The Law of War: The Rules

“This [the Global War on Terrorism] is a fight for the very ideas at the foundation of our society, the way of life those ideas enable, and the freedoms we enjoy.”1 In their paper titled, “Serving a Nation at War: A Campaign Quality Army with Joint and Expeditionary Capabilities,” coau-thors R. L. Brownlee, former acting Secretary of the Army, and General Peter J. Schoomaker, Chief of Staff, Army, make two points quite clear — they believe the Global War on Terrorism (GWOT) is a fight for Western values, and the current operational environment (COE) is driving the Army to make evolutionary changes.2 One might argue those Western values deserve to be transformed.3 Prominent among them is the collection of principles embodied in the Law of War. The Law of War was written by theologians, jurists, academicians, diplomats, and others for use as a framework, a distinctly Western moral compass, as it were. Because the GWOT represents a cultural clash of global proportions, a troubling disparity about combatant conduct is emerging, prompting some to ques- 26 —

Have Not Yet Changed tion the continued application of current Law of War principles. On 7 February 2002, President George W. Bush issued a memorandum in which he stated: “The war against terrorism ushers in anew paradigm. …Our nation recognizes that this new paradigm — ushered in not by us, but by terrorists — requires new thinking in the Law of War, but thinking that should nevertheless be consistent with the principles of Geneva.” Former Secretary of Defense, James Schlesinger, offered this recommendation from the Final Report of the Independent Panel to Review DoD Detention Operations: “The United States needs to redefine its approach to customary and treaty international humanitarian law, which must be adapted to the realities of the nature of conflict in the 21st Century. In doing so, the United States should emphasize the standard of reciprocity, in spite of the low probability that such will be extended to United States Forces by some adversaries, and the preservation of United States societal values and international image that flows from adherence to recognized humanitarian standards.”4 One should take the time to address several questions before joining this controversial debate. — 27

Understanding the Law of War “It can only be the earnest desire of all men of good will to ensure that this Convention is made to work in accordance with its tenor.”5 This quote refers to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, more commonly known as the Fourth Geneva Convention of 1949, or “GC.” It might seem antithetical to expect combatants to conduct themselves as “men of goodwill” and adhere to humanitarian principles, and yet that was, and remains, the expectation upheld by a majority of nation-states. The current popularity of the topic requires the reader to address several basic questions. For example: why regulate war; assuming intent to regulate war, then what is the Law of War; what is the purpose of the Law of War and what are its unifying themes; and finally, how is the Law of War triggered? This article is designed to help the reader draw conclusions about the Law of War’s applicability in the face of contemporary challenges presented by the Taliban in Afghanistan, Ba’ath Party remnants and disaffected civilians in Iraq, the global al-Qaeda network, and the COE at large. Why Regulate War? Given the ramifications of a decision to wage war, is it not prudent to undertake it as violently, as efficiently, as horrifically as possible, applying, as it were, an “ends justifies the means” approach? Why did the Law of War ever evolve at all, since going to war is recognized as an accepted means of resolving conflicts? Perhaps because man is, at his very core, a rational being, and over time, he acknowledged the need to balance tactical military capabilities with strategic social harmony. Historian Peter Paret notes that 16th- and 17th-century writings on the subject of war generally fall into two categories: a collection of what he calls “pioneer” works in the field of international law and “pioneer” works detailing advances in military technology.6 Before this period, conflict was generally characterized as unregulated warfare, subsequently embodied in what Paret characterized as Francis Bacon’s “unabashed advocacy of unrestricted war.”7 But the societal backlash resulting from the Thirty Years War led to the advent of a group of men opposed to the unregulated destructiveness that typified war on the continent. These men, the most famous being the Dutchman Hugo Grotius, advocated measures intended to protect private persons and their rights. They believed the law of nature contained fundamental precepts suited to how nations should be governed, and their works collectively endorsed one central principle described by Paret as being “that nations ought to do to one another in peace, the most good, and in war, the least possible evil.”8 According to the U. S. Army’s Judge Advocate General (JAG) School, efforts to formally regulate war can:

• Motivate the enemy to observe the same rules.

• Motivate the enemy to surrender.

