Remarks by Defense Dept General Counsel Paul C. Ney Jr. on the Law of War

The General Counsel of the U.S. Department of Defense, Hon. Paul C. Ney Jr., delivered the keynote address (full text below) at the Israel Defense Forces 3rd International Conference on the Law of Armed Conflict on Tuesday. The General Counsel’s speech touched on a number of topical law of armed conflict (LOAC) issues, and included views on issues such as the law concerning the use of emerging technologies and promoting compliance with LOAC in order to minimize civilian casualties. Ney also highlighted and commented on the United States response to the International Criminal Court Pre-Trial Chamber decision on Afghanistan. The full remarks as prepared for delivery are below, as provided by the Defense Department Office of the General Counsel.

The Israel Defense Forces LOAC Conference is in its third iteration, with over 150 senior practitioners and academics from over 20 countries and organizations. The conference program covers legal aspects in cyberspace, compliance with LOAC, recent writings on proportionality and the new International Committee of the Red Cross Commentaries to the Geneva Conventions. Previous conferences have led to a special edition published by the Vanderbilt Journal of Transnational Law.

 

Remarks by Department of Defense General Counsel Paul C. Ney Jr.
I
srael Defense Forces 3rd International Conference on the Law of Armed Conflict
May 28, 2019
As Prepared for Delivery

Thank you for the introduction and the opportunity to address this conference.

I am honored to address such a distinguished group.

I would also like to begin by thanking the Israel Defense Forces, Major General Afek and Mr. Offir, for their vision and leadership in holding this conference.  I want to explain why we, at the U.S. Department of Defense, believe that this conference stands out among efforts to advance understanding of the law of war.

In my remarks today, I’ll mostly use the term “law of war” rather than synonyms such as “international humanitarian law” or “law of armed conflict.”  “Law of war” is the term the DoD uses in its official policies and publications.

There are ongoing debates about the future of the law of war.  For example:

  • How do we interpret the rules for the conduct of hostilities, when customary international law or provisions of the 1977 Additional Protocol I to the 1949 Geneva Conventions are unclear?
  • How does the law apply to new technologies and to new means and methods of warfare?
  • How do we strengthen the law to deal with humanitarian challenges posed by current conflicts?

To meet these challenges, some want to promulgate new rules of the law of war, through new treaties or novel legal interpretations.

In many cases, the debate about what the law should be is intermingled with the debate about what the law is.  How you think the law of war should develop can depend on what you think the law is.  For example, if you interpret existing law to have a “gap,” then you will naturally believe that there should be a new legal rule to fill that gap.  Moreover, on issues of customary international law, each State can influence what the law should be, through its practice and opinio juris indicating what the law is.

In these debates about what the law of war is, how the law applies, and what the law should be, the leadership of States like Israel and others represented here is critical for at least three reasons.

First, international law is law made by States and for States.  Other actors, such as nongovernmental organizations (NGOs) and academics, can play an important role, but States have the primary responsibility for developing and implementing international law.

Second, the law of war must be made, in particular, by States that conduct military operations.  The law of war is, foremost, law that is implemented by armed forces during military operations.  States that actually conduct military operations have critical expertise and a perspective that are essential in these discussions.

A State like Israel is on the vanguard of addressing challenges in the law of war.  Israel was the first to develop reconnaissance UAVs and deploy reactive tank armor, and pioneered Iron Dome.  Israel has also had exceptional experience in combatting terrorism, in fighting enemies that deliberately hide behind innocents and defy the law of war.

Third, discussions on the law of war also need to be led by States, like Israel and others represented here, that are deeply committed to the rule of law and will adhere in good faith to their legal obligations.  A State that has no intention of complying with its obligations will not have the desire that Israel and the United States and others have, to ensure that the law is militarily practical and strengthens humanitarian protections.

This conference represents an opportunity to discuss and debate law of war issues informed by the leadership and practical experience of Israel and the representatives from other militaries present here.

