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Military Lawyers on the Battlefield: An Empirical Account of International Law Compliance

Published online by Cambridge University Press:  27 February 2017

Laura A. Dickinson
Laura A. Dickinson*
Affiliation:
Sandra Day O’Connor College of Law,Arizona State University
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Extract

International law scholarship remains locked in a raging debate about the extent to which states do or do not comply with international legal norms. For years, this debate lacked empirical data altogether. International law advocates tended to assume that most nations obey most laws most of the time and proceeded to measure state activity against international norms through conventional legal analysis. In contrast, international relations realists and rational choice theorists have argued that international law is simply an epiphenomenon of other state interests with little independent power at all. Meanwhile, constructivist and transnational legal process approaches have posited that international law seeps into state behavior through psychological and sociological mechanisms of norm internalization and strategic action. But even these studies tend to remain on a theoretical level, without on-the-ground data about which factors might influence compliance in actual day-to-day settings.

Type
Research Article
Information
American Journal of International Law , Volume 104 , Issue 1 , January 2010 , pp. 1 - 28
Copyright
Copyright © American Society of International Law 2010

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References

1 Over a decade ago, Harold Hongju Koh wrote that compliance “remains among the most perplexing questions in international relations” and noted that the question is “fundamental from both a theoretical and practical perspective. It challenges scholars of international law and international relations alike. It vexes all subfields in international affairs, from international security to political economy; from international business transactions to international trade; from European Union law to international organizations.” Harold, Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599, 2599–600 (1997)Google Scholar. If anything, debates about compliance have intensified since then. For example, after the publication of Jack, L. Goldsmith & Eric, Posner’s The Limits of Intemational Law in 2005 Google Scholar, which used a rational choice approach in an effort to show that international law has no independent force, no fewer than seventeen review essays were written in response.

2 See Benedict, Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of Intemational Law, 19 Mich. J. Int’l L. 345, 346 (1998)Google Scholar (“[T]he first empirical task is to determine whether, as is often asserted by international lawyers, most States and other subjects of international law conform to most legal rules most of the time. We have impressions which may rise to the level of ‘anecdata,’ but in many areas we simply do not have systematic studies to show whether or not most States conform to most international law rules most of the time (citation omitted)).

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26 Id. (quoting Barnard at 122).

27 Id. at 43.

28 Douglas, supra note 14, at 98.

29 Id. at 102.

30 Id.

31 New Institutionalism, supra note 9; Organizational Environments, supra note 9.

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35 Id. at 145.

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39 Though not stated there in these terms, these factors are drawn generally from Taylor, supra note 9, and Rubin, supra note 9.

40 See, e.g., Simpson, supra note 21.

41 See Elizabeth, Chambliss, MDPs: Toward an Institutional Strategy for Entity Regulation, 4 Legal Ethics 45, 56–64 (2001)Google Scholar (criticizing the American Bar Association’s command–and–control approach to entity regulation and calling for more institutional support for in–house compliance specialists); Elizabeth, Chambliss & David, B. Wilkins, A New Framework for Law Firm Discipline, 16 Geo. J. Legal Ethics 335, 336 (2003)Google Scholar (proposing that law firms be encouraged to invest in in–house compliance specialists); see also Ian, Ayres & John, Braithwaite, Responsive Regulation: Transcending The Deregulation Debate 125 (1992) (“An independent internal compliance group is essential to the success of an enforced self–regulation scheme.”)Google Scholar.

42 See Elizabeth, Chambliss & David, B. Wilkins, The Emerging Role of Ethics Advisors, General Counsel, and Other Compliance Specialists at Large Law Firms, 44 Ariz. L. Rev. 559, 586–89 (2002)Google Scholar.

43 Id.

44 See Taylor, supra note 9, at 252.

45 See, e.g., Chambliss & Wilkins, supra note 42, at 588–89.

46 U.S. War Dep’t, Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (Apr. 24,1863), reprinted in The Laws of Armed Conflicts 3 ( Dietrich, Schindler & Jiří, Toman eds., 3d rev. ed. 1988)Google Scholar, available at http://www.civilwarhome.com/liebercode.htm.

47 Id., para. 16.

48 See Theodor, Meron, Francis Lieber’s Code and Principles of Humanity, in Politics, Values, And Functions: International Law In The 21st Century 249 Google Scholar ( Jonathan, I. Charney, Donald, K. Anton, & Mary, Ellen O’Connelleds., 1997)Google Scholar; see also Thomas, G. Barnes, Introduction: Francis Lieber and the Law of War, in Lieber’s Code and The Law of War 3 (Richard, Shelly Hartigan ed., 1995)Google Scholar; Theodor, Meron, The Humanization of Humanitarian Law, 94 AJIL 239 (2000)Google Scholar.

