Kriegsraison or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards the Conduct of War
Fordham International Law Journal
Copyright c 2006 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
One phrase from a memorandum issued by President George W. Bush early in the War on
Terror offers an effective summary of a radically transformed military doctrine. “As a matter of
policy,” Bush wrote, “the United States Armed Forces shall continue to treat detainees humanely
and, to the extent appropriate and consistent with military necessity, in a manner consistent with
the principles of Geneva.” The statement offered a sense of assurance of continuity of U.S.
military doctrine, which many generations viewed as being at or near the vanguard in assuring high
standards for the treatment of military prisoners. This was a false assurance. We have learned
that the phrases “as a matter of policy”; “humanely”; “to the extent . . . consistent with military
necessity”; and “consistent with the principles of Geneva” each acted as a dramatic limitation on
or reversal of prior policy. “As a matter of policy,” meant that the Executive did not feel it was
bound by law with respect to either the Geneva Conventions themselves or, perhaps more
surprisingly, by the legislation enacted by Congress to implement them– including the Uniform Code
of Military Justice (“UCMJ”), the War Crimes Act, the Anti-Torture Act, and similar statutes.
Policy was viewed as entirely a matter of Executive Branch discretion. Hence, “policy” may be
held out to the public, but ignored whenever it suits the Executive to do so. “Humanely” did not
mean either the definition provided in Common Article 3 of the Geneva Conventions of 1949,
nor the term as used by U.S. Presidents since the famous injunction of George Washington to
“[t]reat them with humanity” given in the wake of the Battle of Trenton. “Humanely,” as used
by President Bush and his Administration, implies only a responsibility to provide food, medical
attention, and a sanitary place to sleep. It in no way suggested an intention to treat a prisoner with
basic decency, respect for his religious values, respect for the physical integrity of the person, or
even a commitment not to use cruelty. Moreover, as we later learned from an investigative report
by Lieutenant General Randall Mark Schmidt, interrogators and prison guards were consciously
authorized to use treatment which was both “cruel” and “degrading” because the Administration
had determined that the prohibition on cruel, inhuman, and degrading treatment contained in the
Convention Against Torture was not applicable. Finally, we come to what may be the single most
disturbing and far-reaching of all these exercises in legerdemain–the suggestion that the
principles of the Geneva Conventions might be applied subject to the doctrine of “military necessity.”
Investigations of events throughout the conflict, from Afghanistan to Iraq and Guanta´namo, show
that the term “military necessity” is being invoked to justify far-ranging deviations from the law
of armed conflict. As this Article discusses, these uses are in fact inconsistent with the doctrine of
military necessity as it was developed in the United States and is now almost uniformly accepted
in the law of armed conflict. Instead, they constitute an attempt to resurrect a different concept,
developed in nineteenth century Germany, called Kriegsraison. This change is nothing less than
an effort to overturn 140 years of U.S. military doctrine and to substitute in its place conduct that
the United States has historically branded as “criminal” and has in fact prosecuted.
KRIEGSRAISON OR MILITARY NECESSITY?
THE BUSH ADMINISTRATION'S
WILHELMINE ATTITUDE TOWARDS
THE CONDUCT OF WAR
One phrase from a memorandum issued by President
George W. Bush early in the War on Terror offers an effective
summary of a radically transformed military doctrine. "As a
matter of policy," Bush wrote, "the United States Armed Forces shall
continue to treat detainees humanely and, to the extent
appropriate and consistent with military necessity, in a manner
consistent with the principles of Geneva."' The statement offered a
sense of assurance of continuity of U.S. military doctrine, which
for many generations was viewed as being at or near the
vanguard in assuring high standards for the treatment of military
prisoners. This was a false assurance. In the course of the last
four years it has become clear that President Bush's undertaking
is far less than meets the eye. In essence, we have learned that
the phrases "as a matter of policy"; "humanely"; "to the extent
...consistent with military necessity"; and "consistent with the
principles of Geneva" each acted as a dramatic limitation on or
reversal of prior policy.
"As a matter of policy," meant that the Executive did not feel
it was bound by law with respect to either the Geneva Conventions
themselves or, perhaps more surprisingly, by the legislation
enacted by Congress to implement them-including the Uniform
Code of Military Justice ("UCMJ"),2 the War Crimes Act,3 the
Anti-Torture Act,4 and similar statutes. Policy was viewed as
entirely a matter of Executive Branch discretion. Hence, "policy"
may be held out to the public, but ignored whenever it suits the
Executive to do so. "Humanely" did not mean either the
definition provided in Common Article 3 of the Geneva Conventions
of 1949, 5 nor the term as used by U.S. Presidents since the
famous injunction of George Washington to "[t]reat them with
humanity" given in the wake of the Battle of Trenton.6
"Humanely," as used by President Bush and his Administration,
implies only a responsibility to provide food, medical attention,
and a sanitary place to sleep. It in no way suggested an intention
to treat a prisoner with basic decency, respect for his religious
values, respect for the physical integrity of the person, or even a
commitment not to use cruelty.7 Moreover, as we later learned
from an investigative report by Lieutenant General Randall
Mark Schmidt, interrogators and prison guards were consciously
authorized to use treatment which was both "cruel" and
"degrading" because the Administration had determined that the
prohibition on cruel, inhuman, and degrading treatment contained
in the Convention Against Torture was not applicable.8 Finally,
we come to what may be the single most disturbing and
farreaching of all these exercises in legerdemain-the suggestion
that the principles of the Geneva Conventions might be applied
subject to the doctrine of "military necessity." Investigations of
events throughout the conflict, from Afghanistan to Iraq and
Guantdnamo, show that the term "military necessity" is being
voked to justify far-ranging deviations from the law of armed
conflict. As this Article discusses, these uses are in fact
inconsistent with the doctrine of military necessity as it was developed in
the United States and is now almost uniformly accepted in the
law of armed conflict.9 Instead, they constitute an attempt to
resurrect a different concept, developed in nineteenth century
Germany, called Kriegsraison1. ° This change is nothing less than
an effort to overturn 140 years of U.S. military doctrine and to
substitute in its place conduct that the United States has
historically branded as "criminal" and has in fact prosecuted.
