Command Responsibility and War Crimes: general discussion

[jmm99]

which exceeds those I mentioned in a number of respects. I've not got into the WWI Germans very much (just Junger and Rommel). Sulzbach looks interesting and sounds a bit like Col. Blimp's German friend.

But, I have to embark on reading (studying ?) a pair of WWI vets in tandem: Collingwood (Idea, Principles) and Wittgenstein (Investigations) - they seem to go together. I can't promise they will occupy me enough to shut me up; but they seem a good start.

Regards

Mike

[jmm99]

HT to SWJ Blog, Analysis - Effects of Lorance murder verdict on combat decisions to be seen (by Catherine Pritchard, The Fayetteville Observer, N.C.; 11 Aug 2013). The article includes various points of view (incl. Charlie Dunlap). Here's a generalized view by Dave Bolgiano:

David Bolgiano, a retired Air Force lieutenant colonel who served as a command judge advocate in Iraq and Afghanistan in the early 2000s, said too many military commanders and legal officers have held their soldiers to an "untenable" standard in these conflicts.

Bolgiano is the author of a 2007 book called "Combat Self-Defense: Saving America's Warriors from Risk-Averse Commanders and their Lawyers" and co-author of a 2011 book called "Fighting Today's Wars: How America's Leaders Have Failed Our Warriors." He now works as a use-of-force consultant and writes about ethical, legal and tactical dynamics of deadly force encounters.

Bolgiano said that the rules of war that govern the actions of U.S. soldiers are fine, but they've been interpreted too rigidly in many cases by commanders worried about their own careers and by over-zealous military legal officers.

"They're demanding that decisions in combat be right, not reasonable," Bolgiano said. "It's a very critical point. They are just refusing to acknowledge this problem."

Bolgiano said the U.S. military also has failed to train soldiers adequately on discerning what represents a threat.

But the overwhelming problem, he said, is that they've been placed in a situation where they're not being legally allowed to defend themselves in combat situations that require split-second decisions.

There's a little verbal inconsistency here: "...the rules of war that govern the actions of U.S. soldiers are fine..." vice "... they're not being legally allowed to defend themselves in combat situations ..."

What Bolgiano is attacking are not the written legal rules, but their interpretations by self-serving commanders and their military lawyers. Of course, my general viewpoint is that the "law" includes much more than the written law on the books. Interpretations by superiors are only one of the components that some "positivists" would find extraneous to the law. We also have customs and usages within the force, as well as in what and how that force was trained. The last factors are very material if the test is "reasonableness", as opposed to "rightness" or "correctness".

Regards

Mike

[wm]

The 28-year-old 82nd Airborne Division officer also was convicted of threatening to kill local villagers, ordering a soldier to shoot toward villagers to harass them, asking a soldier to file a false report saying that villagers shot at the outpost, and obstruction of justice for efforts to cover up the circumstances of the two deaths

If the charges noted in the above quotation are correct and were proven, I'd say that the defendant was a rather problematic leader. The stuff about risk aversion may be correct, but I see that as a sidebar issue in the case at hand. This guy appears to have had other issues that made him unfit to lead troops in a counter-insurgency operation.

[Polarbear1605]

Bear, You may be right that no deliberate application of risk analysis is being applied. However, I am not so sure that what is happening is dogmatic. I believe (and am supported by a fair amount of research reported in the safety engineering literature) that each individual has a different level of risk tolerance/risk aversion. (I do not really want to get sidetracked into a nature/nurture argument and discuss whether this is innate or acquired.) Having differing levels of risk tolerance suggests we also have different needs and, therefore, techniques for risk mitigation. Compare, for example, Montgomery's and Patton's campaigns in N. Africa and the WWII ETO. I submit the action to mitigate risk occurs almost reflexively rather than deliberately and, therefore, is not dogmatic.

Thanks for the clarification. I understand now you were looking at this from a different view point and agree with your example that it is reflexive vs deliberate. When I refer to dogma my “vs” is as in “dogma vs doctrine”.
http://www.youtube.com/watch?v=i5c3yMy-llA dogma vs doctrine starts at about 2:07
In my mind, doctrine is a teaching, it is written down and can be read and learned. Dogma is an opinion. For example, in many general officer speeches, especially when talking about counter insurgency or counter terrorism, they use the terms Laws of War and Rule of Law interchangeably when they are separate and very different (at least in my opinion). For example: In both below cases these general officers are talking about war and combat and they can’t resist tying it back to the Rule of Law.
http://www.humanrightsfirst.org/wp-c...2009-09-11.pdf
http://www.hughhewitt.com/the-haditha-investigation/
Soldiers and Marines are governed by their Rules of Engagement on the battlefield and ROEs are based on the Laws of War. In COIN operations, one of the reasons combat troops are present is that there is no rule of law. For a military general officer to think (and apply) the Rule of Law and the Law of War is the same thing...is dogma. In almost every one of the US “war crime” cases, US servicemen are not charged with violating their Rules of Engagement; they are charged with murder and the elements of proof that they must defend against, are for the same elements of proof used in the Rule of Law charges of murder.
http://warchronicle.com/DefendOurMar...ar_6SEPT10.htm
Is this a reflex reaction to the loss of strategic legitimacy (Abu Grab)? Probably. Is it the right reflexive reaction…No… but it is an indicator of bad strategy.

