President Barack Obama fired General Stanley McChrystal on June 23, 2010, following a controversial interview with Rolling Stone.  Just hours later, President Obama appointed General David Petraeus, head of United States Central Command and architect of the 2007 surge in Iraq, to replace General McChrystal in leading the Afghan war.  Despite the change in leadership, no change is expected in the current war strategy.

The Interview

General McChrystal’s termination was set in motion by his decision to grant an interview to the magazine Rolling Stone.  Sources close to General McChrystal told Rolling Stone that General McChrystal thought President Obama to be “uncomfortable and intimidated” by senior military officials and called a one-on-one meeting between President Obama and General McChrystal a “photo op” in which President Obama “didn’t seem very engaged” with the issues at hand.

General McChrystal’s top staff members did not appear in the most flattering light themselves.  For example, the Rolling Stone reported that some senior staff members called themselves “Team America,” from the movie Team America: World Police, a film parody about fictional paramilitary police who attempt to save the world from a terrorist plot led by Kim Jong-il.  These staff members also made numerous derisive comments not only about President Obama, but also Vice President Joe Biden; Ambassador Karl Eikenberry; Richard C. Holbrooke, the special envoy to Afghanistan and Pakistan; and James L. Jones, Jr., the National Security Advisor.

But the Economist, at least, has argued in a post-firing article that General McChrystal’s frankness had been a good thing.  General McChrystal was interested in alternative viewpoints and “happily took the press into his confidence.”  The mistake was to include Rolling Stone in that confidence.  The Rolling Stone article “seemed to include every unguarded sentence he, or his aides, might have uttered.”  Nevertheless, the Economist agreed that General McChrystal was worthy of dismissal.

Can Petraeus Win the War in Afghanistan?: An Editorial Roundup

Answering this question first requires a step back: what does it mean to win the war in Afghanistan?  The opinions below discuss the strategy for fighting the war in Afghanistan, but don’t explain what a “win” would look like.  Is it routing out the Taliban?  Creating a strong democracy and a growing economy—and if so, what is the threshold for success?  Whatever a win is, some of the top newspapers are pessimistic about the chances that the United States will achieve it.

The New York Times paints a gloomy picture.  Currently, the war in Afghanistan is going poorly.  NYT notes that to win, General Petraeus will need “a dose of good fortune” in addition to the counterinsurgency strategy that he will implement.  The problem is not just the insurgents themselves, but also the morale of America’s own troops, who are angry over restrictions on using firepower.  Nor are the troops the only ones unhappy with the nuts-and-bolts of the war—senior officials in the Obama administration hold differing views on how the war in Afghanistan should be fought.

The Economist is even more pessimistic.  According to the editors, the problem is not General Petraeus, but rather that the current counter-insurgency strategy devised jointly by Generals McChrystal and Petraeus—the strategy that General Petraeus is likely going to continue—would take more time and effort than America and NATO are willing to give.  One senior NATO official estimated that it would take 13 years to win a counter-insurgency campaign.  The counterinsurgency campaign is only in year two and President Obama has promised to start withdrawing American troops from Afghanistan in July 2011.  A troop shortage will be compounded by the expected withdrawal of 4,500 Dutch and Canadian troops over the next year.

Many of a roundup of foreign policy experts at the Washington Post agree: General Petraeus is good, but something else needs to give if the United States is to stand a chance of winning the war in Afghanistan.  Danielle Pletka, vice president for foreign and defense policy studies at the American Enterprise Institute, believes that Ambassador Eikenberry and Mr. Holbrooke need to go because “they have put politics above the mission and ego above all.”  Kurt Volker, ambassador to NATO from 2008 to 2009, believes the July 2011 pullout date needs to be scrapped because it signals doubt of American commitment to winning.  Zalmay Khalilzad, United States ambassador to Afghanistan, Iraq, and the United Nations during the George W. Bush administration, argues among other changes that General Petraeus will require civil-military cooperation and better relations with the Afghan government and people.

Indeed, success might be entirely outside of American hands.  The Los Angeles Times has argued that it will be difficult to defeat the Taliban as long as it can depend on supply routes and sanctuaries in Pakistan.  In turn, Pakistan’s willingness to cooperate on this front is a political consideration—Pakistan would like to have more influence in Afghanistan than India does—that is out of General Petraeus’s hands.

Image courtesy of the London Telegraph.

“I hope our wisdom will grow with our power, and teach us that the less we use our power, the greater it will be.”

The words of U.S. philosopher-president Thomas Jefferson adorn the walls of Jefferson Memorial Library at West Point Military Academy.  They reflect the ethos that mastering warfare will not be sufficient to guarantee the pre-eminence of an army.  Rather, it is the wisdom acquired by mastering all forms of knowledge that enables a country to project power through non-military means, which will ultimately determine supremacy.  This article identifies the key factors that have led the U.S. Army to develop leadership that takes into consideration the political, social, and economic aspects of a conflict to devise a nuanced military strategy.

There have been instances when the U.S. military did not live up to Jeffersonian ideals, but in the past 200 years there have also been outstanding American generals who have exemplified the tradition of utilizing force judiciously.  Gen. George Marshall was an equally great diplomat as he was a general.  He foresaw that a broken and wounded Europe could not be healed by another Treaty of Versailles forced upon the defeated powers, but by forging a common vision for a prosperous future.  As architect of the European Recovery Plan, Gen. George Marshall set the foundation for peace that has led to the European Union.

Most recently, when sectarian violence spiraled out of control in Iraq, Gen. David Petraeus turned conventional military thought upside down in devising a counterinsurgency doctrine.  Instead of a search-and-destroy mission, the U.S. military protected the local population to create pockets of security and used diplomacy and patronage to wean support away from al-Qaeda.  In addition to an extra 24,000 troops, the judicious use of the tribal system and collaboration with community leaders resulted in the success of the surge.

We believe the factors that created the leadership that led to this success are:

The World is West Point’s Training Ground

Every year an estimated sixty non-U.S. students join West Point to train with American cadets.  Therefore, success at the Academy requires collaboration across cultural and ideological divides.

This cross-cultural training continues after West Point as the U.S. Army sends officers to work with the leadership of a diverse set of countries.  As a result, individuals have a unique opportunity to understand new cultural and political contexts and develop strong relationships that last long into their careers.  One such example came when General Musharraf of Pakistan conducted a coup in October 1999.  His first call was not to the U.S. State Department, but to Gen. Anthony Zinni.  This shows that working with international leaders gives U.S. officers an unparalleled education in diplomacy and cross-cultural leadership.

Expanding Knowledge and Nurturing Continuous Learning

The U.S. government dedicates a significant portion of its annual defense expenditure to the training of its military.  Evidence of this is the fact that the U.S. Military Academy has a student-faculty ratio of only six to one, resulting in extensive interaction between students and instructors.  In addition, longer duration of training than that of developing country armies allows every cadet to study military science, two years of a foreign language, and subjects as diverse as engineering and liberal arts (including recitation of poetry!).

Post-West Point, U.S. Army officers have extensive learning opportunities such as the Advanced Degree Program to achieve master’s or doctorate degrees and the elite one- year National Security Fellows Program.  Lt. Gen. Tad Oelstrom USAF (ret.), Director of the National Security Program at the Harvard Kennedy School, points out that the National Security Fellows gain exposure to the wealth of experience at institutions such as Harvard University and the Council on Foreign Relations and then take this knowledge back to their operational roles.  These opportunities as well as a formal framework that encourages officers to advance their educational qualifications helps sustain the quest for further knowledge.

Infusing Critical Thinking

The system of education at West Point nurtures a critical mind where acceptance of ideas is won through analytical discourse of facts and reasoning of argument.  For example, a second-year cadet is currently writing an essay on the lessons of My Lai.  By openly discussing one of the darkest events of U.S. military history, West Point allows its cadets to develop the independent and critical thinking that is necessary to ensure that cadets internalize these values for the long-term and the army is adaptive to a changing environment.

Today’s information age has transformed the challenges faced by modern armies.  New technologies are empowering non-state actors to pose unpredictable threats.  It is important that all armies learn key lessons from the way the United States conducts its professional military education to prepare for the challenges of a transformed security environment.

We offer three recommendations for other countries to benefit from the U.S. experience.

Recommendation 1: The United States should increase cross-country participation for cadets and officers from developing countries through joint exercises and greater opportunities to study with U.S. and other militaries.

Why: Such programs improve understanding between militaries, demonstrate positive American values to foreign officers, and give them access to a world-class education that they might not otherwise have.

How: This can be accomplished by expanding the International Military Education and Training (IMET) program to include a greater number of foreign military officers. Executive programs should be introduced for the top ranking officers from developing countries to study with the U.S. National Security Fellows.

Recommendation 2: Armies should build a solid intellectual foundation by reforming current military training curricula to expose officers to a wider range of subjects.  The duration of cadet training should be increased and officers incentivized to seek educational opportunities throughout their careers.

Why: Increasing long-term educational opportunities is important because two years of training may not be sufficient to infuse a new set of values or achieve in-depth knowledge of a wide range of subjects.  In addition, if officers believe their military careers will suffer by pursuing educational training this will prevent them from participating in continuous education opportunities.

How: Armies should increase the duration of training at the military academies to a total of four years.  They should also re-frame the curriculum to increase emphasis on the social and political aspects of security, not only concentrating on tactical military strategy.  A formal framework should be instituted with authorized periods of leave for education without penalizing their military careers.

Recommendation 3: Countries should develop a long-term commitment to educational growth by providing opportunities in a meritocratic system.  Learning should be encouraged through debate and discourse methodology rather than a rote learning method.

Why: A meritocratic system of selection and promotion of officers would ensure that the more competent officers rise, thus providing incentives for other officers to also upgrade their skills and knowledge.  Methods of learning through classroom discussions and debate allow students to deepen and internalize their understanding much more effectively than through rote learning.  This will further equip the cadets with critical thinking skills.

How: The profile of the selection process should be raised and made prestigious, with only the most competent officers being selected.  A greater portion of teaching should be conducted through case studies with cadets taking different positions and arguing from those vantage points.

Conclusion

Wars are no longer about defeating an enemy army and subjugating a local population. They are increasingly about eliminating threats from non-state actors, which cannot be achieved without the support of the local population.  If developing countries fashion the training of their officer cadre on the U.S. model, they will create a military leadership capable of meeting the complex and multi-dimensional security challenges.  More importantly, such an education would instill in their officers the limitations of military power, and this might just deter future military interventions and indirectly contribute to growth of democracy in developing countries.

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I.  Introduction

Imagine that the U.S. intelligence services obtain reliable information that a known individual is plotting a terrorist attack against the United States.  The individual is outside the United States, in a country where law and order are weak and unreliable.  U.S. officials can request that country to arrest the individual, but they fear that by the time the individual is located, arrested, and extradited the terror plot would be too advanced, or would already have taken place.  It is also doubtful that the host government is either able or willing to perform the arrest.  Moreover, even if it did arrest the suspected terrorist, it might decide to release him shortly thereafter, exposing the U.S. to a renewed risk.  Should the United States be allowed to kill the suspected terrorist in the foreign territory, without first capturing, arresting, and trying him?

More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and addressing it as war.  The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty.  In law enforcement, individuals are punished for their individual guilt.  Guilt must be proven in a court of law, with the individual facing trial enjoying the protections of due process guarantees. Killing an individual without trial is allowed only in very limited circumstances, such as self- defense (where the person poses an immediate threat) or the immediate necessity of saving more lives.  In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder.

When agents of a state seek to engage in enforcement operations outside their own territory without consent of the foreign government, they are further constrained by international norms of peaceful relations and the respect for territorial boundaries among states.  Ordinarily, when a criminal suspect finds refuge in another country, the United States would ask the other country for extradition to gain jurisdiction over him.  Even interviewing a person outside of U.S. territory would be unlawful; executing him would be an extremely egregious offense.  Violations of these norms run the risk of replacing law with force and spiraling international violence.

In wartime, governments may use deadly force against combatants of an enemy party, in which case the peacetime constraints are relaxed.  But in war, the enemy combatants belong to another identifiable party and are killed not because they are guilty, but because they are potentially lethal agents of that hostile party.  Moreover, soldiers are easily identified by the uniform they wear.  Once in the uniform of an enemy state, any soldier, by commitment and allegiance, is a potential threat and thus a legitimate target, regardless of the degree of threat the soldier is actually posing at any particular moment: the relaxing, unarmed soldier, the sleeping soldier, the retreating soldier—all are legitimate military targets and subject to intentional targeting.  No advance warning is necessary, no attempt to arrest or capture is required, and no effort to minimize casualties among enemy forces is demanded by law.

The identity and culpability of an individual not wearing a uniform but suspected of involvement in terrorism is far less easily ascertained.  While combatants should not benefit from defying the obligation to distinguish themselves from civilians (wearing civilian clothes does not give a soldier legal immunity from direct attack), the lack of uniform does raise concerns about the ability to identify individuals as belonging to a hostile force.[1] Moreover, joining a military follows a distinct procedure that allows for a bright-line rule distinguishing between those in the military and those outside it (although it hides the dangerous responsibility of civilians who take part in hostile activity without being members of the armed forces).  Joining a terrorist organization does not necessarily have a similar on/off switch; individuals might join the organization or support it in some ways or for some time, but then go back to their ordinary business without any ritual marking their joining or departing.  Identifying individuals as terrorists grows more difficult as organizations, such as Al-Qaeda, become a network of small dispersed cells, or even individuals, making the association with a hostile armed group even more tenuous.

Despite these difficulties, both the United States and Israel (as well as several other countries) have made targeted killing—the deliberate assassination of a known terrorist outside the country’s territory (even in a friendly nation’s territory), usually (but not exclusively) by an airstrike—an essential part of their counterterrorism strategy.  Both have found targeted killing an inevitable means of frustrating the activities of terrorists who are directly involved in plotting and instigating attacks from outside their territory.

Adopting a position on targeted killings involves complex legal, political, and moral judgments with very broad implications.  Targeted killing is the most coercive tactic employed in the war on terrorism.  Unlike detention or interrogation, it is not designed to capture the terrorist, monitor his or her actions, or extract information; simply put, it is designed to eliminate the terrorist.  More than any other counterterrorism practice, it reveals the complexity involved in classifying counterterrorism operations either as part of a war or as a law enforcement operation.

A targeted killing entails an entire military operation that is planned and executed against a particular, known person.  In war, there is no prohibition on the killing of a known enemy combatant; for the most part, wars are fought between anonymous soldiers, and bullets have no designated names on them.  The image of a powerful army launching a highly sophisticated guided missile from a distance, often from a Predator drone, against a specific individual driving an unarmored vehicle or walking down the street starkly illustrates the difference between counterinsurgency operations and the traditional war paradigm.  Moreover, the fact that all targeted killing operations in combating terrorism are directed against particular individuals makes the tactic more reminiscent of a law enforcement paradigm, where power is employed on the basis of individual guilt rather than status (civilian/combatant).  Unlike a law enforcement operation, however, there are no due process guarantees: the individual is not forewarned about the operation, is not given a chance to defend his innocence, and there is no assessment of his guilt by any impartial body.

The uneasiness about classifying and evaluating targeted killings further grows as these operations are carried out outside an immediate battlefield, such as in Yemen, Pakistan, or Somalia.  Justifying targeted killings in those countries faces the challenges of the constraints of peaceful international relations or else a potentially unlimited expansion of the geographical scope of the armed conflict beyond the immediate theater of war.  There are slippery slope concerns of excessive use of targeted killings against individuals or in territories that are harder to justify.  Recent reports about a U.S. “hit list” of Afghan drug lords, even though supposedly taking place in an active combat zone, have sparked criticism that drug lords, even when they finance the Taliban, do not fit neatly within the concept of “combatant,” and must instead be treated with law enforcement tools.[2]

Concerns about the use of targeted killings grow as collateral harm is inflicted on innocent bystanders in the course of attacks aimed at terrorists.  In war, collateral damage to civilians, if proportionate to the military gain, is a legitimate, however dire, consequence of war.  In domestic law enforcement, the police must hold their fire if they believe that there is a danger to innocent bystanders, except where using lethal force against a suspect is reasonably believed likely to reduce the number of innocent deaths.

To make this tactic acceptable to other nations, targeted killings must be justified and accounted for under a set of norms that may not correspond perfectly to either peacetime or wartime paradigms, but is nonetheless respectful of the values and considerations espoused by both.  In this chapter we consider the advantages and disadvantages of choosing either paradigm as our starting point, thereafter subjecting the paradigm to necessary modifications for application to the counterterrorism context.  We do so by assessing the American and Israeli experience in employing targeted killings and its legal, moral, and strategic implications.

II.  The Practice of Targeted Killing

A.  The United States

Countries have been in the business of targeted assassinations for centuries.  The United States has been a more recent participant.  The U.S. Senate Select Committee chaired by Senator Frank Church (the Church Committee) reported in 1975 that it had found evidence of no less than eight plots involving CIA efforts to assassinate Fidel Castro, as well as assassination plots against President Ngo Dinh Diem of South Vietnam and General Rene Schneider of Chile.  During the Vietnam War, the Phoenix Program planned the assassination of Viet Cong leaders and sympathizers.  In 1986, President Ronald Reagan ordered Operation El Dorado Canyon, which included an air raid on the residence of Libyan ruler Muammar Qaddafi.  Qaddafi remained unscathed, but his daughter was killed.

Assassination plots by both the United States and other countries were not publicly acknowledged, justified, or accounted for.  Rather, they were taken to be an element of that part of foreign relations that always remains in the dark, outside official protocol or lawful interaction, unspoken of, but understood to be “part of the international game.”  Many of the plots never became public knowledge; few, if any, enjoyed enduring public acceptance.

The political fallout of the Church Committee’s criticism of the covert assassination program during the Cold War brought President Gerald Ford to promulgate an executive order banning assassinations, a prohibition that was later incorporated into Executive Order 12333 (1981) signed by President Ronald Reagan and that remains in effect today.  The executive order was part of the reason that those responsible for planning military actions prior to 1998 took great care to avoid any appearance of targeting specific individuals.

However, following the 1998 bombings of the American embassies in Kenya and Tanzania, and on the basis of a (secret) favorable legal opinion, President Bill Clinton issued a presidential finding (equivalent to an executive order) authorizing the use of lethal force in self-defense against Al-Qaeda in Afghanistan.  Shortly thereafter, seventy-five Tomahawk cruise missiles were launched at a site in Afghanistan where Osama Bin Laden was expected to attend a summit meeting.  Following the attacks of September 11, 2001, President George Bush reportedly made another finding that broadened the class of potential targets beyond the top leaders of Al-Qaeda, and also beyond the boundaries of Afghanistan.  Secretary of Defense Donald Rumsfeld ordered Special Operations units to prepare a plan for “hunter killer teams,” with the purpose of killing, not capturing, terrorist suspects.  Using the war paradigm for counterterrorism enabled government lawyers to distinguish lethal attacks on terrorists from prohibited assassinations and justify them as lawful battlefield operations against enemy combatants, much like the uncontroversial targeted killing of Japanese Admiral Isoroku Yamamoto while he was traveling by a military airplane during World War II.  According to reports, President Bush also gave the CIA, and later the military, authority to kill U.S. citizens abroad if there was strong evidence that an American was involved in organizing or carrying out acts of terrorism against the United States or U.S. interests.[3]

The first publicly known targeted killing of terrorists outside a theater of active war under the most recent presidential finding was in Yemen in November 2002, when a Predator (unmanned and remotely operated) drone was launched at a car carrying Al-Harethi, suspected of the USS Cole bombing, along with four others, one of whom was an American citizen.  The attack in Yemen was executed with the approval of the government of Yemen, thereby eliminating some of the international legal difficulties associated with employing force in another country’s territory.

Later, the United States engaged in a number of targeted killing operations in Pakistan, not all of which were authorized or approved by the Pakistani government.  One of those operations, carried out in January 2006 and directed at Bin Laden’s deputy, Aiman al-Zawahiri, left eighteen civilians dead while missing al-Zawahiri altogether and drawing fierce domestic criticism of then-Pakistani President Pervez Musharraf.

Since 9/11, Predator drones have reportedly been used dozens of times by the United States to fire on targets in Afghanistan, Iraq, Pakistan, Yemen, and elsewhere.  The targeted killing operations have successfully killed a number of senior Al-Qaeda members, including its chief of military operations, Mohammad Atef.

President Barack Obama’s administration has not changed the policy on targeted killings; in fact, it ordered a “dramatic increase” in the drone-launched missile strikes against Al-Qaeda and Taliban members in Pakistan.  According to commentators, there were more such strikes in the first year of Obama’s administration than in the last three years of the Bush administration.  CIA operatives have reportedly been involved in targeted killing operations in Yemen and Somalia as well, although in Yemen the operations are carried out by Yemeni forces, with the CIA assisting in planning, munitions supply, and tactical guidance.  Obama has also left intact the authority granted by his predecessor to the CIA and the military to kill American citizens abroad, if they are involved in terrorism against the United States.[4]

B.  Israel

Since its creation in 1948, Israel has assassinated various enemy targets, including Egyptian intelligence officers involved in orchestrating infiltrations into Israel in the 1950’s, German scientists developing missiles for Nasser’s Egypt in the 1960’s, Black September members following the Munich Olympics massacre of 1972, and prominent leaders of Palestinian and Lebanese terrorist networks such as the secretary general of Hezbollah in 1992.  Israel even planned an assassination operation against Saddam Hussein after the Gulf War.

But it was only during the Second Intifada, which began in September 2000, that targeted killings became a declared and overt policy in the fight against terrorism.  Since the first publicly acknowledged targeted killing operation by Israel in November 2000, there have been many dozens of such operations, mostly in Gaza and only rarely in the West Bank.  The use of targeted killing operations increased with the level of Palestinian violence and decreased with the prospects of peaceful relations between the parties.  Following waves of suicide bombings, there was a surge in targeted killing operations; when there were declarations of ceasefire or when political processes were underway, operations were halted.

The process for approving targeted killing operations in Israel involves an intelligence “incrimination” of the target, which identifies the target as a person actively involved in acts of terrorism; a plan for the time, place, and means of the attack (most commonly, an airstrike); consideration of the danger of collateral damage; and a review of potential political ramifications.  The complete plan must receive the approval of a top-level political official.  There is no external review process, judicial or other.

The stated Israeli policy is that only members of a terrorist organization who are actively involved in an ongoing and direct manner in launching, planning, preparing, or executing terrorist attacks are lawful targets.  In addition, targeted killing operations will not be carried out where there is a reasonable possibility of capturing the terrorist alive.

The legitimacy and usefulness of the practice of targeted killings has been hotly debated within Israel ever since it became publicly known that Israel was employing them.  No incident illustrates the tension between the benefits of a legitimate procedure meeting due process standards and the national security demands for exigency better than the targeted killing of Salah Shehadeh.  Shehadeh was the head of the military wing of Hamas in the Gaza Strip, and was, according to Israeli intelligence, directly responsible for the killing of scores of Israeli civilians and soldiers and the injury of hundreds of others in dozens of attacks.

Initially, Israeli officials had demanded that the Palestinian Authority arrest Shehadeh.  When the Palestinian Authority declined, the Israeli government sought to capture him directly, but had to forego such plans when it realized that Shehadeh lived in the middle of Gaza City, where no Israeli soldiers had been deployed since 1994, and where any attempt to apprehend Shehadeh would turn into a deadly confrontation.  It was then that Israel decided to kill him.

On the night of July 22, 2002, an Israeli F-16 aircraft dropped a single one-ton bomb on Shehadeh’s house in a residential neighborhood of Gaza City, one of the most densely populated areas on the globe.  As a result, Shehadeh and his aide, as well as Shehadeh’s wife, three of his children, and eleven other civilians, most of whom were children, were killed.  One hundred and fifty people were injured.

Israeli officials claimed that the targeted killing of Shehadeh was designed to prevent him from carrying out future attacks against Israelis.  They asserted that, according to intelligence reports, at the time of his killing, Shehadeh was effectively a “ticking bomb,” in the midst of planning at least six different attacks on Israelis, including one designed as a “mega-attack,” involving a truck loaded with a ton of explosives.

In the aftermath of the attack, there was little disagreement that Shehadeh himself was a justified target.  Nonetheless, television images of funerals of slain children drew fierce criticism both within and outside of Israel.  Legal proceedings were initiated in Britain against the Israel Defense Force’s (IDF) Chief of General Staff, the IDF’s air force commander, and the commander of the Southern Command.[5] A lawsuit under the Alien Tort Claims Statute and the Torture Victim Protection Act was filed by the Center for Constitutional Rights in the Southern District of New York against the head of the Israel Security Agency at the time, Avi Dichter.[6] The claim was subsequently dismissed by the court.[7]

Within Israel, the cars of air force pilots, normally considered demigods in popular Israeli culture, were sprayed with graffiti insults of “war criminal.”  A year later, twenty-seven pilots declared that they would refuse to carry out any additional bombing missions in Gaza.  Israeli leftwing activists petitioned the High Court of Justice to order a criminal investigation into the attack and also to prevent the air force commander—Major General Dan Halutz—from being promoted to Deputy Chief of General Staff (Halutz later became Chief of General Staff, but resigned after the 2006 war in Lebanon).  A criminal proceeding was initiated in Spain by relatives of the victims of the attack on Shehadeh against seven Israeli officials for alleged war crimes (and was later dismissed by a Spanish court).

In a traditional war context, killing fourteen civilians along with the highest military commander of the enemy could be considered proportionate collateral damage.  For comparison’s sake, the special report of the prosecutor of the International Criminal Tribunal for the Former Yugoslavia on the NATO operation in Kosovo determined that ten (and according to some reports, seventeen) civilian casualties were legitimate collateral damage for the attack on the Serbian television station.

But public opinion could not disentangle the proportionality question from the broader political context of the Israeli-Palestinian relationship: the legality and morality of the continued occupation of Gaza and the West Bank (Israel withdrew from Gaza three years later); the perception of failure in conducting the war on terrorism; and the frustration over losing the symbolic struggle over “victimhood” to the Palestinians.

A year after the targeted killing of Shehadeh, ten senior Hamas leaders met in a room on the top floor of a residential building in Gaza.  Bruised by the effects of the Shehadeh operation, the Israeli security agencies decided to use a laser-guided bomb only a quarter of the size of the one used to kill Shehadeh.  The Hamas leaders left the room seconds before the bomb hit.  The top floor was destroyed, but the group escaped with minor scratches.  Had a larger bomb been used, the building would have collapsed, together with the Hamas leadership and civilian residents.

Two years later, in a newspaper interview, Avi Dichter, while admitting that the pre-operation assessment misjudged the level of collateral damage that would result from the attack on Shehadeh, added that “he couldn’t say how many Israelis paid with their lives for the fact that Shehadeh continued to operate long after Israel had the operational capability to harm him, but not the moral will to do it.”  In describing the subsequent failed attack on the Hamas leadership as “a miss,” Dichter lamented, “it was the Hamas’ dream team . . . the ceiling collapsed, but the team got away.  No one knows how many Israelis were killed as a result of the decision [not to use heavier munitions].”[8]

III.  Choosing the Framework

A.  Justifying Targeted Killings—The War Paradigm

The debate within the United States over the lawfulness of targeted killings has remained largely confined to legal scholarship and public commentary; the courts have never addressed it.  The Bush administration, to a large extent, relied on a December 1989 Memorandum of Law (an advisory opinion), issued by the Special Assistant for Law of War Matters to The Judge Advocate General of the Army at the time, W. Hays Parks.[9] The Parks memorandum distinguished the prohibition on illegal assassinations in Executive Order 12333 from lawful targeting of individuals or groups who pose a direct threat to the United States.  The prohibition, argued Parks, applied to covert acts of murder for political reasons.  Legal Advisor to the State Department at the time, Arbaham Sofaer, emphasized in his own statements that the prohibition “should not be limited to the planned killing only of political officials, but that it should apply to the illegal killing of any person, even an ordinary citizen, so long as the act has a political purpose.”[10] Both Parks and Sofaer, however, asserted that this prohibition did not preclude the targeted killing of enemy combatants in wartime or the killing in self-defense of specific individuals who pose a direct threat to U.S. citizens or national security in peacetime.  The latter, both argued, was permissible under the inherent principle of self-defense to which every country was entitled under Article 51 of the United Nations Charter (which allows countries to use force in self-defense after suffering an “armed attack”) and customary international law.  Neither Parks nor Sofaer expounded on what amounts to direct threat.

