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When the Law of War Becomes Over-lawyered

JURIST Guest Columnist Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the phenomenon of hyper-technical legal analysis detached from the moral and pragmatic considerations grounding the law of war in the Geneva Conventions and other humanitarian norms shows that that law has become “over-lawyered” in the hands of those who have never worn, nor probably even contemplated wearing a military uniform....


In recent editorials and media appearances, Professor John Yoo has again joined the debate over the appropriate treatment standards for individuals detained by our armed forces. Yoo continues to profer a stoic defense for the administration policies of excluding such individuals from the protections of the most basic humanitarian standard reflected in the Geneva Conventions – the prohibition against cruel, inhumane, or degrading treatment. In so doing, Yoo reveals a dangerous failure to appreciate the critical importance of the fundamental principles underlying these and other law of war treaties - principles that are at the very core of a morally grounded military.

Many academics have joined the debate in opposition to the interpretations of law Yoo is so obviously proud to have trailblazed. In this regard, however, Yoo retains the upper hand, for treaties, like any codified source of law, are laced with ambiguities - ambiguities that have enabled Yoo and his supporters to interpret their way out of treaty application. Thus, from a pure treaty interpretation perspective, this “Yoo approach” to determining the applicability (or inapplicability) of the Geneva Conventions, while clearly distasteful to so many other scholars, politicians, and military professionals, survives such critiques through creative interpretation.

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What Yoo does not - and in the opinion of this author cannot - understand, is that these treaties reflect fundamental principles that lie at the very core of the military profession - principles that reflect a delicate balance between the necessities of war and the dictates of humanity. Unlike his chief antagonist, Senator John McCain, Yoo has never worn a uniform, and therefore has never been called upon to contemplate the immense moral challenge of taking life in the name of his country. While Yoo and his following of high level civilian policy makers can without question tout impressive resumes filled with academic and professional successes, few if any are able to view these issues through such a lens.

What those who have, or do, serve in uniform on behalf of our nation intuitively understand is the implied covenant that exists between the armed forces and the nation under whose flag they fight, kill, destroy, and detain. The essence of this covenant is a willingness to engage in such conduct based on a belief that doing so will be consistent with the inherent notion of morality. Because members of the military profession have historically understood that preserving this sense of morality would be most severely stressed during armed conflict, they were at the forefront of developing non-negotiable principles to limit the brutality of conflict, and in so doing limit the corrosive moral consequence of conflict for those called upon to engage therein. When Senator McCain reminds us that the conduct we endorse during armed conflict reflects more about us than it does our enemy, it reflects his intuitive appreciation of this truism.

Professor Yoo has exposed a fundamental question related to this issue: have we allowed the laws of war to become more about law and less about war? This is the true nature of the struggle that continues to rage within the US Department of Defense between certain career uniformed and civilian lawyers and many politically appointed civilian policy makers - a battle that will have profound consequences for the young men and women this nation asks to engage in the ugly business of war on its behalf.

While there is no question that the insights of distinguished academics provide valuable contributions to the understanding and development of this body of law, these insights rarely reflect a genuine appreciation of the nature of the activities this law is intended to regulate. While many such scholars actively seek opportunities to enhance their understanding of this aspect of the regulation of the battlefield through interaction with military professionals, Professor Yoo purports to speak with a degree of authority immune from the need for such considerations.

In the opinion of this author, this hyper-technical legal analysis detached from the underlying moral and pragmatic considerations that have provided the foundation for the law of war exemplified by Professor Yoo is a consequence of the law of war become “over-lawyered”, thus leading us to the untenable point where a distinguished legal scholar who has never worn, nor probably even contemplated wearing the uniform of his nation, can attain eminent status in enunciating how this law should apply to the battlefield.

In 1899, when the first major multilateral law of war treaty was drafted and adopted by nations of the world who clearly saw conflict on the horizon, a prescient participant to the drafting conference named Feodor Martens proposed a provision that is perhaps more relevant today than ever before. That provision provided that whenever a situation of “war” fell outside the terms of the treaty, all individuals remained under the protection of the “dictates of humanity.” This “Marten’s Clause” reflected a pragmatic recognition that no treaty was immune from ambiguity and creative interpretation, but under no circumstances could a nation condone the conduct of war without respect for fundamental dictates of humanity, for doing so would unleash the darkest instincts of an unrestrained force.

Our armed forces intuitively understand the continuing validity of this truism. Professor Yoo does not. Perhaps the time has come to consider a frightening but historically validated proposition - that these fundamental principles regulating the conduct of armed conflict are intended not only to protect the people we confront on the battlefield, but also to protect the armed forces from the short term sense of extremis that is inevitably associated with war making policies. Professor Yoo’s approach to these issues provides compelling evidence of the importance of this purpose.


Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters

November 22, 2005


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