The Efficacy of the U.S. Army’s Law of War Training Program

On July 2, 2020, the Department of Defense reissued DoD Directive 2311.01, the DoD Law of War Program.* Under the previous Directive, issued in 2006, Secretaries of the Military Departments were required to “[i]mplement programs in their respective Military Departments to prevent violations of the law of war.” The 2020 Directive repeats that requirement while adding the word “effective” as in “[i]mplement effective programs… to prevent violations of the law of war.” A subsequent Articles of War post will highlight the differences between the 2020 and the 2006 Directives, this post focuses on the addition of “effective.”

Lest readers think that too much weight is being placed on the arguably unnecessary addition of that one word, the recently reissued Directive is simply a vehicle to pose questions about law of war (LOW) training the Army should have already been asking: what is meant by effective and how it should be measured? The reissued Directive does not explain either. While obvious that all training should be effective, its formal addition to the requirement should prompt introspection as to whether the U.S. Army can meaningfully answer questions about its LOW training program. This post contends that the only answers the Army could generate would be statistics of how many soldiers received the various levels of LOW training Army Regulation (AR) 350-1 Army Training and Leader Development mandates. The response to whether that training has been effective at preventing LOW violations would be proverbial or—depending on which Army installation you were at perhaps literal—crickets.

This post first reviews the curiously static nature of the Army’s LOW program before detailing the AR 350-1 requirements. From there the post introduces a seemingly ignored battlefield ethics training program a forward deployed U.S. Army Division developed and implemented during Operation Iraqi Freedom. This innovative program modified the conduct of LOW training and yielded quantifiable indicia of preventing law of war violations. Ultimately this post suggests that the Army revise its LOW training requirement by incorporating unit leaders as primary trainers, factoring in unit members’ combat experience, and implementing surveys at various levels of professional military education to gauge attitudes towards the LOW over time.

Static Nature of Army LOW Training

Since invading Afghanistan in 2001, the U.S. Army has been engaged in persistent conflict.

Between September 2001 and September 2015, the Rand Corporation estimates that some 2.77 million servicemembers served on more than 5.4 million deployments. The Army provided the majority of those troops, and many soldiers completed multiple combat tours. During that time, through lessons learned and rapid fielding initiatives, equipment, uniforms, doctrine, tactics, techniques, and procedures, even the APFT, have all changed. Perhaps most importantly, the soldiers fighting changed as a result of their combat experience. Yet through it all, the Army’s LOW training requirement has remained static.

Army LOW Training Requirement

The purpose of Army Regulation 350-1 is to “prescribe[] policies, procedures, and responsibilities for developing, managing, and conducting Army training and leader development.” Over 200 pages into the 257-page regulation is a series of tables outlining “[o]ther requirements for selected personnel (units and installations)” including law of war/detainee operations training. Under AR 350-1, “soldiers and leaders require law of war training throughout their military careers commensurate with their duties and responsibilities.” The regulation divides LOW training into three levels, A, B, and C.

Level A training is conducted during initial military training for all soldiers. Level B training is conducted in units and Level C training is conducted in the Total Army School System. 

Army Level A LOW Training

Level A training “provides the minimum knowledge required for all members of the Army.” This training reinforces basic LOW concepts known as “The Soldiers Rules,” including that soldiers: fight only enemy combatants; do not harm surrendering enemies; collect and care for the wounded friend or foe; don’t attack medical personnel, facilities or equipment; destroy no more than the mission requires; treat civilians humanely; do not steal; and do their best to prevent LOW violations and report violations that do occur.

Army Level B LOW Training

Level B training is the focus of this post. Level B training is conducted annually and potentially again prior to deployment. A judge advocate or certified paralegal non-commissioned officer must deliver the instruction. The training reinforces The Soldiers Rules instruction taught during initial military training and emphasizes the proper treatment of detainees. Level B training is to be “designed around current missions and contingency plans” and integrated into other unit training activities, including field training exercises at home station, combat training centers and mobilization sites.

Army Level C LOW Training

Level C training emphasizes officer, warrant officer and non-commissioned officer responsibilities. This training includes LOW issues in planning and execution of combat operations and measures for reporting suspected LOW violations.

