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I. INTRODUCTION
In early , two days after the Security Council-imposed deadline for Iraq to
withdraw its forces from Kuwait had passed,
a U.S.-led coalition began a mas-
sive air campaign against Saddam Hussein’s forces. The campaign had unprec-
edented intensity and its effects were devastating: Newsweek recounted that six
weeks of precision bombing “reduced the Iraqi Army to a brainless, stumbling
hulk.” The coalition followed up with a land campaign, which in less than
seventy-two hours forced Iraqi troops to begin to withdraw from Kuwait City.
During this retreat, coalition forces continued to in ict such heavy casualties
on the Iraqi army that two northbound roads out of Kuwait attracted the col-
lective nickname “Highway of Death.” According to William Polk, a notable
American foreign policy expert, “nothing on that scale of massacre had occurred
in the Middle East wars since Hulagu Khan took Baghdad [in ].”
In a meeting at the White House on February, having briefed President
George H. W. Bush on the results of the military action, General Colin Powell,
the chairman of the Joint Chiefs of Staff, argued against pressing the attack
further. The president took the advice and declared a cease- re.
It is interesting to consider General Powell’s motives for giving this advice.
On the one hand, he and rest of the U.S. military leadership were mindful of
5
Law and Honor: Normative Pluralism in the Regulation
of Military Conduct
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I am grateful to Touko Piiparinen and Gerry Simpson for helpful comments on an earlier draft.
The responsibility for the
nal text, however, is mine alone.
See SC Res. ( November ), operative ¶ .
See Douglas Waller and John Barry , ‘The Day We Stopped the War’ , Newsweek , January
, –.
See William R. Polk , Unders tanding Iraq ( New York : Harper Perennial , ), at . According
to contemporary estimates, the Mongol armies killed some eight hundred thousand towns-
people. Ibid., at .
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the limited mandate that had been given to the coalition. As General Norman
Schwarzkopf, the commander of Operation Desert Storm, expressed it:
We could have invaded Iraq easily. . . . [But] that’s not what we were asked to
do. That was not our military mission. Our military mission was to kick Iraq
out of Kuwait, and that’s exactly what we did.
On the other hand, according to several sources, General Powell was repulsed
by the images of the Highway of Death, where Iraqis were killed by the thou-
sand. He did not wish the American public to see U.S. soldiers engaged in
a turkey shoot: according to Powell’s own recollection, he told the president,
“We don’t want to be seen as killing for the sake of killing.”
There are slightly con icting accounts of how General Powell put the mat-
ter to the president. According to Newsweek , Powell had said that to engage the
retreating Iraqis further would have been “un-American and unchivalrous.”
A
biographer writes that Powell considered killing that had little to do with the
outcome of a war that had already been won as “ungallant.”
In his autobiog-
raphy, Powell does not recount the conversation in exactly those terms, but he
does note that “as a professional soldier, [he] honored the warrior’s code” by
advising the president to end the hostilities.
II. HONOR AND LAW
This example – and there are no doubt many others – illustrates that pro-
fessional soldiers perceive normative limits to their conduct beyond law and
political expediency. The law of armed con ict, which is the usual normative
framework for evaluating the use of force in war, makes no special provision
for the withdrawing enemy. While enemy troops who have surrendered are
immune from attack,
enemy combatants in retreat are, from a legal view-
point, fair game. Yet, as the end of the Gulf War suggests, there is something in
the ethos of a professional soldier that can render such an attack distasteful.
Cited in Howard Means , Colin Powell: Soldier/Statesman – Statesman/Soldier ( New York :
Donald I. Fine , ), at .
Ibid., at (citing David Hackworth, a retired highly decorated U.S. of cer and military com-
mentator); Karen DeYoung , Soldier: The Life of Colin Powell ( New York : Knopf , ), at
(citing Joseph E. Perisco, coauthor of Powell’s autobiography).
See Colin L. Powell , My American Journey ( New York : Random House , ), at .
See Waller and Barry, ‘The Day We Stopped the War’.
See DeYoung, Soldier , at .
See Powell, My American Journey , at .
See Protocol Additional to the Geneva Conventions of August , and Relating to the
Protection of Victims of International Armed Con
icts, signed at Geneva, June , in
force July , U.N.T.S. (AP I), art. ()(b).
Law and Honor
According to one account, General Powell referred to the dictates of
“chivalry.” That would not be altogether surprising, as even contemporary
military publications make occasional use of the term.
However, chivalry is
a somewhat problematic notion: it is intimately linked to the Middle Ages,
when European battle elds were dominated by knights. Hence, the concept
has particular geocultural overtones and may sound anachronistic to the
modern observer. To complicate matters further, chivalry has certain con-
notations of religiosity, especially as medieval knights were crusaders.
And
nally, chivalry entails an aspect of (benevolent) sexism,
which is illus-
trated by the countless troubadouresque stories of faithful knights and fair
ladies.
But military codes of conduct are a universal and timeless phenomenon.
Michael Ignatieff notes that “while such codes vary from culture to culture,
they seem to exist in all cultures, and their common features are among the
oldest artifacts of human morality.”
This view enjoys considerable support in
the military community and is, for example, approvingly quoted in the leader-
ship and ethics handbook of the Royal Australian Navy.
In addition to the
code of chivalry, Ignatieff refers to Bushid ō (“the Way of the Warrior”), the
ethical code of conduct of the samurai.
The common feature of both of
these historical examples of martial codes is that “as ethical systems, they were
primarily concerned with establishing the rules of combat and de ning the
system of moral etiquette by which warriors judged themselves to be worthy of
mutual respect.”
Unsurprisingly, then, some commentators prefer to speak of
a “code of the warrior,”
with the word “warrior” having the connotation of a
combatant with an elevated moral standing.
See notes – and accompanying text.
See G. I. A. D. Draper , ‘The Interaction of Christianity and Chivalry in the Historical
Development of the Law of War’ ( ) International Review of the Red Cross –.
See Gerhard K ü mmel , ‘Chivalry in the Military’, in Gerhard K ü mmel and Helena
Carreiras (eds), Women in the Military and in Armed Con ict ( Wiesbaden : VS Verlag f ü r
Sozialwissenschaften , ) – , especially at –; Ren é Moelker and Gerhard
K ü mmel , ‘Chivalry and Codes of Conduct: Can the Virtue of Chivalry Epitomize Guidelines
for Interpersonal Conduct?’ ( ) Journal of Military Ethics –, at – .
See Michael Ignatieff , The Warr ior’s Honor: Ethnic War and the Modern Consc ience ( London :
Chatto & Windus , ), at – ; see also Shannon E. French , The Code of the Warrior:
Exploring Warrior Values Past and Present ( Lanham, MD : Rowman & Little eld , ), at
: “Warrior cultures throughout history and from diverse regions around the globe have con-
structed codes of behaviour based on their own image of the ideal warrior.”
See Royal Australian Navy , The Royal Australian Navy Leadership Ethic (June ), at ¶
. .
See Ignatieff, Warrior’s Honor , at .
Ibid., at .
See French, Code of the Warrior .
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A more technical designation for a military code of conduct would be
“professional ethics.” After all, many established professions – most obviously
perhaps doctors and lawyers – subscribe to some sort of an ethical code. In the
military context it therefore makes sense to speak of military ethics. But for the
armed forces ethics appears to have a special signi cance: in a sense, it de nes
the profession. On an individual level, the subscription to certain professional
moral precepts distinguishes soldiers from murderers.
