The Law of War

Episode Notes

Transcript

Rachel E. VanLandingham:

Most Americans when survey don’t want us to go in and take out an entire city. We don’t want to kill civilians. We want to subdue the enemy with the least amount of death on our side, but it doesn’t mean targeting families. So I mean so much of, I think of the language and the narrative around all these rules tie our hands behind our back. Really. What else do you want to be able to do? Talk to your lawyer and I bet I can find a legal way for you able to engage in an incredible amount of violence.

Announcer:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I occasionally write a blog. They may please the court and have three books out titled, how To Get Sued the Sled and My newest book. How would You Decide 10 famous Trials That Changed History? You can find all three on Amazon. In addition, our new podcast miniseries in Dispute, 10 famous trials that changed history is currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. The Law of War is a component of international law that regulates the conditions for initiating war and conducting war. With the Israel Iran conflict raging on June 21st, the United States retaliated against Iran by striking three of its nuclear sites. In response, Iran launched a strike against the US airbase and Qatar. After the strikes, president Trump promoted peace and announced the ceasefire only to be met with more strikes and a continuance of the Israel Iran conflict.

So what is the law of war and how does it apply to the current conflict between Iran, Israel and now the United States? Well, today on Lawyer 2 Lawyer will discuss the law of war and the potential impact on our military, our country, and our relations with other countries. And to help us better understand today’s topic, we’re joined again by a returning guest, Rachel Ivan Landingham. She’s a Lieutenant colonel, retired and co associate Dean of Research and Irwin r Buckhalter, professor of Law at Southwestern Law School. Rachel is a national security law expert and former active duty judge advocate in the US Air Force Judge Advocate General. She was appointed to the Southwestern Law School full-time faculty in fall 2014 and awarded tenure to full professor in 2018. As both the scholar and president of leading Nashville nonprofit dedicated to improving the military criminal justice system, professor Van Landingham was instrumental in helping 2020 ones passage of the most significant military justice legislative reform since the 1950s. Rachel is presently in the UK teaching a course on the law of war. Welcome back to the show, Rachel Craig,

Rachel E. VanLandingham:

Thank you so much for having me back.

J. Craig Williams:

Well, in our last discussion, we heard about your background, so let’s just dive right into the Law of War. Talk to us a little bit about your course, the Law of War.

Rachel E. VanLandingham:

Sure. So I’m teaching here in London. I’m very honored to do so at SOAs University of London in conjunction with my law school Southwestern Law School. And I actually call the course the Law of In and About War because classically the laws and customs of war refer to only one legal paradigm, and that is the laws governing of both the conduct of hostilities on the battlefield, who you can shoot, why, what kind of weapons you can use, et cetera, as well as the laws and rules regulating the treatment of victims of war. Those caught up in war, civilians, prisoners of war, the wounded and sick, so soldiers who are no longer fighting. Then you have what is technically in Latin called the use add bellum, that is international law governing the resort to the use of armed force on the global stage by states predominantly consisting of the United Nations Charter, but supplemented by what’s called customary international law.

And we do also have an intersection at various points of international human rights law that still various instruments and concepts do still apply during war. So I try to cover all of that, focusing primarily on the first two on the, what’s called the use in Bellow Law of Armed Conflict, classic Laws of War, which is to Geneva conventions customer, international law governing protection of victims, as well as conduct of hostilities as well as the UN charter resort to force, which of course, I was starting with the very first week and the Friday before I started my class, Israel sent its first barrage of missiles to attack the nuclear facilities in Iran, and we were off to the presses. So every single day my class has been reading and then applying real time the concepts that they’re learning about to ongoing hostilities. And of course we still have ongoing armed conflict, Israel, be Hamas, Ukraine, be Russia. We’ve got a horrible, horrible civil war in sedan that’s been going on for several years now that very few folks talk about, but millions of people are now starving because of it. So unfortunately, this law is still very relevant and I’m thrilled to be able to help your audience better understand it today.

J. Craig Williams:

How did it come into being? I mean, I understand that there’s the international humanitarian law. How did it come into being? How did the law of war start?

