those lawyers who decide who will live and who will die in war zones

When we think of war, we think that it is the soldiers on the front lines — or those who pull the trigger — who are responsible for the death or injury of those they have targeted. My research shows, however, that for the past few decades, an amazing profession has played an important role in the conduct of war: lawyers.

Legal advisers (also known as military lawyers) are trained as soldiers and are also qualified lawyers. Their job is to interpret the myriad laws of war, assess the legal risk of a proposed action, and provide time-pressed commanders with concise advice and a range of legal options for military operations. This may include advice on the type of weapons to use, the best time to attack to reduce casualties, or whether to wait for additional intelligence before taking action.

State armies have employed lawyers for decades, if not centuries. But since the start of the “war on terror” in 2001, the latter have played an increasingly vital role in deciding who will live and who will die in today’s conflict zones.

I spent several years interviewing military lawyers in various locations in the Middle East, Europe, and North America — on military bases, in busy cafes, and even in their homes or yards. They told me candidly about how commanders came to rely on their legal advice during deadly military operations, their discomfort as lawyers wielding this new power, and the impact of this one on their mental health.

A soldier looks at graffiti on a wall that depicts an attack by a US drone. It says, “Why did you kill my family? »
Xinhua/Alamy Stock Photo

Legal advisers have told me that they are often asked to go to a command post in the middle of the night in order to quickly analyze a situation and give their opinion.

One of them told me of being “the only obstacle in front of a” death sentence “. And although military lawyers receive very specific training before being assigned to this role, my research shows that it is not always enough to prepare them for the highly stressful job of being the person who influences who will be the victims in a war zone.

incite humans to kill

Legal advisers are not decision-makers: their job is to offer advice. It is up to military commanders to decide whether or not to launch a strike. But, from my research, it seems that in many cases commanders turn to lawyers for something akin to permission, or even psychological and moral support, in addition to legal advice.

A boy runs past a damaged house
A house damaged after a bomb attack in Mosul, Iraq.

A military lawyer described to me how his advice seemed to have an “almost divine power” that could cause commanders to waver or ignore their instincts. Another lawyer wrote of the reality of the power he wields:

The commander asks me, as legal counsel, if he can legally kill these humans. I am the judge, he is the jury and the executioner.

Another lawyer told me that he felt “more like a chaplain than a lawyer” because the commanders came to see him not only for legal advice, but also to obtain his moral absolution. Another lawyer told me that his legal support was essential in “inciting human beings to kill other human beings in the name of the state. »

Tips under pressure

The United States was the first to use legal advisers for aerial targeting operations in the early 1990s. But today many other countries, including Israel, the United Kingdom, Australia, the Canada, France and the Netherlands, along with other NATO member states, regularly consult legal experts before, during and after launching military strikes.

My research focus on the United States and Israel and examine the involvement of legal advisers in various stages of aerial targeting — colloquially known as the “kill chain” — a process by which a target is identified, tracked, and ultimately killed or destroyed.

People walk carrying their belongings with black smoke behind them
Civilians flee their homes near the Tal al-Rayyan neighborhood in West Mosul.
: Rise Images/Alamy

Over the past few decades, as surveillance technologies have become more complex and widespread, the kill chain has been condensed. A process that once took several weeks (or even months) can take place, in theory, in hours or minutes. This means legal officers often work in high-pressure environments — where there’s not really time for deliberation and second opinions.

Sometimes military lawyers and commanders get it wrong. For example, in 2015, when heavily armed American planes repeatedly fired on a hospital run by the humanitarian organization Doctors Without Borders in Afghanistan, which was mistaken for an enemy building. Or in 2002, when the Israeli Air Force killed thirteen civilians in Gaza, including eight children, with a one-ton bomb aimed at a single military leader. On another occasion, in Gaza, more than 20 family members were killed in a single strike.

A study carried out by the non-profit organization Human Rights Watch revealed that targeting operations carried out in an emergency generally cause more civilian casualties than planned operations, in which there is more time to make decisions.

Target error

A man poses for a photo in a city
Basim Razzo.
Basim Razzo, Author provided

I wanted to know more about the real consequences of aerial targeting and legal advice. What does the situation look like on the ground for those who find themselves under a rain of bombs? As part of my research, I spoke to several people who had lost family members and homes to military airstrikes.

In 2015, in a well-documented strike in Mosul, Iraq, an innocent civilian, Basim Razzo, lost his entire family to a military maneuver orchestrated by the United States and carried out by the Dutch Air Force in the war against the Islamic State.

The US military claimed the “target” was an Islamic State compound where car bombs were made, but in reality it was two houses – one where Basim lived with his wife, Mayada, and her daughter, Tuqa, and the other, adjacent, where her brother, Mohannad, lived with his wife, Azza, and son, Najib. Basim was the sole survivor of the operation, and after a lengthy investigation, the US military offered him US$15,000 as compensation — which he refused.

I spoke to Basim in April 2019, more than three and a half years after the strike. He told me how difficult his daily life still was. He suffers from chronic pain and has undergone several surgeries. He is unable to work and earn a living due to his injuries, and he mourns the loss of his family.

“There are no words to describe what happened to me,” says Basim. Five years after the attack, with Basim still unable to walk or work, the Dutch government eventually made him a ‘voluntary offer’ of compensation, which he accepted.

These haunting advice

Given the consequences of their work, we are beginning to hear – not surprisingly – of military lawyers who are victims of moral damage and who suffer from post-traumatic stress disorder (PTSD).

Another problem they face: when military lawyers give advice that commanders don’t want to listen to, they are often told to “stay within their scope”. As one lawyer told me, his advice is supposed to “maximize the space the commander has to make a decision,” but sometimes it’s overlooked.

This is precisely where the problem lies: the boundaries of the law, however porous they may be, can sometimes delimit the zone of permissible violence, but they are not always useful in distinguishing right from wrong, especially when it is is about deciding to end a human life.

Leave a Comment