charles hb garraway - training, the why and the wherefores

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Training:

T h e W h y s a n d

W h e r e for e s * / B Y C ^ ^ E S H B

a conference dedica ted to Interna tional Justice, War

Crimes and Terrorism: Th e US Record, it is intrigu ing to see the

subject of training placed so high on the agenda. And

yet

I would

suggest that the organizers have shown a degree of shrewdness

here.

We all agree that prevention is better than cure and it is

in the area of training that m uch of the preventative work is don e

in this field. If we want our troops to Fight it Right, then we

must teach them what is right. I am conscious that I speak as an

outsider in terms of the United States record and I therefore do

no t inten d to address that— except to say that I consider it second

to no ne . Others can com m ent on the detail. I wish to look at why

we train.

First, and most obviously, it is the law. As far back as 1899, Arti-

cle 1 of Hague Convention II with Respect to the Laws and Cus-

toms of War on Land stated:

The High Contracting Parties shall issue instructions to

their armed forces which shall be in conformity with the

Regulations respecting the laws and customs of war on

land, annexed to the present Convention.

Similar wording can be found in Hagu e C onvention V of 1907.

This

w s

mainly understood at the time to deal with m ilitary man-



9 5 0 S O C I A L R E S E A R C H

uals and, as with so many of these provisions, received limited

compliance. The Uni ted Kingdom and the Uni ted States had

manuals by the outbreak of the First World War, but even today

few have followed. It is as a result of this failure tha t the Inte rna -

t ional Committee of the Red Cross (ICRC) has now published i ts

mode l manua l . ight t

Right

to which I referred obliquely earlier.

Manuals, however, are only a small part of the solution. Book-

shelves are full of unread manuals. A manual is only an aid to

instruction an d so Article 127 of the Th ird Geneva Co nven tion

(1949) went further:

The High Contract ing Part ies undertake, in t ime of peace

as in tim e of war, to dissem inate the text of the p re se nt Con -

vention as widely as possible in their respective countries

and, in part icular, to include the study thereof in their pro-

grammes of militar) ' and, if possible, civil instinction, so

that the pr inciples thereof may become known to thei r

armed forces and to the entire populat ion.^

Merely to say that the law requires training is, in my view, not

enough. I would like to look again at the text of Article 127 and

to draw on e word from it: principles. T he Geneva Con ventions

alone contain 429 detai led art icles. One cannot expect the aver-

age soldier (if th er e is such a thing ) to read , m ark , lea rn a nd

inwardly digest all of tha t. However, he o r she does ne ed to know

those parts that are of direct relevance to the task al located, and

the pr inciples that l ie be hin d them .

I think that the word principle is im po rta nt he re becau se i t

impl ies more than rote learning, more than manuals . I t impl ies

an ethos, a philosophical outlook, and i t is here that t raining

comes into its own. I recall meeting an African officer a few years

ago who had been detai led to take his unit to Somalia as part of

the Uni ted Nat ions peacekeeping force there . He had never



TRAINING: THE WHYS AND WH EREFORES 95 1

Law at San Remo, Italy, at one of the military courses held there

to teach officers about the law of armed confiict. After three days

he came up and told me the story, and added, "I'm glad some-

body has written down what is right "

But recent events show to us all too clearly that it is insufficient

to rely on an understanding of "what is right." And yet in many

Western countries there is still a belief that our forces do inher-

endy know "what is right" and will do it. We look at the atrocities

carried out in the former Yugoslavia and in Rwanda and arro-

gantly say that it could not happen to our people. But it can;

maybe no t on th e same scale, bu t confiict is a harsh env ironm ent.

It can b ring o ut the best in people, bu t also the worst. Th e Amer-

ican military jur ist

W

Hays Parks often refers to My Lai as Amer-

ica's "wake-up call." The Canadians (and others) had their

wake-up call in Somalia, which eerily occurred 25 years to the day

after y Lai. Both the United States and C anada took the oppor-

tunity to revamp completely their law of armed conflict training

program s. Oth er states, including my

OV\TI,

still treat such training

as low priority' on the basis that our soldiers will instinctively do

"what is right." I wish I could share the ir optimism.

