A Toolbox for the Application of the Rules of Targeting [1 ed.] 9781443889544, 9781527509030

Citation preview

A Toolbox for the Application of the Rules of Targeting

A Toolbox for the Application of the Rules of Targeting

By

Tetyana (Tanya) Krupiy

A Toolbox for the Application of the Rules of Targeting By Tetyana (Tanya) Krupiy This book first published 2016 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2016 by Tetyana (Tanya) Krupiy All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-8709-9 ISBN (13): 978-1-4438-8709-0

This book is dedicated to my parents

TABLE OF CONTENTS

List of Figures and Tables ......................................................................... xii Table of Treaties and other International Acts ......................................... xiii Table of Cases ........................................................................................... xv Acknowledgments .................................................................................... xix List of Abbreviations ................................................................................. xx Chapter One ................................................................................................. 1 Introduction Chapter Two .............................................................................................. 11 How Military Commanders Go About Planning a Military Operation 1. The Nature of the Military Goals 2. The Building Blocks of a Military Operation 2.1. Intelligence Collection A. The Ameriyya Air Raid Shelter Incident B. High-Altitude Flying C. The Decapitation Strikes D. Drones and Upcoming Technologies 2.2. Means of Warfare and Employment of Firepower 2.2.1. The Characteristics of Materiel A. Tanks and Infantry Fighting Vehicles B. Artillery C. Mortars D. Drones, Aircraft, Helicopters E. The Role of Precision Capabilities 2.2.2. How Commanders Decide which Assets to Pair Together 2.2.3. The Implication of the Choice of Materiel for Civilians 2.2.4. Choice of Materiel and Stages of a Military Operation 2.3. Movement and Manoeuvre 2.3.1. The Relationship between Manoeuvre and Force Protection 2.3.2. Balancing the Employment of Firepower with Movement

viii

Table of Contents

2.4. Additional Measures Commanders may take to Reduce Harm to Civilians 2.5. Force Protection 3. Conclusions Chapter Three ............................................................................................ 56 An Introduction to the Rules of Targeting 1. The Principle of Distinction 2. The Rule of Target Verification 3. The Principle of the Least Feasible Damage 4. The Principle of Proportionality 5. An Obligation of Risk Assumption in IHL 5.1. The Position of States on Force Protection 5.2. The Rule of Target Verification: Establishing a Duty of Risk Assumption 5.3. Risk Assumption in the Context of Means and Methods of Warfare 5.3.1. The Principle of Proportionality versus the Principle of the Least Feasible Damage 5.3.2. How Much Risk to Assume? 6. The Duty to Issue an Advance Warning of the Attack 6.1. The Meaning of the Term “Effective” 6.2. How Far in Advance Commanders should Issue a Warning 6.3. The Meaning of the Term “unless circumstances do not permit” 7. To Whom the Rules of Targeting are Addressed 8. Conclusions Chapter Four ............................................................................................ 124 The Practical Application of the Rules of Targeting: A Legal Ambiguity 1. The Rule of Target Verification 1.1. How Drafters Envisaged the Rules in Art. 57 API 1977 1.2. Criteria Developed by Scholars 1.3. Testing the Value of the Criteria proposed by Scholars A. The Ameriyya Air Raid Shelter Incident B. Decapitation Strikes 2. The Principle of the Least Feasible Damage 3. The Principle of Proportionality 4. The Duty to Issue an Advance Warning of the Attack 4.1. The Drafting of the Rule in Art. 57(2)(c) API 1977 4.2. Goldstone’s Restatement of the Traditional Test

A Toolbox for the Application of the Rules of Targeting

ix

4.3. Refining Goldstone’s Test 5. A Theoretical Explanation for the Ambiguity in the Law 6. The Hypothesis 7. Conclusions Chapter Five ............................................................................................ 173 Drawing the Line: The Degree of Certainty Required by the Principle of Distinction 1. Why There Is So Much Uncertainty around the Required Degree of Certainty 2. Investigating the Degree of Certainty Required by the Principle of Distinction 2.1. Evidential Standards of Proof 2.2. The Issue of the Linkage between Standards of Proof and their Context 2.3. The “Beyond Reasonable Doubt” Standard 2.4. “Beyond Reasonable Doubt” Standard v. State Practice A. Ameriyya Air Raid Shelter Incident B. NATO’s Conduct in Libya C. Israel’s Standard of Certainty D. Cumulative Analysis of State Practice 2.5. The Value of the “Beyond Reasonable Doubt” Standard for International Humanitarian Law 2.6. Constructing a Scale 2.7. The Contribution of the Scale 3. Target Characteristics versus the Degree of Required Certainty 4. The Interplay between Operational Factors 4.1. The Roles Played by the Four Operational Variables A. Urgency B. Force Protection C. Intelligence D. Error through Targeting 4.2. Examining how the Four Variables Relate to Each Other 4.3. How the Four Variables Interact A. Israeli State Practice B. The U.S. State Practice B.1. The Decapitation Strikes B.2. The Ameriyya Air Raid Shelter Incident C. Findings 5. Conclusions

x

Table of Contents

Chapter Six .............................................................................................. 232 A Toolbox for the Application of the Rule of Target Verification 1. An Examination of how Military Commanders Balance the Three Elements A. State Practice of Russia in Chechnya B. State Practice of Israel C. NATO Attack on the Djakovica Convoy D. State Practice of the United States of America E. The Eritrea-Ethiopia Claims Commission 2. A Framework for the Application of the Rule 2.1. Applying the Insights to a Battlefield Scenario 2.2. Answering some Outstanding Questions 3. Conclusions Chapter Seven.......................................................................................... 283 A Toolbox for the Application of the Principle of the Least Feasible Damage 1. Constructing a Scale for the Spectrum of Harm and Military Advantage 1.1. Defining the Element of the Magnitude of Harm to Civilians 1.2. Defining the Element of the Likelihood of Civilian Harm 1.3. Defining the Element of Military Advantage 1.4. Tables for the Three Elements 1.5. The Rationale for the Chosen Values for the Scale 2. Analysis of State Practice A. The State Practice of Philippines A.1. Mortars and Artillery A.2. Air Bombing B. The State Practice of Russia in Georgia C. The State Practice of Israel on the Employment of Mortars D. The State Practice of Georgia E. The State Practice of Israel on the Use of White Phosphorus 3. The Relationship between the Three Elements 3.1. The Relationship of the Element of Military Advantage to other Elements 3.2. The Element of Magnitude of Harm to Civilians: Degree of Care and Objects Entitled to Special Protection 3.3. The Relationship of the Element Likelihood of Civilian Harm to the Elements of Military Advantage and Magnitude of Harm to Civilians

A Toolbox for the Application of the Rules of Targeting

xi

3.4. The Relationship between the Elements of Military Advantage, Likelihood of Civilian Harm and Magnitude of Harm to Civilians 4. Conclusions Chapter Eight ........................................................................................... 342 The Duty to Issue an Advance Warning of the Attack: Perspectives from Psychology 1. The Mechanism behind Making an Assessment when Issuing a Warning of an Attack may “Seriously Compromise” the Chances on Winning 2. The Role of the Military Commander’s Personality 3. The Influence of Mental Templates on the Decision-Making of a Commander 3.1. The Mental Template of “Availability” 3.2. The Mental Template of “Representativeness” 3.3. The Mental Template of “Adjustment and Anchoring” 4. Insights regarding how Military Commanders Apply the Goldstone’s Formulation of the Rule 5. Explaining the Influence of Policy Considerations using the “Social Amplification Theory” 6. Conclusions Chapter Nine............................................................................................ 387 Conclusion Bibliography ............................................................................................ 405 Index ........................................................................................................ 440

LIST OF FIGURES AND TABLES

Figure 5-1 Scale indicating degrees of certainty Table 7-1 Table for the element magnitude of harm to civilians Table 7-2 Table for the element likelihood of civilian harm Table 7-3 Table for the element military advantage Table 9-1 Table for the element magnitude of harm to civilians Table 9-2 Table for the element likelihood of civilian harm Table 9-3 Table for the element military advantage

LIST OF TREATIES AND OTHER INTERNATIONAL ACTS

1907 The Hague Convention No. IV of 18 October 1907, Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 36 Stat. 2227, Treaty Ser. No. 539 1907 The Hague Convention No. IX of 18 October 1907, Concerning Bombardment by Naval Forces in Time of War, 36 Stat. 2351, Treaty Ser. No. 542 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287 (1949) 1969 Vienna Convention on the Law of Treaties 1969, [1987] 1155 U.N.T.S. 331 (1969) 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), [1979] 1125 U.N.T.S. 3 (1977) 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol II), [1979] 1125 U.N.T.S. 609 (1977) 1980 Protocol II on Prohibitions of Restrictions on the Use of Mines, Booby-traps and Other Devices to the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects, [2001] 2048 U.N.T.S. 93 (1996) 1980 Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons to the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional

xiv

List of Domestic Legislation

Weapons Which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects, [1992] 1342 U.N.T.S. 137 (1983) 2008 Convention on Cluster Munitions 2008, [2010] 2688 U.N.T.S. 39 (2008)

Legislation of the European Union European Commission Regulation (E.C.) 1033/2008 on the Control of Concentrations Between Undertakings, Official Journal L279/3 (2008)

List of Domestic Legislation Code d’Instruction Criminelle (Criminal Code), Publication 27-11-1808, Dossier No. 1808-11 17/20 (Belgium 1878) Code d’Instruction Criminelle (Criminal Code), Law n° 2000-516, Article 1 Official Journal, June 16, 2000 (France June 16, 2000) Zivilprozessordnung I 1 (Civil Procedure Statute), Bundesgestzblatt, Teil I 3202 (Germany December 5, 2005) Strafprozessordnung (Code of Criminal Procedure), Bundesgestzblatt, Teil I 2149, 31 October 2008 (Germany April 7, 1987) Ley de Enjuiciamiento Criminal (Criminal Procedure Statute), Gazette (Spain September 14, 1882)

LIST OF CASES International Courts and Tribunals European Court of Justice Commission v. Tetra Laval (“Tetra Laval II”), Case C-12/03 P, ECR I1113, Judgment (European Court of Justice February 15, 2005)

Eritrea-Ethiopia Claims Commission Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea, Partial Award Central Front (The Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission April 28, 2004)

European Court of Human Rights Isayeva v. Russia, Application No. 57950-00, Judgment (European Court of Human Rights February 24, 2005)

International Criminal Tribunal for Former Yugoslavia Prosecutor v. Blaškiü, Case No. IT-95-14-T T. Ch., Judgment (International Criminal Tribunal for the former Yugoslavia March 3, 2000) Prosecutor v. Galiü, IT-98-29-T T. Ch. I., Judgment (International Criminal Tribunal for the former Yugoslavia December 5, 2003) Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch. I., Judgment (International Criminal Tribunal for the former Yugoslavia April 15, 2011) Prosecutor v. Karadžiü and Mladiü, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, IT-95-5-R61 T. Ch. I, Judgment (International Criminal Tribunal for the former Yugoslavia July 11, 1996) Prosecutor v. Kordiü & ýerkez, IT-95-14/2-T T. Ch., Judgment (International Criminal Tribunal for the former Yugoslavia February 26, 2001)

xvi

List of Cases

Prosecutor v. Kupreškiü et.al., Case No. IT-95-16-T T. Ch. II, Judgment (International Criminal Tribunal for the former Yugoslavia January 14, 2000)

International Criminal Tribunal for Rwanda Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-S, Sentencing Judgment (International Criminal Tribunal for Rwanda November 17, 2009)

International Criminal Court Prosecutor v. Thomas Lubanga Dyilo, Case No. ICCͲ01/04Ͳ01/06 Trial Chamber I, Hearing to Deliver the Decision Pursuant to Article 76 (International Criminal Court July 10, 2012)

International Court of Justice Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2003, p. 136 Democratic Republic of the Congo v. Rwanda, Jurisdiction and Admissibility, I.C.J. Reports 2006, p. 126 Guinea-Bissau v. Senegal (Arbitral Award of 31 July 1989), Judgment, I.C.J. Reports 1992, p. 8 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 88 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Merits, Judgment, I.C.J. Reports 1969, p. 45

A Toolbox for the Application of the Rules of Targeting

xvii

Domestic Courts and Tribunals Canada R. v. David Brocklebank, File No. CMAC-383, Judgment (Court Martial Appeal Court, Canada April 2, 1996)

United Kingdom Henry Walters (Appellant) v. The Queen, [1969] 2 W.L.R. 60 (The Privy Council, United Kingdom) Regina v. Abdul Majid [2009] E.W.C.A. Crim. 2563 (The Court of Appeal, Criminal Division, United Kingdom) R v. Alan Edwards Stephens [2002] E.W.C.A. Crim. 1529 (The Court of Appeal, Criminal Division, United Kingdom) Re. Vandervell’s Trusts (No.2) [1974] Ch. 308, 322 (The Court of Appeal, United Kingdom)

Israel Public Committee Against Torture in Israel v. Government of Israel, Case No. HCJ 769/02, Judgment, par. 46 (The Supreme Court, Israel December 11, 2005) Yoav Hess et al v. Chief of Staff, Case No. HCJ 4146/11, Judgment (The Supreme Court, Israel July 9, 2013)

Pakistan Foundation for Fundamental Rights v. Federation of Pakistan, Case No. 1551-P/2012, Judgment (Peshawar High Court, Pakistan March 11, 2013)

Russia Decision of the Constitutional Court of the Russian Federation on the Constitutionality of Presidential Decree No. 2137 of 30 November 1994 on Measures for the Restoration of the Constitution and the Rule of Law on the Territory of the Chechen Republic, of Presidential Decree No. 2166

xviii

List of Cases

of 9 December 1994 on the Repression of the Activities of Illegal Armed Units within the Territory of the Chechen Republic and in the Zone of the Ossetino-Ingushetian Conflict, of Resolution No. 1360 of 9 December 1994 on Ensuring the Security and Territorial Integrity of the Russian Federation, the Principle of Legality, the Rights and Freedoms of Citizens, and Disarmament of Illegal Armed Units within the Territory of the Chechen Republic and Contiguous Regions on the Northern Caucasus, and of Presidential Decree No. 1833 of 2 November 1993 on the Basic Provisions of the Military Doctrine of the Russian Federation, Judgment (The Constitutional Court, The Russian Federation July 31, 1995)

United States of America Addington v. Texas 441 U.S. 418 (The Supreme Court, United States of America 1979) In the Interest of B.D.-Y. 187 P.3d. 594 (The Kansas Supreme Court, United States of America 2008) Victor v. Nebraska 511 U.S. 1 (The Supreme Court, United States of America 1994)

ACKNOWLEDGMENTS

I wish to express my gratitude to my parents. I would not have been able to write this book without your support. I would also like to thank my friends for accompanying me on my journey and for being there for me through difficult times. I am grateful to Felicity for telling me that stumbling in the dark is a sign of progress when I was lost. Joseph Jacob, thank you for being so caring about your students. Your encouragement was very important to me. I also wish to thank Jane for making a difference in my life. My supervisor Karen Hulme spent many hours reading my work and giving feedback. Your energy and enthusiasm helped me to persevere. I would moreover like to acknowledge the contribution of my examiners Geoff Gilbert and Marco Sassòli. Through giving constructive criticism, you enabled me to improve the quality of my work. Finally, I would like to thank my editors for being so caring and meticulous. Their names are Ron Fosker, Kevin Droz, Catherine Quirk, Sarah Stunden, Joel Verkaik and Marc Ducusin.

LIST OF ABBREVIATIONS

API 1977

Art.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 Article

CCW 1980

United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects 1980

Commander

Military Commander

Commentary to API 1977 “New Rules”

Book “New Rules for Victims of Armed Conflict”

Claims Commission

Eritrea-Ethiopia Claims Commission

HRW

Human Rights Watch

ICTY Committee

The Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia

ICRC Commentary to API 1977

International Committee of the Red Cross Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977

IHL

International Humanitarian Law

A Toolbox for the Application of the Rules of Targeting

xxi

ISIS

Islamic State of Iraq and al-Sham

Joint Circular

Joint Circular on Adherence to IHL and Human Rights of the Philippines

NATO

North Atlantic Treaty Organisation

Russian Academy

Russian Combined Armed Services Military Academy

U.N.

United Nations

U.N. Commission of Inquiry

United Nations Human Rights Council Commission of Inquiry

U.N. HRC

United Nations Human Rights Council

U.N. HRC Mission United Nations Human Rights Council Mission



CHAPTER ONE INTRODUCTION

In every armed conflict there have been military operations that generated disagreement among lawyers, non-governmental organisations, academics and in some cases tribunals regarding whether the armed forces complied with international humanitarian law in conducting a particular military operation. For instance, Israel said that it took all required precautions during Operation Cast Lead 2009 when it used white phosphorus to screen the movement of its troops,1 an obscurant which has toxic effects on civilians.2 The smoke munitions are an alternative to white phosphorus. The United Nations Mission, which was established to assess the legality of conduct in this armed conflict, found that it was unlawful for Israel to employ white phosphorus in close proximity to a hospital.3 Another area of controversy is the practice the Obama administration introduced in 2010 as part of its effort to target members of the Al Qaeda and Taliban overseas.4 Cavallaro, Sonnenberg and Knuckey question whether the practice of the United States of America of choosing targets on the basis of analysing patterns of activity using video footage relayed by unmanned aerial vehicles, known as drones, complies with the duty to take precautions in order to verify that the relevant individuals are in fact

 1

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects (Israel: Israel Ministry of Foreign Affairs, July 29, 2009), 148-149 paragraph 417-418. 2 Human Rights Watch, Rain of Fire: White Phosphorus in Gaza (New York: Human Rights Watch, 2009), 11-12. 3 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict Doc. A/HRC/12/48 (Geneva: United Nations, September 15, 2009), 146 par. 629. 4 David S. Cloud, “C.I.A. Drones Have Broader List of Targets,” Los Angeles Times, May 5, 2010, http://articles.latimes.com/2010/may/05/world/la-fg-dronetargets-20100506 (accessed April 12, 2011).



2

Chapter One

taking a direct part in hostilities.5 On the other hand, Blank argues that tracking and analysing daily activities of suspected militants improves the ability of the armed forces to comply with the law.6 Cavallaro, Sonnenberg and Knuckey reach a different conclusion from Blank because they interpret the legal obligations imposed by the rules of targeting differently. Another area of discussion has been what degree of doubt the principle of distinction permits attackers to have.7 The principle of distinction requires attackers to distinguish at all times between civilians and civilian objects on the one hand, and combatants and military objectives on the other hand.8 The discourse stems from the fact that although the principle of distinction is formulated as an unqualified obligation,9 in practice parties to the conflict are unable to achieve complete certainty. Ultimately, such disagreements are very difficult to resolve. States deliberately formulated the rules of targeting, other than the principle of distinction, in an open-ended fashion in order to ensure that the rules are well-suited to the nature of the battlefield.10 The commanders need to be

 5

Sarah Knuckey, James Cavallaro, and Stephen Sonnenberg, Living under Drones: Death, Injury and Trauma to Civilians from U.S. Drone Practices in Pakistan (Stanford Law School and New York University School of Law, September 2012), 114. 6 Laurie R. Blank, “After ‘Top Gun’: How Drone Strikes Impact the Law of War,” University of Pennsylvania Journal of International Law 33, no. 3 (2012): 693-694. 7 Afsheen John Radsan and Richard Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A. Targeted Killing,” University of Illinois Law Review 2011 (2011): 1224; Nils Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” International Review of the Red Cross 90, no. 872 (2008): 1039; Carla Crandall, “Ready...Fire...Aim! A Case for Applying Due Process Principles Before Engaging in Drone Strikes,” Florida Journal of International Law 24 (2012): 87-88; Geoffrey S. Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” SelectedWorks February (2011): 49, http://works.bepress.com/cgi/viewcontent.cgi?article=1005&context= geoffrey_corn. 8 Art. 48 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), [1979] 1125 U.N.T.S. 3 (1977) (hereinafter cited as API 1977). 9 Art. 48 API 1977. 10 Laurie R. Blank, “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law,”



Introduction

3

able to respond to the unfolding circumstances on the battlefield in a flexible fashion.11 The battlefield environment is intricate because many variables interact in a complex fashion to shape events that are unfolding on the battlefield. Karl von Clausewitz an influential military theorist,12 explains that the battlefield is characterised by uncertainty.13 The commanders act on the basis of intelligence, which varies in quality.14 The quality of the equipment the two sides have, the relative training and capability of troops, as well as the quality of munitions interact with each other.15 The commanders act under varying time pressures, will face terrain that is either advantageous for their plans or a hindrance, and may be operating under difficult weather conditions.16 Commanders may have fatigued troops and may have different types of materiel at hand, depending on the location of assets that can be called in to offer fire support.17 Commanders will, therefore, rely on experience and judgment in order to estimate how these variables will interact with each other in a “rapidly changing environment” of combat and what impact they will have on their chances of winning.18 Yet another source of uncertainty for the commander stems from the fact that a commander takes a risk in making assumptions about the current situation and in making prediction of how events on the ground are likely to unfold in the coming weeks and months.19 A commander does not know

 Emory University School of Law, Public Law & Legal Theory Research Paper Series 12, no. 186 (2011): 3. 11 Alexandra Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” Geneva Academy of International Humanitarian Law and Human Rights Research Paper Series 2 (2006): 37. 12 Karl von Clausewitz, Principles of War (London: Stephen Austin and Sons Ltd., 1943), 9-11. 13 Ibid., 51. 14 Blank, “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law,” 12-13. 15 Ibid. 16 Ibid. 17 Ibid. 18 United States Department of the Navy, Naval Doctrine Publication 6 Naval Command and Control (Washington, DC: Office of the Chief of Naval Operations, Headquarters United States Marine Corps, 1995), 25. 19 Milan Vego, Joint Operational Warfare: Theory and Practice, 2nd ed. (Newport: U.S. Naval War College, 2009), XIV-10.



4

Chapter One

how the enemy will act and react to the actions of the troops.20 Another difficulty is that commanders operate under conditions of limited resources.21 Vego explains that before launching an operation the attacker evaluates whether “a course of action…can be successfully carried out with the forces and resources available, within the constraints of the physical environment and in the face of extreme enemy opposition.”22

For this reason, commanders need to have a degree of flexibility in how to ration the limited resources. The environment, in which commanders apply the rules of targeting, illuminates why flexibility is a desirable quality for the targeting rules.23 Given this context, states formulated the rules of targeting, other than the principle of distinction, in such a way as to require commanders to exercise their judgment when applying the rules.24 They are to make decisions in “good faith.”25 The real difficulty, which scholars universally acknowledge, is that the rules of targeting as such do not specify how commanders are to exercise their judgment. For example, Blank comments that, “The correct standard in international humanitarian law [targeting rules] is amorphous and subjective in many instances, but it also fairly represents operational realities.”26

Sassòli, Bouvier and Quintin echo this comment, when they observe that the meaning of the obligations imposed by the rules of targeting in

 20

Ibid., XIII-48. Ibid., IX-48. 22 Ibid. 23 Blank, “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law,” 15. 24 Prosecutor v. Kupreškiü et.al., Case No. IT-95-16-T T.Ch.II, Judgment, par. 525 (International Criminal Tribunal for the former Yugoslavia January 14, 2000). 25 Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red Cross, 1987), 681 par. 2198. 26 Blank, “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law,” 7. 21



Introduction

5

practice remains controversial in many cases.27 Unfortunately, states have not disclosed the criteria that commanders employ to guide their application of the rules to battlefield scenarios. The states tend to keep secret information about what situation existed on the ground, how a commander conducted the military operation and why a commander made a particular decision.28 When speaking in diplomatic forums, states usually make abstract statements relating to the rules of targeting, even when they comment on whether a third state complied with the law on a particular occasion.29 If civilians are to fully benefit from the protection to which they are entitled under international humanitarian law, there must be greater clarity as to the criteria that commanders use in applying the rules of targeting to battlefield scenarios. There is considerable urgency for shedding light on this issue, not least because more civilians die when parties to a conflict do not take sufficient safeguards to spare them from the effects of hostilities. The information about how commanders deliberate will provide non-governmental organisations and practitioners with additional tools for scrutinising how parties to a conflict conducted military operations and for pressuring them to take more measures to protect civilians. Given the fact that new armed conflicts tend to erupt as older ones cease, the provision of guidance for how the rules of targeting apply to particular scenarios remains highly relevant. There is currently very little literature which, through studying state practice, develops a theoretical framework regarding how commanders balance military and humanitarian considerations in applying the rules of targeting. The book addresses this gap in scholarship. The book analyses the practice of states in order to break down the decision-making of commanders into the constitutive elements. It studies how commanders balance these elements in applying the rules of targeting. The book develops a framework that captures how commanders apply the targeting rules to battlefield scenarios. The practitioners may use this framework in order to analyse whether a commander planned a military operation in compliance with international humanitarian law. The

 27

Marco Sassòli, Antoine A. Bouvier, and Anne Quintin, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law Part I, vol. 1, 3rd ed. (Geneva: International Committee of the Red Cross, 2011), chap. 9 p. 25. 28 Ibid., chap. 4 p. 5. 29 Ibid.



6

Chapter One

book places an emphasis on identifying interconnections between the rules of targeting and on viewing the rules in terms of a mosaic. Along with clarifying the legal standard, the book engages with topical questions. For instance, Shaw expresses a concern that the Western states consistently prosecute military campaigns in such a way as to transfer risk from the armed forces onto the civilians.30 The book utilises state practice in order to critically engage with his theory and to establish whether Shaw is indeed correct, notably whether Western states are taking insufficient measures to protect civilians. It makes interesting discoveries, such as that the forces, in executing military operations, are under an obligation to assume risk in order to reduce danger to civilians. While the book examines the state practice of as many different states as can be explored, it tends to focus on the practice of Western states. This is due to the fact that countries such as the United States of America make more information available to the public than, for instance, China. Since the conduct of military operations is tightly linked to national security, this information is frequently classified. Another reason for the uneven coverage is that some states are involved in armed conflicts more frequently than others. For this reason, there is an imbalance of available information about the practice of different states. The book has the following structure. Since the chapters are interlinked, those readers who wish to consult material on a particular legal rule are advised to read chapter 2 and the relevant excerpts from chapters 3 and 4 in addition to the chapter, which is dedicated to a particular rule. Chapter 2 focuses on considerations that commanders bear in mind in planning military operations. While the discussion is necessarily non-legal, it provides a context against which commanders interpret and apply the targeting rules. In particular, the chapter looks at the building blocks of a military operation of intelligence collection, fires (weapons and materiel), movement and manoeuvre (tactics) and the protection of the force, in order to show the background against which commanders apply the rules of targeting. It explains the characteristics of different types of materiel and the relationship between firepower and manoeuvre. Different approaches to selecting weapons and tactics the armed forces employ, such as combined arms warfare and network centric warfare, are examined. The chapter demonstrates the tensions that commanders face, and the source of



30 Martin Shaw, The New Western Way of War: Risk-Transfer and Its Crisis in Iraq (Cambridge: Polity Press, 2005), 71.



Introduction

7

these tensions in determining how to overcome the enemy while complying with the law. In doing so, it sheds light on why the targeting rules impose qualified obligations on commanders, despite there being congruence between humanitarian aspirations of the targeting rules and military logic. Chapter 3 introduces the targeting rules. The targeting rules is an umbrella term for the principle of distinction, the rule of target verification, the principle of the least feasible damage, the principle of proportionality and the warnings requirement. The chapter highlights the legal disagreement that exists regarding how the rules of targeting apply to particular battlefield scenarios. For instance, scholars differ on whether the law requires an attacker to assume risk in order to reduce danger to civilians and whether the principle of proportionality or the principle of the least feasible damage regulates such an obligation. Neither is there clarity on whether the requirement to issue an “effective” advance warning of the attack to civilians requires states to issue specific, as opposed to general, warnings. The chapter engages with these issues in order to provide answers to these contested questions. The crux of chapter 4 is the question of whether the rules of targeting which confer discretion on commanders themselves provide sufficient guidance to states in how to ensure compliance. Chapter 4 scrutinises how much guidance state practice and scholars provide regarding how commanders balance different considerations in applying the targeting rules. It analyses where the ambiguity lies, and why a degree of uncertainty is inherent in legal rules in general. The discussion draws attention to the fact that states and legislators formulate all legal rules in such a way as to leave room for judges and decision-makers to interpret the rules in light of the facts of the individual case. The chapter subsequently introduces a hypothesis that commanders in applying the rule of target verification and the principle of the least feasible damage balance the elements of likelihood of harm to civilians, magnitude of civilian harm and military advantage. It demonstrates that the duty to issue an effective advance warning of an attack to civilians “unless circumstances do not permit” may be re-conceptualised. The rule may be seen as prohibiting attacks where a commander anticipates that the harm to civilians which will result if a warning is not given is “excessive” in relation to the military advantage to be gained from not warning the civilians of the attack. The chapter puts forward that theories from the



8

Chapter One

field of psychology are a promising tool for analysing how commanders apply the warnings requirement. The book leaves the analysis of why it is unclear what degree of certainty the principle of distinction requires to chapter 5. The rationale for this choice is that the challenge of applying the principle of distinction does not stem from the fact that commanders enjoy discretion. Rather, the fact that the battlefield is characterised by uncertainty creates such difficulties. Chapter 5 focuses on the principle of distinction specifically. Chapters 5 to 8 develop a framework for how commanders apply the rules of targeting. Chapter 5 tackles the current disagreement between scholars, regarding how much doubt the principle of distinction permits attackers to have.31 It investigates state practice and deduces what degree of certainty the principle of distinction requires attackers to achieve. In doing so, the chapter engages with current scholarship. The current debate focuses on whether the attackers should attain a degree of certainty that is comparable to that required by the criminal standard of proof of “beyond reasonable doubt” of the jury. Additionally, the chapter scrutinises how elements that determine what degree of certainty an attacker is able to achieve in the circumstances interact. These elements are force protection, the urgency of immediately responding to the enemy’s actions, available resources and harm that will result to civilians if the target is misidentified. The chapter concludes that each of these elements should reinforce the conclusion that the proposed target is a military objective in order for an attack to be lawful. Chapter 6 turns to the rule of target verification, and analyses state practice in order to test the hypothesis that commanders in applying this rule balance three elements. These elements are the likelihood of civilian harm, the magnitude of civilian harm and the degree of military advantage a commander forgoes in allocating additional intelligence resources to verify the nature of the target. The discussion is used to develop a framework regarding when commanders place greater weight on the humanitarian consideration of the likelihood of harm to civilians, and in what

 31 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A. Targeted Killing,” 1224; Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039; Crandall, “Ready...Fire...Aim! A Case for Applying Due Process Principles Before Engaging in Drone Strikes,” 87-88; Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 49.



Introduction

9

circumstances they give deference to military considerations, such as the urgency of engaging the target in a short time window. Chapter 7 tests the hypothesis that commanders balance three elements in selecting means and methods of warfare in order to reduce harm to civilians and to comply with the principle of the least feasible damage. The elements are the likelihood of civilian harm, the magnitude of civilian harm and the degree of military advantage a commander forgoes in employing alternative means and methods of warfare that inflict less civilian harm. An examination of military manuals and the conduct of military operations is used to develop a framework which captures how commanders balance these three elements. The discussion provides additional knowledge about how commanders apply the principle of the least feasible damage. Chapter 8 makes recourse to a discipline outside of law in order to analyse the warnings requirement. This is a novel (and an experimental) approach to analysis. The chapter borrows various theories from the field of psychology in order to suggest how commanders go about deciding whether circumstances do not permit them to warn the civilians about the forthcoming attack. In particular, the focus is on theories of how individuals choose between competing options, how they make decisions under conditions of uncertainty as well as how they weigh losses and gains. These theories shed light on how commanders deliberate, because the theories illustrate how commanders estimate their chances of succeeding and how commanders determine whether there is an available combination of means and methods of warfare that enables them to forgo an element of surprise. An explanation of how commanders weigh losses, associated with civilian casualties, and gains, associated with military advantage, illuminates how commanders apply Goldstone’s restatement of the warnings requirement. Additionally, there is an interesting discussion about how emotions and personality traits bear on the decision-making of commanders. Finally, there is an explanation of mechanisms, through which particular concerns come to bear on the formulation of policy and as a result influence how commanders interpret the warnings requirement. Chapter 9 examines the ways in which the application of the proposed framework shifts the angle from which practitioners analyse military operations. How the findings challenge pre-existing views is explained. The chapter assesses the value of the generated insights regarding how commanders apply the rules of targeting to battlefield scenarios and



10

Chapter One

highlights how practitioners may apply the findings in their work. It also explores the value of using cross-disciplinary enquiry in order to generate new insights onto rules of international humanitarian law.





CHAPTER TWO HOW MILITARY COMMANDERS GO ABOUT PLANNING A MILITARY OPERATION

The primary goal of the commander is to prevail over the enemy. Of course, the commander does not make this decision in a vacuum. For instance, Western states adhere to Clausewitz’s proposition that war is a tool for achieving political goals.1 Consequently, Western states believe that winning military operations is insufficient of itself to win in an armed conflict.2 These states choose where to conduct military operations and how to fight battles in such a way as to achieve their overarching political goals.3 For instance, the United States of America did not defeat the Communist movement in the Vietnam War despite winning battles.4 The Viet Cong guerrillas prevailed, because they inflicted high casualties on the American troops by launching many small scale attacks.5 Ultimately, the United States of America lost, because the American people were not prepared to continue to sustain high casualties among American soldiers.6 In this sense, the Viet Cong defeated the American government politically rather than militarily.7 Non-Western states such as Russia also view armed conflict as being primarily concerned with achieving political goals.8

 1

von Clausewitz, Principles of War, 11. Vego, Joint Operational Warfare: Theory and Practice, I-35. 3 Ibid. 4 David J. Lonsdale, “Strategy,” in Understanding Modern Warfare, ed. David Jordan (Cambridge: Cambridge University Press, 2008), 27. 5 Ibid. 6 Ibid. 7 Ibid. 8 Ibid., 16-17; The President of the Russian Federation, “The Military Doctrine of the Russian Federation” (The Office of the President of the Russian Federation, February 5, 2010), par. 28(1), 29. 2



12

Chapter Two

Shaw formulated a theory regarding how political considerations shape how Western states conduct hostilities.9 According to Shaw, Western states are preoccupied with managing the political risk of losing support among their own populations10 and the international community11 for the military campaign.12 They achieve this by reducing soldier casualties as well as civilian casualties.13 The rationale for this strategy is that the state’s populace will lose support for the military campaign if they perceive soldier or civilian casualties as being too high.14 Additionally, these states manage the way in which the media portray the prosecution of the military campaign.15 The states achieve this by convincing the journalists that their justification for the war is credible.16 In turn, this leads the journalists to convey the government narrative to their audience, regarding why it is important for the state to fight against a particular adversary.17 In addition to political considerations, commanders when planning military operations take into account the requirement to comply with the rules of targeting. The targeting rules impose a constraint on how commanders execute military operations and serve “humanitarian objectives.”18 However, they have “always reflected the core logic of military operations” and are formulated in such a way as to facilitate the ability of the parties to the conflict to achieve their military goals.19 The targeting rules have qualified obligations because compliance with the law should not compromise the accomplishment of the mission’s success.20 In

 9

Shaw, The New Western Way of War: Risk-Transfer and Its Crisis in Iraq, 71. Ibid., 98. 11 Ibid., 75. 12 Ibid., 71. 13 Ibid., 96. 14 Ibid. 15 Ibid., 93. 16 Ibid. 17 Ibid. 18 Lieutenant Colonel Gary P. Corn and Geoffrey S. Corn, “The Law of Operational Targeting: Viewing the L.O.A.C. Through an Operational Lens,” Texas International Law Journal 47 (2012): 359. 19 Ibid. 20 The Hague Convention No. IV of 18 October 1907, Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 36 Stat. 2227, Treaty Ser. No. 539; Liesbeth Zegveld and Frits Kalshoven, Constraints on the Waging of War: An Introduction to International Humanitarian Law, 4th ed. (Geneva: International Committee of the 10



How Military Commanders Go About Planning a Military Operation

13

order to understand how commanders apply the rules of targeting to battlefield scenarios, it is necessary to be aware of what military considerations commanders bear in mind when deciding how to plan a military operation.21 The information provides a context against which commanders apply the rules of targeting. What is more, the knowledge about how commanders plan military operations makes it easier to understand why the rules of targeting impose qualified obligations, despite there being congruence between humanitarian aspirations of the targeting rules and military logic. How commanders go about structuring a military operation will now be explored.

1. The Nature of the Military Goals All members of NATO have adopted the concept which is known as “effects-based” operations.22 According to this concept, the task of the commanders is not to destroy as many military objectives as possible.23 Instead, they should aim to produce specific events and outcomes which will enable the state to achieve the political goals of the military campaign.24 First, commanders use intelligence about the enemy capabilities to pick which military objectives to attack in order to achieve the desired effects.25 Then, a commander determines which weapons or materiel will best achieve the desired effect.26 Since Western states view

 Red Cross, 2001), 37; Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 2nd ed. (Cambridge: Cambridge University Press, 2010), 5. 21 Corn and Corn, “The Law of Operational Targeting: Viewing the L.O.A.C. Through an Operational Lens,” 340-341. 22 NATO Secretary General, “M.C. Position on an Effects-Based Approach to Operations,” Doc. MCM-0052-2006 (unclassified document, NATO June 6, 2006), quoted in Theo Farrell, “The Dynamics of British Military Transformation,” International Affairs 84, no. 4 (2008): 779. 23 United States Air Force, Air Force Doctrine Document 1 (Washington, DC: Department of Defense, 2003), 38, quoted in David E. Johnson, Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era (Santa Monica: RAND Corporation, 2007), 187. 24 Ibid.; Christopher Tuck, “Land Warfare,” in Understanding Modern Warfare, ed. David Jordan (Cambridge: Cambridge University Press, 2008), 110. 25 Corn and Corn, “The Law of Operational Targeting: Viewing the L.O.A.C. Through an Operational Lens,” 343. 26 Ibid.



14

Chapter Two

wars as a tool for achieving political goals,27 the political goals of the campaign will influence what capabilities commanders employ to fight the enemy. For instance, commanders may take greater care than is required by the law when choosing weapons and tactics. They may do this in order to secure the support of the international community for the military campaign, the support of the domestic electorate, the support of the local population or a mixture of these.28 The following example illustrates the difference between achieving particular effects on the enemy and aiming to destroy as many military objectives as possible. Imagine that a commander decides that a satellite needs to be targeted. The enemy employs the satellite to direct precisionguided bombs to their target29 and for civilian telecommunications.30 It is possible to temporarily disrupt the satellite with a cyber attack.31 This could for instance be achieved by using a device that transmits stronger radio signals to the bomb than the satellite.32 Alternatively, a kinetic energy weapon could be employed to shatter and to permanently disable the satellite.33 It is for the attacker to decide whether the greatest contribution to the achievement of the goals of the military campaign will be made by temporarily disrupting the satellite or by permanently denying

 27

Charles J. Dunlap, “Legal Issues in Coalition Warfare: a U.S. Perspective,” in The Law of War in the 21st Century: Weaponry and the Use of Force, ed. Anthony M. Helm, vol. 82 (Newport: Naval War College, 2006), 226; Tuck, “Land Warfare,” 100; Lonsdale, “Strategy,” 18. 28 United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, Marine Corps Warfighting Publication No 3-33.5 (Chicago: The University of Chicago Press, 2007), par. 7-13; Shaw, The New Western Way of War: Risk-Transfer and Its Crisis in Iraq, 98; Lonsdale, “Strategy,” 29. 29 Patrick K. Gleeson, “Legal Aspects of the Use of Force in Space” (master’s thesis, Institute of Air and Space Law, McGill University, 2005), 16-20; Deborah Housen-Couriel, “Disruption of Satellite Transmissions Under I.H.L.: Launching New Paradigms,” in International Humanitarian Law and the Challenges of New Military Technologies (presented at the Sixth Annual International Humanitarian Law Conference, Jerusalem: Konrad-Adenauer-Foundation, International Committee of the Red Cross, 2011), 2. 30 Michael W. Taylor, “Orbital Debris: Technical and Legal Issues and Solutions” (master's thesis, Institute of Air and Space Law, McGill University, 2006), 9. 31 Gleeson, “Legal Aspects of the Use of Force in Space,” 16-20; Housen-Couriel, “Disruption of Satellite Transmissions Under IHL: Launching New Paradigms,” 2. 32 Alex Williamson, “Out of Sight,” Economist, July 27, 2013. 33 Michel Bourbonnière, “Law of Armed Conflict (L.O.A.C.) and the Neutralisation of Satellites or Ius in Bello Satellitis,” Journal of Conflict and Security Law 9, no. 1 (2004): 30.



How Military Commanders Go About Planning a Military Operation

15

the enemy access to the satellite. Therefore, the concept of “effects-based” operations does not of itself require that a dual-use satellite be disrupted rather than disabled. However, the focus on achieving particular effects may result in the commander opting for temporary disruption rather than to destroy a military objective. For instance, the commander may want the adversary’s civilians to be able to watch news programmes that are being transmitted by a state that is not party to the conflict, in order to weaken the pro-war propaganda being transmitted by local news channels. The emphasis on producing effects may in some cases lead to attacks inflicting fewer civilian casualties and less damage to civilian objects. According to Johnson, the United States of America struck fewer targets from the air than it would have otherwise in the course of Operation Enduring Freedom 2003 because it was guided by the “effects-based” approach.34 The United States of America had such good communication with troops, command structures and intelligence, surveillance and reconnaissance capabilities that it was able to disrupt the Iraqi forces by focusing primarily on military objectives that enabled the army to function, such as power communications.35 Because of this, the United States of America was able to avoid targeting major infrastructure facilities which were concurrently being used for military and civilian purposes.36 Accordingly, it is reported that because the United States of America avoided attacking dual-use major infrastructure facilities, civilians who were in close proximity to such military objectives were spared.37 The total civilian toll was lower than it would have been had the United States of America not sought to achieve particular effects on the Iraqi regime. The underlying logic of focusing on producing effects rather than on mere destruction of military objectives is pragmatic. The infliction of greater suffering and destruction than is necessary to prevail over the enemy wastes limited resources and may undermine the efforts to restore peace after hostilities end.38 Although China has not publicised its military doctrine, research centers in the United States of America and India

 34

Johnson, Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era, 124. 35 Ibid., 124-125. 36 Ibid. 37 Ibid. 38 Corn and Corn, “The Law of Operational Targeting: Viewing the L.O.A.C. Through an Operational Lens,” 353.



16

Chapter Two

provide information on its doctrine. According to these sources, Chinese doctrine states that it will launch “selective attacks,” use “precision raids” by missiles and surgically remove the enemy.39 This language connotes that China will carefully select targets for their strategic value and engage them with precision. In turn, this suggests that China wants to achieve particular military effects, as opposed to destruction for its own sake. Meanwhile, the Russian military doctrine does not discuss how Russian commanders go about formulating goals for military operations or selecting targets.40 It merely states that the Russian military doctrine is founded on international humanitarian law norms and domestic law.41 Since states do not benefit from launching attacks for the sake of inflicting destruction,42 states in all likelihood understand the importance of achieving particular effects on the enemy. Unfortunately, the experience in recent conflicts demonstrates that this does not mean that states abide by international humanitarian law,43 or do not inflict massive damage to civilian infrastructure, even when the lives of their civilians are at stake.44

 39

Prashant Kumar Singh, “The Evolution of Chinese Military Doctrine” (presentation, Fellows’ Seminar, Institute for Defence Studies and Analyses, New Delhi, February 1, 2013), http://www.idsa.in/event/The EvolutionofChinas MilitaryDoctrines.html (accessed March 26, 2015); Alexander Chieh-Cheng Huang, “Transformation and Refinement of Chinese Military Doctrine: Reflection and Critique on the PLA’s View,” in Seeking Truth from Facts: A Retrospective on Chinese Military Studies in the Post-Mao Era, ed. James C. Mulvenon and Andrew N.D. Yang (Santa Monica: RAND Corporation, 2001), 137-138. 40 The President of the Russian Federation, “The Military Doctrine of Russian Federation,” The Office of the President of the Russian Federation, February 5, 2010, http://www.kremlin.ru/ref_notes/461 (accessed March 2, 2015). 41 Ibid., par. 3. 42 Corn and Corn, “The Law of Operational Targeting: Viewing the L.O.A.C. Through an Operational Lens,” 353. 43 The Independent Commission of Inquiry on the Syrian Arab Republic, Report of the Independent Commission of Inquiry on the Syrian Arab Republic Doc. A/HRC/27/60 (Geneva: United Nations, August 13, 2014), par. 102-104; Human Rights Watch, “Ukraine: U.S. Should Raise Rights Issues,” Human Rights Watch, September 18, 2014, http://www.hrw.org/news/2014/09/17/ukraine-usshould-raise-rights-issues (accessed December 5, 2014). 44 Denys Krasnikov and Iryna Savchuk, “Infrastructure Damage in Ukraine’s East Is Massive Blow to Economy,” Kyiv Post, August 15, 2014, http://www.kyivpost.com/content/ukraine/damage-of-infrastructure-in-the-east-isa-massive-blow-to-economy-infographic-360785.html (accessed April 5, 2015); Fox News, “Syria’s Civil War Leaves Its Cities, Economy and Cultural Heritage in Shambles,” Fox News, October 9, 2012,



How Military Commanders Go About Planning a Military Operation

17

2. The Building Blocks of a Military Operation The building blocks of a military operation that are about to be examined are (1) the collection of intelligence about the enemy, (2) the choice of weapons and materiel, (3) the employment of movement and manoeuvre (tactics), (4) measures to protect the force, (5) maintaining communication with the troops and (6) organising logistics.45 In brief, the collection of intelligence touches on the obligation to verify that the target is a military objective.46 The employment of weapons and movement relates to the obligation to select weapons and tactics in such a way as to avoid, or at least minimise, injury to civilians and damage to civilian objects.47 Naturally, the choice of weapons and tactics a commander makes has an impact on the degree of danger to which the military operation exposes the troops.48 The issuing of an advance warning of the impending attack to civilians exposes the force to additional risk, and is linked with the consideration of force protection.

2.1. Intelligence Collection In terms of technology, the forces use satellites, drones (unmanned aerial vehicles), aircraft and sensors to collect intelligence.49 There are many types of sensors. Some detect heat emitted by materiel.50 Others use sound ranging to identify the location of materiel.51 This is achieved by measuring the distance between the sensor and the location of the sound

 http://www.foxnews.com/world/2012/10/09/syria-civil-war-leaves-its-citieseconomy-and-cultural-heritage-in-shambles (accessed 18 February, 2015). 45 United States Army Training and Doctrine Command, The United States Army Operating Concept 2016-2028, TRADOC Pamphlet 525-3-1 (Fort Monroe, Virginia: United States Army, 2010), 6. 46 Art. 57(2)(a)(i) API 1977; United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004), par. 13.32. 47 Art. 57(2)(a)(ii) API 1977. 48 Perry Rearick, “Force Protection and Mission Accomplishment in Bosnia and Herzegovina” (master's thesis, United States Army Command and General Staff College, 2001), 39. 49 Johnson, Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era, 109. 50 Major General J.B.A. Bailey, Field Artillery and Firepower (Annapolis: Naval Institute Press, 2004), 68. 51 Ibid.



18

Chapter Two

which is produced when the enemy fires a munition.52 Still others rely on radar to detect radio wavelengths emitted by aircraft and materiel.53 States continue to deploy intelligence officers to elicit information from individuals and to observe the situation.54 Commanders collect intelligence both for military and humanitarian purposes. On the one hand, the possession of intelligence about the enemy is indispensable for correctly verifying that the target is a military objective. The correct identification of military objectives and individuals who take a direct part in hostilities protects civilians from being mistakenly killed. The rule of target verification governs directly what measures commanders should adopt to collect intelligence, while the principle of distinction obliquely addresses this requirement. On the other hand, intelligence enables the troops to pick out lawful targets in an environment where it is not readily apparent where the enemy has positioned troops and materiel. Typically, parties to the conflict camouflage their soldiers and materiel,55 disperse their troops and materiel,56 and try to deceive the enemy in order to conceal their position.57 Apart from enabling the attacker to locate military objectives, intelligence has many other important military purposes. Intelligence enables the attacker to achieve specific effects on the enemy as opposed to inflicting mere destruction.58 Commanders can better identify targets which, if destroyed, will incapacitate the enemy and can choose the best weapon for engaging the target.59 The gathering of intelligence allows commanders to protect their force because they have information about where the enemy’s force is located, how many soldiers there are and what materiel the adversary’s troops possess.60 When commanders know the location and plans of the adversary’s troops, they are less likely to be ambushed or

 52

Ibid. Ibid. 54 Johnson, Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era, 109. 55 Bailey, Field Artillery and Firepower, 135. 56 Ibid., 124. 57 Ibid., 68. 58 United Kingdom Ministry of Defence, Operations in Iraq: Lessons for the Future (London: Directorate General Corporate Communication, 2003), 14. 59 United States Army, The United States Army Functional Concept for Fires 20162028, TRADOC Pamphlet 525-3-4 (Fort Monroe, Virginia: United States Army Training and Doctrine Command, 2010), 14. 60 Air Marshal David Evans, War: A Matter of Principles (London: Macmillan Press Ltd., 1997), 43. 53



How Military Commanders Go About Planning a Military Operation

19

otherwise caught by a surprise attack.61 With good intelligence, the members of the force can tailor the weapons and tactics to counter the capabilities of the enemy, anticipate the actions of the adversary and are able to act more quickly than the enemy.62 According to Major General Robert Scales Jr., this enables the attacker to prevail over the enemy in circumstances where the adversary has a numerically superior force.63 Information regarding the enemy’s location additionally enables the party to take the enemy by surprise.64 Taking the enemy by surprise is advantageous because the adversary will find it more difficult to organise the troops and to take up valuable positions.65 It appears from this information that when the infantry is more protected by possessing good intelligence, they can afford to take greater risks in order to protect civilians than when they lack this information. Moreover, by obtaining intelligence about where the enemy is located and the capabilities of the adversary’s troops, a commander is able to allocate weapons, materiel and soldiers to competing missions in a balanced way.66 The effective allocation of resources to military operations enables militaries to succeed.67 Because resources are limited, military planners need to allocate fewer resources to tasks that are lower in priority in order to ensure that adequate resources can be allocated to important tasks.68 At the same time, allocating too few resources to tasks that are viewed as less important can be risky.69 Intelligence is characterised by both quantity and quality.70 In order to be useful information should be accurate, and contain all detail and data which a commander needs in order to make a good decision.71 The information should be relevant to a particular military mission and be

 61

Ibid. Major General Robert H. Scales Jr., Yellow Smoke: the Future of Land Warfare for America’s Military (Lanham: Rowman & Littlefield Publishers Inc., 2003), 100. 63 Ibid., 153. 64 Evans, War: A Matter of Principles, 60. 65 Vego, Joint Operational Warfare: Theory and Practice, V-51. 66 Evans, War: A Matter of Principles, 83. 67 Ibid. 68 Ibid. 69 Ibid., 80. 70 Vego, Joint Operational Warfare: Theory and Practice, III–66, III–67. 71 Ibid. 62



20

Chapter Two

available in advance of the execution of the military operation.72 In general, it is better not to have any information than to have false or irrelevant information.73 The commander usually has incomplete knowledge of the facts.74 This is in part because events on the ground can change quickly and in part because sensors do not necessarily produce reliable information.75 Unfortunately, current information technologies do not distinguish between false, misleading and accurate information.76 For instance, the Israeli thermal sensors could not detect Hezbollah’s rocket launchers during Operation Change of Direction 2006.77 Hezbollah camouflaged its rocket launchers by using special “carpets,” which absorbed the heat of the sun during the day and radiated it at night.78 More generally, in order for the information to be converted into valuable intelligence, the commander must use judgment to identify useful pieces of data, put the data into the context of the situation at hand and analyse the information.79 The fact that the possession of information on its own has not eliminated uncertainty from warfare is demonstrated by the experience of the United States of America during Operation Iraqi Freedom 2003.80 According to Major General Charles J. Dunlap Jr., although pilots used drones to monitor the situation on the ground for hours, commanders nevertheless had to make decisions based on incomplete information.81 So far it has been established that intelligence is an indispensable component of a successful military operation. Unfortunately, resources for gathering intelligence and conducting surveillance and reconnaissance are

 72

Ibid. Ibid. 74 Ibid. 75 Ibid. 76 Ibid. 77 Arie Egozi, “Israel Praises Unmanned Aerial Vehicle Abilities During Operation Change of Direction Anti-Hezbollah Lebanon Campaign,” Flight International, August 29, 2006, http://www.flightglobal.com/news/articles/israel-praises-uavabilitiesduring-operation-change-of-direction-anti-hezbollah-lebanon-campaign208706 (accessed September 9, 2011). 78 Ibid. 79 Vego, Joint Operational Warfare: Theory and Practice, III–67. 80 Charles J. Dunlap, “Come the Revolution: A Legal Perspective on Air Operations in Iraq Since 2003,” in The War in Iraq: A Legal Analysis, ed. Raul Pedrozo, vol. 86 (Newport: Naval War College, 2010), 142. 81 Ibid. 73



How Military Commanders Go About Planning a Military Operation

21

scarce. This means that when commanders allocate assets to verifying that the target is a military objective, they may be diverting resources from other pressing military demands. Therefore, in determining how to allocate limited intelligence, surveillance and reconnaissance resources a commander needs to make trade-offs. A commander either allocates too few resources to target verification and exposes civilians to risk, or incurs a risk that the attainment of some military tasks will be compromised. This is not to say that military and humanitarian considerations do not intersect. When an attacker mistakenly targets a civilian object, avoidable civilian deaths are inflicted and valuable resources are wasted. The following incident demonstrates that considerable resources are needed to collect intelligence which is reliable and complete. It furthermore demonstrates that commanders may get things wrong despite their efforts to accurately verify the character of the proposed target. A. The Ameriyya Air Raid Shelter Incident The Coalition, during Operation Desert Storm 1991, attacked a building which it believed to be a military command and control bunker.82 It transpired after the attack that between two hundred and three hundred civilians took refuge in that building to protect them from the air bombing.83 At the time the Coalition carried out the attack, the building displayed a sign indicating that it was an air raid shelter.84 This incident became known as the Ameriyya Air Raid Shelter incident. Brigadier General Richard Neal explained that the United States of America knew that the building was originally built as an air raid shelter for civilians, but that it believed that the Iraqi military had converted the shelter into a command and control bunker.85 The commander formed this view on the grounds that the building had barbed wire around it and had its roof painted in camouflage.86 The Coalition had intercepted military communications from this building.87 In addition, the satellite images showed the frequent presence of military vehicles and personnel in the

 82

Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War (New York: Human Rights Watch, 2008), 129. 83 Ibid., 128. 84 Ibid., 129. 85 Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991, quoted in Ibid., 134-136. 86 Ibid. 87 Ibid.



22

Chapter Two

vicinity of the structure.88 Middle East Watch interviewed Dr. Baghos Paul Boghossian who treated the victims at the Yarmuk hospital in Baghdad.89 The doctor told Middle East Watch that according to the victims, the local population was allowed to use the shelter in the two weeks prior to the attack.90 Apparently, the military personnel working at the bunker invited their families to use the structure as a shelter.91 Subsequent to the attack, Lieutenant General Thomas W. Kelly explained that the armed forces did not detect the civilians because they entered the shelter after dark.92 The United States of America had used aerial reconnaissance, but only during daylight.93 Middle East Watch argued that the United States of America should have conducted reconnaissance in the mornings, when it would have detected civilians leaving the building.94 Middle East Watch based its assertion on the fact that the United States of America was put on notice of the potential civilian presence in the building on three grounds:95 (1) it knew that the building was originally built as an air raid shelter, (2) the building was used as such during the Iran-Iraq war and (3) the building continued to display an air raid shelter sign.96 Lieutenant Michael Lewis, a Navy Judge Advocate, commented on this incident that the United States of America lacked the reconnaissance capabilities to monitor the building over an extended time period, including in the morning, in order to determine whether there was civilian

 88

Ibid. Erika Munk, “The New Face of Techno-War,” The Nation, May 6, 1991, 584, quoted in Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 131. 90 Ibid. 91 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War (Washington, DC: United States Government Printing Office, 1992), 615. 92 Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991. 93 Ibid.; United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 615. 94 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 140. 95 Ibid. 96 Ibid., 143. 89



How Military Commanders Go About Planning a Military Operation

23

movement.97 He explained that the United States of America had a limited number of aircraft at its disposal, and that commanders allocated these aircraft to determine whether there was a need to re-strike some of the targets.98 The Ameriyya incident illustrates that once attackers attain a particular degree of certainty that the target is a military objective, military and humanitarian aspirations no longer coincide. While civilians would wish the commander to consider all possible eventualities, the commander faces conflicting demands. Having taken reasonable steps to verify that the target is a military objective, as required by international humanitarian law, commanders prefer to allocate scarce intelligence resources to competing military needs. B. High-Altitude Flying Commanders face a conflict in determining how to allocate scarce intelligence, surveillance and reconnaissance assets in such a way as to locate enemy targets without incurring an unacceptable level of their own casualties. This may result in civilians being exposed to greater danger. Consider the following incident, which became known as the Djakovica incident. A NATO pilot attacked a convoy of Serbian forces with a laserguided bomb on 14 April, 1999.99 It later transpired that the target was in fact a refugee convoy.100 The pilot was operating at fifteen thousand feet, an altitude NATO originally set during Operation Allied Force 1999 in order to protect its pilots from Serb air defence systems.101 NATO argued that while the cockpit video (accurately) showed the vehicles to be tractors, to the naked eye the vehicles appeared to be military vehicles.102 This incident sparked debate over whether the practice of Western states of conducting air strikes at a high altitude in all armed conflicts since Operation Desert Storm 1991 transferred risk from the attacker onto the

 97 Michael W. Lewis, “The Law of Aerial Bombardment in the 1991 Gulf War,” American Journal of International Law 97 (2003): 504. See also Thomas A. Keaney and Eliot A. Cohen, Gulf War Air Power Survey: Planning and Command and Control, vol. 1 (Washington, DC: United States Government Printing Office, 1993), 255-258. 98 Lewis, “The Law of Aerial Bombardment in the 1991 Gulf War,” 504. 99 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” International Legal Materials 38 (2000): 1257, par. 65. 100 Ibid., par. 63. 101 Ibid., par. 56. 102 Ibid., par. 67.



24

Chapter Two

civilians.103 The pilot needs to fly at least at eight thousand feet in order to be able to visually identify the nature of the target.104 Yet, military scholars dispute the fact that operating at high altitude exposes civilians to greater risk than operations at medium and low altitudes. A number of authors suggest that high-altitude flying in fact enables the pilot to make a better assessment of whether the target is a military objective, due to feeling safe and calm.105 Lenorovitz maintains that if the pilot were to fly at low or medium altitudes, it would be necessary for the pilot to zigzag in order to avoid the enemy air defence systems.106 The zigzagging would decrease the accuracy of the bombing.107 Similarly, Schmitt suggests that precision-guided bombs become more accurate as the altitude from which they are dropped increases, as they need more time to lock onto the aim point.108 Therefore, precision-guided bombs should be released from a higher altitude.109 Significantly, Major General Dunlap argues that although the pilot cannot confirm the nature of the target with the naked eye when flying at high altitude, this does not impede the pilot’s ability to verify that the target is a military objective.110 The use of technology allows pilots to distinguish between civilian objects and military objectives.111 During Operation Allied Force 1999, the pilots were aided in target acquisition by satellite technology, reconnaissance aircraft, unmanned aerial vehicles, forward air

 103

Shaw, The New Western Way of War: Risk-Transfer and Its Crisis in Iraq, 2122; Marco Roscini, “Targeting and Contemporary Aerial Bombardment,” International and Comparative Law Quarterly 54, no.2 (2005): 415. 104 Rebecca Grant, “Altitude: Contrary to Popular Opinion, Lower is Not Always Best,” Air Force Magazine 84, no. 10 (2001): 56. 105 Ibid., 57; Andru E. Wall, “Discussion,” in Legal and Ethical Lessons of NATOs Kosovo Campaign, ed. Andru E Wall, vol. 78 (Newport: Naval War College, 2002), 305. 106 J.M. Lenorowitz, “Air Crew Training, Avionics Credited For F-15Es High Target Rate Hits,” Aviation Week & Space Technology, April 22, 1991, 107. 107 Ibid. 108 Michael N. Schmitt, “Precision Attack and International Humanitarian Law,” International Review of the Red Cross 87, no. 859 (2005): 449-450. 109 Ibid. 110 Charles J. Dunlap, “Kosovo, Casualty Aversion and the American Military Ethos: a Perspective,” United States Air Force Academy Journal of Legal Studies 10 (1999-2000): 96-97. 111 Ibid.



How Military Commanders Go About Planning a Military Operation

25

controllers, airborne battle managers and intelligence specialists.112 Forward air controllers are individuals who identify targets for the aircraft.113 They may locate targets from an aircraft, or from the ground.114 Airborne managers employ manual and computer-assisted sensor systems to detect and to track targets in the air, on the ground and on the high seas.115 They additionally use electronic warfare to jam air defence systems in order to mitigate the threat posed by these systems to the aircraft which they are assisting.116 While military scholars extol the virtues of high-altitude flying, the situation is more complex than a binary choice between aircraft relying on technology in order to verify the nature of the target and aircraft operating at lower altitudes. There are a number of options for enabling the pilot to visually verify that the target is a military objective. Each option exposes the pilot to different degrees of risk of being killed. Equally, each option entails a different degree of risk that the pilot will not successfully execute the mission. Before listing these options, it is important to stress that it is possible to deploy some types of precision-guided bombs, such as the Joint Direct Attack Munition, from low, medium and high altitudes.117 The degree of danger to which the aircraft operating at medium and lower altitudes is exposed may be partially reduced by employing electronic warfare aircraft or air defence suppression aircraft.118 These types of aircraft use electronic jamming and electronic warfare to suppress enemy

 112

Grant, “Altitude: Contrary to Popular Opinion, Lower is not Always Best,” 57. The Royal Air Force, “The RAF Regiment Roles,” The Royal Air Force, http://www.raf.mod.uk/rafregiment/roles (accessed February 12, 2010). 114 Ibid. 115 The United States Air Force, “Airborne Battle Management 1A4X1,” The United States Air Force, http://www.af.mil/information/factsheets/factsheet.asp?id=4523 (accessed February 12, 2010). 116 Ibid. 117 Precise Machining & Manufacturing, “JDAM: Smart Bomb, Smart Program,” http://www.precisemachining.com/jdam.php (accessed June 3, 2011); Paul S. Owen and John Cook, “Laser Guided Bombs and Joint Direct Attack Munition,” http://typhoon.starstreak.net/common/AG/iron.html (accessed June 4, 2011); Royal Air Force, “RAF - Paveway II & III,” Royal Air Force, http://www.raf.mod.uk/equipment/paveway23.cfm;%20http://typhoon.starstreak.ne t/common/AG/iron.html (accessed June 4, 2011). 118 Anthony Cordesman, The Lessons and Non-lessons of the Air and Missile Campaign in Kosovo (Westport: Praeger Publishers, 2001), 204-205. 113



26

Chapter Two

air defence systems.119 General John Jumper of the United States Air Force pointed out that the use of electronic jamming only partially reduces the danger to the aircraft which emanates from air defence systems.120 The escort aircraft can additionally deliver anti-radiation missiles against the enemy air defence systems.121 Another option for reducing the risk to the pilot and to the aircraft is to employ stealth technology.122 Stealth aircraft often have a polyhedron shape and are treated with an anti-reflective coating.123 This design impairs the ability of the radar systems to detect them.124 What is more, the pilot could operate at high altitude but assume a degree of risk, in order to verify that the target is a military objective. One of such tactics involves the pilot making a run over the target, executing a brief dive and returning to high altitude.125 NATO General Michael Short reported that following the Djakovica incident, the organisation changed the rules of engagement to require pilots to briefly descend to eight thousand feet in order to visually confirm that the target was a military objective, and to then return to an altitude of fifteen thousand feet.126 The discussion of whether high-altitude flying is detrimental to civilians and what pilots can do to visually confirm the nature of the target without the aircraft being shot down is still relevant, despite advances in technology. Currently, pilotless aircraft which are controlled remotely

 119

Ibid. Ibid. 121 Grant, “Altitude: Contrary to Popular Opinion, Lower is not Always Best,” 52. 122 John Pike, “Stealth Geometry,” GlobalSecurity.org, http://www.globalsecurity.org/military/world/stealth-aircraft-geometry.htm (accessed September 6, 2010). 123 Ibid. 124 Ibid. 125 Matthew Waxman, International Law and the Politics of Urban Air Operations (Santa Monica: RAND Corporation, 2000), 34 n. 25; Aviation Dictionary VFA-13, s.v. “Pass,” http://www.aviationdictionary.org/pass (accessed October 1, 2010). 126 BBC2, Moral Combat - NATO at War, broadcast on BBC2, March 12, 2000, quoted in Amnesty International, Federal Republic of Yugoslavia (FRY)/NATO: Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO During Operation Allied Force, (London: Amnesty International, October 15, 2008), 16, http://www.amnesty.org/en/library/info/EUR70/018/2000/en (accessed January 25, 2009). 120



How Military Commanders Go About Planning a Military Operation

27

from long distances, called drones, are available to the militaries.127 These can hover over an area for hours.128 In 2011 a helicopter drone was developed which can track the movement of individuals and vehicles from an altitude of above twenty thousand feet.129 Although countries such as the United States of America are increasing their reliance on drones, they nevertheless continue to employ aircraft.130 Crucially, the armed forces of countries which have less funding will continue to rely on aircraft and helicopters. The case study of high-altitude flying demonstrates that although both protection of civilians and mission success require that the target be properly verified, there is a tension between the two imperatives. A conflict arises because operating beyond the reach of air defence systems of the enemy protects the pilot and enables militaries to pursue enemy targets at “reasonable cost.”131 As a consequence, the militaries can maintain superiority over the enemy by acting more quickly than their enemy.132 The pilots are additionally able to spend more time in the air and to attack targets which are fleeting. This case study illustrates the fact that although properly verifying the target ensures that the pilot actually destroys a military objective, there is a need for the rule of target verification to strike a balance between humanitarian and military considerations.

 127

Noel Sharkey, “Death Strikes from the Sky: the Calculus of Proportionality,” Technology and Society Magazine 28, no. 1 (2009): 16-17. 128 Dunlap, “Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003,” 141-142. 129 BBC News, “United States Army Unveils 1.8 Gigapixel Camera Helicopter Drone,” BBC News, December 29, 2011, http://www.bbc.co.uk/news/technology16358851 (accessed December 30, 2011). 130 United States Department of Defense, Defense Budget Priorities and Choices 2012 (Washington, DC: United States Department of Defense, 2012), 9; Ali Gharib, “United States to Increase Drone Fleet and Special Forces,” Thinkprogress Security, January 26, 2012, http://thinkprogress.org/security/2012/01/26/412115/usto-increase-drone-fleet-and-special-forces (accessed March 30, 2012). 131 Colonel John A. Warden III, The Air Campaign: Planning for Combat (Lincoln: toExcel Press, 2000), 21. 132 David Jordan, “Air and Space Warfare,” in Understanding Modern Warfare, ed. David Jordan (Cambridge: Cambridge University Press, 2008), 200-203.



28

Chapter Two

C. The Decapitation Strikes The following case study illustrates why commanders may face a dilemma whether to gather more intelligence, notwithstanding the fact that misidentifying a civilian for a lawful target from a military standpoint wastes resources. Human Rights Watch estimated that during Operation Iraqi Freedom 2003 the United States of America carried out fifty strikes against Iraqi leaders.133 These leaders had been included by the Central Intelligence Agency on its “black list.”134 Human Rights Watch further reported that none of the leaders were present in any of the locations targeted,135 but these strikes had killed “dozens of civilians.”136 The United States of America had classified leadership targets as “time-sensitive” targets.137 This meant that commanders would wish to engage such targets as soon as possible, even if there was a possibility that the intelligence was weak. The fact that the Iraqi leaders frequently changed their locations meant that the United States of America had to rely on a combination of human intelligence138 and on the intercepts of the Thuraya satellite mobile telephones.139 The telephones provided geo-coordinates of the caller, but these were accurate only within a one-hundred metre radius.140 Human Rights Watch explains that such geo-coordinates yielded a 31,400 square metre area within which the caller could be located.141 Although the United States of America was also able to intercept the conversations,142

 133

Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq (New York: Human Rights Watch, 2003), 22. 134 Ibid. 135 Ibid., 22-25. 136 Ibid., 23. 137 L. LaVella, Operation Enduring Freedom: Time Sensitive Targeting Process Study (Veridan Information Solutions Inc., 2003), quoted in Michael N. Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: an International Humanitarian Law Assessment,” Yearbook of International Humanitarian Law 6 (2003): 88. 138 Mark Thompson and Timothy J. Burger, “How to Attack a Dictator, Part II,” Time, April 21, 2003. 139 Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 24-25. 140 Ibid. 141 Ibid. 142 Stanley A. McChrystal and A.S.D. P.A. Victoria Clarke, “Department of Defense News Briefing,” news release, April 8, 2003, http://www.iwar.org.uk/news-archive/2003/04-08-4.htm (accessed September 10, 2010).



How Military Commanders Go About Planning a Military Operation

29

its commanders did not in all instances know the identities of the telephone users.143 Assuming the findings Human Rights Watch made are accurate, the decapitation strikes demonstrate that there may be a tension between delaying an attack to gather more information and acting on weak intelligence. The source of conflict stems from the nature of human targets. Generally, members of the enemy leadership and soldiers frequently change their location in order to conceal their whereabouts. For this reason, commanders may feel compelled to act on intelligence in a short window of time. They may view taking an individual by surprise as being crucial to successfully tracking down and killing him or her. D. Drones and Upcoming Technologies The United States of America started to use drones that are armed with bombs in 2001.144 The pilots control drones remotely,145 either from a local base or from thousands of miles away.146 They are equipped with electro-optical and infrared video cameras, synthetic aperture radars, satellite antennas147 and equipment that intensifies the image.148 Drones can hover over an area and conduct surveillance for up to forty hours.149 According to an Israeli drone operator, he could see what clothes the insurgent was wearing, that the insurgent was kneeling with a weapon

 143

Ibid. Richard Whittle, “The Man Who Invented the Predator,” Air & Space Magazine, April 2013, http://www.airspacemag.com/flight-today/the-man-whoinvented-the-predator-3970502/?no-ist (accessed October 4, 2014). 145 Ibid.; Department of Defense Dictionary of Military and Associated Terms, s.v. “Unmanned Aerial Vehicle,” comp. United States Joint Chiefs of Staff (United States of America: United States Department of Defense, 2012). 146 BBC News, “Drones: What Are They and How Do They Work?,” BBC News, January 31, 2012, http://www.bbc.com/news/world-south-asia-10713898 (accessed January 2, 2015). 147 Richard Whittle, “The Man Who Invented the Predator,” Air & Space Magazine, April 2013. 148 BBC News, “Drones: What Are They and How Do They Work?,” BBC News, January 31, 2012. 149 Jane Mayer, “The Predator War: What are the Risks of the C.I.A.’s Covert Drone Program?,” New Yorker, October 26, 2009, http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer (accessed November 23, 2013). 144



30

Chapter Two

close to the wall and that the insurgent left an explosive device.150 Most recently, states put into use drones with a high resolution camera of 1.8 gigapixels, which enables tracking the movement of individuals from twenty thousand feet.151 The drones are equipped with precision-guided munitions.152 Small bombs are available, which damage a single room in a house.153 The spike missile creates an even smaller radius of damage and is designed for targeting vehicles and individuals.154 Since the missile is equipped with a camera, the pilots are able to track the movement of the intended target.155 It creates “little to no” injury to civilians and damage to civilian objects.156 Although drones can provide surveillance of the area in which a target is located, the drone strikes the United States of America conducted against militants in Pakistan have resulted in high civilian casualties.157 There have been incidents in which DNA analysis revealed that the individual who had been targeted was not present at the scene.158 O’Connell has

 150

Clancy Chassay, “Cut to Pieces: The Palestinian Family Drinking Tea in Their Courtyard,” Guardian, March 23, 2009, http://www.theguardian.com/world/2009/mar/23/gaza-war-crimes-drones, quoted in Human Rights Watch, Precisely Wrong: Gaza Civilians Killed by Israeli DroneLaunched Missiles (New York: Human Rights Watch, 2009), 11. 151 BBC News, “U.S. Army Unveils 1.8 Gigapixel Camera Helicopter Drone,” BBC News, December 29, 2011. 152 BBC News, “Drones: What Are They and How Do They Work?,” BBC News, January 31, 2012; Grace V. Jean, “Reaper Drones Accomplishing Traditional Fighter Jet Missions,” National Defense Magazine, August 2008, http://www.nationaldefensemagazine.org/archive/2008/August/Pages/ReaperDrone sAccomplishingTraditionalFighterJetMissions.aspx (accessed January 10, 2010). 153 Steve Coll, “The Unblinking Stare: The Drone War in Pakistan,” New Yorker, November 24, 2014. 154 Maggie Ybarra, “Can You Hear Me Now? Cell Phones to Power U.S. Mini Missiles of the Future,” Washington Times, May 7, 2014. 155 Ibid. 156 Ibid. 157 Office of the United Nations High Commissioner for Human Rights, “Statement of the Special Rapporteur Following Meetings in Pakistan,” Office of the United Nations High Commissioner for Human Rights, March 14, 2013, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13146 &LangID=E (accessed September 3, 2014). 158 Telegraph, “Yemen Al-Qaeda Commander Dies from Drone Strike Wounds,” Telegraph, January 24, 2013, http://www.telegraph.co.uk/news/worldnews/middleeast/yemen/9825620/Yemenal-Qaeda-commander-dies-from-drone-strike-wounds.html (accessed May 2, 2013);



How Military Commanders Go About Planning a Military Operation

31

estimated that fifty civilians are being killed for every intended target, based on information given by the New America Foundation.159 However, the American government argues that the drone strikes kill twenty enemy fighters per civilian killed.160 It is difficult to validate the data the American officials gave. The Central Intelligence Agency neither explained what criteria it uses to count a drone victim as a civilian, nor what sort of field research it conducted to determine the number of civilian casualties.161 Radsan and Murphy comment on these figures that obtaining reliable data from Afghanistan and Pakistan is difficult.162 They believe that the government has an interest in portraying its drone strikes as successful.163 Therefore, the true figures of civilian casualties lie somewhere between the estimates the government and the civilian sources give.164 As a very rough approximation, the most conservative estimates of civilian casualties indicate that one civilian dies per each militant the United States of America targets.165 This assessment should be treated with scepticism however. The Peshawar High Court of Pakistan in the case of Foundation for Fundamental Rights v. Federation of Pakistan found that the drone strikes carried out by the United States of America between 2007 and 2012 were unlawful, because they failed to adequately distinguish between civilians and militants.166

 Ian Traynor, “Afghans Are Still Dying as Air Strikes Go On. But No One Is Counting,” Guardian, February 12, 2002, http://www.theguardian.com/world/2002/feb/12/afghanistan.iantraynor (accessed November 14, 2013). 159 Mary Ellen O’Connell, “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009,” in Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force, ed. Simon Bronitt, Miriam Gani, and Saskia Hufnagel (Oxford: Hart Publishing, 2011), 263. 160 Scott Shane, “C.I.A. Drone Use Is Set to Expand Inside Pakistan,” New York Times, December 4, 2009. 161 Steve Coll, “The Unblinking Stare: The Drone War in Pakistan,” New Yorker, November 24, 2014. 162 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1221-1222. 163 Ibid. 164 Ibid. 165 Steve Coll, “The Unblinking Stare: The Drone War in Pakistan,” New Yorker, November 24, 2014. 166 Foundation for Fundamental Rights v. Federation of Pakistan, Case No. 1551P/2012, Judgment, par. 11-12 (Peshawar High Court, Pakistan March 11, 2013).



