BOOK REVIEW
A REVIEW OF: THE WAR ON TERROR
AND THE LAWS OF WAR: A
MILITARY PERSPECTIVE
JEFF BOVARNICK
Abstract: Since the terrorist attacks of September 11, 2001, scholars have
debated the law of war and its applicability to the war on terror from
numerous perspectives, to include the policy, human rights, and law
enforcement perspectives. Various viewpoints cover the full spectrum of law
of war issues, ranging from conflict classification to targeting, detention,
interrogation, and trial of terrorists, as well as the responsibility of the
commanders leading the war effort. Arguably, one of the most important
perspectives on these issuesthe military perspectivehas been the most
underrepresented. Considering the complexity of the legal issues on the
modern battlefield, scholars who have served in the military and advised
commanders have a critical perspective to round out the debate.
The co-authors of The War on Terror and the Laws of War have enhanced
the legal debate by providing the reader a comprehensive analysis of the
major issues in the current armed conflict against transnational terrorists.
This review presents a synopsis of the co-authors legal analysis from their
collective experience as military officers and judge advocates who served
and advised commanders on law of war issues during periods of armed
conflict. Through their scholarship, the co-authors offer readers another
perspectivethe essential military perspectiveand a more thorough
understanding of the complex legal landscape in the war on terror.
Chair & Professor of Law, International and Operational Law Department, The Judge
Advocate Generals Legal Center & School, U.S. Army, Charlottesville, Va.
885
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INTRODUCTION
In the above quote, Major General Charles Dunlap2 provides an apt
description of the complex legal landscape in the current war on terror. The
controversy over the laws applicable to the armed conflict against terrorists
has touched all branches of the United States government and everyone
from legal scholars, human rights advocates, and military practitioners
entered the debate. And while there may be controversy, the fact remains
that executive, legislative, and judicial branches all recognize that the
United States has and will continue to invoke the law of war as a source of
authority for military operations to destroy, disable, capture, and
incapacitate terrorist enemies.3
In The War on Terror and the Laws of War, the authors collective
ability to provide a clear analysis of this specialized area of the law4 makes
this comprehensive one-volume text5 relevant for those scholars, advocates,
practitioners, and government officials who help shape U.S. law and policy
in this arena. The books seven chapters could stand as independent law
review articles on the essential law-of-war topics they cover, yet taken
together they provide the reader with the critical linkage of a technical
1. Charles J. Dunlap, Jr., Foreword to GEOFFREY S. CORN ET AL., THE WAR ON TERROR
AND THE LAWS OF WAR: A MILITARY PERSPECTIVE vii (2009) (emphasis added).
2. Major General Charles J. Dunlap, Jr., is the Deputy Judge Advocate General of the
United States Air Force Judge Advocate Generals Corps, a position that he has held since
May 2006. He will retire in June 2010 after thirty-four years of service as a judge advocate.
Biographies: Major General Charles J. Dunlap Jr., http://www.af.mil/information/bios/bio
.asp?bioID=5293 (last visited May 1, 2010).
3. Geoffrey S. Corn, Introduction to CORN ET AL., supra note 1, at xvi.
4. As used in the book, the terms law of war and law of armed conflict (LOAC)
refer to the law governing the conduct of belligerents engaged in armed conflict and is the
official term used by the Department of Defense. See CORN ET AL., supra note 1, at 1 n.2;
U.S. DEPT OF DEFENSE, DIR. 2311.01 E, DOD LAW OF WAR PROGRAM (9 May 2006). These
terms are also synonymous with international humanitarian law (IHL).
5. While The War on Terror and the Laws of War is part of Oxford University Presss
Terrorism and Global Justice Series, each of the three books in the series are separate and
distinct and not part of a multi-volume set. The other two books in the series are Amos
Guioras Freedom From Religion (2009) and Philip ONeills Verification in an Age of
Insecurity: The Future of Arms Control Compliance (2009).
