Pandemic Politics: Why the US police should read ‘just war’ theory

In August, International Affairs has teamed up with the Future Strategy Forum for the ‘Pandemic Politics’ series on US politics and the COVID-19 pandemic. International Affairs’ 50:50 in 2020 initiative is partnering with the FSF to support its mission of amplifying the expertise of women and share the insights of PhD students on COVID-19 and grand strategy; the military; and democracy.

This week in Pandemic Politics, Eleanor Freund and Leah Matchett’s introduction, as well as Bob Qu’s, Autumn Perkey’s, and Lauren Sukin and Kaitlyn Robinson’s blogposts discuss COVID-19 and the military.

In the midst of COVID-19 another major crisis has emerged in the United States, one centred around the reality of police brutality against Black Americans. Organizers of Black Lives Matter protests have called for significant policing reforms, ranging from bans on chokeholds to defunding the police. Central to many reforms is the need for an updated police code of conduct and a nationwide understanding of what policing behaviours are or are not acceptable.

For the military, such behavioural codes are informed by a vast literature on the theory of ‘just war’, which outlines when and how force can be used. Many of these principles have since been encoded into international law. However, no such overarching guidance on domestic security force behaviour exists. The paramount scholar in the field of just war theory, Michael Walzer, has commented on this disparity in the context of the United States:

‘because of Black Lives Matter, what the police can and cannot do is now a major issue in American politics and the subject of a lively debate, but the official codes of conduct for state and local police have not yet been subjected to close analysis’

Just war theory offers a lens through which to evaluate the conduct of US police forces, particularly with respect to their treatment of civilians.

A set of internationally-recognized rules provide some regulations on how militaries should interact with civilians in war. For example, the Geneva Conventions dictate that militaries cannot target civilians — including members of the media or civilian objects, such as homes. They must take precautions to avoid the destruction of medical infrastructure and supplies. They cannot use biological or chemical weapons, including tear gas. When military forces violate these laws of war, third parties can investigate and punish this behaviour.

In addition to following international laws, militaries have their own extensive systems of rules and doctrines that govern behaviour towards civilians. For the US military, interactions with civilians have become a central focus since the introduction of population-centric warfare in the US Army’s 2006 field manual on counter-insurgency (COIN). This approach was designed to eliminate persistent insurgencies in Afghanistan and Iraq by gaining the trust of the local population. As French Army Officer David Galula explains, under COIN, servicemembers are charged with several disparate roles. They must simultaneously serve as a soldier as well as ‘a propagandist, a social worker, a civil engineer, a schoolteacher, a nurse, a [scout]’. Not only did the introduction of these hybrid roles require significant modifications to military training and organization, but it also necessitated new guidance designed to limit the reliance on force in civilian-dominated settings. There is evidence that these changes limited civilian casualties by US and NATO forces in Afghanistan and contributed, in conjunction with other conflict-level factors, to the decline of overall violence in Iraq.

Meanwhile, the use of force by police officers in the US has become an increasingly visible problem, yet there has been no comparable code of conduct to provide guidelines and expectations about police behaviour. Like the military under the COIN doctrine, police forces regularly engage in a mix of both civilian and pseudo-military responsibilities. Police departments have increasingly relied on special weapons and tactics (SWAT) units that are modeled after military special operations teams and utilize hand-me-down military gear. In response to recent protests, US Secretary of Defense Mark Esper described city streets as a ‘battlespace’ that needed to be dominated through the use of military tactics. At the same time, however, police have also taken on responsibilities that typically fall to civilians, such as resolving disputes in schools and responding to mental health crises.

These dual roles pose unique difficulties. Both US counter-insurgents and US police officers operate in spaces primarily dominated by unarmed civilians. However, the rules governing the behaviour of US troops abroad have not been systematically applied to domestic police forces. In recent months, police officers have killed civilians, used tear gas, destroyed protesters’ medical supplies, and attacked bystanders, children, nonviolent protesters and several members of the media. This behaviour would not be acceptable in a war zone, and it certainly should not be acceptable against protesters on city streets. However, many departments lack the third-party oversight that exists — albeit imperfectly — in international law. There has been little enforcement against officers who violate the rules of their departments or other standards of appropriate behaviour. Instead, immunity for police officers has been baked into the US justice system, with few challenges to these rules succeeding.

Going forward, we need to find a place for just war theory in policing. There are certainly many crucial differences between police and military forces. While the just war approach was not designed for domestic security forces, the fundamental principle of protecting civilians ought to be at the heart of both organizations’ codes of conduct. The guidelines that govern how the US military interacts with civilians in war could be a good start for developing expectations about police behaviour towards civilians in our own country. Police officers are a daily fixture of many Americans’ lives, and it is imperative that interactions between police and civilians follow reasonable and thoughtful guidelines.

Lauren Sukin is a PhD candidate at Stanford University. She studies international security, with a focus on nuclear politics.

Kaitlyn Robinson is a PhD candidate at Stanford University. She studies international security, with a specific emphasis on non-state armed groups and the international politics of civil war.

In August, International Affairs has teamed up with the Future Strategy Forum for the ‘Pandemic Politics’ series on US politics and the COVID-19 pandemic. This series is made possible by The Center for Strategic and International Studies (CSIS), the Henry A. Kissinger Center for Global Affairs at the Johns Hopkins School of Advanced International Studies (SAIS) and the Bridging the Gap Project (BtG).