Mike Lewis Memorial Teleforum: Defining the Law of War

Last Friday I had the privilege of participating in the inaugural Mike Lewis Memorial Teleforum entitled Defining the Law of War. This was a real privilege because Mike Lewis, a Navy aviator-turned-law professor, left us way too young when he passed away last year at age 50.

Mike was a brilliant lawyer who was one of the premier law of war specialists. Not only was he brilliant and articulate, he brought to bear the practical wisdom of a warfighter (he served in the first Gulf War). What is more is that he was a great friend, and highly-respected by everyone who knew him.

The Teleforum – sponsored by the Federalist Society – addressed the new DoD Law of War Manual. This is a monumental, 1,200 + page treatise was decades in the making. It represents the views of the U.S. Department of Defense (and not necessarily the rest of the US government – see page vi of the Manual) as to the lex lata of the law of war, that is, the law as it is, “as opposed to what the law ought to be.”

I was joined on the Teleforum by my friend, Professor Mike Newton of Vanderbilt Law School. Mike is a former Army JAG and a real expert in the law of war and international war crimes tribunals. Mike and I did a short deployment to Iraq years ago to help train Iraqi judges, prosecutors and defense counsel charged with trying high officials of Saddam Hussein’s regime. Although Mike was a civilian by then, he was unquestionable to smartest guy on the team. The author of several books, his most recent – Proportionality in International Law – is the definitive treatment of the subject.

The Teleforum was moderated by Professor Jeremy Rabkin of George Mason University School of Law, and he did a wonderful job. We examined the Manual from a number of perspectives, and generally concluded that it was a good effort, but one that ought to be constantly updating itself as the law of war continues to evolve. Mike made the point – and I agree – that there are many other examples and explanations that could make the positions the Manual takes stronger. We also talked about the Manual’s treatment of the status of journalists, cyber operations, proportionality, and much more.

I invite you to listen to the whole podcast found here . By the way, Professor Newton will be speaking at the LENS conference, so don’t miss it (Feb 26th and 27th; info found here).