In fact, as Shannon
French, a scholar of military ethics, argues, “the code is a kind of moral and
psychological armor that protects the warrior from becoming a monster in his
or her own eyes.”
And, as Ignatieff points out, on the level of warfare as a col-
lective activity, a code of military conduct separates warfare from slaughter.
In many instances, professional codes of conduct can be reduced to a small
number of fundamental principles or core ideas. At the risk of gross oversim-
pli cation, one of the central tenets of medical ethics can perhaps be captured
by the injunction “Strive to help, but above all, do no harm.”
(In the con-
temporary discourse this exhortation sadly loses some of its poignancy when
it is referred to as the “principles of bene cence and nonmale cence.”) For
lawyers, one of the keywords appears to be “integrity” – both the personal
integrity of the individual legal professional and procedural integrity of the
judicial process.
When it comes to the professional virtues of military personnel, no notion
appears to make a more frequent and pervasive appearance than “honor.”
Soldiers must conduct themselves honorably in order to earn the respect of
their fellow professionals, and indeed that of the public at large. Thus, honor
is a complex notion. It is individual and private in that it relates to one’s
See ibid., at –.
Ibid., at . The same has been said about the law of armed con ict. See Mark J. Osiel , The
End of Reciprocity: Terror, Torture, and the Law of War ( Cambridge University Press , ),
at : “It is humanitarian law that draws the line between murder and legitimate killing in
war, and for this reason professional soldiers have rarely been dismissive of it. Such norms help
constitute their very identity as law abiding, even for of cers otherwise sceptical or airy claims
on them by ‘the international community.’”
See Ignatieff, Warrior’s Honor , at : “Such codes [of warrior’s honor] may have been honored
as often in the breach as in the observance, but without them war is not war – it is no more
than slaughter.”
For a discussion of the latter part of this maxim, see Cedric M. Smith , ‘Origin and Uses of
Primum Non Nocere – Above All, Do No Harm!’ ( ) Journal of Clinical Pharmacology
–.
See, e.g., Principles of Professionalism for Delaware Lawyers ( November ), ¶ A():
“Personal integrity is the most important quality in a lawyer.” See also Tim Dare , ‘Philosophical
Legal Ethics and Personal Integrity’ ( ) University of Toronto Law Journal –.
See Paul Robinson , Military Honour and the Conduct of War: From Ancient Greece to Iraq
( London : Routledge , ) .
Law and Honor
professional judgment and personal merit.
But it is public as it is premised
on a collective sense of right and wrong
or a community’s ideals of conduct
and is supported by public recognition for living up to that code.
Despite – or
perhaps because of – this complexity the code of ethics of a military profes-
sional appears to be almost synonymous with a “code of honor.”
As is the case with other systems of ethics, the code of honor has a com-
plicated relationship with law. Ideally, the legal and ethical regulations
should mirror each other, and, fortunately, that is often the case. There is
broad agreement that the modern law of armed con ict is in large parts a
codi cation of moral principles emanating from within the military profes-
sion, in particular the medieval code of chivalry.
Accordingly, there exists
a substantive element of mutual reinforcement between the two normative
systems.
But in some instances that may not be the case. The preceding example of
General Powell’s preferring not to attack enemy troops that he was perfectly
entitled to attack under the law of armed con ict demonstrates, as pointed
out by Mark Osiel, that “in many situations, the internal morality of soldier-
ing prove[s] more restrictive and humanitarian than international law.”
The ongoing “global war on terror” has forced some military professionals
to face this potential problem squarely. For example, Rear Admiral Michael
Lohr, the Judge Advocate General of the U.S. Navy, expressed his opposition
to coercive interrogation techniques approved of by the Bush administration
See Richard Adams, ‘Honour’ (Royal Australian Navy, undated), .../Honour:
“Honour is . . . a complex idea, which embraces notions of professional judgment and personal
merit in addition to [a] collective sense of right and wrong.”
ibid.
See Osiel, End of Reciprocity , at , citing Sharon Krause , Liberalism with Honor ( Harvard
University Press , ), at : “Honor is public in that it ent ails external recognition. Its require-
ments for conduct are re ected in codes of honor, enshrining a community’s ideals of conduct
for all members. Finally, honor is a quality of character. The last of these characteristics relates
to the preceding two in that it entails ‘the ambitious desire to live up to one’s code and to be
publicly recognized for doing so.’”
See, e.g., Edwin R. Micewski , ‘Military Morals and Societal Values: Military Virtue versus
Bureaucratic Reality’, in Edwin R. Micewski (ed.), Civil-Military A spects of Military Ethics
( Vienna : Austrian National Defense Academy , ), vol. i, –, at : “a large part of the
modern laws of war has developed simply as a codi cation and universalization of the customs
and conventions of vocational and professional soldiery”; Hubert M. Mader , ‘“Ritterlichkeit”:
Eine Basis des humanit ä ren Völkerrechts und ein Weg zu seiner Durchsetzung’ ( )
Tr u ppe n die n st –, at : “Es gibt wohl einige durchaus starke Anhaltspunkte daf ü r, den
Ehrenkodex des mittelalterlichen Rittertums zu den geistigen Wurzeln des heutigen human-
it ä ren V ö lkerrechtes zu z ä hlen . . . .”
See Mark J. Osiel , Obeying Orders: Atrocity, Military Discipline and the Law of War
( Piscataway, NJ : Transaction , ), at .
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by noting that “while technically legal, [they] are inconsistent with our most
fundamental values.”
Conversely, law and honor may con ict directly in that they may require
different and mutually incompatible conduct.
The best example – albeit a
historical one – is that of dueling. Between the sixteenth and nineteenth cen-
turies, dueling was a frequent means of settling disputes – which, one might
add, often related to obscure points of honor.
Duels began to fall into disfavor
in the early seventeenth century, but the practice was not completely eradi-
cated until the beginning of the twentieth century. From the eighteenth cen-
tury onward, duels were explicitly prohibited, rst by military laws and then by
civilian laws, but this prohibition proved exceedingly dif cult to enforce.
The
reason was that dueling formed a part of the code of honor of military of cers,
and a refusal to accept a challenge to duel automatically meant dishonor.
There are a number of ways in which law, having made inroads into areas
previously only covered by codes of honor, can try to reconcile itself with
these codes. One way, as already noted, has been for the law to replicate the
relevant rules of honorable military conduct. But a particularly interesting
phenomenon is that the law in some instances appears to refer to the code
of honor, without elucidating the content of that code. In what follows, I will
brie y consider this type of relationship between law and honor in the con-
text of both the (international) law of armed con ict and (national) military
disciplinary law.
This approach may at rst sight seem awkward. After all, this volume is
devoted to the relationships that international law has with other normative
orders. But the law of armed con ict as a distinct branch of international law
has its roots in the development of national military discipline. Many of the
international law rules on the conduct of warfare made their rst appearance in
a form recognizable to us in national military codes. For example, the Articles
of War decreed by King Gustavus Adolphus of Sweden in
and General
Orders No. drawn up by Professor Francis Lieber and promulgated by
See Michael F. Lohr, Working Group R ecommendations Relatin g to Interrogation of Detainees ,
Memorandum to the General Counsel of the Air Force ( February ), at ¶ .