• Guard against acts that violate basic tenets of civilization, such as protecting against unnecessary suffering/safeguarding certain fundamental human rights. “It might seem antithetical to expect combatants to conduct themselves as “men of goodwill” and adhere to humanitarian principles, and yet that was, and remains, the expectation upheld by a majority of nation-states.” 28 —

• Provide advance notice of the accepted limits of warfare.

• Reduce confusion and make identifying violations more efficient.

• Help restore peace.9 The Law of War In Handbook on the Law of War for Armed Forces, author Frederick DeMulinen describes the Law of War as a collection of “international prescriptions on the conduct of combat and the protection of victims of combat.”10 Dr. Michael Walzer, Institute of Advanced Study at Princeton, refers to a “set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements.”11 And the Department of Defense defines it as “That part of international law that regulates the conduct of armed hostilities. The Law of War encompasses all international law … including treaties and international agreements … and applicable customary law.”12 The Law of War is derived from two distinct sources: it is based on unwritten rules that, over time, have come to be known as “customary international law,” plus a collection of rules known as “conventional international law.” The former are rules of conduct that bind all members of the community of nations, while the latter are codified rules that are binding as a result of express consent. To quote the U. S. Army JAG School, “Many principles of the Law of War fall into this [customary international law] category,” while the term treaty (also convention, protocol, annexed regulation) “best captures this concept [conventional international law].” Analysis reveals three very important points. First, the Law of War consists of two distinct components. Second, the Law of War owes its current form and force to the evolution of custom and convention. And third, the customary aspect of the Law of War is equally essential to the overall construct as is its conventional aspect, because “once a principle attains the status of customary international law, it is binding on all nations, not just treaty signatories.”13 Customary international law is defined by one source as a body of law resulting from a “general and consistent practice of States that is followed by them from a sense of legal obligation.”14 Major Timothy Bulman, writing in the Military Law Review, indicates that customary international law is formed by states following a “general and consistent practice, which is motivated by the conviction that international law requires that conduct.” He further identifies two criteria that must be met: there must be an act or actual practice and states must believe they are acting under a legal obligation.15 The important points concerning this source of the Law of War are: the body of customary international law consists primarily of generally recognized practices and cultural norms that exist in an unwritten form; there are two components of the test (the act and the belief) that determine customary international law; and a state cannot renege on its obligation to uphold customary international law. The derivation of customary law is subjective and could potentially take along time to mature. The key to this process hinges on the distinctions between “custom” and “usage.” A custom refers to an identifiable habit or practice that is conducted “under the conviction that they are obligatory under international law,” while usage refers to certain acts without the conviction regarding legal obligation.16 For example, acknowledging the inviolability of a white truce flag began as a practical usage for conducting battlefield negotiations and only over time became recognized as a custom. Once recognized by the community of states as a practice with associated legal obligations, it evolved into customary international law and hence is now recognized as an element of the Law of War.17 In U. S. Army Field Manual (FM) 27-10, The Law of Land Warfare, written in 1956 and revised in 1976, the United States codifies its position that customary Law of War is binding on all nations and indicates all U. S. forces would strictly observe it.18 The second source of the Law of War, conventional international law, consists of a voluminous collection of laws, conventions, declarations, and protocols spanning generations. It is easier than customary international law to comprehend, but perhaps more difficult to derive. For example, conventional international law codes address specific proscriptions on conduct during armed conflict, yet an international convention of jurists and political leaders must agree on these laws before they can exercise the full force of international law. To further complicate matters, this body of materials generally evolved only in response to a global event that revealed, after the fact, pre-existing inadequacies in Law of War codes. The Law of War imposes constraints on armed conflict in two particular areas: behavior of combatants in action and behavior toward and treatment of persons and objects in war, especially victims in war.19 The most widely recognized collection of these laws is contained in two groups of treaties — the Hague and Geneva Conventions. The Hague Conventions consist of two primary conventions focused on hostilities in general and combatant conduct, while the Geneva Conventions, contained in a collection of four distinct conventions and two protocols, address protective provisions relating to civilians and prisoners of war.20 The Hague Conventions, in particular, acknowledge