My apologies here but the subject of LOAC sends me scrambling for my “soap box”. I am happy that CP raised the issue of the LOAC. IMO, besides Strategy, LOAC is another subject where General Officers need to do a lot of homework. In both the Iraq and Afghanistan, the “war fighting” general’s establishment and application of ROEs, in many cases, left them looking like a pack of monkey-butts. The LOAC are political and if the senior military leadership can’t explain their proper implementation, politicians will step in via the media with poisoning information and policies that work against combat operations and undermine the military leadership. Every General Officer once selected and before he pins on his first star should be required to read “Fighting Today’s Wears – How America’s Leaders Have Failed Our Warriors” – by David G. Bolgiano and James M. Patterson. They should also be instructed on recognition of Strategic Legalism.
At the beginning of the Civil War President Lincoln suspended Habeas Corpus but he knew he had to replace it with some form of rules and regulations for the war. He turned to Franz Lieber, a jurist teaching ethics at the Columbia Law School in South Carolina. As a young Prussian Officer Lieber was wounded at the Battle of Waterloo. He recovered and continued his military career and eventually migrated to the US.
The Lieber Code was adopted and implemented by the US Army as General Order 100. The Code established the first codification of the Laws of War.
An interesting fact is Lincoln sent the General Order 100 to Confederate President Jefferson Davis telling him this is how the Union Army is going to fight the civil war. Lieber’s genius is that General Order 100 is self-policing because of Article 27, labeled as the “sternest feature of war”, establishing “retaliation” as a righteous act against a “reckless enemy” for “conducting repetition of barbarous acts”. In other words, if you do it to us, we will do it to you in retaliation. This article solved Lincoln’s issue with the Jeff Davis’s order to hang captured white officers commanding black units and sending captured black soldiers into slavery.
Clearly, the LOAC primary purpose is to protect civilians but they also offer protection to our warriors. As a “Combatant” our warriors are immune from the charge of murder. Why, because our government sends our civilians into combat as legal combatants with orders to kill the enemy. I never witnessed the charge of “killing civilians” in a US “war crime” court martial. The defendants are always charged with murder. There are two “elements of proof” for murder; you gotta have a body and you gotta have intent. Last I looked there is usually a lot of both on the battle field. The issue here is murder makes for a perceived easy prosecution for the Convening Authority. In addition, if you charge them with “killing civilians” that brings into question the general’s ROE focusing on his responsibilities.
The LOAC principle of “Distinction” establishes the clear difference between combatants and civilians. When you see a Marine in his “battle rattle” there is no doubt he is a combatant. Civilians have a “strict” requirement to stay out of the fight. If you are a civilian and you pick up a weapon, you make yourself a combatant (if you are still dressed as a civilian, the bad news is you are now a legitimate target for both sides). According to the LOAC even if you drop the weapon you are still a combatant.
The Lieber Code also established the LOAC principle of “Military Necessity”. Lieber believed that a rigorist war makes for a short war and a short war makes for a merciful war. LOAC experts have stated the principle of Military Necessity “lubricates the wheels of the LOAC” because it “is the cause that sets in motion the measures taken towards the effect of gaining a military advantage over the enemy”. I think that generals forget that “The center of gravity of hostilities is the planning and execution by all levels of command of attacks against the enemy, i.e. acts of violence”. As you read the references on “Proportionality” remember that it is subordinate to Military Necessity.
The LOAC are general in nature because they have to be in order to cover all the different incidents and circumstances that occur in combat. The laws of war are therefore very open to subjective interpretation and frankly our warriors always deserve the benefit of doubt. In addition, under no circumstances should a General Court Martial Convening Authority, let himself be politically pushed by the media into legal proceedings against our warriors. Folks besides strategy, organization, and weapons there is a lots of other items we need to get squared away and fitted in the war with China seabag.
This article is written by a USA LtGeneral, the senior USA lawyer, highly recommend it.
Our military mindset has been infected by a civilian law enforcement paradigm. Disrupt, neutralize or out maneuver make the mind set overlook “destroy”. The Iron Dome is a passive system of resistance that does not strike at the source of the enemy missiles. It does not destroy where they are manufactured or fired from and the humans engaged in those efforts. Civilians are not legitimate targets. That is wanton, barbaric slaughter. Unless of course they assist in the manufacture, transport and launching, report friendly troop movements or otherwise do not remain neutral in every regard. Every poll reveals that the citizens of Gaza are not neutral or “innocent civilians.” They are part and parcel to the deception and violations of the rules of war. Anyone seen white flags from their dwellings? If Hamas will not let them be neutral, they are not neutral.
For decades we have danced like angels on a pinhead trying to determine the actual enemy combatants and gotten it wrong every time. Failures that the enemy exploits and costs the lives of our own people. Innocent civilians are those who surrender. The rest remain combatants of some form or another. Their mental calculus is important. They cannot just be “ innocent”. They must demonstrate their innocence via surrender. That removes doubt and ends conflicts quicker. There can be no large grey middle ground. Compassion can be misconstrued as weakness.