In this spirit of inquiry and State leadership on the law of war, I would like to offer four themes that from the U.S. DoD’s perspective are critical to consider in responding to the challenges that we face in the law of war.  I will discuss how these themes are relevant in a few of the important law of war issues that the Department is facing now, but my hope is that you find these themes relevant to other challenges.

The first theme is that the fundamental principles of the law of war provide a general guide for conduct during war, when no more specific rule applies.

This idea has long been reflected in U.S. military manuals, including the current version of the DoD Law of War Manual.  Underlying this idea is the premise that the law of war is a coherent and comprehensive body of law governing the conduct of hostilities.  Thus, addressing novel legal issues is less a matter of creating new principles or filling in “gaps” in the law of war, than in explaining and clarifying how the existing principles of the law of war already apply to new situations.

Let me be more concrete.

The States Parties to the Convention on Certain Conventional Weapons have established a Group of Governmental Experts, or “GGE,” to discuss “emerging technologies in the area of lethal autonomous weapon systems.”  The GGE started in 2017, with discussions continuing in 2018 and 2019.

The United States has actively participated in these discussions by sharing U.S. practice and legal views on using autonomy in weapon systems.  We have given presentations on specific U.S. weapons systems that employ autonomy.  We discussed our written DoD policy directive on autonomy in weapon systems, which “[e]stablishes guidelines designed to minimize the probability of consequences of failures in autonomous and semi-autonomous weapons systems that could lead to unintended engagements.”   The United States has sought, in a series of working papers, to articulate how we believe that existing law of war requirements apply to the use of autonomy in weapon systems.  We have also shared our approach of using law of war principles, when no more specific rule applies, to guide our decision making on emerging technologies.

I would contrast the U.S. approach with that of other GGE delegations.  Some delegations and many NGOs approach this issue from the perspective of seeking to promulgate a new rule.  Some are advocating a ban on lethal autonomous weapons systems.  Some are advocating a new principle of “human control” over weapon systems.

These efforts seem to us to be based on incorrect factual and legal premises.  Many delegations are assuming that autonomy means less control or that the development of an autonomous function in a weapon system entails a delegation of decision-making to a machine.

As we have explained in working papers and interventions, we believe these assumptions are inaccurate.  As a factual matter, the use of autonomy in weapon systems has improved the degree of control that human beings exercise over the use of force.

The advantage of Artificial Intelligence and other autonomy-related emerging technologies is the use of software or machine control of the system rather than manual control by a human being.  These technologies can produce greater accuracy, precision, and speed in weapon systems.  These technologies can produce entirely new capabilities that are otherwise impossible.  For example, the Counter-Rocket Artillery and Mortar System is able to fire precisely at incoming projectiles and disable them; a human gunner couldn’t do that manually.

Moreover, whether a decision is “delegated” in some sense to a machine has more to do with how the weapon is used than whether the weapon system itself has an autonomous function.  A weapon with a function for selecting and engaging targets can be used without delegating any decision-making to the machine, in the sense of substituting the human’s decision with the machine’s decision.  Instead, the addition of autonomous or “smart” capabilities can allow weapons to “lock on” to targets like enemy tanks, warships, or aircraft, to better effectuate the intent of the commanders and operators, and reduce the risk of harm to civilians.

In the U.S. perspective, there is nothing intrinsically valuable about manually operating a weapon system as opposed to operating it with an autonomous function.  For example, existing law of war treaties do not seek to enhance “human control” as such.  Rather, these treaties seek, among other things, to ensure the use of weapons consistent with the fundamental principles of distinction and proportionality, and with the obligation to take feasible precautions for the protection of the civilian population.  Although “human control” can be a useful means in implementing these principles, “human control” as such is not, and should not be, an end in itself.  In our view, we should not be developing novel principles that stigmatize the use of emerging technologies, when these technologies could significantly enhance how the existing principles of the law of war are implemented in military operations.

