July 31, 2024 • 21 mins
Warfare is far more complicated than throwing some troops with equipment onto a wide-open field and seeing who wins. There are hospitals, homes, factories, and many other things that make decisions exceptionally complicated for both soldiers and the people who live where war happens. Commander Marc-André Vary is a Legal Officer, one of his jobs is to help commanders and soldiers understand how the Law of Armed Conflict applies when there are only seconds to make the right choice.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Cdr Marc-André Vary (00:08):
It's impossible to win hearts and
minds by destroying villages,contaminating their water,
destroying schools, and killingcivilians.
Capt Adam Orton (00:21):
Welcome to the Canadian Army Podcast. I'm
Captain Adam Orton. On thisepisode, we have Commander
Marc-André Vary, who is theDirector of International and
Operational Law and a LegalOfficer with the Office of the
Judge Advocate General or JAG,which basically means he's a
military lawyer with theCanadian Armed Forces. And we're
gonna talk about the Law ofArmed Conflict. Welcome to the
podcast, sir.
Cdr Marc-André Vary (00:41):
Perfect. Thank you. Thanks for having me.
Capt Adam Orton (00:44):
So when talking about the Law of Armed Conflict,
you see, soldiers have a lot ofstrong opinions about how they
would act in certain scenarios.Why is this such a contentious
subject?
Cdr Marc-André Vary (00:57):
I think it's, very valid for soldiers to
feel that way. I mean, everyonewill have a different
perspective of the applicationof the Law of Armed Conflict
through their trades, forexample. Gunners will feel
differently than people in theAir Force, sailors, the
infantry, and engineers. Sorecently, I had the privilege of
(01:18):
instructing the Law of ArmedConflict to engineers who were
deploying on UNIFIER, who areabout to train Ukrainian troops
on, various activities,including the law of armed
conflict. And, of course, youknow, they were seeing it
through the lens of theengineers, you know, some of
their questions related to mindsand booby traps and whatnot, and
(01:38):
their feeling, and some of themhad learned from the experiences
of the Ukrainian soldiers on theground.
So it's very valid to see thingsas hot topics. However, there
are extremely valid reasons atthe end of the day for the
application of the Law of ArmedConflict.
Capt Adam Orton (01:53):
So maybe so everybody understands what we're
gonna be talking about here,what is the Law of Armed
Conflict? What does it all layout?
Cdr Marc-André Vary (02:00):
So the Law of Armed Conflict, in the
broadest sense, determines whenstates may resort to the use of
force, of armed force, I shouldsay. And in its narrower sense,
how those states may conducthostilities during armed
conflict. So the purpose of LOACis to regulate the conduct of
hostilities and to protectvictims of armed conflict.
Capt Adam Orton (02:22):
Can you break that down for us? Like, what are
the principles or what are theconcepts of the Law of Armed
Conflict?
Cdr Marc-André Vary (02:29):
You know, if we get down to the primary
concepts that underline the Lawof Armed Conflict, we look at
military necessity. The conceptof military necessity
presupposes that force can beused, but that force can be
controlled. The use of force isnecessary to achieve the
submission of the enemy, and theamount of force used is limited
(02:50):
to what is needed to achieveprompt submission. But military
necessity is not a concept thatshould be considered in
isolation. Related to theconcept of military necessity is
the concept of humanity, whichforbids, you know, the
infliction of suffering, injury,or destruction not actually
necessary to the accomplishmentof the military purpose.
(03:13):
We're not held to a standard ofperfection, of course. So the
immunity of the civilianpopulations does not preclude
unavoidable incidental civiliancasualties that may occur during
the course of the attacksagainst legitimate targets, and
that are not excessive inrelations to the concrete and
direct, military advantageanticipated. At the end of the
(03:33):
day, you know, when speaking tothose engineers who had direct
relationships with the Ukrainiantroops, they understood that
some of the actions of theenemy, for example, here, the
Russians, they had seenatrocities, and they were asking
themselves, like, if theRussians violate the law, why
shouldn't I, you know, in returnviolate the law itself? What the
(03:55):
Ukrainians usually respond islike, we're not them. And of
course, at the end of theconflict, when peace is
achieved, there's always animpact on the civilian
population, and you wanna ensurethat peace can be fully gained
afterwards.
And of course, you know, forCanadian Armed Forces members,
when we're out on operations, Iit's it's very, very important
(04:16):
to win the hearts and minds ofthe of the local population.
Capt Adam Orton (04:19):
Yeah. Absolutely. And we talked about
the Law of Armed Conflict andthose engineers in particular in
another episode. And they'd saidhow even that interaction kind
of drove how they changed thetraining because they'd started
examining the Law of ArmedConflict kind of at the back end
of the training. But then duringsome of the exercises, the
troops would be, like, oh, whydo we do this this way? And kind
(04:42):
of drawing some of the parallelsthat you were discussing. And
then they're, like, if we frontload this, it contextualizes
everything else. And also, kindof what you said is if you burn
all the bridges, right, the roadto pieces a little bit more
challenging. And so applyingthat law probably makes it a
little bit easier to achievethat piece at a certain point
(05:02):
if, you know, you're notconstantly committing
atrocities.
