04 Jan What Are the "Principles" of the Law of War?
When addressing the treatment of individuals captured or detained in relation to the War on Terror, the Bush administration routinely emphasizes the
Ironically, this reassurance came during the same visit in which Secretary Rice explained to the German Chancellor why a German citizen had been abducted, transported to
This use of this general concept of “principles” of the law of war without more specific definition is not new in the realm of planning and executing military operations. For the last two decades, the “principles” of the law of war have served as the foundation for Department of Defense law of war policy. According to Department of Defense Directive 5100.77, “The DOD Law of War Program”, the armed forces of the United States are obligated to comply with the “spirit and principles” of the law of war during all military operations, no matter how these operations were characterized as a matter of law. (Click here). This mandate was specifically intended to establish a baseline standard for
This policy mandate proved invaluable to
Although this policy provided a basis for Judge Advocates to press for respect for the humanitarian objectives reflected in the law of war during all military operations, the lack of specific content rendered the mandate essentially malleable. This fact was clearly exposed following 9/11 by the policies, directives, and decisions that began to flow from the highest levels of our government. Perhaps the most prominent example of this development came in the form of the President’s
Qualifying the humane treatment obligation contradicts the longstanding understanding of the limited authority provided by military necessity, and therefore reflected a fundamental change in the application of the concept of “principles of the law of war” by the Bush administration. Using military necessity as an “override” provision to justify derogation of protections established by the law of war – particularly humane treatment – was universally condemned following World War II. Accordingly, military necessity justifies only those measures not otherwise prohibited by international law which are indispensable to bring about the prompt submission of an enemy. Ironically, it is this understanding of military necessity that is characterized as a “basic principle” in U.S. Army Field Manual 27-10, The Law of Land Warfare (http://www.afsc.army.mil/gc/files/FM27-10.pdf).
Subsequent decisions by the Bush administration seemed to confirm that the customary understanding of the universally binding nature of the principle of humane treatment had in fact been reassessed. As a result, military commanders and the judge advocates who advised them were left with even more uncertainty as they struggled to apply a “case by case” assessment of what this policy actually required.
This case by case approach to defining the content of the policy of compliance with the “principles” of the law of war raises serious questions as to true meaning of this commitment. Is the contemporary understanding consistent with the traditional “good faith” approach that served as the foundation for countless military decisions in the past? Or, has the concept of “respecting the principles” become a useful sound-bite in the information battle related to