Concluding Observations: The Influence of the Conflict in Iraq on International Law

AuthorYoram Dinstein
PositionProfessor Emeritus, Tel Aviv University, Israel
Pages479-494
XIX
Concluding Observations: The Influence of
the Conflict in Iraq on International Law
Yoram Dinstein*
Theconference from which these articles derive was an exceptionally success-
ful and multilayered one in which arich lode of legal insights and lessons
learned (based, in many instances, on firsthand experience in the field) was truly
struck. Icannot do justice to all the contributions to the conference and to this vol-
ume; Iwill simply focus on ten points that look particularly apposite to me.
A. "Lawfare" versus Warfare
The first point relates to the dichotomy between the laws of warfare and the war of
"lawfare." The term "lawfare"apparently coined, and certainly popularized, by
Major General Dunlapis not just aclever play of words. We live at atime when
the shrewd use oflaw as aweapon in the marketplace ofpublic relations may often
counterbalance the successful employment ofweapons in the battlefield. In the de-
bate, General Dunlap has suggested that it may be agood idea to educate the civil-
ian population, which is potentially subject to aerial bombardment, to reconcile
itself to the inevitability ofsome collateral damage being engendered by almost any
attack. My own submission is that before you undertake the massive (and perhaps
impossible) task ofteaching the enemy population to accept death as afact oflife, it
*Professor Emeritus, Tel Aviv University, Israel.
The Influence ofthe Conflict in Iraq on International Law
may be more productive to educate the general public on our side ofthe aisleand
especially the media and the non-governmental organizations (NGOs)to face
up to the ineluctable consequences of war.
Speaking of the media, it cannot be ignored that they report armed conflicts
with little understanding of the legal niceties, and this has aserious impact on the
perceptions of the public at large. The very availability of precision-guided
munitions (PGMs) at this moment in historyasubject matter that Ishall return to
infra Chas made commentators jump to the hasty conclusion that every attack
can be surgical, that every payload may acquire the target "on the nose" and that no
collateral damage should be viewed as immaculate anymore. As amatter of fact, in
April ofthis year, amajor West Coast newspaper deemed fit to state that "[y] ou can
kill all the combatants you want. What you are not allowed to do is cause collateral
damagecivilian casualties." 1Astonishingly, the authority cited for this implausi-
ble assertion is supposed to be no other than yours truly! Ihope that Ido not have
to persuade those present here that, in fact, Ihave always argued otherwise, i.e., that
there is no way to avert altogether collateral damage to civilians. But the real issue is
not the misleading authority: it is the misleading statement.
What is to be done about such misrepresentations of the law of armed conflict
(LOAC)? In my opinion, there are three practical steps that should be taken:
In the daily briefings provided to the media during hostilities, it is
indispensable to incorporate some legal interpretation. In other words, it is not
enough to describe what happened, or even to include real-time visual (camera or
video) coverage of Air Force missions and similar highlights of the military
operations. It is absolutely necessary to offer the media alegal appraisal of the
events or, in other words, abit of "lawfare" adjoined to reports of warfare. Surely,
the US Air Forceemploying, as it does, some 1,300 lawyerscan allocate the
personnel required to fill what is currently adangerous vacuum in the media
briefings.
As pointed out by Professor Heintschel von Heinegg, the armed forces
cannot afford the interminable delays occurring prior to the publication of the
final conclusions of "in-house" armed forces fact-finding reviews of lethal
incidents in which something has gone wrong. The high command must
understand that, in the context of "lawfare," such investigations must be
drastically condensed in time: they may even deserve priority over some military
operations. The critical exigencies of "lawfare" demand putting an end to the
present state of affairs in which charges ofwrongdoing are immediately splashed all
over the front pages of the world presswithout any authoritative response
whereas results of the in-house inquiries, once released (frequently, many weeks
480

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