Rule of Law: The Architect

The primary brain behind one of most important law of war documents in decades talks about ‘human shields,’ law vs policy, and US-Israel dilemmas in fighting asymmetric terror adversaries.

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November 21, 2015 09:06
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Israel US flags. (photo credit: REUTERS)

 
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Silence.

Since 1956, there has been a deafening silence by the US Department of Defense regarding publishing its views on the laws of war.

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And rarely does a government’s top expert for targeting break that silence to discuss perspectives on the key legal dilemmas of the time.

But that is just what happened when US Department of Defense official Charles Allen came to Israel this past week for a conference organized by Hebrew University’s Minerva Center and the International Committee for the Red Cross.

After the conference, Allen – also an avid Washington Nationals fan, fantasy football participant and churchgoer at his local Presbyterian Church – sat down for an exclusive interview with The Jerusalem Post.

Much of the discussion was off the record, due to the sensitivity of the issues, as top officials like Allen cannot comment on specific military operations. Hence, much of what follows is this writer’s impressions.

The main impetus for breaking the silence was the Defense Department’s publishing this summer of its first manual on the laws of war in 59 years.

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That’s right. Although various branches of the US armed forces have published manuals over the years to keep up with developments in the laws of war, especially since September 11, 2001, the US Department of Defense has not set out its views since 1956.

Fast-forward to this past summer.

The manual was the result of years of work and is a product of Allen’s decades of dealing with laws of war issues, the last 15 as the Defense Department’s top lawyer on those issues (covering both the Bush and Obama administrations). Along with a wide-ranging team of experts across US cabinet offices which he led (a top International Committee of the Red Cross official dubbed him “the architect”), he put out a nearly 1200-page document.

On record, Allen told the Post it clear that “the manual’s purpose is to provide information on the law of war to US military personnel responsible for implementing the law of war and executing military operations. It provides legal rules, principles and discussion, particularly with respect to DoD [Department of Defense] practice,” he said.

However, the manual “is not a ‘cookbook’ or in any way a substitute for the careful practice of law. As specific legal issues arise, legal advisers must consider relevant law, including international humanitarian law, and policy and of course must apply the law to the specific factual circumstances,” stated Allen.

In a public speech on Sunday at the conference, Allen emphasized the extreme difficulties and effort that went into producing the manual with unending rounds of consultation (though he was very positive about the cross-government advice he received.)

In fact, Allen stated that one of the most impressive things about the manual was simply that it was finally published, despite the odds and redtape.  .

The manual quickly took the law-of-war world, and even some of the broader national and international media, by storm.

Until now though, the storm, certainly in the media, has been anything but complimentary - though in some serious academic circles it has gotten greater support, with posts both pro and con on important blogs like Just Security.

Probably the low point for the manual from the Defense Department’s perspective was a campaign by the New York Times editorial board and many other media publications to get Allen and the Defense Department to immediately revise a two page section on journalists or be tarred and feathered as having started an onslaught on freedom of the press.

Allen publicly admitted at Sunday’s conference that even as he stands by the law put forward by the manual, that the wording of the manual could have been clearer to avoid controversy.

He said he expects that there will be rewording of the manual on the journalists section in the manual’s first updates.

In private discussions with the Post, it appeared that Allen thought this rewording would occur within a year at the latest and maybe before.

Why has the manual been under such strong attack?

Many government and military manuals are not made public, either for secrecy reasons or because the manuals really are targeted at knowledgeable law of war practitioners.

The journalist issue is a case in point.

Many media publications took the manual’s mentioning of potentially treating certain journalists as spies as a potential sea change in the US’s treatment of the press in war zones.

And as mentioned, it appears that the Defense Department internalized the criticism and will reword the section.

But why only rewording and not a change in the legal principles?

If one carefully reads the full section and relevant cross-references on journalists and understands the relationship in law between the general rule and the exception, the way a law of war expert would, probably the clearest reading is that the only situation where a journalist would be declared a spy would be if they provided privileged information to the “enemy.”

Allen seemingly acknowledged that a key ambiguity that has alarmed many non-lawyers who might not have the same perspective and even some lawyers, and which the Defense Department would probably be wise to address, is the issue of journalist’s misleading the armed forces.

For better or worse, sometimes journalists get their best scoops by saying they are someone they are not or by claiming to have an approval to enter a restricted area despite lacking the said approval.

In the vast majority of these situations, there is no nefarious purpose and often even a genuine commitment to the public interest to reveal important truths or even blow the whistle on an injustice.

Such journalists may even win awards.

Even in less positive cases, they at most might lose their press privileges to cover a specific area, but there would be no basis for a crime, let alone a charge of spying.

The manual would probably do well to clarify explicitly, and without a need to do careful cross-referencing, that such journalists will not be prosecuted, even if the government may not be a fan of such conduct.

Privately, there were indications that clarifying this distinction could very well be part of the direction that Allen and his team could take.

