The Law of War Does Apply
by W. Hays Parks
This has not been easy for some to grasp. In 1996 the Joint Chiefs of Staff law of war instruction declared:
The Armed Forces of the United States will comply with the law of war during the conduct of all military operations and related activities in armed conflict, however such conflicts are characterized, and unless otherwise directed by competent authorities, will apply law of war principles during all operations that are characterized as Military Operations Other Than War.
This language was changed to the following when the directive was republished in 1999:
The Armed Forces of the United States will comply with the law of war during all armed conflicts, however such conflicts are characterized and, unless otherwise directed by competent authorities, will comply with the principles and spirit of the law of war during all other operations.
This statement puzzled an Army judge advocate, an instructor at the U.S. Army’s Judge Advocate General’s School. He proceeded to write and have published a series of short notes in The Army Lawyer —a legal newsletter for military judge advocates—on basic principles of the law of war. His effort had limited practical effect, and reminded me of a joke I had heard:
Two men are lost in a hot air balloon. They notice a hiker in a field, and descend to see if he can help them. One calls out: “Where are we?,” to which the hiker responds, “In a balloon, about fifty feet in the air.” As they ascend, one man turns to the other and says, “Must be a lawyer. He gave us an answer that was precise and accurate, but totally irrelevant.”
I mention this because much of the debate as to application of the law of war suffers from many asking the wrong question, or answering the question in the wrong way.
Each law of war treaty contains a threshold for its application. Article 2 common to the four 1949 Geneva Conventions for the Protection of War Victims states in part that each will apply “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” Article 3 common to each 1949 Geneva Convention sets forth some basic rules for internal conflicts, while the 1977 Protocol II Additional to the 1949 Geneva Convention expands upon the rules and protections in internal conflicts, but with a higher threshold for application than common Article 3.
The difficulty in determining application is three-fold. First, for domestic and diplomatic reasons, political leaders do not like to use the term war. During the 1999 air campaign over Kosovo, for example, Secretary of State Madeline Albright testified befor îe Congress that there was no “war.” She did this in part to avoid her own domestic legal and political entanglements, but also because several NATO governments had stated that were the term “war” used, they would have to withdraw their forces, as none had received requisite parliamentary approval. This sometimes makes it difficult to educate and/or convince senior political leaders as to why the law of war applies.
Historically many have thought of only one line between “war” and “peace.” The perception has been that once that line is crossed, law of war treaties apply—but not before. In truth, there are at least three lines: one at which the law of war applies, one at which law of war treaties are triggered, and one for larger purposes of determining whether or not there is a war.
Legally, these lines seldom are distinct. As Professor Christopher Greenwood has noted, “It is the fact of hostil ùities, not the existence of a formal legal condition which brings the law into operation.” For example, on December 4, 1983, a U.S. Navy air strike was launched against terrorist-related targets in the Beka’a Valley in Lebanon. Poorly executed, two aircraft were lost, and the Syrians captured one serviceman. In a press conference on December 20th, President Ronald Reagan was asked if the man was a prisoner of war. He replied: “The Syrians declared that he’s a prisoner of war. Well, I don’t know how you have a prisoner of war when there is no declared war between nations. I don’t think that makes you eligible for the Geneva accords…”
The day after the operation, however, I had cleared on a State Department message forwarding a demarche to the United States ambassador in Damascus, demanding prisoner of war protection for the captured aviator. Upon receipt of that demarche the Syrians complied. The one-hour air strike probably did not meet the general criteria for a war, but it did cross the threshold for application of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. Similarly, during the 1999 NATO Kosovo air operations, Serbian forces captured three U.S. Army soldiers. The initial response of the Secretary of State was that these men were not prisoners of war, a point with which every member of the Department of Defense Law of War Working Group strongly disagreed. The Secretary of State subsequently agreed that the men were prisoners of war, another indication that there is more than one threshold.
Thresholds, so important in early law of war treaties, are becoming less important. This may be due in part to the universality of certain law of war treaties. Today, 188 out of 192 nations are States Parties to the four 1949 Geneva Conventions. Hence the traditional general participation clause precondition that States ûare bound by treaties only with respect to their relations with other States Parties is virtually moot. The decreasing importance of thresholds of application also may be due to the evolution of human rights law. As Professor Christopher Greenwood has stated, “International law, of which both the law of human rights and the laws of war are part, is not made up of a series of watertight compartments.”
