The Tao is the way of humanity and justice; 'laws' are regulations and institutions. Those who excel in war first cultivate their own humanity and justice and maintain their laws and institutions. By these means they make their governments invincible.1
- Sun Tzu as interpreted by Tu Mu
IN TU MU'S 800 CE commentary on Sun Tzu, the critical word Tao, literally "the right way," translates variously. But the pertinent translation is "moral influence." Sun Tzu recognized the importance of morality so he placed moral influence first in order of war priorities. Since his The Art of War focused on war strategy, one can infer that "those skilled in war" refers to generals and strategic leaders charged with "cultivat[ing] their own humanity and justice and maintain[ing] their laws and institutions," thereby, "mak[ing] their governments invincible."2
So how does it happen 1,200 years later, though aware of Sun Tzu's significant ideas, the U.S. Army lacks the proper moral foundations upon which to operate? Despite high-profile moral blunders of the last decade, the Army still has not focused its efforts to prevent war crimes.3 These crimes are distressing symptoms of an even greater cultural shortcoming. The Army profession lacks a formal institutional ethic and a means of peer-to-peer self-governance. Textual artifacts, such as the Army Values and formal operational law, imply but do not dictate an institutional ethic. Ultimately, the Army's leadership must champion such an ethic-both to protect institutional and individual honor and to further mission success.
Unethical conduct can frustrate efforts to win a war. It can also kill chances to win the peace. War crimes also erode the public's trust in the Army. Morally wrong actions call the Army profession into question. In the end, to achieve war aims the Army must act in accordance with a set of moral principles as much as it must respect the "principles of war." The war machine as a whole must meet public expectations.
Efficacy and Expectations: The Moral Battlefield
The ultimate goal of war is to achieve a better peace.4 War waged in an immoral manner rarely ends well. Victims of injustice often refuse to seek an accord with their enemy, preferring to die on the battlefield than to suffer injustice offthe field. Philosophers and politicians have formulated laws of war in the hope of avoiding unending war and chaos perpetuated by immoral conduct.
The Just War Tradition is part of Army professional military education, so this article addresses only the details most pertinent to an institutional ethic. Generally, the ethics of Just War theory consist of two parts, the justice in declaring war, jus ad bellum, and the justice in waging war, jus in bello. Because jus ad bellum is the responsibility of political leaders (the National Command Authority), it falls outside the scope of this article. On the other hand, jus in bello pertains primarily to the military, whose ways and means must achieve the political ends. According to Professors Joseph Nye and David Welch, "the principles of jus in bello are (1) observe the laws of war, (2) maintain proportionality, and (3) observe the principle of noncombatant immunity."5
In 1863, the Lieber Code became the Union's Civil War conduct guide, and the precursor to the Geneva and Hague Conventions. The Army trains soldiers on these conventions, expects compliance, and punishes violations of the conventions. Furthermore, soldiers must disobey orders that countermand these laws and conventions. One Department of Defense document, Armed Forces Officer, reinforces this point: "You . . . must follow superior direction or rules unless faced with a clear operational, legal, or moral reason to refuse or deviate."6 For loyal soldiers, disobeying even an illegal, immoral, or unethical order is difficult but nonetheless required.
Atrocities only perpetuate war. In On War, Carl von Clausewitz noted:
It had ceased to be in harmony with the spirit of the times to plunder and lay waste the enemy's land . …