[jmm99]

from my post #57:

Still, the Clint Lorance case was probably not as simple as the newspaper makes it (Lorance being painted as something of a mini-Lt. Calley). I did a bit of Googling and read other accounts of the events which paint quite a different picture. Of course, there may well have been two or more divergent factual accounts before the court members - not unusual in these cases where we have civilians and "civilians", combatants and "combatants".

That's why we have "jurors" (court members).

As to the real Lt. Calley, I thought he was a twit based on the media coverage - and the Peers Report; but I never met the man himself.

I did meet Ernest Medina, in a non-adversarial, strictly-business setting, when he worked for Enstrom Helicopter. From that meeting alone, I'd say he was a competent middle-level manager with a good personality. Of course, My Lai was not discussed; nor the fact that one of my early mentors (a person to be greatly respected) had signed off on the Peers Report which was damning to Medina, but who was acquitted in his court-martial.

All that is to illustrate that variant factual sets arise (here, three sets as to Ernest Medina: JMM personal meeting, the Peers Report and Medina's court members). As to Lorance, the two newspaper articles present the factual view that the court members apparently accepted - a mini-Lt. Calley. I'm not going to argue that apparent factual finding was not supported by evidence.

But, Lorance (like Snowden) is not the issue for what lessons might be learned from this and like incidents. Polarbear1605 has provided us with some examples of what is materially at issue.

IMO: These questions, asked as a consequence of My Lai (with the last one updated to Abu Graib), are still the material issues:

1. Should we apply legal rules to incidents arising out of warfare? What is the purpose of developing and applying such rules? Have such rules changed the nature of warfare, or prevented more or worse wartime atrocities from occurring?

2. What should the rules of warfare be with respect to treatment of civilians? Who should be considered a civilian (or a non-combatant)? Should there be special rules governing the treatment of women or children?

3. What is the defense of superior orders? Why have such a defense? When should the defense be available? What should be done in the case of ambiguous orders or when oral commands contradict written directives? Must the belief that a superior order is lawful be reasonable? Should different standards apply to privates than to persons higher up the chain of command? What should a soldier do when he is given an order that he thinks is unlawful?

4. How do you explain what happened at My Lai? What can be done to prevent such tragedies from happening again? What does My Lai teach us about the nature of evil? Was Calley evil, or was he a more-or-less “normal person in abnormal circumstances”? Would Calley have acted differently had he received more training in the rules of warfare?

5. Was Calley simply following orders? What had he been told? What did he reasonably infer? Did he believe that his superiors were aware of his orders? Did he try to hide his actions from his superiors?

6. If Calley had been ordered to “waste” civilians, was he obligated to disobey such an order because it was clearly illegal?

7. When Medina said that he gave no order to kill the residents of My Lai, was he being completely truthful? Was Medina aware of what was happening at My Lai when there was still time to do something about it? Should sins of omission be treated the same as sins of commission?

8. Which was worse—the massacre or the cover-up?

9. What relevance was it that atrocities had been committed against U.S. servicemen in the area in the days immediately preceding the My Lai operation?

10. Were there any heroes at My Lai? What makes a hero able to act heroically? How can we make more people likely to act heroically?

11. Was justice done in the court martial of Calley? In the court martial of Captain Medina?

12. How much influence did politics and politicians have on the outcomes? Should we try harder to insulate courts martial from political influence?

13. What role did the media play in exposing the My Lai massacre and explaining its significance?

14. What was the public reaction to these courts martial? How do you explain this reaction?

15. What is the lasting significance of My Lai? Did it substantially change public attitudes toward the Viet Nam War? Has it changed how we prepare our soldiers for war?

16. What comparisons can you draw between My Lai and the prisoner torture and abuse scandal at Abu Ghraib prison in Iraq? What are some of the key differences? Who was most responsible for what happened at Abu Ghraib? Does Abu Graib, as well as incidents involving the rape and killing of civilians in Iraq, suggest that we haven't learned well the lessons of My Lai? What needs to be done to prevent these gross affronts to human dignity during the stress of war?

Regards

Mike

[TheCurmudgeon]

I hesitantly offer this into your question on what causes incidents like Mai Lai and Abu Gharib. It is from a paper defining war from a motivational perspective. Starting with the assumption that war is a natural act for human beings (with some evidence to that effect) I define war as “deadly or potentially deadly organized violence committed by a subset of one group, whose actions are morally sanctioned by that group, against a discrete and identifiable other group with a specific objective or goal.” One of the key motivational components is the us-versus-them characteristic – there has to be two sides otherwise it is not war, it is just murder. I identify two types of “sides”, one based on traditional distinctions like ethnicity or religion, another based on individual characteristics like ideology. The last part discusses what I argue can happen when you start with a designation based on individual attributes (like a hostile act or intent) and leave a person in that environment long enough – they begin to adapt the traditional distinction of all people of a type being the enemy regardless of individual characteristics. I am not sure that has anything to do with the LT Lorance, but it does offer a different way to look at your question.

