Sanitization of War: The Laws of Armed Conflict, Rules of Engagement, Unreasonable Expectations, and the Need for a New Dialogue

Thank you to Dr Alan Anderson for this new article. The last twenty-five years have seen significant changes in public and political perceptions regarding war. Due to the development of precision-guided munitions and several conflicts with few, if any, casualties, warfare has become increasingly sanitized. Efforts to comply with existing laws of warfare – now many decades old – have resulted in restrictive, and often unreasonable, rules of engagement on the modern battlefield. This post contends that a new dialogue and education regarding war and warfare is needed. Further, the existing conventions on the laws of armed conflict need to be updated to comport with the new realities of warfare.

More than 150 years ago, Union General William Tecumseh Sherman told the leaders of the City of Atlanta, “War is cruelty, and you cannot refine it”.¹ For most of the past century and a half, Sherman’s description has been apt. War, and more pertinently warfare – how war is conducted – has been a horrific, bloody endeavor, one that usually involved a great portion of a nation’s citizenry and treasure. For nearly all of the twentieth century, a nation understood the substantial cost, in lives and money, which engaging in war would cause. Indeed, for much of the Cold War, the concept of “mutually assured destruction” arguably worked to keep the world’s powers from starting a nuclear conflict between them.

The last twenty-five years, however, have seen an important and significant change in public and political perceptions – both domestic and international – regarding war. These new perceptions raise important issues for nations, their citizens, and their warfighters. Warfare has become increasingly sanitized, with few casualties among an increasing minority of the population who serve a nation’s armed forces. Coupled with restrictive rules of engagement on the battlefield, expectations have arisen that losses will be few and that war can be fought in a pinpoint fashion without adversely impacting non-combatant civilian populations. Unreasonable expectations have been created. These different perceptions should be addressed in a new dialogue within and between the armed services, the body politic, and the government, lest war become viewed as too easy of a path to follow such that it actually becomes “merely the continuation of policy by other means”.²

The foundation and starting point for any discussion of these new perceptions and the sanitization of war should be the laws of armed conflict, previously known as the laws of war and now often referred to as international humanitarian law. The currently applicable laws of armed conflict date in part from as long ago as the 1907 Hague Conference. The Geneva Conventions of 1949 sought to update previous international treaties and to address some of the egregious actions of the Second World War. More recently, the Additional Protocols of 1977 have further attempted to bring international humanitarian law into the modern era of warfare.³

All nations are obligated as a matter of international law to comply with the laws of armed conflict and to ensure that their combatant forces do so as well. At their core, the laws of armed conflict are intended to protect civilians, the wounded, and prisoners of war. As the US Marine Corps basic officer training handbook states, “The purpose of the Law of War is to prevent unnecessary suffering, safeguard certain fundamental human rights of those involved in a conflict, and to ultimately restore peace.”⁴ The laws of armed conflict legitimize killing on the battlefield between combatants, not non-combatants. However, international humanitarian law is not intended to prevent or prohibit all non-combatant casualties. Additional Protocol I to the 1949 Geneva Conventions, adopted in 1977, formalized the principle of proportionality: “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” will be considered “indiscriminate” and therefore prohibited by the laws of armed conflict.⁵ As one commentator has stated:

The first legal prescription for belligerents during hostilities is not to target civilians directly, that is to say intentionally. However, harming civilians is not in itself illegal. An injury to civilians or damage done to civilian objects as a side-effect of a military operation may be permissible provided that it is proportionate to the military gain anticipated from the operation.⁶

While intentional targeting of civilians is prohibited, the critical, and often indiscernible in the heat of battle, question raised by the principle of proportionality, is what actions on the battlefield are “excessive” compared with the results to be obtained. The principle is flawed in its practical application in all but the most obvious of combat situations.

The 1990-91 Persian Gulf War changed the practical application of the principle of proportionality and the laws of armed conflict, and significantly contributed to the present unreasonable expectations regarding warfare, albeit unintentionally. Two occurrences were significant.

