In recent years, hundreds of American service members have died in training exercises and routine non-combat operations, aboard American warships, tactical vehicles, and fighter planes. They have died in incidents that military investigations and congressional hearings and journalists deem preventable, incidents stemming from the U.S. government delaying maintenance of deteriorating equipment or staffing vessels with crews that are too small or sending soldiers and sailors and marines on missions with inadequate training. After someone dies, high-level officials sign off on investigations, declare that those lost will not be forgotten, and occasionally institute changes in training or maintenance. Meanwhile, the law and legal scholarship say nothing about the government’s failures to train and equip service members, reflecting and reinforcing the notion that soldiers offer illimitable service to the state but cannot ask for even the most basic legal protections in return.
These deaths, and the government failures that precede them, have been absent from legal scholarship, but this Article surfaces them and centers them. While U.S. law offers no way to reckon with the lapses in leadership at the heart of such incidents, international human rights law has provided an architecture for understanding government accountability for failures to adequately train or equip service members. And yet, these events continue to go unnoticed.
This Article documents the human rights community’s neglect of these events and of the opportunity to give legal significance to the U.S. government’s failure to protect its own service members, and it situates this neglect in the broader, long-standing conception of soldiers as mere instruments of the state. The corpus of human rights law thus provides a set of categories and doctrines to name and classify the government’s conduct, and it also offers, through its recognition of the legitimacy of a soldier’s claims upon their government, a necessary corrective to a culture of treating American service members as volunteering for unquestioning sacrifice.
The term “cannon fodder” is conventionally traced to Shakespeare’s Henry IV, Part 1. The play depicts a process of reconciliation between father and son; King Henry IV must quell a rebellion, and Prince Hal transforms from wayward youth into a valiant fighter. Along the way, Prince Hal’s friend Falstaff, technically a nobleman but penniless and disreputable, contributes to the war effort by taking bribes from “good householders, yeoman’s sons” who can pay to avoid going to war, while gathering up instead a motley crew of men “as ragged as Lazarus” to send to battle. When Hal encounters this band of would-be warriors, he derides them as “pitiful rascals,” but Falstaff—a comic figure who betrays both his heartlessness and his willingness to name the exploitation in which he himself participates—protests that they are fit to serve their purpose: “Tut, tut; good enough to toss; food for powder, food for powder; they’ll fill a pit as well as better.”
Much has changed since the days of Shakespeare. The singsong “food for powder” mutated, first emerging in German as kanonenfutter, before jumping back to English in the current form we now know. War, too, has transformed. Today, war is no longer recognized as a legitimate instrument of foreign policy. Today, a robust body of law governs both the resort to armed force and the conduct of hostilities. Today, the term “cannon fodder” is no longer played for laughs.
And yet, the status of military service members remains murky. We might shift uncomfortably in our seats when Falstaff jokes about the disposable nature of these warriors, but what does it mean to respect the lives of soldiers? In the United States, the answer to this question usually relates to how we treat service members when they return home. We offer them thanks for their service, proper medical care and mental health support, access to education and jobs. On the floor of the House of Representatives, during a debate on a military appropriations bill, Representative Bob Filner embraced these practices as an American tradition, one with roots all the way back to the founding: “General Washington said over 220 years ago,” declared Filner, “The single most important factor in the morale of our fighting troops is a sense of how they’re going to be treated when they come home.”