The second theme for addressing new challenges in the law of war is that the law of war reflects a convergence of military and humanitarian interests.

There is an oft-parroted view that the law of war reflects a “balance” of military and humanitarian interests – a tension between what is most militarily effective and what is most humane.  This view is captured in the metaphor that complying with the law of war is fighting with one hand tied behind your back.

This is not so.  I submit that the law of war isn’t a compromise between humanity and military necessity.  Instead, the two principles are fundamentally consistent with one another.

The DoD Law of War Manual explains military necessity and humanity as follows.

“Military necessity may be defined as the principle that justifies the use of all measures needed to defeat the enemy as quickly and efficiently as possible that are not prohibited by the law of war.”

“Humanity may be defined as the principle that forbids the infliction of suffering, injury, or destruction unnecessary to accomplish a legitimate military purpose.”

The Manual elaborates:

“Because humanity forbids those actions that are unnecessary, the principle of humanity is not in tension with military effectiveness, but instead reinforces military effectiveness.”

Why does this matter?  We see humanity and necessity as reinforcing principles.  Others see humanity and necessity as in tension with one another.  This difference may seem abstract, but it leads to different visions for strengthening the law of war to face new challenges.

Here is what I mean.  If military necessity and humanity are locked in an eternal contest, humanitarian progress comes at the cost of military effectiveness.  Making the law of war more humane means eliminating means and methods of warfare, one at a time.  On the other hand, if military necessity and humanity reinforce one another, then humanitarian progress does not come at the cost of military strength.  If the law of war is not meant to blunt the sword, but to sharpen it, then strengthening the law of war and promoting humanitarian interests on the battlefield can occur when our operations become more efficient, precise, and effective.

Let me discuss two examples.

First, the challenge of enhancing civilian protections during military operations.  This is an exceedingly important issue for DoD.  The purpose of Defeat-ISIS operations has been to protect our homeland from terrorist attacks and to liberate civilians from terrorist oppression.  Our commanders and forces have exercised extraordinary care during operations to reduce the risk to civilians, while terrorist groups have deliberately put civilians in harm’s way.

Former Secretary of Defense Mattis exercised great leadership on this issue, and Acting Secretary Shanahan has continued that leadership, which has included a variety of measures.

One, the Chairman of the Joint Chiefs of Staff conducted a study of civilian casualties in recent operations.  Portions of the study were released publicly earlier this year, and it reflects a comprehensive effort to assess internal processes and provide recommendations.

Two, DoD has appointed a senior official with responsibility for overseeing civilian casualty policy.

Three, DoD has submitted a number of reports to Congress that explain DoD’s policies and practices related to protecting civilians.  For example, earlier this month, DoD submitted a publicly available report that describes DoD’s processes for assessing reports of civilian casualties.  The report also lists civilian casualties from last year by date, location, and the number of injured and killed.

Four, DoD is currently engaged in a policy development process to strengthen our internal procedures and practices for protecting civilians during operations, taking into account lessons learned from recent operations.

That’s just a snapshot of the extensive DoD effort to improve civilian protections.

In contrast, there is an effort by the ICRC and a few States to ban or restrict the use of explosive weapons in populated areas, or “EWIPA.”  Fundamentally, they seem to be reacting to the same problem – how do we reduce harm to civilians from military operations?  Their reasoning seems logical and simple:  “Explosive weapons are causing harm to civilians, and there would be less harm to civilians if the military used fewer explosive weapons.”

But, in our view, this approach is quite likely to reduce the protection afforded civilians in armed conflict.  We believe giving our commanders more options and more capabilities can allow them to choose the right weapon and mix of tactics for the situation that minimizes the risk of civilian casualties.

For example, during Defeat-ISIS operations in Mosul, the U.S. military chain of command made a decision to empower lower-level commanders to make more decisions regarding strikes.