32

Chapter Two

One of the reasons why the drone strikes resulted in civilian casualties was that the United States of America relied on intelligence from human sources which was unreliable.167 And drone strikes are “only as accurate as the intelligence that goes into them.”168 In particular some Pakistani sources, who collaborated with the Central Intelligence Agency, had questionable motives.169 A Former Central Intelligence Agency officer, who was based in Afghanistan, explained that some tribal chiefs falsely reported to the United States of America that their enemy was a member of Al Qaeda.170 Others made up information in order to earn money.171 Still others are thought to have pretended to collaborate, when in fact their aim was to undermine the military effort of the United States of America.172 It would have been difficult for the United States of America to have an individual on the ground to check the identity of the person being targeted. The terrain in Pakistan and Afghanistan is rugged and difficult to access for ground troops.173 Additionally, it may be easy for locals to notice the presence of foreigners and to warn the militants. The United States of America managed to decrease the number of civilian casualties in the years of 2012 and 2013.174 It decreased the number of drone strikes in Pakistan in 2013, tightened its oversight over the strikes and avoided striking private homes.175 Drones show that although advances in technology provide armies with greater capabilities, they have not eliminated uncertainty on the battlefield. Technologies that are in the

 167

Jane Mayer, “The Predator War: What are the Risks of the C.I.A.’s Covert Drone Program?,” New Yorker, 26 October 2009. 168 Ibid. 169 Ibid; David Rose, “How C.I.A. Spies Deal Death from the Skies: Thousands Killed by U.S. Unmanned Drones,” Daily Mail, April 17, 2011, http://www.dailymail.co.uk/news/article-1377611/How-CIA-spies-deal-deathskies-Thousands-killed-U-S-unmanned-drones.html (accessed April 17, 2011). 170 Jane Mayer, “The Predator War: What are the Risks of the C.I.A.’s Covert Drone Program?,” New Yorker, 26 October 2009. 171 Ibid. 172 Ibid.; David Rose, “How C.I.A. Spies Deal Death from the Skies: Thousands Killed by U.S. Unmanned Drones,” Daily Mail, April 17, 2011. 173 Dera Ismail Khan, “U.S. Drone Strike Kills Four Suspected Militants in Pakistan,” Guardian, September 28, 2014; Mary Ellen O’Connell, “Unlawful Killing with Combat Drones: a Case Study of Pakistan 2004-2009,” Notre Dame Law School Legal Studies Research Paper 09-43 (2010): 5. 174 Steve Coll, “The Unblinking Stare: The Drone War in Pakistan,” The New Yorker, November 24, 2014. 175 Ibid.



How Military Commanders Go About Planning a Military Operation

33

pipeline include drones which follow a pre-programmed flight path, avoid the threat emanating from air defence systems and identify targets for pilots.176 When it comes to small-scale robots, scientists developed a prototype of a robot called “meshworm.”177 The robot looks like and moves like an earthworm.178 In the future, meshworm may be programmable to follow a particular path and to record audio and video footage.179 Another direction of research is that involving the building of miniature drones, which have the appearance of insects and are capable of both taking images of the area and of killing the enemy.180 These insect drones will apparently travel at high speed and will take pictures inside caves, in buildings and in other difficult to reach areas.181 The Visibuilding system will enable the armed forces to see individuals in a building,182 where they will be displayed as dots on a screen.183 The screen will also display high concentrations of metal such as weapon caches.184 Futurists envisage that there will eventually be sensors that will enable commanders to see through walls of buildings and to have models showing the entire city as a transparent entity.185 Less futuristic are systems that will track the

 176

Sarah Griffiths, “Britain’s Deadly Superdrone Makes First Flight: Taranis Unmanned Military Vehicle ‘Surpassed All Expectations’ in the Air,” Daily Mail, February 5, 2014. 177 Deborah Netburn, “Meet Meshworm, the Resilient Earthworm Robot from D.A.R.P.A. and M.I.T.,” Los Angeles Times, August 13, 2012, http://articles.latimes.com/2012/aug/13/business/la-fi-tn-meshworm-robot20120813 (accessed November 3, 2013). 178 Ibid. 179 Obozrevatel, “A Creepy Robot-Worm Is Ready to Spy,” Obozrevatel, August 14, 2012, http://tech.obozrevatel.com/science/24691-zhutkovatyij-robot-chervyakgotov-shpionit.-video.htm (accessed November 3, 2013). 180 Daily Mail Reporter, “Is That Really Just a Fly? Swarms of Cyborg Insect Drones Are the Future of Military Surveillance,” Daily Mail Online, June 19, 2012, http://www.dailymail.co.uk/sciencetech/article-2161647/Is-really-just-fly-Swarmscyborg-insect-drones-future-military-surveillance.html (accessed June 19, 2012). 181 Ibid. 182 Henry S. Kenyon, “Sensor Technology Opens New Horizons,” Signal Online, June 2008, http://www.afcea.org/content/?q=node/1619 (accessed May 3, 2009). 183 Ibid. 184 Ibid. 185 Karl Schroeder, Crisis in Zefra (Kingston: Director General Land Capability Development, 2005), 10.



34

Chapter Two

pattern of movement of individuals186 and cars to detect suspicious behaviours.

2.2. Means of Warfare and Employment of Firepower Guns, weapons and materiel are known as “means” of warfare in international humanitarian law.187 The employment of means of warfare is also known as the use of fires.188 Militaries employ means of warfare to destroy the enemy’s materiel as well as to prevent the adversary’s forces from manning their short-range and long-range firepower systems.189 Additionally, firing at the soldiers prevents them from observing the battlefield, moving and manning their equipment.190 When soldiers are unable to move in specific directions,191 the movement of the troops as a whole is disrupted.192 As a consequence, the employment of firepower protects the force.193 As the law regulates the choice of means of warfare, it is necessary to understand (1) the characteristics of the various available means of warfare that are available and (2) how a commander might go about choosing which type of materiel to use and in what combination. There are many types of assets and ways in which they could be paired up. These assets include tanks, artillery, mortars, infantry fighting vehicles, helicopters, aircraft194 and drones.195 The characteristics of each of these assets will now be explained.

 186

Robert P. Biuk-Aghai et al., “Individual Movement Behaviour in Secure Physical Environments: Modeling and Detection of Suspicious Activity,” in Behavior Computing: Modeling, Analysis, Mining and Decision, ed. Longbing Cao and Philip S. Yu (London: Springer-Verlag, 2012), 241. 187 W. Hays Parks, “Conventional Weapons and Weapons Reviews,” Yearbook of International Humanitarian Law 8 (2005): 118. 188 United States Army Training and Doctrine Command, The U.S. Army Functional Concept for Protection 2016-2028, TRADOC Pamphlet 525-3-5 (Fort Monroe, Virginia: United States Army, 2010), 9. 189 Vego, Joint Operational Warfare: Theory and Practice, VIII–59. 190 Bailey, Field Artillery and Firepower, 11. 191 Scales Jr., Yellow Smoke: the Future of Land Warfare for America’s Military, 46. 192 Vego, Joint Operational Warfare: Theory and Practice, IX–119. 193 Ibid., VIII-59. 194 Stephen Biddle, Military Power: Explaining Victory and Defeat in Modern Battle (Princeton: Princeton University Press, 2004), 140; United States Army Training and Doctrine Command, The United States Army Operating Concept 2016-2028, 12.



How Military Commanders Go About Planning a Military Operation

35

2.2.1. The Characteristics of Materiel A. Tanks and Infantry Fighting Vehicles Tanks were originally designed to be used in open countryside and to fire at the enemy from long distances.196 However, they are also employed in urban combat to engage the enemy at close range.197 The armed forces use tanks to accompany the infantry in order to protect it.198 Tanks fire ahead of the infantry199 to suppress the adversary’s short and long range materiel.200 They enable troops to achieve sufficient firepower concentration.201 The infantry fighting vehicles are a modification of tanks.202 They have similar armour and mobility and carry three soldiers.203 Just like tanks, infantry fighting vehicles provide firepower support to dismounted infantry204 by destroying tanks and infantry fighting vehicles.205 The infantry fighting vehicles are armoured to protect them against small arms fire and artillery.206 Interestingly, tanks and infantry fighting vehicles cannot survive unless they are accompanied by the infantry to protect them from rockets, grenades, Molotov cocktails, rocket-propelled grenades and other anti-tank weapons launched by the

 195

Michael Hatamoto, “Role of Unmanned Aerial Vehicles Continues to Expand,” DailyTech, October 30, 2013, http://www.dailytech.com/Role+of+Unmanned+Aerial+Vehicles+Continues+to+E xpand/article33644.htm (accessed August 30, 2013). 196 Colonel Michael Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji (Devon: David & Charles Plc., 1992), 12. 197 Ibid. 198 Ibid., 36. 199 Ibid. 200 Ibid., 76; Nader Elhefnawy, “Defensive Armour Deployments in Urban Areas,” ARMOR January-February (2003): 15. 201 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 76; Elhefnawy, “Defensive Armour Deployments in Urban Areas,” 15. 202 Kable Intelligence Limited, “Namer Heavy Armoured Infantry Vehicles, Israel,” Army-Technology, 2015, http://www.army-technology.com/projects/namerheavy armouredin (accessed January 5, 2015). 203 Ibid. 204 John Pike, “M2 and M3 Bradley Fighting Vehicle Systems,” GlobalSecurity.org., http://www.globalsecurity.org/military/systems/ground/m2.htm (accessed August 7, 2009). 205 Ibid. 206 Ibid.



36

Chapter Two

adversary's dismounted infantry.207 In order to prevent the enemy from using short-range anti-tank weapons, the infantry should advance ahead of the tanks and infantry fighting vehicles at a distance of one to two hundred metres.208 What emerges is that infantry, tanks and infantry fighting vehicles depend on each other for survivability.209 Militaries moreover employ tanks as assault guns to make gaping holes in buildings in which the enemy shooters are located.210 The infantry squad then enters the building to kill these shooters and capture the building.211 The armed forces then position tanks near to recently taken buildings in order to prevent the adversary from recapturing them.212 Tanks and infantry fighting vehicles may be employed to break up layers of improvised explosive devices and booby traps213 to make it safe for the infantry to move. Tanks and infantry fighting vehicles are suitable for clearing barricades214 which the adversary may create to use as observation posts.215 The enemy may conceal tanks and infantry behind barricades in order to enable them to shoot from a protected location.216 Modern tanks217 and infantry fighting vehicles218 have precision capabilities. The militaries define precision as a weapons system that can

 207

Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 101; Flight Sergeant Martin Andrew, “The Russian Experience of Urban Combat Some Lessons from Central Asia,” Australian Army Journal 1, no. 2 (2003): 164. 208 Alexandre Vautravers, “Military Operations in Urban Areas,” International Review of the Red Cross 92, no. 878 (2010): 448. 209 Lieutenant Colonel Charles Knight, “Running the Gauntlet-Force Protection for Tactical Penetration in MOUT” (presented at the Land Warfare Conference, Melbourne, October, 2000), 4; United States Army, The United States Army Functional Concept for Fires 2016-2028, 17; Elhefnawy, “Defensive Armour Deployments in Urban Areas,” 15; Michael Evans, City without Joy: Urban Military Operations into the 21st Century, Australian Defence College Occasional Series (Canberra: Department of Defence, 2007), 11; Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 76. 210 Evans, City without Joy: Urban Military Operations into the 21st Century, 19. 211 Ibid. 212 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 12. 213 Vautravers, “Military Operations in Urban Areas,” 445. 214 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 110. 215 Ibid., 104. 216 Ibid. 217 United Kingdom Ministry of Defence, Operations in Iraq: Lessons for the Future, par. 5.4.



How Military Commanders Go About Planning a Military Operation

37

create a chosen effect on a selected target at the desired time, without the need to use multiple munitions.219 This means that a single munition successfully engages its target with pinpoint accuracy. In contrast, when precision munitions are unavailable, tanks fire approximately two munitions in order to successfully hit their target.220 The employment of precision munitions reduces civilian casualties.221 B. Artillery Militaries use artillery to fire at materiel at short and long ranges.222 When fired at short range, artillery destroys materiel and prevents soldiers from taking positions on the upper floors of buildings.223 Artillery protects the force by destroying targets which are located in the immediate vicinity of tanks and infantry.224 Unlike tanks and infantry fighting vehicles, artillery can engage targets that are located around housing.225 By striking targets located at a long distance,226 artillery inhibits the enemy troops from observing what is happening and moving.227 Thereby, artillery enables tanks, infantry fighting vehicles and soldiers to move across the battlefield.228 A unique characteristic of artillery is that it provides coverage with fire of the entire battlefield.229 In order to replicate this effect, it would be necessary to employ a number of tanks or infantry vehicles which move across the battlefield and fire at the materiel.230

 218

A.T.K., “Ammunition 30mm X 173mm,” A.T.K., http://www.atk.com/productsservices/30mm-x-173mm-ammunition (accessed November 5, 2014). 219 Bailey, Field Artillery and Firepower, xx. 220 Brigadier General Robert H. Scales Jr., Certain Victory: The U.S. Army in the Gulf War, 2nd ed. (Dulles: Brassey’s Inc., 1997), 9–10. 221 Sergeant 1st Class Kathleen T. Rhem, “United States Military Works to Avoid Civilian Deaths, Collateral Damage,” news release, March 5, 2003, http://www.defense.gov/news/newsarticle.aspx?id=29337 (accessed January 14, 2009). 222 Bailey, Field Artillery and Firepower, 59; Vautravers, “Military Operations in Urban Areas,” 444. 223 Vautravers, “Military Operations in Urban Areas,” 444. 224 Bailey, Field Artillery and Firepower, 15. 225 Vautravers, “Military Operations in Urban Areas,” 444. 226 Bailey, Field Artillery and Firepower, 59. 227 Ibid., 11. 228 Ibid., 59. 229 Ibid., xxi. 230 Ibid.



38

Chapter Two

Artillery may also be used to protect helicopters, drones and aircraft from the enemy air defence systems.231 The aerial assets communicate the locations of potential targets to the artillery.232 In order to survive, artillery needs to be protected by tanks or infantry fighting vehicles.233 Therefore, artillery, tanks and infantry vehicles should be employed in conjunction. Typically, militaries used observers to communicate the location of the targets to the artillery.234 Although states developed sensors which are able to locate materiel, it continues to be necessary for observers to coordinate the attacks in urban combat.235 This is because the enemy is likely to move after firing in order to reduce the chances of being detected. Currently, precision munitions are available for artillery.236 This enables the artillery to engage specific targets in populated areas.237 Artillery which is not equipped with precision-guided munitions fires multiple munitions, in order to successfully destroy a military objective.238 In the future, munitions equipped with a camera will be developed.239 These will allow the soldiers to monitor how the situation evolves after they fire the munition, and to abort or change the mission.240 C. Mortars Mortars and artillery are similar.241 Militaries employ mortars and artillery to force the enemies to disclose their presence.242 When fired at, the troops move to change their location or return fire.243 Militaries also use mortars

 231

Ibid., 442. Ibid. 233 Ibid., xxiii. 234 Corn and Corn, “The Law of Operational Targeting: Viewing the L.O.A.C. Through an Operational Lens,” 370. 235 Bailey, Field Artillery and Firepower, 532. 236 Ibid., 440. 237 Ibid., 12. 238 Ibid. 239 Eric Schechter, “Kamikaze Drones: Miniature Munitions for Dismounted Troops,” ArmyTimes, August 14, 2013, http://www.armytimes.com/article/20130814/NEWS04/308140013/Kamikazedrones-Miniature-munitions-dismounted-troops (accessed February 8, 2015). 240 Ibid. 241 Vautravers, “Military Operations in Urban Areas,” 447. 242 John Pike, “Indirect Fire,” GlobalSecurity.org, http://www.globalsecurity.org/military/systems/ground/indirect.htm (accessed July 5, 2009). 243 Ibid. 232



How Military Commanders Go About Planning a Military Operation

39

in urban combat to support and to protect the infantry from enemy materiel.244 Since precision munitions are currently available for mortars,245 mortars can engage military objectives with pinpoint accuracy, just like artillery. The difference between using artillery and mortars to fire at targets from a distance is that a smaller distance may be maintained between the mortars and own troops, in order to prevent casualties among one’s own troops.246 Artillery should be used at least one thousand metres away from one’s troops, while mortars may be employed from a shorter distance.247 Accordingly, mortars provide protection to ground troops from enemy materiel which is located at a shorter distance than one thousand metres.248 D. Drones, Aircraft, Helicopters Militaries employ helicopters, aircraft and drones to protect ground troops by destroying enemy materiel 249 What is more, aerial assets communicate the location of military objectives to soldiers who man ground-based materiel.250 The employment of these assets enables commanders to overcome the enemy, whilst employing fewer ground troops.251 When ground troops are supported by aerial assets, they sustain lower casualties than when such resources are unavailable.252 Moreover, when the infantry has helicopters, aircraft or drones at its disposal, it is able to move more freely across the battlefield in order to take up positions of advantage in relation to the enemy.253

 244

Bailey, Field Artillery and Firepower, 92. B.A.E. Systems, “Precision Guided Mortar Munition (PGMM),” B.A.E. Systems http://www.baesystems.com/ProductsServices/bae_prod_eis_pgmm.html (accessed July, 2009). 246 Vautravers, “Military Operations in Urban Areas,” 447. 247 Ibid. 248 Ibid. 249 Johnson, Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era, 38-39. 250 Ibid. 251 Ibid.; Vego, Joint Operational Warfare: Theory and Practice, V-51. 252 Jordan, “Air and Space Warfare,” 210. 253 Vego, Joint Operational Warfare: Theory and Practice, IX-119. 245



40

Chapter Two

Military experts such as Sinclair argue that air assets are more effective at destroying military objectives than ground-based materiel.254 Nevertheless, air power has not made artillery, mortars, tanks and infantry fighting vehicles redundant.255 Air and ground-based assets need to be used jointly.256 One of the reasons for this is that air assets are more vulnerable to enemy fire than mortars and artillery.257 For instance, artillery can be protected from being detected by radar, by being positioned behind buildings.258 Artillery can change its location after firing, in order to make it difficult for the enemy to respond with retaliatory fire.259 It is possible to wrap special nets around artillery to make it challenging for the enemy to locate it.260 These nets scatter heat radiation which is being emitted by artillery.261 As a result, the sensors that detect heat emission display a blurred image to the adversary on the screen.262 Another advantage of artillery over aircraft and helicopters is that it is capable of simultaneously engaging multiple targets.263 While two aircraft could potentially fulfill the role of a single artillery unit, it is more practical to employ aircraft and artillery in conjunction. E. The Role of Precision Capabilities The employment of air-dropped precision-guided bombs and groundbased materiel with precision capabilities not only reduces injury to civilians but additionally benefits the force. According to Major General Jonathan Bailey, because it is sufficient for the force to employ a single munition to destroy a military objective, materiel with precision capabilities264 can destroy more targets and as a result protect the force to a greater extent.265 Other advantages include winning the battle more

 254

E.J. Sinclair “Aviation in Operational Maneuver,” news release, U.S. Army Aviation Warfighting Center, undated, quoted in Johnson, Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era, 122. 255 Vego, Joint Operational Warfare: Theory and Practice, XIII-37; Bailey, Field Artillery and Firepower, 61. 256 Bailey, Field Artillery and Firepower, 61. 257 Ibid., xxi. 258 Ibid., 135-136. 259 Ibid. 260 Ibid., 136. 261 Ibid. 262 Ibid. 263 Ibid., 442. 264 Ibid., xxi. 265 Ibid., 137.



How Military Commanders Go About Planning a Military Operation

41

quickly,266 suffering fewer cases of accidentally killing friendly forces267 and using fewer munitions.268 Equally, air-dropped precision-guided bombs are more effective than ordinary, or “dumb bombs.” To illustrate, fifteen dumb bombs are needed to create the effect of a single precision-guided bomb.269 Consequently, when precision-guided bombs are employed, the pilots need to execute fewer sorties.270 Since the pilots spend less time in the air, they are exposed to less risk.271 In contrast, when a pilot employs dumb bombs, it may be necessary to re-strike the military objective in order to successfully place the bomb onto the military objective.272 This results not only in exposure of the pilot to greater danger but additionally in the consumption of more resources. Another problem with dumb bombs is that they are more likely to create craters than precision-guided bombs, because they can land some distance from the target.273 Craters make it difficult for tanks to move in urban areas and to support the infantry.274 Therefore, commanders in assessing whether to use ordinary or precision-guided bombs and materiel do not

 266

Ibid., 362. Ibid. 268 Ibid., xxi–xxii. 269 Ibid.; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 114-115; United States General Accounting Office, Operation Desert Storm: Evaluation of the Air Campaign Doc. GAO/NSIAD-97-134 (Washington, DC: United States General Accounting Office, 1997), 188, quoted in Giulio Bartolini, “Air Operations against Iraq (1991 and 2003),” in The Law of Air Warfare: Contemporary Issues, ed. Natalino Ronzitti and Gabriella Venturini (Utrecht: Eleven International Publishing, 2006), 262. 270 Ibid.; Nathan A. Canestaro, “Legal and Policy Constraints on the Conduct of Aerial Precision Warfare,” Vanderbilt Journal of Transnational Law 37 (2004): 452. 271 Canestaro, “Legal and Policy Constraints on the Conduct of Aerial Precision Warfare,” 452. 272 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 114-115; United States General Accounting Office, Operation Desert Storm: Evaluation of the Air Campaign, 188. 273 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 114-115. 274 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 36-37. 267



42

Chapter Two

face a tension between military and humanitarian requirements. The precisionguided munitions are good for civilians and the military. Fortunately, precision-guided bombs have become increasingly affordable.275 In 2011 militaries could buy basic precision-guided bombs for fifteen thousand American dollars and the most advanced models for a quarter of a million per bomb.276 This affordability is in part due to scientists having developed a guidance kit, which when attached to a dumb bomb, converts it into a precision-guided bomb.277 Unfortunately, not all states and paramilitary groups can afford to buy precision-guided bombs and munitions. Consequently, parties to a conflict will continue to use dumb bombs and munitions. 2.2.2. How Commanders Decide which Assets to Pair Together The descriptions of materiel show that no asset has an equivalent asset that has all of its characteristics. For instance, aircraft unlike artillery cannot strike multiple military objectives across the battlefield. Furthermore, different types of materiel complement each other. Infantry fighting vehicles are suitable for firing at military objectives located a short distance away, while mortars are suited for engaging targets from long distances. During World War I states noticed that teaming together different materiel which complement each other, due to their contrasting strengths and weaknesses, is beneficial.278 Since each type of materiel compensates for the shortcomings of the other arms,279 the resulting materiel package is said to be “greater than the sum of its parts.”280 Pairing up different types of materiel which complement each other gives commanders more flexibility to counter the enemy, even as the enemy

 275

Franky, “NATO Running Out of Laser Guided Bombs In Libya,” Laser Weekly, May 10, 2011, http://www.laserweekly.com/nato-running-out-of-laser-guidedbombs-in-libya (accessed January 28, 2009); Schmitt, “Precision Attack and International Humanitarian Law,” 449; Christian Ponti, “Air Operations Against Afghanistan (2001-2002),” in The Law of Air Warfare: Contemporary Issues, ed. Natalino Ronzitti and Gabriella Venturini (Utrecht: Eleven International Publishing, 2006), 316. 276 Franky, “NATO Running Out of Laser Guided Bombs In Libya,” Laser Weekly, May 10, 2011. 277 Ibid.; Schmitt, “Precision Attack and International Humanitarian Law,” 449; Ponti, “Air Operations Against Afghanistan (2001-2002),” 316. 278 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 33. 279 Ibid., 37. 280 United States Army Training and Doctrine Command, The United States Army Operating Concept 2016-2028, 12.



How Military Commanders Go About Planning a Military Operation

43

adapts to their tactics.281 The force can move across the battlefield with greater speed,282 identify weaknesses and exploit opportunities.283 This enables the troops to take the enemy by surprise. According to Lieutenant Colonel Charles Knight, the employment of different types of materiel which complement each other keeps casualties among commanders’ troops low.284 He moreover believes that pairing up together different materiel with contrasting strengths and weaknesses is especially important for succeeding in urban combat.285 This idea for choosing how to pair together materiel is known as “combined arms” warfare.286 Despite the passage of time, states continue to exhibit a preference for employing “combined arms” warfare.287 2.2.3. The Implication of the Choice of Materiel for Civilians Given the fact that no materiel has an equivalent substitute, the commander will prefer not to forgo employing a specific type of asset. Meanwhile, the civilians will prefer that particular types of materiel be substituted with an alternative which has a similar function but which causes less injury to civilians and damage to civilian objects. For instance, civilians benefit when commanders employ helicopters or aircraft, instead of mortars and artillery, for attacking targets from a distance.288 When British troops faced rocket attacks while on patrol in Afghanistan, they tended to call in an Apache helicopter rather than mortars, due to concern for civilian casualties.289 The employment of precision-guided artillery and

 281

United States Army, The Army Capstone Concept Operational AdaptabilityOperating Under Conditions of Uncertainty and Complexity in an Era of Persistent Conflict, TRADOC Pamphlet 525-3-0 (Fort Monroe, Virginia: United States Army Training and Doctrine Command, 2009), 15. 282 United States Army Training and Doctrine Command, The United States Army Operating Concept 2016-2028, 12. 283 Ibid. 284 Knight, “Running the Gauntlet-Force Protection for Tactical Penetration in MOUT,” 4. 285 Ibid., 4; United States Army, The United States Army Functional Concept for Fires 2016-2028, 17. 286 United States Army Headquarters, Army Field Manual FM 3-0 Operations (Washington, DC: United States Government Printing Office, 2008), Glossary-3. 287 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 52; United States Army Training and Doctrine Command, The United States Army Operating Concept 2016-2028, 12. 288 Bailey, Field Artillery and Firepower, 426. 289 Ibid.



44

Chapter Two

mortars, which automatically detect the source of incoming fire, choose a weapon and fire back,290 also poses a challenge when protecting civilians.291 Unless a detailed map of the area in which a military operation is taking place is programmed into the artillery or mortar unit, such systems will not refrain from firing back at the enemy when civilian objects, such as hospitals and shelters, are in the proximity of the target. Currently, such maps are not programmed into artillery and mortars.292 In order to protect civilians, the unit will need to have an observer whose main job is to identify targets for artillery and mortars.293 Furthermore, from the standpoint of protecting civilians, it is better to use tanks or infantry fighting vehicles instead of mortars and artillery.294 This discussion demonstrates what substitutions in materiel a commander may consider making as part of complying with a duty to take measures to spare civilians from the effect of the attack. Of course, in practice, a commander is unlikely to be able to forgo the use of a particular type of materiel. Although assets may have similar capabilities, each one has its specific uses. In order to win the battle, commanders need to use a combination of materiel, which enables the troops to attack the enemy from short and long ranges. Accordingly, when deliberating what means of warfare to employ, commanders face a tension between protecting civilians and achieving greater lethality. They are more likely to be willing to substitute a number of artillery pieces with aircraft, as opposed to forgoing the employment of artillery altogether. Urban combat will now be used to demonstrate how each stage of a military operation influences commanders’ decisions on what means of warfare to employ and how much firepower to apply. In turn, this decision affects what degree of danger the attack exposes civilians. 2.2.4. Choice of Materiel and Stages of a Military Operation The commander chooses weapons and tactics in order to best exploit the unique characteristics of the terrain.295 The party to the conflict who

 290

Ibid., 516. Vautravers, “Military Operations in Urban Areas,” 448. 292 Ibid. 293 Ibid. 294 Bailey, Field Artillery and Firepower, 442; Corn and Corn, “The Law of Operational Targeting: Viewing the LOAC Through an Operational Lens,” 370371. 295 Tuck, “Land Warfare,” 116. 291



How Military Commanders Go About Planning a Military Operation

45

responds to an attack in a densely populated area enjoys an advantage.296 The troops can use basements, underground subway tunnels, alleys, streets and sewers297 to conceal their positions from the enemy.298 Colonel Michael Dewar comments that “if the enemy has chosen his ground well, he will be in a position to dominate the approaches to the city limits, both by observation and fire.”299 Those attacking on the other hand “are more likely to be in the open.”300 Traditionally, in urban combat attackers conduct reconnaissance to pinpoint the location of enemy targets and surround the city with their troops.301 Attackers subsequently use firepower to gain initial control of an area in the city.302 Having gained control over an area, the troops conduct operations designed to expel the enemy from individual buildings.303 As forces take buildings one by one, they expand their control over the city.304 According to Colonel Dewar, because the defender benefits from being located in a populated area, the attacker will find it necessary to use “overwhelming firepower” in order to take control over an area in the city.305 However, once the forces have established control, the advantage the defender enjoys diminishes.306 At that point the parties to the conflict fight at close quarters.307 Therefore, the attacker at this stage can use less firepower.308 Since the attacking troops are exposed to varying degrees of danger depending on the stage of the military operation, commanders may feel a genuine need to employ artillery, mortars and aircraft309 in the early stages of a military operation.310 Commanders will find it more difficult to

 296

Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 12. Lieutenant General Paul K. Van Riper, “A Concept for Future Military Operations on Urbanized Terrain” (Department of the Navy Marine Corps Combat Development Command, July 25, 1997), 16. 298 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 67. 299 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 12. 300 Ibid. 301 Van Riper, “A Concept for Future Military Operations on Urbanized Terrain,” 18. 302 Ibid. 303 Ibid., 8. 304 Ibid. 305 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 12. 306 Ibid. 307 Ibid. 308 Ibid. 309 Ibid. 310 Ibid. 297



46

Chapter Two

justify considerable reliance on artillery and mortars at the stage when the infantry uses force to seize key buildings in the city.311 Lieutenant General Paul K. Van Riper proposes an alternative approach which a commander could adopt to capture populated areas.312 He argues that the troops should infiltrate into the city and attack dispersed targets which they judge to be critical to the enemy’s ability to fight.313 Where commanders choose to rely on this approach to capturing urban centres, the ground forces are likely to need to employ more firepower until they reach the key targets. They will be able to employ less firepower once they reach the military objectives they are about to attack. As Colonel Dewar observes, the forces do not need to use as much firepower once they are engaged in close quarter combat.314 It can be gleaned from this discussion that circumstances dictate when commanders may either forgo employing particular materiel, or decrease their reliance on such materiel, in order to reduce civilian casualties and destruction. The stage of the military operation determines what measures a commander may take to reduce danger to civilians without compromising the chances of winning.

2.3. Movement and Manoeuvre According to Major General Robert Scales, the main challenge for commanders is to determine the proper balance between reliance on firepower and on manoeuvre.315 Manoeuvre involves the skilful movement of materiel and troops into a position where the forces have an advantage over the enemy.316 In international humanitarian law the way in which commanders employ materiel and troops is known as “methods” of warfare.317 Because international humanitarian law regulates the selection of means and methods of warfare, an understanding of how commanders integrate the use of firepower with tactics is crucial for understanding how commanders apply legal rules to battlefield scenarios. Manoeuvre plays two roles. Commanders cannot win battles by merely firing at the enemy from a long range. In order to make permanent the

 311

Ibid. Van Riper, “A Concept for Future Military Operations on Urbanized Terrain,” 8. 313 Ibid., 18. 314 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 12. 315 Scales Jr., Yellow Smoke: the Future of Land Warfare for America’s Military, 30. 316 Vego, Joint Operational Warfare: Theory and Practice, VII-53. 317 Hays Parks, “Conventional Weapons and Weapons Reviews,” 118. 312



How Military Commanders Go About Planning a Military Operation

47

military advantage conferred by destroying military objectives from a distance, the ground troops should execute manoeuvres and move into area.318 The second significance of manoeuvre is that, by protecting the force, it enables commanders to win battles with fewer casualties and lower expenditure of materiel.319 Operation Grapes of Wrath 1996 illustrates that when commanders merely fire at the enemy from a distance, they do not win the battle, while inflicting high civilian casualties.320 In this particular operation Israel used only artillery to respond to Hezbollah fighters who had fired Katyusha artillery rockets into Israeli territory from a village in Lebanon.321 In order to protect themselves, Hezbollah fighters emerged from houses, set up their launchers, fired at Israeli positions and departed within one minute.322 Israel did not succeed in killing many of them.323 This was largely because Hezbollah was able to move to a different location by the time the artillery munition had reached its target.324 Meanwhile, the Israeli artillery strikes killed one hundred and thirty five Lebanese civilians and wounded another forty.325 The lesson of Operation Grapes of Wrath 1996 is that firing at the enemy from a distance does not enable commanders to kill enemy forces. The United States of America grew disenchanted with using technology to engage the enemy from a safe distance.326 It reverted back to employing the joint capabilities of the air force, the army and the navy327 following the unsuccessful trial of the concept of “network-centric warfare.”328 The Department of Defense introduced the concept of “network-centric

 318

Scales Jr., Yellow Smoke: the Future of Land Warfare for America’s Military, 30. Evans, War: a Matter of Principles, 134; Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 52-54; Bailey, Field Artillery and Firepower, 124. 320 Rebecca Barber, “The Proportionality Equation: Balancing Military Objectives and Civilian Lives in the Armed Conflict in Afghanistan,” Journal of Conflict and Security Law 15, no. 3 (2010): 467. 321 Bailey, Field Artillery and Firepower, 402. 322 Ibid. 323 Ibid. 324 Ibid., 401-402. 325 Ibid., 402. 326 United States Army, The Army Capstone Concept Operational AdaptabilityOperating Under Conditions of Uncertainty and Complexity in an Era of Persistent Conflict, 10-13. 327 Ibid., 8. 328 Ibid., 10-13. 319



48

Chapter Two

warfare” in 2003.329 At that point military theorists at the Department of Defense believed that the advent of advanced information systems and precision-guided bombs had created a “Revolution in Military Affairs.”330 They propositioned that ground troops should identify targets for the air force, coordinate the air strikes and occupy the territory once the pilots had annihilated the enemy.331 To enable such operations, the armed forces linked sensors, which searched for military objectives, to informationprocessing centres and to aircraft.332 This meant that a single network linked and enabled communication between sensors, aircraft and the infantry.333 Despite having implemented “network-centric warfare,” the United States of America was unsuccessful at identifying the enemy positions in Operation Enduring Freedom 2001 and Operation Iraqi Freedom 2003.334 Biddle, a military theorist, comments that pilots who drop precisionguided bombs do not kill enemy troops as long as such troops exploit the physical features of the land to conceal their location or to physically shield themselves.335 Other tactics available to the enemy include using dummy materiel, employing obscurants to impair the pilot’s visibility, suppressing the signature emitted by their materiel and jamming enemy aircraft in order to make them more vulnerable to being shot down.336

 329

Director of Force Transformation (OSD), Network-Centric Warfare: Creating a Decisive Advantage (Washington, DC: Department of Defense, 2003). 330 United States Department of Defense, Quadrennial Defense Review Report (Washington, DC: United States Department of Defense, September 30, 2001), 6-7; Tuck, “Land Warfare,” 107-109; Farrell, “The Dynamics of British Military Transformation,” 778. 331 United States Department of Defense, Quadrennial Defense Review Report, 21; Tuck, “Land Warfare,” 107-109; Farrell, “The Dynamics of British Military Transformation,” 778. 332 United States Department of Defense, Quadrennial Defense Review Report, 26; Director of Force Transformation (OSD), Network-Centric Warfare: Creating a Decisive Advantage, 2. 333 Director of Force Transformation (OSD), Network-Centric Warfare: Creating a Decisive Advantage, 2. 334 United States Army, The Army Capstone Concept Operational AdaptabilityOperating Under Conditions of Uncertainty and Complexity in an Era of Persistent Conflict, 10-13. 335 Johnson, Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era, 110. 336 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 58.



How Military Commanders Go About Planning a Military Operation

49

Of course, there are unique circumstances when air power on its own may enable states to achieve the goals of the military campaign. The state will succeed if it uses solely air strikes provided the political objectives of the armed conflict are limited.337 For example, the goal of the United States of America during Operation Desert Storm 1991 was to expel the Iraqi forces from Kuwait.338 Where the political objectives of the campaign are not so limited, the state can only attain them if it gains control over the territory.339 It is impossible to consolidate gains in territory unless the armed forces inflict attrition onto the enemy.340 An example of such a campaign is Operation Iraqi Freedom 2003, in which the aim of the Coalition was regime change in Baghdad.341 2.3.1. The Relationship between Manoeuvre and Force Protection Commanders employ both firepower and manoeuvre so as to protect the force.342 In order to reduce danger to the troops, the force should use the following tactics. The infantry and materiel should move across the battlefield rapidly in order to make it difficult for the enemy to locate them.343 Dispersing the troops and materiel reduces the vulnerability of the force by limiting the number of targets in the blast radius of any given shell fired by the adversary.344 The troops should use natural and artificial objects such as buildings to shield them from enemy fire.345 In order to prevent the sensors and men from conducting surveillance and observation, the troops should conceal their whereabouts, by for instance executing operations at night.346 These measures make it harder for the adversary to detect targets through limiting the line of sight of the enemy’s weapons and materiel.347 The employment of these tactics moreover makes it harder for the sensors to locate targets and diminishes the advantage conferred by precision-guided bombs.348 Biddle conducted

 337

Vego, Joint Operational Warfare: Theory and Practice, XI-57, XI-61. Ibid., XIII-38. 339 Ibid., XI-56, XI-60. 340 Ibid., XI-61. 341 Ibid., XIII-38. 342 Bailey, Field Artillery and Firepower, 121. 343 Ibid., 121-122. 344 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 36. 345 Ibid., 56. 346 Ibid., 141. 347 Ibid., 35-36. 348 Ibid., 52-54 . 338



50

Chapter Two

historical analysis, statistical analysis and applied combat simulation methodologies to past battles in order to study the effect of employing these tactics.349 He found that unless the force employs these tactics, it will be unable to adequately protect itself, even if it uses firepower plentifully.350 Biddle’s observations remain relevant despite constant evolution in available technologies. The newest drone models can track the movement of individuals and vehicles from an altitude of twenty thousand feet.351 In order to make it difficult for the drone pilot to identify troops and materiel, a party to the conflict will try to take advantage of features such as forests and populated areas. The troops and materiel will disperse. The forces may construct tunnels to enable them to move without being detected. For instance Hezbollah constructed such tunnels across the whole of Lebanon to conceal its movement.352 Although the way in which commanders employ the force is a powerful factor in whether they win the battle, another important feature is the qualitative characteristics of the force. When troops are led by experienced and charismatic commanders, are well trained, have high morale and are disciplined,353 their effectiveness dramatically increases. This suggests that commanders who have well trained troops and who effectively adopt various tactics to protect the troops will be able to take more measures in order to reduce danger to which the attack exposes civilians. 2.3.2. Balancing the Employment of Firepower with Movement In planning a military operation, commanders choose between two options.354 The force may use brief bursts of fire to prevent the enemy from manning the materiel and moving in order to move into a position of

 349

Ibid., 10-11. Ibid., 190-192. 351 BBC News, “U.S. Army Unveils 1.8 Gigapixel Camera Helicopter Drone,” BBC News, December 29, 2011. 352 “Network of Hezbollah Tunnels Discovered in Lebanon,” Happening Now, Video (New York: Fox News, May 31, 2011). 353 Vego, Joint Operational Warfare: Theory and Practice, III-33, III-34. 354 Tuck, “Land Warfare,” 77; Scales Jr., Yellow Smoke: the Future of Land Warfare for America’s Military, 45-46. 350



How Military Commanders Go About Planning a Military Operation

51

advantage.355 The infantry then engages enemy targets.356 Alternatively, commanders may instruct the infantry to move into positions of advantage in relation to the enemy and to then employ materiel to fire at enemy targets.357 To illustrate, during the Vietnam War, once the American infantry located the insurgents, they moved away and left it to the artillery to bomb the insurgents from a distance.358 Military experts disagree over which of these two approaches is preferable from a military point of view.359 Arguably, moving the infantry into advantageous positions and then relying primarily on firepower to overcome the adversary is less effective. The employment of materiel creates more rubble than infantry fire. In turn, rubble slows down the pace of movement of materiel such as artillery and provides potential hiding positions for the enemy force.360 Additionally, when rubble is created, it produces smoke and dust.361 Smoke and dust impair the field of observation of the force.362 Therefore, commanders benefit from employing materiel to enable the infantry to move under fire. What is of equal importance is that an emphasis on manoeuvre reduces civilian casualties and damage to civilian objects. Of course, it is not the case that commanders will in all instances be able to employ materiel to support the moving infantry. For instance, an infantry unit may come under heavy fire in urban combat which originates from around an adjacent building. The members of the infantry unit may find that they cannot use buildings for protection because the enemy snipers have taken positions in the adjacent buildings. In such cases the soldiers will communicate with their colleagues and ask them to direct

 355

Tuck, “Land Warfare,” 77; Vego, Joint Operational Warfare: Theory and Practice, IX-119; Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 78. 356 Ibid. 357 Lieutenant Colonel David Kilcullen, “The Essential Debate: Combined Arms and the Close Battle in Complex Terrain,” Australian Army Journal 1, no. 2 (2003): 68. 358 Bailey, Field Artillery and Firepower, 371-372. 359 Kilcullen, “The Essential Debate: Combined Arms and the Close Battle in Complex Terrain,” 68-69; Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 78. 360 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 104. 361 Ibid., 102. 362 Ibid.



52

Chapter Two

mortar fire at the enemy positions.363 They will prefer not to wait for a helicopter to arrive in order to reduce their own casualties.364 This suggests that both civilians and the military may benefit from employing firepower in support of the troops, as opposed to troops primarily relying on firepower. However, there are also circumstances when there is a tension between the desire of commanders to make greater reliance on firepower, and the wishes of civilians, who have a preference for less intensive use of firepower. Because the law requires commanders to choose means and methods of warfare with a view to avoiding or minimising injury to civilians and damage to civilian objects, commanders assume a degree of risk to their force when they make less reliance on firepower.

2.4. Additional Measures Commanders may take to Reduce Harm to Civilians General H. Norman Schwarzkopf said in a news briefing that when bombing a military objective from the air, the pilot may need to assume a degree of risk by following a specific flight path.365 This will allow the pilot to release the bomb at a specific angle.366 The manipulation of the angle results in the fragmentation from the explosion travelling away from the facilities one wishes to avoid damaging.367 To illustrate, during Operation Allied Force 1999 NATO chose the munitions and the angle of attack carefully in order to reduce incidental injury to civilians and damage to nearby civilian objects.368 As a result, the Socialist Party

 363

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 340. 364 Ibid., 129 n. 265. 365 Richard Pyle, Schwarzkopf: The Man, The Mission, The Triumph (New York: Signet Books, 1991), 202-203; New York Times, “War in the Gulf: Military Briefing; Excerpts From Remarks by General Schwarzkopf in Riyadh,” New York Times, January 28, 1991, http://www.nytimes.com/1991/01/28/world/war-gulfmilitary-briefing-excerpts-remarks-general-schwarzkopfriyadh.html?pagewanted=1 (accessed June 4, 2009). 366 Ibid. 367 Senior Defense Official, “Background Briefing on Targeting,” news release, March 5, 2003, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2007 (accessed March 22, 2009). 368 Dana Priest, “Tension Grew with Divide Over Strategy,” Washington Post, September 21, 1999, A16.



How Military Commanders Go About Planning a Military Operation

53

Headquarters building collapsed inwardly.369 In turn, this decreased the radius in which the concrete and shattered glass was propelled.370 In order to reduce the risk to which the attack exposes civilians, commanders should instruct pilots to carry out an air strike at a time of the day when civilians would least be affected.371 For instance, during Operation Desert Storm 1991 the United States of America normally scheduled attacks against facilities which served both military and civilian purposes at night.372 The realities of the battlefield mean that states did not commit themselves to only carrying out attacks at times of the day when civilians will be least harmed.373 The reason for this is that when the enemy knows when pilots ordinarily carry out air strikes, the adversary can take steps to avoid being killed.374 If pilots bomb roads and bridges at night time, then the adversary could use such infrastructure only at day time.375 Another problem is that if the time when an attack will take place can be anticipated, the enemy is able to position mobile air defence systems close to the military objectives. Yet another difficulty with making a commitment to attack military objectives at a specific time of the day is that commanders will find it challenging to set the terms of the battle by acting more quickly than the enemy.

2.5. Force Protection It is known that the application of firepower prevents the enemy force from manning their equipment376 and that employment of manoeuvre protects the force.377 Although the employment of firepower and manoeuvre reinforce each other,378 there comes a point at which employing additional manoeuvre benefits only civilians. Similarly, the

 369

Ibid. Ibid. 371 Ariane L. DeSaussure, “The Role of the Law of Armed Conflict During Persian Gulf War: an Overview,” Air Force Law Review 37 (1994): 65-66. 372 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 100. 373 DeSaussure, “The Role of the Law of Armed Conflict During Persian Gulf War: an Overview,” 65-66. 374 Ibid. 375 Ibid. 376 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 126127. 377 Vego, Joint Operational Warfare: Theory and Practice, VIII-59. 378 Ibid. 370



54

Chapter Two

force is protected to a greater extent when it engages with the enemy from a distance. Meanwhile, the employment of materiel such as artillery and mortars expose civilians to additional danger. Another measure commanders may take to reduce casualties among their troops is to take the enemy by surprise.379 When the troops are caught off guard, they will find it more difficult to organise themselves380 and prepare their defence.381 Taking the enemy by surprise may also enable commanders to win battles with fewer soldiers.382

3. Conclusions Determining what military missions to carry out, how to allocate intelligence, surveillance and reconnaissance assets between missions, what weapons to use and what tactics to employ entails weighing up interrelated considerations. How commanders allocate the limited intelligence, surveillance and reconnaissance assets shapes what military objectives they decide to attack. In turn, this decision influences what materiel the troops use and what tactics they employ. Since commanders aim to inflict particular effects on the enemy, they tailor their means and methods of warfare to the adversary’s means and methods of warfare. When commanders make choices that focus on maximising the effectiveness of the troops, civilians may benefit indirectly. For instance, the collection of intelligence about the location of enemy materiel enables the forces to better protect themselves by dispersing and concealing themselves from enemy observation. When the force needs less firepower support from materiel, because they are protected, fewer civilians are killed and fewer civilian objects are damaged. Although there may be a convergence between military and humanitarian interests, this is not always the case. Frequently, commanders have to make a trade-off between the two. As a consequence, the law intervenes to ensure that military exigencies are not allowed to trump humanitarian requirements. In assessing which means and methods of warfare they can

 379

A.P.V. Rogers, Law on the Battlefield, 2nd ed. (Manchester: Manchester University Press, 2004), 101. 380 Evans, War: a Matter of Principles, 52; Dwight Roblyer, “Beyond Precision: Issues of Morality and Decision-making in Minimizing Collateral Casualties,” ACDIS Occasional Paper April (2004): 26. 381 Rogers, Law on the Battlefield, 101. 382 Evans, War: a Matter of Principles, 52; Roblyer, “Beyond Precision: Issues of Morality and Decision-making in Minimizing Collateral Casualties,” 26.



How Military Commanders Go About Planning a Military Operation

55

employ to reduce danger to civilians, commanders bear in mind the complex way in which materiel and tactics interrelate. Although commanders may have an array of various assets available to them, there are limitations to how much commanders may forgo employing particular types of materiel in order to reduce civilian harm. At the same time, because commanders may integrate different weapons and tactics in a multitude of ways, commanders will usually have options available to them for mitigating harm to civilians. The information presented in this chapter has relevance for all future chapters. It provides the necessary background context for understanding the obligations imposed by the rules of targeting, what the grey areas in the law are and propositions for addressing the lacunae in the law. For instance, it is impossible to test a hypothesis regarding how commanders select what measures to take to spare civilians if one does not know what assets are available to them and what principles they use to guide their choice of weapons and tactics. The case studies presented in this chapter will be used throughout the book in order to illustrate additional points.



CHAPTER THREE AN INTRODUCTION TO THE RULES OF TARGETING

Under customary international law, parties to the armed conflict are obligated to take constant care to spare the civilian population and civilian objects.1 The rules of targeting provide a framework for implementing this obligation.2 The rules of targeting are (1) the principle of distinction, (2) the rule of target verification, (3) the principle of the least feasible damage, (4) the principle of proportionality and (5) the requirement to issue an effective advance warning of the attack. The rules of targeting blend seamlessly into the planning and execution of a military operation in the sense that each rule governs a particular stage of an attack. The rules of targeting regulate aspects of military planning, which range from questions of how much intelligence to gather to what means and methods of warfare to employ. Although each of these rules imposes a distinct obligation on the attacker, they should not be viewed as being mutually exclusive. To illustrate, the means of warfare a commander has, as well as how fully trained the troops are, have a bearing on the application of multiple rules. The available means of warfare and characteristics of the troops shape a commander’s assessment of whether the situation does not permit the warning of civilians about the forthcoming military operation. Available materiel, weapons, tactics and the characteristics of troops, moreover, influence what substitutions in materiel a commander may make in order to spare civilians. In order to understand the rules of targeting and how they operate, it is best to view them as a set of rules which mutually reinforce each other.

 1

Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol. 2 (Cambridge: Cambridge University Press, 2005), 336. 2 United Nations General Assembly, Resolution 2675 (1970), Twenty-Fifth Session, Basic Principles for the Protection of Civilian Populations in Armed Conflict, Doc. A/RES/2675 (New York: United Nations, December 9, 1970), par. 3, quoted in Ibid., 341.

An Introduction to the Rules of Targeting

57

1. The Principle of Distinction The principle of distinction requires that: “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.”3

The upshot of this rule is that the parties to the conflict must only target military objectives, combatants and individuals who take a direct part in hostilities.4 The principle of distinction is codified in Art. 48 of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 1977, usually referred to as API 1977 (and hereinafter referred to as such).5 This treaty is usually referred to as API 1977. The International Court of Justice in its Legality of the Threat or Use of Nuclear Weapons Advisory Opinion held that the principle of distinction is an “intransgressible” principle of international customary law in international and non-international armed conflict.6 Although the principle of distinction sets a bright line of what attackers may and may not do, its application in battlefield scenarios is not straightforward. The challenge for individuals on the ground when applying this rule lies in the fact that they lack complete information about the situation on the battlefield.7 The situation rapidly evolves.8 This difficulty is exacerbated by the fact that parties to the conflict do not always wear uniforms or distinctive signs to distinguish themselves from the civilians.9 A rule which complements the

 3

Art. 48 API 1977. Ibid. 5 Ibid. 6 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, par. 79; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol. 1 (Cambridge: Cambridge University Press, 2005), 3-4. 7 von Clausewitz, Principles of War, 51. 8 Ibid. 9 Eric Schmitt and C.J. Chivers, “In Strikes on Libya by NATO, an Unspoken Civilian Toll,” New York Times, December 17, 2011, http://www.nytimes.com/2011/12/18/world/africa/scores-of-unintended-casualtiesin-nato-war-inlibya.html?pagewanted=all&_r=0 (accessed January 4, 2015); Richard Norton-Taylor, “Asymmetric Warfare,” Guardian, October 3, 2001, http://www.theguardian.com/world/2001/oct/03/afghanistan.socialsciences 4

58

Chapter Three

principle of distinction is that of target verification. In order to put attackers into a position where they are able to distinguish between legitimate and unlawful targets,10 the rule of target verification tells attackers what measures they should take in order to verify that the target is a military objective or a combatant.11

2. The Rule of Target Verification Article 57(2)(a)(i) API 1977 encapsulates the rule of target verification.12 According to this provision: “those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 [of API 1977], and that it is not prohibited by the provisions of this Protocol to attack them.”13

The International Criminal Tribunal for the former Yugoslavia Trial Chamber in the case Prosecutor v. Kupreškiü et al.found Art. 57 to have customary international law status and not to be contested by any state.14 Henckaerts and Doswald-Beck extensively studied the practice of states and came to the same conclusion, evidencing customary law status in both international and non-international armed conflict.15 They highlight that

 (accessed November 1, 2013); Assistant Attorney General Jay S. Bybee, Memorandum from Assistant Attorney General Jay S. Bybee to the White House Counsel on the Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949 (United States Department of Justice, February 7, 2002), 3; Assistant Attorney General Jay S. Bybee, Memorandum for Alberto R. Gonzales Counsel to the President and William J. Haynes II General Counsel of the Department of Defense Re Application of Treaties and Laws to Al Qaeda and Taliban Detainees (United States Department of Justice, January 22, 2002), 10. 10 Sandoz, Swinarski, and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 679 par. 2189; Stefan Oeter, “Methods and Means of Combat,” in The Handbook of Humanitarian Law in Armed Conflicts, ed. Dieter Fleck (Oxford: Oxford University Press, 2003), 182-183. 11 Art. 57(2)(a)(i) API 1977. 12 Ibid. 13 Ibid. 14 Prosecutor v. Kupreškiü et al., Case No. IT-95-16-T T.Ch.II, Judgment, par. 524 (International Criminal Tribunal for the former Yugoslavia January 14, 2000). 15 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:3-4.

An Introduction to the Rules of Targeting

59

because the rule of target verification gives effect to the principle of distinction, it would be anomalous if this rule did not have such a status.16 The upshot of this is that although states such as Israel17 and the United States of America18 are not party to API 1977, they recognise the binding status of this provision.19 The rule of target verification imposes a two-pronged duty, which is well summarised in the military manual of 2004. The military manual states: “With respect to attacks, the following precautions shall be taken: a. those who plan, decide upon or execute an attack must take all feasible measures to gather information which will assist in determining whether or not objects which are not military objectives are present in an area of attack; b. in light of the information available to them, those who plan, decide upon or execute an attack shall do everything feasible to ensure that attacks are limited to military objectives.”20

 16

Ibid., 55. Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 48 par. 132. 18 Michael J. Matheson, “Session One: the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” American University Journal of International Law and Policy 2 (1987): 426-427 par. 70. 19 International Committee of the Red Cross, “Israel: Ratifications/Accessions,” International Committee of the Red Cross, http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=IL (accessed October 1, 2009). 20 United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 13.32. Examples of other military manuals which contain similar statements are Croatia’s Commanders’ Manual, Italy’s Law of Armed Conflict Elementary Rules Manual and Spain’s Law of Armed Conflict Manual. Croatia Ministry of Defence, Basic Rules of the Law of Armed ConflictsCommanders’ Manual (Zagreb: Croatia Ministry of Defence, 1992), par. 50, 66; Italia Ufficio Addestramento e Regolamenti, Regoli Elementari di Diritto di Guerra, 1 Reparto (Roma: Stato Maggiore della Difeso, 1992), par. 52, 66; España, Division de Operaciones, Orientaciones. El Derecho de los Conflictos Armados OR7-004, 2 Tomos, vol. 1 (el Estado Mayor del Ejército Division de Operaciones, 1996), par. 10. 8.e(2), 10.8.f.(1), 2.3.b.(1), quoted in International Committee of the Red Cross, “Practice Relating to Rule 16: Target Verification,” International Committee of the Red Cross, http://www.icrc.org/customaryihl/eng/docs/v2_rul_rule16 (accessed September 16, 2010). 17

60

Chapter Three

The rule of target verification requires attackers to use their intelligence, surveillance and reconnaissance resources as well as intelligence officers to gather information about the location of military objectives and combatants. They should continuously update the intelligence to ensure that the situation on the ground has not changed.21 Dinstein emphasises that intelligence should be “collated and interpreted just prior to the time of action.”22 Consequently, this obligation continues to be applicable up to the point at which an attacker fires at the target. The U.N. Commission of Inquiry found that Israel had violated the rule of target verification during the Second Lebanon War of 2006, when it opened fire against a convoy of vehicles merely because there was unauthorised movement along a route.23 Israel had earlier prohibited the civilians from using that route.24 The rule of target verification requires the attacker to “do everything feasible” to verify that the objective is a military one.25 A number of states including the United Kingdom, Germany and Canada upon ratifying API 1977 entered a declaration that the term “feasible,” as used in Art. 57 API 1977, refers to “those [precautions] which are practicable or practically possible, taking into account all the circumstances ruling at the time, including humanitarian and military considerations.”26

In interpreting this concept of “feasible,” the Committee established by the International Criminal Tribunal for the former Yugoslavia to assess whether there were grounds for commencing an investigation into the conduct associated with the NATO bombing campaign (ICTY

 21

Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 140. 22 Ibid. 23 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1 Doc. A/HRC/3/2 (Geneva: United Nations, November 23, 2006), 35-36. 24 Ibid. 25 Art. 57(2)(a)(i) API 1977. 26 Germany, Declarations Made Upon Ratification of AP I 1977, 14 February 1991, par. 2, Canada, Reservations and Statements of Understanding Made Upon Ratification of AP I 1977, 20 November 1990, par. 5, United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. b, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:357-358.

An Introduction to the Rules of Targeting

61

Committee),27 explains that the duty is “high but not absolute.”28 The standard is high in that Australia, upon ratifying API 1977, emphasised that commanders need to assess the information “from all sources which is available to them at the relevant time.”29 On the other hand, the duty is not absolute because the commander operates under conditions of constrained resources,30 time31 and information.32 The Canadian military manual provides some clarification regarding how the battlefield environment shapes the obligations of a commander: “such decisions [of what steps it is ‘feasible’ to take] would need to be based on the circumstances ruling at the time. Consideration must be paid to the honest judgment 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 judgments are usually made. The test for determining whether the required standard of care has been met is an objective one: did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?”33

The difficult nature of decisions regarding how to allocate limited resources under the complex conditions of the battlefield is the reason why the ICTY Committee observed that commanders “have some range of discretion to determine which available resources shall be used and how they shall be used.”34

 27 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 3. 28 Ibid., par. 29; Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:362. 29 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37 (Canberra: Defence Publishing Service, 1994), par. 511, quoted in International Committee of the Red Cross, “Practice Relating to Rule 14: Proportionality in Attack,” International Committee of the Red Cross, http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule14 (accessed January 18, 2009). 30 Evans, War: a Matter of Principles, 83. 31 Vego, Joint Operational Warfare: Theory and Practice, III-19. 32 Ibid., III-70. 33 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level (Ottawa: National Defence Headquarters, 1999), p 4-3, 4.4 par. 25-27, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:359. 34 Ibid.; “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 29.

62

Chapter Three

Additionally, the qualifying term “feasible” reflects the fact that states possess varying degrees of technological capabilities and have different resources available to them.35 The statement India made when it voted in favour of Art. 57 API 1977 during the treaty negotiations demonstrates the relationship between the requirement of “feasibility” and state capabilities. An Indian delegate explained that, “India voted in favour of this article on the clear understanding that it will apply in accordance with the limits of capability, practical possibility and feasibility of each Party to the conflict. As the capabilities of Parties to a conflict to make distinction will depend upon the means and methods available to each Party generally or in particular situations, this article does not require a Party to undertake to do something which is not within its means or methods or its capability. In its practical application, a Party would be required to do whatever is practical and possible.”36

Therefore, the term “feasible” imposes a standard of “reasonableness” which is “context-dependent” and which entails different standards for different states.37 The rule of target verification does not require the state to buy and use “state-of-the-art” intelligence, surveillance and reconnaissance capabilities.38 According to John-Hopkins, the state is only required to employ the full range of resources that are “feasibly” available to it in order to collect the most accurate intelligence possible and in order to verify that the target is a military objective.39 Schmitt proposes that in instances where the commander thinks that the intelligence is not entirely reliable, he may nevertheless proceed with the attack as long as the following condition is met.40 An attack is lawful if the commander judges that the likelihood of the anticipated civilian injury and damage to civilian objects, occurring due to the flawed intelligence, is not

 35

Michael John-Hopkins, “Regulating the Conduct of Urban Warfare: Lessons From Contemporary Asymmetric Armed Conflicts,” International Review of the Red Cross 92, no. 878 (2010): 478-479. 36 India, “Statement of India at the CDDH,” Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, 228. 37 John-Hopkins, “Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts,” 478-479. 38 Ibid., 479. 39 Ibid. 40 Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: an International Humanitarian Law Assessment,” 88.

An Introduction to the Rules of Targeting

63

excessive in proportion to the concrete and direct military advantage anticipated from the attack.41 Schmitt argues that the greater the military advantage offered by the attack, the more prepared the commander will be to proceed with the attack, despite having weak intelligence.42 Equally, the less military advantage the attack offers, the more reluctant the commander will be to launch the attack if there is a likelihood of intelligence being unreliable.43 Schmitt qualifies his proposition by pointing out that where the intelligence is so unreliable for accuracy that it would be negligent to use that source, the intelligence should not be used.44 Schmitt’s test contains a weaker standard than envisaged by the rule of target verification. The rule of target verification already reflects the reality that accurate, relevant, timely, complete and precise45 intelligence is never available. In contrast to the principle of distinction, it is not formulated as an absolute duty. Rather, the attacker is to do everything “feasible” in choosing which intelligence, surveillance and reconnaissance resources to employ in order to verify that the target is a military objective.46 The application of Schmitt’s proportionality calculation leads to a situation where civilians are sacrificed for high-value targets. For instance, the killing of a leader who directs the military campaign offers substantial military advantage. Commanders are likely in such cases to assess that the mistaken destruction of a civilian object, damage to adjacent civilian objects and death of civilians is not excessive in relation to the concrete and direct military advantage that is anticipated from the attack. What is interesting about Schmitt’s test47 is that it demonstrates that commanders engage in a cost-benefit analysis. Through this approach, commanders balance the military value of proceeding with the attack on the basis of particular intelligence and the likelihood that civilians will be mistakenly targeted. In effect, they balance risks and rewards. They can also be said to be engaged in the management of risk. Consider a scenario where a commander has two options: he can either instruct a pilot to operate at high altitude in order to stay safe from the adversary’s air

 41

Ibid. Ibid. 43 Ibid. 44 Ibid. 45 Vego, Joint Operational Warfare: Theory and Practice, III-66, III-67. 46 Art. 57(2)(a)(i) API 1977. 47 Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: an International Humanitarian Law Assessment,” 88. 42

64

Chapter Three

defence systems, or to execute a dive in order to check that the target is in fact a military objective. Alternatively, the commander can require the pilot to operate at a lower altitude, but dispatch an electronic suppression aircraft to jam the enemy’s air defence systems. The employment of electronic warfare aircraft and air defence suppression aircraft partially reduces the degree of danger to which the vehicle operating at medium and lower altitudes is exposed.48 The commander will choose that option which entails lower risk to the pilot and to the aircraft and which entails a better prospect of adequately verifying that the target is a military objective.

3. The Principle of the Least Feasible Damage Article 57(2)(a)(ii) API 1977 requires that: “those who plan or decide upon an attack shall take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects.”49

This rule has been coined by Sandoz as the “principle of the least feasible damage.”50 The discussion in the previous section has shown that Art. 57 API 1977 enjoys customary international law status. Various sources were used to corroborate this position. The International Criminal Tribunal for the former Yugoslavia Trial Chamber in the case of Prosecutor v. Kupreškiü et al.51 as well as Henckaerts and Doswald-Beck,52 in their Customary Law Study, found that this rule has customary international

 48

Precise Machining & Manufacturing, “JDAM: Smart Bomb, Smart Program,” http://www.precisemachining.com/jdam.php (accessed June 3, 2011); Paul S. Owen and John Cook, “Laser Guided Bombs and Joint Direct Attack Munition,” http://typhoon.starstreak.net/common/AG/iron.html (accessed June 4, 2011); Royal Air Force, “RAF - Paveway II & III”, Royal Air Force, http://www.raf.mod.uk/equipment/paveway23.cfm;%20http://typhoon.starstreak. net/common/AG/iron.html (accessed June 4, 2011). 49 Art. 57(2)(a)(ii) API 1977. 50 Yves Sandoz, “Commentary,” in Legal and Ethical Lessons of NATO’s Kosovo Campaign, ed. Andru E. Wall, vol. 78 (Newport: Naval War College, 2002), 278. 51 Prosecutor v. Kupreškiü et al., Case No. IT-95-16-T T.Ch.II, Judgment, par. 524 (International Criminal Tribunal for the former Yugoslavia January 14, 2000). 52 Ibid.; Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:57.

An Introduction to the Rules of Targeting

65

law status. Israel53 and the United States of America,54 major military powers which are non-signatories to API 1977, recognise that the principle of the least feasible damage enjoys customary international law status. Neil Brown, the Captain of the British Royal Navy55 and Alan Cole, the Commander of the British Royal Navy,56 report that the United States of America applied the standard as it is worded in Art. 57(2)(a)(ii) API 1977 during Operation Iraqi Freedom 2003 and Operation Enduring Freedom 2001 respectively. The military manuals demonstrate that the principle of the least feasible damage requires that parties to the conflict carry out attacks at such a time of the day as to minimise incidental injury to civilians and damage to civilian objects to the extent “feasible.”57 Normally, fewer civilians are present near military objectives at night time.58 When it comes to actual attack, the principle of the least feasible damage intervenes to require the planner to consider alternative means and methods of warfare which

 53 International Committee of the Red Cross, “Israel: Ratifications/Accessions,” International Committee of the Red Cross, http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=IL (accessed October 1, 2009); Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 48 par. 132. 54 Matheson, “Session One: the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” 426 par. 70. 55 Neil Brown, “Issues Arising from Coalition Operations: an Operational Lawyer’s Perspective,” in International Law and Military Operations, ed. Michael D. Carsten, vol. 84 (Newport: United States Naval War College, 2008), 227. 56 Alan Cole, “Legal Issues in Forming the Coalition,” in The War in Afghanistan: A Legal Analysis, ed. Michael N. Schmitt, vol. 85 (Newport: Naval War College, 2009), 147. 57 Bénin, Forces Armées du Bénin, Ministère de la Défense Nationale le Droit de la Guerre, III Fascicules (1995), 14, Kenya, The School of Military Police, Law of Armed Conflict, Military Basic Course (ORS), 4 Precis (1997), 8, Togo, EtatMajor Général des Forces Armées Togolaises, Ministère de la Défense Nationale Le Droit de la Guerre, III Fascicules (1996), 14, quoted in International Committee of the Red Cross, “Practice Relating to Rule 17: Choice of Means and Methods of Warfare,” International Committee of the Red Cross, http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule17 (accessed January 20, 2009); Sandoz, Swinarski, and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 682 par. 2200. 58 DeSaussure, “The Role of the Law of Armed Conflict During Persian Gulf War: an Overview,” 65-66.

66

Chapter Three

would “minimise or altogether avoid casualties.”59 According to Italy’s Elementary Rules Manual, commanders should tailor means and methods of warfare to the particular characteristics of the military objective they wish to target.60 For example, the ICRC Commentary to API 1977 underscores that militaries should not use a ten-ton bomb where “a well placed 500kg projectile is sufficient to render a military objective useless.”61 On this issue, John-Hopkins argues that the principle of the least feasible damage requires commanders to tailor means and methods of warfare to the combat zone.62 Thus, he suggests that when the force is operating in a populated area, it should not be equipped with white phosphorus where alternatives are available.63 Militaries employ white phosphorus to screen the movement of the troops in order to reduce their exposure to enemy firepower.64 The phosphorus soaked wedges that are released by the shell expose civilians to danger.65 The wedges cause deep burns upon coming into contact with the skin,66 and victims can die from these injuries.67 As well, the wedges may poison internal organs through contact with the skin producing wounds that are slow to heal.68 Inhaling and swallowing white phosphorus is equally injurious.69 Moreover, the wedges may set on fire civilian objects with which they come into contact.70 Even when the wedges do not ignite civilian objects, they may reignite if disturbed or

 59 Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 38-39. 60 Italia, Ufficio Addestramento e Regolamenti, Regoli Elementari di Diritto di Guerra, par. 45, 53. 61 Sandoz, Swinarski, and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 682 par. 2200. 62 John-Hopkins, “Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts,” 480. 63 Ibid. 64 A.P.V. Rogers and Iain J. MacLeod, “The Use of White Phosphorus and the Law of War,” Yearbook of International Humanitarian Law 10 (2007): 76. 65 Human Rights Watch, Rain of Fire: White Phosphorus in Gaza, 1-6. 66 Ibid. 67 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 195 par. 895-896. 68 Human Rights Watch, Rain of Fire: White Phosphorus in Gaza, 11-12. 69 Ibid. 70 Ibid., 3.

An Introduction to the Rules of Targeting

67

“prodded.”71 The wedges can remain active for up to twenty-four days after discharge.72 Smoke shells are an alternative to white phosphorus.73 They have screening properties that are equivalent to white phosphorus, but do not have incendiary secondary effects.74 According to Israel, smoke shells lack the unique properties of white phosphorus.75 White phosphorus interferes with infra-red optical devices which aid night vision.76 It additionally obstructs weapon-tracking systems and thereby protects materiel from guided weapons, such as anti-tank guided missiles.77 In a similar vein to John-Hopkins,78 the United Nations Human Rights Council Mission (U.N. HRC Mission) in its Goldstone Report opined that due to the high risk posed to civilians and due to the severe nature of the burns inflicted by white phosphorus,79 commanders should give serious consideration before employing this weapon in urban combat.80 Although the Israeli Ambassador Aharon Leshno-Yaar called the Goldstone Report “biased” and “flawed,”81 and although evidence emerged subsequently to the publishing of this report that Israel did not directly target civilians,82

 71

Ibid., 6. U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 194 par. 889. 73 Human Rights Watch, Rain of Fire: White Phosphorus in Gaza, 4. 74 Ibid., 4. 75 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 148-149 par. 418. 76 S.R. Subramanian, “Use of White Phosphorus in Gaza and Some Limitations of International Law,” Institute for Defence Studies and Analyses, March 4, 2009, http://idsa.in/idsastrategiccomments/UseofWhitePhosphorusinGaza_SRSubramani an_040309 (accessed July 21, 2009). 77 Ibid. 78 John-Hopkins, “Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts,” 480. 79 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 195-196 par. 895-896. 80 Ibid., 196 par. 901. 81 Shamir Shlomo, “U.N. Human Rights Chief Endorses Goldstone Gaza Report,” Haaretz Newspaper, October 14, 2009, http://www.haaretz.com/news/un-humanrights-chief-endorses-goldstone-gaza-report-1.6116 (accessed August 1, 2009). 82 Washington Post, “Reconsidering the Goldstone Report on Israel and War Crimes,” Washington Post, April 2, 2011, 72

68

Chapter Three

the legal analysis in the report has considerable weight. The Mission was comprised of technical experts. These were Justice Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, Professor Christine Chinkin, Professor of International Law at the London School of Economics and Political Science, Hina Jilani, a member of the International Commission of Inquiry on Darfur in 2004 and Colonel Desmond Travers, a former officer in the Irish Armed Forces and member of the Board of Directors of the Institute for International Criminal Investigations.83 The fact that the U.N. General Assembly passed a resolution in which it affirmed the report84 evidences that states regard the legal analysis in the Goldstone Report as being accurate. Apart from regulating the choice of weapons and tactics, the principle of the least feasible damage requires that the chosen weapon be employed in such a way as to minimise harm to civilians. In this regard, Major General Stanley McChrystal explains that it is possible to engineer the attack in such a way as to reduce injury to civilians and damage to civilian objects.85 The planner can release the bomb at a specific angle, so as to control the direction in which the bomb fragments travel.86 The employment of a delay fuse instead of an air burst fuse reduces the area of the explosion and, thus, causes less harm to any civilians nearby.87 A bomb with an air burst explodes a number of feet above the ground and causes the fragmentation to travel over an extended distance.88 Meanwhile, a delay fuse causes the munition to explode a millisecond after the bomb is

 http://www.washingtonpost.com/opinions/reconsidering-the-goldstonereport-onisrael-and-war-crimes/2011/04/01/AFg111JC_story_1.html (accessed April 2, 2011). 83 U.N. Human Rights Council, “United Nations Fact Finding Mission on the Gaza Conflict,” Office of the High Commissioner for Human Rights, http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/factfindingmissio n.htm (accessed April 2, 2011). 84 United Nations General Assembly, Sixty-Fourth Session, Agenda Item 64, Report of the Human Rights Council, U.N. Doc. A/64/L.11 (New York: United Nations, November 2, 2009). 85 Senior Defense Official, “Background Briefing On Targeting,” news release, March 5, 2003, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2007 (accessed March 22, 2009). 86 Ibid. 87 Ibid. 88 Ibid.

An Introduction to the Rules of Targeting

69

buried underground on impact, thereby ensuring that the fragmentation arc is reduced.89 In particular, the explosive damage travels “mostly straight up” instead of sideways.90 The adjustment of azimuth enables planners to control the area over which munition fragments disperse, as well as the location where the fragmentation effect will occur.91 Since the obligation to take precautions in the choice of means and methods of attack is qualified by the term “feasible,” it is important to understand how this term narrows the respective duty. States attach the same meaning to the term “feasible,” which serves to qualify the obligations in the rule of target verification and the principle of the least feasible damage.92 The term “feasible” refers to “those [precautions] which are practicable or practically possible, taking into account all the circumstances ruling at the time, including humanitarian and military considerations.”93

Lieutenant Commander Stuart Walters Belt is an academic who expresses a view held by a minority of experts. He argues that the principle of the least feasible damage creates a positive obligation on attackers to use a specific weapon, such as precision-guided bombs in urban areas.94 He additionally argues that states are under an obligation to buy precisionguided bombs.95 Scholars such as Murphy disagree.96 They maintain that state practice suggests that there is no such obligation.97 Murphy’s

 89

Ibid. Ibid. 91 Ibid. 92 Germany, Declarations Made Upon Ratification of AP I 1977, 14 February 1991, par. 2, Canada, Reservations and Statements of Understanding Made Upon Ratification of AP I 1977, 20 November 1990, par. 5, United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. b, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:357-358. 93 Ibid. 94 Lieutenant Commander Stuart Walters Belt, “Missiles Over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas,” Naval Law Review 47 (2000): 168-176. 95 Ibid. 96 Murphy, John. “Some Legal (and a Few Ethical) Dimensions of the Collateral Damage Resulting from NATO’s Kosovo Campaign,” in Legal and Ethical Lessons of NATO’s Kosovo Campaign, ed. Andru E. Wall, vol. 78 (Newport: Naval War College, 2002), 236. 97 Ibid. 90

70

Chapter Three

proposition finds stronger support in military manuals than Lieutenant Commander Belt’s. According to the Australian Defence Force Manual, the fact that commanders have precision-guided weapons in their inventory does not mean that there is a duty to use such weapons in preference to dumb bombs, even if this results in a reduction of harm to civilians.98 The United Kingdom Joint Service Manual further states, “The employment of ‘dumb’ bombs has not been rendered unlawful by the advent of precision guided or ‘smart’ bombs, but developing technology does bring with it a change in the standards affecting the choice of munitions when taking the precautions.”99

Sassòli and Cameron interpret the statement in the British military manual as not requiring the mandatory use of precision-guided bombs against targets located in urban areas.100 Since a state may possess a limited number of such weapons, a commander may have to save the available precisionguided bombs for future attacks for particularly important military objectives, or for targets that entail a greater risk of causing harm to civilians.101 Obviously, a state may possess so many precision-guided bombs in its arsenal that there will come a point at which it will be obligated to use a precision-guided bomb instead of dumb bombs to carry out an attack.102 Unfortunately, it is difficult in practice to pinpoint exactly when such a duty would arise for a particular state.103 The upshot of the statements made by states is that the fact that countries such as the United States of America relied heavily on precision-guided bombs in recent military campaigns when targeting military objectives located in urban areas does not mean that states view themselves as being bound to use such bombs for targets located in urban centres.104

 98

Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 834. 99 United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 12.51. 100 Marco Sassòli and Lindsey Cameron, “The Protection of Civilian ObjectsCurrent State of the Law and Issues de Lege Ferenda,” in The Law of Air Warfare: Contemporary Issues, ed. Natalino Ronzitti and Gabriella Venturini (Utrecht: Eleven International Publishing, 2006), 70. 101 Ibid. 102 Ibid 103 Ibid. 104 Murphy, “Some Legal (and a Few Ethical) Dimensions of the Collateral Damage Resulting from NATO’s Kosovo Campaign,” 235.

An Introduction to the Rules of Targeting

71

It is possible to draw a parallel between the rule of target verification and the principle of the least feasible damage. In applying the principle of the least feasible damage, commanders manage both military risks and the risk to which the attack exposes the civilians. On the one hand, they have to select means and methods of warfare that reduce civilian casualties. On the other hand, they are careful not to lose too many soldiers, to take away too many resources from other important tasks, or to overly prolong the duration of the battle. The commanders, in applying the principle of the least feasible damage, moreover, engage in a cost-benefit analysis. They compare what degree of military advantage they sacrifice when they combine various combinations of materiel and tactics with the rewards, in terms of the reduction in civilian harm. In effect, in determining what combination of weapons and tactics it is “feasible” to adopt, commanders consider the military costs and humanitarian benefits of each option. This approach to deliberation mirrors that entailed by the rule of target verification. This is unsurprising, because both rules require attackers to take measures to spare civilians to the extent “feasible.”

