Can Rules of engagement, annual training on the laws of land warfare and the Geneva Convention, or cultural sensitivity training ensure justice in war? Will greater precision and maximum battlefield visibility through technology finally bring justice in war?
I believe the answer is no. My experience is that justice in war is unachievable. Or, and more certainly, a sustained perception is unachievable. Not even when every effort is undertaken in the execute of a just war, events will ensure it is eventually judged otherwise. The foundation of a just war crumbles beneath uncontrollable consequences of its execution. Wars as a whole, down to the actions of individuals in war, will always be judged by the public and the world from innate security, rather than from intimate proximity and immediacy while under duress exacerbated by split-second decisions made with incomplete information. In the end, a few inadvertent or necessary actions, or the momentary moral lapses of a few, and successful information operations (IO) from a determined adversary will dictate the narrative that gains the most traction and thus creates the perceived reality and becomes, for all practical purpose, "truth."
Several sources intensify the probability, bordering on the absolute, of such events (particularly during conflicts of any significant duration or intensity):
From combat operations evolving into insurgency and asymmetric warfare, with our military drawn into a conflict in which the enemy merges seamlessly into the civilian population. This reality, as seen in Vietnam, Iraq, and Afghanistan for the United States, places the conventional army in the difficult position of executing the war with effectiveness, while constrained by the moral imperative and rules of engagement (ROE) that seek to minimize civilian casualties or "collateral damage."
There is no such thing as a perfect ROE for all situations, or any ROE than can dispassionately and objectively proceed as a flawless algorithm. The mitigating measures of mandatory training (Law of War, Geneva Convention, Code of Conduct, cultural sensitivity training, etc..), and ROE, while appropriate and necessary, are imperfect. ROE represent competing choices that inevitably require leadership to operate upon a sliding scale of current risk vs. postponed potential greater or lesser future risk. The selection may be towards more stringent ROE, choosing increased risk for our soldiers to safeguard property and innocent lives.
In counterinsurgency operations, the logic and hope are that restrictive ROE reduces risk to our soldiers in the longer-term by minimizing blowback and support for the insurgency. Or, the choice may for looser ROE that offer minimal risk for our forces presently engaged with the enemy in exchange for higher risk to property and innocent lives. The tradeoff is that more permissive ROE may play into the hands of the insurgencies quest for legitimacy and widespread support in the long run with increased loss of property and civilian lives. It comes down to a choice of when you want to have the risk amplified for our soldiers – during ongoing current operations, or in the future as our actions may breed resentment and serve to strengthen opposition in the long run.
Or, our coalition partners demonstrated that it is possible to design ROE that minimize risk to your forces and minimize property damage and non-combatant casualties in the short run, yet bring the multifold higher risk for both in the long term.
I witnessed in Panjwai and Helmand provinces of Afghanistan ROE implemented by our Canadian and British counterparts that were risk averse in the extreme. They simply would not engage the enemy. I sat in on a British Operations Order (OPORD) brief before I accompanied them on a patrol to assess medical services in the city of Gereshk, Helmand province. I can summarize their ROE and immediate actions, as briefed in the OPORD, to be employed for almost any conceivable scenario as "Run Away."
This risk aversion was not to spare lives and property of Afghans so much as to minimize casualties within their forces in response to a home front with near zero tolerance for casualties. The inadvertent result was the emergence of a permissive environment and free movement for anti-Afghan Government forces. The Taliban reconsolidated power, slaughtered local leadership, gained control of vast territory and amassed a force capable of legitimately threatening major Southern Afghan cities, all while unraveling the U.S. and coalition gains in security and stability.
The second inevitable obstacle to justice in war is the ill-considered action or momentary lapse of the moral anchor of a distraught, scared or vengeful soldier at the lowest level who will – given enough time, or ill-preparedness, or perceived license emanating from immediate leadership or from the tone set by those prosecuting the war - commit indefensible acts in war.
The perceived license from immediate command or junior leadership may, but very rarely, be unlawful orders, but more likely less overt causes, such as allowing a dehumanizing culture to develop – “Huah! Hearts and minds – two in the heart, one in the mind”, or allowing derogatory and dehumanizing lumping of the entire population by allowing terms like "Haji," "towelhead," "camel jockey" "slant," "slope." Allowing culturally insensitive displays and taunts. I have witnessed each of these in combat operations in Iraq and Afghanistan. Given enough time, disillusionment, and the anger over those lost to an enemy seen eventually to be the entirety of the population you have successfully dehumanized (possibly for your own psychological protection), horrific acts will happen.
National leadership must recognize that even when there is a clear uncontroversial cause - jus ad bellum, the justice of war, the ability to ensure and sustain justice in war or the perception of justice in war is near impossible.
The perceived license may come as well from thousands of miles away from the combat zone. The path toward inhumane and moral poverty can emanate from those at the highest level. A tone from national leadership may give cover to loosen interpretation of ethical conduct. Leadership invoking terms like "crusade" and suggestions of a war of theology or culture with all of those you face determined to "destroy our way of life." It may arise from labels such as "axis of evil," or from condoning "enhanced interrogation" or other euphemisms for torture and methods that diverge from the accepted ethical US military methods and internationally recognized norms.
Thirdly, the pure accident, – the targeting error, or actions based on what was believed to be actionable intelligence that ends up simply wrong. When despite our rigorous process in authorizing bombings, artillery, drone strikes, or other significant kinetic actions, mistakes are made, overt or secondary to incomplete or inaccurate information, that lead to the death of innocents and property damage disproportionate to any immediate military objective. I have witnessed this as well.
The difficult realities of war in general, and of asymmetric warfare or insurgencies particularly, do not allow the conventional (nation-state forces) to discard the "rules of war" or the moral and long-term strategic necessity of mitigating wanton destruction and civilian casualties. However, the almost certain failure, to some significant degree, that will occur in the course of war must be understood by the nation-state actors and decision makers potentially entering into war. The near inevitability of a lapse in control, or tragic mistakes leading to an information operation coup and a steeper than anticipated road to “mission accomplishment” (hopefully well-defined and achievable) must be acknowledged as fact and weighted heavily during the pre-war decision process.
I did not clarify but somewhat further muddled the uncertainties and challenges to the precise application of the Laws of Land Warfare and desire to believe there can be jus in bello – justice in war. I do not attempt to lift war from the fog or help demarcate the evolving metrics by which we may try to objectively measure adherence to whatever consensus there may be around the idea of morality and justice within a war. I sought to highlight the certain uncertainty and bring to light the inherent darkness. It is not my intent to clarify and offer assurances to those who have the power to send men and women in arms to war, but rather suggest that the horrible consequences of war, despite sincere intentions or the best available technology, cannot be reduced to zero. Political leaders must keep entirely in the forefront of their minds, during the debate leading to the deliberate use of force, that there is no way to eliminate the propensity – arguable certainty – that actions will occur likely judged harshly, as unjust, or even immoral by national and world opinion. A nation’s moral authority will be tested, reputation tarnished.
There will continue to wars and circumstances that necessitate war. This fact will not soon change. However, national leadership must recognize that even when there is a clear uncontroversial cause - jus ad bellum, the justice of war, the ability to ensure and sustain justice in war or the perception of justice in war is near impossible.
[dc]"H[/dc]ow civilians are treated is a matter of jus in bello, but it certainly reflects on the character of the insurgents and of the army (and of the state for which the army fights). A just cause can be undone if pursued in unjust ways." Michael Walzer, Just and Unjust War” Preface to 5th edition (Basic Books, a Member of the Perseus Books Group, New York)