This type of delegation of authority was criticized by some who thought it might reduce civilian protections.  In fact, DoD studies of civilian casualties have found the opposite.  Empowering lower-level commanders to make decisions was a way of allowing the commander with a clearer understanding of the situation on the ground to make the strike decision.  Empowering lower-level commanders increased the speed of decision-making and decreased the risk that facts on the ground could materially change between when decisions were made and when the strike was executed.

Similarly, in certain cases, the use of explosive weapons might be the option that best serves the protection of civilians.  For example, the use of explosive weapons early in a campaign could prevent ISIS or other terrorist groups from seizing control over an urban area and using it as part of their tactical defense. Once an urban area has unfortunately been taken by enemy forces, the use of explosive weapons, for example, to target several key enemy defensive points before trying to advance past those points might lead to less violence and overall destruction than relying on smaller caliber weapons to support a ground assault on those defense points.

A third consideration is that promulgating a new norm against using explosive weapons in populated areas risks further encouraging ISIS and other terrorist groups to hide in urban areas and use civilians as human shields.  This is not a hypothetical risk.  During recent defeat-ISIS operations, we’ve heard reports from our forces of the following:

  • ISIS fighters shooting civilians trying to flee Mosul and Raqqa.
  • ISIS commanders forcing small flocks of children to usher the commanders from one location to another; and
  • Even a report about an ISIS fighter shooting at Coalition forces with an assault rifle in one hand while holding a baby in the other.

The law of war, which addresses life and death issues during war, must never be tilted in favor of the unscrupulous.  Of course, our forces must do the right thing no matter what violations our enemy perpetrates.  However, in considering new law of war rules or interpretations, it is important to consider whether the practical effect of the new rule will undermine or promote adherence to the law and the protection of civilians.

Lastly, blunting military effectiveness can have the effect of prolonging the war and increasing the suffering of the civilian population.  This point was even made in the Lieber Code, the instructions for U.S. armed forces approved in 1863 by President Lincoln during the U.S. Civil War.  The Lieber Code explains:  “The more vigorously wars are pursued, the better it is for humanity.”

Our forces have observed the accuracy of Lieber’s insight in recent operations in Iraq and Syria.  Here is General Townsend’s, then-Commander of Operation Inherent Resolve, explanation of operations to liberate Mosul in 2017.

“[W]hat we’ve learned is that the faster the friendly troops advance, the less destruction of infrastructure there is and the fewer civilian lives are lost.  When … fronts become stationary, and you have two … relatively modern forces with high explosives slugging it out for a period of days on a stationary front, it — the destruction just skyrockets and so do civilian casualties, and casualties on both sides of the fight.”

Winning as quickly as possible can support humanitarian considerations, and we want our forces to have the full set of options and tools to do that in accordance with the law of war.

Another area where you see this difference between those who want to strengthen the law of war’s protections by restricting military operations, and those who want to strengthen the law of war’s protections by increasing the efficiency and precision of military operations, is the issue of “emerging technologies in the area of lethal autonomous weapons systems” that I mentioned previously.

In the GGE discussions, the United States has emphasized the basic convergence between the military interest in more effective and efficient weaponry and the humanitarian interest in reducing the harmful incidental effects of war.

Fundamentally, professional militaries have an interest in the efficient use of force.  All law-abiding militaries have strong interests in avoiding civilian casualties and unnecessary destruction – these are not only bad in humanitarian terms but also inefficient and counterproductive in military terms.  Thus, better military technology is likely to mean better compliance with the law of war.

For example, “Project Maven” is a DoD effort to use artificial intelligence (AI) to improve its analysis of video from intelligence, surveillance, and reconnaissance platforms.  By using AI to identify objects of interest from imagery autonomously, analysts are able to search through larger quantities of data and focus on more sophisticated and important tasks requiring human judgment.  This kind of work could help improve the commander’s battlespace awareness and help cut through the “fog of war.”  This could mean better identification of civilians and civilian objects on the battlefield, which allows our commanders to take steps to reduce the risk of harm to them.

