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2007 Army Law. 14 (2007)
The Law of War and the Academy

handle is hein.journals/armylaw2007 and id is 860 raw text is: The Law of War and the Academy* Richard B. Jackson- The law of war is a hot topic in public discourse and academic circles. Topics such as interrogation, treatment of unlawful combatants and targeting of insurgents in Iraq and elsewhere seemingly dominate the headlines. Furthermore, the proliferation of writing in scholarly journals on these subjects and many others compete with more traditional discussions of constitutional law or criminal law. In the midst of the very public debates over the laws of war, America's application of those laws to the Global War on Terror, and its manifestations in Afghanistan and Iraq, there has been a little-noticed discussion between military legal experts and the academic community, as well as some public dialogue between politicians and military lawyers. These two dialogues should continue and expand in order to benefit the academic community and the public at large. In addition, the discussions benefit the military legal community as we develop the law (through customary international law, doctrine, treaty negotiation and drafting of legislation or administrative regulations) and discuss its development within the Executive Branch and with the Legislature. What does a military lawyer bring to the table? How can he or she contribute to the discussion? I would like to mention at least three reasons that a military lawyer is uniquely suited to address these issues and, in turn, ways that discussion can benefit the academy and the public at large. First, the law of war has been developed by warriors, for warriors. Second, the military perspective provides some balance to the debate by explaining the importance of military objectives and military necessity, both of which need to be weighed in the balancing of interests that is reflected in the law of war. And finally, a discussion of the current practice of the law of war can dispel many of the myths about military conduct in war and connect the people of the country and its academic conscience to the Soldiers, Sailors, Marines and Airmen that represent them. One of my favorite aphorisms about the law is that you can't practice law in a vacuum. Practitioners of the law must discuss these issues with those that influence the development of the law. The both are better for it. I. The Law of War by Warriors, for Warriors Imagine the following scenario: two factions, both with deep religious roots, are feuding across the wide river that divides their two camps. The political discussion is at a stalemate. There is a constitutional crisis in the legislature about the degree of power each faction will control; whether there should be a federal form of government with power decentralized in constituent states or a more centralized government controlled by the people's representatives in the capital. Although the politicians seemingly reached a compromise that allowed for the sharing of power, fanatics on both sides turn to armed force to impose their will on each other. The fanatics conduct symbolic kidnappings and murders to try to foment civil war. Both sides develop and arm powerful militias, and some even infiltrate the official armed forces of the nation. Houses are burned or bombed out, civilians become the target of attacks and terror reigns. Baghdad, Iraq, 2007? No, Bloody Kansas, 1856- 1863. It was out of that maelstrom, which spawned John Brown, General James H. Lane and his Kansas Jayhawkers and Quantrill and his Raiders, including the James and the Younger brothers, that the modem law of war was born.' The internecine warfare in Kansas and Missouri then was as bloody and vicious as any sectarian warfare of today. This essay is adapted from a speech given at the New England Journal of International and Comparative Law Symposium Modem Warfare: The Role of the Non-State Actor on Feb. 23, 2007 at New England School of Law, Boston, MA. 14 NEW ENG. J. INT'L COMP. L. (forthcoming Jan. 2008). Richard Dick B. Jackson, U.S. Army (Retired), is Special Assistant to the Judge Advocate General for Law of War Matters. He is a 1976 distinguished graduate of the United States Military Academy (B.A.), a 1983 cum laude graduate of Georgetown University Law Center (J.D.), a 1986 graduate of the Judge Advocate General's School (LL.M.) and a 2005 graduate of the Army War College (M.S.). Mr. Jackson's military service includes duty as a Ranger, Infantry Officer's Basic Training, Fort Benning, GA; as an Infantry, Mortar, and Heavy Mortar Platoon Leader, 4th Bn. (Mechanized), 20th Infantry, Fort Clayton, Panama; as a Tactical Officer, Branch Immaterial Officer Candidate School, Fort Benning, GA; as a Group Judge Advocate, 5th Special Forces Group (Airborne), Fort Bragg, NC; as the Chief, Criminal and Administrative Law, Office of the Staff Judge Advocate, 1st Special Operations Command, Fort Bragg, NC; in 35th Graduate Course; as a Senior Defense Counsel, U.S. Army South, Fort Clayton, Panama; as a Legal Advisor, Joint Task Force Six, Fort Bliss, TX; as the Chief, Criminal Law, Office of the Staff Judge Advocate, Fort Bliss, TX; at Command and General Staff College, Fort Leavenworth, KS; as a Deputy Staff Judge Advocate, U.S. Atlantic Command, Norfolk, VA; as a Professor, Chair, International and Operational Law Department, The Judge Advocate General's School; as a Staff Judge Advocate, U.S. Army Special Operations Command; as a Staff Judge Advocate, 25th Infantry Division, HI; as a Staff Judge Advocate, SFOR 11, Bosnia; as a Staff Judge Advocate, U.S. Army, Pacific; and as a Legal Advisor, Joint Forces Command-Naples, Italy. 1 Kansas State Historical Society, Willing to Die for Freedom, http://www.kshs.orglexhibits/territorial/territorial4.htm (last visited Nov. 3, 2007). SEPTEMBER 2007 - THE ARMY LAWYER - DA PAM 27-50-412

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