We say less, however, about what happens to service members while they are serving. When they are fighting wars, yes, we “support the troops”—that much is a “fixed point of American politics.” But there is little public discourse, and hardly any legal scholarship, on the U.S. government’s obligations to adequately protect soldiers—despite an urgent need for it. War is of course a dangerous business, one that—in what might be described at the same time as a deal with the devil and a simple reflection of state interests—international law has continued to allow, even with the advent of the corpus of human rights law. But service members are dying and suffering severe injuries not only at the hands of the enemy on the battlefield, but also in incidents deemed “unacceptable” and “preventable” even by military leaders. In the early days of the Iraq War, for example, a secret study by the U.S. Department of Defense found that some eighty percent of marines who died from upper-body wounds could have survived if they had extra body armor—armor that was available but that the Pentagon decided not to provide. These failures of prevention and protection are not limited to combat. In the last fifteen years, hundreds of American service members have died during training exercises and routine non-combat operations, aboard American warships and tactical vehicles and fighter planes. They are given deteriorating equipment or crews that are too small or inadequate training. After someone dies, high-level officials sign off on investigations, declare that those lost will not be forgotten, and occasionally institute changes in training or maintenance.
Meanwhile, the law nearly completely ignores these events. When congressional hearings are convened in the aftermath of these events, their focus is on military readiness, overshadowing questions of the legal obligations of the government or the legal rights of service members. Legal scholarship, despite robust engagement on crucial questions of human rights in wartime, generally focuses on protections for civilians and enemy soldiers, neglecting discussion of what a government owes its service members in proper training, well-maintained equipment, or sufficiently staffed crews. In the pages of U.S. law reviews, the main focus of any analysis of government accountability to service members is the Feres doctrine, which prevents civil suits against the government for injuries sustained incident to military service. But entirely overlooked are the deaths and injuries that stem from inadequate training and shoddy equipment, from putting lives at risk in order to speed operational tempo or rush into deployment. Their absence from the literature suggests that they are seen as routine, part of the job, part of the unquestioning sacrifice for which these individuals have willingly volunteered. Soldiers are expected to give of themselves completely; because they accept the possibility of death on the battlefield on account of their military service, it seems, they must accept the possibility of death outside of it, too. Even if no longer cannon fodder, in the national socio-legal imaginary they have been endowed with a different kind of inhumanity, as individuals whose service is seemingly illimitable, who give their lives but are permitted to ask almost nothing from the governments they serve.
Across the Atlantic, international human rights law paints a starkly different picture. In 2013, the United Kingdom Supreme Court held in Smith v. Ministry of Defence that the British government has an affirmative obligation under human rights law to protect the lives of service members. The suit was initiated by the families of three British soldiers who had been killed in Iraq by roadside bombs when they were traveling in Snatch Land Rovers, vehicles that the government had initially developed in the 1990s to grab suspects off the street in Northern Ireland. As dozens more soldiers died in those vehicles, the Snatch Rovers came to be known in the wars in Iraq and Afghanistan as “mobile coffins”—a far cry from the level of protection that was needed, said the soldiers, their families, and, as would be later revealed, the government itself. The Court held not only that the government’s obligations under the European Convention on Human Rights extends to military service members deployed overseas, but also that the government’s decision to use vehicles that would not adequately protect those individuals could be a violation of its Convention obligations. In the vision of human rights law, the soldier is not expected to sacrifice everything for the state. Instead, the government is expected to fulfill a duty toward the soldier, just as it is expected to protect any other person under its care.
This Article takes as its starting point the juxtaposition of these two vastly contrasting approaches—on the one hand, the expectation of complete sacrifice by a soldier, and on the other, the expectation that the government owes a duty of care to the soldier even while the soldier takes on the significant risks inevitably imposed by the position. From this foundation, it makes two contributions. First, the Article documents the absence of engagement by scholars and practitioners of human rights with the question of U.S. government failures to adequately train and equip military service members. Even though human rights instruments applicable to the United States—including the International Covenant on Civil and Political Rights (“ICCPR”) and the American Declaration on the Rights and Duties of Man—could provide the basis for interpretations similar to Smith in the European system, scholars and advocates have entirely neglected any exploration of whether or how the many failures of the U.S. government leading to service member injuries and deaths may constitute violations of its human rights obligations. This Article fills that gap. Second, the Article situates this neglect within the law’s broader failure to recognize the soldier as an individual endowed with human rights, and it analyzes the consequences of conceiving of soldiers as rights-bearers. Debating the government’s obligation to train and equip service members through the language and legal framework of rights emphasizes that soldiers are agents, not mere instruments of the state who can be disposed of however the government chooses. In so doing, recognition of the soldier’s human rights can chip away at the expectations of unquestioning sacrifice that pervade social and legal treatment of service members.
