Bosnia and Herzegovina, IHL Dissemination and the Role of Legal Advisers
Case prepared by Eliza Carmen, Kyle Hunter and Molly Wooldridge, J.D. students at Emory University School of Law, under the supervision of Professor Laurie Blank, Emory University School of Law; with the contribution of Jemma Arman and Isabelle Gallino, LL.M. students at the Geneva Academy.
A. IHL DISSEMINATION AND THE SPECIAL AGREEMENT OF 22 MAY 1992
At the invitation of the International Committee of the Red Cross,
Mr. K. Trnka, Representative of Mr. Alija Izetbegovic
President of the Republic of Bosnia-Herzegovina
Mr. D. Kalinic, Representative of Mr. Radovan Karadzic
President of the Serbian Democratic Party
Mr. J. Djogo, Representative of Mr. Radovan Karadzic
President of the Serbian Democratic Party
Mr. A. Kurjak, Representative of Mr. Alija Izetbegovic
President of the Party of Democratic Action
Mr. S. Sito Coric, Representative of Mr. Miljenko Brkic
President of the Croatian Democratic Community
Met in Geneva on the 22 May 1992 to discuss different aspects of the application and of the implementation of international humanitarian law within the context of the conflict in Bosnia-Herzegovina, and to find solutions to the resulting humanitarian problems. Therefore
- conscious of the humanitarian consequences of the hostilities in the region;
- reiterating their commitment to respect and ensure respect for the rules of International Humanitarian Law;
- taking into consideration the Hague Statement of November 5, 1991;
the Parties agree that, without any prejudice to the legal status of the parties to the conflict or to the international law of armed conflict in force, they will apply the following rules: […]
The Parties undertake to spread knowledge of and promote respect for the principles and rules of international humanitarian law and the terms of the present agreement, especially among combatants. This shall be done in particular:
- by providing appropriate instruction on the rules of international humanitarian law to all units under their command, control or political influence;
- by facilitating the dissemination of ICRC appeals urging respect for international humanitarian law;
- by distributing ICRC publications. […]
B. COORDINATION AMONG LEGAL ADVISERS ON RULES OF ENGAGEMENT AND OTHER LEGAL MATTERS
[Source: James A. Burger, Lessons Learned in the Former Republic of Yugoslavia. In: Dieter Fleck, The Handbook of the Law of Visiting Forces, Oxford University Press, 2001, pp. 525–26]
The Legal Advisers
During the Bosnian operation there were a variety of legal advisers throughout the theatre, and they were used in surprising new capacities, as the commanders dealt with unprecedented and complicated issues. Lawyers were located at the IFOR [Implementation Force] HQ, the ARRC [Allied Rapid Reaction Corps] HQ, the Multinational Division HQs, and within many of the national units. The IFOR Legal Advisor at Sarajevo dealt with the SHAPE [Supreme Headquarters Allied Powers Europe] Legal Office, and provided coordination and direction for the other legal advisors in [the] theatre. Monthly meetings were held at Sarajevo to make sure opinions were not in conflict, and actions were coordinated. Special issues were discussed, such as ROE, support to the elections, the problem of resettlement, and disarmament. The meetings were generally held prior to the operations so that the lawyers could help their commanders resolve problems prior to their occurrence. Therefore, differences over ROE were usually resolved early on, and everyone was in agreement on how they applied to expected incidents.
Not all of the nations had military legal advisers, but their presence certainly helped to resolve operational questions when legal advisors from the different nations could discuss and resolve differences. It should also be recognized that there is a duty under Protocol I to the Geneva Conventions to provide legal advisers on matters of humanitarian law. Lawyers in Bosnia worked closely with their commanders and staff on operations plans, ROE, and on actual operations, assuring [sic] that documents and actions conformed to the laws of war. As I already indicated, my main job as the IFOR Legal Advisor was to help my commander interpret the provisions of the Dayton Accords. But in situations where conflicts might occur this involved the laws of war, and how they applied to the military missions. Because lawyers are problem solvers in complex situations and because of the requirement to have legal advice on matters involving the rules of humanitarian law, there is a growing realization of the need to provide military attorneys, and also to train legal advisers for peacekeeping or peace enforcement missions.
C. THE ROLE OF JUDGE ADVOCATES IN THE WAR IN BOSNIA AND HERZEGOVINA
Judge Advocate Support [pp. 46-47]
Like operations in Haiti, Operation Joint Endeavor and the continuing operations in the Balkans profit from heavy judge advocate support. Judge advocates, legal administrators, noncommissioned officers, and legal specialists, from the active and reserve components, deployed in support of OJE [Operation Joint Endeavour] and the continuing operations. […]
TFE [Task Force Eagle] judge advocates provided full legal support to two brigade combat teams, an aviation brigade, a corps support group, a military police brigade, the division artillery staff, the Division Main in Tuzla, and the Division Rear.