Even more directly, DoD is already working on ways to use AI capabilities for humanitarian purposes.  The Joint Artificial Intelligence Center has a national mission initiative on humanitarian assistance and disaster relief that is applying lessons learned and reusable tools from Project Maven to field AI capabilities to help first responders and local agencies save lives when responding to wildfires and hurricanes.

Because advances in these types of emerging technologies could support both military and humanitarian interests, the United States believes that we need to be very careful.  We must not stigmatize new technologies or hastily set new international standards.  Instead, States should ensure the responsible use of emerging technologies in military operations by implementing rigorous review processes that are guided by the fundamental principles of the law of war.

The third theme is the law of war’s distinction between lawful and unlawful combatants, between military forces that implement their law of war obligations and armed groups that do not take such measures and instead often deliberately violate the law of war.

The U.S. Supreme Court explained that “by universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants.”

The distinction in the law of war between lawful or privileged combatants and unlawful or unprivileged combatants is as important as the distinction between combatants and civilians.

The criteria that distinguish lawful military forces from terrorists or other groups of unprivileged belligerents are critical for law of war implementation and compliance.

Lawful combatants operate under responsible command.  A group’s command and control mechanisms are fundamental to its ability to comply with the law of war.  Indeed, the “[t]he law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.”   The disciplinary mechanisms of armed forces are the means by which States can implement the law of war.  An undisciplined force is more likely to commit law of war violations, such as pillaging, detainee abuse, or atrocities against the civilian population.

Lawful combatants also have committed to conduct their operations in accordance with the law of war.  They have accepted the burdens of combatant status under the law of war, and are thereby entitled to its benefits, like prisoner of war status upon capture and the combatant’s privilege.

But, our sense is that the law of war’s fundamental distinction between privileged military forces and unprivileged combatants is notably under-recognized in current debates.

We see this lack of recognition in reports or resolutions that portray the current condition of compliance with the law of war in sweeping, dismal terms.  These reports fail to recognize that many States, like Israel and the United States, have extensive, robust programs of law of war implementation and enforcement.

Let me give two examples.

One is in the area of civilian casualties, where there are often reports by NGOs, rapporteurs, or other observers.  For example, NGOs will report on civilian casualties, interviewing people who were injured or family members of persons who were killed or injured in military operations.  This work is admirable, even inspiring when NGO personnel have gathered this information at personal risk in warzones.  However, we have noticed a tendency to argue that reports of civilian casualties constitute evidence of violations of the law of war by U.S. or Coalition forces.

As a legal matter, we are troubled by these arguments.  What are the facts necessary to determine whether civilian casualties resulted from violations of the law of war by an attacking force?

  • To determine whether civilian casualties resulted from a violation of the principle of distinction, it is essential to know whether the intent of the forces conducting the strike was to target military objectives or to target civilians or civilian objects.
  • To determine whether civilian casualties resulted from a violation of the principle of proportionality, it is essential to understand the military advantage the commander expected to be gained from the attack.
  • To determine whether civilian casualties resulted from a violation of the requirement to take feasible precautions in conducting an attack, one would have to have an understanding of the care that was applied in that operation, as well as in other operations that did not result in civilian casualties.

The reports of civilian casualties gathered by outside observers, like NGOs, rarely contain such information.  Moreover, such reporting usually concerns only the results of a strike.  Many States have recognized the principle that commanders and other decision-makers must be judged only on the basis of the information available to them at the relevant time; “they cannot be judged on the basis of information that subsequently comes to light.”

It is important to recognize the limits of the information gathered by outside observers of the results of a strike.  After-the-fact information of the results of a strike is not necessarily probative of what the commanders and operators knew at the time of their decision-making.  In addition, a collection of civilian casualty incidents by outsider observers is an incomplete basis for understanding whether sufficient care is being taken during military operations.  Outside observers, like NGOs, do not and could not gather information about when our precautions are successful in avoiding or minimizing civilian casualties.