See Arthur N. Gilbert , ‘Law and Honour among Eighteenth-Century British Army Of cers’
( ) Historical Jour nal –, at : “the honour code was often at odds with the law. . . .
Indeed, just as there was often no simple and honourable road to follow, military of cers
sometimes had to choose between the code and the law.”
See, e.g., ibid., at ff.
See, e.g., C. A. Harwell Wells , ‘The End of the Affair? Anti-Dueling Laws and Social Norms
in Antebellum America’
( ) Vanderbilt Law Review –, at .
Articles and Military Lawes to Be Observed in the Warres (Sweden) (Articles of Gustavus
Adolphus).
Law and Honor
President Abraham Lincoln in
both undoubtedly had a national char-
acter. Yet these documents are routinely cited as forerunners of the law of
armed con ict. Thus, even as the law of armed con ict has developed into a
subsystem of international law, it shares its roots and, ultimately, a part of its
ideology, with military disciplinary law more generally. Accordingly, I think
that it is quite appropriate to have a look at both legal regimes.
III. HONOR AND MILITARY DISCIPLINARY LAW
Military disciplinary law refers to the body of national law that proscribes cer-
tain conduct in the armed forces with the threat of penalties. In some states
one can distinguish between military criminal law (involving the most serious
offenses), and military disciplinary law in the narrow sense (encompassing
offenses and punishments falling below what would be deemed criminal).
However, in other states the line between the criminal and strictly disciplinary
side of military disciplinary law is unclear.
In any event, military law de nes a number of offenses that have no civilian
equivalent whatsoever. A good example is “absence without leave,”
colloqui-
ally known as “being AWOL.” In a nonmilitary setting, not showing up for
work would be a violation of a contract and, at most, subject to an adminis-
trative reprimand. However, in a military context such an act would directly
injure the legal interest of military effectiveness and thereby rise to the level
of an offense. Other military offenses have a civilian counterpart but gain a
particular signi cance in the military context. An example would be violence
against a superior of cer.
Such an act certainly offends against the legal
interest of bodily integrity, just like the civilian offense of assault. However,
the offense also entails an element of insubordination, which is detrimental to
the discipline of the armed forces.
A. Prejudicial and Discrediting Conduct
On top of the speci c military offenses just mentioned, military law of many
countries contains one or more catch-all clauses that render punishable acts
harming military effectiveness in some unspeci ed way. A provision of this sort
General Orders no. – Instructions for the Government of Armies of the United States in
the Field, April (U.S.).
See, e.g., Armed Forces Act (UK), c. (AFA), s. ; Uniform Code of Military Justice,
May (U.S.), Stat. , codi ed at U.S.C. §§ – (UCMJ), art. ; Defence
Force Discipline Act (Australia) (DFDA), s. .
See, e.g., AFA, s. ; UCMJ, art. ; DFDA, s. .
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is often called the “general article” or “the devil’s article” and deals with con-
duct “prejudicial to military discipline” or something along the same lines.
This type of an offense, like many other elements of contemporary sys-
tems of military justice, can be traced back to Roman military law, which
provided that “every disorder to the prejudice of general discipline is a
military offence, such as, for instance, the offense of laziness, or insolence,
or idleness.”
The previously mentioned Articles of War of Gustavus
Adolphus listed a number of different military offenses and nally made
punishable conduct not speci cally mentioned but “repugnant to Military
Discipline.” A similar provision was subsequently incorporated into the
military law of many states, including the eighteenth-century British and
American Articles of War,
through which they entered the military law tra-
dition of the English-speaking world.
The current British formulation of the general article can be found in sec-
tion of the Armed Forces Act : “A person subject to service law com-
mits an offence if he does an act that is prejudicial to good order and service
discipline.” In Canada, the National Defence Act contains very similar
language. A number of other states prefer a somewhat broader de nition.
For example, the general article in the U.S. Uniform Code of Military Justice
makes punishable not only “all disorders and neglects to the prejudice of good
order and discipline in the armed forces” but also “all conduct of a nature to
bring discredit upon the armed forces” when committed by service members.
Justinian, Digest , bk. XLIX, pt. , at ¶ , cited in James K. Gaynor , ‘Prejudicial and
Discreditable Military Conduct: A Critical Appraisal of the General Article’ ( ) Hastings
Law Journal –, at .
Articles of Gustavus Adolphus, art. : “Whatsoever is not contained in these Articles, and is
repugnant to Military Discipline, or whereby the miserable and innocent country may against
all right and reason be burdened withall, whatsoever offence nally shall be committed against
these orders, that shall severall Commanders make good, or see severally punished unlesse
themselves will stand bound to give further satisfaction for it.”
Cited in William Winthrop , Military Law and Precedents , nd ed. ( Washington, DC :
Government Printing Of ce , ), at , .
AFA, s. (). An omission is likewise punishable: s. (). The punishment for the offense can-
not exceed imprisonment for two years: s. (). This is rather similar to the earlier Army Act
(UK), c. , s. : “Any person subject to military law who is guilty, whether by any act or
omission or otherwise, of conduct to the prejudice of good order and military discipline shall,
on conviction by court-martial, be liable to imprisonment for a term not exceeding two years
or any less punishment provided by this Act.”
National Defence Act (Canada), c. N-, s. (): “Any act, conduct, disorder or neglect
to the prejudice of good order and discipline is an offence and every person convicted thereof
is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.”
UCMJ, art. . I have omitted here the third limb of the provision – “crimes and offenses not
capital” – which has the effect of incorporating civilian offenses into military law and making
them triable by court-martial.
Law and Honor
A general article in the Australian Defence Force Discipline Act similarly
provides that “[a] defence member is guilty of an offence if the member does
an act that is likely to prejudice the discipline of, or bring discredit on, the
Defence Force.”
These provisions are, of course, open ended, and necessarily so. In the
Federal Court of Australia, Justice Lockhart once noted that “it is impossible,
indeed unwise, to attempt any exhaustive de nition of the words employed”
in the general article.
Indeed, one cannot comprehensively enumerate the
kinds of conduct that prejudice good order and discipline. That said, the
Australian Defence Force Discipline Appeals Tribunal (DFDAT) has clari ed
that while a reference to “prejudicial conduct” is “concerned with the internal
organisation of the military forces and the maintenance of discipline therein,”
the “bringing discredit” clause “looks to the protection of the reputation” of
the armed forces.
As regards the intersection of unlawful and dishonorable conduct, it is par-
ticularly the latter clause that is interesting. It appears to invoke the public
dimension of honor – the public perception of an individual service member,
and by extension the entire armed force. Thus, the DFDAT has held that for
a conduct “to be likely to bring discredit,” the conduct must (i) have a degree
of publicity outside the Australian Defence Force (ADF) and (ii) have a good
or real chance of lowering the esteem of the ADF in the eyes of an ordinary
citizen or a hypothetical person.
