A New Look at the Law of War: Limited War and Field Manual 27-10

• Author: By Captain Gordon B. Baldwin
• Pages: 01

"Lawyers and legal eamplications are inappropriate on a battlefieid,"-General George C. Msrshall, Jr.1

1. A LAW OF WAR?

   General Marshall's assertion waB merely another way of repeating the old adage, "you have to fight the enemy, not sue him." Thia, of course, may be quite true, but it does not follow that law has no place at all in a modern war. Clearly, the role of law on a battlefield is by no means certain and one risks being dubbed naive who refers to a "law of war" with the same sense of security as he refers to the law of crimes. Nevertheless, the existence of a law of war is proelaimed in a recent Army Field Manual 27-10 1 as well as in many international conventions to which the United States is a party. 3 Furthermore, rules of war have been referred to in the memoirs of contemporary war leaders, at least to the extent that they have recognized that methods of war are not without limitation. Works of Action purporting to portray reality even refer to rules of war. Anyone who has seen the recent renowned motion picture "Bridge On the River Kwai" has become aware of the eristence of Geneva Conventions. Whether a law of war has existed in prior eonflick is of practical interest ta us today because of the question whether "laws of war" will have any role in B future conflict. Another lock at laws of war is called for in view of the increasing emphasis an the notion of "limited war." It is the purpose of this article to suggest that the law8 of war a8 they have been traditian-ally expounded may offer some guidance and thus play a modest role in achieving the restraint demanded by a limited war policy.

   'JAGC, USAR, Member of the Bew York State Bar; graduate of the

   Cornel1 University Law School; Aart. Prof. of Law, University of Wlr- cansin Law School.1 Testimony before the Senate Committee on Military Afairs, July 1011,cited in Pame, The Marshall Story 130 (1911).

   ZFM 27-10, The Law of Land Warfare, Jul IS68 (hereinafter oitd FM

   17-10). See also Nar. War. Info. Pub. 10-2. Law af Naval Warfare,

   sDA Pam. No. 27-1, Treaties Governing Land Warfare, 7 Dee 1010. A00 882PB 1

   sep 1066.

   11. A LIMITED WAR POLICY

   Eminent strategists and analysts of military power now refer to the possibility of "limited war.''( This implies a deliberate hobbling of national capabilities with a view toward inducing the enemy to hobble himself to a like degree for the purpose of avoiding mutual annihilation.% Limited war requires .a nation's leaders as well as its commanders in the field to impose upon themselves an unprecedented degree of restraint. Mutual annihilation has not in the past been an appreciable risk-it is today, and national efforts have been made to avoid this kind of chance. In view of the vast growth of destructive capacity and the existence of reoccurring crises during the past several years, ~e may observe a tendency to reject the suggestion that this country can anticipate either universal peace an the one hand or, on the other, all-out nuclear warfare. Instead, a third possibility is envisaged, the so.called limited war. Thij may be defined as war "in which the belligerents restrict the purposa for which they fight to concrete, well-defined objectives that do not demand the utmost military effort of which the belligerents are capable and that can be accommodated in a negotiated settlement."'

   Osgood, a leading advocate of the limited war concept, has pointed out that ''rules of mutual restraint cannot be established merely by an effort of will, as one might determine the rules for a game of sport."' Precisely how this self-restraint is to be exercised and what rules of conduct will be deemed operative to achieve it is not any clearer than the suggestion that the means of war be proportionate ta the end.' Certainly a limited war policy would require the military commander to make a searching analysis of every proposed operation in the light of the political objectives implicit in a limited war policy. He should take no action unless it is deemed compatible with bait policy in order to avoid an appreciable risk of mushrooming conflict. Such limitations as the conflict reIKiadnger Nueiear We~poni and Foreign Palicy 132 st aeq. (1967) (hereinsftep &d as Kiismger); Gavin, Wsr and Paaee in the Space Age (1968).

   The Challenge to Amencan Strategy 2 (1967) (hereiisfter cited as Oagaod). It is understand that the latest draft of FM IOU, Field Service Regulstmnn, Operstians, Sep 1954, devotes some ~paeeto the new concept of limited war.5 Osgood 76.8Pmfesmr Ongoad ha8 suggested two eeneial mi.8 BJ PlereqYiiiteB for lirnitine WBI: "One IS that the hellmerents must be Prepared C cnndwt

   6 Brodie, Bwk Review, 10 World Politics 112 (1967).B Osgoad Limited War

   war in-accordance with welldefined~ limited p d ~ t i d objstiws, B U I C ~

   tible to accommodation; the other 15 that they mmt ba prepared to limit the means bv which the? atrive to attain thew obleetivea. 10 that

   the means of wac.will be pmimtimate to the ends." Id. at 62.

