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It took guts and thorough knowledge of international law for Commander Irvin, CO of the Nautilus during World War II, to decide to sink a hospital ship. Do naval officers today know the law well enough to make such a decision?
Technical proficiency and ethical conduct go hand in hand in the making of a naval professional. Unfortunately, the Navy provides its officers with top- notch technical training while giving them inadequate training in professional conduct and ethics. The explosion of defense technology in recent years makes this somewhat understandable. The Navy can only devote so much time to training. Therefore, it must set priorities and use training resources as economically as possible. In the long run, however, this economy may prove false. Can officers who are technically proficient but lack knowledge of military law and ethics truly be called professionals? Are they fully prepared to wage war without such knowledge?
The question is not trivial. Retired Navy Rear Admiral William D. Irvin related an incident that occurred during World War II when he commanded the USS Nautilus (SS- 168). During an approach on a Japanese convoy, the submarine positively identified one ship as the America Maru, which the Japanese had designated as a hospital ship. Based on his knowledge of international law, Admiral Irvin evaluated the ship’s lack of markings and her participation in an escorted convoy as disqualifying her from the protection normally afforded a hospital ship. He stated that “she was treated as a legitimate target under the warfare instructions we were executing, and she was sunk during the action.”1 This incident makes two significant points: Then-Commander Irvin recognized that the decision was his to make; and that he and his officers had the knowledge to make the decision. I seriously question whether submarine officers today would recognize the
first point or possess the requisite knowledge for the se ond aspect. ,Qf
Most submarine officers are skeptical of the need training in international law that applies to naval war a0f Their arguments generally follow one of three HneS reasoning:
► Such training is not necessary since all U. S. nava* ,°re.
cers already have developed the moral character an solve to behave properly in time of war. iy
► Decisions dealing with international law are made 0 at very senior levels and the promulgated rules of ment will be complete and specific enough to regulat^, officer’s conduct. Naval officers will only be respond for adherence to these rules of engagement (ROEs)- f
► The duty of American fighting men is to win wars
their country. Consequently, adherence to an °^)S0,1[1J concept like international law in war is both foolish a disloyal. ^
A brief look at the historical record shows the wea*CfnoI]i of these arguments. First, our wartime record is far 1e perfect. An impartial observer would have a difficult tj^ concluding that American sailors and soldiers are any likely to commit war crimes than any other couth ^ fighting men. Judge Francis Biddle, one of the two • judges at the first Nuremberg trial, passed a sobering ment on the conduct of our submariners during Worm II. During the trial of German Admiral Karl D°enaJ1y Judge Biddle was forced to acknowledge that, “Gem1 waged a much cleaner war than we did.”2 vi
On 26 January 1943, the USS Wahoo (SS-238) ^ fully loaded Japanese transport off Wewak, New Gu> ^ Because the Wahoo's commanding officer believe ^ estimated 9,500 Japanese troops in the water or em^up- in 20 nondescript boats were within easy reach . ujug ply base at Wewak, and hence presented a contin ^ threat to American forces in the Southwest Pacify, decided to “battle surface” amid the survivors an stray them by gunfire. The U. S. Army gave sancti°^,,j the action by awarding Commander Dudley W. (“Mu Morton a Distinguished Service Cross. The Navy sU
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Proceedings / Ju°e
“At all times, a commander shall observe and require his command to observe the principles of international law. Where neces sary to fulfillment of this responsibility, a departure from other provisions of Navy Regulations is authorized.”
rescue of survivors, an order which helped earn him a
>ear prison sentence at Nuremberg as a war criminal. 0fder lost much of its value to the prosecution, how
awarded the Wahoo’s skipper the Navy Cross. The 0|-f!dent was generally used by submarine commanding Viv'Cers as a P°l*cy decision governing action against sur- pfs of ship sinkings.3
HlVl«Ur montlls earlier, the German submarine U-J56 sank atid Laconia in the South Atlantic. The U-boat surfaced lt;||.attempted to coordinate rescue of British, Polish, and a lan survivors of the transport—as required by the 0JUe Conventions—but was herself attacked and script y damaged by a U. S. bomber despite the submarine’s Cinent display of an International Red Cross flag on 'Ssu ’ ^raPed over her gun. 1° retaliation, Admiral Doenitz ^ 'he “Laconia order” forbidding any further attempt lei
MARK FREEMAN
ever, when Admiral Chester Nimitz testified that U. S. submarines followed the same policy of unrestricted warfare from 7 December 1941.4
During the Vietnam War, the U. S. Army prosecuted 50 cases involving U. S. personnel who were accused of war crimes, most of which resulted in convictions.5 Lieutenant Donald Thompson, U. S. Navy, who served with the Marines in Vietnam, described the situation as he saw it.