I. THE ORIGINS OF MILITARY NECESSITY: KANT,
CLA USEWITZ, AND LIEBER
The term "military necessity" came into heavy usage in U.S.
military parlance during the Civil War. On May 9, 1862, Major
General David Hunter, Commander of the Union forces on the
Georgia and Carolina coasts, issued an order freeing all slaves in
Georgia, Florida, and South Carolina." Ten days later,
President Abraham Lincoln revoked this order saying it was not
within the power of Hunter to have issued the emancipation. 12
In so doing, Lincoln said his military commander in the field
had a right to issue orders on all matters where it was a "necessity
indispensable to the maintenance of the government."'" It
seems fairly clear that this language was crafted by Lincoln's law
of armed conflict advisor, Professor Francis Lieber of Columbia
University, and that in so doing Lieber was drawing upon
concepts that were already well developed in the German-speaking
world. The concept of military necessity proper emerges for the
first time in General Orders No. 100, the "Lieber Code,"
("Code") promulgated by President Lincoln on April 23,
1863the seminal document of international humanitarian law. 14
Lieber was the foremost Kant scholar in the United States in
the mid-nineteenth century. 5 The Lieber Code represents a
de9. See infra notes 11-20, 23-46 and accompanying text.
10. See infra notes 21-22, 47-57 and accompanying text.
11. See 1 CARL SANDBURG, ABRAHAM LINCOLN: THE WAR YEARS 561 (1939).
12. See id. at 562.
13. ABRAHAM LINCOLN, SPEECHES AND WRITINGS 1859-65, at 318-19 (1989).
14. See U.S. War Department, General Orders No. 100, Apr. 24, 1863 [hereinafter
15. See BERNARD EDWARD BROWN, AMERICAN CONSERVATIVES: THE POLITICAL
velopment and application of Kantian principles relating to the
law of armed conflict. In the Kantian system, States and armies
are expected continuously to compare the expected gain to be
derived from the use of any military tactic against the costs or
wrongs unleashed by this tactic. 6 A given tactic should only be
employed if this analysis suggests that its benefits exceed the
harm it would introduce. 7 Obviously, Kant presents these
considerations at a highly abstract level. He provides little useful
insight into the process by which such a comparison is to be
undertaken. But a contemporary Kantian would certainly turn to a
rights-based analysis, and Kantians increasingly view universal
human rights as a powerful "good" for purposes of this calculus,
if not in fact the ultimate "good":
[T] rue politics can never take a step without rendering
homage to morality. Though politics by itself is a difficult art, its
union with morality is no art at all, for this union cuts the
knot which politics could not untie when they were in
conflict. The rights of men must be held sacred, however much
sacrifice it may cost the ruling power. One cannot
compromise here and seek the middle course of a pragmatic
conditional law between the morally right and the expedient. All
politics must bend its knee before the right. But by this it can
hope slowly to reach the stage where it will shine with
While the claim of civilians to security arises from a sense of
right, in the Kantian sense, it is not an absolute right.'" It
remains subject to the belligerent's ability to pursue its legitimate
object. There can be no doubt that Lieber's fellow Prussian and
near contemporary, Carl von Clausewitz, is the key source for
this concept as it was introduced in the Lieber Code.2"
THOUGHT OF FRANCIS LIEBER AND JOHN W. BURGESS 88 (1951); Mike Robert Horenstein,
Contributions: The Virtues of Interpretation in a Jural Society, 16 CARDOZO L. REV. 2273
16. See BRIAN OREND, WAR AND INTERNATIONALJUSTICE: A KANTIAN PERSPECTIvE
17. See id.
18. IMMANUEL KANT, PERPETUAL PEACE 46 (Lewis White Beck & Oskar Piest eds.,
Liberal Arts Press 1957) (1795).
19. See OREND, supra note 16, at 21 (reviewing Kant's theory ofjustice, which states
that everyone has a right to security that is "equal to, and consistent with" the security of
20. See generally CARL VON CLAUSEWITZ, ON WAR (Anatol Rapoport ed., J.J. Graham
trans., Penguin Books 1968) (1832).
The thrust of Clausewitz's conceptualization of military
necessity is that as long as battlefield conduct bears a reasonable
relationship to a politico-military objective, it is legitimate. 2' The
key sentence of Vom Kriege certainly is this: "War is nothing but a
continuation of political intercourse, with a mixture of other
means."22 Consequently, Clausewitzian military
necessity-Kriegsraison-willjustify any militarily expedient measure, including a
contravention of otherwise defined laws of armed conflict.
While recognizing the value of Clausewitz's work and
appreciating its essentially descriptive character, Lieber the moral
philosopher was greatly concerned by the prospect that Kriegsraison
could emerge as a rule, or rather a rule-swallowing exception, in
the law of armed conflict. Consequently, in introducing the
concept of military necessity in the Code, Lieber's focus is directed
at its limitation.23 Indeed, this limitation has correctly been
called his "greatest theoretical contribution to the modern law of
Article 14 of the Lieber Code states: "Military necessity, as
understood by modern civilized nations, consists in the necessity
of those measures which are indispensable for securing the ends
of war, and which are lawful according to the modern law and
usages of war."25
Lieber's first limitation is that military necessity includes not
all measures, but only those that are indispensable to achieve a
military end. Clausewitz's wording is quite different; he is
concerned only with whether the tactic is actually suited to an ends,
not whether no alternative appears to its use. 26 This single word
("indispensable"), therefore, already introduces a dramatic
softening of the Clausewitz approach. Equally powerful is the
second limitation: that military necessity is not an exception to the
law of armed conflict, but rather subject to explicit restrictions
contained in the law of armed conflict. Of course, Clausewitz's
approach was never to author a moral philosophy of war, or even
21. See id. at 22.
22. Id. at 402.
23. See Burrus M. Carnahan, Lincoln, Lieber and the Laws of War: The Origins and
Limits of the Principleof MilitaryNecessity, 92 AM. J. INT'L L. 213, 213 (1998).
24. See id.
25. Lieber Code, supra note 14, art. 14.
26. See CLAUSEWITZ, supra note 20, at 13 ("[S]trategy and tactics ought to be
directed toward just one end, namely towards victory.").
to describe the legal norms historically evolved to govern it. The
essential characteristic of his work is that it is descriptive of the
actual practice of rational warring States. 2 7 Lieber, codifying the
law of armed conflict, cannot accept this view of military
necessity as a transcendent rule-he must incorporate it in his system
and subordinate it to other rules. This point is fundamental and
Lieber's third limitation, found in Article 15 of the Code, is
the general concept that military necessity may never be invoked
to breach an agreement or undertaking properly given.2 ' His
fourth limitation is to list a series of specific rules which may
never be overcome by arguments of military necessity
introduced with a more general restriction found in Article 16 of the
Code: "Military necessity does not admit of cruelty-that is, the
infliction of suffering for the sake of suffering or for revenge,
nor of maiming or wounding except in fight, nor of torture to
extort confessions. 29
The approach that Lieber has taken is essentially the same
that drives the modern dialogue about military necessity. He is
arguing that military necessity must be tempered by two
concepts: humanity and proportionality. The first stems plainly from
the Kantian injunction against the treatment of humanity as a
means;30 it cautions that the human cost must be weighed
carefully in any consideration involving military necessity. It rejects a
range of practices as fundamentally inhumane and
unacceptable, whether they would serve the interests of military necessity
or not. The second concern asks for a weighing of the costs of
the tactic against the benefit gained through its use. This is
demonstrated both in the notion of it being "indispensable" and
in Lieber's admonition against acts which "make  the return to
peace unnecessarily difficult. '31 Both this approach and even
much of Lieber's language is lifted directly from Kant's Zum
ewigen Frieden.12 If a tactic fails the test on grounds either of
hu27. See id. ("Clausewitz says what war is.").