The Bush administration has favored the paradigm of war, treating terrorists as combatants and justifying the targeted killing of terrorists as equivalent to the lawful killing of members of an enemy force on any battlefield.  Specifically, the administration deemed terrorists to be “unlawful combatants,” targetable and detainable, but denied the rights accorded to lawful detainees, namely, to be treated as prisoners of war if captured.  The Bush administration maintained this position even when the targeted killing took place in Yemen or Pakistan, outside an immediate theater of hostilities such as Afghanistan.  Given that the war on terrorism was a “global war,” the Administration maintained, there could be no geographical boundaries to the theater of war.

However, as we noted in the introduction to this chapter, choosing a war paradigm as governing the targeted killings of suspected terrorists is not devoid of difficulties.  The killing on the basis of blame rather than status, the difficulties in ensuring the accurate identification of the target, and the fact that operations take place outside of a defined battlefield—all make the war paradigm at best a proximate, but by no means a perfect, fit.  The full legal implications of this choice were considered by the Israeli High Court of Justice (HCJ), in its ruling on the Israeli practice of targeted killing operations in Gaza and the West Bank.

A petition was first submitted to the HCJ by a group of Israeli NGOs in late 2001, as the first Israeli targeted killing operations became public, but it was dismissed on grounds of justiciability.  In March 2002, another petition was submitted, and this time, Supreme Court President Aharon Barak ordered the state to respond.  By that time, 339 Palestinians had been killed by targeted killing operations during the Second Intifada: 201 intended targets and 129 innocent bystanders.  No less than seven briefs, covering hundreds of pages of arguments and documents, were submitted to the court.  In his last decision before retiring from the court, President Barak delivered the ruling in December 2006.[11] It is probably the most comprehensive judicial decision ever rendered addressing the legal framework of the “war on terrorism.”

Barak began by accepting that, unlike in the era of the First Intifada, there was now an “international armed conflict” with Palestinian militants, which warranted and justified the use of military means, as governed by customary international law, to combat terrorism.  For Barak, accepting the armed conflict paradigm was, albeit implicitly, a precondition to the justification of targeting operations, going far beyond any law enforcement method.  Furthermore, his choice of an international armed conflict paradigm was singular amongst the opinions of the U.S. Supreme Court as well as most other commentators, which have favored a non-international armed conflict model.  This choice was possibly motivated by the fact that international armed conflicts are subject to more regulation under international law than their non-international counterparts, thereby further constraining the government.

Barak, in his decision, did not discuss the possibility of working within a law enforcement paradigm, or the possibility of relying on Article 51 of the UN Charter to justify the practice.  Indeed, it would have been hard to justify a general practice, employed hundreds of times in the same territory, as an “exceptional measure” under a self-defense paradigm.

But Barak’s acceptance of the war paradigm as applicable to the fight against terrorism was not unqualified.  The remainder of the decision was designed to limit the full application of the laws of war and place further constraints on the legitimacy of targeted killing operations, in comparison with traditional combat.

First, in terms of the classification of terrorists, Barak rejected the government’s claim that these were unlawful combatants, and found, instead, that terrorists were “civilians taking direct part in hostilities.”  This choice of a two-group classification (civilian/combatant) vs. a three-group classification (civilian/ lawful combatant/unlawful combatant) was intended to achieve at least two goals.  The first was to make sure the protections of the Geneva Conventions applied to the armed conflict with Palestinian terrorists and to avoid the American administration’s conclusion that, as “unlawful combatants,” terrorists were entitled to few protections under the laws of war.

Second, by refraining from labeling terrorists as “combatants,” the ruling ensured that unlike combatants on the battlefield, who were all legitimate targets regardless of rank, role, or threat, terrorists would not be targeted on the basis of mere membership in a terrorist organization; instead, an individual culpability of the targeted person, by way of direct participation in instigating and executing terrorist acts, would have to be proven.  A mere membership test in the case of Hamas or some other Palestinian organizations would have been especially prone to over-inclusive application, as alongside their military wings, these organizations also have broad political, social, economic, and cultural operations.

The ruling also departed from the traditional armed conflict paradigm in that it conditioned the legitimacy of targeted killings on the absence of a reasonable alternative for capturing the terrorist.  On the traditional battlefield, no attempt to capture the enemy or warn the enemy in advance is necessary before shooting to kill.  In fact, the court’s requirement to try to apprehend the terrorist is far more easily situated within a law enforcement model of regular policing operations and signifies the uneasiness that the court felt about the war paradigm.

The Supreme Court’s decision also addressed concerns about collateral damage to innocent civilians in the course of targeted killings operations.  At the time the petition was submitted, the ratio of civilians to militants killed by targeted killings operations was 1:3—one civilian for every three militants[12] (the ratio has improved substantially since then, and in 2007, the rate of civilians hurt in targeted killing operations was 2–3 percent).[13] Barak acknowledged the difficulty in determining what number of casualties was “proportionate”:

[O]ne must proceed case by case, while narrowing the area of disagreement.  Take the usual case of a combatant, or a terrorist sniper shooting at soldiers or civilians from his porch.  Shooting at him is proportionate even if as a result, an innocent civilian neighbor or passerby is harmed.  This is not the case if the building is bombed from the air and scores of its residents and passerby are harmed. . . .  The hard cases are those which are in the space between the extreme examples.[14]

Accordingly, the decision placed an emphasis on the procedure by which the targeted killing operation was considered and approved and on the post-factum debriefing of operations, all in an effort to improve the record on collateral harm.  Importantly, however, the decision did not demand a zero civilian casualty policy.  In that, it remained more loyal to the war paradigm than to a policing paradigm.

Barak added that certain incidents might be subjected to judicial review.

The concern about collateral damage also brought the court to stipulate that in certain cases in which there was substantial collateral damage, and depending on the conclusions of an investigation into such incidents, it would be appropriate to compensate innocent civilians who have been harmed.[15]

To conclude, the Israeli Supreme Court sought a middle ground between a more aggressive law enforcement paradigm and a tamer wartime paradigm.  It chose the latter as its point of departure, but then, in consideration of the unique nature of the war on terrorism, added limitations and constraints on the government’s war powers so as to remain as loyal as possible to the basic principles and values of the Israeli legal system.[16]

B.  Justifying Targeted Killings—The Exceptional Peacetime Operations Paradigm

Could the U.S. administration, given the Parks memorandum, justify targeted killings even without relying on the applicability of military powers to a “war on terrorism”?  It would have to find the operation lawful under a reasonable interpretation of the domestic law of homicide; it would have to address major issues of peacetime international law, including human rights laws and the duty to respect the sovereignty of other countries; and, of course, it would have to satisfy the constitutional protections found in the Bill of Rights, to the extent these are applicable abroad.

Domestic law enforcement operations permit shooting to kill a suspected criminal only under very limited circumstances.  These limitations coincide with international human rights norms on the use of force by governments against citizens.  When the suspect imposes no immediate and lethal threat, firing at him to affect an arrest is only constitutional if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm.”[17] There are even greater common law constraints on shooting a suspect where there is a concern about collateral harm to others around the suspect; in such cases, law enforcement officials are required to hold their fire and refrain from risking innocent bystanders.  Still, under the American Model Penal Code § 3.02, the defense of “necessity” or “choice of evils” justifies and thus immunizes conduct “which the actor believes to be necessary to avoid a harm or evil to himself or to another” if the harm to be avoided is greater than that sought to be prevented by the law defining the crime (intentional killing, in this case), and so long as there is no reason to believe the legislature intended to exclude this justification.  Under this statement of the American rule the danger of the harm to be avoided need not be imminent and the rule would justify homicide as well as less serious crimes.  Thus, in some jurisdictions the wording need hardly be stretched to make legal under domestic law the killing of an active participant in a terrorist scheme to kill many others, if that way of aborting the plan is believed to be necessary.  In other jurisdictions the law would have to be changed to allow intentional homicides or consideration of non-imminent harms.

As for international human rights laws, the possibility of using deadly force against individuals who are threatening the security of the state has not been rejected altogether even by international human rights bodies.  The Human Rights Committee, in its response to the Israeli report on the practice of targeted killings, notes only that “[b]efore resorting to the use of deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted.”[18] It adds that such operations must never be carried out for purposes of retribution or revenge, thus implying that they may be legitimate if intended at preemption.

The 2002 Inter-American Commission on Human Rights Report on Terrorism and Human Rights[19] similarly leaves room for the use of deadly force against suspected terrorists, even under a general law enforcement model.  It notes that “in situations where a state’s population is threatened by violence, the state has the right and obligation to protect the population against such threats and in so doing may use lethal force in certain situations.”[20] It goes on to assert the natural implication that, in their law enforcement initiatives, “states must not use force against individuals who no longer present a threat as described above, such as individuals who have been apprehended by authorities, have surrendered or who are wounded and abstain from hostile acts.”[21]

And in its decision in the case of Isayeva, the European Court of Human Rights acknowledged the right of a state—Russia—to use deadly force against Chechen rebels, even when there was no indication that the latter were posing an immediate threat to the Russian forces.[22]

But outside the territory of the United States, the government is also limited by the international norms protecting each state’s sovereignty in using force to capture or kill suspected criminals.  As a general principle of international law, a country is strictly prohibited from engaging in law enforcement operations in the territory of another country, and much more so when the law enforcement operation includes killing a person.  Deadly attacks by air strikes or drones directly implicate the international prohibition on the use of force between states.  How, then, could the government justify targeted killing operations under international law in any way other than relying on a war/combatants paradigm?

The Parks memorandum addresses the question of lawful targeting and unlawful assassinations in peacetime, and argues the following:

The use of force in peacetime is limited by the previously cited article 2(4) of the Charter of the United Nations.  However, article 51 of the Charter recognizes the inherent right of self-defense of nations.  Historically, the United States has resorted to the use of military force in peacetime where another nation has failed to discharge its international responsibilities in protecting U.S. citizens from acts of violence originating in or launched from its sovereign territory, or has been culpable in aiding and abetting international criminal activities.[23]

Parks goes on to give the examples of an 1804–1805 Marine expedition into Libya to capture or kill the Barbary pirates; a year-long campaign in 1916 into Mexico to capture or kill the Mexican bandit Pancho Villa following Villa’s attack on Columbus, New Mexico; the 1928–1932 U.S. Marines’ campaign to capture or kill the Nicaraguan bandit leader Augusto Cesar Sandino; the Army’s assistance in 1967 to the Bolivian Army in its campaign to capture or kill Ernesto “Che” Guevara; the forcing down in 1985 of an Egypt Air plane in Sicily, in an attempt to prevent the escape of the Achille Lauro hijackers; and the 1986 attacks on terrorist-related targets in Libya.

These historical precedents, claims Parks, support the interpretation of the United Nations Charter as authorizing the use of military force to capture or kill individuals whose peacetime actions constitute a direct threat to U.S. citizens or national security.  In a footnote, he adds:

In the employment of military force, the phrase “capture or kill” carries the same meaning or connotation in peacetime as it does in wartime.  There is no obligation to capture rather than attack the enemy.  In some cases, it may be preferable to utilize ground forces to capture (e.g.) a known terrorist.  However, where the risk to U.S. forces is deemed too great . . . it would be legally permissible to employ (e.g.) an air strike against that individual or group rather than attempt his, her, or their capture, and would not constitute assassination.[24]

If so, targeted killings, as they have been used by the United States in Yemen, Pakistan, and elsewhere, may well have been justified without ever relying on a “war on terrorism,” but instead by being framed as an exceptional use of force in self-defense alongside peacetime law enforcement.  Although Parks does not expound upon this point, from his equation of military action in peacetime with that of wartime, it seems he would accept some degree of collateral damage in a peacetime operation under similar logic of a wartime attack.

Choosing a peacetime framework with some allowance for military action is not free from difficulties.  One obvious problem is that the “exceptional” use of force has been turned, in the context of the war on terrorism, into a continuous practice.  In addition, the degree to which countries should be allowed to use force extraterritorially against non-state elements has been debated extensively by both international law and domestic law scholars.  The implications of allowing the use of armed force to capture or kill enemies outside a country’s own territory, and outside a theater of traditional armed conflict, may include spiraling violence, the erosion of territorial sovereignty, and a weakening of international cooperation.

Once the precedent is laid for a broad interpretation of Article 51 of the UN Charter, as existing alongside or as an exception to normal peacetime limitations, it becomes harder to distinguish what is allowed in peace from what is allowed in war.  It is for these reasons that not everyone accepts Parks’ legal reasoning, with critics arguing that any military attack on another country’s territory, outside an armed conflict with that country, amounts to unlawful aggression.  Thus, in the case of Armed Activities on the Territory of the Congo[25], the International Court of Justice, in a decision widely criticized, went as far as to rule that Uganda had no right to use force against armed rebels attacking it from the territory of the Democratic Republic of Congo.  Recently, the U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, concluded that reliance on the exceptional self-defense argument under Article 51 in support of targeted killings “would diminish hugely the value of the foundational prohibition contained in Article 51.”[26]

Even if justified as an exception to a peacetime paradigm, one obvious precondition for the legality of targeted killing operations outside a theater of war, in consideration of the other countries’ sovereignty, must be that the state in whose territory the terrorist resides either consent to the operation by the foreign power (as in the case of the collaboration between the United States and Yemen) or else would be unable or unwilling to take action against the terrorist (as in the case of targeted killings in Gaza).  On some rare occasions there may be an overwhelming necessity to act without the immediate possibility of obtaining the other country’s consent.

Note that under a law enforcement model, a country cannot target any individual in its own territory unless there is no other way to avert a great danger.  If so, if the Yemeni authorities can capture a terrorist alive, they cannot authorize the United States to engage in a targeted killing operation in its territory or execute one on its own.

To sum up, targeted killings of terrorists by both the United States and Israel have been justified under a war paradigm: in the American case, by treating terrorists as (unlawful) combatants; in the Israeli case, by treating terrorists as civilians who are taking direct part in hostilities.  It seems that a persuasive argument can also be made that under some conditions, targeted killings of suspected terrorists can be justified on the basis of a law enforcement paradigm.  When conducted in the territory of another country, targeted killing must be based on a self-defense exception to the international law prohibition on the use of force, and in consideration of that other country’s sovereignty, should only be executed if that other country either consents to the operation or else is unable and unwilling to interdict the terrorist.

In the conclusion of this chapter, we set forth what the legitimate contours of the use of targeted killing must be.  We conclude that they seem to fit both a more constrained war paradigm and a more lax law enforcement paradigm (although the latter suits more sporadic and measured use of the tactic).  For present purposes it should be noted that if we take the Israeli Supreme Court’s decision as controlling, then the conditions for the legitimacy of targeted killings of terrorists in the armed conflict between Israel and Palestinian militants are not very different from those that would apply under a law enforcement model.  Both would allow the targeted killing of some terrorists in Gaza and both would prohibit—or place greater constraints—on the targeting of suspected terrorists outside a conventional theater of war if the alternative of capture was feasible.

IV.  Strategic Aspects

Even if legally justifiable and morally permissible, the strategic value of employing targeted killings is far from clear and depends very much on the situation.  As with any other counterterrorism tactic, targeted killings carry both strategic benefits and costs.

A.  The Potential Hazards of Targeted Killings

An immediate consequence of eliminating leaders of terrorist organizations will sometimes be what may be called the Hydra effect, the rise of more—and more resolute—leaders to replace them.  The decapitating of the organization may also invite retaliation by the other members and followers of the organization.  Thus, when Israel assassinated Abbas Mussawi, Hezbollah‘s leader in Lebanon, in 1992, a more charismatic and successful leader, Hassan Nassrallah, succeeded Mussawi.  The armed group then avenged the assassination of its former leader in two separate attacks, blowing up Israeli and Jewish targets in Buenos Aires, killing over a hundred people and injuring hundreds more.

Targeted killing may also interfere with important gathering of critical intelligence.  The threat of being targeted will drive current leaders into hiding, making the monitoring of their movements and activities by the counterterrorist forces more difficult.  Moreover, if these leaders are found and killed, instead of captured, the counterterrorism forces lose the ability to interrogate them to obtain potentially valuable information about plans, capabilities, or organizational structure.

The political message flowing from the use of targeted killings may be harmful to the attacking country’s interest, as it emphasizes the disparity in power between the parties and reinforces popular support for the terrorists, who are seen as a David fighting Goliath.  Moreover, by resorting to military force rather than to law enforcement, targeted killings might strengthen the sense of legitimacy of terrorist operations, which are sometimes viewed as the only viable option for the weak to fight against a powerful empire.  If collateral damage to civilians accompanies targeted killings, this, too, may bolster support for what seems like the just cause of the terrorists, at the same time as it weakens domestic support for fighting the terrorists.

When targeted killing operations are conducted on foreign territory, they run the risk of heightening international tensions between the targeting government and the government in whose territory the operation is conducted.  Israel’s relations with Jordan became dangerously strained following the failed attempt in September 1997 in Jordan to assassinate Khaled Mashaal, the leader of Hamas.  Indeed, international relations may suffer even where the local government acquiesces in the operation, but the operation fails or harms innocent civilians, bringing the local government under political attack from domestic constituencies (recall the failed attack in Pakistan on Al-Zawahiri that left eighteen civilians dead).

Even if there is no collateral damage, targeted killings in another country’s territory threatens to draw criticism from local domestic constituencies against the government, which either acquiesced or was too weak to stop the operation in its territory.  Such is the case now in both Pakistan and Yemen, where opposition forces criticize the governments for permitting American armed intervention in their countries.

The aggression of targeted killings also runs the risk of spiraling hatred and violence, numbing both sides to the effects of killing and thus continuing the cycle of violence.  Each attack invites revenge, each revenge invites further retaliation.  Innocent civilians suffer whether they are the intended target of attack or its unintentional collateral consequences.

Last but not least, exceptional measures tend to exceed their logic. As in the case of extraordinary detention or interrogation methods, there is a danger of over-using targeted killings, both within and outside of the war on terrorism.  A particular danger in this context arises as the killing of a terrorist often proves a simpler operation than protracted legal battles over detention, trial, extradition, and release.

B.  The Benefits Nations Seek

At the most basic level, targeted killings, which are generally undertaken with less risk to the attacking force than are arrest operations, may be effective.  According to some reports, the killing of leaders of Palestinian armed groups weakened the will and ability of these groups to execute suicide attacks against Israelis.  By deterring the leaders of terrorist organizations and creating in some cases a structural vacuum, waves of targeted killing operations were followed by a lull in subsequent terrorist attacks, and in some instances, brought the leaders of Palestinian factions to call for a ceasefire.  The Obama administration embraced the targeted killing tactic, holding it to be the most effective way to get at Al-Qaeda and Taliban members in the ungoverned and ungovernable tribal areas along the Afghanistan-Pakistan border or in third countries.

Despite the adverse effects such operations may have on the attitudes of the local population toward the country employing targeted killings, the demonstration of superiority in force and resolve may also dishearten the supporters of terrorism.

Publicly acknowledged targeted killings are furthermore an effective way of appeasing domestic audiences, who expect the government “to do something” when they are attacked by terrorists.  The visibility and open aggression of the operation delivers a clearer message of “cracking down on terrorism” than covert or preventive measures that do not yield immediate demonstrable results.  The result in Israel has been to make a vast majority of citizens supportive of targeted killings, despite the latter’s potential adverse effects.  And, perhaps surprisingly, of all the coercive counterterrorism techniques employed by the United States, targeted killings have so far attracted the least public criticism.

V.  Conclusions

Targeted killing operations display more clearly than any other counterterrorism tactic the tension between labeling terrorism a crime and labeling it an act of war.  If a terror attack is simply a crime, counterterrorism forces would follow the same laws and rules as the Chicago or Miami police department do in fighting crime, where intentional killing could rarely if ever be lawful, other than where necessary in a situation immediately requiring the defense of self or others, or in making an arrest of an obviously dangerous felon.  From the perspective of international peacetime relations, targeted killings face even greater legal constraints when targeting a terrorist outside the state’s jurisdiction.

If a terrorist plan is an act of war by the organization supporting it, any member of any such terrorist organization may be targeted anytime and anywhere plausibly considered “a battlefield,” without prior warning or attempt to capture.

Known or anticipated collateral damage to the innocent is generally prohibited in law enforcement, but is legitimate within the boundaries of proportionality in fighting wars.  In fighting crime, the government’s obligation to protect its citizens applies to all citizens—criminals and innocents.  In fighting wars, the government’s primary obligation is to its own citizens, with only limited concern for the well-being of its enemies.

Assuming, as we do, that states do have a right to defend themselves against acts of terrorism, targeted killings cannot be always illegal and immoral.  But because terrorism is not a traditional war, nor a traditional crime, its non-traditional nature must affect the ethical and strategic considerations that inform targeted killings, the legal justification behind them, and the choice of targets and methods used to carry them out.

As we have shown, targeted killings may be justified even without declaring an all-out “war” on terrorism.  A war paradigm is overbroad in the sense that it allows the targeting of any member of a terrorist organization.  For the United States, it has had no geographical limits.  When any suspected member of a hostile terrorist organization—regardless of function, role, or degree of contribution to the terrorist effort—might be targeted anywhere around the world without any due process guarantees or monitoring procedures, targeted killings run grave risks of doing both short-term and lasting harm.  In contrast, a peacetime paradigm that enumerates specific exceptions for the use of force in self-defense is more legitimate, more narrowly tailored to the situation, offers potentially greater guarantees for the rule of law.  It is, however, harder to justify targeted killing operations under a law enforcement paradigm when the tactic is used as a continuous and systematic practice rather than as an exceptional measure.  Justifying targeted killings under a law enforcement paradigm also threatens to erode the international rules that govern peacetime international relations as well as the human rights guarantees that governments owe their own citizens.

Whichever paradigm we choose as out starting point, greater limitations than those offered by the Parks memorandum or that are currently operating in the American targeted killings program should be adopted.  The limits set by the Israeli Supreme Court—ironically, within the paradigm of wartime operations—are a good place to start.

First, the tactic should not be used unilaterally by the endangered state if the host country of the terrorists is willing and able to act on its own to arrest or disable in a timely manner the source of the threat.  Host country cooperation in capture and extradition must be the first alternative considered.  That is, targeted killings must only be carried out as an extraordinary measure, where the alternative of capture or arrest is unfeasible.

Second, only those who are actively and directly involved in terrorist activities are legitimate targets; not every member of a terrorist organization is or should be.

Third, the fact that terrorists do not wear uniforms should not give them an unfair legal advantage over soldiers in uniform in the sense of immunity from deliberate attack.  But their lack of uniform does raise legitimate concerns about the ability to ensure the correct identification of the target, in terms of personal identity as well as specific culpability.  Any targeted killing operation must therefore include mechanisms in its planning and execution phases that would ensure an accurate identification.  Such mechanisms need not involve external judicial review; judges are neither well situated nor do they have the requisite expertise to authorize or reject an operation on the basis of intelligence reports.  Rather, the system should be based on verified and verifiable intelligence data from different and independent sources, careful monitoring, and safety mechanisms that would allow aborting the mission in case of doubt.

The concern about collateral damage requires specific attention.  Unlike ordinary battlefield strikes, the fact that the targeting forces have control over the time, means, and methods of strike mandates that a heightened degree of care should be exercised to choose an occasion and means that will minimize collateral harm to uninvolved individuals, especially where the operations are carried out outside an immediate conflict zone.  In those cases, we believe that where innocent civilians suffer collateral damage, those injured should generally be compensated.

Finally, the aggression of the targeted killing tactic mandates its measured use in only the most urgent and necessary of cases.  The government’s interest should be to tame violence, not exacerbate it.  Where alternatives exist, they should be pursued, not just as a matter of law but also as a matter of sound policy.

This article appears as a chapter in Gabriella Blum & Philip Heymann, Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism (MIT Press, forthcoming Sept. 2010).

** James Barr Ames Professor of Law, Harvard Law School.

[1] One such famous case took place in July 1973, when the Israeli Mossad assassinated an innocent Moroccan waiter in Lillehammer, Norway, mistaking him for a member of the Black September faction responsible for the Munich massacre.

[2] For a report on the U.S. “hit list,” see Craig Whitlock, Afghans Oppose U.S. Hit List of Drug Traffickers, Wash. Post, Oct. 24, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/10/23/AR2009102303709.html.

[3] Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, Wash. Post, Jan. 27, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/01/26/AR2010012604239.html.

[4] Id.

[5] The latter flew to London in September 2005 following his discharge from the military, but had to stay aboard the plane and return to Israel after being tipped off that he might be arrested.

[6] Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007).

[7] The United States Court of Appeals for the Second Circuit affirmed the dismissal. See Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009).

[8] Amos Harel, Dichter: The Targeted Killing of Hamas Leaders Has Brought About Calm, Ha’aretz, June 1, 2005 (in Hebrew).

[9] Memorandum from W. Hays Parks, Special Assistant to The Judge Advocate Gen. of the Army for Law of War Matters, to The Judge Advocate Gen. of the Army, Executive Order 12333 and Assassination (Dec. 4, 1989) reprinted in Army Law., Dec. 1989, at 4 [hereinafter Parks Memorandum] available at http://www.loc.gov/rr/frd/Military_Law/pdf/12-1989.pdf.

[10] Abraham D. Sofaer, Sixth Annual Waldemar A. Solf Lecture in International Law: Terrorism, the Law, and the National Defense, 126 Mil. L. Rev. 89, 119 (1989).  For further analysis of the Sofaer doctrine, see Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy and Law 24–25 (Brookings Inst., Georgetown Univ. Law Ctr., & Hoover Inst., Working Paper of the Series on Counterterrorism and American Statutory Law, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415070.

[11] HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) [2005], available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf.

[12] Note that numbers of militants killed include both the intended targets and their armed group associates who were present at the time of the attack and were harmed as a result.

[13] Amos Harel, Pinpointed IAF Attacks in Gaza More Precise, Hurt Fewer Civilians, Ha’aretz, Dec. 30, 2007, available at http://www.haaretz.co.il/hasen/spages/939702.html.

[14] Targeted Killings Case, HCJ 769/02 at ¶ 46.

[15] Id. at ¶ 40.

[16] That the 2008 armed conflict between Israel and Hamas in Gaza looked far more like a conventional war may help explain why, only three years after Barak’s decision, Israeli forces struck numerous Hamas members who would not have necessarily met the strict tests he had imposed.

[17] Tennessee v. Garner, 471 U.S. 1 (1985).

[18] U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, ¶ 15, U.N. Doc. CCPR/CO/78/ISR (Aug. 21, 2003), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/CCPR.CO.78.ISR.En?OpenDocument.

[19] Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 Rev. 1 Corr (Oct. 22, 2002), available at http://www.cidh.oas.org/Terrorism/Eng/exe.htm.

[20] Id. ¶ 87.

[21] Id. ¶ 91.

[22] Isayeva v. Russia, 41 Eur. Ct. H. R. 847 ¶ 181 (2005); see also Isayeva v. Russia, App. No. 6846/02, Eur. Ct. H. R. (Nov. 15, 2007).

[23] Parks Memorandum, supra note 9, at 7.

[24] Id. at 8 n.14.

[25] Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116 (Dec. 19).

[26] Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution: Study on Targeted Killings, ¶ 41, delivered to the Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf.