“So, over the course of the next year, we invented our own rules like: if it runs, kill it; if it moves at night, kill it; if you find a booby trap, destroy the house closest to it.”6
This review of history is not intended to indict members of the U. S. armed forces as war criminals. Rather, its purpose is to debunk the myth that our sailors and soldiers
‘Vdin
SS / June 1988
59
struction in the laws of warfare for those persons
“level of responsibility” enables them to “prevent suppress breaches” of the law.10 However, the laclc
The capabilities and power of modern weapon systems do not relieve a coniba* officer of his responsibility to prevent unnecessary risk to noncombatants.
tional law are a waste of effort. To quote von Clause again:
the'1
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are members of a moral military which cannot commit atrocities. In a harsh combat environment, peacetime rules seem grossly at odds with the realities of war. Can we realistically expect someone untrained in wartime conduct to formulate and follow a “correct” set of rules under these circumstances? Our experience suggests that we cannot.
The need for training in battlefield ethics is apparent. Chivalry is generally regarded as obsolete on the modem battlefield, and international law now serves as the basis of the code of behavior that U. S. officers carry into combat. Sadly, however, combat officers receive little or no instruction in international law. If the Navy is going to hold its officers responsible for the destructive potential of the modem warship, then the Navy is obligated to ensure that these officers know the conduct the nation expects of them.
The idea that training in international law is not important to seagoing line officers does not make sense. They are precisely the ones who need it. The provisions of the Geneva Conventions of 1949 and the Hague Convention of 1907 are intended to prevent atrocities, not to provide a basis for prosecution after the fact. Military lawyers do not commit war crimes, but line officers, frequently very junior ones, do. Every war crimes trial in history has emphasized the point that all commissioned officers at the scene of a crime bear responsibility for a violation of international law. To quote Navy Regulations, 1973, Article 0605:
“At all times, a commander shall observe and require his command to observe the principles of international law. Where necessary to fulfillment of this responsibility, a departure from other provisions of Navy Regulations is authorized.”7
The commanding officer (CO) bears the primary responsibility for a ship’s conduct, but he should not be the only one who knows the standards. All commissioned officers on board bear some responsibility. During World War II, Kapitanleuthant Heinz Eck’s German submarine, U-852, machine-gunned the survivors of the Greek freighter SS Peleus. At the subsequent war crimes trial, Eck and all surviving members of his submarine’s wardroom, including the medical officer, were found guilty of committing a war crime.8
Leaving a CO to make important decisions in combat without knowledgeable advice from his primary assistants is a poor policy. The Navy does not do this in matters concerning tactics or operations. Why should it do so in matters of international law?
The assertion that official rules of engagement are sufficient to cover any contingency assumes that the ROEs are detailed and completely cover all possible situations. Both assumptions are wrong. ROEs are normally written as comprehensively as possible to provide a CO with some latitude to apply his judgment to the situation at hand. The first ROEs issued to U. S. forces after Pearl Harbor were simply, “Execute unrestricted air and submarine warfare against Japan.”9 This directive was hardly detailed. In this type of situation, correct interpretation of the ROEs is
dependent upon the prior training of the officers involve Properly trained officers realize that international law re garding naval warfare forms a set of standing ROEs t should be used as the basis for making wartime decision^ The concept of disobedience of illegal orders is 'v known. Essential to that idea is the obligation to kn° what constitutes an illegal order or action. Articles S3 an
87 of Protocol I to the Geneva Conventions require in
whose
such instruction is no excuse for breaches of the lavV\ U. S. Army Lieutenant William Calley discovered dun his 1969 trial for the My Lai affair. While a ship’s c° ^ mand structure is different from that of ground forcese gaged in counterinsurgency actions, a department head a warship is clearly in a position to prevent, or encourSr violations of international law. , ,
Many junior officers take the philosophical stance in a world of great nations, clashing ideologies, and m em weapons, international law is obsolete and only sta.n(0 in the way of victory. Those who put serious thought i
the subject quote Prussian general and military stratej(o Karl von Clausewitz: “War is an act of violence pushe its utmost bounds.”11 From their viewpoint, all meariS. at justified to further the national interest. They believe “since the Soviets will not observe international law in event of a conflict, why should we handicap ourselveS doing so?” . )a.
This argument’s major fallacy is the assertion that tions of international law somehow significantly ^en^|| the nation’s cause. In most cases, this is not true- considerations of humanity aside, violations of in*01
“If we find that civilized nations do not put
pristoners to death, do not devastate towns - (e( tries, this is because their intelligence exercises influence on their mode of carrying on War, an taught them a more effectual means of applying ° than these rude acts of mere instinct.”12
Von Clausewitz theorized about total war, but he j acknowledged that political considerations in the , world limited the conduct of military operations. ^en(j 3 von Clausewitz was a combat-experienced officer, an(g() member of the Prussian military aristocracy who acceP ( the rules of chivalry as “given conditions.”13 He di y advocate actions that would violate official state P° 0{ and that would not contribute directly to the destructi° the enemy’s armed forces.
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/Jun«1
The concept of military necessity needs clarification.
' too often military necessity is confused with military e'Pediency, which leads to the sacrifice of long-term ob- lechves for short-term goals. Military necessity is defined 2the use of “regulated force, not otherwise prohibited by e laws of war, required for the partial or complete sub- lssion of the enemy with the least possible expenditure time, life and physical resources.”14 The “enemy” eans the opponent’s armed forces, and specifically does Jt include civilians or personnel hors de combat (outside c°mbat).15 The definition also requires that the force TPhed be closely regulated to prevent needless casualties
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quences of a violation of international law. Any perception of increased risk must be evaluated in this light. If a mission is important enough to the national interest to risk a ship and her crew, then any further risk assumed in order to obey the laws of naval war is justified.
