War has existed since time immemorial. . . . When war was fought with stones and clubs, few rules were necessary and, of course, none existed. Nevertheless, the law of war is probably the oldest facet of international law . . . .1
Today, of course, we are beyond stones and clubs. To impose humanity into the conduct of war, the international community has slowly but inexorably evolved a code for war fighting.
Earlier advancements in mitigating the effects of war have moved forward to where, today, we have a full, and growing, body of law known as the law of war ("LOW") or the law of armed conflict ("LOAC").2 The purpose of the LOW is to make possible the successful accomplishment of the military mission while limiting the effects of war by protecting both combatants and noncombatants from unnecessary suffering, safeguarding the fundamental human rights of those who fall into the hands of the enemy, and facilitating the restoration of peace.
This essay discusses the role of military lawyers (judge advocates) in war. It will explore the role of military lawyers at all levels of command3 and will center on the development of the "operational lawyer." Operational law ("OPLAW") advisors are distinguished by their practice: they support the commander's conduct of warfare.4
The discussion about the role of military lawyers in war starts with the LOW and the commitment of the United States to conduct military operations within the bounds of this body of international law. After decades of steady development in humanitarian law, the war crimes tribunals following World War II sped the development of the LOW, providing for the first time an accepted body of precedent associated with the enforcement of the LOW.
Efforts to enforce the LOW have been complemented by international instruments that have served to contain the cruelty of war. From the Lieber Code of the US Civil War to the 1907 Hague Resolutions and 1949 Geneva Conventions, and on to international efforts to outlaw chemical and biological weapons, numerous international declarations and conventions have had the purpose of limiting or otherwise shaping the conduct of warfare.5 These norms have generally centered on the proposition that "[t]he right of belligerents to adopt means of injuring the enemy is not unlimited."6 From this proposition flow the commonly accepted principles of war: distinction,7 military necessity,8 proportionality,9 and avoidance of unnecessary suffering or inhumanity.10 Today, any debate about the LOW relates to its overall scope or application in particular conflicts. The importance and widespread nature of these principles has been demonstrated by the international debates engendered by the 1998 conflict surrounding Kosovo, the global war on terrorism, and, most recently, the war in Iraq.
The expansion of humanitarian law, the international commitment to enforce the law of war, the pressure to minimize civilian casualties in military operations, the effect of domestic law on military operations, and the flow of information and images from battlefields to every corner of the world have inevitably increased the role and importance of legal advisors in war. Indeed, the commander, knowing that the way he or she fights and the consequences of such decisions are subject to public scrutiny, looks to the military lawyer to ensure that the desired use of force is legal. As Brigadier General Charles Dunlap succinctly puts it, knowing the legal challenges they will face, "savvy American commanders seldom go to war without their attorneys."11 In the end, "[lawyers] provide harried decision-makers with a critical guarantee of legal coverage, turning complex issues of morality into technical issues of legality, so that whatever moral or operational doubts a commander may have, he can at least be sure he will not face legal consequences."12
Today, however, the role of military lawyers has itself come under scrutiny, with some concerned that legal advisors wield too much influence in the conduct of military operations. …