‘Almost divine power’

The lawyers who sign off on who lives and who dies in modern war zones

WHEN we think of war, we might think of soldiers on the front line – or those pulling the trigger – as the ones responsible for the death or injuries of those they are targeting.

But my research suggests that, over the past few decades, an unlikely profession has become deeply involved in the conduct of war: lawyers.

Legal advisers (also called military lawyers) are trained as soldiers and are also qualified lawyers. It’s a military lawyer’s job to interpret the myriad rules of war, weigh the legal risk of a proposed action and provide preferably pithy advice and a range of lawful options for military activities to harried commanders.

State militaries have employed lawyers for decades – even centuries. But since the start of the “war on terror” in 2001, military lawyers have played an increasingly vital role in deciding who lives and who dies in conflict zones.

I spent several years interviewing military lawyers in the Middle East, Europe and North America. They spoke candidly about how commanders had come to rely on their legal advice in lethal military operations, but also about their unease in wielding this new-found power and the impact it had on their mental health.

One described being “the sole remaining impediment to a sentence of death”. And although military lawyers receive training, my research suggests it’s not always sufficient to prepare them for the stressful work of effectively advising on who should live and who should die in war zones.

Legal advisers are not decision-makers: their job is to advise. It remains the responsibility of military commanders to decide, for example, whether a strike goes ahead. But from my research, it seems that in many instances, commanders sometimes look to lawyers for something approximating permission, or even psychological and moral support, as well as for legal advice.

One military lawyer described to me how his advice seemed to have an “almost divine power” that could cause commanders to hesitate or to depart from their intuition. Another lawyer wrote about the reality of the power he holds: “I, as the legal adviser, am being asked by the commander whether he may legally kill these humans. I am the judge – he the jury and executioner.”

Another lawyer told me he felt “more like a chaplain than a lawyer” because commanders came to him not only for legal advice but for absolution.

The US first pioneered the use of legal advisers in aerial targeting operations in the early 1990s. Now many other nations, including Israel, the UK, Australia, Canada, France and the Netherlands, regularly consult legal experts before, during and after launching military strikes.

My research focuses specifically on the US and Israel and looks at the extent to which legal advisers are involved in various stages of aerial targeting – known colloquially as the “kill chain” – a process whereby a target is identified, tracked and destroyed.

In recent decades, as surveillance technologies have become more sophisticated, the kill chain has been compressed. A process that once took weeks, sometimes months, can take place, in theory, in hours and minutes. This means that military lawyers often operate in high-pressure environments – where there is no real time for deliberation or second opinions.

And sometimes military lawyers and commanders get it wrong. Like in 2016, when heavily armed US aircraft repeatedly fired on a hospital run by aid organisation Médecins Sans Frontières (Doctors without Borders) in Afghanistan, thinking it was an enemy building. Or in 2002, when the Israel Air Force killed 13 civilians in Gaza with a one-ton bomb meant for a single military leader.

In fact, a study by the non-profit organisation Human Rights Watch found that time-sensitive targeting operations tend to cause more civilian casualties than pre-planned operations – where more time is available for decision making.

I wanted to learn more about the real-world consequences of aerial targeting and legal advice. What did it look like on the ground to those beneath the barrage of bombs?

In one strike in Mosul, Iraq, in 2015, an innocent civilian, Basim Razzo, lost his whole family to a military strike orchestrated by the US and executed by the Dutch Air Force as part of the war against Islamic State.

The US military claimed the “target” was an Islamic State compound producing car bombs, but in reality, it was two homes – one where Basim lived with his wife and daughter, and another where his brother lived with his wife and son. Basim was the sole survivor and following lengthy investigations, the US military offered him $15000 as compensation – which he refused.

I spoke to Basim in April 2019, more than three-and-a-half years later. He suffers from chronic pain and is unable to work because of his injuries, and he grieves the loss of his family: “there are no words to describe what happened to me”. Five years after the attack, the Dutch government made a “voluntary offer” of compensation, which Basim accepted.

Some military lawyers are haunted by post-traumatic stress disorder.

Then there’s also the issue that when military lawyers give advice that commanders don’t want to hear, they are often told to “stay in their lane”.

And herein lies the problem: the law is not always helpful for navigating right from wrong – particularly when it concerns the decision to end human life.