Cdr Marc-André Vary (05:05):
Well, people have, you know, long term
memories. They will remember ouractions. Our troops who
represent Canada abroad are all,from my perspective anyway,
diplomats, not in the legalsense, but they're
representatives of thegovernment of Canada. And so, as
a representative of thegovernment of Canada, we go out
(05:27):
there and one of our primarymissions is to ensure that we're
there displaying Canadianvalues.
Capt Adam Orton (05:35):
So we've covered military necessity.
We've covered humanity. Can youtell us about some of the other
principles?
Cdr Marc-André Vary (05:43):
Yeah. Absolutely. So your principles,
others refer these as rulesthemselves. So your principle of
distinction imposes anobligation on commanders to
distinguish between legitimatetargets and civilian objects,
and then the civilianpopulation. So, I always come
back to when we think oftargeting, there's targeting of
individuals, and then there'stargeting of objects.
(06:06):
So, when we look at a militaryobjective, they're objects which
by their nature, location,purpose, or use. So, once again,
nature, location, purpose, oruse make an effective
contribution to military actionand whose total or partial
destruction, capture, orneutralization in the
circumstances ruling at the timeoffer a definite military
(06:27):
advantage. I'll give you a quickexample, by their nature. So, a
tank. You see a tank.
You know by its nature. You'regood to go. You can engage
directly.
Capt Adam Orton (06:37):
Tank's a tank. You know what I mean? There's no
confusion on what that thing is.It's big gun with tracks.
Cdr Marc-André Vary (06:43):
Exactly. So, you know, when people ask,
are the lawyers confusingthings? You know, do we need to
go through the math? I'm gonnatell, you know, the soldiers are
often really surprised when I'mlike, hey. You see a tank?
You're on the battlefield? Goodto go. You know? I come back to
that movie, Fury that comes tomind. Brad Pitt will not give
the Tiger tank a second look.
He's gonna go and go full chargeat it. Other things, for
(07:05):
example, based on location.Location could be a bit more
difficult. A bridge, forexample, can be a bit more
difficult to assess. Are yougoing to prevent the local
population an exit route?
These are some of the thingsthat you need to take into
consideration. And then you haveto come down to the rest of the
equation, which is, does it makean effective contribution to
(07:27):
military action? So, forexample, confiscated oil, so
black market oil, is that amilitary objective? And does it
bring a contribution to theenemy's military action? Well,
what happens often enough ismaybe that black market oil will
help sustain part of the localpopulation.
(07:49):
The second part of the equationis your your proportionality
test. So, the principle ofproportionality establishes a
link between the concepts ofmilitary necessity and humanity.
So, once again, I'll go with thetextbook answer because this is
an important one. So, is theattack expected to cause
incidental loss of civilianlife, injury to civilians,
(08:10):
damage to civilian objects, or acombination thereof, which would
be excessive in relation to theconcrete and direct military
advantage anticipated? And ifthe answer is yes, then the
attack must be canceled orsuspended.
When you look at your RoEs, yourRules of Engagement, on top of
that, there'll be policy tiedinto your rules of engagement.
But lawfully, you really have tolook at how many civilians, will
(08:34):
be lost as a result of theattack and how much damage will
occur. And sometimes, you know,you only have one weapon, and
that weapon, if it's a 777, andthat's the only weapon that you
have for that particularoperation, You have to really
assess the damage that it'sgoing to cause.
Capt Adam Orton (08:52):
Because it's going to... big bang.
Cdr Marc-André Vary (08:54):
Sure. It's going to be a big bang.
Sometimes it is lawful andproportional. However, there are
also policy considerations thatthe truths are subject to. If,
for example, in your ROE, itsays there is to be zero
civilian casualties, althoughthe law would allow for a
proportional use of the weapon,sometimes the ROEs will not
(09:15):
permit any civilian death.
Capt Adam Orton (09:17):
This is a good point to jump in and talk about
ROEs really quick because ROEsare rules of engagement. At the
ground troop level, usually, youget a little card or something
like that. And on that cardtells you what the scope of the
operation is, what you can andcan't do that are driven by the
Law of Armed Conflict that mightbe driven by the policy or the
political environment of thatoperation and all that. And so
(09:40):
in a way, that's almost adistillation down to the soldier
level of what you can and can'tdo in the context of what you're
doing. That's basically the Lawof Armed Conflict cheat sheet
for your average soldier if, youknow, based off of his face, I
will say that differently to saythat it's the simplest document
that a troop has in their pocketthat allows them to guide that
(10:02):
decision making, during theconduct of an operation.
Cdr Marc-André Vary (10:05):
They're orders. At the end of the day,
they're orders.