Rachel E. VanLandingham:

Sure, thanks for that question, Craig. So international humanitarian law, which the United States military calls the law of war or the law of armed conflict interchangeably, and most of the rest of the world also calls it international humanitarian law. But I’ll be honest, I prefer law of armed conflict or law of war for terminology purposes, because there really isn’t, I mean, it’s got humanitarian intent, but it allows for a great deal of killing and destruction in war because it’s a balance between states pursuing their military objectives and being able to achieve those military objectives on the battlefield while also reducing suffering and war. So the ultra of the laws and customs of war, the law of war, the international humanitarian law is to reduce suffering and war while allowing states to achieve military objectives on the battlefield. So it’s this balance between humanity and military necessity, and its roots actually go back centuries and centuries and centuries.

I mean, even the ancient Chinese had certain rules that they abided by in their wars, but really the modern iteration of the laws and customs of war are American. They came, I mean, George Washington, when he was General Washington, said to his British counterpart, we are going to be civilized in how we fight. We’re going to try to treat each other nicely when we’re not killing each other, meaning how we treat prisoners, et cetera. But the first modern codification of the laws of war came about with Abraham Lincoln during the Civil War commissioning a former Prussian military officer, that American law professor named Francis Lieber, to write down and codify all these rules that have been percolating in military semi following, professing a following, and to lay them out in a codified fashion, putting them into actual written form and passing them out to Alles generals into the Union Army and hoping that the south would do the same.

So the laws of war really do have American roots because then following that, we had a series of European conventions, these get togethers in which the United States also participated, saying this war stuff is getting really, really ugly because of the advance of technology and just the explosion of ways for us to human beings, to be able to kill each other and do in a horrific manner, plus the growing impact of war on civilians. Today, the most individuals that die in a war typically aren’t soldiers, aren’t the actual of the fighters, it’s civilians. And so today, the current law of war that governs the conduct of hostilities on the battlefield regulates the means and methods tells us what weapons we can use or not, et cetera, as well as provide protections for those caught up in war, the wounded, the sick, the prisoners of war and civilians. Those are all a direct reaction to the millions and millions and millions of people that died and perished in World War ii. And I believe that the farther we get away from the shocking and horrific level of violence and from World War ii, the farther we get away from why we have these rules.

J. Craig Williams:

What happened in World War I with mustard gas was a catalyst for kind of an international adoption of these. Is that right?

Rachel E. VanLandingham:

Oh, it sure was. You had men puking out of their every orifice essentially and dying horrific deaths. Some of them took up to 48 hours to die in the battlefield. And it didn’t kill, I mean, compared to how many folks died in the conventional means as many folks, but it was really shocking and horrifying. It was a shock and awe and was terrifying for the troops exposed to that. I had just brought my class through a guided tour of the British Imperial War Museum here in London, and it was a guided tour specifically of World War I. I felt like we really have a lack of historical knowledge there, and it talked about the use of chemical weapons on the battlefield, and that really revolted enough world leaders, enough populations to then say, well, let’s have a treaty. Let’s agree to a treaty that says we’re not going to use chemical weapons anymore because it’s so horrifying, because it causes unnecessary suffering.

You can kill the soldier on the other side, but you don’t have to do it by a way in which they’re going to suffer even more, which is of course, chemical. Chemical weapons actually increase the suffering needlessly. And so again, we see these laws come, any of them coming back to the concept of let’s kill each other, but let’s do it without extreme suffering, without unnecessary suffering. For example, one of the first treaties outlying a particular type of weapon, outlawed, dumb, dumb bullets that exploded and got bigger once inside a human body, creating much more shrapnel, making it much harder to save that disabled soldier. Once they were out of the fight and they said, well, you can kill ’em, you can wound ’em, but don’t make it harder to help save them. Because once a soldier’s in the classic French term use in the treaties is called orde combat incapacitated due to wounds, sickness or detention, they’re in captivity.

And I don’t just mean shot and they continue to shoot, right? Because then they’re still an act of combatant. But once they’re unconscious bleeding out, then they’re a victim of war. And the enemy party, if they have custody of that bleeding out soldier has a legal obligation to treat them. And so if the whole goal of modern warfare according to these treaties, and really the animation that stands behind them is that the only awful objective in war is to go after the enemy’s military objectives, try to keep civilians out of it, go after military objectives and go after those military objectives, people and military assets with the least amount of suffering that you need to inflict to achieve the destruction of the military objectives. And so there was also, for example, an older weapon was filling grenades with glass, and so it would explode on human beings.