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In 2006, Congress enacted two potentially significant restrictions on the government’s ability to collect foreign intelligence information pursuant to FISA.  Against the backdrop of a Foreign Intelligence Surveillance Court of Review (Court of Review) decision that arguably reached an erroneous conclusion about the meaning and scope of FISA’s significant purpose requirement, Congress let stand two restrictions that the Court of Review had placed on the government’s use of FISA.  First, the Court of Review held that if the government’s primary purpose was to prosecute, then the government could use FISA only if it intended to prosecute an alleged terrorist or spy for what the court called a “foreign intelligence crime.”  The Court of Review also held that the government could not use FISA, even when it intended to prosecute for a foreign intelligence crime, if that crime occurred in the “past.”  This Article examines the Court of Review’s decision and argues that the court reached an erroneous conclusion in regard to the scope of the government’s power.  The Article also takes a comprehensive and fresh look at the legislative history of FISA’s purpose requirement, both before and after the Court of Review’s decision.  The Article demonstrates that Congress was keenly aware of the restrictions placed on the government by the Court of Review, and rather than explicitly expressing its will in a Final Conference Report with respect to that decision, it simply voted to repeal the amendment’s sunset provision.  The Article concludes by proposing legislation that would remove both of the restrictions placed on the government by the Court of Review.

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Gone are the days of soldiers facing each other across large battlefields, tanks shelling tanks, and fighter jets engaging in dogfights.  War, or armed conflict, to use a more precise legal term, now takes place everywhere — in cities, refugee camps and other historically non-military areas — and involves or affects nearly everyone in the area.  These changes have a powerful impact on the conduct of hostilities.  The law of armed conflict (“LOAC”), also known as the laws of war or international humanitarian law (“IHL”),[1] was developed and codified in times of more traditional state-state conflicts.  It must now adapt to these new and more complicated conflicts, which we call new warfare.  More important, re-categorizing or re-defining the ever-expanding variety of individuals who participate in and are affected by hostilities in new warfare is a critical next step.  These multiple categories of participants pose great challenges to the implementation of LOAC on the ground.

The law of armed conflict governs the conduct of both states and individuals during armed conflict and seeks to minimize suffering in war by protecting persons not participating in hostilities and by restricting the means and methods of warfare.[2] New warfare poses extraordinary dilemmas for the application of two key humanitarian law principles: the principle of distinction and the principle of proportionality.  The principle of distinction requires soldiers to differentiate between people they can target and people they are obligated to protect from harm.  The principle of proportionality requires soldiers to not attack a target if the expected innocent casualties are excessive in relation to the anticipated military advantage gained.  Applying these two principles in new warfare brings us to the fundamental question:  who can be lawfully targeted, when, and how often?[3]

The essence of new warfare is that states are engaged with non-state actors.[4] In traditional conflicts between states, which pit soldier against soldier, the categories were clear; in what we define as “new warfare”, the categories are, at best, blurred.  Simply put: the clear-cut traditional military paradigm is largely a relic of the past.  As we write these lines, the following is a sample of contemporary conflicts demanding this issue be addressed candidly, if not resolved:

United States, British, and other NATO soldiers are engaged with the Taliban and other insurgent groups in Afghanistan;

United States Predator drones are regularly attacking Taliban and al-Qaeda targets in Pakistan; and

United States forces are under attack in Iraq outside the major cities.

In each of these three conflicts, military forces face a disturbing lack of clarity[5] regarding both the operational mission and the identification of the enemy.

Some argue that LOAC is inapplicable or simply cannot work in new warfare;[6] others contend that, while still relevant, LOAC needs new treaties or protocols to be effective.[7] Indeed, one of us has recently advocated for a re-articulation of international law,[8] while still reinforcing that until principles are replaced or re-articulated, commanders must comply with pre-existing conventions and obligations.[9] However, present application of LOAC does not provide sufficient guidance for commanders facing extraordinarily complex new operational dilemmas.

When those who are fighting (insurgents, guerrillas, terrorists or comparable terms) melt into the civilian population and persons who appear to be civilians periodically engage in hostilities, determining who is a legitimate target becomes nearly impossible.  Commanders on the ground face a growing tension as they seek simultaneously to fulfill their operational mission and to uphold LOAC, particularly because doing so requires them to apply traditional legal concepts to complex and ever-changing circumstances.  At the most basic level, commanders need to train troops under their command to make a critical set of determinations, day after day: (1) who and when can they shoot, (2) who and when can they detain, and (3) who do they have to protect?

To find answers to these questions, commanders need more relevant and specific categories of individuals than the ones LOAC currently uses.  For LOAC to have continued merit and effectiveness, those responsible for its “on the ground” application must both respect it and find it relevant.  The two are not the same — even if commanders respect the law, they will be hard-pressed to apply it in new warfare if doing so exacerbates their challenges instead of facilitating solutions.  To ensure LOAC’s continued relevance, we must examine the role of multiple participants in state versus non-state conflict: commanders, innocent civilians, and the many types of legitimate targets.

First, we re-frame the traditional combatant-civilian paradigm to reflect the realities of new warfare and meet the operational realities of commanders on the ground more effectively.  Commanders view the zone of combat in terms of friend or foe, innocent civilians or legitimate targets.  An innocent civilian is a person who takes no part in hostilities[10] and is therefore immune from attack.  A legitimate target is a person or object that can be lawfully targeted.  In new warfare, the range of persons who fall into the latter category is expanding rapidly.  This expansion requires two critical adjustments in how we approach “open fire” determinations: greater sensitivity among both policy-makers and commanders to new and more carefully defined sub-categories of hostile persons; and development of a more conduct-specific checklist of factors for commanders to determine if an individual can be targeted.  We define and analyze each of the following key sub-categories in the body of this article:

Legitimate subjects of detention provide some assistance to those who are fighting but do not participate directly in hostilities.  They cannot be targeted.

Permanent targets participate in hostilities on a continuous basis.  They can be targeted at all times.

Transitory targets participate in hostilities one or two times or with no regularity.  They can only be targeted when directly participating in hostilities.

Recurring targets follow a pattern of participation in hostilities on a recurring and frequent basis, returning to civilian pursuits in between their hostile acts.  They can only be targeted when directly participating in hostilities, unless the frequency and regularity of their participation rises to the level of more continuous participation.

We approach this subject from different perspectives but with a similar focus.  Our purpose is to operationalize the law of armed conflict to give military commanders the tools to meet twin goals: fulfilling their operational missions while protecting their soldiers and innocent civilians alike.  This two-fold objective is extraordinarily complicated; it is also an absolute necessity.

In Section I, we highlight the challenges new warfare creates for the implementation of LOAC on the ground.  To do so, we define key concepts and provide insights into the commander’s perspective and dilemmas before setting forth the limitations of LOAC’s traditional approach.  Section II analyzes how to operationalize LOAC, focusing on a new framework for identifying and distinguishing among legitimate targets.  Highlighting four sub-categories, we analyze the full (and expanding) range of legitimate targets and develop conduct-specific factors to help commanders better distinguish between innocent civilians and legitimate targets during conflict.  Section II also provides critical guidelines to help commanders meet their legal and operational obligations.  Finally, Section III offers recommendations for the application of LOAC to new and as yet unforeseen challenges from newer and ever more complex conflicts.

I.  The Challenges of New Warfare

In recent years, concerns about the applicability of the Geneva Conventions and LOAC to new warfare have grown into a steady drumbeat.  These arguments range from serious concern about how to implement and enforce critical principles of LOAC in the face of new warfare realities[11] to the claim that some provisions within the Geneva Conventions are “quaint” and “obsolete.”[12] The Geneva Conventions and other LOAC conventions and protocols were indeed drafted and codified before the advent of new warfare.  However, to suggest that LOAC cannot apply to new warfare and is therefore of no consequence is ultimately to suggest that contemporary conflicts allow for no protection for civilians and place no obligations on those who are fighting, whether soldiers or other participants.  In fact, the nature of new warfare demands exactly the opposite conclusion.  Existing codifications and applications of the laws of war may prove difficult to implement, but the fundamental principles remain as important as — if not more important than — ever precisely because of the increased danger to participants and non-participants alike.

Many practitioners and scholars have defined terms relevant to conflict;[13] others have analyzed rules applicable in new warfare.[14] Although very helpful in advancing general understandings of the law, these analyses rarely address the needs of the commander on the ground.  We take a different and more practical approach designed to meet these needs.  To those who question whether LOAC’s principles and goals are flexible and adaptable enough to be effective in new warfare, the answer must be yes.  The alternative would essentially leave entire conflicts unregulated and entire categories of individuals unprotected, a choice neither LOAC nor commanders can countenance.

Humanitarian law has always been a living, breathing body of law rather than a static set of concepts and has repeatedly adapted to uncertainties and changing circumstances.  As Jean Pictet wrote in 1985:

The international Conventions contain a multitude of rules which specify the obligations of states in very precise terms, but this is not the whole story.  Behind these rules are a number of principles which inspire the entire substance of the documents. . . .  They serve in a sense as the bone structure in a living body, providing guidelines in unforeseen cases and constituting a complete summary of the whole, easy to understand and indispensable for the purposes of dissemination.[15]

When unforeseen situations have demanded new answers, LOAC’s basic principles have guided interpretations and helped find solutions to preserve and protect the law’s core values.  As we examine the challenges commanders and their soldiers face, it is clear that overly technical reliance on prescriptions in conventional and customary law simultaneously handicaps the decision-maker and undermines civilian protections.

International courts and tribunals have used this approach when confronted with new issues relevant to armed conflict.  In the 1996 Advisory Opinion on the Legality of the Use of Nuclear Weapons in Armed Conflict, the International Court of Justice emphasized that the development of new means of combat, such as nuclear arms, does not “call[] into question the longstanding principles and rules of international law.”[16] The spirit and purpose of IHL was equally relevant during the International Criminal Tribunal for the former Yugoslavia (“ICTY”).  Prosecutor v. Dusko Tadic involved abuses by Bosnian Serbs against Bosnian Muslims, so that the victims appeared to have the same nationality as the perpetrators and thus could not, based on a technical reading of the law, be considered protected persons and merit additional protection under the Fourth Geneva Convention.[17] The tribunal, however, relied on the object and purpose of the Fourth Geneva Convention and fundamental principles of IHL to find that allegiance, rather than nationality, was the crucial test for determining protected person status.[18]

In new warfare, the blurring of civilian and fighter, of military objective and protected object, make application of the principles of distinction and proportionality very difficult.  But that difficulty is not cause for abandoning the law and its key principles.

A.  Key Concepts

1. New Warfare

New warfare describes the new types of conflict that presently prevail worldwide.  These conflicts generally involve a state engaged in combat with non-state forces, combat characterized by fighting in highly populated areas with a blurring of the lines between military forces and civilian persons and objects.  As one news article recently reported on the conflict in Afghanistan,

[t]he elusive insurgents blend easily into the population, invisible to Marines until they pick up a weapon.  They use villagers to spot and warn of U.S. troop movements, take up positions in farmers’ homes and fields, and attack Marines from spots with ready escape routes.  The Marines, under strict rules to protect civilians, must wait for insurgents to attack and then attempt to ensnare them. Limited in their use of airstrikes and artillery — because of the danger to civilians and because aircraft often frighten the Taliban away — Marine riflemen must use themselves as bait and then engage in the riskier task of pursuing insurgents on foot.[19]

Although civilians have historically been the victims of war, new warfare is fundamentally different from previous conflicts because of the active involvement — in fact engagement — of civilians in hostilities.  Rather than remaining in the traditional role of passive victim, civilians (or those who were once understood to be civilians) are actively participating in hostilities in new warfare.  Understanding when these individuals cross the line from innocent civilians deserving protection to hostile persons justifying the application of force is the key question new warfare poses for commanders on the ground.

2.  Distinction

Distinction is at the heart of humanitarian law.[20] It requires that any party to a conflict distinguish between those who are fighting and those who are not, and direct attacks only at the former.[21] The purpose of distinction is emphasized in Article 51 of Additional Protocol I to the four Geneva Conventions, which states that “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack.”[22] In addition, Article 51 prohibits indiscriminate attacks,[23] extending the obligation to protect civilians beyond a prohibition on directly targeting innocent civilians.  The Statute of the International Criminal Court criminalizes attacks on civilians and other persons hors de combat in both international and non-international armed conflicts.[24] The jurisprudence of the ad hoc international criminal tribunals reinforces the centrality of this principle as well,[25] emphasizing that the principle of distinction is customary international law applicable in both international and non-international armed conflicts.[26]

3.  Proportionality

If distinction is the primary means of protecting civilians from the ravages of war, proportionality is its alter ego, the mechanism to implement distinction in practice.  Proportionality’s fundamental premise is that the means and methods of attacking the enemy are not unlimited.[27] To protect innocent civilians from the effects of war and minimize undue suffering, LOAC prohibits disproportionate attacks in two ways.  First, before launching an attack, commanders must examine whether the expected loss of civilian life or damage to civilian property from an attack will be excessive in relation to the anticipated military advantage gained from the attack.[28] If the attack is likely to have a disproportionate effect, it must be canceled. [29] International courts and national military manuals use a “reasonable commander” standard based on the circumstances of the time to determine proportionality.  In Prosecutor v. Stanislav Galic, for example, the defendant was charged with the crime of deliberate and indiscriminate attacks on civilians.  The ICTY explained that “[i]n determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.”[30]

Second, commanders must take steps necessary to minimize civilian losses when targeting a military objective.  Even if a target is legitimate according to the laws of war, failure to take the requisite precautions will make the attack unlawful.[31] In Isayeva v. Russia, the European Court of Human Rights held that the Russian aerial assault on the Chechen village of Katyr-Yurt violated the right to life guaranteed in Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms because the aerial bombardment of the village and its outskirts continued even as the civilians tried to leave via a safe passage corridor.[32] Although the attack may have been against a legitimate target — insurgents entrenched in the village — it was unlawful because the Court found no evidence that “it was planned and executed with the requisite care for the lives of the civilian population.”[33]

4.  Operationalize

Operationalizing international law requires that LOAC be adapted to the realities of new warfare; otherwise, the commander will be in the “twilight zone”, which poses extraordinary dangers to soldiers, innocent civilians, and others alike.  From the commander’s perspective, operationalizing LOAC requires both new training regimes and different operational guidelines.

In the classic military paradigm, the conflict was easily explained to those who were fighting because the enemy was obvious and the role of civilians as passive victims of war was generally clear.[34] The objective — to defeat a clearly identified enemy — was easily articulated; the means — military hardware — were obvious; and the outcome, from a military perspective, was black and white — one side surrendered.  Opposing soldiers openly carrying weapons posed dangers that led to concise and precise “open fire” orders.  The rules of engagement (“ROE”) in the traditional context were uncontroversial and simple to interpret: soldiers killed soldiers[35] and protected innocent civilians and others hors de combat.  In that sense, the rules of yesterday’s battles were obvious.

In the contemporary and future paradigm, the overwhelming majority of armed conflicts will involve soldiers operationally engaged with non-state actors.[36] The commander is required by law to distinguish between an innocent civilian and an individual who, although dressed in civilian attire, may pose an immediate threat and is therefore a legitimate target.  In addition, the commander must assess whether and when to target manifestly hostile persons deliberately hiding among the civilian population.  Respect for LOAC is the essence of command; therefore, what we call operationalizing LOAC focuses on providing guidelines for how to distinguish among persons.  When neither hostile persons nor members of armed groups wear uniforms or carry their arms openly, commanders face a tension between respect for IHL and protecting the unit — the fundamental challenge in new warfare.  In a word, both sets of persons appear to be innocent civilians, but the rules are a source of controversy and uncertainty.  Operationalizing LOAC gives commanders the tools to determine when civilians are not innocent, knowledge that is key to protecting soldiers and civilians.

B.  The Commander’s Perspective

In early 2006, the Multi-National Corps – Iraq (“MNCI”) began compiling statistics about the number of escalation of force incidents in Iraq.[37] Escalation of force incidents are primarily situations in which civilians “unwittingly drove too close to convoys or checkpoints and triggered a reaction in gunners who considered them a threat.”[38] During the first two months of 2006, MNCI recorded an average of ten escalation of force incidents per day; of those incidents, “about 5 percent resulted in an Iraqi civilian’s death [and e]leven percent resulted in an Iraqi injury.”[39] Some estimates concluded that over 1000 Iraqi civilians were killed in escalation of force incidents between 2003 and early 2006.[40] The British Army’s statistics showed that forty-nine Iraqi civilians died in similar incidents with British forces between May 2003 and March 2004.[41] Preplanned attacks can also result in large numbers of civilian deaths when the lines between legitimate target and innocent civilian are blurred.  In Pakistan, where U.S. drones attack al Qaeda and Taliban leaders, rough estimates claim that “more than 600 civilians are likely to have died from the attacks”, approximately ten civilians for every militant killed.[42] These statistics illustrate the fundamental question a commander confronts in combat: whether and when an “open fire” order can be given.  To meet standard ROE requirements, the commander must be satisfied both that he has identified a legitimate target presenting an immediate threat and that opening fire is the only way to neutralize the threat.

The fact that hostile persons are indistinguishable from innocent persons in new warfare requires both new training methods and new understandings of operational dilemmas.  Military training for new warfare is extraordinarily complex: militaries train soldiers to shoot (and if necessary, to kill) but at the same time require them to wait an additional second precisely to verify that the individual they face poses an immediate threat and is therefore a legitimate target.  In the “zone of combat” — which has replaced the traditional battlefield — an extra second can literally be the difference between life and death.  If the soldier waits that extra second and the individual was not an “innocent”, then in all probability, the soldier will be killed.  Conversely, if the soldier does not wait and, failing to evaluate the threat presented thoroughly, fires at an innocent individual, the resulting death or injury of a person who was not a legitimate target may escalate the never-ending cycle of violence and human tragedy.  Training 19-year-old soldiers to wait is counter-intuitive from all logical perspectives.  From a command perspective, however, the very nature of new warfare makes it an essential principle.

In addition, the commander faces the basic operational reality of 19-year-old soldiers: they are scared, sometimes actively dislike what they are doing, and possess a fully loaded weapon with hundreds of bullets.  If the requirement to wait is unclear in training, operational realities make understanding this demand infinitely more complex and dangerous.  The following examples illustrate the dilemma faced by commanders on the ground:

A battalion commander ordered to target three suspected terrorists plans a military operation that will minimize damage to innocent civilians while engaging the suspected terrorists.  As the commander approaches the “zone of combat”, he receives reliable and credible intelligence information that hundreds of children are in the immediate vicinity. Although there is no doubt about the mission’s legality, the children’s presence raises significant operational dilemmas for the commander.  If he decides to “go forward”, there is a more than reasonable chance of greater than minimal collateral damage.  If he aborts the mission, the unit’s retreat in full view of the local community may negatively affect the state’s deterrent effect.  The commander must decide whether to adopt a tactical approach (predicated on the “here and now”) or a strategic perspective (target the terrorists in the future provided they are not planning an immediate attack).

A commander receives a single source report regarding individuals presenting an immediate threat to his unit but concealed in a crowd of civilians.  The commander conveys that report to air support but does not have specific identifying information and is not able to pinpoint the individuals’ location within the crowd.  Although the pilots cannot positively identify the individuals, they nevertheless fire into the crowd, killing numerous civilians.  They may have killed the reported perpetrators, but they have no way to confirm if they did.

An on the ground commander reports that he has been attacked from a particular position and requests air support against the individual he has identified as the shooter.  The helicopter pilot responds that he cannot determine with sufficient certainty that the individual the commander identified is indeed the shooter.  The commander and the pilot each have a similar goal — to kill the actual shooter — but their differing perspectives on how to use the information available to them (what they saw/believed they saw) lead them to fundamentally different conclusions that directly affect how they carry out their legal obligations and operational missions.

In all three examples, the presence of individuals dressed in civilian clothing is the complicating variable.  Some are hostile persons disguised as civilians; others are innocent civilians in the wrong place.  But the immediate dangers the former pose and the obligations created by the latter are unclear.  Without more focused guidelines for commanders to help them understand the conduct of the erstwhile civilian, new warfare’s inherent ambiguity will result in the continued tragic loss of innocent lives.

C.  Limitations of the Traditional Framework

Applying the principles of distinction and proportionality in armed conflict requires specific and clear definitions of who is a legitimate target and who is an innocent civilian deserving protection from attack.[43] LOAC traditionally classifies individuals as either combatants or civilians and fits all persons within one of these two categories.[44]

1.  The Combatant-Civilian Paradigm

The Geneva Conventions use the term combatant to denote a particular status in international armed conflicts.  All members of the regular armed forces of a state involved in an international armed conflict are combatants.[45] In addition, members of armed groups or militia belonging to a state party in an international armed conflict will qualify as combatants if, as a group, they fulfill four conditions: operate under a responsible command, wear a fixed distinctive sign, carry arms openly, and respect the laws of war.[46] Civilians taking up arms in a levée en masse attain combatant status as well.[47] Combatants have a right to participate in hostilities and have immunity from prosecution — known as combatant immunity — for lawful acts taken in the course of combat.  In addition, all combatants are lawful targets at all times except when they are hors de combat because of sickness, wounds, detention, or other causes.[48] All combatants are obligated to distinguish themselves from the civilian population; failure to do so will result in forfeiture of combatant immunity for acts taken during such time.[49]

LOAC defines civilians as all persons in an international armed conflict who are not combatants.[50] In non-international armed conflict, civilians are all persons who are not members of armed forces or armed groups.[51] An important corollary for the purposes of distinction is that when there is doubt about a person’s status, he is to be considered a civilian.[52] As discussed above, civilians are immune from attack and are to be protected as much as possible from the effects of conflict.  Civilians who take up arms, however, lose their immunity from attack during the time they are participating in hostilities  — whether permanently, intermittently, or only once — and become legitimate targets.[53] One of the critical questions, which we address below, is whether that lost immunity is “transitory”, depending on the individual’s action at a particular moment in time, or is a permanent change in status.  Even though these persons are involved in hostilities, they retain their civilian status because they do not fit the definition of combatant.[54] The term “civilians” is therefore confusing because it includes persons who are legitimate targets and persons who are protected.

In new warfare, a conservative approach to distinguishing between innocent civilians and legitimate targets — in which troops err heavily on the side of civilian status in making determinations — creates a significant problem.  Most persons in new warfare would fit into a traditional category of civilians because they are not members of non-state armed forces or the regular armed forces of a state.  Many of these individuals may engage regularly in hostile acts but — because they are traditionally categorized as civilians — will be legitimate targets only when meeting the specific test for directly participating in hostilities; that is, they attack at will but can only be attacked at very specific and limited times.[55] Rather than join an organized armed group, which would make them legitimate targets at all times under a traditional analysis, these persons fight on their own or through proxy groups.  In doing so, they undermine traditional efforts at categorization and gain a measure of protection they otherwise would not have, enabling them to act with near impunity.  The law’s traditional mandate that any doubts be resolved in favor of civilian status therefore effectively acts as a free pass.

The multitude of terms courts and commentators currently use to describe this category of individuals participating in hostilities — unlawful combatant, unprivileged belligerent, enemy combatant, to name a few[56] — offers no insights to help commanders make effective and lawful operational decisions regarding their treatment (i.e., target, detain, protect).  Tarring all hostile persons with the same brush ignores the critical distinctions that affect operational decision-making and leaves commanders lacking specific and relevant guidelines for action.

2.  Distinction and Proportionality: Principles Under Fire

New warfare’s complexities confound the classic bifurcation between combatants and civilians in LOAC.  A distinct asymmetry between the military and technological capabilities of the state and non-state parties and the intermingling of civilians and hostile persons predominate in new warfare.  Both challenge the effective application of LOAC.  First, the “disadvantaged party has an incentive to blur the distinction between its forces and the civilian population in the hope that this will deter the other side from attack.”[57] For example, during Operation Iraqi Freedom, Iraqi insurgents commonly wore civilian clothing when approaching United States and British forces in order to get closer without seeming to present a threat.[58] According to the Pakistani military, Taliban leaders have bought children to serve as suicide bombers, recognizing that “[t]he young suicide bombers may be able to reach targets unnoticed.”[59] Once soldiers face attacks from legitimate targets posing as innocent civilians, they will be more likely to engage persons who appear to be civilians (some of whom truly are innocent civilians) in order to protect against surprise attacks. The effect: uncertainties and unforeseen dangers that undermine the very protections for innocent civilians inherent in the principle of distinction.

Second, the great fluidity between hostile persons and innocent civilians and the conscious blending of hostile persons into the civilian population makes a soldier’s task nearly impossible.[60] For example, a soldier manning a checkpoint sees a jeep speeding towards him.  It could be civilians seeking aid or fleeing from danger, or it could be insurgents bent on driving the vehicle into the checkpoint as a suicide bomb.  The soldier who reacts too soon and fires on the jeep risks killing innocent civilians; the soldier who waits too long to make a positive identification risks dying in a fiery explosion.[61] Neither choice is acceptable from a tactical or legal standpoint.  Insurgents take advantage of this dilemma every day to gain an edge over the superior fighting capabilities of state forces.  In Afghanistan, for example, the Taliban regularly “use a tactic of engaging coalition forces from positions that expose Afghan civilians to danger.”[62] This tactic is designed to force U.S. troops to either hold their fire in the face of an attack or endanger innocent civilians, a lose-lose situation.

The nature of combat in new warfare also demands a more nuanced understanding of the factors to include in a proportionality analysis and how to weigh those factors.  In particular, the expanding range of persons involved in conflict and the great difficulty in identifying and distinguishing among individuals has complicated the application of proportionality.  Persons who participate in hostilities, or assist those who do so, should be counted as legitimate collateral damage, even if they could not be targeted directly at the moment of an attack, and therefore should not factor into the proportionality analysis as civilian casualties.  If a commander cannot determine who is a legitimate target, who constitutes legitimate collateral damage, and who is an innocent civilian, however, his ability to make the necessary proportionality assessments is severely handicapped.  These difficulties will correspondingly undermine his ability to carry out his mission within the bounds of the law.

Current strategy in Afghanistan starkly illustrates the extraordinary challenges commanders face and how these challenges have in turn affected strategic and tactical approaches.  Revised U.S. tactical doctrine in Afghanistan now identifies the protection of civilians[63] — from both Taliban attacks and the effects of U.S. counterinsurgency operations — rather than the number of enemies killed as the primary goal of the mission.[64] In issuing the new directive, General McChrystal announced that

bombs could be dropped only when solid intelligence showed that high level militants were present or U.S. forces were in imminent danger [and] made it clear he would rather allow a few rank-and-file Taliban fighters to get away than to flatten a house whose occupants might include women and children.[65]

Thus, U.S. rules now limit airstrikes on residential compounds to “the most clear and critical cases.”[66] The following description of the two primary types of airstrikes U.S. forces employ emphasizes the dilemmas U.S. forces encounter in balancing the protection of civilians with the use of force against the enemy:

NATO and the U.S. military use both preplanned and spontaneous air strikes based on combat conditions.  Largely due to increased intelligence, strikes planned in advance have caused zero civilian casualties in the past two years. . . .  A “pattern of life” analysis — an assessment of who lives in a particular structure or area — is also required prior to calling in an air strike.  The daily activities of suspected militants are tracked and analyzed to ensure that civilians are not mistakenly targeted.

The second type of air strike is a result of “troops-in-contact.”  This generally occurs when a small number of troops confront militants and, after an initial exchange of fire, call in an air strike.  During impromptu strikes, there is not sufficient time to complete a formal collateral damage assessment, resulting in property damage, injury, and death of innocent Afghans.  In 2006 and 2007, almost every civilian casualty caused by NATO was a result of this type of incident.  The increase of insurgent tactics that include firing from homes and other populated areas has significantly boosted civilian casualties.  Instead of calling in troops-in-contact air strikes, soldiers are increasingly being encouraged to withdraw and disengage when confronted by overwhelming force.[67]

Tactical goals of reducing or eliminating civilian casualties in Afghanistan have led the United States to forego the balancing inherent in a proportionality assessment in favor of a mandate to protect civilians at all costs.

II.  Operationalizing LOAC: Targeting Parameters

When the lines between combatants and civilians are already blurred and civilians often alternate between civilian pursuits and engaging in hostilities, the principle of distinction faces its greatest challenge.  If soldiers

fire at enemy civilians simply suspected of somehow planning or conspiring to plan military attacks, or of having planned or directed hostile actions, the basic foundations of international humanitarian law would be seriously undermined.[68]

If soldiers hold their fire, however, they risk being blown up by a suicide bomber disguised as an innocent civilian.  Soldiers can no longer simply distinguish between combatants and civilians because that leaves open the question of which civilians are targets and which are innocent.  They must also therefore distinguish between innocent civilians who take no part in hostilities — and deserve protection from attack — and hostile persons who participate directly in hostilities and are therefore legitimate targets.  Existing applications of LOAC do not help, however.  To make LOAC effective, the first key step is to identify several new categories of hostile persons, each of which requires unique operational assessments and responses.  Commanders then need a checklist of conduct-specific factors to guide decision-making.