The boundaries between war and peace (or something less than war), and/or between international and internal armed conflict, increasingly are less distinct or relevant. For example, in 1980 a United Nations conference promulgated the UN Convention on Certain Conventional Weapons. The treaty is made up of an umbrella treaty, and three protocols regulating or prohibiting three types of weapons. The umbrella portion of the treaty restricted application of the treaty to international armed conflicts. The treaty pr äovides for periodic review conferences to update or otherwise amend it. At the first review conference, held between 1994 and 1996, Protocol II of the convention, which regulates the use of land mines and booby traps, was substantially amended and improved. Its scope was extended to internal conflicts. Two weeks ago a preparatory session was held in Geneva to lead up to the second review conference, to be held later this year. The United States is seeking to extend the scope of the entire treaty to internal conflicts. Twenty years ago this would have been unthinkable. Five years ago it was impossible. As Professor Theodor Meron pointed out during a workshop at last month’s preparatory session, with two exceptions—small arms ammunition, and the use of riot control agents – governments do not have two sets of weapons for use, respectively, in internal and international armed conflicts or, for that matter, in war or military operations other than war. Military operations are “come as your are” affairs, carried out according to how a nation’s forces are trained and equipped. If they have been properly trained, they will comply with the law of war in each and every mission.
The third difficulty in application was noted by Professor Adam Roberts in a speech at the U.S. Institute of Peace on March first of this year, where he observed that “Lawyers stick to the safe anchor of treaties.” I refer to it as “the law review” approach to thinking, that is, the rather inane requirement of many law review editors that “if you can’t find a source to cite for a statement, you can’t say it.” This happened to me several years ago when I was asked to review a book for a law review. It dealt with events in which I had first-hand knowledge. I read the book and prepared the book review. A few weeks later the editor called to say that the review needed more footnotes. I asked why. He listed a number of statements and conclusions. I informed him that I made those because I was present, and they were conclusions within my personal knowledge. There was absolute silence on the other end as he pondered my response. He wasn’t sure if that was good enough. I indicated to him that the reason the book had been sent to me for review was because it dealt with a topic in which I had expertise. Ultimately we compromised with his inserting numerous footnotes stating “personal knowledge of the author” to meet his journal’s requirements.
The Internet in many respects has worked wonders for legal research. However, law review writing standards and student Internet use have resulted in a “cut-and-paste” method of writing in which there is little original thought. This returns to the observation of Professor Roberts, which identifies a problem with many who apply the law of war: They cannot think outside the box. This apparently was the case with the young Army judge advocate to whom I referred earlier, who seemed to think that if a law of war treaty technically doesn’t apply, there is no applicable law.
The formally recorded modern law of war began during the American Civil War, when President Abraham Lincoln asked Professor Francis Lieber to set forth the laws of war that should apply in that conflict. U.S. Army General Orders No. 100, published April 24, 1863, was the result. Known also as the Lieber Code, it did not contain rules invented by Professor Lieber, but constitutes his codification of customary rules of war as he believed they existed at that time. Those rules also relied in part upon Just War principles, such as the principles of distinction and respect for civilians not taking part in the hostilities. One can only imagine what a modern law review editor would have done with Professor Lieber’s code. Treaty law may provide greater detail for application. But basic elements of the law of war apply to military conduct even when particular portions of certain treaties may not be applicable.
In addressing the young judge advocate’s concern, I envisioned the following scenario. A commander calls in his judge advocate. The dialogue goes as follows:
MAJOR: “You wanted to see me, sir?”
COMMANDER: “Yes. Our unit is going to deploy for a peace support mission. Therefore I would like you to offer a law of war briefing for the entire unit.”
MAJOR: “That won’t be necessary, sir, as the law of war does not apply in peace support operations or humanitarian intervention missions.”
COMMANDER: “Splendid. That will help me in some of my thinking. For example, I anticipate we’ll be able to capture some of the folks causing all the problems. A little torture should get their tongues to wagging so we can wrap this whole thing up quickly, limiting friendly force risk.”
MAJOR: “Well, we can’t do that, sir. It’s prohibited.”
COMMANDER: “Really – by what?”
MAJOR: “National policy, sir, which is based in part upon the 1949 Geneva Conventions.”
COMMANDER: “I see. Well there‘s more than one way to skin a cat. We can surround the dissident areas, and cut off their water, food, electricity, and medical supplies until they surrender the dissident leaders. That will reduce our casualty risk.”
MAJOR: “Well, we can’t do that, either, sir. It’s prohibited by the 1977 Additional Protocol I. We’re not party to it, but most of our allies are, and that action might fragment the alliance.”
COMMANDER: “Very well. I have another option. We have a new less lethal weapon. It’s a high-powered microwave that we can set at reduced levels. It will disorient people in its beam, providing us increased force protection…”
MAJOR: “I’ve heard of it. It’s quite humane, but it hasn’t undergone a legal review by the Judge Advocate General, so it cannot be used.”
COMMANDER: “Legal review? What’s the basis for that?”
MAJOR: “A long-standing Department of Defense instruction. But it’s also required by Additional Protocol I. It ensures that our weapons are consistent with our law of war obligations.”
COMMANDER: “I see. Now, Major, perhaps you’d like to tell me again why a law of war lecture to the troops isn’t necessary…”
(The meeting ends as the judge advocate departs, his tail between his legs.)