The case where these observations were made also well illustrates how
these requirements play out in practice. In casu , the DFDAT had before it a
thirty-seven-year-old male army sergeant who had stored pornographic mate-
rial depicting “ordinary sexual activity” in a password-protected section of an
ADF computer accessible only by him and four system administrators. The tri-
bunal was not convinced that either of the two conditions of bringing discredit
on the ADF was met. As regards the rst condition, the DFDAT observed that
there must be “a good chance, not a remote possibility, that some person(s)
other than a member of the force will become aware of the impugned con-
duct.” The tribunal thought that to hold in the present case that this condi-
tion was met beyond reasonable doubt would “be drawing a long bow.”
But,
DFDA, s. (). An omission with the same effect is similarly punishable. Ibid., s. (). In both
instances the maximum punishment is years imprisonment. Cf. Armed Forces Discipline
Act (New Zealand), no. , s. ().
Chief of the General Staff v. Stuart () FCR , at .
Mocicka v. Chief of Army [] ADFDAT , at ¶ .
Ibid., at ¶ .
Ibid., at ¶ .
Ibid., at ¶ .
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in any event, in the eyes of the DFDAT, the second condition proved fatal
to the prosecution’s case: the tribunal believed that, on being told of the ser-
geant’s conduct, “the ordinary citizen would not raise an eyebrow.”
Thus, what kind of conduct would raise to the level of an offense would
depend on how the acts re ected, in the eyes of the general public, on the
reputation of the armed forces. Whether or not some act amounts to prejudi-
cial or discrediting conduct depends on the circumstances prevailing at the
time, societal expectations, and, signi cantly, the culture of the armed forces.
As one commentator has rightly noted, the general article “has been a basic
weapon in punishing conduct contrary to the prevailing service ethic .” While
the wording of these provisions has not changed much over the years, the
open-endedness of the terms employed has allowed for exibility in light of
the changes in the professional ethics of the armed forces.
B. Conduct Unbecoming an Of cer and a Gentleman
Even though the general article already illustrates the open-endedness of military
law, some military law systems also recognize a quintessentially honor-related
offense that is related to the customary higher standards of conduct for of cers.
These standards initially were derived from the medieval code of chivalry
and made their way to written military codes.
The rst appearance of a provi-
sion criminalizing “conduct unbecoming an of cer” appears to have been in
British Articles of War sometime in the eighteenth century. Certainly the
British Articles of War already provided that “whatsoever Commissioned Of cer
shall be convicted before a General Court-martial, of behaving in a scandalous
Infamous Manner, such as is unbecoming the Character of an Of cer and a
Gentleman, shall be discharged from Our Service.”
The provision appeared in
fairly similar language in the eighteenth-century U.S. Articles of War.
Ibid., at ¶ .
See D. B. Nichols , ‘The Devil’s Article’ ( ) Militar y Law Review –, at (emphasis
added).
See James Snedeker , Military Justice under the Uniform Code ( Boston : Little, Brown , ),
at : “Military custom establishing a higher standard of conduct required of an of cer has
been traced back to the Norman Conquest and William the Conqueror.”
Rules and Articles for the Better Government of Our Horse and Foot Guards, and All Other
Our Forces in the Kingdoms of Great Britain and Ireland, Dominions beyond the Seas and
Foreign Parts (Articles of War) (UK), s. XV, art. .
Articles of War, June (U.S.), Journals of the Continental Congress , art. .
“Whatsoever commissioned of cer shall be convicted before a general court-martial, of behav-
ing in a scandalous, infamous manner, such as is unbecoming the character of an of cer and
a gentleman, shall be discharged from the service.” Articles of War, September (U.S.),
Journals of the Continental Congress , s. XIV, art. : “Whatsoever commissioned of cer
Law and Honor
The provision has gone through notable changes in different states, in some
of them being abolished altogether, ostensibly having been considered anach-
ronistic. Notably, by , British law had dropped the requirement that the
conduct be “infamous” – simply “scandalous” would do.
The Manual of
Militar y Law then explained:
Scandalous conduct may be either of a military or social character. But a
charge of a social character is not to be preferred under this section, unless it
is of so grave a nature as to render the of cer un t to remain in the service,
and therefore is scandalous in respect of his military character.
In , the reference to a “gentleman” was dropped as well.
The debates in
the House of Commons relating to the amendment are quite instructive. The
minister of defence noted:
I think that [the] phrase [“unbecoming the character of an of cer and a
gentleman”] is redolent of soldiering in the Punjab, of brandy glasses, card
tables. I suppose this is a bit anachronistic. I imagine lawyers would nd it
very dif cult to de ne what gentlemanly and ungentlemanly conduct is.
One honorable member, expressing support for the disappearance of the ref-
erence to ungentlemanly conduct, went further and questioned the need for
a special provision dealing with the conduct of of cers.
The government
responded by explaining:
This offence has been a feature of Service disciplinary Acts for a long time.
We considered it again very carefully when reviewing the systems, and we
shall be convicted, before a general court-martial, of behaving in a scandalous, infamous man-
ner, such as is unbecoming the character of an of cer and a gentleman, shall be discharged
from the service.” Articles of War, May (U.S.), art. . “Whatever commissioned of cer
shall be convicted before a general court-martial, of behaving in a scandalous and infamous
manner, such as is unbecoming an of cer and a gentleman, shall be dismissed the service.”
Army Act (UK), & Vict., c. , s. : “Every of cer who, being subject to military law,
commits the following offence; that is to say, behaves in a scandalous manner, unbecoming the
character of an of cer and a gentleman, shall on conviction by court-martial be cashiered.”;
Army Act (UK), s. : “Every of cer subject to military law who behaves in a scandalous
manner unbecoming the character of an of cer shall, on conviction by court-martial, be liable
to dismissal from Her Majesty’s service with or without disgrace.”
UK War Of ce , M
anual of Military Law , th ed. ( London : HM Stationery Of ce , ),
at .
Armed Forces Act (UK), c. , s. ().
UK House of Commons Debates, January , vol. , c. (The Minister of State for
Defence (Lord Balniel)).
Ibid. c. (Member for Dundee, East (Mr George Thomson)): “In our egalitarian age, I
wonder why ‘scandalous conduct’, even in this amended Bill, should be an offence committed
by of cers but not, apparently, by any other Servicemen. Why do of cers have a monopoly of
this sin?”
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have concluded that it is essential if the standards required of an of cer are
to be maintained. Every profession has its own system of ethical standards –
examples are medicine and the law – which has to be accepted by members
and which goes beyond the requirements of the ordinary law. . . . This pro-
vision enables the Service to deal with the case of an of cer who has not
necessarily committed a criminal offence and may not even have conducted
himself in a way “to the prejudice” [of military discipline], but who neverthe-
less is unsuitable for further service in the Armed Forces. We believe that this
provision is right.
The provision was completely removed from British law with the entry into
force of the Armed Forces Act . Yet a provision of this sort remains, for
example, in Irish law,
as well as the legislation of several Commonwealth
states.
U.S. law has developed somewhat differently. The Articles of War
dropped the references to both “infamous” and “scandalous.”
According to
Colonel William Winthrop, a preeminent authority on military law, the pur-
pose of this change was to “extend materially the scope of the Article, and thus
indeed to establish a higher standard of character and conduct for of cers
of the army.”
Subsequent Articles of War
and the Uniform Code enacted
in provide a broader de
nition of the offense. Thus, the current text
reads, “Any commissioned of cer, cadet, or midshipman who is convicted
of conduct unbecoming an of cer and a gentleman shall be punished as a
court-martial may direct.”
