Features

March 1, 2012  

Honor, not law

Rules of engagement are only a small part of battlefield discipline

In January, during the final court-martial arising from the 2005 killings of 24 Iraqi civilians in Haditha, a Los Angeles Times article quoted several military law experts who said the killings show that U.S. troops need better training in the law of armed conflict. The article appeared the same week as the Internet release of a video showing four Marines allegedly urinating on the corpses of slain Taliban fighters in Afghanistan.

The Times article said the Haditha killings highlight the need for commanders to do a better job explaining the rules of engagement in the context of modern counterinsurgency. But this is a narrow view. The military can and should do a better job teaching troops the law of armed conflict, but this would not have prevented civilian deaths in Haditha nor the abuse of enemy corpses in Afghanistan.

The problem of battlefield discipline goes beyond the law of armed conflict. The law is society’s response to undisciplined or unethical conduct. It does an OK job of sorting out the aftermath of an incident and categorizing the participants as either guilty or not guilty. But the law often falls short as a catalyst for ethical behavior, especially on the battlefield.

Law is the judgment of the community at large, but the impetus for ethical conduct among warriors must come from other warriors. The real challenge for commanders is not just to teach their troops about the law of armed conflict but to inculcate in their troops the ethos of the professional warrior — to instill an abiding sense of honor. It is not enough for soldiers to know the rules, or even to follow them. Without deep reserves of character and psychological strength, troops in high-stress battlefield situations may fall prey to undisciplined impulses. Honor, not law, is the key to battlefield discipline.

The modern law of armed conflict has its roots in Western warrior customs, which began to coalesce into various codes and norms in the age of chivalry, between the 11th and 14th centuries. Since then, many of these customs have evolved and become enshrined in customary international law and multilateral treaties such as the Geneva Conventions.

The law of armed conflict sets minimum standards for the conduct of war in order to minimize unnecessary suffering and facilitate the eventual restoration of peace. Examples of these minimum standards include: a distinction between combatants and civilians, a special status for chaplains and medics, and an obligation of humane treatment of the sick and wounded. Also, the law of armed conflict obliges belligerent nations to keep their armed forces disciplined under responsible command.

The rules of engagement go beyond the minimum standards of the law of armed conflict — they are the standards that a military imposes on itself to reflect national character and values in the conduct of war. They are limits on weapons and tactics that reflect high-level policy choices aimed at channeling violence to achieve political and military objectives. While the law of armed conflict applies to all belligerents in any conflict, the rules of engagement vary from nation to nation and from mission to mission.

Through courts-martial and war-crime tribunals, the law provides a mechanism for adjudicating and punishing breaches of military discipline. In theory, the existence of these legal regimes should have a deterrent effect on combatant misconduct. But there is good reason to be skeptical of the notion that fear of future punishment plays a pivotal role in most people’s decision-making processes. And however useful fear of punishment may be in military training, its value in combat is marginal at best, if only because it is crowded out by more urgent fears. “I’d rather be judged by 12 than carried by six” is a hackneyed refrain that military lawyers frequently hear when training soldiers on the rules of engagement.

Within the military, uniformed lawyers are often the subject-matter experts tasked with training soldiers on the law of armed conflict and the rules of engagement. This training usually takes the form of slideshow presentations and pocket cards summarizing key points.

There is certainly room for improvement in this process. For example, training exercises aimed at flexing operational capabilities frequently ignore the complexities of operating within realistic legal constraints. The experts quoted by the L.A. Times were right to say commanders could do a better job of exposing their troops to law-of-war concepts during military exercises. This does not really address the problem of battlefield discipline, though.

The legal process is aimed at setting standards and punishing violations of those standards. But military commanders at all levels face the challenge of ensuring that their troops meet these standards. Neither the law of armed conflict nor the rules of engagement provide much guidance on this important issue.

The Problem

The problem of battlefield discipline predates the modern law of armed conflict. The problem is raised, if somewhat obliquely, in Homer’s “Iliad,” in which the erratic and uncontrollable rage of Achilles culminates in his abuse of Hector’s corpse — an outrage even by the standards of that violent time. In 1066, William the Conqueror is said to have expelled a knight from his assembly for mutilating the body of the conquered King Harold II.

Under the modern conception, war is violence for a purpose, organized and sanctioned by the nation-state. Acts of violence that would otherwise be unlawful take on a gloss of legitimacy — and sometimes even honor — because they are committed under the authority of the state. There is a difference between the civilian ethos of violence and the warrior ethos of violence. Warriors are given a special privilege of legitimate violence, but this violence retains its legitimacy only so long as warriors adhere to the warrior ethos. So the very nature of war raises the problem of battlefield discipline.

