The first article I have seen on my favorite hobby horse.
Glenn Sulmasy: Balancing needs of law and war
07:20 AM EDT on Wednesday, July 11, 2007
GLENN SULMASY
NEW LONDON -- LAW AND WAR have never mixed comfortably. This seems all the more true in the wars of the 21st Century. The recent military hearings on the conduct of Marines in the battle for Haditha, Iraq, exemplifies the ambiguities that U.S. forces now face when confronting the faceless enemy of al-Qaida.
Law is now involved in all layers of combat. Nations continue to struggle how best to incorporate humanitiarian, or chivalrous, principles into the ethos of war. Al-Qaida makes this all the harder since the enemy, as doctrine, flouts the laws of war and acts in complete disregard of humanitarian principles — let alone the laws of armed conflict.
As a result of this complex mix of law and war since the end of the Cold War, the involvement of military lawyers has increased dramatically. Once viewed as mere lawyers in uniform, they are now critical "players" at every layer of the command structure — and often in the field with combat troops in both Afghanistan and Iraq.
Their steady, learned advice on the laws of war has understandably earned the "combat JAG" (judge advocate general) an enhanced status within the armed forces as well as within international human-rights organizations and U.S. civilian leadership.
However, as a result of this enhanced status, combat JAGs are in the unenviable position of advising on novel wartime legal issues as part of ongoing military operations — e.g., whether it is legal to attack a terrorist cell in the midst of a civilian population center; or to attack an apparent day-care center that the enemy now uses as a communications suite to order attacks against coalition forces; or determining whether apparent enemies are actual enemies or civilians mixed in with combattants (as in the Vietnam conflict).
It is an increasingly difficult task for commanders to make these decisions and ensure that they are not later labeled and/or tried as a "war criminals." These decisions, of course, have to be made during the heat of battle. The commanders, therefore, come to rely in great part on their JAGs. Some in the military and academia question whether such legal involvement in combat is appropriate..
Clearly the law now affects operational combat decision-making more than ever before.
It sometimes seems as if current debates over warfare anticipate that no civilian casualties will occur in wartime. Such expectations are unrealistic and endanger the pursuit of legitimate military objectives for the U.S. now and in the future.
Although minimizing civilian deaths is something that all civilized nations strive to achieve, and the U.S. military is taking enormous strides to implement such principles, military forces in combat have the primary mission of achieving victory.
U.S. forces continue to consistently adhere to the law/policy of measuring the military advantage of certain actions against the impact on the civilian populace. This law/policy has been incorporated into the ethos of the American warrior. However, making such determinations regarding al-Qaida is terribly complex and now often subject to 20/20 hindsight by those who disagree with the policies of the civilian leadership.
The hearings on Haditha highlight how the law has come to affect military operations. Currently, the United States (and the West) is trying to figure out the proper level of attention required for each. A proper balance between these two entities, law and war, will be the key to our ability to wage wars in the future.
Glenn Sulmasy teaches international law at the U.S. Coast Guard Academy. The views here are his own and not those of the academy or other branches of the U.S. government.
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