the inability of conventional international law to address or even anticipate all possible regulatory requirements, and consequently mandated that in the absence of applicable treaty law, civilians and combatants remain under the protection and proscriptions of customary international law.21 Any discussion of this topic routinely identifies three foundation documents: The Hague Convention of 1907, with its focus on regulating the methods and means of warfare, the four Geneva Conventions of 1949 and their establishment of inviolable protections for specific categories of war victims, and the 1977 Protocols to the Geneva Conventions of 1949, which augment the 1949 convention.22 What is the Purpose of the Law of War? In the words of one source, the Law of War “aims at limiting and alleviating as much as possible the calamities of war. [It] con-ciliates military needs and requirements of humanity … thus [making] the distinction between what is permitted and what is not permitted.”23 Another source asserts the Law of War integrates humanity into war and that application of the Law of War can serve as a tactical multiplier.24 FM 27-10 indicates the Law of War, inspired by the “desire to diminish the evils of war,” exists to protect combatants and noncombatants, safeguard human rights, and facilitate the eventual return to peace.25 In summary, the purpose of the Law of War is to safeguard the rights of all parties to a conflict, empower international judicial bodies, regulate combatant conduct to mitigate suffering, and facilitate the eventual return to peace. What are the Unifying Themes of the Law of War? There are two distinct unifying themes associated with the Law of War. The first theme is identified by the phrase “jus ad bellum,” a legal and philosophical term that describes those aspects of the Law of War intended to prevent armed conflict and, failing prevention, to justify war — in other words, to clarify when to wage war. The second theme, identified by the phrase “jus in — 29 bello,” describes those aspects of the Law of War intended to regulate or control combatant conduct — it qualifies how to wage war. The two themes complement each other by offering what University of Tennessee-Martin historian Alex Mosely describes as “a set of moral guidelines for waging war that are neither unrestricted nor too restrictive.”26 Jus ad bellum, the older of the two themes, defines the circumstances under which the use of military power is legally and morally justified.27 Early societies focused their angst over armed conflict on developing rules for the legitimate use of force and devoted little if any intellectual effort to suitably regulating the actual application of that force. Recognized international law expert and former legal advisor to the International Committee of the Red Cross, Dr. Robert Kolb, states that “man has for along time and for a variety of reasons sought a legal framework by which he could reconcile ‘might’ with ‘right.’”28 Kolb places man’s conduct of war in the context of a response to unprovoked aggression that restores aright that had been violated. He further explains that man has historically justified armed conflict with four material causes (defense, repossession of property, recovery of debts, and punishment), and understanding them helps illuminate why any society would go to the expense and sacrifice of war.29 In another example, Michael Walzer defines a just war as a “limited war” whose conduct is governed by a set of rules “designed to bar, so far as possible, the use of violence and coercion against noncombatant populations.”30 In other words, because armed conflict was considered valid if it met specific criteria, no need existed to regulate conduct in a just war — the ends were sanctioned or blessed by the highest authority and, hence, the means were already justified. This approach eventually led to the development of the second unifying theme, jus in bello, but not until Western civilization had showcased man at his very worst.31 In the first century B. C., Cicero wrote, that war should never be undertaken by a state “except in defense of its honor or safety.” He further stipulated several conditions that had to be met to justify war: war had to be declared by a proper authority; the antagonist had to be notified of the declaration of war; and the antagonist had to be provided an opportunity to negotiate a peaceful settlement before the onset of hostilities.32 This effort to codify justification criteria probably represented the first formal attempt, at least in the Western World, at developing a universally accepted approach to initiating war — if you will, the first glim-mers of jus ad bellum. As the Roman Empire expanded, the grounds for justifying war became more complex and open to interpretation, causing the emerging Christian Church to evaluate its pacifist stance in light of the practical demands for survival against invading barbarians. Early Christian scholars, such as Saint Augustine and Saint Thomas Aquinas, worked to reconcile church doctrine with political pragmatism by replacing the Roman legal criteria for justifying war with a moral or religious perspective, wherein the forces of good waged war against the forces of evil, ultimately invoking God’s blessing for, in the case of the Empire, just wars of survival.33 For 12 centuries following the fall of the Western Roman Empire, the influence of Church theologians permeated Western society, to include political theory. Saint Augustine, writing in the 5th century, melded the Roman political perspective on just war with emerging Christian theology and the practical reality of survival in the face of internal and external secular