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This podcast is for and about soldiers of the Canadian Army.
Its primary goal is to provide them with useful information through thoughtful and open discussions that reflect their mutual interests and concerns.
Though soldiers are our primary audience, the topics covered on this podcast should be relevant to anyone who supports our soldiers or who has an interest in Canadian military matters.
It's impossible to win hearts and minds by destroying villages, contaminating their water, destroying schools, and killing civilians.
Speaker 2:Welcome to the Canadian Army Podcast. I'm captain Adam Morton. On this episode, we have commander Macca Livere, who is the director of international and operational law and a legal officer with the office of the Judge Advocate General or JAG, which basically means he's a military lawyer with the Canadian Armed Forces. And we're gonna talk about the law of armed conflict. Welcome to the podcast, sir.
Speaker 1:Perfect. Thank you. Thanks for having me.
Speaker 2:So when talking about the law of armed conflict, you see, soldiers have a lot of strong opinions about how they would act in certain scenarios. Why is this such a contentious subject?
Speaker 1:I think it's, very valid for soldiers to feel that way. I mean, everyone will have a different perspective of the application of the law of armed conflict through their trades, for example. Gunners will feel differently than people in the air force, sailors, the infantry, and engineers. So recently, I had the privilege of instructing the law of armed conflict to engineers who were deploying on UNIFIER, who are about to train Ukrainian troops on, various activities, including the law of armed conflict. And, of course, you know, they were seeing it through the lens of the engineers, you know, some of their questions related to minds and booby traps and whatnot, and their feeling, and some of them had learned from the experiences of the Ukrainian soldiers on the ground.
Speaker 1:So it's very valid to see things as hot topics. However, there are extremely valid reasons at the end of the day for the application of the Law of Ram conflict.
Speaker 2:So maybe so everybody understands what we're gonna be talking about here. What is the law of armed conflict? What does it all lay out?
Speaker 1:So the law of armed conflict, in the broadest sense, determines when states may resort to the use of force, of armed force, I should say. And in its narrower sense, how those states may conduct hostilities during armed conflict. So the purpose of LOAC is to regulate the conduct of hostilities and to protect victims of armed conflict.
Speaker 2:Can you break that down for us? Like, what are the principles or what are the concepts of the law of armed conflict?
Speaker 1:You know, if we get down to the primary concepts that underline the law of armed conflict, we look at military necessity. The concept of military necessity presupposes that force can be, used, but that force can be controlled. The use of force is necessary to achieve the submission of the enemy, and the amount of force used is limited to what is needed to achieve prompt submission. But military necessity is not a concept that should be considered in isolation. Related to the concept of military necessity is the concept of humanity, which forbids, you know, the infliction of suffering, injury, or destruction not actually necessary to the accomplishment of the military purpose.
Speaker 1:We're not held to a standard of perfection, of course. So the immunity of the civilian populations does not preclude unavoidable incidental civilian casualties that may occur during the course of the attacks against legitimate targets, and that are not excessive in relations to the concrete and direct, military advantage anticipated. At the end of the day, you know, when speaking to those engineers who had direct relationships with the Ukrainian troops, they understood that some of the actions of the enemy, for example, here, the Russians, they had seen atrocities, and they were asking themselves, like, if the Russians violate the law, why shouldn't I, you know, in return violate the law itself? What the Ukrainians usually respond is like, we're not them. And of course, at the end of the conflict, when peace is achieved, there's always an impact on the civilian population, and you wanna ensure that peace can be fully gained afterwards.
Speaker 1:And of course, you know, for Canadian Armed Forces members, when we're out on operations, I it's it's very, very important to win the hearts and minds of the of the local population.
Speaker 2:Yeah. Absolutely. And we talked about the law of armed conflict and those engineers in particular in another episode. And they'd said how even that interaction kind of drove how they changed the training because they'd started examining the law of armed conflict kind of the back end of the training. But then during some of the exercises, the troops would be, like, oh, why do we do this this way?
Speaker 2:Why do we do this this way? And kind of drawing some of the parallels that you were discussing. And then they're, like, if we front load this, it contextualizes everything else. And also, kind of what you said is if you burn all the bridges, right, the road to pieces a little bit more challenging. And so applying that law probably makes it a little bit easier to achieve that piece at a certain point if, you know, you're not constantly committing atrocities.