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understanding of the law of war with the actual practice of war.6 With a
focus on the warfighters efforts at the front of our nations effort to combat
transnational terrorism, the authors provide in-depth, understandable legal
analysis on the practical application of the law to: (1) the armed conflict
itself; (2) the targeting of persons and property; (3) detention; (4)
interrogation and treatment of detainees; (5) trial and punishment for
battlefield misconduct; (6) command responsibility; and (7) battlefield
perspectives.7
This review will examine why the authors are well-suited to provide a
military perspective, a heretofore underrepresented viewpoint in the
contemporary scholarly landscape, and how the authors provide the reader
with a keen understanding of how the law of war is implemented by
warfighters in todays battles against terrorists.8
I. A Military Perspective
The true strength of The War on Terror and the Laws of War comes
from its six authors9 and their military perspective. While there has been
a proliferation of legal scholarship in the aftermath of September 11, 2001,
few books or texts combine the talents and experience of multiple military
practitioners, specifically former judge advocatesmilitary lawyerswho
devoted the majority of their legal careers to the practice of law in the
military.10 As Major General Dunlap notes, The War on Terror and the
Laws of War:
aims to bring to the discussion the perspective of lawyers who
have served in what the Supreme Court in Parker v. Levy calls
the specialized society separate from civilian society which is
the armed forces. By virtue of their military service in this
11. Dunlap, Foreword to CORN ET AL., supra note 1, at viii (quoting Parker v. Levy, 417
U.S. 733, 744 (1974)).
12. All but one of the authors served as judge advocates. Professor Mark Lewis was an
active duty Navy pilot before attending law school, and he did not serve on active or reserve
duty as a judge advocate. Michael W. Lewis, Battlefield Perspectives on the Laws of War, in
CORN ET AL., supra note 1, at 209.
13. Although he retired from active duty after thirty years, as the Law of War Legal
Advisor for the Department of the Army, Dick Jackson continues to advise senior officers
and government officials.
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collective expertise on the laws of war and their credentials as both military
practitioners and legal scholars are impeccable. Due to this combined
background, the authors provide a wide audience of readers with a view of
the debate through a lens they may not have otherwise considered, or if it
had been considered, little scholarship existed to further the debate. What
follows is the authors military perspective of the laws of war in the war on
terror.
II. The Laws of War
14. In addition to this book, Professor Corns Faculty Bibliography lists forty-five
articles, thirty-five commentaries, another book, a book review, and six chapters for other
publications. CornFaculty Bibliography of Writing, South Texas College of Law,
http://www.stcl.edu/faculty_pages/facbiblo.htm#corn (last visited May 1, 2010).
15. See generally Geoffrey S. Corn, What Law Applies to the War on Terror?, in CORN
ET AL., supra note 1, at 1, 2 & n.3 for a discussion of Common Articles 2 and 3 of the four
Geneva Conventions of 1949. See also Convention (I) for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field arts. 2 and 3, opened for signature
Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GCI, Common Article 2 and
Common Article 3], reprinted in INTL & OPERATIONAL LAW DEPT, THE JUDGE ADVOCATE
GEN.S LEGAL CTR. & SCH., LAW OF WAR DOCUMENTARY SUPPLEMENT 101 (2009)
[hereinafter LAW OF WAR DOC SUPP]. International armed conflict (between two States)
triggers Common Article 2 and therefore the entire body of laws contained in the four
Geneva Conventions of 1949 as well as Additional Protocol I of 1977. Non-international (or
internal) armed conflict (intra-State conflict restricted to the territory of a single state
between regular armed forces and dissident or insurgent groups or those armed forces
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fighting each other) triggers Common Article 3 (only) and its limited rules as well as the
narrowly applied Additional Protocol II of 1977. Id.; see also Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflict (Additional Protocol I) [hereinafter API] and Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts (Additional Protocol II) [hereinafter APII],
opened for signature Dec. 12, 1977, 16 I.L.M. 1391 reprinted in LAW OF WAR DOC SUPP,
supra, at 187-231; see also INTL & OPERATIONAL LAW DEPT, THE JUDGE ADVOCATE GEN.S
LEGAL CTR. & SCH., THE LAW OF WAR DESKBOOK 17-24 (2010) [hereinafter LAW OF WAR
DESKBOOK]. In addition to the four Geneva Conventions of 1949 and Additional Protocols I
and II of 1977, numerous other treaties and documents are reprinted in their entirety in the
LAW OF WAR DOC SUPP. These two books, the Law of War Deskbook and the Law of War
Documentary Supplement (along with the INTL & OPERATIONAL LAW DEPT, THE JUDGE
ADVOCATE GEN. LEGAL CTR. & SCH., OPERATIONAL LAW HANDBOOK (2009)), are available
at http://www.loc.gov/rr/frd/Military_Law/LCS-International-and-Operational-Law-Dept.ht
ml.