4. The Principle of Proportionality The principle of proportionality is enshrined in Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b) API 1977.105 It prohibits attacks “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.”106

Henckaerts and Doswald-Beck in their Customary Law Study found that the principle of proportionality as formulated in API 1977 has customary international law status in both international and non-international armed conflicts.107 This position is confirmed by the ruling of the International Criminal Tribunal for the former Yugoslavia in the case of Prosecutor v. Galiü108 and in the report on Columbia of the Inter-American Commission

 105

Art. 51(5)(b), 57(2)(a)(iii), 57(2)(b) API 1977. Art. 51(5)(b) API 1977. 107 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:46. 108 Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment, par. 8 (International Criminal Tribunal for the former Yugoslavia December 5, 2003). 106

72

Chapter Three

on Human Rights.109 Major militaries that are non-parties to API 1977, namely Israel110 and the United States of America,111 recognise the customary international law status of the rule as it is worded in the treaty.112  The principle of proportionality involves balancing the military value of the destruction, neutralisation or capture of the military objective and the incidental harm which the attack is expected to inflict onto civilians and civilian objects.113 Green points out that because the principle of proportionality requires commanders to balance military advantage and harm to civilians, this assessment entails a “risk-benefit analysis.”114 In this respect, there is a parallel between the principle of proportionality on the one hand, and the rule of target verification and the principle of the least feasible damage on the other hand. The Report on the Practice of the Russian Federation states that there are no available documents spelling out what value commanders should attach to military gains and humanitarian loss when applying the principle of proportionality.115

 109

Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia Doc. OEA/Ser.L/V/II.102 Doc. 9.rev.1 (Washington, DC: Inter-American Commission on Human Rights, February 26, 1999), par. 77, 79. 110 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 44 par. 120; International Committee of the Red Cross, “Israel: Ratifications/Accessions,” International Committee of the Red Cross, http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=IL (accessed October 1, 2009). 111 International Committee of the Red Cross, “United States of America: Ratifications/Accessions,” International Committee of the Red Cross, http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=US (accessed October 1, 2009). 112 Harold Hongju Koh “Remarks at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law” (speech, The Annual Meeting of the American Society of International Law, Washington, DC, March 25, 2010), http://www.state.gov/s/l/releases/remarks/139119.htm (accessed January 30, 2015); Brown, “Issues Arising from Coalition Operations: an Operational Lawyer’s Perspective,” 227; Cole, “Legal Issues in Forming the Coalition,” 147. 113 Christopher Greenwood, “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict,” in Essays on the War in International Law, ed. Christopher Greenwood (London: Cameron May, 2007), 575. 114 Fred Green, “Remarks by Fred Green,” American Society of International Law Proceedings 86 (1992): 66. 115 Report on the Practice of Russian Federation (1997), chap. 1.5, quoted in International Committee of the Red Cross, “Practice Relating to Rule 14: Proportionality in Attack,” International Committee of the Red Cross,

An Introduction to the Rules of Targeting

73

Neither is there a document which tells commanders how to balance these values.116 There is no disputing that the principle of proportionality involves consideration of unlike values.117 As Dinstein explains, it is impossible to use a common denominator for measuring military advantage on the one hand and harm to civilians on the other hand.118 Neither can these two elements be quantified.119 Brigadier General Kenneth Watkin clarifies that the application of the principle of proportionality for this reason is far from being “an almost scientific balancing of opposing interests on finely tuned scales of humanitarian justice.”120 The application of the rule entails the exercise of moral judgment.121 Regrettably, it is not possible to provide guidance regarding whether an attack against a particular type of military objective is proportionate in advance of a particular military scenario arising. Circumstances dictate what degree of military advantage the destruction of a particular military objective offers.122 There is no such thing as a bridge being worth X number of lives.123 Interestingly, Olásolo believes that the ICTY Committee in assessing whether to initiate criminal proceedings against senior NATO leaders appeared to have used a quantitative approach in applying the principle of proportionality.124 The ICTY Committee compared the total sorties NATO aircraft flew and the total number of bombs the pilots dropped during Operation Allied Force 1999 against total civilian casualties.125 NATO pilots executed 10,484 sorties and dropped 23,614 bombs.126 These sorties

 http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule14 (accessed January 18, 2009). 116 Ibid. 117 Kenneth Watkin, “Assessing Proportionality: Moral Complexity and Legal Rules,” Yearbook of International Humanitarian Law 8 (2005): 7. 118 Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 132. 119 Ibid. 120 Watkin, “Assessing Proportionality: Moral Complexity and Legal Rules,” 3. 121 Ibid., 7. 122 Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 138. 123 Ibid. 124 Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute (Leiden: Martinus Nijhoff Publishers, 2008), 158 n. 626. 125 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 54. 126 Ibid.

74

Chapter Three

caused approximately a total of five hundred civilian deaths.127 The ICTY Committee concluded that, “These figures do not indicate that NATO may have conducted a campaign aimed at causing substantial civilian casualties either directly or incidentally.”128 Olásolo’s observations need to be taken with a reservation. The ICTY Committee did not go as far as to assign a numerical value to the military advantage NATO gained from each strike. Neither did it comment on the value of human life or on the relative value which should be attached to military gains and civilian loss. Rather, it thought that 500 civilian deaths were not a “substantial” loss of civilian life, given the fact that NATO pilots executed as many as 10,484 sorties and dropped 23,614 bombs.129 A closer study of the term “excessive” enables one to better understand the conclusion reached by the ICTY Committee. The Commentary to API 1977 “New Rules” states that an attack is disproportionate whenever there is an “obvious imbalance” between the anticipated military advantage, and expected injury to civilians and damage to civilian objects.130 In a similar vein, Dinstein argues that the term “excessive” refers to the disproportion which is “clearly discernable,” but which is not so great as to be “unbearably large.”131 The statements of scholars reveal that “excessive” incidental harm to civilians is reached at a point where the military advantage is clearly of a lesser value than incidental civilian harm. The definitions given by Dinstein and Bothe are consistent with the way in which the term “excessive” is defined in dictionaries. For instance, the Merriam-Webster dictionary defines the term “excessive” as “exceeding of the limits dictated by reason or good judgment,” and as “an amount or degree too great to be reasonable or acceptable.”132 Applying this reasoning, the ICTY Committee likely thought that there was no “clearly discernible” imbalance between the military advantage conferred by carrying out 10,484 missions and 500 civilian casualties.

 127

Ibid. Ibid. 129 Ibid. 130 Michael Bothe, Waldemar Solf, and Karl Josef Partsch, New Rules for Victims of Armed Conflict (London: Martinus Nijhoff Publishers, 1982), 310 n. 30. 131 Hamutal Shamash, “How Much is Too Much? An Examination of the Principle of Jus in Bello Proportionality?,” Israel Defense Forces Law Review 2 (20052006): 31. 132 Merriam-Webster’s Dictionary, s.v. “Excessive” (by Merriam-Webster Inc.), http://www.merriam-webster.com/dictionary/excessive (accessed March 21, 2009). 128

An Introduction to the Rules of Targeting

75

The following example illustrates a disproportionate attack. Israel cut the roads between Tyre and Beirut for several days and prevented UNIFIL from putting up a provisional bridge.133 The cutting of roads jeopardised the lives of many civilians due to preventing humanitarian aid from being distributed.134 Moreover, injured persons could not be transferred to hospitals to enable them to receive medical care.135 The U.N. Commission of Inquiry in its report on the Israeli-Lebanon 2006 conflict expressed the view that, in doing so, Israel violated the principle of proportionality.136 It can be concluded from the report that the military advantage which could have been anticipated from denying Hezbollah the ability to transport weapons and fighters was insufficient to warrant the endangerment to the health and lives of the civilians in the relevant area that would result from denied access to health care, food and sustenance. Unfortunately, the U.N. Commission of Inquiry did not disclose how it went about attaching relative values to the military advantage offered by the cutting off of roads and harm to civilians. Commentators such as Hays Parks criticise the principle of proportionality as being vague and “dangerously undefined.”137 The problem according to Schmitt is that while all would agree on the extreme examples of when an attack would be disproportionate, as in the situation where hundreds of civilians are killed to capture a low-ranking soldier, “The complexity emerges when one moves from these extremes along the proportionality continuum towards the center.”138 The principle of proportionality, therefore, leaves room for the individual value judgment and discretion of the commander.139 Schmitt explains why commanders may disagree about whether an attack is proportionate. The cultural and societal background of commanders will influence what value they place on human lives and on

 133

U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 37-39. 134 Ibid. 135 Ibid. 136 Ibid. 137 W. Hays Parks, “Air War and the Law of War,” Air Force Law Review 32 (1990): 171, 173. 138 Michael N. Schmitt, “The Principle of Discrimination in 21st Century Warfare,” Yale Human Rights and Development Law Journal 2 (1999): 170. 139 Report on the Practice of Russian Federation (1997), chap. 1.5; Yoram Dinstein, “Collateral Damage and the Principle of Proportionality,” in New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, ed. David Wippman and Matthew Evangelista (New York: Transnational Publishers, 2005), 215.

76

Chapter Three

the military advantage to be gained by destroying the proposed target.140 Schmitt’s assertion is substantiated by the fact that a group of military lawyers from Canada, Australia, New Zealand, the United Kingdom and the United States of America met in the aftermath of the Operation Desert Storm 1991 with a view to harmonising military manuals.141 They were unable to agree on common criteria for determining when an attack is proportionate.142 One of the reasons for the disagreement was that some countries have a lower tolerance for their own casualties and a higher threshold for acceptable civilian casualties.143 Consequently, international humanitarian law imposes minimum standards,144 but cultural variations between states in practice influence the way in which commanders apply this rule. Attention will now turn to examining the temporal and geographic limitations on the application of the principle of proportionality. Upon ratification of API 1977, Belgium, Canada, France, Germany, Italy, Netherlands, Spain and the United Kingdom declared that they understood the term “military advantage,” as it is used in the proportionality test, to refer to the advantage anticipated from the attack considered as a whole, and not only from isolated or particular parts of the attack.145 A widely

 140

Schmitt, “The Principle of Discrimination in 21st Century Warfare,” 157. Françoise Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” in The Gulf War 1990-1991 in International and English Law, ed. Peter Rowe (London: Sweet & Maxwell, 1993), 95. 142 Hays Parks, “Air War and the Law of War,” 174-175. 143 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 95. 144 David Kennedy, “Modern War and Modern Law” (lecture, Innovating Global Security Lecture Series, Watson Institute for International Studies, Brown University, October 12, 2006), http://www.watsoninstitute.org/events_detail.cfm?id=794 (accessed August 10, 2009). 145 Belgium, Interpretative Declarations Made Upon Ratification of AP I 1977, 20 May 1986, par. 5, Canada, Reservations and Statements of Understanding made upon Ratification of AP I 1977, 20 November 1990, par. 10, France, Reservations and Declarations made Upon Ratification of AP I 1977, 11 April 2001, par. 10, Germany, Declarations Made upon Ratification of AP I 1977, 14 February 1992, par. 5, Italy, Declarations Made upon Ratification of API 1977, 27 February 1986, par. 6, Netherlands, Declarations Made upon Ratification of AP I 1977, 26 June 1987, par. 5, Spain, Interpretative Declarations Made Upon Ratification of AP I 1977, 21 April 1989, par. 6, United Kingdom, Reservations and Declarations made Upon Ratification of AP I 1977, 28 January 1998, par. i, United Kingdom, Declarations Made Upon Signature of API 1977, 12 December 1977, par. e, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:327. 141

An Introduction to the Rules of Targeting

77

accepted definition of the term “attack” is that of an act of violence against the adversary, whether in offence or in defence.146 The Commentary to API 1977 “New Rules” explains that the definition of the term attack includes “acts of violence by an individual combatant such as a sniper acting alone,” and acts “by a specific military formation engaged in a specific military operation.”147 Olásolo analysed the reasoning of the International Criminal Tribunal for the former Yugoslavia in the cases of Prosecutor v. Blaškiü,148 Prosecutor v. Kordiü & ýerkez149 and Prosecutor v. Galiü150 and concluded that the court tended to apply the principle of proportionality to the conduct of military operations rather than to attacks on particular military objectives.151 Olásolo comments that in the Prosecutor v. Blaškiü case the International Criminal Tribunal for the former Yugoslavia Trial Chamber implicitly rejected making an analysis at the level of attacks on specific mosques and schools.152 Rather, the judges analysed the proportionality of shelling the entire Donja Veþeriska village in order to kill the BosnianMuslim territorial defence forces.153 Olásolo observes that the Trial Chamber in the Prosecutor v. Kordiü & ýerkez case applied the principle of proportionality to the conduct of multiple military operations.154 The judges looked at the overall campaign of the Herzeg-Bosnian forces in the Lašva Valley in mid-April 1993 where the forces launched attacks on

 146

Art. 49(1) API 1977; Program on Humanitarian Policy and Conflict Research and at Harvard University, HPCR Manual on International Law Applicable to Air and Missile Warfare (Cambridge: Harvard University, 2009), 1; William H. Boothby, The Law of Targeting (Oxford: Oxford University Press, 2012), 388. 147 Bothe, Solf, and Partsch, New Rules for Victims of Armed Conflict, 288 par. 2.2. 148 Prosecutor v. Blaškiü, Case No. IT-95-14-T T. Ch., Judgment (International Criminal Tribunal for the former Yugoslavia March 3, 2000). 149 Prosecutor v. Kordiü & ýerkez, IT-95-14/2-T T.Ch., Judgment (International Criminal Tribunal for the former Yugoslavia February 26, 2001). 150 Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment (International Criminal Tribunal for the former Yugoslavia December 5, 2003). 151 Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute, 175. 152 Ibid., 175-176. 153 Prosecutor v. Blaškiü, Case No. IT-95-14-T T. Ch., Judgment, par. 543 (International Criminal Tribunal for the former Yugoslavia March 3, 2000), quoted in Olásolo, Unlawful Attacks in Combat Situations: from the ICTY’s Case Law to the Rome Statute, 175-176. 154 Olásolo, Unlawful Attacks in Combat Situations: from the ICTY’s Case Law to the Rome Statute, 175 n. 688.

78

Chapter Three

multiple villages.155 On the other hand, in the Prosecutor v. Galiü case the International Criminal Tribunal for the former Yugoslavia Trial Chamber applied the principle of proportionality to an attack on a particular military objective.156 In particular, the judges evaluated the proportionality of firing two mortar shells at the parking lot where civilians and soldiers watched soldiers of the Army of the Republic of Bosnia Herzegovina as they engaged in a football game.157 The approach of the International Criminal Tribunal for the former Yugoslavia mirrors that adopted by Israel. Israel applied the principle of proportionality to the attack on individual military objectives and to individual military operations during Operation Cast Lead 2009 in Gaza.158 The state practice of the United States of America diverges from that of other states. The United States of America acknowledged that, although it frequently applied the principle of proportionality on the “target-by target basis” during Operation Desert Storm 1991 and Operation Iraqi Freedom 2003, it retains the right to apply the rule “in overall terms against campaign objectives.”159 The statement made by Egypt upon signing the Rome Statute 1998 illustrates the approach generally adopted by states. It made a declaration that, for the purpose of the principle of proportionality, “The overall military advantage must not be used as a basis on which to justify the ultimate goal of the war or any other strategic goals.”160 Bartolini criticises the wide interpretation of the scope of application of the principle of proportionality the United States of America takes.161 According to him, the measurement of the military advantage “in overall

 155 Prosecutor v. Kordiü & ýerkez, IT-95-14/2-T T.Ch., Judgment, par. 646-649, 738-753 (International Criminal Tribunal for the former Yugoslavia February 26, 2001). 156 Olásolo, Unlawful Attacks in Combat Situations: from the ICTY’s Case Law to the Rome Statute, 179. 157 Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment, par. 387 (International Criminal Tribunal for the former Yugoslavia December 5, 2003). 158 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 47 par. 130. 159 Eric T. Jensen, Derek Grimes, and Joseph B. Berger, Operational Law Handbook (Charlottesville: The Judge Advocate General’s Legal Center and School, 2004), 14-15, quoted in Bartolini, “Air Operations against Iraq (1991 and 2003),” 233-234. 160 Egypt, Declarations Made Upon Signature of the 1998 Rome Statute, 26 December 2000, par. 4(c), quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:327. 161 Bartolini, “Air Operations against Iraq (1991 and 2003),” 234.

An Introduction to the Rules of Targeting

79

terms against campaign objectives” requires the balancing of the military advantage against “an event which is…impossible to define.”162 The term “attack considered as a whole” denotes “a finite event,” and therefore excludes such an interpretation.163 This criticism is echoed by Hampson. Hampson argues that the term “direct” precludes commanders from applying the principle of proportionality at the level of the military campaign.164 The Commentary to API 1977 “New Rules” defines the term “direct” as military advantage which accrues “without intervening condition of agency.”165 An example of an intervening agency is where the destruction of the target would only offer military advantage if a military operation conducted in another location succeeded.166 Meanwhile, the ICRC Commentary to API 1977 defines the term “direct” as requiring that the military advantage “not only appear in the long term” and that it be “relatively close.”167 Hampson further explains that the word “direct” “implies a close connection between the action and the attainment of the military purpose.”168 She concludes that the military advantage of putting an end to the war lacks a direct connection to the attack and, therefore, cannot be considered to be a “direct” military advantage.169 Further support for Hampson’s view is found when one analyses the meaning of the term “concrete” in the principle of proportionality. The term “concrete” pertains to military advantage that is “specific,” “not general” and “perceptible to the senses.”170 Since the term “concrete” military advantage excludes “speculative” and nonspecific military advantages, it excludes evaluating the military advantage on the basis of the level of the military campaign. Specifically, commanders can only

 162

Ibid. Ibid. 164 Françoise Hampson, “Proportionality and Necessity in the Gulf Conflict,” American Society of International Law Proceedings 86 (1992): 47. 165 Bothe, Partsch and Solf, New Rules for Victims of Armed Conflict, 365. 166 Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 43. 167 Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 684 par. 2209. 168 Hampson, “Proportionality and Necessity in the Gulf Conflict,” 47. 169 Ibid. 170 Bothe, Partsch and Solf, New Rules for Victims of Armed Conflict, 365. 163

80

Chapter Three

guess how the military campaign will unfold171 and are unable to calculate the exact contribution of a given operation, or a series of operations, to the armed conflict ending sooner by a set period of time. As the authors of the Commentary to API 1977 “New Rules” observe, the terms “concrete” and “direct,” when taken together, prevent commanders from weighing “a remote advantage” they expect to gain “at some unknown time in the future” against anticipated harm to civilians.172 The United States of America may well be cognisant of the problem associated with its wide interpretation of the temporal application of the principle of proportionality. Olásolo observes that the United States of America “has been progressively adjusting its practice to apply the proportionality rule at the level [of individual military operations].”173

5. An Obligation of Risk Assumption in International Humanitarian Law The rules of targeting make no explicit reference to the issue of whether the attacking force is obligated to assume risk in order to reduce danger to civilians. The high-altitude bombing campaign conducted by NATO during Operation Allied Force 1999 raises the question of whether the rule of target verification requires the attacker to assume risk in order to adequately verify that the target is a military objective.174 Moreover, there is a lack of clarity in the law as to whether international humanitarian law requires the attacker to assume risk in selecting means and methods of warfare in order to reduce the degree of danger to which the attack exposes the civilians.175 Hays Parks argues that there is no “fairness doctrine” in international humanitarian law.176 Consequently, there is no duty to “sacrifice manpower, firepower, or technological superiority over an opponent.”177 Major General Charles J. Dunlap Jr. similarly thinks that

 171

Shamash, “How Much is too Much? An Examination of the Principle of Jus in Bello Proportionality?,” 22. 172 Bothe, Partsch and Solf, New Rules for Victims of Armed Conflict, 365. 173 Olásolo, Unlawful Attacks in Combat Situations: from the ICTY’s Case Law to the Rome Statute, 188. 174 Marina Mancini, “Air Operations Against the Federal Republic of Yugoslavia (1999)” in The Law of Air Warfare: Contemporary Issues, ed. Natalino Ronzitti and Gabriella Venturini (Utrecht: Eleven International Publishing, 2006), 275-277. 175 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 49. 176 Hays Parks, “Air War and the Law of War,” 169-170. 177 Ibid.

An Introduction to the Rules of Targeting

81

there is no obligation on the armed forces of the attacker to shoulder risk so as to reduce danger to civilians, because there is nothing in international humanitarian law that expressly requires soldiers to assume risks.178 Major General A.P.V. Rogers, on the other hand, takes the opposite view.179 Therefore, this issue merits a close examination.

5.1. The Position of States on Force Protection At first glimpse, the position of Western states on force protection appears to converge. In an anonymous interview with the non-governmental organisation Breaking the Silence, a First Sergeant of the Israel Defence Forces noted that during Operation Protective Edge 2014, commanders faced with a choice between their men being harmed or civilians being harmed took steps to preserve the lives of their troops.180 Shaw argues that Western countries have been preoccupied with force protection in all armed conflicts beginning with Operation Desert Storm 1991.181 The Allies engaged in high-altitude bombing during prosecuting Operation Desert Storm 1991,182 Operation Allied Force 1999,183 Operation Enduring Freedom 2001184 and Operation Iraqi Freedom 2003.185 More recently, the

 178

Dunlap, “Kosovo, Casualty Aversion and the American Military Ethos: a Perspective,” 99. 179 A.P.V. Rogers, “Zero-Casualty Warfare,” International Review of the Red Cross 837 (2000): 165-181. 180 Breaking the Silence, This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014) (Jerusalem: Breaking the Silence, 2014), 202. 181 Shaw, The New Western Way of War: Risk-Transfer and Its Crisis in Iraq, 31. 182 Lieutenant Colonel John Warden III, White Paper - Air Force Performance in Desert Storm, Department of the Air Force (Washington, DC: Pentagon, April 1991), 5, http://www.dtic.mil/dtic/tr/fulltext/u2/a235941.pdf (accessed January 29, 2009). 183 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 56. 184 Donald H. Rumsfeld and General Richard B. Myers, “Rumsfeld and Myers Briefing on Enduring Freedom,” news release, October 7, 2001, http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=2011 (accessed January 30, 2010). 185 John W. Warner et al., Report to Congressional Committees: Recent Campaigns Benefited from Improved Communications and Technology, but Barriers to Continued Progress Remain (Washington, DC: United States General Accounting Office, 2004), 17; V.R. Narayanaswami, “War Lingo from the Gulf,”

82

Chapter Three

Coalition relied on high-altitude bombing in order to support Iraq in fighting the Islamic State of Iraq and al-Sham group, also known as ISIS, in 2014.186 The altitude and speed at which the pilots operated the aircraft meant that it was “almost impossible” for the ISIS fighters to shoot them down.187 Although countries such as Canada,188 Australia189 and the United Kingdom190 deployed special forces, it was not intended that their troops would engage the militants in battles on the ground. Instead, the role of the troops was confined to tasks such as cutting off the delivery of supplies to militants191 and training the Iraqi troops.192 The Coalition adopted this strategy notwithstanding the fact that the former NATO Deputy Supreme Allied Commander in Europe, General Sir Richard Shirreff, warned that the Coalition was unlikely to defeat ISIS without using its ground troops.193 The NATO policy of zero tolerance for civilian casualties during Operation Unified Protector 2011 in Libya should be

 Hindu, April 29, 2003, http://www.thehindu.com/thehindu/edu/2003/04/29/ stories/2003042900010200.htm (accessed March 10, 2015). 186 Michael Cruickshank, “Can I.S.I.S. Shoot down a Coalition Aircraft?,” Conflict News, December 16, 2014, http://www.conflict-news.com/can-isis-shoot-coalitionaircraft (accessed November 30, 2014). 187 Ibid. 188 Lora Moftah, “Canadian Special Forces Confront I.S.I.S. in First Ground Battle between Western Troops and Militant Group,” International Business Times, January 19, 2015, http://www.ibtimes.com/canadian-special-forces-confront-isisfirst-ground-battle-between-western-troops-1787836 (accessed January 2, 2015). 189 Erin McClam and Abigail Williams, “Which Countries Are Doing What in the I.S.I.S. Coalition?,” NBC News, September 26, 2014, http://www.nbcnews.com/storyline/isis-terror/which-countries-are-doing-what-isiscoalition-n212596 (accessed March 1, 2015). 190 R.T. News, “British Elite Unit Carrying out Secret Missions in Iraq, Hundreds of I.S.I.S. Militants Killed,” R.T. News, November 23, 2014, http://rt.com/uk/208175-sas-secret-attack-isis (accessed March 1, 2015). 191 Ibid. 192 Patrick Wintour, “U.S. Forms ‘Core Coalition’ to Fight I.S.I.S. Militants in Iraq,” Guardian, September 5, 2014, http://www.theguardian.com/world/2014/sep/05/us-core-coalition-fight-isismilitants-iraq-nato (accessed March 3, 2015). 193 Jonathan Owen, “Fight I.S.I.S. on the Ground, Says Senior British General and Former NATO Chief,” Independent, October 26, 2014, http://www.independent.co.uk/news/uk/home-news/fight-isis-on-the-ground-sayssenior-british-general-and-former-nato-chief-9818588.html (accessed March 3, 2015).

An Introduction to the Rules of Targeting

83

seen in its particular context.194 In this particular instance, NATO acted on the basis of a U.N. Security Council Resolution 1973, which authorised it to use force in order to protect civilians.195 When the stances of the United States of America, Israel and the United Kingdom are examined closely, it emerges that Western states in fact do not have an identical position on force protection. The United States of America appears to place greater emphasis on force protection than its Allied partners, such as the United Kingdom.196 According to Lieutenant Colonel Richard Lacquement Jr. of the United States Army, the American way of waging war is characterised by the use of firepower instead of manpower.197 General Wesley Clark explained during the prosecution of Operation Allied Force 1999 that the United States of America placed priority on the avoidance of soldier casualties.198 Despite the fact that the United States of America places great emphasis on the protection of its armed forces,199 it does not in all instances put force protection first. For instance, the new American Force Protection FM 100-35 manual states, “Accomplishing the [military] mission takes precedence over avoiding casualties. However, soldiers are the most important Army resource, and excessive casualties cripple future mission accomplishment.”200

These statements should be understood against the backdrop of the wider policy of the United States of America. Its military doctrine states that the American government regards the reduction of civilian casualties as

 194

U.N. Human Rights Council, Report of the International Commission of Inquiry on Libya A/HRC/19/68 (Geneva: United Nations, March 2, 2012), 17 par. 84. 195 Ibid., 17 par. 83; United Nations Security Council, Resolution 1973, Resolution 1973 Adopted by the Security Council at its 6498th Meeting on 17 March 2011, U.N. Doc. SC/10200 (New York: United Nations, March 17, 2011). 196 Paul Cornish, “Myth and Reality: U.S. and U.K. Approaches to Casualty Aversion and Force Protection,” Defense Studies 3, no. 2 (2003): 121-122. 197 Richard A. Lacquement Jr., “The Casualty Aversion Myth,” Naval War College Review 57, no. 1 (2004): 49. 198 General Wesley K. Clark, “The United States and NATO: The Way Ahead,” Parameters Winter (1999-2000): 8. 199 Ibid.; Lacquement Jr., “The Casualty Aversion Myth,” 49. 200 United States Army Command and General Staff College, Student Text 3-0 Operations (Fort Leavenworth, Kansas: United States Government Printing Office, 2000), quoted in Rearick, “Force Protection and Mission Accomplishment in Bosnia and Herzegovina,” 40-41.

84

Chapter Three

contributing to the attainment of the goals of the military campaign.201 The United States of America, therefore, carefully balances the need to protect the force and to minimise injury to civilians.202 Meanwhile, Israel’s approach on force protection is fluid and to some extent depends on the circumstances. During Operation Protective Edge 2014, Israel had three levels for opening fire.203 Commanders who are high in the hierarchy decide in what circumstances different rules for opening fire apply.204 The first level restricts distance from which the force may employ heavy materiel such as artillery.205 The force may employ aircraft and artillery, but only if their use is expected to inflict a low level of damage.206 The second level for opening fire allows troops to fire artillery from shorter distances and to inflict a moderate scale of harm to civilians.207 The third level for opening fire allows forces to cut the safety distance for artillery by half and to cause significant injury to civilians.208 It is for a commander to decide what scale of civilian casualties is moderate and significant.209 According to an anonymous Israeli soldier of unknown rank, in the final stages of conducting a military operation during Operation Protective Edge 2014, commanders relaxed the rules of engagement by authorising their troops to submit targets for approval, which entailed a higher level of incidental harm to civilians.210 Policy considerations and realities on the ground shape what level of harm to civilians the troops are permitted to cause.211 Attention will now turn to the position of the United Kingdom. The senior members of the armed forces in their answers to parliamentary questions explained the position of the United Kingdom on force protection. General Sir Charles Guthrie, Chief of the Defence Staff, observed that the British

 201

Joint Chiefs of Staff, United States Joint Publication 3-0 Doctrine for Joint Operations (Washington, DC: United States Government Printing Office, 2011), Annex A A3, A4. 202 Shaw, The New Western Way of War: Risk-Transfer and its Crisis in Iraq, 96. 203 Breaking the Silence, This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014), 226. 204 Ibid. 205 Ibid. 206 Ibid. 207 Ibid., 226-227. 208 Ibid., 227. 209 Ibid. 210 Ibid., 230. 211 Ibid., 198-199.

An Introduction to the Rules of Targeting

85

military responds to market pressures from its constituency, and that the citizens currently have zero tolerance for soldier casualties.212 Lieutenant General Reith, former British Chief of Operations, explained that the armed forces use massive firepower in combat, but that they additionally aspire to minimise injury to civilians.213 He disclosed that the British armed forces were able to influence their American colleagues, and as a consequence the American armed forces took additional steps in order to further reduce incidental civilian injury and damage.214 The British armed forces are driven by both pragmatism and idealism in their greater willingness to assume risk. Cornish believes that: “The reality, however, is that the risk to troops is not ignored [by the British military planners], but is calculated to be acceptable in order to reduce the overall level of risk to the deployment and improve the chances of completing the mission successfully and at minimal human cost. Lightly armed troops [who are on patrol] might appear more exposed, but as such they are more likely to engage with the local population, building trust and picking up vital intelligence as they do so.”215

Unfortunately, there is limited availability of open source material regarding the position other states take on the issue of force protection. They tend not to publicise their positions on the issue. In terms of actual conduct, during the course of bombing ISIS militants in Iraq in 2014 and 2015, the Arab Coalition pilots of Bahrain, Iran, Jordan, Qatar, Saudi Arabia and United Arab Emirates216 operated at lower altitudes, and thereby assumed risk, in order to avoid civilian casualties.217 On the other hand, Ukraine tended to fire at the separatist militants from long distances

 212

United Kingdom, Defence Committee, Minutes of Evidence, Commons, vol. 629 (1999-2000), col. 11. 213 United Kingdom, Defence Committee, Minutes of Evidence, Commons, vol. 57-II (2002-2003), cols. 877-878. 214 Ibid. 215 Cornish, “Myth and Reality: U.S. and U.K. Approaches to Casualty Aversion and Force Protection,” 127. 216 Justine Drennan, “Who Has Contributed What in the Coalition against the Islamic State?,” Foreign Policy, November 12, 2014, http://foreignpolicy.com/2014/11/12/who-has-contributed-what-in-the-coalitionagainst-the-islamic-state (accessed January 3, 2015). 217 Tom Rogan, “I.S.I.S. Caught a Coalition Pilot: What Does It Mean?,” National Review Online, December 24, 2014, http://www.nationalreview.com/article/395354/isis-caught-coalition-pilot-whatdoes-it-mean-tom-rogan (accessed January 3, 2015).

86

Chapter Three

in 2014 and 2015218 in order to reduce danger to its troops. Syria extensively relied on heavy materiel such as artillery, mortars and rockets as well as on bombing from high altitudes, when fighting its rebels.219 However, there is evidence that in doing so, Ukraine and Syria did not give appropriate consideration to balancing the protection of civilians with the protection of its soldiers. The U.N. Independent Commission of Inquiry found that the Syrian troops in carrying out air strikes did not distinguish between civilians and military objectives.220 Similarly, Human Rights Watch accuses the Ukrainian troops of carrying out indiscriminate strikes.221 This review of state practice suggests that states take different positions on the matter of force protection. Of course, this is not to say that it is impossible to find commonalities between the relative importance states attach to protecting their forces and reducing civilian casualties. Given this state of affairs, the question arises whether states view themselves as being under an obligation to undertake a degree of risk, or whether they assume risk out of a concern for how they are perceived by the local population, their electorate and international public opinion.

 218

Human Rights Watch, “Ukraine: Unguided Rockets Killing Civilians,” Human Rights Watch, July 24, 2014, http://www.hrw.org/news/2014/07/24/ukraineunguided-rockets-killing-civilians (accessed January 3, 2015); Denis Davydov, “The Ukrainian Armed Forces Resumed the Artillery Shelling in the Donetsk Region,” Channel 1, January 12, 2015, http://www.1tv.ru/news/world/275508 (accessed January 14, 2015); South China Morning Post, “Intense Artillery Fire in Ukraine’s Rebel Bastion Dontesk,” South China Morning Post, November 9, 2014, http://www.scmp.com/news/world/article/1635781/intense-artillery-fire-ukrainesrebel-bastion-donetsk (accessed January 3, 2014); Dmitry Vlasov et al., “Ukraine, Rebels Both Claim to Control Dontesk Airport,” Tulsa World, January 19, 2015, http://www.tulsaworld.com/news/usworld/ap/ukraine-and-rebels-both-claim-tocontrol-donetsk-airport/article-dd223b17-9953-5d8a-82ec-ebeee973c434.html (accessed February 1, 2015). 219 Jeffrey White and Lieutenant Colonel Eddie Boxx, “Responding to Assad’s Use of Airpower in Syria,” Policywatch 1999, November 20, 2012, http://www.washingtoninstitute.org/policy-analysis/view/responding-to-assadsuse-of-airpower-in-syria (accessed January 3, 2015). 220 The Independent Commission of Inquiry on the Syrian Arab Republic, Report of the Independent Commission of Inquiry on the Syrian Arab Republic A/HRC/27/60 (Geneva: United Nations, August 13, 2014), par. 102-104. 221 Human Rights Watch, “Ukraine: United States Should Raise Rights Issues,” Human Rights Watch, September 18, 2014, http://www.hrw.org/news/2014/09/17/ukraine-us-should-raise-rights-issues (accessed January 3, 2015).

An Introduction to the Rules of Targeting

87

5.2. The Rule of Target Verification: Establishing a Duty of Risk Assumption Major General Rogers argues that states regard themselves as being bound to assume risk in order to adequately verify that the target is a military objective.222 He submits that, “Military necessity cannot always override humanity. In taking care to protect civilians, soldiers must accept some element of risk to themselves.”223 The state practice of Israel, the United States of America and the United Kingdom corroborates the fact that states regard themselves as being under an obligation to assume risk in order to adequately verify the nature of the target. According to Israel, in the course of prosecuting Operation Cast Lead 2009, “When necessary, it [Israel] also cross checked intelligence sources before commencing attacks, even in cases in which delaying fire entailed additional risk to both Israeli civilians and Israel Defence Forces.”224

The Israeli Ministry of Foreign Affairs additionally explained that in conducting air operations in this armed conflict, Israel used “extensive precautions” that often put civilian safety before military advantage, and which exposed the Israeli soldiers to risk.225 The statements made by Israel are, however, contradicted by its actions. The U.N. HRC Mission found that Israeli soldiers opened fire against civilians who did not pose a threat to them.226 It emerged that commanders told their soldiers to shoot when they experienced suspicious behavior, in case they had doubt whether a particular civilian posed a threat.227 Notwithstanding this fact, the statements made by Israel are more significant than its actual conduct. It is worth recalling the opinion of the International Court of Justice in the Nicaragua v. United States of America case that state practice need not be in “absolutely rigorous conformity with the rule” in order for a rule to become a customary international law

 222

Rogers, “Zero-Casualty Warfare,” 165. Ibid. 224 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 97 par. 254. 225 Ibid., 32 par. 84. 226 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 180 par. 802. 227 Ibid., 180 par. 803-804. 223

88

Chapter Three

rule.228 As long as states treat instances of state conduct that are inconsistent with a given rule as breaches, the courts will not treat the practice as laying the foundation for a revision to the rule.229 The fact that Israel communicated that its forces assumed risk suggests that it regards the rule of target verification as imposing such a duty. The state practice of the United States of America also confirms that the rule of target verification incorporates a duty of risk assumption. The report of the United States Department of Defense on its conduct of Operation Desert Storm 1991 states, “Coalition airstrikes were designed to be as precise as possible. Coalition pilots took additional risks and planners spared legitimate military targets to minimise civilian casualties.”230

General Schwarzkopf explained to the journalists that the Coalition endangered its pilots by requiring them to fly at specific altitudes, to follow a certain flight path and to deploy a specifically chosen weapon.231 As regards the United Kingdom, its military manual states, “Traditionally commanders have accepted some risk in identifying targets by using, for example, artillery spotters, forward air controllers, and intelligence gatherers operating in enemy-held territory.”232

Other relevant state practice is that the coalition of Arab countries233 required their pilots to assume risk by flying at lower altitudes in order to

 228

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 88 par. 186. 229 Ibid. 230 United States Department of Defense, Conduct of the Persian Gulf Conflict/An Interim Report to Congress (Washington, DC: United States Government Printing Office, July 1991), 1-2. 231 Pyle, Schwarzkopf: The Man, The Mission, The Triumph, 202-203; New York Times, “War in the Gulf: Military Briefing; Excerpts From Remarks by General Schwarzkopf in Riyadh,” New York Times, January 28, 1991. 232 United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, 82 n. 202. 233 Justine Drennan, “Who Has Contributed What in the Coalition against the Islamic State?,” Foreign Policy, November 12, 2014, http://foreignpolicy.com/2014/11/12/who-has-contributed-what-in-the-coalitionagainst-the-islamic-state (accessed January 3, 2015).

An Introduction to the Rules of Targeting

89

verify that the target was a military objective when bombing ISIS militants in 2014 and 2015.234 One is likely at this stage to wonder how the requirement to assume risk in order to verify that the target is a military objective can be reconciled with the practice of NATO pilots of operating at high altitude during Operation Allied Force 1999. At first glimpse, this instance of state practice appears to contradict the existence of such a duty. Shaw argues, for example, that NATO transferred risk from its pilots onto the civilians when it engaged in high-altitude bombing in the course of prosecuting Operation Allied Force 1999.235 His observation begs the question whether the NATO practice of high-altitude bombing is lawful. The ICTY Committee gave the following assessment of the legality of operating at fifteen thousand feet: “The committee agrees that there is nothing inherently unlawful about flying above the height which can be reached by enemy air defences. However, NATO air commanders have a duty to take practicable measures to distinguish military objectives from civilians or civilian objectives. The 15,000 feet minimum altitude adopted for part of the campaign may have meant the target could not be verified with the naked eye. However, it appears that with the use of modern technology, the obligation to distinguish was effectively carried out in the vast majority of cases during the bombing campaign.”236

What the ICTY Committee appears to be saying is that parties to the conflict are allowed to launch attacks from high altitude, provided they undertake effective verification measures. These steps could involve using a combination of technologies that would allow the pilot to verify that the target is a military objective, despite not seeing the target with the naked eye.

 234

Tom Rogan, “I.S.I.S. Caught a Coalition Pilot: What Does It Mean?,” National Review Online, December 24, 2014, http://www.nationalreview.com/article/395354/isis-caught-coalition-pilot-whatdoes-it-mean-tom-rogan (accessed January 3, 2015). 235 Shaw, The New Western Way of War: Risk-Transfer and Its Crisis in Iraq, 2122, 71. 236 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 56.

90

Chapter Three

The fact that the ICTY Committee suggested that relying solely on technology in order to verify the character of the target is lawful,237 does not imply that there is no duty to assume risk in order to verify that the target is a military objective. Some types of technologies are very advanced and allow effective verification of fixed military objectives. The resolution of drone cameras has been increasing, so that drone operators can now get a good snapshot of the fixed military objective being targeted and the situation on the battlefield.238 According to an Israeli drone operator, he could see what clothes the insurgent was wearing, that the insurgent was kneeling with a weapon close to the wall and that the insurgent left an explosive device.239 Of course, the accuracy of drone strikes depends on intelligence which has been gathered prior to the attack.240 The sensors are another type of technology that aids pilots in their assessment of whether the proposed target is in fact a military objective.241 An attacker who is operating an aircraft which has very high resolution cameras, or is accompanied by drones, or by other aircraft equipped with advanced sensors is likely to have a good overview of the situation on the ground. Since the ICTY Committee bore in mind the availability of advanced technologies in its analysis, its reasoning should be interpreted as not excluding a duty to assume risk in order to verify that the target is a military objective. Where the pilot is not aided by multiple technologies, it may be necessary to take additional measures in order to adequately verify the character of the target. For instance, pilots may not be aided by other aircraft and rely on a camera, which does not give them a detailed picture of the situation on the ground, to obtain a snapshot of the target. They may have a small screen, which shows only a small portion of the battlefield. In

 237

Ibid. BBC News, “U.S. Army Unveils 1.8 Gigapixel Camera Helicopter Drone,” BBC News, December 29, 2011. 239 Clancy Chassay, “Cut to Pieces: The Palestinian Family Drinking Tea in Their Courtyard,” Guardian, March 23, 2009, http://www.theguardian.com/world/2009/mar/23/gaza-war-crimes-drones. 240 Aaron M. Drake, “Current United States Air Force Drone Operations and Their Conduct in Compliance with International Humanitarian Law-an Overview,” Denver Journal of International Law and Policy 39, no. 4 (2010- 2011): 645. 241 The United States Air Force, “Airborne Battle Management 1A4X1,” The United States Air Force, http://www.af.mil/information/factsheets/factsheet.asp?id=4523 (accessed February 12, 2010); The Royal Air Force, “The RAF Regiment Roles,” The Royal Air Force, http://www.raf.mod.uk/rafregiment/roles (accessed February 12, 2010). 238

An Introduction to the Rules of Targeting

91

such cases the rule of target verification should not be interpreted as allowing commanders to argue that the use of technology absolves them of the requirement to conduct additional verification measures. Unless the pilot takes additional verification measures, the pilot will not be in a position to adequately distinguish between civilian objects and military objectives.242 During Operation Allied Force 1999, a NATO pilot accidentally targeted a passenger train when the intended target was a bridge.243 The small resolution screen on which the pilot relied to identify the target did not enable the pilot to see the approaching train.244 Compliance with the principles of distinction and proportionality demands that the attacker assume a degree of risk where this is necessary to verify that the target is a military objective, as well as how many civilians there are in the proximity of the target.245 The fact that NATO changed its rules of engagement246 following the bombing of the train and the Djakovica incident, in which a pilot mistakenly bombed a refugee convoy,247 provides support for such an interpretation of the law. The rules of engagement now required the pilot to briefly descend to eight thousand feet in order to visually confirm that the target was a military objective, and to then return to an altitude of fifteen thousand feet.248 The execution of a dive constitutes an assumption of risk.249 The fact that NATO changed its rules of engagement250 indicates that NATO members regard themselves as being bound to assume risk in order to verify that the target is a military objective. Most

 242

Mancini, “Air Operations Against Federal Republic of Yugoslavia (1999),” 276. 243 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 58. 244 Ibid., par. 59. 245 Mancini, “Air Operations Against Federal Republic of Yugoslavia (1999),” 277-278. 246 BBC2, Moral Combat - NATO at War, broadcast on BBC2, March 12, 2000. 247 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 6364. 248 Ibid., par. 56; BBC2, Moral Combat - NATO at War, broadcast on BBC2, March 12, 2000. 249 Mancini, “Air Operations Against Federal Republic of Yugoslavia (1999),” 277-278. 250 BBC2, Moral Combat - NATO at War, broadcast on BBC2, March 12, 2000; “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 56.

Chapter Three

92

likely, the NATO states did not initially instruct the pilots to execute a dive before releasing the bomb,251 because they were overconfident in the ability of technology to convey the situation on the ground. So how much risk do states regard the rule of target verification as requiring them to assume? There is a dearth of guidance on this issue. Major General Rogers thinks that: “The law is not clear as to the degree of care required of the attacker and the degree of risk that he must be prepared to take…The precise degree of care required depends on the circumstances, especially the time available for making a decision.”252

As a consequence, he formulated a test for determining in what circumstances there is an obligation on the attacker to assume a degree of risk. The Rogers’ test reads: “Target verification requires reasonable care to be exercised...If the target is sufficiently important, higher commanders may be prepared to accept a greater degree of risk to the aircraft crew to ensure that the target is properly identified and accurately attacked. However, if the target is assessed as not being worth that risk and a minimum operational altitude is set for their protection, the aircrew involved in the operation will have to make their own assessment of the risks involved in verifying and attacking the assigned target. If their assessment is that (a) the risk to them of getting close enough to the target to identify it properly is too high, (b) that there is a real danger of incidental death, injury or damage to civilians or civilian objects because of lack of verification of the target, and (c) they or friendly forces are not in immediate danger if the attack is not carried out, there is no need for them to put themselves at risk to verify the target. Quite simply, the attack should not be carried out.”253

 251

BBC2, Moral Combat - NATO at War, broadcast on BBC2, March 12, 2000. Rogers, “Zero-Casualty Warfare,” 165. 253 Ibid. 252

An Introduction to the Rules of Targeting

93

Major General Rogers continues, “In the event of doubt about the nature of the target, an attack should not be carried out, with a possible exception where failure to prosecute the attack would put attacking forces in immediate danger.”254

Rogers’ test suggests that commanders should assume risk in all instances where confirmation that the target is a military objective requires this. They need not assume risk where the threat posed to the force is so great as to justify a conclusion that the perceived source of danger is a military objective. The basis for this interpretation is that if the pilot assumes an insufficient degree of risk to make it possible to verify that the target is a military objective, the pilot will nevertheless be exposed to risk. However, the civilians will not benefit from the fact that the pilot assumed a degree of risk. Moreover, if the attacker believes that the situation makes it impossible to adequately verify that the target is a military objective, then the principle of distinction makes it unlawful to proceed with the attack.255 The state practice of NATO could be explained in terms of commanders applying the Rogers’ test when instructing pilots on how to execute the mission. Take for instance the decision by the planners to instruct the pilot to execute the Djakovica mission at fifteen thousand feet.256 Rogers’ first criterion is the importance of the target.257 There is evidence that the planner made a determination that it was very important to stop the burning of the villages in order to protect the civilians.258 As regards the second criterion of the danger of the target being misidentified,259 there is an indication that the intelligence was reliable. A NATO spokesman commented on the Djakovica incident that the planners discussed the possibility of internally displaced persons being in the convoy, but that the intelligence material indicated that this was a military convoy.260

 254

Ibid. Stefan Oeter, “Methods and Means of Combat,” in The Handbook of International Humanitarian Law, ed. Dieter Fleck, 3rd ed. (Oxford: Oxford University Press, 2013), 200-201. 256 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 64. 257 Rogers, “Zero-Casualty Warfare,” 165. 258 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 64. 259 Rogers, “Zero-Casualty Warfare,” 165. 260 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 64. 255

94

Chapter Three

Additionally, because the pilots relied on the intelligence of how the Serb forces normally travelled,261 and because multiple aircraft took part in this military operation,262 the pilots are likely to have been confident in their assessment of the character of the proposed target. As the ICTY Committee pointed out, the use of modern technology allows the pilot who operates beyond the reach of enemy air defences to make effective distinction between military objectives and civilian objects “in the vast majority of cases.”263 The planner could have balanced the various considerations in a similar way to Major General Rogers. According to Major General Rogers, commanders weigh the importance of the target, the danger to the force of properly verifying the target and the likelihood of target misidentification.264 On the facts, the target was of high priority. The pilots assessed available intelligence and the target verification technology to be so reliable, that there was no “real danger”265 that failure to operate at a lower altitude would result in target misidentification. Due to this, notwithstanding the importance of the target, the pilots thought that there was no need to take additional measures in order to verify that the target was a military objective.

5.3. Risk Assumption in the Context of Means and Methods of Warfare There is evidence that states require commanders to assume risk in choosing means and methods of warfare. The British Defence Doctrine issued in 1996 states that in planning an attack, the commander “is entitled to take into account factors such as his stocks of different weapons and likely future demands, the timeliness of attack and risks to his own forces. Nevertheless, there may be occasions when a commander will have to accept a higher level of risk to his own forces in order to avoid or reduce collateral damage to the enemy's civil population.”266

 261

Ibid., par. 67. Ibid., par. 65. 263 Ibid., par. 56. 264 Rogers, “Zero-Casualty Warfare,” 165. 265 Ibid. 266 United Kingdom Ministry of Defence, Joint Warfare Publication (JWP) 0-01 British Defence Doctrine (Ministry of Defence: London, 1996), quoted in Rogers, “Zero-Casualty Warfare,” 165. 262

An Introduction to the Rules of Targeting

95

As regards the United States of America, its Army Marine Corps Counterinsurgency Field Manual states, “Combat requires commanders to be prepared to take some risk, especially at the tactical level…for the entire spectrum of conflict.”267 While the guidance in American military manuals reflects policy in addition to its legal position,268 it is surely significant that both the British and the American military manuals talk of the need for the force to assume risk. In some instances, the Israeli forces assume risk in order to spare civilians. According to Israel, during Operation Cast Lead 2009 it destroyed military targets “in several cases” from the ground using mechanical equipment, rather than bombing them from the air, in order to minimise injury to civilians and damage to civilian objects. This approach exposed the Israel Defence Forces personnel to “additional risk,” but enabled Israel to orderly evacuate civilians and “kept damage to surrounding areas at a minimum.”269 The choice of mechanical equipment over an air strike was a choice between two means of warfare. Since civilians would have been directly impacted by the air strike, Israel instead used ground detonations to destroy fixed military objectives. These measures reduced the likelihood that shrapnel produced by the exploding bomb would injure evacuating civilians. Thus, in detonating the military objectives using ground equipment, Israel took steps to reduce the likelihood that evacuating civilians would be injured. Since this practice touches on making a choice between means of warfare, it demonstrates that Israel regards the principle of the least feasible damage as requiring attackers to assume a degree of risk. Although states recognise that there is a duty on the attacker to assume risk in order to reduce danger to civilians, there is disagreement regarding whether the principle of proportionality or the principle of the least feasible damage regulates this obligation. The U.N. HRC Mission in its

 267

The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-13. 268 John B. Bellinger III and William J. Haynes II, “A U.S. Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law,” International Review of the Red Cross 89, no. 866 (2007): 446-447. 269 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 97 par. 257.

96

Chapter Three

report on the Gaza Conflict,270 the ICTY Committee271 and the Israeli Supreme Court in the Public Committee Against Torture in Israel v. Government of Israel (Targeted Killings Case)272 treated the issue of whether the law requires an attacker to assume risk as being governed by the principle of proportionality. On the other hand, scholars such as Schmitt,273 Dinstein274 and Boivin275 believe that the principle of the least feasible damage regulates this issue. So which of the two rules governs this duty? The key to answering this question is to establish into which rule the obligation to assume risk fits better. 5.3.1. The Principle of Proportionality versus the Principle of the Least Feasible Damage According to Kalshoven, commanders apply the principle of the least feasible damage before the principle of proportionality.276 The commanders do so because they need to know the extent of civilian harm which is likely to occur in order to apply the principle of proportionality.277 The assessment of what degree of civilian harm will result can only be made once it is known which means and methods of warfare will be employed.278 Based on this information,279 it appears that the principle of the least feasible damage is a better candidate for the duty of risk assumption. The choice of means and methods of warfare determines to what degree of danger the force is exposed. It would be odd if commanders first chose means and methods of warfare and then turned their mind to the question of what substitutes in means and methods of warfare to make in order to comply with a duty to

 270

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 407 par. 1888. 271 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 49. 272 Public Committee Against Torture in Israel v. Government of Israel, Case No. HCJ 769/02, Judgment, par. 46 (The Supreme Court, Israel December 11, 2005). 273 Schmitt, “Precision Attack and International Humanitarian Law,” 462. 274 Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 141. 275 Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 48. 276 Frits Kalshoven, Reflections on the Law of War (Leiden: Martinus Nijhoff Publishers, 2007), 110. 277 Ibid. 278 Ibid. 279 Ibid.

An Introduction to the Rules of Targeting

97

assume risk, as required by the principle of proportionality. Of course, it is also possible that in practice commanders apply these two rules side by side. They consider how to reduce danger to civilians and the prohibition of disproportionate attacks in choosing means and methods of warfare. This possibility makes it necessary to disentangle the quandary regarding which of the two rules is a better candidate for regulating the duty of risk assumption. The principle of proportionality makes no express reference to either means or methods of warfare.280 Instead, it postulates that attacks are prohibited “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.”281

This rule may be interpreted as indirectly addressing the issue of risk assumption. The principle of proportionality regulates how much force the attacker can lawfully use.282 In turn, the greater the intensity of firepower, and the greater the reliance the parties to the conflict make on materiel such as artillery and mortars, the more civilians die.283 As well, the combination of means and methods of warfare a commander decides to use has a direct effect on the degree of danger to which the military operation exposes the soldiers. Consequently, the principle of proportionality indirectly regulates which means and methods of warfare commanders can lawfully employ. For this reason, this rule is a candidate for regulating a duty of risk assumption. Oeter provides another explanation for why that principle of proportionality is a suitable rule for regulating this duty.284 The preservation of a delicate balance between humanitarian and military values inherent in this rule implies the existence of a duty on the attacker to assume a degree of

 280

Art. 51(5)(b) API 1977. Ibid. 282 United Kingdom, Defence Committee, Minutes of Evidence, Commons, vol. 57-II (2002-2003), col. 250. 283 Barber, “The Proportionality Equation: Balancing Military Objectives and Civilian Lives in the Armed Conflict in Afghanistan,” 467. 284 Stefan Oeter, “Comment: Is the Principle of Distinction Outdated?,” in International Humanitarian Law Facing New Challenges, ed. Volker Epping and Wolff Heintschel von Heinegg (Berlin: Springer, 2007), 58. 281

98

Chapter Three

risk.285 According to state practice, the security of the attacking force constitutes military advantage for the purpose of the principle of proportionality.286 When force protection is treated as a form of military advantage, a situation is created where the more that forces are being safeguarded, the more harm to civilians is rendered permissible on the application of the principle of proportionality.287 Specifically, “The more technological possibilities you have as a belligerent to avoid direct exposure of your own military personnel to enemy force, the more collateral damage you will tend to find justified and proportionate if it helps to spare the lives of your own soldiers...Minimising your own losses then justifies more and more collateral damage to civilians…a clear case of a sliding scale.”288

Oeter concludes that, when applying the principle of proportionality, the attacker will need to assume sufficient risk to the troops in order to counterbalance the fact that force protection is being treated as a form of military advantage.289 Since the purpose of the principle of proportionality is to protect civilians, Oeter makes an important observation that the intention of the drafters will be undermined, unless a calibration measure is implemented, to reflect the fact that states treat force protection as a form of military advantage.290 Of course, the principle of the least feasible damage redresses to some extent the fact that states treat force protection as a form of military advantage by requiring states to select means and methods of warfare that minimise harm to civilians. The problem with the principle of the least feasible damage is that, when applying the principle of proportionality, it does not prevent commanders from placing greater weight on military than on humanitarian considerations as a result of treating the protection of the force as a form of military advantage. Notwithstanding the value of Oeter’s291 suggestion, there are two reasons why the principle of proportionality is not suitable for regulating the

 285

Ibid. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:50. 287 Oeter, “Comment: is the Principle of Distinction Outdated?,” 58. 288 Ibid. 289 Ibid. 290 Ibid. 291 Ibid. 286

An Introduction to the Rules of Targeting

99

obligation of risk assumption. The principle of proportionality does not give the decision-maker nuanced guidance regarding how much risk an attacker is obligated to assume in the circumstances. The term “excessive” relates to an “obvious imbalance” between military advantage and civilian harm.292 The term “excessive,” therefore, merely puts a cap on the maximum degree of firepower which an attacker can lawfully employ in a particular set of circumstances. This standard does not equip commanders with criteria that they could apply to determine how much risk they are required to undertake in the circumstances at hand. For instance, employing artillery rather than helicopters reduces danger to the force, allows the troops to simultaneously engage multiple military objectives293 and increases the danger to civilians.294 Essentially, the use of artillery increases both gains in military advantage and civilian casualties. Meanwhile, the employment of helicopters reduces both gains in military advantage and civilian casualties. The principle of proportionality is incapable of telling commanders how many artillery units they should substitute with helicopters, because it lacks a refined test for determining how to choose between the two options. Another flaw of treating the duty of risk assumption as being part of the principle of proportionality is that this rule fails to capture the fact that states envision the obligation to take steps to protect civilians as being conditioned on the available resources.295 Both the rule of target verification and the principle of the least feasible damage have qualified obligations because commanders operate in a difficult environment.296 The requirement to issue an advance warning of the attack is similarly qualified by the term “unless circumstances do not permit.”297 The principle of distinction is the only rule of targeting that is worded in absolute language and reflects the cardinal prohibition in international

 292

Bothe, Solf, and Partsch, New Rules for Victims of Armed Conflict, 310 n. 30. Bailey, Field Artillery and Firepower, 442. 294 Ibid., 426. 295 Art. 57(2)(a)(i), 57(2)(a)(ii), 57(2)(c) API 1977; United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 13.32. 296 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4 par. 25-27, India, Statement of India at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, 228, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:359-360. 297 Art. 57(2)(c) API 1977. 293

100

Chapter Three

humanitarian law of directing attacks against the civilians.298 Treating the principle of proportionality as regulating the duty to assume risk would lead to a situation in which the attacker was required to undertake a degree of risk at all times, including circumstances in which it was not practicable to do so. Imagine a situation where a state has few trained soldiers left and is unable to quickly train additional conscripts. Few states would accept an obligation to assume risk in such a scenario. On the other hand, the qualifying term “feasible” of the principle of the least feasible damage encapsulates a nuanced test, which is capable of giving commanders detailed guidance regarding whether they are required to undertake additional risk in the circumstances. At the time of ratifying API 1977, the United Kingdom made a declaration that when attempting to do “everything feasible,” the attacker should take into account both military and humanitarian considerations, and should give equal weight to both values.299 States subsequently incorporated this interpretation into Art. 3(10) of Amended Protocol II to the Convention on Conventional Weapons 1980.300 Since the principle of the least feasible damage involves the balancing of humanitarian and military imperatives,301 it requires commanders to give equal weight to the obligation to assume risk to the force and to the requirement to win the battle. In doing so, a commander can take into account numerous military pressures. These include, but are not limited to, (1) the urgency of responding to the enemy’s actions, (2) the need to ensure that adequate troop numbers are left for the current military operation and for future missions, (3) the need to tailor the response to the enemy tactics, (4) the scarcity of resources and (5) future demands.302

 298

Art. 48 API 1977; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, par. 78-79. 299 United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. b, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:358. 300 Art. 3(10) Amended Protocol II on Prohibitions of Restrictions on the Use of Mines, Booby-Traps and Other Devices to the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, [2001] 2048 U.N.T.S. 93 (1996) (hereinafter cited as Protocol II to CCW 1980). 301 Ibid.; United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. b. 302 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 49 par. 135; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations NWP1-

An Introduction to the Rules of Targeting

101

Since the principle of the least feasible damage accounts for the fact that circumstances shape how much risk the force is required to assume, this rule is capable of giving commanders guidance regarding how much risk their force should shoulder in a particular situation. What measures it is “practicable and practically possible” to take depends on the situation.303 The commanders make judgments regularly as to whether it is a “practical possibility” to assume risk by, for instance, substituting five helicopters for five artillery pieces.304 For this reason, the term “feasible” provides commanders with guidance regarding how much risk they are required to assume. Having said this, it is possible to argue that the term “feasible” is too weak to require specific positive duties such as assumption of risk. Without doubt, the term allows a commander to exercise a degree of judgment in assessing what steps military pressures allow him or her to take.305 Walzer argues that the notion of military necessity is fluid in nature..306 There is no such thing as necessity 307 because its existence is necessarily a product of subjective judgment.308 Military necessity is a term which commanders invoke to discuss “probability and risk.”309 A commander, so the theory goes, could always find a reason to justify why a particular measure is absolutely necessary in order to enable the force to succeed.310 In fact, this measure may be necessary merely to reduce the number of losses among own soldiers or purely to reduce the likelihood of the occurrence of a specific condition, such as soldier casualties.311 On the application of Walzer’s approach, a commander can always invoke

 14M (Washington, DC: Department of the Navy, United States Marine Corps and Department of Transportation, United States Coast Guard, 2007), par. 8.3.1; “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 21, 28. 303 India, Statement of India at the CDDH, Official Records, Vol. VI, CDDH/ SR.42, 27 May 1977, 228. 304 Ibid. 305 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 29. 306 Michael Walzer, Just and Unjust Wars, 4th. ed. (New York: Basic Books, 2006), 144. 307 Ibid. 308 Ibid. 309 Ibid. 310 Ibid. 311 Ibid.

102

Chapter Three

military necessity in order to maintain that it is not “feasible” to assume risk to the force. Just because the notion of military necessity is fluid in nature312 does not mean that the principle of the least feasible damage is incapable on its application of giving rise to a positive duty of risk assumption. As Walzer observes “a range of tactical and strategic options” always exist which can improve the chances of winning.313 As a result, commanders who apply the rule in good faith will find it difficult to say that there are no options open to them for reducing danger to civilians. The principle of the least feasible damage requires commanders to assess in “good faith” whether it is “feasible” to adopt alternative weapons or tactics in order to minimise injury to civilians.314 This safeguard prevents commanders from exploiting the fluid nature of military necessity to argue that they are not required in the circumstances to take steps to avoid or minimise injury to civilians and damage to civilian objects. The fact that the principle of the least feasible damage does not impose a positive duty to use a particular weapon does not mean that the rule is incapable of imposing an obligation of risk assumption. There is a difference between (1) using non-human factors, such as by choosing between alternative weapons, with a view to reducing danger to civilians, and (2) selecting a combination of means and methods of warfare which would result in the attacker’s forces bearing a greater degree of risk. The decision of whether to employ a dumb bomb or a precision-guided bomb is a binary choice. On the other hand, the determination of how much risk to assume to the force involves making a complex assessment of how various materiel and tactics could be combined. There is also the decision of whether to use the special forces, the air force, the army, the navy, or a combination of these braches to execute the mission. Since there are many available permutations of materiel, tactics and types of force, commanders are able to undertake varying degrees of risk to the force. They, therefore, have the flexibility to adjust how much risk they are assuming to the force in light of battlefield pressures. The availability of a multitude of ways in which danger to civilians can be mitigated makes risk assumption akin to a situation where a state has so many precision-guided bombs in its arsenal

 312

Ibid. Ibid. 314 Prosecutor v. Kupreškiü et al., Case No. IT-95-16-T T.Ch.II, Judgment, par. 524 (International Criminal Tribunal for the former Yugoslavia January 14, 2000). 313

An Introduction to the Rules of Targeting

103

that it is obligated by the principle of the least feasible damage to employ such weapons.315 5.3.2. How Much Risk to Assume? In the context of the principle of the least feasible damage, how much risk the attacker can be required to assume is governed by the qualifier of that which is “practicable or practically possible” in the circumstances.316 The availability of practical alternatives and the exigencies of the situation bear on whether the attacker is obligated to assume risk and how much risk should be assumed.317 The U.N. HRC Mission formulated a general test for determining when the attacker assumed insufficient risk. The U.N. HRC Mission stated: “The Mission recognises fully that the armed forces, like any army attempting to act within the parameters of international law, must avoid taking undue risks with their soldiers’ lives, but neither can they transfer that risk onto the lives of civilian men, women and children.”318

The term “to transfer” means “to convey from one person, place, or situation to another.”319 In using the verb “to transfer,” the U.N. HRC Mission suggested that commanders should choose means and methods of warfare so that the infantry and materiel are exposed to at least the same degree of danger as the civilians. The force assumes insufficient risk to itself if it is exposed to less danger than the civilians.

 315

United Kingdom, The Manual of the Law of Armed Conflict, par. 12.51. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:357. 317 Philippines, Department of National Defense, Department of Interior and Local Government, Joint Circular on Adherence to I.H.L. and Human Rights 2-91 (Quezon City: Department of National Defense, 1991), par. 2(c), quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:378; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.3.1. 318 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 407 par. 1888. 319 Merriam-Webster’s Dictionary, s.v. “To transfer” (by Merriam- Webster Inc.), http://www.merriam-webster.com/dictionary/transfer (accessed March 21, 2009). 316

104

Chapter Three

Does the benchmark articulated by the U.N. HRC Mission320 constitute the absolute minimum states should observe under all circumstances, or should their troops assume more risk if the situation allows? Or did it formulate a single standard that is not dependent on the circumstances on the battlefield? There is indirect evidence that the former interpretation ought to be taken. The International Criminal Tribunal for the former Yugoslavia held in the Prosecutor v. Kupreškiü et al. case that the rules enshrined in Art. 57 API 1977 must be interpreted in such a way as to construe the discretionary power of the commander as narrowly as possible and so as to expand the protection accorded to civilians by the relevant rule.321 This case supports a narrow construction of the term “feasible.” 322 The writings of Walzer323 suggest that commanders should plan the military operation in such a way that the troops are exposed to greater risk than the civilians. He maintains that soldiers should assume risks324 because when soldiers are recruited or conscripted, they assume a special role.325 They agree to be exposed to risk, acquire the right to kill, become entitled to a combatant status and assume duties to enemy civilians.326 Walzer’s proposition327 is echoed by that of Christopher, who suggests that taking risks is part of being a soldier.328 In contrast, Lieutenant Colonel Noam Neuman argues against exposing the forces to greater risk than the civilians.329 While soldiers assume a degree of risk, they do so in order to protect the national security of their own country and to aid their fellow combatants.330 The views of Walzer and Christopher are

 320

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 407 par. 1888. 321 Prosecutor v. Kupreškiü et al., Case.No. IT-95-16-T T.Ch.II, Judgment, par. 524 (International Criminal Tribunal for the former Yugoslavia January 14, 2000). 322 Ibid. 323 Walzer, Just and Unjust Wars, 151. 324 Ibid. 325 Ibid. 326 Ibid., 44. 327 Ibid., 151. 328 Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues, 3rd ed. (Upper Saddle River: Pearson Prentice Hall, 2004), 155. 329 Noam Neuman, “Applying the Rule of Proportionality: Force Protection and Cumulative Assessment in International Law and Morality,” Yearbook of International Humanitarian Law 7 (2004): 79-112. 330 Ibid.

An Introduction to the Rules of Targeting

105

preferable to that of Lieutenant Colonel Newman. The civilians are in a vulnerable position when compared to soldiers. The civilians lack guns and special skills which they could use to protect themselves. It is difficult for them to predict where they may meet their death, and to take steps to leave the relevant area. Soldiers, on the other hand, rely on their training to conceal their whereabouts from the adversary, are able to detect the direction where the fire is coming from and can shoot the enemy fighters. White too challenges the traditional view that soldiers assumed a duty not to transfer risks onto civilians in exchange for accepting the rights associated with the combatant status.331 Western countries, he posits, now rely on volunteer armies and see their soldiers as “selfless professionals” whose lives are as valuable as those of enemy civilians.332 They view themselves as bearing a strong responsibility to the members of the armed forces as their employees to prevent casualties among the soldiers.333 White’s proposition that volunteer armies are entitled to greater protection than conscripts334 is not supported by evidence. The United Kingdom Supreme Court in the case R (On the Application of Smith) v. Secretary of State for Defence reasoned that conscripts in countries such as Russia and Turkey are more vulnerable than the volunteer forces in the United Kingdom.335 The judges additionally thought that there is a close analogy between those who volunteer for the armed forces and those who volunteer for service in the emergency services.336 Fire-fighters chose a job where they “may face situations of great danger where their lives are at risk.”337 This judgment suggests that the assumption of risk is part of the job description of a soldier.

 331

Hugh White, “Civilian Immunity in the Precision-Guidance Age,” in Civilian Immunity in War, ed. Igor Primoratz (Oxford: Oxford University Press, 2007), 196-197. 332 Ibid. 333 Ibid. 334 Ibid. 335 R (On the Application of Smith) (F.C.) v. Secretary of State for Defence and Another, [2010] U.K.S.C. 29, par. 121 (The Supreme Court, United Kingdom). 336 Ibid., par. 101. 337 Ibid.

106

Chapter Three

Additional support for the argument that the U.N. HRC Mission338 formulated a minimum standard that may be heightened when particular circumstances exist is found in the fact that particular circumstances, such as technological superiority over the enemy, may make it possible for the military to assume more risk. According to Biddle, the possession of advanced technology multiplies the effect of using tactics which protect the force.339 Furthermore, Posen, in testifying before the British Parliament, explained that the technological superiority over the Iraqi forces enabled the Coalition troops to take greater risks in order to achieve military goals during Operation Iraqi Freedom 2003.340 Their “heavily armoured” materiel “wildly outclassed anything the Iraqis could put in the theatre.”341 Although Posen talks of the relationship between technological superiority of the force and its ability to take military risks,342 his observation is equally applicable to risk assumption in the context of reducing civilian casualties. Posen suggests that when a force has technological superiority over the enemy, it is exposed to less danger and as a consequence can embark on dangerous missions.343 A force which is well protected, due to being assisted by advanced technologies, should be able to assume greater risk in order to spare civilians, because in doing so it will suffer fewer casualties than it otherwise would have. Boivin344 echoes this observation. According to her, when a state gets an advantage over the enemy due to employing technology to reduce danger to its force, that state is able to adopt a broader range of measures in order to reduce harm to civilians.345 The practice of states on how they allocate a scarce resource, such as precision-guided munitions, provides further support for the position that the force may need to assume more risk in some circumstances. Imagine that a state has only one laser-guided bomb in its arsenal. The commander

 338

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 407 par. 1888. 339 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 142. 340 United Kingdom, Defence Committee, Minutes of Evidence, Commons, vol. 57-II (2002-2003), col. 108. 341 Ibid. 342 Ibid. 343 Ibid. 344 Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 48. 345 Ibid.

An Introduction to the Rules of Targeting

107

faces a choice between using that bomb in a densely populated city and in a city where the civilian objects are more spread out. In this scenario the commander will choose to use the bomb against the target which is located in a densely populated city.346 This scenario suggests that commanders are likely to be prepared to assume greater risk when the force is operating in a densely populated area. Schmitt reports that states in fact do this as a matter of practice.347 The next chapter will consider in greater detail whether the term “feasible” provides a comprehensive guidance on the issue of how much risk the force is obligated to assume.

6. The Duty to Issue an Advance Warning of the Attack According to Art. 57(2)(c) API 1977, “Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”348 Henckaerts and Doswald-Beck have concluded based on their analysis of state practice in their Customary Law Study that this rule enjoys customary international law status in both international and non-international armed conflicts.349 Their view is uncontroversial because this obligation is a well-established treaty rule in international humanitarian law. It has predecessors in the Hague Regulations Concerning the Laws and Customs of War on Land IV 1907 and the Hague Convention Concerning Bombardment by Naval Forces in Time of War IX 1907.350 Both of these treaties have customary international law status.351 The issuance of an advance warning of the attack benefits civilians by enabling them to flee from the combat zone. On the other hand, when commanders warn civilians about the impending attack, they expose their

 346

Sassòli and Cameron, “The Protection of Civilian Objects-Current State of the Law and Issues de Lege Ferenda,” 70. 347 Schmitt, “Precision Attack and International Humanitarian Law,” 462. 348 Art. 57(2)(c) API 1977. 349 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:62-63. 350 Art. 26 The Hague Convention No. IV of 18 October 1907, Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land; Art. 6 Hague Convention No. IX of 18 October 1907, Concerning Bombardment by Naval Forces in Time of War, 36 Stat. 2351, Treaty Ser. No. 542. 351 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2003, p. 136, par. 89.

108

Chapter Three

force to danger.352 Commanders also incur a higher risk that they will be unable to prevail over the adversary.353 For this reason, states are consistent in interpreting the term “unless circumstances do not permit” as not requiring commanders to give a warning of an attack where surprise is essential to the success of the military operation.354 Major General Rogers uses a scenario from the Second World War to illustrate when soldiers may assess that circumstances do not permit a warning to be issued.355 The American Marines stationed in Okinawa encountered in moonlight what they believed to be the Japanese soldiers dressed as women.356 The Marines, therefore, opened fire on suspicion without giving a warning.357 They perceived that the issuance of a warning to check the identity of the individuals in question would have exposed them to too great a danger.358 Accordingly, commanders in determining whether to issue an advance warning of the attack balance (1) exposing civilians to risk, (2) the danger to the force and (3) the risk of losing the battle. In doing so, they weigh the costs and benefits associated with giving an advance warning of the attack. The force shoulders risk when commanders issue a warning. Meanwhile, when commanders do not warn the civilians about the upcoming military operation, they shift risk onto the civilians. Dinstein proposes that commanders only need to issue advance warnings when they are about to attack fixed military objectives that may not be relocated.359 His rationale is that defenders could move mobile military objectives, such as tanks, if they were to receive a warning about the

 352

Rogers, Law on the Battlefield, 100-101. Australia, Manual on the Law of Armed Conflict ADFP 37, par. 551. 354 Belgique, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, vol. 2 (Bruxelles: École Royale Militaire, 1983), 29, Ecuador, Academia de Guerra Naval, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques (Salinas: Academia de Guerra Naval, 1989), par. 8.5.2, South Africa, South African National Defence Force Revised Civic Education Manual (2004), chap. 4 par. 50(g), quoted in International Committee of the Red Cross, “Practice Relating to Rule 20: Advance Warning,” International Committee of the Red Cross, http://www.icrc.org/customaryihl/eng/docs/v2_rul_rule20 (accessed January 17, 2009). 355 Rogers, Law on the Battlefield, 101. 356 Ibid. 357 Ibid. 358 Ibid. 359 Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 144. 353

An Introduction to the Rules of Targeting

109

imminent attack.360 It is unrealistic to interpret the warnings requirement so narrowly. Often immovable and mobile military objectives are intermixed, as in the case of populated areas. It would be bizarre if a rule that was designed to protect the civilians did not require commanders to warn civilians simply because there were mobile military objectives in the area. Parties to the conflict may use various media, such as radio, television, leaflets, public address systems and automated telephone calls for issuing warnings.361 The rules of targeting continue to be applicable even after a commander had issued an advance warning of the attack.362 One of the reasons for this is that some civilians may be unable to evacuate themselves.363 For instance, some civilians may lack the transportation or financial resources to leave.364 Others may find it difficult to travel because they are elderly, ill, or because they must care for others.365 In some instances civilians do not evacuate themselves because they have nowhere to go.366 There are occasions when the roads are unusable because the parties to the conflict destroyed them at an earlier point in time.367 Another reason for the concurrent applicability of the warnings requirement and other rules of targeting lies in the fact that each rule is self-standing. For Quéguiner, it would be anomalous if, having issued an effective advance warning of the attack, a commander was not obliged to take additional precautions in attack.368 After all, the duty to give an advance warning of the attack is designed to protect civilians.369 Israel takes a different position. It considers that once its commanders issue a warning, they are no longer bound by the rule of target verification, the principle of the least feasible

 360

Ibid. Michael John-Hopkins, “Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts,” 483. 362 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 40-41 par. 158. 363 Ibid. 364 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 40 par. 153-154. 365 Ibid. 366 Ibid. 367 Ibid. 368 Jean-François Quéguiner, “Precautions Under the Law Governing the Conduct of Hostilities,” International Review of the Red Cross 88, no. 864 (2006): 808. 369 Ibid. 361

110

Chapter Three

damage and the principle of proportionality.370 From that point onwards, the civilians assume a risk if they do not leave their homes.371 However, Israel’s interpretation of the law is not well supported. In assessing when and by what means to issue an advance warning of the attack to civilians, commanders are guided by the term “effective.” There are two types of warnings. When commanders give specific warnings, they tell civilians where the military operation will take place and at what time.372 When they issue general warnings, they provide “generic” information to civilians, such as about the type of objects which may be attacked.373 For instance, a commander may tell the civilians to stay away from oil refineries, bridges and barracks. The nature of general warnings means that commanders do not tell civilians when they will carry out the military operation. Furthermore, commanders give general warnings much further in advance than specific warnings, resulting in civilians not knowing when they should evacuate the area. The central question is whether the term “effective” requires commanders to issue specific, as opposed to general, warnings.