28. See Lieber Code, supra note 14, art. 15.
29. Id. art. 16.
30. See generally IMMANUEL KANT, FUNDAMENTAL PRINCIPLES OF THE METAPHYSIC OF
MORALS (Thomas K. Abbott trans., 1949).
31. Lieber Code, supra note 14, art. 16.
32. Compareid. (enumerating acts of hostility, such as the use of poison, that would
undermine a return to peace), with KANr, supra note 18, at 7 (same).
manity or proportionality, it must be discarded even if it would
be efficacious from a pure test of Kriegsraison.
A. Intrinsically UnacceptableMeans as a Restraint
While the weighing process discussed above would lead to
the exclusion of many tactics, efficiency is gained by the outright
exclusion of certain tactics so as to avoid the need for a
battlefield calculus. This is a distinction Kant draws between mala in
se, or intrinsic evils, and ordinary wrong."3 In the Rechtslehre,
Kant argues that certain means of warfare would, if reached to,
render an actor unfit in the eyes of international justice to
function in relation to other States and to share equal rights with
them.3 4 In Zum ewigen Frieden, he states:
No State Shall, during War, Permit Such Acts of Hostility
Which Would Make Mutual Confidence in the Subsequent
Peace Impossible: Such Are the Employment of Assassins
(percussores), Poisoners (venefici), Breach of Capitulation,
and Incitement to Treason (perduellio) in the Opposing
Article 16 of the Lieber Code is essentially an edited translation
of this passage.36
The editing that Lieber has undertaken is interesting. What
has he added? The first addition is a prohibition on torture. 7
There can be no question of Kant's exclusion of torture; it was
an example he used in demonstration of his basic notion that
"man and generally any rational being exists as an end in
himself, not merely as a means to be arbitrarily used by this or that
will, but in all his actions, whether they concern himself or other
rational beings, must be always regarded at the same time as an
end."" s Since the object of torture, used as a tool in a military
context, is to subvert human will and assault the basic dignity of
the object, it constitutes a use of humans as a means rather than
an end, and is therefore beyond the pale. In adding torture
33. See KANT, supra note 18, at 7-9.
34. See IMMANUEL KANT, THE METAPHYSICS OF MORALS § 57 (Mary Gregor trans.,
35. KArr, supra note 18, at 7.
36. Compare Lieber Code, supra note 14, art. 16, with KAr, supra note 18, at 7.
37. See Lieber Code, supra note 14, art. 16.
38. 5 IMMANUEL KANT, SAMTLICHE WERKE (Grossherzog Wilhelm Ernst ed., 1920)
back to the list, Lieber is being a better Kantian than Kant was
Kant's oversight of torture should not be given too much
significance here; it seems likely that Kant himself was
referencing a classical text, almost certainly a Stoic text on warfare, as the
parenthetical use of Latin phrases suggests. Moreover, Kant's
concept at this point is not to attempt a humanitarian law of war,
but to suggest the necessity of it.
Lieber removed one item from Kant's list-targeted
killings. But this is only a matter of editorial reorganization, since
Lieber made this the subject of a special chapter of the Code.39
Article 148 states:
The law of war does not allow proclaiming either an
individual belonging to the hostile army, or a citizen, or a subject of
the hostile government an outlaw, who may be slain without
trial by any captor, any more than the modern law of peace
allows such international outlawry; on the contrary, it abhors
such outrage. The sternest retaliation should follow the
murder committed in consequence of such proclamation, made
by whatever authority. Civilized nations look with horror
upon offers of rewards for the assassination of enemies as
relapses into barbarism.4"
A year earlier, Lieber had ended his monograph on partisans on
a similar note: "So much is certain, that no army, no society,
engaged in war, any more than a society at peace, can allow
unpunished assassination, robbery, and devastation, without the
deepest injury to itself and disastrous consequences, which
might change the very issue of the war."4
From the historical context, it is clear that this was a
burning issue. A project of assassination was being advocated in
certain folds of the Republican Party, and Lieber had emerged
from the outset as a very stern opponent.4 2 The so-called
Dahlgren Affair involved allegations of a plot to assassinate
Confederate leaders in a raid on Richmond, Virginia." Secretary of War
Stanton assigned Lieber the task of investigating this affair, but it
39. See Lieber Code, supra note 14, art. 148.
41. FRANcIs LIEBER, GUERILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS
AND USAGES OF WAR 22 (Joseph Perkovich ed., Lawbook Exch. 2005) (1862).
42. See DUANA P. SCHULTZ, THE DAHLGREN AFFAIR 152-60 (1998).
43. See id.
In any event, however, Lieber's views on this point were
fixed and followed Kant's closely. Kant opposed assassination
not only out of purely moral reasoning, but also on the basis of
an examination of Renaissance Italian history, where the
practice of assassination had flourished.4 5 In his view, assassination
had to be discarded because it destroyed the environment
necessary for diplomatic discussion and made peace incalculably more
difficult to obtain.46 It was, therefore, in the language of the
Rechtslehre, a disqualifying act.
The conceptual framework that Kant sets down, and Lieber
expands, lives with us today. It requires a testing of means of war
against utilitarian and humanitarian concerns. It was a logical
extension of these concepts, following the use of chemical
agents and poisonous gases in World War I, to proceed to limit
such horrific tools. Similarly, it was a logical expansion to
preclude bullets that expand on impact, or which contain glass
shards, booby-traps of certain sorts, and landmines. And the
logic of this prohibition of inherently unacceptable weaponry
leads without a doubt to a questioning of the unholy trinity of
modern weaponry: nuclear, biological, and chemical weapons.
Successively more devastating generations of weaponry raise the
stakes in humankind's struggle for survival, making issues of
containment and control ever more vital. All of this lies, in a
germinal state, in both Kant and in Lieber's transposition of Kantian
theory into rules of armed conflict laid out in 1863.
B. The Bismarckian Response
"What leader," said Chancellor von Bismarck, "would ever
allow his country to be destroyed for the sake of international
law?"4 7 While Germany emerged as an important Rechtsstaat
under Bismarck, and a parliamentary democracy took root and
grew on the strength of a vigorous legal tradition, Bismarck
viewed the world of international affairs as something
fundamentally different. States were sovereign, and the rules of
national law tied them only as a matter of convenience and
consent.48 This was certainly the case for the laws of armed conflict.