This attitude is refiected in the nature of the training under-

taken. In many countries, law of armed confiict is taught as a

stand-alone subject. The p oo r instructor is usually given th e worst

time for the class—when students are tired, distracted, or other-

wise disinterested. The very word "law" is an instant turn off for

most soldiers. In the United Kingdom, we have an annual train-

ing requ irem ent for every soldier to attend a 45-minute period on

the law of armed conflict. This normally consists of a slide show

or video shown by a unit officer or noncom missioned officer who

probably knows little more than the soldiers themselves. The

period ends, the unit has the tick in the box on its training objec-

tives, and the subject is not mentioned again until the following

year. The effect of that, I would suggest, is to turn soldiers off the



952 SOCIAL RESEARCH

lege, both ju n io r and senior divisions. However, this too is limited.

It is only right to state that law of armed conflict training within

the armed forces of the United Kingdom as a whole is currendy

the subject of a major review.

Training must be effecdve—othenvise, why do it? This in itself

raises questions. How do you assess the effecdveness of training?

You are being asked to prove a negative I was once asked by an

ICRC representadve when we were discussing the training con-

ducted at San Remo, "But how many lives do you save?" The

implicadon was that the work he did in the field during a conflict

was more effective. I could not counter this, since it is impossible

to say that crimes have

ot

been committed for a particular rea-

son. Training is jus t one part in the creado n of this ethos I speak

of and it is the e thos that saves lives—both now and in the future.

I will trv' to explain what I mean by that.

We all saw the carnage in Bosnia and the h atre d that now exists

throughout former Yugoslavia among different ethnic groups.

The atrocides were allegedly the result of deliberate policy deci-

sions taken at the highest levels of government. I say "allegedly"

since Yugoslav President Slobodan Milosevic is sdll on trial and

even he is end ded to the presum pdon of innocenc e. But for these

purposes, I think w can accept the premise. Th ere was therefore

an ethos antagonisdc to the basic principles of humanity con-

tained in the law of armed conflict. The result was unbridled

ferocity and a legacy of hatred that will take generations to over-

come. How many more thousands must die before Serb, Croat,

and Muslim can live again togethe r in peace? I stress "together"—

not in ethnically cleansed regions.



TRA INING: TH E WHYS AND W^HEREFORES 9 5 3

were made at the highest levels of government. These statements

were carried down the command chain in orders and instruc-

tions. An illustration of this being carried out in practice is in the

agreement between the United Kingdom and the Argentine to

establish a neutral box at sea to the north of the islands where

hospital ships from both sides could be positioned and wounded

exchanged (seeju no d, 1984: 26). H ere

lives

were definitely saved.

I am not saving for one m om ent th at everything in«the gard en was

lovely and that the confiict w s free of all illegality. I am sure that

there were breaches of the rules on both sides; hand-to-hand

combat does not deal in niceties. Nevertheless, if such actions

were even suggested, they were condemned and, indeed, even

today, allegations of inappropriate acti\ity are still investigated

and action taken. The end result is that, less than a generation

later, Argentines and British can serve together side by side on

UN operations. The h atred based on ethnicit)' is simply not the re.

W'e are all taught at an early stage tha t war is no thing bu t the

con tinua tion of policy with other means (Clausewitz, 1984

[1832], Book 8, Chapter 6). If this is correct, the art of warfare

goes beyond the simple task of winning a conflict: it goes to set-

ting the basis for wnning the peace. This is a simple but often

overlooked premise. For those who serve in the armed forces of

dem ocracies we should never lose sight of the fact tha t we are sub-

servient to our civilian masters. The military is only part of the

solution, and in many cases only a small part. It is how the peace

is hand led that will decide the ultimate success. If the confiict has

been conducted in a manner so that the opposing forces have

mutual respect, then the peace will be easier to establish. Where

the conduct of the campaign is marred by brutalit)' and mutual

loathing, the peace will be fragile and is unlikely to be long last-

ing. How do we look upon our enemy? K we see them as human

beings, like ourselves, doin g their duty as we are, th en we are less

likely to treat them in a manner contrary' to the rules. If, on the




have be en on e of the lessons that cam e ou t of Vietnam in gene ral ,

an d My Lai in part icular (Addicott and H ud son , 1993: 165).

Training helps here but again it only goes so far. It is the whole

ethos that needs to be cult ivated.

