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Special soldiers, special training, special rules

The Directors Cut

Dustin Du Cane

— 16 min read

Notes I made writing our book.

To put it plainly has a soldier been instructed as to what the laws of war are and is he likely to follow those instructions? Do his officers even know them? Do people at the top care about the laws of war and what the soldier knows or even does? Does a soldier know that genocide above all shouldn’t be committed?

Without a knowledge of a law, it is difficult to always obey it, though not impossible when a law follows general moral, cultural and social conventions. 

The Geneva Conventions are formulated to follow generally accepted customs and practises between nations so avoiding a serious breach of the conventions by a soldier in a democratic liberal society should be expected even without thorough schooling and education. Further the Genocide Convention and ICC accept that a ban on genocide is a customary law that all nations and citizens should abide by, regardless of treaty. 

We should keep in mind cultural differences, i.e. an Australian commando will probably intuitively know that he shouldn’t commit a rape banned by art. 27 of the Fourth Convention, while an ISIS fighter might feel a perverse religious duty to do so when presented with a ‘heretic’.1 Similarly a family loving Australian commando would generally not be expected to bring home to his wife a looted washing machine but in other culture a good loving family man brings back loot, slaves or art.2 Genocide wouldn’t be considered by the Australian Prime Minister and Australian pundits wouldn’t be screaming on tv about the need to genocide their illegally invaded neighbors.

However, morality and the law turn murky in situations where soldiers are scared, hungry, tired, angry, vengeful, bored or drunk. Even the elite soldiers of a Western democracy can and will engage in terrible crimes despite wide scale schooling and education with numerous allegations and prosecutions of the ‘best of the best’ in special forces units as well as more typical units while at the other end of the scale of professionalism, excesses committed by Western military contractors masquerading as security operatives, aka mercenaries, are particularly egregious in light of the abusive legal immunity clauses they often enjoy.3

Going even beyond the laws of war as such, military ethics generally is a particularly complex field with elements of law, psychology, sociology and military history and field which enjoyed boom periods, if the term can be used for expansions of a field of study fuelled by violence and war crimes, post Nuremberg and in the post 9/11 wars.4

Soldiers are supposed to be taught the laws of war and their superiors, civilian or other, should know those laws and not give orders that force the soldier to breach them. Responsibility and the responsibility to know goes up and down the command line. 

There is nothing more ridiculous than teaching an exhausted, bored and daydreaming soldier convention articles in a classroom as if they were law students cramming for an exam and expect them to follow the laws of war when they’ve just seen their best friend shot by an unseen sniper from that village across the way and splattered brains are still on their goggles.6 Or even when an insane elderly dictator is screaming about denazification and the wife back home is asking about a nice new Ukrainian laptop and the Russian state is engaging in looting. 7

(Don Rickles and Clint Eastwood in Kelly’s Heroes, Metro-Goldwyn-Mayer)

Planned genocide is particularly vicious form of crime committed with an evil cold, not hot in the moment, form of crime – in line with cold blooded planned murder is treated by all criminal codes as the highest form of murder. 

Western militaries have varied schemes of teaching soldiers the laws of war, involving officers, lawyers, chaplains and even civilian ethics teachers.9 The US has a complex system overseen by the Department of Defence:

“It is DoD policy that: 

(Tom Cruise in A Few Good Men, Castle Rock Entertainment)

A key element of the above policy is to ‘Implement effective programs to prevent violations of the law of war by members of their component, including programs for law of war dissemination and periodic training commensurate with each individual’s duties and responsibilities.” The US Army implements these directives through three levels of training: Level A, basic aka doesn’t murder, steal and rape, Level B annual and deployment conducted by lawyers or paralegals, aka don’t shoot the unarmed locals when we get there and Level C, officer training including law of war issues for planning, aka don’t put down an artillery stonk on a hospital because you have a bad feeling about it.11

(William Dafoe in Platoon, Orion Pictures Corporation)

