"Laws of War" essential for a free country to prevail in a modern world

  • Published
  • By Lt. Col. Theodore Richard
  • 71st Flying Training Wing Legal Office
VANCE AIR FORCE BASE, Okla --  The Air Force flies, fights and wins in air, space, and cyberspace while complying with the laws of armed conflict. These rules are also popularly known as the "laws of war" and "international humanitarian law."

Broadly speaking, the laws of war govern when a nation may use armed force and establish the rules for using that force. These laws stake the boundary of acceptable behavior during armed conflicts. They include prohibitions against torture and unnecessary suffering, as well as the protection and distinction of civilians and noncombatants.

The laws of war have helped establish the military as a profession since the earliest days in this nation's history. Soldiers, Sailors, Airmen, Marines and Coastguardsmen are distinguishable from militias, pirates and outlaws because they act under the authority of a sovereign nation and adhere to a strict code of ethical and moral conduct. The laws of war are a fundamental part of the military's professional code.

I teach the law of armed conflict. The question I receive most regularly is: "Why does the United States follow the laws of armed conflict when those we fight do not?" This is a legitimate question.

Traditions of unrestricted warfare stretch to antiquity. A Caledonian leader described the ferocity and relentlessness of Roman warfare: "To ravage, to slaughter, to usurp under false titles, they call empire; and where they make a desert, they call it a peace."

This concept continues into the current era. Russia's reported strategy in the second Chechen war was to silence the media and critics, then encircle, pulverize, and cleanse stretches of territory. This appears to be the strategy used by the Syrian president to combat the uprising in his country where journalists have been targeted; chemical weapons have been employed; and civilians have been slaughtered indiscriminately.

Cynics try to argue that the United States is equally capable of setting aside the laws of war by pointing to darker moments in American history. Examples include the Indian Wars, Sherman's Civil War march through Georgia and the Carolinas, and World War II aerial attacks on Germany and Japan, culminating with the nuclear bombing of Hiroshima and Nagasaki.

These American examples fail to account for the evolution of the law of war. At the time of each example, the prevailing understanding was that the America was acting in compliance with the laws of war as they existed at the time.

America is founded on the rule of law. The grievances against King George III set forth in the Declaration of Independence were in large part based on the monarch's disregard for law in general and the laws of war in particular.

While the rules for warfare evolved radically over time, they were forged anew based on the experiences of the Second World War. The laws of war are now firmly established by the 1949 Geneva Conventions and international agreements. Under the United States Constitution, these treaties are as binding to military members as any Federal statute. In case there is doubt, DoDD 2311.01 requires that the law of war must be followed in all military operations, not just armed conflict.

Thus, the initial answer to why we follow the law of armed conflict is a paternalistic answer: The United States follows the laws of war because they are laws that govern us.

And for military members, violating these laws may have criminal penalties.

Following a rule because it exists is not a satisfying answer to those seeking to understand its underlying rationale and justification. Evoking the ideal of reducing unnecessary suffering in war is equally unsatisfying when opponents use such suffering as a tactic; it creates frustration through a perceived double standard.

Adherence to the laws of war gives America the moral high ground during a conflict, which is strategically essential to an open democracy in the information age. While General Sherman dismissed appeals for restraint on war to "God and humanity" as hypocritical as well as idle and nonsensical, the fact remains that popular history has judged him harshly. Today, such judgments are rendered at the speed of the 24 hour news cycle and the pundits who populate it.

Thus, when rogue soldiers tortured Iraqi prisoners at Abu Grab prison, public support for the war effort fell dramatically. Likewise, public support for the Syrian opposition was undermined by reports that rebel troops summarily executed regime soldiers.

Through tight media controls, autocratic governments do not worry about losing internal popular support when they violate the laws of war. By targeting and silencing the media in conflict areas, in conjunction with obfuscation, these governments also reduce the widespread outrage of the international audience. Open and free democracies, however, do not have the tolerance for such behavior.

In short, the American military must follow the laws of war first because they are laws, but also because these laws are based on humanitarian and moral principles that are strategically essential for a free country to prevail in the modern era.