Interstate conflicts can also be based on Individual Identity. Although generally not seen as such, the first interstate conflict that had the characteristics of Individual Identity was the Napoleonic Wars. France had just passed through the first stages of its revolution and the ideals of freedom and liberty were part of the recruiting propaganda for the war effort. The military had been restructured based on individual merit not birthright and the new systems allowed for national mobilization. The wars were viewed as being a fight for the liberation of Europe from kings and tyrants. That same idea holds true in modern wars. When America chose to act against Saddam Hussein it portrayed the action as a war of liberation. We were not there to fight the Iraqi citizens; we were there to topple an oppressive regime. The “us” was all freedom loving people (including Iraqis); the “them” were all the oppressors.

Three points are worth noting regarding interstate wars based on Individual Identity. First, certain historically acceptable tactics may no longer be viable. If country A is basing its distinction on Individual Identity then attacks that disproportionally affect the civilian population are not going to be acceptable to the civilians of country A. Salting the earth or laying siege on a city kills the individuals who are not the target of the war. It is no longer war, it is simply murder. This is not to say that the civilians of country A are not willing to accept collateral deaths, but these deaths have to be “collateral” not intentional. Second, even though the civilian population may see the war that way, the participants may not. Autonomy is an anxiety-free motivation where there is nothing anxiety-free about combat. It is conceivable that the psychological dynamics will shift a Soldier’s mindset towards Collective Identity and viewing the enemy, including civilians, as a homogonous group. At the extreme this will allow Soldier’s to commit acts that they would otherwise not engage in, like the Mai Lai Massacre or Abu Ghraib. Third, it would be difficult, if not impossible, to have two countries use Individual Identity against each other. If both see the citizen’s of the other country as “just like me” then it is difficult distinguish who I am fighting against. There is no “us-versus-them”; there is only “us”. Any Country whose political system is built on popular sovereignty with a representative form of government is going to fall into this category. This could, in part, account for what is known as the Democratic or Liberal Peace. This does not mean that these countries cannot go to war with each other. It means that the nature of the events must be such that the other side can be characterized as somehow repressive, unjust, illegal, or otherwise clearly “not like us”.

[jmm99]

He who hesitates is lost.

I define war as “deadly or potentially deadly organized violence committed by a subset of one group, whose actions are morally sanctioned by that group, against a discrete and identifiable other group with a specific objective or goal.”

As you say, a "we-they" thing, with which I have some agreement:

post #74

More broadly, we have the concepts underlying "individual" and "collective" self-defense; as well as the concepts underlying "individual" and "collective" offense against what is perceived or defined as "evil". I'd argue that both Command Responsibility and Responsible Command are involved as soon as a "unit" (e.g., a 4-man fireteam) enters the picture.

but, as to which, wm raises a concern:

post #76

I was trying to make a distinction between the individual (a natural person, by the way) and the collective (an artificial person). However, I do have some qualms about what to make of the status of that artificial person. I find it hard to cash out exactly what those qualms are and why they bother me, but for starters, I question the applicability of the analogy found in St. Augustine that takes the acceptability of personal self defense and maps it to national self defense. I think that much of my concern stems from two sources: the concept of a moral agent and the notion that praiseworthiness / blameworthiness requires some ability to act after deliberation. Artificial persons are not able to deliberate in my worldview and are not "really" moral agents as a result.

That concern is well-founded because there has been an on-going debate, cutting across cognitive science and philosophy, concerning "group selection" and its associated issues. This has primarily focused on religious groups as examples of "group moral psychology". But, the general concepts could apply to any well-defined subgroup - e.g., military forces, especially when at war. Generally, one could vulgarly speak of a "meme" (realizing some hucksterism associated with "memetics") - using the accepted genetic "deme" as an analogy (e.g., polarbears ).

See generally, Group selection; Altruism and Group Selection; Beyond Belief: Enlightenment 2.0; and Beyond Belief: Candles in the Dark.

In any event, here are two persons who accept "group selection":

David Sloan Wilson, Professor in the Biology and Anthropology Departments at Binghamton University - video

Jonathan Haidt, an Associate Professor of Psychology at the University of Virginia - video 1, video 2

Jonathan Haidt (a secular liberal), in 2006, published When morality opposes justice: Conservatives have moral intuitions that liberals may not recognize

Conclusion

To summarize, we have argued for three main points: 1) Human morality consists of more than what is covered by the traditional Kohlberg/Gilligan domains of justice and care. 2) Liberal morality rests primarily on these two foundations (we call them reciprocity and harm), but conservative morality rests on five foundations, including ingroup, hierarchy, and purity concerns as well. 3) Recognizing these latter foundations as moral (instead of amoral, or immoral, or just plain stupid) can open up a door in the wall that separates liberals and conservatives when they try to discuss moral issues.

and one who doesn't (with 23 comments, many mini-articles, to Pinker's article):

Steven Pinker, The False Allure of Group Selection.

