JURIST Guest Columnist Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the limits of the law of war need to be respected by civilian policymakers not just out of deference to the general rule of law, to enhance the legitimacy of the American cause or to encourage reciprocity, but also because those limits preserve our soldiers' own morality and human dignity even in the midst of mortal combat….

The law of war has been the subject of intense interest and debate among policy makers, scholars, media, and even the general public since the terrorist attacks of 9/11. This interest, perhaps greater than at any other time in our history, has resulted in large measure from decisions by the Bush administration. These decisions – establishing when and how the United States will apply the law of war to operations associated with the “Global War on Terror” – were intended to achieve the President’s stated objective of doing whatever he deemed necessary to protect the people of the nation and defeat the trans-national terrorist threat. The aggressive philosophy reflected in these decisions spawned a proverbial cottage industry of scholarship, punditry, and commentary on applicability, content, and purposes of the law of war.

This course of events exposed competing interests underlying the question of when and to what extent this law should apply to constrain U.S. operations. Proponents of the aggressive policies established by the Bush administration emphasize the unprecedented nature of the terrorist threat and the lawless nature of terrorism itself. Opponents of the administration emphasize three primary objections: that the policies simply cannot be reconciled with the letter of the law; that they diminish the moral legitimacy of the U.S. effort; and that they jeopardize U.S. forces by encouraging future enemies to adopt an equally limited acknowledgment of the applicability of this law.

There is no question that respect for the rule of law, moral legitimacy, and encouraging reciprocity are all important rationales for broad application and good faith interpretation of the law of war. However, it seems that advocates on both sides of this debate routinely overlook a subtle but essential purpose for accepting the limits imposed by this law: protecting the moral integrity and mental well-being of the servants of the nation called upon to prosecute this conflict.

There are certain truisms in war that persist through time. First, war involves the deliberate infliction of suffering upon warriors, and the inevitable incidental infliction of suffering on the people and property of an opponent. Second, suffering is not inflicted for personal reasons, but because some national or organizational leadership entity directs such activity. Third, those who engage in mortal combat do not do so for profit or personal vendetta, but because they have been called upon to do so by the authority they serve. For the warriors who serve this nation, and many other nations, this results in an implied covenant between them and the nation under whose flag they fight, kill, destroy, and detain. The essence of this covenant is a willingness to inflict the suffering associated with warfare based on the belief that doing so will be consistent with the inherent values of the cause for which they serve. For most human beings, imbued with an inherent value for human life, preserving this covenant is essential to reconcile their innate sense of morality with the suffering their duty requires them to inflict.

Military professionals historically understood that preserving a sense of morality would be most severely stressed during armed conflict. As a result, they were at the forefront of developing non-negotiable rules to limit the brutality of warfare, and in so doing limit the corrosive moral consequence of conflict. Thus, another truism of war is that limitations imposed on the conduct of hostilities — limitations developed by warriors to limit the infliction of suffering to only that which is legitimately necessary — protect not just the adversary, but the moral and psychological integrity of the members of the force regulated by such constraints.

One of the most indelible images from the first Gulf War is that of the “highway of death”, an image that illustrates the first truism of war — infliction of suffering. However, for the thousands of military lawyers trained at the Judge Advocate General’s School, a different image illustrates the truism that warriors rely on the law of war to preserve the line between their inherent sense of right and wrong: a photograph depicting a U.S. Marine offering comfort to a captured Iraqi soldier. The Marine holds his pistol in one hand, pointed towards the ground, but ready to use on short notice with deadly consequence. His other hand rests on the shoulder of the prisoner of war kneeling before him, hands bound. This Marine, who moments before had almost certainly been engaged in mortal combat with this enemy, was reassuring the prisoner that he was not going to be the object of reprisal, but would instead be treated as a victim of a war he been compelled by his nation to fight. This image beautifully illustrated that opponents do not by virtue of their participation in hostilities cease to be human beings, and that when no longer a threat they do not become the object of retribution, but instead become the subject of humanitarian protection. Fidelity to this spirit enabled this Marine, like so many of his brothers and sisters in arms, to reconcile the brutality of warfare with the core value of respect for basic human dignity so indelibly linked to the pride of serving our nation.

The law of war operates to preserve this distinction between “right and wrong”. History has demonstrated that armed conflict will virtually always trigger determination by policy makers to unleash every available means to defeat their enemies. The limits imposed by the law of war operate to substantially mitigate the brutality of war. In so doing, the law allows warriors to preserve their sense of morality and human dignity. This is essential for an armed force composed of volunteers who accept the risks and burdens of military service based in large measure on a sense of commitment to the values of our democracy. Our policies must not be defined by the image of an American soldier smiling demonically in the presence of a hooded detainee with wires connected to his hands, but instead to the image of that Marine, offering compassion to a prisoner he would have willingly killed only moments earlier. Our warriors deserve nothing less.

Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters
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