The role of military legal advisers in targeting: a perspective from the Netherlands

This article focuses on the role of legal advisers in targeting during military operations, from the perspective of the Netherlands. In doing so, it takes into account the experience of Dutch legal advisers who were involved in targeting in the last decade, as part of ISAF and OIR.

The article concludes that the role of Dutch military legal advisers in targeting is not so different from the role of their colleagues in other armed forces. Like their colleagues, they give advice while the commander is the decision-maker. This has not changed, although developments in recent years, particularly the development of communication systems, have brought the legal adviser closer to the actual process of decision-making.

In order to be effective in advising the commander in the context of targeting, the legal adviser needs to have specific knowledge and skills, including knowledge of the law of targeting, the mission, the means available to the commander, the workings of a headquarters and targeting process. The relationship they have with their commander is of vital importance.

The fact that Dutch military legal advisers normally operate as part of a multinational operation entails two challenges. The first challenge is to navigate the different legal obligations that different states within the operation have, as well as the different interpretations they may have of shared obligations. The second challenge is that it may be necessary to rely on intelligence provided by other states in giving advice on targeting, raising the thorny question of how much trust may be placed in that intelligence.