Significantly, a ‘Battlefield Ethics Training Program’ was implemented in 2006 following widespread reported abuse in Iraq, and a study revealed less than 50% of US soldiers would be willing to ‘snitch’ on comrades for relatively minor abuses, with roughly the same percentage willing to torture captives for information.12 Only half of soldiers considered non-combatants should be treated with respect and dignity, with the percentage shockingly dropping for Marines. Even the murder of innocents would only result in reporting a unit member for 55% of soldiers, 40% for Marines specifically. A quarter to third of soldiers reported that their superiors did not make it clear that civilians should not be abused, and a quarter reported facing ethics situations to which they were unable to respond, despite 90% (?) reporting having received training on behaviour towards non-combatants. 13

(Bill Hader in Barry, HBO)

It's taken as a given that an US general or even president will know the laws of war and on genocide or at very least will have professional advisers who can prevent a breach. In practise this is problematic and much has been written on how it is not how the executive follows the law but the interpretation of law follows the executive, in particular jus ad bellum and jus in bellum should never be used as in an utilitarian manner, as a tool for committing to war or outrages in war.

At this point a reader may be checking this book’s cover and wondering why I am citing US military statistics and policies. Unfortunately these statistics, policies and approaches constitute a baseline when considering Russian genocide and military behaviour in the Ukraine, especially as regards a superpower.14 When half of the professional soldiers of the world’s greatest superpower, a law obsessed democracy built on ideas of liberty and protection from tyranny, face serious legal and ethics issue in their pursuit of war, what hope is there for the internalization and application of the rules and ethics of war and the ban on genocide by  the badly trained, badly motivated, poverty stricken, demoralized, abused cynical soldiers of a near fascist state in a patriotic war of denazification.15 

(Casper Von Dien in Starship Troopers, Tristar Pictures)

Specifically, it can be argued that a statistic showing that soldiers say they are twice as likely to mistreat a non-combatant when angry is applicable across cultural and national boundaries. Unit casualties as well handling bodies also increase the self-declared likelihood of mistreatment. 

These revelations, which may seem blindingly obvious to veterans of combat and non-veterans alike, did not seemingly create a sea change: “The battlefield ethics training program appears to have slipped through the Army’s bureaucratic cracks.” even though “Law of war violations undermine good order and discipline and are inextricably linked to unit effectiveness and mission accomplishment—the commander’s raison d’être.”16 A soldier that abuses civilians tends also to be a bad soldier in general.17

Western militaries have faced serious legal issues and intense criticism during and hopefully post the forever wars in Iraq and Afghanistan.18 To some degree even civilian society has shown a worrying degree of indifference or attitudes of ‘soldiers are not lawyers’ and ‘can’t make an omelette without breaking eggs’19: 

(Jack Nickolson in A Few Good Men, Colombia Pictures)

Of course, in Roman times, legionnaires, forbidden to marry, perhaps thankfully, and were paid in loot, slaves, torture and rape under the jus in bellum.

(Joaquin Phoenix and Russell Crowe in Gladiator, Paramount Movies)

We have seen that is difficult to teach Western soldiers the laws and ethics of war and even more difficult for them to internalize those norms, especially in situations of acute (firefight) or background (hunger, cold, screaming superior) stress. However, the military has a self-interest in providing prevention and accountability for the abuse of the laws of war – a war criming soldier is a bad at fighting.21 ‘Bad apples’ do not make good fighting soldiers. A military mostly or entirely composed of bad apples, will be bad at fighting. In the Russian case we will see that the apples are rotten, as is the barrel of apples and the wall of the basements with apple barrels, and the foundations of the building, despite the big sign saying: “Good hand-picked apples here” on the building and “Excellent fresh no war crimes apples” on the barrel. 

(Evgeniy Volovenko in Under Military Law, Star Media - I will watch this if paid)

Turning suddenly back to the subject of this book and confirming Rezun’s assertions re: lack of knowledge, let alone internalization of the international laws of war, the Armed Forces of the USSR only learnt of  the Geneva Conventions en masse and only in theory in 1990 via USSR Minister of Defence Order No. 75 of 1990 , which promulgated the Geneva Conventions of 1949 and the two Additional Protocols of 1977 together with Guidelines for the Application of International Humanitarian Law. 22I write in theory because it’s one thing to sign a treaty, another to promulgate it (publish it so its theoretically available, haha) and a completely different thing for a soldier to internalize that treaty, as previously discussed.23

 (German Murderers in Nuremberg Trials, US Army Services)

PS

June 1 2023

Ben Roberts-Smith loses defamation case, with judge finding former SAS soldier committed war crimes

War corrupts and twists and special soldiers believe in special rules.

