Experts Weigh in on Law of Armed Conflict Priorities

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| Feb 18, 2021

Biden Inauguration. Law of armed conflict.Geoff Livingston

 

Presidential transitions present natural opportunities to reconsider national priorities. With the inauguration of a new administration, we asked our Lieber Senior Fellows and Lieber Distinguished Scholar what each considers to be the main law of armed conflict challenge of the next four years.

A number of responses focused on law of armed conflict interpretation and development, emphasizing the importance for States to clarify existing positions of law and to remain actively engaged in the organizations and processes that help shape the law. Others stressed the need to reorient U.S. thinking on the law of armed conflict to prepare for the changing nature of future conflict. And, still others underscored the critical significance of ensuring compliance with and accountability under the law of armed conflict.

The contributions of our authors were written in their personal capacities. Accordingly, their views do not necessarily reflect the views of their institutions or agencies or of West Point and the Lieber Institute.

Michael Schmitt, Naz K. Modirzadeh, Eric Jensen, Mike Lacey, Geoff Corn, Beth Van Schaack, Chris Jenks, COL (Ret) Richard B. (Dick) Jackson, Laurie Blank, and Rain Liivoja each present their views below.

 

Michael Schmitt

Francis Lieber Distinguished Scholar, West Point

The primary law of armed conflict challenge facing the Biden administration is credibility as it tries to convince the world that “America’s Back.” Fair or not (I would say not), many States and influential players do not believe the United States takes the law of armed conflict seriously. The Trump Administration, with its pardons of war criminals and sanctions and travel bans on International Criminal Court personnel, bears much of the blame. But placing all of it on the previous administration would be self-defeating. The perception is long-standing, and, in many cases, a self-inflicted wound.

For instance, we still are not Party—as 174 States are—to Additional Protocol I to the 1949 Geneva Conventions, even though it is unlikely we will ever need to engage in operations contrary to its provisions. This is because key coalition partners like Australia and many NATO Allies are bound by the instrument, and in a combined operation, U.S. non-compliance would raise legal risks for our partners. Moreover, the United States already treats most of its obligations and prohibitions as customary law; being bound by those few that it does not recognize as customary would have little impact on the way U.S. armed forces fight.

And we tend to push back against efforts to progressively advance the law (some of which deserve to be opposed), correctly claiming that States make and authoritatively interpret the law of armed conflict. Yet, criticism that others go too far, used flawed methodology, or lack the authority to interpret the law of armed conflict justifies a rejoinder that States leveling such criticism then must set forth their own contrary views. But consider our record in that regard. The United States has still not indicated which Additional Protocol I provisions reflect customary law. U.S. officials did formally criticize the ICRC’s 2005 Customary International Humanitarian Law study’s methodology. But nearly two decades on the United States has still not identified more than a few rules with which it disagrees. And some U.S. officials are uncomfortable with the ICRC’s ongoing Commentaries project, while remaining silent as to their substantive differences with the findings.

By allowing narrow points of disagreement to consume us, and by identifying problems without offering solutions, we have over decades sacrificed our influence on the shape of the law of armed conflict. It’s time to try a different approach.

 

Naz K. Modirzadeh  

Founding Director of the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC) & Professor of Practice at Harvard Law School

Lieber Senior Fellow

The real work of the Biden administration should be to chart a new and visionary course on the prohibition on the use of force, not seeking to refurbish Obama-era arguments, but embracing a commitment to ending conflict. However, I have been asked to stick to the law of armed conflict.

When it comes to the conduct of hostilities, many U.S. administrations have set out positions that present a confusing admixture of binding law and non-legally-binding policy. That makes it harder to tell what exactly the United States understands as an obligation, and what it sees as a good idea to be followed when convenient or preferred. In human terms, this unclarity (about who can be targeted and when, what counts as acceptable harm, what measures must be taken to avoid killing and destruction) goes to the very heart of whether law can protect in war.

The new administration should take two steps: (1) coordinate across all relevant executive agencies and departments to foster greater precision and clarity concerning its interpretations and applications of the law of armed conflict; and (2) publicly disclose its law of armed conflict positions and practices to the maximum extent feasible. All relevant service branches, as well as the Departments of Defense and State and the National Security Council, ought to be involved so that the practices undertaken, and positions expressed, represent executive-wide views.