“War means fighting and fighting means killing” Major General Nathan Bedford Forest CSA
My apologies here but the subject of LOAC sends me scrambling for my “soap box”. I am happy that CP raised the issue of the LOAC. IMO, besides Strategy, LOAC is another subject where General Officers need to do a lot of homework. In both the Iraq and Afghanistan, the “war fighting” general’s establishment and application of ROEs, in many cases, left them looking like a pack of monkey-butts. The LOAC are political and if the senior military leadership can’t explain their proper implementation, politicians will step in via the media with poisoning information and policies that work against combat operations and undermine the military leadership. Every General Officer once selected and before he pins on his first star should be required to read “Fighting Today’s Wears – How America’s Leaders Have Failed Our Warriors” – by David G. Bolgiano and James M. Patterson. They should also be instructed on recognition of Strategic Legalism.
https://smallwarsjournal.com/blog/strategic-legalism
At the beginning of the Civil War President Lincoln suspended Habeas Corpus but he knew he had to replace it with some form of rules and regulations for the war. He turned to Franz Lieber, a jurist teaching ethics at the Columbia Law School in South Carolina. As a young Prussian Officer Lieber was wounded at the Battle of Waterloo. He recovered and continued his military career and eventually migrated to the US.
The Lieber Code was adopted and implemented by the US Army as General Order 100. The Code established the first codification of the Laws of War.
https://blogs.loc.gov/law/2018/04/the-lieber-code-the-first-modern-codification-of-the-laws-of-war/
An interesting fact is Lincoln sent the General Order 100 to Confederate President Jefferson Davis telling him this is how the Union Army is going to fight the civil war. Lieber’s genius is that General Order 100 is self-policing because of Article 27, labeled as the “sternest feature of war”, establishing “retaliation” as a righteous act against a “reckless enemy” for “conducting repetition of barbarous acts”. In other words, if you do it to us, we will do it to you in retaliation. This article solved Lincoln’s issue with the Jeff Davis’s order to hang captured white officers commanding black units and sending captured black soldiers into slavery.
Clearly, the LOAC primary purpose is to protect civilians but they also offer protection to our warriors. As a “Combatant” our warriors are immune from the charge of murder. Why, because our government sends our civilians into combat as legal combatants with orders to kill the enemy. I never witnessed the charge of “killing civilians” in a US “war crime” court martial. The defendants are always charged with murder. There are two “elements of proof” for murder; you gotta have a body and you gotta have intent. Last I looked there is usually a lot of both on the battle field. The issue here is murder makes for a perceived easy prosecution for the Convening Authority. In addition, if you charge them with “killing civilians” that brings into question the general’s ROE focusing on his responsibilities.
The LOAC principle of “Distinction” establishes the clear difference between combatants and civilians. When you see a Marine in his “battle rattle” there is no doubt he is a combatant. Civilians have a “strict” requirement to stay out of the fight. If you are a civilian and you pick up a weapon, you make yourself a combatant (if you are still dressed as a civilian, the bad news is you are now a legitimate target for both sides). According to the LOAC even if you drop the weapon you are still a combatant.
The Lieber Code also established the LOAC principle of “Military Necessity”. Lieber believed that a rigorist war makes for a short war and a short war makes for a merciful war. LOAC experts have stated the principle of Military Necessity “lubricates the wheels of the LOAC” because it “is the cause that sets in motion the measures taken towards the effect of gaining a military advantage over the enemy”. I think that generals forget that “The center of gravity of hostilities is the planning and execution by all levels of command of attacks against the enemy, i.e. acts of violence”. As you read the references on “Proportionality” remember that it is subordinate to Military Necessity.
https://sites.duke.edu/lawfire/2023/10/26/geoff-corn-on-the-disproportionate-confusion-about-proportionality/
https://sites.duke.edu/lawfire/2023/11/14/guest-post-dave-graham-on-the-oft-forgotten-strategic-component-of-the-loac-proportionality-calculation/
The LOAC are general in nature because they have to be in order to cover all the different incidents and circumstances that occur in combat. The laws of war are therefore very open to subjective interpretation and frankly our warriors always deserve the benefit of doubt. In addition, under no circumstances should a General Court Martial Convening Authority, let himself be politically pushed by the media into legal proceedings against our warriors. Folks besides strategy, organization, and weapons there is a lots of other items we need to get squared away and fitted in the war with China seabag.
This article is written by a USA LtGeneral, the senior USA lawyer, highly recommend it.
https://sites.duke.edu/lawfire/2020/03/07/ltg-pede-on-the-coin-ct-hangover-roe-war-sustaining-targets-and-much-more/
https://sites.duke.edu/lawfire/2021/12/06/dont-let-overly-restrictive-strike-policies-hamper-the-fight-against-the-islamic-state-and-al-qaeda/
Bedford was only underestimated by those who didn't get crosswise with him. Would that we could clone him up and fill the Pentagon and Navy Annex.
Very well said!
Our military mindset has been infected by a civilian law enforcement paradigm. Disrupt, neutralize or out maneuver make the mind set overlook “destroy”. The Iron Dome is a passive system of resistance that does not strike at the source of the enemy missiles. It does not destroy where they are manufactured or fired from and the humans engaged in those efforts. Civilians are not legitimate targets. That is wanton, barbaric slaughter. Unless of course they assist in the manufacture, transport and launching, report friendly troop movements or otherwise do not remain neutral in every regard. Every poll reveals that the citizens of Gaza are not neutral or “innocent civilians.” They are part and parcel to the deception and violations of the rules of war. Anyone seen white flags from their dwellings? If Hamas will not let them be neutral, they are not neutral.
For decades we have danced like angels on a pinhead trying to determine the actual enemy combatants and gotten it wrong every time. Failures that the enemy exploits and costs the lives of our own people. Innocent civilians are those who surrender. The rest remain combatants of some form or another. Their mental calculus is important. They cannot just be “ innocent”. They must demonstrate their innocence via surrender. That removes doubt and ends conflicts quicker. There can be no large grey middle ground. Compassion can be misconstrued as weakness.