threats, subsequently developing a political theory of “The Law of War imposes constraints on armed conflict in two particular areas: behavior of combatants in action and behavior toward and treatment of persons and objects in war, especially victims in war. The most widely recognized collection of these laws is contained in two groups of treaties — the Hague and Geneva Conventions. The Hague Conventions consist of two primary conventions focused on hostilities in general and combatant conduct, while the Geneva Conventions, contained in a collection of four distinct conventions and two protocols, address protective provisions relating to civilians and prisoners of war.” “...the Law of War, inspired by the “desire to diminish the evils of war,” exists to protect combatants and noncombatants, safeguard human rights, and facilitate the eventual return to peace. In summary, the purpose of the Law of War is to safeguard the rights of all parties to a conflict, empower international judicial bodies, regulate combatant conduct to mitigate suffering, and facilitate the eventual return to peace.” 30 — just war with a uniquely religious twist. He acknowledged Cicero’s three principles of a just war, but for Augustine, war served one fundamental purpose: it was the means by which God either punished man or absolved him of his sins. Based on this premise, Augustine postulated that any war ordained by God was, by default, just. “Beginning with Augustine,” says just-war theorist Paul Christopher, “war … became more than just a legal remedy for injustice; it became a moral imperative.”34 Saint Thomas Aquinas further defined and codified jus ad bellum principles. His theories established a theoretical foundation grounded in Christian morality, resulting in what Frederick Russell describes as “perhaps the best compromise between aggression and Christian pacifism that the Church could devise.”35 According to Aquinas, war existed for two basic reasons: to punish sin and right a wrong that detracted from the common good.”36 Of special note was his postulate that any war that satisfied the basic criteria (declared by proper authority and fought for just cause) could be deemed unjust if not prosecuted with the right intentions.37 His codification of these jus ad bellum principles stood for 300 years and served as a start point for the next noteworthy Law of War theorist, Hugo Grotius. To appreciate his impact, it is necessary to understand his environment — a Europe devastated by the Thirty Years War. This conflict raged across the European landscape between 1618 and 1648. Ignited by the flames of religious intolerance, it also owed its existence to hegemonic aspirations of the great houses of Europe and the tenuous political network that reflected the state of the Holy Roman Empire. This war redrew the political landscape of Europe and placed into sharp relief the fundamental differences between Protestants and Catholics, but much more significant is this conflict’s catastrophic impact on the population, economies, and social fabric of Europe that gave rise to thinkers and advocates inclined to further the concepts of conflict regulation. As many as 10 million people may have died during this period due to the sword, famine, disease, and murder. Germany began the conflict with a population of around 16 million; at war’send, its death toll stood at four million. Bohemia lost two million — 60 percent — of its prewar population. The city of Magdeburg, called by some historians the “Hiroshima of the Thirty Years War,” was decimated when over 80 percent of its population was eliminated by invading troops.38 “For weeks,” says one historical analysis, “mutilated, charred corpses floated down the Elbe to the North Sea.”39 This conflict forced Europeans to learn many lessons, among them, says historian Larry Addington, the realization that “lack of restraint could be destructive to the interests of all sides,” a lesson that subsequently helped “to inspire some of the first modern efforts at establishing ‘international law’ governing the conduct of military forces and their treatment of civilians.”40 Hugo Grotius led the vanguard of those efforts. He was a 17th-century jurist and humanist, perhaps best known for capturing his perspective on international law in the three volume De Jure Belli ac Pacis Libri Tres (The Law of War and Peace). He used these words to describe the Europe of his day: “Throughout the Christian world, I observed a lack of restraint in relations to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up, there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.41 Grotius noted the reluctance of the Church to intervene in what he perceived to be overt violations of basic natural law and so he devoted considerable energy to devising a replacement for the ineffective ecclesiastical-based system of international law in force during the Thirty Years War. Paul Christopher describes Grotius’ focus in this manner: “Grotius’ objective was to supplant the impotent and corrupt ecclesiastical authority with an external, objective, secular authority that the competing political interests would accept — a corpus of international laws.”42 In his own words, Grotius became “fully convinced … that there is a common law among nations, which is valid alike for war and in war.”43 Throughout his writing, one central theme appears: international relations should be governed according to the same natural principles, laws, and morals that govern individual relationships.44 Grotius added the following five elements to Aquinas’ list of three just-war principles. It is clear his primary objective was to prevent war if at all possible and, failing that, to mitigate its impact:

