In honor of the July 4th holiday, we thought it would be appropriate to do a show discussing the laws surrounding war. The way war is fought today is very different than how it was fought during the American Revolution, as the rules of the battlefield have changed in the face of terrorism and since the attacks on September 11, 2001.
As a former Army JAG and an attorney with a practice area focusing on military criminal law, I find the history of the laws of war a very interesting subject. A lot of the laws we follow stem from the Geneva Convention, including those surrounding torture. The definition for torture given by the Convention is any act by which severe pain or suffering, either mental or physical, is inflicted on a person for purposes to obtain information, a confession, punishment or intimidation. A lot of people feel if we capture a terrorist that torture should be permissible if it will prevent another tragedy like September 11. It’s hard to say sometimes where to draw the line but in my opinion, I don’t see a problem using an act of torture such as water-boarding on a terrorist if it means gaining information, as the Geneva Convention does not cover terrorists. However, it is important that they are indeed a terrorist and not a Prisoner of War or POW. When they are not carrying their arms openly and are not fighting fair, why should we fight fair?
I also find that there tends to be confusion when it comes to the differences between soldiers who go AWOL, deserters and those who are missing a movement. AWOL, or absent without leave, is basically when you are not where you are supposed to be and do not have permission to leave. Desertion takes it one step further and is when you show intent to remain away from the military forever. Missing a movement, however, contains the most potential for penalty and is when you have been ordered to perform a specific duty or deploy and you miss that movement, and is something I’ve been seeing a lot more of in my profession. Many AWOL soldiers or deserters are seeking the counsel of civilian defense attorneys who can be more aggressive and spend more time on their case and who many times they can trust more than the free military counsel they are offered.
To learn more about the laws of war and where they came from, read this article.