AOAV: all our reportsMilitarism examined

Navigating the battlefield: a PhD thesis reviews U.S. military discipline and law of war compliance

Taming America’s Warriors: Assessing United States Military Discipline and Responses to Law of War Violations 1943-2004” by Scott Dale Hamm is a comprehensive doctoral thesis submitted to the University of Leeds earlier this year that ends with the striking line: “There has been progress from World War Two onward, but there remains room for more.”

Hamm’s thesis examines the complex issue of law of war violations by the U.S. military from World War II to the early 21st century, focusing on incidents from Vietnam and Iraq to evaluate the military’s adherence to and enforcement of these laws. In it he scrutinises the Army and Marine Corps, analysing their responses to ethical infractions under the influence of political pressure and public opinion.

Hamm’s work offers a groundbreaking analysis of U.S. military discipline and responses to law of war violations from 1943 to 2004. In it, he challenges the traditional view of a military indifferent to non-combatant rights, providing a nuanced exploration of historical incidents, particularly in Vietnam and Iraq.

“For each case,” Hamm notes “scrutinising the repercussions to the covered incident for any civilian reactions and military responses will demonstrate that several variables influence the degree to which perpetrators of such crimes are held accountable. These variables include: how close to total war the conflict was on the range of military operations; how quickly crimes were reported, and what efforts were made to ensure accountability; what legal defences were considered and used; how often such incidents occurred; and the effectiveness of training and education available.”

Through such a lens, Hamm utilises war crime allegations in Vietnam and Iraq as case studies to illustrate broader trends in military conduct. He dissects incidents of law of war violations, revealing their deep connection to the military’s operational environment and the evolving nature of warfare. A significant part of Hamm’s analysis focuses on the interplay between military discipline, political pressures, and societal attitudes. He argues that these factors collectively shape the military’s approach to law of war violations, often complicating the process of maintaining ethical conduct in warzones.

Central also to Hamm’s thesis is the role of the Uniform Code of Military Justice in enforcing discipline within the military. His assessment of its effectiveness sheds light on the challenges and successes of legal frameworks in maintaining military order and ethical conduct.

Hamm’s approach is notable for its use of diverse sources. He employs official military records, court-martial proceedings, and personal interviews to construct a comprehensive picture of military discipline and law of war adherence. In this way, his thesis does not shy away from the complexities inherent in balancing effective military action with legal and ethical standards. Hamm highlights the challenges posed by changing technologies of warfare and international law, and how these impact military operations.

AOAV has decided to focus on this PhD as Hamm’s findings have significant implications for future military strategies, particularly concerning training, leadership, and accountability mechanisms. His work suggests a need for continued vigilance and adaptation in military practices to uphold legal and ethical standards, which is a central argument of AOAV’s advocacy.

It is clear – not least in light of the UK government’s own inquiry into allegations of SAS killings – that the persistence of conflict and violations of the law of war remains a critical issue and persistent vigilance is the only way to address this.

As Hamm notes, the ongoing Russian invasion of Ukraine and the U.S. military’s engagements with various militant groups, including ISIS, highlight the continuing nature of these challenges. Notably, he contemplates the case of U.S. Navy SEAL Eddie Gallagher to bring to light the difficulties in enforcing military justice.

Edward R. Gallagher is a retired United States Navy SEAL who became widely known in the U.S. due to charges against him under the Uniform Code of Military Justice. In September 2018, Gallagher faced ten charges, the most serious being the accusation of fatally stabbing a 17-year-old ISIS prisoner and then taking a photograph with the corpse, which he sent to friends. However, on July 2, 2019, he was convicted only for posing with the corpse. Gallagher was acquitted of all other charges, including the murder accusation, after a teammate, Special Operator Corey Scott, who had immunity as a witness, testified that he was responsible for the prisoner’s death, not Gallagher.

Gallagher’s trial, Hamm argues, was influenced by political intervention and marred by evidentiary hurdles. He raises it to exemplify the complex interplay between legal proceedings, military operations, and political actions. The Gallagher case, along with other incidents, demonstrates how political factors and public debate can influence the handling of such violations. President Trump’s involvement in Gallagher’s case, for instance, including pardoning other service members, underscores the impact of political intervention on military justice.

Despite some improvements in handling violations, Hamm notes that U.S. the military continues to struggle with ensuring accountability, particularly when high-profile cases intersect with political interests. This offers a reminder for those following current proceedings in the UK inquiry into allegations of SAS extra-judicial killings in Afghanistan.

The military’s role in addressing violence against non-combatants is multifaceted and complex. While the responsibility for such violence often lies with individual perpetrators, the military, government, and public share in the broader responsibility, Hamm argues.

The U.S. military has made strides in addressing these issues, but significant gaps remain, particularly in the prosecution of war crimes. The military justice system faces challenges such as the fluidity of combat environments, difficulties in gathering evidence, and the disparity in experience between military prosecutors and defence attorneys.

As in the UK, it seems that systemic and procedural obstacles within the U.S. military justice system continue to impede the effective prosecution of war crimes. Factors like combat environment, witness accessibility, and the experience gap between military prosecutors and defence teams create significant challenges.

External factors, including societal attitudes and government policies, further complicate the U.S. military’s ability to enforce the law of war. The shared responsibility among the military, government, and public in preventing and addressing violations is evident, underscoring the need for a concerted effort across these domains to uphold the principles of military justice and international law.

In conclusion, Hamm’s thesis offers invaluable insights into the U.S. military’s historical and contemporary challenges in adhering to the laws of war, and in so doing offers insight to other NATO members and beyond. It underscores the ongoing struggle to align military operations with legal and ethical standards, a struggle that remains as relevant today as in the past.

As Dr Iain Overton of AOAV notes, “Scott Dale Hamm’s thesis on U.S. military discipline and law of war violations offers a revealing insight into the complexities of military ethics and accountability. It underscores the need for a balanced approach in warfare, where effective strategy and adherence to legal standards must coexist. This work is an important contribution to understanding the challenges of maintaining ethical conduct in military operations, and it should provide food for thought for future discussions on military justice and international law.”