• War must contain an aspect of ‘proportionality,’ meaning the ultimate aim of the war is proportional to the impact (damage) the war will have on society.

• War must be fought with a reasonable chance of success.

• War must be publicly declared.

• War must be conducted only as a measure of last resort.

• War must be fought ‘justly.’ [Note: this particular element, while not specifically cited by Grotius, is referenced by him on Chapter 25, page 18 of the prologue to The Law of War and Peace. With this, Grotius sets the stage for the evolution of the second (jus in bello) unifying theme of the Law of War].45 Grotius’ theory that natural law bound all people and communities meant that, by its very nature, natural law was superior to even canon law.46 Consequently, secular rulers throughout Europe quickly acknowledged his justification principles as the guidelines best suited to international diplomacy (and their individual interests). By replacing church influence with a code based on natural law, Grotius hoped to eliminate the specter of a war fought solely for religious reasons. Wars could still be “For 12 centuries following the fall of the Western Roman Empire, the influence of Church theologians permeated Western society, to include political theory. Saint Augustine, writing in the 5th century, melded the Roman political perspective on just war with emerging Christian theology and the practical reality of survival in the face of internal and external secular threats, subsequently developing a political theory of just war with a uniquely religious twist.” — 31 waged, but the checklist justifying them was now more objective and open to international scrutiny. This list of eight customary jus ad bellum principles, together with the four legitimate causes for waging a just war (defense, repossession of property, recovery of debts, and punishment), guided the international community for over 375 years. The U. S. Army JAG School defines jus in bello, the second Law of War unifying theme, as the collection of legal and moral restraints that apply to the conduct of waging war. This body of law, sometimes referred to as Regulation of Hostilities Law, or Hague/Geneva Law, traces its roots back at least 24 centuries. Its lineage traversed several of history’s great civilizations, to include the Babylonians, Chinese, and Greeks, but once again, it was Hugo Grotius who, in addition to his significant contributions to the evolution of jus ad bellum theory, proposed a rudimentary collection of regulatory criteria intended to guide combatant conduct.47 Grotius proffered three questions intended to serve as regulatory jus in bello guidelines: who could be lawfully attacked, what means could be employed to do so, and how best to treat prisoners?48 These guiding principles continued to evolve over the subsequent four centuries. For example, Dr. Francis Lieber in 1863 referred to “justice,” “faith,” and “honor” in writing General Orders No. 100, Instructions for the Government of Armies of the United States in the Field; one U. S. Army Law of War publication in force during World War I referenced the need to apply the principles of “necessity,” “humility,” and “chivalry” during combat; and present-day Law of War doctrine recognizes the three principles of “discrimination,” proportionality,” and “responsibility” as the foundation on which combatants must base their actions.49 This is an appropriate juncture to introduce the dilemma represented by the tension between the notion of military necessity and the regulation of combatant conduct. One of the definitions of the word “necessity,” found in Webster’s Dictionary reads “pressure of circumstance,” while another makes reference to “physical or moral compulsion.” The concept of military necessity is unique, however, in that it pertains to a specific environment — armed conflict. The concept embodies a principle that justifies measures deemed indispensable to secure military success, yet not explicitly forbidden by the Law of War.50 Dr. Lieber addressed the dilemma in 1863, and subsequent iterations of U. S. Law of War regulations continued the theme in the effort to balance what often appeared to be diametrically opposed concepts.51 Paul Christopher defines the term as one that “specifically addresses the tension inherent in attempting to minimize suffering through rules while at the same time employing a method (violence) that necessarily causes suffering.”52 And Douglas Lackey, Professor of Philosophy at City University of New York, acknowledges the destruction of life and property as “inherently bad, therefore military forces should cause no more destruction than strictly necessary to achieve their objectives.”53 The dilemma is made all the more problematic by subjective, often collective, interpretation. How is the Law of War Triggered? The Law of War has a direct, but temporary, impact on a nation’s sovereignty. Webster’s Dictionary defines a sovereign as “one that exercises supreme authority within a limited sphere” acting with “freedom from external control.” The legal community views domestic law as a “barrier of sovereignty” that functions to protect a state from external interference with its internal