Capt Adam Orton (10:08):
That's right.
Cdr Marc-André Vary (10:08):
Yeah. What you can and cannot do. The ROEs
will encompass, of course,policy. So what does the
government of Canada want you toachieve? It's impossible to win
hearts and minds by destroyingvillages, contaminating their
water, destroying schools, andkilling civilians.
(10:29):
So, in terms of the ROE, yes,the legal advisors will review
the ROE, absolutely. There aresignificant legal considerations
when drafting the ROE. Forinstance, it all depends on what
type of conflict you're in. So,if you are in an armed conflict,
your ROEs will permit you touse, deadly force against, you
(10:50):
know, enemy. Well, if you aredeployed in a peacetime
environment
Capt Adam Orton (10:54):
Yeah, that's right.
Cdr Marc-André Vary (10:55):
There's a law enforcement construct that
applies, there's criminal lawthat applies of the host nation.
And, therefore, use of deadlyforce will not be authorized
unless it's, you know, for selfdefense, for example.
Capt Adam Orton (11:07):
Something interesting that you brought up
when you were talking aboutmilitary necessity and
proportionality is, and this iswhere maybe things get a little
bit spicy is that, you know, youtalk about an obvious military
objective, a tank. You see atank, it's an enemy tank, fairly
obvious that that's somethingthat you can probably destroy in
in a conflict. And then we see,let's say, a school. And we know
(11:29):
schools don't bomb schools.Everybody knows that.
Or in theory, everybody appliesthat. But it gets a little bit
fuzzy in the middle sometimes,like you were talking about
okay. Well, now I have an M777,an M777 being an artillery
piece. And I have a targetthat's in the middle of the
city, and it might be a littlebit adjacent to some things, and
then there might be some peoplearound. Now, you're going
(11:52):
through the complicated processof evaluating that target.
And that's where it gets alittle bit fuzzy because now
it's... we're sitting down andhaving discussion of, does this
meet the expectations of theoperation? Does this meet our
legal obligations under the Lawof Armed Conflict? I think
that's probably the challengingpart of this whole thing.
Cdr Marc-André Vary (12:12):
So these are the questions we need to be
asking ourselves. Absolutely.Have we gathered enough
intelligence? Do we have theright intelligence?
Are there other ways to minimizecollateral damage? Is there
another weapon available at thetime? Can we call in support
from our allies? So all thatsharing of information is
(12:34):
crucial. At the end of the day,the legal advisor will work with
the intelligence officer.
We'll gather that information,and then they will discuss to
provide the commander with asmuch information as possible.
But in terms of is it a militaryobjective or not, the role of
the legal adviser is to ensurethat there's no gray zone right
there. It is or it isn't. Andthe legal adviser, difficult as
(12:59):
it may be, must provide thatadvice to the commander so that
the commander can make adecision.
Capt Adam Orton (13:05):
We're talking about having legal advisers and
policy driving some of thedecision making, but it wasn't
always that way, I imagine. Tellus a little bit about the
history of how the Law of ArmedConflict got to where it is
today.
Cdr Marc-André Vary (13:19):
Rules that govern the conduct of
hostilities have been around for1000 of years. What we see today
in our treaties and customaryinternational law are more
relevant over the last 120years, for example. We look at
the Hague Conventions from 1907,the Geneva Conventions of, 1949,
(13:40):
and the additional protocols of1977, for example, all of which
stem from after significantwars.
Capt Adam Orton (13:48):
You know, it's interesting because as the
producer and I were researchingthis and looking at, you know,
how these laws came to be, atone point we summarized it as
after some major conflicts,everybody sat down and was,
like, wow, this really got outof hand and a lot of people
really suffered. How can how canwe reduce suffering overall
(14:10):
while still doing wars? And, itseems like that summarizes it
pretty simply.
Cdr Marc-André Vary (14:15):
Yeah. No. I agree with you. I think, there's
been long term and widespreaddamage, not only to civilian
infrastructure. We see, forexample, still in Europe, cities
that had been completelydestroyed, but also the impact
of torture and genocide.
I remember speaking with myUkrainian colleague, one of the
(14:39):
legal advisors at the Ministryof Defense in Ukraine, and she
said, look, my greatgrandparents fought the
Russians, my grandparents fightthe Russians, my father fought
the Russians. Now, I'm fightingthe Russians. I'm doing this
because I don't want my childrento fight the Russians. And in
order to do so, she firmlybelieves that following the Law
(15:00):
of Armed Conflict is extremelyimportant, and she believes in,
and rightfully so, and it's inour doctrine as well,
reciprocity. You want to treatthe enemy as you want to be
treated.
So, for example, prisoners ofwar and detainees. When you take
on prisoners of war, you have tothink that you will want to
(15:20):
exchange prisoners of war at acertain time during the conflict
or return them to, their hostnation after, the conflict
itself. So, reciprocity goes along way. And like I said,
people have, long term memoriesabout some of the actions. Well,
one single soldier, for example,can change people's thoughts and
support of the Canadian ArmedForces abroad.