16. Corn, supra note 15, at 2-3.
17. Id. at 4 (footnote omitted).
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response to his question what law applies to the war on terror? the author
concludes that LOAC appliesat least applicability of fundamental
LOAC principles such as humanity, distinction, proportionality, and the
prohibition against inflicting unnecessary sufferingto invocation of the
most basic authority of armed conflict: inflicting death as a measure of first
resort.25
So then, the real question may be: what triggers these LOAC
principles in the war on terror? Again, the author proposes a solutionthe
need for a de facto indicator of armed conflictthat is to say certain law-
triggering conditions beyond those focused on the inter/intra-state conflict
paradigm.26 Here, the author suggests that the distinction between
conduct-based use-of-force authority versus status based use-of-force
authority is the key factor in the analysis and he concludes that when
armed forces conduct operations pursuant to a status based use-of-force
authority, they are essentially operating within an armed conflict
paradigm.27 In status based military operations, deadly force as first resort
is the norm and such operations are legally permissible as long as they
comply with the other fundamental LOAC principles.
In Chapter 1, the author concludes that a transnational armed conflict
trigger that invokes the fundamental LOAC principles (including the
regulation of the application of combat power and the requirement to
provide humane treatment of captured and detained personnel) will serve
the interests of both the victims of war and the warriors that engage in
combat.28
policy concerns with the need to provide a logical and relevant operational regulatory
framework. Id. at 23.
25. Id. at 26.
26. Id. at 24.
27. Id. at 27-28.
This dichotomy between conduct-based and status-based use-of-force
authority mirrors the dichotomy between the law enforcement and
armed conflict legal paradigms. This conclusion is derived from a
simple truism: the most fundamental distinction between law
enforcement and armed conflict is manifested in the scope of use of
deadly force authoritya distinction between the use of deadly force as
a last resort and use of deadly force as a first resort. As a result, use-of-
force authority provides an effective de facto indicator of the line
between non-conflict and conflict operationsa line that indicates when
regulatory principles of LOAC must come into force.
Id. at 29 (footnote omitted). Here the author continues that LOAC principles (deadly
force as first resort) are inconsistent with law enforcement activities which operate under
domestic law and human rights law paradigms. Id.
28. Corn, supra note 15, at 34-36.
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29. Eric T. Jensen, Targeting of Persons and Property, in CORN ET AL., supra note 1, at
37, 62 (emphasis added).
30. Id. at 39.
31. Id. at 39-44.
32. The Lieber Code was also known as the Instructions for the Government of
Armies of the United States in the Field (U.S. War Dept, Gen. Order No. 100 (24 Apr.
1863)).
33. See Convention (IV) Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land, The Hague, 18 October 1907, reprinted in LAW OF WAR
DOC SUPP, supra note 15, at 20-26.
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conflict. The Geneva tradition (also known as the respect and protect
tradition) came later, after World War II (WWII), when the four Geneva
Conventions of 1949 focused on the protection of numerous classes of
potential victims in armed conflict.
Next, the author reviews the law with respect to targeting persons and
property in armed conflict,34 focusing on one of the fundamental principles
of armed conflictdistinction.35 Military forces must distinguish between
the civilian population and combatants and between civilian objects and
military objectives.36 The principle of distinction dictates that the military
cannot target civilians or civilian objectsthey are immune from attack.37
In an age when terrorists look more like civilians than uniformed
combatants, this rule becomes an ally to the terrorist who hides behind it
and problematic for military operators who abide by it.
