Vanderbilt Journal of Transnational Law June Issue Offers Insights into Legal Complexities in Modern Warfare

By Scott Harman
Thursday, August 2, 2018, 11:38 AM

The Vanderbilt Journal of Transnational Law recently published a special issue on the law of armed conflict (LOAC). The publication is the culmination of a conference that brought together more than 100 practitioners and academics from over 20 countries and institutions. The articles published are authored by experts in the field and offer a unique insight on how high-ranking practitioners and academics approach complex issues. For Lawfare readers, particularly those in the modern warfare space, there are nearly 20 pieces of interest:

Knut Dörmann observes that both states and nonstate actors have pushed debates about interpretation and application of international humanitarian law forward. Dörmann takes special interest in the International Committee of the Red Cross and argues that its role—in the absence of interest in the field from government leaders—committee has become an indispensable force in in shaping global human rights law.

Sir Michael Wood addresses the U.N. International Law Commission’s recent report on identification of customary international law. Wood examines the commission’s conclusions on the methodology to identify customary international law; whether nonstate actors can contribute to the development of opinio juris; and whether the weight of a state’s interest in an issue should be considered when evaluating whether a practice should be considered customary international law.

Israel Defense Force Maj. Gen. Nitsan Alon contends that ground operations in urban areas are now essential features of conflict. But, Alon claims, urban areas present unique complexities. Alon examines a number of challenges of urban combat and then surveys how the IDF has adapted to demanding new conditions.

Professor Geoffrey S. Corn begins by asserting that reasonableness, above all else, is the touchstone of LOAC. He then considers how to properly assess whether military action was reasonable in different geographic, temporal, and tactical environments. He argues that, without proper context, it is impossible evaluate or criticize an attack’s compliance with LOAC.

Michael Meier and James Hill articulate how the Uniform Code of Military Justice can punish violations of the law of war, using a mistaken airstrike on a Doctors Without Borders facility as a case study. They examine how the strike revealed major inconsistencies among the Law of War, the UCMJ and the Geneva Conventions.

IDF Col. Noam Neuman surveys practices frequently used by major militaries including: masking, warning shots, breaching buildings, and the use of heavy machinery. Despite the ubiquitous acceptance that these practices enjoy, Neuman argues that it is not clear that they do not also violate the law of armed conflict.

Emanuela-Chiara Gillard argues for a broader understanding of the “proportionality” principle under LOAC in order to properly account for incidental effects of military action. Gillard asserts that more accurate calculations of the results of attacks lends greater legitimacy to a state’s decision to strike and more appropriately restrains the use of military force.

Professor Ian Henderson and Kate Reece debate the obligations military leaders have when evaluating military options. The authors identify steps that a “reasonable commander” would take before authorizing action. The piece also considers a commander’s obligation to take indirect consequences into account when authorizing the use of military force.

IDF Lt. Col. Roni Katzir enters the “proportionality” discussion and addresses a number of subtleties. He contemplates how to understand “excessiveness” from the perspective of a “reasonable military commander,” how “military advantage” is properly contextualized, and whether the existence of defensive systems alters the LOAC analysis.

Professor Michael A. Newton asserts that “ours is the era of proportionality.” Newton proceeds to examine the concept’s historical foundations and how scholars and practitioners have understood what it means for an attack to be “proportional.” Newton then claims that critics who argue proportionality is not a meaningful restraint fail to appreciate fully the current state of the law.

Gloria Gaggioli tackles questions that arise when governments target nonstate actors. Gaggioli asks what status violent nonstate actors have under international humanitarian law and what “membership” should mean for the purposes of targeting an individual. The piece also explains why Gaggioli believes that targeting procedures are inadequate and should be reformed to increase the evidence a state must present before it can target an individual.

Maj. Gen. Charles Dunlap discusses several issues that plague modern conflicts and how law-abiding militaries should adapt to address them. For example, Dunlap examines the rise of using human shields and how the media reports issues involving armed conflict. The piece concludes by briefly looking at possible options to address recurring challenges.

Brig. Gen. R. Patrick Huston focuses on developing a framework for the legality of attacking members of government forces, members of armed groups, and civilians who participate in hostilities. Huston argues that members of nonstate armed groups should not receive more protection than members of state militaries, and that this approach would be consistent with international law and reflects the realities of modern conflict.

IDF Col.. Eran Shamir-Borer confronts difficult hypotheticals at the limits of who can be targeted under the LOAC. He debates what constitutes “functional membership” in a state military, whether civilians involved in research and development are lawful targers, and whether financial or logistical support makes a civilian targetable.

Agnieszka Jachec-Neale considers whether states can lawfully target other states’ political leadership and the infrastructure they use. The piece discusses the targeting of commanders in chief, defense ministers, other members of government, and party leaders. Similarly, the physical object analysis begins with easily identified targets and works its way down to objects that are only loosely affiliated with political leadership.