Capt Adam Orton (15:44):
So we've talked a lot about the practical
application of all this, butwhere does the military justice
system fit in to thepreparations for, like, a
deployment or a mission? Howdoes one prevent war crimes?
Cdr Marc-André Vary (15:58):
In terms of ensuring that Canada meets its
legal obligations, an importantpart of the equation would be
the military justice system. Thepurpose of the military, justice
system is to promote and ensurethe efficiency, discipline, and
morale of the Canadian ArmedForces. One of the key aspects
is that it's a deployable systemwhere Canada can investigate and
(16:23):
prosecute crimes conducted byCanadian Armed Forces members
abroad. And there's there'simportant aspects to that. One
of them is when Canada deploysabroad and we're negotiating
SOFA, status of forceagreements, privileges, and
immunities for our CanadianForce members abroad.
So, for example, in Afghanistan,we reassure the host nation that
(16:46):
we will apply a disciplinarysystem on our folks. And that's
extremely important because ifCanada would be unable to
investigate and or prosecute ourfolks abroad, then they would be
subject to either aninternational criminal
prosecution or the prosecutionof the host nation. So, these
(17:07):
are things that we need to takeinto consideration. So, this
comes back to what you weretalking about, prevention of war
crimes and or crimes on thebattlefield or during armed
conflict. It's an obligationfound within the Geneva
Conventions and the additionalprotocols to investigate and
(17:28):
punish those who who havecommitted various crimes.
Capt Adam Orton (17:31):
On the flip side of that coin, sometimes we
can see our adversariesexploiting our adherence of
those laws and maybe exploitingthat as a tactic. I'll use an
example, you know, inAfghanistan, there's no
uniformed enemy. Right? So ouradversaries in that space have a
good understanding that thatcreates a lot of confusion for
us in terms of our targeting andattack approaches. There's no
(17:54):
easy answer to this, but it'slike, what do we do in
situations where we're fightingan enemy that doesn't follow the
Law of Armed Conflict, thatdoesn't follow those rules?
Cdr Marc-André Vary (18:02):
So there's 2 aspects to that question from
my perspective. So the first oneis, it's important for Canada to
promote the application of theLaw of Armed Conflict. So right
now, for example, Canada isworking with various allies in
teaching and promoting the Lawof Armed Conflict on Op UNIFIER.
That would be part of it. So, inAfghanistan, legal advisors
(18:26):
played a huge part in trainingnot only our troops, but
training Afghans on the Law ofArmed Conflict and how to apply
the Law of Armed Conflict.
Other aspects would be how ourcompetitors may be using our
interpretation of the law tocreate what we would call gray
zones. So, for example, Russiais claiming that they are acting
(18:50):
in self defense against Ukraineor that they went inside Ukraine
to prevent a genocide. And theUkrainians have developed a very
good capability in that sense oflawfare. So, preparing the
battlefield.
Capt Adam Orton (19:05):
Lawfare, that's a good!
Cdr Marc-André Vary (19:07):
Yeah, lawfare. So, preparing the
battlefield or shaping thebattlefield in order to, I would
say, set the story straight oralign with better messaging and
communication. So, when Russiasaid that they would go inside
Ukraine to prevent genocide,Ukraine appeared before
(19:27):
International Tribunal tobasically contest the fact that
there was a genocide, and thenthe international court found
that there was no genocide, soRussia had to change its
rhetoric and messaging. As youknow, the information wars is
massive, and lawfare helps youcontrol that rhetoric.
Capt Adam Orton (19:48):
You know, you can really tell we're doing it.
Right? Because if you get prettymuch any group of Forces members
together from any trade or anybackground and you start this
conversation, people are gonnabe passionate about it. They're
gonna be engaged. And I thinkthat really tells you that,
functionally, people really careabout it and that it's kind of a
part of our collectivepsychology.
Cdr Marc-André Vary (20:10):
I've never met a member of the Canadian
Armed Forces who did not want todo the right thing. And once
we've had the discussion orthey've seen a presentation from
their local legal advisor on theLaw of Armed Conflict, you can
see where it furthers interest.People always come back with
more and more questions. Forexample, speaking with the
engineers, recently in Petawawa,some of them, you know, had
(20:33):
really, really good questions onbooby traps, for example,
because they were going to teachthe Ukrainian on the Law of
Armed Conflict, but more relatedto booby traps. But you can see
where there's that spark.
Like, they wanna do the rightthing, and by following the Law
of Armed Conflict, by promotingCanadian values abroad, it also
helps protect the the reputationof the Canadian Armed Forces
(20:55):
outside of Canada and in Canada.And, of course, protecting the
reputation of the Canadian ArmedForces goes a long way in
Canada.
Capt Adam Orton (21:05):
Well, thanks so much for taking the time to
improve that reputation for us!
Cdr Marc-André Vary (21:10):
Thank you.
