Legal Advisers in the Field during Armed Conflict
[Editor’s Note: This post is based on Professor Dinstein’s recent article published in International Law Studies, vol. 97 (2021), pp. 917-936.]
Legal advisers are supposed to be attached to military commanders in the field under Art. 82 of the 1977 Protocol I Additional to the Geneva Conventions, which proclaims: “The High Contracting Parties at all times, and the Parties to the conflict in time of armed 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 and on the appropriate instruction to be given to the armed forces on this subject.” This provision, which was quite innovative when adopted, is now entrenched in the Law of Armed Conflict (LOAC). The United States—while objecting to many other parts of Additional Protocol I—does not dissent from Art. 82, and the DoD Law of War Manual confirms this. Admittedly, the language of Art. 82 is unusual. The clause combines a clear-cut obligation (“shall ensure”) with a certain degree of flexibility (derived from the unspecified reference to the appropriate level of command and the qualifying words “when necessary”).
The Appropriate Level of Command
Each State is empowered to determine the appropriate level of command to which its legal advisers are made available. In the past, the operational level considered most suitable in land warfare was the headquarters of a division or a larger unit. But there is a growing tendency to post legal advisers to brigades, and even to smaller military formations acting independently. In air and maritime campaigns, legal advisers will commonly be assigned to central (theater) commands. Of course, modern digital communications (including e-mails) enable legal advice to be relayed from headquarters to subordinate units with scarcely any time lag.
The Role of the Legal Adviser
Art. 82 refers to advice on the application of the Geneva Conventions and the Additional Protocol. In practice, legal advice to the armed forces encompasses the whole range of LOAC. Legal advisers must be prepared to caution military commanders against anticipated actions that are incompatible with LOAC, outlining alternative options. They can do that either when their professional opinions are sought or even on their own initiative, and they therefore need access to military commanders. Legal advisers should have sufficient rank and experience to perform their tasks. When embedded in the armed forces, rather than serving as civilians, legal advisers must be somewhat detached from the straight chain of command. In any event, legal advisers are there to advise military commanders and not to replace them. A notable exception to the rule concerning the purely advisory role of legal advisers is Israel, where, in practice, military commanders may be de facto vetoed by their lawyers. It is impossible to deny the prerogative of a State to tip the scale in favor of legal advisers as compared to military commanders. But this is still a unique situation.
Alleged Demerits of the System
Curiously, in Israel serious doubt has been cast on the very concept of posting legal advisers to the field during combat. This came about in a Report of a Commission of Inquiry (Winograd Report) investigating the 2006 hostilities with Hezbollah. The Commission concluded that it would be better for military commanders engaged in battle to concentrate on combat rather than spend crucial time consulting with legal advisers. However, the Winograd Report ignored the fact that legal advisers are only attached to headquarters of large formations, and not to small field units under fire. Staff discussions at headquarters are held routinely, and it is illogical that—of all potential consultations—only those with legal advisers would be excluded.
The Winograd Commission was confident that, by eliminating time-consuming discourses with legal advisers, it was shielding the interests of military commanders. In reality, the initiative for legal advice frequently originates from military commanders themselves. Military commanders usually prefer to briefly pause for consultations with legal advisers at present, rather than face the odium of protracted future prosecutions that are liable to taint their reputation and harm their career.
Legal Advice in Context
Some familiarity on the part of military commanders with the basic rules of LOAC is an indispensable requirement. States are bound to disseminate LOAC as well as issue orders and instructions to their armed forces ensuring its implementation. LOAC must be implanted into military doctrine, for example, through promulgating national military manuals (like the DoD Law of War Manual, supplemented by Commander’s Handbooks). Training of the armed forces in LOAC must cover all levels of command (although, naturally, military academies for junior officers can stick to introductory courses, while war colleges should focus on a more advanced syllabus). Considering that LOAC training is only one component in the education of officers, even senior commanders are not likely to acquire more than sketchy legal proficiency. It is because commanders are not fully conversant with LOAC obligations that legal advisers are called upon to assist them in the field.
The training of armed forces in LOAC must begin with in-depth training of the legal advisers themselves (since the average law school graduate is rarely adept at the intricacies of LOAC). This kind of training (e.g., in the US Army Judge Advocate General’s School) does not consist merely of getting familiarized with lengthy texts: legal advisers must learn to cope with unforeseen circumstances.
Military Commanders and War Crimes
A lot of attention is currently given to war crimes trials. An International Criminal Court has been established. But even in countries like the United States that have not accepted the Court’s jurisdiction, there is a growing demand that members of the armed forces will be subjected to domestic penal prosecution if and when they perpetrate serious LOAC breaches.
The focus of any war crimes investigation is obviously the military commander. It must be emphasized that a military commander’s refusal to follow counsel by a legal adviser will be considered an aggravating circumstance affecting punishment.
Legal Advisers Giving Erroneous Counsel
Legal advisers are not infallible, and they are liable to give military commanders a wrong go-ahead signal, for instance by misidentifying an object as a military objective (i.e., a lawful target of attack). Notwithstanding the fact that a military commander has been assured by his/her legal adviser that a specific object constitutes a military objective, an eventual judicial panel may infer from the same set of circumstances that (contrary to the legal adviser’s opinion) the object was truly civilian in character. How will that affect a war crimes prosecution?
Clearly, if a legal adviser wrongly dismissed doubts about the military status of an object against which an attack is to be directed, it is possible to charge him/her as an accomplice to the war crime. This is a matter of aiding or abetting, which may consist of encouragement or lending moral support to the perpetration of a war crime.
The main question is whether—by consulting with a legal adviser and getting a green light for directing an attack against a preselected object—a military commander might be relieved of his/her accountability for a war crime. A war crime must be committed intentionally. It is submitted that, in such circumstances, a military commander cannot be convicted of a war crime (assuming that the action was carried out bona fide and the legal advice was not manifestly wrong). The rationale is that, by relying on legal advice (tendered by an expert formally deployed in compliance with LOAC), a military commander may be deemed to have done all that he/she might reasonably be expected to do.
The subject matter under discussion ties in with the defence of “mistake of law,” which may exceptionally be a ground for excluding criminal responsibility for war crimes if it negates the mental element required for conviction.
The participation of legal advisers in the deliberative functioning of military headquarters during armed conflict is of vital importance. All the same, the integration of legal advisers into the battle environment does not rule out bad judgment calls leading to the commission of wrongful acts. Such miscues can spawn individual criminal responsibility of legal advisers, while possibly exculpating military commanders.
Yoram Dinstein is Professor Emeritus, Tel Aviv University (Israel); Member, Institut de Droit International; and former Stockton Professor, Naval War College (1999–2000, 2002–2003).