As Professor Jensen points out, [d]istinction is really about target
selection38 and the immunity granted to civilians is not absoluteit
applies unless and for such time as they take . . . direct part in
hostilities.39 As also noted by the author, these wordsdirect participation
in hostilities (DPH)have been the subject of great debate, primarily over
how they are applied in military operations against suspected terrorists. In
the war on terror,
[r]esponding to the often raised revolving door problem where
civilians are farmers by day [and] insurgents every night, the
[International Committee of the Red Cross (ICRC)] recognizes
that these individuals should have an expanded window of
targetability. However, to fall into that expanded window, they
must be members of an organized group operating as the armed
wing of a non-state party to an armed conflict.40
In May 2009, after The War on Terror and the Laws of War went to
the publisher, the ICRC published its Interpretive Guidance on the Notion
of Direct Participation in International Humanitarian Law (ICRC
34. The author notes that [n]o distinction need be made between international and non-
international armed conflict. Rather, the principles of targeting apply generally to all forms
of armed conflict. This is exemplified by the fundamental targeting principle of distinction.
Jensen, supra note 29, at 44.
35. Id.
36. Id. (quoting Article 48 of API).
37. Id. at 46.
38. Id.
39. Id.; see also LAW OF WAR DOC SUPP, supra note 15, at 201 (stating the full text of
API, Article 51(3) for the law protecting the civilian populace and Article 52 for the law
protecting civilian objects).
40. Jensen, supra note 29, at 48.
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REPATRIATES, DOCUMENTS AND MATERIAL (22 July 1940 and June 1945)).
66. Id. at 131.
67. Jackson, supra note 62, at 131-37.
68. Id. at 138.
69. Id. at 139.
70. See generally id. at 137-52.
71. Id. at 142-43 (discussing Guantanamo Bay); id. 150-51 (discussing Abu Ghraib).
72. Id. at 152.
73. Pub. L. No. 109-148, 1005(e), 119 Stat. 2680, 2742-44.
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the policy guidance for treatment standards for individuals detained in the
war on terror.74 Coming full circle:
The U.S. Army is left with the standards it began the War on
Terror withthe minimum humane treatment standards of
Common Article 3 as a legal baseline in all conflicts,
supplemented, as a matter of policy, with the protections
afforded by GCIII and GCIV, to treat all those that are hors de
combat . . . as decently and humanely as the conscience of our
individual soldiers and the dictates of the public conscience
demand.75
authors highlight the fact that, for all the extensive litigation in that
landmark case, the defense never challenged the jurisdiction to try Hamdan
as a war criminal, essentially conceding that law-of-war jurisdiction was
applicable.79
Thus, from the outset of the Global War on Terror, the struggle
against transnational terrorism has been treated by the United
States as an armed conflict triggering LOAC obligations. This
determination is critical, for it provides the jurisdictional basis
for designating acts and omissions of terrorist operatives as war
crimes. . . . At a more immediate level, however, must be a
critique of the subordinate issues created by this invocation of
LOAC: what is the legitimate scope of criminal jurisdiction
derived from a transnational armed conflict, and what, if any,
procedural protections does the LOAC demand for any person
80
subject to trial for violating this law?
Traditionally, war crimes fell solely within the realm of international
armed conflict. That changed in 1996 with the historic decision rendered in
Prosecutor v. Tadic where the International Criminal Tribunal for the
Former Yugoslavia extended, for the first time, the concept of individual
criminal responsibility to non-international armed conflict.81 As a result,
the differences between international and non-international armed conflict
have become virtually transparent at the operational level.82 The next
logical step was the extension of war-crimes jurisdiction to the armed
conflict against transnational terrorists.83
With jurisdiction derived, the authors turn to the issue of what
substantive and procedural protections are afforded by the LOAC. First,
with respect to substantive provisions, the authors propose a simple charge
alleging violations of the laws of war for the prosecution of a terrorist
operative at a military tribunal or commission.84 Second, for the procedural
civilians (and) (or) civilian objects (with the intent of terrorizing the
population).
Id.