49 See generally Samuel, P. Huntington, The Soldier And The State (1957)Google Scholar.

50 See Patrick, Finnegan, The Study of Law as a Foundation of Leadership and Command: The History of Law Instruction at the United States Military Academy at West Point, 181 Mil. L. Rev. 112 (2004)Google Scholar.

51 Id.

52 1 U.S. Dep’t of The Army, Report of The Department of The Army Review of The Preliminary Investigations Into The My Lai Incident (1970), available at http://www.loc.gov/rr/frd/Military_Law/pdf7RDAR–Vol–I.pdf.

53 James, F. Gebhardt, The Road to Abu Ghraib: U.S. Army Detainee Doctrine and Experience, Mil. Rev., Jan.– Feb. 2005, at 44, 50 (quoting U.S. Army Field Manual, 1976 ed.)Google Scholar.

54 Frederic, L. Borch, Judge Advocates In Combat: Army Lawyers in Military Operations From Vietnam to Haiti 30 (2001)Google Scholar.

55 Id. at 37; U.S. Dep’t of Defense, DoD Law of War Program, Dir. 5100.77 (Nov. 5, 1974), canceled by id, Dir. 5100.77 (Dec. 9, 1998), available at http://www.au.af.mil/au/awc/awcgate/dod/d510077p.txt (reissuing 1974 directive “to update policy and responsibilities in the Department of Defense,” see para. 1.1 (a)).

56 Borch, supra note 54, at 31.

57 Interviewwith Jag Officer No. l4 (Oct. 18,2007). I interviewed twenty judge advocates, most of whom had served in either Iraq or Afghanistan, or in both, during the previous five years. I received permission from the Army JAG school in Virginia, and many of the interviews were conducted at the school in April 2007. Most of the interviewees had been in the JAG Corps for approximately eight years and were at the school for their second round of training. Several additional judge advocates were identified for interview through the so–called snowball method: they were mentioned by one or more of the initial interviewees. A few had served in other conflicts, including the first Persian Gulf war and the conflict in the Balkans in the 1990s.

58 Id.

59 Interview with JAG Officer No. 16 (Oct. 18,2007).

60 Interview with JAG Officer No. 14, supra note 57.

61 Borch, supra note 54, at 81.

62 Id.

63 Interview with JAG Officer No. 12 (Oct. 18, 2007).

64 Id.

65 International and Operational Law Department, Judge Advocate General’s Legal Center & School, U.S. Army, Operational Law Handbook (2007)Google Scholar, available at http://fas.org/irp/doddir/army/law2007.pdf.

66 Borch, supra note 54, at 240.

67 Id.

68 Id.

69 Interview with JAG Officer No. 20 (Oct. 16, 2007).

70 W. Hays Parks, Remarks, in panel discussion regarding military contractors, sponsored by the University of Virginia School of Law and the Judge Advocate General’s School (Oct. 15, 2007). For information regarding the panel, see Law Regarding Civilian Combatants, Contractors Murky, Say Experts (Nov. 20, 2007), at http://www.law.virginia.edu/html/news/2007_fall/civiliancombat.htm.

71 David, Luban, Lawfare and Legal Ethics in Guantánamo, 60 Stan. L. Rev. 1981, 2000 (2008)Google Scholar.

72 Tim, Golden, After Terror, a Secret Rewriting of Military Law, N.Y. Times, Oct. 24, 2004, § 1, at 1 Google Scholar.

73 William, Glaberson, Tribunal v. Court–Martial: Matter of Perception, N.Y. Times, Dec. 2, 2001 Google Scholar, §1B, a t6 (citing Edward, Sherman, former army lawyer and former dean of Tulane Law School); see also Golden, supra note 72Google Scholar.

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75 Neil, A. Lewis, A Nation Challenged: The Military Tribunals; Rules on Tribunal Require Unanimity on Death Penalty, N.Y. Times, Dec. 28, 2001 Google Scholar, at A1.

76 Neil, A. Lewis, Lawyer Says Detainees Face Unfair System, N.Y. Times, Jan. 22, 2004, at A25Google Scholar; Jonathan, Mahler, Commander Swift Objects, N.Y. Times, June 13, 2004 Google Scholar, §6 (Magazine), at 42.

77 Mark, Mazzetti & Neil, A. Lewis, Military Lawyers Caught in Middle on Tribunals, N.Y. Times, Sept. 16, 2006 Google Scholar, at A1.

78 Id.

79 On the memoranda, see, for example, Sean, D. Murphy, Contemporary Practice of the United States, 98 AJIL 820–31 (2004)Google Scholar.

80 Neil, A. Lewis, Military’s Opposition to Harsh Interrogation Is Outlined, N.Y. Times, July 28, 2005, at A21Google Scholar.

