Military Law

The international law of armed conflict applies to situations involving an armed, hostile conflict that is not a civil or internal matter.

An armed conflict may begin by declaration of war, by the announcement of one governmental entity that it considers itself at war with another, or through the commission of hostile acts by the military forces of one entity against another. In the past, a formal declaration of hostilities was required before a conflict was legally interpreted as a war. Thus, in Savage v. Sun Life Assurance Co., 57 F. Supp. 620 (W.D. La. 1944), the court found that the insured, who died in the Japanese attack on Pearl Harbor, had not died as a result of war because the United States had not yet formally declared itself at war with Japan. Rather, the court found that the insured's death was accidental and that his beneficiary could collect double indemnity under an accidental death policy. In modern times, the outbreak of hostilities even without a formal declaration or ultimatum is regarded as war in a legal sense, unless both parties deny the existence of a state of war.

Armed conflict may be terminated by a peace treaty, a cessation of hostilities and establishment of peaceful relations, unconditional surrender, or subjugation.

The United States, as a member of the UNITED NATIONS, is bound by the U.N. Charter, which requires that its members refrain from the threat or use of force in any manner that is not consistent with U.N. policies. In addition, the United States is a signatory to most major treaties relating to warfare, including the Hague Conference of 1907, the Geneva conferences of 1929 and 1949, and the Genocide Convention of 1948. All of these treaties set forth basic principles that govern the conduct of war: Force should be directed only at targets that are directly related to the enemy's ability to wage war (military necessity); the degree of force used should be directly related to the importance of the target and should be no more than is necessary to achieve the military objective (proportionality); and the force used should cause no unnecessary suffering, destruction of civilian property, loss of civilian life, or loss of natural resources (humanitarian principle). In addition, the Hague Conference provided that captured prisoners may not be killed; captured towns may not be pillaged; and the property, rights, and lives of civilians in armed conflict areas must be respected.

In addition to written treaties relating to war, international armed conflict is governed by customary international law, or the COMMON LAW of armed conflict. Under this constantly evolving body of law, certain conduct is proscribed because world opinion forbids it. In Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (1942), order modified by 63 S. Ct. 22, the Court upheld jurisdiction of a military tribunal over German saboteurs who used civilian disguises, even though no written law or treaty justified their trial. The Court based its decision on the ground that infiltration by disguise violated the customary law of armed conflict. (See also The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320 [1900].) The customary law of war is based on the same principles embodied in the Hague Conference and subsequent treaties and reflects international agreement that actions that are inconsistent with those principles should not go unpunished even in the absence of express prohibitions. Many nations, including the United States, have codified significant portions of the common law of armed conflict. (See U.S. Department of the Army, The Law of Land Warfare [Field Manual 27-10, 1956].)

In response to the SEPTEMBER 11TH ATTACKS in 2001, when terrorists hijacked four U.S. planes and used them to destroy the World Trade Center in New York and seriously damage the Pentagon, President GEORGE W. BUSH led the country into a WAR ON TERRORISM. As part of this war, Bush signed a military order on November 13, 2001 that, among other provisions, allows the United States to try suspected terrorists in a military tribunal, rather than the federal court system.

According to the order,"To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order …to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals." The order authorizes the secretary of defense to issue regulations establishing military commissions to try any and all offenses subject to the order. These regulations must ensure a full and fair trial and must provide rules pertaining to procedures, evidence, issuance of process, qualifications of attorneys, and other similar matters.

The DEFENSE DEPARTMENT issued regulations on March 21, 2002. Many of the provisions in the regulations are similar or analogous to rules that apply in the civilian courts. These regulations provide that an accused must be provided with a defense counsel, or may choose his or her own attorney. The accused is presumed innocent until proven guilty, and the prosecution must prove its case BEYOND A REASONABLE DOUBT. The rules also ensure the rights against SELF-INCRIMINATION and DOUBLE JEOPARDY.

As the United States engaged in military action in Afghanistan, suspected members of the Taliban regime and the al-Qaeda organization were held at U.S. military bases, and could have been subjected to the military tribunals. Supporters of this plan indicate that military tribunals are necessary because the United States is at war with terrorists, and alien enemies are generally not afforded the protection of the U.S. Constitution at times of war. Moreover, supporters note that during critical wars in the nation's history, leaders often have used military tribunals. These leaders include GEORGE WASHINGTON, during the Revolutionary War; ABRAHAM LINCOLN, during the Civil War; and FRANKLIN DELANO ROOSEVELT, during World War II.

Critics note that the use of military tribunals has serious constitutional implications. Certain constitutional rights might not apply in a military tribunal as they do in the regular court system. Whereas a conviction in a regular court requires a unanimous vote, a military tribunal, which makes all determinations of the law and the facts, must agree by a two-thirds majority. Moreover, a trial in a military court need not be held in public, and the right to an appeal is limited. No ruling by a military tribunal is final until approved by the president or the secretary of defense.

Bush's order generally has not been popular overseas, as the use of these tribunals has been seen as a means by which the U.S. can avoid fair trials in its civilian system. Nevertheless, the Bush administration has defended the development of the system. According to Bush, "We are an open society, but we are at war. We must not let foreign terrorists use the forums of liberty to destroy freedom itself."