Understanding the Military Perspective of the Law of Armed Conflict

Examining the Military Perspective of the Law of Armed Conflict - Applying IHL to the forces of Air, Land, and Sea

Importance of Understanding “The Military Perspective” • If you do not understand the Military perspective of LOAC and its use and integration into military thinking, logic, and structures - You DO NOT understand anything useful about International Humanitarian Law - No matter what your future role - LEGAd, IO, NGO, Defender, Prosecutor, Academic • It only makes sense in the ordinary military context - It has been made by states in the military context with the military as integral part of the drafting process.

The Logic of LOAC • LOAC accords with Military Logic whether Sun Tzu’s, “Art of War” or Claustiwitz’s, “On War.” • If you shoot civilians you WASTE bullets and you turn them against you. It does not normally make sense to violate IHL means and methods from a military perspective.

Scope • Legal Advisor, Commander, and Troops • Strategic, Operational, Tactical • G1-G5 • Land, Air and, Sea

Terminological Differences • Law of War (LOW) - Traditional Military • International Humanitarian Law (IHL) - ICRC-CICR, and NGO Community • Law of Armed Conflict (LOAC) - Modern Military Reference

Other Terms • Martial Law - ( System of Military Legal Administration) • Military Law - ( System of Internal Military Regulation / Domestic Regulation) • Orders - Command or set of Commands issued in conformity with Legal Authority conferred by Domestic Legal Structure (The ability to give an order might be legal even if the order itself might not be)

Levels of Concern • Political - President / Parliament (Definition of Objective) • Strategic - Colonel and above (Formulation) • Operational - Captain/Major and above (Implementation) • Tactical - Private and above (Actuation)

Legal Advisors - LegAd To provide sound legal advise to decision makers and commanders on their proposed actions from the Parliament to the Field to advise on legal issues of domestic and international law. Should be present at all levels of decision making Structure: • Integrated (Most Armed Forces) • Distinct Branch (Larger Armed Forces) US Judge Advocate General, UK Army Legal Services (Added Impartiality) • Civilian (Denmark, Sweden)

Legal Advisor - Role • You are NOT present to make or take military decisions • You ARE there to advise on the legal ramifications of decisions of your/the commander at whose disposal you have been placed. • Command Responsibility remains with the decision maker (unsound advise may mitigate mistakes or provide defense)

Applicable Law • Military Law (Domestic) • Domestic Law (both home state and state of operations) • Regional Military Arrangements (NATO) MC Documents, (ECOWAS) ECOMOG • Law from the decisions of the Security Council ( If Applicable) • International Public and Private Law • Orders, ROE’s, SOFA’s, MOU’s, Extradition treaties, Special Administrative

Commanders Perspective • To accomplish the mission formulated at the Strategic level expending the least resources and within the delimitations of the law of armed conflict.

IHL Concerns • Weapons • Means and Methods • Victims of War • Other Concerns

Paramount Concerns in CONOPS - Conduct of Operations • Necessity • Distinction • Proportionality • Humanity • The more that can be done in peacetime to aid these principles the better the commander can implement LOAC. • Distinguishing Objects, Cultural Civil Defense, Nuclear, Hospital

Commanders’ Toolbox • G1 - Administration / Finance • G2 - Intelligence • G3 - Operations • G4 - Logistics • G5 - CIMIC / Civilian Military Coordination US uses different system G 1 - G 9

LOAC “A Concern in Each Function” • G1 - Dog Tags, POW Records, Education and Training of Troops • G2 - Espionage Methods, Frequencies Radio etc., Torture • G3 - Targeting, Proportionality, Distinction • G4 - Evacuation Routes, POW needs • G5 - Cooperation with ICRC and NGO’s

Reciprocity v International Criminal Law • Reciprocity is the greatest mechanism for enforcement from a military perspective • Military Honor is still a powerful tool. • Don’t kid yourselves about the effect of ICL - If a soldier is willing to make the ultimate sacrifice for his cause, career, country most could care less about a couple years in an international prison.

Troops Perspective: The Three Legged Stool • A British Soldier and operational lawyer once told a class that LOAC is a three legged stool: To stand it must be; • Clear • Credible • Enforceable

CLEAR • The Law should exist in such a way that it is easily understood that it is easily understood by the ordinary soldier, aviator, or sailor at the tactical level in the framework of their operations.

CREDIBLE • The logic of the law of armed conflict should be part of the education of all troops in line with the obligation common to the Geneva Conventions to Educate and Disseminate their contents. The importance of the law of armed conflict should be reinforced through integration into military functions. • Military logic of waste should e understood. • Reciprocity should be understood • Education should be presented by persons whose qualifications are meaningful to the troops.

ENFORCEABLE • Troops should know that violations, even small violations, will not go unnoticed. Seemingly small offences such as etching a bullet should be actively repressed through domestic military law. • Troops should be aware of sanctions at the international level. More attention should be focused on using domestic structures in line with complementarity.

Be Aware of Other Law • There are important other types of law that affect operations and their conduct and which can provide useful tools for the implementation of the law of armed conflict.

ROE’s - Rules of Engagement • A directive issued by competent military authority that delineates the limitations and circumstances under which forces will initiate and prosecute combat engagement with other forces encountered. • Delimitations of the conduct at any level. • Drafting ROE’s is a science in itself. Standard ROE*S exist such as NATO’s MC 362

SOFA’s • A Status of Forces Agreement (SOFA) is an agreement between a country and a foreign nation stationing (or using) military forces in that country.

MOU’s • In international relations, one of the of MOU’s over treaties is that the text of the MOU can be kept confidential. In addition, they can be put into effect in most countries without requiring ratification. MOU’s are easier to modify and adapt than treaties which may require lengthy negotiating processes

On Land • The law of armed conflict is written mostly with the land warfare context in mind.

A View From the Air

Aerial Warfare • There is a specific regulation and law of the air and international and domestic airspace. • Hague Rules on Air Warfare • Different Concerns • Targeting is relative to the situation at hand or operations are impossible • Did the commander consider LOAC in his/her decision making processes? • Large decisions are often taken at lower levels tactical instead of operational.

From the Sea

Naval Warfare • Must know the specific rules of Naval Warfare and terminology - Ships in port, Naval Mines, Convoys, Exclusions Zones, Blockade, Continuous Voyage, Submarines, Signals, II Geneva Convention of 1949. • Law of the Sea is an important background knowledge to the application of LOAC in the naval environment.

NEUTRALITY - Non-Alligned • Neutrals and Non Aligned states and the law that protects them in international spaces is still highly relevant to both Aerial and Naval warfare.

Rendulic Rule • No Hindsight or Courtroom Assessments of fact. • The law is applied to he circumstances and knowledge known to the commander to be prevailing at the time. (Mistaken Self-Defense is and acceptable doctrine) • Mistakes are not necessarily violations. • Negligence and Willful Neglect are not defenses for abrogation of command responsibility (Yamashita Precedent)

Your Seat is Comfortable • Just remember that those in the field do not necessarily have the luxury of the resources that inform your viewpoint. • It is very easy to judge in hindsight and hard to implement in challenges of a very real life and death reality.

Understanding the Military Perspective of the Law of Armed Conflict