Every day ordinary Russian soldiers commit far more crimes than this soldier did in his career but this shows how everybody needs to be held accountable.

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  1.  ““[It is] among the greatest forms of the honour of Islam and its sharia [Islamic law], as it is a clear affirmation showing the supremacy of the people of sharia, and the greatness of their affairs, and the dominance of their state, and the power of their might,” according to an Isis pamphlet on slavery.”, Cathy Otten, ‘Slaves of Isis: the long walk of the Yahzidi people’, The Guardian, 25 July 2017. ↩

  2. Julia Emtseva, ‘Destruction and Looting of Cultural Property in Yemen’s Civil War’, The Asian Yearbook of Human Rights and Humanitarian Law, vol. 5 2021, 92-110. ↩

  3. The Nisour Square massacre in Bagdad in 2007 involving Blackwater Security Consulting mercenaries randomly killed 17 and injured 20 Iraqi civilians, an event with enormous political repercussions outside of the scope of this work. Convicted in the US, of course pardoned by President Trump for reasons. The US, UK and Russia notably not being signatories to the 1989 United Nations Mercenary Convention, officially the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It is particularly telling that British soldiers of a training unit set up in Kenya “to help build the capacity of national military forces”, are alleged to have started deadly fires while under the influence of cocaine, Jack Wright, ‘British Army soldiers who were blamed for starting massive 10,000 acre bushfire in Kenya while 'high on cocaine' lose fight for diplomatic immunity’, Daily Mail Online, 13 April 2022. These were handpicked solders trainers from a widely respected military in a democracy. That cocaine could have possibly been smuggled by Putin’s favorite mercenaries, of the Wagner PMC, Leonid Bershidsky, ‘Cocaine Bust Is the Latest Sign of Putin's Weakness’, Bloomber.com, 28 February 2018. ↩

  4. Paul Robinson, ‘Ethics Training and Development in the Military’, The US Army War College Quarterly: Parameters 37, no. 1 (2007). ↩

  5. Available here. Predates Hague Convention 1899. ↩

  6.  See David Lloyd Roberts, ‘Teaching the Law of Armed Conflict to Armed Forces: Personal Reflections’, International Law Studies Vol. 82, The Law of War in the 21st Century, Weapo nry and The Use of Force, Anthony M. Helm, ed., 123-124. ↩

  7. “To this end, we will seek to demilitarise and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians, including against citizens of the Russian Federation…”, full transcript in English of Vladimir Putin’s tv speech on February 24, 2022, via Bloomberg News. For Russian looting and the terrible reporting on it by Reuters, Euan MacDonald, “Reuters Changes Headline in This Propaganda Article” Twitter (Twitter, May 31, 2022),

    Also “Russian Media Confirms Extraction of Grain, Steel from Ukraine's Ports,” The Maritime Executive, May 30, 2022. ↩

  8. Via Ukrainian Pravda newspaper and Ukrainian Security Service Telegram channel and so pinch of salt. Note previous comments about the bounds of morality and conscience. ↩

  9. For references current as of 2008, see Laurie P. Blank, Gregory P. Noone, Law of War Training: Resources for Military and Civilian Leaders, United States Peace Institute 2008. Lists basic details of training and provides links to relevant web sites. ↩

  10.  US Department of Defense, Office of the General Counsel of the Department of Defense Directive 2311.01, effective July 2, 2020. Compliance with the law of war is further implemented by directives on the legality of weapons, DoDDs 5000.01, 3000.03E, and 3000.09, detention and interrogation policies, DoDDs 2310.01E and 3115.09 and identification cards required by Geneva Conventions, DoD Instruction (DoDI) 1000.01. Of course, the gorilla or perhaps guerilla in the room is the 1000 (!) page Department of Defense Law of War Manual, updated December 2016, with a hyperlink almost as long as the manual itself so please refer to your search engine of choice. For a critique of the law contained therein, see Just Security forum. Imagine attempting to teach a 1000-page manual to soldiers, excuse me, warriors as is current post Bush US military parlance, when I doubt a highly motivated law student would be able to internalise the content over a year of study.  ↩

