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Military Law Review DEPARTMENT OF THE ARMY PAMPHLET 2J-lOlI-4 I MILITARY LAW REVIEW HADQUARTERS, DEPARTMENT OF THE ARMY APRIL 1959 AGO 19228--Feb PREFACE This pamphlet is designed as a medium for the military lawyer, active and reserve, to share the product of his experience and re- search with fellow lawyers in the Department of the Army. At no time will this pamphlet purport to define Army policy or issue ad- ministrative directives. Rather, the Military Law Review is to be solely an outlet for the scholarship prevalent in the ranks of military legal practitioners. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes treating subjects of import to the military will be welcome and should be submitted in duplicate to the Editor, Military Law Review, The Judge Advocate General's School, U. S. Army, Charlottesville, Virginia. Footnotes should be set out on pages separate from the text, be carefully checked prior to sub- mission for substantive and typographical accuracy, and follow the manner of citation in the Harvard Blue Book for civilian legal citations and The Judge Advocate General's School Uniform Sp- tern of Citation for military citations All cited cases, whether mili- tary or civilian, shall include the date of decision. Page 1 of this Review may be cited as 4 Military Law Review 1 (Department of the Army Pamphlet No. 27-100-4, April 1959). AGO 3922B i Pam 27-100-4 PAMPHLET HEADQUARTERS, DEPARTMENT OF THE ARMY NO. 27-100-4 3 WASHINGTON 25, D. C., 1 March 1959 MILITARY LAW REVIEW Page Articles: A New Look at the Law of War : Limited War and Field Manual 27-10 Captain Gordon B. Baldwin ______________ ~ ______ 1 Who Made the Law Officer a Federal Judge? Major Robert E. Miller ________________________ 39 Lack of Mental Capacity To Intend-A Unique Rule Lieutenant Colonel Peter C. Manson ______~ _______ 79 History of The Judge Advocate General's Corps, United States Army Colonel William F. Fratcher .___________________89 Comments: Judicial Review of Administrative Discretion- Characterization of Discharge Lieutenant James L. Miller ____ - ..-_________ 123 Word Index: To Pamphlets 27-100-1 through 27-100-4 ____________ 137 AGO 3922B iii A NEW LOOK AT THE LAW OF WAR: LIMITED WAR AM) FIELD MANUAL 27-10 By Captain Gordon B. Baldwin” “Lawyers and legal complications are inappropriate on a battlefield.”- General George C. Marshall, Jr.1 I. A LAW OF WAR? General Marshall’s assertion was merely another way of repeat- ing the old adage, “you have to fight the enemy, not sue him.” This, of course, may be quite true, but it does not follow that law has no place at all in a modern war. Clearly, the role of law on a battle- field is by no means certain and one risks being dubbed naive who refers to a “law of war” with the same sense of security as he refers to the law of crimes. Nevertheless, the existence of a law of war is proclaimed in a recent Army Field Manual 27-102 as well as in many international conventions to which the United States is a party. Furthermore, rules of war have been referred to in the memoirs of contemporary war leaders, at least to the extent that they have recognized that methods of war are not without limita- tion. Works of fiction purporting to portray reality even refer to rules of war. Anyone who has seen the recent renowned motion picture “Bridge On the River Kwai” has become aware of the ex- istence of Geneva Conventions. Whether a law of war has existed in prior conflicts is of practical interest to us today because of the question whether “laws of war” will have any role in a future con- flict. Another look at laws of war is called for in view of the increas- ing emphasis on the notion of “limited war.” It is the purpose of this article to suggest that the laws of war as they have been tradition- ally expounded may offer some guidance and thus play a modest role in achieving the restraint demanded by a limited war policy. *JAGC, USAR, Member of the New York State Bar; graduate of the Cornel1 University Law School; Asst. Prof. of Law, University of Wis- consin Law School. 1 Testimony before the Senate Committee on Military Affairs, July 1941, cited in Payne, The Marshall Story 130 (1951). 2 FM 27-10, The Law of Land Warfare, Jul 1956 (hereinafter cited FM 27-10). See also Nav. War. Info. Pub. 10-2, Law of Naval Warfare, Sep 1956. 