This Article intervenes in a burgeoning literature on the applicability of international human rights in armed conflict and specifically on the meaning of the right to life in armed conflict. As bodies such as the International Court of Justice and the Human Rights Committee have articulated the scope and application of particular human rights in armed conflict, some scholars have considered how and whether obligations of the law of war, such as the principle of distinction and the requirement of proportionality in attack, should be interpreted to incorporate the human rights protection against arbitrary deprivation of life. Others, meanwhile, have argued that the criminalization of aggression should be understood as rooted in the protection of the right to life in armed conflict. Overlooked in this literature, however, have been the deaths of service members described by journalists and members of Congress and official government investigations as “preventable”: deaths that are traced to failures to properly maintain ships and aircraft and land vehicles and their treads and navigation systems and propellor blades; deaths that stem from failures to adequately train service members to use the equipment they are responsible for; deaths that—like those of Phillip Hewett and Lance Ellis, the British soldiers whose deaths gave rise to Smith—can be traced to decisions on the part of the state to underequip soldiers for combat.
It is these deaths that the Smith case and its underlying principles speak to but that human rights law and scholarship have not yet adequately considered. And it is these deaths to which this Article turns its attention, not only explaining the relevance of human rights law in identifying the U.S. government’s responsibility for training and equipping its service members, but also offering a normative argument for why rendering these deaths a matter of human rights law should form a part of the larger human rights project of subjecting war to its regulation. In short, this Article hopes to do these soldiers justice.
This Article proceeds in three parts. To situate the arguments of this Article in recent events, Part I presents an account of two collisions of Navy destroyers that caused the deaths of seventeen sailors in 2017. The goal of this Part is primarily descriptive, as these are events that have clear parallels with the facts underlying Smith and that have clear legal implications, and despite that, they have received no dedicated attention in legal scholarship. These collisions, replete with high-level leaders’ preventable errors and even negligence, offer representative examples that ground Part II, which explains the legal characterizations that are available to describe these deaths under the frameworks available both in U.S. law and in international human rights law. Part III documents how and analyzes why situations like these collisions remain overlooked. It first explains how the human rights approach discussed in Part II could be used to seek accountability for the U.S. government’s failures with respect to incidents like the McCain and Fitzgerald collisions, and so many more. It then turns to detailing and explaining the absence of any such efforts in human rights law and to analyzing the significance of a human rights framing of situations like the Navy collisions. Bringing human rights law to bear on the U.S. government’s failures to adequately equip and train its troops not only makes clear that war is no longer off-limits to human rights as a general matter, but it also declares with the authority of law that soldiers are not to be sacrificed unquestioningly to the cause of war. By bringing service members’ lives more squarely into its realm, human rights law rejects the notion that soldiers are mere cannon fodder to be disposed of however the state pleases.
. William Shakespeare, Henry IV, Part 1 act 4, sc. 2, ll. 2382, 2392.
. Id. ll. 2433–35.
. Charles Edelman, Shakespeare’s Military Language: A Dictionary 132–33 (2000).
. See U.N. Charter art. 2 (prohibiting non-defensive use or threat of armed force by states); Mary Ellen O’Connell, The power and Purpose of International Law: Insights from the Theory & Practice of Enforcement 180 (2008); see also Saira Mohamed, Restructuring the Debate on Unauthorized Humanitarian Intervention, 88 N.C. L. Rev. 1275, 1317–21 (2010) (discussing the nature of military force as a community instrument under the U.N. Charter system). See generally Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017).
. E.g., Jakob Kellenberger, Foreword to Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, Volume 1: Rules xv, xv–xvii (2009).
