Author Archive for
Geoffrey Corn

What Are the "Principles" of the Law of War?

by Geoffrey Corn

When addressing the treatment of individuals captured or detained in relation to the War on Terror, the Bush administration routinely emphasizes the United States commitment to respect the “principles” of the Geneva Conventions. The most recent example of this came during the recent visit by the Secretary of State Rice to Europe, where she reassured her European counterparts that the United States remains committed to compliance with the “principles” of the Geneva Conventions.

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 Afghanistan, and detained for several months without the consent of the German government and based solely on a mistaken perception of “necessity”. Many critics might consider this a reflection of the consistent divergence between Bush administration statements and practice related to the “principles” of Geneva. However, the more troubling aspect of this example is that it reveals the simple truth that the Bush administration has never defined what it considers “principles” of the Geneva Conventions.

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 U.S. forces applicable to military operations that ran the spectrum from non-conflict peacekeeping to high intensity armed conflict. Perhaps more importantly, it also ensured that during any military operation involving armed conflict, U.S. forces would apply the full range of law of war provisions as their “default setting” even in the absence of an official U.S. policy decision on the legal characterization of the conflict.

This policy mandate proved invaluable to U.S. forces during operations conducted in the absence of a timely conflict classification decision (such as Operation Just Cause in Panama) and during non-conflict operations (such as Bosnia). However, the Department of Defense never defined what rules constituted the “principles” of the law of war. Instead, defining the content of this mandate was routinely left to judge advocates providing advice in support of military operations. These officers were taught during their professional education that in so doing, they should interpret this mandate broadly and err on the side of humanitarian spirit of the Geneva Conventions. Accordingly, these officers learned that this umbrella term encompassed, at a minimum, three bedrock principles of the law of war: humanity (as reflected in the provisions of Common Article 3 and Article 75 of Additional Protocol I); distinction (as reflected in the rules related to military objective and precautions in the attack contained in Additional Protocol I); and the historically understood concept of military necessity. This was seen consistent with U.S. interests as it would assist in establishing and preserving the moral legitimacy of the overall U.S. effort.

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 February 7, 2002 memorandum addressing obligations towards Al Qaeda and Taliban detainees. In that memorandum, the President concluded not only that these detainees were not entitled to the protections of the Geneva Conventions, but that even the policy mandate that they be treated humanely was qualified “to the extent appropriate and consistent with military necessity.”

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 U.S. policy. Policy makers undoubtedly covet the flexibility that flows from an undefined general standard. However, the planning and execution of military operations to achieve national security objectives characterized as having the highest magnitude, in a legal environment laced with uncertainties (often caused by these same policy makers), justifies the official enunciation of a baseline list of rules derived from the law of war that fall under the term “principles.” Until this happens, the reality will unfortunately continue to be that the commitment of the United States to the “principles” of the Geneva Conventions and the law of war will mean whatever it needs to mean to achieve any given policy objective.

The McCain Amendment Compromise: Has the Message Been Diluted?

by Geoffrey Corn

The highly publicized McCain Amendment is now law. In order to secure the commitment of the President to support this statutory codification of the principle of humane treatment, Senator McCain agreed to the inclusion of a “superior orders” defense. The compromise legislation therefore provides that in any criminal or civil action against any employee of the armed forces or any other government agency for violation of this “humane treatment” mandate, obedience to orders may be raised as a defense. Accordingly, unless the activity forming the basis of the allegation is so obviously improper as to lead a person of “ordinary sense and understanding” to realize it was illegal, “just following orders” serves as an absolute defense. In addition, the reliance by the employee on advice of counsel is explicitly included in the legislation as an “important factor” in determining whether a person of “ordinary sense and understanding” would have recognized the action as illegal.

Proponents of principle of humane treatment are justified in their satisfaction that this legislation transforms what has heretofore been an executive policy into a legal mandate. However, it is impossible to ignore the reality is that this provision will discourage subordinates from questioning the propriety of interrogation tactics, techniques, and procedures they are directed to implement so long as that direction comes with the “legally sufficient” endorsement. Unfortunately, this compromise has undermined the important objective of ensuring all detainees in U.S. custody are treated humanely at all times. Instead of emphasizing the “bright line” nature of the principle of humane treatment, the compromise provision has instead validated the Bush administration assertion that when interrogating a terror suspect, the line between humane and inhumane treatment is blurry, and maximum discretion must be preserved for extracting critical information. While this may seem to some observers as a logical reconciliation of the humane treatment obligation and the necessities of national security policy, one should question whether it is consistent with the fundamental principles of the law of armed conflict.

Obedience to orders is without question an essential aspect of effective military operations, and any system of military discipline must ensure subordinates treat all orders with a powerful presumption of legality. This was undoubtedly a factor in the compromise to include a defense for subordinates who obey orders subsequently determined to be unlawful. However, the law of armed conflict relies upon the fundamental principle that the obligation of obedience is not without limit. Every service-member and civilian supporting military operations bears an individual responsibility to first question, and if necessary disobey any order that would result in a violation of the law. There is no question that such a decision to disobey an order carries substantial risk. However, it is a risk that duty imposes upon members of the armed forces and associated civilians. In no area is this duty more profound than with respect to the obligation to respect and protect individuals who are “out of combat”, and it is the principle of humane treatment that provides the standard that guides the execution of this duty. Neither the importance of the intelligence requirement being pursued, the affiliation of the detainee, nor the level of authority directing the interrogation alters this standard.

Historically, commanders were expected to serve as the bulwark against any derogation of humanitarian protections by subordinates. This responsibility extended to ensuring subordinates were properly trained and supervised to ensure “bright line’ rules were not endangered in the heat of battle. The express inclusion of a superior orders defense in the compromise legislation, complete with the emphasis that prior legal review will almost certainly provide subordinates “top cover” in all but the most extreme cases, will have the effect of diminishing the probability that subordinates will exercise independent judgment in assessing the propriety of carrying out a questionable interrogation or detention procedure. As a result, a critical component of compliance with the law of armed conflict in the execution of military operations has been degraded.

The McCain amendment was intended to emphasize the indelible nature of the humane treatment obligation, and the duty of all subordinates – especially those in command – to question orders inconsistent with their basic understanding of how any human should be treated. The initiative to codify this obligation in domestic law reflected the rejection of unlimited presidential authority to decide when and to what extent the principle of humane treatment applied to detainees. Contrary to these objectives, the compromise legislation has essentially confirmed the proposition that it is impossible to create a bright line humane treatment standard, and has endorsed a “top cover” type mentality for future detention and interrogation operations. This is unfortunate, for the obligation to treat all detainees humanely, even those suspected of affiliation with Al Qaeda, is so basic that subordinates should be taught that any order that appears in violation of this principle should be questioned, even when the orders come from the highest levels of command with approval by senior administration lawyers.

Finally, thanks to Julian and Roger for the privilege of guest blogging.