A new twist on an old story: lawfare and the mixing of proportionalities.

• Author: Blank, Laurie R.
• Position: Divided Loyalties: Professional Standards and Military Duty

The claim that a just cause erases any wrongs committed in war is an old story, just like the opposite claim that an unjust cause renders all acts unlawful. International law has traditionally reinforced a strict separation between jus ad bellum--the law governing the resort to force--and jus in bello--the law governing the conduct of hostilities and protection of persons during conflict. Nonetheless, we see today a new twist on this old story that threatens the separation between jus ad bellum and jus in bello from the opposite perspective. In essence, there is an ever-louder claim that excessive civilian deaths under jus in bello proportionality render an entire military operation unjust under jus ad bellum.

Protection of civilians is a central purpose of international humanitarian law (IHL) and media coverage of conflict and civilian deaths is critical to efforts to minimize human suffering during war. However, insurgent groups and terrorists exploit this greater focus on civilian casualties to their own advantage through tactics often termed "lawfare," such as human shields, perfidy, and other unlawful tactics. Not only do they seek greater protection for their fighters, but they also use the resulting civilian casualties as a tool of war. This article analyzes the growing use of alleged violations of jus in bello proportionality to make claims of disproportionate force under jus ad bellum. In doing so, it highlights the strategic and operational ramifications for combat operations and the impact on investigations and analyses of IHL compliance and accountability. Ultimately, this new twist on an old story has significant consequences for the application of IHL, for decisions to use force, and for the implementation of strategic, operational, and tactical goals during conflict. Most of all, it places civilians in increasing danger because it encourages tactics and strategies that directly harm them.

1. INTRODUCTION II. THE TWO PROPORTIONALITIES: THE NORMATIVE FRAMEWORK A. Proportionality in the Jus Ad Bellum B. Proportionality in the Jus in Bello C. The Historical Separation between Jus in Bello and Jus Ad Bellum III. LAWFARE--EXPLOITING THE LAW AS A TOOL OF WAR IV. A NEW TWIST ON AN OLD STORY A. Use of Civilian Casualties and Alleged In Bello Violations to Ad Bellum Violations B. Strategic Impact on Contemporary Conflict 1. Media coverage and a retrospective approach to proportional 2. Investigations and analysis 3. The greatest danger--undermining civilian protections V. CONCLUSION I. INTRODUCTION

   The claim that a just cause erases any wrongs committed in war is an old story, just like the opposite claim that an unjust cause renders all acts unlawful. Empires, countries, nation-states--for hundreds of years, all have argued that a rightful cause makes all acts just---even rape, pillage, murder of civilians, and other acts ordinarily considered criminal under domestic and international law.

   Yet the law states otherwise. International humanitarian law (IHL), otherwise known as the law of armed conflict or the law of war, rests on the equal application of the law to all parties to an armed conflict. All parties must abide by the same obligations and all parties enjoy the same protections under the law, regardless of the reason they fight, the capabilities of their armies, or the likelihood of their success. With the protection of individuals at the heart of IHL, this cause-blind application of the law is a critical feature enabling the greatest measure of protection for the greatest number of persons--the law simply does not countenance diminished protection for individuals because of the supposed rightness or wrongness of their government's policies or decisions to go to war.

   Two bodies of law apply to the use of armed force. Jus ad bellum, the law governing the resort to force, is based on the U.N. Charter framework and prohibits the use of force by one state against another, except in self-defense or in cases authorized by the U.N. Security Council. (1) Jus in bello, the law governing the conduct of hostilities and protection of persons during conflict, is codified in the Hague and Geneva Conventions and provides a clear framework for the treatment of civilians and combatants, the targeting of persons and objects, belligerent occupation, and the means and methods and warfare. (2) Since medieval times, international law has reinforced a strict separation between the two. This separation mandates that all parties have the same obligations and rights during armed conflict to ensure that all persons and property benefit from the protection of the laws of war. For example, the Nuremberg Tribunal repeatedly held that Germany's crime of aggression neither rendered all German acts unlawful, nor prevented German soldiers from benefitting from the protections of the jus in bello. (3) More recently, the Special Court for Sierra Leone refused to reduce the sentences of Civil Defense Forces fighters because they fought in a "legitimate war" to protect the government against the rebels. (4) The basic principle that the rights and obligations of jus in bello apply regardless of the justness or unjustness of the overall military operation thus remains firmly entrenched.

