I generally despise JAG's (no offence FJAG, you seem to be a good guy) - but the level of stupidity generated by Military lawyers is incredible.
We can drop bombs on people, but the idiocy of parts of the Hague Convention continues, and no one has stopped to think that the whole expanding bullet stupidity was long before thermobaric munitions, effective fragmenting munitions etc.
It is a war - get over it.
I mean why not go back and charge all the remaining WWII Bomber crews with murder - that makes about as much sense...
Amongst lawyers there's an old adage "Everyone hates lawyers in general but loves their own lawyer". My experience has been that the higher up in the CoC you go the more the operational commanders are prone to like their legal advisors and to respect their opinions. At the lower levels the lawyers become the easy scapegoats.
Key issue. ROEs are NOT dictated by legal officers.
The starting point is that the Government of Canada (like the US and most other countries) has committed itself to certain international legal standards through treaties, acceptance of customs of war etc which regulate how its military employs the use of force.
In any given campaign, the Government of Canada exercises control over how its military employs force through ROEs issued on its behalf through the CDS. In developing those ROE, the CDS, through the J3 side, incorporates three considerations: 1. ensuring national policies are maintained, 2. define what limits on the use of force are to be put in place, and 3. ensure use of force stays within international or domestic legal bounds.
The first two considerations are entirely driven by government and/or operational policy and/or requirements. The third factor is one where the JAG (not just a legal officer, but "THE" JAG) must sign off indicating that the particular ROE that has been developed by the ops folks are within the appropriate law. Generally that's not a problem because the ROE development process is a very mature one and in many ways the ops people develop ROE from a set of pre-approved clauses.
Once issued, ROE are orders issued by the CDS to his deployed forces. At that point the conditions for the use of force which may employed by the subordinate commanders has been set. Commanders in the field cannot use any greater force but may request a modification of ROEs from the CDS where necessary. Legal officers in the field have absolutely no power to restrict issued ROEs. Their role is to solely to "advise" their supported commanders during targeting procedures, as to whether or not the commander's intended action falls either within the ROE or outside of it.
The law of armed conflict has changed considerably since the dum dum bullet. There have been numerous new treaties over the last four decades addressing both weapon systems and humanitarian law. I have my personal views about "Bomber" Harris, but to paraphrase, "that was then, this is now".
The problem as I said before is that in highly complex environments you can't always reconcile each and every tactical situation on the ground with the "big picture" national policies and objectives. There was a point both in Iraq and Afghanistan where senior government and military leadership came to believe that robust military operations were counter-productive to the overall objective of creating stable indigenous governments capable of providing for their own security and economy. How correct that belief was or how productive the subsequent response was has been and continues to be a highly debated topic. What is absolutely clear, however, is that in Afghanistan, first ISAF and subsequently OEF forces, turned to kinder and gentler ROEs. The point that I want to make is that this was not a legal decision; it was a high level military/political one.
I'm not making any judgement calls as to who's right or wrong here. The guy on the ground with his M4 in hand has one view of the world and, for him, that's reality. But at the same time, the guy sitting back in Kabul or Washington also has a view of the world and, for him, that's reality. Neither one is a bad guy, nor stupid, nor insensitive; they're just guys trying to do the best job they can in the environment within which they operate. That said, the ROEs are orders and lieutenants who disobey them should expect to have someone rip them a new one.