Law and Urban Warfare
The rise of the war lawyer
Military lawyers, or what in my new book I call war lawyers, are a distinct group of uniformed legal professionals who are both trained soldiers and qualified lawyers. These professionals have served state militaries for decades and even centuries, but in the early 1990s and especially since the turn of the century war lawyers began to play an increasingly vital role in aerial targeting operations. Today, their legal advice both constrains and enables military action and, for better or worse, shapes the late modern battlespace in ways that we are only just beginning to understand.
The U.S. pioneered the use of war lawyers in lethal targeting operations, and many other nations including Israel, the U.K., Australia, Canada, France, and the Netherlands – and other NATO member states – regularly consult legal experts before, during, and after launching military strikes.
The history of this radical transformation dates back to the Vietnam War and the commission of war crimes by U.S. forces. Vietnam was a turning point because a high-profile military report, the Peers Report, found that lack of training in the laws of war was a key reason for the infamous My Lai massacre in 1968 where troops murdered 350 civilians. Military lawyers were first called to instruct troops in the laws of war as a way of preventing future crimes, but they soon found themselves explaining to pilots and soldiers that the purpose of the law was not only to limit but also enable certain military action. In the 1980s U.S. military lawyers founded a new legal discipline they called “operational law”, and it was designed to rid the military of its negative perception toward international law, and to assert military rights as well as responsibilities. The law was utilized as “force multiplier”, so when U.S. commanders invited lawyers into the war room to help them launch war on Saddam Hussein’s Iraq—and especially the city of Baghdad—in 1991, they worked diligently to review target folders and ensure that every strike was within the bounds of International Humanitarian Law (or at least US interpretations of it).
Kill Chain
Today, war lawyers are fully integrated into the full spectrum of military operations, but it is their involvement in aerial targeting operations that has put them at the center of life and death decision making. My work to date has focused on the U.S. and Israel in particular, and The War Lawyers describes and explains the role that military lawyers play in the various stages of aerial targeting – a process known colloquially as the “kill chain” or the “doughnut of death” –the latter name refers to the shape of the diagram resembling a ring doughnut (Figure 1).
Figure. 1 The targeting cycle, known colloquially as the “kill chain”. Source: US Department of Defense/American Civil Liberties Union (ACLU), 2009.
The kill chain is a military bureaucratic process that is designed to identify, track, and ultimately kill or destroy a ‘target’. A target could be a person or group of people, or it could be an object like a tank or a missile-launcher or a building that is thought to be serving a military purpose like storing weapons. In recent decades, as particular surveillance technologies from military drones to electronic tracking have become more sophisticated and widespread, the kill chain has been “compressed” so that what once took several months can take place, in theory, in hours and minutes.
“One of the most vital but not well-understood reasons why even well-equipped militaries continue to cause harm to civilians is the rapid and rapidly changing pace of both urban life and urban warfare.”
Military lawyers are extensively involved in the kill chain. They offer legal advice to commanders and soldiers on key legal principles such as military necessity and distinction (e.g. can the commander positively identify the military nature of the target?), proportionality (e.g. if the strike goes ahead how can we be assured that expected incidental harm to civilians and civilian objects will not be excessive in relation to the concrete and direct military advantage anticipated?) and precautions (e.g. what can be done to avoid or at least minimize harm to non-combatants and civilian infrastructure, including in the choice of means and methods of warfare?).
City as battlespace
Legal principles can be difficult to apply in the classroom, let alone during the heat of battle, but in recent decades state militaries have increasingly put legal interpretation to work in a particularly opaque and complex space: the city.
Urban warfare is not a new phenomenon, and the city is no stranger to the ravages of war but in the last 20-30 years the city has been claimed as a key battleground: think Sarajevo, Grozny, Baghdad, Beirut, Gaza City, Tskhinvali, Gori, Aleppo, Taiz Homs, Eastern Ghouta, Fallujah, Mosul, and Sana’a (the list goes on). Telling friend from foe is always a fraught affair, whether from ground, sea, or air, but at the moment fighting enters the city – a space full of civilians and precious civilian sites – it becomes even more difficult (Figure 2).