Speaker 1:Well, people have, you know, long term memories. They will remember our actions. Our troops who represent Canada abroad are all, from my perspective anyway, diplomats, not in the legal sense, but they're representatives of the government of Canada. And so, as a representative of the government of Canada, we go out there and one of our primary missions is to ensure that we're there displaying Canadian values.
Speaker 2:So we've covered military necessity. We've covered humanity. Can you tell us about some of the other principles?
Speaker 1:Yeah. Absolutely. So your principles, others refer these as rules themselves. So your principle of distinction imposes an obligation on commanders to distinguish between legitimate targets and civilian objects, and then the civilian population. So, I always come back to when we think of targeting, there's targeting of individuals, and then there's targeting of objects.
Speaker 1:So, when we look at a military objective, they're objects which by their nature, location, purpose, or use. So, once again, nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization in the circumstances ruling at the time offer a definite military advantage. I'll give you a quick example, by their nature. So, a tank. You see a tank.
Speaker 1:You know by its nature. You're good to go. You can engage directly.
Speaker 2:Tank's a tank. You know what I mean? There's no confusion on what that thing is. It's big gun with tracks.
Speaker 1:Exactly. So, you know, when people ask, are the lawyers confusing things? You know, do we need to go through the math? I'm gonna tell, you know, the soldiers are often really surprised when I'm like, hey. You see a tank?
Speaker 1:You're on the battlefield? Good to go. You know? I come back to that movie, Fury that comes to mind. Brad Pitt will not give the Tiger tank a second look.
Speaker 1:He's gonna go and go full charge at it. Other things, for example, based on location. Location could be a bit more difficult. A bridge, for example, can be a bit more difficult to assess. Are you going to prevent the local population an exit route?
Speaker 1:These are some of the things that you need to take into consideration. And then you have to come down to the rest of the equation, which is, does it make an effective contribution to military action? So, for example, confiscated oil, so black market oil, is that a military objective? And does it bring a contribution to the enemy's military action? Well, what happens often enough is maybe that black market oil will help sustain part of the local population.
Speaker 1:The second part of the equation is your your proportionality test. So, the principle of proportionality establishes a link between the concepts of military necessity and humanity. So, once again, I'll go with the textbook answer because this is an important one. So, is the attack expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated? And if the answer is yes, then the attack must be canceled or suspended.
Speaker 1:When you look at your ROEs, your rules of engagement, on top of that, there'll be policy tied into your rules of engagement. But lawfully, you really have to look at how many civilians, will be lost as a result of the attack and how much damage will occur. And sometimes, you know, you only have one weapon, and that weapon, if it's a 777, and that's the only weapon that you have for that particular operation, You have to really assess the damage that it's going to cause.
Speaker 2:Because it's going to big bang.
Speaker 1:Sure. It's going to be a big bang. Sometimes it is lawful and proportional. However, there are also policy considerations that the truths are subject to. If, for example, in your ROE, it says there is to be 0 civilian casualties, although the law would allow for a proportional use of the weapon, sometimes the ROEs will not permit any civilian death.
Speaker 2:This is a good point to jump in and talk about ROEs really quick because ROEs are rules of engagement. At the ground troop level, usually, you get a little card or something like that. And on that card tells you what the scope of the operation is, what you can and can't do that are driven by the law of armed conflict that might be driven by the policy or the political environment of that operation and all that. And so in a way, that's almost a distillation down to the soldier level of what you can and can't do in the context of what you're doing. That's basically the law of armed conflict cheat sheet for your average soldier if, you know, based off of his face, I will say that differently to say that it's the simplest document that a troop has in their pocket that allows them to guide that decision making, during the conduct of an operation.
Speaker 1:They're orders. At the end of the day, they're orders.
Speaker 2:That's right.
Speaker 1:Yeah. What you can and cannot do. The ROEs will encompass, of course, policy. So what does the government of Canada want you to achieve? It's impossible to win hearts and minds by destroying villages, contaminating their water, destroying schools, and killing civilians.