A starting point would be to form and publicly express administration-wide views consolidating the most up-to-date practice and positions on certain especially high-stakes issues. Those issues ought to include (among others) the precise contours of law of armed conflict rules pertaining to: civilians who take a direct part in hostilities; what constitutes an “attack”; what does and does not count toward “military advantage” in relation to law of armed conflict “proportionality” analysis; the outer limits of “military necessity”; and when non-international armed conflicts end.

Further, the administration ought to form and publicly express executive-wide views on which specific provisions in Additional Protocols I and II of 1977 are or are not binding as rules of customary law of armed conflict.

 

Eric Jensen

Robert W. Barker Professor of Law, Brigham Young University Law School

Lieber Senior Fellow

Over the past several decades, the United States has surrendered control of the law of armed conflict and its evolution and development to non-governmental organizations and grassroots movements.

The lack of aggressive engagement on the part of the United States (and many of its allies) has left a void readily filled by groups intent on adapting the law of armed conflict to their own concerns and interests. These groups often pay little attention to the practical concerns of armed conflict.

The result has been the promulgation and adoption of a host of supposed restrictions and constraints that have been formulated without consistent and meaningful State input. Examples include: the treatment of civilians who take part in hostilities; the targeting of military objectives such as cash and other resources; and attempts to regulate weapons—such as mines, cluster munitions, weapon systems that use machine learning and other forms of automation, and nuclear weapons.

The United States needs to wrest back control of the law of armed conflict to State-run fora like the meeting of States Party to the Certain Conventional Weapons Convention. In these settings, States can gather the advice and input of interested non-State Parties and then work with other States to define and refine the law of armed conflict, cognizant of the realities of modern armed conflict.

 

Mike Lacey

Deputy General Counsel for Operations and Personnel, U.S. Department of Defense

Lieber Senior Fellow

Given the real possibility the United States will participate in a high intensity conflict in the near future, we need a fundamental re-training/reeducation of an entire generation of commanders who were schooled in the law of armed conflict mainstays of military necessity and proportionality only as they applied in a counter-insurgency environment.

Most battalion commanders and above in the U.S. Army and Marine Corps have experienced combat in Iraq and Afghanistan from 2002 onward. They fought in a highly supervised, legally complex, and proportionality obsessed counter-insurgency environment. In these settings weapon utilization and tactics were constrained by collateral damage estimates often determined by computer models or allies. In a counter-insurgency environment, the military objective side of the proportionality scale was often minute—a single insurgent or a cache of IEDs. Conversely, on the opposite side of the scale—the incidental loss of civilian life, injury or damage to civilians—was magnified due to counter-insurgency doctrine, media scrutiny, and restrictive ROE.

Commanders accustomed to the counter-insurgency paradigm may fail to appreciate the elasticity of the law of armed conflict when the military objective side of the proportionality scale is as weighty as an enemy armored brigade or naval task force. They may hesitate to utilize all the weapons at their disposal or wait for collateral damage estimate models in an environment where immediate action is needed. Our combat centers and war game modeling must train our commanders that the law of armed conflict can incorporate the speed and decisiveness needed in the high intensity conflict environment.

These views in no way represent the policy of the U.S. Department of Defense, the U.S. Army or the Office of the General Counsel.

 

Geoff Corn

The Gary A. Kuiper Distinguished Professor of National Security Law, South Texas College of Law Houston

Lieber Senior Fellow

In an era of intense focus on the impact of technology to the legal regulation of armed conflict, a more fundamental aspect of ensuring the legitimacy that is derived from respect for the law of armed conflict is often neglected: leadership. This has been, is, and will remain perhaps the most important issue facing U.S. armed forces.

The U.S. must cultivate military leaders at every echelon of command who—while not genuine experts on the law of armed conflict—understand how core norms of this law provide the pillars for a foundation of tactical, operational, and strategic success. These leaders must understand the logic of the law of armed conflict and, most importantly, the overarching obligation to balance their justifiable combat aggressiveness with an instinct to take “constant care” to mitigate the risk to civilians, civilian property, and other protected persons, places, and objects.