If we want to develop an ethos, I would suggest that the aim

should be to make act ing by the rules insdnctive. For this to hap-

pen, the law of armed conflict needs to be seen not as an overlay

on o ther t ra in ing, bu t as an essent ia l un de rpi nn ing elem ent . I t

needs to become an integral part of ordinar)- mil i tary training,

not some adjunct. It is not difficult because most of the law of

armed conflict is military common sense. If there is no military

advantag e in destroying an object, why waste t ime a nd resource s

in attack ing it? You do no t n ee d to be told tha t it is unlawful to

at tack i t , even though i t wil l be. Medical personnel are taught to

treat all wounded and sick on the basis of medical priority^ That

is medical ethics—and also reflects the law of armed conflict (see

Article 12, Geneva C on ve nd on I, 1949).

It is im po rta nt that th e law does rem ain l inked to mil i tary com-

mon sense. An absolute rule against putdng civilians at risk is

impossible and has never been the law. The law reflects realit}- in

tha t it calls for a balan ce to be struck be twee n the a ntic ipate d inci-

dental death or injur} to civilians and the anticipated military-

advantage. It is known as the rule of proportionalit) and is a fun-

damental principle of the law of armed confl ict (see of Protocol

Ad didon al to the Geneva Co nven dons [Protocol I ] , Article

57(2) (b) , 1977) .

I am reminded of a s i tuadon in the Persian Gulf War. I was at

ou r priso ner of war cam p short ly before the land offensive beg an.

At that t ime we had one pr isoner who had been captured in an

ope rado n b eh in d enem y lines and bro ugh t back to the camp. He

was held in a single tent with his own guard rather than in the

empty compounds. Suddenly we had warning of a Scud missi le



TRAINING: TH E WHYS AND WH EREFORES 95 5

he pu t it to me later, it

w s

what his training led h im to believe was

right. I do not think he was aware of the specific p ro\isions of the

third Geneva Convention requiring a detaining power to protect

prisoners against the effects of hostilities (see Geneva Conven tion

III, Article 13, 1949).

Th ere is a further danger in n ot integrating law of armed con-

fiict train ing : false ideas will develop. It is surprising how line offi-

cers continually think that the law restricts their operations when

often that belief is wholly incorrect. On an exercise once, when I

was serving in Belgium at Supreme Headquarters, Allied Powers

Europe, I advised that it was lawful to attack a particular object.

The exercise directing staff came down to my office and told me

that it w s not. I aisked them for their legal authority and they had

none. The directing staff had simply decided that it was a pro-

tected object and had no t sought any advice. Even the operational

planners were surprised (though delighted) by my advice. Had

there not been a lawyer on the exercise, the belief that that par-

ticular object was protected would have taken root and probably

spread by analogy to other similar objects.

This can also work the other way where the operational staff

genuinely believes something to be a legitimate target though a

lawyer would (or should) know that it is not. In many countries,

military lawyers are thin on the ground—or even nonexistent—

and it is therefore rare for them to be included in exercise plan-

ning or exercise play. Again the United States stands out here as

an honorable exception. Some might say that the United States

military is over-lawyered, b ut I have yet to find a lawyer who w ould

agree with that.

This brings me back to the idea of an ethos. The lawyer is




mander wants a disciplined force; anything else is not an army: it

is a mob, a rabble and as dangerous to its own side as it is to the

enemy. A disciplined force will follow its leader; a rabble is as

likely to shoot him in the backl Discipline and leadership are

tested to the utmost in the crucible of conflict. History shows that

leaders can be good or bad. If w want to instill in our soldiers an

ethos of doing what is right, of moral integrity' and obedience to

the law, then it is to the commanders that we must look. Unless

the commander is prepared to take his or her responsibil i t ies in

this field seriously, there is li t t le chance of anyone else doing so.

I recall an incident in the Bridsh Army of the Rhine in Ger-

many short ly after the collapse of the Berl in Wall . A sergeant

had been asked to conduct the annual t ra in ing to tes t our defen-

sive nuclear, biological, and chemical kit . It was made clear by

se nio r officers w ithin th e division in wh ich I was serving th at

they considered this to have l i t t le relevance in the l ight of the

end of the Cold War and they would not be at tending. The

proverbial one man and his dog turned up. Six months la ter , my

division was detailed to move to the Gulf to assist in the restora-

don of Kuwait i sovereignty. The same training was again

arranged. This t ime ever\ 'body was there—with the senior offi-

cers sitting in the front row.

The lesson I learn from this is that unless the top brass are con-

vinced— and I m ean convinced — you are wasdng your dme . A

relu ctan t acc eptan ce that we shou ld fit som ething legal into

training is insufficient . Commanders must bel ieve that the law

can be their ally and friend. At San Remo, the insdtute also pro-

vides courses for trainers in which they seek to assist officers in

designing courses that will be of use in their partictilar situadon.