Judge advocates at every level - from NATO to the soldier on the ground - impacted on these operations. They:
- Helped craft the GFAP [General Framework Agreement for Peace]
- Assisted commanders at every level - from the coalition level to the base camp in the Zone of Separation - with every aspect of the Rules of Engagement
- Helped negotiate, write, and interpret the crucial Status of
Forces Agreements, Transit Agreements, Implementing and Technical Arrangements, and Acquisition and Cross Servicing Agreements […]
- Developed expertise and procedures while participating in critical Joint Military Commission and bi-lateral meetings.
The day-to-day advice judge advocates provided to commanders in Bosnia proved crucial. Judge advocates serving in isolated base camps performed every aspect of legal support to operations.
Rules of Engagement (ROE) [pp. 56-59]
"The aggressiveness that is important in wartime operations must be tempered with restraint in the ambiguous environment of peace operations”
These contrasting and seemingly conflicting quotations drive home the immense challenge facing land component forces on how to apply the use of force in peace operations. The quotes above reflect well the delicate balance of applying initiative and restraint - a tension that soldiers and marines face everyday in peace operations. The legal framework of operations in the Balkans - to include Chapter VII of the U.N. Charter, UNSCR 1031, the GFAP, and the ROE -clearly provides for the use of necessary force, to include the use of deadly force. The robust nature of these peace enforcement ROE provided for decisive action, when appropriate, by Task Force Eagle (TFE) personnel. On the other hand, military operations in the Balkans were undertaken with a cease-fire in place and with the consent of the Entity Armed Forces (EAF). To maintain the very fragile peace in Bosnia, TFE personnel had to maintain their impartiality-both actual and perceived. The ill-advised use of force could eliminate this perception of impartiality and re-ignite the conflict. Against this backdrop of potentially conflicting messages, judge advocates successfully advised commanders and trained soldiers on “who can shoot at what, with which weapons, when, and where”. […]
Judge advocate participation in interpreting, drafting, disseminating, and training ROE peaks in multinational peace operations. ROE are a commander's tool to control the use of force and operators […] are and must remain responsible for the development of the ROE. Nevertheless, commanders involved in preparing for and executing operations in the Balkans turned to their judge advocates to take the lead in interpreting, drafting, and training the ROE. Within TFE, judge advocates - captains, majors, and lieutenant colonel - understood the legal, policy, and military underpinnings of the ROE when advising commanders on the use force to accomplish the mission. Operations in the Balkans validated this critical function where soldier-lawyers, at all levels, provided advice that expanded or limited a commander's options to accomplish the mission.
I. Classification of the Situation and Applicable Law
1. In 1992 a conflict broke out between the forces loyal to the newly created government of Bosnia and Herzegovina on the one side, supported by Croatia, and on the other side the Bosnian Serbs, supported by the Yugoslav People’s Army. How would you qualify this situation? Does it matter whether the Yugoslav People’s Army had overall control over the Bosnian Serbs? What is the applicable law? Is NATO bound by IHL? Why? (GC I-IV, Art. 2
2. Did the conflict end with the Dayton Peace Agreement in 1995? What does “general close of military operations” mean? (GC IV, Art. 6
; P I, Art. 3
3. How do you classify the situation after 1995? Was IHL applicable? Was it applicable to the use of force by peacekeeping forces?
II. Legal Advisers in Armed Conflicts and IHL Dissemination
4. Is there an obligation to make legal advisers available under IHL? Where can this obligation be found? When exactly do they need to be available? To advise who? Do all commanders need a legal adviser? (P I, Art. 82
; CIHL, Rule 141
5. Is there an obligation for States to include the teaching of IHL in military training? Is this obligation applicable even outside armed conflicts? Who else needs to be trained in IHL? (GC I-IV, Art. 1
; GC I-IV, Arts. 47
; P I, Art. 6
; P I, Art. 82
; CIHL, Rule 142
6. Is there an obligation under IHL to consult legal advisers before launching an attack? Is the advice of the lawyers binding upon the commanders?
III. Elements Contributing to Respect for IHL
7. Is the requirement to have sufficiently competent legal advisers in an armed force part of the fulfilment of the obligation of “ensuring respect” for IHL? Considering document A, how else can the parties to the conflict comply with this obligation in your opinion? (GC I-IV, Art. 1)
8. Which factors, in your opinion, created the need for an organised system of lawyers during the NATO operations? Why is it important that there be coordination among the different NATO lawyers from the various contributing countries?
9. What are the dangers of not having legal counsel at the decision-making level? What would be the risks for the civilian population? For the commanders? For the reputation of the parties? What are the risks of commanders having a legal adviser?
10. Document C mentions the challenge of “how to apply the use of force in peace operations”. Does IHL provide specific rules for such peace operations?
11. Document C refers to “soldier-lawyers”: what is the benefit of having someone trained in the legal field that has also undergone military training?