A.  A New Framework for New Warfare

On first glance, categorizing individuals in conflict as either innocent civilians or legitimate targets may seem unorthodox; after all, the law of armed conflict provides detailed prescriptions for identifying persons as combatants, volunteer militia, protected persons, participants in a levée en masse, and others.  When assessing the rights and obligations of persons, these traditional categories and the distinctions among them are crucial.  However, to provide relevant and focused guidance for commanders and troops on the ground in conflict zones, only one distinction is important: the distinction between those who can be attacked and those who cannot.

1.  Innocent Civilians

We use the term innocent civilians to refer to only those persons who retain their immunity from attack at all times.  Persons who actively participate in hostilities are legitimate targets and therefore do not belong in the same category as innocent civilians even though LOAC traditionally places both groups within the same broader civilian category.  Here we depart fundamentally from LOAC’s traditional approach: we divide the traditional category of civilians into those who are immune from attack (innocent civilians) and those whose conduct makes them legitimate targets.  Most importantly, we re-define the category of persons who are legitimate targets and emphasize the need for a narrower, conduct-specific analysis of such persons, thus reconfiguring how we — and, in particular, the commander — classify individuals in conflict.

2.  Legitimate Targets

A legitimate target is an individual (or object) that may be lawfully attacked during hostilities.  We must then differentiate among the numerous categories of individuals who fit the definition of legitimate target because not all may be targeted at all times.  One category of legitimate target is combatants and members of organized armed groups.[69] The latter primarily includes individuals who fight on a regular and recurring basis on behalf of a non-state party in any type of conflict.[70] Commanders on the ground may be able to identify these targets by evidence of their status, such as a distinctive sign or other identification.  In many new warfare situations, however, members of organized armed groups purposely intermingle with civilians and disguise themselves by concealing themselves within the civilian population.  For example, in April 2003, Iraqi troops in civilian garb used women as scouts to lure U.S. Marines into a firefight, leading to the death of twelve innocent Iraqi civilians, including women and children.[71] The Marines were fooled into believing that the Iraqis were innocent civilians and were therefore caught off guard because they could not determine whether the Iraqis intended to commit hostile acts.

In these situations, commanders cannot distinguish members of organized armed groups by their status, but must analyze their conduct instead to determine whether they present a threat.  As one U.S. Marine in Afghanistan asked, “What does a Taliban or Al Qaida fighter look like?  Can you determine the enemy’s identity by the equipment they use?”[72] When they can be identified, members of armed groups are legitimate targets at all times[73] — as long as the requirements of proportionality and collateral damage assessments are met.  Whether a commander chooses to engage will depend on whether the person poses a threat at that moment and the likelihood of mission success.

We focus here primarily on other hostile persons, those who would traditionally fall within the category of civilians but are taking part in hostilities.  However, the factors commanders use to identify and distinguish among the four sub-categories below will be equally useful when conduct-specific factors are necessary to identify members of armed groups as well.[74] For operational purposes, conduct-specific factors — as detailed below — promote the principle of distinction by focusing on the essential question of who can be targeted rather than leaving soldiers and commanders to be handicapped by the inability to distinguish among persons in the zone of combat.

B.  A New Understanding of Who is a Legitimate Target

Direct participation in hostilities separates persons who can be lawfully targeted from innocent civilians.[75] In recent years, courts and commentators have struggled to define the concept of direct participation in hostilities and develop parameters for understanding when civilians — as the term is traditionally used — become legitimate targets by dint of such participation.[76] We will not engage in a thorough analysis of these efforts here.  For the purposes of this article, we define direct participation in hostilities as acts intended to harm the enemy or the civilian population in a direct or immediate manner.  We also address persons who provide some lesser type of assistance to those who are fighting — although their acts do not meet the definition of directly participating in hostilities, these individuals are no longer innocent civilians and must fit somewhere within the commander’s framework for operational decision-making.  To analyze and differentiate among persons in the zone of combat, commanders must consider the type of participation or activity, the level of such participation, and the degree of intensity involved.

1.  Categories of Legitimate Targets

We re-categorize and re-define these persons into several sub-categories.[77] Using these categories, we operationalize the law of armed conflict for new warfare, providing commanders with effective tools to distinguish among persons in the zone of combat.  When discussing who is a legitimate target, it is important to remember that in all cases commanders must also assess whether alternatives to targeting exist, such as detention, because targeting and open fire orders should be a last resort.  Commanders can then determine whom (and how) to target, whom to detain, and whom to protect — the only way to meet the twin goals of mission success and protection of innocents.

a.  Legitimate Subject of Detention

An emerging actor in conflict — particularly prevalent in new warfare — is the individual who provides some type of assistance or support to those who are fighting.  One example is the farmer in Afghanistan who allows Taliban militants to fire missiles from his land a single time.  The commander will certainly want to detain this person and question him for information about others providing assistance or engaging in hostilities.  This person is not participating directly in hostilities because he is not actively engaging in acts causing harm to the enemy or the civilian population and is therefore not a legitimate target.  However, he is providing a measure of support to the Taliban militants and should no longer be judged an innocent meriting protection, meaning that if U.S. forces open fire on the Taliban militants and the farmer is killed, he is legitimate collateral damage.  Operationally, the commander must recognize the conduct of a person who falls within this category for three reasons: first, this person is not a legitimate target and may not be the subject of an open fire order; second, this person does not need to be protected from the effects of military operations designed to neutralize the militants using his property; and third, this person is a legitimate subject of detention and interrogation.

b.  Transitory Target

Persons who directly participate in hostilities a single time or intermittently are legitimate targets only when they are preparing for, engaged in, or returning from hostilities.  When not engaged in hostilities, these transitory targets may be detained and prosecuted for their acts.  Suicide bombers and persons who plant roadside bombs are transitory targets — they are legitimate targets only when they are on their way to or from their mission — as are those who provide logistical support to these bombers.  Another type of transitory target is the financier of terrorist attacks — his wiring of funds for the attack is the direct participation in hostilities justifying a targeting decision.

c. Recurring Target

Some transitory targets participate in hostilities with sufficient frequency and regularity that they become recurring targets.  Whereas transitory targets engage in hostilities one or two times with no pattern or regularity, recurring targets participate on a regular and frequent basis.[78] For example, a recurring target might be the mailman who picks up his gun every Tuesday and Friday night to go out and shoot at U.S. patrols.  Similarly, the farmer who allows his property to be used for firing missiles or launching attacks on a regular and frequent basis will, over time, be directly participating in hostilities by dint of his recurring assistance.  He will therefore become a recurring target as well.  In these circumstances, before acting to detain or neutralize this target, the commander will need intelligence to determine whether the farmer is being coerced to provide this regular assistance or whether he is voluntarily providing such support.  As with transitory targets, recurring targets are only legitimate targets when directly engaged in hostilities and only if no other viable alternatives exist.  The distinction between transitory targets and recurring targets — who in the moment appear to be engaged in the same or similar activity — will most often be based on available intelligence regarding past activities and future threats.

d.  Permanent Target

In new warfare, a variety of persons who are neither soldiers nor members of armed groups play a continuous role in hostilities.  This level of direct participation makes them permanent targets, meaning that they are legitimate targets at all times.  Operationally, however, the need to consider viable alternatives before issuing an open fire order means that commanders can target these permanent targets when they are engaged in hostilities but should seek to detain them if feasible when they are not actively participating in hostilities.[79] Examples of permanent targets include the maker of improvised explosive devises (“IEDs”), the supplier and maker of suicide bomber belts, and the planner of terrorist attacks.  In certain circumstances, recurring targets may participate with such regularity and frequency that their level of engagement becomes more akin to a permanent target, an analysis that will be fact-specific and dependent on intelligence information.

2.  Distinction in Practice: A Checklist of Conduct-Specific Factors

Recognizing these sub-categories and the differences between them is critical in new warfare.  Understanding how and why to distinguish among them is one of the most important tools a commander needs — and a key skill he must impart to his troops.  The following questions provide a checklist of conduct-specific factors to use in determining whether a person is a legitimate target and, more important, in which sub-category he belongs.  A wide array of actors, including the commander on the ground, the legal advisor, the individual soldier, and even more senior commanders, can use this checklist.  The checklist thus facilitates rapid implementation of the appropriate response to a threat by providing a framework for assessing information on the spot and enabling actors to know exactly which variables and intelligence information are critical for decision-making.

1.  The Act:

• Is it a direct act?
• Is it mere assistance?
• If yes, is it voluntary or coerced?

2.  Regularity:

• Is the act or assistance occurring on a regular or recurring basis?
• Has the quality and nature of the act or assistance escalated?
• Has the person done the act or provided the assistance before?
• Is there information about future plans to repeat the act?

3.  Source/Intelligence:

• Is the source (if human intelligence) defined as reliable by the intelligence community?
• Is the information valid, viable, and credible and has it been corroborated?
• Did the commander or soldiers positively identify the target “in the act”?
• If there was prior intelligence, does the unit’s visual identification “match” the intelligence?

4.  Intelligence Value:

• Is the person acting or providing assistance considered an important intelligence asset if detained and questioned?

C.  The Commander’s Top Ten: Guidelines for New Warfare

The Commander’s Top Ten gives the commander the additional tools he needs to apply LOAC effectively in new warfare.  These tools were not in his predecessor’s toolbox, a toolbox that has proven inadequate to the challenges of new warfare.  While the conduct-specific checklist above provides specific guidance for understanding, identifying, and distinguishing between and among different persons in the zone of combat, the Top Ten is a broader set of guidelines and tools for commanders to operationalize LOAC fully in new warfare.  The guidelines below, along with the necessary operational capabilities, are the key to understanding and respecting LOAC and must therefore be included in the contemporary commander’s toolbox.  Without them, neither the commander nor the troops under his command will fully operationalize LOAC.

1.  Demand clear mission articulation from senior command, including conditions for aborting or altering the mission

If they fail to provide clearly articulated mission objectives, senior command and national policymakers do junior commanders a fundamental disservice.  Although one of us raised that concern in the context of the United States’s engagement in Iraq,[80] it is at least as — if not more — relevant in Afghanistan.  Changing the mission’s purpose fundamentally confuses soldiers and commanders alike, and endangers those on the ground.[81] While missions invariably change — an operational reality — the core purpose must be consistent and cannot be akin to a yo-yo.  A commander must demand this clarity and consistency from his superiors; without it, both his leadership and his unit’s discipline will be significantly at risk.

2.  Provide clear mission articulation to soldiers

From a practical perspective, each operational mission — from targeting a specific individual to a regular foot patrol — must have an articulated purpose.  For missions targeting a specific individual, commanders must brief their soldiers regarding who the target is and why he is a target; how they can identify him; when and whether they are to detain or open fire; and any circumstances that would change the ROEs.  Patrols require a different approach.  While patrols, the most routine of duties, reflect a show of force and demonstrate presence, their numbing routine also makes them inherently dangerous.  It is the commander’s responsibility to fully brief soldiers participating in the patrol with respect to both potential targets they may encounter and the relevant ROEs specific to each of those targets.  Unlike a specific targeting mission, a patrol is not intended to engage a specific individual; however, the range of legitimate targets the patrol may encounter necessitates that each soldier be fully briefed on how to identify these distinct threats, how to distinguish among them, and the different operational responses required for persons in the categories outlined in this article.

3.  Train soldiers to be “operational” for the mission

One of the single most difficult aspects of new warfare is training a soldier to identify a legitimate target — particularly when that target is dressed no differently from an innocent civilian.[82] Identifying a legitimate target relies on a combination of several factors:

The individual’s specific behavior, including dress, body language, activity, and verbal communications;

Intelligence information about that individual; and

Intelligence information about a broader threat when the individual ‘fits’ the intelligence information.

Training must emphasize to soldiers the fundamental requirement to avoid generalizations, profiling, and collective punishment.  It is essential — particularly in the context of new warfare — that any operational response be person-specific in both specific targeting missions and routine patrols.

We have, throughout this Article, suggested four primary sub-categories of legitimate targets.  To meet the needs of new warfare, future military training must focus on these four sub-categories to maximize the operational impact on non-state actors while minimizing collateral damage.  A combination of ROEs and the specific threat an individual poses form the basis for any operational response.  Discerning the threat — and not acting either too soon or too late — depends on training that minimizes that ambiguity by teaching soldiers to develop and use a checklist for distinguishing between innocent civilians and legitimate targets and differentiating among the various types of legitimate targets.

4.  Demand rules of engagement that specify when open fire orders may be issued for previously- and individually-identified legitimate targets

A previously-identified target is an individual, such as a bomb maker, who is identified as a legitimate target based on intelligence information.  An operational plan to target this individual requires clear ROEs specifying when soldiers can open fire and when they must stand down.  Soldiers undoubtedly prefer concise and precise ROEs, but ROEs must reflect operational reality.  If the warfare is ambiguous, ROEs will — unfortunately — not be precise and concise.  The key to operationalizing LOAC effectively in new warfare is to still provide useful guidelines for soldiers in the midst of this ambiguity.  First, these guidelines must give soldiers the means to identify the target — in essence, to match him to the intelligence information they were given.  Second, these guidelines must help soldiers determine when they can target the individual, based on the key LOAC principles of proportionality, military necessity, alternatives, and collateral damage.

5.  Demand clear rules of engagement that define legitimate targets

Soldiers also need clear ROEs for identifying when and whether persons they encounter, such as a suicide bomber or IED planter, are legitimate targets even when not previously identified as such.  ROEs for these individuals are person- and conduct-specific and operational realities mean that these ROEs are less precise and subject to greater interpretation than those for a previously-identified target.  Discretion is an essential aspect of individual conduct-based threat determination; determining whether an individual is a threat at a specific moment (and therefore a legitimate target) depends on a number of variables, including field conditions, the threat presented, the number and type of people in the vicinity, and the events of the previous few days.  Although we can determine many of these variables in advance, their application is situation-dependent.  Clear ROEs that specify who is a legitimate target and how to react will minimize the need for on the ground discretion and, in ambiguous situations, give soldiers the tools to exercise their discretion in accordance with both LOAC and the mission’s purpose.

6.  Include soldiers who speak the local language and are experts on the local culture in each unit

Including a soldier who speaks the relevant local language and understands the culture greatly enhances a patrol commander’s ability to communicate with local populations.  Not only does this improved communication serve an important public relations purpose, but — just as important — it also has the operational benefit of enabling the commander to collect information about the community directly.  With language and cultural skills and an understanding of how to identify the different types of legitimate targets, this soldier can give the commander information otherwise unavailable through indirect communication.  For example, in the immediate aftermath of an attack on the unit, the commander needs the most accurate information possible to make critical operational decisions.  In real time and in the “fog of war”, commanders need to identify and distinguish between targets and innocent civilians and give effective warnings to the latter before taking action.[83] Language and cultural skills in the unit give the commander the tools to fulfill these legal and operational obligations.[84] In addition, the soldier can obtain more effective information from any detainees for the commander to use in future operations.  By lessening dependence on external sources, such as villagers, and increasing reliance on intelligence information, the commander’s operational efficiency and ability to respect LOAC improves significantly.

7.  For international and multinational forces, ensure full integration of ROEs and mission articulation and, if possible, conduct joint training sessions

International and multinational operations add another layer of complexity to the already ambiguous situations inherent in new warfare.  Although part of a unified command structure, each country’s forces naturally have different military and political cultures and considerations that inform their operational choices.  The September 4, 2009, airstrike on the Taliban-hijacked fuel tankers near Kunduz, Afghanistan, offers an example of these problems.  After receiving reports that the tankers were hijacked and were stuck in the riverbed, the commander of the German army base nearby ordered an airstrike by two United States F-15 fighter jets that ultimately killed more than thirty civilians.[85] Subsequent reports and investigations revealed serious failures of operational procedures and raised questions about the German commander’s ability to determine who was present at the scene, the decision to use air power instead of a ground operation given those uncertainties, and the apparent failure to consult with ISAF headquarters before ordering the airstrike.[86] At a more systemic level, the incident unearthed confusion and uncertainty regarding the appropriate use of force as part of the larger mission.  In the past, U.S. and other coalition forces in Afghanistan had urged the German forces to take a more aggressive approach to the conflict with the Taliban.[87] Now, in the aftermath of the International Security Assistance Force’s new tactical directive placing protection of civilians as the mission’s highest priority and drastically limiting the use of airstrikes, the German action appears far too aggressive.

This brief example demonstrates the need for greater integration of mission articulation among international and multinational forces — both the broader mission purpose and the objectives of specific missions.  Each national component of an international force must not only share the same broader mission goals, but — most importantly — must share the same operational plan for achieving those goals.  Different understandings of specific mission objectives lead to different definitions of legitimate targets, which can only create confusion and inconsistency in targeting and engagement decisions.  To achieve better operational consistency, international and multinational forces must incorporate integrated training in how to identify and how to react to legitimate targets, and how to distinguish among the various categories of legitimate targets for operational purposes.  Without training to implement broad and specific mission goals on the ground, coordination at the highest levels will lose out to confusion and ambiguity on the ground.

8.  Request establishment of field detention centers

Planning for detention centers before an operation begins is an integral aspect of new warfare.  Otherwise, on the ground commanders — whose primary mission is engaging the enemy and protecting civilians — will be forced to address questions with which they have minimal familiarity and for which they are not operationally trained, including detainee rights, interrogation, and detention conditions.  Commanders need a detention center nearby to take any detainees as quickly as possible, minimizing soldiers’ contact with the detainees and maximizing unit energies on the core operational mission.  U.S. patrol units, for example, receive training in the five “S’s and T” of detainee handling — Search, Segregate, Silence, Speed, Safeguard, and Tag.[88]

The Israel Defense Force’s March 2002 Operation Defensive Wall highlighted the problems that arise when detention centers are not an integral aspect of operation planning.[89] Thousands of Palestinians were arrested daily without adequate advance arrangement and the initial screening was done in temporary — and not suitably prepared — facilities at brigade headquarters.[90] Criticizing the last minute arrangements, the Israeli Supreme Court stated that

the need for minimal detention conditions was a natural result of the goals of the operation.  There was no surprise in the matter.  There was the possibility of preparing appropriate divisions with suitable detention conditions.  What was done a number of days after the beginning of the operation should have been done several days before it began.[91]

9.  Reduce unknown variables

To minimize loss of life among soldiers and innocent civilians alike, commanders need comprehensive intelligence information about both the innocent civilian population and potential legitimate targets.  In particular, commanders need up–to-the-minute information regarding all aspects of the relevant civilian community: meeting places, modes of transportation, gathering locations, religious observance patterns, cultural celebrations, school locations and hours of educational activity, hospital and health facility locations, and facilities for individuals with special needs.  This knowledge helps minimize the unknown, which in turn will enhance target-specific military action, protect innocent civilians from mistaken targeting, and limit collateral damage.  Intelligence gathering and analysis is central to reducing unknown variables in new warfare; without it, commanders will be unable to identify legitimate targets accurately and protect the innocent civilian community.

10.  Articulate the distinction between detainable targets and legitimate targets

To implement LOAC effectively, commanders need intelligence-, threat-, and category-dependent guidelines and criteria for deciding when to detain and when to engage.  In addition, the requirement to consider alternatives necessitates that any decision to engage, per ROE, is a last resort and that soldiers understand the range of alternatives available given the nature of the target.  Distinguishing among persons in this way is the essence of LOAC; it is also the essence of effective military command.  Failure to distinguish violates LOAC and is also — tragically — too “easy” when under fire, one of the realities of the new warfare.  Commanders are under enormous strain to engage at the same time that they are also under enormous pressure to ensure person-specific engagement.  The four sub-categories we identify specifically seek to address the tension between these two pressures. Mistakes happen and will continue to happen, making articulation and implementation of distinctions essential.

The previously mentioned dilemma regarding “waiting an additional second” is, operationally, the manifestation of distinguishing between legitimate subjects of detention and the other three categories of targets.  A permanent target (bomb maker) or transitory target (suicide bomber) is a legitimate target; a farmer who infrequently allows his land to be used for firing weapons is not, even though he is unquestionably detainable.  This approach meets LOAC’s requirements and is equally important from an operational perspective because a legitimately detained individual can provide — through lawful interrogation — important information that would perhaps otherwise be unavailable to the commander and his superiors.  Using this information, the commander can then more accurately determine which other targets are “targetable”, which are “detainable”, and, in certain cases, when changing operational circumstances make a “detainable” person now “targetable”.

III.  Future Recommendations and Analysis

Our new framework and guidelines for commanders operationalize the law of armed conflict to address the challenges of new warfare.  But these guidelines cannot necessarily tackle unforeseen challenges from unknown new types of future conflicts.  To do so, LOAC needs to be more agile.  Agility means that the law can adapt to changing circumstances and meet the needs of policymakers and commanders on the ground alike.  It means that the law must allow room for new ways of thinking that uphold the law’s goals and principles precisely when they are under fire.  Agility means that when old approaches are not working, the law helps us find the answers.

As new warfare became a prevalent, and now predominant, form of conflict, the law did not adapt appropriately to the complicated scenarios new warfare presented.  The international community continued to focus on traditional visions of combatants and civilians, notwithstanding the disconnect between that framework and the reality on the ground in new warfare.  Most criticisms of the law argued that the law could no longer apply, when, in fact, such critiques simply did not examine how it could apply in a more agile way.

We focus on maximizing that agility to enable LOAC to meet the demands of new warfare while still preserving the principles and goals that form the law’s foundation.  The steps we take here are precisely the steps that must be taken in future situations that pose existential challenges to LOAC:

First, we analyze why new warfare creates grave difficulties for LOAC as traditionally applied.  LOAC requires that commanders distinguish between those who are fighting and those who are not, but the traditional legal framework offers few clues for how to do so in new warfare.  As an example, future conflicts are almost certain to involve significantly greater use of cyber-warfare and technological capabilities we cannot predict.  In these situations, delineating between military and civilian objectives may prove to be almost impossible without new understandings of these legal terms that are relevant to future conflicts.

Second, we identify the key legal principles at risk in new warfare: distinction and proportionality.  When new warfare makes distinguishing between persons extraordinarily complicated, fulfilling the obligations of distinction and proportionality becomes equally difficult.  Future conflicts may pose unforeseen challenges for other legal obligations and principles whose application seems straightforward today; only by zeroing in on the specific principles can we maximize LOAC’s adaptability in the future.

Third, we use the basic goals of the legal principles at issue to create a new, more workable framework.  Distinction and proportionality rely on the ability to classify and distinguish among persons in conflict, so we created new sub-categories to sharpen commanders’ ability to distinguish and to respond accordingly.  This third step is critical to making LOAC agile — if we cannot find ways to adapt how we apply the law, we will be left only with the claims that the law can no longer work, an unacceptable result.

Fourth, we turn the new framework into operational, on-the-ground guidelines that make LOAC relevant and useful for commanders and policymakers.  The conduct-specific checklist and the Commander’s Top Ten above give commanders concrete steps to use the law effectively in training their troops, preparing for missions, and fulfilling these missions.  With these new tools, commanders can distinguish between innocent civilians and legitimate targets and, just as important, distinguish among the various types of legitimate targets to find the best and most appropriate operational response for each situation.

Image courtesy of the Boston Globe

** Professor of Law, S.J. Quinney College of Law, The University of Utah; Lieutenant Colonel, Israel Defense Forces, JAG Corps (ret.). A.B., Kenyon College, 1979; J.D., Case Western Reserve School of Law, 1985. I would like to thank Laercio Guimares (University of Utah, JD expected 2010) for his invaluable research and editing assistance.

[1] We will generally use the term law of armed conflict because that is the term favored by militaries — the key players we focus on here — and when referring to IHL, will do so interchangeably with LOAC.

[2] See International Committee of the Red Cross (“ICRC”), International Humanitarian Law in Brief, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/section_ihl_in_brief. The law of armed conflict is set forth primarily in the four Geneva Conventions of August 12, 1949, and their Additional Protocols. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GC I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GC II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted by Conference June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted by Conference June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II].

[3] See Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, 90 Intl. Rev. Red Cross 991 (2008) (adopted by ICRC Assembly Feb. 26, 2009), available at http://www.cicr.org/web/eng/siteeng0.nsf/html/review-872-p991 [hereinafter Interpretive Guidance].

[4] New warfare also includes conflicts between and among non-state actors, but in this article we will focus solely on conflicts in which states are engaged with non-state actors.

[5] This lack of clarity can contribute to an increase in civilian casualties. In Afghanistan, for example, the United Nations reports as follows: “As the conflict intensifies and spreads, it is taking an increasingly heavy toll on civilians, as the growing civilian death toll registered by UNAMA (United Nations Assistance Mission to Afghanistan) Human Rights each year since 2007 indicates. In the first six months of 2009, UNAMA recorded 1013 civilian deaths, compared with 818 for the same period in 2008, and 684 in 2007 . . . . This represents an increase of 24% of civilian casualties in the first six months of 2009 as compared to the same period in 2008. Both anti-government elements and pro-government forces are responsible for the increase in civilian casualties. UNAMA Human Rights figures indicate that more civilians are being killed by [Anti-Government Elements (“AGEs”)] than by [Pro-Government Forces (“PGF”)]. In the first six months of 2009, 59% of civilians were killed by AGEs and 30.5% by PGF. This represents a significant shift from 2007 when PGF were responsible for 41% and AGEs for 46% of civilian deaths.” United Nations Assistance Mission to Afghanistan, Human Rights Unit Mid Year Bulletin on Protection of Civilians in Armed Conflict 1 (2009), http://unama.unmissions.org/portals/unama/human%20rights/09july31-unama-human-rights-civilian-casualties-mid-year-2009-bulletin.pdf [hereinafter UNAMA Report].

[6] See, e.g., Dan Belz, Is International Humanitarian Law Lapsing into Irrelevance in the War on International Terror?, 7 Theoretical Inq. L. 97 (2006); Rosa E. Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. Pa. L. Rev. 675, 706 (2004); cf. Gabor Rona, International Law Under Fire: Interesting Times For International Humanitarian Law: Challenges from the “War on Terror”, 27 Fletcher F. World Aff. 55 (2003) (explaining that to the extent the “war on terror” constitutes an armed conflict, humanitarian law applies); Andrew Buncombe, Change Obsolete Rules of Warfare, Says Bush Envoy; Geneva Conventions, Legal Foundation for the Red Cross, Has Helped Maintain Humanity and Dignity in Combat for 140 Years, The Independent, Feb. 22, 2002, at 2; Robert J. Delahunty & John C. Yoo, Op-Ed., Rewriting the Laws of War for a New Enemy, L.A. Times, Feb. 1, 2005, at B11; Thomas Harding, Reid Urges Review of Geneva Convention, Daily Telegraph, Apr. 4, 2006, at 2; Avril McDonald, The Challenges to International Humanitarian Law and the Principles of Distinction and Protection from the Increased Participation in Hostilities 1 (Univ. of Teheran & Harvard Univ. Humanitarian Law Research Initiative on the Interplay Between Int’l Humanitarian Law & Int’l Human Rights Law, Working Paper, 2004), http://www.asser.nl/Default.aspx?site_id=9&level1=13337&level2=13379&textid=34447.

[7] Marshall J. Breger & Marc D. Stern, Symposium on Reexamining the Law of War: Introduction to the Symposium on Reexamining the Law of War, 56 Cath. U. L. Rev. 745 (2007); Peter Wallstein, Geneva Convention Overhaul Considered,L.A. Times, Jan. 7, 2005, at A24.

[8] See Amos N. Guiora, Anniversary Contributions, Use of Force: International Law: Where Have We Been; Where Are We Going? 30 U. Pa. J. Int’l L. 1323 (2009).

[9] For further discussion, see Amos N. Guiora & David Luban, An Exchange on Law and Israel’s Gaza Campaign, 31 ABA Nat’l Sec. L. Rep. 1, 12 (2009).

