Summary
History has provided examples of holy war, total war, limited war, and a variety of military operations other than war to illustrate the relative importance of civil-military relations to military legitimacy.
In unlimited wars, might has most often made right, with civilians little more than obstacles to combat operations. Conversely, in limited wars and operations other than war, might has most often had to be right to be successful, and civilian support has often been the difference between success and failure. The right of the equation is what military legitimacy is all about; and concepts of what is right, or legitimate, for the military is the evolutionary product of religious, moral, and legal principles and values that have been inextricably woven into the US national fabric.Religion - specifically the Judeo-Christian tradition - has had a major influence on US perceptions of military legitimacy, including concepts evolved from holy war and chivalry. The most important principle derived from the code of chivalry was that civilians who do not make war should not suffer from it. A derivative of the golden rule, it provides the moral foundation for humanitarian standards governing military operations. For obvious reasons it cannot be applied to warring combatants whose purpose is to destroy one another; but it can and should be applied to non-combatants. This principle was an integral part of the 1863 Lieber Code and the 1949 Geneva Conventions which are at the core of the law of war; but even the US has failed to apply the principle uniformly.
The following chapters build on experience from the past to develop the strategies and capabilities needed for military legitimacy and leadership in the new millennium. Looking ahead, the focus is not on war but on operations other than war - not on combatants but on non-combatants. Military legitimacy is a concept that is dramatically different in war and peace; and in the ambiguous and unforgiving environments of the new strategic environment it can be the difference between military victory and political defeat.
This must be understood by all who wear the uniform and those who would put them in harm's way.Notes
1. Book of Deuteronomy, Chapter 20, verses 12-14. Martin van Creveid has described Old Testament Holy War (milchemet mitzvah) as 'a war of extermination in the fullest sense of that term'. Creveid, The Transformation of War (New York: The Free Press, 1991), p. 135.
2. Ibid.,verses 15,16.
3. Ibid.,verses 10,19.
4. Book of Joshua, Chapter 6, verse 2.
5. Ibid.,verse 21.
6. The reference is to Barbara W. Tuchman's, A Distant Mirror (New York: Ballantine Books, 1978).
7. Webster's New World Dictionary, Third College Edition (New York: Webster's New World, 1988).
8. Tuchman, A Distant Mirror, supra n. 6, Foreword, p. xix.
9. 'Since a knight's usual activities were as much at odds with Christian theory as a merchant's, a moral gloss was needed that would allow the church to tolerate the warriors in good conscience and the warriors to pursue their own values in spiritual comfort. With the help of Benedictine thinkers, a code evolved that put the knight's sword arm in the service, theoretically, of justice, right, piety, the Church, the widow, the orphan and the oppressed.' Ibid, p. 62.
10. Benet was also 'heart-stricken to see and hear of the misery inflicted upon poor laborers... through whom, under God, the Pope and all the kings and lords in the world would have their meat and all their drink and clothing.' He also stated that it was not permissible to take prisoner the 'merchants, tillers of the soil, and shepherds of the enemy.' Ibid, pp. 414,415.
11. Ibid., p.73.
12. Ibid., p. 110.
13. Ibid., pp. 137-38.
14. Ibid., p.553.
15. Ibid., p.563.
16. Ibid., pp.583-84.
17. Lewis H. Lapham, 'Notebook: God's Gunboats', Harper's Magazine, February 1993, p. 10.
18. The Lieber Code defines the limits of military necessity by requiring a distinction be made between combatants as lawful targets and non-combatants, who should be protected from unnecessary suffering.
