The Problem With Trumps War Bombast

A U.S. president has suggested that he may order the destruction of an entire civilization. This is the same president who stated in an interview that he “doesn't need†international law and the same president who appointed as his secretary of defense someone with a record of disparaging the importance of law and the role of legal advisers in relation to U.S.

Taken together, President Donald Trump's rhetoric and attitude toward laws that govern the waging of war are corrosive to decades of effort by our armed forces to ensure that all military operations would be conducted—and perceived to be conducted—in accordance with what is today characterized as the law of armed conflict (LOAC) or international humanitarian law. Indeed, when most people even contemplate the relationship between the LOAC and U.S. military operations, they don't recall examples of consistent compliance; they bring to mind examples of violation. My Lai, Abu Ghraib, Haditha, Guantanamo. Drawing such attention—and condemnation—reveals two undeniable truths. First, these events are genuine outliers from the norm of compliance. Second, such violations are perceived by the public as incompatible with the values of the nation for which the men and women of our armed forces fight.

War is a brutal endeavor. In no other context does law, both international and domestic, permit the state to employ such immense force: to use deadly force as a measure of first resort; to capture and detain individuals indefinitely based solely on their affiliation with an enemy armed group; to try captives for alleged war crimes before military tribunals. But even in war, the ends do not always justify the means. Over the centuries, a robust body of international law—rules and principles accepted as binding by all nations—has evolved to strike a rational balance between the necessity of bringing an enemy into submission in the most efficient manner and the equally compelling necessity of mitigating the humanitarian suffering of war. No LOAC rule is more illustrative of this balance than the so-called proportionality rule, which prohibits attacks on enemy military objectives when the attacking commander assesses the risk of harm to proximate civilians and civilian property to be excessive in comparison with the anticipated concrete and direct military advantage the attack will produce. 

This legal balance of interests has been implicated by observations related to the recent U.S. and Israeli conflict with Iran. Even before President Donald Trump's troubling threat to wipe out a civilization, his threat to destroy the entire Iranian power grid, energy production capability, every bridge in Iran, and perhaps even desalination plants triggered widespread criticism. Some commentators immediately cited LOAC rules that prohibit attacks on civilian objects to condemn these threats. In truth, the assessment is more complex.

To begin with, the law of armed conflict categorically prohibits indiscriminate attacks. Notably, indiscriminate is defined to include treating multiple distinct targets as one general target—a categorical rejection of what was known as area bombardment in World War II. And for good reason. The legality of attacking any target necessitates an individualized assessment by U.S. military commanders supported by the operational planning staff, and when the attack places civilians or civilian property at risk, that assessment must include consideration of feasible risk mitigation precautionary measures (like altering the timing of the attack or using a different attack weapon or tactic) and an ultimate proportionality assessment. Drawing a circle around an area—or in this case a country—and asserting, as President Trump essentially did, that thousands of objects are now lawful targets nullifies the protective effect of these rules and this assessment process. 

This does not mean, however, that objects—or even people—who are not inherently military in nature (like a tank, or a military airfield, or a soldier) are categorically protected from attack. To the contrary, pursuant to the LOAC any place or person may, under certain circumstances, qualify as a lawful target. But to satisfy that rule, there must be a good-faith and objectively reasonable assessment that the “object or thing†is making an effective contribution to the enemy military effort and that attacking it will offer our forces a definite military advantage in the circumstances ruling at the time of the attack decision. These italicized qualifiers were intended to foreclose speculation as the basis for a decision to attack. It is also noteworthy that while the U.S. has never ratified the treaty that adopted this rule of “military objectiveâ€â€”Article 52 of the 1977 Additional Protocol I to the 1949 Geneva Conventions—the rule was incorporated into the U.S. Army Field Manual on the Law of Land Warfare in 1975—two years prior to that treaty being opened for signature—and is also incorporated into the Department of Defense Law of War Manual. 

