Bovarnick: A REVIEW OF: THE WAR ON TERROR AND THE LAWS OF WAR: A MILITARY PERSPECTIVE

BOVARNICK_FINAL FOR PDF 6/24/2010 4:16:43 PM
BOOK REVIEW
A REVIEW OF: THE WAR ON TERROR
AND THE LAWS OF WAR: A
MILITARY PERSPECTIVE
JEFF BOVARNICK
THE WAR ON TERROR AND THE LAWS OF WAR: A MILITARY PERSPECTIVE.

By: Geoffrey S. Corn, et al. New York: Oxford University Press, Inc. 2009.
Pp v., 248. Hardcover, $85.00.
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
886 NEW ENGLAND LAW REVIEW [Vol. 44:885
[E]valuating the propriety of twenty-first century military

operations requires a sophisticated understanding of the law of
war, an understanding made all the more complicated by the rise
of non-state actors who operate transnationally and use terrorism
as their principal weapon.1
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).
2010] THE WAR ON TERROR AND THE LAWS OF WAR 887
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
6. Dunlap, Foreword to CORN ET AL., supra note 1, at viii.

7. These are the books seven chapters. See id. at v (displaying the Table of Contents).
8. Dunlap, Foreword to CORN ET AL., supra note 1, at ix.
9. The six authors, Geoffrey S. Corn, Victor M. Hansen, Dick Jackson, Eric Talbot
Jensen, Michael W. Lewis, and James A. Schoettler, Jr., have more than 115 years of
combined active duty and reserve military service with the majority of that time as judge
advocates. See CORN ET AL., supra note 1, at 1 (Corn), 37 (Jensen), 67 (Schoettler), 125
(Jackson), 187 (Hansen), and 209 (Lewis) for the authors individual biographies.
10. Prior to becoming judge advocates, four of the authors (Corn, Hansen, Jackson, and
Jensen) served as active duty-line officers in military branches other than the Judge
Advocate Generals Corps. Corn served as a Military Intelligence Officer, Jackson served as
an Infantry Officer, and Hansen and Jensen served as Armor Officers before entering the
U.S. Army Judge Advocate Generals Corps via the Funded Legal Education Program.
Telephone Interview with Geoffrey S. Corn, Assoc. Professor of Law, S. Tex. Coll. of Law,
in Houston, Tex. (Jan. 21, 2010).
specialized society, these attorneys bring a unique perspective

to the law of war . . . . [T]he collective experience of these
authors in the art of warunderstanding weapons, tactics, and
especially, the psychology of warriors on a non-traditional
battlefieldenables the authors to provide an often overlooked
perspective on these increasingly complex and important legal
issues.11
With a wide target audience that includes law students, legal scholars,
human rights advocates, and policymakers (in addition to military
practitioners), the military perspective in the debate over the laws
applicable to the war on terror cannot be underestimated. In an armed
conflict, our military commanders are charged with the immense
responsibility of ensuring that the laws of war are applied by the service
members under their command. These commanders, highly skilled in
executing military operations, must rely on their legal advisorsprimarily
judge advocatesto provide timely and accurate legal advice on todays
complex battlefield. Thus the task falls to judge advocates to understand
not only their commanders decision-making processes, but also the
complexities of the military operations that their commanders orchestrate.
It follows that the authors of this book12 (who once filled the critical role13
of advising commanders) possess and provide that critical military
perspective when analyzing the laws of war and their applicability to the
current conflict.
As noted above, there has been a large increase in the scholarship
devoted to the law and its applicability to the war on terror. As such, there
are numerous perspectivesthe human rights perspective, the policy
perspective, the international perspective, and the law enforcement
perspective among others. These differing perspectives on controversial
issues lead to healthy debates. When the issues involve armed conflict and,
consequently, matters of life and death, the debates become even more
contentious. For any healthy debate, knowledge of the full range of issues
is essential and, of course, for lawyers debating the law, this is an
understatement. In The War on Terror and the Laws of War, the authors
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.
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
A. What Law Applies to the War on Terror?