6.1. The Meaning of the Term “Effective” According to Dinstein, state practice does not provide clear guidance on how “specific and direct” the warning has to be.374 There is conflicting state practice on this issue. NATO officials told Amnesty International that, during Operation Allied Force 1999, their troops gave Western journalists a general warning that they planned to attack a television

 370

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 142 par. 391. 371 Ibid. 372 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 132 par. 536. 373 Ibid., 131 par. 531; Robert F. Futrell, The United States Air Force in Korea 1950-1953 (Revised) (Washington, DC: Office of Air Force History, 1983), 516, 518, quoted in International Committee of the Red Cross, “Practice Relating to Rule 20: Advance Warning,” International Committee of the Red Cross, http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule20 (accessed January 17, 2009). 374 Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 144-145. See also Quéguiner, “Precautions Under the Law Governing the Conduct of Hostilities,” 807 n. 48.

An Introduction to the Rules of Targeting

111

station in Belgrade.375 They bombed the Serbian state radio and television headquarters two weeks later.376 NATO did not give journalists a specific warning because this measure would have endangered the pilots.377 The United States of America tended to issue general warnings during Operation Desert Storm 1991378 and Operation Iraqi Freedom 2003379 in order not to jeopardise the security of the force and their chances of prevailing over the adversary.380 In particular, it dropped leaflets and made radio broadcasts during Operation Desert Storm 1991 advising civilians to avoid spending time in the proximity of specific “war supporting industries.”381 Similarly, Israel holds the opinion that it is sufficient to give general warnings to civilians, in order to fulfill legal obligations.382 On the other hand, the United Kingdom and Côte d’Ivoire take a different position. The British Joint Service Manual of the Law of Armed Conflict states that in order to be “effective,” the warning should be “sufficiently specific” to enable the civilians to either take shelter or to leave the area.383 The warning should additionally enable civil defence organisations to take “appropriate measures” to safeguard the civilians.384 Commanders should ensure that they give adequate time to civilians and civil defence organisations to heed the warning.385 This position clearly reflects an obligation to take high level of care in order to spare the civilian

 375

Amnesty International, Federal Republic of Yugoslavia (FRY)/NATO: Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force, 45. 376 Ibid. 377 Ibid. 378 United States Army, Message from the Department of the Army to the Legal Advisor of the United States Army Deployed in the Gulf, January 11, 1991, par. 8(I), quoted in Laurie R. Blank, “The Application of I.H.L. in the Goldstone Report: a Critical Commentary,” Yearbook of International Humanitarian Law 12 (2009): 385. 379 Major General Stanley A. McChrystal, “Coalition Targeting Procedures,” news release, April 3, 2003), http://2002-2009-fpc.state.gov/19326.htm (accessed April 26, 2009). 380 United States Army, Message from the Department of the Army to the Legal Advisor of the United States Army Deployed in the Gulf, January 11, 1991, par. 8(I). 381 Ibid. 382 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 50 par. 137. 383 United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 5.32.8. 384 Ibid. 385 Ibid.

112

Chapter Three

population. In the same vein, the Côte d’Ivoire’s Teaching Manual 2007 requires that in order to be “effective,” the warning should leave the civilians “sufficient time to react”386 and thus implies that the warning needs to be specific. The U.N. HRC Mission interprets the warnings requirement in a similar way. It pointed out that in order to be “effective,” the warning should be “specific” and “clear.”387 The commander should tell civilians where and when the military operation will take place.388 Furthermore, a commander should leave civilians sufficient time to react to the warning.389 However, the U.N. HRC Mission acknowledged that in exceptional circumstances commanders may give general warnings, such as where they lack the resources to issue specific warnings, or where the success of the mission is at stake.390 Schmitt criticises the U.N. HRC Mission for having changed the balance between the principles of humanity and military necessity in finding that warnings must be specific.391 Schmitt’s criticism is overly harsh. According to the U.N. HRC Mission, commanders may issue general warnings, but only when the situation does not permit them to give specific warnings.392 The interpretation of the U.N. HRC Mission that commanders should normally issue specific warnings393 closer reflects the purpose of the term “effective” than the positions of countries such as the United States of America. The aim of the warnings requirement is to

 386

Côte d’Ivoire, Droit de la Guerre, Manuel D’instruction Livre 3, vol. 1 (Ministère de la Défense, 2007), 70, 72-73, quoted in International Committee of the Red Cross, “Practice Relating to Rule 20: Advance Warning,” International Committee of the Red Cross, International Committee of the Red Cross, “Practice Relating to Rule 20: Advance Warning,” International Committee of the Red Cross, http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule20 (accessed January 17, 2009). 387 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 132 par. 536. 388 Ibid., 132 par. 536. 389 Ibid., 131 par. 530. 390 Ibid., 127-128 par. 510-512. 391 Michael N. Schmitt, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance,” Virginia Journal of International Law 50, no.4 (2009-2010): 827. 392 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 127-128, 131 par. 510-512, 531. 393 Ibid., 127-128 par. 510-512.

An Introduction to the Rules of Targeting

113

protect civilians. When civilians do not know when and where the military operation will take place, it is difficult for them to heed the warning. For instance, Israel warned the owners of a flour mill to evacuate394 but did not follow up with a strike in the next five days.395 The owners felt anxious396 and wondered whether the absence of the strikes indicated that Israel decided not to attack the mill.397 They, therefore, considered whether to recommence work at the mill.398 This example suggests that in evaluating whether the warning is “effective,” commanders should take into account how civilians are likely to interpret the message, and how they will respond to it.399 As the U.N. HRC Mission pointed out, warnings in practice reduce civilian casualties only when commanders take into account how civilians will interpret the message.400 Since the purpose of the warnings requirement is to protect civilians, the purpose of the rule will be voided if it is interpreted as requiring commanders to merely issue general warnings without having regard to circumstances. Furthermore, a warning which is so general, or which is issued so close to the attack that civilians do not have an adequate opportunity to take measures to protect themselves, can never constitute an “effective” warning. How specific should the warning be? There is no evidence that states require commanders to inform civilians about the exact buildings that will be targeted. For instance, it is sufficient for commanders to instruct the civilians not to leave their homes between noon and two o’clock in the afternoon in order to ensure that the attack does not affect them. Commanders cannot invoke the fact that the defender is likely to take steps to detect approaching aircraft, such as through the use of radar, to justify not giving a timeframe of the attack to civilians. This is because the obligation to issue an “effective” advance warning of the attack is addressed directly to the attacker. If the rule were to be interpreted as absolving commanders of responsibility to inform civilians about the timeframe in which the military operation will take place whenever the defender possesses air defence capabilities, then such an interpretation

 394

Ibid., 200 par. 916. Ibid., 200 par. 918-919. 396 Ibid., 201 par. 923. 397 Ibid., 200 par. 918. 398 Ibid. 399 Ibid., 130 par. 523. 400 Ibid. 395

114

Chapter Three

would shift the responsibility onto the defender to detect the approaching enemy and to warn the civilians about the imminent attack.

6.2. How Far in Advance Commanders should Issue a Warning As regards how far in advance civilians should be warned of the forthcoming military operation, the state practice does not conclusively resolve this issue.401 Rogers believes that commanders should give civilians sufficient time to enable them “to take shelter.”402 In using the term “to take shelter,” Major General Rogers probably refers to the ability of civilians to travel to the place where they will be safe, such as an air raid shelter. Naturally, this includes providing civil defence organisations with a sufficient period of time in which to direct civilians to shelters. Since the evacuation of civilians may take a much longer time period, Major General Rogers is unlikely to be saying that commanders should in all instances give civilians adequate time to evacuate the area. The U.N. Commission of Enquiry interprets the term “effective” more generously than Major General Rogers. According to the U.N. Commission of Enquiry, warning the civilians two hours in advance about the commencement of the military operation does not satisfy the condition of “effectiveness.”403 Paradoxically, Major General Rogers’ interpretation of the law may well in practice lead to greater protection for civilians. If the rule is interpreted as requiring commanders to allow civilians sufficient time to evacuate in all cases, this may lead to a situation where commanders more frequently assess that the situation does not permit them to warn the civilians of the attack. Clearly, if a warning is given far in advance, the enemy has time to remove the military equipment located inside the designated targets404 and to prepare the defence. Unfortunately, it is not the case that there are a sufficient number of shelters for housing all civilians in all populated areas. Where this is the case, or where a commander plans to conduct a military operation in the entire city, it is only possible to adequately protect the civilians by giving them sufficient time to evacuate. The larger the town or city, the more

 401

Rogers, Law on the Battlefield, 88. Ibid. 403 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S2/1, 40 par. 153-154. 404 Quéguiner, “Precautions Under the Law Governing the Conduct of Hostilities,” 808. 402

An Introduction to the Rules of Targeting

115

time the civilians will need to leave. Since the purpose of the warnings requirement is to protect civilians, the purpose of the rule will be compromised if civilians do not have enough time to travel to a safe location. Accordingly, the term “effective” should normally be interpreted as requiring commanders to issue warnings sufficiently far in advance so as to enable civilians to evacuate the area. Where circumstances preclude this, or where it is known that there are many civilian shelters in the area, then the timeframe should at least allow the civilians (as per Major General Rogers) 405 “to take shelter.” In assessing how much time civilians need in order to safeguard themselves, commanders are obligated to adopt the perspective of the civilian.406 This means that commanders should take into account how long it takes for infirm or pregnant individuals to travel to the shelter.

6.3. The Meaning of the Term “unless circumstances do not permit” The commanders refer to the term “unless circumstances do not permit” in determining whether they are obligated to issue an advance warning of the attack in the circumstances. State practice reveals that states understand the phrase “unless circumstances do not permit” to mean that commanders need not give a warning in situations where surprising the adversary is a condition of success of the military operation.407 The Australian Defence Force Manual states that there is no obligation to issue a warning if the giving of a warning will “seriously compromise” the chances of winning.408 Of course, commanders additionally take into account the danger to which the military operation will expose the troops if a commander informs civilians about the forthcoming attack.409 The reasoning of the U.N. HRC Mission demonstrates that commanders are not obligated to warn the civilians if surprise is a crucial element for the

 405

Rogers, Law on the Battlefield, 88. U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 130 par. 523. 407 Sandoz, Swinarski, and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 686 par. 2223. 408 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551. 409 United States Department of the Air Force, International Law-The Conduct of Armed Conflict and Air Operations, Air Force Pamphlet 110-31 (Washington, DC: United States Air Force, 1976) par. 5-3(c)(2)(d). 406

116

Chapter Three

success of the military operation. The U.N. HRC Mission found that it was lawful for Israel at the very start of the military campaign not to warn the civilians about the forthcoming air strikes in Gaza.410 In deciding whether circumstances do not permit a warning to be given, commanders exercise discretion.411 They are obligated to make their determination in “good faith.”412 .

There are circumstances which make it more likely that commanders are in a position to issue an advance warning of the attack.413 Rowe implies that when a state has air supremacy and is, therefore, immune from the defensive measures of the enemy, it should always issue an advance warning of the attack to the civilians prior to commencing the aerial strikes.414 As Rowe remarks, “The oft-quoted phrase ‘surprise in attack is the key to victory’ does not have a great deal of significance if the attacking state has complete supremacy of the air, is virtually immune from the defensive measures of the attacking state and wishes, for political purposes, to avoid civilian casualties.”415

There is also a duty to warn civilians about the imminent military operation when pilots do not operate at very low risk. For instance, the ICRC Commentary to API 1977 states that it is possible for commanders to issue an advance warning of an attack when the enemy has basic antiaircraft capabilities.416 In the context of ground operations, John-Hopkins argues that commanders who possess more advanced weapons and intelligence-

 410

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 128 par. 512. 411 Rogers, Law on the Battlefield, 100. 412 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 131 par. 529. 413 Ibid., 127-128 par. 510-511. 414 Peter Rowe, “Kosovo 1999: The Air Campaign-Have the Provisions of Additional Protocol I Withstood the Test?,” International Review of the Red Cross 837 (2000): 147-164. 415 Ibid., 147. 416 Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 686 par. 2224.

An Introduction to the Rules of Targeting

117

gathering technologies will find that they can invoke the qualifying term “unless circumstances do not permit” under fewer instances than commanders who lack such capabilities.417 He bases his proposition on the fact that the possession of advanced weapons and intelligence, surveillance and reconnaissance technologies increases a commander’s chances of winning the battle.418 Therefore, these technologies render the element of surprise of lesser significance.419 The observations of John-Hopkins should be read in light of the fact that when commanders know the location and composition of the enemy troops, they can tailor their means and methods of warfare to the capabilities of the enemy.420 In turn, such matching of means and methods of warfare to enemy capabilities results in the commander’s forces being exposed to less danger.421 The use of advanced technologies, moreover, amplifies the capability of the troops and the effectiveness of intelligent tactics.422 The enemy tactics bear on whether circumstances do not permit commanders to give an advance warning of the attack.423 Israel explains that if the enemy forces launch mortar munitions and anti-tank missiles at one’s forces in an urban area, the ground forces would have no choice but to return fire without giving an advance warning to the civilians.424 The issuing of a warning in this situation would allow the shooter to move to another location.425 Israel’s example is surely limited to situations when the troops need to respond to the enemy’s attack immediately. When the troops have a time window in which to respond to the enemy fire and can use tactics to evade the attack, commanders will find it more difficult to argue that the issuance of a warning endangers the survivability of the troops or the achievement of the mission. Support for this position may be gleaned from the analysis of the U.N. HRC Mission of Israel’s conduct during Operation Cast Lead 2009. The U.N. HRC Mission found that

 417

John-Hopkins, “Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts,” 483-484. 418 Ibid. 419 Ibid. 420 United States Army, The United States Army Functional Concept for Fires 2016-2028, 14; Evans, War: a Matter of Principles, 43. 421 Ibid. 422 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 142. 423 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 49 par. 135. 424 Ibid., 50 par. 136. 425 Ibid.

118

Chapter Three

Israel violated its obligation to warn civilians about the attack when its forces came under mortar fire and had fifty minutes in which to respond to the attack.426 The nature of the weapons that are available to commanders have bearing on whether they may argue that circumstances do not permit them to warn the civilians about the military operation. According to the U.N. HRC Mission, an Israeli commander “did not seriously consider the consequences of using white phosphorus [close to a hospital], as evidenced by his failure to issue an advance warning of the impending attack to hospital staff.”427

The U.N. HRC Mission, therefore, implied that when using “especially hazardous materials” in close proximity to civilians, such as white phosphorous, commanders should normally issue an advance warning of the attack.428 Finally, the resources that commanders have for issuing advance warnings bear on whether they can argue that circumstances do not permit them to warn civilians.429 Since Israel could use landlines and mobile telephone networks to inform civilians about the impending military operations, the U.N. HRC Mission thought that Israel should have taken advantage of the resources that were available to it.430 Justice Richard Goldstone proposed a new approach to interpreting the phrase “unless circumstances do not permit.”431 According to this test, “The key limitation on the application of the rule is if the military advantage of surprise would be undermined by giving a warning. The same calculation of proportionality has to be made here as in other circumstances. The question is whether the injury or damage done to civilians or civilian objects by not giving a warning is excessive in relation to the advantage to be gained by the element of surprise for the particular

 426

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 158 par. 698. 427 Ibid., 148 par. 650. 428 Ibid. 429 Ibid., 128 par. 511. 430 Ibid. 431 Françoise Hampson, personal communication with the author, February 24, 2010.

An Introduction to the Rules of Targeting

119

operation. There may be other circumstances when a warning is simply not possible.”432

He further points out that commanders should bear in mind the obligation to minimise injury to civilians and damage to civilian objects in assessing whether circumstances do not permit a warning to be given.433 Goldstone in effect reformulated the traditional “unless circumstances do not permit” test to incorporate the concept of proportionality. He envisages commanders weighing harm to civilians against military advantage in determining whether circumstances do not permit to warn the civilians. Schmitt criticises Goldstone’s test.434 He argues that there is no basis in law “for applying this proportionality standard to the warnings requirement.”435 It is without doubt that Goldstone’s approach is novel. The test is nevertheless legitimate, provided that it is consistent with existing state practice. Whether Goldstone’s reformulation of the rule is congruent with state practice is examined in chapter 4.

7. To Whom the Rules of Targeting are Addressed The principle of distinction is addressed to “the parties to the conflict.”436 This includes all those who are engaged in a military operation, ranging from soldiers437 to commanders.438 On the other hand, Art. 57(2)(a) API 1977 addresses itself to those who plan and decide upon attacks.439

 432

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 131 par. 529. 433 Ibid. 434 Schmitt, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance,” 827. 435 Ibid. 436 Art. 48 API 1977. 437 Cameroon, Présidence de la République, Ministère de la Défense, Droit International Humanitaire et Droit de la Guerre Manuel de l’Instructeur en Vigueur Dans les Forces Armées, 3ed. (Etat-major des Armées, 1992), 143, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:5. 438 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-1 par. 4, Croatia, Compendium Law of Armed Conflicts (Republic of Croatia: Ministry of Defence, 1991), 37, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:5. 439 Art. 57(2)(a) API 1977.

120

Chapter Three

Switzerland440 and Austria441 clarify that the nature of the duties imposed by Art. 57(2) API 1977 are such that they can only be discharged by persons “at higher levels of military command.” Switzerland further made a declaration that Art. 57(2) API 1977 is only addressed to the commanders of a battalion or a group and to persons higher in the hierarchy.442 The nature of decisions that commanders make illustrates why Switzerland and Austria made such declarations. The hierarchical structure in the military means that only commanders who hold sufficiently high rank make decisions, such as whether to use air power, ground troops, or both to execute a particular mission. Since soldiers are unlikely to have the authority to make these types of assessments, they are unable to apply the principle of the least feasible damage. As regards the principle of proportionality, Oeter thinks that noncommissioned officers and unit commanders lower in the hierarchy than company commanders lack sufficient information and “overview of the military situation” to evaluate whether the attack complies with this rule.443 They will lack information that one must know in order to estimate the military advantage offered by the attack.444 To illustrate, imagine that a party to the conflict adopts a strategy to destroy the communication network of the enemy.445 To achieve this, a commander decides to attack “a series of switching centres.”446 The structure of the communication network is such that it will only be disabled if the troops attack numerous switches.447 For this reason, destroying a single switch will not necessarily

 440

Switzerland, Declaration Made Upon Signature of AP I 1977, 12 December 1977, par. 1, Switzerland, Reservations Made upon Ratification of AP I 1977, 17 February 1982, par. 1, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:358. 441 Austria, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, 212 par. 46, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:360. 442 Switzerland, Declaration Made Upon Signature of AP I 1977, 12 December 1977, par. 1, Switzerland, Reservations Made Upon Ratification of API 1977, 17 February 1982, par. 1, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:358. 443 Oeter, “Methods and Means of Combat,” 1st ed., 182. 444 Ibid., 182. 445 Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 22. 446 Ibid. 447 Ibid.

An Introduction to the Rules of Targeting

121

yield a definite military advantage.448 Only those higher in the hierarchy than a unit commander can assess what degree of military advantage the destruction of multiple switching centres confers, how many civilians the attack is likely to kill and how many civilian objects could be destroyed or damaged. Interestingly, Henderson argues that depending on the context, the obligations placed by Art. 57 API 1977 apply at the level of an individual who is conducting an attack, such as a pilot.449 When the act amounts to an attack, such as where a pilot is tasked with flying and bombing targets of opportunity, the pilot has to comply with all the rules of targeting.450 The situation is different where a commander dispatches a squadron of aircraft to bomb a particular military installation.451 In this instance, each aircraft is contributing to the attack and the actions of a single pilot may not be considered in isolation to constitute an attack.452 For this reason, Art. 57 API 1977 may not be said to apply to a single pilot in this situation.453 Henderson concludes by pointing out that what measures it is “feasible” to adopt differ for a divisional commander and for a soldier.454 Those who are responsible for planning and executing attacks are held to a more onerous standard because they have more authority and influence.455

8. Conclusions The principle of distinction is the only rule of targeting which imposes an unqualified obligation. A common thread that runs through all rules of targeting other than the principle of distinction is that they envisage commanders managing risk. The rule of target verification and the principle of the least feasible damage additionally require forces to assume risk in order to reduce danger to civilians. States deliberately drafted the

 448

Ibid. Ian Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack Under Additional Protocol I (Leiden: Martinus Nijhoff Publishers, 2009), 161. 450 Ibid. 451 Ibid. 452 Ibid. 453 Ibid. 454 Ibid. 455 Ibid. 449

122

Chapter Three

rule of target verification, the principle of the least feasible damage,456 the principle of proportionality457 and the warnings requirement458 in such a way as to allow commanders to exercise judgment in their decisionmaking. The principle of proportionality envisages commanders exercising judgment because it requires them to weigh incommensurable values. The rule of target verification, the principle of the least feasible damage and the warnings requirement require commanders to exercise judgment for a different reason. These rules take account of the fact that parties to the conflict have different capabilities and employ diverse tactics. Commanders additionally consider the complex way in which the capabilities and tactics of their own force interact with that of the adversary. The broad wording of the rules of targeting ensures that they are relevant for different types of military operations, ranging from conventional combat to counterinsurgencies.459 Since states drafted the rule of target verification, the principle of the least feasible damage, the principle of proportionality and the warnings requirement rules broadly, these rules enable states to assume heightened legal obligations for policy reasons.460 The open-ended language of the terms, which qualify the obligations imposed by the rules of targeting, moreover enables them to accommodate an evolving understanding of the law. For instance, the International Committee of the Red Cross and non-governmental organisations wish to widen the protection of civilians. These organisations, therefore, advocate for a more restrictive interpretation of the law. The armed forces take a more conservative approach to legal interpretation in order to preserve their freedom of action and reduce own casualties. The evolving views on the issue of what level of civilian harm is acceptable may be one of the reasons why scholars increasingly debate issues, such as whether an attacker is under an

 456

“Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 29. 457 Ibid., par. 48-50. 458 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:401. 459 Dale Stephens, “Counterinsurgency and Stability Operations: a New Approach to Legal Interpretation,” in The War in Iraq: A Legal Analysis, ed. Raul Pedrozo, vol. 86 (Newport: Naval War College, 2010), 304-307. 460 Ibid., 308.

An Introduction to the Rules of Targeting

123

obligation to assume risk.461 Furthermore, Colonel Darren M. Stewart believes that the flexibility inherent in the application of the rules of targeting enable them to continue to remain relevant as scientists invent new technologies.462 For instance, one of the recent debates centres on whether the current rules of targeting are adequate for regulating robots that make autonomous targeting decisions.463

 461

Dunlap, “Kosovo, Casualty Aversion and the American Military Ethos: a Perspective,” 100-101; White “Civilian Immunity in the Precision- Guided Age,” 196-197; Walzer, Just and Unjust Wars, 151. 462 Colonel Darren M. Stewart, “New Technology and the Law of Armed Conflict,” in International Law and the Changing Character of War, ed. Raul A. Pedrozo and Daria P. Wollschlaeger, vol. 87 (Newport: Naval War College, 2011), 288-289. 463 Markus Wagner, “The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems,” Vanderbilt Journal of Transnational Law 47 (2014): 1; Marco Sassòli, “Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to Be Clarified,” International Law Studies 90 (2014): 308.

CHAPTER FOUR THE PRACTICAL APPLICATION OF THE RULES OF TARGETING: A LEGAL AMBIGUITY

Major General A.P.V. Rogers believes that the legal terms that qualify the obligations of the rules of targeting can be given “wide and at times varying interpretations.”1 It is difficult for the commander to determine “whether he [or she] has done everything feasible in identifying the target…in taking all feasible precautions for the safety of civilians.”2 The judgment of what measures are “feasible” in the circumstances is “subjective” and is open to challenge by others.3 Cameron and Sassòli echo Major General Rogers’s argument.4 They point out that, “In practice, it is very hard to assess objectively whether the prescribed precautionary measures were taken preceding a given attack leading to civilian casualties.”5

The scholars have provided various guidelines on how to assess what any particular rule of targeting requires in practice. Their propositions merit careful consideration.

1. The Rule of Target Verification The rule of target verification requires that those who plan or decide upon an attack “do everything feasible” to verify that the objectives to be attacked are military objectives.6 Upon ratifying API 1977, states declared

 1

Rogers, Law on the Battlefield, 97. Ibid. 3 Ibid. 4 Sassòli and Cameron, “The Protection of Civilian Objects-Current State of the Law and Issues de Lege Ferenda,” 70. 5 Ibid. 6 Art. 57(2)(a)(i) API 1977. 2

The Practical Application of the Rules of Targeting

125

that they interpret the duty to “do everything feasible” as measures that are “practicable or practically possible.”7 According to France, this obligation requires states to do that “which can be realised or which is possible in practice.”8 In turn, Canada and the United States of America interpret the standard of “practicable or practically possible” measures as obligating commanders to use “reasonably available” intelligence, surveillance and reconnaissance resources and to gather “reasonably available” information.9 From time to time some states use language indicating that it is possible that the rule of target verification imposes a stricter obligation. For instance, the Ministers of Defence and Foreign Affairs told the Dutch Parliament that the Netherlands requires its commanders to take “every measure” to protect civilians.10 Meanwhile, the Minister of State for the Armed Forces, in giving evidence before the British Parliament, said that the armed forces took “every effort” to keep civilian casualties to a minimum during Operation Iraqi Freedom 2003.11 However, a closer analysis of the state practice of the Netherlands12 and the United Kingdom13 demonstrates that they do not interpret the term “feasible” more strictly than other countries. In particular, the United Kingdom when it signed up to API 1977 declared in relation to Art.

 7 Germany, Declarations Made Upon Ratification of AP I 1977, 14 February 1991, par. 2; Canada, Reservations and Statements of Understanding Made Upon Ratification of AP I 1977, 20 November 1990, par. 5; United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. b. 8 France, Reservations and Declarations Made Upon Ratification of AP I 1977, 11 April 2001, par. 3, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:357. 9 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4, par. 25-27, United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:365. 10 Netherlands, The Lower House of Parliament, Handelingen, 2006-2007 Session, Appendix No. 1940 (June 25, 2007), 4104, quoted in International Committee of the Red Cross, “Practice Relating to Rule 15: Precautions in Attack,” International Committee of the Red Cross, http://www.icrc.org/customary-ihl/eng/docs/ v2_rul_rule15 (accessed January 28, 2011). 11 United Kingdom, Hansard, Parliamentary Debates, vol. 402 (2002-2003) cols. 651W-653W. 12 Netherlands, The Lower House of Parliament, Handelingen, 2006-2007 Session, Appendix No. 1940 (June 25, 2007), 4104. 13 Ibid.

126

Chapter Four

57(2)(a)(i) that attackers should gather “information from all sources which is reasonably available.”14 The United Kingdom has not indicated that this declaration no longer reflects its position on how the term “feasible” should be interpreted. In light of this, the statement of the Minister of State for the Armed Forces in Parliament should be viewed as a reflection of the policy of Western states to take additional care to protect civilians in order to gain political support for the military campaign.15 Alternatively, it could also be that the speaker simply did not address the fact that the measures available to the commander are determined in part by circumstance. Similarly, the Netherlands has not publicly amended its declaration in relation to API 1977 where it explained that “the word ‘feasible’ is to be understood as practicable or practically possible taking into account all circumstances ruling at the time.”16 Accordingly, the term “feasible” should be understood as requiring commanders to do that “which can be realised or which is possible in practice.”17 States are to employ “reasonably available” resources and to gather “reasonably available” information.18 The rule of target verification as such does not give guidance on how commanders should go about determining which available intelligence, surveillance, and reconnaissance assets to use and in what combination. If a state has a resource that is “reasonably available” to the commander in the circumstances and the commander fails to use it, then rule of target

 14

United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. C, quoted in Adam Roberts and Richard Guelff, Documents on the Laws of War, 3rd ed. (Oxford: Oxford University Press, 2000), 510-512. See also New Zealand, Declarations Made Upon Ratification of AP I 1977, 8 February 1988, par. 2, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:333. 15 House of Commons Foreign Affairs Committee, “The UK’s Foreign Policy Approach to Afghanistan and Pakistan: Fourth Report of Session 2010-2011” vol. 1 (London: The Stationery Office Limited, 2011), 24-26. 16 Netherlands, Declarations Made Upon Ratification of AP I 1977, 26 June 1987, par. 2, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:358. 17 France, Reservations and Declarations Made Upon Ratification of AP I 1977, 11 April 2001, par. 3. 18 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4, par. 25-27; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1.

The Practical Application of the Rules of Targeting

127

verification is breached.19 The law gives no criteria beyond this guidance as to how a commander is to determine what mix of assets to employ and at what point the use of a particular resource is not “feasible.” Neither have states disclosed what these criteria might be. When analysing what verification measures an attacker is obligated to take, a commentator may know what intelligence, surveillance and reconnaissance resources a commander has in stock and what military operations a commander may want to carry out in the theatre. A commentator may also be familiar with the capabilities of different intelligence, surveillance and reconnaissance assets and the various tactics that improve the ability of the forces to identify the character of the target. The challenge comes at the point when one has to determine whether it is “practicable or practically possible” in light of the different missions that need to be carried out to, for instance, recruit another human source, so as to check the validity of available intelligence. One of the sources of difficulty in applying the rule of target verification is the nature of necessity. As Walzer explains, there is no such thing as a military necessity to adopt a particular measure in armed conflict.20 Instead, there are degrees of risk that a commander will incur if a particular measure is not adopted. 21 When a commander says that military necessity demands something, a commander is really making a determination that a particular risk is unacceptable in that case.22 By this reasoning, it is not “practicable or practically possible” to employ a particular intelligence, surveillance and reconnaissance resource, when using this resource would put competing missions at an unacceptable risk. Since different decisionmakers may disagree at what point it is unacceptable to take a particular risk, it is debatable at what point it is not “feasible” to take a particular verification measure.

 19

Sandoz, Swinarski, and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 681-682 par. 21982199. 20 Walzer, Just and Unjust Wars, 144. 21 Ibid. 22 Ibid.

128

Chapter Four

1.1. How Drafters Envisaged the Rules in Art. 57 API 1977 The states built upon customary international law formulation of the rules of targeting when they adopted API 1977.23 The rules of targeting have since crystallised into customary international law.24 For this reason, the negotiating history of Art. 57 API 1977 is a valuable resource for understanding states’ interpretations of the obligations imposed by the relevant qualifying terms. Article 32 of the Vienna Convention on the Law of Treaties 1969 allows recourse to be made to the preparatory work of the treaty and to circumstances of the conclusion of the treaty, as supplementary means of interpretation to determine the meaning of a treaty term.25 The provision comes into play when the meaning of a term is left ambiguous by states’ declarations regarding its meaning at the time they accede to the treaty and by subsequent state practice.26 Article 32 of the Vienna Convention on the Law of Treaties 1969 had customary international law status in 1977.27 Although the discussions of states during negotiations do not represent consensus, they show how states regarded the terms of the draft provisions on which they subsequently voted. During the 1974-1977 Diplomatic Conference, the International Committee of the Red Cross proposed a draft formulation that imposed a duty on the attacker to take “all reasonable” steps to ensure that objects were “duly identified” as military objectives.28 The representative of the International

 23

Belgium, Statement of Belgium at the CDDH, Summary Record of the FiftyEighth Plenary Meeting: Explanation of Vote, Vol. VII, CDDH/SR.58, 9 June 1977, 290-291. 24 Prosecutor v. Kupreškiü et al., Case No. IT-95-16-T T.Ch.II, Judgment, par. 524 (International Criminal Tribunal for the former Yugoslavia January 14, 2000). 25 Art. 32 Vienna Convention on the Law of Treaties, [1987] 1155 U.N.T.S. 331 (1969). 26 Ibid. 27 Guinea-Bissau v. Senegal (Arbitral Award of 31 July 1989), Judgment, I.C.J. Reports 1992, p. 8, par. 48; Democratic Republic of the Congo v. Rwanda, Jurisdiction and Admissibility, I.C.J. Reports 2006, p. 126, par. 125; Karl Zemanek, “Vienna Convention on the Law of Treaties: Historical Context,” United Nations Audivisual Library of International Law, http://legal.un.org/avl/ha/vclt/vclt.html (accessed September 2, 2013); Alina Kaczorowska, Public International Law (London: Routledge, 2010), 89. 28 International Committee of the Red Cross, Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims

The Practical Application of the Rules of Targeting

129

Committee of the Red Cross, Mr. Mirimanoff-Chilkine, explained that the International Committee of the Red Cross deliberately used flexible wording in its draft treaty proposal for all rules of targeting other than the principle of distinction.29 It was for the states to develop “precise” guidance for how these rules were to be applied on the battlefield.30 Although states substituted the term “reasonable” with the term “feasible” in the course of negotiating the rule of target verification, they did not regard the new formulation as removing vagueness.31 Italy commented that the rules in draft Art. 50, which subsequently became Art. 57 API 1977, were “deficient in clarity” and had “vague wording.”32 Afghanistan thought that draft Art. 50 did not provide unequivocal guidance to commanders on the ground.33 In the end, states envisaged that military manuals and rules of engagement would lay down more detailed direction.34 Unfortunately, military manuals and rules of engagement do not list criteria for commanders to employ to guide their determination as to the “feasibility” of adopting an additional verification measure.

1.2. Criteria Developed by Scholars Three scholars provide various interpretations regarding what the term “to do everything feasible” requires in practice. Oeter argues that commanders should obtain relative rather than absolute certainty that the target is a military objective prior to embarking on the attack.35 They should then

 of International Armed Conflicts, CDDH Official Records, Vol. I, Part III, June 1973, 17. 29 International Committee of the Red Cross, Statement at the CDDH, Committee III Summary Record of the Twenty-First Meeting: Consideration of Draft Protocols I and II, Vol. XIV, CDDHI III/SR. 21, 17 February 1975, p. 182. 30 Ibid. 31 The Rapporteur, Report to Committee III on the Work of the Working Group Submitted by the Rapporteur, Vol. XV, CDDH/III/264/R8v.l, 3 February - 18 April 1975, 353. 32 Italy, Statement at the CDDH, Summary Record of the Forty-Second Plenary Meeting: Adoption of the Articles of Draft Protocol I, Vol. VI, CDDH/SR. 42, 27 May 1977, 231. 33 Afghanistan, Statement at the CDDH, Summary Record of the Forty-Second Plenary Meeting: Adoption of the Articles of Draft Protocol I, Vol. VI, CDDH/SR. 42, 27 May 1977, 219. 34 Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare, “ 36. 35 Oeter, “Methods and Means of Combat,” 3rd ed., 200-201.

130

Chapter Four

“employ all means of reconnaissance and intelligence available to them”36 and should attain “subjective certainty” that the proposed target is a military objective at the point of executing the attack.37 Oeter elaborates that by the standard of “subjective certainty,” he means that the commander should not have “any serious doubts” as to the nature of the target.38 He envisages the individual executing the attack taking further verification measures in order to comply with the principle of distinction.39 The value of Oeter’s test40 is that by using degrees of certainty that a target is military in nature, it benchmarks the resources commanders should employ in order to comply with the rule of target verification. Unless gathering information from particular sources or employing a particular mix of intelligence, surveillance and reconnaissance assets results in “subjective certainty” that the target is a military objective, the commander may not be said to have complied with the rule of target verification.41 The limitation of Oeter’s explanation42 is that it is based on an assumption that the person executing an attack is able to gather additional information. Pilots, for example, are able to identify from the air the nature of the target if the military objective has a distinct appearance, such as a shipyard or an oil refinery. However, a pilot tasked with bombing a military objective such as a building with a generic appearance will find it difficult to determine whether that building is in fact a military objective. For instance, a NATO pilot, acting on incorrect intelligence during Operation Allied Force 1999, mistakenly bombed a Chinese embassy, whereas the intended target was a directorate of military supply procurement.43 Oeter44 is silent on whether or not the rule of target verification imposes an obligation on the commander to gather more intelligence prior to dispatching the pilot in such situations, but the principle of distinction would make the attack unlawful.

 36

Ibid. Ibid. 38 Ibid. 39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid. 43 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 8081. 44 Oeter, “Methods and Means of Combat,” 3rd ed., 200-201. 37

The Practical Application of the Rules of Targeting

131

Hampson employs the following analysis for assessing whether the commander is entitled to rely on information already gathered, and to conclude that it is not “feasible” to take additional verification measures.45 The commander must reflect upon: (1) the nature and source of the intelligence, (2) how recently the intelligence was obtained, (3) whether there was conflicting intelligence, and (4) whether intelligence should also have been gathered from other sources.46 The first three criteria47 address the accuracy and reliability of intelligence. For instance, drone footage shows the battlefield in real time and accurately relays the location of persons and objects. Meanwhile, human intelligence may be reliable or unreliable, depending on the source. It is also possible that a human source is reliable, but that a time lapse between the transmission of information and acting on that information renders the intelligence obsolete or inaccurate. Since the three criteria are concerned with the quality of intelligence, they bear on the commander’s degree of certainty that the proposed target is a military objective. They may therefore be described as facilitating the commander’s ability to establish whether the proposed attack complies with the principle of distinction. The fourth criterion addresses the obligation to comply with the principle of distinction. Conflicting intelligence points to the fact that one of the pieces of information is inaccurate, and that it is necessary to gather additional information. This criterion additionally touches on the intelligence, surveillance and reconnaissance resources the attacker should have used in order to comply with the rule of target verification. This is because when the attacker does not use all resources that are “reasonably available,” the rule of target verification is breached.48 Since the rule of target verification is designed to enable commanders and those who execute the attack to comply with the principle of distinction,49 it is unsurprising that Hampson applied criteria that facilitate compliance with both rules in conjunction.

 45

Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. Ibid., 85. 47 Ibid. 48 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4 par. 25-27; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 49 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 29. 46

132

Chapter Four

The advantage of Hampson’s criteria50 is that they provide a framework for evaluating whether it was lawful for a commander to proceed with an attack. However, she did not aim to describe how commanders evaluate whether a particular intelligence, surveillance, or reconnaissance resource is “reasonably available”51 for use in the circumstances. Neither was it her intention to explain what degree of certainty the principle of distinction requires. It is possible to use Oeter’s test52 to put flesh on the criteria provided by Hampson.53 Oeter’s test54 clarifies that whether Hampson’s fourth criterion55 is satisfied can be determined based on her first three criteria. He would say that a commander may stop gathering additional information if (1) the nature and source of the intelligence, (2) the point in time when the intelligence was collected and (3) the absence of conflicting intelligence56 together indicate that there are “no serious doubts”57 that the target is a military objective. This hybrid approach tells us when a commander can conclude that there is no obligation to gather intelligence from other sources. The limitation of jointly using Oeter’s test58 and Hampson’s criteria59 is that Hampson’s analytical framework does not fill the gaps left by Oeter’s test.60 It is still unknown how commanders balance the factors of available time, information, and resources61 when they face a conflict between proceeding with the mission and reducing the error of a civilian object being mistakenly targeted. For instance, what if an attacker wants to act on limited intelligence to engage targets of opportunity, but doing so increases the likelihood of error?

 50

Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4 par. 25-27; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 52 Oeter, “Methods and Means of Combat,” 3 rd. ed., 200-201. 53 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. 54 Oeter, “Methods and Means of Combat,” 3 rd. ed., 200-201. 55 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. 56 Ibid. 57 Oeter, “Methods and Means of Combat,” 3 rd. ed., 200-201. 58 Ibid. 59 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. 60 Oeter, “Methods and Means of Combat,” 3 rd. ed., 200-201. 61 Nederland Ministerie van Defensie, Toepassing Humanitair Oorlogsrecht Voorschift No. 27-412/1 (Den Haag: Koninklijke Landmacht, 1993), V-11. 51

The Practical Application of the Rules of Targeting

133

Schmitt62 provides yet another explanation for how commanders judge whether particular information or a particular intelligence, surveillance and reconnaissance resource is “reasonably available” to use in the circumstances.63 Schmitt bases his test on a declaration the United Kingdom made when it ratified API 1977.64 The declaration states that commanders should gather “information from all sources which is reasonably available,” rather than all “available information.”65 He concludes from this statement that because commanders operate in a “fastpaced” environment, the law requires that they act “on the information at hand or that which can easily be obtained within the practical time constraints of mission execution.”66 They need not collect information that can only be obtained through “great effort.”67 Unfortunately, Schmitt does not give a detailed explanation regarding when a commander may conclude that gathering additional intelligence constitutes “great effort.”68 Neither does he list criteria for making this assessment. Arguably, whether gathering information from a particular source constitutes “great effort,” or whether it can be obtained “within the practical constraints of mission execution” is a value judgment. Different commanders could make varying assessments in the same situation. On the application of Oeter’s test,69 when commanders have taken steps to ascertain the nature of the target and have “no serious doubt” that the target is a military objective they may conclude that gathering additional information constitutes “great effort.”

 62

Michael N. Schmitt, “The Law of Targeting,” in Perspectives on the ICRC Study on Customary International Humanitarian Law, ed. Susan Breau and Elizabeth Wilmshurst (Cambridge: Cambridge University Press, 2007), 163. 63 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4 par. 25-27; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 64 Schmitt, “The Law of Targeting,” 163. 65 Ibid.; United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. C; New Zealand, Declarations Made Upon Ratification of AP I 1977, 8 February 1988, par. 2. 66 Schmitt, “The Law of Targeting,” 163. 67 Ibid. 68 Ibid. 69 Oeter, “Methods and Means of Combat,” 3 rd. ed., 200-201.

134

Chapter Four

1.3. Testing the Value of the Criteria proposed by Scholars Since the tests proposed by commentators for conceptualising the term “feasible” are abstract in nature, it is necessary to discuss them in the context of particular military scenarios in order to demonstrate their advantages and drawbacks. The Ameriyya incident70 and the decapitation strikes71 are well suited to illustrating these aspects. Chapter 2 discusses factual information related to the case studies, in greater detail. A. The Ameriyya Air Raid Shelter Incident In Operation Desert Storm 1991 the United States of America attacked a building that had an “air raid shelter” sign displayed on it,72 but that the reconnaissance personnel believed to have been converted into a command and control centre.73 The building was camouflaged and had barbed wire around its perimeter.74 The satellite pictures showed the presence of military personnel near the building.75 The American personnel also intercepted military communications from the building.76 Unbeknownst to the attacker, the families of the Iraqi military personnel took shelter in the building at night time.77 Had the United States of America conducted reconnaissance in the morning, it would have detected their presence.78 According to its spokespersons, the commander used aerial reconnaissance

 70

Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 128. 71 Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 22. 72 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 129. 73 Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991. 74 Ibid. 75 Ibid. 76 Ibid. 77 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 615. 78 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 140.

The Practical Application of the Rules of Targeting

135

only during daylight79 because he had a limited number of aircraft and other crucial missions.80 On the application of Oeter’s test,81 the United States of America complied with the rule of target verification in bombing the bunker. In the circumstances, a commander is unlikely to have had “any serious doubts”82 that the building was a command and control bunker. The fact that the building was camouflaged, had barbed wire around its perimeter,83 had military personnel present in its vicinity and was used to transmit military communications84 all indicated that the building was a military objective. The application of Hampson’s criteria85 also gives an answer regarding whether the American commander complied with the rule of target verification. On this approach, it matters that the commander gathered intelligence from different sources. Specifically, a commander relied on satellite images, interception of communications from the building and aerial reconnaissance.86 It is, moreover, significant that the individual intelligence sources corroborated each other. The satellite images showed that the building was camouflaged and had barbed wire around it.87 Meanwhile, the interception of military communications88 corroborated the information yielded by satellite imagery that the building was a military objective. Of course, the fact that the building continued to

 79

Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991; United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 615. 80 Lewis, “The Law of Aerial Bombardment in the 1991 Gulf War,” 504. 81 Oeter, “Methods and Means of Combat,” 3 rd. ed., 200-201. 82 Ibid. 83 U.S. Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 615. 84 Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991. 85 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. 86 Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991. 87 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 615. 88 Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991.

136

Chapter Four

display an air raid shelter sign89 meant that there was an inconsistency in the visual presentation of the building. This inconsistency raises the question of whether the commander should also have gathered intelligence from other sources, as required by Hampson’s fourth criterion.90 When tribunals assess whether commanders correctly applied a rule to a battlefield scenario, they focus on how a “reasonable” commander would have deliberated.91 The question, then, is whether a “reasonable” commander92 would have foreseen that the building had been simultaneously used as command and control hub and as an air raid shelter.93 When justifying its conduct, the United States of America pointed out94 that customary international law prohibits parties to the conflict from using the presence of civilians to shield military objectives from attack.95 What is more, the defender is obligated to take “feasible” steps to remove civilians from the vicinity of military objectives.96 Clearly, if Iraq were known to observe international humanitarian law, then the commander would have had no reason to make further enquiries about the possible presence of civilians. A state which

 89

Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 129. 90 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. 91 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 50. Note that in the Galiü case the International Criminal Tribunal for the former Yugoslavia held that the relevant question is how a reasonable person in the position of the commander would have assessed the situation. Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment, par. 58 (International Criminal Tribunal for the former Yugoslavia December 5, 2003). 92 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 50. 93 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 140; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 94 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 616-617. 95 Art. 51(7) API 1977; Prosecutor v. Karadžiü and Mladiü, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, IT-95-5R61 T.Ch.I, Judgment, par. 2364 (International Criminal Tribunal for the former Yugoslavia July 11, 1996). 96 Prosecutor v. Kupreškiü et al., Case No. IT-95-16-T T.Ch.II, Judgment, par. 525 (International Criminal Tribunal for the former Yugoslavia January 14, 2000).

The Practical Application of the Rules of Targeting

137

fulfilled its obligation not to use the presence of civilians to shield military objectives from attack would not allow civilians to take shelter in a building that was used for transmitting military communications. However, there is evidence that Iraq repeatedly violated its international humanitarian law obligations during Operation Desert Storm 1991.97 The Iraqi government did not evacuate civilians who were close to military objectives, and thereby placed them in danger.98 Furthermore, Iraq placed military supplies in mosques, schools, and hospitals in Iraq and Kuwait.99 The commander was consequently put on notice of Iraq’s noncompliance with the law. Notwithstanding this fact, it is unlikely that a “reasonable” commander100 would have checked in the circumstances whether civilians continued to use the building as a shelter. The location of command and control hubs is ordinarily kept secret because they are indispensable for coordinating military operations. This fact suggests that on the application of Hampson’s fourth criterion,101 a “reasonable” commander102 would have concluded that all information pointed to the building being a military objective, and that there was no indication for conducting additional reconnaissance. On this approach, the commander was entitled to attack the building. How much guidance does Schmitt’s criterion103 give regarding whether the commander in this scenario complied with the rule of target verification? In particular, in light of the information that the commander had gathered, did conducting reconnaissance in the morning constitute “great effort”?104 There is evidence that the United States of America faced a genuine dilemma whether to conduct surveillance of the building in the morning.105 It lacked sufficient numbers of aircraft for checking whether its pilots had

 97 U.S. Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 613. 98 Ibid., 614. 99 Ibid., 613. 100 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 50. 101 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. 102 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 50. 103 Schmitt, “The Law of Targeting,” 163. 104 Ibid.; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 140. 105 Keaney and Cohen, Gulf War Air Power Survey: Planning and Command and Control, 255-258.

138

Chapter Four

successfully struck their targets.106 The commanders, therefore, had to decide whether to carry out bomb damage assessment, or to gather more intelligence about proposed targets.107 Since it could be concluded based on the information a commander had gathered that the building was a military objective, it was reasonable for a commander to dispatch the aircraft to establish whether some of the targets had to be re-struck. The commander was entitled to conclude that conducting aerial reconnaissance in the morning constituted “great effort.” The Ameriyya incident108 illustrates that Oeter’s,109 Hampson’s110 and Schmitt’s111 criteria in combination can provide unambiguous answers when applied to a military scenario. B. Decapitation Strikes Human Rights Watch estimates that the United States of America carried out fifty air strikes targeting Iraqi leaders during Operation Iraqi Freedom 2003, none of which was successful.112 In order to locate Iraqi leaders, commanders used intercepts of satellite telephones that provided data that was accurate within a one-hundred-metre radius.113 Although in some cases commanders were able to intercept the actual conversation,114 they did not in all instances know the identity of the individuals involved in the conversation.115 Commanders also relied on information provided by informants.116

 106

Ibid. Lewis, “The Law of Aerial Bombardment in the 1991 Gulf War,” 504. 108 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 128. 109 Oeter, “Methods and Means of Combat,” 3 rd. ed., 200-201. 110 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. 111 Schmitt, “The Law of Targeting,” 163. 112 Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 22. 113 Ibid., 24-25; Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: An International Humanitarian Law Assessment,” 86. 114 Stanley A. McChrystal and A.S.D. P.A. Victoria Clarke, “Department of Defense News Briefing,” news release, April 8, 2003, http://www.iwar.org.uk/news-archive/2003/04-08-4.htm (accessed September 10, 2010). 115 Ibid. 116 John Donnelly, “War in Iraq/Targeting the Leadership; After Airstrike, U.S. Seeks Clues on Fate of Hussein and Sons,” Boston Globe, April 9, 2003, A21, Bradley Graham, “U.S. Moved Early for Air Supremacy,” Washington Post, July 107

The Practical Application of the Rules of Targeting

139

Since there is no information available about the facts on the basis of which commanders made a decision to execute any particular strike, it is difficult to apply Oeter’s test.117 It is impossible to say whether the commander had “any serious doubts”118 regarding whether the intended target was at the designated location when he or she dispatched the aircraft to execute the mission. In order to establish what degree of certainty the commander had that the leader in question was at a particular location, one would need to know either what the content of the intercepted conversation was, or what information informants provided. Similarly, there are no facts to which Hampson’s analytical framework119 could be applied in order to determine whether the commander acted lawfully. Since Hampson’s test focuses on the perceived accuracy and reliability of intelligence, its application requires that one knows the intelligence on the basis of which a commander made a decision. In applying his approach that commanders need to obtain intelligence “within the practical time constraints of mission execution,” Schmitt was commenting on the legality of undertaking air strikes against Iraqi leaders.120 He concluded that the decapitation strikes were lawful, both when taken individually and when assessed cumulatively.121 Schmitt argues that although the United States of America did not know the names of the persons it targeted, it “had reason to believe based on the intelligence [obtained from listening to cell telephone conversations of the targeted individuals] that the persons were ‘high-value targets.’”122

He points out that the intelligence was reliable for accuracy because commanders relied on multiple intelligence sources, including

 20, 2003, A26, quoted in Human Rights Watch, Off Target: The Conduct of War and Civilian Casualties in Iraq, 24-26. 117 Oeter, “Methods and Means of Combat,” 3 rd. ed., 200-201. 118 Ibid. 119 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 85. 120 Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: International Humanitarian Law Assessment,” 88; Schmitt, “The Law Targeting,” 163. 121 Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: International Humanitarian Law Assessment,” 88; Schmitt, “The Law Targeting,” 163. 122 Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: International Humanitarian Law Assessment,” 86.

the

An of An of An

140

Chapter Four

informants.123 They combined this information with satellite imagery of the area in which the telephone was located, in order to locate the caller.124 Another relevant factor is that there were no “reasonably available” alternatives for locating the leaders that a reasonable commander could have used.125 Neither could the United States of America engage alternative targets that conferred an equivalent degree of military advantage.126 It could not pre-plan the strikes on the leaders and so had to target them on short notice when an opportunity to do so arose.127 Neither did commanders have alternative intelligence-gathering assets available.128 Schmitt’s analysis is arguably unconvincing, because he does not address Hampson’s four criteria for evaluating compliance with the rule of target verification. Specifically, he does not discuss whom the United States of America recruited as informants, how recently the commanders collected the information prior to executing the attack, whether there was conflicting intelligence, and whether it was possible to recruit more informants. Since this information is unavailable, it is difficult to assess what information was “reasonably available”129 to the commander and what alternative options the commander could have “reasonably” employed. In particular, Schmitt does not mention whether recruiting more informants or deploying the special forces by air to the relevant location on short notice constituted “great effort” 130 in the circumstances. Neither does he explain whether the commander could have, for instance, monitored the leaders for a longer period of time, or dispatched a drone to monitor the activity in the area. He asserts without further explanations that there were no other tactical alternatives.131 Even if more facts were known about the individual decapitation strikes, it would have nevertheless been difficult to pinpoint what resources and

 123

Ibid., 88. Ibid. 125 Ibid., 91-92. 126 Ibid. 127 Ibid. 128 Ibid. 129 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4, par. 25-27; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 130 Schmitt, “The Law of Targeting,” 163. 131 Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: An International Humanitarian Law Assessment,” 91-92. 124

The Practical Application of the Rules of Targeting

141

information were “reasonably available” to the commander.132 For instance, it is unclear by what criteria one would establish whether delaying an attack by, for example, one week in order to recruit more informants is a “reasonably available”133 option. Whether gathering information from a particular source constitutes “great effort” or whether it can be obtained “within the practical constraints of mission execution”134 constitutes a value judgment. Scholars such as Bartolini135 provide an analysis of the decapitation strikes that is very different from Schmitt’s.136 Bartolini argues that although the United States of America declared that it accepts the principle of target verification as it is worded in API 1977, its state practice of decapitation strikes deviates from this formulation of the rule to such an extent as to make the “concepts” and “reasoning of the rules” “almost inoperative.”137 The United States of America proceeded with launching strikes on leaders, even though it lacked “adequate” and “reliable” information regarding the presence of the leaders in the buildings that were being targeted.138 He concludes that the fact that none of the decapitation strikes was successful reveals that the way in which the United States of America collected and analysed information was insufficient to prevent identification mistakes in specific incidents.139 Bartolini’s analysis is problematic because he evaluates the lawfulness of each decapitation strike by reference to facts that emerged after the attacks. The lawfulness of the conduct should not be judged with

 132

Schmitt, “The Law of Targeting,” 163; Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4 par. 25-27; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 133 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4 par. 25-27; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 134 Schmitt, “The Law of Targeting,” 163. 135 Bartolini, “Air Operations Against Iraq (1991 and 2003),” 254. 136 Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: An International Humanitarian Law Assessment,” 91-92. 137 Bartolini, “Air Operations Against Iraq (1991 and 2003),” 233. 138 Ibid., 256. 139 Ibid., 254-256.

142

Chapter Four

hindsight, meaning “on the basis of information which has subsequently come to light.”140 Because the conduct of a commander should not be judged with hindsight, it is not possible to use the fact that none of the strikes killed the targeted leader to evaluate the lawfulness of each strike. Until more information becomes available on the basis of which the commander authorised each decapitation strike, it is not possible to establish whether a particular strike was lawful. There could be many explanations for why a particular decapitation strike did not kill the targeted leader. The leaders could have known that their telephones were being tracked and intercepted. For example, they could have used code words to designate their locations, so that they would meet five houses down the road from the building specified in the telephone conversation. There is information that Iraqi leaders may have used code words.141 More generally, it is not unusual for parties to the conflict to use code words for communication between group members.142 It is also possible that they misinformed some of their aides in order to check their loyalty. Of course, weight should be given to Bartolini’s argument that the United States of America, following a series of unsuccessful strikes, should have been put on notice that its intelligence sources were unreliable, and should have halted the decapitation operations.143 However, the question concerning at what point the attacker should have realised, based on unsuccessful strikes, that the intelligence was of insufficient quality and that it was, therefore, unlawful to launch further strikes is an entirely different issue. It touches on what degree of certainty the principle of distinction requires of attackers for an attack to be lawfully pursued. The case study of decapitation strikes demonstrates that the tests scholars have developed for re-conceptualising the term “feasible” give guidance on how the rule of targeting applies to a military scenario when sufficient facts are available about available intelligence, resources and options. In such cases, they may be employed to assess whether a “reasonable”

 140

Canada, Reservations and Statements of Understanding Made Upon Ratification of API 1977, par. 7. 141 Farah Stockman, “Hussein Gave Orders by Code, Official Says,” Boston Globe, December 17, 2003. 142 United States Congress, Senate, Select Committee on Intelligence, Report of Whether Public Statements Regarding Iraq by U.S. Government Officials were Substantiated by Intelligence Information, 110th Cong., 2nd sess., 2008, S. Rep 110, 64. 143 Bartolini, “Air Operations Against Iraq (1991 and 2003),” 256.

The Practical Application of the Rules of Targeting

143

commander144 could have formed an opinion that the rule of target verification did impose an obligation to take further verification measures. Unfortunately, a gap remains. Scholars do not explain what relative weight commanders place on the considerations of lack of available time for undertaking additional intelligence, surveillance and reconnaissance, the difficulty of obtaining information from a particular source, resource constraints145 and the possibility of mistakenly identifying a civilian object as a military objective.

2. The Principle of the Least Feasible Damage The principle of the least feasible damage requires those who plan or decide upon an attack to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects.”146

The International Committee of the Red Cross Handbook on the Law of War147 and Kenya’s Law of Armed Conflict Manual148 state that the term “feasible” is used in the same way in the principle of the least feasible damage as in the rule of target verification, and imposes identical obligations.149 The declarations states made when they ratified API 1977 similarly indicate that states intended to attach an identical meaning to the

 144

“Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 50. 145 Nederland Ministerie van Defensie, Toepassing Humanitair Oorlogsrecht Voorschift No. 27-412/1, V-11. 146 Art. 57(2)(a)(ii) API 1977. 147 Frédéric de Mulinen, Handbook on the Law of War for Armed Forces (Geneva: International Committee of the Red Cross, 1987), par. 428, 434, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:374. 148 Kenya, The School of Military Police, Law of Armed Conflict Manual Military Basic Course (Kenya: 1997), Précis No. 4 p.8, quoted in Henckaerts and DoswaldBeck, Customary International Humanitarian Law, 2:377. 149 Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, par. 428, 434, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:374; Kenya, The School of Military Police, Law of Armed Conflict Manual Military Basic Course, Précis No. 4 p.8, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:377.

144

Chapter Four

term “feasible” for the two rules.150 The United States Commander’s Handbook on the Law of Naval Operations postulates that in determining whether it is “practicable” or “practically possible” to adopt a particular means or method of warfare, commanders should assess whether alternative options are “reasonably available.”151 The discussion of the rule of target verification showed that it is debatable whether the term “feasible” requires a commander to gather additional information, or to employ an additional intelligence, surveillance, or reconnaissance resource in a particular situation. States have similarly not disclosed what criteria commanders employ in assessing whether it is “feasible” to use an alternative means or method of warfare that would reduce harm to civilians. States merely explained that whether a particular means or method of warfare is “reasonably available” depends on (1) the stocks of available weapons and materiel, (2) likely future demands, (3) the risk to which the force is exposed, (4) the urgency of responding to the enemy’s actions and (5) enemy tactics.152 Additionally, commanders bear in mind their task of winning the military operation.153 Schmitt provides an explanation regarding how commanders apply the principle of the least feasible damage to particular scenarios. Schmitt explains that an alternative means or method of warfare is a “reasonably available” option when it is “practical in the circumstances at hand” to employ such an alternative option.154 In his other writings, he indicates

 150

Algeria, Interpretative Declarations Made Upon Accession to AP I 1977, 16 August 1989, par. 1, Belgium, Interpretative Declarations Made Upon Ratification of AP I 1977, 20 May 1986, par. 3, Canada, Reservations and Statements of Understanding Made Upon Ratification of AP I 1977, 20 November 1990, par. 5, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:357. 151 United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 152 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 21, 28; Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 49 par. 135; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 153 Ibid. 154 Michael N. Schmitt, “Targeting and International Humanitarian Law in Afghanistan,” in The War in Afghanistan: A Legal Analysis, ed. Michael N. Schmitt, vol. 85 (Newport: Naval War College, 2009), 325.

The Practical Application of the Rules of Targeting

145

that an alternative option is “reasonably available” if a reasonable commander would have used an alternative means or method of warfare in the circumstances.155 In analysing whether it was “feasible” for the troops who had been ambushed to adopt alternative means or methods of warfare, Schmitt poses the following questions: “For instance, were additional troops on hand that could have been deployed to minimise civilian harm? Or were low-collateral-damage bombs readily available, either at bases from which aircraft launched or aboard the attacking aircraft…?”156

Unfortunately, Schmitt157 does not give sufficiently clear guidance on how commanders should reach decisions in applying the principle of the least feasible damage. It is unclear from his descriptors how commanders balance humanitarian and military considerations in determining whether alternative means or methods of warfare are “reasonably available.”158 For instance, what degree of danger to the force justifies calling in close air support instead of delaying an attack in order to deploy soldiers from a nearby military base? How does one determine at what point the military base is so far from the location of the military operation that the option of calling in infantry reinforcement can no longer be said to be “on hand”?159 Schmitt acknowledges that his test cannot be given an objective definition, and that it does not specify at what point it is “feasible” to adopt a particular means or method of warfare.160 He further believes that the test “is inherently contextual and subjective because it requires the most discriminating option available to the actor, all other things being equal.”161 The present author did not find explanations giving more guidance than that proposed by Schmitt.162

 155

Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: An International Humanitarian Law Assessment,” 92. 156 Schmitt, “Targeting and International Humanitarian Law in Afghanistan,” 325. 157 Ibid. 158 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 49 par. 135; “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 21, 28; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.1.2.1. 159 Schmitt, “Targeting and International Humanitarian Law in Afghanistan,” 325. 160 Schmitt, “The Principle of Discrimination in 21st Century Warfare,” 173. 161 Ibid. 162 Ibid.

146

Chapter Four

3. The Principle of Proportionality The negotiating history of API 1977 provides little guidance on how commanders are to apply the principle of proportionality to military scenarios. When voting on the relevant provision, Austria said that the wording of the principle of proportionality “was not as clear as it should be” and gave inadequate guidance for how the rule is to be applied.163 Iran similarly said that the principle of proportionality had an element of uncertainty to it and required commanders to exercise subjective judgment.164 Captain Jason D. Wright, a Judge Advocate General in the United States Army, put forward a test for how the principle of proportionality can be applied to battlefield scenarios.165 Captain Wright sets out a spectrum of harm using the three values of “marginal,” “moderate” and “substantial” harm, such that substantial is placed at the end of the harm scale.166 He uses the same values for indicating a spectrum of degrees of military advantage offered by the attack.167 Whether an attack should be judged as being proportionate from the perspective of a “reasonable” commander depends on the relationship between variables assigned to the elements of military advantage and humanitarian loss.168 If the anticipated military advantage and the expected humanitarian loss are both marginal, then the attack is proportionate.169 The attack is unlawful if the anticipated military advantage is marginal and the expected humanitarian loss is moderate, or indeed substantial.170 When anticipated military advantage is moderate and expected humanitarian loss is substantial, the attack will be disproportionate.171 Although it is debatable whether an attack is lawful when the anticipated military advantage and the expected humanitarian loss are both substantial, Wright

 163

Austria, Statement of Austria at the CDDH, Adoption of the Articles of Draft Protocol I, Explanations of Vote on Article 50, Vol. VI, CDDH/SR.42, 27 May 1977, 212. 164 Iran, Statement of Iran at the CDDH, Adoption of the Articles of Draft Protocol I, Explanations of Vote on Article 50, Vol. VI, CDDH/SR.42, 27 May 1977, 213. 165 Jason D. Wright, “‘Excessive’ Ambiguity: Analysing and Refining the Proportionality Standard,” International Review of the Red Cross 94, no. 886 (2012): 847-848. 166 Ibid., 847. 167 Ibid. 168 Ibid., 851-852. 169 Ibid., 852. 170 Ibid. 171 Ibid.

The Practical Application of the Rules of Targeting

147

argues that the principles of humanity and the dictates of the public conscience require that the ambiguity be interpreted in favour of greater protection of the civilian population.172 Thus, he suggests that such attacks are disproportionate.173 Captain Wright’s test174 is valuable because it sets out the relationship between military advantage and humanitarian loss, which can help determine whether an attack is disproportionate. Since there is no consensus between states as to what value to attach to the life of a civilian, to the life of a soldier, or to military advantage,175 Captain Wright’s test does not give comprehensive guidance regarding how to apply the rule to a battlefield scenario. In particular, it is unclear how to establish the thresholds of marginal, moderate and substantial harm to civilians and civilian objects. Neither is it known what criteria states apply to determine what degree of military advantage the destruction of a military objective offers. Although states will assign slightly different values to the issue of how many civilian lives constitute marginal, moderate and substantial loss, Captain Wright’s test176 still has value. One state may deem the death of three civilians to be marginal humanitarian loss, while another may set the threshold at five deaths. What is crucial is that international humanitarian law requires that equal weight be given to considerations of military advantage, injury to civilians and damage to civilian objects.177 This means that if marginal loss is set to equal five civilians, the same rationale should be applied to determine what type of military advantage

 172

Ibid., 849, 852. Ibid., 849. 174 Ibid., 847-848. 175 Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 108109; Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 138. 176 Wright, “‘Excessive’ Ambiguity: Analysing and Refining the Proportionality Standard,” 847-848. 177 Belgium, Interpretative Declarations Made Upon Ratification of AP I 1977, 20 May 1986, par. 3. See also Canada, Reservations and Statements of Understanding Made Upon Ratification of AP I 1977, 20 November 1990, par. 5, Germany, Declarations Made Upon Ratification of AP I 1977, 14 February 1991, par. 2, France, Reservations and Declarations Made Upon Ratification of AP I 1977, 11 April 2001, par. 3, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:357; Quéguiner, “Precautions under the Law Governing the Conduct of Hostilities,” 810 n. 57. 173

148

Chapter Four

corresponds to the threshold of marginal military advantage. If international tribunals were to apply Wright’s test, they would likely use their judgment to assign middle values that they believe represent the average of those values assigned by states to the variables of military advantage and humanitarian loss.178 While states have not articulated what yardstick they use to apply the principle of proportionality, in the past judges presiding over tribunals applied their judgement in concluding whether particular conduct violated the principle of proportionality.179 Filling the gaps in Captain Wright’s test is a challenge. Even if the state practice on the destruction of a particular type of military objective, such as a bridge, were to be studied, this test will not shed light on what degree of military advantage the destruction of a bridge offers. The destruction of a bridge confers different degrees of military advantage on the attacker depending on the circumstances.180 When states launch attacks, they do not disclose whether the attack was close to failing to meet the proportionality requirement, or to what extent, if at all, the military advantage exceeded humanitarian loss. Consequently, a survey of state practice cannot be used to hypothesise what criteria commanders employ to put value on military gains.

4. The Duty to Issue an Advance Warning of the Attack The warnings requirement requires commanders to issue an effective advance warning of the attack, “unless circumstances do not permit” them to do so.181 States interpret this rule as obligating commanders to issue advance warnings of the attack, unless doing so would “seriously compromise” the chances of prevailing over the enemy or the survivability

 178

Wright, “‘Excessive’ Ambiguity: Analysing and Refining the Proportionality Standard,” 847-848. 179 Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment, par. 387 (International Criminal Tribunal for the former Yugoslavia December 5, 2003); U.N. Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the Implementation of Human Rights Council Resolutions S-9/1 and S-12/1: Addendum Doc. A/HRC/28/80/Add.1. (Geneva: United Nations, March 5, 2013), 10 par. 33; U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2/1, 38-39 par. 147. 180 Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 138. 181 Art. 57(2)(c) API 1977.

The Practical Application of the Rules of Targeting

149

of the force.182 It is far from clear at what point circumstances do not permit a warning to be given. States have not made guidance available regarding how commanders balance force security, enemy tactics, the capability of own troops and the urgency of acting without giving a prior warning, in determining whether issuing an advance warning would “seriously compromise” the chances of winning or the survivability of the force.183 In practice, the nature of necessity makes it difficult to define when circumstances do not permit a warning to be issued. As already discussed, when commanders talk of a particular measure being necessary, they are really talking about a degree of risk that they are unprepared to accept.184 In practice, a range of tactical alternatives is usually available.185 The subjective nature of this assessment makes it difficult to say when giving a warning will “seriously compromise”186 a commander’s chances of prevailing over the enemy. While one commander may find prolonging the duration of a military operation by one hour acceptable, another commander may assess that the level of training of his or her troops makes it objectionable to prolong the battle by longer than twenty minutes. In turn, this second commander is likely not to issue an advance warning of the attack if he or she estimates that doing so will prolong the battle by a period of time longer than twenty minutes. Additionally, it may well be

 182

United States Department of the Air Force, International Law-The Conduct of Armed Conflict and Air Operations, Air Force Pamphlet 110-31, par. 5-3(c )(2)(d); Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551, quoted in International Committee of the Red Cross, “Practice Relating to Rule 20: Advance Warning,” International Committee of the Red Cross, http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule20 (accessed January 17, 2009). 183 Ibid.; Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 49 par. 135; “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 21, 28; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations NWP1-14M/MCWP 5-2.1/COMDTPUB P5800.7, par. 8.1.2.1, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:365; Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551. 184 Walzer, Just and Unjust Wars, 144. 185 Ibid. 186 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551.

150

Chapter Four

that different commanders are willing to accept different numbers of their own casualties. Of course, since by adopting various tactics commanders can preserve a degree of surprise despite having issued an advance warning of the attack, there are limitations to what degree commanders can maintain that circumstances do not permit them to warn civilians about a forthcoming military operation. To illustrate, commanders could retain a degree of surprise by moving rapidly, in order to keep the enemy “off balance.”187 They could use novel tactics that the enemy does not anticipate,188 could move covertly from a direction the adversary does not foresee and could use deception.189 A commander could gain an advantage over the enemy by allocating ample intelligence, surveillance and reconnaissance assets to gather information about the location and plans of the enemy.190 Additionally, a well-trained force that is commanded by skilled staff, has high morale, and has good discipline is in a better position to win the military operation than troops lacking these qualities.191 The troops also benefit from having good weapons and equipment.192 These elements make a very important contribution to the capability of the force.193 Some wars, such as the American Civil War, have been won with inferior soldier numbers due to the presence of resourceful commanders.194 Whenever the troops are well trained, have high morale, have good discipline, are well equipped and are led by a leader who has the skill to devise effective tactics, commanders will be able to issue an effective advance warning of the attack on more occasions than commanders whose troops lack these attributes. Unfortunately, it is difficult to quantify “with any degree of confidence” how each of these characteristics of the force bears on the ability of the force to overcome the enemy.195 Commanders use judgment to make a rough prediction of the extent to which they may

 187

Joint Chiefs of Staff, Joint Publication 1: Joint Warfare of the Armed Forces of the United States (Washington, DC: United States Government Printing Office, 2000), V-2. 188 Vego, Joint Operational Warfare: Theory and Practice, V–51. 189 Ibid., VII–58. 190 Evans, War: a Matter of Principles, 60. 191 Vego, Joint Operational Warfare: Theory and Practice, III-33, III-34. 192 Ibid. 193 Ibid. 194 Ibid., III–36. 195 Ibid., III–33.

The Practical Application of the Rules of Targeting

151

rely on the characteristics of their troops to compensate for issuing an advance warning of the attack.

4.1. The Drafting of the Rule in Art. 57 API 1977 A useful starting point for better understanding the warnings requirement is its negotiating history. The International Committee of the Red Cross put forward a draft proposal during the negotiations of API 1977 that commanders should give an advance warning of the attack “whenever circumstances permit.”196 Romania wanted the obligations to be strengthened, and proposed that the duty should be absolute.197 A group of seven Middle Eastern countries, on the other hand, suggested that the phrase “whenever circumstances permit” should be retained.198 However, in order to widen the protection of civilians, they proposed an insertion of the phrase that civilians should be given a “reasonable time limit” in which to heed the warning.199 On the other hand, the German Democratic Republic thought that the rule should be formulated to require commanders to “do everything in their power” to endeavour to warn civilians of the upcoming attack.200 The German Democratic Republic preferred the formulation to reflect more closely the wording that states used for this rule in Art. 26 Hague Regulations Concerning the Laws and Customs of War on Land IV 1907.201 This Article requires a commander to do “all in his [or her] power” to issue an advance warning of the attack

 196

International Committee of the Red Cross, Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, CDDH Official Records, Vol. I, Part III, June 1973, 15. 197 Romania, Statement of Romania at the CDDH, Official Records, Vol. III, Part II, CDDH/III/1O, 12 March 1974, 227. 198 Arab Republic of Egypt, Jordan, Kuwait, Arab Libyan Republic, Mauritania, Qatar, Sudan, United Arab Emirates, Statements of Arab Republic of Egypt, Jordan, Kuwait, Arab Libyan Republic, Mauritania, Qatar, Sudan, United Arab Emirates at the CDDH, Official Records, Vol. III, Part II, CDDH/II.I/205, 17 February 1975, 265. 199 Ibid. 200 The German Democratic Republic, Statement of the German Democratic Republic at the CDDH, Official Records, Vol. III, Part II, CDDH/III/83, 11 September 1974, 265; The German Democratic Republic, Statement of the German Democratic Republic at the CDDH, Committee III Summary Record of the TwentyFirst Meeting: Consideration of Draft Protocols I and II, 2nd Session, Vol. XIV, CDDHI III/SR. 21, 3 February-18 April 1975, 185. 201 Ibid.

152

Chapter Four

“except in cases of assault.”202 Ultimately, more states voted in favour of inserting the term “unless circumstances do not permit” than for the term “whenever circumstances permit.”203 A likely reason that the majority of states preferred to insert the term “unless circumstances do not permit” into the warnings requirement, instead of following the approach of the German Democratic Republic, is that this term is better suited to reconciling the divergent formulations of the rule in Art. 26 Hague Regulations Concerning the Laws and Customs of War on Land IV 1907 and Art. 6 Hague Convention Concerning Bombardment by Naval Forces in Time of War IX 1907.204 According to the Commentary to API 1977 “New Rules,” the expression “unless circumstances do not permit” reconciles the language of these two treaties.205 The original definition proposed by the International Committee of the Red Cross is not well suited to reconciling the language in these two treaties, which date back to 1907. In particular, the term proposed by the International Committee of the Red Cross, “whenever circumstances permit,”206 resembles the phraseology “if the military situation permits”207 in the Hague Convention Concerning Bombardment by Naval Forces in Time of War IX 1907. The term “whenever circumstances permit”208 is less congenial with the phraseology “except in

 202

Art. 26 The Hague Convention No. IV of 18 October 1907, Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land; Art. 6 The Hague Convention No. IX of 18 October 1907, Concerning Bombardment by Naval Forces in Time of War. 203 Rapporteur, Statement of the Rapporteur at the CDDH, Summary Record of the Thirty-First Meeting: Consideration of Draft Protocols I and II, Vol. XIV, CDDH/III/SR. 31, 14 March 1975, p. 303. 204 Bothe, Solf, and Partsch, New Rules for Victims of Armed Conflict, 368-369 par. 2.9.-2.9.2. 205 Ibid. 206 International Committee of the Red Cross, Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, CDDH Official Records, Vol. I, Part III, June 1973, 15. 207 Art.6 The Hague Convention No. IX of 18 October 1907, Concerning Bombardment by Naval Forces in Time of War. 208 International Committee of the Red Cross, Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, CDDH Official Records, Vol. I, Part III, June 1973, 15.

The Practical Application of the Rules of Targeting

153

cases of assault, do all in his [or her] power,”209 which is used in the Hague Regulations Concerning the Laws and Customs of War on Land IV 1907. Is there a difference between the draft formulation “whenever circumstances permit”210 proposed by the International Committee of the Red Cross and the adopted text of “unless circumstances do not permit”?211 On its face, the final text imposes a stronger obligation than the draft proposal. This is because the phrase “unless circumstances do not permit”212 implies that a commander should normally issue an advance warning, unless there are circumstances that make this impossible. On the other hand, the phrase “whenever circumstances permit”213 requires a commander to consider whether circumstances permit to issue an advance warning, and contains no presumption in favour of issuing an advance warning. In practice, though, the two formulations are likely to lead to the same outcome. Even where there is a presumption that a warning should be issued, a commander will not give a warning if doing so is likely to “seriously compromise”214 the chances of prevailing over the enemy. Meanwhile, a commander who acts in “good faith” will give appropriate weight to sparing civilians when deliberating whether particular circumstances permit a warning to be given. It emerges that the travaux preparatoires215 do not illuminate what criteria states envisaged commanders to apply in assessing whether circumstances do not permit an advance warning to be issued to civilians.

 209

Art. 26 The Hague Convention No. IV of 18 October 1907, Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land. 210 International Committee of the Red Cross, Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, CDDH Official Records, Vol. I, Part III, June 1973, 15. 211 Art. 57(2)(c) API 1977. 212 Ibid. 213 International Committee of the Red Cross, Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, CDDH Official Records, Vol. I, Part III, June 1973, 15. 214 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551. 215 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Geneva (1974-1977) (Bern: Federal Political Department, 1978).

