Illustrating Illegitimate Lawfare (Part 2)

(continued from Part 1)

The United States refrained from joining the Ottawa Convention not because of a kneejerk exceptionalist mantra or a visceral distrust of multilateral instruments, but because delegates adopted a treaty that disregarded the legitimate strategic equities of the United States. The Chairman of the Joint Chiefs testified to Congress at the time that ―[i]n Korea . . . where we stand face-to-face with one of the largest hostile armies in the world, we rely upon anti-personnel landmines to protect our troops."external page(36)call_made It is no coincidence that many of the treaties that the United States has rejected outright have been accompanied by a clause prohibiting reservations.external page(37)call_made The Ottawa Convention does not allow reservations and took a purist posture that wished away the special military interests of a major military power with a substantial troop presence deployed to prevent a numerically superior enemy from crossing an international border clearly recognizable by the high fences, guard towers, and emplaced mine fields.external page(38)call_made

Commenting on the unfortunate choice required by a treaty that does not permit reservations yet undermines American interests, President Clinton remarked that

[O]ne of the biggest disappointments I‘ve had as President, a bitter disappointment for me, is that I could not sign in good conscience the treaty banning land mines, because we have done more since I‘ve been President to get rid of land mines than any country in the world by far. We spend half of the money the world spends on de-mining. We have destroyed over a million of our own mines. I couldn‘t do it because the way the treaty was worded was unfair to the United States and to our Korean allies in meeting our responsibilities along the DMZ in South Korea, and because it outlawed our anti-tank mines while leaving every other country [sic] intact. And I thought it was unfair. But it just killed me. But all of us who are in charge of the nation‘s security engage our heads, as well as our hearts.external page(39)call_made

Secondly, nations should be alert to oppose any efforts to create or reinforce legal rules that would become tactically irrelevant on modern battlefields. Commenting on the impractical aspects of Additional Protocol I, the eminent Dutch jurist Bert Röling—who served on the bench of the Tokyo International Military Tribunal—observed that treaty provisions ought not ―prohibit what will foreseeably occur" because the ―laws of war are not intended to alter power relations, and if they do they will not be observed."external page(40)call_made The disconnects between aspirational legal rules and human experience are borne out in operational experience by states that act decisively to protect the lives and property of their citizens, which feeds an undercurrent of suspicion and politicization that could erode the very foundations of humanitarian law. This gap in turn leads to a cycle of cynicism and second-guessing that could weaken the commitment of some policy makers or military forces to actually follow the law. For example, no responsible commander intentionally targets civilian populations, and the law on this matter is clear and fundamental.external page(41)call_made In the era of mass communications, the media often creates a perception that the normative content of the law is meaningless by conveying an automatic presumption that any instance of collateral damage is based on illegal conduct by military commanders.external page(42)call_made This perception is, of course, completely without foundation in humanitarian law or in modern military practice. Left unchecked by the light of the law and the facts, however, it can erode the acceptance of the law in the minds of military professionals who may begin to feel that their good faith efforts to comply with the complex provisions of the law are meaningless and counterproductive in terms of gaining legitimacy and public trust. Indeed, nothing would erode compliance with humanitarian law faster than false reports of what the other side has done, or distorted allegations that permissible conduct in fact represents willful defiance of international norms.

Some scholars have theorized over the development of an international common law that would constrain state actions by affecting the costs and benefits of state action by shaping the expectations of other states rather than on the basis of legally applicable binding judgments.external page(43)call_made If otherwise non-binding international decisions are taken as authoritative and neutral statements regarding the law, they may well shape state expectations and thereby inappropriately affect the conduct of hostilities. Future conduct that is inconsistent with such international common law might be perceived as unlawful and, therefore more likely to result in "retaliation, reciprocal non-compliance, or reputational sanctions."external page(44)call_made According to this view, such international common law helps to overcome the limitations confronted in the evolution of legal norms designed to restrict state prerogatives and powers. Indeed, highly motivated states whose core interests are threatened by illegitimate lawfare can generally frustrate treaty negotiations or specific rules as applied to them. Efforts to inappropriately superimpose human rights principles into the midst of conflict provide an important and recent example of this variety of illegitimate lawfare that the Goldstone Report highlighted.