[10] For the purposes of this article, we define direct participation in hostilities as acts intended to harm the enemy or the civilian population in a direct or immediate manner. See infra Section II.B.

[11] See articles cited supra note 6.

[12] Draft Memorandum from Alberto Gonzales, White House Counsel, to George W. Bush, Decision re Application of the Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban (Jan. 25, 2002), reprinted in The Torture Papers: The Road to Abu Ghraib at119 (Karen Greenberg & Joshua Dratel eds., 2005).

[13] See, e.g., Dieter Fleck, The Handbook of International Humanitarian Law 45, 76 (2d ed. 2008); Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004).

[14] Joseph P. “Dutch” Bialke, Al-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict, 55 A.F. L. Rev. 1 (2004); Jason Callen, Unlawful Combatants and the Geneva Conventions, 44 Va. J. Int’l L. 1025 (2004); Geoffrey Corn & Eric Talbot Jensen, Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations, 42 Isr. L. Rev. 46 (2009); Knut Dormann, The Legal Situation of “Unlawful/Unprivileged Combatants”, 85 Int’l Rev. Red Cross 45 (2003), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LPHBV/$File/irrc_849_Dorman.pdf; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2003), http://icrc.org/web/eng/siteeng0.nsf/htmlall/5xrdcc; Paul E. Kantwill & Sean Watts, Hostile Protected Persons or “Extra-Conventional Persons”: How Unlawful Combatants in the War on Terrorism Posed Extraordinary Challenges for Military Attorneys and Commanders, 28 Fordham Int’l L.J. 681 (2005); Toni Pfanner, Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action, 87 Int’l Rev. Red Cross 149 (2005), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-857-p149/$File/irrc_857_Pfanner.pdf; Jefferson D. Reynolds, Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground, 56 A.F. L. Rev. 1 (2005); Michael N. Schmitt, Asymmetrical Warfare and International Humanitarian Law, 62 A.F. L. Rev. 1 (2008); K.W. Watkin, Combatants, Unprivileged Belligerents and Conflict in the 21^st Century, 1 Isr. Def. Forces L. Rev. 69 (2003).

[15] Jean Pictet, Development and Principles of International Humanitarian Law 59 (1985).

[16] Legality of the Threat and Use of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 I.C.J. 226, 256 (July 8). The ICJ found that the laws of war contained no express provision regarding the use of nuclear weapons. Id. at 247. In particular, after finding no conventional or customary rules applicable to nuclear weapons, the Court specifically stated that it would “now deal with the question whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict . . . .” Id. at 256.

[17] GC II, supra note 2, art. 4(1), defines protected persons as “those who, at a given moment and in any manner whatsoever, find themselves . . . in the hands of a Party to the conflict . . . of which they are not nationals.”

[18] Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Judgment, ¶ 166 (July 15, 1999) (“[I]n modern inter-ethnic armed conflicts . . . the requirement of nationality is even less adequate to define protected persons. In such conflicts, not only the text and the drafting history of the Convention but also, and more importantly, the Convention’s object and purpose suggest that allegiance to a Party to the conflict, and correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test.”). In Prosecutor v. Delalic, Case No. IT-96-21-A, Judgment, ¶ 266 (Nov. 16, 1998) (citing Theodor Meron, Editorial Comment, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout, 92 A.J.I.L. 236, 239 (1998)), the ICTY Trial Chamber took a similar approach, emphasizing that “in interpreting the law, our goal should be to avoid paralyzing the legal process as much as possible and, in the case of humanitarian conventions, to enable them to serve their protective goals.”

[19] Ann Scott Tyson, In Afghanistan, A Test of Tactics Under Strict Rules to Protect Civilians, Marines Face More Complex Missions, Wash. Post, Aug. 13, 2009, at A6.

[20] Legality of the Threat or Use of Nuclear Weapons, supra note 16, at 257 (distinction is one of the “cardinal principles” of humanitarian law and one of the “intransgressible principles of international customary law”).

[21] AP I, supra note 2, art. 48, sets forth what is known as the “basic rule”: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

[22] Id. art. 51. See also AP II, supra note 2, art. 13 (emphasizing the principle of distinction in non-international armed conflict: “Protection of the civilian population. 1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this part, unless and for such time as they take a direct part in hostilities.”).

[23] AP I, supra note 2, art. 51(4) (“Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.”).

[24] Rome Statute of the International Criminal Court art. 8 ¶ 2, July 17, 1998, 27 I.L.M. 1999 (“For the purpose of this Statute, ‘war crimes’ means: . . . (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; . . . (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects . . . which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; . . . (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.”).

[25] See Prosecutor v. Galic, Case No. IT-98-29-T, Judgment, ¶ 45 (Dec. 5, 2003) (“The prohibition against attacking civilians stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objectives.”); see also Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgment, ¶ 524 (Jan. 14, 2000); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 616 (Sept. 2, 1998).

[26] Prosecutor v. Tadic, Case No. IT-94-1-A, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, ¶¶ 111, 127 (Oct. 2, 1995) (citing U.N. General Assembly Resolution 2675, which states: “‘Bearing in mind the need for measures to ensure the better protection of human rights in armed conflicts of all types, [. . . the General Assembly] affirms the following basic principles for the protection of civilian populations in armed conflicts, without prejudice to their future elaboration within the framework of progressive development of the international law of armed conflict: . . . 2. in the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations’”); see also Jean-Marie Henckaerts, Study on Customary International Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, 87 Int’l Rev. Red Cross 179 (2005) available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-857-p175/$File/irrc_857_Henckaerts.pdf.; cf. Abella v. Argentina, Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L/V/II.98, doc.6 rev. ¶ 177 (1997) (“[C]ustomary law principles applicable to all armed conflicts require the contending parties to refrain from directly attacking the civilian population and individual civilians and to distinguish in their targeting between civilians and combatants and other lawful military objectives.”).

[27] AP I, supra note 2, art. 35 (“1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”).

[28] Id. art. 51(5)(b) (“Among others, the following types of attacks are to be considered as indiscriminate: . . . an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”).

[29] Id. art. 57 (Parties must “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”); id., art. 57(2)(b) (“[A]n attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”). International tribunals have reinforced that all parties, including non-state parties, have this obligation. In Prosecutor v. Norman, the Special Court for Sierra Leone declared that “it is well settled that all parties to an armed conflict, whether states or non-state actors, are bound by international humanitarian law, even though only states may become parties to international treaties.” Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction, ¶ 22 (May 31, 2004). See also Christopher Greenwood, Scope of Application of Humanitarian Law, in Fleck, supra note 13, at 45, 76.

[30] Galic, Case No. IT-98-29-T, Judgment, ¶ 58. See, e.g., The Canadian Law of Armed Conflict at the Operational and Tactical Level, 4–5 (1992), available at http://www.cfd-cdf.forces.gc.ca/websites/Resources/dgfda/Pubs/CF%20Joint%20Doctrine%20Publications/CF%20Joint%20Doctrine%20-%20B-GJ-005-104%20FP-021%20-%20LOAC%20-%20EN%20(13%20Aug%2001).pdf (explaining that “consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made” and emphasizing that any analysis of the proportionality test must be based on “what a reasonable person would do” in the circumstances).

[31] See, e.g., Prosecutor v. Galic, Case No. IT-98-29-T, Judgment, ¶ 524 (Dec. 5, 2003).

[32] Isayeva v. Russia, 41 Eur. Ct. H. R. 847 ¶ 17 (2005).

[33] Id. ¶ 200; see also Ergi v. Turkey, 1998-IV Eur. Ct. H.R. 1751, ¶ 81(1998) (finding that the Turkish security services had not taken sufficient precautions to protect civilians when engaging the Kurdish Workers Party (PKK) in and around a village in response to the killing of two suspected collaborators).

[34] Traditional wars do, however, offer well-documented examples of civilians picking up arms, such as Yugoslav partisans under Tito’s control in World War II and the French resistance under Nazi occupation in the same war.

[35] Tennyson’s famous line: “Theirs not to reason why/ Theirs but to do & die” is a tragically apt description of the life of an infantryman locked in battle with another infantryman. Lord Alfred Tennyson, The Charge of the Light Brigade (1854), available at http://etext.lib.virginia.edu/images/modeng/public/TenChar/TenChar1.jpg. For a description of traditional warfare, see Michael Howard, War in European History (Oxford University Press, 2009) (1976).

[36] See generally, Thomas X. Hammes, The Sling and the Stone: On War in the 21st Century (2004).

[37] Nancy Montgomery, U.S. Seeks to Reduce Civilian Deaths at Iraq Checkpoints, Stars & Stripes, Mar. 18, 2006, available at http://www.stripes.com/article.asp?section=104&article=35816.

[38] Id.

[39] Id.

[40] Id.

[41] Al Skeini v. Sec’y of State for Def., [2004] EWHC 2911, ¶ 46 (Eng).

[42] Daniel Byman, Do Targeted Killings Work?, Foreign Policy Online, June 14, 2009, http://www.foreignpolicy.com/articles/2009/07/14/do_targeted_killings_work.

[43] Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 ¶ 1911 (Yves Sandoz, Christophe Swinarki & Bruno Zimmerman eds., 1987) [hereinafter Protocol Commentary] (“As we have seen, the principle of the protection of the civilian population is inseparable from the principle of the distinction which should be made between military and civilian persons. In view of the latter principle, it is essential to have a clear definition of each of these categories.”).

[44] Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, supra note 13, at 113.

[45] See GC III, supra note 2, art. 4(1).

[46] See id. art. 4(2).

[47] See id. art. 4(6). Article 4 of GC III includes two other categories of combatants for the purposes of POW status: civilians accompanying the armed forces and members of the merchant marine and civil air crews. Id. art. 4(4)–(5).

[48] See id. arts. 3, 13, 23; GC I, supra note 2, art. 12; Hague Convention No. IV, Respecting the Laws and Customs of War on Land art. 23(c), Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 277.

[49] It is important to note, however, that AP I introduced a new and still controversial description of combatant status, declaring that members of armed groups will retain their status as combatants as long as they carry their arms openly during each military engagement and during such time as they are visible to the enemy while preparing for an attack. AP I, supra note 2, art. 44(3); see, e.g., President Ronald Reagan, Letter of Transmittal, Protocol Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-International Armed Conflicts, Concluded at Geneva on 10 June 1977, Jan. 29, 1987, S. Treaty Doc. No. 100-2, reprinted in 81 A.J.I.L. 910, 910–12 (1987).

[50] AP I, supra note 2, art. 50. See also Dep’t of Army, The Law of Land Warfare, FM 27-10, http://www.aschq.army.mil/supportingdocs/Fm27_10.pdf; Interpretive Guidance, supra note 3, at 995 (“For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.”). In addition, persons who are combatants under GC III or AP I but are hors de combat are not civilians, but retain their combatant status. See Prosecutor v. Martic, Case No. IT-95-11-T, Trial Chamber Judgment, ¶ 55 (June 12, 2007); Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgment, ¶¶ 110–14 (July 29, 2004).

[51] See Protocol Commentary, supra note 43, ¶ 4789.

[52] AP I, supra note 2, art. 50; see also Protocol Commentary, supra note 43, ¶ 1920 (“[P]ersons who have not committed hostile acts, but whose status seems doubtful because of the circumstances . . . should be considered to be civilians until further information is available, and should therefore not be attacked.”); Prosecutor v. Galic, Case No. IT-98-29-T, Judgment, ¶ 50 (Dec. 5, 2003) (“A person shall be considered to be a civilian for as long as there is a doubt as to his or her real status.”).

[53] AP I, supra note 2, art. 51(3); see also Protocol Commentary, supra note 43, ¶ 1942 (“The immunity afforded individual civilians is subject to an overriding condition, namely, on their abstaining from all hostile acts.”); HCJ 769/02 Public Comm. Against Torture v. Gov’t of Israel [2006] ¶ 26, available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf; Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgment, ¶¶ 522–23 (Jan. 14, 2000) (“In the case of clear abuse of their rights by civilians, international rules operate to lift that protection which would otherwise be owed to them.”).

[54] LOAC does not contemplate a category of persons who can fight but not be attacked, or who can be attacked but may not fight back — such a category of “quasi-combatants” would undermine the entire fabric of humanitarian law. See Public Comm. Against Torture, HCJ 769/92 at ¶ 28 (“It is difficult for us to see how a third category can be recognized in the framework of the Hague and Geneva Conventions.”). The mere fact that a person “fights” does not make him a combatant. See Prosecutor v. Delalic, Case No. IT-96-21-A, Judgment, ¶ 269 (Nov. 16, 1998) (“While it is apparent that some of the persons detained in the Celebici prison-camp had been in possession of weapons and may be considered to have participated to some degree in ‘hostilities’, this is not sufficient to render them entitled to prisoner of war status.”).

[55] See Public Comm. Against Torture, HCJ 769/02 at ¶ 40.

[56] Interpretative Guidance, supra note 3; Public Comm. Against Torture, HCJ 769/02; John Rikou Heaton, Civilians at War: Reexamining the Status of Civilians Accompanying the Armed Forces, 57 A.F. L. Rev. 155, 174 (2005); Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int’l L. 519 (2005); Watkin, supra note 14, at 73; Jennifer Elsea, Treatment of “Battlefield Detainees” in the War on Terrorism, CRS Report For Congress, RL 31367 (2005), available at http://www.fas.org/irp/crs/RL31367.pdf (last visited Mar. 31, 2010).

[57] Michael N. Schmitt, The Impact of High Tech and Low Tech Warfare on the Principle of Distinction, in International Humanitarian Law and the 21st Century’s Conflicts: Changes and Challenges 169, 178 (Roberta Arnold & Pierre-Antoine Hildbrand eds., 2005).

[58] Id. Similarly, Afghan militants have posed as women to escape from firefights without being identified. See Official: Afghan Militants Fled Dressed as Women, CNN, July 6, 2009, http://www.cnn.com/2009/WORLD/asiapcf/07/06/afghanistan.marine.standoff/index.html.

[59] Nic Robertson, Pakistan: Taliban Buying Children for Suicide Attacks, CNN, July 7, 2009, http://edition.cnn.com/2009/WORLD/asiapcf/07/07/pakistan.child.bombers/index.html.

[60] Amos N. Guiora, The Role of the Legal Advisor in Armed Conflict, in Mission Impossible (Yoel Elitzur, ed., pending submission).

[61] See, e.g., Suicide Bomber Attacks Afghan Army Base, N.Y. Times, Aug. 15, 2009 (describing how a suicide car bomber tried to drive into the army base, was stopped at the gate and then detonated his explosives at the gate, killing one soldier and wounding five other people); see also Amos N. Guiora, Teaching Morality in Armed Conflict: The Israel Defense Forces Model, 18 Jewish Pol. Stud. Rev. 1, 3 (2006).

[62] Jim Garamone,Directive Re-emphasizes Protecting Afghan Civilians, Am. Forces Press Serv., July 6, 2009, available at http://www.af.mil/news/story.asp?id=123157435; see also UNAMA Report, supra note 5, at 12 (“In several cases investigated by UNAMA, it is apparent that important traditional codes of hospitality and power imbalances inhibit the ability of villagers living in areas with a strong [anti-government element] presence to refuse shelter to an [anti-government element] commander or his men. Information indicates that [anti-government elements] take advantage of these factors to use civilian houses as cover, to deter [pro-government force] raids, or to increase the likelihood of civilian casualties if raided by [pro-government forces], potentially violating international humanitarian law.”).

[63] The language used here illustrates the problem of the traditional category of civilian — which civilians are supposed to be protected? All civilians, including hostile persons, or just innocent civilians?

[64] See Headquarters, International Security Assistance Force, Kabul, Afghanistan, Tactical Directive of July 6, 2009, http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf (“Gaining and maintaining [the support of the population] must be our overriding operational imperative. . . .”); see also Garamone, supra note 62; Alan Silverleib, U.S. Strategic Shift: Win, Hold Afghan Territory, CNN, July 6, 2009, http://www.cnn.com/2009/POLITICS/07/06/afghanistan.strategic.shift/index.html (describing McChrystal’s philosophy as “measuring success by the number of Afghans protected, not bad guys killed”).

[65] Rajiv Chandrasekaran, Pentagon Worries Led to Command Change, Wash. Post, Aug. 17, 2009, at A1 (emphasis added).

[66] Id.

[67] J. Alexander Thier & Azita Ranjbar, Killing Friends, Making Enemies: The Impact and Avoidance of Civilian Casualties in Afghanistan 2 (2008), available at http://www.usip.org/files/resources/USIP_0708_2.PDF.

[68] Antonio Cassesse, International Law 421 (2005) (emphasis added).

[69] See Protocol Commentary, supra note 43, ¶ 4789 (“[T]hose who belong to armed forces or armed groups may be attacked at any time.”).

[70] See Yoram Dinstein, Charles H. B. Garraway & Michael N. Schmitt, The Manual on the Law of Non-International Armed Conflict: With Commentary 4 (2006) (“[F]ighters are members of armed forces and dissident armed forces or other organized armed groups, of taking an active (direct) part in hostilities.”).

[71] Elizabeth Neuffer, City Battles Will Boost Growing Civilian Toll, Boston Globe, Apr. 7, 2003, at A25.

[72] Center for Law and Military Operations, Legal Lessons Learned From Afghanistan and Iraq — Volume I: Major Combat Operations, 11 September 2001–1 May 2003 98 (2004).

[73] Interpretive Guidance, supra note 3, at 1001–02.

[74] For example, in early August 2009, International Security Assistance Force (“ISAF”) forces encountered four insurgents carrying weapons and plastic jugs (a common means of transporting explosives). Believing the insurgents were preparing to plant IEDs, the ISAF forces attacked them with rockets and small arms fire from a helicopter, killing all four. ISAF’s report on the incident demonstrates that the insurgents were targeted because of their hostile conduct — preparing to plant explosives — rather than merely because of their status. See Press Release, NATO, ISAF Forces Engage Insurgents in Southern Afghanistan (Aug. 5, 2009), available at
http://www.nato.int/isaf/docu/pressreleases/2009/08/pr090805-563.html. Although the report clearly identifies the individuals as insurgents (a status), it specifically relies on their behavior to justify the attack (i.e., their conduct).

[75] AP I, supra note 2, art. 51(3) (“Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.”).

[76] See, e.g., Interpretive Guidance, supra note 3; HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel [2006] ¶ 26, available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf; Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Judgment, ¶ 616 (July 15, 1999); Jean-Marie Henckaerts et al., Customary International Humanitarian Law (2005); Callen, supra note 14; Derek Jinks, The Changing Laws of War: Do We Need a New Legal Regime after September 11?, 79 Notre Dame L. Rev. 1493 (2004); Jann K. Kleffner, From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities — On The Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference, 54 Neth. Int’l L. Rev. 315 (2007); Hays Parks, Air War and the Law of War, 32 A.F. L. Rev. 1 (1990); Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, supra note 55, at 171–72, 181; Watkin, supra note 14.

[77] Existing analyses of direct participation in hostilities generally focus on how to define the discrete act that constitutes participation and have not analyzed the different levels of participation or the different types of participants in a way that is effective and relevant for commanders on the ground. See e.g., Interpretive Guidance, supra note 3, at 1012–19.

[78] In HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel [2006] ¶ 40, available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf, the Israeli Supreme Court, sitting as the High Court of Justice, specifically mentioned the problem of the “‘revolving door’ phenomenon”.

[79] See PRI’s The World: Interview with Amos N. Guiora (NPR radio broadcast July 15, 2009), available at http://www.theworld.org/2009/07/15/targeted-killings (last visited Mar. 31, 2010) (discussing how these permanent targets should only be operationally targeted at all times if there is intelligence suggesting that they are planning for or engaged in future attacks).

[80] Amos N. Guiora & Martha Minow, National Objectives in the Hands of Junior Leaders, in 1 Countering Terrorism in the 21^st Century: Int’l Perspectives: Strategic and Tactical Considerations 179–89 (2007).

[81] See Ann Scott Tyson, Less Peril for Civilians, But More For Troops, Wash. Post, Sept. 23, 2009, at A1 (explaining that as the United States mulls over future strategy in Afghanistan, “American service members are facing greater risks under a new strategy that emphasizes protecting Afghan civilians.”).

[82] See Guiora, supra note 61 (describing the preparation and implementation of training software for soldiers addressing an eleven-point code of conduct, including conduct with respect to a civilian population).

[83] AP I, supra note 2, art. 57(2)(c), (requiring that “effective advance warning . . . be given of attacks which may affect the civilian population, unless circumstances do not permit”).

[84] See NATO International Security Assistance Force – Afghanistan & U.S. Forces – Afghanistan, Commander’s Initial Assessment, Annex E-2 (Aug. 30, 2009), available at http://media.washingtonpost.com/wp-srv/politics/documents/Assessment_Redacted_092109.pdf (“Furthermore, although ISAF has refined and enhanced the warnings that are issued, many Afghans do not understand them and consequently fail to comply.”).

[85] Yochi J. Dreazen, NATO Says U.S. Airstrike in Kunduz Killed 30 Civilians, Wall St. J., Sept. 17, 2009, at A8.

[86] New Allegations Against German Officer Who Ordered Kunduz Air Strike, Spiegel Online Int’l, Sept. 21, 2009, http://www.spiegel.de/international/world/0,1518,650200,00.html.

[87] See id.; Joshua Foust, Germany is ISAF’s Weakest Link, Atlantic Council, Sept. 9, 2009, http://www.acus.org/new_atlanticist/germany-isafs-weakest-link; Elizabeth Pond, Germany’s Combat Revival, Christian Science Monitor, Aug. 7, 2009, at 9.

[88] Dep’t of Army, FM 3-19.40, Internment/Resettlement Operations ¶ 3-7 (2001).

[89] Prof. Guiora analyzed and prepared the IDF’s Judge Advocate General’s Corps “lessons learned” after Operation “Ebb and Flow”.

[90] HCJ 3278/02 Center for the Def. of the Individual v. IDF Commander in the West Bank [2002] ¶ 26, available at http://elyon1.court.gov.il/files_eng/02/780/032/A06/02032780.a06.pdf.

[91] Id.; see also HCJ 3239/02 Marab v. IDF Commander in the West Bank [2003], available at http://elyon1.court.gov.il/files_eng/02/390/032/A04/02032390.a04.pdf; Amos N. Guiora & Erin M. Page, Going Toe to Toe: President Barak’s and Chief Justice Rehnquist’s Theories of Judicial Activism, 29 Hastings Int’l & Comp. L. Rev. 51, 61 (2005).

As the hundreds of American and South Korean officials involved in formulating and executing policy towards the Democratic People’s Republic of Korea over the years will attest, theirs is a difficult endeavor.  Pyongyang’s actions and intentions are notoriously inscrutable, and the North’s alternating pattern of threats, bluster, and occasional concessions are as treacherous a path to navigate as exists in international relations.  The threat posed by Pyongyang’s nuclear program, combined with its proliferation of nuclear and missile technologies, naturally represents a major challenge to the current American and South Korean administrations.  The story of the North’s on-again, off-again engagement with multilateral nuclear talks consistently makes waves in the global press.  While diplomats seek to steer the peninsula towards greater stability, both nations actively prepare – often beyond the headlines – for possible military conflict with the DRPK and to respond to a potential North Korean collapse.

Given the stakes, coordination between Washington and Seoul on North Korea policy is of singular importance.  On the diplomatic front, the United States and the Republic of Korea are critical players in efforts to reduce the threat from the DPRK.  While progress in diplomacy requires the support of other nations in the region, there is little chance of success if it does not begin with coordination between the U.S. and the ROK.

Coordinating plans and policies for contingencies north of the demilitarized zone is another core activity of the U.S.-ROK alliance.  In the event of conflict or upheaval on the peninsula, it will fall to the ROK and the United States to respond and play the leading role.  Yet obstacles to better collaboration remain.  Political sensitivities often hamper preparations for the potential collapse of the DPRK.  In addition, planned changes in the structure of U.S.-ROK military integration, revolving around the scheduled 2012 transfer of wartime operational control (OPCON) to the ROK, threaten to undermine military coordination efforts at a time when they should be expanded.

This article examines three critical elements of coordination between the U.S. and ROK: diplomacy towards the DPRK, management of the military component of the alliance, and efforts to meet the challenge of a potential North Korean collapse.  After explaining the stakes involved and the need for enhanced coordination in each area, the article offers recommendations for policymakers to leverage coordination to achieve a more secure Korean Peninsula and a more resilient U.S.-ROK alliance.

Click here for the full PDF article

An earlier version of this article was published in The U.S.-ROK Alliance in the 21^st Century (Jung-Ho Bae & Abraham Denmark eds., 2009).

Click here to download the published PDF version

I.  Introduction

In 2003, the International Committee of the Red Cross (ICRC), in cooperation with the T.M.C. Asser Institute, launched a major research effort to explore the concept of “direct participation by civilians in hostilities” (DPH Project).[1] The goal was to provide greater clarity regarding the international humanitarian law (IHL) governing the loss of protection from attack when civilians involve themselves in armed conflict.  Approximately forty eminent international law experts, including government attorneys, military officers, representatives of non-governmental organizations (NGOs), and academics, participated in their personal capacity in a series of workshops held throughout 2008.  In May 2009, the ICRC published the culmination of this process as the “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law”.[2]

Although the planned output of the project was a consensus document, the proceedings proved highly contentious.  As a result, the final product contains the express caveat that it is “an expression solely of the ICRC’s views”.[3] Aspects of the draft circulated to the experts were so controversial that a significant number of them asked that their names be deleted as participants, lest inclusion be misinterpreted as support for the Interpretive Guidance’s propositions.  Eventually, the ICRC took the unusual step of publishing the Interpretive Guidance without identifying participants.  This author participated throughout the project, including presentation of one of the foundational papers around which discussion centered.[4] He was also one of those who withdrew his name upon reviewing the final draft.

Disagreement with the Interpretive Guidance by dissenters varies in nature and degree.  In fairness, there is much to recommend the document.  The ICRC and the experts involved worked diligently to find common ground.  It is a sophisticated work, reflective of the prodigious expertise resident in the ICRC’s Legal Division, and one that clearly advances general understanding of the complex notion of “direct participation”.  Nevertheless, certain points of contention surfaced during the deliberations and in the debates generated by the final draft.  This article examines these fault lines through the author’s own views.  In doing so, it seeks to engage the broader international law community in the dialogue.

A common theme pervades the criticisms set forth below.  International humanitarian law seeks to infuse the violence of war with humanitarian considerations.  However, it must remain sensitive to the interest of states in conducting warfare efficiently, for no state likely to find itself on the battlefield would accept norms that place its military success, or its survival, at serious risk.  As a result, IHL represents a very delicate balance between two principles: military necessity and humanity.  This dialectical relationship undergirds virtually all rules of IHL and must be borne in mind in any effort to elucidate them.  It is in this regard that the Interpretive Guidance falters.  Although it represents an important and valuable contribution to understanding the complex notion of direct participation in hostilities, on repeated occasions its interpretations skew the balance towards humanity.  Unfortunately, such deviations from the generally accepted balance will likely cause states, which are ultimately responsible for application and enforcement of the law, to view the Interpretive Guidance skeptically.