An interesting point about this offense is that, until fairly recently, the
only available punishment was dismissal from the service. The idea was that
when an of cer engages in unbecoming conduct it “exhibits him as morally
Ibid., c. (Under-Secretary of State for Defence (Mr Peter Kirk)).
Defence Act (Ireland), s. : “scandalous manner.”
An Act for Establishing Rules and Articles for the Government of the Armies of the United
States, April (U.S.), c. , Stat. , art. : “Any commissioned of cer convicted
before a general court-martial of conduct unbecoming an of cer and a gentleman, shall be
dismissed the service.”
Winthrop, Militar y Law , at –. However, a contemporary study suggests that the amend-
ment related to the dif culty of interpreting the word “infamous” as used in common law.
Snedeker, Military Justice , at .
Articles of War, June (U.S.), ch. , Stat. , art. : “Any of cer who is convicted
of conduct unbecoming an of cer and a gentleman shall be dismissed from the service.”
Subsequently, cadets were added to the reach of the provision. Articles of War, contained in
An Act Making Appropriations for the Support of the Army for the Fiscal Year ending June ,
, and for Other Purposes, August (U.S.), Pub. L. no. –, ch. , Stat. ,
at , art. : “Any of cer or cadet who is convicted of conduct unbecoming an of cer and a
gentleman shall be dismissed from the service.”
UCMJ, art. .
Law and Honor
unworthy to remain an of cer of the honorable profession of arms.”
The
argument has been made that those who proposed (and succeeded in) the
removal of mandatory dismissal misunderstood the offense.
This change
made the provision applicable to minor infractions, effectively turning it into
a general article for of cers.
In any event, as with prejudicial and disgraceful conduct, it is futile to look
for the meaning of unbecoming conduct in the black letter law. Recourse
must be had to authoritative commentaries and judicial practice. Colonel
Winthrop explained in his important textbook that to constitute conduct unbe-
coming an of cer and a gentleman, the act that forms the basis of the charge
must have a double signi cance and effect. Though it need not amount to a
crime, it must offend so seriously against law, justice, morality, or decorum as
to expose the offender to disgrace, socially or as a man, and at the same time
must be of such a nature or committed under such circumstances as to bring
dishonor or disrepute upon the military profession that he represents.
These views were expressed more than a century ago. But the explication
of the offense in the current Manual of Courts-Martial remains strikingly
similar:
Conduct violative of this article is action or behavior in an of cial capac-
ity which, in dishonoring or disgracing the person as an of cer, seriously
compromises the of cer’s character as a gentleman, or action or behavior
in an unof cial or private capacity which, in dishonoring or disgracing the
of cer personally, seriously compromises the person’s standing as an of cer.
There are certain moral attributes common to the ideal of cer and the per-
fect gentleman, a lack of which is indicated by acts of dishonesty, unfair deal-
ing, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone
is or can be expected to meet unrealistically high moral standards, but there
is a limit of tolerance based on customs of the service and military necessity
below which the personal standards of an of cer, cadet, or midshipman can-
not fall without seriously compromising the person’s standing as an of cer,
cadet, or midshipman or the person’s character as a gentleman. This article
prohibits conduct by a commissioned of cer, cadet, or midshipman which,
taking all the circumstances into consideration, is thus compromising.
Manual for Courts-Martial, United States (), at ¶ , cited in Keithe E. Nelson , ‘Conduct
Expected of an Of cer and a Gentleman: Ambiguity’ ( ) U.S. Air Force JAG Law Review
–, at .
See ibid., at .
See along these lines ibid., at .
Winthrop, Military Law , at –. Approvingly cited in U.S. v. Howe , C.M.R. (U.S.
Court of Military Appeals, ), at –, and Parker v. Lev y , U.S. (), at –.
Manual for Courts-Martial, United States (), pt. iv, at ¶ .
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The Navy–Marine Corps Court of Military Review has had the occasion to
explain further that unbecoming conduct patently goes beyond the unsuit-
able, the inappropriate, the poor taste, the impropitious, or the inconsonant
with usage. It encompasses the morally unbe tting and unworthy, characteris-
tics with deleterious effects on of cer status in particular and good order and
discipline in general.
Even though these tests leave room for interpretation as to what conduct
could be deemed unbecoming, it is clear that conduct need not reach the
level of “general criminality.”
Courts have gone out of their way in explain-
ing that they are applying to of
cers a higher standard than what would be
applicable in the civil society. Thus, in , the U.S. Court of Claims noted
that “in military life there is a higher code termed honor, which holds its
society to stricter accountability; and it is not desirable that the standard of
the Army shall come down to the requirements of a criminal code.”
This
view – or at least the part referring to a higher standard of honor – has been
paraphrased by the Navy Board of Review
and cited with approval by justices
on appellate military courts
and the Supreme Court.
In conclusion, it is pertinent to cite a historian who points out that “conduct
unbecoming an of cer and a gentleman was not de ned in the Articles of
War. By keeping it vague and inde nite, the charge remained exible enough
to change as ideas of honour changed.”
The same doubtless holds true for
more contemporary proscription of the offense.
IV. HONOR AND THE LAW OF ARMED CONFLICT
I turn now more speci cally to international law and the rules governing
the use of violence in armed con
ict. Here I have in mind the branch of
U.S. v. van Steenw yk , M.J. (Navy–Marine Corps Court of Milit ary Review, ),
at .
Interestingly, the charge of conduct unbecoming has been used to “protect [of cers] from
being charged with more serious offences such as embezzlement, fraud or even rape.” Gilbert,
‘Law and Honour’, at –.
Fletcher v. U.S. , Ct. Cl. (U.S. Court of Claims, ), at (Nott C.J.).
U. S. v. Fre e , C.M.R. (U.S. Navy Board of Review, ), at : “We refuse to subscribe
to the proposition that the Code of Military Justice operates to lower the standards of honor
and conduct in the military service to that of a civilian criminal code.”
See, e.g., U.S. v. Tedder , M.J. (U.S. Court of Military Appeals, ), at ; U.S. v.
Moore , M.J. (U.S. Court of Military Appeals, ), at ; U.S. v. Gu aglione , M.J.
(U.S. Court of Military Appeals, ), at ; U.S. v. Wales , M.J. (U.S. Court of
Military Appeals, ), at (Cox J., dissenting in part and concurring in result); U.S. v.
Harve y , M.J. (U.S. Air Force Court of Criminal Appeals, ), at .
Parker v. L evy , at (Blackmun J.).
Gilbert, ‘Law and Honour’, at .
Law and Honor
international law that, according to a popular conception, aims at limiting
violence in con ict to what is necessary for obtaining legitimate military aims
and specially protecting persons not taking part in hostilities.
In order to make sense of the relationship between law and honor in this
context, it is particularly instructive to glance at military manuals on the law
of armed con ict. These are publications produced by national governments
for use in the armed forces, consolidating and summarizing the law applicable
to the forces of that particular state.
Such manuals often contain not only
statements of what is regarded to be black letter law, but also policy guidance
and commentary, allowing a look at the underpinnings of the law of armed
con ict, which sometimes remain hidden behind the sanitized and legalistic
language of multilateral treaties.
