As faithful readers of Just Security’s “mini forum” on the new DOD Law of War Manual may recall, Prof. Adil Haque and I sparred last summer over several of the manual’s provisions. It would be fair to say that generally, he was critical, and generally, I was supportive.
Some of our disagreement involved my objection to his characterization of various manual provisions as “morally unintelligible” and to his charge that parts the manual had “no obvious basis” in “morality.” I saw these remarks as ad hominem attacks on the manual’s drafters simply because they took a different view as to how to accomplish what seems to be the same end sought by Haque: the protection of civilians.
Haque countered by insisting that “nowhere in [his] post [does he] question the character of the manual’s authors. [He says that he is] sure that they are fine people. Instead, [he] question[s] the soundness of the manual’s position.” When I responded that you could not separate an attack on the morality of a position from an attack on the author of it, he replied with a number of contentions, including the view that “[i]If morality were subjective — an expression of each individual’s emotions or preferences — then, indeed, all moral disagreement would be an exchange of personal attacks. However, morality is not subjective but objective, not an expression of how we feel but a reflection of how things are.”
At the invitation of Prof. Mike Schmitt of the Stockton Center our exchange is being converted into contributions to the Center’s International Law Studies where our differences will be expanded upon. Beyond our mutual critiques, we will both take on other aspects of the manual. In the course of writing my input to the project, I examined the postings of my friends, Prof. Sean Watts (The DOD Law of War Manual’s Return to Principles) and Prof. Rachel VanLandingahm (The Law of War is Not About “Chivalry”).
Candidly, doing so has given me a new appreciation of Haque’s references to morality and its relation to the law of war. Though I don’t know if he would agree with my interpretation, allow me to explain my current view, and how it developed.
My attention was drawn to what Watts calls a “significant recalibration” of law of war principles in the manual, one he says “signals a return to very broad, generally applicable legal principles in a truer sense.” Specifically, he characterizes the inclusion of “humanity” as one of the three basic principles (the others being military necessity and honor) as “perhaps its most drastic adjustment to existing doctrine.” But what he finds “most surprising” is the manual’s “revival of the principle of honor” (which he uses, as the manual does, interchangeably with chivalry).
Watts says the manual “sketches honor in exceedingly broad terms and applies it to an extensive range of battlefield conduct.” Ultimately, however, he is skeptical of the “practical utility of the principle.”
VanLandingham has a much harsher assessment, saying she has a “visceral negative reaction” to the manual’s “emphasis on honor and chivalry.” In her mind they are “outdated, chauvinistic, and frankly distasteful concepts.” She also thinks that chivalry “connotes chauvinism, elitism, and the inhumanity of the Crusades,” adding that “‘codes of honor’ signal the assumed white, western, Christian superiority of the [era of the Crusades].”
While some elements of chivalry may have indeed had chauvinistic connotations, modern concepts of battlefield honor can and do draw from a broader and deeper moral source that underpins the law of war. Prof. Terry Gill of the University of Amsterdam and the Netherlands Defence Academy relates:
Chivalry and martial honour have long been regarded as essential components of warrior ethics and military tradition. They are reflected in most cultures in one way or another, ranging from Western warrior tradition dating back to classic antiquity and medieval chivalry, to the various warrior codes of the ancient and medieval Near East, India, China and Japan. They also were practiced in various forms by many other cultures outside the arc of Eurasian/Mediterranean civilisation, including Native Americans and warrior peoples in Africa and the Pacific.
Michael Ignatieff makes a similar point it his classic book The Warrior’s Honor: Ethnic War and the Modern Conscience, where he notes that modern law of war conventions “drew upon a deeper moral source — the codes of a warrior’s honor” (which, he advises, include the “Christian code of chivalry” and other warrior cannons). He describes these as “among the oldest artifacts of human morality.” Ignatieff further explains that the
[w]arrior’s honor was both a code of belonging and an ethic of responsibility. Wherever the art of war was practiced, warriors distinguished between combatants and noncombatants, legitimate and illegitimate targets, moral and immoral weaponry, civilized and barbarous usage in the treatment of prisoners and of the wounded. Such codes may have been honored as often in the breach as in the observance, but without them war is not war – it is no more than slaughter.
Accordingly, contrary to Watt’s bemusement (which I initially shared) about the inclusion of honor and chivalry in the manual, and VanLandingham’s visceral reaction to it, I now find real wisdom in what the manual’s drafters have done.
Why? I believe that doing so might help address the vacuum occasioned by the near disappearance from today’s conflicts of what was once a key supporting pillar of the law of war’s rationale: reciprocity. Indeed, Watts and VanLandingham both allude to the contemporary phenomena of belligerents who actually make it a specific part of their way of fighting to highlight their contempt for the law of war as most nations understand it. Witness the Islamic State’s horrific burning of a captive Jordanian pilot, and their even more appalling crucifixion of children and their burial of them alive.
The increasing irrelevance in practical terms of the concept of reciprocity should be of no small concern to advocates of the rule of law in war. In an essay piece commenting on Prof. Laurie Blank’s discussion of proportionality in the international law of targeting, Prof. Ken Anderson warned not long ago that “[o]bligation without reciprocity risks breakdown [of the rules of war] even faster where one side is pressed to protect the civilians of both sides put at risk because that’s how the other side deliberately wages war, not merely from indifference to them.” Anderson ominously predicts that in such circumstances
[a] system of formal reciprocity in the rules of war (each side has the same formal obligations), but also independence of obligation to the rules of war (each side’s obligation is independent of what the other side does, including if the other side violates the rules) over time is likely either to rupture in crisis or else simply have less and less purchase as universal rules.
Although the manual still talks gamely of reciprocity (para. 3.6), it is doubtful that many American troops battling today’s depraved foes expect to be treated by them as international law would require. How then do commanders and their lawyers rationalize lawful behavior to the troops? Can fear of punishment alone do the job? Maybe in some cases, but reinforcing the idea of honor and chivalry, which implicitly calls upon the individual to do the right thing even when the enemy does not, can be an important motivator in modern war.
I believe that this is how Haque’s insistent reference to morality, which I see as intrinsically involving honor and chivalry, can most productively be operationalized within the military. Although I continue to disagree with how he expresses it at times, his underlying concept (as I interpret it anyway) that morality “matters,” is more than just a philosophical good, but a practical necessity if we are to expect the troops to adhere to the law under circumstances of extreme stress in the face of an adversary who cruelly mocks the most basic principles of law and decency.
Translating morality, as morality, into more secular references of honor and chivalry that resonate with members of the armed forces may be a way to broadly and effectively access the warfighter’s psychology that one wishes to animate towards law of war compliance. In a very thoughtful article by then-Navy lieutenant Gabriel Bradley entitled Honor, Not Law, the author argues convincingly that it is “not enough for soldiers to know the rules, or even to follow them.”
Rather, Bradley says, “[w]ithout deep reserves of character and psychological strength, troops in high-stress battlefield situations may fall prey to undisciplined impulses.” “Honor” he insists “not law, is the key to battlefield discipline.” Bradley reinforces his argument by quoting one of America’s most highly-respected soldiers, Lt. Gen. H.R. McMaster, for the proposition that “individual and institutional values are more important than legal constraints on moral behavior.”
All of this suggests that the dialogue engendered by Just Security’s “mini forum” can lead — as those of Haque’s and mine — to fresh insights, even among protagonists who may have differing views on many other issues.