Still, Lieber's Code found almost immediate reverberation
in Europe, and was picked up and advocated by important
scholars, such as Johann Caspar Bluntschli.49 By 1870, Prussia issued
a code that closely followed Lieber's Code.50 But Prussia's
embrace of the work of its 6migr6 son was heavily qualified, and the
doctrine of military necessity was the focus of contention.
Prussia, and then Germany, embraced an unrestrained Clausewitzian
view of the doctrine, as exemplified in the maxims "Kriegsraison
geht vor Kriegsmanir' ("Kriegsraison takes precedence before the
laws of war") and "Not kennt kein Gebot" ("Necessity knows of no
legal limitation")." Under this view, a battlefield commander is
entitled to dispense with the rules of warfare if he determines
that the military situation requires that he do so. In the words of
the principal expositor of this unrestrained view, Carl Lfider,
"any departure from the laws of war can be justified when
circumstances arise which mean that the achievement of the
waraim, or the escape from extreme danger, would be hindered by
adhering to it."52 In this case, the only limitation on the
commander's conduct is that it be reasonably tied to the
accomplishment of a military objective. As one commentator put it:
The doctrine [of Kriegsraison] practically is that if a
belligerent deems it necessary for the success of its military
operations to violate a rule of international law, the violation is
permissible. As the belligerent is to be the sole judge of the
necessity, the doctrine is really that a belligerent may violate the
law or repudiate it or ignore it whenever that is deemed to be
for its military advantage. 3
The Bismarckian response had a specific Realpolitik context.
Germany achieved unification after the Franco-Prussian War.54
Economic prosperity came in the Grinder'ahre5 and a German
military machine rose with hegemonistic pretensions in Central
Europe, and a dream of a belated empire overseas.56 Germany
resented political machinations that appeared designed to stunt
efforts to realize the advantages that went with its new-found
wealth and power.5 ' As Bismarckian Realpolitik faded and the
Weltpolitik of Bismarck's successors came in its place, military
necessity and Kriegsraison became a significant geopolitical fault
C. The Hague Process
The Lieber Code's recasting of the military necessity
concept had an immediate effect on the law of armed conflict
dialogue in Europe. For example, the St. Petersburg Declaration of
December 11, 1868 banned the use of small-caliber explosive
bullets, and cited the Lieber Code for its principal justification
that explosive bullets caused unnecessary suffering without
concomitant military advantage.5" This was an important precursor
to the Brussels and Hague Processes launched by an appeal from
the Russian Tsar Alexander II.
When the U.S. and German delegations discussed the
concept in the preparatory works for the Hague Convention on
Land Warfare, 59 they had a fundamental problem in
terminology. The U.S. said "military necessity" and the Germans
"Kriegsraison." Did these terms mean the same thing? Clearly not. As
previously discussed, Lieber took the notion of Kriegsraisonand
put it inside of Kantian collars, whereas the Germans used a
purely Clausewitzian approach.6" The result, as the negotiating
teams quickly discovered in Brussels and the Hague, was that the
U.S. and Germans realized that "military necessity" and
"Kriegsraison"were distinctly different concepts.
The negotiations that culminated in the Hague Convention
on Land Warfare of 1907 had, to be fair, highlighted but never
fully resolved these differences. The clash between the United
States and Germany is found in three provisions. First, the
Preamble to the 1907 Convention states that: "These provisions, the
wording of which has been inspired by the desire to diminish the
evils of war, as far as military requirementspermit, are intended to
smeruvteuaals raelgateinoenrsalanrduleinofthceoirndruelcattifoonrs thweithbetlhliegeirnehnatbsitiannttsh."ei6r1
This language was viewed by the German delegation as
subjecting all the agreements to the doctrine of Kriegsraison, an
interpretation that the United States vehemently rejected and other
European great powers were prepared to leave ambiguous.
Second is Article 22, which states that "[t] he right of belligerents to
adopt means of injuring the enemy is not unlimited."6 2 But
Article 22 itself is to be read in conjunction with the third provision,
Article 23, which enumerates eight specifically prohibited
means, saying they are "especially forbidden."6 3 Article 23, in
turn, includes in subpart (g), which addresses destruction or
seizure of the enemy's property, an exclusion based on military
D. The World Wars and Their Aftermath
A few years later, German troops swept across neutral
Belgium on their way to the French front, providing a graphic
demonstration. For the Germans, this maneuver was permitted
by Kriegsraison,whereas for the Western powers, it showed
German contempt for basic norms of the law of armed
conflictand specifically, a violation of the rights of Belgium as a neutral
60. See supra notes 11-57 and accompanying text.
61. Convention on Laws and Customs of War, supra note 59, pmbl. (emphasis
62. Convention on Laws and Customs of War, supra note 59, art. 22.
63. Id. art. 23.
64. See id. art. 23(g).
At the conclusion of World War I, Germans used
Kriegsraison as a legal justification for more dubious practices,
including vicious submarine warfare and the employment of doubtful
means of chemical warfare. 66 No effort was taken to hold
German leaders individually liable for these positions, in part
certainly because Allied leaders had themselves authorized military
measures which might only have been justified under the same
doctrinal view.6 7
During World War II, German leaders again used
Kriegsraison to justify a number of highly doubtful practices focusing
on merchant shipping, civilian populations, and hors de combat
detainees. This time, however, the Allies decided to bring
criminal prosecutions, with the result that the doctrine of Kriegsraison
figured directly in trials at Nuremberg and Tokyo. Some of the
more significant cases included United States v. List (the "Hostage
Case") 6" and United States v. Altstoetter (the 'Justice Case"). 69 The
former case involved Colonel-General Rendulic's devastation of
the Norwegian Finmark in October 1944, in which the defense
of Kriegsraison was sustained on some points and rejected on
others;7 ° the latter involved the Kommandobefehl and the
Nachtund Nebelerlass in which this defense was denied.71 In both cases,
the Tribunal adopted a very skeptical attitude towards
Kriegsraison and insisted on strong evidence to sustain it. The
Tribunal made clear that it considered the traditional German
approach to Kriegsraisonfundamentally at odds with evolving law of
It is apparent from the evidence of these defendants that they
considered military necessity, a matter to be determined by
them, a complete justification for their acts. We do not
cur in the view that the rules of warfare are anything less than
they purport to be. Military necessity or expediency does not
jpursotihfiybitaivveiollaawti.o7n2 of the positive rules. International law is
The Tribunal could not have been more emphatic in its
rejection of the basic premise of Kriegsraison, but to make the point
unmistakable, it added: "[T]he rules of international law must
be followed even if it results in the loss of a battle or even a
A second Tribunal, dealing with the charges against
members of the German General Staff, concluded that:
It has been the viewpoint of many German writers and to a
certain extent has been contended in this case that military
necessity includes the right to do anything that contributes to
the winning of a war. We content ourselves on this subject
with stating that such a view would eliminate all humanity and
decency and all law from the conduct of war and it is a
contention which this Tribunal repudiates as contrary to the
accepted usages of civilized nations. 7 4
The Nuremberg and Tokyo Tribunals were generally viewed
as the death knell of the doctrine of Kriegsraison.71 What
survived was a notion of military necessity close in spirit and letter
to that originally articulated by Lieber. The Tribunals were
reflecting U.N. doctrine incorporated into their governing statute.