154

Chapter Four

4.2. Goldstone’s Restatement of the Traditional Test Justice Richard Goldstone proposed a new approach to interpreting the phrase “unless circumstances do not permit.”216 According to this test, “The key limitation on the application of the rule is if the military advantage of surprise would be undermined by giving a warning. The same calculation of proportionality has to be made here as in other circumstances. The question is whether the injury or damage done to civilians or civilian objects by not giving a warning is excessive in relation to the advantage to be gained by the element of surprise for the particular operation. There may be other circumstances when a warning is simply not possible.”217

He further comments that commanders should bear in mind the obligation to minimise injury to civilians and damage to civilian objects in assessing whether circumstances do not permit a warning to be given.218 Clearly, Goldstone’s test is based on making a proportionality assessment, because it involves weighing harm to civilians against military advantage. Similarly to the principle of proportionality, Goldstone’s test requires commanders to weigh whether the humanitarian loss expected if a warning is not issued is “excessive” in relation to the anticipated advantage offered by the element of surprise.219 The difference between Goldstone’s restatement of the warnings requirement220 and the principle of proportionality221 lies in the reference point against which humanitarian loss and military advantage are to be measured. The principle of proportionality focuses on the degree of military advantage offered by an attack and on the expected humanitarian loss.222 Goldstone’s test, however, requires commanders to consider the military advantage they anticipate to gain from taking the enemy by surprise, and the humanitarian

 216

Françoise Hampson, personal communication with the author, February 24, 2010. 217 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 131 par. 529. 218 Ibid. 219 Ibid. 220 Ibid. 221 Articles 51(5)(b),57(2)(a)(iii),57(2)(b) API 1977. 222 Ibid.

The Practical Application of the Rules of Targeting

155

loss that is expected to occur if an effective advance warning of the attack is not issued.223 How different is the Goldstone test in practice from the traditional interpretation adopted by states? The states interpret the traditional “unless circumstances do not permit” test strictly. There is no duty to warn civilians if giving a warning would “seriously compromise” the success of the military operation.224 It is unlikely that in such cases the Goldstone test requires commanders to issue a warning. States interpret the term “excessive” in the context of the principle of proportionality as referring to an “obvious imbalance” between the elements of military advantage and harm to civilians.225 Where a warning is likely to “seriously compromise” mission success, there will not usually be an “obvious imbalance” between the humanitarian and military sides of Goldstone’s balancing equation. This means that in such circumstances commanders will draw the same conclusion on the application of the traditional “unless circumstances do not permit” test and the Goldstone test. Therefore, the two approaches in practice tend to lead to the same outcome. The difference between the two tests is that the Goldstone test makes an explicit reference to humanitarian considerations. Meanwhile, the traditional “unless circumstances do not permit” test makes an explicit reference only to military exigencies.226 Notwithstanding its express language, the traditional test implicitly incorporates the need to balance military and humanitarian considerations.227 Since the purpose of the warnings requirement is to spare the civilian population “as much as possible,”228 this rule has the same goal as the principles of proportionality and the least feasible damage. States articulated that the principle of

 223

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 131 par. 529. 224 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551. 225 Bothe, Solf, and Partsch, New Rules for Victims of Armed Conflict, 310 n. 30. 226 Quéguiner, “Precautions Under the Law Governing the Conduct of Hostilities,” 808. 227 Ibid. 228 John Embry Parkerson Jr., “United States Compliance with Humanitarian Law Respecting Civilians during Operation Just Cause” Military Law Review 133 (1991): 48.

156

Chapter Four

proportionality229 and the principle of the least feasible damage230 envisage commanders taking into account both military and humanitarian considerations. It would be anomalous if the warnings requirement, with its aim to alleviate the suffering of civilians “as much as possible,”231 did not require commanders to bear in mind the goal of reducing civilian casualties. On this approach, the Goldstone test makes explicit the implicit reference to humanitarian considerations within the rule. In doing so, Goldstone’s test underscores the purpose of the rule and situates it into the overall context of the rules of targeting. The Goldstone reformulation of the traditional “unless circumstances do not permit” test enriches current legal doctrine. It provides additional insight into how a commander makes decisions in practice. The current guidance of “seriously compromising” the success of the military operation232 is a very subjective test. As Walzer remarks, the concept of military necessity is fluid in nature.233 When commanders talk about military necessity, they are really talking about degrees of risk to the force and to the mission.234 The Goldstone test provides more nuanced guidance to decision-makers than the “unless circumstances do not permit” test. It achieves this by giving insight into how military considerations, such as enemy tactics and the relative technological capabilities of the parties to the conflict, shape the deliberation of whether circumstances do not permit a warning to be given. It is possible to estimate, for instance, how many aircraft a commander may lose if the defender, who possesses short-range surface-to-air missiles, finds out about the upcoming military operation. Similarly, it is possible to predict how many civilians are likely to die because they did not have an opportunity to evacuate the area. It can then be debated whether the incidental injury to civilians and damage to

 229

Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-2, 4-3 par. 17-18, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:300. 230 United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. b, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:358. 231 Parkerson, “United States Compliance with Humanitarian Law Respecting Civilians during Operation Just Cause,” 48. 232 United States Department of the Air Force, International Law-The Conduct of Armed Conflict and Air Operations, Air Force Pamphlet 110-31, par. 5-3(c )(2)(d); Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551. 233 Walzer, Just and Unjust Wars, 144. 234 Ibid.

The Practical Application of the Rules of Targeting

157

civilian objects is excessive in relation to the military advantage offered by preserving a greater degree of surprise. Since Goldstone’s test provides criteria to commanders for determining whether they are obligated to warn the civilians, it makes the decision-making more concrete. Goldstone’s test, therefore, contributes to the law by providing an insight into how commanders may apply the warnings requirement to battlefield scenarios.

4.3. Refining Goldstone’s Test Since Goldstone’s test is based on making a proportionality assessment, the current guidance on the application of the principle of proportionality could be usefully applied to flesh out how Goldstone’s test may be applied to military scenarios. Captain Wright formulated a useful approach235 for how decision-makers can apply the principle of proportionality to battlefield scenarios. In order to transpose Captain Wright’s test to Goldstone’s test, the variable of military advantage offered by the attack should be substituted with the variable of military advantage that a commander anticipates to gain specifically from preserving an element of surprise.236 The variable of expected humanitarian loss should be substituted with the variable of humanitarian loss that is expected to occur specifically if a commander does not issue an effective advance warning of the attack to civilians. On the application of Captain Wright’s approach,237 a warning should be given whenever humanitarian loss is moderate or substantial, and the military advantage offered by achieving surprise is marginal. The same holds if the harm to civilians is substantial and the military advantage offered by surprising the enemy is moderate. When the humanitarian loss and anticipated military gain are both substantial, commanders should lean toward a decision to issue an advance warning of the attack. The advantage of the hybrid test is that it provides guidance on how Goldstone’s test may be applied to actual scenarios. The limitation of this approach is that it is unknown what criteria commanders apply to assess what degree of military advantage the element of surprise offers in the circumstances.

 235

Wright, “‘Excessive’ Ambiguity: Analysing and Refining the Proportionality Standard,” 847-848. 236 Ibid. 237 Ibid.

158

Chapter Four

5. A Theoretical Explanation for the Ambiguity in the Law International humanitarian law does not provide clear definitions for the terms that qualify obligations of the rules of targeting. And so it is unclear what criteria commanders use to apply the rules. Is such ambiguity a necessity in the law, or only in particular legal regimes such as international humanitarian law? Military theorist Captain Dale Stephens maintains that ambiguity is an indispensable feature of the law in general and of international humanitarian law in particular.238 Captain Stephens uses H.L.A. Hart’s soft positivism theory and Kennedy’s theory of legal rules as consisting of “rules” and “principles” to discuss the nature of the rules of targeting.239 Captain Stephens refers to Kennedy’s work in order to argue that international humanitarian law consists of “hard empirical rules and more fluid evaluative standards.”240 Kennedy defines a “rule” as a directive that gives definitive guidance on how to act in particular circumstances.241 A “rule,” therefore, entails certainty and narrows the exercise of judicial discretion.242 On the other hand, Kennedy views “standards” as fluid and requiring judges to interpret the legal rule in light of the social values and purpose of the “standard.”243 Examples of “standards,” according to Kennedy, are principles such as “good faith,” “fairness” and “due care.”244 Kennedy concludes that when judges apply a legal rule to a factual scenario, they have to determine what the facts are, and assess what outcome a legal rule requires for this factual scenario in light of the purpose and social values that underpin the legal rule.245 Captain Stephens argues that the rules of targeting are “rules” that incorporate “standards” in order to better achieve humanitarian goals.246

 238

Stephens, “Counterinsurgency and Stability Operations: a New Approach to Legal Interpretation,” 309. 239 Ibid., 296-299. 240 Ibid., 297-298. 241 Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review 89 (1976): 1687. 242 Ibid. 243 Ibid., 1687-1688. 244 Ibid., 1688. 245 Ibid. 246 Stephens, “Counterinsurgency and Stability Operations: a New Approach to Legal Interpretation,” 298.

The Practical Application of the Rules of Targeting

159

Captain Stephens takes the work of Kennedy as a starting point, and then uses Hart’s theory of legal interpretation in order to explain how commanders interpret the rules of targeting.247 Hart believes that legal rules have both a settled “core” meaning and a smaller, ambiguous aspect where the meaning of the provision is “debatable.”248 The “core” meaning of the legal rules is well settled.249 The judges use policy and the purpose of the legal rules as a guide for interpreting this aspect of uncertainty that is part of legal rules.250 As a consequence, the exact meaning of the rule is not well settled, but is rather subject to legal interpretation.251 Hart argues that legal rules have a dimension of uncertainty to them, because the legislature cannot foresee, at the time of drafting, all combinations of facts that can arise in daily life.252 The judges devised rules of interpretation to guide them in determining how to apply a broadly-worded legal rule to diverse sets of factual scenarios.253 The rules of interpretation tell the judges what factors to weigh and how, so that their interpretation of the legal rule fulfills social goals.254 The result is that the meaning of the legal rules emerges as the judges apply them to particular factual scenarios.255 The British judge Lord Denning, in the case of Re Vandervell’s Trusts, expressed the view that the law serves its purpose well only when judges deliver just decisions.256 Therefore, judges should construe a legal rule in such a way as to produce just outcomes.257 To achieve justice, Lord Denning was prepared to strain the meaning of precedent (earlier judgments) and to reinterpret statutes in order to adopt

 247

Ibid., 298-299. H. L. A. Hart, The Concept of Law, 1st ed. (Oxford: Oxford University Press, 1994), 134; Robert S. Summers, “Professor MacCormick on H. L. A. Hart’s Legal Theory,” American Journal of Comparative Law 31 (1983): 485. 249 H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1997), chap. 7. 250 Ibid. 251 Ibid. 252 Ibid. 253 Ibid. 254 Ibid. 255 Re. Vandervell’s Trusts (No.2) [1974] Ch.308, 322 (The Court of Appeal, United Kingdom), quoted in J.W. Harris, “The Case of the Slippery Equity,” The Modern Law Review 38, no. 5 (1975): 557. 256 Ibid. 257 Ibid. 248

160

Chapter Four

the law to the changing circumstances and times.258 Due to this, Lord Denning was a controversial figure for some.259 Stephens argues that the rules of targeting have what Hart calls a debatable region of meaning of what these rules require in a military scenario.260 The purpose of this vagueness is to ensure that the rules of targeting retain their relevance, notwithstanding the fact that the nature of combat continuously evolves.261 Additionally, the aspect of vagueness ensures that the commanders may incorporate policy considerations when applying the rules of targeting.262 Stephens gives the following example to illustrate how commanders use the vagueness inherent in the targeting rules to inject policy when interpreting their obligations.263 The United States of America, in the course of fighting a counterinsurgency in Afghanistan, departed from the traditional approach of assigning equal weight to the lives of civilians and military advantage in applying the principle of proportionality.264 American commanders were instructed to treat the local population’s support of the military as a form of military advantage and to assign greater value to the humanitarian than to the military side of the proportionality equation.265 Since the United States of America interpreted the principle of proportionality more strictly than required, its application of the rule did not give rise to a controversy. Stephens’s discussion shows that commanders give effect to social values and possibly policy in interpreting the rules of targeting. The social values are either those values that are shared by the international community as a whole, or those values that reflect the national culture and domestic politics. It is unclear, however, whether the international community shares common values. Proponents of the international relations theory called “The English School” assert that the international community has

 258

Ibid.; Clare Dyer, “'Lord Denning, Controversial People's Judge,' Dies Aged 100,” Guardian, March 6, 1999, http://www.guardian.co.uk/uk/1999/mar/06/claredyer1 (accessed August 10, 2010). 259 Ibid. 260 Stephens, “Counterinsurgency and Stability Operations: a New Approach to Legal Interpretation,” 298-300. 261 Ibid., 306-308. 262 Ibid. 263 Ibid. 264 Ibid., 305-307. 265 United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, 247-249.

The Practical Application of the Rules of Targeting

161

shared values.266 On the other hand, adherents to the “Political Realism School” maintain that there is no such thing as an international community, and that states focus on their own interests.267 Wittgenstein’s theory of language268 gives added insight into why it is debatable what the rules of targeting require in concrete scenarios. Wittgenstein studied language and developed a theory of how words come to have meaning.269 His “meaning in use” theory holds that words lack meaning in themselves, although they correspond to particular phenomena.270 Wittgenstein furthermore argues that individuals in their communication with each other give meaning to words.271 Individuals learn as infants what words mean in the process of interacting with other individuals.272 On this approach, although objects such as apples exist independently of words or language, individuals give the name “apple” to the object.273 Children learn to associate the term “apple” with a particular object, as adults point to an object and tell them what this object is called.274 The definitions of words consequently reflect a commonality of human experience.275 The fact that different languages have divergent terms for labelling the same objects provides support for Wittgenstein’s theory. Wittgenstein’s approach to deducing the definitions of words conforms to the Vienna Convention on the Law of Treaties 1969. Article 31(1) of the treaty requires that in interpreting treaty rules, lawyers and judges should give words their ordinary meaning.276 If states decided to give particular

 266

Michael Barnett and Martha Finnemore, “Political Approaches,” in The Oxford Handbook on the United Nations, ed. Thomas Weiss and Sam Daws (Oxford: Oxford University Press, 2007), 47. 267 Ibid., 43-44. 268 Ludwig Wittgenstein, Philosophical Investigations, trans. Joachim Schulte, Peter Michael Stephan Hacker, and Gertrude Elizabeth Margaret Anscombe, 4th ed. (Chichester: Blackwell Publishing Ltd., 2009), par. 43. 269 Ibid., par. 560; Craig Fox, “Wittgenstein on Meaning and Meaning-blindness,” in Wittgenstein: Key Concepts, ed. Kelly Dean Jolley (Durham: Acumen, 2010), 27-28. 270 Wittgenstein, Philosophical Investigations, par. 40-43. 271 Ibid. 272 Ibid. 273 Ibid., par. 15. 274 Ibid., par. 1. 275 Ibid., par. 40-43. 276 Art. 31(1) Vienna Convention on the Law of Treaties 1969.

162

Chapter Four

meaning to a treaty term through an agreement or subsequent practice, then this definition should prevail.277 Both Wittgenstein278 and the provisions of the Vienna Convention on the Law of Treaties 1969279 envisage meanings of words as arising from communication between states and judges. Furthermore, Wittgenstein’s approach280 also conforms to how states create customary international law rules. States jointly create customary international law rules through declaring by what rules they regard themselves as being bound, and through conducting themselves consistently with their declarations.281 The source of customary international law, therefore, is communication between states reinforced by compliance. Wittgenstein’s theory282 suggests that commanders learn what terms such as “practicable or practically possible”283 require in concrete scenarios in the course of military training. The instructors articulate what meaning should be given to these terms. The rationale for this inference is that, according to Wittgenstein, words acquire meaning in the course of individuals communicating to each other.284 Another corollary of his theory is that individuals who lack military training may draw slightly different conclusions from members of the armed forces based on the same facts. Unfortunately, because states classify the information on the basis of which commanders reach their decisions, it is difficult for scholars to conclude whether a state has complied with the law in a particular

 277

Articles 31(3) and 31(4) Vienna Convention on the Law of Treaties 1969. Wittgenstein, Philosophical Investigations, par. 40-43. 279 Art. 31 Vienna Convention on the Law of Treaties 1969. 280 Wittgenstein, Philosophical Investigations, par. 40-43. 281 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Merits, Judgment, I.C.J Reports 1969, p. 45, par. 77. 282 Wittgenstein, Philosophical Investigations, par. 40-43. 283 Art. 3(4) Protocol II to CCW 1980; Art. 1(5) Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons to the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, [1992] 1342 U.N.T.S. 137 (1983) (hereinafter cited as Protocol III to CCW 1980). 284 Wittgenstein, Philosophical Investigations, par. 43. 278

The Practical Application of the Rules of Targeting

163

instance.285 It is difficult to use state practice in the field of international humanitarian law to establish what the rules of targeting require in practice.286 Bouvier, Quintin, and Sassòli illustrate why this is the case. According to them, individual members of the armed forces may fail to act in conformity with instructions, but this does not mean “that such behaviour is also state practice constitutive of customary law.”287 It is not easy to determine which military acts count as state practice.288 A related factor is that “the actual practice of belligerents is difficult to identify, particularly as it often consists of omissions” of legally required conduct.289 Finally, states may manipulate the truth regarding what happened, as part of war propaganda.290 For instance, the conduct of Israel during Operation Cast Lead 2009 diverged sharply from its statements that it assumes risk in order to protect civilians.291 Of course, the accusations states make that the enemy violated international humanitarian law, and responses of the adversaries to these allegations, may be used as evidence of state practice in order to establish how states interpret the rules.292 Nevertheless, states have not divulged what criteria commanders use to determine what the rules of targeting require in practice. Furthermore, neither the statements of third states on the behaviour of the parties to the conflict, nor abstract statements of states in diplomatic forums on particular rules, have to date illuminated what criteria states use to apply the rules of targeting.293 It is, therefore, necessary to develop a hypothesis as to what elements make up the building blocks of a commander’s decision-making. What relative weight

 285

Sassòli and Cameron, “The Protection of Civilian Objects-Current State of the Law and Issues de Lege Ferenda,” 71. 286 Sassòli, Bouvier, and Quintin, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law Part I, vol. 1, 1: chap. 4 p. 4. 287 Ibid., chap. 4 p. 5. 288 Ibid. 289 Ibid., chap. 4 p. 4. 290 Ibid., chap. 4 p. 5. 291 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 24 par. 62. 292 Sassòli, Bouvier, and Quintin, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law Part I, 1: chap. 4 p. 5. 293 Ibid.

164

Chapter Four

commanders place on each element, depending on the circumstances, can then be tested using state practice.

6. The Hypothesis The purpose of the rules of targeting is to give effect to an overarching duty to take “constant care” to spare the civilian population.294 Clearly, attackers should strive to put themselves in a position where they are able to comply with the duty to distinguish between civilians, civilian objects and lawful targets.295 In turn, the principle of distinction presupposes that attackers should aim to reduce the chances of drawing a mistaken conclusion that a civilian object is a military objective.296 The goal of putting attackers in a position where they can comply with the principle of distinction may be expressed in terms of avoiding the risk of target misidentification. The notion of risk that the target may be misidentified may be broken down into two elements.297 These are: (1) the likelihood of injury to civilians and damage to civilian objects from possible target misidentification and (2) the magnitude of harm to civilians that will occur if a protected object is misidentified. This proposition is deduced from the following premise: in mathematics the loss that will occur on average is calculated by multiplying the likelihood of the loss occurring by the magnitude of the loss that will take place if the adverse event materialises.298 As a shorthand, these elements may be simply called the likelihood of civilian harm and the magnitude of civilian harm. The term “magnitude” is used here to denote the number and severity of injury to civilians and damage to civilian objects. The Ameriyya bunker incident showed that although forces gather intelligence and conduct reconnaissance in the process of determining

 294

Sandoz, Swinarski, and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 680 par. 2191. 295 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:367. 296 Adil Ahmad Haque, “Killing in the Fog of War,” Southern California Law Review 86 (2012): 81. 297 Economists call the “weighted average” of all possible outcomes of the risk event in question “expected value.” Michael Katz, Morgan Wyn, and Harvey Rosen, Microeconomics (Berkshire: McGraw-Hill Companies, 2006), 179; STEPS Statistics Glossary, s.v. “Expected Value” (by Valerie J. Easton and John H. McColl), http://www.stats.gla.ac.uk/steps/glossary/probability_distributions.html# expval (accessed January 7, 2010). 298 Ibid.

The Practical Application of the Rules of Targeting

165

whether a target is a military objective, there remains a risk that a target may yet be civilian in nature. If the target in fact turns out to be a civilian object, there will be harm to civilians. Had the United States of America been aware that there was a risk that the bunker was being used as a civilian shelter, they would also have been able to estimate how many civilians would die if civilians took shelter in the building. The United States of America could have arrived at the estimate of the magnitude of civilian harm by analysing the location of the building in a populated area, and by calculating how many people may have sheltered in a building of that size. Moreover, the Ameriyya incident showed that the commander considers constraints on resources and which competing missions need to be carried out299 in contemplating whether it is “practicable or practically possible” to conduct additional surveillance. The case study of decapitation strikes demonstrates that commanders also take into account the urgency of engaging a target, for example, because there may be no other opportunity to strike it. They bear in mind that available information is limited. The NATO practice of pilots operating at a high altitude during Operation Allied Force in order to obviate the Serb air defence systems300 evidences that commanders consider force protection in assessing whether it is “practicable or practically possible” to adopt a tactic that would enable the attacker to visually confirm the character of the target. When commanders expose the force to risk, delay or postpone an attack, or take resources away from competing missions in order to gather more information, they forgo a degree of military advantage. It follows that the element of military advantage is relevant for the analysis of a commander’s decisionmaking. The declarations states made when they ratified API 1977 provide further evidence that the elements of military advantage, the likelihood of civilian harm and the magnitude of civilian harm are relevant to the analysis of how commanders apply the rule of targeting. Specifically, states made a declaration that in doing everything “feasible” to verify that the target is a military objective, commanders should take into account military and humanitarian considerations.301 Humanitarian considerations can be

 299

Lewis, “The Law of Aerial Bombardment in the 1991 Gulf War,” 504. “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 56. 301 Belgium, Interpretative Declarations Made Upon Ratification of AP I 1977, 20 May 1986, par. 3, Canada, Reservations and Statements of Understanding Made 300

166

Chapter Four

expressed using two variables: the likelihood of civilian harm and the magnitude of such harm. This is because mathematicians calculate the loss that will occur on average by multiplying the likelihood of the loss occurring by the magnitude of the loss that will take place if the adverse event materialises.302 And, of course, the military considerations the commander contemplates in evaluating whether it is “practicable or practically possible” to gather more information, such as force protection, may be usefully summarised under a general heading of degree of military advantage. Interestingly, Henderson argues that the consideration of how many civilians will be killed if the target is misidentified303 and the likelihood of the target being a civilian object should play a role in a commander’s assessment of whether he or she is doing everything “feasible” to verify that the target is a military target.304 The three elements may also usefully be used to determine commanders’ considerations when applying the principle of the least feasible damage. When states ratified API 1977, they declared that the term “feasible,” as it is used in the rule of target verification and the principle of the least feasible damage, imposes identical obligations.305 It follows that the elements of military advantage, likelihood of civilian harm and magnitude of harm to civilians should be equally relevant for the principle of least feasible damage. The general considerations commanders contemplate in applying the principle of the least feasible damage also provide support for the relevance of the three elements. The United Kingdom Joint Service Manual lists seven considerations that commanders should bear in mind in

 Upon Ratification of AP I 1977, 20 November 1990, par. 5, France, Reservations and Declarations Made Upon Ratification of AP I 1977, 11 April 2001, par. 3, Germany, Declarations Made Upon Ratification of AP I 1977, 14 February 1991, par. 2, United Kingdom, Reservations and Declarations Made Upon Ratification of AP I 1977, 28 January 1998, par. b, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:357-358; Art. 3(10) Amended Protocol II to CCW 1980. 302 Katz, Wyn, and Rosen, Microeconomics, 179; STEPS Statistics Glossary, s.v. “Expected Value” (by Valerie J. Easton and John H. McColl), http://www.stats.gla.ac.uk/steps/glossary/probability_distributions.html#expval (accessed January 7, 2010). 303 Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack Under Additional Protocol I, 164. 304 Ibid., 165. 305 Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, par. 428, 434, 454; Kenya, The School of Military Police, Law of Armed Conflict Manual Military Basic Course (Kenya:1997), Précis No. 4 p. 8.

The Practical Application of the Rules of Targeting

167

applying the principle of the least feasible damage.306 These considerations are: (1) the importance of the target and the urgency of the situation; (2) intelligence about the proposed target; (3) the range, accuracy and radius of effect of available weapons; (4) the characteristics of the target, such as whether it houses dangerous forces; (5) factors affecting the extent of civilian harm such as proximity of civilians in the vicinity of the target; (6) the conditions affecting the accuracy of targeting such as terrain, weather, and time of day; (7) the risk to the troops and the options available to the force.307 An eighth consideration mentioned by states is that of enemy tactics.308 Consideration 1 is concerned with the importance of the target and the urgency of engaging it. These two aspects are clearly linked. For instance, where a force faces imminent threat from enemy fire, it may well benefit from a speedy response.309 The longer the commander delays the response in order to call in alternative materiel, the more soldiers and assets a commander may lose, and the greater the degree of military advantage that is being forgone. Meanwhile, the Goldstone Report indicates that civilians may benefit from a delay in the response to enemy fire, because the force may call in alternative materiel that exposes the civilians to less danger.310 Whenever the troops delay their response in order to call in alternative materiel, they reduce the likelihood of civilians being injured and the

 306

United Kingdom Ministry of Defence, United Kingdom Joint Service Manual of the Law of Armed Conflict, par. 5.32.5. 307 Ibid. 308 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 49 par. 135. 309 Ibid., 129 n. 265. 310 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 158 par. 698.

168

Chapter Four

magnitude of the resulting harm to civilians. Consequently, the urgency of engaging the target is linked to the elements likelihood of civilian harm and magnitude of civilian harm. It would appear, therefore, that in assessing whether to delay a response to enemy fire, the commander considers (a) how much military advantage delaying an attack entails, (b) the likelihood that the force will inflict civilian harm if it were to use assets that are on hand and (c) what harm to civilians will result from the employment of different materiel. This same example may be used to discuss consideration 7 in the United Kingdom Joint Service Manual, relating to risk to the force and the means and methods of warfare available to it.311 Clearly, when a force is unable to call in assets that would further reduce civilian harm, such as close air support, and instead uses mortars, the likelihood that civilians will be harmed and the magnitude of resulting harm to civilians are thereby increased.312 Equally, a delay in response needed to call in an alternative asset may expose the force to danger.313 Therefore, troops forgo a degree of military advantage when they delay launching an attack.314 Consideration 2 refers to the intelligence available about the target.315 Possessing more intelligence about the target confers military advantage on the attacker. This is because the attacker is able to tailor the weapon to the target and to increase the degree of damage inflicted onto the enemy.316 Equally, matching the destructive power of the weapon more closely to the target decreases the likelihood of civilian harm and the magnitude of harm to civilians that ensues.317

 311

United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 5.32.5. 312 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 129 n. 265. 313 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 158 par. 698. 314 Ibid. 315 United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 5.32.5. 316 Scales Jr., Yellow Smoke: the Future of Land Warfare for America’s Military, 153. 317 Johnson, Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era, 124-125.

The Practical Application of the Rules of Targeting

169

Consideration 3 in the United Kingdom Joint Service Manual, referring to available weapons, their range, accuracy, and radius of effect318 touches on the degree of military advantage a commander forgoes in employing weapons that inflict less civilian harm, as required by the principle of the least feasible damage. For instance, artillery and mortars cause greater civilian casualties than do aircraft. However, the use of mortars and artillery offers a greater degree of military advantage than aerial bombing.319 The military advantage a commander forgoes when utilising aircraft rather than, for instance, artillery, is found by subtracting the degree of military advantage offered by the use of artillery from the degree of military advantage offered by the use of aircraft. And, of course, the range, accuracy and radius of effect of a weapon320 influence the likelihood and magnitude of civilian harm. Consideration 4 lists various characteristics of the target, such as whether it is an oil refinery or a chemical weapons factory.321 Meanwhile, consideration 5 is concerned with the proximity of civilians to the target.322 The fact that targeting military objectives such as chemical facilities creates a greater likelihood of civilians being harmed is uncontroversial. Moreover, when specialist means and methods of warfare are not employed against such military objectives, the resulting civilian harm tends to be greater.323 Since targeting these facilities requires careful planning and the use of specialist means of warfare,324 a commander may need to forgo a degree of military advantage by taking resources away from a competing mission. As regards consideration 6, environmental conditions such as terrain, time of the day and weather affect the accuracy of targeting.325 For example, bombing from an aircraft in thick fog will undoubtedly be less accurate

 318

United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 5.32.5. 319 Henry Dodd and Robert Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012 (London: Action on Armed Violence, March 2013), 22. 320 United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 5.32.5. 321 Ibid. 322 Ibid. 323 Lewis, “The Law of Aerial Bombardment in the 1991 Gulf War,” 489-490. 324 Ibid. 325 United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 5.32.5.

170

Chapter Four

than bombing in good weather conditions.326 Consequently, these factors bear on the likelihood that the attack will harm civilians and the magnitude of harm to civilians. Enemy tactics327 are another consideration. Some tactics, such as the enemy’s use of buildings to conceal the location of troops and for protection, make it more difficult for a commander’s unit to locate and engage the enemy.328 The forces need to assume risk, and thereby forgo a degree of military advantage, if they adopt tactics that reduce civilian casualties. An example of such a tactic is entering the building instead of firing a tank round at it. Firing a tank round creates additional danger that more civilian casualties will be inflicted than if the military stormed the building.329 An examination of considerations that commanders bear in mind when applying the principle of the least feasible damage demonstrates that they contemplate the elements of military advantage, likelihood of civilian harm and magnitude of civilian harm. Subsequent chapters will use state practice to draw inferences regarding what relative weight commanders place on the three elements when applying the rule of target verification and the principle of the least feasible damage. Turning to the warnings requirement, we will see that insights from the field of psychology may usefully be applied to provide further insight into how commanders determine whether circumstances do not permit a warning to be given. Psychologists have for some time studied how human beings make decisions under conditions of uncertainty.330 They have made interesting discoveries, such as the fact that individuals assess losses and gains separately.331 This knowledge has important implications. For

 326

Isayeva v. Russia, Application No. 57950-00, Judgment, par. 196 (European Court of Human Rights February 24, 2005). 327 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 49 par. 135. 328 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 55. 329 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, September 2009, 348, http://www.ceiig.ch/pdf/IIFFMCG_Volume_II.pdf (accessed August 1, 2013). 330 Glynis Breakwell, The Psychology of Risk (Cambridge: Cambridge University Press, 2007), 78. 331 Amos Tversky and Daniel Kahneman, “Advances in Prospect Theory: Cumulative Representation of Uncertainty,” Journal of Risk and Uncertainty 5 (1992): 303.

The Practical Application of the Rules of Targeting

171

instance, it implies that commanders may place different weight on the loss of military advantage associated with giving a warning than on the gain of sparing civilians. Various theories in the field of psychology will be examined, to suggest how commanders deliberate when issuing a warning will “seriously compromise”332 their chances of winning.

7. Conclusions There is ambiguity regarding what criteria commanders employ to guide their application of the rule of targeting, the principle of the least feasible damage and the warnings requirement. Frequently, states invoke considerations of national security to justify not divulging information on how commanders apply the rules of targeting to actual scenarios.333 Arguably, states release broad statements regarding what the law requires, and avoid giving detailed accounts of justifications for particular conduct because they wish to leave commanders room for mistakes. Although scholars and non-governmental organisations regularly discuss whether particular conduct was lawful, they frequently lack sufficient facts to be able to conclusively resolve whether a particular commander breached the law. The main rationale for the parsimony of comments by states is that by disclosing how commanders apply the rules of targeting to battlefield situations, states would divulge how they plan military operations. The countries keep information about the planning of military operations secret, not least because they gain an edge when troops’ actions take the enemy by surprise. Another reason for the reluctance of states to release information could be that they may wish to limit the number of prosecutions for war crimes. The commanders inevitably act under constraints of time and information, in addition to being responsible for the lives of their troops.334 States in all likelihood consider that to burden commanders with the risk of prosecutions for conduct falling on the borderline between negligence and

 332

Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551. 333 CarrieLyn D. Guymon, Digest of United States Practice in International Law (Oxford: Oxford University Press, 2012), 585. 334 von Clausewitz, Principles of war, 51; Blank, “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law,” 13.

172

Chapter Four

recklessness335 may undermine the achievement of military goals. They may prefer that commanders feel confident about making quick decisions, in order to facilitate their ability to act more quickly than the enemy. Countries that have professional armies may additionally be afraid that the threat of prosecutions will deter individuals from embarking on this difficult and hazardous occupation. It could also be that states tend to issue broad statements to avoid political embarrassment, especially in cases where the purpose of the military campaign is to alleviate the suffering of the local population. For instance, Peter Olson, a legal adviser at NATO, did not give a detailed account of how NATO planned particular military operations when responding to the Commission of Inquiry that investigated the compliance of NATO’s military operations with international humanitarian law in Libya.336 Consequently, the Commission of Inquiry was unable to conclude on all occasions whether NATO’s conduct satisfied the legal requirements.337 Since the purpose of the armed intervention was to alleviate the suffering of civilians,338 it was imperative for NATO states to be seen as complying with the law. On 17 March, 2011, the U.N. Security Council adopted resolution 1973, which authorised states to take “all necessary measures” to “protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” short of a “foreign occupying force.”339 It is unlikely that states will disclose in the near future the criteria their armed forces use in applying the rules of targeting.

 335

“Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 28. 336 Peter Olson to Judge Kirsch, OLA(2012)006, January 23, 2012, quoted in U.N. Human Rights Council, Report of the International Commission of Inquiry on Libya U.N. Doc. S/RES/10200 (Geneva: United Nations, March 2, 2012), Annex II. 337 U.N. Human Rights Council, Report of the International Commission of Inquiry on Libya, 168 par. 639. 338 United Nations Security Council, Resolution 1973, 6498th Meeting, Doc. S/RES/10200 (New York: United Nations: March 17, 2011). 339 Ibid.

CHAPTER FIVE DRAWING THE LINE: THE DEGREE OF CERTAINTY REQUIRED BY THE PRINCIPLE OF DISTINCTION

The paradox of courage is that a man must be a little careless of his life even in order to keep it.1 The principle of distinction entails a paradox, namely that the rule places an absolute obligation on attackers to distinguish between civilians and civilian objects on the one hand, combatants and military objectives on the other,2 in circumstances where attackers cannot attain absolute certainty.3 States have not expanded on what degree of certainty qualifies as a “reasonably” held belief that the individual or object is a legitimate target.4 A number of factors shape the degree of certitude an individual may be able to attain regarding the character of the target.5 Examples of these are the availability of intelligence, the urgency of immediately embarking on the attack, the protection of the force and civilian harm through error in targeting.6 The pivotal questions are, first, what degree of doubt the principle of distinction tolerates, and, secondly, how factors such as the urgency of action shape the degree of certainty a decision-maker is expected to achieve.

 1

Gilbert K. Chesterton, “The Methuselahite,” in All Things Considered (Charleston: BiblioBazaar LLC., 2006), 118. 2 Art. 48 API 1977. 3 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039. 4 Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment, par. 51 (International Criminal Tribunal for the former Yugoslavia December 5, 2003). 5 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039. 6 Ibid.

174

Chapter Five

1. Why there is so much Uncertainty around the Required Degree of Certainty At first it appears puzzling that there should be a need to establish what degree of certainty the principle of distinction requires parties to the conflict to achieve. After all, the principle of distinction is the only rule of targeting that uses absolute language, decreeing that parties to the conflict “shall at all times distinguish” between civilians and combatants, and “shall direct” military operations only against military objectives.7 Unquestionably, this rule imposes an unqualified obligation.8 One of the reasons why it is impossible for forces to achieve certainty on the battlefield is that intelligence of the desired quality and quantity is never available.9 The broader reason is that certainty cannot be achieved in daily life. To illustrate, Judge Small in the British case of Henry Walters (Appellant) v. The Queen explained that the prosecution can never prove that it is certain, that a particular fact is true, based on available evidence.10 He elaborated that “nothing in life can be proved with absolute certainty. Never mind what you do, or how perfectly you may seek to enter upon any enterprise, there is always an element of doubt,” even if it is a fanciful doubt.11 States have issued guidance to their forces in order to enable them to comply with the principle of distinction. The United States of America,12

 7

Art. 48 API 1977; Stephens, “Counterinsurgency and Stability Operations: a New Approach to Legal Interpretation,” 299. 8 Ibid. 9 Vego, Joint Operational Warfare: Theory and Practice, III–66, III–67. 10 Henry Walters (Appellant) v. The Queen, [1969] 2 W.L.R. 60, 28 (The Privy Council, United Kingdom). 11 Ibid. 12 Jim Mannion, “‘Appropriate’ Force Used in Civilian Death Incident: U.S.,” Agence-France Presse, May 16, 2007, quoted in Human Rights Watch, Troops in Contact: Airstrikes and Civilian Deaths in Afghanistan (New York: Human Rights Watch, 2008), 18; “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 88; Tony Holmes, U.S. Navy Hornet Units of Operation Iraqi Freedom: Part One (Oxford: Osprey Publishing, 2004), 88; United States Central Command, Appendix E: Rules of Engagement for U.S. Military Forces in Iraq (MacDill Air Force Base: United States Central Command Combined Forces Land Component Commander, January 2003).

Drawing the Line

175

the Philippines13 and NATO countries14 require their forces to “positively” identify that the target is a military objective. The Philippines,15 Belgium16 and the United States of America17 interpret the term “positive target identification” as requiring soldiers to have “reasonable certainty” that the target is a military objective. The ruling of the International Criminal Tribunal for the former Yugoslavia in the Prosecutor v. Galiü case explains when a soldier may be said to have “reasonable certainty.”18 It held that a soldier should refrain from an attack if “it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action.”19

The following scenario illustrates that it is unclear, when an individual can conclude that it is “reasonable to believe,”20 that it is lawful to target a person or an object. A soldier sees a woman who wears a loose robe, which is customarily worn by women of that country. The soldier’s attention is attracted by the fact that she has slipped a hand inside her robe. This gesture could indicate a number of possible actions by the woman, possibly that she is adjusting the clothes underneath the robe, or possibly that she is about to detonate a suicide bomber vest. Assume for the purpose of this example that suicide bombings occur regularly in that area, so that there is a real possibility that the woman is a suicide bomber. Assume further that a soldier is not in a position to ask the woman to put

 13

The Philippines, A.F.P. Standing Rules of Engagement (Armed Forces of the Philippines, General Headquarters, Office of the Chief of Staff, 1 December 2005), par. 8(5). 14 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 88. 15 The Philippines, A.F.P. Standing Rules of Engagement, par. 8(5). 16 Belgique, Etat-Major Général, Droit de la Guerre Dossier d’Instruction pour Soldat JS-3 (Forces Armées Belges, undated), 21, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:368. 17 United State Congress, Senate, Senate on U.S. Rules of Engagement in Vietnam War 1969-1972, 99th Cong., S. Doc. S2982, Congressional Record S 3011 (March 14, 1985): 2985; United States Central Command, Appendix E: Rules of Engagement for U.S. Military Forces in Iraq (MacDill Air Force Base: United States Central Command Combined Forces Land Component Commander, January 2003). 18 Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment, par. 51 (International Criminal Tribunal for the former Yugoslavia December 5, 2003). 19 Ibid. 20 Ibid.

176

Chapter Five

her hands up, because doing so may enable a potential suicide bomber to detonate the vest before the soldier can open fire. Clearly, because the pattern of the movement is suspicious, a soldier could at some point form a “reasonable” belief21 that the woman is taking a direct part in hostilities. The real question is how many seconds or fractions of a second the soldier should wait, in order to obtain further evidence that would either confirm or invalidate the suspicion. The explanation of the International Criminal Tribunal for the former Yugoslavia, namely that a soldier may open fire when it is “reasonable” to form an opinion22 that the woman is taking a direct part in hostilities, does not conclusively answer this question. It is unclear from this guidance whether soldiers are entitled to open fire when they believe that it is merely unlikely that a woman is a civilian, or when they think that it is very unlikely that a woman is entitled to immunity. In order to answer at what point soldiers are allowed to open fire, it is necessary to know what degree of certainty is required by the principle of distinction. Russia has informed the Independent International Fact-Finding Mission on the Conflict in Georgia that its forces fire only at “clearly identified” targets.23 The word “clearly” indicates that Russian forces open fire only if they are able to identify a target as being a combatant, an individual who takes a direct part in hostilities or a military objective. What remains unclear is whether a soldier may be said to have ascertained that the target is a military objective when the soldier believes, for instance, that it is unlikely that a target is a civilian object, or whether the principle of distinction requires a higher degree of certainty. According to a spokesman of the Israel Defence Forces, a drone lawfully engages a target when the information on the ground indicates “convincingly” that the target is a military objective.24 The spokesman further states that an attacker may conclude that it is lawful to engage the target when the

 21

Ibid. Ibid. 23 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 324. 24 Israel Ministry of Foreign Affairs, Conclusion of Investigations into Central Claims and Issues in Operation Cast Lead Part 2 (Jerusalem: Israel Ministry of Foreign Affairs, April 22, 2009), http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/Pages/Conclusion_of_%20Investi gations_into_Central_Claims_and_Issues_in_Operation_Cast_Lead-Part2_22-Apr200.aspx (accessed March 10, 2010). 22

Drawing the Line

177

intelligence is “concrete” and “precise.”25 When information is “concrete,” that information is “clear and certain.”26 In order to be “precise,” the information should be “exact and accurate.”27 Therefore, Israel allows parties to the conflict to conclude that the target is a military objective if they believe that the intelligence is accurate and gives unambiguous information. There are parallels between the Israeli28 and Russian29 state practices. Since Israel uses the term “concrete”30 to refer to information that is “clear,” 31 its guidance is similar to the Russian requirement that troops only engage targets that they have “clearly” identified as military

 25 Israel Defence Forces, “I.D.F. Begins Widespread Campaign on Terror Targets in the Gaza Strip,” Israel Defence Forces, November 14, 2012, http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-on-terror-sitesin-the-gaza-strip (accessed December 4, 2012); Israel Defence Forces, “I.D.F. Carries Out Widespread Attack on Gaza Terror Sites,” Israel Defence Forces, November 16, 2012, http://www.idf.il/1283-17570-EN/Dover.aspx (accessed December 4, 2012). 26 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Concrete” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/concrete_3 (accessed January 5, 2014). 27 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Precise” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/ precise_1?q=precise (accessed January 5, 2014). 28 Israel Defence Forces, “I.D.F. Begins Widespread Campaign on Terror Targets in the Gaza Strip,” Israel Defence Forces, November 14, 2012, http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-on-terror-sitesin-the-gaza-strip (accessed December 4, 2012); Israel Defence Forces, “I.D.F. Carries Out Widespread Attack on Gaza Terror Sites,” Israel Defence Forces, November 16, 2012, http://www.idf.il/1283-17570-EN/Dover.aspx (accessed December 4, 2012). 29 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 324. 30 Israel Defence Forces, “I.D.F. Begins Widespread Campaign on Terror Targets in the Gaza Strip,” Israel Defence Forces, November 14, 2012, http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-on-terror-sitesin-the-gaza-strip (accessed December 4, 2012). 31 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Concrete” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/concrete_3 (accessed January 5, 2014).

178

Chapter Five

objectives.32 Moreover, when information is not “precise,” 33 it is difficult to conclude that it is “clear” that the target is a military objective.34 Consequently, both Israel and Russia may be said to require that the attacker act on accurate information that is not contradicted by other sources. The Israeli state practice, however, leaves the question open when an attacker is put on notice that intelligence is either unreliable or gives insufficient detail. What possibilities of the target not being a military objective can an attacker disregard? It is important to answer these questions because Israel has acknowledged that, even when its forces acted on the basis of intelligence which they believed to be accurate, they nevertheless on some occasions mistakenly targeted civilian objects.35 The state practice of the United States of America36 sheds some light on the questions raised by the Israeli37 state practice. The United States of America has explained that it requires attackers to have a “high degree of confidence” that an individual takes a direct part in hostilities before authorising drone strikes.38 In order to enable it to make this assessment, the Central Intelligence Agency gathers information from “two verifiable

 32

Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 324. 33 Israel Defence Forces, “I.D.F. Carries Out Widespread Attack on Gaza Terror Sites,” Israel Defence Forces, November 16, 2012, http://www.idf.il/1283-17570EN/Dover.aspx (accessed December 4, 2012). 34 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 324. 35 Israel Defence Forces, “Why Were Private Property and Infrastructure in Gaza Harmed?,” Israel Defence Forces, November 19, 2012, http://www.idfblog.com/2012/11/19/were-private-property-and-infrastructure-ingaza-harmed (accessed November 28, 2012). 36 United States Congress, Senate, Committee on Foreign Relations, Afghanistan’s Narco War: Breaking the Link Between Drug Traffickers and Insurgents, 111th Cong., 1st sess., 2009, S. Doc. 11, 29; Guymon, Digest of United States Practice in International Law, 2012, 585. 37 Israel Ministry of Foreign Affairs, Conclusion of Investigations into Central Claims and Issues in Operation Cast Lead Part 2 (Jerusalem: Israel Ministry of Foreign Affairs, April 22, 2009), http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/Pages/Conclusion_of_%20Investi gations_into_Central_Claims_and_Issues_in_Operation_Cast_Lead-Part2_22-Apr200.aspx (accessed March 10, 2010); Israel Defence Forces, “I.D.F. Carries Out Widespread Attack on Gaza Terror Sites,” Israel Defence Forces, November 16, 2012, http://www.idf.il/1283-17570-EN/Dover.aspx (accessed December 4, 2012). 38 Guymon, Digest of United States Practice in International Law, 2012, 585.

Drawing the Line

179

sources” and “substantial additional evidence.”39 The requirement that there be two “verifiable” sources40 surely requires more than that the attacker know the identity (and allegiance) of the sources. If the forces only know the identity and allegiance of the sources, they will not necessarily be able to check whether the intelligence is reliable, so as to comply with the requirement to have a high degree of confidence41 that the target is a military objective. A former Central Intelligence Agency officer, based in Afghanistan during Operation Enduring Freedom 2001, told the New Yorker that tribal chiefs frequently gave incorrect information regarding the involvement of individuals with Al Qaeda.42 Some chiefs were motivated by the opportunity to earn money, while others wanted to have their foes killed.43 It can be gleaned from this information that the United States of America requires its officers to gather “substantial additional evidence”44 in order to cross-check the reliability of the information given by the intelligence sources. The fact that the United States of America gathers “substantial additional evidence”45 in order to check the validity of its intelligence suggests that an attacker should only apply the principle of distinction once the intelligence officers have corroborated the reliability of the information. Although the practice of the United States of America46 appears to set the bar high, its practices did not avert the misidentification of targets. The U.N. Special Rapporteur on Human Rights and Counterterrorism, Ben Emmerson, was so concerned about this fact that he issued

 39

United States Congress, Senate, Committee on Foreign Relations, Afghanistan’s Narco War: Breaking the Link Between Drug Traffickers and Insurgents, 111th Cong., 1st sess., 2009, S. Doc. 11, 29; Guymon, Digest of United States Practice in International Law, 2012, 585. 40 Ibid. 41 Guymon, Digest of United States Practice in International Law, 2012, 585. 42 Jane Mayer, “The Predator War: What are the Risks of the C.I.A.’s Covert Drone Program?” New Yorker, October 26, 2009. 43 Ibid. 44 United States Congress, Senate, Committee on Foreign Relations, Afghanistan’s Narco War: Breaking the Link Between Drug Traffickers and Insurgents, 111th Cong., 1st sess., 2009, S. Doc. 11, 29; Guymon, Digest of United States Practice in International Law, 2012, 585. 45 Ibid. 46 Ibid.

180

Chapter Five

a statement in which he called on the United States of America to end drone strikes on Pakistani territory.47 The statement of Lieutenant Colonel Benjamin Wilde of the British Army provides useful context for why it is so difficult to pin down the degree of doubt which the principle of distinction tolerates. He said, “The critical aspect with targeting is timing, and often the decision will have to be taken to strike or not to strike without all the knowledge. The ramification of causing civilian casualties is something that we take very, very seriously, and is clearly considered in the wider context of the campaign. Often, therefore, the decision not to strike is the more courageous onebut having as much of the information as possible is fundamental.”48

One way of conceptualising how soldiers go about determining whether they attained the requisite degree of certainty is to view them as balancing the factors of available intelligence, the urgency of launching an attack, force security and the civilian harm which will result if the target is misidentified.49 The relevance of these elements may be gleaned from the statement of First Lieutenant Alex Martin, of Kilo Co, 3/1 United States Marine Corps.50 According to him, soldiers have to make decisions “in a split second or a series of seconds. There is a calculus of balancing the safety of marines, the accomplishment of the mission, the threat level of the enemy and collateral damage.”51

Unfortunately, no state has to date explained how forces balance these elements. This means that it is unknown how a soldier who suspects that a woman is a suicide bomber should balance the intelligence obtained by observation about her movements, the urgency of protecting himself or



47 Office of the United Nations High Commissioner for Human Rights, “Statement of the Special Rapporteur Following Meetings in Pakistan,” Office of the United Nations High Commissioner for Human Rights, March 14, 2013. 48 Lieutenant Colonel Benjamin Wilde, e-mail message to the author “Decisionmaking and Targeting,” October 28, 2013. 49 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039. 50 “Frontline,” Rules of Engagement, DVD, directed by Arun Rath and David Fanning (Arlington: PBS, February 19, 2008). 51 Ibid.

Drawing the Line

181

herself and the bystanders, and the harm which will result to the woman in case of a mistaken targeting. A group of experts maintain that the elements of available intelligence, urgency of action, force security and the civilian harm which is likely to occur from an erroneous decision shape what level of certainty an attacker is able to achieve in the circumstances.52 Murphy and Radsan illustrate why these factors may influence what degree of certainty an attacker is able to achieve.53 They argue that, “The soldier on the ground must often make lightning-fast decisions based on inadequate information.”54 On the other hand, “A drone pilot, armed with the latest technology, the best intelligence, and many miles from the enemy, must be more circumspect.55 The pilot’s instructions to kill come through an intense intelligence effort and deliberative process.”56

Murphy and Radsan conclude that the law requires drone operators to attain a greater degree of certainty than soldiers that the target is a military objective before proceeding with the attack.57 There is evidence that, contrary to Murphy and Radsan,58 soldiers will not necessarily find it more difficult to identify targets than drone operators.59 The United Kingdom Joint Service Manual acknowledges that commanders who draw up a list of targets from a distance have more time for making decisions than commanders who are in close proximity to the enemy.60 However, the commanders whose troops are in close proximity to the enemy will find it easier to identify targets.61 The observations of Major General Robert Scales Jr. suggest that visual surveillance of the

 52

Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039. 53 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1225. 54 Ibid. 55 Ibid. 56 Ibid. 57 Ibid., 1226. 58 Ibid., 1225. 59 United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, par. 5.32.2. 60 Ibid. 61 Ibid.

182

Chapter Five

proposed target and auditory awareness of how the events on the battlefield are unfolding improve the ability of the forces to accurately identify the character of targets. Major General Scales Jr. relied on his knowledge of the American experience in international armed conflicts to point out that there is no substitute for visual identification of the target by ground troops, even when a state uses advance technologies such as satellite imagery and drones.62 Of course, as small drones, which weigh only 2.7 kilograms, become available to soldiers,63 they will increase the area of the battlefield which soldiers may keep under observation. Major General Rogers is one of a few scholars who have developed a test for how the urgency of action, force protection and the harm to civilians which will result if the target is misidentified interact.64 The gist of his test is that, as long as the target is sufficiently important, and there is a “real danger” that it could be misidentified, the attacker should assume risk in order to carry out additional verification measures.65 The only exception to this guidance is when an attacker perceives its troops to be in “immediate danger.”66 The rationale for this exception is that, when a force perceives itself to be in “immediate danger,” there is unlikely to be a “real danger”67 that the target will be misidentified. Major General Rogers’s guidance68 regarding what weight the attacker is to give to each of these factors is not comprehensive. The problem is that the test does not reveal at what point an attacker who perceives himself or herself to be in danger should no longer proceed with the attack, due to running a risk of attacking civilians or civilian objects. For instance, the test does not say at what point a soldier may open fire against a woman who is suspected to be a suicide bomber. Neither does the test illuminate how the soldier is to balance the four factors. Therefore, it is necessary to examine state practice in order to establish what relative

 62

Scales Jr., Yellow Smoke: The Future of Land Warfare for America’s Military, 101. 63 Jonathan Franklin, “U.S. Military Using Lightweight Mini-Drones Launched from Battlefield,” Guardian, June 12, 2012, http://www.guardian.co.uk/world/2012/jun/12/us-military-minidrones-battlefield (accessed August 21, 2012). 64 Rogers, “Zero-Casualty Warfare,” 165. 65 Ibid. 66 Ibid. 67 Ibid. 68 Ibid.

Drawing the Line

183

weight attackers place on the four factors in applying the principle of distinction.

2. Investigating the Degree of Certainty Required by the Principle of Distinction Recently, the military and scholarly international humanitarian law community took up the question of what degree of certainty is required by the principle of distinction. A group of experts spent a number of years at the invitation of the International Committee of the Red Cross debating the issue.69 As a result of this work, they adopted the Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law in 2009.70 While the Guidance does not contain a formulation of the degree of certainty the principle of distinction requires,71 it does suggest that, “Obviously, the standard of doubt applicable to targeting decisions cannot be compared to the strict standard of doubt applicable in criminal proceedings, but rather must reflect the level of certainty that can reasonably be achieved in the circumstances.”72

Experts who compiled the Commentary to the Humanitarian Policy and Conflict Research Manual on Air and Missile Warfare similarly indicate that if an attacker believes that an object ordinarily dedicated for civilian purposes is being used for military purposes, there is no need to ascertain “beyond reasonable doubt” that the object is being so used.73 Since the publication of the Guidance, a number of academics have taken up the debate over whether the degree of certainty required by the criminal standard of proof of “beyond reasonable doubt” has any value for making the assessment required by the principle of distinction in international

 69

Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 992. 70 Ibid., 1039. 71 Ibid. 72 Ibid. 73 Program on Humanitarian Policy and Conflict Research, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, ed. Yoram Dinstein (Cambridge: University of Harvard, 2010), 88.

184

Chapter Five

humanitarian law.74 Most, if not all, such scholars to date have a common law background, most notably from the United States of America.75 Murphy and Radsan in a piece published in 2011 propose that the principle of distinction requires the same degree of certainty as the criminal standard of proof of “beyond reasonable doubt.”76 The term “standard of proof” refers to the degree of certainty, which the evidence must generate in the mind of a judge or a jury, in order for a party to court proceedings to convince the court that he or she is entitled to succeed in the case.77  On the other hand, Crandall, a former intelligence officer,78 bases her test on the legal standard applicable in civil cases in the United States of America where criminal conduct is alleged, notably the standard of proof of “clear and convincing” evidence.79 She argues that for drone strikes to be legitimate, individuals should only be attacked, if it is “clear and convincing” that they are taking a direct part in hostilities.80 She believes that this standard provides a guarantee of “due process,” akin to human rights law, and that such an approach will dampen the consequences of the debate of whether international humanitarian law or human rights law regulates the strikes.81 The American evidential standard of “clear and convincing” evidence82 is lower than the standard of proof of “beyond

 74 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1224; Crandall, “Ready...Fire...Aim! A Case for Applying Due Process Principles Before Engaging in Drone Strikes,” 87-88; Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 49. 75 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.targeted Killing,” 1201; Crandall, “Ready...Fire...Aim! A Case for Applying Due Process Principles Before Engaging in Drone Strikes,” 55; Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 3. 76 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1224. 77 Peter Murphy and Richard Glover, Murphy on Evidence, 12th ed. (Oxford: Oxford University Press, 2011), 101. 78 Crandall, “Ready...Fire...Aim! A Case for Applying Due Process Principles Before Engaging in Drone Strikes,” 55. 79 Ibid., 87-88. 80 Ibid., 88. 81 Ibid., 87-88. 82 This particular case was concerned with involuntary commitment to a mental hospital and the evidentiary standard for showing that an individual required hospitalisation. Addington v. Texas 441 U.S. 418, 422-423 (The Supreme Court,

Drawing the Line

185

reasonable doubt.”83 Interestingly, both Murphy and Radsan,84 as well as Crandall,85 believe that both the civil and the criminal evidential standards of proof are valuable for indicating the degree of certainty required by the principle of distinction, because they indicate “a very high level of certainty.” Unfortunately, they do not discuss why the degree of certainty required by the principle of distinction might correspond to either of these two evidential standards of proof. A third scholar, Corn, built upon Murphy and Radsan’s idea.86 Corn suggests that (1) the nature of the proposed target and (2) its location shape whether the applicable standard is indeed “beyond reasonable doubt” or the lower standard.87 The higher “beyond reasonable doubt” standard should apply when the armed forces are targeting individuals who take a direct part in hostilities outside of the zone where military operations are taking place.88 The lower evidentiary burdens apply when (1) the armed forces are operating in areas of active combat, or (2) the forces target what they believe to be military objectives located in areas with “minimal civilian presence.”89 Corn’s test90 is difficult to apply in actual combat. The situation on the battlefield can change paradigm rapidly. Hence, it may not always be as easy to distinguish in practice when the higher and lower standards should apply. This issue will always be pertinent whenever there are multiple standards to be applied, depending on the situation. Another complication is that there is a need to define two standards. Although the two standards are relatively well understood in the United States of America, scholars from other jurisdictions may need to do some background reading in order to acquaint

 United States of America 1979), quoted in Mark Schweizer, “The Civil Standard of Proof – What Is It, Actually?,” Preprints of the Max Planck Institute for Research on Collective Goods 2013/12 July (2013): 2. 83 David L. Schwartz and Christopher B. Seaman, “Standards of Proof in Civil Litigation: An Experiment from Patent Law,” Harvard Journal of Law & Technology 26, no. 2 (2013): 435-436. 84 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1224. 85 Crandall, “Ready...Fire...Aim! A Case for Applying Due Process Principles Before Engaging in Drone Strikes,” 88. 86 Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 35-36. 87 Ibid., 49. 88 Ibid. 89 Ibid. 90 Ibid.

186

Chapter Five

themselves with the American case law. Despite these shortcomings, it is an interesting question, what contribution such evidential standards of proof might make in helping to understand the degree of certainty required by the principle of distinction. In order to lay the groundwork for this analysis, these evidential standards will now be explained.

2.1. Evidential Standards of Proof The first point to make is that the United States of America, United Kingdom and other states that use English law as a foundation for their legal systems also use evidential standards of proof of “beyond reasonable doubt” and “clear and convincing evidence.” However, the use of these evidential standards of proof goes beyond common law jurisdictions.91 For instance, the International Criminal Tribunal for the former Yugoslavia,92 International Criminal Tribunal for Rwanda93 and the International Criminal Court94 applied the standard of proof of “beyond reasonable doubt” in war crimes proceedings. The U.N. Mission, which investigated allegations regarding the possible use of chemical weapons in Syria, applied the “clear and convincing” standard to conclude that Sarin was used on 21 August, 2013, on the outskirts of Damascus.95 On the other hand, the U.N. Human Rights Committee, deciding breaches of the International Covenant on Civil and Political Rights, uses the standard of proof of “the balance of probabilities” for such purposes as finding breaches (sometimes controversially) of international humanitarian law.96

 91

Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (The Hague: Kluwer Law International, 1996), 345-348. 92 Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment, par. 5 (International Criminal Tribunal for the former Yugoslavia December 5, 2003). 93 Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-S, Sentencing Judgment, par. 27 (International Criminal Tribunal for Rwanda November 17, 2009). 94 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICCͲ01/04Ͳ01/06 Trial Chamber I, Hearing to Deliver the Decision Pursuant to Article 76, par. 17 (International Criminal Court July 10, 2012). 95 Secretary-General Ban Ki-Moon, “‘Clear and Convincing’ Evidence of Chemical Weapons Use in Syria, U.N. Team Reports,” news release, September 16, 2013, http://www.un.org/apps/news/story.asp?NewsID=45856.VQ1klfms WWt (accessed September 30, 2013). 96 U.N. Human Rights Council, Report of the International Commission of Inquiry on Libya, par. 6.

Drawing the Line

187

Since the U.N. Human Rights Committee is not a court of law,97 it does not apply the more stringent criminal standard of proof of “beyond reasonable doubt.” The same is true for other missions established to conduct investigations under the auspices of the U.N.  In contrast to common law and some other jurisdictions, Continental legal systems do not have defined thresholds of what degree of persuasion corresponds to particular standards of proof.98 Instead, they require that the facts be sufficiently proven, so as to convince a judge that the requisite legal standard has been fulfilled.99 The judges need not explain what evidence led them to arrive at their conclusion.100 To illustrate, Art. 353 of the French Code of the Criminal Procedure states, “The law...requires them [judges] to question themselves in silence and reflection and to seek in the sincerity of their conscience what impression has been made on their reason by the evidence brought against the accused

 97

Ibid., par. 3. Art. 342 Code d’Instruction Criminelle (Criminal Code), Publication 27-111808, Dossier No. 1808-11-17/20 (Belgium 1878), Par. 286 Zivilprozessordnung I 1 (Civil Procedure Statute), Bundesgestzblatt, Teil I 3202 (Germany December 5, 2005), Art. 741 Ley de Enjuiciamiento Criminal (Criminal Procedure Statute), Gazette (Spain September 14, 1882), quoted in Eric Gippini-Fournier, “The Elusive Standard of Proof in E.U. Competition Cases” (presentation, The 14th Annual E.U. Competition Law and Policy Workshop, Robert Schuman Centre for Advanced Studies, Florence, June 19-20, 2009), 3-4 n. 14. See also Sarah J. Summers and John D. Jackson, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge: Cambridge University Press, 2012), 69-70. 99 Art. 353 Code d’Instruction Criminelle (Criminal Code), Law n° 2000-516, Article 1 Official Journal, June 16, 2000 (France June 16, 2000); Art. 342 Code d’Instruction Criminelle (Criminal Code), Publication 27-11-1808, Dossier No. 1808-11-17/20 (Belgium 1878), Par. 286 Zivilprozessordnung I 1 (Civil Procedure Statute), Bundesgestzblatt, Teil I 3202 (Germany December 5, 2005), Art. 741 Ley de Enjuiciamiento Criminal (Criminal Procedure Statute), Gazette (Spain September 14, 1882). 100 Art. 353 Code d’Instruction Criminelle (Criminal Code), Law n° 2000-516, Article 1 Official Journal, June 16, 2000 (France June 16, 2000). Other civil law jurisdictions use a similar evidentiary standard. See Art. 342 Code d’Instruction Criminelle (Criminal Code), Publication 27-11-1808, Dossier No. 1808-11-17/20 (Belgium 1878), Par. 286 Zivilprozessordnung I 1 (Civil Procedure Statute), Bundesgestzblatt, Teil I 3202 (Germany December 5, 2005), Art. 741 Ley de Enjuiciamiento Criminal (Criminal Procedure Statute), Gazette (Spain September 14, 1882). 98

188

Chapter Five and the arguments of his [or her] defence. The law asks them but this single question, which encloses the full scope of their duties: are you inwardly convinced?”101

This evidentiary standard applies to both criminal and civil proceedings.102 Meanwhile, in Sharia law, the standard of proof differs from one subject to another.103 It prescribes how many witnesses should be presented, depending on the type of violation of the law.104 What seems to unite the standards of proof in Sharia law is that they prescribe how many witnesses are required for the standard of proof to be discharged.105 Thus, Sharia law has no definitions of thresholds which prescribe what degrees of persuasion correspond to various standards of proof. Since the Continental legal system and Sharia law do not prescribe what degrees of certainty correspond to various degrees of being convinced, it is perhaps unsurprising that scholars have to date concentrated on analysing the value of drawing parallels between the common law evidentiary standards of proof and the principle of distinction.

2.2. The Issue of the Linkage between Standards of Proof and their Context International humanitarian law is concerned with decision-makers gathering intelligence before an attack in order to discharge their obligation to distinguish between lawful and unlawful targets. In contrast, evidential standards of proof are concerned with prosecutors and counsel

 101

Art. 353 Code d’Instruction Criminelle (Criminal Code), Law n° 2000-516, Article 1 Official Journal, June 16, 2000 (France June 16, 2000). 102 Par. 286(1) Zivilprozessordnung I 1 (Civil Procedure Statute), Bundesgestzblatt, Teil I 3202 (Germany December 5, 2005); Par. 261 Strafprozessordnung (Code of Criminal Procedure), Bundesgestzblatt, Teil I 2149, 31 October 2008 (Germany April 7, 1987), quoted in Christoph Engel, “Preponderance of the Evidence Versus Intime Conviction: A Behavioral Perspective on a Conflict between American and Continental European Law” Vermont Law Review 33 (2009):435; Schweizer, “The Civil Standard of Proof – What Is It, Actually?,” 4. 103 Honourable Justice Umar Faruk Abdullahi, “Inter Relations between Common Law and Sharia Law” (presentation, The International Society for the Reform of Criminal Law, Vancouver, June 22-26, 2007), 11. 104 Maulana Muhammad Ali, English Translation of the Holy Qur'an: With Explanatory Notes, ed. Zahid Aziz (Wembley: Ahmadiyya Anjuman Lahore Publications, 2010), chap. 2 verse 292, Surat Al-Nur verse 4, quoted in Ibid., 14. 105 Ibid.

Drawing the Line

189

adducing sufficient evidence after the event to prove that a certain set of facts are more likely to have occurred than another set of facts.106 Consequently, evidential standards of proof set out the degree of persuasion that a party to the proceedings must meet in order for a judge or jury to deliver a judgment in their favour.107 Although the principle of distinction and the various standards of proof are concerned with degrees of persuasion, the two legal rules have very different functions. The principle of distinction is concerned with instructing commanders to distinguish between lawful and unlawful targets. The principle of distinction as such does not impose criminal liability on commanders for failing to discharge this duty, and there are separate norms which prescribe what conduct amounts to the commission of a war crime. On the other hand, the standards of proof have as their function to ensure that court decision-makers apply a fair procedure for determining which of the submissions made by the parties to the proceedings has greater weight.108 Through applying standards of proof to evaluate the credibility of available evidence, court decision-makers determine whether individuals should be held criminally responsible or should receive a ruling in their favour.109 Therefore, the standard of proof of “beyond reasonable doubt” is a tool used in the courtroom for determining whether an individual is guilty and should thus be convicted. Somewhat surprisingly, Radsan and Murphy do not address how it is possible to use a legal doctrine in international humanitarian law, which is concerned with evidence (and with imposition of liability) in a criminal law context.110 Instead, they merely note that: “Those who believe that this reasonable doubt standard carries too much baggage from criminal law or that it inappropriately mixes criminal justice



106 Ariel Porat and Alex Stein, Tort Liability Under Uncertainty (Oxford: Oxford University Press, 2001), 44-45; Peter Murphy and Richard Glover, Murphy on Evidence, 12th ed. (Oxford: Oxford University Press, 2011), 71. 107 Porat and Stein, Tort Liability Under Uncertainty, 44-45; Murphy and Glover, Murphy on Evidence, 71. 108 Porat and Stein, Tort Liability Under Uncertainty, 17; Murphy and Glover, Murphy on Evidence, 71. 109 Murphy and Glover, Murphy on Evidence, 101-102. 110 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1224.

190

Chapter Five with war should substitute some other label for a very high level of certainty.”111

What the authors appear to be saying is that they wish to use the label as opposed to transposing the standard wholesale into the international humanitarian law context.112 They view the context, which shaped the stringent formulation of the standard of proof of “beyond reasonable doubt,” as immaterial.113 Yet, it is not clear that they wish only to use the label. The very high standard of certainty, which is required by this standard of proof, reflects the aims of criminal law. The goals of criminal law have exerted a fundamental influence on the formulation of the standard of proof of “beyond reasonable doubt.”114 The standard is steeped in theory about justice and the goal of criminal law to deter the commission of crimes.115 The standard of proof of “beyond reasonable doubt” reflects the consideration of how many innocent persons could be convicted, and how many guilty persons could be set free on the application of this evidentiary standard.116 Notwithstanding the fact that the standard of proof of “beyond reasonable doubt” was formulated to achieve particular goals, it is possible to decouple this standard from its criminal law elements. It is how the standard of proof of “beyond reasonable doubt” is employed that determines whether these underpinnings have significance. It is one thing to debate what degree of persuasion justifies depriving a person of liberty, life, or property. It is a different discussion altogether what degree of certainty a particular standard of proof requires, and what degrees of certitude exceed or entail lesser degrees of persuasion. Consequently, Radsan and Murphy make a valid argument when they say that the value of the standard of proof of “beyond reasonable doubt” for international humanitarian law lies in its expression of a high degree of certainty.117

 111

Ibid. Ibid. 113 Ibid. 114 William Blackstone, Commentaries on the Laws of England, Vol. 4. (Oxford: Clarendon Press, 1766), 358; Alexander Volokh, “n Guilty Men,” University of Pennsylvania Law Review 146 (1997): 173-174. 115 Terry Anderson and Thomas Gardner, Criminal Law, 12th ed. (Stamford: Cengage Learning, 2014), 9. 116 Blackstone, Commentaries on the Laws of England, 358; Volokh, “n Guilty Men,” 173-174. 117 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1224. 112

Drawing the Line

191

Some commentators may question whether the employment of an evidentiary standard of proof is appropriate as an analytical tool, given the fact that the environment in which court decision-makers and parties to an armed conflict deliberate differs. Unlike the jury, which has ample time for deliberation,118 troops are frequently under pressures of time when reaching decisions.119 They need to assess what intelligence to gather, from what sources and using what resources.120 They use this information to paint a picture of what is currently happening on the battlefield, or will likely happen at a future point in time. Subsequently, they assess what degree of certainty they have regarding the character of the target. Thus, unlike the jury at trial, the forces are likely to have less time and fewer sources of information available to them when making decisions.121 Do these differences bear on the value of the standards of proof for drawing parallels with decision-making in international humanitarian law? These differences are not material. This is because they relate to the procedure through which the decision-makers obtain the information, and on whether they make judgment regarding the existence of a factual situation before or after a particular event took place. The judges, jury,122 commanders and soldiers reflect on the facts before them, in order to conclude how certain they are regarding the existence of a particular set of facts. Radsan and Murphy, writing from the international humanitarian law perspective, draw another parallel between the standard of proof of “beyond reasonable doubt” and the principle of distinction.123 Both rules require the decision-maker to have a close degree of certitude before

 118

David C. Brody and James R. Acker, Criminal Law, 2nd ed. (London: Jones and Bartlett Publishers International, 2010), 18; The Ministry of Justice, Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures (London: The Crown, 2011), 112 par. 4.39. 119 Lieutenant Colonel Benjamin Wilde, e-mail message to the author “Decisionmaking and Targeting,” October 28, 2013. 120 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 29. 121 Lieutenant Colonel Benjamin Wilde, e-mail message to the author “Decisionmaking and Targeting,” October 28, 2013. 122 Yimoon Choi, “Jurors’ Subjective Certainty and Standards of Proof: The Role of Emotion and Severity of Charge in Subjective Probability Judgment” (PhD dissertation, University of Nebraska, 2013), 6. 123 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1224.

192

Chapter Five

acting.124 The two rules are thus concerned with degrees of certitude, which lie in between absolute certainty and a lesser degree of certainty.125 The reason why the drafters in criminal law and in international humanitarian law do not require absolute certainty is because decisionmakers are unable to attain complete certainty in life in general,126 and on the battlefield in particular.127 As regards the process of deliberation, the prosecutor and counsel present each piece of evidence in trial as having a particular weight.128 Some pieces of evidence will carry more weight than others in proving a certain point: for example, because they come from a particularly reliable source, or are independently corroborated by other sources. Members of the armed forces also have to determine the value of the intelligence based on its source, on whether there is other intelligence that corroborates it and on how recently they obtained the information.129 Since courtroom factfinders and military decision-makers are likely to have incomplete information, they will weigh the likelihood of each fact being reliable given the information which is also missing.130 More broadly, the members of the armed forces and fact-finders in court deliberate as they would in “one of the graver and more important transactions of life.”131 The deprivation of life and the deprivation of liberty are at least equally serious.

 124

Ibid. R v. Alan Edwards Stephens, [2002] E.W.C.A. Crim. 1529, par. 14-15 (The Court of Appeal, Criminal Division, United Kingdom); Choi, “Jurors’ Subjective Certainty and Standards of Proof: The Role of Emotion and Severity of Charge in Subjective Probability Judgment,” 9. 126 Henry Walters (Appellant) v. The Queen, [1969] 2 W.L.R. 60, 28 (The Privy Council, United Kingdom). 127 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039; von Clausewitz, Principles of War, 51. 128 Porat and Stein, Tort Liability Under Uncertainty, 44. 129 Lieutenant Colonel Eric W. Widmar, e-mail message to the author “The Rules of Targeting,” October 22, 2013; Guymon, Digest of United States Practice in International Law, 2012, 589. 130 Porat and Stein, Tort Liability Under Uncertainty, 44. 131 Victor v. Nebraska 511 U.S. 1, 5 (The Supreme Court, United States of America 1994), quoted in John M. Scheb and John M. II Scheb, Criminal Law and Procedure, 8th ed. (Belmont: Wadsworth Publishing Company, 2013), 617. 125

Drawing the Line

193

For the purposes of the analysis at hand, the degree of certainty expressed in the notion of “beyond reasonable doubt” will simply be used to compare different degrees of certitude and will serve as a mere reference point to analyse state practice relating to the principle of distinction. At no stage, therefore, will it be proposed that the principle of distinction be redefined in terms of the standard of proof of “beyond reasonable doubt.”

2.3. The “Beyond Reasonable Doubt” Standard Radsan and Murphy132 among others133 use the American definition of the standard of proof of “beyond reasonable doubt” in their discussion of the principle of distinction.134 In the case of Victor v. Nebraska the United States Supreme Court held the starting point to be that the Constitution does not require that any particular form of words be used when instructing the jury how to apply the standard of proof of “beyond reasonable doubt,” thereby giving discretion to judges.135 However, the Court regarded the following definition as acceptable: “Reasonable doubt is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his [or her] guilt that is reasonable. A reasonable doubt is an actual and substantial doubt arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the state, as distinguished from a doubt

 132

Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1201. 133 Crandall, “Ready...Fire...Aim! A Case for Applying Due Process Principles Before Engaging in Drone Strikes,” 87-88; Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 49. 134 Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A.Targeted Killing,” 1201. 135 Victor v. Nebraska 511 U.S. 1, 5 (The Supreme Court, United States of America 1994).