Capt Adam Orton (21:12):
That was Commander Marc-André Vary,
Director of International andOperational Law with the office
of the Judge Advocate General,and I'm captain Adam Orton for
the Canadian Army Podcast. Ortonout.
It's impossible to win hearts and
minds by destroying villages,contaminating their water,
destroying schools, and killingcivilians.
Capt Adam Orton (00:21):
Welcome to the Canadian Army Podcast. I'm
Captain Adam Orton. On thisepisode, we have Commander
Marc-André Vary, who is theDirector of International and
Operational Law and a LegalOfficer with the Office of the
Judge Advocate General or JAG,which basically means he's a
military lawyer with theCanadian Armed Forces. And we're
gonna talk about the Law ofArmed Conflict. Welcome to the
podcast, sir.
Cdr Marc-André Vary (00:41):
Perfect. Thank you. Thanks for having me.
Capt Adam Orton (00:44):
So when talking about the Law of Armed Conflict,
you see, soldiers have a lot ofstrong opinions about how they
would act in certain scenarios.Why is this such a contentious
subject?
Cdr Marc-André Vary (00:57):
I think it's, very valid for soldiers to
feel that way. I mean, everyonewill have a different
perspective of the applicationof the Law of Armed Conflict
through their trades, forexample. Gunners will feel
differently than people in theAir Force, sailors, the
infantry, and engineers. Sorecently, I had the privilege of
(01:18):
instructing the Law of ArmedConflict to engineers who were
deploying on UNIFIER, who areabout to train Ukrainian troops
on, various activities,including the law of armed
conflict. And, of course, youknow, they were seeing it
through the lens of theengineers, you know, some of
their questions related to mindsand booby traps and whatnot, and
(01:38):
their feeling, and some of themhad learned from the experiences
of the Ukrainian soldiers on theground.
So it's very valid to see thingsas hot topics. However, there
are extremely valid reasons atthe end of the day for the
application of the Law of ArmedConflict.
Capt Adam Orton (01:53):
So maybe so everybody understands what we're
gonna be talking about here,what is the Law of Armed
Conflict? What does it all layout?
Cdr Marc-André Vary (02:00):
So the Law of Armed Conflict, in the
broadest sense, determines whenstates may resort to the use of
force, of armed force, I shouldsay. And in its narrower sense,
how those states may conducthostilities during armed
conflict. So the purpose of LOACis to regulate the conduct of
hostilities and to protectvictims of armed conflict.
Capt Adam Orton (02:22):
Can you break that down for us? Like, what are
the principles or what are theconcepts of the Law of Armed
Conflict?
Cdr Marc-André Vary (02:29):
You know, if we get down to the primary
concepts that underline the Lawof Armed Conflict, we look at
military necessity. The conceptof military necessity
presupposes that force can beused, but that force can be
controlled. The use of force isnecessary to achieve the
submission of the enemy, and theamount of force used is limited
(02:50):
to what is needed to achieveprompt submission. But military
necessity is not a concept thatshould be considered in
isolation. Related to theconcept of military necessity is
the concept of humanity, whichforbids, you know, the
infliction of suffering, injury,or destruction not actually
necessary to the accomplishmentof the military purpose.
(03:13):
We're not held to a standard ofperfection, of course. So the
immunity of the civilianpopulations does not preclude
unavoidable incidental civiliancasualties that may occur during
the course of the attacksagainst legitimate targets, and
that are not excessive inrelations to the concrete and
direct, military advantageanticipated. At the end of the
(03:33):
day, you know, when speaking tothose engineers who had direct
relationships with the Ukrainiantroops, they understood that
some of the actions of theenemy, for example, here, the
Russians, they had seenatrocities, and they were asking
themselves, like, if theRussians violate the law, why
shouldn't I, you know, in returnviolate the law itself? What the
(03:55):
Ukrainians usually respond islike, we're not them. And of
course, at the end of theconflict, when peace is
achieved, there's always animpact on the civilian
population, and you wanna ensurethat peace can be fully gained
afterwards.
And of course, you know, forCanadian Armed Forces members,
when we're out on operations, Iit's it's very, very important
(04:16):
to win the hearts and minds ofthe of the local population.
Capt Adam Orton (04:19):
Yeah. Absolutely. And we talked about
the Law of Armed Conflict andthose engineers in particular in
another episode. And they'd saidhow even that interaction kind
of drove how they changed thetraining because they'd started
examining the Law of ArmedConflict kind of at the back end
of the training. But then duringsome of the exercises, the
troops would be, like, oh, whydo we do this this way? And kind
(04:42):
of drawing some of the parallelsthat you were discussing. And
then they're, like, if we frontload this, it contextualizes
everything else. And also, kindof what you said is if you burn
all the bridges, right, the roadto pieces a little bit more
challenging. And so applyingthat law probably makes it a
little bit easier to achievethat piece at a certain point
(05:02):
if, you know, you're notconstantly committing
atrocities.