affairs; in certain situations, however, international law can displace domestic law. International maritime law is an example of such a displacement, and the Law of War is likewise capable of piercing the barrier of sovereignty and displacing domestic law under the right circumstances. Once triggered, the Law of War displaces a state’s domestic law for the duration of a conflict to an extent contingent on the nature of said conflict — in other words, the predominant status of a nation’s domestic law is restored once the conflict is resolved and the need for the application of the Law of War is terminated.54 The Law of War is triggered by a conflict, either international or internal in nature, regardless of whether the conflict is recognized by all parties. The following excerpt from Article 2 (common to all four 1949 Geneva Conventions) clearly outlines this standard, and answers the quid pro quo, or reciprocity, issue alluded to by Secretary Schlesinger as well:” The present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.”55 The GWOT represents a case where the triggering standard has been met, and therein lies the real issue at the heart of the ongoing debate. How do you enforce jus in bello standards when one of the combatants refuses to acknowledge customary and conventional international law? Does one abandon all attempts to regulate combatant conduct in pursuit of a tactical advantage, or does one enforce standards of combatant conduct unilaterally, embrace a higher moral purpose, and risk yielding a tactical advantage? Is there, as some would advocate, a middle ground that better reflects the complexity of the COE? The Law of War Rules Have Not Changed “No country which relies on the law of the land to regulate the lives of its citizens can afford to see that law flouted by its own government, even in an insurgency situation. In other words, everything done by a government and its agents in combating insurgency must be legal.”56 The time is right for the international community to review the Law of War in light of the GWOT. Without doubt, this review will arrive at two findings: Law of War violations are neither necessary nor excusable for successful prosecution of military operations in any environment; and the Law of War in its current form is adequate to the task. Without question, the disciplined application of the Law of War at the expense of military necessity has proven challenging, but it is a challenge that our military, our political leaders, and all members of the international community must address head on. It exists to rigorously frame justification for war in the hopes of preventing it, and failing that, to regulate combatant conduct by interjecting humanity into a violent activity; to be effective, it must be professionally taught, enthusiastically trained, and rigorously enforced. Most importantly, the Law of War should not be creatively interpreted by any party to a conflict. The decision to comply or violate is black or white, right or wrong, legal or illegal; there can be no room for equivocation. Personal opinion aside, the simple truth is this: until Congress ratifies an internationally sanctioned revision to the Law of War, the rules have not yet changed, and Geneva 1949 remains the legal baseline standard of conduct for all U. S. Armed Forces, regardless of the operational environment. As General Schoomaker stated, “We’re going to have to [change] some of the things 32 — that made us the best Army in the world. Our values are sacrosanct … everything else is on the table.”57 Remaining true to both the letter of conventional international law and the spirit of customary international law is without question the road less traveled, but as events in Afghanistan, Guantanamo Bay, and Iraq have shown, the alternative carries with it significant political implications as well as the potential for near-irrevocable damage to our country’s international reputation and strategic goals. Notes 1R. L. Brownlee and Peter J. Schoomaker, “Serving a Nation at War: A Campaign Quality Army with Joint and Expeditionary Capabilities,” Army Strategic Communications, Washington, DC, 2004, “Foreword.” 2Brownlee and Schoomaker, p. 3: “[The COE] is not the strategic context for which we designed today’s United States Army. Hence, our Army today confronts the supreme test of all armies: to adapt rapidly to circumstances that it could not foresee.” 3Care should be taken, however, because those values have along heritage. In 1630, John Winthrop, first Governor of Massachusetts, described his vision for Boston, see A Model of Christian Charity, 1630, accessed online at http://www.mtholyoke.edu/acad/intrel/winthrop.htm, 9/22/2004. Former President Ronald Reagan referenced Winthrop in his farewell speech, see President Ronald Reagan’s Farewell Speech, 11 January 1989, accessed online at http://www.reaganfoundation. org/reagan/speeches/farewell.asp, 9/22/2004. 4Final Report of the Independent Panel to Review DoD Detention Operations, August 2004, pp. 80, 81 and 91, accessed at http://www.defenselink.mil/news/AUG2004/d20040824finalreport.pdf, 10/5/2004. 5Gerald Irving A. Draper, The Red Cross Conventions, Praeger Publishers, New York, 1958, p.

