A who’s who of top army lawyers and academics from around the world on Tuesday
discussed how to keep international law relevant to the complex battlefield
scenarios of the 21st century.
The discussion, part of the
Counter-Terrorism Conference at the Interdisciplinary Center, Herzliya, focused
on a new trend known as “the operationalization of law” regarding
Explaining this trend, US Lt.-Gen. (ret.) Michael Barbero, a former
top commander and adviser to famed US commander David Petraeus in Iraq, said
that “it is not enough for the rules of international humanitarian law to be
practical; they must be relevant.”
He added that the US and other Western
nations now faced a “new reality of asymmetric warfare” in which non-state
actors and terrorists broke and abused all of the traditional rules of war, via
tactics such as suicide bombings and using civilians as human shields on a large
Barbero noted that one of his subordinate commanders had
complained to him that even those trying to understand the dilemma usually did
not fully understand, since they framed the problem as how to deal with
“civilians on the battlefield” – when really the dilemma was “civilians are the
battlefield,” meaning that an entire battle could take place in an urban
environment filled with civilians.
The speakers at the event included top
US and Belgian army lawyers with real world experience in approving targeting
decisions, as well as the head of the International Red Cross for Israel and the
Palestinians, and top US, European and Israeli academics.
to fully understand the problems that asymmetrical warfare presents, the
speakers said, “operationalization” is about dealing with realities that
commanders confront on the ground.
Instead of taking the “theory of the
ivory tower” approach to international law, which is removed from difficulties
in the field, the participants addressed the nuts and bolts of targeting
decisions that are integral to how commanders view the military operations they
For example, some human rights advocates have claimed that
sometimes an attacker who has precisionguided munitions (PGM) must use them,
rather than less exact weaponry, so as to reduce civilian
Some participants hit back at this idea, noting that there
may be a limited number of PGMs, and it may be necessary to save the PGMs for a
later and more critical battle or a later situation in which a larger volume of
civilians may be in danger.
A top Belgian army lawyer, Lt.-Col. Chris De
Cock, criticized the position of some human rights groups that where adversaries
can be intercepted off the battlefield, there is an obligation to capture them
as opposed to killing them.
“If you’re an enemy combatant, then that is
bad luck – you can be targeted from the beginning of a conflict to the end,”
even if intercepted off the battlefield, he said.
In a surprising
presentation, the ICRC’s Anton Camen said there was “no indication in the law as
to when harm to civilian casualties becomes excessive,” and that it was
“possible that numerous civilian casualties might not be excessive when the
military goal is important.”
The statement was unusual, as many academics
and human rights groups – the side of the debate where the ICRC usually finds
itself – often make definitive statements about the point at which civilian
casualties are excessive, and generally imply that a large number of casualties
is nearly inherently excessive.
But some of the debate points followed
standard patterns, with some participants arguing over how to judge issues like
civilian casualties, military advantage and proportionality in war.
those trending toward the “operationalization” of law tend to say that civilian
casualties and targeting decisions could be justified in light of achieving an
overall mission over time, those focused more on protecting civilians say that
each targeting decision must be justifiable on its own terms without reference
to how it might impact an overall mission down the road.
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