And then that the old technology of the x-ray technology couldn’t see those shards of glass in the soldier’s body, and therefore the surgeon would be unable to save them. That’s a classic example of a weapon system that causes and inflicts unnecessary suffering, blinding lasers. So something that instead of just disabling the soldier temporarily that calls permanent blindness, you can shoot them and kill them, but don’t permanently blind them, don’t develop a weapon. That’s the objective, is to permanently blind them. If there’s a side effect of an explosion and a soldier’s permanently blinded, that’s one thing. So these are the of, and there’s many, many other roles, they actually, you can reduce them to several principles that I’m happy to talk about. But that was some of the impetus really for these treaties.

J. Craig Williams:

I want to get into the principles, but first it is really one thing to have laws, but it’s another thing to enforce them, and it’s even something else to have the US kind of thumb their nose at it. How does this enforcement work?

Rachel E. VanLandingham:

Well, Craig, I mean, the unfortunate fact here is in the United States that most violent crimes go unaccounted for as well go unsolved, you don’t have a criminal trial for every murder in the United States, not even for, I believe the last check, and it’s been a few years, but it was the vast majority of murders. So it’s, for me, the greater impact for a country agreeing to a state agreeing to abide by these rules, which the United States helped write most of these and helped was at the forefront of leading the world to adopt them, is that it’s incorporated into training, into the ethos of the professional soldier, into their training, into their professionalism culture. So for me, enforcement, yes, is very important and it’s important component of it, even war crimes and prosecuting war crimes when there’s credible evidence that a war crime has been committed is incredibly important, not only to tell the other soldiers, the other fighters, military members within that unit, Hey, we appreciate that you’re doing the right thing.

It’s really, really hard to treat a detainee nicely in your custody when you think that that guy just was responsible for an improvised explosive device and IED that just blew up your buddy’s Humvee. I mean, the natural inclination is want to kill this guy, but the law of war says you’re not going to kill him because he’s in your custody now. And so when one of our soldiers does give into that inclination and kills a detaining or custody, he absolutely, or she absolutely must be prosecuted if the evidence supports it enough that there’s credible evidence to support a conviction beyond reasonable doubt because that’s, or else we’re doing a disservice. So the vast majority of service members who do serve honorably, who do abide by these laws, even in the hardest of times in such as that example, so thumbing our nose. So it’s funny that you asked about that, Craig, because an article just came out a few hours ago today stating that the president, the current Trump administration, is cutting funding, I think for about 12 different programs, funding streams that the Department of State was running for nonprofit organizations around the globe that were investigating war crimes and helping provide accountability for war crimes.

And it’s important to note that under our treaty obligations on the Geneva conventions, we took on an obligation to ensure respect for these treaties and ensure respect and take many forms. But one way was we were helping fund nonprofit organizations that were helping our ally Ukraine compile and preserve evidence of Russian war crimes in the hopes that at some point there would be sufficient prosecutions why we would not want to help fund that beyond me and our current Secretary of defense. Pete Hegg said that his senate confirmation hearing seems like a year ago now, but it really was only a few months ago, mentioned that the gene conventions were designed for an old war or for previous wars and not for today’s wars. When he fails to realize that there are additional protocols to those gene conventions that were written later, we’re not signatories to them, but the United States had stated in policy that the majority of these rules, even if we’re not a technical party to the treaty, they apply via what we believe is customary international law.

That is the United States believes that most of these rules we’re going to follow because we think we’re legally obligated to do so, and there’s enough state practice to show that this is what we believe we’re going to do. And these rules were not written for World War ii. They were updated in the 1970s, and the fundamental principles of the laws of war allow for a great deal of death and destruction. They allow for one of the biggest legal differences between peacetime, law enforcement authority, the ability to use lethal force on our city streets by police officers, which is why necessary it better be absolutely necessary before you kill someone on the streets of Los Angeles. The difference between that peacetime use of force and the peacetime legal paradigm and the law of war is you don’t have to wait for that enemy soldier to be shooting at you.

In fact, you prefer to drop a bomb on his military barracks where he and his buddies are all sleeping, he and she, where they’re all sleeping because you get to target people, lethally apply violence to kill them based on their status. And the why the law allows for this huge difference between only using lethal force when necessary to, oh, you can kill people based on their statuses belonging to that enemy. Enemy either non-state armed group or enemy state is because it’s the trade-off. You get to kill them whenever, once you’ve identified that they belong to the enemy as long as they’re not or to combat, as long as they’re not already your prisoner or in the hospital incapacitated due to wounds or sickness, essentially. But you can kill them based on their status is because on the other side of that coin is you absolutely cannot kill civilians.

