The Removal of Conscience

Operation Epic Fury · Brief 009 · Fictional Analytical Scenario

Operation Epic Fury · Brief 009 · Fictional Analytical Scenario

You cannot claim you took adequate precautions to minimise civilian casualties when you systematically removed the institutional mechanisms whose function was to ensure adequate precautions were taken. The removal of the conscience is itself the crime.

The US Judge Advocate General corps is the military’s institutional conscience in a legally precise sense. JAGs are commissioned officers whose specific functions in the targeting chain include reviewing proposed targets for compliance with the distinction requirement, conducting proportionality assessments, advising on precautionary measures, and providing the legal standing for officers to refuse unlawful orders.

Removing JAGs from the targeting chain does not just remove legal advice. It removes the institutional mechanism that the laws of armed conflict require to be present. Article 82 of Additional Protocol I specifically requires that legal advisors be available to advise military commanders on the application of international humanitarian law.

Pete Hegseth has framed legal and ethical oversight as bureaucratic friction impeding military effectiveness. When the institutional culture of a military organisation systematically frames the exercise of legal judgment as weakness — when that framing comes from the civilian leadership — it constitutes a top-down instruction to deprioritise the legal review requirements that international humanitarian law mandates.

The culture is the policy. The policy produces the outcomes. The commander who installed the culture is responsible for the outcomes.

The AI targeting system deployed in Iran was trained on target environments in Gaza and Iraq, deployed without environmental validation, with seconds-level human review that cannot meaningfully conduct the distinction and proportionality assessments IHL requires. The formal presence of a human in the loop does not satisfy the substantive legal requirement. The school is the documented consequence.

Gallant called Palestinians “human animals” two days before the ground invasion — to which he was the operational commander. Netanyahu invoked the Biblical command to kill every man, woman, child and infant of a specific people on the eve of that invasion.

These are not rhetorical excess. In the context of command responsibility, the public statements of military and political leaders are evidence of the mental element required for the most serious charges. A force that has been told by its operational commander that it is fighting human animals will interpret ambiguous operational orders in that frame. The frame is Gallant’s creation.

The operational evidence — 40,000+ dead, hospital raids, the flour massacre, deliberate aid blocking producing famine — constitutes the documented record against which the command responsibility analysis is applied.

Under Article 28 of the Rome Statute, three elements establish criminal liability: effective command and control, knowledge (or constructive knowledge), and failure to prevent or punish.

Trump: Authorised the operation. The institutional degradation that produced the conditions for the school was implemented under his administration. He attributed the school strike to Iran, later admitted he knew little about it, and moved on. The should-have-known standard is satisfied. The failure to prevent or punish is documented.

Hegseth: Most proximate command responsibility for the institutional decisions that removed oversight architecture. The removal of the conscience is documented, deliberate, and within his authority to have done differently.

Netanyahu: ICC warrant application filed. ICJ provisional measures orders issued and ignored. The three-element test is satisfied on the documented evidence.

Gallant: Human animals statement establishes personal mental element with unusual directness. ICC warrant application filed simultaneously with Netanyahu.

The command responsibility analysis does not stop at the civilian leadership. It extends to the senior military officers who knew or should have known and failed to act.

Under the Uniform Code of Military Justice and the Nuremberg principles, US military personnel have not just the right but the obligation to refuse unlawful orders. The JAG opinion that an order is unlawful is the formal mechanism that gives an officer legal standing to refuse without facing court martial. When JAGs are removed from the targeting chain, that protection disappears. The officer who raises a legal objection without JAG backing is professionally exposed. The institutional removal of conscience creates the conditions in which individual conscience becomes professionally dangerous.

The Chairman of the Joint Chiefs, the service chiefs, the combatant commanders — none have publicly raised legal objections to the operational parameters. That silence is itself a command responsibility question. Senior officers who knew or should have known that the targeting architecture was producing civilian casualties at a scale inconsistent with IHL requirements, and who failed to object, report or refuse, are potentially liable under the same Article 28 framework applied to the civilian leadership.

The JAGs who were sidelined — the specific officers whose legal review functions were removed or marginalised — are potentially witnesses in any future accountability proceeding. Their silence, whether compelled or voluntary, is part of the institutional record. The removal of the conscience was not anonymous. It had names and dates and institutional decisions attached to it.

The legal obligation is reinforced by something deeper: the professional formation every US officer received. West Point, Annapolis, the Air Force Academy, the Coast Guard Academy — all teach honour codes and professional ethics curricula that explicitly address the obligation to refuse unlawful orders, the primacy of the Constitution over the chain of command, and the individual officer’s moral responsibility for the consequences of orders followed without question.

The Nuremberg defence — “I was following orders” — is not just prohibited under the UCMJ. It is specifically taught at every US service academy as the foundational lesson of what professional military ethics exists to prevent. West Point’s motto is Duty, Honour, Country — in that order. Duty to the Constitution and to the laws of armed conflict comes before loyalty to a chain of command issuing unlawful orders. That sequencing is not incidental. It is the entire point.

Every senior officer who has remained silent went through that formation. They learned those lessons. They took those oaths. The ethos of the officer corps is not a political position — it is a professional standard that exists precisely to be immutable above politics. The silence of the officer corps in the face of documented IHL violations is therefore not merely a legal failure. It is a failure of professional identity. The institution is being asked to be something its own formation says it must never become.

The ICC warrants for Netanyahu and Gallant exist. His travel is constrained. The warrants for the US command chain have not yet been filed. US cooperation with ICC proceedings is not forthcoming under the current administration.

But the enforcement gap is not an argument against the legal analysis. Pinochet was arrested 25 years after his crimes. The architects of the Iraq war still travel carefully. The ICC warrants for Putin constrain his movement.

The school happened. The girls are dead. The record exists. The accountability architecture is incomplete and imperfect. It is not absent. And it does not expire.

The UK enabling question is also on the record. US aircraft transited through RAF Lakenheath, Mildenhall and Akrotiri from January — making those bases part of the operational architecture before the strikes began. Iran struck Akrotiri. The UK had created the target. Starmer cited that strike as justification for approving Diego Garcia and RAF Fairford for direct strike launches. The self-defence justification arrived because the prior involvement had already made UK assets legitimate targets. The trap was self-assembled. The legal distinction between enabling and participating is thinner than governments prefer to argue. That question is on the record too.

This is a synthesis of Brief 009 of the Operation Epic Fury series — the final brief.

Read the full brief at substack.joelmorin.com/brief-009.html

The complete series at substack.joelmorin.com