II.  Civilians on the Battlefield

It is useful to understand the context in which the DPH Project emerged.  The presence on the battlefield of individuals who are not formally members of the belligerents’ armed forces is by no means a new phenomenon.  Examples abound.  Over 15,000 Hessian “auxiliaries” fought for Great Britain in the U.S. war of independence.[5] During the French Revolution, the National Convention decreed that, “until such time as its enemies shall have been driven from the soil of the Republic, all Frenchmen are in permanent requisition for the services of the armies.”[6] Within the year, the size of the French forces reached 1.5 million men.  The 1949 Geneva Convention on Prisoners of War (POW) later afforded prisoner-of-war treatment to those “who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed unit.”[7] The Convention also granted POW treatment to civilians who “accompany the armed forces without being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, and members of labour units or of services responsible for the welfare of the armed forces.”[8] Civilians enjoyed protection against direct attack; however, it was well accepted by this time that if they took up arms they rendered themselves targetable.  In a memorable event involving such individuals, over one-half of the American defenders at Wake Island were civilian contractors building a U.S. naval base when the Japanese attacked in December 1941.[9] Given the prevalence of resistance movements during the Second World War, the Prisoner of War Convention also extended POW treatment to resistance fighters meeting certain conditions.[10]

Twentieth-century state practice clearly demonstrates the acceptance of various categories of civilians on the battlefield and even, in limited and well-defined circumstances, their involvement in hostilities.  The 1990’s signalled a sea change in the scope of civilian participation in military operations, as Western militaries took advantage of the perceived “peace dividend” resulting from “victory” in the Cold War to dramatically downsize their militaries.  Operations in the Balkans quickly revealed the shortcomings of this policy.  Faced with the prospect of long-term stability operations such as IFOR (Implementation Force), SFOR (Stabilization Force), and KFOR (Kosovo Force), intervention forces had to turn to civilian contractors to perform many support and logistic functions.[11]

The twenty-first century conflicts in Iraq and Afghanistan took this trend to unprecedented levels.  As hopes for a quick victory faded in both cases, Coalition forces settled in for the long haul.  Contractors and civilian government employees flooded the theater of operations.  By March 2009, United States Central Command, responsible for both conflicts, contracted for the services of nearly 243,000 civilians.  Support for the various U.S. bases constituted 58% of this force, whereas 15% were involved in construction.  Another 12% performed security functions.[12] By late 2009, security contractors outnumbered all foreign armed forces (support and combat) in Iraq except those of the United States, and in Afghanistan only the United Kingdom and United States fielded more troops.  These numbers do not include security contractors working for other states, international organizations, or non-governmental organizations; a report to Congress issued in August 2008 estimated that fifty companies had approximately 30,000 security contractors in Iraq alone.[13]

That the contractors were present “on the battlefield” is indisputable.  Although reliable figures on contractor deaths and injuries are unavailable, as of April 2008, the U.S. Department of Labor had received claims based on the death of 1,292 contractors (including Iraqis), and the wounding of 9,610 more, during the conflicts in Iraq and Afghanistan.[14] The NGO iCasualties reports that by August 2009, 462 non-Iraqi contractors had been killed in Iraq, including 179 U.S. and 49 British citizens.[15]

Contractors also have been involved in numerous incidents involving civilian deaths, the most notorious example being the 2007 killing of seventeen Iraqis by Blackwater employees while escorting a U.S. Department of State convoy.  U.S. judicial authorities indicted five of the contractors, while a sixth pled guilty.[16] Contractor participation in military operations extends beyond providing security.  For instance, Blackwater employees have reportedly participated in both CIA-led Predator strikes against al Qaeda operatives and “capture or kill” operations conducted in Iraq and Afghanistan.  The precise nature of Blackwater’s involvement, however, remains murky.[17]

At the outset of these conflicts, the activities and status of contractors were relatively unregulated in either law or policy.[18] As a result of the public attention drawn by the scale of their presence and repeated incidents of misconduct, some states have endeavored to define the legal status of contractors and to create systems whereby they can be held accountable for abuses they commit.[19] Additionally, states sending and those receiving contractors and civilian employees have negotiated status of forces agreements, which establish jurisdictional prerogatives; the agreement signed between the United States and Iraq in November 2008 is especially notable.[20] States have also begun to adopt common “best practices” regarding private military companies, as exemplified by the ICRC/Swiss government sponsored 2009 Montreux Document.[21]

In light of these circumstances, the DPH Project initially focused on contractors—especially private security contractors—and civilian government employees.  However, the assembled experts soon turned their attention to groups of “irregular” forces, like those of Hamas, Hezbollah, and the al Qaeda network.  From the perspective of states, consideration of the participation in hostilities of these irregular forces was even more central to the legal issues surrounding the targeting of participants in hostilities than that of contractors and employees.  For instance, in Iraq, ongoing hostilities are primarily between the Iraqi armed forces (and their foreign partners) and groups such as external jihadists, Sunni extremists (e.g., the loosely affiliated groups comprising al Qaeda in Iraq), and Shi’a extremists (e.g., Muqtada al-Sadr’s Jaish al-Mahdi and the Iranian funded Ketaib Hezbollah).[22]

III.  The Law Regarding Direct Participation

As noted in the Introduction, international humanitarian law seeks reasoned accommodation of both military necessity and humanitarian concerns.  The 1868 St. Petersburg Declaration reflected this balance at the outset of the modern era of IHL when, in addressing small explosive projectiles, it “fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity.”[23] As only states make international law, through either treaty or practice (customary law), IHL necessarily takes account of states’ military requirements on the battlefield.  Indeed, norms that unduly hamper military operations have little hope of emerging.

At the same time, states have an interest in both protecting their populations and property from the carnage of warfare, as well as ensuring their combatants do not suffer unnecessarily.  Accordingly, the St. Petersburg Declaration noted that “[t]he only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.”[24] These concerns are expressed in two “cardinal” principles of IHL recognized by the International Court of Justice: distinction and the prohibition of unnecessary suffering.[25] Only the principle of distinction is of immediate relevance to the issue of “direct participation”.  Distinction appears in codified form for international armed conflict in Article 48 of the 1977 Additional Protocol I to the 1949 Geneva Conventions: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”[26] Additional Protocol I specifically addresses civilians in Article 51.2 by providing that, “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack.  Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”[27] These provisions undoubtedly replicate customary law and thus bind even states that are not party to the treaty, such as Israel and the United States.[28] Analogous prohibitions, also customary in nature, exist for non-international armed conflict.[29]

The principle of distinction acknowledges the military necessity prong of IHL’s balancing act by suspending the protection to which civilians are entitled when they become intricately involved in a conflict.  Article 51.3 of Additional Protocol I conditions the principle of distinction with the caveat that it applies “unless and for such time as [civilians] take a direct part in hostilities.”[30] Article 13.3 of Additional Protocol II sets forth an identical limitation in the case of non-international armed conflict.[31] The notion appears elsewhere in IHL instruments and guidelines, including Common Article 3 to the 1949 Geneva Conventions,[32] the Rome Statute of the International Criminal Court,[33] and military manuals.[34] That it constitutes customary international law is beyond dispute.[35]

The combined effect of the aforementioned provisions is threefold.  First, the “direct participation” caveat means that, despite the general protection from attack that civilians enjoy, those who engage in acts amounting to direct participation in hostilities may be specifically and intentionally targeted (although the operations remain subject to all other IHL requirements).  Second, to the extent that civilians may be attacked under the “direct participation” rule, their death or injury need not be considered in proportionality assessments.[36] Third, by the same logic, states need not consider harm to direct participants when taking “constant care” to “spare” civilians during an attack.  This customary law “precautions in attack requirement”, found in Article 57 of Additional Protocol I, directs attackers to examine alternative methods (tactics) and means (weapons) of warfare to minimize incidental loss of civilian life or injury to civilians.[37]

Despite the ostensible textual clarity of the aforementioned norms, the devil lies in the details.  The DPH Project addressed three unresolved issues: 1) Who qualifies as a civilian in the context of direct participation?; 2) What conduct amounts to direct participation?; and 3) When is a civilian directly participating such that he or she is subject to attack?  Curiously, the Interpretive Guidance took on a fourth issue that was unnecessary to a direct participation analysis: the rules and principles governing the conduct of attacks against direct participants.  Its treatment of this fourth subject has led to what has been perhaps the fiercest criticism of the Guidance.

A.  The Concept of “Civilian”

The concept of civilian status is the greatest source of controversy, albeit principally with respect to the IHL governing detention.  Reduced to basics, the issue, which surfaces only in international armed conflict, is whether civilians who take up arms qualify for treatment as: 1) prisoners of war under the 1949 Third Geneva Convention; 2) civilians under the 1949 Fourth Geneva Convention; or 3) “unlawful combatants” who enjoy only basic protection, such as that set forth in Common Article 3 to the 1949 Geneva Conventions and Article 75 of Additional Protocol I.[38]

In light of this debate, the ICRC elected to avoid the quandary by expressly limiting its analysis of civilian status in the Interpretive Guidance to the context of direct participation; it is not meant to have any bearing on the status of direct participants in detention situations.  This bifurcated approach is not without risks.  Despite the cautionary caveat as to the scope of application, treating direct participants differently than civilians proper seems to support the proposition that they are a separate category and, thus, not entitled to the protections civilians enjoy during detention under the Fourth Geneva Convention.  At the same time, participants typically lack protection as prisoners of war under the Third Geneva Convention because they fail to comply with Article 4A(2)’s requirements that “members of other militia and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict” be “commanded by a person responsible for his subordinates,” bear a “fixed distinctive sign recognizable at a distance,” carry arms openly, and conduct operations “in accordance with the laws and customs of war.”[39]

The Interpretive Guidance formula for international armed conflict defines civilians negatively as “all persons who are neither members of the armed forces of a party to the conflict nor participants in a levee en masse.”[40] On its face, the definition is unexceptional.  It excludes all those encompassed by Article 1 of the 1907 Hague IV Regulations and Article 4 of the Third Geneva Convention and thus presents a classic understanding of the term “civilian”.[41] It also excludes armed forces as defined in Article 43.1 of Additional Protocol I.[42] The ongoing controversy over Additional Protocol I’s relaxation of the Hague IV and Third Geneva Convention’s standards for combatant status has no bearing on the issue of direct participation, as the experts in the DPH Project agreed that individuals considered armed forces under Article 43.1 of Additional Protocol I should be targetable at all times.[43]

Applying this definition, the Interpretive Guidance concludes that the term “armed forces” for direct participation purposes includes both regular armed forces and any organized armed group that belongs to a party to the conflict.  So long as these criteria (organized, armed, and belonging) are met, members of the latter category—with an important caveat discussed below—are not civilians and may be attacked at any time.  Of particular importance is the fact that the direct participation standard’s limitation of attacks to the period during which the targeted individual is engaged in hostilities (“for such time”) does not apply to members of the armed forces.  In justification of its approach, the Interpretive Guidance correctly points out that “it would contradict the logic of the principle of distinction to place irregular armed forces under the more protective legal regime afforded to the civilian population merely because they fail to distinguish themselves from that population, to carry their arms openly, or to conduct their operations in accordance with the laws and customs of war.”[44]

The first two requirements, that the group be organized and armed, met with no opposition in the group of experts.  On the contrary, treating an organized armed group as the equivalent of a regular armed force was viewed as a significant compromise on the part of those who wished to limit the notion of direct participation in order to retain protection from attack for as many individuals as possible.  The compromise resolved, to some extent, the highly controversial “for such time” aspect of the direct participation rule.  Experts concerned with the “for such time” limitation had previously worried about the incongruity that would result from the lack of an analogous temporal limitation for members of the armed forces.[45] After all, if irregular forces benefited from the limitation, they would enjoy greater protection from attack than regular forces, which would thereby disrupt the general balance of military necessity and humanity that permeates IHL.  The decision to treat organized armed groups as armed forces appeared an appropriate solution.

An alternative approach championed by a number of the experts could also have maintained the requisite balance.  By it, members of organized armed groups that did not fully qualify as combatants under the criteria of Article 4 of the Third Geneva Convention would remain civilians.  However, insofar as they are members of a group that exists for the very purpose of engaging in hostilities, the “for such time” criterion must be interpreted as extending throughout the duration of their membership.  Unlike civilians who act on their own, group members do not regain protection during periods in which they abstain from hostile activities (a contentious issue discussed below); instead, members must opt out of group membership in order to enjoy protection from attack.  Although it might be difficult to discern when a member has left a group, proponents of this position argued that the direct participant should bear the risk of mistake, not his or her opponents, as IHL does not envision the participation of the former in the first place.  For those DPH Project members who wished to preserve, in the context of detention, the characterization of direct participants as “civilians”, this approach had the benefit of maintaining a parallel characterization in the direct participation analysis.  At the same time, it met the concerns of others who wished to ensure that direct participants remain targetable as long as they are members of the group, not just when they engage in hostilities.

Consensus foundered on the third criterion: that the group in question must “belong to a party to the conflict.”  The Interpretive Guidance defines the notion of belonging to a party, which surfaced only at later stages of the DPH Project discussions, “as requiring at least a de facto relationship between an organized armed group and a party to the conflict.  This relationship may be officially declared, but may also be expressed through tacit agreement or conclusive behaviour that makes clear for which party the group is fighting.”[46]

In support of its position, the Interpretive Guidance cites the nonbinding ICRC Commentary to Article 4 of the Third Geneva Convention.[47] Yet, the allegedly supportive commentary actually accompanies a provision regarding eligibility for POW status.  There is complete agreement that members of an organized armed group should not be entitled to POW status unless, inter alia, the group belongs to a party to the conflict; the underlying logic of the POW protection does not fit those who are not entitled under IHL to fight for a state.  It may be sensible to shape detention issues by relationship to a belligerent, as states understandably wish to protect those who fight on their behalf.  However, in targeting matters, the appropriate relationship logically should be determined by whom the individuals to be attacked are fighting against.  This is, after all, the foundational premise of direct participation.  As will be seen, the Interpretive Guidance itself defines direct participation by reference to acts “likely to adversely affect the military operations or military capacity of a party to the conflict.”[48] In other words, direct participants are “the enemy”.  It is this relationship that should have been employed in defining civilian status—groups that comprise “the enemy” should not benefit from treatment as civilians for targeting purposes, whether in international or non-international armed conflict.

Recall the Interpretive Guidance’s accurate assertion that the logic of the principle of distinction precludes treatment of irregular armed forces under the more protective legal regime afforded civilians because irregular armed forces fail to distinguish themselves from the civilian population, carry their arms openly, or conduct their operations in accord with the laws of war.  Precisely the same logic should apply to groups that do not belong to a party to the conflict.

In what was possibly a rebalancing effort, the Interpretive Guidance argues that “organized armed groups operating within the broader context of an international armed conflict without belonging to a party to that conflict could still be regarded as parties to a separate non-international armed conflict.”[49] The “belonging” criterion makes sense in the context of non-international armed conflict, for the essence of such conflicts is fighting between a state and a non-state armed group.  Nevertheless, from a practical perspective, it is problematic to treat organized armed groups that do not belong to a party to an international armed conflict as involved in a non-international armed conflict.  Having just excluded organized armed groups not belonging to a party from the ambit of armed forces—and thereby shielded them from attack when they do not participate in hostilities—under the law of international armed conflict, the Interpretive Guidance applies the non-international armed conflict standard to treat those who are members of “organized armed groups” as other than civilians. The result of this normative detour is that members of the organized armed group may not be attacked by virtue of membership in the group pursuant to the law of international armed conflict, but they may be attacked pursuant to that of non-international armed conflict.  This difference is one certain to be lost on both those being attacked and those mounting attacks.

Aside from the practical illogic of the approach, the distinction makes little sense in legal terms.  Admittedly, there is no question that international and non-international conflicts can coexist in the same battlespace.[50] The clearest example occurs when a non-international conflict is already underway at the time an international armed conflict breaks out.  For instance, a non-international armed conflict between the Taliban-led Afghan government and the Northern Alliance was already underway when the international armed conflict between the United States and Afghanistan (the Taliban) commenced.  The latter conflict did not change the character of the pre-existing one.  Similarly, if a state sends in its military to support rebel forces in a non-international armed conflict, or exerts control over those forces, the conflict between the two states is international in character.[51] In another example, if a state splits into separate states, an ongoing non-international conflict transforms into an international one.[52]

However, the situation envisaged in the Interpretive Guidance differs dramatically from these scenarios.  It presumes an ongoing international armed conflict in which irregular forces not belonging to a party to the conflict become involved in the hostilities.  The paradigmatic example would be the conflict in Iraq, where irregular forces are engaged in hostilities against the American-led coalition.  Some of these forces joined in the conflict for reasons wholly unrelated to support of the Iraqi government.  Indeed, most Shiite militia and Sunni jihadist groups saw defeat of the secular Iraqi government as a positive event from which they could benefit.  But they were nevertheless opposed to the presence of Coalition forces and took advantage of the international armed conflict to attack them.

Seemingly, some support for the Interpretive Guidance’s position is to be found in the ICRC’s Commentary to Article 4 of the Third Geneva Convention.  It provides that “[r]esistance movements must be fighting on behalf of a ‘Party to the conflict’ in the sense of Article 2, otherwise the provisions of Article 3 relating to non-international conflicts are applicable, since such militias and volunteer corps are not entitled to style themselves a ‘Party to the conflict.’”[53] Careful reading of the ICRC’s Commentary to Article 3 reveals, however, that the drafters of the Convention were viewing Article 3 conflicts exclusively in the guise of hostilities conducted against a force’s own government.  There is no hint that the ICRC envisaged hostilities against governments with which the force’s government was fighting in an international armed conflict.  On the contrary, the Commentary is crafted in terms of the “Party in revolt against the de jure Government”, “rebellion”, and “rebel Party”.[54]

Adopting the organized armed groups approach, and then applying the international armed conflict criterion of “belonging to a Party”, flies in the face of both the logic of the principle of distinction and the travaux préparatoire of the underlying black letter law.  Moreover, since the Interpretive Guidance permits attack on members of groups not belonging to a party in the supposed non-international armed conflict, the practical effect of this overly legalistic approach is negligible at best.  There are but two rational approaches.  Either members of an organized armed group should be treated as “armed forces” for targeting purposes regardless of their ties to a belligerent party or they should be treated as direct participants in the hostilities throughout the duration of their membership in the group.[55]

Complicating matters is an additional criterion that edged its way into the Interpretive Guidance over the series of meetings: the requirement that the members of the organized group in question perform a “continuous combat function” before they qualify as individuals who may be attacked on the basis of membership.  According to the Interpretive Guidance, continuous combat function is synonymous with direct participation; that is, group members whose function is to engage in actions that would rise to the level of direct participation (see discussion below) are subject to attack.  They need not be engaging in these activities at the time they are attacked; in this sense they resemble soldiers of the regular armed forces.  Members not having such functions are considered to be civilians directly participating in hostilities and may be attacked only if, and for such time as, they undertake actions qualifying as direct participation.  They are treated precisely as would individuals who participate in hostilities on “a merely spontaneous, sporadic, or unorganized basis.”[56] This combat function criterion applies to members of organized armed groups in both international and non-international armed conflicts.

The continuous combat function idea initially surfaced in the context of non-international armed conflict.  Some of the DPH Project experts were concerned that members of organized armed groups often fail to distinguish themselves from the civilian population during internal conflicts and thereby heighten the risk of attacks on civilians due to erroneous conclusions that they are also members of an armed group.  As noted in the Interpretive Guidance, membership in irregularly constituted groups

is not consistently expressed through uniforms, fixed distinctive signs, or identification cards.  In view of the wide variety of cultural, political, and military contexts in which organized armed groups operate, there may be various degrees of affiliation with such groups that do not necessarily amount to ‘membership’ within the meaning of IHL. . . .  In practice, the informal and clandestine structures of most organized armed groups and the elastic nature of membership render it particularly difficult to distinguish between a non-State Party to the conflict and its armed forces.[57]

Given these challenges, these experts felt it was useful to limit membership to individuals who were unambiguously members of the organized armed group by virtue of their involvement in combat action.  Over the course of the meetings, this criterion slowly bled into international armed conflict; its evolution is reflected in the fact that the Interpretive Guidance discusses the criterion with regard to international armed conflict only in passing and entirely by reference to its application during non-international armed conflict.

Evidence of continuous combat function, according to the Interpretive Guidance, may be openly expressed

through the carrying of uniforms, distinctive signs, or certain weapons.  Yet it may also be identified on the basis of conclusive behaviour, for example where a person has repeatedly directly participated in hostilities in support of an organized armed group in circumstances indicating that such conduct constitutes a continuous function rather than a spontaneous, sporadic, or temporary role assumed for the duration of a particular operation.[58]

Any such determination must be “based on information which is practically available and can reasonably be regarded as reliable in the prevailing circumstances.”[59] The concern about identifications is somewhat counterfactual.  Armed units of organized groups are sometimes distinguishable from their political or social wings, as is the case, for example, in certain circumstances with Hamas and Hezbollah.  Within mixed groups, membership in the armed faction is often clear-cut: only fighters wear uniforms and carry weapons.  Membership in the armed wing may also be established through reliable intelligence, such as captured membership lists or communications intercepts, or by location, such as presence at a remote insurgent camp.  The point is that while membership in an organized armed group can be uncertain, it may also be irrefutable.

Furthermore, by the Interpretive Guidance’s approach, members of an organized armed group who have a continuous combat function may be attacked at any time, whereas those who do not, but who periodically take up arms, must be treated as civilians directly participating in hostilities and may only be attacked while doing so.  In practice, it will usually be impractical to distinguish between the two categories.  For example, if an individual is identified as having engaged in hostilities in a past engagement, how can an attacker possibly know whether the participation was merely periodic when it conducts a subsequent operation against the organized armed group?

Application of the continuous combat function criterion also badly distorts the military necessity-humanitarian balance of IHL.  A requirement of continuous combat function precludes attack on members of an organized armed group even in the face of absolute certainty as to membership.  In contrast, membership alone in a state’s military suffices, even when there is absolute certainty that the individual to be attacked performs no functions that would amount to the equivalent of direct participation.[60] To illustrate, a cook in the regular armed forces may be lawfully attacked at any time; his or her counterpart in an organized armed group may be attacked only if he or she directly participates and then only for such time as the participation occurs.[61]

What the Interpretive Guidance appears to have missed is that international humanitarian law already accounts for situations of doubt as to whether an individual is a civilian.  Article 50.1 of Additional Protocol I, a provision generally deemed reflective of customary international law,[62] provides that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”[63] Accordingly, it makes little sense to justify the continuous combat function criterion on the basis of concern about an inability to distinguish members of an organized armed group from civilians or civilian affiliates of the armed group, as IHL already deals with doubt through a presumption of civilian status.

Even the Interpretive Guidance’s development of the combat function concept displays insensitivity to practical issues.  Consider its mention of an identification card as distinguishing regular from irregular armed forces.  The purpose of the card is identification in the event of capture.[64] One can only wonder how it might assist an attacker to differentiate combatants from civilians in attack situations.  Or consider the wearing of uniforms.  When an armed group wears uniforms, the uniforms seldom clearly indicate any particular functions performed by its wearer. Except in cases of attack against isolated individuals who have been identified previously as having a continuous combat function or who are engaging in hostilities at the time of attack (in which case they could nevertheless be attacked as direct participants), the standard is highly impractical.  In practice, most attacks will be launched against groups of individuals or in time-sensitive situations in which distinction based on function will prove highly difficult.  Simply put, the Interpretive Guidance’s solution for avoiding mistaken attacks on civilians by imposing a function criterion for attacks on group members will accomplish little.

Ultimately, the only viable approach to membership in the direct participation context is one that characterizes all members of an organized armed group as members of the armed forces (or as civilians continuously directly participating).  It makes no more sense to treat an individual who joins a group that has the express purpose of conducting hostilities as a civilian than it would to distinguish between lawful combatants.

B.  The Concept of Direct Participation

Whereas the Interpretive Guidance’s treatment of the concept of a civilian is unacceptable due to the “belonging to a Party” and “continuous combat function” criteria, its development of the notion of direct participation is less problematic.  The concept is developed from the prohibition on attacking or mistreating “persons taking no active part in the hostilities” found in Common Article 3 of the 1949 Geneva Conventions.[65] It is well accepted in international law that the terms “active” and “direct” are synonymous, whether the concept is applied in non-international or international armed conflict.[66] Unfortunately, the phrase “direct part in hostilities” is undefined in IHL.[67] The need for an agreed upon understanding of the phrase was therefore a primary impetus for the DPH Project.

Simply participating in hostilities does not constitute direct participation such that it would result in a loss of protection from attack.  Rather, it is necessary to distinguish “indirect” from “direct” participation.[68] Doing so has generally been treated as a matter of judgment on the part of those planning, approving, and executing attacks.  For instance, the U.K. Manual on the Law of Armed Conflict provides that, “[w]hether civilians are taking a direct part in hostilities is a question of fact.”[69] Similarly, the U.S. Commander’s Handbook on the Law of Naval Operations states that, “[d]irect participation in hostilities must be judged on a case-by-case basis . . . .  Combatants in the field must make an honest determination as to whether a particular civilian is or is not subject to deliberate attack based on the person’s behavior, location, attire, and other information at the time.”[70] In the Tadic case, the International Criminal Tribunal for the Former Yugoslavia likewise noted:

[I]t is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved.  It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual’s circumstances, that person was actively involved in hostilities at the relevant time.[71]

The challenge with case-by-case assessments was the absence of an accepted basis for making the direct participation determinations.  The non-binding ICRC Commentary explains that direct participation “means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.”[72] The ICRC further defines hostilities as “acts of war which are intended by their nature and purpose to hit specifically the personnel and the material of the armed forces of the adverse Party.”[73] The group of experts struggled to refine the concept of direct participation throughout the course of the DPH Project meetings.  Numerous options, including proximity to the battlefront, the extent to which the individual’s actions contribute to combat action, the extent of military command and control over the activities, and the degree to which the actor harbors hostile intent, were offered as possible foundational criteria for distinguishing indirect from direct participation.  This author proposed a standard centered on the “criticality of the act to the direct application of violence against the enemy.”[74]

From the DPH Project discussions, three common themes emerged that eventually matured into the Interpretive Guidance’s “constitutive elements” of direct participation:

1) The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm);

2) There must be a direct causal link between the act and the harm likely to result either from that act or from a coordinated military operation of which that act constitutes an integral part (direct causation); and

3) The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).[75]

The elements are cumulative; only satisfaction of all three elements suffices to render an act one of direct participation.  Although various experts entertained specific concerns about particular facets of the constitutive elements, most viewed them as, in a very general sense, reflecting the group’s broad understanding.[76]

It is useful to highlight several aspects of the criteria.  The threshold of harm element requires only that the act in question be likely to result in the adverse effect in question; it need not eventuate.  Such effects must be of a military nature.  For instance, actions that diminish the morale of the civilian population would not qualify.  Although they must be military in nature, effects need not constitute an “attack”, a term of art in IHL.[77] As an example, clearing mines emplaced by enemy forces or carrying out a computer network attack intended to monitor enemy tactical communications would qualify.  The Interpretive Guidance usefully points out that it is not direct participation to refuse to engage in activities that might positively affect enemy operations, such as refusal to provide the enemy with information on the location of military forces.[78]

The limited notion of “harm” in the element proved controversial, as it would exclude actions by civilians that were designed to enhance a party’s military operations or capacity.  Of course, in warfare, harm and benefit are relative concepts; actions that weaken one side in a conflict contribute to the wherewithal of the other, and vice versa.  But if a distinction is to be drawn, it must be recognized that the strengthening of enemy capacity may be just as much a concern for commanders in the field as the weakening of one’s own forces.  Consider the development and production of simple improvised explosive devices (IEDs) by Iraqi insurgent forces, and their training to use them.  Today, IEDs cause the greatest number of casualties in Iraq and Afghanistan, and their fielding has necessitated an enormous investment in counter-technologies.  IEDs have affected the morale of troops in the field and domestic attitudes about continued human investment in the two conflicts.  Clearly, the element of “harm” should have included both sides of the coin.  Interestingly, it does so with respect to actions against civilians and civilian objects, which can meet the threshold test “regardless of any military harm to the opposing party to the conflict.”[79] Why the Interpretive Guidance requires harm in cases not involving civilians and civilian objects is unclear.

The threshold of harm element includes inflicting death, injury, or destruction on civilians, civilian objects, and other protected entities.  However, application of the notion of direct participation to attacks against protected persons and objects as well as against enemy forces is not self-evident.  Additional Protocol I’s definition of “attacks” as “acts of violence against the adversary, whether in offence or defence”, provides the basis for their inclusion.[80] Relying on travaux préparatoire, the Interpretive Guidance suggests that, because the “phrase ‘against the adversary’ does not specify the target, but the belligerent nexus of an attack”, violence directed against protected persons and objects is encompassed in the characterization of all “attacks” as acts of direct participation.[81] Case law of the International Criminal Tribunal for the Former Yugoslavia, which has held that sniping and bombardment of civilians amount to an attack, is in accord.[82] Although novel, the inclusion of harming protected persons and objects in the threshold of harm element drew minimal objection from the assembled experts.  That said, it is a fair question as to why the criterion should be limited to death, injury, or destruction.  Would it not, for instance, constitute direct participation to force inhabitants of a particular ethnic group to leave an occupied area during a conflict in which ethnicity factored?  A more useful criterion in this regard would distinguish actions directly related to the armed conflict from those that are merely criminal in nature.