In Chapter 1, Professor Corn, perhaps the most prolific writer14
among the six authors, proffers the threshold question that lays the
foundation for the entire text. While the question itself appears simple, for
reasons discussed below, the answer, and how it is derived, is not.
Professor Corns proposed answerthe law of armed conflict (LOAC)is
the subject of much debate from other non-military perspectives. Therein
lies the challenge for Professor Cornhow to explain to (or convince) a
wide audience of lawyers and non-lawyers, students and scholars, military
and civilians, and international and domestic practitioners in the fields of
international humanitarian law and human rights law that it is the LOAC
that applies (as a matter of law, not policy) to the war on terror. In thirty-six
pages with dozens of references, Professor Corn accepts and meets the
challenge.
Presuming a baseline knowledge of LOAC, the author begins with a
review of the law-of-war framework and the traditional law-triggering
paradigm for international armed conflict (Common Article 2) and non-
international (or internal) armed conflict (Common Article 3).15 Central to
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
this analysis is the distinction between LOAC principles applying to an

armed conflict as a matter of law or as a matter of policy. Even when
armed conflicts do not meet the criteria to trigger Common Articles 2 or 3,
if the United States sends military forces overseas, those forces will adhere
to LOAC principles (military necessity, distinction, proportionality, and
humanity) as a matter of policy even when they may not apply as a matter
of law.16 Moving on to the war on terror specifically, Professor Corn then
makes his critical point that serves as the launching pad for the remainder
of the chapter:
A new legal position began to emerge: the authority of the
LOAC would be asserted to provide the legal basis for the
execution of military operations against al Qaedaan entity
considered to be engaged in an armed conflict with the United
States; however, . . . al Qaeda captives were afforded no . . .
LOAC protections because the conflict they engaged in defied
classification under either Common Article 2 or 3.
The incongruity of this theory was readily apparent: the
United States was engaged in an armed conflict that provided the
authority to engage, destroy, capture, and detain the newly
defined enemy; however [because] it was an armed conflict that
did not fit into the traditional Common Article 2/3 either/or . . .
paradigm, the LOAC did not apply to constrain or regulate U.S.
operations. With regard to execution of combat operations, this
incongruity had little impact due to the military practice of
following LOAC principles during all operations as a matter of
17
policy.
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).
After recapping the well-documented flaws in the Bush

Administrations policies and criticizing the administrations authority
without obligation paradigm,18 Professor Corn then educates the reader on
the alternative legal theories19 that emerged to cover transnational armed
conflict,20 to include the United States Supreme Courts decision in
Hamdan v. Rumsfeld,21 that Common Article 3 applies in
contradistinction to Common Article 2 in the United States armed
conflict against al Qaeda.22
What is even more problematic from a pragmatic military
perspective is that the Common Article 3 characterization of
combat operations against transnational non-state enemies fails
to address principles of the law related to the application of
combat power. Common [A]rticle 3s substantial mandate is
focused only on the treatment of persons rendered hors de
combat (unable to fight), and does not regulate the application of
combat power. Thus, even when Common Article 3 is applied in
contradistinction to Common Article 2, the trigger for
application of these equally important and relevant regulatory
23
LOAC principles remains undefined.
Although Professor Corn criticizes the Hamdan decision and the
Courts view of an either/or Common Article 2/3-law triggering
paradigm,24 he proposes a solution and perhaps, a new paradigm. In
18. Id. at 4-10.

19. Id. at 10-11. Based on the premise that the United States use of armed force against
the non-state al Qaeda terrorist fell into a regulatory gap outside the common Article 2/3
paradigm, Professor Corn discusses the four theories that emerged: (1) the International
Committee of the Red Cross (ICRC) view that there is no gap and that either Common
Article 2 or Common Article 3 applies to all armed conflict; (2) the internationalized
Common Article 3 theoryif it is not Common Article 2, then it must be Common Article 3
(see also infra note 23); (3) the militarized extraterritorial law enforcement theory that it
is not armed conflict, but law enforcement operations governed by human rights law; and
(4) the transnational armed conflict theory advanced by Professor Corn and his colleagues
(see also infra note 20).
20. Transnational Armed Conflict is the extraterritorial application of military combat
power by the regular armed forces of a state against a transnational non-state armed enemy.
Id. at 10 n.25.
21. 548 U.S. 557 (2006).
22. Corn, supra note 15, at 12, 18-19 n.31 (quoting Justice Stevenss majority opinion in
Hamdan v. Rumsfeld).
23. Id. at 22-23.
24. See generally id. at 20-24 (subsection entitled Rethinking the Core Purposes of the
1949 Law Triggering Paradigm). In this section, Professor Corn provides options outside a
stringent reliance on the either/or paradigm in favor of a more pragmatic armed conflict
trigger that responds to . . . transnational combat operations [to reconcile] . . . national
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.
B. Targeting of Persons and Property
[I]f the anticipated death of a certain number of civilians as collateral