. . . a department head on a warship is clearly in a position to prevent, or encourage, violations of international law.
Protected personnel. Both points are important. Any Cer present when force is used is responsible for seeing
at the points are met. A failure to do so may be convert but hardly constitutes a military necessity, f- ^ Warship may have the ability to destroy an unclassi- i, sonar contact, but such a use of force would not be ^quately regulated.” The capabilities and power of Ij. em weapon systems do not relieve a combat officer of js responsibility to prevent unnecessary risk to combat- a|,ts- Then-Captain Jordan Paust, Judge Advocate Generic s Corps, U. S. Army, stated in the Naval War College r.ev,evv, “A ‘disproportionate’ use of firepower does not LSult in an ‘incidental’ or noncriminal injury to civilians, La war crime.”16
I he argument that international law regarding warfare v °hsolete and naive is invalid. The latest Geneva Condons were ratified in 1949 and the protocols to these Inventions were written in 1977. Obviously, they were . on earlier treaties and customs, but as a body of I °rceable law they are relatively modern. Both military J^ers and politicians with significant experience in mod- ^. Warfare contributed to these resolutions. If the con- of war prevents the reporting and prosecution of Crnie violations, this is not a justification for further HJhes. This tu quoique, or “you did it also,” defense was H accepted at the Nuremberg trials, and it certainly will excuse future violations.
ince the Iran-Contra scandal, many writers have sug- V()Sted that our military officers could use some civics les- This may not be a bad idea, particularly for those
If the Navy truly expects its combat officers to follow the standards regulating warfare that are outlined in international law, it must upgrade related training for its line officers. Instruction must start at precommissioning and continue through Prospective Commanding Officers School, with regular reinforcement at warfare speciality schools and in ships’ training. The professional code of ethics for all naval officers is based on international law.
The level of instruction does not have to be deep, but it should cover some basic specifics, principles, and key interpretations. It should include the important portions of the Geneva Conventions of 1949, the Protocols of 1977, and other applicable international agreements. It should incorporate historic cases, such as the Nuremberg trials, to illustrate important points, such as the responsibilities of a commanding officer and appropriate obedience to superiors’ orders. Most important, the training should stress that observance of international law is a serious part of national policy and is expected of all members of the U. S. armed forces. They must be capable representatives of the U. S. government.
lie.
see international law as an obstacle to the achieve-
itl,nt °f national objectives. U. S. military officers’ pri- loyalty is to the Constitution, and they should first (Ier to that document when executing their duties. The Institution in Article 1, Section 8 states that Congress 5[)S. the power “To define and punish . . . Offenses
'ltlst the law of nations . ces on land and water . . p Illent and regulation of the land and naval forces.” As a (L.y to the various treaties stating the laws of war, the ti()lted States has made international law part of its na- prnal law. No national objective, real or perceived, takes S(|Ccedence over this, and any military officer who pre- to further the nation’s interest by a violation of o National law is usurping power rightfully belonging to a8ress.
%>ties usually do more harm than good for national Actives. No naval officer can foresee the full conse-
. make rules concerning cap. To make Rules for the Gov-
'Burdick H. Brittin, International Law for Seagoing Officers, fifth ed., (Annapolis, MD: Naval Institute Press, 1981), pp. 266-267.
2Ann Tussa and John Tussa, The Nuremberg Trial (New York: Athcneum, 1986), p. 461.
3" After Action Report of the USS Wahoo’s Third War Patrol”; Clay Blair, Jr., , Silent Victory: The U. S. Submarine War Against Japan (Philadelphia, PA: J.B. Lippencott, 1975), pp. 384-385.
JDr. M. Maurer and L.J. Paszek, "Origin of the Laconia Order," Air University Review, Mar.-Apr. 1964, pp. 24-37.
5Peter Karsten, Law, Soldiers and Combat (Westport, CT: Greenwood Press, 1978), p. 97.
’’Ibid., p. 101.
1U. 5. Navy Regulations, U. S. Government Printing Office, 1973, p. 11. xThe Nuremberg Trial, pp. 186-187.
7Silent Victory, p.106.
'°Law, Soldiers and Combat, pp. 194-195.
"Karl von Clausewitz, On War, trans. by J. J. Graham, (London: Kegan Paul, Trench, Trubner and Co. Ltd., 1918), p. 4.
12Ibid.
13Ibid., p. 3.
14NWIP 10-2, Law of Naval Warfare, (U. S. Government Printing Office, 1974), pp. 2-4.
lsLaw, Soldiers and Combat, p. 181.
l6Capt. Jordan Paust, JAGC, USA, Naval War College Review, (Jan.-Feb. 1973), p. 104.
Lieutenant Graf is currently assigned as an instructor of officer training at the Naval Submarine School in Groton, Connecticut. He has served in the USS Trepang (SSN-674) and the Sargo (SSN-583). He graduated from the Naval Academy in 1978 and completed nuclear power training.
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