An Asian officer on one of these courses illustrated my point per-

fect ly W^en asked for whom he wished to design a course, he



TRA INING: TH E WHYS AND W HEREFOR ES 95 7

I do not suggest that we should go that far but we do need to

ensure that the impetus for change comes from the top. I fear

that too often the lawyer is seen as an obstacle—the Abominable

No Man—rather than as an asset. Times are changing, but

slowly. In the United Kingdom, our increased emphasis on peace

supp ort operations w here we frequently find ourselves op erating

on the bo rderlines of confiict has led to increased interest in legal

matters. Com manders have realized that if we presen t ourselves as

seeking to upho ld the

law,

then

we

must comply with tha t

l w

our-

selves. Even an allegation can cause immense damage to the mis-

sion. In most operational theatres now the legal adviser and the

political adviser have equal standing, v«th direct access to the

commander.

The need for an ethos is also refiected in the changing nature

of confiict. In the two examples I gave earlier, Bosnia and the

Falklands, we are looking at two different types of confiict. In the

latter, we were dealing with trained armed forces under responsi-

ble command. In the former, we were generally dealing with mili-

tias and irregular forces. Furthermore, those regular forces who

were involved had often not received up-to-date training.

I have been told that the former Yugoslavia was viewed as a

model of how to comply with the peacetime requirements of the

law of armed confiict. WTiere did it all go wrong? In the crucible

of confiict, particularly a confiict based on ethnicity rather than

any political factor, head knowledge gave way to em otion . Hatred

took over. What price training then? Unless head knowledge is

taken further and converted into an ethos, a belief in the right-

ness of a course of conduct, that head knowledge will not prove

strong enough to stand against other pressures. You may know



958 SOCIAL RESEARCH

tion. This is a similar problem and often the two are interlinked .

If the oth er side does not play by the rules, it is ha rd to do so your-

self—unless you have a firm belief in those rules n ot ju st as rules

bu t as a right course of con duct.

Asymmetric warfare, as it is now called, places its own stresses

on personal conduct. W here one side is so powerful that it cannot

be engaged by conventional means, the response is unconven-

tioned. Our response to unconventional warfare is often emo-

tional and there is a danger that in such response we will throw'

the baby out with the bathwater. We may all nod sagely when

somebody says that those who adopt unconventional methods

have no right to the benefits extended to those who remain con-

ventional. To an extent that is right. Criminal acts remain crimi-

nal.

However, we have moved on from the days when persons

were declared outlaws and were deprived of all rights. Even

criminals have rights—some would say too many—but if w seek

to remove those rights where it does no t suit us, we demean our-

selves. If w wish to uphold the law, we cannot pick and choose.

Th e same poin t was made forcibly by Jak ob Kellenberger, the

president of the International Com mittee of the Red Cross, in his

speech to the 58th annual session of the United Nations Com-

mission on Human Rights in Geneva on March 26, 2002:

One line of reasoning appears to suggest that certain indi-

viduals are undeserv ing of the pro tection of the law because

of the heinous nature of their criminal acts. Such assump-

tions should be rejected. Human beings, by virtue of being

hum an, are entided to the protection of the

law.

Just as no

state, group or individual can place themselves above the

law, so also, no person can be placed outside the law.

But if the law is playing such an im po rtan t ro le now, why do we

not need to teach it as a separate subject? This brings us back to



TR AININ G: TH E W^HYS AND W^HEREFORES 95 9

to know what to do . It is similar with th e law. We all know tha t we

are required to obey speed limits but how many of us can quote

the legal authority for that? When training soldiers, law need

hardly be m ention ed, except as the stick that lies behin d it all.

Hays Parks describes how in 1977, he and Colonel Jim Burger

attended a meeting in Warsaw under the auspices of the Interna-

tional Committee of the Red Cross to consider law of armed con-

fiict dissemination. They were presented with 13 or 14 key rules

that it was felt a soldier should know. They narrowed it down to

10 and then, not wishing to compete with the Ten Command-

ments, reduc ed them to 9. In the U nited Kingdom, we have done

the same but, considering that if the ^AJmighty required 10 it

would be arrogant of us to settle for less, we drafted 11. ̂ Similar

rules appear in many publications but they never mention the

law. They are suprem ely practical. To give an exam ple: Treat all

civilians humanely. Simple and to the po int. These are age-old

principles that in many cases have long preceded any law of

armed confiict treat).^

Officers need to know more—^but they still do not need to be

lawyers. Article 82 of Additional Protocol I, 1977, to the Geneva

Conventions, provides, sensibly:

Th e High Contrac ting Parties at all times, and th e Parties to

the confiict in time of armed confiict, shall ensu re that legal

advisers are available, when necessary, to advise military

commanders at the appropriate level on the application of

the Conventions and this Protocol and on the appropriate

instruction to be given to the armed forces on this subject.