Given the mandate to investigate legal violations alleged during Israeli operations in Gaza from December 27, 2008 to January 18, 2009, the United Nations Fact Finding Mission on the Gaza Conflict, also known as "The Goldstone Commission," undertook a review of actions by Israeli Defense Forces (IDF); the Palestinian Authority; Hamas, which governs Gaza; and Palestinian armed groups during "Operation Cast Lead," the IDF name for its military operations in Gaza.external page(45)call_made The five hundred and seventy-five-page report found fault with all sides, but focused its analysis largely on conclusory opinions regarding Israeli conduct and intentions during Operation Cast Lead.external page(46)call_made The Goldstone Report found "major structural flaws" with "Israel‘s system of investigations and prosecution of serious violation of human rights and humanitarian law" which warranted its contention that the Israeli investigative system is "inconsistent with international standards."external page(47)call_made The Goldstone Report states that "Both international humanitarian law and international human rights law establish an obligation to investigate and, if appropriate, prosecute allegations of serious violations by military personnel whether during military operations or not."external page(48)call_made The report states the uncontroversial conclusion that Israel had the obligation to investigate allegations of grave breaches of the Geneva Conventions,external page(49)call_made but goes on to postulate a parallel obligation to investigate actions in the midst of hostilities under international human rights law.external page(50)call_made Asserting an unspecified source of international common law, the Report refers to human rights jurisprudence drawn from regional tribunals [which of course is not binding on Israel as a matter of hard law] to assert that the responsibility to investigate "extends equally to allegations about acts committed in the context of armed conflict."external page(51)call_made

The nature and efficacy of military operational debriefings, which precede formal investigations into allegations of atrocities, provided perhaps the most important fulcrum upon which the Goldstone Commission relied in formulating its penultimate recommendations. In a statement to the United Nations Human Rights Council, Justice Goldstone described Israel‘s efforts to investigate alleged international law violations by the IDF during Operation Cast Lead as "pusillanimous" and those of the Gaza authorities in respect to Palestinian armed groups as a "complete failure."external page(52)call_made The Report itself concluded that the use of Operational Debriefings does not satisfy the requirement for an independent and impartial tribunal.external page(53)call_made Quite the contrary, in the view of the Commission, Operational Debriefings actually frustrate a genuine criminal investigation because they often occur only after the passage of some time, often result in destruction of the crime scene,external page(54)call_made and they delay the prompt commencement of an independent and impartial investigation.external page(55)call_made The report drew an artificial and wholly unsubstantiated conclusion that a delay of some six months from the operational debriefing to a full criminal investigation by the Military Police Criminal Investigation Division (MPCID) is excessive and therefore impermissible as a failure of the obligation "to genuinely investigate allegations of war crimes and other crimes, and other serious violations of international law."external page(56)call_made Thus,

The Mission holds the view that a tool designed for the review of performance and to learn lessons can hardly be an effective and impartial investigation mechanism that should be instituted after every military operation where allegations of serious violations have been made. It does not comply with internationally recognized principles of independence, impartiality, effectiveness and promptness in investigations. The fact that proper criminal investigations can start only after the "operational debriefing" is over is a major flaw in the Israeli system of investigation"external page(57)call_made

In his statement to the Human Rights Council, Justice Goldstone reiterated the recommendation from the Report that the United Nations Security Council (UNSC) require that both Israel and Gaza authorities "launch appropriate investigations that are independent and in conformity with international standards, into the serious violations of International Humanitarian and International Human Rights Law reported by the Mission and any other serious allegations that might come to its attention."external page(58)call_made The Israeli response announced on July 6, 2010 revealed that after investigating more than one hundred fifty incidents, of which nearly fifty resulted in formal criminal investigations, military officials decided to take disciplinary and legal action in four cases, including some that were highlighted by the Goldstone report.external page(59)call_made The subtlety that was lost on the Goldstone Commissioners is that operational debriefings are an essential aspect of the ebb and flow of tactical operations and an entirely appropriate extension of the commander‘s obligations to ensure that operations are conducted in accordance with the intent of the orders given and within the boundaries of the law. The official Israeli response explains that the purpose of a preliminary command investigation is to collect available information related to potential wrongdoing, emphasizing that the operational debriefings do not replace a criminal investigation, but ―serve as a means of compiling an evidentiary record for the Military Advocate General, and enabling him, from his central vantage point, to determine whether there is a factual basis to open a criminal investigation."external page(60)call_made Just as with every modern professionalized military, the advice of a military judge advocate is determinative of the ultimate disposition of a particular case rather than the preliminary commander‘s investigation.