   Nonetheless, we see today a new twist on this old story, one that threatens this historical and critical separation between jus ad bellum and jus in bello from the opposite perspective. This new story stems from the growing--but not new--tendency to conflate the requirement of a proportionate response under jus ad bellum with the principle of proportionality under jus in hello. As explained in greater detail below, the former man dates that any use of force in self-defense be necessary and proportionate in defeating or deterring an attack by another state. The latter principle requires soldiers not to attack a target if the expected innocent casualties are excessive in relation to the anticipated military advantage gained. Mixing the two proportionalities leads to common but incorrect analyses: (1) civilian casualties become determinative of the proportionality of a state's response to an armed attack and (2) the lawfulness of the use of force plays a role in whether an attack on a particular target during a conflict results in legitimate collateral damage or a disproportionate attack on civilians in violation of the law of war. Neither of these arguments is an appropriate application of proportionality--whether under jus ad bellum or under jus in bello.

   The burgeoning use of "lawfare"--defined here as the exploitation of the law of war for strategic and tactical purposes--as a tool of war compounds this effect. Insurgents co-mingle with the civilian population, launch attacks from protected buildings, and seek to exploit, militaries' adherence to the law of war to gain advantages on the ground and in the public relations arena. Modem asymmetrical conflicts--exemplified by NATO operations in Afghanistan and by Operation Cast Lead in Gaza--are marked by extensive intermingling between civilians and fighters, fighting in civilian areas and tactics that tax the jus in bello principle of proportionality to the limits. In particular, the concurrence of counterinsurgency operations and tactical exploitation of the law of war produces consistent media coverage focused--reasonably so--on civilian casualties and collateral damage. We see this, for example, in Afghanistan, where coalition attacks resulting in civilian casualties gain comprehensive media attention but insurgent attacks with deadly effect among civilians receive significantly less glare from the spotlights.

   At the same time, these developments have opened the door for this alternative take on the old tale of just war. Unlike the past, when jus ad bellum arguments were used to reach particular claims about jus in bello, we now see the use of jus in bello claims to make arguments about the validity of an operation under the jus ad bellum. In effect, there is an ever-louder claim that allegedly excessive civilian deaths under IHL, the law governing the conduct of hostilities, render an entire military operation unjust under jus ad bellum, the law governing the resort to force. However, just as the crime of aggression does not turn otherwise lawful acts into war crimes, so the finding that an attack on a particular target was disproportionate should not automatically render the use of force unlawful.

   This article will examine how the mixing of proportionalities and the growing use of lawfare have led to this new twist on an old story. The first section will provide a foundation of applicable law and jurisprudence, examining the two proportionalities and analyzing how international jurisprudence has repeatedly and consistently affirmed the separation between the two bodies of law. The second section will explore the concept of law-fare and how the technologically disadvantaged party in asymmetrical conflict often takes advantage of jus in bello legal obligations to hinder the military operations of the more advantaged party. In the third section, this article analyzes how these two components have now merged into a new story about proportionality in asymmetrical warfare. In particular, the impact of global media coverage of conflict exacerbates the inherent difficulties in assessing proportionality.

   Although the law is clear that proportionality is a prospective analysis that looks only at the expected civilian casualties and the anticipated military advantage, current conflicts see a steady erosion towards a retrospective analysis driven by media coverage of civilian casualties and, in certain cases, exploitation of that coverage. Lawfare thus now affects not only the conduct of hostilities, but investigations and analysis after the fact. These challenges produce several key questions, including: the impact of asymmetrical warfare on the application of both jus in bello and jus ad...