Military discipline and the law

In June 2011, the South African National Defence Force and the ICRC co-hosted senior operational officers from 60 countries across the globe for the week-long Senior Workshop on International Rules governing Military Operations (SWIRMO). Andrew Carswell, the ICRC's director of that event, discusses the importance of translating international humanitarian and human rights law into the operational practice of armed forces.

Saldanha, South Africa. Practical exercises during the Senior Workshop on International Rules governing Military Operations (Swirmo).
© SA Soldier

The core messages of the law of armed conflict are straightforward: fight only combatants and destroy only military objectives; collect and care for the wounded, whether friend or foe; do not kill, torture or abuse prisoners of war; treat all civilians humanely. Nevertheless, a quick scan of the international media reveals that even these elementary rules are in many cases disregarded in conflicts worldwide.

What explains violations of such basic principles of humanity? Indeed, every country in the world today has ratified the four Geneva Conventions, and the vast majority have signed on to the most important treaties governing warfare. These documents are presumed evidence of a universal political will to mitigate the worst effects of warfare for those who are not or no longer participating in the fighting. So where does the problem lie?

A complex battlefield

Political will aside, a central barrier to legal compliance is the complexity of the modern battlefield. For example, the law requires that armed forces avoid civilian casualties and damage to civilian objects when they plan and execute their operations; but in the post-9/11 world, with fighting forces often intermingling themselves with the civilian population, civilians including private contractors taking part in operations, and armed groups failing to distinguish themselves on the battlefield, how will the soldier know who he can and cannot target? In 2009 the ICRC authored a guidance document on the legal concept of direct participation in hostilities aimed at answering that question. But a clean divide between combatant and civilian is an historical relic.

Furthermore, the soldier no longer finds himself solely on the traditional battlefield. Today he is engaged in complex peace support and stabilization operations, law enforcement, counterinsurgency and counter-terrorism – a sliding scale of violence to which the laws of war are only applicable at the most violent end, and for which a nuanced understanding of another body of law – international human rights law – is required.

Another central issue is the difficulty of translating the Geneva Conventions and other international legal obligations into military practice. In 2004, the ICRC commissioned a study on the psychological roots of behaviour in war. It concluded that well-intentioned civilians and military lawyers may, if adequately persuasive, convince soldiers of the importance of international humanitarian law. However, such a change in attitude will have little effect on their behaviour on the battlefield in the face of orders that oblige them to violate the law.

The origin of military orders

Soldiers are creatures of discipline, and almost every aspect of their professional lives is governed by orders. For the man in uniform, failure to abide by orders has consequences ranging from losing weekend leave to being stripped of rank in front of his peers. Just as the ties that bind soldiers can be stronger than the union of marriage, the orders they receive from their superiors will often outweigh even morality as a driver of behaviour.

International law must therefore form an integral part of the sources of military orders – doctrine, classroom education, field training, standard operating procedures, rules of engagement – if armed forces and their political masters wish to give meaning to their obligations. Because discipline is the hallmark of a professional armed force, international humanitarian and human rights law must be inextricably linked to discipline.

The 2011 Senior Workshop on International Rules governing Military Operations aimed to reinforce this link for 60 militaries from around the world, promoting translation of the law from theory into operational practice.