Figure 2. Israel destroys the al-Jalaa Building, 15 May 2021, By Osama Eid, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=105343649
There have been two broad responses to what spatial theorist Stephen Graham has called the “urbanisation of warfare”. The first has been to largely ignore the civilian geographies of the city and to bombard it more or less indiscriminately as though everyone and everything were a military target. In many ways this is a continuation of mid-twentieth century urban warfare where little attempt was made to distinguish civilians from combatants and entire cities became blazing infernos later reduced to rubble: London and Coventry, but also Berlin, Hamburg, Dresden, Yokohama, Toyama, Tokyo (again, the list goes on). The second strategy has seen a serious attempt to cut through the proverbial “fog of war” with a suite of technologies, techniques, and strategies in order to minimize harm to civilians and civilian casualties. This approach represents decades of efforts by humanitarian communities, and state and non-state armed forces, but even this more measured method has and continues to be seriously, often massively, destructive.
One of the most vital but not well-understood reasons why even well-equipped militaries continue to cause harm to civilians is the rapid and rapidly changing pace of both urban life and urban warfare. Over the last 30 years state militaries like the US and Israel have devoted significant resources toward civilian casualty mitigation in particular, and toward refining targeting procedures and ‘precision’ in general. These efforts are not designed to be perfect, and they certainly aren’t, but even the “best practice” of the idealized “kill chain” all but goes out of the window when it comes to dealing with time-sensitive targeting.
“Legal principles can be difficult to apply in the classroom, let alone during the heat of battle, but in recent decades state militaries have increasingly put legal interpretation to work in a particularly opaque and complex space: the city.”
Here it is necessary to differentiate between two broad types of targeting, the first of which is typically called ‘deliberate’ (planned) and the second ‘dynamic’ or ‘time-sensitive’ (unplanned or unanticipated targets of opportunity and/or “troops in contact” scenarios). In the latter, the decision-making process is extremely compressed and the normal procedures – collateral damage assessments, proportionality analysis, though technically present, are cut short in practice. The speed at which decisions have to be made – seconds, minutes, or at most, hours – weigh heavily on the tactical and legal calculations of commanders and lawyers alike and the (perceived) threat is computed as military necessity because of the potential harm that might be done to troops or friendly forces. Inevitably, when the process is sped up it increases the chances of things going wrong, be that misidentifying the target or causing more civilian casualties than anticipated. Errors are magnified when local, national or coalition troops on the ground call in aerial fire (‘Close Air Support’) to interdict an enemy post or kill enemies who are firing at them (‘Troops in Contact’) (Figure 3). A well-known report by Human Rights Watch several years ago concluded that this latter form of targeting was the most dangerous of all to civilians.
Figure 3. U.S. Army infantry during the Battle of Mosul, 7 March 2017. Source: Alex Manne, U.S. Army.
Unfortunately for cities and their inhabitants, time-sensitive and dynamic targeting are by far the most prevalent style of targeting in urban spaces. There are many reasons for this but two are worth highlighting. First, cities tend not to have many static (immovable) targets, and, if they do, they are often identified and destroyed early on in an aerial campaign. We saw this in Iraq in both 1991 and 2003 and also in the early days of the US-led invasion of Afghanistan in 2001. Donald Rumsfeld once joked that Afghanistan was ‘running out of targets’ – but he meant deliberate/static targets and would go on to clarify that other ‘targets of opportunity’ would emerge as the US continued its war, which brings us to the second reason. Cities are intricately mobile and emergent spaces; people move through them and things —everyday lives— are constantly happening. For this reason, Geographer Derek Gregory has described the city ‘event-ful’, a locus of spaces and scales where infinite events collide and unfold. Try as they might, militaries cannot make sense of this infinitely unfolding present, let alone see into the future and so inevitably they are forced to react to events as they unfold in real time. This means that most targeting in cities also has to be reactive rather than planned in advance.
