Geoffrey Corn

Debates continue over the significance of reverberating effects of an attack during armed hostilities and how they implicate proportionality assessments. Some argue commanders bear an obligation to integrate consideration of such effects in their proportionality judgments; others argue that such effects are too speculative. But this debate reveals the vital role of process in attack judgments. That process will ideally provide commanders with information related to judgments that seek to ensure the balance between military necessity and humanity, relying on battle-staff experts working through a doctrinal process to filter and refine such information. In this chapter, we suggest a new staff principal: the civilian risk mitigation expert. Such an expert will contribute to expanding the commander’s aperture related to civilian risk considerations and better enable the commander to foresee and consider all attack effects, thereby enhancing both civilian protection and the legitimacy of attack judgments.

The lawful use of force in the exercise of individual or collective self-defense by states requires compliance with the universally recognized elements of necessity and proportionality. Both of these elements frame the justification of resorting to self-help action. These two elements of self-defense, while often treated as distinct requirements, may be better understood as integrated into the assessment of overall strategic justification, with proportionality defining whether the scope and duration of military action in self-defense is genuinely necessary to protect against the unlawful threat. Thus, there is logic in conceptualizing proportionality not as distinct from the necessity requirement but as an integral component of that requirement. Linking proportionality assessments to the necessity of acting in self-defense leads to a rational link between the threat requiring self-defense action and the strategic scope and duration of operations to protect against that unlawful threat. This will contribute to careful tailoring of self-defense military operations to the overall nature of that threat. Of equal importance, this strategic-oriented focus will ideally offset the temptation to judge jus ad bellum proportionality by applying jus in bello principles. If nothing else, greater emphasis on the important differences between these two variants of the international legal proportionality requirement will enhance the impact on each of these variants on the success and legitimacy of self-defense operations.

Understanding how air and missile warfare is planned, executed, and regulated requires more than just an understanding of relevant LOAC provisions. In U.S. practice (and that of many other countries), air and missile warfare is one piece of a broader operational mosaic of law and military doctrine related to the joint targeting process. Air and missile warfare is embedded within this broader targeting process. Accordingly, a genuine understanding of the law of air and missile warfare necessitates understanding how the LOAC influences and is integrated within this targeting process. How operational commanders select, attack, and assess potential targets and how the LOAC reflects the logic of military doctrine related to this process is therefore the objective of this Essay. To achieve this ‘objective’, the authors will focus on a recent decision by the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Gotovina. Although the military operation at the center to this case involved only limited use of air and missile warfare, the Tribunal’s extensive focus on the use of artillery and rocket attacks provides a useful and highly relevant illustration of why understanding the interrelationship between law and military doctrine is essential for the logical and credible development of the law. The author’s therefore seek to ‘exploit’ this case as an opportunity to expose the reader to this interrelationship, an interrelationship equally essential to the effective evolution of the law of air and missile warfare.

The Law of Armed Conflict: An Operational Approach covers all aspects of the law of armed conflict and explains the important difference between law and policy in regulation of military operations. Each author is a retired U.S. Army officer (more than 140 years of collective military operational experience) and a leading scholar in the field of international law and conflict regulation. To accomplish the authors’ objective, the book uses an operational scenario to provide the context necessary to develop a genuine understanding of the law.Based on Operation Iraqi Freedom, the 2003 U.S. and Coalition attack on Iraq, the scenario links all chapters together, and places students in the role of military and civilian legal advisors responsible for providing commanders and other operational decision-makers with legally-based opinions to support their missions. The text focuses primarily on the U.S. interpretation of this area of law, but also includes discussion of important areas of legal divergence between U.S. and major Coalition partners, as well as the perspectives drawn from the academic and non-governmental humanitarian communities, in order to expose students to the challenges these divergences can create for decision-makers and their legal advisors.https://scholar.smu.edu/facbooks/1048/thumbnail.jp

One significant aspect of the recent decision in Hamdan v. Rumsfeld was the applicability of the fundamentally fair trial requirement derived from the laws of war. A majority of the Court determined that the procedures established for the military commission violated the "regularly constituted tribunal" requirement of Common Article 3 of the Four Geneva Conventions of 1949. In a more controversial portion of the decision, a plurality of the Court relied on the procedural requirements established by Article 75 of Protocol I Additional to the Four Geneva Conventions to bolster this conclusion, even though President Reagan rejected that treaty as "fundamentally flawed." Ironically, an identical provision exists in Protocol II Additional to the Four Geneva Conventions, a treaty that both Presidents Reagan and Clinton have sought Senate advice and consent in order to ratify. Although textually inapplicable to armed conflicts occurring outside the territory of a contra...

