The Laws of War: A Military View

Article excerpt

I served as a lieutenant in Vietnam. In June 1969, after being in the country for about ten days, I saw my first combat action and it was typically confusing. My platoon was on a reconnaissance mission as part of a larger force when some members of the unit saw a few Vietcong soldiers and began to pursue them through the jungle and marshland countryside. The enemy soldiers were quickly cornered, one was captured, and at least two more cowered in a streambed about 100 yards away. In circumstances I do not fully understand to this day, there was gunfire, many vehicles raced back and forth, and the two radios I was required to monitor broadcast a confusion of chatter. Suddenly, on the higher command radio, I heard the voice of our colonel: "Stop shooting; that's murder," he ordered. The soldiers did stop shooting, the prisoners were secured, and we continued our mission. But that single, short order had great impact on me. It taught me more than any schoolhouse instruction ever could have about the laws of war and how professional soldiers behave in combat.

The war on terror that resulted from the horrific attacks of September 11 has many facets. In addition to the obvious military and homeland security issues, the intelligence, police, judicial, and financial aspects mean there are many "rules" to be observed. It is not a simple process to analyze these considerations. War under any conditions is a gruesome endeavor. But, from the military perspective, the rules of concern are the laws of war as provided by the Hague Convention of 1907, the Four Geneva Conventions of 1949, and the 1977 Protocols to those Geneva Conventions. While there are many other treaties concerning armed conflict, these Big Three provide the majority of regulations. The United States has not ratified the 1977 Protocols, but recognizes the majority of the provisions as "customary international law" The treaties taken together provide a framework by which international armed conflict is to be conducted. Therefore, when U.S. military forces engage in combat, these laws apply.

These regulations as a whole address the methods and means of warfare on the one hand, and the establishment of protections for the victims of war on the other. Methods and means include the tactics, weapons, and targeting decisions in war. Primary concerns are the nature of military objectives, the elimination of unnecessary suffering, discrimination between combatants and noncombatants, and issues of proportionality. Protect-and-respect issues include the treatment of civilians, prisoners of war, and the sick and wounded, and the requirements concerning the responsibility of an occupying force.

The principles of the laws of war reflect the driving motivations behind the laws' creation. According to the concepts of military necessity, certain targets are prohibited. The principle governing military objectives stresses that only those persons, places, or objects that make an effective contribution to a military action may be targeted. All combatants must also minimize unnecessary suffering, which is seen as the incidental injury to people and collateral damage to property sustained during a conflict. A crux of these principles lies in the concept of proportionality, which dictates that the loss of life and property incidental to a military attack must not be excessive in relation to the concrete and direct military advantage expected to be gained.

The laws of war are not an abstract concept, or limited to customary and conventional laws, but a reality enforced at the highest levels of the U.S. government. A Department of Defense directive signed by the deputy secretary of defense in 1998 mandates that law-of-war obligations are to be observed and enforced; that all violations of the law of war are to be promptly reported, whether committed by or against U.S. forces; and that all components of the military services are to establish an "effective program to prevent violations of the law of war. …