Legal Advice in Modern Aerial Warfare

by | Nov 22, 2021

Legal Advice Aerial Warfare
Military lawyers play an increasingly vital role in lethal (and non-lethal) targeting operations. Although their involvement is operationally and geographically provisional, legal advice is transforming the way that contemporary war is fought and understood.

I spent much of the last decade researching the extensive involvement of military lawyers in aerial targeting operations, focusing on the militaries of the United States and Israel, and interviewing more than 60 legal advisers, commanders, and other military personnel with targeting experience. The findings of this research are the subject of my recent book, The War Lawyers: The United States, Israel, and Juridical Warfare. In this post I explain how military lawyers came to provide legal advice in aerial targeting operations and reflect on the simultaneous power and potential impotence of legal advice. While my focus has been on aerial operations, many of the observations and conclusions can be transposed to ground operations, including both the deliberate and dynamic targeting cycles that so often blend air and ground (as well as other types of) operations.

From Bit-Players to Hollywood Stars

 The involvement of legal advisers in targeting operations—aerial or otherwise—began as a late twentieth century phenomenon. A specific requirement to provide military commanders with legal advisers was first introduced in Article 82 of the 1977 Additional Protocol I with a view to helping ensure that decisions taken by commanders are in conformity with International Humanitarian Law (IHL) and that appropriate instruction is provided to armed forces. Interestingly, Article 82 noted that Parties to the conflict “shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol,” but it did not define “necessary” or “appropriate.” Nevertheless, according to the International Committee of the Red Cross (ICRC), State practice and opinio juris establishes this rule as a norm of customary international law for State armed forces.

Although States did not begin to consult military lawyers on the full suite of targeting issues for some time, my research suggests that the slow and gradual process of incorporating legal advice into the targeting cycle was already underway prior to Article 82.

A key impetus came from the United States and its experience in Vietnam. An Army investigation into the My Lai massacre of 1968 in which U.S. troops killed over 300 civilians found that a lack of proper training in the laws of war was one of the many factors that led to the massacre. Although military lawyers were by and large not involved in targeting operations in Vietnam, the events of My Lai led to the establishment of the U.S. Department of Defense Law of War Program, which in turn placed legal advisers at the front and center of military operations, including—importantly—the drafting of the Rules of Engagement (ROE) and law of war instruction.

The U.S. war in Vietnam also served as a catalyst for the establishment of Operational Law, a discipline that wedded military operations with international and domestic law. Operational Law would bring commanders and legal advisers closer together, and its early proponents placed significant emphasis on the laws of war as a war-fighting tool. Prevailing wisdom among many who served in Vietnam was that the United States was unduly constrained by the laws of war and that such restraints were in no small part responsible for the U.S. defeat. Countering this view, U.S. military lawyers at the time set about explaining that many of the restraints were political rather than legal in nature, and that the laws of war provide militaries with all kinds of rights as well as responsibilities. Legal advisers in the decades after Vietnam found themselves having to “tell commanders that it was okay to do something the commanders had assumed was illegal.” In the post-Vietnam era, especially, the operationalization of the laws of war was seen as an opportunity for “force-multiplication.”

It was during the First Gulf War in 1990-91 that legal advisers were first systematically involved in providing advice on aerial targeting operations. From Central Command headquarters in Tampa to underground bunkers in Riyadh, legal advisers closely vetted pre-planned targets in Iraq, setting a precedent that would become de rigueur in the post 9/11 era.

A good part of the air wars in Iraq and Afghanistan and many other nations over the last two decades have been conducted from the Combined Air Operations Center (CAOC) at Al-Udeid airbase in Qatar. Here, U.S. legal advisers have been joined by their many NATO-state counterparts “prosecuting” targets around the clock. Where in Vietnam legal advisers had literally been locked out of the Tactical Air Control Center (TACC) rooms where targeting decisions were made, today’s legal advisers enjoy unprecedented access to classified materials and are involved in varying degrees in the stages of targeting from planning through execution to post-strike assessment and investigation.

Something of a revolution in military legal advice has therefore taken place in recent decades, so much so that the close integration of judge advocates or “JAGs” in the targeting cycle is unremarkable to the new generation. It is worth reminding ourselves that despite the routinization of legal advice in targeting today, it is a relatively recent phenomenon. As a former Israeli military lawyer pointed out to me: “In the 1990s it was unheard of to have a lawyer in the room in a military operation planning meeting …, but now they [Israel’s military] cannot move without them.” Casting our attention a little further back, consider what Col. Howard A. Brundage, an Army judge advocate, wrote of the role of U.S. military lawyers in the Second World War:

[O]ur day to day existence during the war, our contribution to the war effort as lawyers and as Judge Advocates seemed so insignificant and unimportant…. [W]e were classed as Service of Supply. We were a part of the overhead. We were far down the line from the man who pulled the trigger.

