Mea Culpa or "The law is easy"*

*Conditions Apply

Will Beasley provided a different perspective on the #Professionalism debate in his piece on The Rise and Fall of US Naval #Professionalism. What I found most interesting was his discussion of ‘The Golden Age of Professionalization’ and Wilensky’s five-steps involved in an occupational group attaining the status of ‘profession.’ Beasley’s article was intended to provide a response and another perspective on my previous post ‘The Military #Profession — Lawyers, Ethics and the Profession of Arms’.

I noticed that exception was taken to my comment: ‘The law is easy — ethics is hard.’ I thought I’d clarify my comment to remove any misunderstanding. My comment was meant to be read in its entirety and to convey the point that, at times, the answer to the legal problem is easier when compared to the ethical quandries that accompany it. As Winston Churchill once remarked, and I paraphrase, foreign policy choices (which include decisions about how international law is applied) are often between the dreadful and the truly awful. This is the context I had in mind when I made my comment.

…at times, the answer to the legal problem is easier when compared to the ethical quandries that accompany it.

‘The law is easy-ethics is hard’ refers specifically to the application of the laws relating to the use of force (jus ad bellum), the laws of war (jus in bellum); and national policy in operational contexts. In many respects, the application of the laws of war are guided by national policy, and as a result the ‘answer’ to a particular legal question is given to us by the national command authority or coalition headquarters through rules of engagement or other operational orders that impact on how an operation is to be conducted. The difficulty is where the law or the policy is clear but its application may create a complex ethical dilemma. This is why the law is *relatively* easy and ethics is comparatively harder.

One example that comes to mind is the situation during the Bosnian conflict, involving the Dutch Battalion — Dutchbat — who were ostensibly guarding the enclave of Srebrenica, a United Nations ‘Safe Area’. The Dutchbat was commanded by Lieutenant-Colonel Thom Karremans, who decided to act in accordance within the UN Protection Force (UNPROFOR) mandate and orders from UNHQ. The Dutchbat was in an invidious position of having to morally protect the enclave while lacking the military capability to do so. The chain of events leading to the fall of Srebrenica and ethical dilemmas are discussed in more detail elsewhere [1]. In summary, Karremans made the decision to act in accordance with his legal obligation (comply with superior orders and policy) but resulting in the ethical dilemma of being unable to protect those in the enclave from being rounded up and, as the world later learned, falling victim to genocide. In this case, the law was easy — a clear legal answer was available, but was unhelpful in resolving the complex ethical dilemma that unfolded before Dutchbat and Karremans [3].

I extend my apology for any misunderstanding. I don’t mean to offend my learned friends out there. In a domestic context, the law is definitely hard. But in the international system, which is largely one of nations regulating themselves, law is more about politics than jurisprudence [2] and can sometimes be ‘easier’ when juxtaposed against the ethical dilemmas created in the wake of their application.

The Proprietor of ‘Carl’s Cantina’ is an Australian military officer who has served in Iraq and Afghanistan. The Proprietor is an Associate Member of the Military Writers Guild and is currently writing a thesis on Australian civil-military relations. The opinions expressed are hers alone and do not reflect those of the Australian Defence Force.

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[1] See paper by LTCOL P.J. deVin, ‘Srebrenica, the impossible choices of a commander’.

[2] The law as a continuation of politics by other means is a whole topic on its own and frequently discussed over at the Lawfare blog.

[3] If you want to follow the subsequent legal action against the State of the Netherlands brought by Mothers of Srebrenica, a good starting point is here.