Indeed, war demands discipline. War is not violence for its own sake or for the personal gain of the people committing it. Without discipline, the violence cannot be directed to serve the pragmatic political purpose for which it is called forth. This is especially true in a counterinsurgency, in which the berserker approach often works to defeat rather than advance the aims of the campaign. Also, in the absence of discipline, the violence occurs outside the authority of the nation-state, thus stripping it of its legal justification. Combat without discipline is not war.

The problem, then, is to unleash a brutal, destructive force while containing and directing it to achieve limited objectives. There is a very small margin of acceptable error because the misdeeds of just a few undisciplined soldiers can undo the work of many thousands of their more disciplined comrades. (Former Marine Corps Commandant Gen. Charles Krulak’s concept of the “strategic corporal” gets at this reality.) To this end, a military commander must not be a mere manager of violence, but rather a leader of individuals whose job it is to commit violence.

Though not specifically talking about the military, Aristotle’s “Nicomachean Ethics” addresses the problem facing leaders who are responsible for training others in ethics. Though Aristotle believes in universal standards of virtue, he recognizes that the process of becoming virtuous may vary from person to person. Aristotle uses the analogy of a doctor who learns what is theoretically good for everyone and then applies that knowledge to the practical details of an individual patient. The process of training others in virtue begins with an understanding of the general principles of the law, but it does not end there. Rather, it is a matter of continued training and habituation over time that must, to a certain extent, be tailored to the individual.

The law is a blunt instrument, a generally applicable set of rules that does not and cannot deal in such fine distinctions. The saying goes that “hard cases make bad law,” which means that judges should focus on the general principles of the law instead of the specific facts of outlier cases.

Military commanders, though, must be concerned with the hard cases — their business is people, not principles. Battlefield discipline, then, stems not from the law of war but from the ethos of the warrior.

The Warrior Ethos

In a lecture published in the May 2011 issue of Army Lawyer, Brig. Gen. H.R. McMaster opines on the role of uniformed lawyers in promoting moral and ethical conduct during war. The problem as he frames it is “to build cohesive teams and create resilient soldiers capable of overcoming the enduring psychological and moral challenges of combat.”

McMaster says breakdowns in battlefield discipline come from ignorance, uncertainty, fear and combat trauma. For these ills, he prescribes values-based instruction, realistic training, cultural education and efforts by leadership to help manage combat stress.

McMaster points out that the law of armed conflict is just one small part of this challenge: “Ensuring ethical conduct goes beyond the law of war and must include a consideration of our values, our ethos.”

Pointing to Christopher Coker’s book “The Warrior Ethos,” McMaster argues that “individual and institutional values are more important than legal constraints on moral behavior.”

In his book, Coker argues that soldiers should be trained to see themselves as members of an ethical community and part of a tradition of trust. Right conduct stems from this sense of belonging to the community and being part of an honorable tradition. Coker contrasts the contractual nature of legal conventions with the covenantal nature of a warrior’s honor. “We obey the dictates of our hearts,” he writes. “We don’t wish to dishonour ourselves in the eyes of our moral equals — our friends — and thereby dishonour the unit, the flag or the great tradition.”

The nature of a covenant suggests that the warrior ethos starts with relationships, not rules. Fear of dishonor in the eyes of one’s fellow warriors is a more powerful motivator than fear of future punishment by society. “Laws can reaffirm the warrior ethos; they cannot replace it,” Coker says.

The military cannot meet its end strength by selecting only preformed specimens of moral maturity. So the military must be just as much in the business of developing the war fighter’s character as it is in the business of developing the war fighter’s technical expertise and physical fitness. In his book, Coker discusses programmatic servicewide attempts to propagate the warrior ethos. The Marine Corps Martial Arts Program and the Army’s Warrior Ethos concept are good examples of servicewide programs that leaders can use to address issues of character development and enshrine battlefield discipline as an institutional value.

It is important that when we talk about institutional values, we are not just talking about catchphrases. As an institution, the Army professes seven values: loyalty, duty, respect, selfless service, honor, integrity and personal courage. The three core values of the Navy and Marine Corps are honor, courage and commitment. The Air Force also has three core values: integrity, service and excellence. These slogans express the aspirations of our services. Whether these slogans transcend the status of mere catchphrases and represent the lived values of our military institutions depends on the actions of the individuals that make up those institutions.

For the most part, our services live up to their moral aspirations, but this is not automatic and should not be taken for granted. Building critical relationships, inculcating a sense of ethical community, and safeguarding the honorable traditions of the profession of arms must be priorities for officers at all levels, from service chiefs and combatant commanders all the way down to small-unit leaders.

