Practice Relating to Rule 141. Legal Advisers for Armed Forces
Colombia’s Operational Law Manual (2009) states:
Given the complexities of the operational environment in Colombia and of the legal framework, the participation of the Operational Legal Adviser (OLA) in the planning, execution, control and evaluation of military operations is crucial to ensuring the compliance of operations with the legal framework.
The work of the OLA helps to protect, from a legal point of view, the operations and results of the Armed Forces. This legal protection has strategic effects: knowing that a military operation is well framed within legal rules gives Commanders security when carrying out their mission.
At the same time, the implementation of an operational legal advice system in the Armed Forces strengthens operational discipline, guiding the soldier so that he or she has sufficient clarity on the applicable legal framework, especially when there are so many and varied legal requirements that must be complied with on the ground (Chapter VI).
1. Basis for the use of operational legal advisers
The rationale for the use of Operational Legal Advisers (OLAs) is based, on the one hand, on obligations derived from international and national law and, on the other hand, on the internal need for the Armed Forces to have a specialized agent who translates theoretical and legal notions into operational concepts for compliance with human rights and IHL norms.
Article 82 of [the 1977] Additional Protocol I states:
The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the [1949 Geneva] Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject.
For its part, the Constitutional Court has recalled:
… the duty to … appoint the legal advisers required depending on the case …
Finally, the Comprehensive Human Rights and IHL Policy of the Ministry of National Defence states:
It is clear that when one is operating “amongst the people” and within the framework of the law, special advice is required in order to ensure that Human Rights and IHL obligations are complied with. Commanders, in particular, must have a proper understanding of the responsibility of command and must have sufficient clarity about the legal framework within which they operate in order to impose effective operational discipline. The operational legal adviser, provided for in IHL, and which has been a member of the general staff of the [military] units for some time, is the person responsible for carrying out this task of clarification.
2. Profile of the Operational Legal Adviser
International regulations grant States a wide margin of discretion in determining the profile of the OLAs. However, as his or her main function is to advise Commanders in the decision-making process, the OLA must have “an adequate level of expertise in international humanitarian law”.
For its part, the Comprehensive Human Rights and IHL Policy of the Ministry of National Defence states that the OLAs must be “lawyers advising commanding officers on human rights, IHL and operational law during the planning, execution and evaluation of operations”.
In this sense, it can be affirmed that the Colombian OLA must be a military lawyer in active service, with knowledge of the different areas of operational law: human rights, IHL, criminal law, the criminal accusatory system and forensic science among other branches of law. The OLA must also be trained in military doctrine, command procedures, military intelligence, the planning and conduct of military operations, logistics, weapons systems, among other areas of military sciences. The combination of legal and military knowledge is the necessary condition for providing the Commander with sound and effective advice.
In institutional terms, the OLAs will be dependent on the Office of Operational Legal Advice of each service branch: in the case of the Navy and the Army, this will be in the Department of Operations, and in the case of the Air Force, the Directorate for Legal Affairs and Human Rights.
3. Functions of the Operational Legal Adviser
The role of the OLA is limited to fulfilling clear and precise functions during the planning, execution and evaluation of military operations. His or her role is not to provide advice to the military units on other issues: criminal and administrative proceedings, etc. Among his or her tasks are:
a. During the planning of the operation:
(i) support the commander in the assessment of every element of the order of operations: intelligence assessment, mission assessment, etc.;
(ii) support the commander in determining the type of operation (Chapter V) and the corresponding rules of engagement;
(iii) support in the communication and explanation of the rules of engagement.
b. During the execution of the operation: the OLA’s advice to the Commander must ensure that his or her operational decisions have a clear legal basis and make it possible to react in real time to operational situations. It should also contribute to the units’ understanding and correct application of the norms concerning capture, first responders, etc., contained in Chapter VI.
c. During the evaluation of the operation: the participation of the OLA aims to ensure greater legal coherence and better maintenance of the operational archive by verifying that every operation has the necessary support documents and that these documents have been duly filed.
If the operation is carried out to counteract a situation of hostilities, meaning that the planning can be done within the legal framework of IHL, the OLA must advise the Commander in describing:
- the definition of the military objective …
- the principle of necessity …
- the principle of limits on the means and methods …
- military advantage …
- the principle of proportionality …
- the principle of distinction …
When considered necessary, the OLA may propose lessons-learned exercises based on the planning, execution and evaluation of military operations, as relevant.
In addition to the functions described above, the OLA must maintain close liaison with the Delegate Inspector and national and regional State administration of justice and control bodies.
In view of the complexity of the tasks assigned to him or her, the OLA’s priority will be to participate in the planning, execution and evaluation of operations. This function may in no case be obstructed, interfered with or postponed for other legal advisory tasks that might be assigned to him or her.