Cdr Marc-André Vary (05:05):
Well, people have, you know, long term
memories. They will remember ouractions. Our troops who
represent Canada abroad are all,from my perspective anyway,
diplomats, not in the legalsense, but they're
representatives of thegovernment of Canada. And so, as
a representative of thegovernment of Canada, we go out
(05:27):
there and one of our primarymissions is to ensure that we're
there displaying Canadianvalues.
Capt Adam Orton (05:35):
So we've covered military necessity.
We've covered humanity. Can youtell us about some of the other
principles?
Cdr Marc-André Vary (05:43):
Yeah. Absolutely. So your principles,
others refer these as rulesthemselves. So your principle of
distinction imposes anobligation on commanders to
distinguish between legitimatetargets and civilian objects,
and then the civilianpopulation. So, I always come
back to when we think oftargeting, there's targeting of
individuals, and then there'stargeting of objects.
(06:06):
So, when we look at a militaryobjective, they're objects which
by their nature, location,purpose, or use. So, once again,
nature, location, purpose, oruse make an effective
contribution to military actionand whose total or partial
destruction, capture, orneutralization in the
circumstances ruling at the timeoffer a definite military
(06:27):
advantage. I'll give you a quickexample, by their nature. So, a
tank. You see a tank.
You know by its nature. You'regood to go. You can engage
directly.
Capt Adam Orton (06:37):
Tank's a tank. You know what I mean? There's no
confusion on what that thing is.It's big gun with tracks.
Cdr Marc-André Vary (06:43):
Exactly. So, you know, when people ask,
are the lawyers confusingthings? You know, do we need to
go through the math? I'm gonnatell, you know, the soldiers are
often really surprised when I'mlike, hey. You see a tank?
You're on the battlefield? Goodto go. You know? I come back to
that movie, Fury that comes tomind. Brad Pitt will not give
the Tiger tank a second look.
He's gonna go and go full chargeat it. Other things, for
(07:05):
example, based on location.Location could be a bit more
difficult. A bridge, forexample, can be a bit more
difficult to assess. Are yougoing to prevent the local
population an exit route?
These are some of the thingsthat you need to take into
consideration. And then you haveto come down to the rest of the
equation, which is, does it makean effective contribution to
(07:27):
military action? So, forexample, confiscated oil, so
black market oil, is that amilitary objective? And does it
bring a contribution to theenemy's military action? Well,
what happens often enough ismaybe that black market oil will
help sustain part of the localpopulation.
(07:49):
The second part of the equationis your your proportionality
test. So, the principle ofproportionality establishes a
link between the concepts ofmilitary necessity and humanity.
So, once again, I'll go with thetextbook answer because this is
an important one. So, is theattack expected to cause
incidental loss of civilianlife, injury to civilians,
(08:10):
damage to civilian objects, or acombination thereof, which would
be excessive in relation to theconcrete and direct military
advantage anticipated? And ifthe answer is yes, then the
attack must be canceled orsuspended.
When you look at your RoEs, yourRules of Engagement, on top of
that, there'll be policy tiedinto your rules of engagement.
But lawfully, you really have tolook at how many civilians, will
(08:34):
be lost as a result of theattack and how much damage will
occur. And sometimes, you know,you only have one weapon, and
that weapon, if it's a 777, andthat's the only weapon that you
have for that particularoperation, You have to really
assess the damage that it'sgoing to cause.
Capt Adam Orton (08:52):
Because it's going to... big bang.
Cdr Marc-André Vary (08:54):
Sure. It's going to be a big bang.
Sometimes it is lawful andproportional. However, there are
also policy considerations thatthe truths are subject to. If,
for example, in your ROE, itsays there is to be zero
civilian casualties, althoughthe law would allow for a
proportional use of the weapon,sometimes the ROEs will not
(09:15):
permit any civilian death.
Capt Adam Orton (09:17):
This is a good point to jump in and talk about
ROEs really quick because ROEsare rules of engagement. At the
ground troop level, usually, youget a little card or something
like that. And on that cardtells you what the scope of the
operation is, what you can andcan't do that are driven by the
Law of Armed Conflict that mightbe driven by the policy or the
political environment of thatoperation and all that. And so
(09:40):
in a way, that's almost adistillation down to the soldier
level of what you can and can'tdo in the context of what you're
doing. That's basically the Lawof Armed Conflict cheat sheet
for your average soldier if, youknow, based off of his face, I
will say that differently to saythat it's the simplest document
that a troop has in their pocketthat allows them to guide that
(10:02):
decision making, during theconduct of an operation.
Cdr Marc-André Vary (10:05):
They're orders. At the end of the day,
they're orders.
Capt Adam Orton (10:08):
That's right.
Cdr Marc-André Vary (10:08):
Yeah. What you can and cannot do. The ROEs
will encompass, of course,policy. So what does the
government of Canada want you toachieve? It's impossible to win
hearts and minds by destroyingvillages, contaminating their
water, destroying schools, andkilling civilians.