Speaker 1:So, in terms of the ROE, yes, the legal advisors will review the ROE, absolutely. There are significant legal considerations when drafting the ROE. For instance, it all depends on what type of conflict you're in. So, if you are in an armed conflict, your ROEs will permit you to use, deadly force against, you know, enemy. Well, if you are deployed in a peacetime environment
Speaker 2:Yeah, that's right.
Speaker 1:There's a law enforcement construct that applies, There's criminal law that applies of the host nation. And, therefore, use of deadly force will not be authorized unless it's, you know, for self defense, for example.
Speaker 2:Something interesting that you brought up when you were talking about military necessity and proportionality is and this is where maybe things get a little bit spicy is that, you know, you talk about an obvious military objective, a tank. You see a tank, it's an enemy tank, fairly obvious that that's something that you can probably destroy in in a conflict. And then we see, let's say, a school. And we know schools don't bomb schools. Everybody knows that.
Speaker 2:Or in theory, everybody applies that. But it gets a little bit fuzzy in the middle sometimes, like you were talking about okay. Well, now I have an m triple 7, m triple 7 being an artillery piece. And I have a target that's in the middle of the city, and it might be a little bit adjacent to some things, and then there might be some people around. Now, you're going through the complicated process of evaluating that target.
Speaker 2:And that's where it gets a little bit fuzzy because now it's we're sitting down and having discussion of, does this meet the expectations of the operation? Does this meet our legal obligations under the law of armed conflict? I think that's probably the challenging part of this whole
Speaker 1:thing. So these are the questions we need to be asking ourselves. Absolutely. Have we gathered enough intelligence? Do we have the right intelligence?
Speaker 1:Are there other ways to minimize collateral damage? Is there another weapon available at the time? Can we call in support from our allies? So all that sharing of information is crucial. At the end of the day, the legal advisor will work with the intelligence officer.
Speaker 1:We'll gather that information, and then they will discuss to provide the commander with as much information as possible. But in terms of is it a military objective or not, the role of the legal adviser is to ensure that there's no gray zone right there. It is or it isn't. And when the legal adviser, difficult as it may be, must provide that advice to the commander so that the commander can make a decision.
Speaker 2:We're talking about having legal advisers and policy driving some of the decision making, but it wasn't always that way, I imagine. Tell us a little bit about the history of how the law of armed conflict got to where it is today.
Speaker 1:Rules that govern the conduct of hostilities have been around for 1000 of years. What we see today in our treaties and customary international law are more relevant over the last 120 years, for example. We look at the Hague Conventions from 1907, the Geneva Conventions of, 1949, and the additional protocols of 1977, for example, all of which stem from after significant wars.
Speaker 2:You know, it's interesting because as the producer and I were researching this and looking at, you know, how these laws came to be, at one point we summarized it as after some major conflicts, everybody sat down and was, like, wow, this really got out of hand and a lot of people really suffered. How can how can we reduce suffering overall while still doing wars? And, it seems like that summarizes it pretty simply.
Speaker 1:Yeah. No. I I agree with you. I think, there's been long term and widespread damage, not only to civilian infrastructure. We see, for example, still in Europe, cities that had been completely destroyed, but also the impact of torture and genocide.
Speaker 1:I remember speaking with my Ukrainian colleague, one of the legal advisors at the Ministry of Defense in Ukraine, and she said, look, my great grandparents fought the Russians, my grandparents fight the Russians, my father fought the Russians. Now, I'm fighting the Russians. I'm doing this because I don't want my children to fight the Russians. And in order to do so, she firmly believes that following the law of armed conflict is extremely important, and she believes in, and rightfully so, and it's in our doctrine as well, reciprocity. You want to treat the enemy as you want to be treated.
Speaker 1:So, for example, prisoners of wars and detainees. When you take on prisoners of war, you have to think that you will want to exchange prisoners of war at a certain time during the conflict or return them to, their host nation after, the conflict itself. So, reciprocity goes a long way. And like I said, people have, long term memories about some of the actions. Well, one single soldier, for example, can change people's thoughts and support of the Canadian Armed Forces abroad.