Operating under responsible command is an essential requirement to qualify as a lawful combatant, and is also central to the doctrine of command responsibility. This reveals the inextricable link between the role of the commander and the effective implementation of the international humanitarian law (IHL). Understanding this linkage is vital to ensuring that commanders and other military leaders fulfil their obligation to prepare subordinates to navigate the chaos of mortal combat within the legal and by implication moral framework that IHL provides. Few commanders would question the proposition that responsible commanders prepare their military units to effectively perform their combat missions. However, operational effectiveness is only one aspect of developing a “responsible” command. Because this term is grounded in the expectation of IHL compliance, a truly responsible command exists only when the unit is prepared to execute its operational mission in a manner that fully compli...

We must fight the insurgents, and will use the tools at our disposal to both defeat the enemy and protect our forces. But we will not win based on the number of Taliban we kill, but instead on our ability to separate insurgents from the center of gravity –— the people. That means we must respect and protect the population from coercion and violence –— and operate in a manner which will win their support.

Compared with land and naval warfare, air and missile warfare is a reasonably recent phenomenon. Not unsurprisingly, therefore, the law that applies to air missile warfare draws on both of the other domains, either directly or indirectly, for relevant legal rules and principles. This chapter covers legal rules and principles which clearly apply to air and missile warfare and the manner of application is reasonably uncontroversial, a further group of rules and principles where there is significant agreement on broad application but not necessarily the specifics, and also those issues which remain areas of active controversy.

Operating under responsible command is an essential requirement to qualify as a lawful combatant, and is also central to the criminal accountability doctrine of command responsibility. This reveals the indelible link between the role of the commander and the effective implementation of the law of armed conflict. Understanding this linkage is vital to ensuring that commanders and other military leaders fulfill their obligation to prepare subordinates to navigate the chaos of mortal combat within the legal, and by implication, moral framework the LOAC provides. Few commanders would question the proposition that responsible commanders prepare their military units to effectively perform their combat missions. However, operational effectiveness is only one aspect of developing a “responsible” command. Because this term is grounded in the expectation of LOAC compliance, a truly responsible command exists only when the unit is prepared to execute its operational mission in a manner that fully complies with LOAC obligations. This broader conception of a disciplined military unit reflects the true nature of the concept of responsible command, as only military units built on this conception of discipline advance the complementary objectives of military effectiveness and humanitarian respect. Accordingly, the requirement that lawful combatants operate under responsible command is an admonition to all military leaders that truly effective military units are those capable of executing their missions with maximum operational effect within the framework of humanitarian constraint that defines the limits of justifiable violence during armed conflict.

For more than fifty years following the 1949 revision of the Geneva Conventions, the articles that defined when the protections of these treaties came into force - Common Articles 2 and 3 - were understood as the exclusive standard for determining application of the laws of war. From these two articles emerged an "either/or" law-applicability paradigm: inter-state, or international, armed conflicts triggered the full corpus of the laws of war; intra-state, or internal, armed conflicts triggered the limited humanitarian protection reflected in the terms of Common Article 3. The military response to the terrorist attacks of September 11, 2001 threw this paradigm into disarray. These events exposed the gap in legal regulation of armed conflict. Although the U.S. Supreme Court decision in Hamdan v. Rumsfeld rejected the Bush administration's reliance on this "either/or" law-triggering paradigm as a basis to deny the applicability of the humane treatment mandate to captured al Qaeda personnel, that decision did not address regulation of hostilities. It was, instead, the conflict between Israel and Hezbollah that exposed the unacceptable consequences of this gap in legal regulation. While numerous voices from the international community invoked law of war as a basis to condemn both parties, there was virtually no consideration of the reality that, like the global war on terror, the conflict defied traditional categorization under the Common Article 2/3 paradigm. This Article asserts that the changing nature of warfare necessitates recognition of a hybrid category of "transnational armed conflict." This category is based on the de facto existence of armed conflict, regardless of geographic scope. The such armed conflicts trigger for application of the foundational principles of the laws of war, and how such application is derived from the history of regulating warfare, the purposes of the Geneva Conventions, and the pragmatic logic that animated the adoption of national military policies mandating application of these principles to all military operations.