damage in an attack will disqualify that attack, this serves the perverse
purpose of incentivizing terrorists to continue to operate among innocent
civilians.29
In Chapter 2, Professor Jensen provides an in-depth analysis of
targeting with a focus on the inherent challenges faced by an armed force
confronted by terrorists that do not distinguish themselves from innocent
civilians, and in fact, by their terrorist tactics that seek to endanger the
civilian populace by operating from within their midst. Additional
challenges include the targeting of those who aid terrorist activities and the
determination of the type, amount, and duration of the support that causes a
civilian to cross the line into terrorism. The author addresses these
challenges by educating the reader on the legal principles related to
targeting in combat operations generally and then by exploring the
application of those principles of targeting against transnational terrorists
specifically. Interestingly, the author concludes that while the laws of war
have long provided a legal framework for targeting in combat, the current
war on terror has given rise to targeting measures more restrictive than are
required by the laws of war.30
Professor Jensen begins with a dissertation of the origins of the laws
of war with respect to the targeting of persons and property and how they
developed from ancient to modern times.31 This historical background
includes the development of customary laws that were first codified in a set
of rules called the Lieber Code, which was drafted by Francis Lieber in
1863 at the request of President Lincoln for use by the Union forces in the
U.S. Civil War.32 Also of interest is the discussion of the Hague tradition
which grew out of the conventions held in the early twentieth century,
particularly the 1907 Hague IV Convention Respecting the Laws and
Customs of War on Land,33 which focused on the means and methods of
warfare and regulated the targeting of persons and property in armed
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.
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.
Guidance).41 In its guidance, the ICRC sets forth a three-prong cumulative

test;42 however, that test is not accepted as the United States view on DPH.
The U.S. test for DPH applies the for such time analysis but focuses on
the persons function or the critical task that person is performing for such
time as they are participating in the hostilities.43
While there is no dispute that civilians must remain immune from
attack, and there is relatively little dispute that civilians who directly
participate in hostilities lose that immunity, it is equally acknowledged that
an absolute requirement to comply with the principle of distinction is no
more complex than in the context of transnational armed conflict against
non-state fighters with no geographical boundaries. Professor Jensen then
takes up the question of what rules apply to the targeting of non-state actors
in the war on terror. After analyzing the problem, he concludes that the
time-honored principles of LOAC remain the best set of legal principles to
guide commanders.44 In short, when a civilian joins the armed wing of a
transnational terrorist organization, he surrenders his civilian status and
becomes targetable based on his membership, regardless of his function,
whether he is a cook or clerk, and remains targetable until he affirmatively
renounces membership and restricts his participation in the armed wing of
the organization.45 Such an approach will not only increase a States
41. INTERNATIONAL COMMITTEE OF THE RED CROSS, INTERPRETIVE GUIDANCE ON THE

NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN
LAW [hereinafter ICRC GUIDANCE], available at http://www.icrc.org/Web/eng/siteeng0
.nsf/htmlall/direct-participation-report_res/$File/direct-participation-guidance-2009-
icrc.pdf; see also Michael N. Schmitt, Direct Participation in Hostilities and 21st Century
Armed Conflict, in CRISIS MANAGEMENT AND HUMANITARIAN PROTECTION (2004).
42. The three-part cumulative test includes: (1) a threshold of harm; (2) if one is met,
then establish a direct link between the action and the harm; and if the first two criterion are
met, then (3) there must be a belligerent nexusthe act must be designed to directly cause
the required threshold of harm. If all three prongs are met, then the civilians direct
participation is established and the civilian can be targeted. ICRC GUIDANCE, supra note 41,
at 16-17.
43. The United States uses a function analysis to determine if a civilian is taking a direct
part in hostilities and if so, for what time period that person remains a lawful target. The
function analysis reviews the critical nature of the persons particular task or importance of
their knowledge or position to determine if they are taking a direct part in hostilities.
Finally, the analysis considers whether that person remains a target only while performing
that particular task or whether they remain a target at all times due to the importance of their
knowledge or position. Interview with Major Christopher R. Brown, Assoc. Professor of
Law, Intl & Operational Law Dept, The Judge Advocate Gen.s Legal Ctr. & Sch., U.S.
Army, in Charlottesville, Va. (Jan. 21, 2010). See also LAW OF WAR DESKBOOK, supra note
15, at 97-99 for a more in-depth analysis of the U.S. application of the DPH test.
44. Jensen, supra note 29, at 59.
45. Id. at 58.
ability to respond to terrorists but will also reinforce the fundamental

principles of the LOAC that are designed to protect civilians from the
effects of hostilities.46
C. Detention of Combatants and the Global War on Terror
Under the law of war, detention of an enemy combatant is not a form of

