Humane Treatment and the Protection of U.S. Forces

During this last week, while enjoying participating in the dialogue on this website, I have made several references to the humane treatment obligation imposed by the law of war (or, as known to many, international humanitarian law). I believe it is essential that the United States express uncompromising commitment to this norm, and ensure that it is understood and implemented by our armed forces (and other government agencies conducting operations related to the War on Terror).

In this final post, I would like to address why I believe so strongly that this norm is truly a “first principle” of the law of war. The answer, quite simply, is that any compromise to this principldestabilizees the careful balance between military necessity and humanity, a balance that I believe guides interpretation of all other provisions of the law of war. Preserving this balance is essential for the protection of our forces.

Many may assume that by protection I am referring to the encouragement of reciprocity. Not necessarily. Reciprocity is no doubt an essential benefit of compliance with the law of war, and therefore is considered a primary rationale for compliance with this law. However, in the context of the modern battlefield, this rationale may no longer be as persuasive as in the past. In fact, for at least a decade, U.S. military strategists have studied the concept of “asymmetrical warfare”, which is characterized by an enemy seeking to exploit U.S. commitment to compliance with the law of war to gain a tactical advantage. This is exactly the dynamic our forces confront in Afghanistan and Iraq. Asserting encouragement of reciprocity as the primary rationale for compliance with the constraints of the law of war is a hard sell to soldiers confronting such an enemy.

The protection I refer to is the protection of the moral and psychological well-being of the men and women called upon to fight our wars. In such a brutal endeavor, these men and women need a legal framework to facilitate distinctions between right and wrong. The law of war through the necessity/humanity balance – provides this framework. When the balance between this first principles is distorted to fit the needs of mission accomplishment, the accordant loss of clarity for the force compromises their ability to maintain these distinctions. History provides compelling evidence that the consequence of such distortion is a breakdown of military discipline. Military leaders have historically understood this truism, which explains why it is possible to trace the roots of the contemporary law of war to influences and decisions of great military minds. It is also why so many highly respected veterans from our armed forces strongly object to Bush administration interpretations of this law.

During the last four years, this purpose of the law of war has been significantly stressed, particularly in relation to the humane treatment obligation. Much of the debate over the Bush administration approach to the War on Terror has focused on decisions that appear to violate this obligation (which the administration does not even acknowledge as an obligation). Necessity has been the primary justification for these decisions. This aggressive interpretation of what is and what is not humane has surprised not only outside observers of our government, but many career military and civilian lawyers serving our armed forces. Most of these professionals believe humane treatment is in fact an fundamental obligation, and that compliance can best be achieved by applying traditionally endorsed standards. This requires no list of what is and what is not humane. Instead, a simple but highly effective test is applied to any decision guided by this obligation: if an opponent were about to do this to one of my troops, would I consider it wrong.

While this might appear overly simplistic, the key to why it is effective is the protective instinct military leaders feel towards subordinates. Note that this is not a pure “do unto others” test. Such a test would be ineffective, for most military personnel, if asked to consider what they could endure, will accept great hardship. However, military leaders are taught from the outset of their careers that “taking care of your people” is second only to mission accomplishment as a priority. This protective instinct was perhaps best expressed by General Robert E. Lee, who is noted to have said that the hardest thing about being a General is that you must order the destruction of the thing you love most, referring obviously to his soldiers.

A military leader who projects a detainee treatment decision to his or her own force will be guided by this protective instinct. This in turn will result in decisions with the greatest probability of complying with the humane treatment obligation. Consider just a few examples. No matter what type of conflict, or what type of opponent, U.S. leaders would expect their subordinates, if captured, to receive adequate food, water, shelter, and medical care; to be removed (when feasible) from the area of immediate conflict; to have the opportunity to communicate with an impartial relief organization so that the world knows of the detention; not to be physically harmed; not to be publicly humiliated. They would, however, fully expect their soldier to be interrogated, and that the interrogation would involve the use of manipulation, rewards and incentives, and trickery. As for the most difficult questions related to the line between permissible and impermissible interrogation techniques, this standard should help to maintain a perspective consistent with the “spirit” of this obligation.

Does such an approach eliminate all uncertainty? No. However, it does create a decisional framework based on good faith adherence to the underlying spirit of the law of war. That spirit is clear: participants in conflict are all potential “victims of war”, and therefore when captured, they should be treated no better, but certainly no worse, than the capturing commander would expect his forces to be treated. In short, detained enemy personnel do not cease to be human beings. In the end, this spirit protects not only enemy detainees under U.S. control, but provides U.S. forces with the ability to reconcile the brutality of war with their own sense of right and wrong, which is essential for their own protection.