Modern warfare and counter-terrorism bump up against international law and the “law of war” on a moment to moment basis – and that’s the subject of this week’s Midrats show – Episode 72 Lawfare and the Long War 05/22 by Midrats on Blog Talk Radio:

Never in our history have we fought a war where law, lawyers, and layers of legalese have impacted all levels of the war, Political, Strategic, Operational, and Tactical.

Why do we find ourselves here and in what direction are we going?

From Pakistan, Afghanistan, Iraq, Libya and even domestically, the legal definition of the use of military power is evolving.

To discuss the impact of Lawfare for the full hour with Sal from the blog “CDR Salamander” and EagleOne from “EagleSpeak” will be David Glazier, CDR USN (Ret.).

David is a Professor of Law at Loyola Law School in Los Angeles. Prior to Loyola, he was a lecturer at the University of Virginia School of Law and a research fellow at the Center for National Security Law, where he conducted research on national security, military justice and the law of war. He also served as a pro bono consultant to Human Rights First.

Before attending law school, Glazier served twenty-one years as a US Navy surface warfare officer. In that capacity, he commanded the USS George Philip (FFG-12), served as the Seventh Fleet staff officer responsible for the US Navy-Japan relationship, the Pacific Fleet officer responsible for the US Navy-PRC relationship, and participated in UN sanctions enforcement against Yugoslavia and Haiti.

Glazier has a JD from the University of Virginia School of Law, an MA from Georgetown University in government/national security studies, and holds a BA in history from Amherst College.

So, with experience ranging from warrior to law of war scholar, Professor Glazier has some interesting (and perhaps unexpected) views on the matters described above.

Join us this Sunday at 5pm Eastern as we delve into the world of “lawfare.” I promise that the name of Hugo Grotius will be invoked somewhere along the way.

Link to the show page here.

Posted by Mark Tempest in Podcasts
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  • GIMP

    The only reason we find ourselves engaged in, and encumbered by lawfare is that we choose to be so engaged and encumbered. There is no body capable of enforcing its will upon the US by force, and the laws we adhere to are not physical laws, but ones of our own creation.

    War is a creative enterprise, based largely on deceit, and if fought smartly, on many things other than those that are directly kinetic. Still, we should never allow outmoded ways of thinking to limit our creativity when it comes to achieving victory.

    When we limit ourselves we just extend the length of conflicts and make them worse in the long run. We talk far too much and act far too little.

    Even the law of the sea imposes an affirmative action to stop piracy, yet we tiptoe and arrest pirates. Ridiculous. We can kill all the pirates we want. Terrorists. Non-signatories, illegal combatants by the Geneva convention, thus there are no laws to cover them and we should consider ourselves to have complete freedom of action.

    We choose to adhere to outmoded way of thinking about conflict, but it’s long past time to move past the false limitations we place upon ourselves voluntarily and nobody could enforce if they tried. There is no greater cruelty than to extend conflicts indefinitely by not doing what it required to win in the name of kindness to our enemies.

    It’s time we acknowledged that wars are not games, and that when our NCA commits troops to action it is a moral imperative to do everything possible to set them up for victory. That means no ridiculous half-assed committments to force, and no self imposed restrictions on the use of it.

    We will never be able to develop warfare to it’s highest level of art by staying within artificial boundaries that circumscribe actions in conflict. Let loose the dogs of war and let us move beyond the archaic ways of the past.

  • “Archaic ways of the past?” The archaic ways of the past included killing off entire civilizations and then spreading salt on their fields so that they could not return to their native land. Archaic ways of the past included killing all adult males and forcing women and children of a defeated foe into bondage.

    The Law of War is a fairly recent development, based to a large extent on reciprocity.

    Now if you are one captured by most enemy forces you can look to the protections of the Geneva Convention.

    The law protects against some force popping up over the horizon and starts shooting up fishing and pleasure boats while declaring them to be “pirates” or about a million other instances of actions that if repaid in kind would have you turning purple with rage.

    You may not like the Law of War or you may not like the idea that pirates are generally not allowed to be strung up from the nearest yardarm or even that innocent civilians are to be protected from unnecessary harm, but it seems improbable that you find the old ways to be so much better than the new that you would revert to deciding that “might makes right” is the only standard that matters.

  • Byron

    When the last American soldier is beheaded, when our women wear their burkhas and we all bow to the new Caliphate, we will take comfort in our misery that we scupolously followed the Laws of War.