194

Chapter Five arising from mere possibility, from bare imagination, or from fanciful conjecture.”136

Further meaning might be found by analysing the English approach to the same concept. Since the United States of America inherited its common law doctrine from the United Kingdom, the requisite doctrinal formulations are very similar.137 Quite straightforwardly, Judge Keene held in the case of R. v. Alan Edwards Stephens that the standard of proof of “beyond reasonable doubt” requires the jury to be “sure” that the accused is guilty, but does not require that the jury be “certain” of guilt.138 If the jury has “reasonable doubt” whether the accused is guilty, they cannot conclude that the accused is guilty.139 A decision-maker may discount possibilities that point to the accused not being guilty if the evidence “supports possible but very unlikely scenarios.”140 Thus, the jury may disregard possibilities that can be said to be “fanciful” and “whimsical.”141 By contrast, possibilities that are “realistic” can form the basis of a “reasonable doubt” and so should be included in the deliberations.142 According to this approach, a military decision-maker should abstain from launching an attack, if, under the circumstances, a “reasonable” commander would have had a “reasonable doubt” that the target was a civilian object. A “reasonable” commander would be entitled to proceed with the attack if it was a possible but very unlikely eventuality that the target was a civilian object. Although the Anglo-Saxon standard of proof of “beyond reasonable doubt” points to gradations of doubt,143 unlike its continental

 136

Ibid., 18, 22. Graham Hughes, “Common Law Systems,” in Fundamentals of American Law, ed. Alan B. Morrison (New York: Oxford University Press, 1996), 12. 138 R v. Alan Edwards Stephens [2002] E.W.C.A. Crim. 1529, par. 14 (The Court of Appeal, Criminal Division, United Kingdom). 139 Regina v. Abdul Majid [2009] E.W.C.A. Crim. 2563, par. 12 (The Court of Appeal, Criminal Division, United Kingdom); Criminal Policy Group Justice For All Team, Justice for All-Whitepaper (Colegate: The Stationery Office Limited, 2002), 69 par. 4.5. 140 Regina v. Abdul Majid [2009] E.W.C.A. Crim. 2563, par. 12 (The Court of Appeal, Criminal Division, United Kingdom). 141 Ibid. 142 Ibid. 143 Victor v. Nebraska 511 U.S. 1, 5 (The Supreme Court, United States of America 1994). 137

Drawing the Line

195

counterpart,144 it is likely that the judges apply the two standards of proof in a very similar way. The French standard of being “inwardly convinced”145 of the facts is very close to the American standard of having “an abiding conviction, to a moral certainty.”146 The judges in continental jurisdictions and the jury in the United States of America carefully weigh the facts, because falsely convicting an individual has grave consequences. There are also similarities between how court decision-makers deliberate in civil and common law countries and in countries that use Sharia law. The purpose of prescribing the number of witnesses who should testify for the standard of proof to be discharged in the Sharia law147 is to enable the judges to reach a conclusion that they are convinced of a particular fact. Inevitably, the court decision-makers in all countries reflect on the strength of the arguments, and how convincing the facts have to be to discharge the standard of proof. This is not to say that the standards of proof used in these jurisdictions are identical. For instance, the President of the Nigerian Court of Appeal believes that the Sharia standard of proof is higher than the Anglo-Saxon standard of proof of “beyond reasonable doubt.”148 For present purposes, this need not be addressed in detail, because the study at hand is confined to assessing the value of the standard of proof of “beyond reasonable doubt” for analysing the principle of distinction. The real controversy is whether it is appropriate to use a criminal standard of proof to draw parallels with a rule of international humanitarian law.

2.4. “Beyond Reasonable Doubt” Standard v. State Practice In order to test the value of the standard of proof of “beyond reasonable doubt,” the degree of certainty this standard of proof requires will be compared to the practice of states in relation to the application of the principle of distinction. The starting point will be to explore how the standard of proof of “beyond reasonable doubt” might apply to the

 144

Summers and Jackson, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions, 69-70. 145 Art. 353 Code d’Instruction Criminelle (Criminal Code), Law n° 2000-516, Article 1 Official Journal, June 16, 2000 (France June 16, 2000). 146 Victor v. Nebraska 511 U.S. 1, 18, 22 (The Supreme Court, United States of America 1994). 147 Abdullahi, “Inter Relations between Common Law and Sharia Law,” 11-12. 148 Ibid., 9.

196

Chapter Five

Ameriyya incident, and then consider the state practice of NATO and Israel. A. Ameriyya Air Raid Shelter Incident The Ameriyya incident149 is a good case study because it is generally undisputed that the attack was lawful, despite the fact that it transpired after the attack that civilians had sheltered in the building at night time.150 On this occasion, the commander was entitled to assume that a civilian shelter had been converted into a command and control bunker,151 even though it continued to display an air raid shelter sign.152 The building had barbed wire around it, with its roof painted in camouflage and the United States of America had intercepted military communications from the building.153 The potential use of the building by civilians as a shelter could be described using the words of Judge Moses as a “possible but very unlikely scenario.”154 A reasonable person in the circumstances of the American commander155 would have concluded that it was “very unlikely” that the Iraqi forces would treat a command and control bunker as a safe place to which to invite civilians to shelter. Although the bunker was camouflaged,156 command and control centres are high-value targets, which parties to the conflict actively seek to locate through various

 149

Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 128. 150 For the position of the United States of America see: United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, Appendix O 615-616; Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2010), 259; Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 97. 151 Ibid. 152 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 129. 153 Ibid., 134-136; United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 615. 154 Regina v. Abdul Majid [2009] E.W.C.A. Crim. 2563, par. 12 (The Court of Appeal, Criminal Division, United Kingdom). 155 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4 par. 25-27. 156 Unites States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 615.

Drawing the Line

197

means.157 When it is a “possible but very unlikely scenario” that a particular fact is true, the jury may not conclude that they have a “reasonable doubt” regarding the guilt of the accused.158 Accordingly, the application of the standard of proof of “beyond reasonable doubt” is congruent with the conclusion reached by the United States of America that it was lawful to deem the building a military objective. The case study suggests that when commanders consider it a “possible but unlikely scenario” that a target is a civilian object, they may proceed with the attack. B. NATO’s Conduct in Libya According to Peter Olson, a legal advisor at NATO, during Operation Unified Protector 2011, NATO forces aimed to avoid causing “any harm” to civilians.159 On 4 August, 2011, NATO attacked what it believed to be a military command and control facility west of Zlitan, having assessed that it was “highly unlikely” that there were civilians in that cluster of buildings.160 It was revealed after the attack that a teacher, and not Libyan commanders, inhabited one of the buildings that had been targeted.161 NATO in this particular armed conflict said that it applied more rigorous restrictions than required by international humanitarian law.162 The degree of certainty NATO required attackers to have that there were no civilians in the targeted building surely does not exceed the degree of certainty required by the principle of distinction. Since the principle of distinction imposes an unqualified obligation,163 there is no room for making an existing legal obligation stricter. There is a parallel between the standard of proof of “beyond reasonable doubt” and the NATO state practice. Under the standard of proof of

 157

According to Charles Heyman, a former British officer, command and control targets as well as communications centers are “high-value” targets. Gregory Katz and Albert Aji, “Syria Intervention? Momentum Builds For Western Military Action,” Huffington Post, August 27, 2013, http://www.huffingtonpost.com/2013/08/27/syria-intervention_n_3825104.html (accessed September 20, 2013). 158 Regina v. Abdul Majid [2009] E.W.C.A. Crim. 2563, par. 12 (The Court of Appeal, Criminal Division, United Kingdom). 159 Peter Olson to Judge Kirsch, OLA(2012)006, January 23, 2012, 3. 160 Ibid., 8. 161 U.N. Human Rights Council, Report of the International Commission of Inquiry on Libya, 166 par. 629. 162 Peter Olson to Judge Kirsch, OLA(2012)006, January 23, 2012, 2. 163 Art. 48 API 1977.

198

Chapter Five

“beyond reasonable doubt,” a jury is entitled to exclude “possible but very unlikely scenarios”164 when delivering a verdict of guilty. NATO instructed their forces that they could proceed with an attack if it was “highly unlikely” that there were civilians present.165 The terms “very unlikely” and “highly unlikely” correspond to either a similar or a very close degree of certainty. This is because the words “very”166 and “highly”167 are both used to emphasise that an adjective or an adverb has a large degree of a particular quality, in this case certainty. This suggests that the standard of proof of “beyond reasonable doubt” and the principle of distinction require either a very similar or the same degree of certainty. C. Israel’s Standard of Certainty The state practice of Israel provides another interesting comparator for the standard of proof of “beyond reasonable doubt.”According to Israel, it acts on intelligence that is “concrete,” “precise” and indicates “convincingly” that the target is a military objective.168 As with the standard of proof of “beyond reasonable doubt,” the Israeli practice spells out what degree of confidence a party should have in its intelligence. Support for this argument is gleaned from the fact that the term “precise”169 connotes that

 164 Regina v. Abdul Majid [2009] E.W.C.A. Crim. 2563, par. 12 (The Court of Appeal, Criminal Division, United Kingdom). 165 Peter Olson to Judge Kirsch, OLA(2012)006, January 23, 2012, 8. 166 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Very” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/very_1?q=very (accessed September 1, 2013). 167 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Highly” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/highly_1?q=highly (accessed September 1, 2013). 168 Israel Defence Forces, “I.D.F. Carries Out Widespread Attack on Gaza Terror Sites,” Israel Defence Forces, November 16, 2012, http://www.idf.il/1283-17570EN/Dover.aspx (accessed December 4, 2012); Israel Ministry of Foreign Affairs, Conclusion of Investigations into Central Claims and Issues in Operation Cast Lead Part 2, (Jerusalem: Israel Ministry of Foreign Affairs, April 22, 2009); Israel Defence Forces, “I.D.F. Begins Widespread Campaign on Terror Targets in the Gaza Strip,” Israel Defence Forces, November 14, 2012, http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-on-terror-sitesin-the-gaza-strip (accessed December 4, 2012). 169 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Precise” (by Cambridge University Press),

Drawing the Line

199

information should be “exact and accurate,” while the term “convincingly”170 indicates that intelligence should be of such quality as to induce a belief that the target is a military objective. On first impression, it may be that the Israeli test of “concrete,” “precise” and “convincing” intelligence171 is as stringent as the standard of proof of “beyond reasonable doubt.” Israel’s requirement that intelligence indicate “convincingly” that the target is a military objective172 is similar to the prerequisite formulated by the United States Supreme Court in the criminal law case of Victor v. Nebraska173 that the jury have an “abiding conviction, to a moral certainty,” that the accused is guilty. On the other hand, it could equally be argued that the Israeli practice requires the decision-maker to have the same degree of certainty as the American civil standard of proof of “clear and convincing” evidence. This is because the Israeli term “concrete” refers to information that is “clear and certain,”174 while the Kansas Supreme Court interprets the term “clear” as requiring evidence that is “certain and unambiguous.”175

 http://dictionary.cambridge.org/dictionary/british/precise_1?q=precise (accessed September 1, 2013). 170 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Convincing” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/convincing?q=convincing (accessed September 1, 2013). 171 Israel Defence Forces, “I.D.F. Carries Out Widespread Attack on Gaza Terror Sites,” Israel Defence Forces, November 16, 2012, http://www.idf.il/1283-17570EN/Dover.aspx (accessed December 4, 2012); Israel Ministry of Foreign Affairs, Conclusion of Investigations into Central Claims and Issues in Operation Cast Lead Part 2 (Jerusalem: Israel Ministry of Foreign Affairs, April 22, 2009); Israel Defence Forces, “I.D.F. Begins Widespread Campaign on Terror Targets in the Gaza Strip,” Israel Defence Forces, November 14, 2012, http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-on-terror-sitesin-the-gaza-strip (accessed December 4, 2012). 172 Israel Ministry of Foreign Affairs, Conclusion of Investigations into Central Claims and Issues in Operation Cast Lead Part 2 (Jerusalem: Israel Ministry of Foreign Affairs, April 22, 2009). 173 Victor v. Nebraska 511 U.S. 1, 18, 22 (The Supreme Court, United States of America 1994). 174 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Concrete” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/concrete_3 (accessed January 5, 2014). 175 In the Interest of B.D.-Y. 187 P.3d. 594, 599 (The Kansas Supreme Court, United States of America 2008), quoted in Corn, “Targeting, Command Judgment,

200

Chapter Five

Furthermore, the Israeli requirement that intelligence indicate “convincingly” that the target is a military objective is very similar to the requirement articulated by the Kansas Supreme Court that the evidence be sufficiently persuasive to induce a particular belief.176 Both Israel and the Kansas Supreme Court require the decision-maker to use reliable information that is capable of inducing a belief that a particular situation exists. Accordingly, it is unclear whether the Israeli state practice is more congruent with the standard of proof of “beyond reasonable doubt,” or with the “clear and convincing standard.” To resolve this conundrum, it is valuable to study how individuals understand words used in evidentiary standards that require decisionmakers to achieve a slightly lower degree of confidence than the standard of proof of “beyond reasonable doubt.” A comparison of legal terms that are very close to the “beyond reasonable doubt” standard may help to locate the Israeli practice in relation to the standard of proof of “beyond reasonable doubt.”Although this exercise does not represent international humanitarian law state practice, it is nevertheless useful because it debates language differences. Competition law is concerned with the intervention by the government into market processes, in order to ensure that there is competition between companies in the markets.177 It prohibits mergers between companies that would result in a single company dominating the market.178 The European Court of Justice in the case of Tetra Laval II explained how it assesses whether the European Commission made a correct finding that a company merger was lawful.179 It held that the European Commission has to show that the evidence on which it relied in reaching a decision was “factually accurate, reliable and consistent.”180

 and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 31. 176 Ibid. 177 Art. 102 Treaty on the Functioning of the European Union, [2012] O.J. C326/47 (2012); Angus MacCulloch and Barry J. Rodger, Competition Law and Policy in the E.C. and U.K., 4th ed. (London: Routledge Cavendish, 2008), 1-2. 178 European Commission Regulation (E.C.) 1033/2008 on the Control of Concentrations Between Undertakings, Official Journal L279/3 (2008); MacCulloch and Rodger, Competition Law and Policy in the E.C. and U.K., 3. 179 Commission v. Tetra Laval (“Tetra Laval II”), Case C-12/03 P, ECR I-1113, Judgment, par. 45 (European Court of Justice February 15, 2005), quoted in Matteo F. Bay and Javier Ruiz Calzado, “Tetra Laval II: The Coming of Age of the Judicial Review of Merger Decisions,” World Competition 28, no. 4 (2005): 438. 180 Commission v. Tetra Laval (“Tetra Laval II”), Case C-12/03 P, ECR I-1113, Judgment, par. 39 (European Court of Justice February 15, 2005).

Drawing the Line

201

Moreover, the evidence should contain “all the [background] information which must be taken into account in order to assess a complex situation [of the impact of the merger on other businesses]” and be “capable of substantiating the conclusions drawn from it.”181 A team of researchers from the United Kingdom and Australia carried out an empirical study into how legal professionals and law students understand the standards of proof used in competition law and the standard of proof of “beyond reasonable doubt.”182 For the study, they used competition law practitioners from different jurisdictions183 and students without legal training.184 The subjects read different factual scenarios and answered how many pieces of evidence, indicated by signals, they would require before particular formulations of standards of proof can be fulfilled.185 The evidence the subjects had to consider was represented by signals in order to replicate the fact that in court hearings each piece of evidence may have different weight.186 Specifically, the subjects “were told that any one signal would give the incorrect answer one-third of the time and the correct answer two-thirds of the time.”187 The research team chose subjects who exhibited conservative beliefs.188 They assumed that a particular merger was harmless unless they had sufficient evidence to reject that hypothesis.189 The research team found that the subjects perceived the standard of proof of “factually accurate, reliable and consistent” to be “almost as high” as the standard of proof of “beyond reasonable doubt,” despite the fact that it was formulated for civil cases.190 The fact that the findings were replicated for students with no legal training as well as lawyers191 strengthens the conclusions drawn by this study. The standard of proof used in European competition law can be compared with Israeli state practice. In turn, this

 181

Ibid. Bruce Lyons, Gordon Douglas Menzies, and Daniel John Zizzo, “Professional Interpretation of the Standard of Proof: An Experimental Test on Merger Regulation,” CCP Working Paper No. 10-2 (2009): 4-5, 8-10. 183 Ibid., 8. 184 Ibid., 4. 185 Ibid., 9-10. 186 Ibid., 9. 187 Ibid. 188 Ibid., 4. 189 Ibid. 190 Ibid., 20. 191 Ibid., 4-5. 182

202

Chapter Five

comparison can help determine whether the Israeli standard is in fact a lower standard than that of the standard of proof of “beyond reasonable doubt.” Israel’s requirement192 that information be “precise” imposes a higher threshold than the requirement of the European Court of Justice193 that the information be “factually accurate.”194 While the term “precise” connotes that information be both “accurate” and “exact,”195 the term “factually accurate” only incorporates the quality of being “accurate.” The term “exact”196 imposes an additional condition that the information be “complete” and provide “great detail.” The next step is to compare the term “concrete” information197 that Israel uses and the term “reliable”198 that the European Court of Justice uses. It is arguably more onerous to produce information that is “concrete” (a term used by Israel)199 than information that is “reliable” (the term used by the European Court of

 192

Israel Defence Forces, “I.D.F. Begins Widespread Campaign on Terror Targets in the Gaza Strip,” Israel Defence Forces, November 14, 2012, http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-on-terror-sitesin-the-gaza-strip (accessed December 4, 2012); Israel Defence Forces, “I.D.F. Carries Out Widespread Attack on Gaza Terror Sites,” Israel Defence Forces, November 16, 2012, http://www.idf.il/1283-17570-EN/Dover.aspx (accessed December 4, 2012). 193 Commission v. Tetra Laval (“Tetra Laval II”), Case C-12/03 P, ECR I-1113, Judgment, par. 39 (European Court of Justice February 15, 2005). 194 Ibid. 195 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Precise” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/precise_1?q=precise (accessed January 5, 2014). 196 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Exact” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/exact_1?q=exact (accessed January 5, 2014). 197 Israel Defence Forces, “I.D.F. Begins Widespread Campaign on Terror Targets in the Gaza Strip,” Israel Defence Forces, November 14, 2012, http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-on-terror-sitesin-the-gaza-strip (accessed December 4, 2012). 198 Commission v. Tetra Laval (“Tetra Laval II”), Case C-12/03 P, ECR I-1113, Judgment, par. 45 (European Court of Justice February 15, 2005). 199 Israel Defence Forces, “I.D.F. Begins Widespread Campaign on Terror Targets in the Gaza Strip,” Israel Defence Forces, November 14, 2012, http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-on-terror-sitesin-the-gaza-strip (accessed December 4, 2012).

Drawing the Line

203

Justice).200 Since the term “concrete” refers to information that is “clear and certain,”201 this term requires that information produce a greater degree of certainty than information which can merely be described as trustworthy. On the other hand, the requirement of the European Court of Justice that evidence be “consistent”202 is congruent with Israel’s requirement203 that information indicate “convincingly” that the target is a military objective. This is because when there is intelligence from different sources that corroborate each other, a commander may form a belief that the target is a military objective. This discussion shows that Israel does indeed require a greater degree of certainty than the standard for competition law. The fact that the standard of proof in European competition law is “almost as high” as the standard of proof of “beyond reasonable doubt”204 suggests that the Israeli state practice sets a comparable certainty threshold to that of the standard of proof of “beyond reasonable doubt.” D. Cumulative Analysis of State Practice The analysis of the state practice of the United States of America, NATO and Israel suggests that there is some support in international humanitarian law that the principle of distinction requires a degree of certainty that is comparable to that articulated by the standard of proof of “beyond reasonable doubt.” The analysis, moreover, shows that the opinions of Murphy and Radsan, on the one hand, and those of other scholars, on the other hand, could in fact be very close. The Israeli state practice could be interpreted using Crandall’s “clear and convincing” standard, but in fact requires commanders to have a degree of certainty slightly higher than that envisaged by Crandall. Furthermore, since the principle of distinction

 200

Commission v. Tetra Laval (“Tetra Laval II”), Case C-12/03 P, ECR I-1113, Judgment, par. 45 (European Court of Justice February 15, 2005). 201 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Concrete” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/concrete_3 (accessed January 5, 2014). 202 Commission v. Tetra Laval (“Tetra Laval II”), Case C-12/03 P, ECR I-1113, Judgment, par. 39 (European Court of Justice February 15, 2005). 203 Israel Ministry of Foreign Affairs, Conclusion of Investigations into Central Claims and Issues in Operation Cast Lead Part 2 (Jerusalem: Israel Ministry of Foreign Affairs, April 22, 2009). 204 Lyons, Menzies, and Zizzo, “Professional Interpretation of the Standard of Proof: An Experimental Test on Merger Regulation,” 20.

204

Chapter Five

imposes strict obligations, it is likely that the experts, whose opinions are summarised in the report produced by the International Committee of the Red Cross, would agree that the attackers should use information that is accurate, reliable and corroborated by multiple sources (an equivalent to the European Court of Justice’s test). And if that is the case, then the certainty threshold they have in mind is almost as high as the standard of proof of “beyond reasonable doubt.” Although Crandall, Murphy, Radsan and other scholars make varying propositions for capturing the degree of certainty required by the principle of distinction, these standards are in fact very close to one another.

2.5. The Value of the “Beyond Reasonable Doubt” Standard for International Humanitarian Law The value of the standard of proof of “beyond reasonable doubt” for international humanitarian law, in particular its definition of possibilities that a decision-maker may disregard, may be tested using a case study. The case study of decapitation strikes is an appropriate choice, because there is disagreement regarding whether it was lawful for the United States of America to launch particular decapitation strikes during Operation Iraqi Freedom 2003. A step-by-step analysis will help to reconstruct the possible deliberations of the commander. One of the leading figures in the United States armed forces, Major General Stanley McChrystal, told the Boston Globe that the American military had a period of only forty-five minutes from the moment its armed forces had intercepted the Thuraya mobile telephones, or received information from informants that a leader may have entered a particular building, to the point of target engagement.205 An American official told Time Magazine that this forty-five minute time span included approximately twelve minutes for the aircraft to fly to the target.206 The fact that none of the fifty decapitation strikes was successful207 suggests that it is unlikely that the United States of America continually had their intended target in sight. The commanders must have relied purely on intelligence.

 205

John Donnelly, “War in Iraq/Targeting the Leadership; After Airstrike, U.S. Seeks Clues on Fate of Hussein and Sons,” Boston Globe, April 9, 2003, A21. 206 Mark Thompson and Timothy J. Burger, “How to Attack a Dictator, Part II,” Time, April 21, 2003. 207 Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 23.

Drawing the Line

205

Jeh Johnson, General Counsel of the Department of Defense, explains that, in order to ensure that they are using sound intelligence, commanders assesses whether they may have held particular assumptions in deciding to gather information of a particular type.208 Since American commanders critically examine assumptions they might hold, the commanders who authorised the decapitation strikes must have questioned the likelihood of the leader leaving the building before the forty-five minute window expired. The commander surely anticipated this possibility, because it is known that, by frequently changing their locations, individuals mitigate the risk of being detected by the adversary.209 Another relevant factor is that individuals may amend their plans as the situation evolves. As regards information provided by the informants, they could have known the location of the meeting, or the whereabouts of the leader in question. However, it would have been difficult for them to say with certainty how long the meeting was likely to last. This background information suggests that the American forces must have regarded it as a “possible” and “realistic” scenario that the targeted leaders would leave the building before the United States of America had a chance to strike it. And if this was the case, then on the application of the standard of proof of “beyond reasonable doubt,” the commander had “reasonable doubt” whether the building was a military objective. Accordingly, the commander should have abstained from dispatching a pilot to carry out an air strike. Of course, the likelihood that the leader would leave the building within the available mission timeframe would have been smaller, if the telephone conversation the United States of America intercepted before starting to prepare the mission had indicated whether the meeting would last at least forty-five minutes. Equally, if the leader had made a telephone call while at the meeting, and if this call pointed to the fact that the leader was in all likelihood still at the same location, then there would be a stronger ground for authorising the air strike. In practice, not all telephone calls would have provided such detailed information to the American armed forces. Another important aspect is that it was surely apparent to the American commanders that the leaders may have had spotters who were on the look-out for the American aircraft. Such spotters would not have used technology for security reasons to tell the leader to leave the building earlier than was originally planned.

 208

Guymon, Digest of United States Practice in International Law, 2012, 589. United States Army Training and Doctrine Command, The U.S. Army Functional Concept for Protection 2016-2028, 9. 209

206

Chapter Five

On the application of the standard of proof of “beyond reasonable doubt,” when there is a “realistic” possibility that the target has ceased to be a military objective, an attacker has not reached the degree of certainty specified by the principle of distinction. It is unlikely that the American commanders authorised decapitation strikes purely on the basis of telephone coordinates and human intelligence, because there remained a “realistic” possibility that the leader had left the building. The American armed forces must have used additional information, such as the content of the intercepted telephone conversation, on which to base the decision to proceed with the attack. If, based on such additional information, the commander contemplated that it was “possible”210 that the leader had left the building before the forty-five minute timeframe expired, but it was “very unlikely”211 under the circumstances that this was the case, then the commander could proceed with the attack. The term “possible” indicates that a particular event may or may not happen in the ordinary course of events.212 The term “very unlikely” is used to indicate a high likelihood that the event in question will not materialise.213 Thus, assuming that the American commander had reason to believe, either based on the content of the conversation, or other information, that it was very unlikely that the leader had left the building, the commander would have been entitled to carry out a particular decapitation strike. The reconstruction of the American commander’s deliberation shows that the adjectives, which indicate degrees of certainty associated with the standard of proof of “beyond reasonable doubt” may usefully be applied, in order to deduce under what circumstances a commander would have acted in compliance with the principle of distinction. Of course, since insufficient information is available regarding how the American commanders actually reached their decision to launch particular decapitation strikes, it

 210 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Possible” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/ possible_2 (accessed January 5, 2014). 211 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Unlikely” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/ unlikely_1 (accessed January 5, 2014). 212 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Possible” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british /possible_2 (accessed January 5, 2014). 213 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Unlikely” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/ unlikely_1 (accessed January 5, 2014).

Drawing the Line

207

is not possible to conclude whether the United States of America complied with the law in launching any particular strike. What is important is that the impossibility of concluding whether any particular decapitation strike was lawful is not due to the difficulty of applying the standard of proof of “beyond reasonable doubt” to a factual scenario. It is possible to apply the degree of certainty, which parallels the standard of proof of “beyond reasonable doubt,” to analyse another controversial state practice. According to a Pakistani Taliban commander, the United States of America used informants to plant locator chips inside the cell phones of the Taliban.214 The chips are powered by batteries and emit infrared light, which is visible only through night vision equipment.215 It is possible to program the chip to flash Morse-type codes and other sequences.216 The pilots may use the infrared cameras of their drones to detect these signals.217 An American drone pilot disclosed that commanders inform the pilots about the identity of the individuals they are about to target if their mission is to kill a high-profile insurgent.218 It appears that, for low-profile targets, the pilots merely track the location of the chips and release a missile once they detect the chip. On the application of the degree of certainty, which mirrors that required by the standard of proof of “beyond reasonable doubt,” this practice is potentially problematic. Let’s assume that all informants know which members of their community belong to the Taliban and do not plant chips into the clothing of individuals for selfish purposes, such as eliminating an enemy. It should be said at this stage that this is an ideal scenario, because in practice members of the Taliban will try to conceal their membership in the organisation for security purposes. It is conceivable that an insurgent could leave the cell phone at home. An insurgent could also use multiple

 214

Adam Rawnsley and Noah Shahtman, “Crazy Military Tracking Tech, From Super Scents to Quantum Dots,” Wired, May 18, 2011, http://www.wired.com/2011/05/crazy-military-tracking-tech/?pid=430#slideid-430 (accessed March 30, 2015). 215 Adam Rawnsley, “C.I.A. Drone Targeting Tech Revealed, Qaeda Claims,” Wired, July 8, 2009, http://www.wired.com/2009/07/infrared-beacons-guiding-ciadrone-strikes-qaeda-claims (accessed March 30, 2015). 216 Ibid. 217 Ibid. 218 Matthew Power, “Confessions of a Drone Warrior,” GQ Magazine, October 23, 2013, http://www.gq.com/news-politics/big-issues/201311/drone-uav-pilotassassination (accessed March 30, 2015).

208

Chapter Five

cell phones for different purposes. Such a possibility cannot be said to be “fanciful” or “whimsical.” Accordingly, it is unlawful for a pilot to conclude that the presence of the chip in the house makes the house a lawful target. In order for the attack to be lawful, a pilot would need to conduct further reconnaissance in order to establish that the designated individual is in fact inside the house. It would be far from straightforward for the pilot to establish whether the intended individual is at the location that is about to be bombed. For instance, it is foreseeable that a male relative could borrow the cell phone and go into the courtyard to make a telephone call. Unless the pilot has biographical information, or at least a photograph of the individuals who are meant to be targeted, and unless the pilot can magnify the image of the faces of the individuals, it is difficult to argue that it is a very remote possibility that an attack will be directed at a different individual. Therefore, drone pilots should use supplementary information to tracking the location of the chips in order to comply with the principle of distinction.

2.6. Constructing a Scale It is valuable to construct a scale to illustrate how the degree of certainty progressively increases. Such a scale may help to evaluate whether the degree of certainty a commander has makes it possible to conclude that it is lawful to launch an attack. Imagine a scale in which the end point on the right hand side indicates certainty, and the end point on the left hand side denotes uncertainty. The greater the degree of certainty that the target is a military objective, the further to the right the point will lie. The analysis of the Israeli state practice shows that intelligence which is “precise, concrete and convincing” enables decision-makers to conclude that they are sure that the target is a military objective, and that the principle of distinction permits them to proceed with the attack. The case law on the standard of proof of “beyond reasonable doubt” makes it apparent that the “sure” point on the scale corresponds to situations in which a decision-maker may discount “fanciful” as well as “possible but very unlikely” scenarios. Thus, the “sure” point lies to the left of the “certain” point. Additionally, it was established that the term “clear and convincing” is very close to the Israeli state practice of requiring that intelligence be “precise, concrete and convincing.” As a result, the point indicating “clear and convincing” intelligence may be mapped closely to the left of the “precise, concrete and convincing” point to indicate that the difference between being “sure” and “certain” that the target is a military objective is small.

Drawing the Line

209

We will now map further points on the scale to the left of the “sure” point, and hence show what possibilities do not allow the attacker to proceed with the attack. To the left of the “sure” point lies a point indicating “realistic possibility.” According to case law on the standard of proof of “beyond reasonable doubt,” the notion of a “realistic” possibility would correspond to having “actual and substantial” doubt regarding whether (for present purposes) the target is a military objective. Between the “sure” and the “realistic possibility” lies a point corresponding to “very likely.” The purpose of using the dictionary definition of the term “very likely” is to give more detail to the scale. The term “very likely” is not found in state practice. Another point on the scale is the term “clear.” The term “clear” lies between the points “very likely” and “realistic possibility.” The term “very likely” indicates a high likelihood that the target is a military objective.219 Meanwhile, the Kansas Supreme Court interprets the term “clear” as requiring evidence that is “certain and unambiguous.” The meaning of the terms suggests that the “very likely” point should be placed closer than “clear” to “sure.” A scale indicating degrees of certainty Very Likely

Certain

 Uncertain

Realistic Clear Possibility

Clear Sure/ and Precise, Convincing Concrete and Convincing

Fig. 5-1

2.7. The Contribution of the Scale Here is how the different points shown on the scale indicating various degrees of certainty may be used as a tool to analyse state practice. Each individual piece of intelligence on which the commander relied can be evaluated for the degree of certainty it allows. This degree of certainty can

 219

Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Likely” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/likely_2 (accessed January 5, 2014); Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Very” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/very_1?q=very (accessed September 1, 2013).

210

Chapter Five

be compared with the points given on the scale, or their synonyms, to determine the weight which should be given to the intelligence. For instance, it is possible to debate whether it is a “realistic,” “very likely,” or a “clear” possibility of a pilot seeing the silhouettes of civilian vehicles at night and mistaking them for military vehicles.220 A discussion can follow, regarding why a particular piece of intelligence can be said to enable a particular degree of certitude. The next step involves analysing how likely it was that particular events were to occur, such as a leader leaving the meeting place before the aircraft reached the location of attack. The assessment of these elements can then be combined to deduce whether the armed forces were entitled to conclude that the attack complied with the principle of distinction. More generally, it is valuable for lawyers to know that they may disregard “very unlikely” possibilities for the purpose of applying the principle of distinction. Meanwhile, they should take into account lesser likelihoods. Some might consider it tantamount to splitting hairs to debate whether a particular possibility is, for instance, “very unlikely” or “unlikely.” They might wonder why experts even took up the issue of whether the principle of distinction corresponds to the standard of proof of “beyond reasonable doubt” or to a lesser degree of certitude.221 After all, the principle of distinction is formulated as an unqualified obligation,222 and the standard of proof of “beyond reasonable doubt” requires sureness.223 Yet, carrying out such detailed inquiry is essential. It is precisely because many high profile incidents fall into the grey area of legality that a refined analysis is necessary. Thus, while the scale may not be perfect, and while there might

 220

The inspiration for this example comes from the testimony of General Jertz to the ICTY Committee. According to him, “What I can say so far is when the pilot attacked the target he had to visually identify it through the attack systems which are in the aircraft, and you know it was by night, so he did see silhouettes of vehicles on the ground and as it was by prior intelligence a valid target, he did do the attack...Of course, and we have to be very fair, we are talking at night. If there is anybody sleeping somewhere in a house, you would not be able to see it from the perspective of a pilot.” “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 88. 221 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039. 222 Art. 48 API 1977. 223 R v. Alan Edwards Stephens, [2002] E.W.C.A. Crim. 1529, par. 14 (The Court of Appeal, Criminal Division, United Kingdom).

Drawing the Line

211

be some discussion as to where exactly a particular term should be plotted, the scale is a useful tool. A scale with points indicating different degrees of certainty is a professional tool that can be compared with a detailed colour palette used by artists. Artists have come up with definitions for colours of different shades. They talk of the colour vermilion, a “reddish orange colour,”224 rather than confining their vocabulary to red and orange colours.225 Wion, in studying the mural paintings of Abba Antonios, observed that the artist uses shades ranging from pinkish orange to bright orange.226 While artists work with colours, lawyers work with words. Legal practitioners need words with slightly different shades of meaning in order to produce a detailed and insightful assessment of whether particular conduct complies with the law. Clearly, there is a difference between an event being very unlikely and unlikely. It is not readily apparent that the principle of distinction allows commanders to disregard events which are “very unlikely,” as opposed to events which are, for instance, “unlikely.” Of course, the proposition made by the author of the terms, which capture the residual degree of doubt tolerated by the principle of distinction, is not designed to be the only solution or an impeccable one. It is possible to add further points to the scale, or to use different terms to indicate points on the scale. A possible criticism of the scale is that terms such as “very unlikely” lack mathematical precision, reflect a subjective state of mind, and require judgment in their interpretation and application. As Judge Wigmore highlights, “The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief.”227 A response to such criticism would be that in practice individuals learn as infants what words mean and, therefore, have a shared understanding of

 224

Merriam-Webster’s Dictionary, s.v. “Vermilion” (by Merriam-Webster Inc.), http://www.merriam-webster.com/dictionary/vermillion?show=0&t=1386690 (accessed September 13, 2013). 225 Anaïs Wion, “An Analysis of 17th Century Ethiopian Pigments,” in The Indigenous and the Foreign in Christian Ethiopian Art: On Portuguese-Ethiopian Contacts in the 16th-17th Centuries, ed. Isabel Boavida and Manuel Joao Ramos (Aldershot: Ashgate Publishing Ltd., 2004), 107. 226 Ibid. 227 John H. Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed. (Boston: Little, Brown and Company, 1940), Section 2497.

212

Chapter Five

words.228 Individuals intuitively know when a possibility is fanciful, and when a possibility is realistic. In any case, using qualitative formulations of degrees of certainty is superior to formulating numerical formulations that reflect degrees of certitude. Individuals have more experience with applying qualitative standards. They learn numbers later on in life, rely on calculations only in particular contexts and take longer to process numerical values. They will arguably find it much easier to apply qualitative expressions for the degrees of certainty. Experiments conducted by psychologists provide additional support for this assertion. Psychologists have discovered that individuals do not use the mathematical laws of probability to estimate the likelihood of events.229 When individuals who live in frequently flooded areas were asked to estimate the likelihood of a flood occurring, they relied on experience to assess how likely it was that their house would be flooded.230 They were, however, unable to come up with a numerical value that accurately reflected the risk.231 Since soldiers have to make split-second decisions,232 they are likely to find it difficult to assess the numerical probability of a target enjoying immunity from attack. Moreover, it is unclear whether soldiers could differentiate between close values such as 93 percent and 95 percent. For instance, if told to open fire at a 94 percent probability that the person is taking a direct part in hostilities, they will probably see these instructions as meaningless. Instead, they are more likely to interpret this guidance as requiring “confidence,” or similar qualitative concepts, that the person in question is a lawful target. There is no point in instructing individuals to apply numerical values, since they are likely to convert these numerical values into qualitative standards so as to make the decision-making more manageable.

 228

Wittgenstein, Philosophical Investigations, par. 40-43. Paul Slovic, Howard Kunreuther, and Gilbert White, “Decision Processes, Rationality and Adjustment to Natural Hazards,” in The Perception of Risk, ed. Paul Slovic (London: Earthscan Publications Ltd., 2000), 9. 230 Robert William Kates, “Hazard and Choice Perception in Flood Plain Management,” University of Chicago Department of Geography Research Paper 78 (1962): 63-65. 231 Ibid. 232 “Frontline,” Rules of Engagement, DVD, directed by Arun Rath and David Fanning (Arlington: PBS, February 19, 2008). 229

Drawing the Line

213

3. Target Characteristics versus the Degree of Required Certainty Corn is a former Lieutenant Colonel in the United States Army.233 He proposes a detailed test, which envisages that context shapes the degree of certainty required by the principle of distinction.234 Lieutenant Colonel Corn’s background and the detail he gives make his test interesting. He puts forward that a commander operating in a very active combat zone can rely on intuition to infer that a target is a military objective, provided that this impression is confirmed by an “articulable fact.”235 Additionally, the target should (1) fall within a category of a presumptive military objective, such as military personnel, and (2) be located in an area with minimal civilian presence.236 For dual use objects, he asserts that there should be a “fair probability” that the target has been converted into a military objective.237 Dual-use targets are objects which are presumed to be civilian, but which have become lawful objects of attack, either due to their nature, purpose, location, or use.238 Instinct and intuition, he says, play a lesser role for identifying dual-use objects.239 He applies the “more likely than not” test for engaging individuals who take a direct part in hostilities in an area, where active combat operations are taking place, and where there may be civilians present.240 Corn envisages that the standard of proof of “beyond reasonable doubt” should be applied when targeting individuals who are outside the conflict area.241 Such individuals can only be targeted, according to his theory, if there is a “fair and rational hypothesis” that the individual is a member of

 233

Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 3. 234 Ibid., 49. 235 Ibid., 37-38. 236 Ibid. 237 Ibid., 39; Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 1st ed. (Cambridge: Cambridge University Press, 2004), 96. 238 Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 1st ed., 96. 239 Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 41. 240 Ibid., 43-45. 241 Ibid., 49.

214

Chapter Five

an enemy organisation.242 An example, he suggests, would be drone attacks the United States of America carried out against members of Al Qaeda in Pakistan.243 Although Corn acknowledges that many scholars contest whether the United States of America is entitled to invoke international humanitarian law to govern its strikes on suspected terrorists located overseas, he views this limb of the test as valuable.244 What is relevant for him is that the United States of America invokes international humanitarian law in discussing the legality of such strikes.245 In particular, Harold Koh, a legal adviser at the United States Department of State, said that drone strikes on militants located overseas comply with the laws of war.246 A problematic feature of Corn’s approach is that he assumes that there is a neat divide between areas with civilian presence and without such presence. He assumes that civilians stay away from areas of active hostilities and from military objectives. ICRAC, a non-governmental organisation, observes, “There are no unoccupied spaces. There is only less probability of encountering civilians or civilian objects, and the assumption that one can keep any domain separate from another is pernicious. Indeed, it suggests a kind of authoritarian population control.”247

The absence of such a neat divide is illustrated by the fact that an American ship Vincennes shot down an Iranian civilian aircraft, mistaking it for a fighter jet.248 Could it be that, by offering a separate standard for objects that normally qualify as military objectives,249 Corn is lowering the stringency of the

 242

Ibid. Ibid., 45. 244 Ibid., 45-46. 245 Ibid., 46. 246 Mark Hosenball, “Obama Administration Official Publicly Defends Drone Attacks,” Newsweek, March 26, 2010, http://www.newsweek.com/obamaadministration-official-publicly-defends-drone-attacks-216954 (accessed March 10, 2015). 247 Frank Sauer, “ICRAC Statement on Operational Issues to the U.N. CCW Expert Meeting,” ICRAC, http://icrac.net/2014/05/icrac-statement-on-operationalissues-to-the-un-ccw-expert-meeting (accessed May 15, 2014). 248 Ibid. 243

Drawing the Line

215

obligation to distinguish at all times between lawful and unlawful targets? His reasoning assumes that civilians will never travel to an airport, for example, which has been converted to a military objective. In fact, a civilian could travel to the airport to inquire whether it was operating civilian flights to enable civilians to leave the country. That civilian could hold a mistaken belief that the airport is continuing to operate civilian flights. It could be that, having called the airport and having received no response, a civilian assumed that an air strike had severed the lines of communications with the airport. A pilot tasked with bombing the airport, upon seeing a car approaching the airport, could apply Corn’s test and conclude that it was lawful to bomb the car. Assuming that the airport no longer operates civilian flights and is located sixty kilometres from a nearby city, the pilot would be expected to rely on intuition and experience to infer whether the object is in fact a military objective. If there were very few cars on the roads in the vicinity of the airport, then on the application of the test, this fact would reinforce the pilot’s inference that the airport and the cars in its vicinity were military objectives. On the other hand, the pilot would not draw this conclusion if the pilot were to apply the degree of certainty, which corresponds to the standard of proof of “beyond reasonable doubt.” When a pilot lacks intelligence about patterns of movement of civilians and of cars driven by members of the armed forces in the area, the pilot cannot be confident that it is “very unlikely” that there is a civilian car on the road near the airport. Equally problematic is Corn’s proposition that a combatant can target an individual in a zone of active combat and determine if it is “more likely than not” that the individual takes a direct part in hostilities.250 To illustrate, imagine that a commander orders the troops to patrol a town. The counterinsurgents regularly launch ambush attacks from within the town and carry out suicide bombings. A combatant who saw a woman slip a hand inside her robe might conclude that it was “more likely than not” that the woman was about to detonate a suicide vest, and shoot her. On the application of the degree of certainty, which corresponds to the standard of proof of “beyond reasonable doubt,” however, such an attack is unlawful. Without further observations of the woman’s gestural patterns, it cannot be

 249

Corn, “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness,” 49. 250 Ibid., 45.

216

Chapter Five

concluded that it is “very unlikely” that she could merely be adjusting her clothes. Equally, Corn’s test251 is too lax when it comes to objects which are presumed to be civilian, but which may be converted into military objectives. A commander, informed that the enemy violates international humanitarian law regularly by storing military equipment in civilian objects such as schools, could order the bombing of a school that the adversary had in fact not converted into a military objective. For these types of targets, Corn merely requires that there be a “fair probability” that the civilian object is used to store weapons.252 On the other hand, the drawing of parallels between state practice and the standard of proof of “beyond reasonable doubt” shows that attackers may only proceed with an attack if it is a “fanciful” possibility that the target is a civilian object. The term “fair probability” entails a much lower degree of certainty than the term “fanciful” possibility. Consequently, it is concluded that, by allowing the type of target and its location to shape what degree of certainty an attacker should attain before carrying out the attack,253 Corn relaxes the principle of distinction. The better approach is to require attackers to attain the same degree of certainty, irrespective of the type of target and its location.

4. The Interplay between Operational Factors There are said to be four variables that shape the determination of what degree of certainty parties to the conflict may attain.254 Those four variables are (1) urgency of immediately responding to the situation, (2) force security, (3) the available intelligence and (4) the prospect of civilian harm through error.255 An aspect of the law that needs to be addressed is how these variables interact to shape what degree of certainty attackers are able to achieve. The first step in untangling the question of how the four variables function in the attainment of certainty is to analyse whether each of these variables plays the same role in different scenarios. Once it is understood in what instances each variable becomes relevant, it can be studied whether there is a pattern as to how any two particular variables

 251

Ibid., 39. Ibid. 253 Ibid., 49. 254 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039. 255 Ibid. 252

Drawing the Line

217

interact. This knowledge can serve as a stepping stone to constructing a more complex picture about the inherent relationship between these variables.

4.1. The Roles Played by the Four Operational Variables A. Urgency For simplicity, situations in which it is important for the forces to take action without delay are given the label “the urgency of action.” The forces feel the need to act without delay in every scenario, but to a different degree. One of the reasons for this is that the armed forces gain an advantage by acting more quickly than the enemy.256 State practice is instructive for circumstances in which it is imperative to act swiftly. The urgency of action arises when the armed forces perceive themselves as being under personal threat. The decapitation strikes the United States of America carried out during Operation Iraqi Freedom 2003 illustrate that a commander may wish to immediately dispatch an aircraft on a mission when a target is not stationary, and there may, therefore, be a single opportunity to strike it.257 The air strikes NATO carried out during Operation Allied Force 1999 show that, in humanitarian intervention missions, the urgency of action arises in the context of protecting civilians: for example, to stop the adversary from ethnically cleansing villages.258 The requirement to respond immediately to the adversary’s actions varies depending on the military scenario. For instance, it is likely to be less urgent to attack a command and control bunker than a leader who directs military operations, because there is likely to be more than one opportunity to bomb a stationary military objective. B. Force Protection The troops use force protection measures to mitigate danger to men and materiel.259 Since materiel can engage targets from long distances,260 the

 256

Royal Air Force, British Air and Space Power Doctrine A.P.3000, 4th ed. (London: Ministry of Defence, 2009), 27. 257 Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 22. 258 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 64. 259 United States Army Training and Doctrine Command, The U.S. Army Functional Concept for Protection 2016-2028, 10.

218

Chapter Five

troops need to take such measures both when they are and when they are not in close proximity to the adversary. A force may be exposed to various degrees of danger because it may take measures to mitigate the threat.261 For instance, soldiers could take up positions in a building in order to shield themselves from long-range materiel, while waiting for helicopter support.262 The troops could gain greater protection by gathering intelligence about the location and plans of the enemy,263 by taking the enemy by surprise,264 and by tailoring their materiel to the adversary’s materiel.265 C. Intelligence Intelligence is data that individuals have processed by applying judgment to determine its accuracy and value.266 The gathering of intelligence both confers a military edge and contributes to accurate identification of military objectives. For instance, a unit, with intelligence about the enemy’s troops has greater chances of taking the enemy by surprise.267 What intelligence is available, and from what sources it may be gathered, varies from one battle scenario to another. In some situations, the armed forces will have available to them intelligence-gathering, surveillance and reconnaissance technologies, while in others they may have to rely only on their visual observation. States may also face varying degrees of difficulty of recruiting human sources. For instance, the tight clan system in Somalia meant that the United States of America found it extremely difficult to enlist human intelligence sources.268

 260

Bailey, Field Artillery and Firepower, 59; Vautravers, “Military Operations in Urban Areas,” 447. 261 Jordan, “Air and Space Warfare,” 210; Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 35-36. 262 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 3536. 263 Evans, War: a Matter of Principles, 43. 264 Ibid., 60. 265 Ibid., 83. 266 Vego, Joint Operational Warfare: Theory and Practice, III-66. 267 Evans, War: a Matter of Principles, 60. 268 Frank H. Akers Jr. and George B. Singleton, Task Force Ranger: a Case Study Examining the Application of Advanced Technologies in Modern Urban Warfare (National Security Program Office, November, 2000), 7.

Drawing the Line

219

D. Error through Targeting Due to scarcity of resources, an attacker faces a trade-off whether to allocate intelligence, surveillance and reconnaissance resources for target verification, or for military requirements. Moreover, the decapitation strikes illustrate that, when the troops encounter emerging targets, and when there may be a single opportunity to engage them, the forces face a conflict between pursuing the target and delaying the attack in order to reduce the chances of erroneous target identification. Finally, when the troops encounter individuals whose conduct they assess as potentially posing a threat, they face a tension between opening fire and delaying their response in order to further observe the conduct of that individual.

4.2. Examining how the Four Variables Relate to Each Other Clearly, how much intelligence the forces have influences their assessment of personal threat as well as the likelihood that a particular person or object is a lawful target. This means that the two variables of force protection and intelligence always have the same significance, and interact in the same way across different scenarios. On the other hand, whether the urgency of acting immediately is linked to the need to protect the force or to available intelligence varies depending on the military scenario. The urgency of action is closely linked to force protection in situations where the armed forces perceive themselves as being under imminent threat. However, the urgency of action is not always linked to force protection. The decapitation strikes the United States of America carried out269 illustrate that it may be urgent to act in response to the emerging situation in order to kill an elusive target, and not because it is necessary to preserve the lives of the troops. In the case of the Djakovica incident,270 it was important for NATO to take steps to stop ethnic cleansing as soon as it learned that the Serb forces were mistreating civilians.271 On this occasion, the urgency of action arose because NATO wanted to stop ethnic cleansing,272 and not because NATO wanted to protect its force. Since the Serb forces operated strong air

 269

Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 22. 270 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 63. 271 Ibid., par. 64. 272 Ibid.

220

Chapter Five

defence systems,273 the commander also placed significant weight on the need to protect the pilot from the risk of being shot down. The commander, in deciding what verification measures to take, considered the requirement to protect civilians and the danger to the pilot in order to distinguish civilian vehicles from military vehicles. In this instance, the variable of intelligence had only an indirect connection to that of urgency of action. Since the armed forces conducted reconnaissance in order to locate areas where ethnic cleansing was taking place,274 it was the mission to stop ethnic cleansing that gave rise to the need to respond urgently to the killing of civilians. Another relevant aspect is that the quality of intelligence yielded by the use of technology275 and the threat posed by the Serb air-defence systems influenced NATO’s decision to operate at a high altitude and not to require the pilot to execute a dive, in order to visually check that the target was a military objective.276 It must be that NATO had such high confidence in the ability of technology to enable the pilot to distinguish between lawful and unlawful targets that it instructed its pilots to operate at a high altitude. It can thus be concluded that the variable of force protection was linked to the quality of available intelligence. The availability of reliable, accurate and complete intelligence bears on whether there is urgency of action across different military scenarios.277 Troops rely on intelligence and observation in assessing whether they are under imminent threat, and thus need to respond quickly with lethal force. The decapitation strikes illustrate that whether more intelligence can be gathered about the location of the leader, in order to kill the leader at a later point in time, shapes how urgent it is to immediately dispatch the pilot to carry out the mission. Moreover, in humanitarian intervention missions, the armed forces rely on intelligence to gain insight into where the mistreatment of civilians may be taking place, and to assess how urgent it is to act to stop the adversary’s forces. Finally, when intelligence is incomplete or unreliable, the likelihood of mistakenly concluding that a

 273

Ibid.; Cordesman, The Lessons and Non-lessons of the Air and Missile Campaign in Kosovo, 203. 274 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 6465. 275 Ibid., par. 56. 276 Ibid., par. 64. 277 Vego, Joint Operational Warfare: Theory and Practice, III-66.

Drawing the Line

221

civilian object is a military objective increases. In such cases, the requirement to comply with the principle of distinction may render the attack unlawful. Accordingly, when intelligence is incomplete or unreliable, the need to urgently carry out an attack will play a lesser role. It follows from this analysis that the urgency of action is closely linked with the variables of intelligence and possible harm to civilians, but not with force protection. As regards the linkage of the variable of force protection to other variables, attackers necessarily use intelligence to determine whether there is a need to protect the force. This is because intelligence informs the perceived need for force protection, by providing information about matters such as the strength of enemy air defences.278 Additionally, the variable of force protection is directly linked to the variable of potential harm to civilians. As the likelihood that the target enjoys immunity increases, the perceived need for protection of the force decreases. Furthermore, the variables of intelligence and likely harm to civilians are always linked. The availability, relevance, reliability, accuracy and completeness of intelligence279 influences the attacker’s assessment of what likelihood remains of the target being misidentified.

4.3. How the Four Variables Interact Before examining how the four variables interact with each other in shaping the degree of certainty that may be attained, it is necessary to take stock of what has been discovered to date. The imperative to protect the force, available intelligence and likely harm to civilians are linked to each other across military scenarios. Whether there is urgency of action depends on available intelligence and the likelihood of the target being misidentified. Whether the need for the force to protect itself gives rise to the urgency of action depends on the particular scenario. Various case studies will now be used to study in more detail how all four variables interact.

 278 279

Evans, War: a Matter of Principles, 43-44. Vego, Joint Operational Warfare: Theory and Practice, III-66.

222

Chapter Five

A. Israeli State Practice On 15 July, 2006, during the Second Lebanon War, an Israeli ship detected a pick-up truck and a brown Mercedes on a bluff overlooking the sea.280 The vehicles were on an exposed section of the road in relation to the sea.281 The Israel Defence Forces were on high alert, because, on the previous day, Hezbollah had attacked their ship with an advanced cruise missile in that area.282 On this particular day, Israel issued a warning to civilians in a nearby Marwahin village to evacuate themselves.283 According to the U.N. Commission of Inquiry, the Israel Defence Forces attacked both vehicles.284 Human Rights Watch conducted an investigation into this incident, and found that the truck had not been completely destroyed by the missile.285 In the opinion of Human Rights Watch, this indicated that a drone carried out the attack.286 Their conclusion is based on the fact that an aircraft missile would have completely destroyed the car, while ship-based missiles are not accurate enough to be able to hit a car.287 Since drone missiles are small and engage their target with precision, they tend to inflict only partial damage in cases such as this one.288 The U.N. Commission of Inquiry gives an account of the situation on-site, which is consistent with that given by Human Rights Watch.289 However, it believes that a hole in the roof of the car and large craters in the road in

 280

Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War (New York: Human Rights Watch, 2007), 149; U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 35 par. 127. 281 Ibid. 282 Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 150. 283 Ibid., 147-148. 284 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 35 par. 127-128. 285 Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 150. 286 Ibid. 287 Ibid. 288 Ibid. 289 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 35 par. 127-128.

Drawing the Line

223

the vicinity of the car point to Israel Defence Forces having used a combination of weapons.290 The U.N. Commission of Inquiry concluded, “The exact circumstances of the attack are known only to the Israeli authorities. However, it no doubt combined initial intelligence information, probably relayed from a drone, some naval gun fire and final strikes from an aircraft or a helicopter. It also clearly involved a separate follow-up strike on the two fleeing civilians.”291

What is crucial for the present analysis is that the Israel Defence Forces used an air strike to attack the vehicles.292 Unfortunately, the dispatched drone engaged the pick-up truck.293 A helicopter, which was concurrently dispatched with the drone, attacked the brown Mercedes as well as civilians who were standing near to the cars and holding white flags.294 The U.N. Commission of Inquiry treated the attacks carried out by the drone and the helicopter as unlawful.295 It concluded that, because the Israel Defence Forces asked the inhabitants of Marwaheen to evacuate the town, the commander should have passed the information about the possible presence of civilian convoys on the roads down the chain of command.296 Since the deceased were undoubtedly civilians,297 there is little room for debate over whether the attack was directed at a military objective. Neither the Human Rights Watch298 nor the U.N. Commission of Inquiry299 found any evidence that the truck may have looked like a rocketlauncher to the drone operator and the helicopter pilot.

 290

Ibid. Ibid. 292 Ibid.; Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 150. 293 Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 149-151; U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 36 par. 135. 294 Ibid. 295 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 36 par. 135. 296 Ibid., 35 par. 127. 297 Ibid.; Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 149-151. 298 Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 150-151. 299 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 36 par. 135. 291

224

Chapter Five

Although the deaths of civilians300 are clearly unfortunate, it is significant that the ship delayed launching missiles until after a drone had (albeit incorrectly) verified the nature of the target.301 Since the crew of the present ship had been placed on high alert,302 it is arguable that the ship’s crew perceived the cars as potentially posing substantial threat. The cars were stationary at the time they were attacked,303 and any civilians who were in the process of evacuating would have been driving away from the town. The fact that the road in question was obstructed304 also points to the fact that the car was used by Hezbollah. At the same time, the crew could not discount that there was a “realistic” possibility that a civilian car may have broken down. Although the U.N. Commission of Inquiry found that it is possible that the ship’s crew were not notified by command headquarters of the impending military operation in Marwaheen,305 it is foreseeable that a car may break down on the road. The crew could not use information about the fact that the car faced Marwaheen with its rear to conclude whether the vehicle was driven by civilians or Hezbollah. Accordingly, the ship’s crew perceived a high need to protect itself and respond quickly. Assuming that the U.N. Commission of Inquiry306 and Human Rights Watch307 made a correct finding that the crew dispatched a drone and a helicopter to carry out further reconnaissance, the crew treated the urgency of action to protect the ship as not warranting an attack on the car. This state practice suggests that even where the troops perceive themselves to face potential imminent threat, the consideration of protecting the force does not justify proceeding with the attack without collecting additional intelligence in order to check whether the target is in fact a military objective.

 300

Ibid., 35 par. 127-128; Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 150-151. 301 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 35 par. 127-128. 302 Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 150. 303 Ibid. 304 U.N. Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, 35 par. 128. 305 Ibid. 306 Ibid., 35 par. 127-128. 307 Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 150.

Drawing the Line

225

A hypothetical question arises of whether a ship could, under certain circumstances, proceed with the attack without conducting further reconnaissance. The application of the degree of certainty specified by the standard of proof of “beyond reasonable doubt” suggests that a ship’s crew could proceed with an attack if it assessed that there was a “fanciful” possibility that the vehicle was a civilian object. An example would be where a ship was positioned very close to the shore, and where its crew could, therefore, exclude it as a “fanciful” possibility that what looked like a rocket launcher mounted on a car were in fact belongings that had been loaded onto the car. In turn, this points to the fact that each of the four variables, (1) urgency of action, (2) force security, (3) the available intelligence and (4) the prospect of civilian harm through error, must individually reinforce the conclusion that the target is a military objective in order for the attacker to be entitled to engage the target. B. The State Practice of the United States of America B.1. The Decapitation Strikes The decapitation strikes308 are a case study for analysing the interrelationship between the four variables.309 The American officials lauded the fact that its pilots engaged leadership targets within forty-five minutes of getting initial intelligence about the location of these targets.310 The United States of America used aircraft, rather than ground troops, to carry out the attack to enable the force to reach the designated location within a short time period. Another possible rationale for using aircraft was that the use of ground troops was likely to tip off the leader about the imminent attack. If this was in fact the case, then there is little evidence that the United States of America dispatched aircraft primarily to avoid exposing its ground troops to danger. On this approach, in planning the attack, the commander gave less weight to the need to protect the force than to considerations of urgency of action, available intelligence and civilian harm that would result if the pilot were to misidentify the target. Another relevant aspect is that the American pilots told The Time that they were instructed to attack leadership targets as they were in mid-flight

 308

Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 22. 309 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039. 310 John Donnelly, “War in Iraq/Targeting the Leadership; After Airstrike, U.S. Seeks Clues on Fate of Hussein and Sons,” Boston Globe, April 9, 2003, A21.

226

Chapter Five

returning from another mission.311 This suggests that the urgency of action was high. As for intelligence, because the commander had only forty-five minutes in which to check the validity of intelligence and to execute the mission,312 the commander had fewer sources of information that could be used to check the validity of the intelligence than the commander would have had with more time. Therefore, the urgency of action bore on what quantity and quality of intelligence was available to the commander. In terms of the variable of potential harm to civilians, the less reliable the intelligence, the greater the likelihood that the attacker may misidentify the target. Since the urgency of action influenced what intelligence the commander deemed to be available, and because available intelligence in turn shaped the likelihood of a civilian object being engaged by mistake, the three variables were tightly interlinked in this case study. And, because they were so interlinked, the commander at this stage assessed whether there was sufficient confidence that the intelligence was reliable in order to be able to proceed with the attack. To enrich the assessment, the case study of decapitation strikes313 should be made more complex to incorporate the variable of force protection. Assume for the purpose of the analysis that the driver of the leader’s car told an American commander that a leader plans to visit a particular house at a particular time and will be in a green car. Presume also that the driver told the commander that it is possible that the leader may change his or her plans. There are three hours available in which to organise the attack. Suppose further that only airpower can be employed to execute the strike. The location in question is in the enemy’s stronghold, and so the presence of ground troops would forewarn the enemy. Although there are intelligence officers in the area, they are unable, within the three-hour window, to corroborate the information regarding who resides in the house that is about to be targeted. The only verification opportunity is for the aircraft to execute a dive to check the presence of a green car next to the house being targeted. The enemy air defences are known to be medium or strong, depending on the locality. It is, therefore, not known what degree of risk the pilot would be taking, if the pilot were to execute a dive in this

 311

Mark Thompson and Timothy J. Burger, “How to Attack a Dictator Part II,” Time, April 21, 2003. 312 John Donnelly, “War in Iraq/Targeting the Leadership; After Airstrike, U.S. Seeks Clues on Fate of Hussein and Sons,” Boston Globe, April 9, 2003, A21. 313 Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 22.

Drawing the Line

227

particular location. Electronic suppression aircraft are available, but these merely mitigate the danger.314 Since it is known that the urgency of action merely affects the quality of available intelligence, the commander in this type of situation will balance the variables of available intelligence, force protection and harm to civilians. What force protection measures the commander orders the pilot to take, such as the decision not to require a pilot to execute a dive, bears on how much information the pilot is able to gather and on the likelihood of misidentifying the target. Therefore, the variable of force protection is linked to the variables of available intelligence and the likely harm to civilians. In planning the mission, the commander will be comparing the difference in the likelihoods of the target being a civilian object if the dive is executed, and if it is not. Irrespective of whether the presence of air defence aircraft reduces the danger to the pilot to low or medium risk, the commander has to instruct the pilot to execute a dive in this particular scenario. The same is true if a party to the conflict lacks electronic suppression aircraft, and if executing a dive would expose the pilot to a greater degree of risk. This conclusion is reached because it can be described as a “realistic” possibility that the leader may change his or her plans. Moreover, the analysis of state practice showed that states do not permit the armed forces to proceed with an attack if there remains a “realistic” possibility that the target is immune from attack. This hypothetical case study provides further evidence for the assertion that the four variables need to reinforce the conclusion that the target is a military objective in order for an attack to be lawful, even in situations when the urgency of action is not linked to force protection. B.2. The Ameriyya Air Raid Shelter Incident The Ameriyya incident315 is another valuable case study for examining the interaction between the four variables. Two dimensions make this case study interesting. First, because the destruction of command and control

 314

Cordesman, The Lessons and Non-lessons of the Air and Missile Campaign in Kosovo, 204. 315 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 128.

228

Chapter Five

centres always offers substantial military advantage,316 the urgency of destroying the bunker at an earlier point in time was significant. Second, Middle East Watch queried whether the United States of America should have carried out morning reconnaissance,317 instead of allocating the aircraft to the competing task of checking whether there was a need to restrike some of the military objectives.318 As regards force protection, according to the researchers at the RAND Corporation, the United States of America successfully neutralised the Iraqi air defence systems within ten days of the start of the air campaign.319 The air force carried out the air strike on the command and control bunker on 13 February, 1991,320 almost a month after the start of the air campaign.321 This suggests that the commander was not concerned with force protection in planning this particular operation. Since force protection was not an important consideration, the commander, in deciding at what point it was lawful to carry out the attack, balanced available intelligence, likely harm to civilians, and the urgency of allocating the intelligence, surveillance, and reconnaissance assets with the competing task of bomb damage assessment. There is evidence that the commander judged conducting aerial surveillance after dark as information that was not “reasonably available.” The United States Department of Defense justified to Congress the decision to proceed with the attack without monitoring the target after dark on the grounds that “commanders necessarily have to make decisions on the basis of their assessment of the information reasonably available to them at the time.”322 In this particular instance, the armed forces were entitled to conclude that conducting

 316

Gregory Katz and Albert Aji, “Syria Intervention? Momentum Builds For Western Military Action,” Huffington Post, August 27, 2013. 317 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 140. 318 Keaney and Cohen, Gulf War Air Power Survey: Planning and Command and Control, 255-258. 319 Dana J. Johnson, Preston Niblack, and James A. Winnefeld, A League of Airmen: U.S. Air Power in the Gulf War (Santa Monica: RAND Corporation, 1994), 123. 320 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 126. 321 BBC News, “Flashback: 1991 Gulf War,” BBC News, March 20, 2003, http://news.bbc.co.uk/1/hi/world/middle_east/2754103.stm (accessed October 11, 2013). 322 Unites States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 616.

Drawing the Line

229

reconnaissance in the morning was not an available option because the intelligence was sufficiently strong, and indicated that Iraq had converted the shelter into a command and control centre.323 Were there to be no other signs of the structure being a command and control bunker other than, for instance, camouflage,324 the commander would have found it more difficult to justify allocating intelligence, surveillance and reconnaissance resources to bomb damage assessment. In balancing (1) the urgency of conducting a bomb damage assessment, (2) available intelligence and (3) likely harm to civilians, the commander, in effect, weighed the available intelligence against the risk of mistakenly concluding that the building was a military objective. This is because, in assessing how soon the pilot could be dispatched to bomb the command and control bunker, the commander considered the competing requirement to carry out bomb damage assessment. Equally, the commander took into account the need to carry out bomb damage assessment in determining whether additional reconnaissance could be conducted at different times of the day. The competing missions therefore bore on intelligence that the commander judged to be “reasonably” available and on the relative urgency of attacking the command and control bunker. Therefore, the variable of urgency of action can be subsumed under the intelligence variable in this example. It also needs to be recognised that the allocation of resources to bomb damage assessment will bear on the variable of the quality of intelligence. Since, in the case of the Ameriyya incident, the commander ultimately weighed available intelligence against the risk of target misidentification, this case study illustrates that the variables of the urgency of action, available intelligence and likely harm to civilians need to reinforce the conclusion that the target is a military objective in order for an attack to be lawful. C. Findings It is apparent from state practice that, in order for an attack to comply with the principle of distinction, the four variables need to reinforce each other. Consequently, rather than lowering the degree of certainty, variables such as urgency of action and force protection may only be invoked to defend a conclusion as to why there is sufficient information for an attack to be lawful. This finding is significant. It points to the fact that measures

 323 324

Ibid., 616-617. Ibid., 615.

230

Chapter Five

increasing the protection for the force, but also increasing the likelihood of the target being misidentified, can only be taken when other variables, such as the quality of available intelligence, make up for the measure being taken. What needs to be considered now is whether the military requirement to achieve the mission goal affects the analysis. The variable of mission success does not change the analysis, because it may be subsumed within the variables of force protection and the urgency of action. Specifically, when the survivability of the force is threatened, there is a high risk that the force will be unable to complete the mission and to win the military operation. The variable of mission success can be incorporated into the variable of urgency of action, because acting more quickly than the enemy enables the force to engage targets of opportunity and to overcome the enemy.325 Consequently, the fact that the primary task of the force is to overcome the enemy does not change the analysis. The fact that the four variables need to reinforce the conclusion that a target is a military objective, in order for an attack to comply with the principle of distinction, enables another proposition to be made. It must be that the degree of certainty that corresponds to the “sure” point on the proposed scale is very close to the point of “certainty.” These two findings should be uncontroversial, because the principle of distinction is formulated as an unqualified obligation326 and is the bedrock of international humanitarian law.327

5. Conclusions Adjectives reflecting the lowest bounds of uncertainty beyond which the law does not permit a “reasonable” person, in the shoes of the attacker,328 to conclude that the target is a military objective provide tools for evaluating the legality of state conduct. Although lawyers from civil law jurisdictions may be unaccustomed to breaking down the legal term in this way into so many shades of meaning,329 such a break-down is valuable.

 325

Evans, War: a Matter of Principles, 140. Art. 48 API 1977. 327 Ibid.; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, par. 79. 328 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 4-3, 4.4 par. 25-27. 329 Summers and Jackson, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions, 69-70; Art. 342 Code d’Instruction Criminelle (Criminal Code), Publication 27-11-1808, Dossier No. 1808-11-17/20 (Belgium 1878), Par. 286 Zivilprozessordnung I 1 (Civil Procedure Statute), 326

Drawing the Line

231

Scholars and non-governmental organisations whose aim is to bring states to account for their actions, by engaging military lawyers in a debate,330 will be able to engage in more fruitful and livelier discussion. These stakeholders could discuss in detail just how reliable each piece of intelligence might have been, and how likely particular events were. By using terms with gradations of meaning, scholars invite military lawyers to comment on the particular terms the scholars employed, and to give more detailed justifications for their decisions related to the military operation. Chesterton’s statement, “The paradox of courage is that a man must be a little careless of his life even in order to keep it,”331 captures precisely the legal standard. Because the misidentification of targets is a tragedy, and because civilians do not pose a threat to soldiers, the principle of distinction requires the armed forces to assume risk in order to properly identify targets. Soldiers who are reckless in proceeding with an attack, although they have doubts regarding the character of the target, can be criminally prosecuted for a war crime under customary international law.332

 Bundesgestzblatt, Teil I 3202 (Germany December 5, 2005), Art. 741 Ley de Enjuiciamiento Criminal (Criminal Procedure Statute), Gazette (Spain September 14, 1882). 330 William J. Fenrick, “Applying I.H.L. Targeting Rules to Practical Situations: Proportionality and Military Objectives,” Windsor Yearbook of Access to Justice 27, no. 2 (2009): 272-273. 331 Chesterton, “The Methuselahite,” 118. 332 Prosecutor v. Galiü, IT-98-29-T T.Ch.I., Judgment, par. 54 (International Criminal Tribunal for the former Yugoslavia December 5, 2003).

CHAPTER SIX A TOOLBOX FOR THE APPLICATION OF THE RULE OF TARGET VERIFICATION

In order to grasp how commanders apply the rule of target verification to battlefield scenarios, it is valuable to examine how, in planning a military operation, commanders may have balanced (1) the likelihood of civilian harm, (2) the magnitude of civilian harm and (3) the military advantage entailed in conducting additional verification. This analysis will contribute to a better understanding of how commanders might judge whether a particular intelligence, surveillance or reconnaissance resource, or the gathering of particular information, is a “reasonably available” option. For this reason, the key questions of this study are: how well do the elements likelihood of civilian harm, magnitude of civilian harm and military advantage entailed in conducting additional verification capture the decision-making processes of the commander? How do these three principles interact with each other? When do commanders place greater weight on one or other of the elements? How do commanders balance factors, such as force protection and the urgency of responding to the adversary’s actions, within each element? For example, what roles do urgency of action and force protection play when commanders weigh the military advantage offered by immediately responding to the unfolding situation against the likelihood of mistakenly attacking a civilian object and, as a result, inflicting a certain amount of harm to civilians?

1. An Examination of how Commanders Balance the Three Elements For some states, the rule of target verification sets a minimum standard for the quality of intelligence the commander should obtain, and hence for the element of likelihood of civilian harm. The Australian military manual, for instance, asserts that in taking “reasonable” measures to verify that only military objectives are attacked, it is important that a commander obtain

A Toolbox for the Application of the Rule of Target Verification

233

“accurate” intelligence before mounting an attack.1 Meanwhile, NATO states implied that the rule of target verification requires that “accurate intelligence” be gathered when they explained that their military planners “continuously” evaluate whether the proposed target is actually a military objective.2 It is also relevant that, on one occasion, the United States of America removed a suspected storage facility for air defence missiles from the target list, because this building was located in a heavily populated area, and because the intelligence, which indicated that the building was a storage facility, was “somewhat speculative.”3 Since the United States of America made this decision based on the requirement to comply with the rule of target verification, it treats this rule as having a link with the reliability of intelligence. There is a significant parallel between the way in which these states interpret the rule of target verification and the principle of distinction. In particular, Australia’s reference to the requirement to gather “accurate” intelligence,4 in order to comply with the rule of target verification, resembles Israel’s practice of gathering “precise” intelligence5 as a means of complying with the principle of distinction. When information is “precise,” it is “exact and accurate.”6 This raises the question of whether

 1 Australian Defence Force Warfare Centre, Australian Defence Doctrine Publication 06.4 Law of Armed Conflict (Canberra: Defence Publishing Service, 2006), par. 5.53. 2 NATO, “Press Conference,” news release, March 25-26, 1999, NATO, “Press Conference,” news release, April 3, 1999, NATO, “Press Conference,” news release, April 9, 1999, NATO, “Press Conference,” news release, May 15, 1999, NATO, “Press Conference,” news release, May 21, 1999, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:373. 3 General James R. Allen to Brigadier General J.R. McCarthy, December 27, 1977 in James R. McCarthy and George B. Allison, Linebacker II: A View From the Rock, vol. VI, United States Air Force Southeast Asia Monograph Series (Washington, DC: Office of Air Force History, United States Air Force, 1979), 97-98; Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:372. 4 Australian Defence Force Warfare Centre, Australian Defence Doctrine Publication 06.4 Law of Armed Conflict, par. 5.53. 5 Israel Defence Forces, “I.D.F. Carries Out Widespread Attack on Gaza Terror Sites,” Israel Defence Forces, November 16, 2012, http://www.idf.il/1283-17570EN/Dover.aspx (accessed December 4, 2012). 6 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Precise” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/precise_1?q=precise (accessed January 5, 2014).

234

Chapter Six

the rule of target verification sets almost as stringent an obligation as the principle of distinction. Are commanders required to employ intelligence, surveillance and reconnaissance assets until such a point that they are certain of the character of the proposed target? Examining how commanders determine whether intelligence is “accurate” provides a clue for answering this question. The term “accurate” information could be understood as information that confirms the fact that a particular event took place. For instance, the intercepts of telephone conversations provide intelligence that can be said to be “accurate,” in that these recordings capture conversations that actually took place. Or, it could be that a commander understands information to be “accurate” because past experience points to a particular statement being true. For instance, a human source could provide information, which consistently turns out to be true. The term “accuracy” could also express the fact that information was confirmed by another source, as in cases where satellite images confirm information given by a human source. Finally, the term “accuracy” could refer to the fact that commanders use intelligence, surveillance and reconnaissance assets in order to check whether the intelligence continues to have validity. Clearly, there is a link between the accuracy of the intelligence and the likelihood of misidentifying the target. This is the case because, when an individual believes intelligence to be “accurate,” that individual will have confidence that the proposed target is a military objective. However, in some cases information can have the quality of being “accurate,” without enabling an individual to conclude whether he or she has a high degree of certainty that a target is a military objective. This will occur in situations in which the information merely captures the fact that a particular event took place, without contextualising either the information or the particular events for the commander. To this end, in early 2010, the American intelligence analysts used equipment that detects signals emitted by telephone communications to record calls placed by an individual, whom they believed to be Muhammad Amin.7 Muhammad Amin was the Taliban deputy shadow governor of Takhar.8 The analysts relied on this approach

 7

Kate Clark, “Targeted Killings and Two Worlds in Afghanistan: Inside the Takhar Attack,” Foreign Policy, May 11, 2011, http://afpak.foreignpolicy.com/posts/2011/05/11/the_takhar_attack_targeted_killin gs_and_two_worlds_in_afghanistan?wp_login_redirect=0 (accessed December 11, 2013). 8 Ibid.

A Toolbox for the Application of the Rule of Target Verification

235

to construct an understanding of the Taliban insurgent network.9 They came to believe that one of the numbers Muhammad Amin called was ultimately assigned to him, along with the alias Zabet Amanullah.10 The officers did not cross-check their inference that the “cluster of calls and contacts” was suspicious through human intelligence.11 After a drone strike, it transpired that the targeted person was Zabet Amanullah, a former Taliban commander, who disengaged from the group in 2001.12 According to the local police chief, the Afghan authorities could have easily arrested Zabet if needed.13 Zabet’s family explained that he kept in touch with members of the Taliban, because he thought that it was “prudent” to do so in Takhar’s ever-changing political climate.14 Kate Clarke, a journalist, comments that the officers would not have made this targeting mistake had they collected biographical information about Zabet, and had they used everyday information available to regular Afghans watching the televised election coverage.15 Zabet had been campaigning for his nephew in parliamentary elections and so was a regular presence on the television.16 This incident shows that although information relayed by surveillance technology, such as signals intelligence and network analysis, accurately conveys what is happening, it does not necessarily enable commanders to make accurate inferences regarding the character of the proposed target. Consequently, the term “accurate” intelligence in state practice on the rule of target verification could refer to either (1) information that captures that a particular event took place, or (2) information that enables a commander to conclude whether he or she has a high degree of certainty that the target is a military objective. If the notion of “accurate” intelligence refers to the former, then it would follow that the rule of target verification does not in fact impose an obligation on attackers to gather intelligence of a similar degree of reliability as does the principle of distinction.

 9

Ibid. Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid. 10

236

Chapter Six

Normatively speaking, it is desirable that the word “accurate” be interpreted as requiring commanders to gather not only intelligence which captures events that took place, but also information that would enable a commander to determine whether he or she has a high degree of certainty that the target is a military objective. After all, the purpose of the rule of target verification is to enable attackers to comply with the principle of distinction.17 Further support for this argument is found in the ICRC Commentary to API 1977 on the rule of target verification. As this document states, “The evaluation of the information obtained must include a serious check of its accuracy.”18 The requirement that commanders conduct “serious checks” on whether the information is in fact accurate is surely designed to ensure that commanders gather information from different sources and update the information. In turn, having information that has been corroborated by different sources and which is up to date puts a commander in a position to assess whether he or she has a high degree of certainty that the target is a military objective. Adhering to the approach put forth in the ICRC Commentary to API 1977, the commander, who planned the attack on Muhammad Amin, was required by the rule of target verification to go beyond merely establishing whom this individual telephoned. The commander had to take additional measures to confirm whether that individual was in fact a member of the Taliban, such as by gathering biographical information about that individual. Military lawyers would disagree with the interpretation of the rule of target verification in the ICRC Commentary to API 1977. They will argue that in scenarios, such as a military operation to kill Muhammad Amin, commanders may lack resources to cross-check the information provided by technologies. Since states interpret the term “feasible” as requiring commanders to use resources that are “reasonably available,” commanders are not required in all circumstances to cross-verify the validity of information relayed by technology. This raises the question of how the practice of Australia to gather “accurate” intelligence19 is compatible with the fact that the rule of target verification imposes only a qualified obligation.