  11.  Chris Jenks, ‘The Efficacy of The U.S. Army’s Law of War Training Program’, Lieber Institute West Point, October 2020. ↩

  12. See ‘Final Report of Mental Health Advisory Team (MHAT) IV Operation Iraqi Freedom 05-07’, 17 November 2006, Office of the Surgeon. Multinational Force-Iraq.; Office of the Surgeon General (Army), Washington, DC., 34. ↩

  13. Complaints, insults and threats from aggrieved readers should be addressed to the US professionals preparing that study. Actually don’t threaten and insult them. ↩

  14. Defining superpower as a medium sized economy but with the ability to turn the world to ash. ↩

  15. For a very critical analysis of US training for foreign military and police forces alleging inter alie training in torture techniques, see Amnesty Internation, Unmatched Power, Unmet Principles: The Human Rights Dimensions of US Training of Foreign Military, Security and Police Forces (Amnesty International USA Publications, 2001), https://www.amnestyusa.org/pdfs/msp.pdf. Compare rule of law with “We are a nation of laws, not men.”, US Supreme Court in Marbury vs Madison, 5 U.S. 137 (1803). Robert Coalson ‘Nasty, Repressive, Aggressive - - Yes. But Is Russia Fascist? Experts say ‘No.’, RadioFreeEuropeRadioLiberty, 9 April 2022. Timothy Snyder, “We Should Say It. Russia Is Fascist.,” New York Time, May 19, 2022. ↩

  16. Jenks, The Efficacy. Also, “The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”, U.S. Department of Defense,” Manual For Courts-Martial United State, 2019, preamble I-1. ↩

  17. Western ‘warrior’ elites anecdotally show a higher disregared of the rules of war, per Susanne Schmeidl, ‘A Dummies Guide to The Geneva Conventions’, 9 March 2020. The Alexander Blackman case is particularly chilling as he is recorded on video mentioning the Geneva Conventions after cold blooded calm execution of a wounded insurgent, “Regina v. Sergeant Alexander Wayne Blackman (‘Marine A’),” ICD - Blackman - Asser Institute, accessed May 19, 2022. UK Royal Marines are one of the highest regarded elite professional forces in the world… a public and legal campaign led to his conviction for murder being changed to manslaughter on appeal, on grounds of PTSD. Simon Akam, “War, Justice and the Real Story behind 'Marine A',” British GQ, April 3, 2021.An elite mature professional NCO from a rich country. Consider how an impoverished, alcoholic, abused Russian convict is expected to behave in Ukraine. ↩

  18. ‘Lawyers to right of them, lawyers to left of them’, The Economist, 9 August 2014. ↩

  19. Ivan Simonovic, ‘Attitudes and Types of Reaction Toward Past War Crimes and Human Rights Abuses’, Yale Journal of International Law, vol. 29, issue 2, 1 January 2014 and Eyal Mayroz, ‘Our failed response to genocide: Why states and citizens don’t do more to prevent mass atrocities’, 5 January 2021. What does Judge Ivan Mishchenko ‘Dredd’ of the Ukrainian Supreme Court count as? Staci Zaretsky, “Ukrainian Supreme Court Judge Earns Fierce Nickname After Leaving Bench For Battle Against Russia,” Above the Law, March 15, 2022. ↩

  20.  Marcus Tullius Cicero, Pro Milone, 52 BC. See Arthur Rizer, ‘Lawyering Wars: Failing Leadership, Risk Aversion, and Lawyer Creep—Should We Expect More Lone Survivors?’, Indiana Law Journal: Vol. 90: Iss. 3, Article 1, 2003, for an atrocious neo-con revision of Cicero: “This Article then explores how the “fear of prosecution” and “feeling of persecution” now permeate the defense and intelligence ranks. This fear is impacting the United States’ ability to wage war… Rather, the hindrance on war fighting comes from the “lawyer mentality,” which is just as often present in nonlawyers. Indeed, this is a mentality that has become pervasive in American culture itself—it is the same culture that causes a company that makes chainsaws to warn its customers with a label that reads “DANGER: Do not hold the wrong end of a chainsaw” or that causes Apple to give notice that its patrons should “not eat [their] iPod shuffle.” For other thoughts see Roberts, Teaching, 124. Cicero is contradicted here by: “Sutcliffe tells us that the ancient Romans and the Spanish in the Low Countries also announced their laws so that no soldier could plead ignorance”, William R. Hagan, ‘The Yet-Unpaid Debt of King Gustavus Adolphus: The Development of Military Law in Europe During the Cinquecento’, 5. ↩