punishment. Instead, the purpose of detention is to take the combatant off the
battlefield and to neutralize any threat he or she may pose to the capturing
State and its forces.47
At fifty-six pages, Chapter 3 is the books longest and, in the
reviewers opinion, is probably the most comprehensive one-chapter primer
on detention operations in the war on terror. Professor Schoettler covers the
full spectrum of detention, from the status determination to the prosecution
of the detainees, including an analysis of the federal litigation regarding
detention operations.48
In his review of detention laws and policies, the author provides
insight into one of the most important questions affecting the treatment of
combatants, namely their status once captured.49 He concludes with the
recommendation that the application of treaty law to all detainees captured
in the war on terror could be useful in addressing [the] concerns of the
Judicial branch regarding long-term military detentions under the law of
war.50
In an armed conflict, an individuals status determines treatment once
captured, including the protections afforded under the law.51 The seminal
protections for captured combatants are afforded by the Third Geneva
Convention Relative to the Treatment of Prisoners of War (GC III).52
However, it is relatively undisputed among U.S. legal scholars that non-
state terrorists captured in the war on terror are not afforded prisoner-of-
war (PW) status and are not entitled to the full panoply of PW protections
derived from GC III, primarily combatant immunity.53 In analyzing these
46. Id. at 59.

47. James A. Schoettler Jr., Detention of Combatants and the Global War on Terror, in
CORN ET AL., supra note 1, at 67, 70 (emphasis added).
48. See generally id. at 67-123.
49. Id. at 69.
50. Id. at 70.
51. Id. at 73.
52. Id. at 68 & n.3; see also Convention (III) Relative to the Treatment of Prisoners of
War opened for signature Aug. 12, 1949, 6 U.S.T. 3116, 75 U.N.T.S. 135 [hereinafter
GCIII], reprinted in LAW OF WAR DOC SUPP, supra note 15, at 124-56.
53. See Schoettler, supra note 47, at 82 for a discussion of combatant immunity.
rules, Professor Schoettler reviews the U.S. policies regarding detainees

captured in the war on terror and the application (or non-application) of the
laws to those detainees. Thus, for States fighting al Qaeda . . . determining
that terrorists are combatants who can be detained under the law of war . . .
is the foundation of the military detention paradigm being used in the [war
on terror].54 However, the author continues the analysis at length,
describing why al Qaeda detainees are not lawful combatants entitled to
PW status and its protections,55 including an examination of the due
process procedures afforded to detainees from initial status determinations
(Article 5 tribunals)56 to challenges and review of the detention itself
(under Additional Protocol I).57
In his exploration of detention policies and litigation specific to the
war on terror, Professor Schoettler reviews the legality of the United
States initial policies and provides a summary review of the Supreme
Courts habeas corpus litigation of those policies as of the time he
submitted his chapter.58 The principal outcome of the Supreme Court
decisions is . . . an expanded extraterritorial reach on the constitutional
right to the writ of habeas corpus . . . .59 On January 7, 2010, oral
arguments were held in the United States Court of Appeals for the District
of Columbia Circuit regarding extension of the writ of habeas corpus to
detainees held at Bagram Air Field in Afghanistan.60
In addressing one of the Supreme Courts main concerns regarding
detention in the war on terror, primarily the concept of indefinite detention
of seized terrorists in the war on terror, the author concludes that a stronger
process for making enemy combatant determinations, including substantial
due process rights and meaningful periodic reviews, would help alleviate
the Courts concern. Although the author carefully qualifies his concluding
remarks[t]his is not to suggest that combatant immunity be given to
detainees who would not otherwise qualify for it under existing treaties
54. Id. at 78.

55. Id. at 79. It should be noted that one of the threshold issues for the applicability of
GC III (beyond Common Article 3) is the international armed conflict trigger for Common
Article 2.
56. See generally id. at 86-95, including a description of the United States
implementation policy for Article 5 Tribunals contained in Army Regulation 190-98. Id. at
90 n.2; see also U.S. DEPT OF ARMY, REG. 190-8, ENEMY PRISONERS OF WAR, RETAINED
PERSONNEL, CIVILIAN INTERNEES AND OTHER DETAINEES para. 1-6, at 2-3 (OCT. 1, 1997).
57. Schoettler, supra note 47, at 88-91.
58. Id. at 101-23. The cases discussed include: Johnson v. Eisentrager, 339 U.S. 763
(1950); Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 517 (2004);
Hamdan v. Rumsfeld, 548 U.S. 557 (2006); and Boumediene v. Bush, 553 U.S. 723 (2008).
59. Schoettler, supra note 47, at 115 (emphasis omitted).
60. Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009).
he does go further to suggest that detainees captured in the war on terror

should be provided the standards of treatment accorded to prisoners of
war.61
D. Interrogation and Treatment of Detainees in the Global War on