The Army published the current AR 350-1 in 2019, reissuing similar, if not exactly the same, LOW training requirements as in versions of AR 350-1 from 2014, 2009, and 2006. That the Army has been engaged in persistent conflict, and as a result, modified how it operates in almost every conceivable area except LOW training is itself surprising. This stasis becomes even harder to understand given the lessons one Army Division learned more than a decade ago.

Battlefield Ethics Training Program

In 2006, following a series of incidents in Iraq involving U.S. Army soldiers abusing detainees, murdering civilians, and unnecessarily damaging or destroying civilian property, military mental health professionals began to include what they labeled as ethics issues in an annual survey of soldiers deployed to Iraq. The results of that 2006 survey indicated that less than 50% of soldiers were willing to report a member of their unit for ethical (aka law of war) violations, that 15% reported damaging civilian personal property, and that 6% reported hitting or kicking civilians unnecessarily.

When those percentages didn’t appreciably change in the following year’s survey, the Commanding General of Multi-National Division–Center directed the development of a battlefield ethics training program. The Division Psychiatrist led the training development team, which included the Staff Judge Advocate, the Division Surgeon, the Adjutant, and the Chaplain. The group consulted with ethicists and the Army JAG School in developing a program for a deployed Infantry Brigade Combat Team which focused on leader-led discussions occurring halfway through the unit’s 15-month deployment. The training “was associated with significantly lower rates of unethical conduct of soldiers and greater willingness to report and address misconduct” as compared to before the training.

The study suggested the need to implement significant changes to LOW training. These included changing who should lead the training from a judge advocate to a unit leader and focusing on participating soldiers’ combat experiences and not just their duties and responsibilities. The study concluded that “[t]he intensity of direct combat seemed to be the strongest predictor of unethical conduct, which is borne out also by many anecdotes of combat veterans who describe intense and sometimes uncontrollable rage in association with horrific events, such as losing a close team-member.”

The battlefield ethics program was the “first published study to provide both potential methods for preventing unethical conduct and associated factors for unethical battlefield conduct.” The authors of the study thought their work could inform future training efforts. It hasn’t. The question is why not? Some of the mental health professionals wrote about the program, as did ethicists. But those articles were published in professional journals devoted to, and presumably primarily read by, mental health professionals and ethicists. Neither commanders nor the Army writ large seem to have paid much, if any, attention to this innovative—Division Commander directed—program.

Why the Army Didn’t Learn from the Battlefield Ethics Training Program

The battlefield ethics training program appears to have slipped through the Army’s bureaucratic cracks. Part of how and why this happened may stem from the program being labeled as ethics, not law. This post does not wish to restart a taxonomy debate concerning ethics versus law.

But labeling battlefield misconduct as an ethics issue is particularly problematic because the ownership of ethics within the Army is unclear, to put it mildly. More bluntly, “the system of [military] ethics training suffers from incoherence.”

In terms of soldiers, the Army established the Center for the Army Profession and Ethic (CAPE). But CAPE was minimally concerned with battlefield misconduct, which seemed to be considered more of a legal than ethical issue. The Army merged and renamed CAPE into the Center for the Army Profession and Leadership (CAPL). Like CAPE, CAPL does not focus on battlefield misconduct.

In terms of leaders, the Army does not think of ethics as a means to foster institutional or unit ethical environments. Rather, the Army focuses on “preventing individual wrongdoing” and on the “issues that are most likely to get military leaders into trouble”—gifts, travel, conferences, use of government resources and post government employment.

Ultimately, couching battlefield misconduct as either ethics or law is to present a false choice. 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. In approaching LOW training from a legal perspective, AR 350-1 places the onus on lawyers not where it should be—on leaders. This is certainly not a new phenomenon, for example rules of engagement (ROE) are the commander’s rules yet they are included in the legal annex to operations orders which then perpetuates the misconception of ROE as law. With LOW training, this burden shifting is more problematic but arguably easier to remedy.

That the mandated training is to be “commensurate with [ ] duties and responsibilities” is reasonable enough. But what about experience and particularly combat experience level?

Do we think that soldiers internalize and apply the law of war the same way during their first deployment as they do during their fifth deployment years later? Shouldn’t the amount and type of participants’ combat experience factor into the training?

