The Role of the United States Military Lawyer in Projecting a Vision of the Laws of War

Abstract

This article discusses the role of the United States military lawyer in projecting a moral vision of the laws of war, rather than simply acting in a technical and purely lawyerly fashion. The article argues that it is essential that US military lawyers acting in laws of war matters, and especially acting in diplomacy related to laws of war treaties, be willing to project the moral vision which underlies US military interpretations of the laws of war, beyond pure legalism, in order to compete with the moral visions of the laws of war expressed by human rights and other nongovernmental organizations (NGOs) who, believing that they represent humanity in the abstract, rather than some set of parochially national interests, therefore believe that the interpretation, enunciation, evolution, and ownership of the laws of war properly belongs to NGOs and not to military establishments, and not to the US military establishment in particular. The article considers the cases of the Ottawa convention banning landmines, the International Criminal Court debates, and the treatment of detainees at Guantanamo to critique the failure of US military lawyers to assert a moral vision of the laws of war that goes beyond mere national interest or the interest of the United States as a client. It concludes with a call for US military lawyers and their institutional government client to find a role for military lawyers to express a moral vision based around the core concept of the protection of noncombatants, and move beyond mere legalism.

Keywords: Laws of War, international humanitarian law, Geneva Conventions, military lawyers, nongovernmental organizations, NGOs, human rights, war, International Criminal Court, Protocol I, landmines, Guantanamo detainees

JEL Classification: K33, L30, L31