Terror
Judge Advocates usually took the high road in offering advice to

commanders, applying GCIII or GCIV standards to the problems they
encountered, and counseling caution in applying techniques that were close
to the lines on torture and cruel, inhumane, and degrading treatment.62
There are but a few law-of-war experts within the military
community that possess the credentials of Dick Jackson, the author of
Chapter 4s review of interrogation and detainee treatment in the war on
terror. As the Special Assistant to the U.S. Army Judge Advocate General
for Law of War Matters, Mr. Jackson has the special trust and confidence
of the U.S. Armys top lawyer on all issues concerning the law of war.63 Of
all the topics in the book, including the Supreme Court habeas litigation,
interrogation in the war on terror is perhaps the most controversial and
certainly has earned the harshest critiques on the national and international
stages. Mr. Jackson deftly guides the reader through a critical analysis of
the history of interrogation policies and procedures past and present, not
shying from the flawed post-9/11 policies that authorized aggressive
interrogation techniques that resulted in the mistreatment of detainees in
U.S. custody. Mr. Jackson then brings the reader full-circle, concluding that
time-tested standards adhered to prior to September 11, 2001 have been
restored and must remain the standard in all future interrogation operations.
Recounting the evolution of the laws of war, Mr. Jackson quotes
Article 15 of the Leiber Code to emphasize that, from its first code of laws
on the topic, the United States recognized the fundamental principle of
humane treatment of its enemies: Men who take up arms against one
another in public war do not cease on this account to be moral beings,
responsible to one another and to God.64 Based on the standards of
treatment required by the pre-WWII treaties, the Army Field Manuals for
interrogation in the 1940s prohibited coercive treatment.65 In 1949, with
61. Schoettler, supra note 47, at 123.

62. Dick Jackson, Interrogation and Treatment of Detainees in the Global War on
Terror, in CORN ET AL., supra note 1, at 125, 158 (emphasis added).
63. Id. at 125.
64. Id. at 127 (quoting the Leiber Code); see also supra note 33.
65. Id. at 128 & n.7 (referring to the 1940 and 1945 versions of U.S. WAR DEPT FIELD
MANUAL 30-15, MILITARY INTELLIGENCE: EXAMINATION OF ENEMY PERSONNEL,
the universal acceptance of the Geneva Conventions and, in particular,

Common Article 3s requirement for humane treatment and prohibition
against cruelty, torture, and humiliating and degrading treatment,66 all
subsequent U.S. laws, regulations, and policies for interrogation accounted
for these prohibitions.67
In the next two sections of his chapter, Mr. Jackson offers his learned
perspective on the oft-debated torture memosthose ill-conceived legal
opinions authored by the Justice Departments Office of Legal Counsel and
endorsed by the White House Legal Counsel. Despite efforts by then
Secretary of State Colin Powell to apply the Geneva Conventions to the
armed conflict in Afghanistan,68 his arguments were rejected in favor of a
vague humane treatment standard and treatment of detainees in a manner
consistent with the principles of Geneva69 and not in accordance with
Geneva. A review of the players on both sides of the debate and the
application of the policies stemming from those debates is covered in detail
to provide the reader with a concise synopsis of what can go wrong when
adherence to time-tested standards is disregarded, even in times of national
emergencies.70 A former active duty staff judge advocate, Mr. Jackson
points out errors committed by judge advocates in their respective roles as
legal advisors at both Guantanamo Bay and Abu Ghraib.71
Mr. Jackson concludes by highlighting the restoration of standards
in the wake of detainee abuse at Abu Ghraib, beginning in 2005, whereby:
The Army provided detailed guidance to interrogators on the
application of Common Article 3 and GCs III and IV to the
interrogation function, filling the specific legal void created by
DoD interrogation policy by providing Training Support
Packages to the field and emphasizing the use of [Army
Regulation] 190-8 and [Field Manual] 34-52 as guidance . . . .72
In addition to the Detainee Treatment Act of 2005,73 the new
Department of Defense Detainee Program Directive was issued to set forth
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.
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.
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
E. Trial and Punishment for Battlefield Misconduct
[T]here is no logical reason why individuals who transgress certain