Jonathan Haidt, To See Group Selection, Look at Groupishness during Intergroup Competition, Not Altruism during Interpersonal Competition (a comment on Steven Pinker; first example by Haidt):

One of the few social psychological studies that actually put real, ongoing groups into real and protracted conflict was the famous "summer camp" study carried out by Muzafar Sherif [1], who brought two groups of twelve-year-old boys to a summer camp in a state park in Oklahoma in 1954. At first, the two groups did not even know of each others' existence, yet even so, each group started marking territory and creating a tribal identify for itself. Both groups engaged in some mild tribal behaviors that would be useful if the group were to encounter a rival group that claimed the same territory. That is what happened on day 6 when the "Rattlers" discovered that the "Eagles" were playing baseball on what the Rattlers took to be "their" ball-field. The Rattlers then challenged the Eagles to a game, which initiated a weeklong series of competitions that Sherif had planned from the start.

Once the competition began, it was as though a switch was flipped in each boy's head. As Sherif described it: "performance in all activities which might now become competitive (tent pitching, baseball, etc.) was entered into with more zest and also with more efficiency." Tribal behaviors increased dramatically. Both sides created flags and hung them in contested territories. They raided each others' bunks, called each other names, and even made weapons (socks filled with rocks.)

Were these acts altruistic? Technically yes, because each tribal behavior had some cost for the individual, and it benefitted the group's cohesiveness or effectiveness. But I think the opposite of selfishness in evolutionary terms should not always be altruism. For the purposes of the present debate, things get clearer if we contrast selfishness with groupishness. The hand of group-level selection is most vividly seen when we look at behaviors that impose some cost on the individual, but that do not transfer that cost as a benefit to one or several specific other group member (which would help the selfish individualists prosper in a multi-level analysis). Rather, mental mechanisms that encourage individuals to do things that help their team succeed, despite some cost to the self, are the most likely candidates for having come down to us by a path in which group-selection played a part.
...
[1] Sherif, M., Harvey, O. J., White, B. J., Hood, W., & Sherif, C. [1961/1954]. Intergroup conflict and cooperation: The Robbers Cave experiment Norman, OK: University of Oklahoma Institute of Group Relations.
...
In sum, most of our social psychology, and even most of our moral psychology, was shaped by individual-level selection. There has always been competition among individuals within groups, competing for status, mates, and the trust of potential partners for cooperation. But if you examine the psychological traits that motivate and enable cohesion, trust, and effective coordination, and if you do this during times of intergroup conflict, you will find many behaviors and mental mechanisms that are much harder to explain using only individual-level mechanisms. You will find yourself swimming among group-selected traits.

So, Haidt's theories are much along the lines that TheCurmudgeon wrote.

Regards

Mike

wm: my answer (probably too simplistic) re: artificial persons (military units, corporations, limited liability companies, etc.) and deliberation - moral agency, is that natural persons are appointed or elected to deliberate. Perhaps, some day, machines will take over as moral agents - the Universal Truth Machine - and those then living will see Kurt Godel disproved. So far, Godel has held up.

[TheCurmudgeon]

I hesitate because I am not really a philosopher. I stay away from WM, he knows way too much for me.

If I were going to argue with him I would say that St Augustine was schooled in Roman teachings of Cicero and their legal doctrine which did not have any doctrine of individual rights, only duties. So if St Augustine built his arguments on self-preservation on duty to the group then it makes perfect sense.

In any case I try to base my ideas on anthropology not philosophy. That is because I will lose to WM in philosophy arguments.

[jmm99]

Patricia Smith Churchland, UC President's Professor of Philosophy, UC San Diego, hits "we-they" conflicts spot on in this panel from Panel: This is Your Brain on Morality - Beyond Belief 2008, starting at 15:45 (about 5 min. of Churchland). She concludes: "It's part of the package, as crappy as it is."

For more of Pat Churchland:

Patricia Churchland - Beyond Belief 2008 (16 min. short course; biochemistry and philosophy, "... choice, responsibility and the basis of moral norms in terms of brain function, evolution and brain-culture interactions ..." !!)

Lectures (about 1 hour+ each; ~ a week of her classes):

Patricia Churchland - Morality and the Mammalian Brain.

Patricia Churchland - Braintrust: What Neuroscience Tells Us About Morality 01.

Patricia Churchland - Braintrust: What Neuroscience Tells Us About Morality 02.

Decisions Responsibility and the Brain.

Getting to the meat of it (says the ancien biochemist ); it's indeed surprising what connections ensue from Collingwood's Principles of History (Human Nature and Human History ).

Regards

Mike

[TheCurmudgeon]

JMM, thanks for all the material. I will look it over.

One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable.