Speaker 2:So we've talked a lot about the practical application of all this, but where does the military justice system fit in to the preparations for, like, a deployment or a mission? How does one prevent war crimes?
Speaker 1:In terms of ensuring that Canada meets its legal obligations, an important part of the equation would be the military justice system. The purpose of the military, justice system is to promote and ensure the efficiency, discipline, and morale of the Canadian Armed Forces. One of the key aspects is that it's a deployable system where Canada can investigate and prosecute crimes conducted by Canadian Armed Forces members abroad. And there's there's important aspects to that. One of them is when Canada deploys abroad and we're negotiating SOFA, status of force agreements, privileges, and immunities for our Canadian Force members abroad.
Speaker 1:So, for example, in Afghanistan, we reassure the host nation that we will apply a disciplinary system on our folks. And that's extremely important because if Canada would be unable to investigate and or prosecute our folks abroad, then they would be subject to either an international criminal prosecution or the prosecution of the host nation. So, these are things that we need to take into consideration. So, this comes back to what you were talking about, prevention of war crimes and or crimes on the battlefield or during armed conflict. It's an obligation found within the Geneva Conventions and the additional protocols to investigate and punish those who who have committed various crimes.
Speaker 2:On the flip side of that coin, sometimes we can see our adversaries exploiting our adherence of those laws and maybe exploiting that as a tactic. I'll use an example, you know, in Afghanistan, there's no uniformed enemy. Right? So our adversaries in that space have a good understanding that that creates a lot of confusion for us in terms of our targeting and attack approaches. There's no easy answer to this, but it's like, what do we do in situations where we're fighting an enemy that doesn't follow the law of armed conflict, that doesn't follow those rules?
Speaker 1:So there's 2 aspects to that question from my perspective. So the first one is, it's important for Canada to promote the application of the law of armed conflict. So right now, for example, Canada is working with various allies in teaching and promoting the law of armed conflict on Op Unifier. That would be part of it. So, in Afghanistan, legal advisors played a huge part in training not only our troops, but training Afghans on the law of armed conflict and how to apply the law of armed conflict.
Speaker 1:Other aspects would be how our competitors may be using our interpretation of the law to create what we would call gray zones. So, for example, Russia is claiming that they are acting in self defense against Ukraine or that they went inside Ukraine to prevent a genocide. And the Ukrainians have developed a very good capability in that sense of lawfare. So, preparing the battlefield.
Speaker 2:Lawfare, that's a good-
Speaker 1:Yeah, lawfare. So, preparing the battlefield or shaping the battlefield in order to, I would say, set the story straight or align with better messaging and communication. So, when Russia said that they would go inside Ukraine to prevent genocide, Ukraine appeared before International Tribunal to basically contest the fact that there was a genocide, and then the international court found that there was no genocide, so Russia had to change its rhetoric and messaging. As you know, the information wars is massive, and law fair helps you control that rhetoric.
Speaker 2:You know, you can really tell we're doing it. Right? Because if you get pretty much any group of forces members together from any trade or any background and you start this conversation, people are gonna be passionate about it. They're gonna be engaged. And I think that really tells you that, functionally, people really care about it and that it's kind of a part of our collective psychology.
Speaker 1:I've never met a member of the Canadian Armed Forces who did not want to do the right thing. And once we've had the discussion or they've seen a presentation from their local legal advisor on the law of armed conflict, you can see where it furthers interest. People always come back with more and more questions. For example, speaking with the engineers, recently in Petawawa, some of them, you know, had really, really good questions on booby traps, for example, because they were going to teach the Ukrainian on the law of armed conflict, but more related to booby traps. But you can see where there's that spark.
Speaker 1:Like, they wanna do the right thing, and by following the law of armed conflict, by promoting Canadian values abroad, it also helps protect the the reputation of the Canadian Armed Forces outside of Canada and in Canada. And, of course, protecting the reputation of the Canadian Armed Forces goes a long way in Canada.
Speaker 2:Well, thanks so much for taking the time to, improve that reputation for us.
Speaker 1:Thank you.
Speaker 2:That was commander Maca Alighieri, director of international and operational law with the office of the Judge Advocate General, and I'm captain Adam Orton for the Canadian Army podcast. Orton out.