A military commander has the family of a wanted Islamic State leader in his sights. Killing them may force the wanted man to reveal himself, but is it legal?
U.S. presumptive Republican presidential nominee Donald Trump has stated he would target terrorists’ families to destabilize terror networks, but recently reversed those statements.
UBC PhD candidate Craig A. Jones has personally interviewed more than 50 military lawyers as part of his research on the function of law in modern warfare.
Can the commander-in-chief target the families of terrorists as Donald Trump suggests he would?
The idea that Donald Trump as President of the United States could do what he wants vis-a-vis the “kill chain” will quickly come undone.
The “kill chain” is the process that includes the identification of a military target, intelligence gathering, weapon selection, and approvals for weapon use. Military lawyers are involved in every stage.
The Laws of Armed Conflict, the body of law that regulates war, actually permits actions that will knowingly result in the deaths of civilians, and sometimes even many civilians.
I believe Trump would face significant opposition and even resignations and refusals from uniformed personnel if he chose to unilaterally ignore the Laws of Armed Conflict.
Is there a precedent for military lawyers affecting administration decisions?
Yes. In 2003, under the administration of George W. Bush, a group of the most senior military lawyers in the U.S. wrote lengthy memos, classified at the time, urging the Bush administration to halt “enhanced interrogation methods” on the basis that they were “tantamount to torture.” These lawyers subsequently became vocal opponents of dire detention conditions in Iraq and Afghanistan and lobbied for conditions to be improved.
If elected, Trump could, as commander-in-chief, theoretically undo some of those efforts but military lawyers will not stand by and let the law and their profession be brought into disrepute. After all, following the Nuremberg trials after the Second World War, “just following orders” is no longer a legal defense for committing war crimes or crimes against humanity. Military lawyers know that if they follow illegal orders or give unsound legal advice to military commanders, they could one day stand trial.
Has the use of military lawyers decreased the amount of violence experienced by civilians in combat areas?
If we compare the First or Second World War, where entire cities were bombed to the ground with no distinction between civilian and soldier, to the more recent targeting of individual enemy combatants as they walk down the street or drive their car in Iraq or Afghanistan, it does seem that the rate of violence experienced by civilians has decreased.
But the use of military lawyers has not prevented civilian death and suffering in combat areas. The wars the military lawyers are involved in still cause huge amounts of civilian death and suffering.
In November last year, a U.S. military gunship targeted a Doctors Without Borders hospital in Kunduz, Afghanistan, killing 42 civilians, including 24 patients, 14 staff and four caretakers. Some military lawyers are now blaming Doctors Without Borders for the attack, despite a U.S. military investigation released last week finding that systemic human and technical errors were made by the U.S. military.
2016 3MT Final: Craig Jones (1st place and People’s Choice Winner)