fundamental LOAC norms should be immune from such jurisdiction simply
because their misconduct is subject to the concurrent jurisdiction of civilian
courts.76
In Chapter 5, Professors Corn and Jensen team up to outline the
jurisdiction for crimes committed on the battlefield, with a particular focus
on the jurisdiction over crimes committed in transnational armed conflict.
The initial legal distinction between war crimes and the crime of
terrorism is essential to the analysis that follows. As the authors point
out, these two terms differ in certain legally substantial ways: War
crimes are defined by international law and subject to criminal sanction
either through international tribunals or domestic tribunals invoking the
substance of international law whereas terrorism is the subject of
domestic law, subject to criminal sanction as the result of domestic
criminal prohibition.77 While the distinction had little practical
significance prior to September 11th, once President Bush established
Military Commissions to try terrorists in law of war courts, the
controversy began.78 The authors look at each side of the debate and offer
their opinion on the legitimacy of LOAC jurisdiction over terrorists,
provided the proper substantive and procedural safeguards are in place.
First, the authors note that a policy-based application of LOAC
principles (i.e., trying terrorists at military commissions) does not provide a
legal basis for such trials. In their analysis of the Hamdan decision, the
74. Jackson, supra note 62, at 155.

75. Id. at 159.
76. Geoffrey S. Corn & Eric T. Jensen, Trial and Punishment for Battlefield
Misconduct, in CORN ET AL., supra note 1, at 161, 163 (emphasis added).
77. Id. at 161.
78. Id. at 162.
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
79. Id. at 165.

80. Id. at 165.
81. Id. at 166-67.
82. Corn & Jensen, supra note 76, at 168.
83. Id. at 168-69.
84. Id. at 175. In standard military charging style, the authors provide a sample Charge
and Specification:
The Charge: Violation of the Laws of War
The Specification: In that, (name of individual), a member of an armed
organization engaged in armed conflict against the United States, did, at
or near, (location) on or about (date), engage in conduct in violation of
the principle of (humanity, distinction, prohibition against the use of
special[] weapons), to wit: participating in an attack directed against
safeguards, the authors suggest the due process standards prescribed by

Article 75 of Additional Protocol I, which are universally accepted to
include all fundamental due process guarantees.85 The authors also address
the serious concern over the use of evidence obtained by coercion. At the
time of the books publication, the Military Commission Act (MCA) of
2006 still authorized use of such evidence subject to review and decision
by a judge;86 however, the MCA of 2009 prohibits use of such evidence
altogether, thus eliminating this concern.
The authors conclude with the realization that detainees captured in
the war on terror will continue to be subject to military commissions, and
the MCA of 2009 (enacted after the books publication) validated their
prediction and, in fact, as noted above, refined some of the detainees
substantive and procedural due process rights to address concerns noted by
the authors.
F. Command Responsibility and Accountability
By imposing liability on commanders for subordinates misconduct that the

commanders were capable of preventing, suppressing, and punishing, the
law incentivizes the discharge of command responsibility in a manner that
fosters a climate of respect and compliance with . . . LOAC.87
While preceding chapters analyze many of the controversial issues
that have made headlines as they are debated among all three branches of
government, arguably no topic is more important to military practitioners
than the one addressed in Chapter 6 written by Professor Hansen: The
doctrine of command responsibility is the cornerstone [LOAC] compliance
mechanism. 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.88
This doctrine is what separates modern, civilized armed forces from
terrorists who do not comport with the LOAC in any form or fashion and
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.
whose leaders brazenly promote violations of the LOAC. Professor Hansen

examines all aspects of the doctrine, from its background and theory of
criminal culpability to its application and its place, if any, in transnational
armed conflict.
By viewing the doctrine through the lens of substantive criminal
responsibility, Professor Hansen notes that [t]he essence of this doctrine
lies in its scope of liability89 which he describes as the derivative imputed
liability90 of the commander. The commanders liability is derived from
the superior/subordinate relationship and the link between the
commanders act or omission and the subordinates crimes. Questions to be
asked in analyzing the commanders liability include: what did the
commander know or fail to know (the mens rea component) and what did
he do or fail to do to prevent future war crimes, stop on-going war crimes,
or punish past war crimes (the actus reus component)?91
Professor Hansen traces the historical roots of the doctrine through
tribunals and its subsequent codification in Additional Protocol I in 1977
and other international statutes.92 By considering the doctrines application
in armed conflict, particularly international courts expansion of the
doctrine to non-international armed conflict,93 Professor Hansen ably
supports his proposition for the logical extension of the command-
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.
responsibility doctrine into the emerging realm of transnational armed