. See David Ellis, Falstaff and the Problems of Comedy, 34 Cambridge Q. 95, 99–100 (2005).
. This Article uses “soldier” in the colloquial sense, that is, to describe a person who serves in the military. The term thus includes not only those in a state’s army, but also services such as the air force or navy. See Soldier, Merriam-Webster’s Collegiate Dictionary (11th ed. 2012).
. E.g., Phillip Carter, What America Owes Its Veterans: A Better System of Care and Support, Foreign Affs., Sept./Oct. 2017, at 115.
. 154 Cong. Rec. 9238 (2008) (statement of Rep. Bob Filner); see also, e.g., Loretta Sanchez, What We Owe Our Troops, Hill (May 20, 2015, 8:35 PM), https://thehill.com/special-reports/
. Cheyney Ryan, Democratic Duty and the Moral Dilemmas of Soldiers, 122 Ethics 10, 18–19 (2011).
. See Karima Bennoune, Toward a Human Rights Approach to Armed Conflict: Iraq 2003, 11 U.C. Davis J. Int’l L. & Pol’y 171, 174–75 (2004); Frédéric Mégret, What Is the Specific Evil of Aggression, in The Crime of Aggression: A Commentary 1398, 1432 (Claus Kreß & Stefan Barriga eds., 2017); Thomas W. Smith, Can Human Rights Build a Better War?, 9 J. Hum. Rts. 24, 24 (2010).
. Michael Moss, Pentagon Study Links Fatalities to Body Armor, N.Y. Times (Jan.
7, 2006), https://www.nytimes.com/2006/01/07/politics/pentagon-study-links-fatalities-to-body-armor.
. See, e.g., Nat’l Comm’n on Mil. Aviation Safety, Report to the President and the Congress of the United States 1 (2020) [hereinafter NCMAS Report]; Nat’l Transp. Safety Bd., NTSB/MAR-19/01 PB2019-100970, Marine Accident Report: Collision Between US Navy Destroyer John S McCain and Tanker Alnic MC, Singapore Strait, 5 Miles Northeast of Horsburgh Lighthouse, August 21, 2017, at 21 (2019) [hereinafter NTSB Report].
. See, e.g., Hearing to Receive Testimony on the United States Indo-Pacific Command and United States Forces Korea in Review of the Defense Authorization Request for Fiscal Year 2020 and the Future Years Defense Program: Hearing Before the S. Comm. on Armed Servs., 116th Cong. 82 (2019) [hereinafter Indo-Pacific Command Hearing] (statement of Admiral Philip S. Davidson) (explaining that he “produced a 170-page report with 58 recommendations” after the two Naval collisions of 2017 and that “the Navy has been moving out on those recommendations to provide the kind of unit personnel training, to provide advice and resources to the type commanders, the fleet commanders, the Naval Systems Command, all with recommendations to improve [the] situation”).
. See, e.g., Navy Readiness—Underlying Problems Associated with the USS Fitzgerald and USS John S. McCain: Hearing Before the Subcomm. on Readiness & Subcomm. on Seapower and Projection Forces of the H. Comm. on Armed Servs., 115th Cong. 21 (2017) [hereinafter Joint Subcommittees 2017 Hearing]; Recent United States Navy Incidents at Sea: Hearing Before the S. Comm. on Armed Servs., 115th Cong. 6 (2017) [hereinafter SASC September 2017 Hearing]. During the Senate Armed Services Committee Hearing, Senator John McCain emphasized obligation during his opening remarks, when he noted “our sacred obligation to look after the young people who . . . serve in [our] military.” SASC September 2017 Hearing, supra, at 3.
. See, e.g., International Humanitarian Law and International Human Rights Law (Orna Ben-Naftali ed., 2011) (collecting essays on interaction between international humanitarian law and human rights law); Theoretical Boundaries of Armed Conflict and Human Rights (Jens David Ohlin ed., 2016) (same).
