The LOAC permits civilian casualties when they are necessary to accomplish a legitimate military objective

by Travis Normand
December 28, 2016

This is a great opinion piece that was posted on WashingtonPost.com. I highly recommend taking a moment to read it. You can find the entire piece at WashingtonPost.com, as I have reposted only a part of it below.

The emphasis on counting civilian casualties ends up helping the Islamic State
by Rachel E. VanLandingham and Geoffrey S. Corn
September 7, 2016
WashingtonPost.com

This emphasis on precise, casualty-averse warfare may be distorting the public’s understanding of war and law. The public accounting of every allegation of coalition-caused civilian casualties on the Islamic State battlefield, and the outcome of every civilian casualty investigation, is conditioning both domestic and international audiences to expect that international law demands analogously low levels of civilian casualties in all wars and that this level can be met while successfully prosecuting the conflict. This is wrong. It is also dangerous.

* * *

The Pentagon should accompany its transparency initiatives with a much stronger reminder that the law of war often, even if unfortunately, permits civilian casualties when necessary to accomplish legitimate military objectives. And that it is almost always the Islamic State’s fault, not the coalition’s, when such casualties are inflicted. In an asymmetric war against an enemy that violates the law by hiding and fighting among civilians, these casualties are frequently a calculated price of attacks aimed at destroying enemy fighters and other military targets.

That is, civilian casualties often are the product of strikes conducted despite the knowledge that civilians are likely to be harmed. As long as coalition forces ensure that the law of war’s yardsticks are met — that the military advantage to be gained by a strike outweighs the potential harm to civilians, and that reasonable care has been taken in choice of weapons and tactics to minimize the effect on civilians — civilians may, and unfortunately will often be, killed and injured. That is the horrible essence of modern, lawful war, and a burden that our young warriors carry into battle. But the responsibility for the vast majority of this suffering lies at the feet of the illicit enemy.

Confusion regarding the law of war only incentivizes the Islamic State and similar groups to continue their illegal methods of fighting among civilians. In this vein, if the Pentagon continues to over-emphasize the rarity of civilian casualties during coalition airstrikes, it risks sending potentially delegitimizing shockwaves once airstrikes are used in close air support of ground forces retaking cities and villages, in which the Islamic State’s use of human shields and other illegal tactics will almost inevitably result in much higher civilian casualty numbers.

Read the entire original article HERE.

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DOD 2nd Revision to Law of War Manual

by Travis Normand
December 28, 2016

The Defense Department recently published a new revision to its Law of War manual. This is only the second time the document has been changed since its initial release in 2015.

The first set of revisions focused on journalists and altered some language in order to provide greater protection to reporters working in “war” zones. This second/newest set of revisions attempts to provide more clarity on how the Defense Department views laws concerning human shields and civilians working on military objects.

For the best coverage on the newly revised Law of War manual, I would suggest visiting JustSecurity.org as they have read, digested, and written extensively on the changes to the manual.

While I would suggest reading everything JustSecurity.org has published on the topic, I understand that your time may be limited, so I am listing some of the best postings they have to offer:

  1. How to Read the Department of Defense’s Revised Law of War Manual, by Ryan Goodman, December 22, 2016, JustSecurity.org, found here: https://www.justsecurity.org/35786/read-department-defenses-revised-law-war-manual/
  2. Initial Observations on the Law of War Manual Revision: “Three ups/Three downs,” by Geoffrey S. Corn, December 14, 2016, JustSecurity.org, found here: https://www.justsecurity.org/35531/initial-observations-law-war-manual-revision-three-upsthree-downs/

You can download a copy of the Department of Defense Law of War Manual, June 2015 (Updated December 2016) version HERE.

 

Expanding the Reach of the 2001 AUMF

by Travis Normand
December 28, 2016

The following article was posted about a month ago at NYTimes.com. It explains that the Obama administration has expanded its reading/interpretation of the 2001 AUMF to include Shabab in Somalia.

While some are critical of this move by the administration, it is always interesting to me to see how Congress will react and if they will step-in and say that such an interpretation of their 2001 AUMF (Congressional Authorization) is incorrect or too expansive. Or, will Congress sit back and do nothing, giving the implied authorization that such a reading is correct?