(10:29):
So, in terms of the ROE, yes,the legal advisors will review
the ROE, absolutely. There aresignificant legal considerations
when drafting the ROE. Forinstance, it all depends on what
type of conflict you're in. So,if you are in an armed conflict,
your ROEs will permit you touse, deadly force against, you
(10:50):
know, enemy. Well, if you aredeployed in a peacetime
environment
Capt Adam Orton (10:54):
Yeah, that's right.
Cdr Marc-André Vary (10:55):
There's a law enforcement construct that
applies, there's criminal lawthat applies of the host nation.
And, therefore, use of deadlyforce will not be authorized
unless it's, you know, for selfdefense, for example.
Capt Adam Orton (11:07):
Something interesting that you brought up
when you were talking aboutmilitary necessity and
proportionality is, and this iswhere maybe things get a little
bit spicy is that, you know, youtalk about an obvious military
objective, a tank. You see atank, it's an enemy tank, fairly
obvious that that's somethingthat you can probably destroy in
in a conflict. And then we see,let's say, a school. And we know
(11:29):
schools don't bomb schools.Everybody knows that.
Or in theory, everybody appliesthat. But it gets a little bit
fuzzy in the middle sometimes,like you were talking about
okay. Well, now I have an M777,an M777 being an artillery
piece. And I have a targetthat's in the middle of the
city, and it might be a littlebit adjacent to some things, and
then there might be some peoplearound. Now, you're going
(11:52):
through the complicated processof evaluating that target.
And that's where it gets alittle bit fuzzy because now
it's... we're sitting down andhaving discussion of, does this
meet the expectations of theoperation? Does this meet our
legal obligations under the Lawof Armed Conflict? I think
that's probably the challengingpart of this whole thing.
Cdr Marc-André Vary (12:12):
So these are the questions we need to be
asking ourselves. Absolutely.Have we gathered enough
intelligence? Do we have theright intelligence?
Are there other ways to minimizecollateral damage? Is there
another weapon available at thetime? Can we call in support
from our allies? So all thatsharing of information is
(12:34):
crucial. At the end of the day,the legal advisor will work with
the intelligence officer.
We'll gather that information,and then they will discuss to
provide the commander with asmuch information as possible.
But in terms of is it a militaryobjective or not, the role of
the legal adviser is to ensurethat there's no gray zone right
there. It is or it isn't. Andthe legal adviser, difficult as
(12:59):
it may be, must provide thatadvice to the commander so that
the commander can make adecision.
Capt Adam Orton (13:05):
We're talking about having legal advisers and
policy driving some of thedecision making, but it wasn't
always that way, I imagine. Tellus a little bit about the
history of how the Law of ArmedConflict got to where it is
today.
Cdr Marc-André Vary (13:19):
Rules that govern the conduct of
hostilities have been around for1000 of years. What we see today
in our treaties and customaryinternational law are more
relevant over the last 120years, for example. We look at
the Hague Conventions from 1907,the Geneva Conventions of, 1949,
(13:40):
and the additional protocols of1977, for example, all of which
stem from after significantwars.
Capt Adam Orton (13:48):
You know, it's interesting because as the
producer and I were researchingthis and looking at, you know,
how these laws came to be, atone point we summarized it as
after some major conflicts,everybody sat down and was,
like, wow, this really got outof hand and a lot of people
really suffered. How can how canwe reduce suffering overall
(14:10):
while still doing wars? And, itseems like that summarizes it
pretty simply.
Cdr Marc-André Vary (14:15):
Yeah. No. I agree with you. I think, there's
been long term and widespreaddamage, not only to civilian
infrastructure. We see, forexample, still in Europe, cities
that had been completelydestroyed, but also the impact
of torture and genocide.
I remember speaking with myUkrainian colleague, one of the
(14:39):
legal advisors at the Ministryof Defense in Ukraine, and she
said, look, my greatgrandparents fought the
Russians, my grandparents fightthe Russians, my father fought
the Russians. Now, I'm fightingthe Russians. I'm doing this
because I don't want my childrento fight the Russians. And in
order to do so, she firmlybelieves that following the Law
(15:00):
of Armed Conflict is extremelyimportant, and she believes in,
and rightfully so, and it's inour doctrine as well,
reciprocity. You want to treatthe enemy as you want to be
treated.
So, for example, prisoners ofwar and detainees. When you take
on prisoners of war, you have tothink that you will want to
(15:20):
exchange prisoners of war at acertain time during the conflict
or return them to, their hostnation after, the conflict
itself. So, reciprocity goes along way. And like I said,
people have, long term memoriesabout some of the actions. Well,
one single soldier, for example,can change people's thoughts and
support of the Canadian ArmedForces abroad.
Capt Adam Orton (15:44):
So we've talked a lot about the practical
application of all this, butwhere does the military justice
system fit in to thepreparations for, like, a
deployment or a mission? Howdoes one prevent war crimes?