    Yes, this is an extreme argument. No, I don’t believe this will happen. I merely point out that our enemies daily kill civilians and service members alike because of our desparate desire to adhere to a law that our enemies use against us. Our enemies will not give us mercy…we should not be in a rush to do the same.

    Eagle1…does the law of war apply even to terrorist who have no nation that is a signator of these laws? Who have no state other than a jihad? Do we owe them mercy when they have shown none to us?

  • Eagle1

    Does the “law of war” apply to terrorists? Yes, in certain circumstances.

    Does regular criminal law apply to terrorists? Yes, in certain circumstances.

    What happens if you abandon the rule of law?

    And who said anything about mercy? It is not unlawful to zap a known terrorist with a Hellfire missile (under the right conditions).

  • Matt Yankee

    Gimp is right on the money. Forget about the pirates until we HANG all the lawyers! lol

    We have this desire to feel good about ourselves and we think LAWYERS are the best judges of right and wrong. Poppycock! They are in fact vicious cannibals. They have eaten many industries alive already.

  • GIMP

    From my limited knowledge on the subject, I understand that the laws of war were conceived largely because continental europe was regularly engaged in war and they decided upon some rules, knowing they would eventually have to coexist.

    I am of the opinion that the laws of war are a ridiculous construct of a genteel past that are proven to be wholly inadequate for the modern world.

    When grown men play fight, they get in a boxing ring with gloves, protection, a referee, and rules. When grown men fight, they do anything they can to end it as fast and as violently as possible, with as little harm to themselves as possible, and as little opportunity for their adversary to ever respons as possible. That’s why grown men rarely fight, because it’s deadly.

    War is no game and should very rarely be fought. The only thing that attracts us to always starting fights is that we kid ourselves into believing that war can be fought gently and honorably.

    War is dirty, filthy, killing business. We should almost never fight, but when we do we should make damn sure we win at the least possible cost to ourselves, as quickly as possible, with the least possibility for our enemy to ever get back at us.

    We play at war like a game and that’s why we’re always at war. It’s no game for the people fighting it, and I think the laws of war make it artificially morally acceptable to attack others because it’s done “by the rules.” That’s all BS.

    The laws of war make it more likely that we’ll fight and that when we do the conflict will last longer than it should. The laws of war consume human lives so lawyers, who never fight, can feel good about sending men to battle and doing it under cover of the rule of law.

  • Eagle1

    Well, with such fine examples of coherent arguments in favor of “might makes right” and “it’s all the lawyers’ fault,” who could fail to be impressed . . . except me, I suppose.

    Repetitive arguments and immature chest beating mean little when the arguments you make are those of any bully who believes that the “best defense is a good offense” and that laws only tie the hands of the strong. You want law of the jungle? Good luck with that.

    Taken at face value, GIMP’s assertion that “We should almost never fight, but when we do we should make damn sure we win at the least possible cost to ourselves . . .” assumes that we have a say about when we fight. Are the lessons of Pearl Harbor and 9/11 so quickly forgotten? Don’t you think that every potential enemy feels exactly the same way? It’s a argument for first strike warfare with overwhelming force by . . . anyone with a grudge.

    “From my limited knowledge on the subject . . . I am of the opinion that the laws of war are a ridiculous construct of a genteel past that are proven to be wholly inadequate for the modern world.”

    We all know about opinions, especially those based on self-admitted ignorance.

  • GIMP

    Eagle1, fair statements all, but I don’t agree at all with the assertion that it’s chest beating. I believe what I am saying is the essence of speak softly and carry a big stick. It’s clear right now that we’re ready and willing to commit troops and use them is a manner that ensures endless combat, but we are not willing to commit troops in such a way as to put matters to rest as permanently as possible.

    I don’t blame the lawyers specifically, but with the vast majority of our elected officials being lawyers, with lawyers’ training and world view, I can’t help but to associate what I consider leadership failures at the top with the professional training and world view that produces the leaders.

    It’s very easy to use the rule of law and associated arguments to commit troops to ensure your will is enforced across the face of the earth. We often do choose where we fight (Lybia, Kosovo, Iraq, Afghanistan) and if the choice is made for us, we certainly choose exactly HOW we will fight, which is much more to the point.

    I may be admittedly ignorant on the subject as to the details, but there’s no legal expertise required to opine as to the gestalt of how we choose to fight. We make believe our possible range of actions or responses is circumscribed, but it isn’t. We are free to do exactly as we choose. If we choose to fight poorly, that’s a conscious decision and we should hold the leaders who make that decision accountable.