The Yale Law Journal


Our Darwinian Law of War

01 Sep 2006

The ways we fight - and the reasons why we fight - have changed. The Predator drone, last seen screaming across the screen in Syriana, has replaced the Winchester rifle in popular imagination; and Saddam Hussein is rightly considered a war criminal for violating the Chemical Weapons Convention, a treaty signed less than fifteen years ago. But the law of war the administration invokes to try Salim Hamdan is an outdated relic (although ironically, today’s military commissions do not even offer the protections afforded by their ancestors). It is lifted - not from today's battlefield - but from the pages of General Scott’s account of the 1847 Mexican-American War.

The law of war governs the conduct of hostilities: It dictates when nations may go to war and what they may do while at war. More than that, it is also the law that military commissions apply and the source of their authority. When Congress passed the Uniform Code of Military Justice (UCMJ), it authorized the President to convene military commissions only insofar as he is permitted by the law of war to do so. Article 21 of the UCMJ allows trial by military commission of those who “by the law of war may be tried.” Likewise, in Hamdi v. Rumsfeld, the Supreme Court parsed the Authorization for the Use of Military Force (AUMF) and held that it permitted only 'fundamental and accepted" incidents to war. The legal metes and bounds of Hamdan’s military commission are thus contingent on the modern meaning of the law of war.

But the administration has a stunted, anachronistic view of that law. It argues that because the original Articles of War (the predecessor to the UCMJ) acknowledged some role for military commissions, and because the UCMJ reenacted some of the Articles of War, the developments in the law of war since World War II can be ignored. But military courts have had to update the law of war governing the behavior of our armed forces; they have had to decide whether fraternization among enlisted men, once permitted, should now be considered “conduct prejudicial.” So too it would blink reality to ask the Supreme Court to ignore events of the last fifty years in deciding whether the modern law of war permits military commissions.

The administration has also asked the Court to look for the modern law of war in the wrong place. It claims that because the Geneva Conventions do not apply to our conflict with Al Qaeda, treaty law is irrelevant. It prefers to invoke sporadic, pre-Geneva Convention practice. But the administration tilts against a straw man. The question is not just whether the Geneva Conventions apply to Hamdan of their own force (although they do); rather, the question is also whether they, and other treaties, are better indicators of the modern import of the law of war than is executive custom (and this they surely are).

The law of war has always been international law, defined by the Supreme Court in Ex parte Quirin as the product of “universal agreement and practice.” This is doubly true today. Not only does the administration seek to apply its anachronistic law of war to a new kind of conflict—one with stateless, nonterritorial actors, and one that will require international cooperation—but it also seeks to displace those parts of the law of war that have been codified in the years since World War II. Today ministers no longer marshal historical evidence when they debate the legitimacy of conflict, as they did when British and American soldiers clashed on The Caroline. Instead, they look to treaty law. For instance, one court of appeals has said, “the law of war [w]as codified in the Geneva Conventions.” Likewise, Colonel Dinsmore, one of the UCMJ’s drafters, has explained, “‘[l]aw of war’ is set out in various treaties like the Geneva convention and supplements to that.”

Hamdan’s military commission must comport with this twenty-first century, treaty-defined law of war. Whether or not Hamdan may sue for money damages for Geneva Convention violations, the norms the Geneva Conventions expressly inform its meaning. And they forbid a commission that permits the introduction of evidence obtained through torture, permits the exclusion of the defendant when classified information is presented, and permits the President to act as judge, jury, and court of review.

It is the administration that bears the burden of proving that the modern law of war authorizes it to convene these commissions, and perhaps even use them to impose the death penalty. By way of analogy, to ensure that remedial legislation passed under Section Five of the Fourteenth Amendment is “appropriate,” the Court requires Congress to present considerable evidence of state constitutional violations. Likewise, to insure that military commissions are an “appropriate” use of force under the AUMF, the Court should require the administration to prove that its evidence, largely based on more than fifty-year-old history, is sufficient to overcome the sweeping changes to the international law of war of the last half-century.

Stephen Townley is a third-year student at Yale Law School and is the author of a Comment in Issue 5 of Volume 115. He has assisted Professor Neal Katyal, lead counsel in Hamdan v. Rumsfeld, on the case. Nothing in this essay purports to represent the position of Mr. Hamdan.

Preferred Citation: Stephen Townley, Our Darwinian Law of War, Yale L.J. (The Pocket Part), Apr. 2006,