Well I have talked too long already. Thanx for the thoughts.

"Do not fire until fired upon...Says the guy sitting at the White House."

[Rattler]

Replying to STOFFELs comment:

An individual soldier knows he should not commit such crimes and is told by these laws to refuse to carry them out,but on the other hand he also runs the risk of getting a conviction for refusing orders if he denies to carry out an order to do so.

This places a huge burden on the shoulder of a regular soldier.

In the German Army, with the lessons taught us by the US (some High Brass like Gen. Keitel and Adm. Doenitz got hanged for following orders, sentenced to death for "participating in the preparation of an agressive war") nowadays it is not only your right but your obligation to resist orders that infringe with International Law (obligationn in the sense that you can be tried for following such orders).

While this might not really be practical in the situation (you will probably get shot on the spot by your superior ), it at least makes a strong point for relieving the burden on the shoulders of the regular soldier by giving him guidelines...

[Rattler]

Replying to TONY TALBERTs post:

A situation to ponder: a SF team is deep behind enemy lines on a recce mission. Despite their best precautions they are discovered by an enemy patrol and, after a brief fire fight, one enemy soldier remains alive and surrenders. They don't believe that the mission has as yet been compromised. What do they do? Is the prisoner a non-combatant now?

I cannot really comment on your question as I dont recall the Geneva rules on this situation.

In an exercise in the early seventies such team was discovered by civilians (in this case a school class on a leisure walk in the woods stumbled into them when they just HALOed into a clearing), they chose to ignore them.

The major running the exercise was close by as an observer and after the exercise made it a standing order to execute such civilians immidiately in the future.

Three of the four team members left the army for this reason, claiming a "conscious objector" status despite seeing the reasoning behind the order.

Rattler

[Jeff Gilbert]

Okay, I'll jumnp off my lurker perch once again. I guess what got me is the following question,

"A situation to ponder: a SF team is deep behind enemy lines on a recce mission. Despite their best precautions they are discovered by an enemy patrol and, after a brief fire fight, one enemy soldier remains alive and surrenders. They don't believe that the mission has as yet been compromised. What do they do? Is the prisoner a non-combatant now? "

and of cource, the one about being discovered by a child ...

A little background, I spent 19 of my 21 years in the Army in Special Forces, 12 of that on A-Teams and 5 years as a Team Sergeant.

Almost every exercise we ever had someone would have to try to throw this into the mix or grill us during the briefback about our SOP on this matter.

Here was our take on it ... the 1st situation posted deals with coming into contact with an enemy patrol and one enemy soldier surrendering ... bottom line ... mission blown, compromised, game over ... get out. Do NOT kill the POW, do not take him with you, drug him and depart the area.

2nd situation, discovered by child. Again, game over, compromised ... call for exfil, take child with us to exfil site and leave him/her there. Again, do NOT kill non-combatants unless they violate that status.

[elementalwarre]

Originally posted by Jeff Gilbert:

Here was our take on it ... the 1st situation posted deals with coming into contact with an enemy patrol and one enemy soldier surrendering ... bottom line ... mission blown, compromised, game over ... get out. Do NOT kill the POW, do not take him with you, drug him and depart the area.

2nd situation, discovered by child. Again, game over, compromised ... call for exfil, take child with us to exfil site and leave him/her there. Again, do NOT kill non-combatants unless they violate that status.

ok, exfil if POW, combatant or not

sounds to me that assumes your side has resources/time to redo the mission or assign your task to other deployed units

say your team's sighted the preparing-to-launch weapon of mass destruction that's THE top priority target for the operation, but is still doing target recon let alone deploying to attack. your opponent still doesn't know you're there, aside from your prisoner(s)

now what do you do?

i say a problem with the traditional laws of war is the possible asymmetries between resources needed for an attack vs the attack's probable effects vs a reaction's possible side effects. i think rules created for nationalistic wars simply don't fit armed conflict in general well at all

[minmax]

With respect to Jeff's position I must disagree. The exfil may not be possible and if you have the drugs to keep this clown under for the remainder of the op that is one thing. If not sorry I am still going to pop the poor slob.

I understand the violation of the laws of war but I also understand the law of survival.

[Jeff Gilbert]

In response to Elementalwarre:

You have just changed the mission. The reply I gave deals with most [not all] Recon missions, the "what if" you propose deals with a Direct Action [DA] mission. Different set of rules ...

I will give a more thourough reply when my work load slows down some ...

[elementalwarre]

Originally posted by Jeff Gilbert:

In response to Elementalwarre:

You have just changed the mission. The reply I gave deals with most [not all] Recon missions, the "what if" you propose deals with a Direct Action [DA] mission. Different set of rules ...

I will give a more thourough reply when my work load slows down some ...

don't know if the workload's any better but i'll change the scenario to still be recon: say your team's observing activity at a base, but they find a gas-tipped missile being prepped for launch. say you've reported and are awaiting a reply when a shepherd and his son happen upon your hide

now what? it's breaking news, so to speak. it needs a response soonest whether by your team or by air assets your team guides in or by something else...and there are two bonafide noncombatants you're holding

[RicKhan]

Greetings,

Having stumbled upon this thread, i can not help but contribute my thoughts to everyone elses.

First i am retired US Infantry/Scout.

One of the many classes taught during my Basic training was a Geneva Convention class of the rules of warfare. I really don't remember the exact name. But what i took away from that class has stuck with me always and forever.

We as Soldiers are governed by lawfull orders. If an order is given and we as American Fighting Men realize it is unlawful, we are obligated to refuse to carry it out. This was taught to me when i was a private, straight out of civilian life.

As i earned the rank of Sgt. something new was introduced into my thought processes. That of Mission and Men. At what point does one cancel out the other. When is the mission more important. When are the Men more important. The bull sessions between myself and others in the infantry, questioning our lives and what it is worth compared to any other life on this planet would spin off into so many fragments as to be surreal in scope.

I had and still hold to my plan, that if a mission were to be compromised, Do not execute any non-combatant, or POW.

That life spared is a voice in favor of life and mercy. A face of compassion that has the potential to stop violence rather than continue it.

A mission cannot be successful if too many men are lost to accomplish it. Men cannot suceed in a mission if it places them morally on the wrong side of what they are brought up to believe in.

As the present becomes history and is digested by the future, whatever is done in the face of exsisting laws will be how we are judged as humans. Whether it is within the framwork of rules of warfare dated 1960, 1830, 1500, or 1000 makes no difference. It will always be the indiviual that makes the final desperate decision of life and death. As a soldier schooled to the profession of War, it is even more important to set a higher standard. A code and honor above reproach so that the common man and woman respect the law as much as the warrior in arms.

I'll finish by saying, Debate about how to conduct future wars should be discussed. What Laws should be added, Especially in view of the changing face of war. Our ancestors had no idea what war would be like in 2002. We have no way to see what it will be like in 2150. But our thoughts will have an impact on those in the future and any laws we can implement to save the lives of those we do not know but are responsible for is very important.

Thx for ur time, i'll check back in from time to time, but mostly i hang out in the SC forum and General topics.

--------------------------------------------------

Be loyal to your King.

Be obedident to your parents.

Be honorable to your friends.

Never retreat in battle.

Make a just Kill.

(Hwarang Warrior's Code of Conduct

Korea, c. 6th century)