. See infra notes 205–07 and accompanying text (discussing limited scholarship on these questions); Saira Mohamed, Abuse by Authority: The Hidden Harm of Illegal Orders, 107 Iowa L. Rev. 2183, 2212–17 (2022) (discussing international law obligations of a state toward its own soldiers).
. See Feres v. United States, 340 U.S. 135, 146 (1950); infra Section II.A (discussing the Feres doctrine).
. See Charles Taylor, Modern Social Imaginaries 23–26 (2003) (explaining the idea of the “social imaginary,” on which the concepts of the legal imaginary and sociolegal imaginary draw, as “the ways people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations”); see also Cornelius Castoriadis, The Imaginary Institution of Society 145 (Kathleen Blamey trans., 1987) (describing the social imaginary as that “which gives a specific orientation to every institutional system, . . . the source of that which presents itself in every instance as an indisputable and undisputed meaning, the basis for articulating what does matter and what does not”).
. See infra Section III.A.2.
. See Smith v. Ministry of Defence  UKSC 41.
. James Sturcke, SAS Commander Quits in Snatch Land Rover Row, Guardian (Nov. 1, 2008, 5:17 AM), https://www.theguardian.com/uk/2008/nov/01/sas-commander-quits-afghanistan [https://
perma.cc/5926-2JJ8]; Comm. of Privy Couns., 11 The Report of the Iraq Inquiry 23–24 (2016) [hereinafter Chilcot Report].
. See infra Section II.B.
. See infra Section III.A.
. See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9); Armed Activities on the Territory of the Congo (Dem. Rep. of the Congo v. Uganda), Judgment, 2005 I.C.J. 168 (Dec. 19); Hum. Rts. Comm., General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶¶ 64, 69–70, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018) [hereinafter General Comment 36].
. See, e.g., Michael Newton & Larry May, Proportionality in International Law 121–54 (2014); Evan J. Criddle, Proportionality in Counterinsurgency: Reconciling Human Rights and Humanitarian Law, in Counterinsurgency law: New Directions in Asymmetric Warfare 24, 34 (William Banks ed., 2013).
. See Tom Dannenbaum, The Crime of Aggression, Humanity, and the Soldier 13 (2018); Mégret, supra note 11, at 1428, 1440–44; see also Eliav Lieblich, The Humanization of Jus ad Bellum: Prospects and Perils, 32 Eur. J. Int’l L. 579, 581 (2021).
. E.g., Update on Navy and Marine Corps Readiness in the Pacific in the Aftermath of Recent Mishaps, Hearing Before the Subcomm. on Seapower and Projection Forces & the Subcomm. on Readiness of the H. Comm. on Armed Serv., 116th Cong. 2 (2020) (statement of Hon. Robert J. Wittman, Ranking Member, Subcomm. on Seapower and Projection Forces) (describing “loss of life associated with Navy surface forces and Marine Corps aviation forces” as “preventable”); id. at 4 (statement of Hon. John Garamendi, Chair, Subcomm. on Readiness) (describing sailors and marines’ deaths in surface ship and aviation incidents as “preventable”); U.S. Gov’t Accountability Off., GAO-21-361, Military Vehicles: Army and Marine Corps Should Take Additional Actions to Mitigate and Prevent Training Accidents 26 (2021); see also U.S. Dep’t of the Navy, Report on the Collision Between USS Fitzgerald (DDG 62) and Motor Vessel ACX Crystal and Report on the Collision Between USS John S. McCain (DDG 56) and Motor Vessel ALNIC MC 20, 59 (2017), https://s3.document
cc/5D5U-L52T] [hereinafter Navy Reports on Fitzgerald and McCain] (describing collisions as “avoidable”); Alex Horton & Gina Harkins, Military’s Effort to Reduce Deadly Vehicle Accidents Deemed Inadequate, Wash. Post (July 14, 2021, 4:55 PM), https://www.washingtonpost.com/national-
security/2021/07/14/military-rollover-deaths-gao-report [https://perma.cc/NWT9-9DWG] (discussing findings of a Government Accountability Office report on noncombat tactical vehicle accidents that the “military didn’t take sufficient action to reduce . . . grievous, preventable incidents” causing the deaths of more than 120 service members in a decade).