The second element, direct causation, is rooted in the ICRC Commentary to both Additional Protocols I and II.[83] During the DPH Project proceedings, this author suggested that, based on the Commentary text,

direct participation . . . requires ‘but for’ causation (the consequences would not have occurred but for the act), causal proximity (albeit not direct causation) to the foreseeable consequences of the act, and a mens rea of intent; the civilian must have engaged in an action that he or she knew would harm (or otherwise disadvantage) the enemy in a relatively direct and immediate way.[84]

Eventually, this proposal matured into the less legalistic causation formula set forth in the Interpretive Guidance.

The Interpretive Guidance’s explanation of directness is strict on its face, arguably overly so.  It requires that the harm caused by an act “be brought about in one causal step.”[85] The group of experts agreed that the relationship between the action in question and the harm caused should be relatively direct, but at no time did anyone suggest that it had to occur in but a single step.  For instance, a civilian who gathers information on the movement of particular forces may report that information to an intelligence fusion center that in turn studies it and passes on the resulting analysis to a mission planning cell.  The cell, depending on such factors as risk, value, and availability of attack assets, may decide to continue monitoring those forces and to only attack them once they are confirmed present and determined vulnerable.  The causal link would be more than a single step, but the information would be no less critical to the ultimate attack.  The initial identification of the forces surely represents direct participation.

As the “one causal step” criterion is not developed to any degree in the Interpretive Guidance, it remains unclear whether it is merely a poorly drafted explanation of the agreed upon need for a clear link between the act and the ensuing harm or whether it reflects an actual, and if so, flawed, requirement.  The Interpretive Guidance’s discussion would seem to suggest the former, for its examples of indirect participation—imposing economic sanctions, conducting scientific research and design, producing weapons, recruiting forces, and providing general logistics support—are far removed in the causal sense from the harm caused to the enemy.[86]

The reference to “one causal step” is unfortunate, as the constitutive element itself sets forth the essential requirement that the act must constitute “an integral part” of the operation causing the harm.  “Integral” is not to be equated with “necessary”.  Although a certain action may constitute a critical facet of a military operation, in some cases the operation may nevertheless proceed without it, albeit with reduced likelihood of success.  The classic example is again intelligence.  While an attack typically has a greater chance of success and poses less risk to the attacker as the degree and reliability of intelligence increases, the absence of particular intelligence may not preclude its execution.  The fact that the additional intelligence is not indispensable does not exclude its collection from the ambit of direct participation.

The Interpretive Guidance offers several examples of direct and indirect causation.  Experts were particularly divided over the assembly and storage of improvised explosive devices, which the Interpretive Guidance labels as indirect participation.  Based on the “one casual step” criterion, it is true that such activities would not qualify, but this illustrates the weakness of the standard.  As the conflicts in Afghanistan and Iraq have exemplified, the use of IEDs is an effective tactic against superior forces.  IEDs are often assembled and stored in close proximity to the battlefield by members of armed groups.  Although the precise location and time at which they will be used may not be known in advance, they will likely be employed soon after their assembly.  In this sense, the assembler of an IED is comparable to a “lookout” who reports the movement of enemy forces down a road.  The precise attack for which the information will be used may be uncertain initially.  However, because positional information is of fleeting value, it is likely to be used within a certain time frame and in a particular area; hence the general agreement that serving as a lookout represents direct participation.  The Interpretive Guidance went astray by equating assembly of an IED with the production of munitions in a factory far removed from the battlefield, which all the experts agreed is indirect in nature.  Like intelligence activities, the production of weapons is case-specific.  In some circumstances, IED assembly and storage will constitute direct participation; in others it will not.

Curiously, similar logic undergirds the Interpretive Guidance’s sensible treatment of direct causation in collective operations.  The Guidance provides that, “where a specific act does not on its own directly cause the required threshold of harm, the requirement of direct causation would still be fulfilled where the act constitutes an integral part of a concrete and coordinated tactical operation that directly cases such harm.”[87] An excellent example, developed by the experts during the DPH Project meetings, was an unmanned aerial vehicle (UAV) attack that involves a pilot remotely operating the UAV, another person controlling the weapons, a communications specialist maintaining contact with the craft, and a commander in overall control.  All are direct participants.

Even greater controversy erupted over the treatment of human shields.  All experts agreed that civilians forced to shield a military objective are not direct participants in hostilities.  However, there was marked disagreement over the status of those who served as voluntary shields.

The Interpretive Guidance correctly takes the position that “[w]here civilians voluntarily and deliberately position themselves to create a physical obstacle to military operations of a party to the conflict, they could directly cause the threshold of harm required for a qualification as direct participation in hostilities.”[88] For instance, civilians may block a bridge across which military vehicles are advancing.  However, the Interpretive Guidance goes on to suggest that “in operations involving more powerful weaponry, such as artillery or air attacks, the presence of voluntary human shields often has no adverse impact on the capacity of the attacker to identify and destroy the shielded military objective.”[89] The Interpretive Guidance therefore argues that in such a case the shields’ voluntary participation does not qualify as direct.  As non-participating civilians, the presence of the shields accordingly must be considered when assessing proportionality.  In extreme cases, a shield’s intentional actions may so alter the proportionality calculation that an attack on the target would cause excessive harm to civilians relative to the anticipated military advantage and thus bar the operation’s execution as a matter of law.

Many of the experts, especially those with actual military experience, vehemently opposed this position.[90] As with other Interpretive Guidance provisions, the voluntary human shields stance fails to fairly balance military necessity with humanitarian concerns.  From an attacker’s perspective (the military necessity prong), it does not matter why an attack cannot be mounted.  Whether the obstacle is physical or legal, any military advantage that might have accrued from the attack is forfeited.  Indeed, the legal obstacle is often the more effective one.  A physical obstacle can be removed or otherwise countered in many situations; a legal prohibition is absolute.  Few would contest the characterization of actively defending a military objective as direct participation.  However, the possibility that images of civilian casualties might be broadcast globally would generally serve as a far greater deterrent to attack than many modern air defense systems employed by nations such as the United States and the United Kingdom.  This very fact motivates the voluntary shielding in the first place.[91] Finally, one has to query why IHL would distinguish between those who physically protect a military objective from those who intentionally misuse the law’s protective provisions to prevent an otherwise lawful attack.  It would seem that the latter poses the greater risk to humanitarian ends by undermining respect for IHL.

Proponents of the Interpretive Guidance’s approach object to the normative consequence that would result if voluntary shields were characterized as direct participants: they may resultantly be directly attacked.  While accurate as a matter of law, such concerns reveal unfamiliarity with military doctrine.  One of the time-honored “principles of war” is economy of force, which holds that commanders should only use that amount of force necessary to attain the sought-after military advantage.  Employing greater force wastes assets that would otherwise be available for employment against other military objectives.[92] Therefore, those who urge that voluntary human shields should be treated as direct participants embrace the characterization not because they want the shields to be subject to attack, but rather because it will preclude the inclusion of their death or injury in the proportionality calculation and thereby maintain the delicate military necessity-humanitarian considerations balance.

The third constitutive element of direct participation, belligerent nexus, requires that the act in question “not only be objectively likely to inflict harm that meets the first two criteria, but it must also be specifically designed to do so in support of a party to an armed conflict and to the detriment of another.”[93] There was significant discussion during the meetings of whether the intent of the actor was relevant; that is, whether the actor had to harbor a desire to affect the hostilities before his or her conduct could be deemed direct participation.[94] Despite protestations by some experts who argued that soldiers on the battlefield are regularly called upon to assess the intent of others (e.g., in situations of self-defense or when maintaining order during a stability operation), the majority agreed that the better approach focused on an act’s objective purpose.  Doing so removes such issues as duress or age from the analysis, which is an appropriate consequence, as most experts concurred that, for example, civilians forced to participate in military operations and child soldiers can be direct participants.

Examples of acts that might qualify as direct participation on the basis of the first two elements but fail due to a lack of belligerent nexus include assaults against military personnel for reasons unrelated to the conflict, theft of military equipment in order to sell it, defense of oneself or others against unlawful violence (even when committed by combatants), exercise of police powers by law enforcement authorities, and civil disturbances unrelated to the conflict.  The key question is whether the activities are intended to harm one party to the conflict, usually to the benefit of another.

The sole problem with the belligerent nexus criterion is the requirement that the act be “in support of a party to the conflict and to the detriment of another.”  As noted in the discussion of the concept of civilian, there is substantial opposition to the requirement that an organized armed group belong to a party to the conflict in order to qualify as an armed force.  For those who oppose the requirement, including this author, the belligerent nexus criterion should be framed in the alternative: an act in support or to the detriment of a party.  This would account for cases where an armed group might engage in operations against one party without intending to assist its opponent.  For example, an armed group might wish to fight an invading force in the hope of situating itself to seize power.  Of course, in most cases, direct participation is a zero-sum game.  To the extent one side is harmed, the other benefits.

C.  Temporal Aspects of Direct Participation

The qualifier “for such time” in the direct participation norm has long been a source of disagreement.  In the 2006 Targeted Killings Case, the Israeli government argued that the phrase did not reflect customary international law but rather was simply a treaty restriction that limited only states party to the relevant instruments (principally the Additional Protocols).  The Israeli Supreme Court rejected this contention by correctly noting that the issue was not whether the “for such time” limitation was customary but rather how to interpret it.[95]

Before exploring the “for such time” notion, it is important to emphasize that this concept does not apply to the actions of organized armed groups.  All experts eventually agreed that in international armed conflict timing is a non-issue for organized armed groups that belong to a party to the conflict because their members do not qualify as civilians (at least by the approach taken in the Interpretive Guidance).  As to groups that do not belong to a party in an international armed conflict, the better position is that they too cannot qualify as civilians.  But even under the narrower approach adopted in the Interpretive Guidance, such groups would be involved as parties in a non-international armed conflict such that the concept of direct participation would be equally inapplicable to them.  The net result of both positions is the same: there is no issue of direct participation, and therefore of temporality, for organized armed groups (at least regarding members with a continuous combat function, if one accepts this requirement).  Consequently, the only instance in which the “for such time” issue arises is with respect to individuals whose involvement in the hostilities is spontaneous, sporadic, or temporary.

The Interpretive Guidance takes the position that “measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of the act.”[96] This formula derives in part from the Commentary to the direct participation articles in Additional Protocols I and II.  The former provides that a number of delegations to the Diplomatic Conference viewed direct participation as including “preparations for combat and return from combat” and that “once he ceases to participate, the civilian regains his right to the protection.”[97] The latter states that a civilian loses protection “for as long as his participation lasts.  Thereafter, as he no longer presents any danger for the adversary, he may not be attacked.”[98]

During the DPH Project meetings, the experts failed to achieve consensus over the meaning of this “for such time” standard, other than to generally agree that it was customary in nature.  Two issues proved irresolvable.  The first surrounds the precise moment at which direct participation begins and ends.  According to the Interpretive Guidance, preparatory measures “correspond to what treaty IHL describes as ‘military operation[s] preparatory to an attack’.”[99] That phrase, as well as the term “deployment”, is found in Additional Protocol I, Article 44.3, albeit in connection with the question of when combatants are obligated to distinguish themselves from the civilian population.[100] However, the reference back to the treaty text proves tautological, for the Commentary offers no indication of those actions that constitute a military operation preparatory to attack.  Complicating matters, the Commentary acknowledges that the term deployment “remained the subject of divergent views” at the Diplomatic Conference.[101]

The Interpretive Guidance takes a restrictive approach to the timing issue by suggesting that preparatory measures “are of a specifically military nature and so closely linked to the subsequent execution of a specific hostile act that they already constitute an integral part of that act.”  Actions “aiming to establish the general capacity to carry out unspecified hostile acts do not” rise to this level.[102] Deployment “begins only once the deploying individual undertakes a physical displacement with a view to carrying out a specific operation”, whereas “return from the execution of a specific hostile act ends once the individual in question has physically separated from the operation.”[103] The key is the extent to which an act that takes place prior to or after a hostile action amounts to a concrete component of an operation.

An alternative view popular among the group of DPH experts looked instead to the chain of causation and argued that the period of participation should extend as far before and after a hostile action as a causal connection existed.[104] The best example is that discussed above: the assembly of improvised explosive devices.  Recall that the Interpretive Guidance excludes assembly from direct participation; an individual who acquires the materials and builds an IED that he eventually employs is only directly participating once he begins the final steps necessary to use it.  By the alternative approach, the acquisition of the materials necessary to build the device as well as its construction and emplacement comprise preparatory measures qualifying temporally as the period of direct participation.

The second point of controversy regarding the “for such time” standard has become known as the “revolving door” debate.  It is popularly symbolized by the farmer who works his fields by day, but becomes a rebel fighter at night.  According to the Interpretive Guidance, individuals who participate in hostilities on a recurrent basis regain protection from attack every time they return home and lose it again only upon launching the next attack; hence the revolving door as the farmer passes into and out of the shield of protection from attack.

Although the Interpretive Guidance acknowledges that a revolving door exists, it claims the phenomenon serves as an “integral part, not a malfunction of IHL.  It prevents attacks on civilians who do not, at the time, represent a military threat.”[105] There are two holes in this logic.  First, the reason civilians lose protection while directly participating in hostilities is because they have chosen to be part of the conflict; it is not because they represent a threat.  Indeed, particular acts of direct participation may not pose an immediate threat at all, for even by the restrictive ICRC approach, acts integral to a hostile operation need not be necessary to its execution.  Instead, the notion of “threat” is one of self-defense and defense of the unit, which is a different aspect of international law.  It is accounted for in operational procedures know as rules of engagement, which are based as much in policy and operational concerns as in legal requirements.  To the extent it is based in law, self-defense applies to civilians who are not directly participating in hostilities rather than those who are participating (as they may be attacked without any defensive purpose).

Apart from the structural distortion of the revolving door phenomenon, the approach makes no sense from a military perspective.  For instance, in asymmetrical warfare, individual insurgents typically mount surprise attacks; sometimes the attack does not occur until long after the insurgents have departed the area, as with IED or land mine attacks.  Without an opportunity to prepare for attack, the best option for countering future attacks is to locate insurgent “hideouts” through human and technical intelligence and to target these hideouts when the insurgents are likely present. Yet, by the Interpretive Guidance’s approach, once the insurgents return from an attack, they are “safe” until such time as they depart to attack again.  Again, the Interpretive Guidance has thrown the military necessity-humanitarian considerations balance wildly askew.

The better approach is one whereby a civilian who directly participates in hostilities remains a valid military objective until he or she unambiguously opts out of hostilities through extended non-participation or an affirmative act of withdrawal.[106] He or she may be attacked between episodes of participation.  It may sometimes be difficult to determine when a direct participant no longer intends to engage in further hostilities, but having enjoyed no right to participate in the first place, the direct participant should bear the risk associated with misunderstanding as to status and not combatants who have been previously attacked.  This represents a far more appropriate and sensible balancing of military necessity and humanitarian concerns.  After all, IHL presupposes a conflict between particular actors who are entitled to use force: combatants.  Charging direct participants, rather than combatants, with the consequences of a mistaken conclusion as to continued involvement in the hostilities maintains this internal logic.

It might be objected that this approach violates the presumption of civilian status in cases of doubt.  Most experts agreed that when doubt exists as to whether the target is a directly participating civilian or member of the armed forces (at least doubt sufficient to cause a reasonable combatant to hesitate to act), an attack may not be mounted or continued.[107] However, the issue in this case is not doubt but rather mistake of fact: the civilian has decided to refrain from further participation in hostilities, but an attacker is unaware—and has no reason to be aware—of that fact.  IHL does not prohibit the making of reasonable factual mistakes on the battlefield.  International criminal law expressly acknowledges the likelihood of reasonable mistakes in the fog of war.  The Rome Statute, for instance, provides for a mistake-of-fact defense when the mistake negates a mental element of the crime.[108] In particular, the offense of willfully killing civilians requires that the perpetrator have been aware of the factual circumstances that established the protected status.[109] Thus, a reasonable mistake as to the “for such time” aspect of direct participation would preclude criminal responsibility for attacking an individual who was no longer a direct participant.

IHL merely requires that actors take precautions that may prevent mistakes.  With regard to the question at hand, an attacker must take feasible steps to verify that targets are not protected civilians.[110] If it becomes apparent that a targeted individual does enjoy such protection, the attack must be cancelled.[111] In the “for such time” context, the norm requires an attacker to take reasonable steps to ensure that a potential target remains subject to attack.  However, the risk that an attacker’s reasonable steps might not reveal that a civilian has withdrawn from hostilities can only logically be borne by the former direct participant.

IV.  Restraints on the Use of Force

Possibly the area of the Interpretive Guidance that attracted the greatest criticism among the experts who participated in the DPH Project involves “restraints on the use of force in direct attack.”[112] According to the Interpretive Guidance, “the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.”[113] The Guidance cites the principles of military necessity and humanity in support of this proposition.[114]

The U.K. Manual on the Law of Armed Conflict, to which the Interpretive Guidance refers, explains that the principle of necessity allows only that “degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve a legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.”[115] The latter prohibits “the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes.”[116]

In its discussion on restraint of force, the Interpretive Guidance misapplies the principle of necessity, as evidenced by disagreement with its treatment on the part of certain DPH experts who were also responsible for drafting the U.K. Manual.  The Manual correctly notes that military necessity is one of four fundamental principles underlying the positive rules of customary and treaty IHL.[117] Specific customary and treaty rules set forth in IHL have already taken military necessity into account.  Illustrative examples abound.  For instance, “when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.”[118] Similarly, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”[119] Most significantly, the definition of military objective requires that objects to be targeted make an effective contribution to military action and that their partial destruction, capture, or neutralization offer a definite military advantage.[120] Only when the positive law specifically cites military necessity does it come into play as a factor in itself.[121] No state practice exists to support the assertion that the principle of military necessity applies as a separate restriction that constitutes an additional hurdle over which an attacker must pass before mounting an attack.  The operation is lawful so long as the target qualifies as a lawful military objective, collateral damage will not be excessive, and all feasible precautions are taken.

The flawed logic vis-à-vis necessity is mirrored in the Interpretive Guidance’s citation to the principle of humanity.  Humanity is equally a foundational principle of IHL rather than a positive rule.  Thus, as explained in the UK Manual:

[I]f an enemy combatant has been put out of action by being wounded or captured, there is no military purpose to be achieved by continuing to attack him.  For the same reason, the principle of humanity confirms the basic immunity of civilian populations and civilian objects from attack because civilians and civilian objects make no contribution to military action.[122]

In both examples, the principle of humanity is expressed through positive rules and not general application of the principle.[123] Again, no state practice supports the application of the principle in the manner suggested by the Interpretive Guidance.

Particularly problematic is the Interpretive Guidance’s assertion that “it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.”[124] IHL already accounts for situations in which an opportunity to capture an enemy exists by prohibiting attacks on an individual who “clearly expresses an intention to surrender.”[125] It is this rule, rather than that proposed by the Interpretive Guidance, that reflects the principle of humanity as well as the general balance between military necessity and humanitarian considerations.  The crucial issue is not whether the individual in question can feasibly be captured but instead whether he or she has clearly expressed his or her intention to surrender.  The claim that an individual who has not surrendered must, when feasible, be captured (or at least not attacked) is purely an invention of the Interpretive Guidance.

A requirement does exist in human rights law to capture rather than kill when possible.  It applies primarily during peacetime as well as in certain circumstances when occupying forces are acting to maintain order.[126] The question is whether this human rights norm has any bearing on classic conduct of hostilities situations.

Although it is now well settled that human rights law does apply during armed conflict, its application is conditioned by IHL in both international and non-international armed conflict.[127] In its Advisory Opinion on the use of Nuclear Weapons, the International Court of Justice addressed the issue of the interplay between human rights law and the IHL governing attacks.  It held that, while the non-derogable prohibition on arbitrary deprivation of life found in Article 6.1 of the International Covenant on Civil and Political Rights applies in times of war, the “test of what is an arbitrary deprivation of life . . . falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.”[128]

The lex specialis dynamic explains the Interpretive Guidance’s circuitous attempt to squeeze a plainly human rights norm into a restraint on attacks against direct participants under the guise of IHL.  The attempt fails because the IHL analysis on which it relies is fundamentally flawed.  Of course, military considerations will often augur against attacking an individual who, although not hors de combat, can be captured; this is especially true in counter-insurgency operations, where the rules of engagement are typically restrictive.[129] However, such considerations are grounded in policy and operational concerns and not in international humanitarian law.

Inclusion of the proposed restrictions on attack in the Interpretive Guidance was unfortunate.  Quite aside from the substantive weakness of the supporting argument, it was unnecessary to the determination of either the nature of direct participation or its temporal reach.  Ultimately, doing so merely provided additional fodder for criticism by many of the experts involved in the DPH Project.

V.  Concluding Thoughts

Despite the critical nature of the comments above, there is much to recommend in the Interpretive Guidance.  In particular, the constitutive elements of direct participation, although not bereft of flaws, represent a useful step forward in understanding the notion.  The Interpretive Guidance’s principal author, Dr. Nils Melzer of the ICRC, is due special commendation for this creative and insightful contribution as well as for the Herculean task of trying to pull together the work of diverse experts over a five-year period.  It cannot be denied that the Interpretive Guidance brings the issue of direct participation to the forefront of IHL dialogue—a place it should enjoy in light of the nature of conflict in the twenty-first century.  The work effectively identifies and frames the issues and offers a sophisticated departure point for further mature analysis.

However, the Interpretive Guidance repeatedly takes positions that cannot possibly be characterized as an appropriate balance of the military needs of states with humanitarian concerns.  In particular, the Guidance proposes incompatible legal standards for conflicts between a state’s regular armed forces and non-state armed groups.  Counter-intuitively, non-state actors, who enjoy no combatant privilege, benefit from greater protection than do their opponents in the regular armed forces.  It is similarly disturbing that individuals who directly participate on a recurring basis enjoy greater protection than lawful combatants.  Finally, the purported restraints on the use of force find little basis in international humanitarian law.

In light of these flaws, it is essential to grasp the prescriptive reach of the Interpretive Guidance.  As Dr. Jakob Kellenberger, President of the ICRC, notes in his foreword to the document, “the Interpretive Guidance is not and cannot be a text of a legally binding nature.  Only State agreements (treaties) or State practice followed out of a sense of legal obligation on a certain issue (custom) can produce binding law.”[130] Unfortunately, the Interpretive Guidance, the product of tireless efforts on the part of the ICRC and the experts involved, sets forth a normative paradigm that states that actually go to war cannot countenance.

[2] ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (Nils Melzer ed., 2009), available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0990/$File/ICRC_002_0990.pdf [hereinafter IG].

[3] Id. at 6.

[4] Subsequently published as Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int’l L. 511 (2005).

[5] W. Hays Parks, Evolution of Policy and Law Concerning the Role of Civilians and Civilian Contractors Accompanying the Armed Forces, Presentation at the Third Meeting of Experts 7 (2005). The article provides an excellent series of examples.

[6] Committee of Public Safety, Levee en Masse, August 23, 1793.

[7] Convention (III) Relative to the Treatment of Prisoners of War art. 4A(6), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]. Participants in such actions form a “levee en masse”.

[8] Id. art. 4A(4). Such treatment was not new. During the U.S. Civil War, Army General Orders No. 100, also known as the Lieber Code, provided that “[c]itizens who accompany an army for whatever purpose . . . if captured, may be made prisoners of war.” Francis Lieber, Instructions for the Government of Armies of the United States in the Field art. 50 (Gov’t Printing Office 1898) (1863) (officially published as U.S. War Dep’t, General Orders No. 100 (Apr. 24, 1863)). Hague Convention IV similarly provided that, “[i]ndividuals who follow an army without directly belonging to it, such as . . . contractors, who fall into the enemy’s hands . . . are entitled to be treated as prisoners of war.” Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land art. 13, Oct. 18, 1907, 36 Stat. 2277, 187 Consol. T.S. 227 [hereinafter Hague IV R].

[9] Parks, supra note 5, at 7.

[10] GC III, supra note 7, art. 4A(2). See also Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts arts. 43–44, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I].

[11] See U.S. Gov’t Accountability Office, Report to the Subcomm. on Readiness and Mgmt. Support of the S. Comm. on Armed Servs., Report No. GAO-03-695 (2003) (discussing the shortfalls in U.S. military capabilities). Note that civilians had historically supported their country’s war effort far from the battlefield, for instance by working at ports from which military equipment, supplies, and troops were shipped. However, now civilians are directly supporting armed forces in the theater of operations.

[12] Of those troops, 132,000 (down from almost 200,000 at the height of the conflict) were serving in Iraq, 68,000 in Afghanistan, and the remainder were at various other locations throughout the region. Dep’t of Def., Off. of the Deputy Under Sec’y of Def. for Logistics and Materiel Readiness, Contractor Support for U.S. Operations in USCENTCOM AOR, Iraq and Afghanistan (2009), http://www.acq.osd.mil/log/PS/p_vault/5A_February2010.doc.

[13] Jennifer Elsea, Kennon Nakamura, & Moshe Schwartz, Cong. Research Serv., RL32419, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues 3 (2008). The questionable status of security contractors provided a major impetus for launch of the DPH Project. The key question was whether the various activities they engaged in amounted to direct participation or, indeed, whether they represented, in some cases, organized armed groups operating on behalf of a party to the conflict. These issues are developed infra.

[14] Staff of H. Comm. On Oversight and Gov’t Reform, 110^th Cong., Memorandum on Supplemental Information on Defense Base Act Insurance Costs 4 (Comm. Print 2008). The figures do not represent the total number killed or wounded, but rather only those, including security contractors, who have filed a claim with the Labor Department under either the Defense Base Act or War Hazard Compensation Act; further, it includes only Iraqis employed by U.S. entities.

[15] iCasualties.com, Iraq Coalition Casualty Count: Contractors, http://icasualties.org/Iraq/Contractors.aspx. The site cautions that the list is incomplete.

[16] See Grand Jury Indictment, United States v. Slough, 669 F.Supp. 2d 51 (D.D.C. 2009) (No. 08-0360 (RMU)), 2008 WL 5129244. Charges were dismissed for evidentiary reasons in December 2009, although at the time of this writing there are indications the government will appeal the ruling. See United States v. Slough, No. 08-0360 (RMU), 2009 WL 5173785 (D.D.C. Dec. 31, 2009); Timothy Williams, Iraqis Angered at Dropping of Blackwater Charges, N.Y. Times, Jan. 2, 2010, at A4.

[17] See James Risen & Mark Mazzetti, CIA Said to Use Outsiders to Put Bombs on Drones, N.Y. Times, Aug. 21, 2009, at A1; Mark Mazzetti, Outsiders Hired As CIA Planned To Kill Jihadists, N.Y. Times, Aug. 20, 2009, at A1; James Risen & Mark Mazzetti, Blackwater Guards Tied To Secret Raids by CIA, N.Y. Times, Dec. 11, 2009, at A1.

[18] The vast majority of security contractors would not qualify as mercenaries because mercenaries must be recruited to take a “direct part” in hostilities (thus raising the question of whether their activities are direct participation) and cannot be nationals of a Party to the conflict. AP I, supra note 10, art. 47.2.

[19] See generally Michael Schmitt, Contractors on the Battlefield: The US Approach, Militair Rechtelijk Tijdschrift 264 (July–Aug. 2007); Elsea et al., supra note 13, at 20–31.

[20] Agreement on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities During Their Temporary Presence in Iraq, U.S.-Iraq, art. 12, Nov. 17, 2008, available at http://georgewbush-whitehouse.archives.gov/infocus/iraq/SE_SOFA.pdf.

