Vern Evans
“Leader actions are emulated and exaggerated.”
The U.S. Army’s recent decision to make law of war training optional is a troubling manifestation of this axiom and an exaggeration of the disdain with which our defense secretary apparently views rules of war.
Defense Department and Army regulation have mandated law of war training for decades. But now, junior-level commanders are free to dispense with teaching soldiers even the most basic rules that regulate conduct in battle. This seems aligned with Defense Secretary Pete Hegseth’s apparent disdain for this body of law and the military lawyers who advise commanders on the obligation to abide by the law. But it is not just poorly conceived; it is dangerous.
The importance of such training has never previously been doubted. Defense Department policy directs that each military service “implement effective programs to prevent violations of the law of war, including: (1) Law of war dissemination and periodic training.” Periodic may not be defined, but it certainly should not mean optional. This policy reflects the calculated and logical recognition that fielding troops ignorant of basic international legal obligations related to the wars they must fight is incompatible with the values of the nation they fight for.
It is not clear who made this decision or whether it was linked to some behind-the-scenes direction from the defense secretary. It was, after all, an Army decision. But even if this change was not the result of explicit direction or encouragement from the defense secretary, it is certainly aligned with the dismissive attitude towards the law of war he has expressed.
Signaling that compliance with the law of war is optional is fundamentally inconsistent with the inherent responsibility of command. Indeed, since the adoption of the Hague Convention in 1899, operating under responsible command has been a foundation of the international legal privilege to engage in hostilities.
What was meant by responsible command was not, however, spelled out in that treaty and subsequent ones. This was almost certainly because this requirement — like all the other provisions of the regulations for the conduct of land warfare annexed to that treaty — was substantially influenced by experienced military delegates. Furthermore, these regulations were not novel, but reflective of the customary norms professional armed forces followed for decades, if not centuries. For them, legitimacy accorded to warriors was contingent on respect for laws and customs of war, and it was the unit commander who bore fundamental responsibility for ensuring such respect.
Anyone who has studied this law understands that the responsibility of command extends well beyond preparing subordinates to unleash combat violence. Indeed, were this the ultimate hallmark of responsible command, then Japanese commanders in Nanking or German SS commanders — or even Lt. William Caley of My Lai infamy — would be iconic examples of responsible command. But we know they are not, and instead are properly vilified as the antithesis of what it means to discharge the awesome responsibilities of command.
The reason they are vilified is simple: They failed to prepare and lead their subordinates in a way that navigated the complex line between legitimate and illegitimate violence in war. Yes, responsible commanders must inculcate their subordinates with an instinct for violent aggression to accomplish their missions. But they must also ensure that in executing those missions, the same subordinates preserve the line of legitimacy.
Preserving the actual and perceived legitimacy of U.S. military operations has never been considered more important. It is because of this that legitimacy now ranks among a finite list of principles for effective joint operations. As noted in “Joint Publication 3-0”, “Legitimacy, which can be a decisive factor in operations, is based on the actual and perceived legality, morality, and rightness of the actions.” It is compliance with the law of war that is the very foundation of legitimacy.
Joint doctrine recognizes that actual and perceived legitimacy is understood as a strategic imperative. One need only consider the international reaction to the Israeli military campaign in Gaza to grasp this reality. Simply put, nothing can destroy the strategic credibility of a military campaign more quickly than the actual or even perceived disregard for law and morality among the forces executing that operation.
None of this is to suggest that an annual block of instruction on the law of war will produce soldiers who are law of war experts. Such training must, of course, be focused on the very basics of the law. But it will signal perhaps the most important principle of the relationship of law and war: that even during hostilities, the ends do not always justify the means.
But the adverse consequence of dismissing the significance of the law that defines legitimacy in war is not limited to strategic disaster; it also endangers the moral integrity of our armed forces by distorting the legal and moral compass they carry into battle. Unlike most of us, they will have to live the rest of their lives carrying the burden of the human consequences of the wars they must fight. It is this law that helps them bear that moral load, because it tells them that what they did was necessary, justified and legitimate.
Secretary Hegseth’s view of the law of war now appears to have trickled down to Army leadership. His constant reference to increased lethality and aggressiveness while dismissing the importance of the law of war is a recipe for strategic disaster. Even worse, it sets the condition for a moral corrosion of our armed forces that cannot be permitted. He’s in command. It’s time for him to fulfill his responsibility and reinforce respect for this law.
Geoffrey S. Corn is the George R. Killam Jr. chair of criminal law and director of the Center for Military Law and Policy at the Texas Tech University School of Law. Prior to joining academia, Professor Corn served as an Army officer for 21 years, retiring as a Lieutenant Colonel. He served one additional year as the civilian senior Army law of war adviser.
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