A. The Principle of Chivalry
Tellingly, military manuals continue to invoke the ideal of chivalry or honor
in explaining the function of the law of armed con ict. For example, the cur-
rently effective U.S. Field Manual on the Law of Land Warfare states:
The law of war places limits on the exercise of a belligerent’s power . . .
and requires that belligerents refrain from employing any kind or degree
of violence which is not actually necessary for military purposes and that
they conduct hostilities with regard for the principles of humanity and
chivalry.
Thus, chivalry is regarded as one of the three pillars on which the entire phe-
nomenon of the law of war stands – the other two being military necessity
and humanity. Military necessity relates to the idea that the purpose of armed
hostilities is to bend the enemy to one’s will, and nothing more than that. The
principle of humanity requires respect, protection, and humane treatment of
persons not taking part in hostilities. These principles roughly correspond to
the dual objective of the law of armed con ict mentioned earlier. On top
of these requirements, chivalry, as the British military manual explains,
See, e.g., Marco Sass ò li and Antoine A. Bouvier , How Does Law Protect in War? rd ed.
( Geneva : ICRC , ), vol. i, ch. (footnotes omitted): “International Humanitarian Law
(IHL) can be de ned as the branch of international law limiting the use of violence in armed
con icts by: a) sparing those who do not or no longer directly participate in hostilities; b)
restricting it to the amount necessary to achieve the aim of the con ict, which – independently
of the causes fought for – can only be to weaken the military potential of the enemy.”
See generally Nobuo Hayashi (ed.), National Military Manuals on the Law of Armed Con ict ,
nd ed. ( Oslo : Torkel Opsahl , ) .
U.S. Department of the Army, FM – – Law of Land Warfare (), at ¶ .
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“demands a certain amount of fairness in offence and defence, and a certain
mutual respect between the opposing forces.”
The impact of chivalry on the modern law of armed con ict is manifold.
It has clearly inspired some rules, for example, those relating to the protection
of prisoners of war (which were essential in knightly warfare), those dealing
with the legal status of parlamentaires (the functional descendant of medieval
heralds), and those prohibiting particular means of warfare (notably poison).
Certainly, the principle of chivalry has lost ground to the principle of human-
ity in underpinning the speci c rules of armed con ict, but the development
of many of these rules cannot be explained away by reference to consider-
ations of humanity alone.
But there is one set of rules in the law of armed con ict whose honor-
able overtones are well recognized by military manuals. For example, a
Joint Doctrine Manual of the U.S. armed forces, published in , notes as
follows:
The concept of chivalry is dif cult to de ne. It refers to the conduct of armed
con ict in accordance with certain recognized formalities and courtesies. An
armed con ict is rarely a polite contest. Nevertheless, the concept of chiv-
alry is re ected in speci c prohibitions such as those against dishonorable
or treacherous conduct and against misuse of enemy ags or ags of truce.
The concept of chivalry makes armed con ict slightly less savage and more
civilized for the individual combatant.
This equation of treacherous and dishonorable conduct, and its link to chiv-
alry, is echoed widely in other military manuals and legal scholarship.
I will
now turn more speci cally to the prohibition of treacherous conduct.
UK War Of ce , The Law of War on Land (being Part III of the Manual of Military Law)
( London : HM Stationery Of ce , ) , ¶ . Cf. Lassa Oppenheim , International Law: A
Tre atis e , th ed. ( London : Longmans , ) , vol. ii, at (¶ ) taking the view that the
principle of chivalry “arose in the Middle Ages, and introduced a certain amount of fairness in
offence and defence, and a certain mutual respect.”
See generally Rain Liivoja , ‘Chivalry without a Horse: Military Honour and the Modern Law
of Armed Con ict’, in Rain Liivoja and Andres Saumets (eds.), The Law of Armed Con ict:
Historical and Contemporary Perspectives ( Tartu : Tartu University Press , ) – .
Ibid.
O f ce of the Judge Advocate General , Law of Armed Con ict on the Operational and Tactical
Levels: Joint Doctrine Manual ( Washington, DC ; Government Printing Of ce , ), at ¶
() .
Royal Australian Air Force , AAP – Operations Law for RA AF Commanders ( ), at ¶
. ; U.S. Department of the Navy , NWP –M – The Commander’s Handbook on the Law
of Naval Operations ( ), at ¶ . : “Dishonorable (treacherous) means, dishonorable expedi-
ents, and dishonorable conduct during armed con ict are forbidden.” Keith E. Puls (ed.), Law
of War Handbook ( Charlottesville, VA : Judge Advocate General’s Legal Center and School ,
Law and Honor
B. Treachery and Per dy
It is convenient to begin this discussion by referring to the and
Hague Regulations. These key instruments on the conduct of hostilities
undoubtedly re
ect customary international law
and to a signi cant extent
remain relevant today. Article (b) of the Regulations states that “it is espe-
cially forbidden . . . to kill or wound treacherously individuals belonging to the
hostile nation or army.” This rule has been picked up almost verbatim by the
Rome Statute of the International Criminal Court, which regards “killing or
wounding treacherously individuals belonging to the hostile nation or army”
a war crime in international armed con icts.
The Statute also considers the
equivalent conduct to be a war crime in noninternational armed con icts.
However, neither the Hague Regulations nor the Rome Statute speci es what
“treacherously” means. Admittedly, the ICC Elements of Crimes do provide a
de nition of sorts but one that does not entirely accurately re ect the concept
under the Hague Regulations.
In this situation, it is useful to start from what is generally agreed upon.
Clearly, treachery is a kind of deception. Yet not all deception in war is, or has
been, prohibited. Quite the contrary, trying to mislead the enemy by what are
known as “ruses of war” has always formed a crucial part of military tactics.
Only a certain kind of deception has been outlawed as treachery. The problem
at hand is, then, how to distinguish treachery from legitimate ruses of war.
Article (b) of the Oxford Manual on the Laws of War on Land attempts to
explain the meaning of treachery by giving two examples, namely, “keeping
assassins in pay” and “feigning to surrender.” A lengthier list can be found
in academic writings. For instance, in the th edition of Oppenheim’s
), at : “Condemnation of per dy is an ancient precept of the LOW, derived from prin-
ciple of chivalry.” Thomas C. Wing eld , ‘Chivalry in the Use of Force’ ( ) Universit y
of Toledo Law Review –, at : “As strongly as the law of chivalry is woven into the fabric
of the modem law of war, it remains most intact in the distinction between lawful ruses and
treacherous per dy.” Stefan Oeter , ‘Methods and Means of Combat’, in Dieter Fleck (ed.),
The Handbook of International Humanitarian Law , nd ed. ( Oxford University Press , )
– , at (footnotes omitted): “Elementary rules of international law, the observance of
which should be a matter of honour (and a product of a genuine sense of justice) are grossly
abused by per dy. Accordingly, the old notion of breach of honour is still present in the notion
of per dy: the (dishonourable) violation of the rules of ‘chivalry’, which in medieval customs
constituted the core of per dy.”
See U.S. et al. v. G ö ring et al. , Trial of the Major War Criminals before the International
Military Tribunal (International Military Tribunal at Nuremberg, ), at –.
Rome Statute of the International Criminal Court, Rome, July , in force July ,
U.N.T.S. , art. ()(b)(xi).
Ibid., art. ()(e)(ix) (‘Killing or wounding treacherously a combatant adversary’).
See note and accompanying text.
