Laurie R. Blank

The Application of IHL in the Goldstone Report: A Critical Commentary

Operation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law – otherwise known as the law of armed conflict or the law or war – faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.This article analyzes the Goldstone Report’s application of the law to the conduct of both parties in the conflict so as to examine whether the report applies the correct legal standards and interprets them appropriately within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report’s application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.First, I highlight the report’s flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.Second, the article highlights several areas in which the Goldstone Report’s application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.

Debates and Dichotomies: Exploring the Presumptions Underlying Contentions About the Geography of Armed Conflict

An examination of the growing literature on the topic of the geography of armed conflict suggests that the differences of opinion, between and among academics, policymakers and military lawyers, for example, are nearly intractable. Statements about the propriety of a certain target under the law of armed conflict are often met by pronouncements regarding the role of jus ad bellum in cabining the use of force in the territory of another state or the restrictive parameters of the international human rights/law enforcement regime for addressing individuals who pose a threat or danger to others. Indeed, one might easily conclude that the participants in these debates are simply operating in entirely separate analytical paradigms, leading to interesting and challenging intellectual discussions but not to productive conversations that advance the analysis and move beyond the debate to effective potential resolution of a complicated and multi-layered issue. However, unlike pornography or terrorism, where notwithstanding a myriad of different definitions, “you know it when you see it”, little agreement exists even on whether there is a specific, definable geography of armed conflict at all. To help move beyond this impasse, this article explores the presumptions underlying the ongoing debates regarding the geography of armed conflict, in an effort to untangle the debates and provide new opportunities and venues for discussion—and thus to help advance the development of the law of armed conflict and other relevant bodies of law. These presumptions appear in particular in four dichotomies that inherently help drive the debates but are brushed aside or not taken into consideration: law versus policy; authority versus obligation; territory versus threat; and submission of the collective enemy versus elimination of an individual threat. For each or any of these dichotomies, the lens through which one views the contrasting positions will then have a significant—if not determinative—effect on considerations and conclusions regarding questions of geography and the battlefield. As a result, recognizing these dichotomies and understanding how they impact the current discourse is critical to any effective conversation, whether in the academic or policy arenas.

The Extent of Self-Defense Against Terrorist Groups: For How Long and How Far?

The post-9/11 environment, in which states may use self-defense as an ongoing and overarching justification and construct for military operations, whether episodic or sustained in nature, against one or more non-state groups for more than fifteen years, poses challenges to the very concept of self-defense. In particular, the ongoing reliance on self-defense in locations and against groups not contemplated at the time of the initial incident triggering the right to self-defense raises essential questions about the extent of self-defense: how far can a state go when acting in self-defense — both in the geographical sense and in the sense of the legitimate aims of using force — and for how long does this right of self-defense last? In this era of extended campaigns against transnational terrorist groups, examination of such questions is essential to an understanding of self-defense and, therefore, an effective assessment of the legality of state action against such groups. This article explores the extent of self-defense, particularly in the context of a state using force in self-defense against one or more terrorist groups located in one or multiple locations outside the boundaries of the State. After brief foundational background, the article examines how differing conceptions of the legitimate aims of self-defense affect the extent of self-defense and addresses the consequences of an armed conflict paradigm for the parameters of self-defense. Finally, the article raises questions that naturally follow from a states initial success in countering a terrorist group with armed force and pose new challenges for the self-defense analysis. For example, as a states military operations damage a groups ability to operate, it will seek new bases from which to operate in different states or regions and it may splinter into multiple groups or reconstitute itself as one or more new groups. Along with the appearance of new groups inspired by or declaring allegiance to the original terrorist group, these developments require further analysis of whether the nature and extent of self-defense changes, and how, in light of the dynamic operational environment for counterterrorism.