I am curious if Soldiers who kill an person who is not in uniform have a harder time dealing with that then a if they had killed the same person in a clearly identifiable enemy uniform.

But we are getting off topic.

[davidbfpo]

One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable.

I am curious if Soldiers who kill an person who is not in uniform have a harder time dealing with that then a if they had killed the same person in a clearly identifiable enemy uniform.

But we are getting off topic.

Ah, don't worry that can be a SWC way of making progress There is a thread 'How Soldiers deal with the job of killing':http://council.smallwarsjournal.com/...ad.php?t=13523

There's also, now slightly off topic, a parallel one on how LE deals with killing.

[wm]

Thanks for the clarification. I understand now you were looking at this from a different view point and agree with your example that it is reflexive vs deliberate. When I refer to dogma my “vs” is as in “dogma vs doctrine”.

My thanks right back at you for your clarification. Good thing we are able to clarify terms used.
As to the distinction between Law of War and Rule of Law, I would assert that in the domain of "Legal Processes" the former is a subset of the latter. In other words, it really makes no sense to talk about the Law of War unless an environment exists in which some fair/objective process (or perhaps "due process" is a better word choice) exists to examine whether aspects of the Law of War have been followed or breached.
This last may seem to be at variance with your points about an absence of the rule of law, but I took your point to be that this absence is found in the area of operations, not in the organization conducting COIN. The deployed force has a goal (perhaps) of installing or restoring the rule of law to that place where the COIN mission is being conducted; that deployed force also operates internally under the Rule of Law. In the case at hand, the UCMJ/MCM is a significant part of the Rule of Law specification but is not the whole story.

[wm]

One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable.

Emphasis added.

I'm not so sure that categorizing is something humans like. It may well be, especially if you agree with folks like Immanuel Kant, that we must categorize. Categorizing allows us to bring order to all the stuff that bombards our senses--if nothing else, a filing system for sorting/storing the sensory inputs. If this is true, then saying we like to do it seems rather silly to me. If we have choices about how we categorize, then maybe we could say that we have chosen one method over another because we liked it better.

[TheCurmudgeon]

I'm not so sure that categorizing is something humans like. It may well be, especially if you agree with folks like Immanuel Kant, that we must categorize. Categorizing allows us to bring order to all the stuff that bombards our senses--if nothing else, a filing system for sorting/storing the sensory inputs. If this is true, then saying we like to do it seems rather silly to me. If we have choices about how we categorize, then maybe we could say that we have chosen one method over another because we liked it better.

Like may have been to vague a term. Predisposed to see the world in terms of us and them might be a better way to phrase it. Natrually skeptical/fearful of strangers. Our speicies has adapted that natural fear and adopted mechanisms to deal with it by allowing for an instanious trust. (I am a Prussian. I trust other Prussians, all others must pay cash.) From what I have read on evolutionary anthropoligists this the going theory.

[wm]

Like may have been to vague a term. Predisposed to see the world in terms of us and them might be a better way to phrase it. Natrually skeptical/fearful of strangers. Our speicies has adapted that natural fear and adopted mechanisms to deal with it by allowing for an instanious trust. (I am a Prussian. I trust other Prussians, all others must pay cash.) From what I have read on evolutionary anthropoligists this the going theory.

Stan,

A couple of thoughts (the pre-emptive strike missed)

In a past life doing comsec monitoring, I remember we had a poster that said "In God we trust. But we still monitor his freqs." I wonder to what degree we trust those others. I suspect that most of you Prussians have varying levels of trust for each other; the levels being directly porportional to some other relationships that you have to each other besides the mere fact of being Prussian. Another way of saying this that I still need something to explain the existence of things like the air defenders practical advice, "Shoot first and sort the pieces out on the ground."

It may tie back to the earlier post in which I noted folks apparently have differing levels of risk tolerance. Perhaps more analysis of the Fight or Flight mechanism in the "reptile" brain will uncover something. However, I think this will be another instance of the so-called Qualia problem.

How do we correlate a physical event with a feeling--synapses "firing" in the brain with pain or pleasure for example? I see this as a variation on the old mind-body problem that Descartes wrestled with unsuccessfully. He claimed our thoughts caused us to move by making the pineal gland oscillate, which in turn caused other bodily movement. He also suggested that our sense of taste was produced by the various shapes in food "poking" our tongues in different ways, which again translated through the pineal gland into sweet, sour, etc. Not a very satisfying explanation because it still relies at some level on "And then a miracle happens."

Recognition of someone as a fellow Prussian engenders trust. How? Is it merely artifactual or is it necessary? If it is necessary, what is the causal nexus?

[jmm99]

in terms of us and them" is Pat Churchland's basic hypothesis - multi-disciplinary (see Churchland links in my post above). Her evolutionary path boils down to:

Me

Me-Mine (kids)

Me-Mine-Kin

Me-Mine-Kin-Kith

As to "trusting" strangers, the quickest method is a trusted intermediary known to both parties. All of us probably know the non-intermediary method: put the trade goods on the beach; and wait for the other guy's trade goods offered in exchange. Recycle until someone picks up the last offered goods. That is a more time-consuming process.