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International Law , the editor, Hersch Lauterpacht, regarded the prohibition
of treachery as demanding that
no assassin must be hired, and no assassination of combatants be committed;
a price may not be put on the head of an enemy individual; proscription and
outlawing are prohibited; no treacherous request for quarter must be made;
no treacherous simulation of sickness or wounds is permitted.
These examples can be broadly classi ed into two groups: on the one hand,
assassination, outlawry, and the like, and, on the other hand, the simulation of
wounds, sickness, or surrender.
As regards the rst form of treachery, further sources provide clari cation of
the range of acts contemplated. Thus, the Lieber Code states:
The law of war does not allow proclaiming either an individual belonging
to the hostile army, or a citizen, or a subject of the hostile government an
outlaw, who may be slain without trial by any captor, any more than the
modern law of peace allows such international outlawry; on the contrary, it
abhors such outrage.
The consecutive editions of the U.S. Field Manual explain that article (b) of
the Hague Regulations should be “construed as prohibiting assassination, pro-
scription, or outlawry of an enemy, or putting a price upon an enemy’s head, as
well as offering a reward for an enemy ‘dead or alive.’”
Similarly, but in some
more detail, the UK manual states in conjunction with article (b) that
Assassination, the killing or wounding of a selected individual behind the
lines of battle by enemy agents or partisans, and the killing or wounding by
treachery individuals belonging to the opposing nation or army, are not law-
ful acts of war. . . . In view of the prohibition of assassination, the proscription
or outlawing or the putting of a price on the head of an enemy individual or
any offer for an enemy “dead or alive” is forbidden.
Turning now to the second form of treachery – malicious simulation of sur-
render or incapacitation – it is also well recognized in military manuals. Thus,
in giving further examples of treachery, the U.S. Field Manual states that “it
is improper to feign surrender so as to secure an advantage over the opposing
belligerent thereby.”
See Oppenheim, International Law , vol. ii, at (¶ ).
General Orders no. , art. .
U.S. Department of the Army, Law of Land Warfare (), at ¶ . See also Michael N.
Schmitt , ‘State-Sponsored Assassination in International and Domestic Law’ ( ) Ya le
Journal of International Law –, at .
UK War Of ce, Law of War on Land , at ¶ .
U.S. Department of the Army, Law of Land Warfare (), at ¶ .
Law and Honor
The scope of this limb of the prohibition was modi ed by the
Additional Protocol I to the Geneva Conventions (AP I). Article () of AP I
stipulates that “it is prohibited to kill, injure or capture an adversary by resort
to per dy.”
Leaving aside the slight terminological change
and adding the
capture of an enemy combatant to the list of modalities, the crucial develop-
ment was the de nition of per dy in the abstract. Article () de nes per dy
as “acts inviting the con dence of an adversary to lead him to believe that he is
entitled to, or is obliged to accord, protection under the rules of international
law applicable in armed con ict, with intent to betray that con dence.”
The critical part of this de nition is the characterization of the deception as
an attempt to invoke a “legal entitlement . . . to immunity from attack.”
For
example, since a combatant incapacitated by wounds or sickness is protected
under the law of armed con ict from attack,
feigning such incapacitation so
as to kill, injure, or capture an adversary would amount to per dy.
In brief,
“per dy is the deliberate claim to legal protection for hostile purposes.”
Conversely, “[a] betrayal of con dence not related to this form of legal pro-
tection does not amount to per dy” within the meaning of AP I.
In this
respect article (b) of the Hague Regulations is wider than article () of AP
I: per
dy under the latter is shorthand for hostile acts that constitute the abuse
of the protective veil of the law of armed con ict, whereas treachery under
the former includes per dious acts but also covers at least assassinations and
outlawry.
Of course, assassinations and outlawry are only examples of treachery. This
raises the question whether treachery can be de ned in some more principled
way. The various U.S. manuals’ attempt to explain the distinction between
permissible ruses of war and treachery/per dy is helpful in this respect.
AP I, art. ().
For the rationale, see Jean de Preux , ‘Article – Prohibition of Per dy’, in Yves Sandoz et al .
(eds), Commentary on the Additional Protocols to the Geneva Conventions ( Geneva : ICRC &
Martinus Nijhoff , ) –, at ¶ .
AP I, art. ().
See Yoram Dinstein , The Conduct of Hostilities under the Law of Armed Con ict ( Cambridge
University Press , ), at .
AP I, art. () and ()(c).
Ibid., art. ()(b).
de Preux, ‘Article ’, at ¶ .
See Frits Kalshoven and Liesbeth Zegveld , Constraints on the Waging of War: An Introduction
to International Humanitarian Law , rd ed. ( Geneva : ICRC , ), at .
U.S. War Department , Rules of Land Warfare (Part Two of Basic Field Manual, Volume
VII, Military Law) ( Washington, DC : Government Printing Of ce , ), at ¶ ; U.S. War
Department , FM – – Rules of Land Warfare ( Washington, DC : Government Printing
Of ce , ), at ¶ ; U.S. Department of the Army, Law of Land Warfare (), at ¶ :
“ruses of war are legitimate so long as they do not involve treachery or per dy on the part of the
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According to the current Field Manual, the fundamental principle is that “it
would be an improper practice to secure an advantage of the enemy by delib-
erate lying or misleading conduct which involves a breach of faith, or when
there is a moral obligation to speak the truth.”
This is not very far from an
explanation given by James Spaight:
It is the essence of treachery that the offender assumes a false character by
which he deceives his enemy and thereby is able to effect a hostile act which,
had he come under his true colours, he could not have done. He takes advan-
tage of his enemy’s reliance on his honour.
Morris Greenspan states in roughly similar terms that “among unlawful ruses
are those that involve killing and wounding by treachery. Lying to the enemy
in order to secure a military advantage is wrong, when there is a legal or moral
obligation to be truthful.”
I would argue, on the basis of these observations, that breaching a de ned
legal obligation to be truthful while harming the enemy amounts to per dy,
whereas breaching a moral obligation or an obligation as a matter of honor to
be truthful breaches the prohibition of treachery.
So conceived, treachery boils down to the betrayal of faith, a failure in moral
obligations and dishonor. It relies on extralegal concepts on what is proper and
honorable in warfare at a particular point in time. For example, as concerns
the prohibition of assassinations, the U.S. and British military manuals pub-
lished in the s contain a rather narrow reading of the rule. The edi-
tion of the U.S. manual explicitly states that the prohibition of assassinations,
as deriving from the general rule against treachery, “does not . . . preclude
attacks on individual soldiers or of cers of the enemy whether in the zone
of hostilities, occupied territory, or elsewhere.”
The British manual
belligerent resorting to them. They are, however, forbidden if they contravene any generally
accepted rule.”
U.S. Department of the Army, Law of Land Warfare (), at ¶ . See also Schmitt,
‘State-Sponsored Assassination’, at : “Treachery exists . . . if the victim possessed an af rma-
tive reason to trust the assailant.”
See J. M. Spaight , War Ri ghts on Land ( London : Macmillan , ), at ; approvingly cited in
Schmitt, ‘State-Sponsored Assassination’, at .
See Morris Greenspan , The Modern Law of Land Warfare ( Berkeley : University of California
Press , ), at . “For instance, it would be improper to gain a respite from enemy action
by claiming that an armistice had been concluded when no such agreement had been made.