Media Warfare, Propaganda, and the Law of War

In today’s 24/7 media and Internet culture, warfare does not take place only in the kinetic arena of the battlespace. Airstrikes, artillery barrages and infantry maneuvers are accompanied by equally intense debates and discourse in the media about the legality and legitimacy of military action, with allegations of war crimes and justifications for attacks flying as quickly as drone strikes. With the involvement of international, regional and national courts, commissions of inquiry, other judicial and quasi-judicial entities — and, perhaps most of all, the court of world opinion — this battle of words can often seem to be as important as military capabilities. Numerous factors form, sway and cement that public opinion, including the efforts of militaries and armed groups to control information flows and of journalists, advocacy groups, fact-finding missions and ordinary civilians to seek, publicize and comment on information. This complex mix leads to a combustible arena of media warfare that has significant consequences not only for the way wars are fought and won, but for the legal framework that governs conflicts. This chapter explores how propaganda and media warfare intersect with the international law framework governing conflict, focusing on how information operations and media coverage link back to legal compliance — specifically claims of law violations or compliance — and legitimacy. In essence, the information battlespace has a significant effect on the application and interpretation of the law of armed conflict, including the very definitions that form the heart of the legal framework. Media coverage is an essential tool for the protection of persons and the enforcement of legal and moral norms At the same time, in order to preserve LOAC’s principles and processes, it is helpful to understand how the two interrelate and, in particular, how media coverage’s impact on public discourse can have significant and problematic consequences for the interpretation and development of LOAC.

Investigations into Military Operations: What Impact on Transitional Justice?

The recent proliferation of external investigations into military operations raises important questions for the conduct of military operations and the interpretation and implementation of international law. The impact of such investigations, and their reports, extends beyond how they influence the military and the implementation of the law of armed conflict, however. As countries and societies embroiled in lengthy conflicts begin to explore the value and effectiveness of undertaking transitional justice efforts during conflict, rather than only after conflict, investigations into military operations and specific incidents can play an important — and perhaps unexpected — role. This Article focuses specifically on the interrelationship between investigations and transitional justice efforts. As investigations into military operations become a common tool in the international and national arsenal, understanding how they interact with and affect broader transitional justice efforts and goals becomes important, for both the conceptualization of investigations and the development of transitional justice mechanisms. This Article addresses the relationship between investigations and the truth-telling aspect of transitional justice mechanisms, as well as the impact of the use of law and legal analysis on the legitimacy of the investigations and on potential transitional justice mechanisms.

Direct Participation: Law School Clinics and International Humanitarian Law

This article describes and analyzes two law school clinics focused on international humanitarian law: the International Humanitarian Law Clinic at Emory Law School and the International Justice Clinic at University of California, Irvine School of Law. Law school clinics focused on international humanitarian law enable students to participate directly in the development and application of IHL in concrete ‘real world’ settings – from training to research and fact-finding, litigation to high-level advocacy, and many spaces in between. These opportunities do far more than contribute only to these students’ development as effective, reflective lawyers, certainly a key goal of any clinical environment. Clinical IHL work also matches clinical pedagogy with cutting-edge issues in armed conflict to deepen students’ law school experiences and enables them to engage in the IHL goals of promotion, implementation and enforcement.

Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law

On November 4, 2011, the International Humanitarian Law Clinic at Emory Law School convened a group of military operational law experts with extraordinary breadth and depth of experience in applying and enforcing IHL. The meeting was convened to analyze the broader legal issues in and implications of the recent judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Prosecutor v. Gotovina, which focused on Operation Storm, the Croatian operation to re-take the Kraijina region in the summer of 1995. The meeting grew out of extensive conversations with a range of US and foreign military operational law experts about the application of IHL in the Gotovina judgment. These issues are at the heart of an amicus brief that has been submitted to the Appeals Chamber at the ICTY – more to come on that in the next few days. Beyond the amicus brief, however, we felt it was essential to explore in greater depth a broader range of legal, institutional and policy concerns – in particular, the consequences of the judgment’s approach on future military operations, military planning and the implementation of IHL. The experts gathered represented a remarkable compilation of military legal and operational experience with regard not only to the implementation of IHL during the conduct of operations, but also to the broader institutional considerations of training, planning and doctrine that contribute significantly to the development and maintenance of disciplined and moral fighting force. This operational experience and knowledge brings the concepts at the heart of IHL – and the issues at the heart of the discussion over the Gotovina judgment – into sharp relief. The Emory IHL Clinic has now issued a report from the experts’ meeting – Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law. The report sets forth the experts’ consensus views and concerns regarding the application of the law in the judgment, highlighting four key areas: the imposition of what amounts to a strict liability standard imposed on commanders who attack lawful military objectives in populated areas; the flawed application of the principle of proportionality; the failure to consider or apply Article 58(b) of Additional Protocol I and its obligations for defending parties to take precautions; and the failure to properly recognize and rest the legal analysis on the operational complexity inherent in the targeting process. With an eye to the long-term consequences of the judgment, the report also emphasizes a range of institutional concerns and second order effects resulting from the judgment: the effect on future military operations; the consequences for the respect for and development of international law; and specific overarching concerns regarding the role of the commander and the role of legal advisers during military operations.