Those framing the manual may not have fully understood the gap perception issue they could have by placing it online, although as Allen said, posting it online was a goal from the beginning, and clearly a laudable one in advancing transparency.

But back to Allen's Israel trip.

Getting to the bottom-line, why does Israel care about this manual, as historic and comprehensive as it is, and why does it care what Allen thinks?

First of all, it absolutely cares – and that is just a fact.

The why has many layers, but a big piece of it is that Israel’s Magistrate Advocate General tries extremely hard to track US military practice, especially on controversial law of war issues where Israel might face criticism for its tactics.

Tracking US practice is not an impenetrable wall against criticism.

But it makes it much more difficult to isolate Israel’s military actions as that of a rogue state or outlier.

One issue that has already sparked fiery debate among law of war experts is whether the Israeli military’s analysis of whether it is legal to strike a target, particularly with regard to whether an attack is proportional, may get wider slack because its civilians face immediate danger simultaneously to its soldiers facing danger.

In other words, the argument goes that when US forces fight the Taliban in Afghanistan, they may be concerned for their own force protection, but the Taliban cannot simultaneously endanger US civilians on the mainland thousands of miles away.

In contrast, when an Israeli commander decides whether to strike a Hamas rocket-firer in Gaza, his concern is not only his own force protection, but that refraining from striking the rocket-firer could immediately endanger Israeli civilians in Tel Aviv.

While Allen could not comment on specific military operations and would not present himself as an expert on the Israeli military context, he said, “As reflected in the US Department of Defense Law of War Manual, a military could, of course, consider the expected advantage of removing threats to its civilian population when planning whether to conduct an attack during armed conflict.”

He continued, “Although such decisions always depend on the facts presented and the information available, the need to protect the civilian population certainly can be a legitimate justification for conducting an attack.”

Trying hard to express the nuance of the manual’s views, he added, “However, it would also be necessary to consider possible harm to civilians incidental to an attack on a military objective in assessing possible collateral damage.”

Reading between the lines and without commenting on specific operations, Allen had strong personal sympathy with the perspective that Israel’s unique context - of its citizens facing imminent danger while its military fights nearby adversaries that fire on civilians – could be a factor in assessing proportionality that the US does not wrestle with as much.

However, every view that sounded more permissive toward using force, Allen qualified. He regularly reminded the Post that a major purpose of publishing the manual was to save lives, preserve the law, increase humanity and reduce tragedy in the sometimes inevitable horrors and fog of war. 

Some of Allen’s sensitivity to humanitarian concerns and the tragedies of war date back to papers he wrote years ago on starvation and relief as well as a nephew who was blinded in 2011 by an IED attack.

One accusation that Israel has faced has been that its investigations of its own soldiers’ alleged war crimes from the 2014 Gaza war have taken too long.

In September, Israel’s Ciechanover Commission, named for former foreign ministry director-general Joseph Ciechanover, came out with a report suggesting that typical decisions on opening investigations occur within 14 weeks, with decisions on whether to file indictments in the most extreme and complex cases having a maximum deadline of 21 months.

Allen again could not comment on specific cases and would not claim expertise in this area, but he did not appear knocked out of his chair by the numbers, which some in the human rights community have seen as controversial.

That view is one which Israelis care a great deal about and reflects a common sentiment by many law of war experts in the US, though certainly not remotely by all and is a minority view globally.

But Allen and the manual’s contribution and impact globally and on Israel are far broader than these highly specific issues.

They go to the root of dilemmas that all Western-style armed forces are confronting post 9/11 when fighting asymmetric foes. Asymmetric foes here mean those like the Taliban, Hamas or ISIS, who systematically and purposefully abuse the laws of war to try to gain an upper hand against the stronger Western powers.

Experts on the laws of war are hotly debating the manual’s view of how to deal with cases of human shields. And the conversation has gotten more nuanced with differing views about whether human shields as a category can be divided into voluntary and involuntary human shields.

Some even take the view that all human shields are involuntary on some level while others say that once someone is a voluntary human shield, they actually could become someone who is “directly participating in hostilities” even if they are not executing an offensive move.

While Allen could not come out and directly say it, his sympathies seemed to be with the view that terrorist groups abusing the laws of war by using human shields should not always get away with avoiding attack simply because they had placed their own civilians in harm’s way to cynically exploit Western morality.

At the same time, echoing a major speech by US President Barack Obama, there were strong indications from Allen that, depending on the circumstances, there could be many cases where either the law or policy and general morality concerns going above the law, could lead to refraining from a strike because human shields were involved.

Another major issue of debate surrounding the new manual is its implications for best practices in target selection, and how far a military must go to avoid collateral civilian casualties beyond human shields, where its adversary illegally endangers its own civilian population as a tactic.

In other words, the West’s asymmetric adversaries will often intentionally fight from civilian locations like residences, schools, hospitals and mosques so that the Western commanders must grapple with a heightened possibility that returning fire could kill nearby civilians in sensitive areas.