The key wor s he re may be when necessar)' and at the appro-

priate level. Lawyers can no t be everywhere. Th e soldier in the

front line, or even the officer there, will not have his own persona l

legal adviser at his side. I hope the day never comes when he has

to .

It follows that all service personnel, of whatever rank, must



960 SOCIAL RESEARCH

the battlefield will suffice. I was telephoned in my office a few

years ago by a senior diplomat from a foreign country' whom I had

the pleasure of teaching on a course. He was ringing about a

recendy published UN document. He told me that I had taught

him enough to know that something was wrong, but he did not

know what. He was right; there was som ething wrong. The la m er

and the com m ander are a team working together. A comm ander

who goes into an operational environm ent w ithout access to legal

advice is like a man wandering through a forest at night without

a guide. He may get throug h safely. He may also get lost or, worse

still, fall into one of the many traps that lie within the forest just

off the main path.

A lawyer who seeks to advise without un derstand ing the opera-

tional constraints is equally dangerous. It is often said in civilian

life that a lawyer who does not know his client's business has no

right to advise. The same is true in military life and, indeed, it is

this advantage that, I would suggest, gives the militar)' lawyer the

edge over his civilian counterpart within government.

I may appear to have moved some way from training, but I

think not. One cannot look at this subject in penny packets. It

requires a holistic approach. First, there miast be an ethos—an

ethos of belief in and adherence to the rule of law. That ethos

must be from the top down, which brings us to leadership. Good

leadership incorporates teamwork and ensures that each member

of the team is trained and confident in the jo b that he or she has

to do. The level of training, and the nature of that training, will

depend on individual responsibilities. The team must work as a

unit and that means there is no roo m for any

us

and themi atti-



T R A I N I N G : T H E W^HYS A N D W H E R E F O R E S 9 6 1

is right—not because it is the law, but because it is the right thing

to do, morally, ethically, tactically and, last, legally.

Notes

'Both the British and American manuals have been subject to peri-

odic upd ating over the

years.

The last edition of the British manual. The

Law of

War

on Land Man ual of Military Law Part // / (195 8), is be ing sub -

stantially revised to reflect current law and the new edition is scheduled

to be published w ithin the next 12 months.

^Similar provisions can be found in the Article 47 of Geneva Conven-

tion I, Article 48 of Geneva Convention II, and Article 144 of Geneva

Convendon I\'. Article 83 of the 1977 Additional Protoco l I is in similar

terms.

*rhese can be found in the British Army pamphlet A Soldier's Guide

to the Law of Arm ed Conflict (Army Code 71130), ann ex B.

•*They reflect, for example, provisions from the Lieber Code of 1863

(US Army General O rder No. 100).

References

Addicott, Major Jeffrey F., and H udson, Jr., Major William A. The

Twenty-fifth Anniversarv' of My Lai: A Time to Inculcate the

Lessons. Military Law Review 139 (1993): 153-185.

Clausewitz, Karl von .

Vom Kriege

(On W ar). Trans. Michael Hovs'ard and

Peter Paret. Princeton: Princeton University Press, 1984 [1832].

Geneva Convention I for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field, 1949.

Geneva Convention II for the Amelioration of the Condition of

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,

1949.

Geneva Convention III Relative to the Treatment of Prisoners of War,

1949.

Geneva Convention I\^ Relative to the Protection of Civilian Persons in

Time of War 1949.

Hague Convention II Respecting the Laws and Customs of War on

Land,1899.

Hague Convention TV Respecting the Laws and Customs of War, 1907.



962 SOCIAL RESEARCH

Junod, Sylvie-Stoyanka.

rotectimi

of

the Victims

of Armed

Conflict:

Falkland

Malvmas Islands 1982. Geneva: ICRC, 1984.

Protocol Additional to the Geneva Gonventions of 12 August 1949, and

Relating to the Protection of Victims of International Armed Gon-

flicts Protocol I) , 1977.

charles hb garraway - training, the why and the wherefores

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