Finally, the mandated requirements’ focus on The Soldiers Rules is misplaced. These rules, while a good start for entry level soldiers, are not particularly helpful in preparing to fight non-state actors who do not wear uniforms and operate in urban areas. The Soldiers Rules are framed in binary terms. They contain clear and unambiguous right answers. Part of the underlying training challenge is that much of the LOW is predicated on the contextual reasonableness of decisions made under stressful circumstances and with incomplete information. How positive is your positive identification of a legitimate target? What constitutes humane treatment? How do you evaluate and compare military advantage and collateral damage and determine the point an attack would be disproportionate?

The variability or indeterminacy within the LOW requires that soldiers “be able to confront the absence of ‘right’ answers and understand that they may not always be able to resolve the dilemma, solve the problem, or ‘do the right thing.’” Similarly, given that in Iraq and Afghanistan, U.S. Army officers and NCOs have issued illegal orders—and those orders were carried out—something is missing from the Army’s LOW training. As one commentator stated, “[i]f you want soldiers to disobey orders to throw [detainees] into a river, then it would make sense to create scenarios in which soldiers on field exercises are ordered to throw [detainees] into a river. Their responses can then be determined, lessons learnt and the correct behavior taught.”

Suggestions Moving Forward

This post does not claim that there hasn’t been effective LOW training in the Army since 9/11. Of course there has. That training was most likely the result of unit leaders collaborating with judge advocates to identify training modalities appropriate for a unit given its mission and the quantity and type of its members’ combat experience.

But effective training should not be dependent on a variable—the personalities of transitory unit leaders and judge advocates. The Army’s mandatory training requirements should set the conditions for standardized effective training. It is objectively unreasonable to suggest that over the last nineteen years the Army has developed different, and hopefully better, ways of doing virtually everything associated with combat operations, yet learned nothing as to how to improve LOW training. This is particularly so given the battlefield ethics training program.

For its part, the Army should consider revising the mandated LOW training requirement.  Changes which should be considered include:

• Requiring that unit leaders, working with a judge advocate or paralegal, conduct Level B training. The unit leader should have the primary responsibility. The role of the judge advocate or paralegal should be the exception and be limited to answering technical legal questions. It should come as a blinding flash of the obvious that soldiers, particularly combat arms soldiers with combat experience, are likely to be more receptive to a message delivered by one of their own, someone who intimately understands, and shares, the same risks. Prioritizing unit leaders as trainers also reinforces the linkage between compliance with the law of war, good order, and discipline and mission accomplishment.
• Incorporate the type and amount of unit members’ combat experience into the training.
• Developing law of war surveys to be administered during professional military education.

The surveys would contain questions related to combat operations and provide a snapshot of soldier attitudes towards law of war compliance. The surveys could collect non personally identifying information—including years of service, rank, military occupational specialty, number of deployments, whether the soldier had participated in detention operations, been wounded, and whether, while deployed, a member of their unit was seriously wounded or killed. Soldier attitudes and how they change over time could provide useful information for both evaluating the efficacy of the LOW training and alerting the Army as to when changes to law of war training should be considered.

Conclusion

That the Army’s mandated LOW training remains static and lacks measures of effectiveness risks fostering a perception that Army leadership doesn’t view preventing law of war violations as a priority. It leaves the Army vulnerable to the contention that what differentiates programs with measures of effectiveness from those without is that there is command interest or focus on the former. The U.S. Army is among the world’s leaders in operationalizing the law. But the Army is needlessly providing ammunition to its critics. If the Army cannot explain whether mandated LOW training is effective at preventing law of war violations it plays into misperceptions of the military and its commitment to the rule of law.

In the end, while Army leaders should be troubled by their inability to articulate the efficacy of the LOW training program at preventing LOW violations, perhaps even more problematic is that no one is asking the question.

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Chris Jenks is an Associate Professor of law at the SMU Dedman School of Law in Dallas, Texas and a research fellow at the Program on the Regulation of Emerging Military Technology in Australia. He wrote this post in his personal capacity and the post does not reflect the official positions of the Department of the Army or the Department of Defense.

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* In the interests of transparency/full disclosure, from 2017–2018 Professor Jenks served as the Special Counsel to the General Counsel for the Department of Defense. In that capacity, Professor Jenks attended DoD Law of War Working Group meetings and provided input on the then ongoing revisions to the Directive. Other than the general references to the revisions being a multi-year process involving a number of different DoD offices, this post is based on publicly available information.