Martin van Creveid has referred to The Lieber Code as 'the Union text on international law' and decreed that the rebels would be treated as if engaged in an international conflict. See Creveid, The Transformation of War, supra n. 1, p. 41. The following provisions of The Lieber Code were applicable during the War Between the States and remain standards of military legitimacy today: Article 15 describes military necessity as allowing the destruction of'armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war' (emphasis in the original). Article 16 goes on to provide that 'military necessity does not admit of cruelty'. Article 22 makes the critical distinction between soldier and civilian, 'between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.' Article 23 expands on this theme by ensuring that 'the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war'. Articles 24 and 25 compare the practise of barbarous armies with that of Europeans and their descendants. 'The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty...' In contrast, 'In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen is the rule.' Article 38 prohibits the seizure of private property except for military necessity. Article 42 declares slavery to be against the law of nature, citing Roman law to the effect that 'so far as the law of nature is concerned, all men are equal.' Article 43 requires that any slave that comes into the hands of US forces be treated as a free person under the shield of the law of nations. compare the practise of barbarous Under Article 44: 'All wanton violence against persons in the invaded country, destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death.' Article 46 goes further, making it unlawful for US officers or soldiers in a hostile country to make use of their military position for private gain, and Article 47 makes all common crimes punishable against US forces in a hostile country. Article 155 requires that the distinction between combatants and non-combatants in regular war be applied to a government in rebellion, and that military commanders protect loyal citizens. Disloyal citizens can be made to bear the burden of war, but this does not authorize violations of their rights under previous provisions. The above provisions are part of the 157 Articles of The Lieber Code, General Order No. 100,24 April 1863, published in The Military Laws of the United States, War Department Document No. 64 (Washington: Government Printing Office, 1897), pp. 779-799. They have been incorporated in the 1949 Geneva Convention Relative to the Protection of Civilians in Time of War, which is set forth in FM 27-10, The Law of Land Warfare (July 1956). But there is ambiguity over the treatment of enemy civilians in this Army FM; see discussion in note 20 to Chapter 4, infra.19. Shelby Foote, The Civil War, Volume 2: Fredericksburg to Meridian (New York: Random House, 1986), p. 444 (hereinafter The Civil War).
20. Lee also told his men 'we cannot take vengeance for the wrongs our people have suffered without lowering ourselves in the eyes of all whose abhorrence has been excited by the atrocities of our enemies...' Idem. The Operational Law Handbook (JA 422), Center for Law and Military Operations and International Law Division, The Judge Advocate General's School, Charlottesville, VA (1993), cites the following quotes from General Lee and General Sherman as a contrast in command: No greater disgrace can befall the army and through it our whole people, than the perpetration of barbarous outrages upon the innocent and defenseless.
Such proceedings not only disgrace the perpetrators and all connected to them, but are subversive of the discipline and efficiency of the army, and destructive of the ends of our movement... [T]he duties exacted of us by civilization and Christianity are not less obligatory in the country of the enemy than in our own. (General Lee on marching into Pennsylvania.) I sincerely believe that the whole United States, North and South, would rejoice to have this army turned loose on South Carolina, to devastate that state in the manner we have done in Georgia. (General Sherman on marching into South Carolina.)21. John G. Barrett, Sherman's March Through the Carolinas (Chapel Hill: University of North Carolina Press, 1956), pp. 15-16 (hereinafter Sherman's March).
22. Ibid.,p. 38.
23. The Civil War, pp. 753-54.
24. Sherman's March, p. 53.
25. Ibid.,p. 55.
26. Ibid., p. 75.
27. Sherman's March, pp. 81-90; The Civil War, pp. 793-96.
28. Sherman's March, p. 91; The Civil War, p. 795.
29. Sherman's March, p. 85.
30. Idem.
31. Ibid., p. 92.
32. Ibid., p. 89.
33. Kurt Vonnegut, Slaughterhouse Five (New York: Dell Publishing, 1968), p. 179.
34. John Hersey, Hiroshima (New York: Bantam Books, 1986). The controversy over the Enola Gay exhibit at the Smithsonian on the fiftieth anniversary of the bombing of Hiroshima indicated that there is not yet a national consensus on its legality or morality. But John Hersey and The Lieber Code (see n. 18, supra) were cited to support the conclusion that the bombing of Hiroshima and Nagasaki could not be justified under the principles of military necessity, unnecessary suffering, and proportionality. See Maritz Ryan, The Atomic Bombing of Japan: Military Necessity, Unnecessary Suffering, and Proportionality, unpublished paper #43015, Center for Law and Military Operations, The Judge Advocate General's School, Charlottesville, VA, 1995. See also n. 4 to Chapter 3, infra.
35. Philip Caputo, A Rumor of War (New York: Ballantine Books, 1986), p.
33.36. Ibid., p. 69.
37. Ibid., p. 218.
38. Idem.
39. Idem.
40. Ibid., Chapter 18.
41. Ibid., p. 306.
42. See Yuval Joseph Zacks, 'Operation Desert Storm, A Just War?', Military Review, January 1992, p. 20. Zacks concludes that Desert Storm met the criteria for just war. His conclusion is questioned by Ranier H. Spencer in 'A Just War Primer', Military Review, February 1993, p. 20, based on the targeting of infrastructure that served both Iraqi civilian and military needs. Cohen, infra n. 47, supports the targeting of such infrastructure.
