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Book Review – The War on Terror and the Laws of War: A Military Perspective

Michael Lewis, Eric Jensen, Geoffrey Corn, Victor Hansen, Richard Jackson and James Schoettler , The War on Terror and the Laws of War: A Military Perspective (Oxford University Press, 2009) ISBN13: 978-0-19-538921-0ISBN10: 0-19-538921-2

This book is written by six American legal scholars with experience as members of the legal profession in the US armed forces. The foreword by Major General Charles J. Dunlap, Jr. (Deputy Judge Advocate General of the US Air Force), is followed in turn by seven chapters, dealing respectively with the law applicable to the war on terror, targeting of persons and property, detention of combatants, interrogation and treatment of detainees, trial and punishment for battlefield misconduct, command responsibility and responsibility, and last but not least battlefield perspectives on the laws of war. Each chapter addresses a specific operational issue arising in the framework of the Global War on Terror (GWOT) and illustrates how resolution of that issue serves a commitment to preserving the balance between authority and obligation under the laws of war. The book is based on the premise that because the United States has characterized the struggle against terror as an armed conflict – characterization reflected in the decisions of all three branches of the US government – there is no doubt that the US has and will continue to invoke the law of war as a source of authority for military operations against terrorist threats.

The authors’ blend of scholarly perspective with military experience makes the discussion of intricate legal issues relating to the declared ‘war on terror’ more captivating. As Major General Dunlap submits in his foreword, the mindset the authors bring in their discussion is an essential component in developing a genuine appreciation for the purpose and objectives of the law, which in turn is essential to critically analyzing the role of this law in the emerging realities of warfare. Dunlop draws attention to the need of understanding how the law of war is implemented by warfighters in today’s battles against terrorists and extremists.

As Geoffrey Corn notes in the introduction, after 11 September military legal advisers confronted a genuine anomaly: military operations designated by the nation as ‘war’ or ‘armed conflict’ that failed to fit neatly within the accepted common article 2 or 3 law-triggering paradigm of the 1949 Geneva Conventions (GCs). A further complication was the introduction by the Executive branch of the new ‘status’ of ‘unlawful enemy combatants’. Corn finishes his discussion of what law applies to the war on terror in chapter 1 with the proposition that the answer needs to be derived from a new perspective, that is the perspective of the warrior.

The second chapter, focusing on targeting of persons and property, is written by Eric. T. Jensen. It starts with the statement that it is a simple reality of warfare that in order to defeat an enemy it is necessary to attack and destroy the enemy’s combat capability. Jensen concludes that though the transnational armed conflict against terrorists is neither a traditional armed conflict, nor a non-international armed conflict, the law of armed conflict (LOAC) still applies to military operations supporting this fight.

Chapter 3 on detention of combatants and the global war on terror is written by James A. Schoettler, Jr.  Schoettler notes that the important distinction between individuals who fall within the categories of combatants who, upon capture would be treated as prisoners of war (POWs) and those who engage in combat activities but are not entitled to be treated as POWs (‘unlawful combatants’ or ‘unprivileged belligerents’) is that unprivileged belligerents do not enjoy combatant immunity, and can be prosecuted by the capturing State under its domestic law for any belligerent acts they have committed. This chapter provides an interesting analysis of orders issued by the Executive branch and US case law on the issue of detention.  Schoettler suggests that according to all detainees, to the maximum extent feasible, the standards of treatment accorded to prisoners of war would seem consistent with the law of war theory, upon which military detention is based and which posits that detention (at least absent prosecution) is no punishment.

Chapter 4 on interrogation and treatment of detainees in the global war on terror is written by Dick Jackson. As Jackson points out, interrogation is at the core of the legal debate regarding the al Qaeda and Taliban members detained by the US government. Deficiencies in military interrogation and treatment of detainees by the US were cause for great controversy. However, Jackson concludes that the US Army is left with the standards it began the War on Terror with – the minimum humane treatment standards of Common Article 3 as a legal baseline in all conflicts, supplemented, as a matter of policy, with protections afforded by GC III and GC IV, to treat all those that are no longer taking an active part in hostilities decently and humanely.

Chapter 5 on trial and punishment for battlefield misconduct is co-written by Geoffrey Corn and Eric T. Jensen. Numerous questions relating to trial and punishment of acts of terrorism arose after Military Order Number 1 issued by President Bush. Corn and Jensen conclude that terrorists detained in the fight against transnational terrorism are legitimately subject to military commissions. Yet, they further submit that under the US Military Commissions Act (MCA) terrorists are prosecuted for crimes that are not traditional international law crimes, though they are domestic crimes.

Chapter 6 on command responsibility and accountability is written by Victor M. Hansen. As he points out, the doctrine of command responsibility is the cornerstone of LOAC. It is derived from the expectation that the LOAC is only as effective as the military commanders entrusted with the responsibility to ensure that their subordinates understand and respect this law. According to Hansen, while it may be tempting to seek to condemn a terrorist leader as an ‘irresponsible’ commander, the doctrine is simply inapposite to this context. In contrast, he concludes that the unilateral application of the command responsibility doctrine to a force called upon to fight against a transnational terrorist organization is both a logical and necessary extension of this doctrine into an uncertain realm.

The last chapter on battlefield perspectives on the laws of war is written by Michael W. Lewis. As Lewis notes, any genuine understanding of the role of the law of war in the struggle against transnational terrorism begins with an appreciation of the unique context in which the law of war operates. He draws attention to the fact that at the tactical ‘point of execution’ level, military personnel risk their lives and take the lives of others, based upon instantaneous decisions that seldom allow for reflection or consideration, let alone the benefit of timely legal advice. Therefore, the process of translating the complex legal mandates from the strategic level into practical parameters is critical.

The issues discussed in the book have gained greater urgency and have highlighted the need to tackle them in a comprehensive way. As Corn underlines, it has often proven elusive to apply traditional legal rules in a non-conventional conflict. One of the greatest values of the book, as pointed out by Dunlap, lies in that it provides a source of information for the readers without a military background about the views of those tasked with dealing with the threat of terrorism. Indeed, the War on Terror and the Laws of War provides clarity by offering a practical exposition of the challenges facing military officers on the battlefield.

It is a pity though that while the book has an introduction, it does not have a conclusion. Whether that was the authors implied response that the war on terrorism is something that will keep the military busy for a while will remain a puzzling question. The book can serve a wide audience interested in understanding how the laws of war apply in the framework of the war on terrorism. That would include at a minimum scholars of international humanitarian law, military lawyers, other legal practitioners, and students.

You can buy the book here.

Gentian Zyberi

Utrecht, 18 December 2009

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