Over the last month I have had numerous people ask me about my views on the U.S. military action in the waters, Atlantic and Pacific, off the coast of Central America. About half of the conversations began with some form of “since you are a Naval Academy (USNA) grad, former Naval officer, and a priest…”  Which makes sense as they hope a fusion of training and experience can offer a more insightful view of the ongoing dynamic.

At one level there is a complex legal question about the legitimacy of kinetic military action at all as opposed to law enforcement action. On the seas, military action is in the purview of the U.S. Navy while law enforcement in the U.S. Coast Guard. A long time friend, also a USNA grad, career naval officer, and PhD in international relations and security affairs – year ago did a Masters degree at Naval Post Graduate School, Monterey – some 35 years ago. While there he wrote an article that was published in US Naval Institute Proceedings: “Interdicting Drugs on the Big Pond.” Of the many insightful points of the article, he noted that the sea-based drug trafficking was quickly outstripping the Coast Guard’s ability to act in its law enforcement role. He observed that, in the role of national security, a path forward was the stationing of Coast Guard officers on US naval vessels to be able to bring authorized law enforcement to at sea encounters. It was insightful as it looked well “over the horizon.”

There are laws and precedence about declaring war, presidential authority to initiate armed conflict apart from Congressional action, and more. In the course of my lifetime we have moved from armed conflict between state actors (i.e. nations, including civil wars within nations) to armed conflict with non-state actors such as ISIS, Hezbollah, Abu Sayyaf, Tehrik-e-Taliban Pakistan and more. There are laws to designate such organizations as terrorist groups. This January President Trump designated several drug trafficking organizations as Foreign Terrorist Organizations (FTOs) and Specially Designated Global Terrorists (SDGTs), and has declared the U.S. to be in an “armed conflict” with them. The legality of such executive orders I leave to others eminently qualified and more knowledgeable than me.  Even if one accepts such designations, operations in international waters is one question, and that is just the start of the list of questions.

In the conversations one thing keeps cropping up – a conflation of the Law of War and rules of engagement (RoE) for combat. Any veteran who served in the last 20-25 years can tell you they have operated under these guidelines. RoE outlines the specific conditions and circumstances under which military personnel are authorized to use force. These rules are not static and can change depending on the specific mission, location, and conflict, and can include guidelines on lethal and non-lethal force, geographic restrictions, and specific instructions such as “do not fire unless fired upon” directives. RoE are based on international laws, but are specific military directives – and are not independent of the Law of War but are based upon them. A RoE can never violate the Law of War to which the United States is a signatory. The primary international agreements determining the Law of War are the Geneva Conventions of 1949 and their Additional Protocols of 1977, which protect victims of conflict (wounded, POWs, civilians) and set rules for conduct, alongside earlier Hague Conventions of 1899 & 1907 that govern methods and means of warfare, forming a core body of treaties supplemented by customary law. The laws of war reflect the mandatory, minimum level of lawful conduct, and all combatants are legally obligated to obey them at all times and in all conflicts. “Following orders” is not a defense.

Those agreements are incorporated into the Department of Defense Law of War Manual. Let me quote two passages: 

• “The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.”
• “It is forbidden to declare that no quarter will be given.” A no quarter order is an order directing the warfighter to kill every combatant, including prisoners, the sick and the wounded. The DoD manual is specific, “Moreover, it is also prohibited to conduct hostilities on the basis that there shall be no survivors, or to threaten the adversary with the denial of quarter.”

What did the Secretary of Defense order/direct/make clear about the strikes in general? How was that understood and communicated down the chain of command to the Special Operations units that executed the kinetic strike against the boats, especially the September 2 engagement in which the initial strike severely damaged the vessel but there were at least two survivors who were clinging to the side of what was left of the vessel?  Executive declarations and subsequent orders aside, the Law of War established the bottom line of conduct that may not be breached. Any order to violate those laws and to carry them out constitutes a violation of the Law of War and subjects those people to action under the Uniform Code of Military Justice (UCMJ).

The “bottom line”nature of the Law of War as implemented via international agreement and incorporated into the Department of Defense Law of War Manual is essential. Essential because no president or senior officer may abrogate the law or its intent because of what is at stake – the soul of the warfighter.

The laws of war are an effort to contain the brutality of combat and war. These limits make peace possible. Recently I produced a series of articles on the War in the Pacific. When one reads about Guadalcanal, Biak, Saipan, Pelilui, Manilla, Iwo Jima, and Okinawa one wonders how the war in the Pacific was so unrelentingly horrific and so different from the war in Europe (the Russian front aside). I would suggest that the Japanese military did not share a common value with the Allies that gave credence to anything remotely similar to the Law of War. Before WW2, the law of war was defined by the Hague Conventions and the 1929 Geneva Conventions on Prisoners of War. To be clear, Japan signed the 1929 POW convention but did not ratify it, though they pledged to follow rules. The history of the War in the Pacific and in Asia make clear that the Japanese army never made the slightest pretense of complying with the laws of war. Theirs was a checkered history of rescuing sailors from the ocean; some were simply shot. Of those rescued and those captured, the records were consistent. They tortured prisoners and used them as slave labor and for a few unlucky, performed biological experiments. Those responsible were subject to War Crime trails.

It is fair to say that the Allies operating in the Pacific and Asia were not free of violations. As the war trudged on and knowledge of Japanese crimes became known and circulated, incidents of fury and revenge happened. Added to this was the battlefield experience that the Japanese would not surrender. In the battles after Guadalcanal, less than 3% of Japanese garrisons were captured and most of those unwillingly. It was only because they were diseased, starving and left behind. The bushido of the Japanese army was that death was preferable to surrender. Slowly the object of war in the Pacific was changed from from victory to annihilation in the face of a defeated enemy who would not surrender.

The Laws of War also serve to help preserve a soldier’s soul. The foundational documents of our nation are based upon the idea of the dignity of the human person. Even more so the foundations of our Catholic faith which holds that human beings possess incalculable worth. It is a foundation that is deeply ingrained in an individual’s moral code.

If our warfighters are ordered to contradict this intrinsic value, we can inflict a profound moral injury on them. These are injuries that burden them, haunt their memories, and they may carry for a lifetime. Even when they follow the Law of War and RoE, they can be haunted by their own actions or inaction in something they witnessed and unable to stop. Armed conflict is something that might be necessary, but I would suggest the experience of it leaves an indelible mark on the spirit and soul. Moral injuries in combat are unavoidable even when following the RoE and Law of War. What is avoidable is the guilt of criminal conduct by deliberately killing the people we are charged to protect.

Be they drug smugglers or not, one should have compassion for the two men who clung to the side of their sinking vessel and faced the uncertainty of what was to be their fate. Their fate is known to God alone. But years from now, somewhere in the quiet of the night, a veteran will be haunted by the actions of that day.

The Law of War and RoE are in place to protect the soul of the warfighter as best as can be expected. They are in place to protect and defend the honor and integrity of the American military, one of the most-trusted institutions in the United States. They are in place to remind us who we are as a nation and who we are as people before God. For we are that and nothing more.