Amidst the civilian life of the city, there might be enemy forces or certain military targets. So, for both soldiers on the ground and the eyes in the sky, the city is a space of threat, a place where harm might appear, seemingly, out of nowhere. When militaries see the city as battlespace, they understand it as a series of events that emerge in real-time and a series of mobile people and objects. Through this prism military violence is naturalized and the city loses its protected civilian status and is turned into a target. In the complex bureaucracy of the kill chain, it is easily forgotten that first and foremost cities are congregations of humanity, densities of complex human lifeworlds, communities going about their daily lives.
The non-combatant cut-off value
One of the key areas of the kill chain where military lawyers have proved most valuable is in helping commanders weigh their military objectives against the potential loss of civilian lives. It is a harsh but often forgotten reality that the laws of war do not forbid the killing of civilians, whether intentional or not. Instead, the laws require that the harms caused should be ‘proportionate’ to the military gains. But how much weight should be given to each of the incommensurate variables?
“In the complex bureaucracy of the kill chain, it is easily forgotten that first and foremost cities are congregations of humanity, densities of complex human lifeworlds, communities going about their daily lives.”
The US and other state militaries have, in recent years, tried to minimize civilian casualties caused by their activities, and have developed sophisticated collateral damage estimation tools that allow them to model (if imperfectly) anticipated casualties. One of these tools is called the Non-combatant Casualty Cut-off Value (NCV). The NCV is the acceptable threshold number of civilian casualties a military operation – for example an airstrike – can sustain without a commander having to seek additional approvals from senior military leadership. The NCV is not a magic number: it is highly subjective and is determined by a dizzying array of political, military, geographic, and time-based variables. For example, at the height of the ‘shock and awe’ bombing of Baghdad in 2003, the NCV was set at 30 meaning that “if you hit 30 as the anticipated number of civilians killed, the airstrike had to go to Rumsfeld or Bush personally to sign off.” During the surge in Iraq beginning in 2007, the NCV was ‘as high as 26’. In 2008 the NCV in Afghanistan was thirty-five. In Operation Inherent Resolve (OIR)— the war against ISIS— the NCV in mid- 2015 was purportedly zero as Obama redoubled efforts to reduce civilian casualties. But only a year later, as US forces contemplated bombing a bank containing “huge amounts of cash” seized by ISIS, the NCV was set at 50.
Figure 4. Mahmoud Bali (VOA) - US-backed Forces in Southern Raqqa City, 2017.
Conventional legal scholarship has tended to argue that the laws of war generally and military lawyers in particular serve to constrain violence by making states and non-state actors comply with the law. But the laws of war are an ever-changing legal regime and so compliance is a moving target, and constraint not always the aim of the game. As the shifting values of the NCV show, the rules guiding targeting have elastic limits and require multiple layers of interpretation. Research today suggests that the laws of war have several permissive and enabling functions (they authorise and legitimize violence) and that compliance is partly a rhetorical game where language and meaning is subjective and where the loudest legal voices of the most powerful nations tend to win.
The power of interpretation
War lawyers don’t simply “apply” the law. Instead, I suggest that we might see war lawyers as active interpreters of a deeply contested body of law--one whose purpose, weight, and meaning is still very much up for grabs. Part of the reason why they have been so successful at what they do is that they have been able to find reasonable interpretations that do not unduly limit, slow down, or otherwise get in the way of military operations. Their diligent and often behind-the-scenes work is not about headline-grabbing deliberately cynical misreading of the laws of war like when the George W. Bush administration tried to say that the Geneva Conventions did not apply to “unlawful combatants”, or when civilian lawyers from the same administration made the Orwellian claim that “enhanced interrogation methods” did not constitute torture. Instead, military lawyers inhabit a world where everyday military realities that we may never hear about – be they emergent threats or feelings of danger – constitute an active ingredient in shaping legal interpretation.
Military objectives lend significant weight to the lethal calculus of later modern war. It is no longer viable to say that law is above the fray of military violence, if it ever was. And as lawyers have offered their advice to commanders so too have they entered the fray. In so doing war lawyers have assumed some responsibility for who lives, who dies, and which places get harmed in the increasingly urban spaces of later modern war. War has long been a scourge on the city but today the results of urban warfare are once again on a catastrophic scale. For those beneath the rubble, the forcibly displaced, the wounded, and the bereaved, the talk of “precision warfare” and “surgical strikes” rings hollow.
