The International Law Imperatives on
the Military
Ethics
By Major General Arne Willy Dahl
1. Introduction
Generals, ladies and gentlemen, I have been asked to speak at this symposium on «The International Law Imperatives on the Military ethic», which I shall do. But it is not as simple as that. The picture will be incomplete unless we include other aspects of the relation between these entities, asking ourselves questions such as whether there might be rules in International Law, which in certain circumstances should be considered unethical?
I shall also allow myself to take into consideration new factors influencing on Military Ethic, factors not strictly legal but referring to the way existing Law operates in circumstances new for the military, such as peacekeeping operations.
2. The relation between Law and Ethics
Without immersing ourselves deeply into legal philosophy, it can be said that Law is partly a practical and partly an ethical matter. In some countries you are obliged under Law to drive your car on the left–hand side of the road, in other countries the rule is the opposite. The rules concerning commerce, legal procedure, military justice and many other matters may differ between countries, and we do not perceive any significant ethical element in these differences.
Other rules, such as those protecting life and physical integrity, property and honour, family and privacy, justice and democracy, are heavily influenced by ethical considerations, more or less drawn from the biblical Ten Commandments or comparable ethical imperatives, and rooted in deep feelings of men.
Such rules, when enacted and enforced as Law, will in turn exert influence in the opposite direction, giving the unwritten ethical rule enhanced authority and clarity. It is this influence that is the theme of this presentation.
3. What is military ethic?
Military ethic is a theme to write books and organise symposiums about. In this connection I shall restrict myself to indicate in shorthand some typical ethical attitudes among officers, relating to their profession:
Fulfil your mission. Obey orders, do not give up, overcome resistance.
Take care of your men. The commander is the father of his soldiers. Minimise losses as far as it is compatible with fulfilling the mission.
Be loyal. Do not betray your superiors, subordinates or fellow officers in word or deed.
Be brave. Your personal safety is subordinate to your duty to fulfil your mission and take care of your men.
Keep in mind that military operations are not private acts, but on behalf of your country – in Norway symbolised as the King, our supreme commander in war.
4. International Law – a short overview
General
International Law regulates generally speaking rights and duties between states, and covers a broad field of matters. In our context, we shall look into the part of International Law of Armed Conflict – or International Law of War. The term «International Humanitarian Law» is also used, denoting basically the same body of Law, but indicating that the purpose of most of the rules is to avoid or mitigate human suffering. As opposed to International Law in general, the law of Armed Conflict lays down duties on the individual, as head of state, officer, soldier or civilian.
International Law accepts that under certain conditions, states are entitled to resort to the use of physical force, ordering their armed forces to commit acts which in peacetime would be considered as grave crimes, also accepting that the persons committing these acts are not criminally or otherwise legally responsible for acts being «lawful acts of war».
International Law, however, does not give the armed forces a free rein. To be a lawful act of war, the use of armed force must be within certain limits.
Protection
For many officers, «International Law» and «The Geneva Conventions» are perceived as synonymous. The Geneva Conventions of 1949 protect the wounded and sick, medical and spiritual personnel, shipwrecked, prisoners of war and civilians in the hands of the enemy. These categories of persons do not pose any military threat to the enemy, and are mostly in a vulnerable position. Violence against and mistreatment of such protected persons serves no valid military purpose, and is universally considered as deeply unethical.
But the Geneva Conventions do not stand alone. The 1954 Hague convention confers a similar protection to important religious and cultural property that is not used for military purposes.
What about civilian property and civilian persons in general? A long–standing customary rule is that civilians are not to be attacked and civilian property should not be attacked unless military necessity so demands. How this somewhat vague rule should be implemented in new circumstances, were put to test during World War II.
Lawful objects of attack
In the Casablanca declaration of January 1943 it was said that aerial bombing would be aimed at «the progressive destruction an dislocation of the German military, industrial and economic system, and the undermining of the German people to a point where their capacity for armed resistance is fatally weakened.»
At the outbreak of war in Europe, Roosevelt had dispatched messages to all belligerents urging them to refrain from the «inhuman barbarism» of bombing civilians. Even after Pearl Harbour, leaders of American air power emphasised daylight precision bombing, aimed at the destruction of selected military targets. To accomplish this, one had to have air superiority, which was not achieved over Germany before late 1944. For the British, who relied on night bombing, practical difficulties in finding targets much smaller than a city in darkness, and a gradual development of attitudes led to large–scale attacks on cities of highly dubious military significance. Towards the end of the war, both British and Americans had more or less made a target of the general population of German and Japanese cities, leaving a moral scar on the very powers that had announced that they were fighting for democracy and human values.
This moral scar made it impossible to include rules protecting the general civilian population in the four Geneva Conventions of 1949, leaving the matter to the Additional Protocols of 1977. The Additional Protocols demand that attacks shall be limited strictly to military objectives, ruling out general habitation areas as lawful targets.