4. Responsibility of the Operational Legal Adviser
The recovery of the social state based on the rule of law in the national territory and the protection of the population must be accompanied by operational legal advice of the highest quality for the conduct of operations. The OLA has the duty and the responsibility to provide comprehensive, detailed and accurate legal advice that contributes to the proper development of the legal framework.
It is necessary to clarify the liability regime to which OLAs are subject, emphasizing their relationship with the Commander and his or her responsibility for the operation as such.
As lawyers, OLAs are responsible for the correct exercise of their profession in relation to the advice they give to Commanders. …
Among the tasks [of the OLA] is to master the lex artis of the role, i.e. to know the law in force in order to carry out his or her assignment effectively. Thus, under no circumstances can the OLA argue that he or she did not provide adequate advice in an attempt to exclude his or her liability owing to lack of legal knowledge of human rights and IHL norms.
In addition, the OLA is liable when he or she fails to provide the Commander with correct advice or when he or she does not do everything possible to duly exercise the legal profession and his or her role as an operational legal adviser. When, by action or omission, the OLA contributes to the planning or execution of conducts that constitute breaches of IHL or serious violations of human rights, he or she will be subject to the ordinary criminal justice system. Consequently, it is important that his or her primary function is focused on providing the necessary advice to the Commander.
The OLA must be able to disagree with the Commander’s decision when he or she considers that the conduct of operations does not comply with legal and constitutional rules. In this case, he or she should record the reasons for not agreeing with the decision.
In relation to the report issued by the OLA in his or her advisory role to the Commander, it is important to highlight that the report is in no way binding on the Commander, who has the power, like any other member of the General Staff, to accept or reject the adviser’s suggestions. However, the OLA should record his or her advice in the legal operational annex. If the advice is rejected, the Commander must lay out the arguments that led him or her to reject it, without prejudice to the criminal or disciplinary consequences that may arise owing to this decision.
It is important to underline that the OLA would never be responsible for the military operation as such, i.e. he or she would never be responsible for the result of an operational order. The only one responsible for the operation and the order is the Commander, who will be subject to the relevant responsibility regime. In this sense, the ICRC has explained that:
The legal adviser does not replace the commander. Commanders always retain their leading role and their responsibility within the decision-making process. The role of the adviser is limited to briefing senior officers operating in an increasingly complex legal environment.
In conclusion, the OLA is central to the planning, execution and evaluation of every military operation. His or her advice must be comprehensive and provide the Commander with every necessary tool to make a decision in accordance with the legal and constitutional rules that allow the use force and the applicable legal framework to be framed.
[footnotes in original omitted]
Colombia’s Directive No. 10 (2007), whose objective is to prevent the killing of protected persons, states:
With the objective of strengthening the application of international humanitarian law, preventing homicides of protected persons and strengthening the legitimacy of the Armed Forces, the General Command of the Armed Forces must issue precise orders to all personnel of the armed forces with a view to:
3. … Obtaining legal advice pertinent for the planning of operations.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
At the international level, the State obligation to respect and ensure respect for international humanitarian law is found in Article 1 common to the 1949 Geneva Conventions and has acquired customary status.
[T]he general obligation to respect and ensure respect for international humanitarian law is the foundation for a number of more specific duties such as … the duty to … assign the necessary legal advisers.
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence of Colombia stated:
35. t is clear that when one is operating “amongst the people” and within the framework of the law, special advice is required in order to ensure that human rights and IHL obligations are complied with. Commanders especially must in addition have a proper understanding of the responsibility of command and must be sufficiently clear about the legal framework within which they are operating in order to impose effective operational discipline. The operational legal advisor –who for some time has been a member of the general staff of units and is provided for in IHL– is the person responsible for carrying out this task of clarification. n. The Air Force, for example, has introduced a system which is a world-class example of the provision of legal advice throughout the planning of operations: an aircraft does not take off for an operation before a legal advisor has given an opinion on whether it complies with the rules of IHL. The legal advisor’s opinion provides the framework within which the commander will make his decision. … This same system is being developed within the other services, down to the level of battalions in the Army and the equivalent in the Navy.
82. Both in the Armed Forces and in the National Police, good practical instruction combined with adequate advice and flexible and effective controls in the field will prevent the occurrence of human rights abuses and breaches of IHL. To this end, the following strategies will be implemented, depending on the nature of the mission of each force:
- Legal Doctrine and Advisory Office (ODA): A high-level legal advice group providing advice on human rights and IHL, which will assist in operational decision-making and the development of legal concepts for the defence sector.
- Operational Legal Advisers (AJO):
Lawyers advising commanding officers on human rights, IHL and Operational Law during the planning, execution and evaluation of operations.
[footnote in original omitted; emphasis in original]