The Lawyering of War

By Berkowitz, Peter | Policy Review, February-March 2010 | Go to article overview

The Lawyering of War


Berkowitz, Peter, Policy Review


MICHAEL LEWIS, ERIC JENSEN, GEOFFREY CORN, VICTOR HANSEN, RICHARD JACKSON, AND JAMESSCHOETTLER. The War On Terror and the Laws of War: A Military Perspective. OXFORD UNIVERSITY PRESS. 248 PAGES. $85.

SINCE THE LATE 1970S, experts have been pondering a "revolution in military affairs." The revolution to which they usually refer has been generated by tremendous technological developments, particularly in computer science and telecommunications, which have brought fighters stunning improvements in combat mobility and knowledge of the battlefield, and have yielded staggering advances in the firepower and precision of their weapons. This revolution is not the first of its kind. Before it, breakthrough technologies - gun powder, mechanized tanks, steel battleships, and air power - changed the face of battle and compelled strategists to return to first principles to sort out the implications for waging and winning war. Nor is this revolution the only significant contemporary transformation in military affairs.

The other involves law. The last 30 years have witnessed a remarkable expansion in the scope, salience, and sum total of the laws that govern war; in the participation of lawyers in shaping overall strategy and battlefield tactics; and in the role of courts in declaring crimes and meting out punishments.

Of course laws and customary practices, and the opinions about justice that they embody, are not new to warfare. The ancient Chinese, Persians, and Greeks had their laws and customs of war. And warriors have always had their codes.

Since the Peace of Westphalia in 1648, in which the nations of Europe formally recognized the fundamental principles of national sovereignty on which the international order continues to be based, the community of nations has been consolidating and committing to writing a distinctive body of laws to regulate armed conflict. These laws of war - also referred to by professionals as the law of armed conflict, or international humanitarian law - embody the characteristic view of liberal modernity that all human beings are by nature free and equal.

Landmarks in liberal modernity's legalization of warfare include the Lieber Code signed into law by President Abraham Lincoln in 1863 to provide rules of right conduct for Union soldiers; the mid-19th century establishment in Geneva of the International Committee of the Red Cross; the Hague Conventions of 1899 and 1907; the first Geneva Convention of 1929, the Geneva Conventions of 1949, and the Additional Protocols of 1977; the Nuremberg Trials in 1945 and 1946; the establishment of the International Court of Justice by the UN Charter in 1945 and the establishment of the International Criminal Court by the Rome Treaty in 2002; and the international tribunals to try war crimes created for Yugoslavia in 1993 and for Rwanda in 1994.

In the past few decades, these developments have culminated in a new moment in the history of warfare. The obligation powerfully felt by American officers throughout the chain of command to regularly consult with lawyers to ensure that that their plans and objectives comply with legal requirements, and the conviction, ingrained in American soldiers, sailors, and airmen that elaborate rules rightly constrain every pulled trigger, fired round, dropped bomb, and launched missile, reflect a novel way of conducting military affairs.

The U.S. armed forces are playing a leading role advancing the legalization of warfare. It is no slight to the avid contribution of international human rights lawyers, NGOS, activist courts, and the legal academy to observe that the Pentagon is by far the largest employer of lawyers specializing in the laws of war, and military lawyers are at the forefront of efforts to clarify the rules that cover the degrading, disabling, and destruction of the enemy; the capture, detention, interrogation, prosecution, and punishment of lawful and unlawful enemy combatants; and the protection during armed hostilities of non-combatants and civilians. …

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