How much heat must Israel and Western militaries take before they can shoot back at an adversary intentionally fighting among its own civilians?

In struggling with these general dilemmas, Allen said, “Legal commentators frequently use the truism that ‘the law of war is not a suicide pact.’  Former US Department of Defense General Counsel Stephen Preston made a similar point in the foreword of the new DoD Law of War Manual.  He noted that ‘the law of war poses no obstacle to fighting well and prevailing because nations developed the law of war to be fundamentally consistent with the military doctrines that are the basis for effective combat operations.’”

Part of the debate about target selection, leads into a debate about the manual’s view on whether and when it is permitted to target “war-sustaining” objects.

One school of thought widely opposes an aggressive stance toward targeting war sustaining objects, which strictly speaking is usually a debate about targeting economic objects whose destruction would damage an adversary’s ability to continue fighting, but do not directly relate to fighting.

Those opposing see this kind of targeting as being too broad and it has been rejected in some manuals.

Also, in broader conversations, the Post has noted those who believe targeting war-sustaining objects is permitted are also more likely to endorse striking munitions and arms as proportional even where there could be collateral harm to civilians.

In contrast, groups like the ICRC are more likely to oppose or place stricter conditions on striking such targets if civilians could be collaterally harmed.

The rationale for the opposition is that even if these objects could be targeted in the abstract, striking them rarely presents an important enough military advantage to override collateral damage to civilians.

Regarding the war-sustaining issue, Allen stated, “The United States has interpreted ‘military objective’ to include in some cases objects that make an effective contribution to the war-fighting or war-sustaining capability of an opposing force.  The object must make or be intended to make an effective contribution to military action; the contribution, however, need not be direct or proximate.”

Told of a spectrum of scenarios Israel faced of Hamas mixing its arms, commanders and command centers in with civilian residences, Allen raised the manual’s view on war-sustaining objects.

It appeared that Allen was not shocked by some decisions Israel has made for which it has taken some criticism, while not endorsing any specific military operations.

Returning to the theme that the manual is not a cookbook and the mix between law and policy, Allen got deep into an issue where Israel, and often the US, butt heads with their human rights groups and academic critics.

Regarding the separate categories of law and policy, Allen stated, “Law and policy play important but different roles in the execution of military operations.  During war, States must obviously abide by their law of war obligations; failing to do so would seriously undermine any prospect of legitimacy. But, as President Obama stated in his speech at the National Defense University on May 23, 2013, ‘[t]o say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance.’”

In his careful distinctions, Allen seemed concerned about the dangers in mixing law and policy which many may be running into in some of their critiques.

There has been hot debate about the summer UNHRC report by Mary McGowan-Davis on the 2014 Gaza war. There she set out the view that essentially Israel, even giving it the benefit of the doubt, had an obligation to adjust its tactics weeks into the war, especially the use of artillery in an urban setting.

The basis of her view was that after the early weeks, it was clear that Israel’s parameters for using artillery were leading to many unexpected civilian casualties.

McGowan-David argued that as the war dragged on, even reaching 50 days, failure to change those parameters, made it less able to claim casualties were unexpected.

While she has significant support globally. some experts have said that even if McGowan-Davis’ view was logical, that it could be questionable if it was cast as a legal obligation and that mixing law with what might be a wise policy move could risk taking away legitimate tools a country has to prosecute an armed conflict – a view which Allen appeared to respect.

One area where Allen was very sensitive both in his public appearance and in private was the manual’s cyber section – particularly when conference attendees and the Post raised the manual’s differences with the major cyber treatise the Tallinn Manual (and that the Tallinn Manual was not cited.)

Allen responded that, “The Tallinn Manual and similar academic works help advance new thinking about the application of international law to novel contexts. The US Department of Defense Law of War Manual, however, is focused on providing U.S. military lawyers official, authoritative legal guidance applicable to the Department of Defense."

That said, Allen told the Post and the conference that the Tallinn Manual would be cited in some fashion when the Defense Department’s manual is updated.

Publicly, Allen explained that the Tallinn Manual had not been vetted by the Defense Department whereas, a speech by former top US State Department legal official Harold Koh had been vetted and was used more as a reference for the manual’s cyber section.

Privately, there were indications that Allen recognized some world-view differences in conceptualizing self-defense as impacting what he appeared to agree were the Defense Department manual’s somewhat more flexible approach than the Tallinn Manual regarding when a country could respond to a cyber attack.

Returning to his mantra of presenting the manual’s importance, Allen stated, “Israel and other nations that are currently engaged in armed conflicts against terrorist and non-State armed groups face complex and ever-evolving threats to their security.”

He continued that although the manual “was written for use by the US military, I believe this manual can help our close friends such as Israel and other partner countries better understand US military views about legal obligations related to armed conflict.

"I was extremely pleased to have the opportunity to travel to Israel for this conference to share information about the manual,” concluded Allen.

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