The same notions were being driven home in the recasting of
the Geneva Conventions. Indeed, it is clear that one of the
animating purposes of the 1949 reinstatement of the Geneva
Conventions ("Conventions") was to put the last nails in the coffin of
the doctrine of Kriegsraison7.6 Article 8 in each of the
Conventions, with its language about "exceptional and temporary
measures" rendered necessary by "imperative necessities of security"
clearly reflected a shift to a U.S.-style reading of military
necessity. Similar shifts of language can be found throughout the
Protocol I Additional to the Geneva Conventions of 1977
("Protocol I"), similarly embraces, in Article 35(
), a shift away
from Kriegsraison and, particularly, its suggestion that it can
supersede positive rules of international law, while retaining the
essence of U.S.-style military necessity. As the Commentary to
Protocol I states: "'Kriegsraison' was condemned at Nuremberg,
and this condemnation has been confirmed by legal writings.
One can and should consider this theory discredited. It is totally
incompatible with the wording of Article 35, paragraph 1, and
the very existence of the Protocol."7 8
One U.S. military writer summarizing development of the
doctrine in the wake of the war put it in these terms:
[M]ilitary necessity does not justify all actions that arguably
enhance force protection. The customary international law
prohibitions against state practiced murder; torture; cruel,
inhumane, or degrading treatment; and prolonged arbitrary
detention serve as limitations to what military necessity may
justify .... To illustrate, the need to extract information
from a local civilian for the military necessity of protecting
the force does not justify subjecting that individual to torture
as a means of obtaining the information. Thus, even without
an "enemy" in the classic sense, the principle of military
necessity remains relevant in the decision making process for
the use of force. 79
and Sick in Armed Forces in the Field arts. 3, 8, Aug. 12, 1949, 6 U.S.T 3114, 75
U.N.T.S. 31 [hereinafter Geneva Convention for the Wounded].
77. See, e.g., Geneva Convention for the Wounded, supra note 76, art. 34 ("in case
of urgent necessity"); Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 27, Aug. 12,
1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 ("so far as operational requirements permit");
Geneva Convention Relative to the Protection of Civilian Persons in Time of War arts. 5,
16, 30, 53, 57, 111, 147, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (using following
language: "where absolute military security so requires," "as military considerations
allow," "within the bounds set by military or security considerations," "rendered
absolutely necessary by military operations," "in cases of urgent necessity," "should military
operations prevent," "not justified by military necessity").
78. Commentaries to Protocol I, supra note 75, 1386.
79. Major Geoffrey S. Corn, International and Operational Law Note, Principle 1:
Military Necessity, ARMY LAw., Jul. 1998, at 73.
II. BUSH. MILITARY NECESSITY CORRUPTED
So it appeared quite clear that, as early as 1863, there were a
series of areas in which military necessity differed from
Kriegsraison, specifically with respect to the treatment of persons taken
hors de combat. At the time of the promulgation of the Lieber
Code, these limitations were fixed in customary international
law, which the Lieber Code itself helped powerfully to shape and
define.8" In the following 140 years, most of these hitherto
customary norms had become the subject of conventions and
treaties. These rules were seen as fundamentally beyond the scope
of military necessity; in other words, the doctrine of military
necessity could not be invoked to justify measures that were
otherwise "forbidden by international law."8 A significant part of
these rules relate to the treatment of persons taken hors de
combat. In particular, these can be compartmentalized as follows:
) the prohibition of torture, particularly in association with
interrogation practice; (
) the prohibition of cruelty, later refined
into a prohibition on cruel, inhuman, and degrading treatment;
) the prohibition on prolonged arbitrary detentions; and (
the prohibition on the "disappearing" of persons, which is to say
their secret detention outside of the normal rules governing
belligerents hors de combat under the law of armed conflict or the
applicable rules of criminal justice administration.
Bush Administration practices have transgressed each of
these "bright-line" prohibitions. This means, in turn, that the
Bush Administration's use of the term "military necessity"
cannot be reconciled with the historical U.S. practice associated
with that word. Instead, it is an unadulterated application of the
Wilhelmine notion of Kriegsraison,with a strong emphasis placed
on the right of the military strategist to overturn otherwise
applicable norms of international law.
In a memorandum issued to President Bush, then White
House counsel (and present Attorney General) Alberto
Gonzales argued that the limitations on interrogation procedure
contained in the Geneva Conventions and other binding
international law were rendered inapplicable by considerations of
"military necessity."8' 2 The same view was then embraced by President
Bush's memorandum cited at the outset of this Article, and is
reflected in a memorandum issued by Judge Jay Bybee (the
authorship of which is attributed to John Yoo), and orders issued
by Secretary of Defense Donald Rumsfeld.83 Each of these
claims is completely irreconcilable with "military necessity" as
the term had been understood and developed in U.S. military
doctrine and law up to that point. Moreover, none of the
authors appear to have even the most rudimentary understanding
of the traditional use of the term "military necessity," or of its
application in comparable circumstances.8 4
In a sense this turn should not come as surprising for two
reasons. The first is that scholars trained in military law and
doctrine appear to have played no role whatsoever in the
articulation of the new Bush Administration policies in this area. When
opinions were offered, those offering them were fired or
circumvented.8 5 The second is that the international law posture
assumed by Bush Administration advocates and apologists,
particu82. Memorandum from Alberto R. Gonzales, Counsel to the President, to George
W. Bush, President, Decision Re Application of the Geneva Convention on Prisoners of
War to the Conflict with al Qaeda and the Taliban (Jan. 25, 2002), inTHE TORTURE
PAPERS 121 (Karen Greenberg &Joshua Dratel eds., 2005).
83. See Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep't of
Justice, to Alberto R. Gonzales, Counsel to the President, Standards of Conduct for
Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002) (envisioning a
"self-defense" exception to torture predicated on military necessity), in THE TORTURE PAPERS,
supra note 82, at 173; see also Memorandum from William J. Haynes, II, Gen. Counsel,
U.S. Dep't of Def., to Donald Rumsfeld, Sec'y of Def., U.S. Dep't of Def.,
CounterResistance Techniques (Nov. 27, 2002), inTHE TORTURE PAPERS, supra note 82, at 237
[hereinafter Counter-Resistance Techniques Memo] (bearing approval signature of
Secretary of Defense Donald Rumsfeld from December 2, 2002).