You don’t get to target civilians. And that’s one of the fundamental principles of the law of war, this law of armed conflict, international humanitarian law, because the principle of distinction, the world is divided as civilians and civilian property, military and military objectives, which also include obviously military members. And you’re not going to target civilians, period unless civilians are acting like soldiers, like shooting at you directly, providing intelligence to battlefield operators, et cetera. So there’s caveats. You can cause collateral damage, lethal violence to civilians and civilian property according to another principle. When that’s damage to civilians, the death of civilians and damage to civilian property is not excessive compared to the concrete and direct to military advantage gained of neutralizing or destroying a military objective. And that sounded like a mouthful, but basically it’s saying, Hey, look, we go after military, the fighters, right? And it doesn’t just have to be military because as we see today, I think last check there were well over 60, what are considered non international armed conflicts going on right now around the world.

So we have the classic state V State War, Ukraine, v Russia is the classic example right now of that Israel versus Iran, another state V State War. But then we also have over 60 non international armed conflicts. So basically terrorist groups and surg groups, militias, non-state armed groups that aren’t a state don’t meet the classic criteria of controlling, governing and controlling territory, et cetera. But they have amassed enough fire power and are organized enough that they’re able to perpetrate violence on basically a state-like level. So you’ve got Israel Hammas, you had the United States versus Al-Qaeda versus isis, et cetera, and those are considered non international conflicts. But the same principles apply. You still have fighters, you still have belligerents, and you still have civilians. But the harder part in these conflicts and enormously challenging is that these non-state actors, these terrorists, insurgents, what have you, try to look like civilians, because they don’t want to be targeted and they know what the rules are.

And so it makes it really threatens civilians. And civilians are, as we’ve seen around the world, suffer a great deal in non international armed conflicts to a greater degree than in international armed conflicts. Because of the refusal of these terrorist groups to follow distinction, they don’t engage in their own active distinction requirements. They don’t wear a uniform. I wore a uniform for 24 years. I value those who wear a uniform today. They are saying by wearing a uniform, they’re doing it to say, I’m a target. Kill me. Don’t kill my dad at home. Kill me. Don’t kill my civilian sister. But groups like Hama says, simply don’t do that. Craig,

J. Craig Williams:

At this time, let’s take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by Professor Rachel Van Landingham, Lieutenant Colonel retired. She is also the co associate Dean of research and Erwin Buckhalter, professor of law at Southwestern Law School. She’s currently teaching a class on the law of war in London. There’s this similar thing that’s going on on the streets here in the United States, which to me seems a bit crazy from the standpoint that enforcement law enforcement is allowed to use things like tear gas and flash bangs and rubber bullets, pepper spray that are violations of the Geneva Convention and aren’t supposed to be used in war. How is that difference explained?

Rachel E. VanLandingham:

Well, to be honest, I felt like that was a bit of a misnomer. A mischaracterization mean non-lethal means can be used for crowd control and things like pepper spray can be used in certain types of situations. So it really gets down to how are these things being used? But it’s not very often that the United States military wants to use rubber bullets, right? Because it’s going after an enemy. So it’d really be something more like a crowd control type situation. And it’s because some of the trade-offs, it’s not necessarily Geneva conventions, and there are additional protocols. There are numerous, numerous other supplemental treaties, especially once a deal with particular weapons systems as well as two different conventions that is treaties regarding chemical weapons, and that’s where riot control agents would fall under. And the United States has consistently said, yes, we’re still going to use this in armed conflict situation, but we’re going to use it in specific situations when necessary.

And it’s really comparing apples and oranges, I think, for the civilian law enforcement paradigm, and when they can use non-lethal means to crowd control and when the US military can. But really where that idea comes from, your statement comes from this idea of riot control agents. And because they’re a form of chemical, they could be used, looked at and used as some kind of chemical weapon. And that’s where there’s particular rules that are set out to say ended. They’re briefed and they’re in the DOD Department of Defense Law of War manual. And commanders are told before you’re going to use these, you’re going to go to your JAG and see if it’s the appropriate situation. And they’ll advise lawyers advise, commanders decide, and I mean, for example, white phosphorus, the United States, even though other countries have signed on to saying they will not use white phosphorus at all, the United States says, yeah, we’re going to use white phosphorus even though if it gets on a human being, it’s going to burn everything off and it’s really difficult to stop that.