We have heard representatives from other countries describe these kinds of arguments that any civilian casualty must be considered a violation of the law of war as an assault on the principle of proportionality.  However, I suspect that there is also a failure to distinguish between lawful and unlawful combatants, and in particular between State militaries with robust programs to ensure compliance with the law of war and terrorist groups whose method of warfare is to violate the law of war.

For example, when one observes civilian casualties from an al-Qaeda or ISIL attack against a marketplace, it likely is reasonable to conclude that the civilian casualties are evidence of a violation of the law of war.  Al-Qaeda and ISIS members are unlawful combatants.  They are not organized under a responsible command and do not have programs to ensure their operations are conducted in accordance with the laws of war.  Terrorizing civilians is their method of warfare, and they have stated their intent to kill civilians or commit other atrocities in their propaganda.

On the other hand, when civilian casualties result from the operations of lawful combatants, like the U.S. military or the Coalition to defeat ISIL, the same inference is not reasonable.  We have robust programs and processes to implement the law of war and to minimize civilian casualties.  Our commanders face the press and explain our operations to the extent we can and make clear our intention to target only military objectives.  Our public affairs officers respond to press or NGO questions and frequently post on public websites information about the strikes that we have conducted and civilian casualties that we have caused.

A failure to distinguish between armed forces that have strong programs to comply with the law of war and those that do not is also at the core of the International Criminal Court (ICC)’s mistaken analysis of allegations against the U.S. military.

As background, the U.S. policy on the ICC is very clear and has been well articulated by National Security Adviser Bolton in remarks last year and by Secretary of State Pompeo in remarks earlier this year.

The United States strongly supports accountability for international crimes and has accepted obligations, such as those in the 1949 Geneva Conventions, to investigate and prosecute these crimes.

However, the United States has in no way consented to any exercise of jurisdiction by the ICC. The United States is not a party to the Rome Statute of the ICC.  The United States has not consented to ICC jurisdiction to adjudicate allegations against U.S. personnel, nor to the ICC’s evaluation of our own accountability efforts.  We view such efforts by the ICC as a flagrant violation of our national sovereignty and as an attack on America’s rule of law.

The United States respects the decision of those States that have chosen to join the ICC, and in turn, we expect that our decision not to join and not to place our citizens under the ICC’s jurisdiction will also be respected.

The ICC’s treatment of allegations against U.S. forces demonstrates that the principled U.S. objections to the ICC’s illegitimate assertions of jurisdiction are warranted.  As the United States explained previously, the ICC Prosecutor largely drew the allegations it was purporting to examine from reports of U.S. investigations that the U.S. Government itself released publicly in the interests of transparency.  The ICC judges, in their decision on the ICC Prosecutor’s request, acknowledged that the ICC Prosecutor “mainly relies” on the findings of U.S. Government reports and cited only to U.S. Government reports in concluding that the Prosecutor had presented sufficient evidence of justify an investigation of U.S. personnel.

Reports from domestic investigations and processes largely reflect evidence that a State has an active and robust system of accountability.  Numerous domestic investigations and other accountability processes, and the extensive information released publicly about them, should be taken as demonstrating that ICC action is not warranted.

Using such reports from domestic investigations as evidence of war crimes and a basis for the ICC to open an investigation would turn on its head the principle of complementarity that is supposed to be central to the Rome Statute.

The ICC judges and prosecutors appear to have ignored the fact that the United States has a robust system of accountability.

Unfortunately, I believe that Israel’s experience with the ICC is similar to the U.S. experience.  Like the United States, Israel is not a party to the Rome Statute.  Like the United States, Israel possesses a robust civil and military justice system.  As with the United States, the ICC has ignored the principle of consent to jurisdiction and engaged in an illegitimate effort to review Israeli actions.  No matter the ICC’s actions, as Ambassador Bolton has stated, “The United States will always stand with our friend and ally, Israel.”