This dimension of the Goldstone Report—despite my deep personal respect for Justice Goldstone—represents a pernicious expansion of international common law in a manner that would dramatically undermine military operations. Phrased another way, lawfare that results in tactically irrelevant rules that actually undermine respect for the application and enforcement of humanitarian law is illegitimate and untenable. The Israeli response correctly noted that the Israeli Supreme Court sitting in its capacity as the High Court of Justice charged with protecting and vindicating human rights standards concluded that command investigations are ―usually the most appropriate way to investigate an event that occurred during the course of an operational activity."external page(61)call_made In fact, the Israeli system is designed to operate effectively even under the smoke, adrenalin, and uncertainty of a modern battlefield, and replicates those of other modern military systems that routinely conduct preliminary command investigations based on reports of misconduct during operations and to make preliminary identification of personnel whose actions warrant full criminal investigations.external page(62)call_made Indeed, the essence of command authority is to understand the flow of battle and to take ameliorative actions swiftly when needed. Taken to its logical end-state, the human rights grounded perspective on investigation of alleged wrongdoing during hostilities would paralyze operations and erode the commander‘s ability to direct hostilities.

The dismissive approach of the Goldstone Report towards operational debriefings and follow-on commander‘s inquiries (known in some circles as preliminary investigations) represents a prime example of illegitimate lawfare. From the lawfare perspective, this approach is deeply flawed and wholly unworkable because it would require international law to bear too much weight. This newly manufactured limitation on the ability of commanders to command and to direct resources on the basis of military necessity towards the lawful accomplishment of the mission would have the predictable consequence of causing critics to discount the larger endeavor to regulate conflicts. It is simply ludicrous to suggest that ongoing operations be halted at the slightest suggestion of impropriety to permit ballistics analysis of any weapons that might have been involved in the firefight and to subject all potentially involved personnel to full blown criminal investigations as precondition for compliance with the laws and customs of war. Rather than striving to defeat a superior adversary on the field of battle, the enemy could literally disarm entire units merely by alleging violations on the part of an attacking force. The surge in spurious allegations surely would undermine the credibility of the legal norms in the minds and methodology of attacking forces.

In fact, if every report of possible wrongdoing required operational commanders to freeze the fight, during which an enemy could resupply, refit, and retrench either figuratively or literally, a newly imposed Goldstone inspired human rights based investigative standard would actually create an almost overwhelming disincentive to report and document war crimes. The laws and customs of war are designed to maximize respect for human dignity and humanitarian norms, even as they facilitate the lawful accomplishment of military objectives. The textual requirements of Protocol I already balance the need of the commander to effectively conduct military operations with the overriding duty to ensure compliance with the laws or war or to take appropriate remedial or investigative action.external page(63)call_made Article 86, for example, represented a major development in the field as it gave textual formulation to the historically developed doctrine of superior responsibility.external page(64)call_made Paragraph 2 of Article 86 places investigative responsibility on the shoulders of responsible commanders by stipulating that a superior may be criminally liable for the crimes of a subordinate if three criteria are proven: (1) senior-subordinate relationship; (2) actual or constructive notice on the part of the commander of wrongdoing; and (3) failure to take measures to prevent the crimes.external page(65)call_made It is the commander‘s obligation to take all ―feasible measures" to prevent or to repress breaches of the laws of war.external page(66)call_made Furthermore, the laws and customs of war expressly obligate the commander to prevent and ―where necessary, to suppress and to report" violations to competent authorities.external page(67)call_made Thus, the per se assertion that commanders do not have authority to investigate wrongdoing in their own units and that only full-blown criminal investigations conducted by external authorities are compliant with the international standards would erode the preexisting obligation and authority of the commander and undercut the obligations of humanitarian law. Such an untenable and unworkable extension of human rights principles into the context of conflict is both unwarranted and illegitimate.