Either way, you can rest assured that the President will take the heat for having such an expansive reading, while few will blame Congress for staying silent on the issue.

I have not reposted the entire article below. I have merely reposted the parts that I found most poignant (emphasis added). To read the entire article, please visit NYTimes.com.

Obama Expands War With Al Qaeda to Include Shabab in Somalia
By Charlie Savage, Eric Schmmitt and Mark Mazzetti
November 27, 2016
NYTimes.com

WASHINGTON — The escalating American military engagement in Somalia has led the Obama administration to expand the legal scope of the war against Al Qaeda, a move that will strengthen President-elect Donald J. Trump’s authority to combat thousands of Islamist fighters in the chaotic Horn of Africa nation.

The administration has decided to deem the Shabab, the Islamist militant group in Somalia, to be part of the armed conflict that Congress authorized against the perpetrators of the Sept. 11, 2001, terrorist attacks, according to senior American officials. The move is intended to shore up the legal basis for an intensifying campaign of airstrikes and other counterterrorism operations, carried out largely in support of African Union and Somali government forces.

The executive branch’s stretching of the 2001 war authorization against the original Al Qaeda to cover other Islamist groups in countries far from Afghanistan — even ones, like the Shabab, that did not exist at the time — has prompted recurring objections from some legal and foreign policy experts.

The Shabab decision is expected to be publicly disclosed next month in a letter to Congress listing global deployments. It is part of the Obama administration’s pattern of relaxing various self-imposed rules for airstrikes against Islamist militants as it tries to help its partner forces in several conflicts.

* * *

Later in the summer, the administration deemed Surt, Libya, an “area of active hostilities,” after the Libyan prime minister asked for assistance in dislodging Islamic State militants from that city. The move exempted the area from 2013 rules that restrict drone strikes and other counterterrorism operations away from battlefield zones, which President Obama had announced in a major speech that year that sought to turn a page in the long-running war against Al Qaeda.

As of last week, the Pentagon had carried out 420 airstrikes against militants in Surt since August.

In Somalia, the 2013 rules limiting airstrikes away from “areas of active hostilities” still apply for now. But in practice, restrictions are being eased there in another way: Over the past year, the military has routinely invoked a built-in exception to those rules for airstrikes taken in “self-defense,” which can include strikes to help foreign partners even when Americans are not at direct risk.

* * *

Continue reading

Launch of the updated Commentary on the First Geneva Convention

by Travis Normand

On 22 March 2016, 09:00-10:30 am, the ICRC is convening a Panel for the Launch of the Updated Commentary on the First Geneva Convention. This livestreamed event will offer the Commentaries’ perspective on key humanitarian issues while showing their practical utility on the ground. The event is part of the Conference Cycle on “Generating Respect for the Law”, which aims at reasserting the importance of IHL and the prevention of violations.

Click HERE for an article about the updated commentaries titled:  “Updated commentaries bring fresh insights on continued relevance of Geneva Conventions.

Click HERE for the updated commentaries to Geneva Convention I.

Why the LOAC is so important

by Travis Normand

This article appeared in The Jerusalem Post on 5 May 2015.  The first paragraph includes a quote by Israel’s Defense Minister Moshe Ya’alon that captures one of the many reasons why it is so important for us to have, and follow, the law of armed conflict.

After all the controversy and war crimes allegations following last summer’s Gaza war, Defense Minister Moshe Ya’alon said Tuesday that “I can still look at myself in the mirror.”

Ya’alon was speaking at a Shurat Hadin – Israel Law Center conference in Jerusalem, where he addressed the hot-button issues of lawfare, the Boycott, Divestment and Sanctions campaign, and general efforts to delegitimize Israel.

Following the LOAC allows those who engage in combat (whether it be soldiers, commanders, administrators, and/or executives) to walk away from such armed conflicts knowing that they followed the law and that they did the right thing.

New from the ICRC

by Travis Normand

Two new features on the ICRC’s website.

While “How Does Law Protect in War? Online” contains a wealth of resources, references and cases supporting IHL teaching and is mainly aimed at academics, researchers and students, the “Online Training Centre” features e-learning modules on key principles of humanitarian law in eight steps, as well as two modules on the protection of the medical mission available free of charge to those seeking to develop their knowledge of IHL.

