The dispute between Defense Secretary Mark Esper and former Navy Secretary Richard V. Spencer may be at the forefront of the news cycle, but the real story is the corruption of military good order and discipline.
Geoffrey S. Corn is a Professor of Law at South Texas College of Law Houston in Houston, Texas, and Distinguished Fellow of the Gemunder Center for Defense and Strategy. Prior to joining the South Texas College of Law Houston faculty in 2005, Professor Corn served in the U.S. Army for 21 years as an officer, and a final year as s civilian legal advisor, retiring in the rank of Lieutenant Colonel. Professor Corn’s teaching and scholarship focuses on the law of armed conflict, national security law, criminal law and procedure, and prosecutorial ethics. He has appeared an expert witness at the Military Commission in Guantanamo, the International Criminal Tribunal for the Former Yugoslavia, and in federal court. He is the lead author of The Law of Armed Conflict: An Operational Perspective, and The Laws of War and the War on Terror, and National Security Law and Policy: a Student Treatise.
Subscribe to this Lawfare contributor via RSS.
The post below is the latest installment in Lawfare’s tradition of posting short pieces inspired by the annual Transatlantic Dialogues on International Law and Armed Conflict.
Human Rights Watch (HRW) recently released a report accusing both Hamas and the Israeli government of committing war crimes regarding an incident in May 2019. During these hostilities, the Israeli Defense Forces (IDF) struck 350 Hamas and Palestinian Islamic Jihad targets in Gaza after those groups launched roughly 690 rocket attacks into Israel. HRW’s report claims that both sides unlawfully attacked civilians during the hostilities.
The president announced on June 21 that he had called off a potential U.S. military strike on Iran in response to Iran’s shootdown of a U.S. Navy remotely piloted vehicle (RPV). The strike, according to the president, could have incurred casualties of as high as 150 people—information that has sparked discussion over the proportionality of such a response under international law. Before jumping to this debate, however, there is another issue that needs to be considered first: the question of necessity.
Politicians, trial lawyers and drafters of reports learn early on that framing an argument is central to the task of persuasion. And so it goes for the report by the U.N. Human Rights Council’s Commission of Inquiry (COI) on the border confrontation that occurred last spring between Israeli Defense Forces (IDF) and the tens of thousands of Gaza residents who sought to force their way into Israel by breaching the security barrier.
“No plan survives first contact with the enemy.” This axiom informs compliance with the law of armed conflict (LOAC) in combined arms maneuver: combat operations involving ground forces employing a range of capabilities to achieve an overarching “commander’s intent.” Ground maneuver combat is decentralized and dynamic, especially when dealing with an agile and adaptable enemy. LOAC’s application will often turn on factors such as available capabilities, the enemy’s strength and tactics, time for deliberation, and the speed of maneuver.
The recent confrontation at the Israel-Gaza border between thousands of Gazans and the Israeli Defense Forces (IDF) took a heavy human toll, raising concerns about excessive uses of force and complex issues of international law. The Israeli High Court of Justice declined to order modification of the IDF’s rules and procedures that dictate when, where and how its forces may employ lethal force.