This is especially critical because our forces must be prepared for the type of battlefield that necessitates decentralized leadership and the junior leader initiative inherent in the concept of mission-type orders. Accordingly, it will be leaders at every level—often operating without the benefit of higher-level guidance or legal support—who will play the decisive role in ensuring law of armed conflict compliance and the accordant reality and perception of legitimacy. Their understanding of this decisive role and their competence to act in accordance with the law of armed conflict should be a constant national priority.

 

Beth Van Schaack

Leah Kaplan Visiting Professor in Human Rights at Stanford Law School

Lieber Senior Fellow

The United States prides itself on its respect for international humanitarian law, or the law of armed conflict. And yet, in at least one critical aspect, this country is out of compliance with the 1949 Geneva Conventions. This relates to the Conventions’ enforcement regime. Those treaties require State parties to “search for persons alleged to have committed, or to have ordered to be committed,” grave breaches of the treaty “regardless of their nationality” (Art 129, GC III). And yet, contrary to the preferences of the State Department and the Department of Defense, Congress gave the 1996 War Crimes Act a more limited reach: the United States can only prosecute war crimes when they are committed by, or against, U.S. nationals. This statute has yet to be invoked, even though regrettably U.S. citizens have been the alleged victims, and perpetrators, of war crimes in foreign wars (see, for example, here, here, here, and here).

This shortfall should be rectified by Congress with support from the Executive branch. Such reforms would bring the War Crimes Act into line with the United States’ other international crimes statutes addressed to torture, the use of child soldiers, genocide, trafficking, terrorism, and piracy. All of these statutes allow the United States to prosecute alleged offenders when they are found or present in the United States, regardless of the nationality of the accused or victim, or the place of commission.

While they are at it, Congress should also extend the provision on superior responsibility within the 2006 Military Commission Act (§ 950q(3)) to these other international crimes so that commanders who know, or should know, that their subordinates are committing war crimes can be prosecuted for failing to prevent these crimes or be punished after the fact (see here, here and here).

Although this jurisdictional shortcoming is notable, the drafters of the War Crimes Act are to be commended for enabling the United States to prosecute war crimes committed in non-international armed conflicts, going beyond what is mandated by the Conventions and their Protocols. That said, in 2009, Congress decriminalized several elements of Common Article 3 following the revelation of custodial abuses in Afghanistan and Iraq. Congress would do well to reinstate outrages upon personal dignity and the passing of sentences without judicial guarantees as prosecutable war crimes under U.S. law. The United States should model a robust war crimes regime at home given that we would expect such crimes against U.S. servicemembers and civilians to be vigorously prosecuted abroad.

 

Chris Jenks

Associate Professor of Law & Criminal Clinic Director, SMU Dedman School of Law

Lieber Senior Fellow

If President Biden and Secretary of Defense Austin are serious about restoring U.S. credibility in terms of the rule of law, an important first step is that the United States hold itself transparently accountable.

In the context of the law of armed conflict that means, among other inquiries, asking how well DoD has complied with its policy that “members of the DoD Components comply with the law of war during all armed conflicts, however characterized.” For Secretary Austin to ask that question would yield a powerful, deafening silence from the Chairman of the Joint Chiefs of Staff.

There are several reasons DoD can’t answer that question, including the DoD policy to rely on the punitive articles of the UCMJ and not the Geneva Conventions for criminal charges of alleged war crimes. Further complicating matters is that while service members often fight in armed conflict as part of joint combatant command, they are generally court-martialed by their respective service.

Compiling the answer, particularly for other than grave breaches of the Geneva Conventions, would be challenging but feasible in the main. Over the last twenty years of persistent conflict, DoD, through its inaction, has demonstrated a profound lack of interest in assessing how effectively U.S. service members comply with the law of armed conflict. DoD should—but does not—treat law of armed conflict compliance as a key discipline and leadership indicator. That could change if Secretary Austin directs the DoD to provide—and publicize—long overdue answers to basic law of armed conflict compliance questions.