85. Id. at 181-83. While the United States has not ratified Additional Protocol I, a
number of its provisions, including Article 75, are considered to be customary international
law. Additionally, the Hamdan Court noted its approval of the safeguards outlined in Article
75. Id. at 181-82 (quoting Hamdan v. Rumsfeld, 548 U.S. 557, 633 (2006)).
86. Military Commissions Act of 2006, 10 U.S.C. 948r(c), (d); Corn & Jensen, supra
note 76, at 184-85.
87. Victor M. Hansen, Command Responsibility and Accountability, in CORN ET AL.,
supra note 1, at 187 (emphasis added).
88. Id.
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89. Id.
90. Id. at 191. Prior to his conclusion, Professor Hansen explains why command
responsibility does not refer to situations of direct liability such as where a commander
orders, encourages, or assists his subordinates in committing a war crime or situations of
strict vicarious liability where the commander is liable solely due to the position even if
he/she was in no way derelict in his/her duties. Id. at 189-90.
91. Id. at 191.
92. Id. at 192-98. Professor Hansen highlights the seminal command responsibility case
of General Tomoyuki Yamashita, which was the first post-World War II case to address the
doctrine. General Yamashita was tried and found guilty by a military commission convened
by General Douglas MacArthur for LOAC violations committed by his forces during WWII.
The theory of liability, ultimately upheld by the U.S. Supreme Court (in In re Yamashita,
327 U.S. 1 (1946)), was that General Yamashita failed to effectively control his forces, and
he was therefore criminally responsible for their LOAC violations. Id. at 193-94 & nn.13-
17. Articles 86 (Failure to Act) and 87 (Duty of Commanders) of Additional Protocol I to
the Geneva Conventions codified the doctrine within the treaties. Id. at 195-96. The
international tribunals and the additional international statutes that addressed and codified
the doctrine of command responsibility include the International Court for the Former
Yugoslavia and Article 7(3) of that court; the International Court for Rwanda and Rule 6(3)
of that court; and the International Criminal Court and Rule 28 of the Rome Statute. Id. at
196-98.
93. Hansen, supra note 87, at 198-201.
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The student of the law must . . . always be aware of the reality that the
strategic and operational complexity of law must somehow effectively
translate into practical application.98
The last section of this review is separated from the prior sections
because Chapter 7 distinguishes itself from the six preceding chapters by
providing a different military perspectiveone from the battlefield itself.
In military terminology, this chapter focuses on the tactical level while the
first six chapters focus on the strategic and operational levels. Also, unlike
his five co-authors, Professor Lewis is the only author that did not serve on
active duty as a judge advocate. No, he only served as an F-14 naval pilot
for seven years flying missions in support of Operation Desert Shield and
graduating as a Topgun from the Naval Weapons School.99 This author
provides a perspective from the tip of the spear, which, for a
servicemember in combat executing the missions from higher headquarters,
is the only perspective that matters. This chapter is invaluable to those non-
military lawyers and policymakers, as it provides a glimpse of how
strategic goals and operational plans are put into practice on the ground.
Professor Lewis combines his practical experience as a pilot with his
expertise as a law-of-war scholar to explain how [t]he nature of warfare
means that [the LOAC] can only be effective if it is instilled in the
combatants involved in the armed conflict.100
Professor Lewis poses and then answers some interesting questions
regarding the process of effectively injecting law into warfare, the factors
influencing the effectiveness of the process, and how that effectiveness is
measured.101 In answering these abstract questions, the author, using as
examples aviation, artillery, and infantry methods of targeting in the war on
terror, educates the reader on the long and complex process of effectively
injecting law into war.102 The author concludes that key elements to success
in this endeavor are technology, simplicity, clarity, and the close interaction
Would you find it acceptable if the people under your command were
treated this way by the enemy if they were taken into custody?105
Where Major General Dunlap begins the book with a quote
concerning the complexity of applying the laws of war in the war on terror,
Professor Lewis concludes by capturing the essence of the legal advisors
role in the war on terrorthat it falls upon the legal advisor at the tactical
level to simplify these complexities to an understandable format that can be
implemented by the warriors. It is the first task of legal officers to
communicate the core principles of [the LOAC] in a manner that increases
the likelihood that combatants will believe in these restrictions and
guidelines rather than just accept them.106
CONCLUSION