Illegal weapons
The right of belligerents to adopt means of injuring the enemy is not unlimited. This statement is taken from the 1907 Hague regulations respecting the laws and customs of war on land. The more exact limits are found in various conventions, with new developments of the Law taking place as technology gives potential for new weapons, or political or military developments makes old weapons stand in a new light.
The basic underlying rules are, however, simple. The first rule is that one should avoid the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable (1864 St. Petersburg Declaration); the second is that it is prohibited to use indiscriminate weapons, which are means of combat which cannot be directed at a specific military objective.
Among the traditionally banned weapons are dumdum or expanding bullets, and since 1925 poison gas, the definition of which has been expanded in the 1993 chemical weapons convention to include riot control agents.
5. Respect and protect
From what I have said so far, one can get the impression that International Law of War consists of a number of «thou shalt not's». But this is not the whole truth. In the Geneva Conventions it says that the persons under the protection of the conventions shall be respected and protected. This means activity, more specifically described for instance in article 15 of the first Geneva Convention which reads:
At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill–treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.
This duty of activity must be balanced by the principle of military necessity, which shines through in the next sentence of the same article:
Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield.
The balancing of the imperative of rescuing humans in peril with military necessity, is a matter of Law and a matter of military ethic. A well–known example is the fate of the survivors of the sinking of the German battleship Bismarck in 1941. A great number of men were lying in the water when the big ship had gone down, and two British warships were picking up survivors. Suddenly the ships started to move, leaving behind several hundreds of men to drown. The reason? A submarine had been reported in the vicinity. The British commander decided that he could not risk his vessels by staying as a sitting duck among the shipwrecked sailors.
6. The enemy is also a human being
The perception of military necessity depends on the concept of war. Our understanding of what war is all about determines our understanding of what is necessary – since the necessity must be related to something that is to be achieved, and to the likely countermoves by the enemy, which in turn is influenced of what the enemy thinks the war is all about.
A war of extermination has its own logic that is incompatible with legal restraints. In such kind of war, military necessity will reign supreme, without any counterbalance. Although we have seen in recent times wars being more or less wars of extermination, such situations do not merit legal or ethical consideration.
The world has also seen societies considering wars almost like tournaments between kings or nobles, being much a matter of glory and honour. In such wars there is not much room for military necessity – in the extreme case it could be said that a victory which is not won playing by the rules, is no real victory, since it will not bring the glory intended.
How about us – what do we think war is all about? The military philosopher Carl Von Clausewitz considers war as a tool for coercion, a tool that should be used with restraint in order to avoid that the means defeat the end – which should be a settlement of the dispute and peaceful co–existence with the former enemy.
The soft aspect of this interpretation of clausewitzian thinking is that the enemy should be offered a way out of the conflict with minimal loss of material and moral resources, like the African tribes which according to tradition never encircled the enemy completely but always left open a possibility for retreat (or flight).
The hard aspect would be to focus on coercion, assuming that the enemy should be deprived of as much of his resources as quickly as possible, leaving no room for orderly retreat for troops that might reappear fresh on the battlefield on a later day, giving the enemy death or submission as the only alternatives. This means that also the fleeing enemy is a lawful target.
The Law as it is today, conforms to the hard aspect of clausewitzian thinking. The soft aspect is a matter of expediency, and can be pursued if it is found to be in our own long–term interest. In the hearts of men, there is, however, reluctance against firing at persons fleeing from you. There is also reluctance against wasting human life, if the battle could be won by less bloodshed.
Under present Law, the military commander is not under any obligation to minimise the loss of life among the enemy soldiers, on the contrary, it will in many situations be his duty to maximise the enemy's losses, at least by putting as many of his soldiers as possible hors de combat not necessarily killing them.
But if the commander has a real choice between alternatives, one being less life consuming than the other, both leading to a successful outcome of a decisive engagement, should he not seek the less bloody? I think most people today would say: Yes, he should. Enemy soldiers are also human beings, and should be spared when the mission permits. And I would not be surprised if some military tribunal some day declares this to be the Law.
7. Force protection at any cost?
Under present Law, the military commander is not under any obligation to minimise the loss of life among the enemy soldiers, but he is under the obligation to minimise civilian losses. In addition to directing his attacks against military objectives avoiding civilian persons and objects, the Law also requires him to do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and to take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects.
On the other hand, the commander is required to take care of his men and not put their life at risk unless the mission so demands. The Law is silent on whether considerations of force protection are valid when choosing between alternative means and methods, or whether he is obliged to put his men at risk by ordering them to close in on a suspicious object in order to verify whether it includes an enemy position or is the home of a harmless peasant.