Once bit-players in the background of military operations, legal advisers today speak of their “intimate” and “extensive” involvement in targeting operations; one recently told me that he provided legal input on well over 1,000 targeting operations in Afghanistan alone. Military lawyers have even experienced something of a Hollywood moment as their life and death legal advice is dramatized in popular films like Eye in the Sky where actor Jeff Heffernan plays legal conscience to Commander Helen Mirren, putting the brakes on a drone strike after a civilian appears in the crosshairs at the last minute.

More Than Legal Advice

 As the name implies, legal advisers are not decision-makers; their job is to advise. It remains the responsibility of military commanders to decide, for example, not only whether a strike goes ahead, but also how—including the scale and type of force, asset, or weaponry used. In theory, the means and methods of warfare as they pertain to the laws of war and ROE are just one set of considerations among many others in the conduct of hostilities. Yet, in practice my research suggests that law of war and ROE considerations have an increasingly outsized impact on commanders’ decision making and the targeting cycle more generally.

In some instances, commanders look to lawyers for something more than legal advice. They also sometimes seek something approximating permission, or even psychological and moral support. Time and again, legal advisers from both the United States and Israel reported commanders asking, “can we go ahead?” and other “yes” or “no” questions that impute a more-than-legal power of permission and denial to military lawyers that they do not formally possess.

One military lawyer described to me how his advice seemed to have an “almost divine power” that could cause commanders to hesitate or to depart from their intuition. Another legal adviser wrote about the reality of the power he holds: “I, as the legal advisor, am being asked by the commander whether he may legally kill these humans. I am the judge—he the jury and executioner.” A senior legal adviser in the U.S. Air Force with extensive targeting experience disclosed that he felt “more like a chaplain than a lawyer” because commanders came to him not only for legal advice but also for moral absolution. Yet another lawyer told me that his legal support was a vital psychological component in “getting human beings to … kill other human beings in the name of the state.”

When legal advisers provide advice to commanders, they shape military operations in crucial and underappreciated ways. Indeed, they are perhaps the most important conduit for the operationalization of the principles and rules of armed conflict and, through their daily work, they interpret rights and obligations and render the written word of law into material realities on the ground. In short, legal advice matters.

Dynamic Targeting and Legal Advice under Pressure

But legal advice only matters if it is given or heard. The pace of modern aerial targeting operations mean that most legal advice is rendered under severe time constraints and is sometimes bypassed altogether due to operational “necessities” (interesting questions include what constitutes such necessities and who decides?).

Here, it is necessary to differentiate between two broad types of aerial targeting, the first of which is typically called “deliberate” (planned) and the second “dynamic” or “time-sensitive” (unplanned or unanticipated targets of opportunity and “troops in contact” scenarios). The main difference concerns the availability of time and urgency of the operation. Deliberate targeting tends to be scheduled and planned over a longer period (e.g., weeks or months), whereas dynamic targeting responds to events in real-time, and therefore, the process can take place relatively quickly (e.g., minutes or hours).

Legal advisers are often involved in both types of targeting, but while their role in the deliberate targeting process is often extensive and highly routine (lawyers in the CAOC frequently speak of “groundhog day”), their role in dynamic targeting can be much more limited and ad hoc. There are several reasons why roles vary, but two important explanations are, first, that legal advisers are not always available at the tactical and forward levels of command (especially “on the ground”) and, second, even when they are available, operational constraints, including the potential need to act immediately, mean that it is not always possible, or practical, to seek (detailed) legal advice.

While much has been made of the extensive oversight and intimate involvement of military lawyers in targeting operations (and other areas of military operations), the role of legal advice in dynamic targeting is much more provisional and frequently harried. Military lawyers I spoke to reported being “fact happy” (having high confidence in reliable intelligence) when it came to planned targets, but often acknowledged serious gaps in intelligence and situational awareness with regards to dynamic targets. This is not necessarily surprising, but it does change both the form and content of legal advice, and never has it been so important for legal advisers to “BLUF”—put their bottom-line up front.