81 Id. (quoting Brig. Gen. Kevin, M. Sandkuhler, memorandum (Feb. 27, 2003))Google Scholar.

82 Id. (quoting Maj. Gen. Thomas, J. Romig, memorandum (Mar. 3, 2003))Google Scholar.

83 Id. (quoting Maj. Gen. Jack L. Rives).

84 Id.

85 V. Adm. Albert, T. Church III, Review Of Department Of Defense Detention Operations and Detainee Interrogation Techniques [Church Report], Executive Summary at 8 (Mar. 11, 2005)Google Scholar, available at http://www.dod.gov/pubs/foi/detainees/church_report_1.pdf.

86 Jeannie, Shawl, New US Army Interrogation Manual Mandates Geneva Rules, Jurist, Sept. 6, 2006 Google Scholar. Congress, however, subsequently exempted CIA operatives from the requirements of the Field Manual, except when operating under Defense Department control or within a Defense Department facility. See Detainee Treatment Act of 2005, §1002(a), 10 U.S.C. §801 note (2006).

87 For an argument about the role that military culture can play in deterring war crimes, see generally Mark, J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War (1999)Google Scholar.

88 Interview with JAG Officer No. 7 (Oct. 16, 2007).

89 Id.

90 Interview with JAG Officer No. 1 (Oct. 16, 2007).

91 Interview with JAG Officer No. 4 (Oct. 16, 2007).

92 Interview with JAG Officer No. 7, supra note 88.

93 See iCasualties.org, Operation Iraqi Freedom (2009), available at http://icasualties.org/Iraq/Index.aspx.

94 Interview with JAG Officer No. 7, supra note 88.

95 Id.

96 Interview with JAG Officer No. 8 (Oct. 16, 2007).

97 Id.

98 Id

99 Interview with JAG Officer No. 7, supra note 88.

100 Id.

101 Interview with JAG Officer No. 8, supra note 96.

102 Interview with JAG Officer No. 7, supra note 88.

103 Id.

104 Interview with JAG Officer No. 8, supra note 96.

105 Interview with JAG Officer No. 2 (Oct. 16, 2007).

106 Interview with JAG Officer No. 7, supra note 88.

107 Interview with JAG Officer No. 8, supra note 96.

108 Id.

109 Interview with JAG Officer No. 6 (Oct. 16, 2007).

110 Interview with JAG Officer No. 8, supra note 96.

111 Id.

112 Interview with JAG Officer No. 5 (Oct. 16, 2007).

113 Id.

114 Interview with JAG Officer No. 2, supra note 105.

115 Id.

116 Id.

117 Id.

118 Id.

119 Interview with JAG Officer No. 5, supra note 112.

120 Interview with JAG Officer No. 8, supra note 96.

121 Id.

122 Id.

123 Id.

124 Interview with JAG Officer No. 5, supra note 112.

125 Interview with JAG Officer No. 2, supra note 105.

126 Interview with JAG Officer No. 18 (Feb. 12, 2007).

127 Interview with JAG Officer No. 6, supra note 109.

128 Id.

129 Id.

130 Id.

131 Interview with JAG Officer No. 8, supra note 96.

132 Id.

133 Id.

134 Interview with JAG Officer No. 2, supra note 105.

135 Interview with JAG Officer No. 3 (Oct. 16, 2007).

136 Id.

137 Id.

138 Interview with JAG Officer No. 6, supra note 109.

139 Interview with JAG Officer No. 2, supra note 105.

140 Id.

141 Interview with JAG Officer No. 6, supra note 109.

142 Id.

143 Interview with JAG Officer No. 3, supra note 135.

144 Interview with JAG Officer No. 2, supra note 105.

145 Interview with JAG Officer No. 5, supra note 112.

146 Id.

147 Interview with JAG Officer No. 2, supra note 105.

148 Interview with JAG Officer No. 8, supra note 96.

149 Interview with JAG Officer No. 4, supra note 91.

150 Interview with JAG Officer No. 5, supra note 112.

151 Id.

152 Id.

153 Interview with JAG Officer No. 4, supra note 91.

154 Interview with JAG Officer No. 8, supra note 96.

155 Id.

156 Interview with JAG Officer No. 6, supra note 109.

157 Id.

158 Interview with JAG Officer No. 12 (Oct. 16, 2007).

159 Id.

160 Interview with JAG Officer No. 5, supra note 112.

161 Id.

162 Id.

163 Interview with JAG Officer No. 6, supra note 109.

164 Interview with JAG Officer No. 7 (Oct. 17, 2007).

165 Id.

166 See, e.g., Interview with JAG Officer No. 6, supra note 109.

167 Interview with JAG Officer No. 2, supra note 105.

168 Id.

169 Interview with JAG Officer No. 7, supra note 164.

170 Interview with JAG Officer No. 5, supra note 112.

171 Id.

172 Id.

173 Id.

