The Assad regime appears to have again used chemical weapons, this time around eastern Ghouta. This war crime and violation of the law of armed conflict (LOAC) is yet another example of the horrific operations that have characterized the conflict, including targeting medical facilities and indiscriminate dropping of barrel bombs. Such abuses demonstrate the degree to which the basic tenets of LOAC are being ignored during the Syrian Civil War, not only by the Assad government, but also by other states and organized armed groups participating in the conflagration.
Yet, the Syrian conflict has also highlighted challenges in applying the applicable international law. For example, under the LOAC, what rules govern the detention of non-state actors beyond the generalities mandated in Common Article 3? How does subterranean warfare alter, if at all, a targeting analysis? What are the legal consequences associated with the use of cyber capabilities in the civil war? When does non-international armed conflict become internationalized through the participation of external states? And beyond the confines of LOAC, what are the geographical and other constraints on the exercise of self-defense by one state in another with which it is not at war? Or when does the provision of arms to an organized armed group violate the prohibition on intervention into the internal affairs of other States?
Ideally, the answers to these and many other questions would come from states. After all, states, and only states, make law through either treaties or a combination of state practice and opinio juris that crystallizes into international customary law. Many states, however, move with trepidation in interpreting grey areas of the law or crafting new law to fill lacunae. Of course, some progress has been made, as in the efforts to address weapons issues. However, key states have shown hesitancy in taking the steps necessary to clarify the law governing conflict. As a result, definitive answers to many of most pressing of contemporary issues remain elusive.
Enter international lawyers who, while cognizant that they lack formal authority to develop the law, have stepped into the void left by state indecision and inactivity. A combination of academics (modern-day Athenian “thinkers”) and military legal practitioners (modern-day Spartan “warriors”), these lawyers regularly engage in dialogue, scholarship, and expert projects regarding uses of force in general and how LOAC applies on the complex modern battlefield. The issues they undertake represent the most daunting fault-lines in the law; thus, their efforts are highly influential in shaping how states, NGOs, commentators, and other actors see the boundaries of the law. Indeed, at times they provide the foundation for subsequent discourse when states emerge from their normative seclusion to attempt normative clarity.
However, academics and practitioners often approach the same problem from very different perspectives. Neither perspective is ineludibly flawed. But in our estimation the best approaches to responding to apparent fault lines in the law result from merging the academic’s expertise with the legal practitioner’s real-world experience. Like play-by-play announcers and former star athletes working together during a broadcast to provide comprehensive sports commentary, the academic and practitioner offer different, but complementary, takes on the law.
Practitioners, for their part, understandably are focused on accomplishing the mission. Their legal analysis tends to be tied directly to the achievement of an outcome, as well as the process by which that outcome is achieved. They often dismiss views they see as unworkable from a practical perspective, or, more typically, overly formalistic. Relying on intelligence, and starkly aware of the tangible impact of their advice, practitioners are solution-oriented. “How can we do this?” may be the starting point of the analysis instead of “may we do this?” And with respect to much academic analysis, the practitioners are often left muttering, “They just don’t get it.”
In contrast, academics are not bound by the pressing need to get to “yes”. They are free to craft legal analysis unrestrained by temporal realities or hierarchical pressure. This allows for a better focused and more critical analysis of an issue. Further, their broad access to academe allows for their arguments to be vetted and refined through scholarly engagement. This often results in well-reasoned and sophisticated scrutiny of difficult issues. Accordingly, in their view, practitioner analysis is sometimes overly shallow and results-skewed.
When both academic and practitioner views are fully represented in legal analysis, it tends to be perceived as both objective and realistic. Consequently, conclusions are more likely to be widely accepted as a meaningful contribution to the interpretation and development of the law applicable to conflict. The 2017 release of Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations serves as an example. The manual, a result of a multi-year project, relied on a balanced combination of academics and practitioners who worked hand-in-hand to determine how the extant international law applies in the cyber context. Of course, the document, best understood as the collective opinion of the participating experts, has generated criticism. However, in part as a result of its inclusive methodology, it is generally regarded as a practical, yet sophisticated exposition of the law that can serve as a tool for states in their ongoing attempts to grasp how international law applies to their cyber operations, and those directed against them. Earlier efforts, including the San Remo Manual on International Law Applicable to Armed Conflicts at Sea and the Manual on International Law Applicable to Air and Missile Warfare, likewise demonstrated the value of genuine collaboration between international scholars and military practitioners. So too will future projects along similar lines, such as the recently launched Woomera Manual on the International Law of Military Space Operations.
On the other hand, if either the academic or practitioner perspective is seen to have been unduly curtailed, the credibility of the position taken can be placed at risk. For example, in 2009 the International Committee of the Red Cross (ICRC) released its Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. The document came under fire especially from military legal advisors who argued the guidance was operationally unrealistic. In fact, a group of the participants in the project, some of whom had significant military experience, withdrew from the project prior to release for this reason. These public disagreements limited the document’s potential impact and masked the fact that most of the analysis was not only unobjectionable but amounted to an insightful and useful approach to real-world problems related to direct participation on the battlefield.
What becomes apparent is that the most powerful positions on the law governing conflict are those that are both practical in implementation and have undergone a critical and objective analysis. The rapidly and continuously changing nature of modern warfare demands regular and active engagement between the two communities. In the abstract, this demands a network dedicated to constantly distributing and debating ideas, developing joint positions on nuanced conflict law issues, and sharing perspectives through regular professional exchanges. Collaboration must be institutionalized.
We are not there yet. However, progress is slowly being made. The recent practice of bringing in distinguished and influential academics without a military background to serve as Special Counsel to the DoD’s General Counsel is an important step in this regard. So too is the practice by the service JAG Corps of sending mid-career officers back to top-tier law schools for LLMs in international law. And, albeit hesitantly, law schools have begun to recognize that faculty members with military legal experience enrich their curriculum and have unique potential for real-world impact on legal matters.
Moreover, military educational institutions, such as the United States Military Academy’s Lieber Institute for Law and Land Warfare and the Naval War College’s Stockton Center, now serve as crossroads for the two communities, as well as the ICRC and key NGOs. Importantly, these institutions have recognized that understanding the complex and evolving relationship between law and warfare requires global and interdisciplinary engagement, for the American military legal community does not have a monopoly on understanding the law of war.
Of course, if such collaboration is to fully contribute, it must have staying power. Just Security, Lawfare, and Opinio Juris have recognized this by increasingly publishing commentary by military lawyers. In a complementary fashion, the Naval War College’s International Law Studies has become a key venue for academics from around the world to speak to both communities, as will the Lieber Institute’s new OUP series, The Lieber Studies.
But the work has only begun. The Syrian Civil War is a daily reminder that law is struggling to handle the normative obstacles presented by modern warfare. If these challenges are to be met, the academic-practitioner partnership must continue to grow. Should it not, the law risks falling further behind in responding to the changing face of warfare. After all, the law governing conflict is meant to find an appropriate balance between national, including military, interests and both humanitarian concerns and international peace and security. In our opinion, it is only through a Sparta-Athens alliance that law will meet the challenges of contemporary conflict.
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The views expressed here are the author’s personal views and do not necessarily reflect those of the Department of Defense, the United States Army, the United States Military Academy, or any other department or agency of the United States Government.