48. Among other qualifications, Draper was a lecturer in the Faculty of Laws at King’s College in London. 6Peter Paret, Makers of Modern Strategy from Machiavelli to the Nuclear Age, Princeton University Press, Princeton, 1986, p. 72. 7Ibid. 8Ibid. 9Law of War Workshop Deskbook, International and Operational Law Department, Judge Advocate General’s School, U. S. Army, Charlottesville, VA, accessed online at http://www.au.af.mil/ au/awc/awcgate/law/low-workbook.pdf, 3/22/2005, p. 1-2, hereafter referred to as “JAG School Deskbook,” June 2000. 10Frederic De Mulinen, Handbook on the Law of War for Armed Forces, International Committee of the Red Cross, Geneva, 1987, p. 1, “Law of War Summary for Commanders.” 11Michael Walzer, Just and Unjust Wars: A Moral Argument With Historical Illustrations, Harper Collins, New York, 1977, p. 44. 12Department of Defense Directive 5100.77, DoD Law of War Program, Washington, DC, 9 December 1998, p. 2, paragraph 3.1, accessed online at http://www.dtic.mil/whs/directives/corres/ pdf/d510077_120998/d510077p.pdf, 3/22/2005. 13JAG School Deskbook, p. 26. 14Theodor Meron, “Customary Law,” Crimes of War Project, accessed online at http:/www. crimesofwar.org/thebook/customary-law.html, 10/20/2004. 15Major Timothy P. Bulman, “A Dangerous Guessing Game Disguised As Enlightened Policy: United States Law of War Obligations during Military Operations Other Than War,” Military Law Review, March 1999, pp. 155-156, 164-165. 16Ibid., p. 156. 17One can trace the use of a white flag of truce at least as far back as the Laws and Customs of War on Land (Hague II) 29 July 1899, Chapter III — On Flags of Truce, accessed online at http:// www.yale.edu/lawweb/avalon/lawofwar/hague02.htm, 12/6/2004. 18U. S. Army Field Manual (FM) 27-10, The Law of Land Warfare, U. S. Government Printing Office, Washington, DC, 1976, Chapter 1, Section 1, paragraph 7c, accessed online at http://www. afsc.army.mil/gc/files/FM27-10.pdf, 3/22/2005. 19De Mulinen, p. 2. 20Ibid., p. 3. 21Ibid., this language, often referred to as the “Marten’s Clause” after the advisor to the Russian Foreign Ministry, provided for a minimum standard of humanitarian treatment for combatants in the absence of specific conventional law. 22JAG School Deskbook, pp. 26-28. 23De Mulinen, p. 2. 24JAG School Deskbook, p. 3. In other words, because Law of War violations could motivate combatants to fight on despite difficult odds, Law of War compliance eliminates those motivations. 25FM 27-10, Section 1, paragraph 2. 26Alex Mosley, “Just War Theory,” University of Tennessee-Martin, accessed online at http:// www.utm.edu/research/iep/j/justwar.htm, 9/23/2004. 27JAG School Deskbook, p. 3. 28Robert Kolb, “Origin of the Twin Terms Jus Ad Bellum and Jus In Bello.” International Review of the Red Cross, 10/31/1997, p. 1, accessed online at http://www.icrc.org/Web/Eng/siteeng0. nsf/iwpList163/D9DAD4EE8533DAEFC1256B66005AFFEF, 9/23/2004. 29Ibid. 30Walzer, xvii. 31Kolb, p. 2, “The subjective notion of the right to wage war in pursuit of certain causes precluded the emergence of an independent ‘jus in bello.’” 32Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues (Prentice Hall, Englewood Cliffs, NJ, 1994, p. 13. Christopher cites Cicero’s work De Re Repub-lica 3, XXIII. 33Ibid., pp. 23-24. 34Ibid., p. 47. 35Frederick Russell, The Just War in the Middle Ages, Cambridge University Press, London, 1975, p. 303. 36Ibid., p. 291. 37Christopher, pp. 54-56. Christopher references the Summa Theologica for his list of Aquinas’ three jus ad bellum principles, and also references Aquinas’ Questiones in Heptateucheum 10 for the material that defines just cause. 38Larry H. Addington, The Patterns of War Through the Eighteenth Century, Indiana University Press, Bloomington, IN, 1990, p. 87. See also Albert Sidney Britt, III, et. al., The Dawn of Modern Warfare, The West Point Military History Series, Thomas E. Griess, ed., Avery Publishing Group Inc., Wayne, IN, 1984, pp. 48-54. 39Britt, p. 52. 40Addington, p. 87. 