Words Matter in War

Command Sergeant Major John Wayne Troxell, the senior enlisted adviser to the Chairman of the Joint Chiefs of Staff, shared this attention-grabbing message with his more than 21,000 Facebook followers on Tuesday:

ISIS needs to understand that the Joint Force is on orders to annihilate them. So, they have two options should they decide to come up against the United States, our allies and partners: surrender or die!

If they surrender, we will safeguard them to their detainee facility cell, provide them chow, a cot and due process.

HOWEVER, if they choose not to surrender, then we will kill them with extreme prejudice, whether that be through security force assistance, by dropping bombs on them, shooting them in the face, or beating them to death with our entrenching tools.

Regardless, they cannot win, so they need to choose how its going to be.

#SEAC3 #DefeatDaesh #ISIS_SurrenderOrDie

I believe this Facebook post falls squarely in the same category of statements that the International Committee of the Red Cross (ICRC) cautioned against in October. That warning came after officials from the United States, France, and the United Kingdom all promoted the idea that their countries should kill, and ideally only kill, ISIS fighters.

Here’s how the New York Times reported on the ICRC’s concerns about those types of statements:

The organization is concerned about rhetoric that “dehumanizes” and “demonizes” the enemy or suggests that a particular adversary is “outside the bounds of humanity” and can be treated “as if humanitarian law doesn’t apply,” the group’s deputy director for the Middle East, Patrick Hamilton, told reporters via a telephone conference call.

To be sure, none of those statements called for extrajudicial killings or any other war crime. But in an already tense and dangerous atmosphere — punctuated by atrocities carried out by insurgent and militia groups in the past — all parties need to “de-escalate their language,” Mr. Hamilton said.

Troxell may have thought that if he recognized that U.S. forces won’t kill members of ISIS who surrender, he could somehow sidestep the ICRC’s concerns. In my view, he didn’t. First off, it’s not very convincing to say you’re willing to accept your enemy’s surrender after you’ve already told them that U.S. soldiers have orders to “annihilate” them. Secondly, “surrender or die!”—the options he gives ISIS fighters, not to mention the expectations he places on U.S. soldiers—isn’t how the laws of war work.

Someone who surrenders is only one of three types of fighters that the laws of war protect from attack, known as hors de combat. The other types are 1) anyone who is in the power of an adverse party (such as an unwillingly captured ISIS fighter) and 2) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness. What this means is that, similar to ISIS fighters who surrender, these others types of people hors de combat also can’t be legally bombed or “beaten to death with entrenching tools.” If an ISIS enemy fighter is wounded and unconscious, he surely can’t surrender. But U.S. soldiers equally can’t then legally shoot that unconscious fighter in the face. Doing so would be a war crime.

I don’t want to suggest that Troxell is intentionally promoting war crimes. Rather, his Facebook message is both a threat to ISIS and an online pep talk to motivate troops and reassure them that they’re receiving support from above. But, at the same time, his message carries the same bombastic, chest-thumping, and carelessly de-humanizing tone as the troubling statements that the ICRC warned about. If taken seriously, it also undermines the fact that even when the laws of war allow a soldier to kill an enemy who fails to surrender, there may be important strategic reasons—such as collecting intelligence—not to do so. Troxell’s rank and official position make his words particularly concerning given their ability to resonate within U.S. military ranks.

Add to all this the fact that the phrase Troxell uses, “kill them with extreme prejudice,” has too familiar a ring to it, bringing to mind the execution euphemism “exterminate with extreme prejudice” which the New York Times reported on in 1969 in relation to allegations of U.S. Special Forces murdering a double agent in Vietnam.  “Exterminate with extreme prejudice” is also the phrase General Corman (played by G.D. Spradlin), Colonel Lucas (played by Harrison Ford), and Jerry used in Apocalypse Now when they told Captain Benjamin Willard (played by Martin Sheen) to kill, and only kill, Colonel Walter Kurtz (played by Marlon Brando).  In other words, the term signified an unlawful order to Willard to carry out a secret assassination mission.

Then there’s the separate issue raised by Troxell’s claim that anyone who surrenders to the U.S. will be provided “due process.” I’m not sure what to make of this promise. It’s unclear exactly what due process procedures the U.S. currently grants to detainees picked up on the battlefield, especially those it labels “enemy combatants.” U.S. detention policy appears to be driven by ad hoc decision-making and, recently, the Trump administration attempted to block, an American citizen, whom the government says was fighting with ISIS, access to legal counsel for almost four months after he surrendered and was subsequently detained in Iraq.

 

Image: U.S. Department of Defense

  

About the Author(s)

Jonathan Horowitz

Legal Officer - National Security and Counterterrorism Program at the Open Society Justice Initiative Follow him on Twitter (@J_T_Horowitz).