The 'Fog of Law': The Law of Armed Conflict in Operation Iraqi Freedom

• Author: Marc Warren
• Position: Colonel, JA, US Army (Ret.)
• Pages: 167-206

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The aFog of Law": The Law of Armed Conflict

in Operation Iraqi Freedom

Marc Warren*

The "fog of war" is awell-known combat experience. It is also an apt

descriptor for how ambiguity in wartime can thwart the best military plans. 1

While the "fog oflaw"2is less documented, its effects may be just as profound. The

"fog oflaw" is the ambiguity caused in wartime by the failure to clearly identify and

follow established legal principles. It can frustrate deliberate planning, create con-

fusion and lead to bad decisions that imperil mission accomplishment. When cou-

pled with poor and inadequate planning, its effect can be near catastrophic. This

article briefly explores the "fog oflaw" in Operation Iraqi Freedom (OIF) from be-

fore the war until the dissolution of the Coalition Provisional Authority (CPA) on

June 28, 2004.

In OIF, the "fog oflaw" was created by positions taken at the strategic level that

put conventional military forces in Iraq at needless disadvantage. Pejorative state-

ments about the 1949 Geneva Conventions caused some soldiers to question their

applicability in Iraq and gave credence to the false notion that the Conventions

were deliberately disregarded by the military as awhole. Enhanced interrogation

techniques used in Afghanistan and Guantanamo, and by some special operations

and non-military forces in Iraq, contributed to asmall number of detainee abuse

cases and to the hyperbole that abuse was systematic. Reluctance to embrace the

*Colonel, JA, US Army (Ret.).

The "Fog ofLaw": The Law ofArmed Conflict in Operation Iraqi Freedom

law ofoccupation and dedicate sufficient resources to its effective execution almost

squandered amilitary victory.

Despite the effect of the "fog of law," conventional military forces in Iraq kept

remarkable faith to the law of armed conflict. In general, this occurred in spite of,

rather than because of, actions at the strategic level. In no small measure, this was

due to the efforts of judge advocates who accompanied the forces into combat.3

Judge advocates strove to overcome the "fog oflaw" in at least five areas: the appli-

cation of the law of armed conflict, prisoners and detainees, interrogation policies,

occupation and the rule of law.

The lesson of OIF is that legal ambiguity at the strategic level can imperil mis-

sion success. Conversely, legal clarity and compliance enhance military effective-

ness, which in turn leads to more rapid mission success and reduced adverse

impact on the civilian population in the combat zone. Old law is good law; the

Geneva Conventions and the law of armed conflict in general are grounded in

practicality and have retained remarkable vitality and utility. They should be em-

braced, not dismissed, and followed, not avoided. They must be explained to the

media and to the civilian population generally. Failure to take and hold the legal

high ground makes taking and holding the high ground on the battlefield much

more difficult.

The Application of the Law ofArmed Conflict in Iraq

The war in Iraq was an international armed conflict between two high contracting

parties, followed by astate of belligerent occupation.4The law of armed conflict,

including the Geneva Conventions, applied as amatter of law. The law of armed

conflict and the Geneva Conventions were referenced in numerous operations

plans, orders, policies and procedures issued by United States Central Command

(USCENTCOM), the Combined Forces Land Component Command (CFLCC), V

Corps and Combined Joint Task Force-7 (CJTF-7).5In his September 6, 2003 letter

to the International Committee of the Red Cross (ICRC), the CJTF-7 commander

wrote, "Coalition Forces remain committed to adherence to the spirit and letter of

the Geneva Conventions."6Periodically, starting in September 2003, the CJTF-7

commander would issue by order specific policy memoranda reiterating the re-

quirement for law of armed conflict compliance.

By contrast, US forces in Afghanistan were to "treat detainees humanely, and to

the extent appropriate and consistent with military necessity, in amanner consis-

tent with the principles of Geneva," amuch less rigorous standard than adherence

to the Conventions.7Moreover, some special operations and non-military forces

engaged in the Global War on Terrorism (GWOT) operated under relaxed rules

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Marc Warren

for detention, interrogation and prisoner transfer that were incompatible with the

Geneva Conventions.8When units that had operated in Afghanistan were trans-

ferred to Iraq, some brought with them the less rigorous standards and relaxed

rules, unfortunately reinforced by field application and standard operating proce-

dures that they perceived had been validated in combat in Afghanistan. Counter-

ing the migration of these less rigorous standards and relaxed rules, once

recognized, required constant vigilance and considerable effort. Unfortunately,

the scope of the problem was not understood until months into OIF.9

Compounding the problem were muddled pronouncements at the operational

and strategic levels about the characterization of the conflict ("we are liberators,

not occupiers"), 10 apredisposition to view OIF as part ofthe larger GWOT, areluc-

tance to embrace the traditional and legitimate role of the military in occupation,

and atendency to apply policies developed for non-international military opera-

tions to an international armed conflict. 11

Governments were not solely to blame for creating an ambiguous legal environ-

ment. Human rights and special interest groups further contributed to the "fog of

law" during the occupation by declaring the illegality or immorality of the war, ex-

aggerating and distorting breaches of discipline by coalition forces, and asserting

the co-applicability ofhuman rights law and the law of armed conflict. 12 The asser-

tion ofco-applicability diluted both and contributed, in part, to the lack of unity of

effort between coalition forces and the CPA. While security deteriorated, the CPA

expended its efforts to mandate changes to the Iraqi legal system, advance women's

issues and influence other modest improvements to vague human rights.

Despite—or perhaps because of—the "fog oflaw," the principles of the Geneva

Conventions are the bedrock of mandatory training for all soldiers and Marines,

and they are the basis of "The Soldier's Rules" that are taught in basic training. 13 All

ofthe training emphasizes practical application ofthe Conventions; it is not realis-

tic to expect soldiers to follow the law of armed conflict simply because they are or-

dered to do so. Law ofarmed conflict refresher training was required as part of pre-

combat training for Iraq. Several times during OIF, practical law of armed conflict

refresher training was mandated down to the platoon level to address observed

areas ofconcern, such as overzealous detention of civilians, and more nuanced law

of armed conflict topics were briefed and discussed at commander's conferences

held periodically in Baghdad. 14 In 2004, the ICRC's "Rules for Behavior in Com-

bat" were incorporated into training packages for CJTF-7 soldiers. 15

In exercises conducted before the war, considerable effort was put into training

to apply the law of armed conflict in targeting decisions and in the rules of engage-

ment (ROE). In January 2003, VCorps held alegal conference in Heidelberg to ex-

amine the ROE and to discuss targeting, prisoners ofwar and occupation. VCorps

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