84. SeeJordan J. Paust, Executive Plansand Authorizations to Violate InternationalLaw
Concerning Treatment and Interrogation of Detainees, 43 COLUM. J. TRANS. L. 811, 834-37
85. An excellent demonstration can be found in the account of Navy General
Counsel Alberto Mora, who vigorously opposed efforts to modify established
interrogation techniques through the inclusion of torture and highly coercive techniques. Mora
was supported in this effort by the Judge Advocates General of each of the service
branches. See generallyJane Mayer, The Memo: How an InternalEffort to Ban the Abuse and
Torture ofDetainees Was Thwarted, NEW YORKER (Feb. 27, 2006) (discussing how Mora and
the Bush Administration were at loggerheads over the Administration's interrogation
policies toward terror suspects).
larly figures such as John Yoo, 8 6 Eric Posner, and Jack
Goldsmith, 7 very closely echoes the Wilhelmine perspective: It treats
international law as essentially rules adopted voluntarily by
sovereign states, and dismisses jus cogens rules and customary-law
practice, or considers international law not ultimately binding or
enforceable on nations which choose not to apply it.
These scholars rely in the first instance upon a radical and
novel constitutional theory under which the President as
Commander in Chief is imbued with authority to act unfettered by
international law (even where international law is enacted as law
of the land through the ratification and implementation
process) or domestic statute.88 Moreover, they bolster this position
with references to "military necessity" as a supposed
manifestation of the Commander in Chief's authority to act beyond the
restraint of the law. Indeed, they explicitly cite "military
necessity" as a tool to overcome positive legal restraints in four
separate areas discussed below.
Torture-for purposes of extracting intelligence or for any
other purpose-was strictly forbidden and consciously excluded
from the scope of military necessity. Indeed, as previously
noted,89 Abraham Lincoln and Francis Lieber were explicit
about this in 1863 and the prohibition had been carried forward
in each subsequent iteration of the doctrine through the current
one, issued in 1992.9o Moreover, torture clearly comprehended
physical assault upon a detainee, as specified in the UCMJ. A
specific practice of torture identified and punished by the United
States as early as 1902, was a device known as "waterboarding" in
which a detainee was through various means made to sense that
he was drowning. An argument of military necessity was raised
in the court martial of an officer who used this technique in a
86. See generally JOHN Yoo, THE POWERS OF WAR AND PEACE: THE CONSTITUTION
AND FOREIGN AFFAIRS AFTER 9/11 (2005).
87. See generally JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF
INTERNATIONAL LAW (2005).
88. See Yoo, supra note 86, at 165-73.
89. See supra note 29 and accompanying text.
90. See U.S. DEP'T OF THE ARMY, FIELD MANUAL 34-52, INTELLIGENCE INTERROGATION
1-8 (Sept. 28, 1992) ("US policy expressly prohibit[s] acts of violence or intimidation,
including physical or mental torture, threats, insults, or exposure to inhumane
treatment as a means of or aid to interrogation.").
counter-insurgency campaign in the Philippines." The officer
argued that imminent threats to the safety of his soldiers
justified the measure.12 The Judge Advocate General of the Army
ruled, in upholding the conviction, that military necessity
categorically excluded cruelty and torture.9 3 Theodore Roosevelt
favorably commented upon the case and the punishment of the
soldier involved. 94 In 1968, the U.S. Army court-martialed a
second soldier in connection with the use of waterboarding against
a detainee in Vietnam.9 5 Similarly, the use of military canines to
terrorize detainees has consistently been held to constitute
"torture" under both U.S. norms and international conventions,
such as the Convention Against Torture and the Geneva
Conventions.9 6 Further, the use of "stress positions," which over a
period of hours or days, can result in painful dislocation ofjoints
and organ failure, has regularly been held to constitute
"torture." 97 Each of these practices was authorized by the Secretary
of Defense with Presidential knowledge and authority, and each
was, in fact, applied."8
2. Cruel, Inhuman, and Degrading ("CID") Treatment
Since the ratification of the Convention Against Torture,"
the prohibition on the use of military necessity has generally
been considered to have been expanded to include a further
prohibition of the use of cruel, inhuman, and degrading
treatment ("CID"). The following tactics now employed by the
United States with respect to War on Terror detainees, mostly
associated with the technique known as "pride and ego: down"
constitute or may constitute CID: enforced nudity; leaving
detainees chained to the floor overnight or for prolonged periods
so they are forced to wallow in their own urine and feces;
enforced grooming for purposes of defying the religious values of a
detainee; subjecting a detainee to extremes of hot and cold; use
of loud music for prolonged periods of time; sexual humiliation
practices; forcing a detainee to wear a leash and behave like a
dog; forcing a male detainee to wear women's underwear;
unauthorized touching or fondling of the detainee's sexual organs;
ordering a detainee to engage in mock sexual conduct; having a
"lap dance" performed on a detainee; and disparaging the
detainee's religion, articles of worship, or religious practices.
3. Prolonged Arbitrary Detention
International humanitarian law protects the conditions of
detainees and provides a process for insuring that those
detained are held for proper cause; in sum, it contemplates two
different systems for holding prisoners. In the first, a combatant
taken into custody may be held simply because of his combatant
status; conditions are specified and the combatant is to be
released when the hostilities conclude. In the second, a person
may be held under an applicable criminal justice system. In
times of armed conflict, this detention may be by military forces,
and the rules of the criminal justice system may be subject to
some permutations dictated by the military administration, but
essential procedural safeguards must nevertheless be obtained.
With respect to belligerents hors de combat, the Third Geneva
Convention establishes a process under which a combatant
picked up during times of armed conflict is to be presumed to
be a prisoner of war unless the detainee has been through a
99. See Convention Against Torture, supra note 96.
competent adjudicatory process that has determined
otherwise.100 Although the Geneva Conventions applied to the
military engagements fought by the United States in Afghanistan
and Iraq, detainees captured in the Afghanistan campaign have,
without exception, been held in unlawful prolonged arbitrary
detention, in violation of the fundamental rules of the
Conventions, and particularly of Article 5 of the Third Convention.