In other words: Are force protection considerations a kind of military necessity considerations, which are valid elements in the interpretation of the duty to minimise civilian losses?
My answer would be: Yes – force protection is a valid consideration – but not at any cost. We are not allowed to level everything within sight because that is safest for our own troops. Our concern for our own boys must be reasonable, not forgetting that we are under an obligation to spare civilians.
How do I arrive at this conclusion? Not by studying legal texts alone. My conclusion is basically ethical, weighing conflicting legal obligations on ethical scales, which is how I expect a court would do. This leads to the conclusion that in certain situations the ethical (and legal) obligation to take care of ones men to some extent will have to yield to our obligations under modern International Law.
8. Minimum or overwhelming force?
According to Donald Duck, the general wins that arrives first with the most. Maybe he was citing some authority – anyway it is common military knowledge, that the sooner you defeat the enemy, the less time he has to inflict losses on you. It is therefore advisable to meet the enemy with superior force locally, and there is no room in modern war for any chivalrous doctrine of taking on the adversary with even means, by for instance restricting your choice of weapons to those the adversary also possesses.
Today, a growing proportion of military operations are
is not aimed at defeating some adversary, but are some variety of
peace–keeping or peace enforcement. In these operations, the
doctrine of overwhelming force still applies
if there is a
situation when some armed faction has to be defeated, or someone is
to be pacified by the threat of armed force. In this sense,
overwhelming force, or potential overwhelming force, is good force
protection.
But when it comes to actual use of force in peacekeeping or peace enforcement operations, there will be many situations where the opposite doctrine will be most appropriate. When dealing with civilians, the proper doctrine is the police doctrine of minimum force. This is because peacekeeping to a certain extent is police operations performed by military personnel.
The mission will be different from the traditional mission of defeating the enemy. In the traditional military mission the soldier can relieve himself from his fear by doing something about the situations, by using his weapons. In a peacekeeping mission this will not always be possible. The soldier will have to wait and see, not shooting just to be sure, relying more on talking and negotiating skills than on his weapons. The obligation to be brave has got a different meaning.
But there are also other problems. In police operations there are other situations and considerations than in combat operations. What about the use of riot control agents? In situations when peacekeeping troops are facing a hostile mob, riot control agents can be appropriate, according to the minimum force rule, even if they are outlawed as weapons on the battlefield. A similar problem can arise when there are individuals in a mob, threatening our personnel. Can these be “taken out” by snipers on our side using dumdum bullets, which will be far less dangerous to more or less innocent bystanders or women and children in the mob, than conventional military ammunition which will pass right through the person which is to be stopped from shooting at our men.
9. The Martens Clause
In cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.
This is the so–called Martens Clause, dating back to the Hague Conventions of 1907, named after the Russian plenipotentiary professor Martens from Lithuania. The clause means that not everything that is not prohibited is allowed. The line is to be drawn ultimately by ethical, not strictly legal considerations.
10. The Nuremberg Principle
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. (Nuremberg tribunal statute, article 8)
The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
The person was under a legal obligation to obey orders of the Government or the superior in question;
The person did not know that the order was unlawful; and
The order was not manifestly unlawful.
For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. (International Criminal Court statute art.33)
This so–called Nuremberg principle, which was well known in German military Law before the second world war, means that officers and soldiers have a duty to know the difference between right and wrong, and a duty to disobey unlawful orders. The obligations of loyalty and obedience to your superiors must yield to obligations of loyalty and obedience to principles, demanding moral courage to stand up against those who order you to commit criminal acts.
11. The justification for bearing arms
In the European Middle Ages, the knight had the right to bear arms and use armed force in order to promote justice and protect the defenceless.
In modern times, the soldier bears arms and uses them in order to protect his country.
What is the justification for using armed force in Bosnia or Kosovo today? Are we returning to the middle ages, positively speaking?
12. Summary
International Law of armed conflict is heavily influenced by ethical considerations and has also a heavy influence on Military Ethic.
Since World War II, developments in both ethical and legal thinking have revitalised the customary rule of restricting attacks to military objectives.
The balance between the duty to rescue fellow humans in peril, and military necessity, is an ethical dilemma, maybe even more than a legal.
The military commander has an ethical obligation to minimise losses among enemy soldiers if the mission permits.
The military commander’s ethical obligation to minimise losses among his own men must be balanced against his obligation to minimise losses among enemy civilians.
Peacekeeping operations require using police doctrine rather than conventional military doctrine.
The Martens Clause means that the ultimate line between the legal and the illegal is to be drawn by ethical considerations.
The Nuremberg principle demands loyalty to superior principles, not to superior persons.
The justification for bearing arms is the defence of superior principles, not of territory or of national interest.
Arne Willy Dahl (F 1949) Generaladvokat. Adr: Pb. 651 Sentrum, 0106 Oslo.