This article discusses critical operational, legal, and policy considerations related to the tactical military interrogation process. It proposes that a comprehensive understanding of these considerations is essential for the effective military legal oversight of interrogation operations.

War. Our nation was borne of war, and wars since the inception of our nation have in many ways defined us as a people. As the United States enters the tenth year of its longest war, our people should be reminded on a daily basis that the cost of such endeavors in blood and treasure requires careful deliberation on the decision to commit the nation to hostilities. However, as recently highlighted by U.S. Marine Corps Lieutenant General John Kelly (the only General officer to have lost a child in combat since September 11, 2001), Americans are increasingly attenuated from the consequence of war, with less than 1 percent of Americans serving in uniform. Kelly’s speech exposed the proverbial white elephant in our collective national room: the troubling inverse relationship between the duration of our most recent wars and the level public interest in them. While there are numerous plausible explanations for this phenomenon, this lack of meaningful public interest in warmaking endeavors calls into question the underlying assumptions that ostensibly lie at the core of our Founder’s vision that the will of the American people must always animate the political decision to ‘unleash the dogs of war.’ In short, the continued attenuation between the interests of the American electorate and the human, financial, and strategic consequences of war has enabled the political leadership of the nation to wage long-term and extremely expensive wars with increasingly little public scrutiny and even less public ‘skin in the game.’ The article will avoid value judgments on the wisdom of engaging in long-term military commitments, or the validity of the contemporary method of heavy reliance on implied congressional authorization for war, a method consistently validated by both inter-branch practice and periodic judicial decision. Instead, it will proceed on the premise that re-invigorating a connection between the people and the decision to engage in hostilities is not only consistent with our Founders vision of the American way of war, but is strategically beneficial for two reasons. First, it will limit the ability of the government to commit the nation to hostilities absent widespread popular support. By animating more significant popular interest in such decisions, such a re-invigoration will contribute to the probative significance of congressional silence or action, thereby enhancing the cooperation between the political branches. Second, when popular support exists and the nation does engage in military activities, it will increase the pressure on the political branches to ensure that war is effectively resourced and executed in order to achieve the national strategic objectives. In short, increasing popular involvement in war-making decisions will produce positive benefits irrespective of whether that involvement favors or disfavors the policy decisions of the nation’s leadership. Accordingly, I will propose a cure to reverse the ongoing dilution of the popular connection to war-making decisions: a constitutional amendment requiring that ten percent of the end strength of the armed forces always consist of conscripts. This “ten percent draft” will accommodate two competing interests. The first is to re-establish a meaningful connection between war-making decisions and the electorate. By creating a permanent risk of mandatory service by the nation’s young men and women, the potential human consequence of war will become far more palpable to the people than produced by the current self-selected consequence distribution resulting from the all-volunteer force. The second is to preserve the effectiveness of a primarily all-volunteer force. By limiting the required percentage of the force composed by conscription to ten percent, the proposal will be responsive to those who contend that a return to widespread conscription will diminish the validated effectiveness of the all-volunteer force.

Using the illustration of several U.S. Army soldiers who were captured by the Serbian armed forces along the Serbian/Macedonian border during Operation Allied Force (the air campaign by NATO against Serbia), this article analyzes the applicability of the Geneva Convention for the Protection of Prisoners of War to contemporary military operations. The article demonstrates that how the determination of "who is and is not" a prisoner of war requires compliance with the de facto analytical framework established by the Convention. The case of General Manuel Noriega is used as an example of the invalidity of policy manipulation of this framework. The article then summarizes the fundamental protections that must be afforded to any individual qualifying for status as a prisoner of war.

Core principles of the law of armed conflict provide vital regulation to the conduct of hostilities, seeking to balance the necessity of employing lethal and highly destructive combat power with the humanitarian interest of mitigating the risk to civilians and the suffering they must endure as the result of hostilities. Precautionary measures play a vital role in this balancing of interests and accordant civilian risk mitigation. International legal and policy discourse has not, however, always elevated the concept of precautionary measures to the same status as the core substantive principles that define targeting legality: distinction and proportionality. This risks undervaluing the significance of precautions and an accordant distortion of the interrelationship between all of these humanitarian risk mitigation principles. This is because precautionary measures are indelibly linked with these core substantive principles, and understanding the symbiotic relationship between precautions and these principles will ultimately enhance the effective implementation of the law itself. This article argues that precautionary measures should collectively be considered a principle equal in stature and significance to distinction and proportionality. It also asserts the need to broaden the conception of precautionary measures to include all measures that enhance the likelihood of compliance with the law during combat operations and civilian risk mitigation when armed forces employ combat power. Thus, the 'precautions principle' should be understood to include not only the measures commonly associated with the concept of precautions in the attack (such as warnings, timing considerations, and weapons selection), but also the process of law implementation: preparing commanders, staff officers, and military lawyers to conduct combat operations in accordance with legal obligations, and the process of integrating legal compliance within the battle command framework. This expansive conception of precautionary measures will ideally produce an effort to identify 'best practices' for these oft overlooked aspects of civilian risk mitigation, and ideally lead to an overall enhancement in the implementation of humanitarian obligations.

