Law of Armed Conflict Conceals the Primal Nature of Warfare

 Andrew Stutts

            Some theories claim humans are biologically wired for war.   However, many of these theories critics prefer to blame the mass killing produced by warfare on various aspects of modern civilization.  To the contrary there are many reported incidents in the last two decades concerning our closest primate relative, the chimpanzee, that back up suppositions that war is rooted in evolution. This view maintains that animals that conduct mutual group violence do so because it helps them win resources and territory. This in turn lets them survive longer and breed more.  Therefore, in accordance with evolutionary theory, descendants from those that were best able to accomplish this thrived and replaced those that did not.  The grim reality is that evolution likely favored humans who warred when and because they could get away with it. This gruesome reality is making itself evident in current chimpanzee populations.

            Some would argue that human and chimp battles differ in major ways.  They would argue that the reasons behind human conflicts are much more complex.  Also, humans appear to far exceed the boundaries of what they can get away with wars often drag on year after bloody year, after having been initially sold to those involved as an easy win.  This modern human phenomenon of long, bloody wars might stem from the fact that leadership decisions have gravitated away from being made on the battlefield by those who fight the wars.

There are, however, undeniable fundamental similarities between chimpanzees and humans.  Males in both have a propensity toward violence and if they feel in a position to kill safely they are easily encouraged to do so.   One example may be to compare human genocide with incidents where multiple chimps gang up one individual.  Both follow the aforementioned principle of attacking while safety is in place for the aggressor.   It can be argued that warfare as a whole is rooted in tendencies like those the chimpanzees display.  Surprise raids are a typical pattern among hunter-gatherers. In this method the aim is to organized a group of men, find a helpless victim and kill them and run away again.

It is ironic that modern civilization might be pushing the chimps into battle with each other.  This quit possibly due man’s encroachment which dwindles the chimps resources causing conflict.  This would parallel some beliefs that war is basically a product of modern civilization. In this view it is suggested Native Americans had been more peaceful before Europeans landed in America than afterward.  Increased violence may have stemmed from such factors as disputes over access to Western goods and weapons.  Lastly, white European expansion in America may have drew together once-separate groups of natives together.

            Our new enlightened rules concerning conflict is less of about cooperation and more about the appearance of civility.  Instead of concerning itself with mutual welfare and benefit, humanity instead makes elaborate rules concerning warfare.  However, these rules really only benefit societies with a technological advantages.  These intricate prohibitions on conduct and use of force mostly serve to give man the illusion of distance himself from his primal past when peace and diplomacy fail. Also, the intent is to make war a profession with a code of ethic like a doctor or lawyer.   Lastly, these rules serve the purpose to desensitize society to the real primal nature of war fare. 

All U.S. military personnel are bound by the statutes in the Law of War (LOW) or more commonly referred to as the Law of Armed Conflict (LOAC) when conducting military operations.  The LOAC is a national obligation that every member of the armed forces is required to follow.  Department of Defense (DoD) policy is to comply with the LOAC during all armed conflicts and military operations, despite how such conflicts are officially defined.  Understanding three of the basic principles of the LOAC will help guide actions in any armed conflict.  Three basic principles of the LOAC worthy of discussion when guiding ones actions are military necessity, distinction /discrimination, and proportionality.  The first basic principle, military necessity, makes it forbidden “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war” (Anderson and Zukauskas, Operational Law Handbook 2008, 13).  The principle of distinction or discrimination requires that combatants and noncombatants are distinguished.  Also, it restricts all combatants to direct their operations against other legitimate combatants and military objectives only.  Lastly, the principle of proportionality stipulates that “the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained” (Anderson and Zukauskas, Operational Law Handbook 2008, 13).  Finally, this paper will further expand upon the LOAC principles of military necessity, distinction/discrimination, and proportionality.

            The first basic principle of the LOAC this paper shall examine is military necessity.  Military necessity makes it unlawful to destroy or seize the enemy’s property during military operations if the war or conflict does not require it.  “The principle of military necessity is explicitly codified in Article 23, paragraph (g) of the Annex to Hague IV, which forbids a belligerent “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war” (Anderson and Zukauskas, Operational Law Handbook 2008, 13).  One example of an enemy target that would be off limits under military necessity would be a building that served the sole purpose as a civilian dwelling.  However, if this same building was vital to the enemy’s war fighting effort and was not clearly characterized as a civilian domicile then it could be an acceptable target under military necessity, even if civilians were in it.  Therefore, military necessity is acting in good faith to only seize or destroy enemy assets that are required for success in armed conflict.  It is difficult to meet the intent of the basic principle of military necessity if combatants do not follow the basic principle distinction or discrimination.

            Distinction/ discrimination are important principles of the LOAC to understand and comply with.  This principle requires that combatants and noncombatants are distinguished.  Furthermore, it restricts all combatants to direct their operations against other legitimate combatants and military objectives only.  The Operational Law Handbook gives the following definition of distinction/discrimination: “This principle requires that combatants be distinguished from noncombatants, and that military objectives be distinguished from protected property or protected places. Parties to a conflict shall direct their operations only against combatants and military objectives” (Anderson and Zukauskas, Operational Law Handbook 2008, 13).  Referring back to the previous example of the building used as a residence for civilians, it would not be a legal target under discrimination.  However, distinction makes it also illegal for combatants to hide legitimate military targets under the guise of civilian domiciles. This example makes it clear that noncombatants are to be identified and differentiated from combatants.  Additionally, only legitimate combatants and military items shall be targeted.  When guiding one’s actions in military operations it is essential to both comprehend and abide by the LOAC principle of distinction/discrimination.

            The last LOAC principle examined by this paper is proportionality.  Proportionality directs that the expected loss of life and damage to property resulting from military operations must not be disproportionate to the tangible military benefit expected to be gained.  Proportionality is defined as and requires “the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained” (Anderson and Zukauskas, Operational Law Handbook 2008, 13).  An example would be using an Intercontinental Ballistic Missile (ICBM) to take out an oil refinery.  Moreover, proportionality is using the appropriate amount of lethal force to accomplish the military objective.  Finally, the LOAC principle proportionality means causing no more damage or death than that required to meet the military intent. 

All U.S. military personnel are obligated to comply with the LOAC when conducting military operations.  These are national obligations that all military personnel are required to follow.  In fact, it is DoD policy is to comply with the LOAC during all military operations regardless of the type of mission.  It is therefore pertinent that any actions taken during armed conflict be guided by comprehending and applying three basic principles of the LOAC:  military necessity, distinction/discrimination, and proportionality.  To recap, military necessity forbids the destruction or seizure of enemy property, unless it is deemed necessary to the success of the war.  The principle of distinction/discrimination requires the distinction between combatants and noncombatants.  Also, it restricts all combatants to direct their operations against other legitimate combatants and military objectives only.  Lastly, the principle of proportionality stipulates that the anticipated loss of life and damage to property accompanying attacks must not be excessive in relation to the real military advantage expected to be gained. 

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