. See infra Part I.
. See 11 Chilcot Report, supra note 22, at 23–24.
. This Article focuses on the U.S. military, but these concerns are not unique to the United States. The Smith case of course deals with the United Kingdom’s involvement in Iraq, but the same concerns have been raised with respect to its military actions in Afghanistan, and the Italian government, too, has been accused of not adequately equipping its soldiers. Cecilia Åse, Monica Quirico & Maria Wendt, Gendered Grief: Mourners Politicisation of Military Death, in Gendering Military Sacrifice: A Feminist Comparative Analysis 145, 155 (Cecilia Åse & Maria Wendt eds., 2019). Similar questions could be raised regarding the lack of proper training and equipment of Israeli soldiers in the 2006 Lebanon War. See Press Release, PM Received the Final Winograd Report (Jan. 30, 2008), https://www.
gov.il/en/Departments/news/spokewinog300108 [https://perma.cc/S443-6R8C]; see also Anthony H. Cordesman with George Sullivan & William D. Sullivan, Ctr. for Strategic & Int’l Stud., Lessons of the 2006 Israeli-Hezbollah War 57–59, 92, 95–98 (2007).
. As of July 2021, these events appear in a total of five articles in Westlaw’s Law Reviews and Periodicals database, and in those five, their mention is limited to a few lines at most and is ancillary to arguments unrelated to government obligations to protect soldiers. See Michael C.M. Louis, Dixie Mission II: The Legality of a Proposed U.S. Military Observer Group to Taiwan, 22 Asian-Pac. L. & Pol’y J. 75, 112 (2021) (using the crashes as examples of the customary international law principle that “any foreign vessel in distress has a right of entry to any port”); Tod Duncan, Air & Liquid Systems Corporation v. DeVries: Barely Afloat, 97 Denv. L. Rev. 621, 638 (2020) (noting a brief, in discussion of the doctrine of “special solicitude” afforded to sailors, that mentions the collisions as evidence for the assertion that “today’s maritime work is precarious”); Justin (Gus) Hurwitz, Designing a Pattern, Darkly, 22 N.C. J.L. & Tech. 57, 79 (2020) (using the McCain’s touch-screen failures as “example[s] of the complexity and stakes of design decisions”); Arctic L. & Pol’y Inst., Arctic Law & Policy Year in Review: 2017, 8 Wash. J. Env’t. L. & Pol’y 106, 220 (2018) (listing collisions in section on marine casualties and noting that they and other collisions “provide new insight into the risks posed by vessel traffic in the Arctic”); Erich D. Grome, Spectres of the Sea: The United States Navy’s Autonomous Ghost Fleet, Its Capabilities and Impacts, and the Legal Ethical Issues That Surround, 49 J. Mar. L. & Com. 31, 43–44 (2018) (mentioning the McCain and Fitzgerald collisions to support an argument in favor of a “ghost fleet” that could avoid dangers posed to ships in the South China Sea region).
* Professor of Law, University of California, Berkeley, School of Law. For helpful comments and conversations, I am grateful to Nels Bangerter, Lori Damrosch, Laurel Fletcher, Monica Hakimi, Julian Jonker, Eliav Lieblich, Christina Parajon Skinner, David Zaring, and participants in the Columbia Law School International Criminal Law Colloquium and the Wharton Legal Studies and Business Ethics Faculty Seminar. I thank the editors of the Southern California Law Review for their contributions. Toni Mendicino, Jennifer Chung, Anthony Ghaly, Dara Gray, Diana Lee, and Jenni Martines provided invaluable research assistance.