174 Interview with JAG Officer No. 7, supra note 164.

175 Id.

176 Interview with JAG Officer No. 1, supra note 90.

177 Id.

178 Interview with JAG Officer No. 7, supra note 164.

179 The Uniform Code of Military Justice, 10 U.S.C. §§801–946 (2006), provides that soldiers may be punished for many such acts. See, e.g., 10 U.S.C. §889 (disrespect toward superior commissioned officer); 10 U.S.C. §892 (failure to obey order or regulation); 10 U.S.C. §912 (drunk on duty); 10 U.S.C. §915 (malingering); 10 U.S.C. §933 (conduct unbecoming an officer and a gentleman).

180 See 10 U.S.C. §815 (2006) (U.C.M.J. Art. 15, Commanding Officer’s Non–Judicial Punishment).

181 See 10 U.S.C. §§856a, 858a (2006).

182 Interview with JAG Officer No. 7, supra note 164.

183 Id.

184 Interview with JAG Officer No. 2, supra note 105.

185 Id.

186 Id.

187 Interview with JAG Officer No. 4, supra note 91. For U.C.M.J. Article 15, see note 180 supra.

188 Interview with JAG Officer No. 4, supra note 91.

189 Interview with JAG Officer No. 1, supra note 90.

190 Interview with JAG Officer No. 3, supra note 135.

191 Id.

192 Id.

193 Interview with JAG Officer No. 5, supra note 112.

194 Id.

195 Paul, von Zielbauer, Marines’ Trials in Iraq Killings Are Withering, N.Y. Times, Aug. 30, 2007 Google Scholar, at A1.

196 Interview with JAG Officer No. 5, supra note 112.

197 Interview with JAG Officer No. 2, supra note 105.

198 Interview with JAG Officer No. 5, supra note 112.

199 Id.

200 Id.

201 Interview with JAG Officer No. 2, supra note 105.

202 See supra text at notes 132–37.

203 Human Rights First, Bythe Numbers: Findings of the Detainee Abuse and Accountability Project 7 (2006)Google Scholar, available at http://www.humanrightsfirst.info/pdf/06425–etn–by–the–numbers.pdf.

204 Id. at 3.

205 For a discussion of the ways a military culture steeped in rules of law proved resistant to Bush administration initiatives, see Laura, A. Dickinson, Abu Ghraib, in International Law Stories 405 Google Scholar ( John, E. Noyes, Laura, A. Dickinson, & Mark, W. Janis eds., 2007)Google Scholar.

206 Jess, Bravin, Two Prosecutors at Guantanamo Quit in Protest, Wall St. J., Aug. 1, 2005 Google Scholar, at Bl.

207 Peter, Finn, Guantanamo Prosecutor Quits, Says Evidence Was Withheld, Wash. Post, Sept. 25, 2008, at A6 (Met 2 ed.)Google Scholar.

208 See, e.g., Laura, A. Dickinson, Public Values/Private Contract , in Government By Contract: Outsourcing and American Democracy 335 Google Scholar ( Jody, Freeman & Martha, Minow eds., 2009)Google Scholar; Laura, A. Dickinson, Contract as a Tool for Regulating Private Military Companies , in From Mercenaries To Market: The Rise and Regulation of Private Military Companies 217 Google Scholar ( Simon, Chesterman & Chia, Lenhardt eds., 2007)Google Scholar; Laura, A. Dickinson, Public Law Values in a Privatized World, 31 Yale J. Int’l L. 383 (2006)Google Scholar; Laura, A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law, 47 WM. & Mary L. Rev. 135 (2005)Google Scholar; see also Laura, A. Dickinson, Outsourcing War And Peace: Why Privatizing Foreign Affairs Threatens Core Public Values And How We Can Respond (forthcoming 2010)Google Scholar.

209 The potential link between organizational structure and legal compliance, for example, suggests further developing Michael, P. Scharf’s Study of the State Department legal advisers Google Scholar, see Scharf, supra note 8, to see whether aspects of the State Department’s organizational structure or institutional culture play a role in how effective the legal adviser is. Indeed, one might compare the institutional context of the legal adviser’s office at the State Department with that of legal advisers’ offices in other agencies (or in other countries) to see whether aspects of organizational structure influence the efficacy of each office.

Another important, recent qualitative study, which examines the organizational culture of the World Bank and its impact on the World Bank’s human rights agenda, is Galit, A. Sarfaty, Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank, 103 AJIL 647 (2009)Google Scholar.