“I shall proceed from the simple to the complex. But in war more than any other subject we must begin by looking at the nature of the whole; for here more than elsewhere the part and the whole must always be thought of together.”
– Carl von Clausewitz, On War
The modern battlefield is a complex place—watching the evening news any day of the week highlights that fact. Beyond the traditional jus ad bellum threshold issues for a nation to enter a conflict, or the jus in bello international humanitarian law parameters that govern the way a conflict is conducted, today’s conflict zones represent target-rich environments for a wide variety of legal issues. As our world and our conflicts become increasingly complicated, the need for skilled and invested legal professionals to examine these problems becomes greater.
The current state of conflict with the purported “Islamic State” (ISIS), also commonly referred to in the Middle East as Daesh, is a perfect example. Probably the most complicated battle space the world has ever known, the current conflict in Iraq and Syria includes a wide variety of armed groups, representing states and non-state groups, who all have their own agendas and shifting reasons for why and with whom they fight. The resulting alliances seen on the battlefield are intricate and fragile.
Counterinsurgency (COIN) operations are always challenging as typically two opposing forces (government and insurgents) battle for the trust and confidence of the local population. The primary principle of the government’s use of force is to not create more enemies than are killed. This principle makes strike cell operations effective and sensitive as insurgents are sought to be separated from the general population and neutralized without excessive collateral damage or creating more martyrs for an anti-government cause. The “routine” legal issues of proportionality, escalation of force, and defense of others in these environments are challenging on their own.
Added to the web of often tenuous alliances is a mix of state and non-state groups operating within the local civilian population, and soon, the only clarity on the battlefield is sound legal counsel—clarity when rules of engagement are not linear; they must also address third-party self-defense issues, giving consideration not just to who is being attacked, but also who is doing the attacking. Identifying allies isn’t enough anymore. One must know and plan for the allies’ enemies (at that moment), especially where those allies often are actively engaged in trying to kill each other.
The intricacies of the battlefield are further exacerbated with issues of patron interests and proxy conflict, and a constellation of political and policy questions emerge: Is support to one group in furtherance of a common end-state going to result in increased tensions with other allies (or their patrons) because of peripheral baggage? Will conflict actually be widened because of immediate alliances and support/non-support decisions? What happens after the shared goal is achieved? How does regional stability and security return to a population when the need for those temporary alliances ends? Is there going to be a reconciliation process, and if so, what law will form its basis; criminal standards or the Law of Armed Conflict (LOAC)?
The legal analysis applied to any conflict or COIN operation shows one plane of a multidimensional undertaking; rarely do nation states engage in conflict by themselves. Thus, the “battle before the battle” lies in establishing common operation principles among major allies. Agreeing on a common enemy is one thing, but agreeing on the rulebook is quite another. Shared understanding of the LOAC is by no means universal. A common example is that there is no consensus on what the threshold is for acting in self-defense, especially when the threat’s identity is unclear. And, apart from the identity issue, is a “hostile act” required to justify self-defense, or is a subjective assessment of hostile intent sufficient? The act/intent line is the difference between pointing a gun and pulling the trigger, or burying an Improvised Explosive Device on the side of the road or triggering the explosion. There is no bright line defining when self-defense is permissible and enemies know it.
Returning to the example of Daesh, defining “direct participation in hostilities” is critical because it determines when a person becomes a legitimate military target. Using lethal force against a tank is easy. But what about making the determination that dual-use commodities, like oil and oil tankers, are targetable because of the clear link to Daesh’s financial reliance on these assets to fund violence? And, beyond targeting individuals participating in hostilities, what steps must be taken under the LOAC to mitigate civilian harm? At what point does an alliance determine that an individual is part of an “armed group” and therefore no longer entitled to the protections the LOAC otherwise provides?
A litany of important questions arise on the battlefield requiring analysis and advocacy from legal professionals who understand the unique aspects of a particular conflict, customary international law, relevant treaty and convention law, domestic limitations of one’s nation and allies, and the LOAC. After the shots are fired, what standard will be used to assess command responsibility for violations of the LOAC? How should entities like the International Criminal Court and its rulings be considered within the context of coalition operations? The legal professionals tackling these questions must be willing to show up, boots on the ground, side-by-side with the decision-makers, and ply their craft all while actual and potential enemies pursue their fervent and ceaseless desire to destroy. The attorneys in the Army Judge Advocate General’s Corps have shown up, and there is much work to be done.
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