conflict.94
Like other LOAC principles . . . , it is the de facto existence of
armed conflict, or perhaps more importantly[,] the de facto
invocation of authorities derived from this law, that makes it
imperative that this doctrine operate to incentivize effective and
responsible command decision-making. . . . Failure to extend the
doctrine of command responsibility to transnational armed
conflicts can have serious consequences.95
Vague (or no) guidance in complex areas, especially those areas that
deal with treatment of individuals, can lead to untenable results. This was
true of the vague guidance on interrogation techniques discussed earlier.
Similarly, Professor Hansen suggests that the absence of a command
responsibility doctrine in the war on terror could result in the failure of
commanders to properly prioritize LOAC compliance, respond
appropriately to allegations of LOAC violations, [and] properly train
subordinates on LOAC obligations.96 While there are international statutes
addressing the doctrine, it is noticeably absent from the Uniform Code of
Military Justice (UCMJ). Professor Hansen suggests that an amendment to
the UCMJ in the form of a punitive article clearly defining the
commanders duty to prevent, stop, and punish war crimes committed by
subordinates and the consequences for failing that duty will fill the current
gap in the law and eliminate any operational uncertainty that may exist in
transnational armed conflicts.
Professor Hansens point is well made; however, despite the
doctrines absence from the UCMJ, it is hard to imagine that commanders
currently operating in the war on terror do not consider themselves subject
to the doctrine of command responsibility. What is more compelling is
Professor Hansens conclusion that the doctrine should be applied
unilaterally to the United States military.
It makes little sense to impose a legal duty on a terrorist leader,
which requires him to make sure that when his forces engage in
terrorist activities they comply with the LOAC. By their very
nature, terrorist operations violate the LOAC. Because the
terrorist leader will face criminal sanctions no matter what he
does, he gets no benefit from exercising the type of care that is
expected of a responsible commander of a conventional military
force . . . . With respect to that leader, command responsibility is
94. Id. at 201.

95. Id. at 202.
96. Id.
simply another means of imposing sanctions and does not

provide any concomitant incentives to abide by the LOAC.
Logically it makes little sense to apply this doctrine to terrorist
leaders engaged in a transnational armed conflict.97
III. The War on Terror: Battlefield Perspectives on the Laws of War
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
97. Id. at 207.

98. Lewis, supra note 12, at 209 (emphasis added).
99. Id. at 209.
100. Id. at 210.
101. Id. at 211.
of legal officers with their fellow line officers involved in tactical

operations.
Beginning with his personal area of expertiseaviationthe author
looks at the development and effectiveness of the implementation of the
laws regulating aerial bombardments, from Desert Storm through the
current war on terror, noting that, as technology in weapons advanced (to
an accuracy of a few meters), civilian casualties have decreased. Equally as
important as technology is the human factor and the cooperation between
legal, intelligence, and targeting officers . . . to develop in a way that
strengthens the laws role in [planning operations and improving] legal
compliance with proportionality requirements.103 Here, the most important
function a military lawyer can serve is converting legal standards, such as
the laws on targeting, to simple, clear, concise legal advice and
recommendations. To be clear, the lawyers provide the advice, but the final
judgment rests with the aircrew conducting the attack:
The other critical factor in the laws successful application to
aerial bombardment has been the recognition that simplicity and
clarity are vital. Law is better served when aircrew are given
concrete guidance. While correctly instructing aircrew on the
legal standard they are expected to uphold, that the harm to
civilians must be proportional to the military advantage
gained, is perhaps legally sufficient, in many ways it is not
particularly helpful. While aircrew may benefit from receiving
much more concrete Rules of Engagement (ROE) guidance,
[judge advocates] tend to favor the exercise of judgment by those
executing the mission. . . . Although the final judgment rests with
the aircrew conducting the attack, curtailing or simplifying that
judgment so that it will not be subject to the inevitable vagaries
of split-second decision-making may be a legally sound choice
104
for [judge advocates.]
Through this example and others, Professor Lewis demonstrates that
legal advisors at the tactical level have challenges in the war on terror just
as those advisors at the higher levels. Judge advocates must first gain the
respect and confidence of the commanders they are advising and the staffs
they work with. Additionally, legal advisors must maintain credibility by
ensuring that their legal advice can be implemented in a practical manner.
Professor Lewis provides some practical examples of how lawyers can
achieve this, including one for how humane treatment can be described:
103. Id. at 220.

104. Lewis, supra note 12, at 221.
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
It is impossible for an expert in one area (such as law) to truly understand

the perspective of an expert in another field (such as combat).107
Ironically, this quote comes from one of the authorsProfessor
Lewisin the last chapter of the book. Collectively, the six authors of the
book, including Professor Lewis, successfully challenge this premise. In
compiling The War on Terror and the Laws of War: A Military
Perspective, the authors achieve the stated purpose of the book and provide
the reader with a keen understanding of how the law of war is
implemented by warfighters in todays battles against terrorists and
extremists . . . [and] a military perspective on the difficult task of ensuring
adherence to the law under circumstances hardly imaginable only a decade
ago.108
The authors achieve this purpose through a comprehensive
examination of all of the major areas of the laws of war as they relate to the
fight against transnational terrorists. The authors collective skill at
analyzing a complex area of the law and providing insight applicable to a
wide audience of readers is a tribute to their former service as U.S. Army
judge advocates (and a Naval pilot) and their current service as legal
scholars; it demands attention from all law students, legal scholars, and
military practitioners seeking a concise, expertly drafted one-volume
treatise on the contemporary legal landscape in the war on terror.109
105. Id. at 187.