3DA Pam. No. 27-1, Treaties Governing Land Warfare, 7 Dec 1966. AGO 3922B 1 MILITARY LAW REVIEW 11. A LIMITED WAR POLICY Eminent strategists and analysts of military power now refer to the possibility of “limited war.”4 This implies a deliberate hob- bling of national capabilities with a view toward inducing the enemy to hobble himself to a like degree for the purpose of avoiding mutual annihilation.5 Limited war requires a nation’s leaders as well as its commanders in the field to impose upon themselves an un- precedented degree of restraint. Mutual annihilation has not in the past been an appreciable risk-it is today, and national efforts have been made to avoid this kind of chance. In view of the vast growth of destructive capacity and the existence of reoccurring crises during the past several years, we may observe a tendency to reject the suggestion that this country can anticipa.te either univer- sal peace on the one hand or, on the other, all-out nuclear warfare. Instead, a third possibility is envisaged, the so-called limited war. This may be defined as war “in which the belligerents restrict the purposes for which they fight to concrete, well-defined objectives that do not demand the utmost military effort of which the belliger- ents are capable and that can be accommodated in a negotiated settlement.”6 Osgood, a leading advocate of the limited war concept, has pointed out that “rules of mutual restraint cannot be established merely by an effort of will, as one might determine the rules for a game of sport.”‘ Precisely how this self-restraint is to be exercised and what rules of conduct will be deemed operative to achieve it is not any clearer than the suggestion that the means of war be propor- tionate to the end. Certainly a limited war policy would require the military commander to make a searching analysis of every proposed operation in the light of the political objectives implicit in a limited war policy. He should take no action unless it is deemed compatible with basic policy in order to avoid an appreciable risk of mushrooming conflict. Such limitations as the conflict re- * Kissinger, Nuclear Weapons and Foreign Policy 132 et seq. (1957) (here- inafter cited as Kissinger); Gavin, War and Peace in the Space Age (1968). 5 Brodie, Book Review, 10 World Politics 112 (1957). 6 Osgood, Limited War: The Challenge to American Strategy 2 (1957) (hereinafter cited as Osgood). It is understood that the latest draft of FM 100-5, Field Service Regulations, Operations, Sep 1964, devotes some space to the new concept of limited war. 7 Osgood 76. 8 Professor Osgood has suggested two general rules as prerequisites for limiting war: “One is that the ’belligerents must be prepared to conduct war in accordance with well-defined, limited political. objectives, suscep- tible to accommodation; the other is that they must be prepared to limit the means by which they strive to attain these objectives, so that the means of war will be proportionate to the ends.” Id. at 62. 2 AGO 3922B A NEW LOOK AT THE LAW OF WAR quires must derive at the outset from the political objectives of the belligerents. If the opposing belligerents are major world powers, it would appear that a limited conflict would not be pos- sible unless both sides tacitly accepted a restricted manner of warfare; but if one side of the struggle were a major power and the other side did not include a major power, limited conflict could be achieved if the major power unilaterally decided to restrain itself. A limited war by definition implies a limited effort by one or both participating sides and requires the military commander to avoid an appreciable risk of all-out war, for a decision to wage total war is a political and not a military matter. This effort might take the form of avoidance of massive retaliation through strategic air power,g it might involve an all-out effort in only a small sector, or it might involve the kind of stalemate that characterized the latter portion of the Korean War. Conceivably, a limited war might involve merely an avoidance of some nuclear weapons. In any case, the restrictions in warfare would result in a benefit to mankind in general as well as to the belligerents. Justification for a military policy that accepts the risk of limited war and requires of military commanders a high degree of restraint can be found in the function of a nation’s armed force. This is simply that military power should always be subordinate to national policy. In the use of armed force as an instrument of national policy, it is a prime rule that no greater force should be employed than is necessary to achieve the objectives toward which it is directed.10 Von Clausewitz expressed the desirability for moderation in the use of military force in these words : “The smaller the sacrifice we demand from our adversary, the slighter we may expect his efforts to be to refuse it to us.
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