The ethical challenges confronting Military Commission prosecutors is indeed unique. Unlike the 'typical' stress associated with the prosecutors obligation to 'do justice', these prosecutors face a dilemma far more complex than the question of how far to push an evidentiary rule or whether to charge an offense unsupported by probable cause. Instead, they confront the ethical dilemma created by a potential conflict between the legitimacy of two conflicting sources of law: domestic and international. On a daily basis, they must reconcile the scope of criminal liability established by Congress in the Military Commissions Act with the scope of criminality derived from the law Congress purported to codify: the law of armed conflict. The potential delta between these two sources of law creates for them an ethical dilemma of massive proportion: What is the prosecutor’s duty when the law she is told to implement is itself of suspect legality? This article will explore the source of this dilemma, and propose that it is the law of armed conflict itself that provides the most effective test for determining when executing the law may itself be inconsistent with the ultimate obligation to 'do justice.'

Of the many controversial legal questions generated by the passage of the Military Commission Act of 2006, perhaps the most fundamental is that of jurisdiction. This question has lingered beneath the surface of the legitimacy of the use of these tribunals to try alleged al Qaeda operatives since they were first created by President Bush. Unfortunately - or for advocates of the use of these tribunals perhaps fortunately - the seminal challenge to the validity of the Military Commission, Hamdan v. Rumsfeld, was resolved in favor of the Petitioner without reaching this underlying question. However, the rapid response by Congress to provide a statutory foundation for resurrecting this means to try detainees associated with the Global War on Terror once again raises this difficult but critical question related to the legitimacy of such trials. This Essay will briefly address why this author believes the scope of jurisdiction established by the MCA exceeds the bounds of legitimate use of such tribunals.

The Study Group on the Conduct of Hostilities in the 21st Century (hereinafter the SG) was established in 2011 and conducted its first meeting in Sofia in 2012. It conducted a workshop in Leiden in November 2013. During this workshop, three general topics were explored. These were the relationship of International Humanitarian Law (IHL) and International Human Rights Law in the conduct of military operations, technological challenges posed by new weapons systems and the function of the basic principles of IHL in the conduct of hostilities. An interim report on these topics was published and presented at the April 2014 Washington D.C. joint meeting of the ILA and the American Society of International Law. These topics were discussed further at a subsequent workshop held in Berlin at the Freie Universitat in November of the same year. Attention was also devoted to the relationship of IHL with general international law and the place of IHL within the legal ‘pluriverse’ surrounding modern multinational military operations. The SG was unable to arrive at a consensus on a number of issues which arose, but the discussions were nevertheless extremely useful in highlighting some of the central questions related to the conduct of hostilities and focusing attention on the core area of the mandate; the legal challenges within IHL relating to the conduct of hostilities. It was decided in Berlin to refocus the work of the SG and the final report on those challenges and leave the broader questions of how IHL relates to other bodies of international law to further exploration in other forums.

The chapter emphasizes the value of precautionary measures for the effective protection of civilians from an IHL perspective. The author specifies the contents of the obligation to take precautions by providing details on the measures to be taken at the planning stage as well as the impact on soldiers’ training. He argues for the importance of strong and coherent processes that implement precautionary measures and illustrates that precautions need to be taken long before an actual attack is planned or executed. These long-term precautions and the processes with which they are implemented, it is argued, are as important as the more specific precautions that need to be taken in relation to each and every attack.

Comprehensive and accessible, NATIONAL SECURITY LAW is a guide to the legal foundations that support key national security powers: diplomatic, intelligence, military, economic, and criminal. The authors provide essential sources of national security law, including constitutional text, judicial opinions, statutes,, and policies. Suitable as either a supplement or a stand-alone text, it illustrates national security law principles through discussion of war powers, followed by treatments of topical issues.https://scholarship.law.nd.edu/law_books/1250/thumbnail.jp