Take for example, the Combined Joint Special Operations Task Force (CJSOTF) in Baghdad, one of the many networked sites of the U.S. “kill-chain.” The Commander there processed and cleared many thousands of strikes in Iraq as part of the war against the Islamic State. He had a team of JAGs, Joint Terminal Attack Controllers (JTACs), and others who were required to approve manned and unmanned strikes that met particular target engagement criteria. Each authority had a table tennis paddle, green on one side red on the other, and once they were all green the commander would authorize the strike. “Sometimes it took seconds,” reported a military official who worked there. Other lawyers told me of being woken by their pagers or phones in the middle of the night and having to make split-second calls with limited information.

Legal Advisers Left “Out-of-the-Loop”

 My research also indicates that legal advisers can be left “out of the loop” entirely both by accident and design. Much that happens in military operations, much like in other professional arenas, is personality driven and the targeting cycle can be a particularly intense and stressful environment where legal advice is both welcomed and resented by commanders and their staff. The anti-lawyerish attitudes of the post-Vietnam War era have faded significantly in recent decades, but they remain in some quarters.

In the First Gulf War, a prominent air force planner had a legal adviser removed from the targeting cell because of a “clash of personalities” (see Chapter 3 of my book). While standard operating procedures and ROE often routinize the role of the legal adviser, commanders retain wide latitude with regards to how (and how much) they involve legal advisers; some choose to have them by their side (or very close by) 24/7, while others prefer them on the end of a pager. Many legal advisers emphasized to me the importance of “fitting-in” or “getting along” with commanders and other staff, and reported that the extent of their involvement was driven in part by their own individual initiatives (e.g., making themselves known to the various different specializations within the targeting cycle, requesting additional intelligence, asking to sit in on meetings to which they otherwise might not have been invited).

Much of this is dictated by operational realities rather than an intent to evade legal advice. Perhaps a legal adviser is at the gym or in the shower when the “tough call” is being made, or perhaps she is located on the other side of the base and can’t get to the “ops room” in time (it was for this reason that the JAG quarters at the CAOC in Al Udeid were relocated closer to the operations floor so that even when sleeping they were no more than a few minutes away). Or perhaps there are so many concurrent operations that the legal adviser has to prioritize.

There are also instances in which commanders fail to heed the advice of lawyers, sometimes with predictable consequences for civilian casualties. In my book (Chapter 6), I document a case in Afghanistan where a commander disregarded legal advice despite the legal adviser making it “crystal clear” (his words) that the strike should not go ahead on the grounds that the target had not been positively identified (PID) and that there were children (civilians) present. According to the legal adviser the commander in question “wanted to strike the convoy” – a “convoy” that ended up being vehicles carrying civilians who were in no way participating in hostilities.

Preponderance of Dynamic Targeting

 It matters all the more, then, that the vast majority of targeting—air, ground, or otherwise—has for some time tended to be dynamic and unplanned in nature. It is difficult to disaggregate data on U.S. airstrikes into dynamic versus deliberate but U.S. Airpower Statistics from both Iraq and Afghanistan reveal a high preponderance of one particular form of dynamic targeting—close air support (CAS). Moreover, since Operation Inherent Resolve (OIR) was launched in 2014 approximately 85% of targets have been dynamic. In Afghanistan, local Afghan commanders came to rely heavily on dynamic air support from the United States and did so even in the twilight of the American presence there.

It also matters that an investigation by the non-profit organization Human Rights Watch found that time-sensitive targeting operations tend to cause more civilian casualties than pre-planned operations.

Conclusion

It remains to be seen what the future holds for Afghanistan as well as Iraq and elsewhere, but the trend of getting (our) boots off the ground and relying more and more on smaller mobile special operations units will by no means spell the end of legal advice. Troops might be withdrawn, but air strikes will continue to be a mainstay of war-at-a-distance. Whether deliberate or dynamic, legal advisers will continue to be involved in targeting operations and they will face challenges new and old. Not only will they have to weigh in on matters of life and death, they will also have to do so with a relative dearth of human intelligence—intelligence that was once the bread and butter of military operations. The so-called “righteous strike” by a U.S. drone in Afghanistan on August 29, 2021 ended up killing 10 civilians rather than its putative Islamic State target and has since been called a “tragic mistake” by the Pentagon. It may well prove a prescient indication of things to come as the forever war rumbles on with or without lawyers in the loop.

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Craig Jones is a Lecturer in Political Geography in the School of Geography, Politics and Sociology at Newcastle University.