Food for thought on lawfare

I’ve given lawfare (that is, the endless discussion of the law of war right in the middle of a fight) quite a bit of thought, but my every attempt to write about it has bogged down. I find it an incredibly frustrating topic. My squad level orientation means the mere mention of lawfare makes my blood pressure spike. But I’m also smart enough to know that in our age of instant communications that a scrupulous attention to the laws of war are an absolute necessity not only from a moral perspective, but also from a political and operational view. The increasing presence of non-state actors on the field of battle are having quite a bit of influence on current thought on the topic. Having said that, Kenneth Anderson has an interesting post at The Volokh Conspiracy about how views on the law of war are evolving. 

Start with technology. The rise of more and more precise targeted killing technology does two things in the legal frame. First, because it reduces collateral damage, naturally civilians become less of an issue and proportionality less of an issue as well. One might reject the claim that in fact collateral damage is reduced and continue to say that this perception is factually incorrect. But without proposing to argue about it here, I’d simply say that the technology is getting more and more precise, and when Panetta says the drone targeted killing technology is the most precise thing in the history of warfare, I think it is basically right and getting more so with new technological developments. That is relative, however — relative to the realistic alternatives, not by comparison to zero. It is certainly far from perfect, so please, human rights monitors, don’t start getting eager (or more eager than you already are) to demand zero collateral damage and impose strict liability, overt or “function.”

We’ve got some big brains reading here from time to time. What say you?

3 thoughts on “Food for thought on lawfare”

  1. I’d say that ‘strict liability’ has zero place on the battlefield in the first place, at least when it comes to combat damage. This is war, not a goddamned torts classroom.

  2. The “problem” with reduced collateral damage, and the associated expectation that US forces will do so is that, regardless of the extent of it, it can and will still be played out as “US Atrocities” by both the enemy that deliberately spins/lies/misleads through an aggressive information operations campaign, as well as a biased-to-neutral at best national and international media that will play the same clip over and over until the next big story. These combined, in my opinion, essentially negate the fact that there are almost no Law of Armed Conflict (LOAC) violations in the current way of war. When there are none, small ones stand out.
    Despite the fact that US forces go to incredible lengths to avoid excessive casualties, the fact is that “perception is reality” for most people.

  3. Lawfare has no place in warfare. Period. Put the JAG officers back in their proper place, and it isn’t as advisors on warfare either.

    We have given far too much place to JAG officers. Such things as “Military Judges” and such are an abomination. Stick them back in their offices and bring them out only when their advice is requested on legal matters and as advisors to Courts Martial Boards.

    War is hell, and it will never be anything approaching heaven. precision is simply a good attempt at economy of force, and I’m all for it. If we can send 1 A-10 to do the job of an Air Division of B-17s, then I say great. While I feel for the civilians that get pranged, they need to realize it happens because their men put them in that position.

    Don’t mess with us, we don’t kill you. I don’t see much to understand there.

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