Cdr Marc-André Vary (15:58):
In terms of ensuring that Canada meets its
legal obligations, an importantpart of the equation would be
the military justice system. Thepurpose of the military, justice
system is to promote and ensurethe efficiency, discipline, and
morale of the Canadian ArmedForces. One of the key aspects
is that it's a deployable systemwhere Canada can investigate and
(16:23):
prosecute crimes conducted byCanadian Armed Forces members
abroad. And there's there'simportant aspects to that. One
of them is when Canada deploysabroad and we're negotiating
SOFA, status of forceagreements, privileges, and
immunities for our CanadianForce members abroad.
So, for example, in Afghanistan,we reassure the host nation that
(16:46):
we will apply a disciplinarysystem on our folks. And that's
extremely important because ifCanada would be unable to
investigate and or prosecute ourfolks abroad, then they would be
subject to either aninternational criminal
prosecution or the prosecutionof the host nation. So, these
(17:07):
are things that we need to takeinto consideration. So, this
comes back to what you weretalking about, prevention of war
crimes and or crimes on thebattlefield or during armed
conflict. It's an obligationfound within the Geneva
Conventions and the additionalprotocols to investigate and
(17:28):
punish those who who havecommitted various crimes.
Capt Adam Orton (17:31):
On the flip side of that coin, sometimes we
can see our adversariesexploiting our adherence of
those laws and maybe exploitingthat as a tactic. I'll use an
example, you know, inAfghanistan, there's no
uniformed enemy. Right? So ouradversaries in that space have a
good understanding that thatcreates a lot of confusion for
us in terms of our targeting andattack approaches. There's no
(17:54):
easy answer to this, but it'slike, what do we do in
situations where we're fightingan enemy that doesn't follow the
Law of Armed Conflict, thatdoesn't follow those rules?
Cdr Marc-André Vary (18:02):
So there's 2 aspects to that question from
my perspective. So the first oneis, it's important for Canada to
promote the application of theLaw of Armed Conflict. So right
now, for example, Canada isworking with various allies in
teaching and promoting the Lawof Armed Conflict on Op UNIFIER.
That would be part of it. So, inAfghanistan, legal advisors
(18:26):
played a huge part in trainingnot only our troops, but
training Afghans on the Law ofArmed Conflict and how to apply
the Law of Armed Conflict.
Other aspects would be how ourcompetitors may be using our
interpretation of the law tocreate what we would call gray
zones. So, for example, Russiais claiming that they are acting
(18:50):
in self defense against Ukraineor that they went inside Ukraine
to prevent a genocide. And theUkrainians have developed a very
good capability in that sense oflawfare. So, preparing the
battlefield.
Capt Adam Orton (19:05):
Lawfare, that's a good!
Cdr Marc-André Vary (19:07):
Yeah, lawfare. So, preparing the
battlefield or shaping thebattlefield in order to, I would
say, set the story straight oralign with better messaging and
communication. So, when Russiasaid that they would go inside
Ukraine to prevent genocide,Ukraine appeared before
(19:27):
International Tribunal tobasically contest the fact that
there was a genocide, and thenthe international court found
that there was no genocide, soRussia had to change its
rhetoric and messaging. As youknow, the information wars is
massive, and lawfare helps youcontrol that rhetoric.
Capt Adam Orton (19:48):
You know, you can really tell we're doing it.
Right? Because if you get prettymuch any group of Forces members
together from any trade or anybackground and you start this
conversation, people are gonnabe passionate about it. They're
gonna be engaged. And I thinkthat really tells you that,
functionally, people really careabout it and that it's kind of a
part of our collectivepsychology.
Cdr Marc-André Vary (20:10):
I've never met a member of the Canadian
Armed Forces who did not want todo the right thing. And once
we've had the discussion orthey've seen a presentation from
their local legal advisor on theLaw of Armed Conflict, you can
see where it furthers interest.People always come back with
more and more questions. Forexample, speaking with the
engineers, recently in Petawawa,some of them, you know, had
(20:33):
really, really good questions onbooby traps, for example,
because they were going to teachthe Ukrainian on the Law of
Armed Conflict, but more relatedto booby traps. But you can see
where there's that spark.
Like, they wanna do the rightthing, and by following the Law
of Armed Conflict, by promotingCanadian values abroad, it also
helps protect the the reputationof the Canadian Armed Forces
(20:55):
outside of Canada and in Canada.And, of course, protecting the
reputation of the Canadian ArmedForces goes a long way in
Canada.
Capt Adam Orton (21:05):
Well, thanks so much for taking the time to
improve that reputation for us!
Cdr Marc-André Vary (21:10):
Thank you.
Capt Adam Orton (21:12):
That was Commander Marc-André Vary,
Director of International andOperational Law with the office
of the Judge Advocate General,and I'm captain Adam Orton for
the Canadian Army Podcast. Ortonout.
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