106. Id. at 234.
107. Id. at 212 (emphasis added).
108. Charles J. Dunlap, Jr., Foreword to CORN ET AL., supra note 1, at ix.
109. Judge advocates studying the law of war or preparing to deploy during periods of
transnational armed conflict will find this book an invaluable supplement to those published
by the U.S. Army Judge Advocate Generals School: The Operational Law Handbook, The
Law of War Deskbook, and The Law of War Documentary Supplement. See supra note 15.

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THE WAR ON TERROR AND THE LAWS OF WAR: A MILITARY PERSPECTIVE.

886 NEW ENGLAND LAW REVIEW [Vol. 44:885

[E]valuating the propriety of twenty-first century military

2010] THE WAR ON TERROR AND THE LAWS OF WAR 887

6. Dunlap, Foreword to CORN ET AL., supra note 1, at viii.

888 NEW ENGLAND LAW REVIEW [Vol. 44:885

specialized society, these attorneys bring a unique perspective

2010] THE WAR ON TERROR AND THE LAWS OF WAR 889

A. What Law Applies to the War on Terror?

890 NEW ENGLAND LAW REVIEW [Vol. 44:885

this analysis is the distinction between LOAC principles applying to an

2010] THE WAR ON TERROR AND THE LAWS OF WAR 891

After recapping the well-documented flaws in the Bush

18. Id. at 4-10.

892 NEW ENGLAND LAW REVIEW [Vol. 44:885

2010] THE WAR ON TERROR AND THE LAWS OF WAR 893

B. Targeting of Persons and Property

[I]f the anticipated death of a certain number of civilians as collateral

894 NEW ENGLAND LAW REVIEW [Vol. 44:885

2010] THE WAR ON TERROR AND THE LAWS OF WAR 895

Guidance).41 In its guidance, the ICRC sets forth a three-prong cumulative

41. INTERNATIONAL COMMITTEE OF THE RED CROSS, INTERPRETIVE GUIDANCE ON THE

896 NEW ENGLAND LAW REVIEW [Vol. 44:885

ability to respond to terrorists but will also reinforce the fundamental

C. Detention of Combatants and the Global War on Terror

Under the law of war, detention of an enemy combatant is not a form of

46. Id. at 59.

2010] THE WAR ON TERROR AND THE LAWS OF WAR 897

rules, Professor Schoettler reviews the U.S. policies regarding detainees

54. Id. at 78.

898 NEW ENGLAND LAW REVIEW [Vol. 44:885

he does go further to suggest that detainees captured in the war on terror

D. Interrogation and Treatment of Detainees in the Global War on

Judge Advocates usually took the high road in offering advice to

61. Schoettler, supra note 47, at 123.

2010] THE WAR ON TERROR AND THE LAWS OF WAR 899

the universal acceptance of the Geneva Conventions and, in particular,

900 NEW ENGLAND LAW REVIEW [Vol. 44:885

E. Trial and Punishment for Battlefield Misconduct

[T]here is no logical reason why individuals who transgress certain

74. Jackson, supra note 62, at 155.

2010] THE WAR ON TERROR AND THE LAWS OF WAR 901

79. Id. at 165.

902 NEW ENGLAND LAW REVIEW [Vol. 44:885

safeguards, the authors suggest the due process standards prescribed by

F. Command Responsibility and Accountability

By imposing liability on commanders for subordinates misconduct that the

2010] THE WAR ON TERROR AND THE LAWS OF WAR 903

whose leaders brazenly promote violations of the LOAC. Professor Hansen

904 NEW ENGLAND LAW REVIEW [Vol. 44:885

responsibility doctrine into the emerging realm of transnational armed

94. Id. at 201.

2010] THE WAR ON TERROR AND THE LAWS OF WAR 905

simply another means of imposing sanctions and does not

III. The War on Terror: Battlefield Perspectives on the Laws of War

97. Id. at 207.

906 NEW ENGLAND LAW REVIEW [Vol. 44:885

of legal officers with their fellow line officers involved in tactical

103. Id. at 220.

2010] THE WAR ON TERROR AND THE LAWS OF WAR 907

It is impossible for an expert in one area (such as law) to truly understand

105. Id. at 187.

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