This means that had the President's threat become an attack order, it would have almost certainly necessitated illegal attacks, placing commanders in the terrible position of having to challenge and ultimately disobey those orders. Still, it is equally wrong to assert that attacking any of those targets would amount to a LOAC violation and a war crime. In fact, power generation facilities and bridges are commonly assessed as lawful targets (oil production facilities and desalination plants present more complex analysis but may also fall into that category). But that assessment must be made on a case-by-case basis in relation to a specific military operation; it cannot be based on a per se determination without considering whether the proposed target meets the military objective definition and, where there is a risk of incidental injury to civilians or collateral damage to civilian property from a proposed attack, the attacking commander must implement feasible precautionary measures and forego any attack assessed as violating the proportionality rule.

So, what is the impact of the president's rhetoric? No one should underestimate the continued commitment to LOAC compliance among the operational force. As the result of years of experience, U.S. commanders leading these operations almost certainly understand the imperative of demanding and ensuring such compliance. It’s likely that Trump’s bombastic rhetoric would be filtered through the operational target analysis and selection process that is always used in such situations so that only targets meeting LOAC requirements would have landed on the joint targeting list. But there are undoubtedly adverse consequences to this bombast.

First, had the president's threat been transformed to an attack order, every attack on any object within the scope of the directive would have been immediately perceived as illegal, even if the facts and circumstances established compliance with the LOAC. In other words, the president set the conditions for a loss of legitimacy—a key aspect of effective joint operations that is defined by actual and perceived LOAC compliance. Second, the president's rhetoric diverted the world's attention from Iran's pervasive LOAC violations. Thus, instead of focusing on Iran's attacks on civilian population centers, use of indiscriminate weapons, attacks on civilian objects in neutral countries, and illegal threats to attack neutral shipping in an international strait, the world's attention was diverted to threats issued by a U.S. president that, if implemented, would have almost certainly resulted in war crimes. As retired Lt. Gen. Hertling noted in The Bulwark:

In the military, we seek the high ground because it allows us to see more clearly and to act more decisively. But as warfare has evolved, that idea has taken on a broader meaning. The high ground is now a set of principles and values that guide decisions when judgment is blurred, and the path forward is uncertain or contested.

The president's rhetoric sadly ceded this high ground at the very moment our operational commanders were struggling to retain it against an enemy who did not deserve it.

Finally, and perhaps most problematically, bombastic rhetoric inconsistent with the law that regulates war compromises the moral clarity the men and women who fight on behalf of our nation are entitled to expect. Few Americans have likely truly contemplated the moral burden that orders to conduct an attack impose on our warriors, especially when such attacks are expected to result in unavoidable death and injury to civilians. The LOAC provides the foundation for this moral clarity. When leaders at the highest levels of command dismiss the importance of this law or suggest conducting operations in violation of it, it compromises that clarity and injects unnecessary and unfortunate moral hazard into the performance of duty. 

These laws matter. They matter because they strike a logical balance between the necessities of war and humanitarian protection. But they also matter because they protect our own forces—not just from what may happen if they fall into enemy hands, but by enabling them to live with the consequences of their actions. Telford Taylor, a U.S. prosecutor at Nuremberg, explained it this way in his book titled Nuremberg and Vietnam: An American Tragedy:

Another and, to my mind, even more important basis of the laws of war is that they are necessary to diminish the corrosive effect of mortal combat on the participants. War does not confer a license to kill for personal reasons—to gratify perverse impulses, or to put out of the way anyone who appears obnoxious, or to whose welfare the Soldier is indifferent. War is not a license at all, but an obligation to kill for reasons of state; it does not countenance the infliction of suffering for its own sake or for revenge. Unless troops are trained and required to draw the distinction between military and nonmilitary killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense of that distinction for the rest of their lives.

The Iran conflict has already taken a toll on the perceived legitimacy of U.S. military operations, and bombast like that used by the president has undoubtedly contributed to this. The challenges confronted by our armed forces when committed to combat are daunting enough without injecting unnecessary moral hazard into the equation. Preserving U.S. legitimacy and protecting our forces from such moral hazard require that political and military leaders who order decisive combat action always demonstrate and demand respect for the law that is so vital to our forces.