It might be politically inconvenient for some, maybe many, to acknowledge that the U.S. military and the IDF care profoundly about the law of war and in fact have strong systems for implementation and enforcement of the law of war.  These efforts, which are one of the principal criteria distinguishing lawful combatants from unprivileged combatants, must be recognized in the application of the law of war.

My last theme is that interpretations of the law of war should not discourage humanitarian efforts going beyond the legal requirements.

This is the reverse of the “lawfare” issue that is commonly discussed when an adversary seeks to manipulate the law of war for an advantage.

Just as the law should not encourage lawbreaking, the law also should not discourage humanitarian efforts that go beyond the law’s requirements.

Let me provide you two examples.

First, some have argued that the obligation to take “feasible” precautions for the protection of civilians means that any precaution that was taken was “feasible” and therefore legally required.  Under this view, the “feasible” precaution standard means something like “possible.”

The United States has not adopted this interpretation of the feasible precautions standard.  In the DoD Law of War Manual, we provide a detailed interpretation of the “feasible precautions” standard.  We interpret this standard as one of due care or reasonable care.  We explicitly make the point that “the fact that a precaution was taken does not necessarily mean that taking the precaution was required as a matter of law.”

The U.S. military has often sought to do more than is legally required for the protection of civilians in its operations.  Similarly, the IDF also engages in efforts to protect civilians, such as calls or messages to warn of pending strikes that are more protective of civilians than most militaries. States should take these types of additional precautions whenever possible, but we should also be clear that there are precautions that can be taken that are not required by the law.

Moreover, the interpretation that everything a party can do or did do is therefore legally required seems to penalize or increase the legal obligations on the very States, like Israel or the United States, that are seeking to develop new capabilities to reduce civilians casualties and to do more to protect civilians in military operations.  It doesn’t seem fair to impose higher requirements on these States compared to other States that do not make these efforts.

A similar problem is posed by the International Committee of the Red Cross’s interpretation of Common Article 1 of the 1949 Geneva Conventions.  The ICRC has argued that Common Article 1 of the 1949 Geneva Conventions reflects a customary obligation for a State to take measures to implement other parties’ obligations under international humanitarian law.

The United States has been very clear that, although we always seek to promote compliance with the law of war by others as a matter of policy, we do not agree with this legal interpretation.  But let me elaborate on a practical reason why the ICRC’s interpretation is problematic.  Under the ICRC’s interpretation of Common Article 1, a State’s obligation to take measures to ensure respect of the 1949 Geneva Conventions by other parties can vary according to “the degree of influence it exercises.”  Thus, under the ICRC’s interpretation, a State that seeks to exercise influence by encouraging a party to improve compliance would, as it is successful in exercising such influence, assume correspondingly greater legal obligations than a State that does not take such steps.

A State with the good intention of encouraging and supporting compliance with the law of war might already be deterred from providing support because it would risk being associated with alleged violations by the party receiving the support and receiving criticism that it is liable for alleged violations by the party receiving support.  However, the ICRC’s legal interpretation exacerbates this difficulty and makes every step the State makes to encourage compliance by a partner a ratcheting up of its legal obligations.

I’d like to conclude my remarks by returning to my opening point.  States, like United States and Israel, that conduct military operations and care about the rule of law must lead efforts to address new challenges in the law of war.

One’s perspective – the information and tools you have – necessarily informs how you respond to challenges.  If you lack the information necessary to make accurate judgments about the law, then you will tend to misinterpret the law to depend on the information that you do have.  If the only solution you know is to ban weapons, then every humanitarian problem starts to look like a weapon to be banned.

This is why it is essential that States like Israel, the United States, and others represented here, which have critical knowledge and tools, lead the way in interpreting and applying the law and in shaping the future development of the law of war.

Thank you for listening.  My colleagues and I look forward to participating in the debates in this conference and learning from all of you.

 

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