Finally, and as an extrapolation of the points made above, illegitimate lawfare is that which erodes the margin of appreciation given to responsible commanders to its vanishing point. International humanitarian law is not a beast that is kept chained and fed with words and conference and good intentions. Quite the contrary, the ideals of humanitarian law (e.g. the principles of necessity, distinction, humanity, and reciprocity) are all intended to be achieved in the context of facilitating the accomplishment of the military mission. In fact, the modern law of armed conflict is really nothing more than a web of interlocking protections and specific legal obligations held together by the thread of respect for humankind and a reciprocal expectation that other participants in armed conflict are bound by the same normative constraints. The laws and customs of warfare serve as the firebreak between being a hero in the service of your nation and a criminal who brings disgrace to your nation, dishonor to the unit, and disruption to the military mission. As the backbone of military professionalism, the implementation of legal norms in an operational setting became an indispensable aspect of military legitimacy. The law of armed conflict was historically designed and developed to provide a framework within which responsible commanders can operate.external page(68)call_made It was never intended to operate as a tourniquet that cuts off military effectiveness or unduly impedes lawful military operations.

Legal norms continue to form the rallying points of moral and professional clarity that guide soldiers in the midst of incredibly nuanced missions, no matter how tired they are, or how much adrenaline is flowing in the impetus of the moment. Over time, the laws of warfare have become the lodestone of professionalism and the guiding point for professional military forces the world over.external page(69)call_made The law of armed conflict provides the standards that separate trained professionals from a lawless rabble. Thus it is not  surprising that Article 82 of Additional Protocol I explicitly requires parties to any armed conflict to "ensure that legal advisors 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 the armed forces on this subject."external page(70)call_made One eminent commentator referred to the soldier/lawyer who is equipped to fill such a vital operational niche as the "lawyer-in-uniform."external page(71)call_made The combination of legal, diplomatic, military, and personal skills needed to effectively advise commanders makes the modern military lawyer an important aspect of proper operational preparation and compliance with the constraints of the law.

However, international humanitarian law balances its laudable goals with the perfectly legitimate need to accomplish the mission. The law explicitly embeds the latitude for military commanders and lawyers to balance the requirements of the mission against the humanitarian imperative. Even the text of Article 82 contains the caveat "when necessary" that permits flexibility and sovereign choices in the conditions for the use, allocation, and location within the military structure of those legal advisors.external page(72)call_made Phrased another way, even in this most sensitive area, the law as it is properly understood and implemented entrusts commanders with a wide range of discretion. Thus, legal obligations flowing from the laws of armed conflict are often predicated by such caveats as "to the fullest extent practicable,"external page(73)call_made "to the maximum extent feasible,"external page(74)call_made or "as the relevant Party to the conflict may deem necessary."external page(75)call_made Among many other examples, legal duties are described in terminology such as "unjustified act or omission"external page(76)call_made or conditioned as follows: "unless circumstances do not permit."external page(77)call_made

Any effort to substitute a generalized and arbitrary reasonableness standard in imposing criminal liability on commanders represents illegitimate lawfare. The laws and customs of war deliberately permit commanders a wide range of discretion in implementing their intent within the bounds of good faith application of the law and those decisions must be accordingly be considered from the perspective of the that commander at the time the decision was made. Post hoc assessments of the commander‘s decision-making must be made through the lens of a particularized reasonableness standard based on military command in the circumstances as they existed at the crucial moments of the operation. The classic statement of this principle derives from the World War II era military commissions proceedings against German General Lothar Rendulic.external page(78)call_made General Rendulic believed that Russian troops were pursuing his forces along land and sea routes and as a result, ordered a "scorched earth" policy to slow the pace of Russian pursuit.external page(79)call_made In evaluating these decisions, the Tribunal held that:

There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by exercise of judgment, after giving consideration to all factors and existing possibilities, even though the conclusion reached may have been fault, it cannot be said to be criminal.external page(80)call_made

The Rendulic Rule is more than a quaint example of an outmoded era. Its equivalent can be readily identified in Article 8(2)(b)(iv) of the Rome Statute which embodies the modern proportionality principle by criminalizing the intentional initiation of "an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."external page(81)call_made