It’s going to melt them essentially. But we use white phosphorus from marking targets, but the rest of the law of war, those principles still apply. You better be sure that you’re minimizing the impact on civilians. There’s a fundamental rule to take constant care to minimize the impact of military operations on civilians. And there’s the legal rule of taking all feasible precautions. In that same vein, feasible precautions reduce the impact of military operations on especially targeting attacks, which is a term of art on civilians and civilian property. So even if we’re using white phosphorus in a marking operation to mark enemy military objectives, we better not be doing it, for example, in an area that’s super parched because there’s been a drought there for five years and there’s a ton of foliage and dead foliage and wooden homes that it’s going to cause a hundred mile fire because again, that would be really violating the idea of distinction of being able to target or use military means and methods against military objectives.

And to reduce, you’re not supposed to use anything that’s going to, that you can’t control the effects of, and I’m just going to tell a really quick story here, Craig, because it’s funny. So the US Army in World War ii, bless their hearts, and there’s a memorial to this or a little center dedicated this down in San Antonio, the US Army out in New Mexico was experimenting in World War ii, attaching incendiary devices to bats, and they wanted to be able to drop these bats with incendiary devices, things that would catch on fire, put them in a plane, fly them over to Japan and drop them in Japanese cities because many of the homes in Japan were built out of paper. They wanted to burn these places down. They thought, oh, bats would go and burn things down and burn military objectives down as well as houses.

And I mean, that’s a classic example of violating is an indiscriminate attack, which is a violation, a serious violation of war crime under the modern laws of war because you can’t control where those bats are going to go and what they’re going to catch on fire. And you’re supposed to be minimizing the impact of your military operations on civilians, and you’re only allowed to be directly targeting with harming, destroying, or degrading military objectives. And if you can’t control your weapon system and keep it only to military objectives, then it’s indiscriminate. And in fact, the army, while they’re training these bats, burn their entire base down essentially in New Mexico, and then they decided maybe this isn’t a good idea. So for someone to say, oh, these laws are quaint, no, I mean, there really isn’t much that because they’re designed, a military can still achieve. There are military objectives with shock and awe to go back to a 2003 phase while adhering to the principles and the finite rules of the laws of armed conflict.

I mean, how much more destruction do you, well, if you want to take an entire city and kill all the civilians, well then no, you’re not going to be able to do that while abiding by the law of war. But most Americans, when surveyed don’t want us to go and take out an entire city, we don’t want to kill civilians. We want to subdue the enemy with the least amount of death on our side, but it doesn’t mean targeting families. So I mean so much of, I think of the language and the narrative around, oh, all these rules tie our hands behind our back, really, what else do you want to be able to do? Talk to your lawyer, and I bet I can find a legal way for you able to engage in an incredible amount of violence,

J. Craig Williams:

Two lawyers in the same room. Right. Well, what are your thoughts about the US strikes on Iran’s nuclear sites and how does that fit into the proportionality aspect of the law of war?

Rachel E. VanLandingham:

So there’s actually, thanks for asking that question, Craig. There are two different concepts of proportionality in the laws that regulate war. One is proportionality under the Yu said Bellum, the charter, which is when forces used in self-defense by a state, and it means in response to either an ongoing armed attacks or an imminent armed attack. The proportionality concept says only take out what’s causing that threat. So I mean, it’s similar in a way, in an analogous way to self-defense by you and I on our city streets, if someone’s about to swing at us, we can push them away, right? Use proportional force to push ’em away. If they’re about to swing at us and hit us in the face, we can’t take out a gun and shoot them dead because we’d be doing more. But essentially, the usad Beum proportionality says, okay, if you think it’s a nuclear threat, then go after the nuclear facilities.

However, I believe this war under the Usad bellum and the UN charter is actually being, is part of an ongoing arm conflict between Israel and Iran. That actually goes back at least to 2023 and the horrific 2000 October 7th, 2023 Hamas attack against Israel. But we’re talking specifically about the US strikes. So there’s also a concept of proportionality under the use in bellow the laws and customs of war law of armed conflict, IHL internationally humanitarian law. And that is the concept that I mentioned earlier, which is, yes, we have to follow distinction only go after military objectives, not civilians or civilian property. And when you’re going after those military objectives, if civilians are going to be impacted, and you should know this because of your strategic assessment, your intelligence prior to launching an attack that civilians that are killed, or civilians that are civilian property that’s damaged, as long as it’s not excessive viewed by a reasonable commander, as long as that that civilian death and destruction is not excessive compared to the direct and concrete military advantage to be gained by destroying or degrading the military objective.