  21. Róisin Burke, ‘Troop Discipline, the Rule of Law and Mission Operational Effectiveness in Conflict-Affected States’, ch. 15, in Morten Bergsmo & SONG Tianying, eds., “Military Self-Interest in Accountability  For Core International Crimes”, second edition, Brussels 2018. “After the organization of troops, military discipline is the first matter that presents itself. It is the soul of armies. If it is not established with wisdom and maintained with unshakeable resolution you will have no soldiers. Regiments and armies will only be contemptible, armed mobs, more dangerous to their own country than to the enemy. - Maurice De Saxe… Criminal offences by soldiers have serious operational consequences, some touched on already, including undermining legitimacy of the operations and the trust of local counterparts, and efforts to establish or reestablish security and the rule of law in fragile States. Bangerter aptly points to two primary reasons armed groups see it to their advantage to respect international humanitarian law. The first is their reputation and image. The second is military advantage… An ethical soldier is often perceived as a more effective soldier… Loyalty (which is key to functional militaries), team cohesion and camaraderie entails also discipline for the soldier.” Also, Jessica Wolfendale, ‘What is the Point of Teaching Ethics in The Military’, ch. 14 in particular in Paul Robinson, Nigel de Lee, Don Carrick, eds., Ethics Education in The Military, Ashgate 2008, which in general deals with issues of effectiveness, efficiency and ethics. Wolfendale argues that a military can take the approach that soldiers should conduct themselves in accordance with the rules of law because that means they’re in general a disciplined soldier who will additionally not antagonize civilians in his mission area or at home with war crimes, threatening his mission (functional approach to ethics) or because societies shouldn’t be producing war criminal soldiers as an aim and a value in itself (aspirational approach to ethics). A drunken, raping and looting soldier on the battlefield is too busy and distracted to be fighting, regardless of ancient Roman practise post victory – when combined with the brutality of a system including decimation in its list of military justice punishments. ↩

  22. “However, the guidelines offered only limited instructions with regard to the application of codified rules of international humanitarian law”, Tuzmukhamedov, The Implementation, 394. “The Guidelines envision the following obligation for commanders (officers in charge):“In daily practice, commanders (officers in charge) of all ranks... shall proceed from generally accepted principles of international law..., as well as international humanitarian law norms which obligate in time of peace to spread among the Armed Forces personnel… the knowledge of international humanitarian law, and study it in the system of combat and political training”.”, Anatoly Azarov, ed., Human Rights Education In Russia – Analytical Report, , Moscow School of Human Rights, 2008, 94. I find formatting of legal texts being proof of the importance of a legal text, to be a laughable contestation: “The supreme command of the Russian Armed Forces focuses particular attention on the need for the observance of the nation’s international law commitments by military groups involved in various armed conflicts in and outside Russia in the capacity of either a combatant or a party tasked with peacekeeping… A distinctive feature of the Instruction is that its text, based on the texts of the Geneva Conventions and their additional protocols, was adapted to the style of documents of the Armed Forces, mainly the style of their statutes.” Indeed, adherence to style is the key element of human rights law, well perhaps in Russia with its faux-legalistic bureaucratic obsessions.“Listen, all our opponents clamor for the rule of law. What is the rule of law? It is compliance with existing legislation. What does existing legislation say about marches? You need to obtain authorization from the local authorities. You got one? Go ahead and demonstrate. If you didn’t – you don’t have the right to demonstrate. If you do anyway – you will get a baton to the noggin’ [poluchite po bashke dubinoi]. End of story!”, Andrey Kolesnikov, ‘Vladimir Putin: I give you my word of honor from the party’, 30 August 2010, Kommersant. ↩

  23. This is a 300-page handbook which is available in physical form but was not consulted by the author. According to Tuzmukhamedov, The Implementation, 394, only 8 pages are guidelines. ↩

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