Here is some more of Jon Haidt on a similar topic:

Johnathan Haidt, The Groupish Gene (2012) (short course, 17 min.)
http://www.youtube.com/watch?v=T64_El2s7FU

Johnathan Haidt, The Groupish Gene (2012) (long course, 1.5 hrs)
http://www.youtube.com/watch?v=NQ192d4c4S0

A lot of scientific weeds grow here, just as a lot of legal weeds grow elsewhere. The bottom line is that "we-they" is a human group given, but hypotheses differ on whether that given is caused by cultural selection, genetic selection, or both (in which case, how much from each); and, in both types of selection, the relative roles played by individuals and groups.

--------------------------------
I don't want to get down into the legal weeds - and simply won't; but this is a muddled mess:

As to the distinction between Law of War and Rule of Law, I would assert that in the domain of "Legal Processes" the former is a subset of the latter. In other words, it really makes no sense to talk about the Law of War unless an environment exists in which some fair/objective process (or perhaps "due process" is a better word choice) exists to examine whether aspects of the Law of War have been followed or breached.

This last may seem to be at variance with your points about an absence of the rule of law, but I took your point to be that this absence is found in the area of operations, not in the organization conducting COIN. The deployed force has a goal (perhaps) of installing or restoring the rule of law to that place where the COIN mission is being conducted; that deployed force also operates internally under the Rule of Law. In the case at hand, the UCMJ/MCM is a significant part of the Rule of Law specification but is not the whole story.

Are you arguing something along the lines of Kevin Heller's hypothesis, 'One Hell of a Killing Machine': Signature Strikes and International Law (to be published) ?

Perhaps you could diagram your "Legal Domain", and how all these fit together.

Regards

Mike

[TheCurmudgeon]

I no longer attempt to define things in terms of legal arguments, as unsatisfying as that may be. I remember my Civil Procedure instructor, on the last day of class, telling a story about a cow that wove an uncertain path up a hill. That path was followed by other men. Eventually it became a road that a twon grew up around to become a city. And when people asked how it was this crocked path became the main street of the city the only answer anyone had was that it had been that way before them - the precedent had been set.

So, rather then let some long dead cow define how I think, I look to science and reason to find answers ... at least that is my excuse this week.

Men use these tools like the law and philosophy to try to define how they feel inside about what is right and what is wrong. They need to ask why it is they feel that way. If humans are just animals with no divine spark then everything we do is an adaptation designed to enhance survival. That is true up until we created an economic excess. This created an unnatural condition that we have been trying to deal with ever since. Our Primitive mind tries to deal with a modern world. And so, we are lost...adrift in a world we cannot understand.

enough for now ... I need a drink

[jmm99]

After this post, everyone will want a drink.

It's the ultimate law review article: a title, one chart and the rest footnotes.

"Legal Domains"

I. Domestic Law (e.g., US)

A. Federal - to include: UCMJ and Extraterritorial Statutes

B. State

II. Regional Law (e.g., EU) - to include (in addition to formal regional entities, e,g., EU): various bi- and multi-lateral agreements, as well as much trade and commercial law, are more regional than global.

III. International Law

A. Laws of Peace

B. Laws of War & Neutrality

IV. Religious Laws

Notes:

(1) Generally, I take off the trottle and put on the brakes so far as natural law theories in my "Legal Domains" are concerned (to include the cottage industry of various "just war theories"). Just war theories are interesting to me, but not compelling.

If you are interested, pick a just war theorist you like (as an author), who writes about areas in which you have an interest. For me, that is Larry May. May has a number of books on topics material to this thread and the issues of killing in war (including very large killings).

Larry May, JD, PhD, is W. Alton Jones Professor of Philosophy, Professor of Law, and Professor of Political Science, Vanderbilt University:

Crimes Against Humanity: A Normative Account (2005);

War Crimes and Just Wars (2007);

Aggression and Crimes Against Peace (2008);

Genocide: A Normative Account (2010);

After War Ends: A Philosophical Perspective (2012).

He handles Hobbes and Grotius as follows:

May, A Hobbesian Approach to Cruelty and the Rules of War, Leiden Journal of International Law / Volume 26 / Issue 02 / June 2013, pp 293-313

Abstract

Contrary to the way Hobbes has been interpreted for centuries, I will argue that Hobbes laid the groundwork for contemporary international law and for a distinctly moral approach to the rules of war. The paper has the following structure. First, I will explain the role that the laws of nature play in Hobbes's understanding of the state of war. Second, I will explain Hobbes's views of self-preservation and inflicting cruelty. Third, I reconstruct Hobbes's important insight that rationality governs all human affairs, even those concerning war. Fourth, I explicate the idea of cruelty moving from what Hobbes says to a plausible Hobbesian position. Fifth, I address recent philosophical writing on how best to understand the rules of war. Sixth, I then turn to legal discussions of cruelty's place in debates about the laws of war, showing how my Hobbesian approach can ground these laws.

