Academic journal article
By Walsh, Gary
Duke Journal of Comparative & International Law , Vol. 15, No. 2
When the soldiers of the First Special Service Force (FSSF) scaled the sheer cliffs of Mount de la Difensa in Italy during the evening of December 2, 1943, they surprised the German defenders and seized key terrain that had resisted such capture for months. (1) The complexity of this operation would have challenged the elite infantry forces of either Canada or the United States. Nevertheless, this unit, composed of soldiers wearing the uniforms of both nations and led by both Canadian and United States officers and noncommissioned officers, accomplished this and other equally difficult missions during the latter part of WWII. (2)
Since WWII, Canada and the United States (U.S.) have built on this legacy, forging a remarkable military partnership, performing combined (3) or multinational (4) military operations. Perhaps the most visible and well-known partnership is embodied in the NORAD Agreement (5), which created the North American Aerospace Defense Command (NORAD) located in Colorado Springs, Colorado. This Cold War-era partnership retains its relevance and vitality during the evolving transnational or terrorist threat to the two nations. In an Exchange of Notes in December 2002, the U.S. and Canada "affirmed the merits of broadening bi-national defence arrangements in order to:
1. prevent or mitigate threats or attacks by terrorists or others on Canada or the United States; and
2. ensure a cooperative and well-coordinated response to national requests for military assistance in relation to terrorist, or other, threats or attacks, natural disasters, or other major emergencies in Canada or the United States." (6)
Another, more recent, example of military cooperation is Operation APOLLO, in which U.S. and Canadian infantry units conducted combat operations in Afghanistan against Taliban and Al Qaeda forces. (7)
Unity of effort in a combined or multinational operation is a fundamental principle of operation. (8) The objectives of the operation must be clearly defined by the leader of the operation and supported by each member nation. The planning and conduct of such combined operations must take into account the national and international legal obligations of the respective nations. Differing obligations may result in an inability to operate smoothly as a combined force, pursuing a common goal. These challenges to the "interoperability" (9) of Canadian and U.S. Forces are not insurmountable.
Military attorneys are essential to the process of achieving this interoperability. They assist in identifying the potential points of friction, such as critical differences in rules for use of force or employment of certain weapons, so that the differences can be resolved during the planning of the operation. This article will address the role that attorneys and the law play in promoting unity of effort in combined U.S. and Canadian operations. It will (1) provide an overview of the process by which attorneys in each nation's armed forces provide legal advice on operations, (2) identify the key differences in international legal obligations of each nation, and (3) discuss how national differences can be resolved, as illustrated by the issues of land mines and use of deadly force.
II. LEGAL REVIEW OF MILITARY OPERATIONS
A. U.S. Approach
The Department of Defense has established a comprehensive program to ensure the law of war (10) is understood and complied with by all members of the armed forces. One of the central requirements of this program is that qualified legal advisers review all plans, policies, and rules of engagement to ensure their consistency with the law of war obligations of the United States. (11) The discipline of "operational law" (12) provides the framework for legal advisers to fulfill this responsibility.
1. Emergence of Operational Law. Attorneys in the U.S. military trace their lineage to 1775, when George Washington appointed Colonel William Tudor as the first Judge Advocate of the Continental Army. …