 

COL (Ret) Richard B. (Dick) Jackson

Former Special Assistant to the Judge Advocate General for Law of War Matters (2005-2016) and Former Vice President of the U.S. Committee of the Blue Shield  

Lieber Senior Fellow

In November 2009, I had the honor and privilege of giving the opening statement for the U.S. delegation at the first States Party meeting of the 1954 Hague Cultural Property Convention after U.S. ratification of the convention. Our delegation emphasized the great strides the United States had made since the looting of the Iraqi Museum in 2003, subsequent errors in placing temporary U.S. bases on or near archeological sites, and the establishment of cultural property protection procedures throughout the U.S. military. Since then, Congress established a Cultural Heritage Coordinating Committee at the Department of State and mandated DoD establish a Cultural Heritage Protection Coordinator. The U.S. Army also promulgated doctrine for cultural property protection in a field manual, FM 3-57 (Civil Affairs Operations).

On January 1, 2019, however, the United States suspended its membership in UNESCO. The U.S. delegation, led by Cori Wegener, has since been relegated to observer status at recent UNESCO Cultural Property Convention meetings in Paris.

The U.S. could rejoin the discussion of the 1954 Hague Convention by ratifying the 1999 Protocol II to the Convention. Negotiated for the United States by Hays Parks—a giant in the field of international law and the law of war and the long-time Special Assistant to the Army Judge Advocate General for Law of War Matters—Protocol II was never forwarded to the Senate for ratification. Its provisions, however, are not controversial. The protections it provides cultural property are entirely consistent with the U.S. view of the law of war and are included in U.S. doctrine on restricted targeting. Additionally, the protocol creates a functioning system for protecting cultural property by creating a fund and a committee of State parties to designate specially protected locations (identified much like UNESCO World Heritage Sites).

U.S. ratification of Protocol II, along with participation in the Committee, would signal the U.S.’s commitment to protecting the heritage of all mankind through the enforcement of the law of war. It is 20 years past time for the Senate to consider ratifying Protocol II.

 

Laurie Blank

Clinical Professor of Law; Director, Center for International and Comparative Law; and Director, International Humanitarian Law Clinic at Emory University School of Law

Lieber Senior Fellow

Technological capabilities that enhance compliance with the law of armed conflict are now so commonplace that education, advocacy, and other discourse are replete with references to pattern of life assessments, collateral damage estimation methodology, precision-guided munitions, and more. But what if an adversary’s counterspace or cyber operations permanently disable or destroy those capabilities?

Just as our military must train to fight without satellite navigation or intelligence, surveillance, and reconnaissance (ISR), so must we be able to comply with the law of armed conflict’s core tenets “in the dark”—that is, without recourse to the contemporary tools of LOAC compliance we take for granted. Take away the collateral damage estimation methodology and the proportionality rule remains. Take away pattern of life assessments or facial recognition and the distinction obligation remains. Take away GPS-enabled precision-guided munitions or persistent ISR and the precautions rules remain.

Equally important, preparing for law of armed conflict “in the dark” means not only ensuring law compliance with few or no hi-tech capabilities, but also affirming the law of armed conflict as the essential normative framework and methodology—whether you identify targets with binoculars or an ISR drone, and whether your weapon is a machine gun or the latest Joint Air-to-Ground Missile. With law of armed conflict compliance key to both protection of civilians and the legitimacy of military operations, the challenges of the law of armed conflict “in the dark” cannot remain in the shadows.

 

Rain Liivoja

Associate Professor, University of Queensland Law School

Lieber Senior Fellow

Compliance remains the biggest challenge for the law of armed conflict. A number of avenues could be pursued to address this problem.

First of all, given the number of non-international conflicts, getting non-State actors to abide by the law ought to be a priority. Accordingly, efforts of organizations like Geneva Call to bring non-State groups into the fold of the law should be supported as far as possible. Conversely, offences like “material support to terrorists” should not be defined or interpreted so broadly as to hinder legal training and advice to armed groups.

At the same time, despite earlier failures, mechanisms to monitor States’ compliance with the law need to be devised. The existing compliance mechanisms (such as Protecting Powers and fact-finding) are under-utilized and probably no longer—if they ever were—fit for purpose. As a result, victims are forced to turn to human rights institutions, which are often not well placed to deal with situations where the law of armed conflict applies.

Finally, while international criminal justice is no panacea, its processes should be allowed to run their regular course and not be obstructed by dubious means. It is one thing to refuse to cooperate with the International Criminal Court and completely another to impose sanctions against its staff, treating them on par with terrorists and dictators.