Similarly, although the hostilities in Afghanistan have been
terminated and the Afghan Government and multinational forces
have begun a process of paroling fighters captured in the
conflict, the United States has wrongfully withheld detainees in its
control from this process, including those held in Guantdnamo,
in U.S.-controlled facilities in Afghanistan, and in third
countries. Throughout this process, U.S. officials have suggested the
criminality of a large part of these detainees without bringing
criminal charges of any kind against them. a"' But perhaps the
most surprising breach by the Bush Administration has been in
Iraq-surprising because in Iraq alone, the Administration has
fully acknowledged the applicability of the Geneva Conventions
and their rules. In a letter issued by Brigadier General Janis
Karpinski to the International Committee of the Red Cross
dated December 24, 2003, Karpinski claimed military necessity
as a basis for the extended holding of Iraqi civilians taken in
"sweeps," as well as for treatment of detainees in a highly secured
cellblock that the Red Cross concluded was "tantamount to
torture."1 0 2 The letter stated: "While the armed conflict continues,
and where 'absolute military security so requires,' security
detainees will not obtain full [Geneva Convention] protection as
recognized in [Article 5]." ° General Karpinski subsequently
OR MILITARY NECESSITY?
disclosed that the letter was authored in the office of the
Department of Defense's General Counsel in the Pentagon.
At the conclusion of World War II, the Allies discovered that
the Nazi Government operated an enormous program to
"disappear" persons in occupied countries whenever such persons
presented an imperative threat to German military personnel. 10 4
This program was known as the Nacht- und Nebelerlass.10 5 In
wartime France, approximately 7000 Frenchmen disappeared into
this system. At Nuremberg, the authors of this program were
prosecuted, and the notion of "disappearing" adversaries was
established as a jus cogens crime. 0 6 This principle was reinforced
as a result of "disappeared" programs in Latin America, such as
Operaci6n Condor.1 1 7 In the War on Terror, the Bush
Administration has operated a similar, though smaller scale, program
known as "Extraordinary Renditions."' 0 ' The essence of this
104. See U.N. Econ. & Soc. Council ("ECOSOC"), Comm'n on Human Rights,
Civil and PoliticalRights, IncludingQuestions of: Disappearancesand Summary Executions
7, U.N. Doc. E/CN.4/2002/71 (Jan. 8, 2002) [hereinafter Nowak Report]; see also AN
VRANCHX, A LONG ROAD TowARDS UNIVERSAL PROTECTION AGAINST ENFORCED
DISAPPEARANCE 3 (2007), available at http://www.ipisresearch.be/download.php?id=152.
105. See Nowak Report, supra note 104, 7 ("The human rights violation and crime
of enforced or involuntary disappearance ... seems to have been invented by Adolf
Hilter in his Nacht und Nebel Erlass (Night and Fog Decree) of 7 December 1941. The
purpose of this decree was to seize persons in occupied territories 'endangering
German security' who were not immediately executed and to transport them secretly to
Germany, where they disappeared without a trace."); see also VRANCHX, supra note 104,
106. See, e.g., RESTATEMENT (THIRD) FOREIGN RELAIONS LAw § 702 (1987).
107. See Katie Zoglin, Paraguay'sArchive of Terror: InternationalCooperationand
Operation Condor, 32 U. MIAMI INTER-AM. L. REv. 57, 59-60 (2001) (providing overview of
Operation Condor); J. Patrice McSherry, Operation Condor: Deciphering the U.S. Role,
CRIMES OF WAR PROJECT, July 6, 2001,
http://www.crimesofwar.org/special/condor.html (last visited Feb. 20, 2007); see also Nowak Report, supra note 104, 1 8
(discussing the use of enforced disappearance in Latin America during the 1960s and 1970s);
VRANCHX, supra note 104, at 3-5 (same).
108. See ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY RENDITION, TORTURE
BY PROXY. INTERNATIONAL LAW APPLICABLE TO "EXTRAORDINARY RENDITIONS" 6 (2005)
[hereinafter TORTURE BY PROXY], available at
http://www.nyuhr.org/docs/APPGNYU%20Briefing%20Paper.pdf (defining Extraordinary Renditions as "the transfer of
an individual, with the involvement of the U.S. or its agents, to a foreign State in
circumstances that make it more likely than not that the individual will be subjected to
torture or cruel, inhuman, or degrading (CID) treatment."); see also Ian Fisher, Reports
of Secret U.S. Prisonsin EuropeDrawIre and OtherwiseRed Faces,N.Y. TIMES, Dec. 1, 2005, at
program involves the operation of "black site" prisons overseas
in conjunction with powers known for their use of highly
coercive interrogation techniques. 1' The system can be described as
"torture by proxy."" This program also is beyond the limits of
accepted military necessity, as the adjudications at Nuremberg
established. Nevertheless, the program has been routinely
justified since the commencement of the War on Terror as an
exercise in military necessity, specifically as "battlefield preparation."
In sum, the term "military necessity" as it has been invoked
and used by the Bush Administration in the War on Terror in
fact has nothing to do with military necessity. It is a resurrection
of consciously lawless military expediency, or Kriegsraison.
1. Memorandum from George W. Bush, President, to the Vice President, Secretary of State, Secretary of Defense, Attorney General, Chief of Staff to the President, Director of Central Intelligence, Assistant to the President for National Security Affairs, Chairman of the joint Chiefs of Staff, Concerning Humane Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002), in MARK DANNER, TORTURE AND TRUTH: AMERICA, ABU CHRAIB , AND THE WAR ON TERROR 105-06 ( 2004 ).
2. See 10 U.S.C. §§ 801 - 946 ( 2007 ).
3. SeeWar Crimes Act of 1996 , Pub. L. No. 104 - 192 , 110 Stat. 2104 ( 1996 ) (codified as amended at 18 U .S.C. § 2441 ( 2006 )).
4. See Foreign Relations Authorization Act , Fiscal Years 1994 and 1995, Pub . L. No.
44. See id. at 241.
45. For a discussion on the use of assassination in Renaissance Italy, see GuiDo RUGGIERO , VIOLENCE IN EARLY RENAISSANCE VENICE 87-88 ( 1980 ).
46. See KANT , surpa note 18, at 7.
47. See Chris afJochnick & Roger Normand, The Legitimation of Violence: A Critical History of the Laws of War, 35 HARV . INT'L L.J . 49 , 63 - 64 ( 1994 ).
48. See id. at 63.
49. See Wayne Sandholtz , The IraqiNationalMuseum and InternationalLaw: A Duty to Protect, 44 COLUM . J. TRANSNAT'L L . 185 , 206 ( 2005 ).
50. See Nicole Barrett, Note, Holding IndividualLeaders Responsible for Violations of Customary International Law: The U.S. Bombardment of Cambodia and Laos, 32 COLUM . HUM. RTs. L. REv. 429 , 445 n. 68 ( 2001 ).
51. See Chandler P. Anderson et al., Editorial Comment , The War in Europe, 8 AM .J. INT'L L . 853 , 880 ( 1914 ).
52. Carl Lfider , Kriegsraison, in 4 HANDBUCH DES VOLKERRECHTS [ MANUAL OF INTERNATIONAL LAW] 253 , 254 (Franz von Holtzendorff ed., 1885 ). Lfider was known to late nineteenth century law scholars as "Lieber without limitations."