It’s okay. So you can see it’s a pretty broad concept. It allows for a lot, right? And so for example, if a commander believes that the enemy’s military commanders he has located and they’re with let’s say 50 members of their family, but he believes that they’re so key in instrument, the military advantage to be gained is huge by killing them, it’s going to allow for more civilian death deaths in that because it says it can’t be excessive. So here really, I mean from the US strikes, I haven’t read much about civilian casualties or civilian deaths except for you would have perhaps civilian scientists, but I thought a lot of the had already left those facilities. So really proportionality in the law of armed conflict sense doesn’t apply unless we have civilian damage.

J. Craig Williams:

And let’s take another quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m back with Professor Rachel Vanlandingham, Lieutenant Colonel, retired and co associate Dean of Research and Erwin r Buckhalter, professor of law at Southwestern Law School. So Rachel shouldn’t President Trump’s decision to attack Iran have been approved by Congress.

Rachel E. VanLandingham:

Okay, so Craig, now we’re switching gears from international law to domestic law to US constitutional law. And we’ve seen several folks on Capitol Hill senators, et cetera, introducing legislation to curb this use. I’m one of those that who have taught this in my national. I’ve also teach national security law, as you mentioned, and I’ll be honest, I think as strikes were lawful under existing US constitutional and statutory law, and here’s why. So the US Constitution vests in Congress, the authority to declare war. The original version of that provision actually said, Congress shall have authority to make war. And the founding fathers, surely with some founding mothers whispering in their ear too, I hope. But the founding fathers changed that terminology from make war to declare war because they wanted to ensure that the President still maintained the inherent right and responsibility to use force to defend the United States upon invasion.

And that was at the time when he had the senators and representatives who lived on their plantations, farms, what have you, and Congress wasn’t always in session. They couldn’t always just call in. So they didn’t want to have In the Constitution a provision said, only Congress can make war because what if the President had to? So they changed it to declare war. But even when they changed it to declare war, declarations of war were passe. So courts over a series of court cases going back to the Civil War, including the Supreme Court, it really emphasized that it’s a shared war power that the power to make, to go to war, to be engaged in a war is a shared war power. And how does Congress, what’s their lane here? Congress funds war. If Congress doesn’t want a war to be fought, they cut off funding.

But how do you cut off funding through the standard legislative process, not by passing some kind of resolution, but by getting the majority of both houses and then to agree and then overcoming a presidential veto. I mean, that’s how legislation has passed. So they can stop funding or they can pass legislation that’s veto proof. So then it would have to go back and get two thirds approval that says, stop this war. So we have the infamous war powers resolution, a federal statute emanating from, of course, the Vietnam War passed in 1973, and we have basically every president since then declaring it an unconstitutional and unconstitutional intrusion on the Commander and Chief’s Article two, authority of the Constitution. I don’t necessarily agree with that, but what it does do is provide limits on the President making war. But every presidential administration, democratic and Republican, their offices of legal counsel, which is the highest office within the executive branch for making binding determinations on the rest of the executive branch of what is federal law, has said, Hey, look, we believe that war means prolonged exposure, prolonged and substantial involvement that exposes our military forces to great danger, not dropping bombs, not bombing runs like this past bomb, like what President Trump authorized, just heavens, that was just a few days ago, targeted strikes on nuclear facilities and no boots on the ground.

So I mean, we had, I think it was hundreds and hundreds of sorties. I mean, I supported operation and deny flight when I was a young officer stationed Aviano, Italy in the 1990s. President Clinton did not have an authorization to use military force from Congress. He did not have a declaration of war because we’ve never had a declaration of war from Congress since World War ii. He had Congress not doing anything saying, oh, sounds good, looks good, and not stopping him. We had President Obama sending fighters and Ariel Refuelers to Libya in 2011. He did not have any security, excuse me. We did have security council resolution. It was the last one. He did not have domestic authorization to use military force from Congress. He did not have a declaration of war. Congress seemed to be fine with that. They didn’t do anything. So there’s been a consistent practice by presidents, both Democratic and Republican to engage in military strikes, even prolonged ones such as President Clinton in the 1990s with Bosnia and Serbia, et cetera, without an authorization news military force with their own executive branch lawyers saying, Hey, look, this isn’t war because it’s not substantial and prolonged involvement exposing great numbers of troops to danger and to death.