 17

Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:52-53. 18 Sandoz, Swinarski, and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 681 par. 2195. 19 Australian Defence Force Warfare Centre, Australian Defence Doctrine Publication 06.4 Law of Armed Conflict, par. 5.53.

A Toolbox for the Application of the Rule of Target Verification

237

A. State Practice of Russia in Chechnya Although Russia did not proclaim a state of emergency when it fought the Chechen rebels in Chechnya,20 the Russian Constitutional Court treated the situation as a non-international armed conflict.21 The Russian Constitutional Court regarded the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts 1977, as applicable to the conduct of hostilities between Russia and the rebels.22 However, the Constitutional Court acknowledged that Russia did not incorporate this treaty in its domestic law.23 The case study is a military operation carried out by troops in the village of Katyr-Yurt on 4 February, 2000, against the Chechen rebels.24 In this instance, the Russian armed forces relied on their military manuals in determining how to act.25 Both the existence of a noninternational armed conflict and the employment by the armed forces of military manuals makes this case study relevant for examining Russian state practice. Much of the following analysis is based on information which was presented to the European Court of Human Rights (ECtHR), when it heard submissions for the case Isayeva v. Russia. One of the issues the ECtHR had to address was whether Russia violated the right to life of the

 20

Isayeva v. Russia, Application No. 57950-00, Judgment, par. 191 (European Court of Human Rights February 24, 2005). 21 Decision of the Constitutional Court of the Russian Federation on the Constitutionality of Presidential Decree No. 2137 of 30 November 1994 on Measures for the Restoration of the Constitution and the Rule of Law on the Territory of the Chechen Republic, of Presidential Decree No. 2166 of 9 December 1994 on the Repression of the Activities of Illegal Armed Units within the Territory of the Chechen Republic and in the Zone of the Ossetino-Ingushetian Conflict, of Resolution No. 1360 of 9 December 1994 on Ensuring the Security and Territorial Integrity of the Russian Federation, the Principle of Legality, the Rights and Freedoms of Citizens, and Disarmament of Illegal Armed Units within the Territory of the Chechen Republic and Contiguous Regions on the Northern Caucasus, and of Presidential Decree No. 1833 of 2 November 1993 on the Basic Provisions of the Military Doctrine of the Russian Federation, Judgment (The Constitutional Court, The Russian Federation July 31, 1995). 22 Ibid. 23 Ibid. 24 Isayeva v. Russia, Application No. 57950-00, Judgment, par. 97-98 (European Court of Human Rights February 24, 2005). 25 Ibid., par. 95-97.

238

Chapter Six

applicants when it carried out inadequate civilian evacuations.26 Russia submitted to the court an expert opinion from the Russian Combined Armed Services Military Academy on the incident.27 For simplicity, the Russian Combined Armed Services Military Academy will be referred to as simply “the Russian Academy.” The Russian Academy relied on their own military manuals to justify the fact that the armed forces acted lawfully in conducting the operation.28 Additionally, Russian personnel, who were involved in the planning of the military operation, presented evidence before the court. According to Major-General Vladimir Shamanov, the rebels attacked the Russian forces from within the Katyr-Yurt village.29 In order to avoid “unreasonably high” losses among his troops, the Russian commander Major-General Yakov Nedobitko employed air bombing, artillery and mine-launchers against the fortified positions of the fighters.30 The dense fog restricted the aircrew’s visibility.31 Indeed, according to the pilots, they normally do not fly in such weather conditions,32 but the severity of the threat faced by the troops on the ground made their air support indispensable.33 The observers on the ground chose the targets and later informed the pilots whether the targets had been successfully destroyed.34 From the facts as presented in the ECtHR, it emerges that the Russian observers on the ground did not have powerful vision equipment. First, the court observed that “poor visibility” impaired the observers’ ability to evaluate the character of potential targets.35 Secondly, the fact that on the third day of fighting eight hundred fighters used the cover of “thick fog” to flee to the mountains36 suggests that the observers did not detect the movement of the fighters leaving the village. According to the Russian commander, one of the aims of this operation was to prevent the fighters from breaking through the Russian forces’ lines and moving closer to the

 26

Ibid., par. 163-165. Ibid., par. 95-98. 28 Ibid. 29 Ibid., par. 69. 30 Ibid. 31 Ibid., par. 87. 32 Ibid. 33 Ibid. 34 Ibid. 35 Ibid., par. 196. 36 Ibid., par. 103. 27

A Toolbox for the Application of the Rule of Target Verification

239

mountains, with the goal of escaping.37 This instance of state practice is notable, because it shows what verification measures Russia considered itself bound to take in adverse conditions in which it was difficult for its pilots to identify the character of individuals and buildings in the target area. In its report to the ECtHR, the Russian Academy opened its analysis of the legality of its conduct by noting that Art. 19 of the Russian Army Field Manual required the commander “to involve all forces, measures and possibilities for achieving victory in a battle.”38 In turn, the report then discussed the commander’s “duty to minimise civilian losses.”39 The commander achieved this by (1) organising a timeframe for civilians to be evacuated and (2) confining the use of firepower to particular localities in the village.40 Clearly, the evacuation of civilians relates to the duty to issue an “effective” advance warning of the attack to civilians, “unless circumstances do not permit” this course of conduct.41 As well, the employment of firepower only against particular military objectives or in particular areas in the village refers to the requirement to take all “feasible” precautions in the choice of means and methods of warfare in order to avoid, or at least to minimise, inflicting harm to civilians. When the Russian Academy referred to the duty to minimise civilian losses,42 it must have borne in mind not only the principle of the least feasible damage and the requirement to issue an effective advance warning, but also the obligation to comply with the rule of target verification. This is the case because all three of these rules, coupled with the principle of proportionality, advocate for an overarching duty to minimise civilian loss.43 It must also be remembered, moreover, that the issuance of an advance warning of the attack does not release the

 37

Ibid., par. 105. Ibid., par. 97. 39 Ibid., par. 98. 40 Ibid. 41 Art. 57(2)(c) API 1977. 42 Isayeva v. Russia, Application No. 57950-00, Judgment, par. 98 (European Court of Human Rights February 24, 2005). 43 Art. 57(1) API 1977; Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:51-52. 38

240

Chapter Six

commander from the obligation to comply with all rules of targeting.44 Another relevant factor is that Russia, in the Isayeva v. Russia case, was responding to an allegation made by civilians: that they had been bombed on the road as they were evacuating the village.45 While explaining to the court why the commander acted lawfully, the Russian Academy surely considered whether the troops did everything “feasible” to verify that the targets were military objectives. It would be unusual if the Russian military experts explained to the court why the commander acted lawfully on the one hand, and yet neglected to counter the central claim in the case on the other, namely that the Russian forces carried out indiscriminate attacks. The reason that the judgment in Isayeva v. Russia does not contain a submission that directly mentions the rule of target verification may be explained by the fact that Russia did not disclose to the court the entire report of the Russian Academy. Although the military experts used six legal grounds as a basis for producing a report, which justified why the commander acted lawfully,46 Russia did not make known to the ECtHR the analysis of all six grounds on which its military experts based their decision.47 Consequently, while Russia did not divulge to the ECtHR the section of the report that dealt with the rule of target verification, the sections of the report that Russia had made available must have hinted at an explanation as to how the commander complied with the rule of target verification. If this argument is accepted, then it is possible to make another suggestion. The Russian experts must have taken into account the fact that, having assessed both the duty to issue an advance warning and also the rule of target verification, the commander organised for civilians to be evacuated.48 In all likelihood, the military experts concluded that the Russian commander acted lawfully, because he did not merely invoke force protection to justify air bombing in such “thick fog.” That the commander made arrangements for civilians to be evacuated meant that the military

 44

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 129-130 par. 522. 45 Isayeva v. Russia, Application No. 57950-00, Judgment, par. 17 (European Court of Human Rights February 24, 2005). 46 Ibid., par. 96. 47 Ibid. 48 Ibid., par. 97.

A Toolbox for the Application of the Rule of Target Verification

241

experts regarded the employment of aircraft and artillery as lawful, even though the conditions were such that observers on the ground had limited visibility. This reading of the Russian report is the only approach that reflects the intention of Russia to persuade the court that its troops did not carry out indiscriminate attacks, notwithstanding the fact that it emerged after the operation that civilians had been targeted. Indiscriminate attacks include attacks in which forces use lawful weapons in such a way as to strike military objects and civilians or civilian objects without distinction.49 It is difficult to see how the employment of bombs by Russia, which had a radius of destruction that exceeded one thousand metres,50 could be directed at a particular military objective. Indeed, ECtHR acknowledged in the Isayeva v. Russia case that Russia employed indiscriminate weapons to carry out the military operation.51 On the other hand, why is it that the Russian experts in the portion of the report they made available to the court, do not explicitly refer to the duty to do everything “feasible” to verify that the target is a military objective? One explanation could be that the Russian officers obliquely referred to the fact that they complied with this duty. In testifying before the court, Russian officers said that the forces directed weapons against “previouslydesignated” targets,52 which had been visually identified by observers on the ground.53 The officers in effect said that the fog hampered the ability of the pilots, but not of observers on the ground, to identify military objectives for the pilots. On this account, the Russian military experts did not have to explain that they complied with the rule of target verification, because Russian forces testified that observers on the ground visually verified every target as constituting a military objective. This argument, however, is not as persuasive as the above explanation. The court found that poor visibility did affect the ability of observers on the ground to evaluate whether proposed targets were military objectives.54 Because of this, it is difficult to believe that the Russian experts, having at their disposal all documents concerning the planning of the military operation,55 did not consider how foggy conditions bore on the commander’s

 49

Art. 51(4)(a) API 1977. Isayeva v. Russia, Application No. 57950-00, Judgment, par. 190 (European Court of Human Rights February 24, 2005). 51 Ibid., par. 191. 52 Ibid., par. 170. 53 Ibid., par. 88. 54 Ibid., par. 196. 55 Ibid., par. 96. 50

242

Chapter Six

obligation to comply with the rule of target verification. Instead, they must have thought that the evacuation of civilians made it unnecessary to ensure that the forces directed each munition at a specific military objective. What about the possibility that the Russian experts thought that the fog did not impair the ability of observers on the ground accurately to identify military objectives? Had this been the case, the Russian experts could have discussed what steps the Russian forces took to check whether the van, which they had targeted, was transporting civilians or rebels, without referring to the fact that the commander evacuated the civilians prior to commencing the operation. Instead, the Russian experts focus on the fact that the population was given “sufficient” time to evacuate prior to the onset of the operation.56 Therefore, the Russian experts discussed the fact that the commander had issued an advance warning of the attack in order to intimate that the forces complied with the rule of target verification. Attention will now turn to an analysis of how the Russian commander balanced various military considerations with each other, as well as military and humanitarian considerations. It is known that Russia employed aircraft on this occasion, although it ordinarily did not do so in conditions of such limited visibility,57 because its troops were in “serious need of support”58 and were far outnumbered. Approximately forty Russian troops59 encountered over two thousand Chechen fighters, who had taken positions in the village.60 Russia also employed special observers to aid pilots to pick out targets.61 In this particular instance, the elements of force protection and urgency of action were clearly interrelated in light of the pressing need to protect the Russian force. However, the element of force protection had greater weight, because the need to protect the force created an urgent situation which required the intervention of aircraft and artillery. According to the Russian commander, had the force not been greatly outnumbered, there may have been no urgency to call in aircraft and artillery to support the troops, and it may have been sufficient to employ only tanks.62

 56

Ibid., par. 98. Ibid., par. 87. 58 Ibid. 59 Ibid., par. 83. 60 Ibid., par. 78. 61 Ibid., par. 87. 62 Ibid., par. 74. 57

A Toolbox for the Application of the Rule of Target Verification

243

As regards the element of available resources, there is no evidence that the commander had alternative resources available that would have improved either visibility in the fog, or the accuracy of the information on which the pilots acted. In fact, there is no indication that the troops had powerful vision equipment available to them; nor is there a sign that they faced a choice with respect to how to allocate limited intelligence, surveillance and reconnaissance resources between competing missions. Given these circumstances, it appears as though the lack of available alternatives, which would have enabled better identification of targets in the fog, as well as the need to protect the force, led the commander to conclude that civilians had to be evacuated. The commander issued an order to evacuate the civilians in order to reduce the likelihood of the forces mistakenly concluding that a civilian or a civilian object was a lawful target. Assuming that the commander ordered the evacuation of civilians, since the force lacked specialist vision equipment, one can infer that the commander placed greater weight on the element of the likelihood of civilian harm than on that of available resources. This is because the commander did not simply invoke the lack of specialist vision equipment to justify conducting this military operation. There is also evidence that the commander placed more weight on force protection than on the need to reduce the likelihood of mistakenly targeting a civilian object. The commander deployed aircraft, not only despite the fact that observers on the ground were faced with poor visibility,63 but also despite the fact that the Chechen fighters (according to the government account) may have prevented civilians from evacuating themselves.64 If it is accepted that the Russian experts thought that advance provisions for the evacuation of civilians made the employment of aircraft in foggy conditions lawful, then this may even indicate that the commander placed greater weight on the element of likelihood of civilian harm than on the urgency of immediately responding to the threat posed by the Chechen fighters. To sum up, Russian state practice suggests that in cases where the weather impairs the ability of the attacker to verify the character of the targets, or where there are no extra resources or ways of acquiring information, the element of the likelihood of civilian harm trumps those of urgency of action and available resources (in this instance lack of vision enhancement equipment). However, where the survivability of the force is threatened,

 63 64

Ibid., par. 106. Ibid., par. 98.

244

Chapter Six

the element of force protection is likely to trump the element of the likelihood of harm to civilians. In turn, this points to the fact that when the military advantage entailed in conducting additional verification is considerable, such as when the force is clearly outnumbered, and the likelihood of misidentifying a civilian object for a military objective is high, such as when the visibility is poor, the element of likelihood of civilian harm is dominant. This holds unless the survivability of the force may be jeopardised by conducting further verification measures. The terms considerable and high are here used in a non-technical way. Their purpose is purely to capture and to illustrate the propositions being made. There is nothing in the text of the testimony of the commander, the Russian troops or the report of the Russian experts that explicitly states that the commander considered how many civilians would die if the armed forces did not take further verification measures or evacuate civilians. Nevertheless, it is clearly foreseeable that conducting aerial bombing in conditions of poor visibility in a village with a population of approximately twenty five thousand65 may lead to the mistaken targeting of many civilians. It could be that the commander bore in mind the potential for injury to civilians and damage to civilians from bombing in poor weather when he made a decision whether to evacuate civilians, in order to enable compliance with the rule of target verification. Additionally, it is equally possible that the commander did not consider the magnitude of civilian harm that could be inflicted. Since the rule of target verification is designed to enable attackers to comply with the principle of distinction,66 the commander could have assessed purely whether the observers on the ground were able to distinguish lawful from unlawful targets in such adverse weather conditions. If they could not do so, then the commander would have considered whether to evacuate civilians, without regard to whether there were many or few civilians in the village. It is worth mentioning that the actual conduct of Russia diverged from the account it gave to the court. On the other hand, according to the civilians who testified before the ECtHR, Russian troops notified them that the

 65

Ibid., par. 16. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:52-53; Boothby, The Law of Targeting, 79. 66

A Toolbox for the Application of the Rule of Target Verification

245

soldiers had created a humanitarian corridor to enable them to evacuate several hours after Russia had set in motion aerial bombardment.67 However, having issued this notification, the Russian troops did not give civilians free passage.68 Russia, on the other hand, maintained that it was the Chechen fighters who prevented the civilians from evacuating.69 The ECtHR found that the commander started to evacuate the civilians several hours after the beginning of the military operation.70 For the purpose of ascertaining state practice, it is not significant that Russia’s statements diverged from its conduct. What Russia said in order to justify the legality of its troops’ conduct has greater weight than the actions of its forces. The International Court of Justice, in the Nicaragua v. United States of America case, held that as long as states treat instances of state conduct that are inconsistent with a given rule as breaches, the practice will not be treated as laying the foundation for a revision to the rule.71 The fact that Russia said to the court that its troops had evacuated the civilians before beginning the operation72 suggests that it regarded itself as being obligated to take this measure. In the end, the ECtHR found that Russia, in breaching Art. 2 of the European Convention on Human Rights, violated the right to life of the applicants.73 This aspect is not relevant to the analysis at hand, because the focus here is on the rules of targeting, as opposed to human rights provisions, which regulate when it is lawful to deprive an individual of his or her life.

B. State Practice of Israel The Israel Defence Forces came under mortar fire from Palestinian fighters on 6 January, 2009, in the course of carrying out a military operation during Operation Cast Lead 2009.74 The Israel Defence Forces

 67 Isayeva v. Russia, Application No. 57950-00, Judgment, par. 193 (European Court of Human Rights February 24, 2005). 68 Ibid., par. 193-194. 69 Ibid., par. 25. 70 Ibid., par. 193. 71 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 88 par. 186. 72 Isayeva v. Russia, Application No. 57950-00, Judgment, par. 98 (European Court of Human Rights February 24, 2005). 73 Ibid., par. 201. 74 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 337.

246

Chapter Six

sent a scouting unit to verify the location of the mortars.75 During this fifty-minute period, in which the scouting unit searched for the location of Palestinian fighters,76 the Israeli forces faced what they reported to be a “concrete and immediate” threat,77 because the Palestinian fighters fired mortars at them every few minutes.78 Clearly, in this situation the Israeli forces felt that there was a need to protect the force. As a result, the commander considered that it was urgent to respond immediately to enemy fire. The commander additionally bore in mind the degree of military advantage the killing of Palestinian fighters offered in the circumstances. Moreover, the commander contemplated the ease of identifying targets in a populated area, and whether the source of incoming mortar fire could be located without dispatching a scouting unit or aircraft to conduct reconnaissance. Also relevant to the commander’s assessment was the fact that scouting units, who could carry out this task, were available.79 Israel does not explain whether the commander anticipated that it would take the scouting unit fifty minutes, or thereabouts, to verify the location of mortar fire.80 However, the commander’s training would have enabled him or her to estimate the likely location of the incoming fire, and how long it could take the scouting unit to communicate the location of the Palestinian fighters. Furthermore, the commander could clearly evaluate not only the reliability of the estimate of the location of the Palestinian unit, but also possible improvements in the quality of intelligence which could arise if a scouting unit was dispatched to verify the initial estimate. In effect, then, the commander had to compare the likelihood of incorrectly locating the Palestinian fighters, both if additional verification measures were to be taken and if no further action were to be taken. In the end, the commander decided that on this occasion it was a “reasonably available” option to take additional verification measures.81 The fact that the commander deployed a scouting unit,82 despite the unit’s facing a “concrete and immediate” threat,83 suggests that the commander

 75

Ibid., 128 par. 338. Ibid. 77 Ibid., 128 par. 340. 78 Ibid., 128 par. 337. 79 Ibid., 128 par. 338. 80 Ibid. 81 Ibid., 128 par. 337-338. 82 Ibid., 128 par. 338. 76

A Toolbox for the Application of the Rule of Target Verification

247

thought that in order to protect the force it was more important to reduce the likelihood of mistakenly targeting civilians than to respond immediately to the Palestinian fighters. It follows that in this particular scenario the element of likelihood of civilian harm trumped the elements of force protection and urgency of action. Further, since the force was exposed to “concrete and immediate” threat,84 the destruction of the target in this instance offered rather considerable military advantage. As regards the consideration of available resources, there is no evidence that the commander had either only one scouting unit or multiple missions that demanded that further reconnaissance be carried out. Therefore, the commander did not face a dilemma that involved dispatching a scouting unit to one of a number of possible missions. In fact, Israel said that it had two independent sources verify the location of Palestinian mortar fire.85 This suggests that the commander ordered additional reconnaissance to be carried out to supplement the information communicated by the scouting unit. Consequently, the weight the commander placed on the element of available resources in relation to other elements when applying the rule of target verification can only be conjectured. Let’s imagine now, for the purpose of discussion, that the commander lacked a scouting unit on this occasion. In this situation, the commander may well have concluded that it was not “feasible” to carry out further verification. At this point the obligation placed on commanders by the principle of distinction will come into play. The analysis of the state practice on the principle of distinction shows that parties to the conflict are permitted to carry out an attack, if it is a “possible but very unlikely” scenario that the proposed target is a civilian object. When a commander concludes on the basis of available information that it is “very unlikely” that the target coordinates are incorrect, he or she could proceed with the attack. On the other hand, if a commander was unable to ascertain whether the coordinates of the Palestinian mortars met this test, then he or she would have been obligated to send someone, or a number of soldiers, to establish the location of these mortars. Since the purpose of the rule of target verification is to put parties to the conflict in a position in which they can comply with the principle of distinction,86 commanders should

 83

Ibid., 128-129 par. 340. Ibid., 128 par. 340. 85 Ibid., 128 par. 338. 86 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:52-53. 84

248

Chapter Six

place more weight on the element of likelihood of civilian harm than on constraints on resources in a situation such as this one. Boothby is likely to disagree with this conclusion. He takes the same starting point, namely that obligations placed on the attacker by the rule of target verification should be interpreted in light of the principle of distinction.87 However, Boothby also argues that if the attacker lacks either information or resources that make it possible to check the reliability of the intelligence on which a targeting decision is made, and if it is urgent to act, then a commander is not obligated to check the reliability of intelligence.88 In another passage Boothby maintains that, “The degree of care that it is realistic to expect from an attacker may vary with the circumstances of the attack. It may be unrealistic to expect any precautions where ‘the attacker’ is acting urgently to defend against hostile action that places him [or her] and/or his platform in danger, or where the military situation otherwise requires an urgent, indeed immediate, response.”89

He would, therefore, say that if a commander lacks a sufficient number of soldiers, which could be sent to confirm the coordinates of mortar fire, then a commander would be entitled to act on the basis of the best estimate of the location of mortars. Boothby’s argument is echoed by Major General A.P.V. Rogers, who states that the force is not obligated to assume risk in order to conduct additional reconnaissance, if failure to respond immediately to the adversary’s actions will put the force in “immediate danger.”90 Boothby’s proposition is incompatible with his own suggestion that the rule of target verification should be interpreted in light of the principle of distinction.91 The principle of distinction is formulated as an absolute obligation,92 and states consider the degree of certainty an attacker must obtain to be independent of military considerations, such as the urgency of responding to the enemy’s actions. It is difficult to see how an attacker who uses estimated coordinates of the location of enemy mortars could comply with the principle of distinction. Such estimated coordinates do

 87

Boothby, The Law of Targeting, 79. Ibid., 152. 89 Ibid., 174. 90 Rogers, “Zero-Casualty Warfare,” 165. 91 Boothby, The Law of Targeting, 79. 92 Art. 48 API 1977. 88

A Toolbox for the Application of the Rule of Target Verification

249

not provide sufficiently accurate information about the location of the enemy, especially because enemy troops could move quickly after firing to protect themselves. Therefore, since the purpose of the rule of target verification is to enable the attacker to comply with the principle of distinction,93 commanders should not invoke lack of resources to justify not sending a scouting unit. It is not the case that mobilising a scouting unit compromises the ability of the troops to survive. When on a reconnaissance mission, soldiers may use fires to prevent the enemy’s troops from manning their equipment or moving, as well as movement to take positions of advantage in relation to the adversary’s force.94 These steps mitigate the danger to which the attacking troops are exposed.95 It is known that survivability of the force depends, to a great extent, on how effectively the force uses movement, buildings and urban landscape to reduce the risk of being killed.96 Welltrained soldiers have a good prospect of surviving, given their ability to exploit the cover offered by buildings. Boothby treats force protection and urgency of action as a carte blanche for proceeding with the attack, even if the information a commander has is potentially unreliable. He does not discuss the fact that the force could take measures to mitigate the danger to which it is exposed while conducting reconnaissance. Indeed, the better approach is to treat the urgency of immediately responding to the enemy to protect the force as being relevant to an assessment of what verification measures are “reasonably available” to an attacker, but only if the attacker can actually see the enemy. For instance, a pilot who is given target coordinates by ground troops may well decide that the target coordinates are sufficiently reliable. As a result, the pilot could conclude that there is no obligation to assume the risks inherent in carrying out additional verification. Another question is whether, in deciding whether it was “practicable” or “practically possible” to dispatch the scouting unit, the commander considered the extent of harm to civilians, which will occur if a civilian

 93 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:52-53. 94 Scales Jr., Yellow Smoke: the Future of Land Warfare for America’s Military, 30-31. 95 Ibid. 96 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 189191.

250

Chapter Six

object were to be attacked by mistake. This question is especially relevant in light of the fact that the Palestinian fighters operated eighty metres west of a U.N. shelter97 that housed 1368 civilians.98 The Israeli authorities were informed of the location of shelters.99 Consequently, the commander knew the coordinates of the shelter. Could it be that the close proximity of the Palestinian fighters to a shelter harbouring many civilians was one of the reasons why the commander delayed the response and dispatched a scouting unit? If, as Boothby contends, a force need not carry out additional verification when it urgently needs to use firepower to defend itself, 100 then the answer could be affirmative. However, if one accepts the position that states look upon military considerations, such as the need to protect the force, as though they have no bearing on the degree of certainty the force should attain in determining whether a target is in fact a military objective, as part of complying with the principle of distinction, then the answer is negative. The fact that the principle of distinction requires the attacker to achieve the same degree of certainty that the target is a military objective, irrespective of whether a building houses few or many civilians, provides further support for the proposition that the commander did not contemplate the element of magnitude of civilian harm when assessing what verification measures were “feasible” to take. The findings generated by the analysis of Israel’s state may be summarised as follows. The element of the likelihood of civilian harm trumps that of military advantage when the likelihood of mistakenly attacking a civilian object is rather high. This is notwithstanding the fact that, by conducting additional reconnaissance, commanders may forgo considerable military advantage. In this particular case, the likelihood of misidentifying a civilian object for a military objective was rather high, because the commander had doubt about the exact location of the Palestinian fighters.

 97

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 337. 98 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 150 par. 657. 99 Ibid., 157 par. 696. 100 Boothby, The Law of Targeting, 174.

A Toolbox for the Application of the Rule of Target Verification

251

C. NATO Attack on the Djakovica Convoy On 14 April, 1999, NATO mistakenly attacked a refugee convoy: the association thought that it was attacking Serb forces that were in the process of ethnically cleansing a village.101 The decision-making of NATO on this particular occasion will now be reconstructed in order to analyse how, in all likelihood, the commander applied the rule of target verification. According to NATO, at half past ten o’clock in the morning a pilot saw a fire spreading throughout the villages.102 The pilot saw a threevehicle convoy comprised of “uniformly shaped dark green vehicles,” which resembled troop-carrying vehicles, near the most recent house that was set on fire.103 On this basis, the pilot concluded that the Serb forces planned to make the Djakovica village their next target.104 The pilot bombed the lead vehicle of that three-vehicle convoy, relayed a “threat update” to the base and departed to refuel.105 Subsequently, NATO deployed five other aircraft to bomb the vehicles between 11:10 a.m. and 12:45 p.m.106 Two of these aircraft missed their targets.107 None of the pilots executed a dive to check whether the vehicles were civilian or military,108 reportedly because Serb forces had strong air defence systems.109 To protect the pilots, NATO had set the minimum flight altitude to fifteen thousand feet.110 One possible explanation regarding why NATO deployed five aircraft over a span of two hours to bomb vehicles,111 instead of bombing all the vehicles at the same time, is that a single aircraft does not carry the explosives necessary to destroy many vehicles. However, this explanation is unsatisfactory, for it does not explain why the commander did not

 101

“Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 6364. 102 Ibid., par. 65. 103 Ibid. 104 Ibid. 105 Ibid. 106 Ibid. 107 Ibid. 108 Ibid., par. 64. 109 Ibid.; Cordesman, The Lessons and Non-lessons of the Air and Missile Campaign in Kosovo, 203. 110 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 56. 111 Ibid., par. 64.

252

Chapter Six

dispatch the five aircraft all at once. Since five aircraft arrived on the scene within a timeframe of one and a half hours,112 it was not the case that the commander lacked a sufficient number of aircraft to deploy them in one go. The more satisfactory explanation is that the commander sent the aircraft not only to bomb Serb vehicles, but also to observe both how the situation unfolded and whether the situation on the ground had changed. One of the reasons why a commander may have wanted to observe how the situation unfolded was that it was known that the Serb troops used civilian vehicles.113 For this reason, it was necessary to verify whether some of the vehicles that looked like civilian vehicles were in fact military objectives. Assuming that the commander deployed the aircraft at time intervals not only to bomb vehicles, but also to monitor how the situation unfolded, one must take it that in deciding how to organise the operation to halt ethnic cleansing, the commander considered the likelihood of mistakenly targeting civilian vehicles. Accordingly, the commander took into account the element of the likelihood of civilian harm in applying the rule of target verification. A counter-argument against this proposition would maintain that the pilots had no reason to believe it was necessary to monitor the situation. This can be gleaned from the fact that the pilots testified to the ICTY Committee that the movement, size, shape, colour, spacing and high speed of the convoy lead them to conclude that it was a military convoy.114 Yet this counter-argument is not convincing. Delaying the bombing of military convoys was inconsistent with NATO’s goal to halt ethnic cleansing. In fact, the prolonged response resulted in the Serb forces having an opportunity to kill more civilians. Therefore, the commander had an important reason for dispatching the aircraft in turn. For this reason, an interpretation of the commander’s decision-making that holds that the commander intended both to bomb the targets and to monitor how the situation on the ground unfolded better captures the goal of the military operation. The fact that the commander deployed the aircraft separately and at regular time intervals suggests that the NATO commander judged that executing a dive, in order to confirm visually the character of the target, as

 112

Ibid., par. 65. Ibid., par. 67. 114 Ibid. 113

A Toolbox for the Application of the Rule of Target Verification

253

information that was not “reasonably available” possibility in this circumstance. However, the commander assessed that multiple aircraft equipped with cameras were a comparable substitute. Unfortunately, NATO bombed a refugee convoy, not Serb forces.115 In part, this tragedy occurred because NATO overestimated the quality of information yielded by technology, such as cameras and escort aircraft equipped with sensors. The evidence for this conclusion is drawn from the analysis of the ICTY Committee, which found that the fact that NATO pilots were supported by multiple aircraft equipped with sensors116 meant that “the obligation to distinguish was effectively carried out in the vast majority of cases during the bombing campaign.”117 As a result, the ICTY Committee did not open an investigation into particular incidents. Of course, it is possible to criticise NATO and the ICTY Committee118 for assuming that having multiple aircraft that operated at high speed and at high altitude119 enabled the pilots to verify adequately the character of objects on the ground. What is relevant for the current analysis of state practice, however, is that the ICTY Committee accepted that it was reasonable for NATO to conclude that it could rely on technology.120 Moreover, there is evidence that the Djakovica tragedy could have been avoided, even if the pilots did not execute a dive. It is unclear why the pilot in the Djakovica incident did not suspend the attack when there was a difference between what the pilot saw on the camera and what the pilot observed with the naked eye.121 Nor is it known why, at approximately 12:40 p.m., one of the pilots came to doubt that the convoy was military in nature,122 but did not suggest that the attack be cancelled.123 Seemingly, the pilot thought that Serb forces did not usually travel in convoys of that size.124 It could be that the pilot decided not to make further enquiries, in part because parties to the conflict try to act in an unpredictable fashion, and in part because there could have been other cues that led the pilot to believe that the vehicles were driven by Serb forces. In the absence of

 115

Ibid., par. 63-64. Ibid., par. 56. 117 Ibid. 118 Ibid. 119 Ibid., par. 69. 120 Ibid., par. 56. 121 Ibid., par. 67. 122 Ibid. 123 Ibid., par. 65. 124 Ibid., par. 67. 116

254

Chapter Six

further information, it is not possible to establish conclusively why NATO did not cancel the attacks at an earlier stage. For the purpose of analysing the state practice of NATO, it is significant that NATO claimed that its pilots cancelled further attacks as soon as they came to doubt that they were attacking military vehicles.125 This incident suggests that in determining what information was “reasonably available,” the NATO commander balanced (1) the urgency of acting to protect civilians, (2) the protection of the pilots from air defence systems and (3) the availability of resources, such as multiple aircraft, with (4) the likelihood of mistakenly engaging a civilian vehicle. Following the Djakovica incident as well as other similar incidents, in which pilots mistakenly attacked civilian objects, NATO changed its rules of engagement.126 The association’s new rules of engagement required pilots to execute a dive.127 This revision of the rules of engagement suggests that NATO states were prepared to place more weight on the need to reduce the likelihood of civilian objects being targeted than on force protection. In turn, this points to the element of the likelihood of civilian harm having more weight than the element of force protection. At this stage, it is necessary to address the fact that in planning the military campaign Operation Allied Force 1999, NATO rejected the possibility of deploying ground troops. Employing ground troops would have enabled NATO to identify, with greater accuracy, the character of proposed targets. There is evidence that NATO chose not to use ground troops to collect intelligence, because the risk to the force outweighed the rewards of superior intelligence.128 Nardulli et. al. published an unclassified version of their report to the United States Army, which examined how NATO conducted itself in that armed conflict.129 According to the report, NATO initially considered the use of Task Force Hawk,130 which consisted of helicopters supported by artillery and long-range Army Tactical Missile System.131 However, it ultimately rejected using a ground

 125

Ibid. BBC2, Moral Combat - NATO at War, broadcast on BBC2, March 12, 2000. 127 Ibid. 128 Bruce R. Nardulli et al., Disjoined War: Military Operations in Kosovo 1999, (Santa Monica: RAND Corporation, 2002), 94-95. 129 Ibid., preface. 130 Ibid., 80. 131 Ibid., 94. 126

A Toolbox for the Application of the Rule of Target Verification

255

contingent, because the military risks of using these assets, including attrition of helicopters, outweighed the rewards.132 It would be premature, at this moment, to conclude that the way in which NATO went about planning the military campaign indicated that it placed more weight on force protection than on reducing the likelihood of mistakenly targeting civilian objects. There is evidence that had NATO employed ground troops, it would have exposed civilians to danger. According to Nardulli et. al., because there was a large contingent of Serb troops equipped with rocket-propelled grenades on the ground, NATO artillery would have had to fire in advance of the infantry against area targets to enable its infantry to survive.133 When there are no observers on the ground to identify targets for artillery, there is a rather high risk that the force will mistakenly engage civilians and civilian objects. More broadly, using artillery to fire against area targets causes many civilian deaths. Therefore, although having troops on the ground would have enabled NATO to gather first-hand knowledge of the events on the ground, this option had the undesirable aspect of fighting on the ground. These battles would have considerably endangered the civilians and NATO troops. Consequently, NATO did not necessarily put force protection over humanitarian considerations in refusing to deploy a ground contingent. Another relevant issue is how the commander balanced the element of available resources against other elements. No information regarding whether the commander faced conflicting needs while deciding how many aircraft to allocate to the Djakovica mission is available. This means that one cannot establish the relative weight the commander placed on the element of available resources. Furthermore, if it is accepted that the mission of the pilots was not only to bomb targets, but also to assess how the situation on the ground unfolded, then it would follow that the commander judged the requirement to reduce the likelihood of target misidentification to be more important than to respond immediately to the actions of the Serb forces. Otherwise, the commander would have ordered five aircraft to bomb the vehicle convoys in one go. In turn, this suggests that the commander placed greater weight on the element of the likelihood of civilian harm than on the element of urgency of action.

 132 133

Ibid., 94-95. Ibid., 94.

256

Chapter Six

The Djakovica incident may be interpreted as both supporting and refuting the hypothesis that commanders consider the magnitude of civilian harm, which will occur if a civilian object is attacked by mistake, in assessing what information is “reasonably available” for them to obtain. Clearly, it was foreseeable that the village’s inhabitants would try to flee from the Serb forces. Since NATO had reports that the Serb forces used both civilian and military vehicles,134 the commander surely envisaged that there was a risk that pilots might mistake civilian vehicles for military ones. The fact that the commander did not order the pilots to execute a dive, despite the number of vehicles present on the road,135 suggests that the potentially large number of civilian vehicles on the road did not influence his decision-making. The second interpretation of the commander’s decision-making is that because the rules of engagement prescribed a minimum operational altitude for the aircraft,136 the commander lacked the authority to order pilots to execute a dive. In order to reduce the possibility of attacking the many civilian vehicles that were present on the road, the commander deployed five aircraft at time intervals to bomb the targets. And, of course, there is a possible third interpretation. The commander could have dispatched aircraft at time intervals in the belief that having an understanding of how the situation unfolded was crucial insofar as it enabled the pilots to comply with the principle of distinction. On this account, the number of vehicles on the road did not matter, since the principle of distinction requires that the same degree of care be taken in identifying the nature of each target. Given these conflicting interpretations of the decision-making of the commander, what can be concluded at present is that NATO commanders initially placed at least as much weight on the element of likelihood of civilian harm as they did on force protection. The fact that NATO changed its rules of engagement in the middle of the military campaign, to require pilots to execute a dive, even though the Serb forces had strong air defence systems, indicates that at that point NATO treated the element of the likelihood of civilian harm as trumping that of force protection. Hence, when the military advantage entailed in taking further verification measures is considerablefor instance, because the enemy has strong air

 134

“Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 67. 135 Ibid., par. 63. 136 Ibid., par. 56.

A Toolbox for the Application of the Rule of Target Verification

257

defencesthe element of military advantage trumps that of the likelihood of civilian harm, unless the likelihood of attacking a civilian object by mistake is rather high.

D. State Practice of the United States of America According to Lieutenant Colonel Eric Widmar, Judge Advocate General at the United States Army, “My personal experience has been that commanders seek to achieve the standard articulated in Art. 57 of AP I 1977 in that they apply all feasible precautions, to include gathering as much intelligence as possible given the resources available, in planning and executing attacks. Intelligence is vetted, analysed, and cross-checked against other sources to determine its reliability, timeliness, and validity. The intelligence supporting each target is evaluated on a case-by-case basis. The intelligence supporting specific targets may take a few minutes to develop (for example, the actual visual observation of an insurgent attack on a government installation), or it may take weeks, months, or even years to develop to the level that a commander feels he [or she] is making a reasonable decision in light of all the information available at the time the decision is to be made.”137

The reference in the above passage to the “reliability, timeliness and validity” of intelligence that has been gathered138 suggests that American commanders take into account the likelihood of mistakenly attacking a civilian object in assessing whether it is “feasible” to gather additional information. That commanders gather “as much intelligence as possible given the resources available”139 points to the fact that commanders place greater weight on the element of available resources than on the element of likelihood of civilian harm. Another relevant aspect is that commanders in certain cases take weeks, months or even years to develop a target “to the level that a commander feels [that] he [or she] is making a reasonable decision in light of all the information available at the time the decision is to be made.”140

 137

Lieutenant Colonel Eric W. Widmar, e-mail message to the author “The Rules of Targeting,” October 22, 2013. 138 Ibid. 139 Ibid. 140 Ibid.

258

Chapter Six

From this statement, it can be gleaned that commanders do not necessarily look upon a lack of available resources as a justification for proceeding with an attack. Instead, the commanders postpone attacks, if they believe that they lack sufficient intelligence about the proposed target, until such a time that they are able to divert resources from competing missions to the current mission. Accordingly, in practice, the element of likelihood of civilian harm has as much, if not more, weight than the element of available resources. Of course, whether commanders will divert their scarce resources from another task to the present mission depends on how important the present mission is. What is more, the statement that a commander may take months or years to gather intelligence about a target, so as to be able to make “a reasonable decision in light of all the information available,”141 suggests that commanders put greater weight on the element of the likelihood of civilian harm than they do on the urgency of acting without delay. Lieutenant Colonel Widmar provided an additional insight into how the American commanders apply the rule of target verification. He shared that, “My experience has been that commanders use as many assets as possible under the circumstances in conducting attacks, and employ various tacticsincluding exposing their forces to increased riskin order to confirm or deny intelligence gathered or limit the risk to noncombatants.”142

The fact that the United States of America assumes risk in order to conduct further verification measures demonstrates that the element of likelihood of civilian harm trumps that of force protection. Of course, at times the United States of America is not prepared to assume risk to the force in order to reduce the likelihood of misidentifying a civilian object for a military objective. American military manuals indicate that the force need not assume risk, if doing so will compromise its chances of achieving the goal of the mission.143 The guideline in the military manuals suggests that the element of likelihood of civilian harm trumps that of force

 141

Ibid. Ibid. 143 The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-23; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations NWP1-14M, par. 8.3.1. 142

A Toolbox for the Application of the Rule of Target Verification

259

protection, unless the soldiers forgo substantial military advantage in assuming risk in order to take additional verification measures. In order to examine more closely the state practice of the United States of America, it is valuable to look at how the commander balanced the elements of military advantage, likelihood of civilian harm and magnitude of civilian harm in the Ameriyya incident. Scholars tend to agree with the view of the United States of America that its commanders acted lawfully in this particular instance.144 The Ameriyya incident involved a commander ordering an air strike on what he or she believed to be a military command and control facility.145 During the Iran-Iraq war, Iraq used the building as an air raid shelter.146 Having ordered satellite images to be taken of the building, having checked for the presence of military communications and having conducted aerial reconnaissance in daylight hours, the commander concluded that the building was a command and control facility.147 Middle East Watch argued that had the United States of America conducted reconnaissance in the morning hours, it would have discovered that civilians used the building at night in order to take shelter from air bombing.148 On the other hand, according to Lieutenant Michael Lewis, the commander regarded conducting aerial reconnaissance of the bunker in the morning as an option that was not “reasonably available.”149 This was due to the fact that the United States of America had to allocate its limited aircraft to a competing task: examining whether some of its military objectives had to be bombed a second time.150 Notwithstanding these two competing views of how the commander should have acted, there is no evidence that the commander encountered a dilemma predicated upon the decision either to conduct reconnaissance in the morning or to conduct bomb damage assessment. The interception of military communications,

 144 Solis, The Law of Armed Conflict: International Humanitarian Law in War, 259; Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 97. 145 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, Appendix O, The Role of the Law of War, 615. 146 Ibid. 147 Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991. 148 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 140. 149 Lewis, “The Law of Aerial Bombardment in the 1991 Gulf War,” 503. 150 Ibid., 504; Keaney and Cohen, Gulf War Air Power Survey: Planning and Command and Control, 256.

260

Chapter Six

the frequent presence of military vehicles and the camouflaged appearance of the building151 guided the commander to conclude that the building was a military objective. Therefore, it is not the case that the commander placed more weight on the element of available resources than on that of likelihood of civilian harm. A crucial aspect of the Ameriyya incident is that command and control bunkers are high-value targets.152 Commanders would want to attack such high-value military objectives as soon as possible. Regardless of the military value of the immediate disruption of the command and control of enemy troops, the United States of America monitored the military radio communications, originating from the building, for a period of two to three weeks.153 Since even advanced militaries necessarily have limited intelligence, surveillance and reconnaissance resources,154 it must be that the commander wished to ascertain that the building was in fact a command and control bunker. The Ameriyya incident demonstrates that the commander placed more weight on reducing the likelihood of mistakenly attacking a civilian shelter than on urgently engaging the target. Consequently, the commander judged that the element of likelihood of civilian harm had greater weight than the element of urgency of action. As regards the emphasis the commander placed on protecting the force, it is known that the United States of America attained air supremacy early in the campaign.155 Therefore, the pilots operated at very low risk or at no risk at all.156 Because the pilot operated with relative safety, force

 151

Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991. 152 Gregory Katz and Albert Aji, “Syria Intervention? Momentum Builds For Western Military Action,” Huffington Post, August 27, 2013. 153 Guardian, “The Gulf War: No Explanation for Civilians’ Presence, Says General - The Suggestion That Saddam Put Women and Children in the Bombed Bunker as Part of Strategy Was Described as Plausible at a U.S. Briefing,” Guardian, February 14, 1991; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 136. 154 The United States Department of the Army, The Stryker Brigade Combat Team Infantry Battalion FM 3-21.21 (Washington, DC: Department of the Army Headquarters, 2003), 3-2. 155 Johnson, Niblack, and Winnefeld, A League of Airmen: U.S. Air Power in the Gulf War, 123. 156 Vego, Joint Operational Warfare: Theory and Practice, II-66.

A Toolbox for the Application of the Rule of Target Verification

261

protection was not a concern for the commander. On this occasion, the commander had no need to balance the element of force protection against other elements, such as the likelihood of civilian harm. It is unclear whether the commander considered the magnitude of civilian harm that would result if the building turned out to be a bomb shelter. The fact that the commander monitored the military communications originating in the building for two weeks, as opposed to a shorter time period, despite the fact that the building looked like a military objective, implies that the commander may have been concerned about the repercussions of targeting a civilian object that potentially housed many civilians. At the same time it is equally plausible that the commander was worried about complying with the principle of distinction rather than about the number of civilians, who would have died had the building been incorrectly identified as a military objective. The findings made in the course of analysing the Ameriyya incident may be summarised as follows. The commander placed greater weight on the element of likelihood of civilian harm than on those of available resources and urgency of action. Even when the military advantage entailed in conducting additional verification is considerablefor example, because it is important to carry out a mission on short noticethe element of likelihood of civilian harm trumps that of military advantage, provided that the commander has some form of doubt about whether the target is in fact a military objective. Unfortunately, no information exists on the subject of the degree of doubt the commander had when he or she decided to spend a number of weeks monitoring military communications emanating from the bunker. Nor is it known whether the commander first obtained the intercepts of military communications or intelligence about the camouflaged appearance of the building and the presence of leadership vehicles. However, the fact that the commander spent between two and three weeks monitoring signals intelligence hints that he or she assessed the likelihood of mistakenly concluding that the building was a civilian object as being rather high. The insights generated by the analysis of the Ameriyya incident are in line with the conclusions drawn from the examination of the statements of Lieutenant Colonel Widmar. In sum, the findings of this section hold that when the military advantage entailed in taking additional verification measures is considerable, either because there are no available resources or the force’s survival is under threat, the element of military advantage

262

Chapter Six

trumps that of the likelihood of civilian harm, unless, of course, both military advantage and the likelihood of civilian harm are high.

E. The Eritrea-Ethiopia Claims Commission In Ethiopia’s Claim 2 between the Federal Democratic Republic of Ethiopia and the State of Eritrea the Eritrea-Ethiopia Claims Commission analysed whether Eritrean pilots deliberately targeted a civilian neighbourhood on 5 June, 1998.157 For simplicity, the Eritrea-Ethiopia Claims Commission will be referred to as the “Claims Commission.” The Eritrean pilots carried out four missions in total,158 and employed cluster bombs during the third and fourth sorties.159 Eritrea said that either the programmers or pilots pre-programmed the computers for two different targets prior to the sorties,160 namely the airport and the anti-aircraft defence systems.161 Yet the Claims Commission concluded that in both instances the pilots instead released the cluster bombs over the civilian Ayder neighbourhood in the Mekele town.162 Responding to this finding, Eritrea explained that its pilots and programmers were inexperienced,163 and that the state in fact had “very few” experienced personnel.164 Upon their return to the military base, the pilots reported to their commander that they had successfully struck their intended targets.165 According to the Claims Commission, possible reasons for the erroneous targeting were (1) the pilots incorrectly input the data into the computer system, (2) they erroneously released the weapon too early, or (3) they zigzagged to avoid anti-aircraft fire.166 Moreover, it is

 157 Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea, Partial Award Central Front, par. 108 (The Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission April 28, 2004). 158 Ibid., par. 103. 159 Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea, Partial Award Central Front, par. 108-109 (The Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission April 28, 2004). 160 Ibid., par. 109. 161 Ibid., par. 105. 162 Ibid., par. 107-108. 163 Ibid., par. 109. 164 Ibid., par. 110. 165 Ibid., par. 105. 166 Ibid., par. 109.

A Toolbox for the Application of the Rule of Target Verification

263

also possible that the fourth pilot aimed at the smoke resulting from the third sortie.167 The Claims Commission proceeded with the analysis of whether Eritrea failed to comply with the rule of target verification, first by remarking that the law only requires that a state take “feasible” precautions.168 For that reason, it was lawful for Eritrea to use inexperienced pilots and ground crew.169 The Claims Commission then went on to say: “However, the Commission has serious concerns about the manner in which these operations were carried out. The failure of two out of three bomb runs to come close to their intended targets clearly indicates a lack of essential care in conducting them, compounded by Eritrea’s failure to take appropriate actions afterwards to prevent future recurrence.”170

The Claims Commission concluded that because the commander and the pilots failed to exercise due care,171 Eritrea was liable for civilian deaths and damage to civilian objects.172 At first glance, the conclusion of the Claims Commission173 is that it is inconsistent to say, on the one hand, that a state can use inexperienced pilots, and on the other that it can be responsible for such pilots failing correctly to place a bomb on a target.174 This rather conflicting approach may have been influenced by the fact that the pilots operated aircraft that had a computerised aiming system that was very simple to use. The system required the pilot to push a switch when the pilot saw the target aligned with the “heads up” display in the cockpit.175 It is possible that the Claims Commission thought that even inexperienced pilots should have been able to press a switch over the correct location.176 Consequently, the Claims Commission most likely believed that even inexperienced pilots were capable of placing a bomb over the correct target.

 167

Ibid. Ibid., par. 110. 169 Ibid. 170 Ibid. 171 Ibid. par. 100. 172 Ibid., par. 113. 173 Ibid., par. 110-112. 174 Ibid., par. 110. 175 Ibid., par. 103. 176 Ibid., par. 110. 168

264

Chapter Six

The Claims Commission listed four possible explanations as to why the pilots may have released the bombs over the wrong locations.177 That the pilot of the third sortie could have released the cluster munitions too early178 is unproblematic as pilots frequently have to zigzag in order to evade the threat posed by an adversary’s air defence systems.179 In turn, this evasive tactic reduces the accuracy of bombing.180 In international humanitarian law, pilots are not held responsible for the effects of an enemy’s electronic countermeasures and air defence systems on their mission.181 Furthermore, states excuse genuine mistakes,182 but also recognise the difficulty of making decisions “amid the confusion of war”183 and the attendant influence of stress.184 States consider military personnel who act with negligence to be responsible for breaching the rules of targeting.185 Another possible explanation for why the pilot released the cluster munitions too early is that the computer on-board the aircraft malfunctioned.186 As may be expected, states do not hold combatants responsible for computer malfunctions.187

 177

Ibid., par. 109. Ibid. 179 J.M. Lenorowitz, “Air Crew Training, Avionics Credited For F-15Es High Target Rate Hits,” Aviation Week & Space Technology, April 22, 1991, 107. 180 Ibid. 181 United Kingdom Ministry of Defence, United Kingdom Joint Service Manual of the Law of Armed Conflict, par. 5.32.4; Program on Humanitarian Policy and Conflict Research, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, 87; Hays Parks, “Air War and the Law of War,” 190-193. 182 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 90. 183 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 616. 184 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 90. 185 R. v. David Brocklebank, File No. CMAC-383, Judgment (Court Martial Appeal Court, Canada April 2, 1996), quoted in W.J. Tremeear, Canadian Criminal Cases, vol. 106, 3rd ed. (Aurora: Canada Law Book Company Ltd., 1997), 234. 186 Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea, Partial Award Central Front, par. 109 (The Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission April 28, 2004). 187 For the position of Israel on this point see U.N. Human Rights Council, Report of the High-Level Fact-Finding Mission to Beit Hanoun Established under Council Resolution S-3/1 Doc. A/HRC/9/26 (Geneva: United Nations, September 1, 2008), 178

A Toolbox for the Application of the Rule of Target Verification

265

In certain circumstances, incorrectly inputting the target coordinates into the computer system could amount to a failure to act with due care on the part of programmers or pilots. The Claims Commission first observed that it was acceptable for Eritrea to use inexperienced personnel,188 and that one of the programmers could have inputted the wrong coordinates in the “confusing” and “exciting” atmosphere of that day.189 However, if the programmer inputted incorrect coordinates both for the third and fourth missions, then this indicates a lack of due care.190 Therefore, the Claims Commission thought that making the same error twice in a row constituted negligence. Furthermore, the conduct of the pilot of the fourth sortie, who targeted the smoke that resulted from the previous strike, raises a question191 as to whether the pilot exercised adequate care. There is evidence that the pilot of the fourth mission should have realised that the pilot of the third sortie did not engage the correct target. The commander tasked the pilot who carried out the third mission to attack the anti-aircraft defences.192 This military objective was located four kilometres from the civilian neighbourhood, which that pilot actually struck.193 For this reason, the pilot of the fourth sortie could not argue that he or she was re-striking the enemy’s air defence system. Crucially, the pilot of the fourth sortie was tasked with bombing the airport,194 which was located in a different location to that of Ethiopia’s air defence systems.195 In effect, the Claims Commission based its findings on the fact that the pilots of the third and fourth sorties failed to meet the degree of care expected even of inexperienced pilots. It was concerned (1) that either the

 par. 38. The U.N. HRC Mission said that the law is silent on this issue. Ibid., par. 48. 188 Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea, Partial Award Central Front, par. 110 (The Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission April 28, 2004). 189 Ibid., par. 109. 190 Ibid., par. 110. 191 Ibid., par. 109. 192 Ibid., par. 105. 193 Ibid. 194 Ibid. 195 The Mekele airport is located approximately seven kilometres from the Ayder neighbourhood. Ibid., par. 103. The anti-aircraft defences were positioned northwest of the airfield and at least four kilometres from the Ayder neighbourhood. Ibid., par. 105.

Chapter Six

266

programmers or the pilots inputted incorrect information into the aircraft on-board computer, or (2) that the pilot of the third sortie inputted incorrect data into the computer and, in turn, that the pilot of the fourth sortie targeted the smoke from the third strike.196 The Claims Commission did not confine its analysis to whether the pilots failed to meet the standards set by inexperienced pilots. As well, given that Eritrea did not take remedial measures to prevent targeting mistakes from recurring,197 the Claims Commission concluded that Eritrea breached the rule of target verification.198 The Claims Commission commented that, “The failure of two out of three bomb runs to come close to their intended targets clearly indicates a lack of essential care in conducting them, compounded by Eritrea’s failure to take appropriate actions afterwards to prevent future recurrence.”199

It was relevant that the two Eritrean pilots bombed a civilian neighbourhood within a short time span, namely one hour.200 What is more, the commander, who planned the military operations “was aware of early news reports of events at Mekele.”201 Although the commander questioned the pilot of the third sortie, he did not order that the aircraft or its on-board computer be examined.202 The Claims Commission, therefore, thought that Eritrea should have terminated the bombing following the unsuccessful undertaking of the third sortie. The Claims Commission was also concerned that, following the erroneous identification of the target by the pilots of the third and fourth sorties, Eritrea failed to take steps to prevent the recurrence of strikes on civilian objects.203 Eritrea, they argued, should have reviewed the doctrine and military training of the air force.204 According to the Claims Commission, the fact that Eritrea did not inform the Commission about the conduct of military operations on the day on which the Ayder neighbourhood was

 196

Ibid., par. 109. Ibid., par. 110. 198 Ibid., par. 112. 199 Ibid. 200 Ibid., par. 107. 201 Ibid., par. 111. 202 Ibid. 203 Ibid. 204 Ibid. 197

A Toolbox for the Application of the Rule of Target Verification

267

bombed reinforced its conclusion that Eritrea failed to comply with the rule of target verification.205 Because the Claims Commission discusses in the same paragraph the concern that the commander did not inspect the aircraft following an attack on a civilian neighbourhood by the pilot of the third sortie, and because Eritrea did not introduce additional training for the pilots following the two consecutive attacks on a civilian neighbourhood, it is unclear whether the Claims Commission treated these two failings as separate. The scholarship of a number of academics suggests that the Claims Commission considered the commander’s failure to terminate further strikes, after the pilot of the third sortie targeted a civilian neighbourhood grounds for its determination that Eritrea breached the rule of target verification in and of itself. The United States of America carried out fifty air strikes against Iraqi leaders, none of which killed its intended target during Operation Iraqi Freedom 2003.206 A number of scholars criticised the American commanders for failing to learn early on that they used a flawed targeting methodology, and for not terminating the decapitation strikes sooner; in total, there were fifty unsuccessful missions.207 Their analysis of the decapitation strikes points to the fact that the Claims Commission used the failure of Eritrea to learn lessons in a timely manner as a separate basis for finding Eritrea to be in breach of the rule of target verification. That the Claims Commission found that Eritrea should have terminated further sorties, following the bombing of a civilian neighbourhood by the pilot of the third mission, demonstrates that in assessing what resources are “reasonably available” to them, commanders should bear in mind the likelihood of a pilot incorrectly placing a bomb on the target. Although it is lawful to deploy inexperienced personnel on a mission, there comes a point at which the likelihood of the pilot placing the bomb over a wrong location is so high that it may be unlawful to send that individual to carry out an attack. And if this is the case, then it would follow that the Claims Commission accepted that commanders might place greater weight on the

 205

Ibid. Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 22-25. 207 Bartolini, “Air Operations Against Iraq (1991 and 2003),” 256; Dinah PoKempner, Marc Garlasco, and Bonnie Docherty, “Off Target on the Iraq Campaign: A Response to Professor Schmitt,” Yearbook of International Humanitarian Law 6 (2003): 120. 206

268

Chapter Six

consideration of available resources than on the likelihood of the pilot incorrectly placing the bomb on the target. However, at some point the likelihood of erroneously attacking a civilian object is so high that it surpasses the element of available resources. Further indirect support for this interpretation of the conclusions drawn by the Claims Commission may be found in its criticism of Eritrea’s conduct following the two consecutive strikes on a civilian neighbourhood. After observing that the Eritrean commander neither inspected the aircraft of the fourth sortie nor questioned the pilot, the tribunal criticised Eritrea for not introducing changes to the training and doctrine of its armed forces, with the aim of ensuring that the Mekele incident would never be repeated.208 Since the Claims Commission did not discuss whether Eritrea had the resources to provide additional training to the pilots,209 despite accepting that Eritrea had to use inexperienced personnel,210 the Claims Commission must have thought that there is a limit at which a state may no longer justify using inexperienced personnel because of a lack of resources. The Claims Commission must have thought that at some point the likelihood of inexperienced personnel placing a bomb over a civilian object instead of over a military objective is so high that the element of likelihood of civilian harm trumps that of available resources. A possible criticism of this interpretation of the Claims Commission’s Award is that in the course of drafting API 1977, states made it clear that the rule of target verification places an obligation on parties to the conflict to take due care, rather than to achieve a specific result, such as to verify, to a certain degree of certainty the character of the proposed target.211 A response to this observation would be that there comes a point at which the pilots are so unskilled that they do not differ from troops on the ground, who are tasked with identifying targets for the aircraft in conditions in which the visibility is very poor. Russia said that its commander ordered

 208

Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea, Partial Award Central Front, par. 111 (The Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission April 28, 2004). 209 Ibid. 210 Ibid., par. 110. 211 Belgium, Statement of Belgium at the CDDH, Summary Record of the FiftyEighth Plenary Meeting: Explanation of Vote, Vol. VII, CDDH/SR.58, 9 June 1977, 290-291.

A Toolbox for the Application of the Rule of Target Verification

269

civilians to be evacuated212 prior to authorising the employment of aircraft and artillery213 in the “thick fog” that enveloped the village of KatyrYurt.214 This incident indicates that there comes a point at which the likelihood of attacking a civilian object by mistake is so high that commanders cannot reasonably argue that it is not “feasible” to allocate more resources in order to ensure that the pilots release a bomb over the correct location. Of course, it is difficult to glean from the term “feasible” how unskilled a pilot must be before it would be considered unlawful to secure their services during a mission. Nor have states addressed this issue. Other rules of international humanitarian law shed some light on this question. Boivin argues that if a pilot operates at high altitude, and if the likelihood of the bomb missing the target increases as a result of this practice, then the military operation may violate the principle of discrimination.215 The principle of discrimination prohibits attacks that are not directed at a specific military objective.216 When applied, this rule holds that if individuals use lawful weapons in such a way as to strike military objects, civilians and civilian objects without distinction, they violate the prohibition against launching indiscriminate attacks. Boivin draws a comparison between this situation and the illegality of indiscriminate attacks,217 in the sense that there comes a point at which the likelihood of the bomb missing its target is so high that it is uncertain whether the attack is in fact directed at a military objective.218 On this matter, Boivin makes a valuable observation. If there is a high likelihood that a bomb may land on a civilian object, then it is unclear whether in this particular instance an attack may be directed at a specific military objective. There is no legitimate reason why a pilot who incurs the risk of placing a bomb over a civilian object because of his or her highaltitude operation should be treated differently from a pilot who, owing to



212 Isayeva v. Russia, Application No. 57950-00, Judgment, par. 98 (European Court of Human Rights February 24, 2005). 213 Ibid., par. 69. 214 Ibid., par. 87. 215 Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 48. 216 Art. 51(4)(a) API 1977. 217 Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 48. 218 Art. 51(4)(a) API.

270

Chapter Six

a lack of skill, finds it difficult to place a bomb on target. Consequently, employing unskilled pilots may amount to an indiscriminate attack when such pilots launch attacks that are not directed at a specific military objective. Unfortunately, however, it is difficult to calculate with any sort of certainty an average number of bomb runs an unskilful pilot may participate in before the deployment of that individual violates the principle of discrimination. Examining the accuracy of dumb bombs is a useful starting point for deriving such a value. Pilots frequently have to employ multiple bombs in order to destroy a military objective,219 because only half of the bombs land within sixty one metres of their target.220 In order to reduce the likelihood of a bomb missing its target and landing on a civilian object as a result, pilots choose a particular flight path and release the bomb at a particular angle.221 This requires the pilots to exercise their skill. By looking at how many dumb bombs land on the target per ten sorties (or some higher number), it is possible to establish when an attack is unambiguously directed at a military objective, notwithstanding the fact that the bomb may land off target. General John Michael Loh of the United States Air Force said that during Operation Desert Storm 1991 it was expected that only one half of dumb bombs would land within the usual radius of bomb accuracy.222 The state practice suggests that the principle of discrimination is violated when a pilot, on average, is able to place the bomb on target in fewer than half of the sorties flown. Consequently, a pilot who, due to lack of skill, on average inaccurately performs in more than half of his or her sorties fails to comply with the principle of discrimination. When there is an equal chance that the pilot will place a bomb either on a civilian object or on a military objective, the pilot may not be said to be directing the bomb at a specific military

 219

Bailey, Field Artillery and Firepower, xxi–xxii; United States General Accounting Office, Operation Desert Storm: Evaluation of the Air Campaign, 188. 220 Hallion, Storm Over Iraq: Air Power and the Gulf War, 283. 221 Senior Defense Official, “Background Briefing On Targeting,” news release, March 5, 2003, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2007 (accessed March 22, 2009). 222 John D. Morocco, “Looming Budget Cuts Threaten Future of Key High-Tech Weapons,” Aviation Week & Space Technology, April 22, 1991, 66.

A Toolbox for the Application of the Rule of Target Verification

271

objective. Accordingly, if it is more likely that the pilot will place a bomb on a civilian object than that the bomb will be released over a military objective, then the principle of discrimination precludes the use of inexperienced or unskilled pilots. If a state does employ an unskilled pilot, then it may expose that pilot to greater risk in order to increase the probability that he or she will correctly place the bomb on a target. From the analysis, it emerges that the rule of target verification permits commanders to place greater weight on the element of available resources than on that of likelihood of civilian harm. However, if at any point the use of inexperienced pilots creates a sufficiently high likelihood that a civilian object may be targetedfor example, because the employment of inexperienced pilots is likely to clash with other rules of international humanitarian lawthe element of likelihood of civilian harm trumps that of available resources. Consequently, when a commander forgoes considerable military advantage as a result of the use of alternative resources (in this instance because Eritrea lacked experienced pilots), and when the likelihood of attacking a civilian object is also high (because battlefield experience demonstrated that the pilot released the bomb some distance from the target), the element of likelihood of civilian harm takes precedence over that of military advantage. The fact that the Claims Commission treated the employment of inexperienced pilots in the first and second sorties as lawful shows that, when the military advantage entailed in using alternative resources is considerable and the likelihood of attacking a civilian object is discernible though not significant, then the element of available resources prevails over that of the likelihood of civilian harm. As regards the issue of whether commanders contemplate the potential harm inflicted upon civilians if a target is misidentified, there is no evidence that in its reasoning the Claims Commission considered how many civilians were likely to die if the pilot were to release cluster munitions over an incorrect location. It follows that the Claims Commission did not act as though the element of the magnitude of harm to civilians was relevant in its assessment of the pilot’s compliance with the rule of target verification. The Claims Commission’s approach to its interpretation of the rule of target verification is to be commended. Although the Claims Commission acknowledged that states are entitled to use inexperienced personnel, it also entered the caveat that a state should not carry out further missions if its personnel are unable to release their weapons over correct locations.

272

Chapter Six

The Claims Commission’s conclusionthat failure to take steps to provide further training to Eritrea’s pilots following the Mekele incident constituted failure to take due carestrengthens current legal protections. Neither the rule of target verification as such nor state practice explicitly says that states which lack skilled military personnel should provide additional training to their personnel. While the Claims Commission did not articulate a positive duty to employ trained military personnel, the fact that it took into account that Eritrea did not take steps to change its doctrine and training in the wake of the Mekele incident should encourage states to take steps both to train their personnel and to acquire additional resources.

2. A Framework for the Application of the Rule It is valuable to compare how commanders of different states balanced the elements of likelihood of civilian harm and military advantage in applying the rule of target verification. Drawing parallels between the state practice of various states makes it possible to formulate theories regarding how commanders balance these two elements in applying the rule of target verification. There is no evidence that in planning a military operation in the Katyr-Yurt village, the commander judged that the high likelihood of civilian harm took priority over force protection. Since the forces were outnumbered and faced a serious threat, the commander decided to employ aircraft and artillery.223 In order to spare the civilians, Russia required that civilians be evacuated before air and artillery bombing could be employed despite the “thick fog.”224 This occurred in spite of the fact that the commander had observers on the ground whose task was to communicate the location of targets to aircraft and artillery.225 If the author’s analysis of the Russian state practice is accepted, then it would follow that in applying the rule of target verification commanders take the same steps to reduce risk to civilians, even when they face challenging circumstances, as they would have had they faced “standard” battlefield conditions. Examples of challenging circumstances include adverse weather conditions and lack of available technology. This conclusion runs counter to the view of some experts, who argue that the

 223

Isayeva v. Russia, Application No. 57950-00, Judgment, par. 69 (European Court of Human Rights February 24, 2005). 224 Ibid., par. 71. 225 Ibid., par. 87.

A Toolbox for the Application of the Rule of Target Verification

273

rule of target verification permits commanders to take fewer measures to reduce risk to civilians when they face adverse conditions on the battlefield.226 Moreover, the fact that Russia regarded the evacuation of civilians as a legally required course of action suggests that it may have viewed the urgency of action as less significant than the element of likelihood of civilian harm. Since Russia did not invoke considerations such the lack of available powerful vision equipment to justify immediately proceeding with aircraft and artillery attacks, it may have found the need accurately to identify military objectives as to be more significant than the element of available resources. Consider the example of Israel, which delayed mortar fire by fifty minutes in order to check the location of the enemy’s materiel,227 despite the “concrete and immediate” threat that its forces faced from Palestinian fighters.228 This state practice suggests that the element of the likelihood of civilian harm trumps the element of force protectionand, therefore, the urgency of responding to enemy firewhen there is a high likelihood of mistakenly attacking a civilian object.229 It is possible to draw parallels between the Israeli and Russian state practice. Considering whether to rely on estimated coordinates of the adversary’s mortars, the Israeli commander was in a similar position to that of the Russian commander, who assessed whether the observers on the ground were able to identify both military objectives and Chechen fighters in conditions of poor visibility. On the other hand, not only were the Israeli troops better trained than the Palestinian fighters they faced, but they also were less outnumbered than the Russian troops, which were ambushed during their reconnaissance mission. This is evidenced by the fact that the Israeli commander was able to postpone the attack by fifty minutes, whilst the Russian commander immediately had to call in aircraft and artillery in conditions of poor visibility. That the Russian reconnaissance group found itself greatly outnumbered may explain why the Russian commander authorised the employment of aircraft and artillery, but made such use conditional on the evacuation of civilians. Therefore, although Russia placed greater weight

 226

Report on Expert Meeting “Targeting Military Objectives” (Geneva: The University Centre for International Humanitarian Law, May 12, 2005), Annex II. 227 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 338. 228 Ibid., 128-129 par. 340. 229 Ibid., 127 par. 337-338.

274

Chapter Six

on the element of force protection than it did on the element of the likelihood of civilian harm, it is not necessarily the case that the consideration of force protection always trumps that of likelihood of civilian harm. The different weight placed on the consideration of force protection by Russia and Israel may be clarified by reference to the fact that the Russian troops were more outnumbered, and, therefore, faced graver danger than did the Israeli troops. If it is accepted that there is an analogy between the conduct of the Russian and the Israeli commanders, then it is possible to draw a parallel between these two case studies and the statements of Lieutenant Colonel Widmar. Lieutenant Colonel Widmar explained that the American forces assume risk in order to confirm the validity of intelligence.230 However, the United States of America does not require its forces to compromise their chances either of survival or of winning.231 From this information, one may conclude that commanders give greater consideration to the element of likelihood of civilian harm than to force protection, unless gathering additional intelligence compromises the forces’ chances of survival. Examining Israel’s state practice, one may say that it could be the case that the Israeli commander sent a scouting unit, because although the troops faced a “concrete and immediate” danger, they nevertheless had a reasonable chance of surviving under fire. If this was the case, then Israel’s conduct does not exclude the premise that when there is a high likelihood of mistakenly attacking a civilian object, the element of likelihood of civilian harm trumps that of force protection, unless taking further verification measures may compromise force survivability. In a similar vein, although NATO did not deploy ground forces232 and its pilots operated at high altitudes,233 it changed its rules of engagement subsequently to the Djakovica tragedy; now, the association require that pilots visually verify the character of targets.234 The NATO’s amendment

 230

Lieutenant Colonel Eric W. Widmar, e-mail message to the author “The Rules of Targeting,” October 22, 2013. 231 The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-23; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations NWP1-14M, par. 8.3.1. 232 Nardulli et al., Disjoined War: Military Operations in Kosovo 1999, 94-95. 233 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 56. 234 BBC2, Moral Combat - NATO at War, broadcast on BBC2, March 12, 2000.

A Toolbox for the Application of the Rule of Target Verification

275

to the rules of engagement235 demonstrates that when the likelihood of mistakenly attacking a civilian object is high and when the military advantage entailed by taking further verification measures is high commanders place greater weight on the element of likelihood of civilian harm than on force protection. The pilots sacrificed considerable military advantage in executing a dive to verify the character of the proposed target, as the Serb forces had strong air defence systems. And, of course, it was possible to conclude from the analysis of the Ameriyya incident, in which the commander spent a number of weeks monitoring military communications emanating from a building,236 that commanders may place greater weight on the element of likelihood of civilian harm than on considerations of available resources and urgency of action. It is useful to compare NATO’s conduct with that of the United States of America in the Ameriyya incident. The United States of America continued to monitor the presence of military communications from the bunker for two to three weeks after it first intercepted such signals, possibly because it wanted to investigate the Iraqi’s use of the building. Similarly, in all probability NATO employed multiple aircraft at time intervals in the Djakovica incident237 because it wanted to contextualise what its pilots saw, and to project how the situation was likely to unfold. The NATO commanders not only were concerned with obtaining intelligence about what was happening, but also wanted to ensure that their interpretation of events was accurate. These two instances of state practice provide valuable insights into how the guidance in the Australian military manual requiring its forces to gather “accurate” information should be interpreted.238 Australia’s interpretation of the duty to “do everything feasible” to verify that the target is a military objective should not, in turn, be interpreted to be confined to gathering information that merely captures what events are taking place. Indeed, the Australian interpretation goes

 235

Ibid. Guardian, “The Gulf War: No Explanation for Civilians’ Presence, Says General - The Suggestion That Saddam Put Women and Children in the Bombed Bunker as Part of Strategy Was Described as Plausible at a U.S. Briefing,” Guardian, February 14, 1991; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 136. 237 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 65. 238 Australian Defence Force Warfare Centre, Australian Defence Doctrine Publication 06.4 Law of Armed Conflict, par. 5.53. 236

276

Chapter Six

beyond this framework, and requires the decision-maker to determine whether he or she has a high degree of certainty that the target is a military objective. On the other hand, it was the view of the Claims Commission in the Mekele claim that the lack of available resources, such as trained personnel, took precedence over the consideration that employing such personnel increased the likelihood that the pilot would place the bomb over the wrong location. On the other hand, though, the author suggested earlier that the prohibition against carrying out indiscriminate attacks precludes the employment of very unskilled personnel. And, in planning a military operation, commanders will inevitably bear in mind the need to comply with all applicable rules.239 For this reason, there comes a point at which the likelihood of mistakenly attacking a civilian object is sufficiently highso much so that a commander may no longer say that a particular verification measure is not “reasonably available” to take. Taken together, these case studies demonstrate that when applying the rule of target verification, commanders consider the military advantage they will forgo if they conduct further verification measures, as well as the likelihood of attacking a civilian object if they do not adopt such measures. These circumstances determine whether the commander will place greater weight on the element of the likelihood of civilian harm, or on particular military considerations. The knowledge of how commanders balanced the elements of military advantage and the likelihood of civilian harm in the case studies examined here can be applied to an analysis of novel battlefield scenarios. For example, if a commander oversees well-trained troops who are not significantly outnumbered, and if the likelihood of attacking a civilian object is rather high, then Israeli state practice suggests that the commander will find it difficult to argue that the need to protect the force does not make it “feasible” to gather more information. Of course, it will be important to study carefully the similarities and differences between the available state practice and the scenario being analysed, in order to transpose accurately the principles that guide the application of the rule of target verification.

 239

“Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 29; Mancini, “Air Operations Against Federal Republic of Yugoslavia (1999),” 278.

A Toolbox for the Application of the Rule of Target Verification

277

2.1. Applying the Insights to a Battlefield Scenario Studying decapitation strikes provides a strong illustration of how the insights generated in an analysis of state practice may be applied to an examination of what the rule of target verification requires in a particular battlefield scenario. Scholars disagree whether the United States of America was entitled to carry out as many as fifty attacks on Iraqi leaders using the same intelligence-gathering methodology, despite the fact that none of the attacks killed their intended targets. For instance, Schmitt argues that the United States of America was entitled to undertake fifty decapitation strikes before learning that its intelligence-gathering methodology was flawed because it carried out these strikes at quick pace, namely within a span of a number of weeks.240 However, Bartolini,241 PoKempner, Garlasco and Docherty argue the opposite.242 The analysis below will build toward an understanding of which of these competing visions carry greater weight. First and foremost, commanders balance the elements of likelihood of civilian harm and military advantage in applying the rule of target verification. Consequently, in order to assess the validity of the methodology used to gather intelligence, the American commander should have considered the resources available to identify the location of the leaders and to determine whether the pilot killed the leader. Unless the commander inquired whether the pilot succeeded in killing the leader, he or she would have been unable to assess the likelihood of mistakenly targeting a civilian or a civilian object during future decapitation strikes. Of course, there comes a point at which the likelihood of the target being misidentified is so high that the element of likelihood of civilian harm takes precedence over the element of available resources. In this instance, carrying out consecutive though unsuccessful decapitation strikes indicated that it was possible that the targeting methodology was unreliable, and that the continued reliance on such a methodology may lead to an attack on a civilian or a civilian object. Consequently, in order to comply with the rule of target verification, the American commander should have evaluated the likelihood of misidentifying the target as well as

 240

Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: an International Humanitarian Law Assessment,” 88. 241 Bartolini, “Air Operations Against Iraq (1991 and 2003),” 256. 242 PoKempner, Garlasco, and Docherty, “Off Target on the Iraq Campaign: A Response to Professor Schmitt,” 120.