The first was the employment of precision-guided munitions. Although the conflict was not the first in which they were employed, it was the first in which they received significant press coverage. One of the iconic images of that conflict occurred at a briefing held by General Norman H. Schwarzkopf, the commander of coalition forces. Two weeks after the commencement of air operations, Schwarzkopf showed reporters a video of a precision-guided munitions strike on an Iraqi bridge. He announced, “I’m now going to show you a picture of the luckiest man in Iraq,” as an unknowing driver drove through the attacking aircraft’s crosshairs, clearing the bridge just moments before the bomb struck.⁷ Although only nine percent of the tons of bombs expended on Iraqi forces during the Persian Gulf War were precision munitions,⁸ their impact on warfare was game changing. Now, the principle of proportionality gained new significance. “Smart” weapon systems apparently would allow precise targeting to avoid “collateral damage” and ensure non-combatant casualties were minimized if not avoided entirely. The employment of these systems was described as bringing about “a revolution in warfare.”⁹

The second significant development was the small number of casualties suffered by American and allied forces. Prior to the war, the US Department of Defense estimated that nearly 20,000 Americans would be killed in action, with hundreds of thousands expected wounded.¹⁰ But the actual outcome of the fighting was less than 200 battle and non-battle deaths for US forces. War, it seemed, now could be fought precisely and with limited casualties.

As the United States and those nations fighting along side it have engaged in combat operations against terrorism world-wide, a new layer of complexity has been added to warfare, one which further has contributed to its sanitization: restrictive rules of engagement. The increased accuracy of precision-guided munitions and the apparent desire to ensure compliance with the principle of proportionality of international humanitarian law, have resulted in further limitations being placed upon members of the armed forces in battle to determine when, where, and how they can respond to various combat situations. The rules of engagement have been described as “those directives that delineate the circumstances and limitations under which United States (US) forces will initiate and/or continue combat engagement.”¹¹ The International Institute of Humanitarian Law has published a handbook on rules of engagement. This handbook, published in 2007, “reflects the results of a three year project initiated by [a professor at] the United States Naval War College, with the full support of the Institute, who identified the need for a common rules of engagement reference that could be used by any nation for training and/or operations.”¹²

The rules of engagement that have been applied in combat operations in Afghanistan and Iraq have placed greater risks and responsibilities on troops on the ground. The restrictive rules of engagement have been frequently criticized, albeit with little effect. One recent commentator has described the rules of engagement as imposing

additional and legally unnecessary restrictions on the use of military force. Rules of engagement represent true war-by-wonk, in which a deadly brew of lawyers, politicians, soldiers, and social scientists endeavors to fine-tune the use of military force to somehow kill the enemy while ‘winning over’ the local population even as the local population is in the direct line of fire.¹³

The use and application of restrictive rules of engagement likely has resulted in increased casualties to United States forces as well as those fighting with it. Forces in contact with the enemy often must now contact a military attorney for approval before requesting fire support or even responding to direct enemy fire. For example, during the Battle of Ganjgal in Afghanistan, United States forces were precluded from employing air to ground or indirect fire against buildings that might be occupied by civilians. As then-Captain Will Swenson, who received the Medal of Honor for his gallantry that day later asked, why was he “being second-guessed by [higher-ups] or somebody that’s sitting in an air-conditioned” office.¹⁴

As a result of this sanitization, unreasonable expectations have developed regarding war and warfare. Few if any combat casualties are expected from any operation, no matter how dangerous. As the percentage of the population who serve in the military has decreased, the lower number of losses only serves to increase the lack of nation-wide participation in war and the decision to go to war. Now, fewer and fewer citizens, whether in the United States or elsewhere even know someone who knows a casualty, much less have direct contact with one. Unfortunate civilian casualties that occur are almost always decried as a “war crime.” Mistakes, apparently, no longer are permitted to occur on the battlefield. But they do occur – unintentionally. As war has become sanitized, leaders in government may too easily or readily resort to it. But war should be the last and most reluctant policy choice.

