Nov. 29, 2023
New UCalgary course asks the question, Are there laws of war?
As we watch wars unfold in Ukraine and the Middle East, you may wonder if there are any actual laws of conflict or war. Can there be a balance between humanitarian values and military necessity during armed conflict? Can civilians, their homes, and critical infrastructure be protected?
These are just some of the questions Lieutenant Colonel (retired) Brent Clute, BA’89, hopes to help his students answer in the new course Law of Armed Conflicts.
“In times of war or conflict, decisions are made very quickly, and those decisions often rely on gut instinct,” says Clute, formerly in charge of the Military Law Centre in Kingston, Ont., which provides legal education and training for the Canadian Armed Forces.
“We need to ensure that these instincts are based on a solid comprehension of fundamental legal principles such as distinction. Militaries must always distinguish between civilians and civilian objects, and military objectives and combatants, namely who and what can be legally targeted. Additionally, those making decisions need to have access to timely legal advice.”
Trusting your gut is key
Lawyers practising in armed conflict law must be able to provide on-the-spot advice and able to put their feelings about a perceived threat or enemy aside to advise their clients.
“Sometimes you’re the only person in the room saying, ‘Wait, we need to think about the rule of law and how things are done, this is how we need to conduct ourselves, this is what the law is,’” adds Clute, who served for more than 24 years with the Canadian Forces including in Afghanistan, Bosnia and Hercegovina, and the Arabian Gulf.
“There can be immense pressure to get on board and approve what the commander wants.”
Where things can get complicated, explains Clute, are situations of non-international armed conflict, that is, not a conflict between two or more states but against an organized armed group such as the nearly 20-year conflict against the Taliban in Afghanistan.
“The Taliban had fighters or a militant wing, but they didn’t have a uniformed armed forces like Canada and our allies. In such cases, distinction is more challenging, that is, identifying who can and cannot be targeted.”
“In cases like this, under human rights law you can target people and use deadly force if there is an immediate threat and there’s no other alternative, that is to say, force is necessary and proportional to the threat you’re facing. But under the law of armed conflict, generally such fighters and members of an enemy organized armed group can also be targeted even when they aren’t an immediate threat.”
Concepts can be useful beyond the battlefield
Ryan Millar, JD’23, an articling student with Student Legal Assistance, returned to legal studies as an Open Studies student specifically to take the course.
“The subject matter is unlike anything else you can take in law school, focusing on how to practically apply the law when states or armed groups resort to violence, a topic that is becoming increasingly important.”
For students who may not be considering a legal career in the military, concepts taught in the class can be just as useful in the boardroom as on the battlefield.
“Being able to think on your feet and to react quickly is beneficial in any area of the law,” says Clute. “You’re always trying to get to ‘yes’ with your client, to find a solution to their problem. And often you need the courage to say something’s not right or there’s a risk.”
Third-year student Brenna Findlay agrees.
“The course teaches students how to respond to practical situations, which has allowed me to put the law in its context and to consider the various factors at play,” she says.
“I feel extremely lucky to have had the opportunity to take this course, to understand a bit more about the world, and to study a different area of law.”