The Law of Armed Conflict: An Operational Approach

Towards the end of his memoir, Known and Unknown, former Secretary of Defense Donald Rumsfeld paused to observe that:

As never before in history, today lawyers and legal considerations pervade every aspect of U.S. military operations. Besides contending with enemy bullets and bombs, the men and women in our nation’s military and intelligence services must also navigate legal traps set by our enemies, by some of our fellow citizens, by some foreigners, and even by some members of Congress and officials at international institutions such as the United Nations. The rules, regulations, and consequences in legal venues have to be and are taken into account on every corner of the battlefield. American military personnel have found themselves named in lawsuits across Europe and in the United States. The mere threats of lawsuits and legal charges effectively bullies American decision makers, alters their actions, intimidates our security forces, and limits our country’s ability to gather intelligence and defend the American people. This is a new kind of asymmetric war waged by our enemies—“lawfare.” … We cannot yet know what the full consequences of lawfare will be, but the trend is troubling. At home, judges—not elected representatives in Congress or in the executive branch—increasingly determine how a president can operate during wartime against our nation’s enemies.

Secretary Rumsfeld has himself been the defendant in many lawsuits over the conduct of the wars in Afghanistan and Iraq, and Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006) are landmark Supreme Court decisions. Most of this litigation was generated by the application of the law of war, which is now generally known in academic legal circles as the “law of armed conflict,” a web of rights and obligations placed upon the United States by the U.S. Constitution, international treaties, customary international law, and statutes enacted by Congress. The law of armed conflict is complex and sophisticated, always evolving, and almost always controversial. For these reasons, the appearance of a new and comprehensive one-volume treatise, The Law of Armed Conflict: An Operational Approach, should be warmly welcomed by all who must implement this body of law as well as those who teach it. The authors have considerable experience in the theory and practice of the law of armed conflict, and the book is crisply and authoritatively written, with generous excerpts from the relevant legal materials, including many that are not well known, even to lawyers.

Download: The Law of Armed Conflict: An Operational Approach