And the Supreme Courts never weighed in on that sticky wicket. So the precedence really goes to the precedent here of this being a lawful use of his commander and chief domestic constitutional authority to use the military to engage in a strike and for purposes of great national security. And then one would have to go to what are the purposes of great national security preventing the threat of a nuclear, nuclear armed nuclear armed Iran? That’s stepping aside from where the intelligence is on that and what it reasonably shows. But that’s basically the argument for this being lawful under US constitutional and statutory domestic law.

J. Craig Williams:

Right. We talked about that, the Iran bombing. Just to kind of finish things up before we wrap up the end of the program, let’s talk about Hiroshima and Nagasaki and how that fits into proportionality and unnecessary harm.

Rachel E. VanLandingham:

That’s one that I have coming up in about a week and a half. My current students, and I showed it this past semester in my spring Law of War course, which is there’s been scholars and legal experts, including my dear, dear friend, an incredible, brilliant legal mind, professor Jeffrey Korn, who’s also a retired lieutenant colonel, but from the army, it’s really hard for that to be considered for me to consider the Japanese dust and suffering to not be considered excessive compared to the concrete direct military advantage gained. However, we didn’t have the specific articulation of this proportionality rule, which in current form is found in an additional protocol, additional protocol, one to the genome conventions. It was not in the same form during World War ii. Again, our current modern law of war is in response to those horrible things that happen in World War ii.

So on one hand, I’m not going to go back and say what they did was unlawful at the time, and I think folks can make an argument that it was necessary to actually end the war that the Japanese were never going to finish. However, there is no derogation clause to the current proportionality analysis, but where we see it playing out is the more existential the threat is deemed to be, the enemy threat is deemed to be the less and less that the excessiveness is ever going to apply. If you think you’re facing an existential threat and you have to kill everyone on the other side, all the civilians that are killed when targeting military objectives, none of them will be considered excessive. So it really eviscerates the proportionality rule, and again, it was not in the same formulation during World War ii. It does seem like, and again, we even had, and the feasible precautions rule today to take off feasible precautions to minimize the impact on civilians and civilian property during a direct attack, and the fundamental obligation to take constant care to minimize the impact of military operations on civilians. These things are directly resulting. Those rules, these concepts result from what happened in World War ii. I sure hope we’re not going to be at a stage ever again to think we need to drop such a horrific type of bomb in another city. But now today, we have our enemies also have, well, our hegemonic enemies. Many other states have nuclear weapons. So I mean, that’s the constraining factor here, not necessarily the law.

J. Craig Williams:

Right. I think somebody once said we could make the rubble bounce.

Rachel E. VanLandingham:

Yes. And so, Greg, I’ve talked a lot today. I am sorry. I hope that wasn’t too much.

J. Craig Williams:

No, it was great. As we wrap up our program, let’s get your final thoughts and your contact information so our listeners can reach out to you.

Rachel E. VanLandingham:

Well, folks can find me on LinkedIn. That’s primarily where I post various things under Professor Rachel Vanlandingham at Southwestern Law School. I am on LinkedIn, and I do try to publish my various op-eds and essays there. That’s the best place to reach me, as well as my email can be found on my law school website at Southwestern Law School in Los Angeles. Been around since 1911, independent law school that really helps change lives.

J. Craig Williams:

Well, great. Rachel, thank you very much. It’s been wonderful to have you on the show,

Rachel E. VanLandingham:

Craig. You’ve asked terrific questions. It’s always a pleasure to discuss this with you.

J. Craig Williams:

Thank you. Well, here are a few of my thoughts about today’s topics. As you heard from Professor Vanlandingham, it seems apparent that most countries will provide whatever justification they may need to work around the laws of war. But really, the laws of war seem to be more applied to the soldiers and the boots on the ground, as she says, in terms of the way that war is conducted. Unfortunately, we have stepped outside the laws of the war at various times in our past, and that’s why we have new changes to those laws, protocols, and conventions. But you and I aren’t involved in the day-to-day things, and it’s important to understand how these things affect our lives and the citizens of other countries around us. Some of it is absolutely terrible in the way that it’s occurred. Well, that’s it for my ran on today’s topic. Let me know what you think. If you like what you heard today, please rate us on Apple Podcasts to your favorite podcasting app. You can also visit [email protected], where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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