[21] Letter from Peter Maurer, Permanent Representative of Switz. to the U.N., to the Sec’y Gen., U.N., Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict, annex, U.N. Doc. A/63/467-S/2008/636 (Oct. 6, 2008).

[22] Catherine Dale, Cong. Research Serv., RL 34387, Operation Iraqi Freedom: Strategies, Approaches, Results, and Issues for Congress 52–56 (2009).

[23] St. Petersburg Declaration Renouncing the Use in Time of War of Explosive Projectiles Under 400 Grammes Weight, Preamble, Dec. 11, 1868, 138 Consol. T.S. 297.

[24] Id.

[25] Legality of the Threat or Use of Nuclear Weapons (Nuclear Weapons Case), Advisory Opinion, 1996 I.C.J. 226 ¶ 78 (July 8). The prohibition of unnecessary suffering addresses the means and methods of warfare used against the enemy and has no bearing on who qualifies as either a member of the armed forces or a direct participant in hostilities.

[26] AP I, supra note 10, art. 48.

[27] Id. art. 51.2.

[28] ICRC, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005), rules 1, 2, and 7 [hereinafter CIHL]. States that are not party to the Additional Protocols nevertheless acknowledge their customary nature. See, e.g., Dep’t of the Navy, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, § 8-2 (2007), [hereinafter NWP 1-14M]. The acts clearly represent war crimes. See, e.g., Rome Statute of the International Criminal Court art. 8.2(b)(i), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. The International Criminal Tribunal for the Former Yugoslavia has held the principle of distinction, as reflected in Article 51 of Additional Protocol I, to be customary in nature. See, e.g., Prosecutor v. Blaskic, Case No. IT-95-14-A, Appeal Judgment, ¶ 110 (July 29, 2004); Prosecutor v. Galic, Case No.IT-98-29-T, Judgment, ¶ 45 (Dec. 5, 2003).

[29] Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts art 13.2, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II]; See CIHL, supra note 28, rules 1–2 ; Rome Statute, supra note 28, art. 8.2(e)(i); Michael N. Schmitt, Charles H.B. Garraway & Yoram Dinstein, The Manual on the Law of Non-International Armed Conflict with Commentary (2006), reprinted in 36 Isr. Y.B. Hum. R. (Special Supplement) § 2.1.1.1 (2006) [hereinafter NIAC Manual]; Prosecutor v. Tadic, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶¶ 100–127 (Oct. 2, 1995).

[30] AP I, supra note 10, art. 51.3.

[31] AP II, supra note 29, art. 13.3.

[32] “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely . . . .” Convention (I) for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field art. 3.1, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GC I]; Convention (II) for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea art 3.1, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GC II]; GC III, supra note 7, art. 3.1; Convention (IV) Relative to the Protection of Civilian Persons in Time of War art. 3.1, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. See also AP I, supra note 10, arts. 47, 67.1 (regarding the definition of mercenary and dealing with civil defense, respectively).

[33] Rome Statute, supra note 28, arts. 8.2(b)(i), 8.2(e)(i).

[34] See, e.g., NWP 1-14M, supra note 28, § 8.2.2; United Kingdom Ministry of Defence, The Manual on the Law of Armed Conflict § 5.3.2 (2004) [hereinafter UK Manual].

[35] CIHL, supra note 28, rule 6; NIAC Manual, supra note 29, § 2.1.1.2; HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) [2006] IsrSC 57(6) 285 ¶ 30.

[36] By the customary international law principle of proportionality, reflected in Articles 51.5(b), 57.2(a)(iii), and 57.2(b) of Additional Protocol I, “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” is prohibited. AP I, supra note 10. See also CIHL, supra note 28, rule 14; NIAC Manual, supra note 29, § 2.1.1.4; UK Manual, supra note 34, § 5.33; NWP 1-14M, supra note 28, § 8.3.1.

[37] See AP I, supra note 10, art. 57.2(a)(ii); CIHL, supra note 28, at rule 17; NIAC Manual, supra note 29, § 2.1.2; UK Manual, supra, § 5.32.4; NWP 1-14M, supra note 28, § 8.3.1.

[38] See Yoram Dinstein, Unlawful Combatancy, International Law and the War on Terror, 79 Naval War C. Int’l L. Stud. 151 (Fred Borch and Paul Wilson eds.) (2003) (discussing status); See also Kenneth Watkin, Harvard Program on Humanitarian Policy and Conflict Research, Occasional Paper, Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy (2005); Adam Roberts, Counter-terrorism, Armed Force, and the Laws of War, 44 Survival 7 (2002).

[39] GC III, supra note 7, art. 4A(2)(a)–(d). This provision was based on certain partisan groups in World War II that were not formally part of their countries’ armed forces but that fought on behalf of a party to the conflict (e.g., Tito’s partisans in Yugoslavia). It is not applicable to the modern phenomenon of security contractors.

[40] IG, supra note 2, at 26.

[41] The Hague IV Regulations refer to armies, militia, and volunteer corps fulfilling the same four conditions echoed in GC III. See Hague IV R, supra note 8, art. 1; GC III, supra note 7, art. 4A(2).

[42] “[A]ll organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” AP I, supra note 10, art. 43.1.

[43] Rather, the issues are the combatant privilege of engaging in hostilities and qualification for prisoner of war status. The United States’ objection that Additional Protocol I is “fundamentally and irreconcilably flawed” is based in part on the assertion that it “would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population . . . .” Transmittal from President Ronald Reagan to the U.S. Senate (Jan. 29, 1987), reprinted in Agora: U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims, 81 Am. J. Int’l L. 910 (1987).

[44] IG, supra note 2, at 22.

[45] See, e.g., W. Hays Parks, Air War and the Law of War, 32 A.F. L. Rev. 1, 143 (1990).

[46] IG, supra note 2, at 23.

[47] See id. n.20.

[48] Id. at 46.

[49] Id. at 24.

[50] Yoram Dinstein labels these conflicts “horizontally mixed”. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict 14–15 (2004). See also Christopher Greenwood, International Law and the “War Against Terror”, 78 Int’l Affairs 301, 309 (2002); Christopher Greenwood, The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia, 2 Max Planck Y.B. of United Nations Law 97, 117 (1998).

[51] The International Court of Justice addressed this situation in the Nicaragua Case. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 ¶ 115 (June 27). Also, in Tadic, the International Criminal Tribunal for the Former Yugoslavia (ICTY) held that “for the attribution to a State of acts of these groups it is sufficient to require that the group as a whole be under the overall control of the State. . . . [I]t must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity.” Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Judgment, ¶¶ 120, 131 (July 15, 1999). The ICTY distinguished its holding on this point from that in the Nicaragua Case, where the ICJ had set a higher standard: effective control. If a state assists the government in a non-international armed conflict, even to the point of providing combat troops, the conflict remains non-international in nature.

[52] Tadic, Case No. IT-94-1-A, Appeals Judgment, ¶ 162.

[53] ICRC, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War 57 (Jean S. Pictet, ed.) (1960).

[54] Id. at 36.

[55] The Trial Chamber in Tadic clearly recognized the independent significance of membership when considering whether “acts taken against an individual who cannot be considered a traditional ‘non-combatant’ because he is actively involved in the conduct of hostilities by membership in some form of resistance group can nevertheless constitute crimes against humanity.” Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, ¶ 639 (May 7, 1997) (emphasis added).

[57] Id. at 32–33.

[58] Id. at 35.

[59] Id.

[60] See Adam Roberts, The Equal Application of the Laws of War: A Principle Under Pressure, 90 Int’l Rev. of the Red Cross 931 (2008) (on the issue of creating differing legal regimes for those on the battlefield).

[61] Id.

[62] See CIHL, supra note 28, at 23–24. The application of the rule has been subject to important qualifications. See, e.g., UK Statement upon Ratification, ¶ (h), Jan. 28, 1998, available at http://www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument (noting the obligation of a commander to protect his or her forces); UK Manual, supra note 34, § 5.3.4.

[63]AP I, supra note 10, art. 50.1.

[64] GC III, supra note 7, art. 17.

[65] Id. art 3.

[66] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 629 (Sept. 2, 1998); NIAC Manual, supra note 29, § 1.1.2 (discussion). The Rome Statute employs the term “direct” in referring to the concept in both international and non-international armed conflict. Rome Statute, supra note 28, arts. 8.2(b)(i), 8.2(e)(i).

[67] Thus, as used in treaties, it must be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155 U.N.T.S. 331.

[68] As noted in the ICRC Commentary to Article 51.3, “There should be a clear distinction between direct participation in hostilities and participation in the war effort. The latter is often required from the population as a whole to various degrees. Without such a distinction the efforts made to reaffirm and develop international humanitarian law could become meaningless. In fact, in modern conflicts, many activities of the nation contribute to the conduct of hostilities, directly or indirectly; even the morale of the population plays a role in this context.” ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 ¶ 1945 (Yves Sandoz et al. eds., 1987) [hereinafter AP Commentary]. See also id. ¶ 1679; Prosecutor v. Strugar, Case No. IT-01-42-A, Appeals Judgment, ¶¶ 175–76 (July 17, 2008); Third Report on the Human Rights Situation in Colombia, Inter-Am. C.H.R., OEA/Ser.L/V/II.102, doc. 9 rev. ¶ 1, Ch. IV, ¶ 56 (1999).

[69] UK Manual, supra note 34, § 5.3.3.

[70] NWP 1-14M, supra note 28, § 8.2.2.

[71] Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, ¶ 616 (May 7, 1997).

[72] AP Commentary, supra note 68, ¶ 1944. See also Prosecutor v. Galic, Case No.IT-98-29-T, Judgment, ¶ 48 (Dec. 5, 2003); Strugar, Case No. IT-01-42-A, (Appeals Judgment), ¶ 178.

[73] AP Commentary, supra note 68, ¶ 1679.

[74] For instance, gathering strategic intelligence would generally not be direct, whereas collecting tactical intelligence would qualify. Similarly, preparing an aircraft for a particular combat mission would qualify, while performing scheduled depot level maintenance would not. Schmitt, supra note 4, at 534.

[75] IG, supra note 2, at 46.

[76] See Michael N. Schmitt, Deconstructing Direct Participation in Hostilities: The Constitutive Elements, 42 N.Y.U. J. Int’l L. & Pol. (forthcoming 2010) (for an analysis focusing specifically on the constitutive elements and problems therewith).

[77] “‘Attacks’ means acts of violence against the adversary, whether in offence or in defence.” AP I, supra note 10, art. 49.1.

[78] IG, supra note 2, at 49.

[79] IG, supra note 2, at 50.

[80] AP I, supra note 10, art. 49.

[81] IG, supra note 2, at 49 (citing Diplomatic Conference of 1974–77, CDDH/II/SR.11, at 93f).

[82] Prosecutor v. Galic, Case No.IT-98-29-T, Judgment, ¶ 27 (Dec. 5, 2003); Prosecutor v. Strugar, Case No. IT-01-42-T, Judgment, ¶¶ 282, 289 (Jan. 31, 2005).

[83] AP Commentary, supra note 68, ¶ 1679 (noting, in the context of an international armed conflict, that “[d]irect participation in hostilities implies a direct casual relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place”); id. ¶ 4787 (explaining in the context of a non-international armed conflict that the notion of direct participation “implies that there is a sufficient casual relationship between the act of participation and its immediate consequences”).

[84] Schmitt supra note 4, at 533; DPH Project, Summary Meeting Report 11, 25 (2004), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/2004-07-report-dph-2004-icrc.pdf [hereinafter DPH Project (2004)]; DPH Project, Summary Meeting Report 28, 34 (2005), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/2005-09-report-dph-2005-icrc.pdf [hereinafter DPH Project (2005)].

[85] IG, supra note 2, at 55.

[86] Id. at 53.

[87] Id. at 54–55.

[88] Id. at 56.

[89] Id. at 57.

[90] See DPH Project (2004), supra note 84, at 6; DPH Project, Summary Meeting Report 44 (2006), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/2006-03-report-dph-2006-icrc.pdf [hereinafter DPH Project (2006)]; DPH Project, Summary Meeting Report 70 (2008), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/2008-05-report-dph-2008-icrc.pdf [hereinafter DPH Project (2008)]. On the issue generally, see Michael N. Schmitt, Human Shields in International Humanitarian Law, 47 Colum. J. Int’l L. 292 (2009). For a review of commentary on the subject, see Rewi Lyall, Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States, 9 Melb. J. Int’l L. 313 (2008). In the Targeted Killings Case, the Israeli Supreme Court held that voluntary human shields were direct participants, while involuntary human shields were not. HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) [2006] IsrSC 57(6) 285 ¶ 36.

[91] It is common in modern conflict for a party to use “lawfare”, the use of law as a “weapon” by creating the impression, correct or not, that an opponent acts lawlessly. On lawfare, see Charles Dunlap Jr., Law and Military Interventions: Preserving Military Values in 21st Century Conflicts (Harvard Univ. Carr Ctr., Working Paper, 2001).

[92] U.S. joint doctrine defines economy of force as the “judicious employment and distribution of forces. It is the measured allocation of available combat power to such tasks as limited attacks, defense, delays, deception, or even retrograde operations to achieve mass elsewhere at the decisive point and time.” Joint Chiefs of Staff, Joint Operations, (Joint Publ’n 3-0) A-2 (2008).

[93] IG, supra note 2, at 58. The criterion of belligerent nexus should not be confused with the requirement of nexus to an armed conflict for the purpose of qualifying as a war crime. See, e.g., Prosecutor v. Kunarac, Case No. IT-96-23 & 231A, Appeal Judgment, ¶ 58 (June 12, 2002); Prosecutor v. Rutaganda, Case No. ICTR-96-3, Appeal Judgment, ¶ 570 (May 26, 2003).

[94] DPH Project (2005), supra note 84, at 9, 26, 34, 66; DPH Project (2006), supra note 89, at 50; DPH Project (2008), supra note 89, at 66.

[95] Targeted Killings Case, IsrSC 57(6), at ¶ 38. See also Prosecutor v. Blaskic, Case No. IT-95-14-A, Appeal Judgment, ¶ 157 (July 29, 2004).

[96] IG, supra note 2, at 65.

[97] AP Commentary, supra note 68, ¶¶ 1943–44.

[98] Id. ¶ 4789.

[99] IG, supra note 2, at 65.

[100] AP I, supra note 10, art. 44.3. “Combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.” Id. A combatant is also obliged to carry arms openly, “during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.” Id. art. 44.3.b.

[101] AP Commentary, supra note 63, ¶ 1714.

[102] IG, supra note 2, at 66.

[103] Id. at 67.

[104] See, e.g., Yoram Dinstein, Distinction and the Loss of Civilian Protection in Armed Conflict, in 84 International Law Studies 183, 189-90 (Michael D. Carsten ed., 2008), reprinted in 38 Isr. Y.B. Hum. R. 1 (2008); See also Kenneth H. Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 Am. J. Int’l L. 1, 17 (2004).

[105] IG, supra note 2, at 70.

[106] The United States District Court for the District of Columbia addressed the question of status as a member of an organized armed group in a 2009 habeas corpus proceeding involving a Guantanamo detainee. See Al Ginco v. Obama, 626 F. Supp. 2d 123 (2009). The district court held that “[t]o determine whether a pre-existing relationship sufficiently eroded over a sustained period of time, the Court must, at a minimum, look to the following factors: (1) the nature of the relationship in the first instance; (2) the nature of the intervening events or conduct; and (3) the amount of time that has passed between the time of the pre-existing relationship and the point in time at which the detainee is taken into custody.” Id. at 129. The court found the prior relationship with al Qaeda/Taliban to have been severed. Id. at 15.

[107] IG, supra note 2, at 74; DPH Project (2005), supra note 84, at 44, 67; DPH Project (2006), supra note 89, at 70.

[108] Rome Statute, supra note 28, art. 32.

[109] See International Criminal Court, Elements of Crimes arts. 8(2)(b)(i), 8.2(e)(i), U.N. Doc. PCNICC/2000/1/Add.2 (2000). For commentary, see generally Knut Dormann, Elements of War Crimes under the Statute of the International Criminal Court: Sources and Commentary (2002).

[110] See AP I, supra note 10, art. 57.2(a)(i); CIHL, supra note 28, at rule 16; UK Manual, supra note 34, § 5.32.2.

[111] See AP I, supra note 10, art. 57.2(b); CIHL, supra note 28, at rule 19.

[112] IG, supra note 2, at 77

[113] IG, supra note 2, at 77. Use of the term “actually” is problematic for it introduces an objective test that would not account for situations in which such force reasonably appeared necessary in the circumstances, but which later proved unnecessary. However, this point is not developed here because the overall approach taken by the Interpretive Guidance is more generally flawed.

[114] IG, supra note 2, at 78–82 .

[115] UK Manual, supra note 34, § 2.2.

[116] Id. § 2.4.

[117] Id. § 2.1. The others are humanity, distinction, and proportionality.

[118] AP I, supra note 10, art. 57.3.

[119] Id. art. 57.2(c).

[120] Id. art. 52.2 (emphasis added).

[121] As an example, GC IV, supra note 32, art. 53, provides that “[a]ny destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

[122] UK Manual, supra note 34, § 2.4.1.

[123] AP I, supra note 10, arts. 41(c), 51.

[124] IG, supra note 2, at 82.

[125] AP I, supra note 10, art. 41(b).

[126] See McCann v. United Kingdom, 21 Eur. Ct. H.R. 97, ¶ 236 (1995). In McCann, the European Court of Human Rights held that “the use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk.” See also HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) [2006] IsrSC 57(6) 285 ¶ 40 (“[I]f a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed” (citing Mohamed Ali v. Public Prosecutor 1 A.C. 430 (1969)).

[127] Of course, the treaty or norm in question must be intended to apply to armed conflict.

[128] Legality of the Threat or Use of Nuclear Weapons (Nuclear Weapons Case), Advisory Opinion, 1996 I.C.J. 226 ¶ 25 (July 8). On the applicability of human rights law in armed conflict, see, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, 2004 I.C.J. 136 ¶¶ 105–106 (July 9); Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116 ¶ 216 (Dec. 19).

[129] On the restrictive nature of engagements in a counterinsurgency, see, e.g., U.S. Army & U.S. Marine Corps, Counterinsurgency, USA FM 3-24 & USMC Warfighting Pub. 3-33.5 (2006). For a discussion in the context of the hostilities in Afghanistan, see Michael N. Schmitt, Targeting and International Humanitarian Law in Afghanistan, 39 Isr. Y.B. Hum. R. 99 (2009).

[130] IG, supra note 2, at 7.

By Mat Trachok, NSJ Staff Editor -

On April 19th, Professors Jack Goldsmith and Phil Heymann of Harvard Law School debated what the Obama administration should do with alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM).  According to both Goldsmith and Heymann, the United States has three options available: it can try KSM before a military commission, it can try him in a civilian court, or it can continue to hold him in military detention.  Both professors agreed that trying KSM before a military commission was the worst option.  However, they also agreed that trying him in a civilian court was not a much better option.  In the end, both argued for what they consider to be the least-bad option available: Heymann argued that the United States should try KSM in a civilian court or extradite him, and Goldsmith argued that the United States should continue to hold KSM in military detention.

Goldsmith and Heymann agreed that trying KSM before a military commission would be the worst of the three approaches.  According to both professors, military commissions do not offer any benefits that would not be available in a civilian trial.  First, while the procedural differences of military commissions (e.g., the admissibility of hearsay evidence) favor prosecutors, both Goldsmith and Heymann expressed certitude that KSM would be convicted in a civilian trial.  Second, while trying KSM on a military base would be safer than trying him in an urban area, it is possible to hold a civilian trial on a military base (provided the base was within the appropriate venue).

In addition to not offering any special benefits, trying KSM before a military commission would be costly for the United States in three ways.  First, as both Goldsmith and Heymann pointed out, the United States’ democratic allies, the Muslim world, and the American Left see military commissions as illegitimate show trials.  Second, both Goldsmith and Heymann agreed that any military commission trying KSM would be hampered by endless appeals over novel legal issues.  Finally, Heymann argued that trying suspects before a military commission at will would create a slippery slope: it is unclear who would decide whether future suspects were to entitled to a full trial or not and what criteria such decisions would be based on.

Goldsmith and Heymann also agreed that trying KSM in a civilian court would not be much better than trying him before a military commission because the world would not view a civilian trial as substantially more legitimate.  Both noted that because the Obama administration chose which suspects to try in civilian courts based on ease of conviction and because the administration has insisted that, even if KSM were acquitted, he would not be released, it would be easy to criticize any trial as a show trial.  Heymann also argued that because over half of the world’s Muslim population does not believe that al-Qaeda was responsible for the 9/11 terrorist attacks, even the best trial would appear illegitimate to many in the Muslim world.

In spite of the costs associated with a civil trial, Heymann argued that the United States should try KSM in a civilian court and hope that he enters a proud guilty plea.  Heymann believes that only a guilty plea would convince the majority of the world’s Muslim population that al-Qaeda was behind the terrorist attacks on 9/11.  He further argued that if the Obama administration does try KSM in a civilian court, it should allow the judge to extend the Speedy Trial Act to allow the government three to five years within which to gather useable evidence (i.e., evidence not obtained through coercive interrogation).  If the government cannot find such evidence, Heymann continued, the United States should extradite KSM to a country that would be willing to detain him.

While Goldsmith agreed with Heymann that a guilty plea by KSM would be useful to the United States, he pointed out that, toward the end of President Bush’s second term, KSM offered to enter a guilty plea before a military commission, but was denied the opportunity when the current administration decided to transfer his to a federal district court.  According to Goldsmith, KSM no longer appears willing to enter such a plea, and it seems unlikely that he will ever offer to do so again.

Goldsmith concluded that the least-bad option available to the Obama administration is continued military detention.  He argued that because the United States is at war with al-Qaeda, there is no doubt that it would be lawful under both domestic and international law to detain KSM until the end of that war, even though KSM will likely die before that day comes.  Goldsmith admitted that there are legitimacy problems with continuing to hold KSM without a trial, but he pointed out that all three options available to the United States have similar legitimacy problems.  He argued that the benefits of continued military detention lie in its entailment of fewer political costs and difficulties than the other two options.

Although Goldsmith argued that continued military detention was the least-bad option available, he also stated that he believes that the administration will choose to try KSM.  And if it does so, he agreed with Heymann that it should try him in a civilian court.

Image courtesy of Christopher Dydyk, © 2010

Washington and New Delhi last week announced the successful completion of a nuclear agreement granting India rights to reprocess nuclear fuel imported from the United States, moving the two countries one step closer to implementing a historic civilian nuclear deal that has become the centerpiece of the widely touted U.S.-India “strategic partnership.”  The accord provides a much needed boost to bilateral relations between the world’s oldest and largest democracies, which have shown some signs of strain amid concerns from officials in New Delhi that the Obama administration was downgrading its relationship with India in order to ensure continued Pakistani support for Obama’s Af/Pak strategy.

The reprocessing pact is part of the larger, landmark U.S.-India civilian nuclear deal signed by the two countries in 2008 following three years of intense negotiations.  Although India has refused to sign the Non-Proliferation Treaty (NPT), the deal effectively lifts a thirty-four year moratorium on nuclear commerce with New Delhi, originally imposed on India following its first round of nuclear tests in 1974.  Without any domestic uranium reserves of its own, India must import uranium for its nuclear reactors which it will finally be able to do from the United States.  Under the latest accord, India joins an elite club with just two other international parties that Washington currently permits to reprocess its spent nuclear fuel: Japan and a handful of European countries.

While the agreement allows India to finally import and reprocess spent nuclear fuel, the accord mandates that India establish a dedicated reprocessing facility for spent fuel under International Atomic Energy Agency (IAEA) safeguards.  That reprocessing will be conducted under IAEA supervision and not directly by the United States highlights Washington’s sensitivity to India’s traditional concerns surrounding the sovereignty of its nuclear program.

The timing of the reprocessing pact is significant for several reasons.  First, the announcement came almost immediately on the heels of the U.S.-Pakistani “strategic dialogue” last week which aimed to shore up continued Pakistani support for the Obama administration’s efforts to stabilize the faltering war in Afghanistan.  The reprocessing agreement underlines the privileged and unique position India enjoys with Washington with regard to its nuclear program and stands in stark contrast to the cool response Islamabad received from American officials to its request for a nuclear deal akin to the one granted to India.

Second, the agreement was announced just weeks after New Delhi and Moscow reaffirmed their own strategic ties.  The two former Cold War allies signed massive arms and nuclear deals worth billions of the dollars.  The red-carpet welcome New Delhi rolled out for Russian Prime Minister Vladimir Putin was partially aimed at catching Washington’s attention and reminding the United States that India is ready to pursue robust partnerships with other powers if Washington’s attention is focused elsewhere.

Finally, Washington completed the reprocessing accord just two weeks before the Obama administration is scheduled to host an international summit on nuclear security.  The agreement serves to underscore Washington’s acceptance of India’s special nuclear status at a time when President Obama has made strengthening the nuclear non-proliferation regime a top priority of his administration and recently signed a historic nuclear-arms reduction agreement with Russia.

The nuclear deal will prove to be lucrative for American energy firms eager to capture their own share of India’s $150 billion nuclear energy market.   As Timothy Roemer, U.S. Ambassador to India, pointed out in the statement announcing the agreement that “these arrangements will help open the door for U.S. firms in India’s rapidly expanding energy sector, creating thousands of jobs for the citizens of both our countries.”

Although the reprocessing pact removes a key obstacle in the implementation of the U.S.-India civilian nuclear deal, other hurdles remain.  The United States is waiting for India to pass and enact legislation granting private American energy companies civil liability protection in case of a nuclear accident.

The accident-liability legislation has proven controversial in India.  While the Indian cabinet has already approved the legislation, Prime Minister Manmohan Singh has been unable to introduce a bill in Parliament.  India’s main opposition parties, which previously opposed the U.S.-India civilian nuclear deal on the grounds that it unduly sacrificed India’s nuclear sovereignty to the United States, have vowed to block any liability legislation.  American energy companies are hesitant to do business in India without legislation that guarantees their compensation liability in the event of a nuclear accident.

Final passage of the U.S.-India civilian nuclear deal also obligates New Delhi to submit a non-proliferation assurance to Washington stating that it will not transfer proprietary materials and technologies to third parties.  The non-proliferation pledge constitutes a licensing requirement that governs all commercial nuclear exports.

The successful completion of the reprocessing agreement should serve to reassure officials in New Delhi who may have questioned President Obama’s commitment toward implementing the U.S.-India nuclear deal.  At a time when Washington’s intense focus on Afghanistan and Pakistan has prompted growing concern in New Delhi that the Obama administration is “re-hyphenating” its foreign relations with India and Pakistan, the latest nuclear accord is a welcome – and much needed – development for U.S.-India relations.

This article is cross-posted at the Atlantic Council’s website.

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The Justice Department, in an attempt to bolster its argument that suspected terrorists can be tried in civilian courts, released a report earlier this month that includes a chart detailing over 400 convictions of terrorists obtained in such courts.  But this effort has not halted GOP criticism of the wisdom of civilian trials for terrorists.

The Justice Department’s report is part of an effort to push back against Republican opposition to the decision to try 9/11 mastermind Khalid Sheikh Mohammed (KSM) in a civilian court in New York City.  The chart purports to demonstrate the U.S. government’s proven success in trying terrorists in civilian courts; the Justice Department contends that it has obtained even more convictions than those listed, as it does not include ones that remain under seal or that solely involved domestic terrorism.

Republicans remain unsatisfied.  Senator Jeff Sessions, Ranking Member on the Senate Judiciary Committee, responded that the vast majority of convictions involve document fraud and immigration violations, a far cry from the crimes with which KSM will likely be charged.  Sen. Sessions’s comments focused on the trial of Zaccarias Moussaoui, the so-called “20th hijacker”, which, he contends, was “fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared [Moussaoui] the death penalty.”  Such problems will be experienced in future terrorism trials, according to Sessions.  He continues to call for the use of military commissions, as he believes they are “consistent with our laws, history, security, and values . . . .”

Image courtesy of the Associated Press