43. Steven Keeva, 'Lawyers in the War Room', The ABA Journal, December 1991, p. 52.
44. Idem.
45. Jeffrey F. Addicott has compared the tactics of Lee and Sherman and their compliance with the laws of war (for example, Lieber Code), and then questioned General Schwarzkopf's choice of Sherman as one of his heroes. See Jeffrey F. Addicott, 'Operation Desert Storm: R. E. Lee or W. T. Sherman?' Military Law Review, Vol. 136, Spring 1992, pp. 115, 133.
46. Quincy Wright, A Study of War (Chicago: University of Chicago Press, 1942, 1971), pp. 305-307. Wright has attributed this trend to the militarization of the population and the nationalization of the war effort. 'The moral identification of the individual with the state has given the national will priority over humanitarian considerations... consequently, the principle of military necessity has tended to be interpreted in a way to override the traditional rules of war for the protection of civilian life and property.'
47. Eliot A. Cohen, 'The Mystique of US Air Power', Foreign Affairs (January/February 1994), pp. 109, 123.
48. Joseph Sobran editorial, 'Modern State has Warped our Sense of Right and Wrong', The State (Columbia, SC), 16 February 1995, p. A19.
49. Creveld, The Transformation of War, supra n. 1, p. 202. Creveld has cited Mao Tse-Tung: 'Mao spoke of guerrillas as fish swimming in the sea of the surrounding population, the point of the analogy being precisely that the sea does not distinguish one part from another' (pp. 206-207).
50. Steven Metz, America in the Third World: Strategic Alternatives and Military Implications (US Army War College, Carlisle Barracks, PA: Strategic Studies Institute, 1994), p. 37.
51. William Raspberry quoted Havel to illustrate the importance of generic religion to contemporary culture, and its conspicuous absence from contemporary politics. William Raspberry, 'The Mystery of the Universe', The State (Columbia, SC), 9 July 1994, p. A8. Steve Metz has suggested that religion may be the only antidote for anarchy; see n. 50, supra.
52. In a letter written by Thomas Jefferson to Henry Fry on 17 June 1804, Jefferson left no doubt as to his love for the teachings of Jesus and his contempt for the distortion and misuse made of those teachings by preachers and politicians: 'I consider the doctrines of Jesus as delivered by himself to contain the outlines of the sublimest morality that has ever been taught; but I hold in the utmost profound detestation and execration the corruptions of it which have been invested by priestcraft and kingcraft, constituting a conspiracy of church and state against the civil and religious liberties of man.' Thomas Jefferson, The Jefferson Bible (New York: ClarksonN. Potter, Inc., 1964), p. 378.
53. From an introduction by Henry Wilder Foote to The Jefferson Bible, idem at p. 12.
54. As discussed earlier in this chapter, chivalry developed as a medieval amalgam of the Christian faith and the warrior ethic, and remains an element of military culture. Lacking conventional threats, presidents have cited it to sanctify military operations (see n. 17 supra), and individual soldiers have depended upon it to justify missions of dubious legitimacy, as in Vietnam: 'American soldiers don't go to war in the spirit of mercenaries or legionnaires; we have to think of ourselves as crusaders. It may be self-delusion, but a sense of chivalric purpose is essential to our spiritual survival when we find ourselves called upon to kill others and risk being killed', Tobias Wolff, 'After the Crusade', Time (24 April 1995), p. 48. The Biblical account of the Roman centurion who impressed Jesus with his faith (see Matthew 8:5-10) has modern application: for the spiritual dimension of leadership, see Chapter 5, nn. 10-14, infra.
55. In a keynote address at the US Army School of the Americas at Fort Benning, GA, on 10 August 1994, entitled The National Armed Forces as Supporters of Human Rights, General Barry R. McCaffrey, Commander in Chief, US Southern Command (USSOUTHCOM) compared the tactics of General Sherman with those of General Robert E. Lee, to illustrate the application of the golden rule (General McCaffrey used the phrase 'treating soldiers with respect'). This is discussed under 'Operational law and human rights' in Chapter 4 (see n. 57 to Chapter 4, infra). General McCaffrey urged the Latin American officers to follow the leadership example of General Lee and treat their soldiers and civilians with respect: 'It is not always understood that soldiers treat civilians, prisoners, and other people's property as they themselves are treated. So if we treat our own soldiers with dignity under the rule of law, with some sense of compassion, then they are much more likely to act in a similar fashion toward the civilian population.' See also n. 57-60 toChapter 4, and n. 56 to Chapter 6.