Though asserting that it was "not attempting to second-guess with hindsight the decisions of commanders," the Goldstone Report essentially did just that.external page(82)call_made The Report flatly declared that of the eleven specified actions ostensibly directed against civilians "with one exception, all cases in which the facts indicate no justifiable military objective pursued by the attack."external page(83)call_madeThe Mission also considered damage to the industrial infrastructure of Gaza, including a flourmill, and without even considering the perspective of the on-scene commander concluded that the damage to the flourmill "suggests that the intention was to disable the factory in terms of its productive capacity."external page(84)call_made In fact, this aspect of the Goldstone Report directly contravenes the latitude given to the military commander at the time of an attack and under the circumstances then prevailing to determine whether a particular target is lawful in that its destruction "offers a definite military advantage."external page(85)call_made

In an even more blatant attempt to superimpose its own rationale and reasoning over that of the commanders‘ good faith judgment, the Report developed a wholly unprecedented standard for warning the civilian population in advance of impending attacks. Article 57(2)(c) of Protocol

I expressly mandates that "effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit."external page(86)call_made This provision is an express obligation that is really just a lex specialis application of the larger obligations to "take constant care" to protect civilian lives and objectsexternal page(87)call_made and to "do everything feasible" to protect civilians both in the choice of targets and in the means selected to attack targets.external page(88)call_made During Operation Cast Lead, IDF warnings in the urban areas of Gaza consisted of: 165,000 telephone calls, 300,000 warning notes on December 28, 2008 alone, 2,500,000 leaflets overall, radio broadcasts and another newly developed tactic involving non-explosive detonations known as "roofknocking.'external page(89)call_made The Goldstone Report sets forth several criteria in determining whether a warning is effective:

[I]t must reach those who are likely to be in danger from the planned attack, it must give them sufficient time to react to the warning, it must clearly explain what they should do to avoid harm and it must be a credible warning. The warning also has to be clear so that the civilians are not in doubt that it is indeed addressed to them. As far as possible, warnings should state the location to be affected and where the civilians should seek safety. A credible warning means that civilians should be in no doubt that it is intended to be acted upon.external page(90)call_made

After detailing the content of the leaflet and radio broadcast warnings, the Report concluded that the warnings did not comply with the obligations of Protocol I because Israeli forces were presumed to have had the capability to issue more effective warnings, civilians in Gaza were uncertain about whether and where to go for safety, and some places of shelter were struck after the warnings were issued.external page(91)call_made Thus, despite giving more extensive warnings to the civilian population than in any other conflict in the long history of war, the efforts of the Israeli attackers were equated with attacks intentionally directed against the civilian population. This approach eviscerates the appropriate margin of appreciation that commanders who respect the law and endeavor to enforce its constraints should be entitled to rely upon—and which the law itself provides. There is simply no legal precedent for taking the position that the civilians actually respond to such warnings, particularly in circumstances such as Gaza where the civilian population is intimidated and often abused by an enemy that seeks to protect itself by deliberately intermingling with the innocent civilian population. The newly minted Goldstone standard for warning the civilian population would displace operational initiative from the commander in the attack to the defender who it must be remembered commits a war crime by intentionally commingling military objectives with protected civilians. This aspect of the report would itself serve to amend the entire fabric of the textual rules that currently regulate offensive uses of force in the midst of armed conflict.

This, then, is the essence of illegitimate lawfare. Words matter—particularly when they are charged with legal significance and purport to convey legal rights and obligations. When purported legal ―developments‖ actually undermine the ends of the law, they are illegitimate and inappropriate. Legal movements that foreseeably serve to discredit the law of armed conflict even further in the eyes of a cynical world actually undermine its utility. Lawfare that creates uncertainty over the application of previously clear rules must be opposed vigorously because it does perhaps irrevocable harm to the fabric of the laws and customs of war. Illegitimate lawfare will marginalize the precepts of humanitarian law if left unchecked, and may serve to create strong disincentives to its application and enforcement. Knowledge of the law and an accompanying professional awareness that the law is binding remains central to the professional ethos of military forces around our planet irrespective of the reality that incomplete compliance with the jus in bello remains the regrettable norm. Hence, it logically follows that any efforts to distort and politicize fundamental principles of international law cannot be meekly accepted as inevitable developments.

For the full citation and bibliographic information, external pagesee the originalcall_made.