A new dialogue and education regarding war and warfare is needed. Both within and without the military, discussions should occur regarding war, how it is conducted, and its unchanging horrific character. Policy leaders should more fully understand that the recent levels of casualties and apparent technological developments in military weapons do not change the inherent nature of war. Domestically and internationally, all persons should carefully consider the real nature of warfare. Three decades have now past since the Additional Protocols to the 1949 Geneva Conventions were adopted. Military technology has significantly changed since then. Although perhaps unlikely in the current international political environment, the time has come for new conventions to update the laws of armed conflict to the present realities of war, how it may be conducted, and inherent limitations on how “sanitary” war can be. The present perceptions and expectations regarding war must be countered to ensure that General Sherman’s description of war, provided to the mayor of Atlanta nearly 155 years ago, remains apt and fresh in mind.

References

1. Letter, Sherman to James M. Calhoun (mayor of Atlanta), Sept. 12, 1864.
2. Carl von Clausewitz, On War, edited and translated by Michael Howard and Peter Paret (Princeton: Princeton University Press, [1976] 1984), 87.
3. See generally Adam Roberts and Richard Guelff, eds., Documents on the Laws of War 3^rd ed. (Oxford, UK: Oxford University Press, 2000), 67-138, 195-370, 419-512.
4. United States Marine Corps, The Basic School, Marine Corps Training Command, Student Handout B130936, “Law of War/Introduction to Rules of Engagement,” p. 4 (available at: http://www.trngcmd.marines.mil/Portals/207/Docs/TBS/B130936%20Law%20of%20War%20and%20Rules%20Of%20Engagement.pdf).
5. Article 51(5)(b), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I) (June 8, 1977) (available at: https://www.icrc.org/eng/assets/files/other/icrc_002_0321.pdf).
6. Janina Dill, “Applying the Principle of Proportionality in Combat Operations,” Oxford Institute for Ethics, Law, and Armed Conflict (Dec. 2010), p. 3 (available at: http://www.elac.ox.ac.uk/downloads/proportionality_policybrief_%20dec_2010.pdf).
7. Mark Thompson, “‘Stormin’ Norman,’ 1934-2012,” Time (Dec. 27, 2012) (available at: http://nation.time.com/2012/12/27/stormin-norman-1934-2012/).
8. Richard P. Hallion, “Precision Guided Munitions and the New Era of Warfare,” Air Power Studies Centre Paper No. 53 (1995) (available at: https://fas.org/man/dod-101/sys/smart/docs/paper53.htm).
9. Ibid.
10. Brad Knickerbocker, “Pentagon’s quietest calculation: the casualty count,” The Christian Science Monitor (Jan. 28, 2003) (available at: https://www.csmonitor.com/2003/0128/p01s02-woiq.html).
11. United States Marine Corps, “Law of War/Introduction to Rules of Engagement,” p. 2.
12. International Institute of Humanitarian Law, Rules of Engagement Handbook (2007), p. ii (available at: http://www.jag.navy.mil/distrib/instructions/San-Remo-ROE-Handbook.pdf).
13. David French, “How Our Overly Restrictive Rules of Engagement Keep Us from Winning Wars,” National Review(Dec. 21, 2015) (available at: http://www.nationalreview.com/article/428756/rules-engagment-need-reform). See also David G. Bolgiano and John Taylor, “Can’t Kill Enough to Win? Think Again,” Proceedings(Dec. 2017).
14. David Nakamura, “For Medal of Honor recipient Capt. William Swenson, a rocky path to the White House,” The Washington Post (Oct. 12, 2013) (available at: https://www.washingtonpost.com/politics/2013/10/12/2be06742-2f7c-11e3-bbed-a8a60c601153_story.html?utm_term=.6a8c239c337e).