53. William G. Downey, Jr., The Law of War and Military Necessity , 47 AM. J. INT'L L . 251 , 253 ( 1953 ).
54. See WOLFGANGJ . MOMMSEN, IMPERIAL GERMANY 1867 -1918: POLITICS, CULTURE, AND SOCIETY IN AN AUTHORITARIAN STATE 58-59 (Richard Deveson trans ., Arnold 1995 ) (1990); HAGEN SCHULZE, GERMANY: A NEW HISTORY 144-45 (Deborah Lucas Schneider trans ., Harvard Univ. Press 1998 ) ( 1996 ).
55. See MOMMSEN , supra note 54, at 67 (describing the Griinderjahreas a period of "unparalleled economic growth" that came to an end in 1873 ).
56. See id. at 191-92.
57. See id. at 177.
58. See Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight , Dec. 11 , 1868 , 138 Consol. T.S. 297 ; see also Barrett, supra note 50 , at 445.
59. See Convention Respecting the Laws and Customs of War on Land , Oct. 18 , 1907 , 36 Stat. 2277 , 1 Bevans 631 [hereinafter Convention on Laws and Customs of War].
65. See Treaty of London art. 7 , Apr . 19 , 1839 , 88 Consol. T.S. 445 ( " Belgium ... shall form an Independent and perpetually Neutral State.").
66. See Gary Solis, Military Necessity, Kriegsraison and the "War on Terror" 7-8 (unpublished manuscript) , available at http://www.law.columbia.edu/jurisprudence.
67. Id . at 8.
68. See United States v. List (The Hostage Case), reprinted in 11 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MIuTARY TRIBUNALS UNDER CONTROL COUNCIL LAW No . 10 , at 1230 ( 1950 ) [hereinafter NUREMBERG TRIALS] .
69. See United States v. Altstoetter (The Justice Case), reprintedin 3 NUREMBERG TRIALS, supra note 68 , at 954.
70. See Hostage Case, reprinted in 11 NUREMBERG TRIALS, supra note 68 , at 1113.
71. SeeJustice Case, reprinted in 3 NUREMBERG TRALs ,supra note 68, at 1031.
72. Hostage Case, reprintedin 11 NUREMBERG TRIALs , supra note 68, at 1255-56 (emphasis added).
73. Id . at 1272.
74. UnitedStates v. von Leeb (The High Command Case), reprintedin 11 NUREMBERG TRIALS , supra note 68, at 541 ( 1950 ).
75. See , e.g., International Committee of the Red Cross , Commentaries, Protocol Additional to the Geneva Conventions of 12 August 1949 , and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 , 1 1386 [hereinafter Commentaries to Protocol I], http://www.icrc.org/ihl.nsf/ WebCOMART?OpenView&Start=l&Count=30& Expand = 5#5 (last visited Apr. 5 , 2007 ) ( " 'Kriegsraison' was condemned at Nuremberg .... One can and should consider this theory discredited.").
76. See Geneva Convention for the Amelioration of the Condition of the Wounded
80. The same point (subordination of military necessity to international law norms) is made in the treatise prepared by Henry Halleck, the General in Chief of the Union Armies . See HENRY W. HALLECK, ELEMENTS OF INTERNATIONAL LAW AND LAWS OF WAR 197-98 ( 1878 ).
81. U.S. DEP'T OF THE ARMY , FIELD MANUAL 27-10 , THE LAW OF LAND WARFARE I 3(a) (July 18, 1956 ), availableat http://www.afsc.army.mil/gc/files/FM27-1O.pdf.
91. See Court-Martial of Major Edwin F. Glenn, reprintedin 1 THE LAW OF WAR: A DOCUMENTARY HISToRY 814 (Leon Friedman ed ., 1972 )
92. See id. at 817 ( "The accused admitted the facts in connection with the administration of the water cure, but undertook to show, in defense, that his act was not unlawful; that is, it was justified by militarynecessity and was warranted as a legitimate exercise of force by the laws of war.") (emphasis added).
93. See id. at 818.
94. See GuinakI Mettraux, US Courts-Martialand the Armed Conflict in the Phillippines (1899-1902): Their Contributionto NationalCase Law on War Crimes, 1 J. INT'L CRIM. JUST . 135 ( 2003 ).
95. See , e.g., Human Rights Watch, Vice President Endorses Torture Cheney Expresses Approval of the CIA's Use of Waterboarding (Oct . 26 , 2006 ), http://hrw.org/ english/docs/2006/10/26/usdom14465.htm (last visited Apr . 18 , 2007 ).
96. See Convention Against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment art. 1 , Dec . 10 , 1984 , S. TREATY ' Doc. No. 100 - 20 , 1465 U.N.T.S. 85 [hereinafter Convention Against Torture]; Geneva Convention on Prisoners of War arts. 3 ( 1 ), 13, supra note 5.
97. See , e.g., Sean Kevin Thompson, Note, The Legality of the Use of Psychiatric Neuroimagingin Intelligence Interrogation ,90 CORNELL L. REV. 1601 , 1625 ( 2005 ) (noting that international tribunals have determined that the use of "stress positions" constitutes torture).
98. See Counter-Resistance Techniques Memo, in THE TORTURE PAPERS, supra note 82 , at 237; see also Memorandum from Donald Rumsfeld, Sec'y of Def ., U.S. Dep't of Def., to WilliamJ. Haynes, II , Gen. Counsel, U.S. Dep't of Def., Detainee Interrogations (Jan. 15 , 2003 ), in THE TORTURE PAPERS, supra note 82 , at 238.
100. See Geneva Convention on Prisoners of War, supra note 5 , art. 5.
101. See Human Rights Watch , Guantanamo Two Years On, http://hrw.org/english/doc/2004/01/09/usdom6917.htm (last visited Feb . 27 , 2007 ); Human Rights Watch, Failure to Provide Justice for Afghan Victims , http://www.hrw.org/english/ docs/2007/02/15/usintl5351.htm (last visited Feb . 27 , 2007 ).
102. Report of the International Committee of the Red Cross ("ICRC") on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation (Feb . 2004 ), in DANNER, supra note 1 , at 253.
103. Letter from Brigadier General Janis Karpinski to the International Committee of the Red Cross (Dec. 24 , 2003 ), in Douglas Jehl & Neil A . Lewis , U.S. Military Disputed Protected Status of PrisonersHeld in Iraq , N.Y. TIMES, May 23 , 2004 , at A12.
109. See Dana Priest, CIA Holds TerrorSuspects in Secret Prisons,WASH . POST, Nov. 2 , 2005 , at Al ( "In late 2002 or early 2003, the CIA brokered deals with other countries to establish black-site prisons.").
110. See TORTURE BY PROXY, supra note 108 , at 6; see also Editorial, Torture by Proxy, N.Y. TIMES, Mar. 8 , 2005 , at A22.