This takes me to my next point. When asking whether the law of war applies to some form of military operation short of international armed conflict, my response would be: at what level? The problem oftentimes seems to be formal acknowledgment by a government that it is bound entirely by a treaty with respect to a particular operation. This seems to be asking the question at the level of least involvement, rather than asking: What effect will this have at the individual soldier level?
In 1977 I attended ” a meeting in Warsaw hosted by the International Committee of the Red Cross and the Polish Red Cross on law of war training and dissemination. Swiss Army Lieutenant Colonel Frederic de Mulinen, working for the ICRC, presented “Soldier’s Rules” he had prepared, which were basic rules he felt every soldier should know. I participated in a working group that considered them. His original rules were thirteen or fourteen in number. Our working group narrowed them to ten then, not wishing to compete with the Ten Commandments, reduced them to nine. Shortly thereafter they were promulgated by the United States Marine Corps as part of its law of war training program. 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.” At the tactical level, the average soldier need not be overwhelmed with the fine details of a highly complex and esoteric subject. Subsequently these rules also were adopted by the Army and Navy. In their present form in the Army, they are as follows:
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.
Other than rule # 9, these requirements preceded any law of war treaty. 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, and is not unique to military operations other than war.
At the national level, government lawyers and their political leaders may address issues as to 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.
The shortfall identified by Professor Roberts with respect to lawyers relying upon treaties as some sort of intellectual security blanket has another side. Several years ago, an Australian Army judge advocate came to the Pentagon to meet with Department of Defense Senior Deputy General Counsel John H. McNeill and me with respect to a thesis he was writing. He had served with distinction in Operation SOLACE, the Australian Army contribution to United Nations Operations in Somalia. Based upon his experience, he argued that where military forces are engaged in peace operations, and no government exists (as was the case in Somalia), those military forces are an Occupying Power with all the attendant responsibilities that designation entails. Mr. McNeill and I strongly disagreed for historical, legal and policy reasons, not the least of which was that such a conclusion undoubtedly would have a chilling effect on governments contributing forces for participation in future peace operations. We believed that while treaty law, in particular the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War and the occupation law aspects of the 1907 Hague Convention IV Respecting the Law Äs and Customs of War on Land, technically would not apply, each could provide a useful template for the conduct of military operations in such a situation.
I have recalled this meeting because of another shortfall in thinking as to the application of the law of war in military operations other than war: Too often the law of war is viewed as an “all or nothing” kind of thing, when in practice at the tactical and operational level it is viewed in more practical terms. In ALLIED FORCE, the 1999 NATO air campaign against the Federal Republic of Yugoslavia, while all of the law of war might not have applied, its fundamental principles and relevant treaty provisions—including provisions of treaties to which the United States is not a party—were relied upon by commanders and their lawyers for conduct of their missions. That their actions withstood legal challenges by certain non-gov ¯ernment organizations illustrates my original point: a military trained to comply with the law of war will do so, however a particular operation may be characterized.
One other point bears mention. In 1999 the Secretary General of the United Nations published a bulletin entitled “Observance by United Nations Forces of International Humanitarian Law.” The bulletin has had little effect, for several reasons:
First, the Secretary General has no authority to speak ex cathedra, and thereby obligate nations to treaties to which they are not a State Party.
Second, the United States and other governments were less than amused with the Secretary General’s heavy-handed manner, in which the bulletin was issued without adequate consultation with states.
Finally, it incorrectly assumed that a government that is paying no attention to implementation of law of war treaties to which it is a State Party would change its practice because of this bulletin.
The Secretary General’s Bulletin was a solution in search of a problem. Armies execute operations as they have trained. If a government sends a unit inadequately trained in the law of war to a peace operation, or on a humanitarian intervention mission, or into combat, the likelihood that the unit will violate the law of war increases. The United States Army learned this the hard way in Vietnam as a result of the My Lai massacre on March 16, 1968. Canada, with some of the most experienced peacekeeping forces in the world, suffered the same experience exactly a quarter century later when, on March 16, 1993, personnel in one Canadian unit tortured and murdered a Somali civilian in their hands. As was the case in the My Lai incident, lack of adequate law of war training was identified as a factor in this crime. This does not change application of the law of war, but it does reflect the likelihood of respect for it.
We may never see another humanitarian intervention. Participation in peacekeeping, peace support, or peace enforcement operations may dwindle from previous levels. Whatever the future holds, at the cutting edge— where it counts—the law of war will be applied if a nation’s military forces are properly trained in it.
Hays Parks has been special assistant to the judge advocate general of the U. S. Army since 1979 and has taught at the U. S. Naval War College, American University, and several of the Armed Services colleges and schools. A retired Marine Corps lieutenant colonel, he has published widely in military and legal journals.