May, Grotius and Contingent Pacifism (Studies in the History of Ethics, Feb 2006)

Grotius’s great work, De Jure Belli ac Pacis, an 864-page work published in 1625, is still considered to be the single most important work in international legal theory. [3] Grotius is the great modern defender of the Just War tradition, but he is also a kind of pacifist. This is an uneasy alliance within the same thinker. But such is the history of the Just War tradition, where its adherents maintained the same dual ideas: that war was evil, but that it could be, indeed must be, justifiable in certain cases.

In this paper I will attempt to explain how Grotius reconciled the various elements of his political philosophy, and by building on his ideas I hope to provide the beginning of an account of a doctrine I will call “contingent pacifism.”[4] Contingent pacifism is opposed to war not on absolute grounds, but on contingent grounds, namely that war as we have known it has not been, and seemingly cannot be, waged in a way that is morally acceptable. As we will see, contingent pacifism makes jus ad bellum dependent on jus in bello.

3 Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625), translated by Francis W. Kelsey, Oxford: Clarendon Press, 1925.

4 As far as I am aware, Jeff McMahan first coined this term, but employed it in another context. See Jeff McMahan and Robert McKim, “The Just War and the Gulf War,” Canadian Journal of Philosophy, vol. 23, 1993, pp. 501-541.

Some just war theorists turn "jus ad bellum is dependent on jus in bello" on its head; that is "jus in bello is dependent on jus ad bellum". Thus, if as a combatant your state or group begins a war unjustly (jus ad bellum), you as a combatant are screwed - everything you do as a combatant (jus in bello) is illegal. In my "Legal Domains", jus ad bellum, jus in bello and jus post bellum are determined separately - at least to the extent that biases, emotions and sentiments allow that to be done.

Thus, I don't think that the "rules of justice" are an illusion; but they are "fuzzy" because of the biases, emotions and sentiments involved. In this statement, Adam Smith missed the mark:

Adam Smith, The Theory of Moral Sentiments, III.I.123

The rules of justice may be compared to the rules of grammar; the rules of the other virtues, to the rules which critics lay down for the attainment of what is sublime and elegant in composition. The one, are precise, accurate, and indispensable. The other, are loose, vague, and indeterminate, and present us rather with a general idea of the perfection we ought to aim at, than afford us any certain and infallible directions for acquiring it.

Truth be told, Smith started to back off in the next paragraph, in this "perhapsey" sentence: "A man may learn to write grammatically by rule, with the most absolute infallibility; and so, perhaps, he may be taught to act justly."

- notes cont. in next post -

[jmm99]

(2) For a contrarian view of just war theory, look first to Noam Chomsky. A Just War? Hardly (by Noam Chomsky; Khaleej Times, May 9, 2006) (basic premise)

In his highly praised reflections on just war, Michael Walzer describes the invasion of Afghanistan as "a triumph of just war theory," standing alongside Kosovo as a "just war." Unfortunately, in these two cases, as throughout, his arguments rely crucially on premises like "seems to me entirely justified," or "I believe" or "no doubt."

and Noam Chomsky: The Limitations and Problems with "Just War" Theory (USMA, 2006; 45 min.) (full course), looking to three sources of "just war theory" and Chomsky's conclusions:

1. literature (Walzer et al) - lacking in "rigour";

2. natural law (human nature) - promising research, but as yet no bananas;

3. positive law (UN Charter, Hague, Geneva) - some good rules (basically policy choices; no surprise that NC choices are somewhat different from JMM choices).

Point 2 starts at 12:25 through 18:00; cf. human language - "hard-wired" (genes) and/or "environmental" (memes)? John Mikhail of Georgetown (mentioned by Chomsky) was Chomsky's student.

(3) Then consider John Mikhail, Georgetown, Professor of Law, with a long list of publications: Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (2011), and, in my opinion (despite my pain in having to credit MIT ), the best lecture concerning the brain, cognition and philosophy, Where Morals Come From (And Why it Matters) (2 hrs):

Beatriz Luna, Associate Professor of Psychiatry, Dept. of Psychiatry, School of Medicine, University of Pittsburgh; John Mikhail, Associate Professor, Law Center and Philosophy Department, Georgetown University; Patrick Byrne, Professor of Philosophy, Boston College; Christopher Moore, PhD '98, Assistant Professor of Neuroscience, Department of Brain and Cognitive Sciences, Whitehead Institute (moderator). Description: A neuroscientist, lawyer and philosopher together manage to wrap their arms around the centuries' old question of the origins of human morality.

Mikhail's research is not yet definitive (IMO); but, if well-validated, will establish a very man-made (brain-made) set of very basic legal rules. As such, it smacks much more of positive law than natural law.

Moreover, as Mikhail and others point out in various articles and lectures, the human brain has competence to make moral (and legal) rules, but that does not predict the brain's performance as to whether specific moral (and legal) rules will be made - or whether those actual rules will have cross-cultural consistency.