41Hugo Grotius, De Jure Belli ac Pacis, Libre Tres, translated by Francis W. Kelsey, Wildy & Sons Ltd, London, 1964, Prologemena, Section 28, hereafter referred to as Grotius. 42Christopher, p. 71. 43Grotius, Introduction, xii. 44Christopher, p. 72. 45Ibid., p. 89; see also Mosely, pp. 3-5. 46Ibid., p. 109. 477th-century Babylonians distinguished between enemy civilians responsible for starting a war and the soldiers who actually fought, and treated captured soldiers and civilians according to well-established rules [JAG School Deskbook, p. 5; Christopher, p. 9]. Ancient Egyptian battle records provide evidence of humanitarian conduct, and the 5th-century B. C. Chinese philosopher Sun Tzu advised that “captive soldiers be kindly treated and kept” [JAG School Deskbook, p. 5; Christopher, p. 9; Sun Tzu, “On The Art of War,” in Roots of Strategy, ed. Brigadier General R. Phillips, Stackpole Books, Harrisburg, PA, 1985), p. 25.] The 4th-century B. C. Hindu Book of Manu provides a very detailed list of regulatory guidelines regarding the treatment of various categories of both combatants and noncombatants [JAG School Deskbook, p. 5; Christopher, p. 9.] Greek philosophers, Socrates in particular, admonished against indiscriminate destruction of property [Christopher, p. 10], and Michael Walzer observed that the code of chivalry was “widely shared in the later Middle Ages and sometimes honored” (Walzer, p. 34), representing a customary, if informal, evolution of jus in bello principles. The Geneva 1949 lineage includes Geneva 1929, Hague 1907, Hague 1868, the Lieber Code, and the St. Petersburg Declaration of 1868. 48Christopher, p. 100. 49Mosley, p. 5. 50De Mulinen, pp. 82-83; and Donald A. Wells, The Laws of Land Warfare: A Guide to U. S. Army Manuals, Greenwood Press, Westport, CT, 1992, p. 25. 51Dr. Francis Lieber, Instructions for the Government of Armies of the United States in the Field, Adjutant General’s Office, Washington, DC, 1863, Article 14, hereafter referred to as “Lieber Code,” accessed online at http://www.au.af.mil/au/awc/awcgate/law/liebercode.htm, 9/23/2004. Various other Law of War sources, such as the Hague Convention of 1907, US Rules of Land Warfare [1914, 1934, and 1940 versions], US Law of Land Warfare [1956], and Article 147 of the Convention (IV) Relative to the Protection of Civilian Persons in Time of War also provide definitions of, and insight into, this dilemma. In Paul Christopher’s opinion, “If the Just War Tradition is going to function as a viable set of legally enforceable rules, the principle of military necessity must be more precisely defined and its relationship to other principles clearly articulated in law,” Christopher, pp. 167-168. 52Christopher, p. 166. 53Douglas P. Lackey, The Ethics of War and Peace, Prentice-Hall, Englewood Cliffs, NJ, 1989, p. 59. 54JAG School Deskbook, p. 28. 55Common Article 2 to Geneva I, II, III, and IV, 1949. See also JAG School Deskbook, pp. 28- 29, for a discussion of the “Barrier of Sovereignty” and “The Triggering Mechanism.” 56Frank Kitson, Bunch of Five, Faber and Faber Ltd, London, 1977, p. 289. Lieutenant General Kitson is one of Great Britain’s foremost authorities on counterinsurgency operations. 57Brownlee and Schoomaker, p. 24. Retired Lieutenant Colonel David P. Cavaleri is currently a researcher/ historian, U. S. Army Combat Studies Institute (CSI), Fort Leavenworth, KS. He received a B. A. from Eastern Nazarene College, and after earning an M. A. in History from the University of Missouri, he served on the History Department faculty at the U. S. Military Academy. His career as an armor officer included tours of duty on three continents and in one combat zone. He concluded his military career in 2003 as the G3 operations officer for the U. S. Army Battle Command Training Program at Fort Leavenworth. His publications include CSI Global War On Terrorism (GWOT) Occasional Paper #7, titled “Easier Said Than Done: Making the Transition Between Combat Operations and Stability Operations,” as well as several magazine articles, book reviews, and historical movie reviews. — 33