Editor’s Note: Just Security is holding a “mini forum” on the new Defense Department Law of War Manual. This series includes posts from Sean Watts, Eric Jensen, Adil Ahmad Haque, Geoffrey Corn, Charlie Dunlap, Jr., John Dehn, and more to come.
I have to admit I had a visceral negative reaction to the new Defense Department Law of War Manual’s emphasis on honor and chivalry. The last time I checked, knighthood and the Crusades weren’t shining examples of humanity, the principle that is the driving force behind jus in bello. For good reason, most of the world refers to jus in bello as international humanitarian law (IHL). While consistent adherence to this legal regime’s rules helps promote disciplined forces and contributes to a more lasting peace, the primary driver behind the modern jus in bello is humanitarian in nature — IHL is meant “to mitigate the evils inseparable from war, to ameliorate the lot of the war victims, and to put an end to unnecessary hardships.” Overtly embracing the humanity that the law of war recognizes doesn’t turn soldiers into kumbaya-singing pacifists. Instead, it allows them to professionally execute the horrible tasks we as a nation give them, while letting them return with their souls intact.
But the new manual does little to drive this point home, and instead turns to outdated, chauvinistic, and frankly distasteful concepts as motivating forces for our servicemen and women. According to the manual, “[h]onor is also called chivalry” and “demands a certain amount of fairness in offense and defense and a certain mutual respect between opposing forces.” The manual, as Prof. Sean Watts eloquently pointed out in his earlier post, resurrects these concepts as fundamental principles undergirding jus in bello. Yet why was this resurrection necessary? I’m all for history informing one’s understanding of current regulatory and statutory requirements, but particularly at a time when this country is finally moving past outmoded symbols of hatred such as the Confederate flag, why regress by emphasizing loaded medieval concepts to help regulate how our military prosecutes wars?
Of course honor on its face certainly doesn’t carry the same baggage as the Confederate flag. But when you equate it, as the manual does, with chivalry, it isn’t as inspiring as it may sound. Chivalry, per an honest reading of the history books, connotes chauvinism, elitism, and the inhumanity of the Crusades. Feudal knights used the chivalric code to maintain their control of arms, keeping the peasants in their place. Bows and arrows, for example, were banned under the chivalric code not because they caused greater pain, but because they allowed commoners to threaten the privileged knights. Furthermore, such one-sided “codes of honor” only applied when the knights were fighting non-Christians, thereby signaling the assumed white, western, Christian superiority of the day — a far cry from the essential humanity that today’s jus in bello is built on. Are these really the concepts the new manual wants to use to animate the modern US military?
That is, why doesn’t the manual deontologically emphasize the utilitarian and humanitarian purposes undergirding the modern rules of war, and drop musings on the medieval sense of fair play? Why not emphasize that a prohibition on the misuse of the flags of truce or surrender isn’t a matter of being “fair” to one’s enemy; that instead, such misuse makes it difficult to achieve peace? In today’s asymmetric warfare, the manual’s trite statement that “[h]onor requires a certain amount of fairness in offense and defense” doesn’t get you very far when advising commanders. And it shouldn’t. Commanders have to deal with enemies who operate under a very different sense of “fairness.”
So let’s admit that the rules of war are not about “fairness,” and they haven’t been for a very long time (if they ever were, in bloody reality). It’s not about being knightly and chivalric. The law of war is about recognizing the humanity in all human beings, and limiting the violence of war to that necessary to secure the peace, while limiting the effects on non-combatants. It’s not “honor,” nor the manual’s demand that US service members “respect” their enemy as fellow warriors (try telling an Air Force pilot that they have to respect an ISIS member as a fellow warrior) that informs US service members’ knowledge that, for example, abusing detainees is prohibited. It’s civilization’s shared sense of humanity — that the overwhelming majority of US service members understand — that drives the rules of war. And that can’t be emphasized enough.