MORAL DEVELOPMENT

When we talk about the development of individual values in the military, we are, for the most part, talking about the ways in which individuals are indoctrinated and assimilated into the ethical community. A lot of moral education happens in the home and in the public sphere, before a person ever enters the military. In ancient Sparta, all these spheres of moral influence were oriented toward preparing young men for military life. But we live in a society that is more skeptical of power concentrated in the military. Thus the military’s role in the moral formation of our young people is necessarily limited.

Young men and women enter the military with much of their moral character already formed. The role of military leaders, then, is to meet these young people where they are and guide them on a career-long path of moral education and improvement. To successfully do this, military leaders must compete with the influence of other communities that may have conflicting values.

To teach battlefield discipline, leaders should avoid saying or doing anything to dehumanize the enemy in the eyes of their troops. Seeing the enemy as something less than human may mitigate the psychological cost of killing, but the risk to battlefield discipline outweighs the benefits of this cheap motivational tool. Historian James J. Weingartner writes that dehumanizing words and images from the U.S. government and in the U.S. media led to the illegal but widespread practice of American troops mutilating the remains of Japanese soldiers during World War II. A warrior can respect the enemy’s humanity even as he strives to kill and maim the enemy. A program of cultural education such as that proposed by McMaster in Army Lawyer may help breed this respect in the face of the natural tendency to dehumanize the enemy.

Also, leaders should not be afraid to talk about failures of battlefield discipline. On board an amphibious warship when the video of Marines urinating on Taliban fighters was released on the Internet, I observed two primary reactions from the embarked Marine officers. One was the understandable instinct not to talk about it: The incident is under active investigation and the conduct is not representative of the vast majority of Marines, therefore, the video is an inappropriate topic of conversation. The other reaction was to put sunlight on the issue, express moral outrage and earnestly ask questions about how this sort of thing happens. I believe sunlight is the better approach.

No commander can afford to believe that a breakdown in battlefield discipline is something that only happens to other people. Nor is it enough to say that most soldiers don’t act this way, so we’re not going to focus attention on those that do. Certainly commanders must be wary of doing anything that would compromise ongoing legal proceedings. And of course the military should not bring undue public attention to failures that are not representative of the military community. But within our community, we have an obligation to guard against failures of battlefield discipline, and that requires honest and open assessments of the failures that do occur.

Commanders can also inspire battlefield discipline by pointing to outstanding exemplars of the warrior traits that underlie discipline. Many of the soldiers we lionize are heroes who have displayed amazing physical courage and self-sacrifice. But there is room in our pantheon for heroes who have displayed incredible moral courage as well. One such exemplar is Maj. Hugh Thompson Jr., who was awarded the Soldier’s Medal in 1998 for his role in stopping the infamous My Lai massacre as a warrant officer in 1968. As Thompson, a helicopter pilot, worked to rescue Vietnamese civilians, he ordered his aircrew to fire on any American soldiers who tried to interfere with his efforts. Thompson later reported the incident to the chain of command, resulting in the cancellation of similar combat operations in the area. More recognition of heroes like Thompson would help impress upon troops the value of moral courage in high-stress combat situations.

A career-long path of ethical development means that the mentors are also being mentored. Leading by example and through positive peer pressure are especially crucial in the ethical arena, which depends so much on relationships. Nowhere is hypocrisy more toxic than in relationships of moral accountability.

To this end, commanders could do a better job utilizing chaplains as subject-matter experts in moral and character development. Too often, chaplains are treated as amateur psychotherapists or morale officers, as if a chaplain’s job is just to help soldiers deal with their personal problems so they can get back on the line ready to fight — to keep people running in the same way mechanics keep tanks and airplanes running. Yet many chaplains have advanced training in the world’s great ethical traditions. More importantly, they have experience building relationships of moral accountability.

The methods and lessons that religious communities use to inculcate shared values in their members could be useful to commanders who take seriously the notion that the military should be an ethical community in its own right. Though chaplains are noncombatants, commanders should not overlook the insights they can provide when it comes to mentorship, training in virtue, and moral leadership. Not all chaplains will seek or desire such a role, but some will. The right chaplain in the right unit can be more valuable than a lawyer for helping commanders instill battlefield discipline.

The very nature of the problem of battlefield discipline suggests that there is not a programmatic one-size-fits-all solution. We take a step in the right direction, though, when we recognize that it is not primarily a question of law. Rather, it is a question of character, a question of ethos. Above all, it is a question of honor. AFJ

LT. GABRIEL BRADLEY is a Navy judge advocate deployed as the legal adviser to the commander of Amphibious Squadron 5. His next assignment will be as an appellate counsel at the Navy-Marine Corps Appellate Review Activity in Washington, D.C. He studied philosophy at the University of Oregon and graduated cum laude from Notre Dame Law School. The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Department of the Navy, the Department of Defense or the U.S. government.

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