(4) Not surprisingly, one finds strong opinions against a genetic determinism inclining humans to war. The principal author of this viewpoint is John Horgan, The End of War (Amazon) and videos:

John Horgan: The End of War? (short course, 5.5 min.)

John Horgan: The End of War - Bioethics Seminar (longer course, 38 min.)

Authors: J Horgan, J Lears, D Swanson: "Wars and the Need to stop them!" (long course, 1.5 hrs)

Horgan, Hastings Talk Refutes Genetic Determinism of War (2012)

Is war inevitable? Is it hardwired in human nature? Many believe that the answer to both questions is yes. But in his new book, The End of War, science journalist John Horgan reaches the opposite conclusion, making the case that “the end of war is possible, and even imminent.” Horgan discussed the research that led him to that optimistic view at The Hastings Center on April 26 as part of the Garrison Seminar series.

Horgan critically analyzes scientific claims that war is “in our genes,” including the supposed discovery of a “warrior gene” that promotes violence. Research has found minuscule difference in rates of aggression between carriers and noncarriers, he says. “My guess is that the warrior gene claim will eventually be discredited, because that’s the pattern with attempts to link complex behavioral traits to specific genes,” he writes in his book.

Horgan also debunks data cited in scientific literature that lethal group violence dates back to our common ancestors, chimpanzees. An example of such data is that the median annual death rate from intergroup aggression among chimpanzees is 140 per 100,000. In fact, Horgan says, as of 2004, researchers had directly witnessed only 12 deaths total from lethal intergroup aggression and that chimpanzee violence may be related to environmental factors such as population stress caused by human encroachment.

Horgan, director of the Center for Science Writings at the Stevens Institute of Technology in Hoboken, N.J., says his goal “is to start a conversation about why we fight and how we can stop."

In that respect ("... a conversation about why we fight and how we can stop..."), SWC is well in front of the pack.

(5) To conclude and summarize the Notes:

Except for Religious Laws (quite a separate topic, including internal matters in a religion, but also theocracies and theonomies), my Legal Domains do not recognize a "Brooding Omnipresence in the Sky". Yes, that comment and methodology is Holmesian; but, the times and experiences of Holmes and me differ - so, then, our "facts" and "laws" differ - as do our results.

Finally, I'll quote the part of Adam Smith's essay on Moral Sentiments (link in part 1) which I apply to the rules of justice in my Legal Domains, even though he intended his words to be applied to moral virtues:

But there are no rules whose observance will infallibly lead us to the attainment of elegance or sublimity in writing; though there are some which may help us, in some measure, to correct and ascertain the vague ideas which we might otherwise have entertained of those perfections. And there are no rules by the knowledge of which we can infallibly be taught to act upon all occasions with prudence, with just magnanimity, or proper beneficence: though there are some which may enable us to correct and ascertain, in several respects, the imperfect ideas which we might otherwise have entertained of those virtues.

Not Q.E.D.; but not an illusion either.

Regards

Mike

[wm]

Mike,

The following are some questions/comments on your last 2-part post:

Is the listing of your legal domains ordered in any way? That is, is it, perhaps, hierarchical in a set theoretical way? For example, is Domestic Law a subset of Regional Law, etc? Or perhaps the listing represents a rank ordering for applicability/precedence? E.g., is Domestic more important/more fundamental than Regional, etc?

Your reference to Holmes, viz, "The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified" (Southern Pacific Company v. Jensen, 244 U.S. 205 (1917)) is, in my opinion, one of his appeals to common sense. As an aside I never figured out why the court ruled as it did in the case--seems to me a ship tied up in port is not on the high seas and, as a result, cannot be considered to be under maritime law, but that is a digression.

While on the subject of Homes' quotations, one of my favorites is this, "To have doubted one's own first principles is the mark of a civilized man." ("Ideals and Doubts," Illinois Law Review, Vol. X (1915)).

On Chomsky and Adam Smith:
When considering Chomsky's work in linguistics, one can see quickly how he is at odds with Holmes. Transformational-generative grammar is far from parsimonious. In fact it seems to create more "band-aid" rules every time a grammatical exception pops up. Each of its rules has an extremely expansive ceteris paribus clause. As a result the rules can become rather hard to apply.

Your ultimate quotation from Adam Smith includes the following important disclaimer, "And there are no rules by the knowledge of which we can infallibly be taught to act upon all occasions with prudence, with just magnanimity, or proper beneficence"(emphasis added)(Theory of the Moral Sentiments Part 3, Chap 6, http://knarf.english.upenn.edu/Smith/tms316.html). At the end of the day, we are still faced with weakness of the will--even though we know what we ought to do, sometimes we still don't do it. As an example, I've had Smith's Theory of the Moral Sentiments on my bedside table for over a year now but have been unable to force myself to finish rereading it, even though I know I ought to do so in order to finish my research on the hypothesis that Francis Hutcheson is the basis of much of Smith's thoughts (as well as Jefferson's and maybe Madison's)--Dickens keeps drawing me away.