At the break of a new year, it may be time for reflection, or for New Year resolutions. The world is not a peaceful place. It never has, and it probably never will be. In times of conflict, it is urgent with restraint on violence. Restraint on the violent necessities of war is, I dare say, the most fundamental function and purpose of the laws of war. There are numerous challenges for those who bear the burden of applying restraint to the use of armed force in today’s armed conflicts: the military commanders.
On the occasion of approaching my 16th year of conveying both the laws of war and other rules and obligations to military commanders on all levels of command, I have tried to sum up, and offer my reflections on the dos and don’ts for military commanders in Ten (Legal) Commandments for Military Commanders. Here they are:
Thou shall not direct attacks against protected persons or objects. This Commandment is apparently a simple one and is often taught as a cardinal rule (which it is), but thou ought not the be fooled: the devil lies in the detail of the who’s and what’s are lawful targets. What is more: the legally difficult cases are not the so-called split-second decisions made in the fog of war. The dog is rather buried in the planning process, but this is the point of Commandment 3.
Thou ought to know your enemy. And then thou ought to use the knowledge wisely, in order to minimize potential collateral damage from an attack. This is not a legal rule, but it may be essential in order to enforce legal restraint on warfare.
Thou shall spend the time available for planning an attack, to plan an attack, and to make the plan recordable. If thou fear Judgment Day (when militarily ignorant hordes of lawyers will assess your actions and label them as war crimes), this Commandment cannot be overemphasized. If an attack turns out in a tragedy, the post-war hunt for criminal blame is likely to scrutinize whether thou spent your time wisely.
Thou ought to know your own weaknesses and Center of Gravity. An attack on your enemy is only lawful when directed at a lawful target and not expected to cause excessive collateral damage. A key to assess excessiveness is to have a clear conception of your own (desired) military advantages. As they are to be concrete and direct thou ought to be able to link an expected military advantage from an attack, to your overall operational plan and military ends.
Thou ought to know your own capabilities and capacities. And then thou should use them wisely. If thou have Intelligence Surveillance and Reconnaissance (ISR) assets thou ought to know how to use them. If thou have a drone, it ought to be your friend and under your command.
Thou must always be prepared to take prisoners. The alternative is worse. And thou ought not to underestimate the myriad of rules and individual rights of those deprived of their liberty – and the corresponding obligations upon the detaining Power.
Thou shall train your soldiers in the law of armed conflict. And the task may be greater than expected, yet more grateful if integrated wisely in the military training as such. And please, please: do recall the devil in the details as preached about in Commandment 1! From right to wrong, it is only a slip of the tongue.
Thou shall investigate possible violations of the laws of war and enforce discipline. Despite the importance of this Commandment, thou ought to recall that not each and every incidental death, injury and damage are possible violations of the laws of war.
Thou shall never accept a vague answer from your legal adviser. As thou may have experienced, a lawyer is likely to cry out that «it depends», and it surely does. Nevertheless; the ultimate answer should be either «yes» or «no».
Thou shall remember that the assessment of military necessity is your assessment – and your responsibility. «Lawfare» – and the lawyer’s circumscriptions of the battlefield – despite; the assessment of military necessity is still the prerogative – and burden – of the military commander.