Such a statement involves the good faith of the party making it. On the other hand, it is legiti-
mate to make false assertions to the enemy where there is no legal or moral duty to tell the
truth. It would, therefore be proper to persuade an enemy force that it was surrounded when
such was not the case, or to threaten a bombardment when there were no guns to back up the
threat. It is the duty of the enemy to be on guard against such ruses.” Ibid.
U.S. Department of the Army, Law of Land Warfare (), at ¶ .
Law and Honor
similarly mentions that “it is not forbidden to send a detachment or individual
members of the armed forces to kill, by sudden attack, members or a member
of the enemy armed forces.”
The question has gained prominence more recently in connection to the
Israeli practice of targeted killings of certain “terrorists.” In assessing the legal-
ity of the practice, the Israeli Supreme Court took the position that if a person
is a legitimate target – either a combatant or a civilian “taking a direct part in
hostilities” – targeting him or her would be permissible under international
law (and hence, by implication, not prohibited as assassination), as long as less
injurious means are not available.
It is dif cult to argue against this posi-
tion, especially as the once valid distinction between attacks on the enemy on
the battle eld and behind enemy lines is exceedingly dif cult to maintain in
modern con icts. Thus, it may well be that the contemporary prohibition of
assassinations is basically covered by other rules of humanitarian law, such as
the prohibition of per dy as contained in AP I (ruling out an attack disguised
as a civilian)
or by the prohibition of disproportionate attacks or attacks by
weapons causing unnecessary suffering.
However, the prohibition of putting a price on the enemy’s head, even if
he or she is a legitimate target, is more dif cult to deal with under other rules
of the law. It may be regarded as inciting civilians to commit acts of violence,
thereby to take part in hostilities, and commit per dy. However, it is hard to
see how turning the enemy soldiers against their own commanders with mon-
etary inducements could violate any speci c rule of international law.
Yet,
the act would be “unfair” and thus prohibited as treachery.
Returning brie y to the war crime of treacherous killing or wounding under
the Rome Statute, it is worth noting that the Elements of Crimes require that
“the perpetrator invited the con dence or belief of one or more persons [or,
as the case may be, combatant adversaries] that they were entitled to, or were
UK War Of ce, Law of War on Land , commentary to art. .
HCJ / Public Committee against Torture in Israel et al. v. Government of Israel et al.
[] IsrLR (Supreme Court, Israel).
A textbook example from the pre–AP I era is the assassination of SS-Obergruppenf ü hrer
Reinhard Heydrich by Czech soldiers in civilian clothing in . Presuming that the U.S.
and British position on assassination was valid law already then, the legal problem would not
have been singling out Heidrich for attack or attacking him behind enemy lines – he was,
beyond doubt, a legitimate military objective – but the fact that his attackers masqueraded as
civilians.
AP I, arts. ()(b) and ().
See Waldemar A. Solf , ‘Article – Prohibition of Per dy’, in Michael Bothe et al. (eds), New
Rules for Victims of Armed Con icts: Commentary on the Two Protocols Additional to
the Geneva Conventions of ( The Hague : Martinus Nijhoff , ) –, at ; Dinstein,
Conduct of Hostilities , at .
Rain Liivoja
obliged to accord, protection under rules of international law applicable in
armed con ict.”
Thus, the statute takes a conservative approach and avoids
entering the debate as to what acts that do not strictly speaking qualify as per-
dy might still amount to treachery. In other words, for the purposes of the
Rome Statute, only per dious acts are regarded as treacherous acts.
V. BY WAY OF CONCLUSION
As the preceding discussion shows, in circumstances where legal regulation
and notions of honor overlap, the law makes use of phrases like “discrediting
conduct,” “conduct unbecoming an of cer,” and “treacherous conduct.” In
my view, the open-endedness of the general articles in national military law
and the vagueness of the prohibition of treachery in international law dem-
onstrate that in some instances the law relies on the essentially nonlegal idea
of honor.
The reason for doing so seems to be twofold. On the one hand, reliance
on notions like honor and military ethos allows the law to take into account
changes occurring within the military profession. Rather than having to revise
the legal regime regularly, those in a position to apply the law are permitted to
consider ethical and cultural factors in a particular temporal context. On the
other hand, this indeterminacy of black letter law is an indication of a deeper
problem in attempting to enact speci c rules. The problem is that ideas such
as honor cannot be easily verbalized in the abstract and reduced to legal pre-
scriptions. Thus, Australian Navy doctrine acknowledges that “as a Navy
value, honour guides our actions in a way explicit rules cannot; it shapes our
conscience and determines our notions of pride, self-respect and shame.”
The symbiosis of law and honor described in this chapter highlights a
broader issue in legal philosophy that should be of some interest when dealing
with normative pluralism. This is the general question of the law’s occasional
references to what appear to be extralegal standards. These kinds of standards
are particularly common in constitutional law, which may prohibit “cruel and
unusual punishment” without any explanation as to what “cruel” means or, in
other contexts, invoke broad notions of fairness.
“Hard” legal positivists like Joseph Raz suggest that in such cases there
are gaps in the law. Those gaps can be lled by the courts’ exercising
Elements of Crimes, Doc. no. ICC-PIDS-LT-–/_Eng, art. ()(e)(ix), element , and
art. ()(b)(xi), element .
See Osiel, End of Reciprocity , at .
See Royal Australian Navy, Leadership Ethic , at ¶ .. See also Royal Australian Navy, Nav y
Values: Serving Australia with Pride (September ) and Adams, ‘Honour’.
Law and Honor
discretion – Raz argues that “the Constitution, by deploying many moral cat-
egories, gives discretion to the courts and directs them to use it in light of the
true, or the best, moral understanding of what is cruel, etc.”
Without reproducing here the criticisms made by other legal philosophers
of this theory,
I merely note that this approach becomes dif cult to maintain
in the context of criminal law. A situation where a judge (or a court martial
panel) can freely determine whether certain conduct is or is not criminal is
intolerable. Yet this would precisely be the case where the de nition of the
offense of “conduct unbecoming an of cer” would be regarded a “gap” in the
law to be lled by judicial discretion.
The argument has been advanced before U.S. courts that the general arti-
cles of military law are impermissibly vague and therefore unconstitutional.
However, the U.S. Supreme Court has rejected this argument.
The Navy–
Marine Corps Court of Military Review has taken the position that “practice,
usage and custom guide the determination of what misconduct is reasonably
governed by the statute and under what circumstances a contemplated act
may violate the statute.”
In this light, the better view, acceptable perhaps to
the “soft” legal positivists, might be to think of codes of honor as being incor-
porated into the law by reference, and given legal effect within the con nes of
notions such as discrediting conduct and treachery.
See Joseph Raz , ‘Dworkin: A New Link in the Chain’ ( ) California Law Review –,
at .
See, e.g., Timothy A. O. Endicott , ‘Raz on Gaps: The Surprising Part’, in Lukas H. Meyer et al.
(eds.), Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph
Raz ( Oxford University Press , ) – .
Parke r v. Le v y . For an overview of earlier case law, see Frederick Bernays Wiener , ‘Are the
General Military Articles Unconstitutionally Vague?’ ( ) American Bar Association
Journal –.
U.S. v. van Steenwyk , at .