These two learning platforms are part of the ICRC’s efforts to revolutionize the way IHL is being taught and promoted. Indeed, humanitarian law is now more accessible and engaging than ever. In addition, these two platforms will be regularly updated. While new case studies allowing professors to ground their teaching in contemporary practice will be added each month to the platform, new modules will also be designed for the Online Training Centre, such as two foreseen modules on sexual violence in armed conflicts and on fundamental humanitarian principles.

The Task Force on US Drone Policy Releases its Report

By Jessica Poarch Hernandez

This morning a panel of intelligence experts released “Recommendations and Report of The Task Force on US Drone Policy” which reviews the risk and benefits of current US drone policy.

The panel made the following eight recomendations:

  1. Conduct a rigorous strategic review and cost-benefit analysis of the role of lethal UAVs in targeted counterterrorism strikes to evaluate the impact of past UAV strikes on terrorist organizations, affected communities, public opinion, litigation, defense policy and government cooperation with allies and partner nations.
  2. Improve transparency in targeted UAV strikes: as a general principle, the United States should acknowledge the use of lethal force in foreign countries both to Congress and to the American public. While secrecy may be required before and during each strike, strikes generally should be acknowledged by the United States after the fact. The president should publicly release information on: the approximate number and general location of targeted UAV strikes; the number of individuals known to have been killed and their organizational affiliations; the number and identities of any civilians known to be killed, and the approximate number of strikes carried out by the military versus the CIA. The president should also order the preparation and public release of a detailed report explaining the legal basis under domestic and international law for the United States conducting targeted killings.
  3. Transfer general responsibility for carrying out lethal UAV strikes from the CIA to the military. While rare exceptions may be warranted, as a general principle, the military should be the entity responsible for the use of lethal force outside the United States, while the CIA should focus on intelligence collection and analysis.
  4. Develop more robust oversight and accountability mechanisms for targeted strikes outside of traditional battlefields. The president should, by executive order, create a nonpartisan, independent commission to review lethal UAV policy. Members of this independent commission should be selected with a view to ensuring credibility and diversity of background. The commission should not be directly involved in the pre-strike approval process, but should be tasked with reviewing the overall policy and approval process for the use of lethal UAV strikes (both military and CIA); unclassified versions of the commission’s reports to the president and Congress should be released publicly. Continue reading

70 Years ago today: June 6, 1944 – June 6, 2014

by Travis Normand

Normandy - June 6, 1944

June 6, 2014 – It has been seventy years since June 6, 1944.

No single day of World War II was more important in turning the tide against the Nazis. Unfortunately, this came at great cost to American and Allied troops, as more than 4,400 servicemen died.

[Foreign Affairs] Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones

by Jessica Poarch Hernandez

On 16 August, Foreign Affairs posted an article by Martin Libicki entitled “Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones” which I think is an interesting counterpoint to some of the other articles considered on this blog. Essentially, the article argues that instead of spending time worrying about how to respond to Cyberattacks, we should spend time discouraging and finding ways to prevent them. The author points out that, “Although the risk of a debilitating cyberattack is real, the perception of that risk is far greater than it actually is. No person has ever died from a cyberattack, and only one alleged cyberattack has ever crippled a piece of critical infrastructure, causing a series of local power outages in Brazil. In fact, a major cyberattack of the kind intelligence officials fear has not taken place in the 21 years since the Internet became accessible to the public.” He then argues that the responding to cyberattacks, especially with conventional warfare, risks escalating the conflict to the point of a war which nobody wanted. He concludes that, “The United States can best mitigate the risks of cyberwar by adopting technical and political measures to discourage cyberattacks before they happen.”

The author’s  conclusion, in my mind, is logical and, should we take his approach,I believe it would be a good use of our time and resources but I question the wisdom of discounting the “cyberhype” altogether. Now is the time to prepare and determine the rules for responding to major cyberattacks, both by cyber-means and kinetic means. If the unlikely happens we should have a response on hand that has been reasoned out before hand and prevents an unnecessary waste of time or resources.