   A NEW LOOK AT THE LAW OF WAR

   quires must derive at the outset from the political objectives of the belligerents. If the apposing belligerents are major world powers, it would appear that a limited mnfiiet would not be possible unlea bath sides tacitly accepted a restricted manner of warfare: hut if one side of the struggle were a major power and the other side did not include a major power, limited conflict auld be achieved if the major power unilaterally decided to restrain itself. A limited war by definition implies a limited effort by one or both participating sides and requires the military commander to avoid an appreciable risk of all-out war, for a decision to wage total war is a political and not a military matter. This effort might take the form of avoidance of massive retaliation through strategic air power,n it might involve an all-out effort in only a small sector, or it might involve the kind of stalemate that characterized the latter portion of the Koxan War. Conceivably, B limited war might involve merely an avoidance of some nuclear weapons. In any case, the ratrictions in warfare would result in a benefit to mankind in general a8 well as to the belligerents.

   Justification for a military policy that amepts the risk of limited war and requires of military commanders a high degree of restraint can be found in the function of a nation's armed force. This is simply that military power should always he subordinate to national policy. In the use of armed force as an instrument of national policy, it is a prime rule that no greater force should be employed than is necessary to achieve the objectives toward which it is directed.10 Yon Clausewitz expressed the desirability for moderation in the use of military force in these words:

   "The smaller the saeriflee we demand from our adversary, the slighter we may expeet his efforts to be to refuse it to US. The slighter. however, his &art, the smaller need our own be. Furthermore, the leaa important our politi~al objeet, the IBB.will be the value we attach to it and the readier we shsil be to abandon it. For this reason also our efforts will be lighter. Thus the pditicsl object SI the original motive , , , will be the standard alike for the aim to be attained by military action and for the efforts required far this p ~ i p o d ' l l

   The limited war doctrine accords with this established principle in that it rejects the notion that political goals are obtainable only through the total defeat of an enemy amed force and the utterdestruction of his will to resist.'2 To achieve control over the op- 0 . 9 ~

   Green & Burt, Moesivs Rstalratian: Sal%olion or-?, 84 U. 5. Naval Institute Proceedings 28 (1958).

   11 von Clauaewitz, On War 9 (Jolles tranJ1. 19431, cited by MeDougal &

   Felieiano, Internstiad Coedan and World Pub& Or&?: The Geneva1 Pdnoiples of the Low of Wo7, 67 Yale L. J. 771, 796 (1958).12 It has been suggested by some anBly8ts that Red China might be willing to risk B total war. See Vietor Zorza in the Manchester Guardian Weekly, 16 Oct 1965, p. 4. c 2.

   10 osgaedd; SimilBrly, Kissinger 145.

   *oo 88ZPB 3

   MILITARY LAW REVIEWpasing belligerents' land and people is not a necegsary requisite of limited war. Awordingly, military theorists now have recognized that although methods of destruction have home more efficient, they have not necessarily become more advantageous. A clear-cut victory is not required because the limited war mncept postulates that mutual devastation which risks annihilation is undesirable.ls

   Some of the limitations implicit in the doctrine are not necessarily imposed by political considerations alone. Weapons considered appropriate in an alldut war are not necessarily the mosteffective from a purely military point of view. General Gavin de. scribed this in his obaervatian that:

   ". , , . A thenn0nueiear-equipped B d 2 ean contribute little mnre to the solution of a limited ioeai war than B 166.mm gun can contribute to the apprehension of B traflc +olator."l4

   This does not mean, of course, that nuclear warfare is precluded by a limited war policy. It does mean that if nuclear weapon3 alp contemplated, they must be sufficiently small in their effect to permit their use without an appreciable risk of Armageddon. Whether or not this is impossible i.3 a controversial matter.16

   There is ample evidence that military leaders can exercise restraint in their uae of weapons. Self-imwsed limitations on the use af weapons for the purpose of limiting the impact of the conflict can be observed in recent practice. Although two nuclear weapons were used during World War 11, they were not used during the Korean conflict. Perhaps this "8s in part motivated by the fear af retaliation. General Bradley reports in his memoirs how concerned the commanders of Overlord were that the Germans might use 888 against the Normandy bridgehead." No gas was uaed by either

   13 Gartho.?, The Only War8 W e Can Abwd. A i m ~ ,

   N O ~

   Institute Proceedings 249,

   Brawn...