La dynamique avocate Nitsana Darshan-Leitner.
(photo credit: SHOURAT HADIN)
The Jerusalem Post spoke this week to three top experts on the law of armed conflict who will be among a plethora of other experts speaking and debating thorny issues at Shurat Hadin’s upcoming conference – “Toward a New Law of War.”
The experts, Col. (res.) Richard Kemp, former British commander of forces in Afghanistan, Professor Chris Jenks, a former US JAG officer and Professor Rachel Vanlandingham, a former US Air Force lawyer, presented a variety of views to the Post on cutting-edge issues under debate about how the law of armed conflict should evolve as Western armies find themselves fighting more asymmetrical conflicts against non-state actors who ignore or abuse those same laws.
Kemp said there are “many persuasive arguments” why change should happen with the law of armed conflict or at least how it is interpreted.
He added, “the laws of war were designed a long time ago, when the nature warfare was very different.”
The British commander continued that the “type of war” Western armies face from non-state armed groups like Hamas, the Taliban, al-Qaida and ISIS “had not fully developed in the direction it has now.”
Kemp said it is “more complicated dealing with an enemy that don’t adhere to the law of armed conflict” which he said was essentially routine with non-state actors.
Next, Kemp said it can be “quite hard to get soldiers to follow the laws of armed conflict any way, when they are in danger, seeing their mates getting killed and blown to pieces.”
“But add in an enemy that goes deliberately against those laws, it is even harder for them to understand why they need to adhere and to ensure they do,” said Kemp.
The second issue Kemp addressed was conflicts being fought among the civilian population.
He noted that “Gaza is one of the worst examples, since it is quite densely packed, making it an even greater challenge than Afghanistan,” particularly since in Afghanistan there was “no immediate danger” to British civilians whereas Israeli civilians have been under rocket fire in all of the Gaza wars.
Jenks said he will make points at the conference about whether “the proportionality rule has either been seen as working or not,” noting that parties views on what is "working is of course relative,” in reference to military commanders primary focus on winning battles versus human rights groups primary focus on protecting civilians.
He said he would “ask how exactly the proportionality rule from Article 51 [of Protocol 1 of the Geneva Conventions] has migrated from international to non-international armed conflict.”
Jenks continued, “With most international armed conflict rules you can claim that applying them in non-international armed conflict supports the broader function of the law to protect civilians. But I'm not sure of proportionality, which is predicated on international armed conflict, where I think we, in general, accept a lot more damage and destruction. So I question whether applying a damage ceiling from international armed conflict to non-international armed conflict serves much of a protective function.”
Vanlandingham addressed an entire different side of the issue in the changing laws of war, critiquing some changes being pushed by human rights groups.
“Whether or not a ‘new’ law of war is desirable is irrelevant; it’s coming, and in the front seat of that engine of change are various human rights groups (and in some instances the ICRC) that believe international human rights law should be better incorporated into the law of armed conflict (as well as juridical bodies such as the European Court of Human Rights),” said Vanlandingham.
She added, “Their emphasis on the humanity prong of the humanity–military necessity fulcrum of the law of war at times threatens to unbalance the efficacy of the legal architecture itself>’
The former Air Force lawyer continued, “this incorporation process must be appropriately moderated if not opposed outright, in certain areas, with appropriate emphasis and clarity regarding the military necessity prong.”
On the flip side, Vanlandingham said that those pushing for more aggressive changes to the law of armed conflict by incorporating ideas about “terrorism” directly into the laws should be careful.
She said that “interjecting terrorists to delegitimize” the current laws “starts to mix apples and oranges, and subconsciously or overtly” leads to calls for reducing civilians and combatants rights to too low a level.
Saying the “laws don’t work at all” can help “create a monster,” she said, adding that the IDF and others have “been at the forefront” of showing that the current law of armed conflict can work if updated and properly interpreted in light of fighting non-state actors and their asymmetrical tactics.The conference
will take place at the Dan Hotel in Jerusalem on May 4-5 next week and will boast Defense Minister Moshe Ya’alon, former IDF chief-of-staff Lt. Gen. (res.) Benny Ganz and others.