By Brian Itami, NSJ Staff Editor –
On Wednesday, March 31, four past and current military lawyers participated in a panel at Harvard Law School entitled “The Indeterminacy of International Humanitarian Law”. The event, sponsored by the National Security Journal, the HLS International Law Society, the HLS Program on the Legal Profession, and the HLS Advocates for Human Rights, was moderated by Andru Wall, who recently served as a Judge Advocate with the United States Navy, and featured comments from Col. Juan Gomez, a Colombian military lawyer currently on assignment at the National Defense University; HLS Professor Gabriella Blum, formerly an international law Military Advocate and strategic advisor to the Israeli Defense Force; and Capt. Dale Stephens, a Judge Advocate with the Royal Australian Navy.
The three panelists focused their comments on the difficulties created by the indeterminacy of the key terms and concepts of international humanitarian law, particularly the proportionality principle. Colonel Gomez noted that this legal concept is also crucial to satisfying the military mission in most modern conflicts, particularly intrastate conflicts, since legitimacy is often the center of gravity. With both insurgent groups and advocacy groups aware of a government’s vulnerability to challenges on legitimacy grounds, the responsibility of the military lawyer to opine on what is militarily necessary and proportionate becomes critical.
Captain Stevens outlined the role of the military lawyer as he had come to see it through his career – particularly his 2005 and 2008 tours with Coalition Forces in Iraq. He noted that the lawyer’s task is not limited to a determination that a proposed course of action is legal, but must encompass a broader set of considerations to determine whether the proposal was correct. He noted the significant implications of the Coalition’s move to a counterinsurgency strategy in Iraq, as the doctrine and its focus on the protection of civilians shifted the balance in determining (as a matter of policy) how much risk Coalition soldiers should assume.
Professor Blum drew upon the IDF’s experiences in following the targeted killing of Hamas leader Salah Shehada in 2002. While there was no question that Shehada, responsible for a number of terrorist attacks in Israel, was a legitimate target, the collateral damage caused by striking the densely-populated area where he lived created a chilling effect on future proposed targeted killings. While she agreed with Captain Stevens that all factors, not just legal considerations, should be taken into account when advising a commander, she proposed that ultimately the decision must belong to the commander. She noted the difficulty in providing advice to commanders, who generally seek specific guidance on the bounds of their action. Such advice, she stressed, is impossible to give ex ante – there is no answer to the question of how many civilians may be harmed in order to achieve a military objective.
For more on international humanitarian law and the law of armed conflict (LOAC), look for two forthcoming articles in the Harvard NSJ: Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare, by Laurie Blank and Amos Guiora, and The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis, by Dean Michael Schmitt.