278

Chapter Six

how reliable its intelligence methodology was. On this account, the United States of America should have carried out the decapitation strikes at a slower rate, which would have enabled some of its aircraft to conduct bomb damage assessment. The findings of the Eritrea-Ethiopia Claims Commission sheds light on the following question: at what point should the United States of America have terminated further decapitation strikes? The Claims Commission thought that a commander who had one hour to terminate further sorties, and who, early on, had received news that the pilot had released cluster munitions over a civilian neighbourhood, should have aborted the fourth mission. In its findings, it contended that although the pilots of the first two sorties bombed the correct locations, the commander should have understood the strong possibility that an inexperienced pilot may release a bomb over an incorrect location. Whilst Eritrea had inexperienced personnel, the United States of America used a new methodology for identifying targets in conjunction with intelligence communicated by human sources. Since armed conflict is characterised by uncertainty,243 a commander can never be certain whether human sources provide reliable intelligence, or whether the intelligence gathered through technology puts him in a position to identify accurately the location of Iraqi leaders. Accordingly, an American commander who learns that an air strike did not kill an Iraqi leader should act in the same way as a commander who learns that an inexperienced pilot mistakenly bombed a civilian neighbourhood. The commander should investigate the cause of error, and stop using the intelligence sources that led to the strike in question, until such a time that the commander learns why the leader was not at the location at which the intelligence indicated. At bottom, it appears that the United States of America was able to rely on information gathered through technology because it reinforced these resources with human sources. This is because the United States of America did not always know the identity of the persons whose telephone conversations it intercepted, and because tracking telephone coordinates did not provide point locations to intelligence officers. Therefore, the perceived reliability of information given by human sources was central to estimates about the likelihood of successfully killing a leader.

 243

von Clausewitz, Principles of War, 51.

A Toolbox for the Application of the Rule of Target Verification

279

The determinations of the Claims Commission suggest that the United States of America should have stopped using information provided by a particular human source following the first misidentification incident. At that point, the United States of America’s human sources did not provide information that overlapped with information provided by technology. Following the receipt of bomb damage assessment from two, three or perhaps four consecutive incidents, the commander clearly should have been put on notice that the problem did not solely lie in the choice of a particular human source. Instead, the cause of the problem could lie in combining information given by human sources with the interception of telephone coordinates and conversations. At that stage, the commander should have terminated further decapitation strikes, unless there was an alternative targeting methodology which could be employed. The state practice examined in this chapter provides further support for this proposition. The case studies indicate that when the likelihood of mistakenly attacking a civilian object is high, states should not invoke either the urgency of action or the lack of available resources to justify that it is not “feasible” to carry out further surveillance or reconnaissance. As regards decapitation strikes, the likelihood of carrying out another unsuccessful mission was high, especially because of the number of incidents in which civilians were wrongly targeted. Consequently, the United States of America could not, at that point, argue that it was urgent to act on limited information to kill fleeting high-value targets. Nor could the United States of America maintain that the lack of alternative intelligence sources made it not “feasible” to amend its target verification methodology.

2.2. Answering some Outstanding Questions The analysis in this chapter provides answers to some of the questions raised by scholars. For instance, Boivin queries whether a commander is obligated to gather more information about the character of a proposed target about whom there is insufficient information if he or she lacks the time necessary for additional reconnaissance.244 If the interpretation of state practice adopted by the author is accepted, the answer to Boivin’s question would be that the commander is obligated to gather more information, even if he forgoes considerable military advantage in doing

 244

Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 37.

280

Chapter Six

so, provided that there is a high likelihood of mistakenly attacking a civilian or a civilian object. What is more, the discussion shows that Schmitt’s explanation of how commanders apply the rule of target verification should be given a narrow interpretation. Schmitt argues that commanders need only act “on the information at hand or that which can easily be obtained within the practical time constraints of mission execution,” not on the basis of information that can only be obtained through “great effort.”245 Schmitt’s guidance should be interpreted such that, as long as the likelihood of misidentifying a civilian object remains high, commanders should not argue that gathering additional information constitutes a “great effort.” However, if the likelihood of mistakenly attacking a civilian object is not high, then there is room for commanders to maintain that gathering more information constitutes a “great effort.” In light of the analysis in this chapter, a qualification should be made to Boothby’s interpretation of the rule of target verification. To recap, Boothby believes that if there is no “reasonably available” information that would allow the attacker to evaluate the reliability of intelligence on which a targeting decision is being made, and if it is urgent to act, then customary international law does not require the attacker to check the reliability of information.246 Boothby’s interpretation has merit for situations in which the likelihood of targeting a civilian object by mistake is not high. Yet in situations where the likelihood of misidentifying the target is high, a commander should not argue that conducting additional reconnaissance is information that is not “reasonably available.” If the commander believes that delaying engaging the target may compromise the force’s chances of survival, then the commander should apply the principle of distinction to assess whether proceeding with the attack is lawful. The discussion in this chapter suggests that the narrow interpretation of the rule of target verification in the ICRC Commentary to API 1977, namely that the nature of the objective should be verified with “precision,”247 is preferable to wider interpretations of the rule taken by scholars such as Schmitt and Boothby. In using the term “precision,” the Commentary means that those who plan or decide upon an attack should call for

 245

Schmitt, “The Law of Targeting,” 163. Boothby, The Law of Targeting, 152. 247 Sandoz, Swinarski, and Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 680 par. 2194. 246

A Toolbox for the Application of the Rule of Target Verification

281

additional information if they have even a “slight doubt” that the target is not a military objective.248 The practice of the United States of America in the Ameriyya incident supports this argument, as the commander continued to gather intelligence despite having intercepted military communications.249 What is more, Australia requires commanders to act on “accurate” intelligence.250 It was shown that intelligence is accurate not only when it conveys to commanders what is happening, but also when it contextualises events.

3. Conclusions The study of state practice undertaken in this chapter is valuable, in that it illuminates circumstances in which commanders are justified in saying that it is not “feasible” to conduct further surveillance or reconnaissance or to gather more intelligence. Unfortunately, the discussion demonstrated that whether commanders additionally take into account the magnitude of civilian harm when they apply the rule of target verification is inconclusive. Most likely, commanders do not contemplate the potential harm inflicted upon civilians if a civilian object is attacked by mistake in their assessments of what verification measures they are obligated to take. Since the principle of distinction imposes a strict obligation to distinguish between lawful and unlawful targets,251 such an analysis is superfluous. Of course, as a matter of policy, states may wish to go beyond the requirement to comply with the principle of distinction, and to conduct additional verification checks in the event that many civilians could die were a target to be misidentified. As the Ameriyya incident demonstrates, some targets, if misidentified, have the potential to cause very high civilian casualties.252 Such incidents cause a public outcry and may

 248

Ibid., 680 par. 2195. Guardian, “The Gulf War: No Explanation for Civilians’ Presence, Says General - The Suggestion That Saddam Put Women and Children in the Bombed Bunker as Part of Strategy Was Described as Plausible at a U.S. Briefing,” Guardian, February 14, 1991; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 136. 250 Australian Defence Force Warfare Centre, Australian Defence Doctrine Publication 06.4 Law of Armed Conflict, par. 5.53. 251 Art. 48 API 1977. 252 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 128. 249

282

Chapter Six

undermine public support for the military campaign.253 Moreover, it could be that certain states consider the possible extent of harm to civilians when they act pursuant to a mandate to protect civilians. For instance, NATO said that in carrying out Operation Unified Protector in Libya in 2011, it went beyond legal requirements, because it was implementing a mandate to protect civilians.254 This chapter confined its analysis to the state practice of key military states, such as Russia, Israel and the United States of America. While a globally comprehensive assessment of state practice would be ideal, it must be admitted that there are practical limits to what can be presented. The evidence of state practice of other states is not readily available. Another challenge is that states may violate international humanitarian law. Although it was not possible to present here the state practice of many states, the analysis nevertheless provides a snapshot of the principles that guide the application of the rule of target verification.

 253 254

Shaw, The New Western Way of War: Risk-Transfer and Its Crisis in Iraq, 96. Peter Olson to Judge Kirsch, OLA(2012)006, January 23, 2012, 2.

CHAPTER SEVEN A TOOLBOX FOR THE APPLICATION OF THE PRINCIPLE OF THE LEAST FEASIBLE DAMAGE

Existing scholarship does not address how commanders apply the principle of the least feasible damage to battlefield scenarios. In order to model commanders’ decision-making, this chapter analyses how they balance the elements of military advantage, likelihood of civilian harm and magnitude of harm to civilians when applying the principle of the least feasible damage. In other words, under what conditions do commanders place greater weight on any given one of these three elements? And in what circumstances will they give greater consideration to the extent of harm which may be inflicted through the use of particular weapons or materiel? As regards the study of state practice, it is valuable to look at the range of materiel and weapons that commanders employ in armed conflicts. For this reason, the chosen case studies feature the use of mortars, artillery, aircraft in support of ground troops and white phosphorus. Taken together, these case studies represent the spectrum of danger that different means of warfare pose to civilians. For instance, the white phosphorus shells disperse many wedges, which cover a significantly wider area than the blast range of unitary weapons. Mortars and artillery tend to cause more civilian casualties and damage to civilian objects than the use of aircraft in support of ground troops.1 A common context links the chosen case studies, and this association makes it possible to compare in a meaningful way the practice of states on the use of particular means of warfare. Indeed, all military operations took place in a populated area, with many civilians present in the vicinity of exploding munitions or, in the case of white phosphorus, in the areas covered by this obscurant.

 1

Henry Dodd and Robert Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012 (London: Action on Armed Violence, March 2013), 22; Bailey, Field Artillery and Firepower, 426; Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91 (Quezon City: Department of National Defense, 1991), par. 2(c).

284

Chapter Seven

1. Constructing a Scale for the Spectrum of Harm and Military Advantage By constructing a scale, one can analyse how commanders choose between different materiel and weapons in order to comply with an obligation to avoid or, at the very least, to minimise harm to civilians. This scale reflects the degree of danger artillery, mortar and aircraft munitions and white phosphorus pose to civilians. Two elements capture the degree of danger to which the use of various means of warfare exposes civilians: the likelihood that an exploding munition or white phosphorus wedges will injure civilians and the potential harm which may materialise. As well, the scale expresses the different degrees of military advantage that the commander may sacrifice by using weapons that inflict less civilian harm, but which lack the unique capabilities of weapons that cause greater casualties among the civilian population.

1.1. Defining the Element of the Magnitude of Harm to Civilians This chapter turns to the extent of harm caused to civilians by various means of warfare with the aim of plotting the suggested points on the scale and, therefore, of determining gradations of magnitude of civilian harm. At first, the chapter examines the amount of harm inflicted upon civilians by the use of precision-guided artillery. For our purposes, it is sufficient to use one precision-guided munition in order to engage a military objective with accuracy.2 The 155mm precision-guided artillery shell has a lethal radius of 50 to 150 metres,3 and an injury radius of 100 to 300 metres.4 Reportedly, half of these munitions land within a radius of thirty metres of

 2

Defense Update, “Precision Guidance Kit (PGK) Improving the Accuracy of Artillery Fire,” Defense Update, http://defense-update.com/products/p/pgk.htm (accessed February 11, 2014). 3 Lieutenant Colonel Henry Konings, “Fire Support during Operation Storm” Doc. P2159 (expert report, International Criminal Tribunal for the former Yugoslavia, August 1995), 12, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1168 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 4 Charles Levinson, “Gaza’s Kids Collect a Different Sort of Shell,” Agence France-Presse, May 29, 2006; Peter Beaumont, “How Israel Put Gaza Civilians in Firing Line,” Observer, November 12, 2006, http://www.theguardian.com/world/2006/nov/12/israel (accessed February 11, 2014).

The Principle of the Least Feasible Damage

285

the target.5 The non-governmental organisation Action on Armed Violence estimates that, in urban combat, each explosive shell fired by materiel such as artillery and mortars kills an average of sixteen civilians.6 Action on Armed Violence arrived at this number by monitoring media reports in 2012 about incidents in which states used explosive weapons.7 Although the non-governmental organisation did not study every incident that took place over the course of the year,8 it nonetheless captured trends in civilian harm inflicted by explosive weapons.9 Because of the lack of data on the amount of harm explosive weapons inflict upon civilians, it is impossible both to confirm and to reject the estimates of Action on Armed Violence. For the purpose of the examination at hand, the author assumes that estimates are correct, as the non-governmental organisation relied on news reports to compile this statistic.10 If, in order to engage with the scale, we consider sixteen deaths to be the standard for what might be termed the “medium” magnitude of harm, we can establish a starting point for discussion. Since no information is available regarding the number of civilians injuredas opposed to the number killedin artillery strikes, the analysis will not take into account the number of civilians who are injured, but who survive the attack. Although it is unfortunate that the scale does not incorporate the number of injured civilians, this is in fact unproblematic, because the purpose of the scale is to provide a common benchmark for examining state practice. What is more, during Operation Protective Edge 2014, in instructing soldiers about the maximum amount of collateral damage they could inflict for policy reasons, commanders told soldiers only to count verified civilian deaths.11 Of course, one can dispute whether it is appropriate to assume that precision artillery causes a “medium” amount of harm to civilians in the

 5

Defense Update, “Precision Guidance Kit (PGK) Improving the Accuracy of Artillery Fire,” Defense Update, http://defense-update.com/products/p/pgk.htm (accessed February 11, 2014). 6 Dodd and Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012, 15. 7 Ibid., 38. 8 Ibid. 9 Ibid., 1-2. 10 Ibid., 38. 11 Breaking the Silence, This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014), 232.

286

Chapter Seven

first place; after all, precision capabilities represent the highest achievable levels of accuracy in artillery. Clearly, it may well be that this technology is too deadly to pose a “medium” magnitude of harm to civilians. Or it could be that this technology is so advanced in comparison with its alternatives that it should constitute a “low” level of harm. But, at the very least, establishing this starting point makes it possible to construct a sliding scale for the degrees of injury different means of warfare inflict upon civilians. The scale, it must be remembered, enables the study of state practice using a common benchmark, and also permits a comparison of circumstances surrounding a state’s decision to employ materiel that exposes civilians to varying degrees of danger. Thus, the discussion is a starting point for a debate, and those who disagree with the scale may replicate the analysis by substituting their own values in the scale. For policy reasons, during Operation Protective Edge 2014, Israel placed restrictions on the permissible number of civilian casualties, but also left commanders define what constituted a low, a medium and a high scale of civilian casualties.12 This practice illustrates just how difficult and contentious it is to define a number of civilian deaths that actually corresponds to a particular threshold of harm. At the same time, it demonstrates that individuals have an instinctive feeling about which magnitude of harm is low, moderate or high. When forces employ non-precision artillery and mortars, they need to fire multiple rounds to engage a military objective effectively.13 Such materiel is efficient only against area targets, such as concentrations of troops.14 The targets attacked with artillery and mortars should measure at least fifty square metres.15 A single non-precision munition generates the same area of damage as its precision-guided counterpart, and usually inflicts the same damage.16 According to reports, at least two non-precision munitions

 12

Ibid., 226-227. Konings, “Fire Support during Operation Storm” Doc. P2159, 11, 13, Annex A 5, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1165 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 14 Ibid. 15 Ibid. 16 Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 11671168 (International Criminal Tribunal for the former Yugoslavia April 15, 2011); Charles Levinson, “Gaza’s Kids Collect a Different Sort of Shell,” Agence FrancePresse, May 29, 2006; Peter Beaumont, “How Israel Put Gaza Civilians in Firing Line,” Observer, November 12, 2006. 13

The Principle of the Least Feasible Damage

287

have to be fired to engage a military objective successfully,17 and in many cases three to four munitions may be necessary to disable a target.18 If one considers Action on Armed Violence’s estimate that one explosive shell kills an average of sixteen civilians, it would appear that the use of nonprecision mortars and artillery to engage a military objective will, on average, inflict between thirty two and sixty four deaths, according to whether the force fires two, three or four munitions. Given that it is assumed that sixteen deaths correspond to a “medium” magnitude of civilian harm, the magnitude of harm caused by multiple non-precision artillery and mortars (between two and four) will be treated as “high.” Again, although some may disagree with the magnitude of harm assigned to the use of non-precision artillery and mortars, the scale provides a yardstick for studying state practice. It is clearly not the purpose of the scale to pin down, with absolute accuracy, what constitutes a “high” scale of harm to civilians. As regards air-dropped dumb bombs, the injury radius increases in proportion to the size of the bomb. Whilst a bomb weighing 454 kilograms has an injury radius of 182 metres,19 a bomb weighing 908 kilograms has an injury radius of 366 metres.20 According to the estimates of Action on Armed Violence, air-dropped bombs cause an average of fourteen civilian deaths.21 Of course, the number of civilian casualties will vary based on the concentration of civilians in the area. Some cities are densely

 17

Konings, “Fire Support during Operation Storm” Doc. P2159, 11, 13, Annex A 5, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1165 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 18 Josip Turkalj was a commander of the Anti-Terrorist Unit Luþko and of the Special Police artillery unit during Operation Storm 1995. Josip Turkalj, “Witness Statement” Doc. T. 13584-13586, 13772-13773 (document, International Criminal Tribunal for the former Yugoslavia), quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1437 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 19 R. Jeffrey Smith, “Picking Right Weapon for a Target Is Complex Decision,” Washington Post, February 6, 1991. 20 Rick Atkinson, “War’s Course Depends on Air Power,” Washington Post, January 17, 1991. See also James Schwartz, “Munitions Used in the Air War,” Washington Post, February 6, 1991. 21 Dodd and Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012, 22.

288

Chapter Seven

populated, while others have housing that is more widely spaced22 and fewer multi-storey buildings.23 Within a particular city, the type of district influences the area of the land between buildings.24 For instance, on one occasion, an air strike in close proximity to a housing block killed twenty three civilians (and injured one hundred).25 Although each air strike inevitably causes a varying number of civilian casualties, the analysis at hand avails of the average number of civilians killed in such strikes. Using statistical estimates for the average kill ratio inflicted by different munitions provides a common benchmark and a common urban scenario for examining state practice. As the scale designates sixteen deaths as a “medium” magnitude of harm to civilians, the scale will also treat a single air strike which averages fourteen deaths as though it produces a “medium” magnitude of civilian harm. Although air-strikes may cause a greater level of harm to civilians, such high-casualty incidents occur less frequently. This benchmarking of a single air-strike as producing a “medium” magnitude of harm to civilians on average is consistent with state practice. Notably, states judge that the use of aircraft inflicts fewer casualties than the use of non-precision artillery.26 As regards white phosphorus, the focus will be on the M825 projectile, which militaries deploy using a 155mm howitzer.27 This shell releases

 22

Christopher Bellamy and Patrick Cockburn, “Allies Assess Precision of Bomb Raids,” Independent, March 19, 1991. 23 Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 252. 24 Department of City Planning of the City of New York, “Zoning Districts: Residence Districts,” New York City Planning, http://www.nyc.gov/html/dcp/html/zone/zh_resdistricts.shtml (accessed March 2, 2014); Department of City Planning of the City of New York, “Zoning Data Tables, Residence Districts,” New York City Planning, http://www.nyc.gov/html/dcp/pdf/zone/zoning_handbook/zoning_data_tables.pdf# page=1 (accessed Marcg 2, 2014). 25 Dodd and Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012, 30. 26 Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c); Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 129 n. 265. 27 Uriel Sinai, “Investigations: White Phosphorus,” Forensic Architecture, January 4, 2009,

The Principle of the Least Feasible Damage

289

some 116 phosphorus wedges and covers an area from 5,000 to 30,000 square metres, according to how the round is fired.28 A single phosphorus round could affect between fifty and three hundred people, and in very densely populated areas up to one thousand civilians.29 White phosphorus causes severe and untreatable burns, which can kill victims.30 Moreover, the chemical may poison internal organs through contact with the skin: the wounds heal slowly.31 Inhaling or swallowing white phosphorus32 is equally injurious. Furthermore, it tends to set civilian objects on fire.33 And even when the phosphorus-soaked wedges do not ignite civilian objects, they may reignite if disturbed or “prodded.”34 Though non-precision artillery on average kills between thirty two and sixty four individuals,35 white phosphorus wedges may affect between fifty and one thousand civilians.36 No available statistics detail how many civilians survived contact with white phosphorus, but the severity of the injuries is well documented. For this reason, because thirty two to sixty four deaths amounts to a “high” magnitude of civilian harm, it is assumed that the use of a single white phosphorus shell causes at least a “high” magnitude of civilian harm: in many cases, it will produce a “very high” magnitude of harm to civilians, but this varies according to how the forces fire the round. As regards the other points on the scale, the definition of a “low” magnitude of harm to civilians could be in the range of one to seven deaths, given the fact that a “medium” magnitude of civilian harm constitutes between fourteen and thirty two deaths.

 http://www.forensic-architecture.org/investigations/white-phosphorus (accessed January 15, 2010). 28 Ibid. 29 Ibid. 30 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories, 195 par. 895-996. 31 Human Rights Watch, Rain of Fire: White Phosphorus in Gaza, 11-12. 32 Ibid. 33 Ibid., 3. 34 Ibid., 6. 35 Dodd and Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012, 15. 36 Uriel Sinai, “Investigations: White Phosphorus,” Forensic Architecture, January 4, 2009, http://www.forensic-architecture.org/investigations/white-phosphorus (accessed January 15, 2010).

290

Chapter Seven

1.2. Defining the Element of the Likelihood of Civilian Harm The set of gradations on the scale indicates the likelihoods of civilian casualties resulting from the use of particular means of warfare. These gradations will be “very high,” “high,” “medium,” “low” and “very low.” A “very high” likelihood of civilian harm signifies a virtual certainty that a particular event will materialise, including the fact that a particular number of civilians will be killed. In turn, a “high” likelihood of civilian harm announces that there is a good chance that civilians are located within the blast radius of the exploding weapon. To the scale, a “medium” likelihood of civilian harm refers to a situation where it is equally likely that civilians will or will not be located within the blast radius of the weapon. This point on the scale represents a midpoint, and therefore lies half-way between zero and one hundred. Events which can be said to occur infrequently speak to a “low” likelihood of civilian harm. Finally, the threshold of a “very low” likelihood of civilian harm corresponds to rare events, such as those which happen in very few cases per one hundred instances. At this stage, the chapter pays attention to the process of mapping on the scale the likelihoods of various means of warfare harming the civilians. In the first place, precision-guided artillery and mortar munitions have a large arc of damage, with an injury radius of three hundred metres.37 Action on Armed Violence estimates that a single munition will on average kill sixteen civilians.38 In light of these two qualities of precision-guided artillery, the scale will assume that the use of this ordnance in urban combat carries with it quite a “high” likelihood that civilians will be killed by either shrapnel or blast effects. Thus, one precision-guided artillery or mortar strike amounts to a “medium” magnitude of harm to civilians (i.e., sixteen civilian deaths) and a “high” likelihood of civilian harm. On the other hand, given the large arc of damage produced by firing multiple shells of non-precision artillery and mortars, these means of

 37

Konings, “Fire Support during Operation Storm” Doc. P2159, 12, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1168 (International Criminal Tribunal for the former Yugoslavia April 15, 2011); Charles Levinson, “Gaza’s Kids Collect a Different Sort of Shell,” Agence FrancePresse, May 29, 2006; Peter Beaumont, “How Israel Put Gaza Civilians in Firing Line,” Observer, November 12, 2006. 38 Dodd and Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012, 15.

The Principle of the Least Feasible Damage

291

warfare create a “high” likelihood that civilians may be injured. The International Criminal Tribunal for the former Yugoslavia Trial Chamber appears to have taken similar approach when it stated, in the case of Prosecutor v. Gotovina, that “even a small number of artillery projectiles can have great effects on nearby civilians.”39 Thus, launching between two and four non-precision artillery and mortars illustrates a “high” magnitude of harm to civilians (i.e., between thirty two and sixty four civilian deaths) and, as a result, a “high” likelihood of civilian harm. Air-strikes create a similar number of casualties to precision-guided artillery. Since precisionguided artillery lead to a “high” likelihood that civilians will be injured, the scale assumes that air-strikes also establish a “high” likelihood of civilian harm. A single air strike therefore presents a “medium” magnitude of harm to civilians (i.e., fourteen civilian deaths) and a “high” likelihood of civilian harm.White phosphorus covers an area between five thousand and thirty thousand square metres.40 Because of this wide area coverage, the scale views this obscurant as an approach that generates a “high” likelihood that a civilian may be injured. Thus, one white phosphorus shell creates a “high”/“very high” magnitude of harm to civilians (i.e., more than fifty civilian deaths) and a “high” likelihood of civilian harm.

1.3. Defining the Element of Military Advantage From here, the chapter maps degrees of military advantage on the scale. The element military advantage expresses the degree of risk to which the force will be exposed, and how likely the force is to win the military operation if it adopts an alternative means or method of warfare that would further reduce harm to civilians. For example, this element indicates the military situation the forces will face if they use air-strikes instead of nonprecision artillery, or smoke shells instead of white phosphorus. For the purpose of the present discussion, a “very high” military advantage refers to a situation in which the “force faces such danger that it is possible that the force will not survive or will fail to prevail over the enemy.” On the other hand, a “high” military advantage denotes that the force “assumes risk, but has nevertheless a good chance of successfully

 39

Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1909 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 40 Uriel Sinai, “Investigations: White Phosphorus,” Forensic Architecture, January 4, 2009, http://www.forensic-architecture.org/investigations/white-phosphorus (accessed January 15, 2010).

Chapter Seven

292

completing the mission.” Put another way, this degree implies that it is “likely that the force will prevail over the enemy.” A force which “assumes a degree of risk to itself, but the commander believes that it is more likely that the force will win the military engagement than it is that the enemy will win” enjoys a “medium” military advantage. And, lastly, when a commander believes that there is “a high likelihood that the force will overcome the enemy,” the military advantage will correspond to “low.”

1.4. Tables for the Three Elements The following three tables depict the suggested scales for the elements of (1) likelihood of civilian harm, (2) magnitude of harm to civilians and (3) military advantage. Table for the element magnitude of harm to civilians Weapon name

Average harm per shell/ bomb 16

Average number of shells used 2-4

Harm (number of deaths)

Scale of harm

32-64

High

Precision-guided artillery

16

1

16

Medium

Dumb air bomb

14+

1

14+

Medium

White phosphorus

50-300

1

50-300

Very high

Artillery/Mortars

Fig. 7-1

The Principle of the Least Feasible Damage

293

Table for the element likelihood of civilian harm Likelihood

Very low

Low

Medium

High

Very high

Rare

Infrequent

Equal likelihood that a civilian will be killed and that a civilian will survive

Good chance

Virtual certainty that a particular magnitude of harm to civilians will materialise

Fig. 7-2

Table for the element military advantage Degree of military advantage forgone when an alternative weapon is used

Low

Medium

High

Very high

High likelihood of defeating the enemy

More likely that own force will win than that the enemy will win

Assumption of risk but good chance of completing the mission

Possibility that the force will not survive or complete the mission

Fig. 7-3

1.5. The Rationale for the Chosen Values for the Scale In part, the author chose qualitative expressions to indicate the values for the scale because commanders rely on their experience to assess whether circumstances make it “feasible” to adopt alternative means and methods of warfare. Commanders make rough assessments, not only by relying on the rule of thumb in estimating what degree of military advantage the employment of alternative means and methods of warfare entails, but also by determining the extent of harm to civilians which will occur if they do not use a civilian-friendly alternative. In a similar vein, it of course would

294

Chapter Seven

be nearly impossible to quantifylet alone express using a numerical valuehow much military advantage a commander relinquishes in making a particular substitute in materiel. For this reason, states tend to use words to designate the degree of military advantage the destruction of a particular military objective offers.41 This chapter, moreover, expresses the element of the likelihood of civilians being injured through qualitative statements because of the dearth of empirical data on this issue. Even if this data were available, however, its value likely would be limited. Probabilistic estimates of the likelihood of an event occurring bring with them precision. As the situation on the battlefield rapidly evolves, the use of statistical data would have been controversial, partly because it is difficult to estimate with accuracy the probability of the civilians being injured. More broadly, individuals rely not on mathematical analyses or laws of probability to estimate the likelihood of events, but on their cognition.42 Consequently, qualitative descriptors better capture the fact that making a prognosis involves the use of average values vis-à-vis the likelihood of a civilian being injured. Finally, qualitative statements designate gradations in the magnitude of harm to civilians, because the primary purpose of the scale is to enable a comparison between weapons. Indeed, taken in isolation, a number does not indicate whether the extent of harm to civilians is high or low. Processes such as interpretation and exercising judgment assign a meaning to the number, namely at what point the number of civilian casualties is high or very high. The use of mathematics is inappropriate for studying the rules of targeting. Given that commanders exercise judgment in applying the rules of targeting to battlefield scenarios,43 the use of precise measurements is inconsistent with the nature of their decision-making.

 41

Lord Robertson of Port Ellen, Kosovo One Year On: Achievement and Challenge (Brussels: NATO, March 21, 2000), 13-14, http://www.nato.int/kosovo/repo2000/report-en.pdf (accessed March 3, 2014); General James R. Allen to Brigadier General J.R. McCarthy, December 27, 1977 in McCarthy and Allison, Linebacker II: A View From the Rock, 97-98. 42 Slovic, Kunreuther, and White, “Decision Processes, Rationality and Adjustment to Natural Hazards,” 9. 43 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551; “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 29; Watkin, “Assessing Proportionality: Moral Complexity and Legal Rules,” 7.

The Principle of the Least Feasible Damage

295

2. Analysis of State Practice Contrasting the state practice on the employment of non-precision artillery, mortars and aircraft in support of the ground troops offers a suggestive approach. Deploying aircraft is an alternative to the use of artillery and mortars, both of which cause more harm to civilians.44 This chapter proposes that an analysis of the circumstances in which commanders substitute aircraft for artillery and mortars can shed light on how commanders apply the principle of the least feasible damage. In order better to understand when commanders consider it to be a “feasible” option to substitute a weapon with its alternative, it is also valuable to contrast the state practice on the use of precision and non-precision artillery. The use of white phosphorus is an important case study, for commanders use the chemical to screen the movement of the troops, rather than to target military objectives directly. In this chapter, an analysis of the state practice on white phosphorus will evaluate whether there exists a trend in the criteria by which commanders guide their decision-making while applying the principle of the least feasible damage.

A. The State Practice of Philippines The state practice of the Philippines45 consists of the guidance to commanders contained in the Joint Circular on Adherence to International Humanitarian Law and Human Rights. As a shorthand, this guidance will be referred to as the “Joint Circular.” Since the Philippines wrote this document in 1991, it did not envisage the availability of precision-guided munitions for artillery and mortars.46 Consequently, the Joint Circular instructs the commander about circumstances in which non-precision artillery, mortars and aircraft may be used. For the sake of clarity, the instructions will be analysed in two parts: first, the chapter attends to the

 44

Dodd and Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012, 22; Bailey, Field Artillery and Firepower, 426; Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c). 45 Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c). 46 Defense Update, “Precision Guidance Kit Improving the Accuracy of Artillery Fire,” Defense Update, http://defense-update.com/products/p/pgk.htm (accessed February 11, 2014); A.T.K., “Ballistic Trajectory Extended-Range Munition,” A.T.K., http://www.atk.com/capability/precision-munitions (accessed February 27, 2014).

296

Chapter Seven

section governing when commanders may have recourse to artillery and mortars; and secondly, the chapter analyses the circumstances in which commanders are required to use aircraft, a civilian-friendly alternative, in support of ground troops. A.1. Mortars and Artillery The first part of the Joint Circular “strictly” prohibits the use of artillery and mortar fires to restrict enemy movement, to target military objectives and to deny the enemy the ability to use particular areas, such as road junctions, when (1) the enemy combatants are “near populated areas,” and (2) it is “likely” that an attack will inflict civilian casualties or damage civilian objects.47 It emerges, from the analysis, that the Joint Circular proscribes the use of artillery and mortars when civilians are “likely” to be injured.48 In this case, the term “likely”49 clearly draws on the notion of likelihood of civilian harm. The focus of the enquiry, therefore, is on the likelihoods of civilian harm that prevent the commander from using artillery and mortars. Perhaps because of the fact that the Joint Circular refers to the use of materiel “near populated areas,”50 it prohibits the use of artillery and mortars at all distances from which it can be foreseen that civilians will be located within the blast radius of the explosion. The precise dictionary meaning of “likely” provides further insight into the likelihoods of inflicting harm upon civilians, which commanders need to account for.51 For one thing, the term “likely” 52 excludes events that occur infrequently. It appears that, in their application of the principle of the least feasible damage, Philippine commanders may disregard “low” likelihoods of harm to civilians occurring, as, according to our scale, a “low” likelihood of civilian harm refers to events that occur infrequently.

 47

Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c). 48 Ibid. 49 Ibid. 50 Ibid. 51 Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Likely” (by Cambridge University Press), http://dictionary.cambridge.org/dictionary/british/likely_2 (accessed January 5, 2014). 52 Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c).

The Principle of the Least Feasible Damage

297

When considering whether it is “likely” that civilians will be affected by an exploding munition, commanders should surely account for the injury to civilians which may be caused by a shell landing off target as a consequence of an attacker making an incorrect calculation. In order to direct an artillery or mortar munition to the desired location, attackers make a complex calculation regarding how factors such as air temperature, air density, wind speed and wind direction influence the flight of the munition.53 Failure to give appropriate weight to these factors has an impact on where the munition lands.54 For instance, when troops fire an unguided 155-millimetre shell at a distance of 14.5 kilometres from a military objective and fail to account for a difference in temperature of one degree, a shell will land 20 metres away from the intended location.55 Similarly, since the Joint Circular restricts the use of artillery and mortars in the proximity of civilian areas,56 it requires commanders to assess the extent of the possible harm to civilians in applying the principle of the least feasible damage. Our scale treats the use of non-precision artillery and mortars in populated areas as an action that entails the risk of inflicting a “high” magnitude of civilian harm. In keeping with the scale, it follows that the Joint Circular appears to prohibit the employment of these assets whenever a “high” magnitude of harm to civilians may be brought about. Also relevant is the fact that the instruction allows commanders to exclude only “low” likelihoods of harm being inflicted upon civilians whenever their forces operate near civilian concentrations. Moreover, the instruction does not mention the density of the civilian concentration. This indicates that the Joint Circular requires a commander to forgo using artillery and mortars, even when the force is operating near areas that are sparsely populated, such as a farming community. Our scale represents the average amount of harm to civilians which will occur if troops use artillery or mortars in an urban area. When commanders employ artillery and mortars near sparsely populated areas, they do not inflict a “high” magnitude of harm to civilians. Accordingly, because the Joint Circular does not distinguish between densely and sparsely populated areas, it proscribes the

 53

Konings, “Fire Support during Operation Storm” Doc. P2159, 11-12, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1165 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 54 Ibid., 11. 55 Ibid., 11-12. 56 Ibid.

Chapter Seven

298

employment of artillery and mortars, even if these assets will not inflict upon civilians a “high” magnitude of harm. At this stage, it should be mentioned that the state practice of the Philippinesthat of prohibiting the use of artillery and mortars near populated areasdiverges from that of other states. The Joint Circular implies that if the Philippines’ forces face mortal danger and are unable to call in aircraft to support the troops, they are not entitled to employ mortars and artillery. This practice sets a higher restriction than other states. For instance, states made it clear (including when they acceded to API 1977) that they do not believe that the principle of the least feasible damage requires them to adopt alternative means of warfare when doing so may compromise the survivability of the force or its ability to win the battle.57 A.2. Air Bombing The second portion of the guidance in the Joint Circular states, “Air strikes may be used under judicious circumstances. Targets shall be carefully evaluated by the close air support commander for approval by the Area Commander. During an actual engagement where the security of the unit or critical installation/facility is threatened and time is of the essence, the commander of the engaged unit, on his [or her] own authority, may selectively apply available fire support means to defend his [or her] unit or position, however exercising utmost care to prevent or minimise civilian casualties/material damage.”58

By authorising the commander to employ aircraft in support of ground troops only when doing so is essential for the protection of either the troops or a critical installation,59 the Joint Circular intimates that the

 57

France, Reservations and Declarations Made Upon Ratification of AP I 1977, 11 April 2001, par. 3, The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-23, United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.3.1, Ecuador, Academia de Guerra Naval, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, par. 8.1.2.1, quoted in Henckaerts and DoswaldBeck, Customary International Humanitarian Law, 2:346. 58 Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c). 59 Ibid.

The Principle of the Least Feasible Damage

299

commander should call in aircraft when there is a risk that the force will not survive. Using the definitions of the degrees of military advantage on our scale, one can say that the commander may call in aircraft whenever the military advantage entailed in forgoing the use of aircraft is “very high.” Furthermore, the Joint Circular requires that aircraft fires should be applied selectively.60 In this case, what is relevant to the analysis is the military advantage troops forgo in using air bombing only against selected military objectives, as opposed to all military objectives that a commander may wish to target from the air. In order to establish this, we need to evaluate how engaging fewer military objectives from the air affects the ability of the forces to complete successfully their mission in different battlefield scenarios. As Biddle has shown, the force may reduce risk to itself by employing particular tactics, such as dispersing, using buildings for cover and taking steps to conceal its location from enemy sensors.61 Accordingly, the ground troops may need less support when they are fighting in a jungle, when it is possible to blend in with the environment by hiding in vegetation, or when they can take shelter in buildings. In such environments the troops are able to shield themselves, at least partially, from observation. Tactical concerns also shape the amount of fire support the forces may need. Research shows that the forces’ use of clever tactics is a key in determining whether it will be able to overcome the enemy.62 In fact, good tactics even compensate for numerical and technological inferiority.63 The qualitative characteristics of the troopssuch as whether they are led by a skilled leader, well trained and have high moralealso play a strong role in whether they can perform effectively in battle.64 This information points to the fact that troops that can exploit the landscape or the architecture of a city to their advantage, and that use clever tactics, are likely to complete their mission, even if aircraft attacks only select military objectives. Whether the adversary took up positions in the city prior to when the attacker began the military operation, whether the enemy uses better

 60

Ibid. Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 52-54. 62 Ibid. 63 Ibid. 64 Vego, Joint Operational Warfare: Theory and Practice, III-33, III-34. 61

300

Chapter Seven

tactics65 and whether the enemy has more advanced technologiesall these factors will influence precisely how much less firepower the troops may employ than their opponent without compromising their chances of survival. Although measures such as clever tactics protect the force, the use of air bombing against selected targets merely mitigates the danger to the forces; it achieves this by inhibiting the enemy from moving and targeting materiel.66 Battle experience shows that it is impossible for troops to survive without the support of aircraft, artillery or mortars.67 Consequently, a force risks its own safety by using air bombing selectively. When the force adjusts the rate of aircraft fire, and the enemy is well trained and well equipped, the force could nevertheless be exposed to quite a high risk. Though the force may have a good chance of survival in such circumstance, it will be assuming risk to itself all the same and also forgoing “high” military advantage in employing aircraft bombing selectively. As the discussion has shown, the military advantage entailed in substituting a means of warfare with its alternative is “high” when the force assumes risk to itself in employing the alternative option, but nevertheless continues to have a good chance of survival. Thus, in circumstances where the Philippine armed forces and their adversary are both well trained and well equipped, the Philippines will be forgoing “high” military advantage in using air bombing selectively. Of course, a Philippine commander is likelier to interpret the instruction to apply fire support selectively as an indication that it is possible to engage more targets if exceptional circumstances such as low numbers of trained troops in the country exist, rather than if the adversary did not outnumber so greatly the commander’s troops. That the Joint Circular allows the commander to use aircraft in support of the ground troops in order to ensure the survivability of the troops reinforces this interpretation.

 65

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 49 par. 135. 66 Konings, “Fire Support during Operation Storm” Doc. P2159, 2,9,11, Annex A 4, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1169 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 67 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 37; Knight, “Running the Gauntlet-Force Protection for Tactical Penetration in MOUT,” 4; United States Army, The Army Capstone Concept Operational Adaptability-Operating Under Conditions of Uncertainty and Complexity in an Era of Persistent Conflict, 15.

The Principle of the Least Feasible Damage

301

Moreover, in order to retain a sufficient number of soldiers for future military engagements, a commander whose forces are poorly trained and outnumbered in comparison with the adversary likely will interpret the Joint Circular such that it permits him or her to employ air bombing against an even greater number of targets. This may mean that, in employing aircraft to engage a limited number of targets, the commander will be reducing danger to his or her troops to such an extent as to forgo only a “medium” military advantage. As the commander no doubt knows, it is more likely that a force exposed to a “medium” danger will prevail than be defeated by its adversary. Nevertheless, the emphasis in the guidance on the requirements (1) to obtain approval from an area commander prior to using aircraft in support of ground troops, (2) to employ air bombing selectively and (3) to exercise outmost care to minimise civilian harm68 together preclude the commander from reducing the danger to the unit to a considerable extent. By engaging many targets and thereby considerably reducing the danger they face, the forces very likely will win the military operation. It follows that even a commander who has few trained troops will find it difficult to justify forgoing a “low” military advantage by employing air bombing against a particular number of targets; this indicates that it is very likely that his or her force will win the military operation. But what is to be said about situations in which the Philippine troops are better trained and equipped than their enemy? Since the guidance requires the commander (1) to obtain approval from an area commander prior to using aircraft in support of the troops, (2) to employ air bombing selectively and (3) to exercise outmost care to minimise civilian harm,69 the commander should adjust the rate of aircraft fire so as to ensure that the forces are exposed at least to the same degree of danger that they would have had if they had not enjoyed such a degree of superiority over the enemy. Simply put, this is because it would be strange for the Joint Circular to require its forces to assume less risk when they have superiority over the adversary than when they are on parity with the adversary. Moreover, the forces should assume greater risk to themselves than they normally do when they have superiority over the enemy. When states have a range of available options for reducing harm to civilianssuch as possessing advanced technologythey cannot justify, to the same degree, that it is not “feasible”

 68 69

Ibid. Ibid.

302

Chapter Seven

to adopt alternative means or methods of warfare which would further reduce the danger to which the attack exposes the civilians.70 Yet how do commanders balance the elements of likelihood of civilian harm and magnitude of harm to civilians when they selectively employ not artillery and mortars but aircraft to support ground troops?71 On our scale, using a dumb bomb makes it highly likely that there will, as a result, be “medium” to “high” magnitude of civilian harm, as determined by the concentration of civilians near the target. By examining not individual strikes but the military operation as a whole, however, one notes that the total magnitude of civilian harm will clearly be shaped by the total number of bombs that the aircraft drops. As the Joint Circular requires that the commander carefully evaluate the need for each air strike prior to supporting ground troops with aircraft as well as that he or she should employ air strikes “selectively” against particular military objectives,72 the guidance tells commanders to try to maintain at least a “medium” or perhaps a lesser magnitude of civilian harm. While a single aircraft strike will, on average, produce “medium” civilian harm, the sheer number of bombs used in the course of the entire military operation makes it clear that using aircraft selectively produces a lesser magnitude of civilian harm. As the discussion has demonstrated, since the Philippines’ forces call in aircraft when the survivability of the troops is threatened,73 they only employ aircraft when they would be forgoing a “very high” military advantage by relying solely on means of warfare such as guns, tanks and infantry fighting vehicles. On our scale, a “very high” military advantage encapsulates situations in which the force risks either its survival or the success of the military operation. Dumb bombs may inflict a “medium” to “high” magnitude of harm upon civilians, but commanders who use air bombing selectively74 aim to reduce the magnitude of civilian harm to “medium” or lower amount. According to the circumstances on the battlefield, a force that employs air bombing selectively sacrifices either “high” or “medium” military advantage. This chapter has also suggested

 70

See also Boivin, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare,” 48; Report on Expert Meeting “Targeting Military Objectives,” Annex II. 71 Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c). 72 Ibid. 73 Ibid. 74 Ibid.

The Principle of the Least Feasible Damage

303

that it is possible to interpret the Joint Circular such that it allows the force to reduce risk to itself even further by attacking more targets from the air in exceptional circumstances. Examples of such circumstances include when the troops are poorly trained or greatly outnumbered. In such cases, the forces sacrifice only “medium” military advantage because they employ air bombing against a greater number of targets.

B. The State Practice of Russia in Georgia During the conflict in Georgia in 2008,75 Russia did not use precisionguided munitions76 for its artillery and air strikes.77 Although Russia possessed precision-guided capabilities in this armed conflict, it was unable to employ them,78 for it had not completed its program to equip the ground troops with satellite signal receivers.79 Russia informed the Independent International Fact-Finding Mission on the Conflict in Georgia that it carried out artillery and air strikes only in areas “situated at a considerable distance from local communities.”80 Yet Human Rights Watch found that contrary to its statements, Russia employed artillery and aircraft against targets situated in populated areas.81 For the purpose of examining its state practice, Russia’s submissions regarding how it acted have more weight than how it actually conducted itself. Since Russia sought to communicate to the Independent International Fact-Finding Mission on the Conflict in Georgia that it acted in compliance with the

 75

Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume I, September 2009, 10-11, http://www.ceiig.ch/pdf/IIFFMCG_Volume_I.pdf (accessed March 5, 2014). 76 Anatoly Tsiganok, “Assessing the Campaign in the South Caucasus,” Nezavisimoye Voyennoye Obozreniye, September 19, 2008, quoted in Roger N. McDermott, “Russia’s Conventional Armed Forces and the Georgian War,” Parameters 39, no. 1 (2009): 70. 77 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349. 78 Anatoly Tsiganok, “Assessing the Campaign in the South Caucasus,” Nezavisimoye Voyennoye Obozreniye, September 19, 2008. 79 Ibid. 80 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349. 81 Human Rights Watch, Up In Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia (New York: Human Rights Watch, 2009), 90-93.

304

Chapter Seven

law,82 Russia’s statements disclosed the obligations it felt bound to observe in the course of planning and executing military operations. Having placed restrictions on the distance of targets which were to be engaged with artillery and air strikes from civilian concentrations,83 Russia assessed the likelihood that exploding munitions would injure civilians. Furthermore, Russia said that its pilots did not fly any missions “in areas adjacent to or bordering on residential communities.”84 While in combat near civilians, it reportedly used small arms fire, tanks and infantry fighting vehicles.85 The fact that Russia avoided using aircraft in close proximity to civilians86 demonstrates that it also took into account the possible magnitude of harm to civilians inflicted by air bombing. Given that the materiel the force uses determines the degree of danger the force is exposed to, Russia surely considered how much military advantage it sacrificed in using small arms fire, tanks and infantry fighting vehicles instead of artillery and aircraft. According to our scale, the use of artillery in close proximity to civilians creates a “high” likelihood of killing civilians; generally speaking, this course of action results in a “medium” to “high” magnitude of harm to civilians. Russia did not employ artillery and aircraft to support ground troops in close proximity to civilians,87 possibly because it wanted to avoid inflicting this “medium” or “high” magnitude of harm to civilians. As Russia employed artillery and air strikes only against military objectives that were a “considerable distance” from local communities,88 Russia acted as though it had to avoid even a “small” likelihood of killing civilians. When a military objective is situated at a “considerable distance” from the civilian population, civilians typically are exposed only infrequently to the blast area of a bomb.

 82

Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume I, 6-7; Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349. 83 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349. 84 Ibid. 85 Ibid. 86 Ibid. 87 Ibid. 88 Ibid.

The Principle of the Least Feasible Damage

305

In order to establish the military advantage Russia was prepared to forgo when it did not use aircraft and artillery, it is necessary to establish whether Russia had military superiority over Georgia in this armed conflict. It should be said, at the outset, that any assessment on the interactions between the capabilities and tactics of the two sides will necessarily be qualitative and will entail a degree of subjectivity. Conflicting accounts exist regarding the relative capabilities of the two sides in this armed conflict. Human Rights Watch reports that Russia and Georgia used identical Soviet-era weapon systems such as tanks, artillery and infantry fighting vehicles.89 On the other hand, Cohen and Hamilton, in a report for the United States Strategic Studies Institute, comment that Georgian contractors benefitted from Western military training90 and upgrades for Soviet equipment.91 Of course, this assessment of Russia’s tactics is not neutral. The American military will, for policy reasons, never admit that the tactics employed by the troops of another state might be on a par with their own. Ultimately, Cohen and Hamilton conclude that despite these advantages, the weaknesses of Russian and Georgian troops meant that the two forces were on a similar footing.92 Yet Sergey Minasian, a political scientist employed at the Institute Caucasus, takes a different view of the conflict.93 He argues that the conscripted Georgian troops had low morale and were called into service

 89

Human Rights Watch, Up In Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia, 87. 90 Sergeant 1st Class Kathleen T. Rhem, “American Troops Training, Equipping Georgian Military,” news release, May 30, 2002, http://www.defense.gov/News/NewsArticle.aspx?ID=43997 (accessed March 4, 2014); Ariel Cohen and Robert E. Hamilton, The Russian Military and the Georgia War: Lessons and Implications (Carlisle: United States Strategic Studies Institute, June 2011), 28. 91 Christopher Walker, “Israel Arming of Georgia Sours Russian Relations,” Week, September 24, 2008, http://www.theweek.co.uk/25777/israel-arming-georgiasours-russian-relations (accessed March 5, 2014); Ora Coren, “Georgian Fighting Drives out Israeli Security Consultants,” Haaretz, August 10, 2008, http://www.haaretz.com/print-edition/business/georgian-fighting-drives-out-israelisecurity-consultants-1.251435 (accessed March 5, 2014); Cohen and Hamilton, The Russian Military and the Georgia War: Lessons and Implications, 33. 92 Cohen and Hamilton, The Russian Military and the Georgia War: Lessons and Implications, 8. 93 Sergei Minasian, “Some Lessons for the ‘Five Day War’ for Southern Caucasus,” The Centre of Political Science, September 19, 2008, http://www.politcom.ru/article.php?id=6895%3E (accessed March 5, 2014).

306

Chapter Seven

shortly before hostilities commenced,94 and the statement of the Georgian Chief of Staff of the armed forces, Zaza Gogova, corroborates this account of events.95 Notwithstanding the conflicting accounts advanced by Minasian, Cohen and Hamilton, the way in which the armed hostilities unfolded indicates that the Russian troops had an edge over their Georgian counterparts. Russia and Georgia signed a ceasefire agreement after five days of fighting,96 and the Georgian commanders had ordered their troops to withdraw two days before97 a ceasefire would be negotiated.98 What is more, Georgia lost 170 servicemen and 14 policemen, whilst Russia lost only 67 servicemen.99 For the purpose of the discussion, let us assume, first, that Cohen and Hamilton are accurate in their assessment that the military forces of Russia and Georgia were on the same footing.100 Unable to employ aircraft and artillery, the troops have to engage the enemy in close combat. Without the support of aircraft or artillery, a unit will find it difficult to survive.101 It follows that the Russian forces assumed risk in not using these assets. Given the significant role artillery and aircraft play vis-à-vis a force’s chances of survival,102 the Russian troops sacrificed quite a high military advantage in forgoing the use of aircraft and artillery. Although the unit assumed a degree of risk, it is likely that the troops nevertheless continued to have a good prospect of winning. Both that Russian troops suffered fewer casualties than their Georgian colleagues103 and that the principle of the least feasible damage does not obligate commanders to assume so

 94

Ibid. Civil Georgia, “Chief of Staff Testifies Before War Commission,” Civil Georgia, October 29, 2008, http://www.civil.ge/eng/article.php?id=19851 (accessed March 1, 2014). 96 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume I, 11. 97 Ibid., 21. 98 Ibid., 11. 99 Ibid., 5. 100 Cohen and Hamilton, The Russian Military and the Georgia War: Lessons and Implications, 8. 101 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 37; Knight, “Running the Gauntlet-Force Protection for Tactical Penetration in MOUT,” 4. 102 Ibid. 103 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume I, 5. 95

The Principle of the Least Feasible Damage

307

much risk that they might lose to the enemy104 supports this fact. At most, therefore, Russia forfeited “high” military advantage by declining to use aircraft and artillery close to civilian concentrations. On the other hand, if the Russian troops indeed had superior morale,105 leadership, discipline and training than their Georgian adversaries, then it would appear that the troops sacrificed a lower level of military advantage in refusing to employ aircraft and artillery. Leadership and other characteristics determine how effectively troops fight.106 Yet clever tactics play a more important role in determining the success or failure of a military conflict than do the number of troops, the technology and the resources available to the unit.107 If, for the sake of argument, the Russian troops used superior tactics and had qualitative characteristics such as high morale, then they enjoyed a greater chance of success in their military engagements. In such circumstances, the Russian commanders sacrificed a “medium” level of military advantage by not employing artillery and aircraft in support of their troops in the vicinity of civilians. From this discussion, it emerges that Russia is prepared to forgo the use of aircraft and artillery when the military advantage entailed in doing so is either “medium” or “high,” in order to avoid inflicting a “medium” magnitude of harm to civilians. Significantly, in deciding whether to employ aircraft and artillery, commanders appear to take into account even low likelihoods of there being civilians located within the blast radius. 

C. The State Practice of Israel on the Employment of Mortars On 6 January, 2009, during Operation Cast Lead, the Israel Defence Forces came under mortar fire from Palestinian fighters.108 The fighters

 104

France, Reservations and Declarations Made upon Ratification of AP I 1977, 11 April 2001, par. 3; The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-23; See also Art.3(4) Protocol II to CCW 1980, Art. 1(5) Protocol III to CCW 1980. 105 Sergei Minasian, “Some Lessons for the ‘Five Day War’ for Southern Caucasus,” The Centre of Political Science, September 19, 2008; Civil Georgia, “Chief of Staff Testifies Before War Commission,” Civil Georgia, October 29, 2008, http://www.civil.ge/eng/article.php?id=19851 (accessed March 1, 2014). 106 Vego, Joint Operational Warfare: Theory and Practice, III–33. 107 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 189191. 108 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 337.

308

Chapter Seven

fired mortar shells every few minutes and positioned themselves eighty metres from a U.N. administered shelter.109 The Israel Defence Forces chose to respond by firing four mortar shells,110 reportedly because the Palestinian mortar fire posed a “concrete and immediate” threat to them.111 What is more, mortars were allegedly the most accurate weapon available to them.112 According to Israel, its troops did not have alternative means of warfare, such as a precision-guided air-launched missile.113 In addition, the commander assessed that the delay in response entailed in calling in aircraft would have endangered the survivability of the force.114 It emerges from the account of the Israel Defence Forces115 that the commander took into account the military advantage that would have been lost, had the forces delayed their response to Palestinian shelling by a longer time period. In justifying their conduct, the Israel Defence Forces emphasised that the troops used a safety margin of fifty metres between the target and the shelter.116 By adopting this safety margin, the Israel Defence Forces reduced the likelihood that a mortar munition would impact the shelter. This particular detail points to the fact the Israel Defence Forces contemplated the likelihood of killing civilians in applying the principle of the least feasible damage. According to the Goldstone Report, moreover, Israel knew of the location of the shelter.117 Humanitarian relief facilities are entitled to special protection by virtue of the obligations placed on parties to a conflict by Articles 55-59 of the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 1949; by Articles 69-70 API 1977; and by Art. 18(2) of Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts.118 These provisions obligate

 109

Ibid. Ibid., 128 par. 339. 111 Ibid., 128 par. 338-340. 112 Ibid. 113 Ibid., 129 n. 265. 114 Ibid. 115 Ibid., 128-129. 116 Ibid., 128 par. 338. 117 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 150 par. 657. 118 Articles 55-59 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 1949, 75 U.N.T.S. 287 (1949); Articles 69-70 API 1977; Art. 18(2) Protocol Additional to the Geneva Conventions of 12 August 1949, and 110

The Principle of the Least Feasible Damage

309

states to allow and facilitate humanitarian aid.119 This entitlement of humanitarian relief facilities to special protection exists in international and non-international armed conflict as a matter of customary international law.120 Given the special status the U.N. administered shelter enjoys, the commander must also have born in mind the potential number of civilians who would have been killed had either the shell hit the shelter or exploded nearby. From here, the chapter scrutinises how the commander balanced the elements military advantage, likelihood of civilian harm and magnitude of harm to civilians while assessing whether it was “feasible” to call in aircraft. By its account, Israel said that it took care not to hit the shelter and that all four shells landed outside the shelter’s grounds.121 Using our scale as a benchmark, one sees that Israel anticipated the likelihood of shells impacting the shelter to be “very low,” which is to say that a shell would land in the compound only rarely. Because the Israel Defence Forces considered itself to be under “concrete and immediate threat,” it felt it necessary to engage Hamas as soon as it identified its location.122 In the view of the Israel Defence Forces, further delaying the response to Hamas risked the force’s chances of survival.123 On the application of our scale, the commander determined that calling in aircraft entailed the sacrifice of “very high” military advantage. As regards the element of magnitude of harm to civilians, there were 1,368 civilians in the shelter at the time of the attack,124 and approximately 150 civilians on the street adjacent to it.125 Israel, in its own account, said that

 relating to the Protection of Victims of International Armed Conflicts (Protocol II), [1979] 1125 U.N.T.S. 609 (1977); Michael N. Schmitt, “Targeting in Operational Law,” in The Handbook of the International Law of Military Operations, ed. Dieter Fleck and Terry Gill (Oxford: Oxford University Press, 2010), 265. 119 Ibid. 120 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:109-110. 121 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 340. 122 Ibid. 123 Ibid. 124 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 150 par. 657. 125 Ibid., 150 par. 662.

310

Chapter Seven

it fired four mortar shells in total.126 A conservative estimate which does not include the large concentration of civilians both inside and near the shelter holds that such an attack would kill at least sixty four civilians, and a commander must have foreseen this. As we have seen, sixteen civilians die on average when an explosive munition detonates in an urban area.127 On the application of the scale, a commander realised that the use of four mortar rounds would have resulted at least in a “high” magnitude of harm to civilians. Crucially, because there was a large concentration of civilians in the shelter and the surrounding area, the commander surely foresaw that it was very likely that the attack may inflict a “very high” magnitude of harm to civilians, that is, more than sixty four deaths. The decision of the Israel Defence Forces suggests that Israel is not prepared to forgo mortars if this entails the sacrifice of a “very high” military advantageeven where using mortars can result in “very high” civilian casualties. However, the commander would probably have given greater consideration to the extent of civilian harm which could materialise had he or she thought that the likelihood of the shell landing inside the compound was greater.128 Additionally, the commander may well have placed greater weight on the element of magnitude of harm to civilians had he or she thought that further delaying the response to Hamas fire meant forfeiting a lower degree of military advantage.129 In analysing the legality of the attack, the U.N. HRC Mission made a different assessment of the situation from that of the Israel Defence Forces. Indeed, the U.N. HRC Mission found that Israel had violated the principle of the least feasible damage in this incident,130 reaching this conclusion largely on the basis that the Israeli forces had fifty minutes in which to respond to the incoming Hamas fire.131 Israel also had helicopters and aircraft, both of which it could mobilise within a short period of

 126

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 339. 127 Dodd and Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012, 15. 128 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 340. 129 Ibid. 130 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 158 par. 701. 131 Ibid., 158 par. 698.

The Principle of the Least Feasible Damage

311

time.132 Consequently, the U.N. HRC Mission concluded that the Israel Defence Forces “had ample opportunity to make a choice of weapons that would have significantly limited the risk to civilians in the area.”133 Unquestionably, the U.N. HRC Mission took into account the military advantage that the commander would have sacrificed in diverting aircraft from another location to the mission at hand. In its assessment, the U.N. HRC Mission also made it clear that mortars are an area weapon, that there were many civilians close to the target and that the shells were, therefore, likely to kill civilians.134 For this reason, while applying the principle of the least feasible damage, the U.N. HRC Mission took into account the likelihood that civilians would be killed as well as the number of potential deaths.135 But how did the U.N. HRC Mission balance the elements likelihood of civilian harm, magnitude of harm to civilians and military advantage in concluding that the principle of the least feasible damage required Israel to call in aircraft? The U.N. HRC Mission observed that because mortars are an area weapon, there was a high likelihood that the exploding munitions will injure civilians.136 On our scale high likelihoods of events correspond to a “high” likelihood of civilian harm. What is more, citing the significant number of civilians who were present on the street and in the shelter at the time of the attack, the U.N. HRC Mission judged that the commander had made a “reckless” choice of weapon.137 On the application of our scale, such a potential amount of civilian deaths constitutes at least a “high”and, most likely, a “very high”magnitude of harm to civilians. Since the U.N. HRC Mission thought that the Israel Defence Forces had “ample opportunity”138 to call in aircraft,139 it determined that it was rather

 132

Ibid. Ibid. 134 Ibid., 158 par. 699-700. 135 Ibid. 136 Ibid. 137 Ibid., 158 par. 698-700. 138 The dictionary meaning of the term “ample” is “more than enough.” Cambridge Advanced Learner’s Dictionary and Thesaurus, s.v. “Ample” (by Cambridge University Press) http://dictionary.cambridge.org/dictionary/british/ample_1?q=ample (accessed March 10, 2014). 139 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 158 par. 698. 133

312

Chapter Seven

likely that Israel could prevail over Hamas. On our scale, when it is more likely that the force will achieve its mission than that the enemy will win, the force sacrifices a “medium” military advantage when it employs an alternative means of warfare that further reduces civilian harm. It follows, then, that the U.N. HRC Mission thought that Israel would be forgoing “medium” military advantage by delaying its response. Of course, it is also possible to speculate that the word “ample” could indicate that it was even less costly, in terms of military advantage, for Israel to call in aircraft. Next, this chapter examines the similarities and differences between the weight that Israel and the U.N. HRC Mission attached to the elements military advantage, likelihood of civilian harm and magnitude of harm to civilians. Since both the Israel Defence Forces and the U.N. HRC Mission considered the military advantage a commander would have forgone had he or she called in aircraft, they approached the assessment in the same way. However, while the U.N. HRC Mission thought that Israel had sufficient assets to call in aircraft,140 Israel Defence Forces said that they lacked alternative assets which could arrive within the available timeframe.141 One explanation for the difference between the justification of the Israel Defence Forces for their conduct,142 and the analysis adopted by the legal experts of the U.N. HRC Mission,143 could be that each placed a different emphasis on the likelihood of the shell exploding near the shelter and on the magnitude of harm to civilians which could result. The Israel Defence Forces,144 unlike the U.N. HRC Mission,145 judged that there was a much lower likelihood that the shell will explode in close proximity to the shelter.

 140

Ibid. Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 129 n. 265. 142 Ibid., 128 par. 338-340. 143 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 158 par. 698-701. 144 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 340. 145 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 150 par. 662. 141

The Principle of the Least Feasible Damage

313

Although the Israel Defence Forces said that they took care to ensure that none of the mortar shells would hit the shelter,146 and although the Israeli troops are well trained,147 there are grounds for questioning the confidence of the Israel Defence Forces that none of the shells would land on the shelter. Clearly, a mortar round can be correctly placed on a target, but the accuracy of mortar fire depends on a number of factors, such as temperature, air density, wind speed and distance of the mortars from the target.148 For instance, if not corrected for, air density can cause the shell to land sixty metres from the desired location, while the spinning movement of the shell can cause it to land twenty metres off target.149 As these examples demonstrate, while mortars can be placed on target, the difficulties of doing so are many. For this reason, the commander cannot justify regarding the likelihood of the shell exploding in close proximity to the shelter as “very low,” which, on our scale, means that a mortar shell will only rarely land on the compound. Moreover, the Israel Defence Forces must have realised the possibility of inflicting at least a “high” magnitude of harm to civilians. According to our scale, between thirty two and sixty four deaths constitutes “high” civilian harm. This range of civilian casualties normally occurs when troops fire between two and four mortar munitions in an urban area where there are no objects such as shelters nearby. The Israel Defence Forces made no mention of the fact that the 120-mm mortar they had at their disposal150 is one of the heaviest models that exists: it has enough explosive power to damage a building.151 Nor did it discuss the fact that

 146

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 340. 147 Ibid., 8 par. 26; U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 138 par. 577. 148 Konings, “Fire Support during Operation Storm” Doc. P2159, 11-12, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1165 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 149 Ibid. 150 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 338. 151 John Pike, “Mortars,” GlobalSecurity.org, http://www.globalsecurity.org/military/systems/ground/mortars.htm (accessed March 20, 2014).

314

Chapter Seven

mortar shells have a large arc of damage,152 and that they had to employ four shells in order to engage their target successfully.153 Since there were many civilians in the shelter154 and on the street next to it,155 it was clearly foreseeable that a mortar shell could cause even more civilian harm than it ordinarily would have. The commander, therefore, must have known that there was quite a “high” likelihood that a shell could explode near the shelter as a consequence of human error, such as the failure to account for environmental factors like wind speed. Equally, the command could anticipate that the explosion would inflict at least a “high” magnitude of harm to civilians. Unlike Israel, the U.N. HRC Mission placed great weight on the fact that there was a “high” likelihood that a shell may explode near the shelter and produce at least a “high,” and more likely a “very high,” magnitude of harm to civilians.156 In particular, the U.N. HRC Mission observed that there was a high likelihood157 that the use of multiple mortar shells would injure many civilians.158 On the other hand, the Israel Defence Forces justified itself by stating that none of the mortar shells would land inside the shelter compound.159 It is unclear whether the commander, guided by this assumption, would have further delayed the response to Hamas in order to call in aircraft had he or she thought that the likelihood of the munitions landing inside the compound was higher. Unfortunately, the Israel Defence Forces did not explain why calling in aircraft was not an available option. Nor did the report discuss whether the troops could have drawn on alternative tactics to delay their response by, say, a further ten minutes. After all, the Israel Defence Forces delayed their response by as much as fifty minutes in order to identify the location of the incoming

 152

Konings, “Fire Support during Operation Storm” Doc. P2159, 12, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1168 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 153 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 339. 154 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 150 par. 657. 155 Ibid., 150 par. 662. 156 Ibid., 158 par. 699-700. 157 Ibid. 158 Ibid., 158 par. 698-700. 159 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 340.

The Principle of the Least Feasible Damage

315

fire.160 But the Israel Defence Forces merely said that they faced a “concrete and immediate threat” and had to engage Hamas as soon as their scouting unit identified its location.161 It cannot be gleaned, from the statements of the Israel Defence Forces, how much less weight the commander placed on considerations of the likelihood of killing civilians and on the magnitude of civilian deaths than the U.N. HRC Mission. The approach of the U.N. HRC Mission162 is preferable to that adopted by Israel.163 The accuracy of mortars depends on many factors which interact164 and which are susceptible to human error. Given the complexity involved in accurately firing mortar shells165 and the large number of civilians present in close proximity to the target,166 Israel was not entitled to assume that a shell would only rarely land in close proximity to the shelter.

D. The State Practice of Georgia Georgia explained that during the conflict between Georgia and the South Ossetian militia167 in 2008, its commanders only used precision-guided artillery in those sections of cities which had a “heavy concentration” of enemy troops and materiel,168 and where “fierce street fighting” was

 160

Ibid., 128 par. 338. Ibid., 128-129 par. 340. 162 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 158 par. 698-700. 163 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 338-340. 164 Konings, “Fire Support during Operation Storm” Doc. P2159, 11-12, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1165 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 165 Ibid.; U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 138 par. 577. 166 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 150 par. 657-660. 167 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume I, 10-11. 168 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 333-334; Civil Georgia, “National Security Council Chief Testifies Before War Commission,” Civil Georgia, October 28, 161

316

Chapter Seven

taking place.169 Accordingly, Georgia used alternative means and methods of warfare in urban areas lacking “fierce street fighting” and “heavy concentration” of enemy forces. On our scale, a single precisionguided artillery round inflicts a “medium” magnitude of harm to civilians. It must be that Georgia used alternative means and methods of warfare in urban areas where there was no “fierce street fighting” in order to avoid inflicting a “medium” magnitude of harm to civilians in those areas. Clearly, in restricting the use of artillery to areas where fierce fighting was taking place, Georgian troops relinquished a degree of military advantage. As regards the degree of military advantage which the commander sacrificed, the military analysts Hamilton and Cohen believe that the South Ossetian militia had an edge over the Georgian forces.170 Some evidence supports their assessment. Since South Ossetia’s troops operated from the basements of residential buildings,171 they were not very visible to the Georgian troops.172 As well, the basements offered the South Ossetia’s troops a degree of protection from Georgian firepower.173 Compiled by the United States-based Asymmetric Warfare Group, a report indicates that the South Ossetian militia moved quickly after firing.174 If the militia in fact used these tactics, they made it difficult for the Georgian troops to detect their locations.175

 2008, http://www.civil.ge/eng/article.php?id=19845 (accessed April 2, 2014). 169 Civil Georgia, “Chief of Staff Testifies Before War Commission,” Civil Georgia, October 29, 2008, http://www.civil.ge/eng/article.php?id=19851 (accessed March 1, 2014). 170 Cohen and Hamilton, The Russian Military and the Georgia War: Lessons and Implications, 43. 171 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 350. 172 United States Army Training and Doctrine Command, The U.S. Army Functional Concept for Protection 2016-2028, 9. 173 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 350; Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 12; United States Army Training and Doctrine Command, The U.S. Army Functional Concept for Protection 2016-2028, 9. 174 Asymmetric Warfare Group, “Russian-Republic of Georgia Conflict,” Joint Center for Operational Analysis Journal 11, no. 2 (2009): 12. 175 Cohen and Hamilton, The Russian Military and the Georgia War: Lessons and Implications, 43.

The Principle of the Least Feasible Damage

317

Assuming that the militia had an advantage over the Georgian troops, one remarks that it appears as though Georgia does not use artillery unless there is a “heavy” concentration of enemy troopseven when it faces a superior force. This state practice indicates that Georgia assumes risk to its force, as long as it continues to have a good prospect of success. In turn, this hints that Georgia does not use artillery even when the military advantage of forgoing the use of this asset is “high.” Georgia reserves the use of artillery for circumstances in which its forces’ chances of survival are threatened, namely when the military advantage of not using artillery is “very high.” At this point, the chapter pays attention to the ways experts evaluated the conduct of Georgia.176 The Independent International Fact-Finding Mission on the Conflict in Georgia thought that “the presence of many civilians places greater obligations on the warring parties to take steps to minimise the harm to civilians.”177 The experts, moreover, regard the Georgian troops’ use of artillery in Tskhinvali on 8 of August, 2008, as a violation of the principle of the least feasible damage.178 Contrary to its official statements, Georgia shelled targets in Tskhinvali at intervals of fifteen to twenty seconds in the first few hours of the military operation.179 This estimated rate of fire180 indicates that Georgia fired between 180 and 240 artillery shells in one hour, and caused between 1,080 and 3,840 deaths. The Georgian Army Chief of Staff Zaza Gogava told the parliamentary commission that commanders knew that there were civilians in the city, despite Tskhinvali having been partially evacuated the day before.181 Although a single precision-guided artillery shell inflicts a “medium” magnitude of harm to civilians, Georgia should have anticipated inflicting a “very high” rate of harm to civilians in light of the intensive rate of fire. Arguably, even when the survivability of the force is threatened, the force

 176

Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume I, 6. 177 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 323. 178 Ibid., 340. 179 Ibid., 339. 180 Ibid. 181 Civil Georgia, “Chief of Staff Testifies Before War Commission,” Civil Georgia, October 29, 2008, http://www.civil.ge/eng/article.php?id=19851 (accessed March 1, 2014).

318

Chapter Seven

should not use intensive shelling. Instead, it should assume a degree of risk to itself by adjusting the intensity of shelling. This interpretation is supported by the fact that low rates of artillery fire may be sufficient to disorientate the enemy’s troops and to prevent them from manning their artillery.182 Furthermore, on its own, intensive use of materiel does not confer military advantage and, in fact, may even be counterproductive.183 Effective tactics, on the other hand, protect the force and contribute to victory more than intensive use of firepower,184 while enabling the troops to reduce harm to civilians. Unfortunately, the degree of risk a force should expose itself to by adjusting the intensity of shelling is not clear from the assessment of the Independent International Fact-Finding Mission on the Conflict in Georgia.185 What is apparent, however, is that the Independent International Fact-Finding Mission on the Conflict in Georgia concluded that Georgia should have considered how employing alternative tactics would have made it less reliant upon artillery.

E. The State Practice of Israel on the Use of White Phosphorus Israel said that Hamas attacked its tank unit with sniper fire and anti-tank missiles on 15 January, 2009, in Gaza, during Operation Cast Lead.186 In turn, Israel used white phosphorus to screen the movement of its troops, because they came under a “credible and imminent threat.”187 Again, smoke shells would act as an alternative obscurant. Unlike white phosphorus, however, smoke shells do not interfere with infra-red night vision equipment and do not prevent weapon-tracking equipment from

 182

Konings, “Addendum to Expert Report 'Fire Support during Operation Storm'” Doc. P2160 (expert report, International Criminal Tribunal for the former Yugoslavia, August 1995), 5, 6, quoted in Prosecutor v. Gotovina, Case No. IT06-90-T T. Ch.I., Judgment, par. 1169 (International Criminal Tribunal for the former Yugoslavia April 15, 2011); Lieutenant Colonel Geoffrey Corn, “Expert Report” Doc. T. 21542 (expert report, International Criminal Tribunal for the former Yugoslavia, June 29, 2009), quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1170 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 183 Dewar, War in the Streets: the Story of Urban Combat from Calais to Khafji, 78. 184 Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 189191. 185 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 340. 186 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 129 par. 342. 187 Ibid.

The Principle of the Least Feasible Damage

319

locating materiel.188 Yet, as we have seen, the Israeli commander thought that his or her troops faced a “credible and imminent threat.”189 And on our scale, when a force risks its survivability, it sacrifices “very high” military advantage in employing an alternative weapon; in this case, swapping white phosphorus for the less effective smoke shells amounts to such a sacrifice. Therefore, Israel must have viewed the use of white phosphorus as a forfeiture of “very high” military advantage. Hamas operated behind a civilian shelter.190 Israel said that it used a safety distance of several hundred metres from this shelter, and that it did not anticipate that the phosphorus wedges would land in the compound.191 In fact, these statements clearly betray the fact that Israel considered the likelihood of the phosphorus wedges landing inside the shelter compound. On our scale, when the likelihood of a shell landing in the shelter compound is so small that it is virtually non-existent,192 the likelihood of civilians being harmed is “very low.” What is more, in justifying its decision to use white phosphorus, Israel remarked that, without using this weapon, more civilians would have died.193 Specifically, Israel explained that without the protection of the smokescreen, its troops would have had to use reactive fire to respond to Hamas, and the fighting would have been more protracted.194 The Goldstone Report estimates that between six hundred and seven hundred civilians were in the shelter that day.195 Consequently, Israel took into account how many civilians could be killed if it did not use an obscurant. According to our scale, when hundreds of civilians are endangered by the use of a weapon such as white phosphorus, the magnitude of harm which may be inflicted onto civilians is “very high.”

 188

S.R. Subramanian, “Use of White Phosphorus in Gaza and Some Limitations of International Law,” Institute for Defence Studies and Analyses, March 4, 2009, http://idsa.in/idsastrategiccomments/UseofWhitePhosphorusinGaza_SRSubramani an_040309 (accessed July 21, 2009). 189 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 129 par. 342. 190 Ibid., 128 par. 343. 191 Ibid., 130 par. 346. 192 Ibid. 193 Ibid., 130 par. 345. 194 Ibid. 195 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 133 par. 543.

320

Chapter Seven

This discussion points to the fact that Israel, in deciding whether to use white phosphorus in this particular instance, balanced the elements of likelihood of civilian harm, magnitude of harm to civilians and military advantage as follows. In the first place, Israel did not employ smoke shells instead of white phosphorus, because by using this obscurant it would have sacrificed a “very high” military advantage. In turn, it reasoned that while the use of white phosphorus could inflict a “very high” magnitude of harm to civilians, the likelihood of the shell landing inside the shelter was “very small.” Unfortunately, it is not clear whether Israel would have made a different decision about whether to use smoke shells instead of white phosphorus had it regarded the likelihood of harming civilians as being higher. In contrast to Israel’s account of its own decision-making, the post-conflict assessment of the U.N. HRC Mission puts forth a different judgment of how a “reasonable” commander would have deliberated.196 The U.N. HRC Mission found that Israel not only violated the principle of the least feasible damage, but was also “reckless” in its choice of means of warfare.197 In its report, the likelihood of white phosphorus wedges injuring civilians played a highly prominent role. According to the Goldstone Report, Israel knew of the layout and location of the shelter,198 and that there were forty nine thousand litres of fuel stored in tankers on the premises.199 The U.N. HRC Mission observed that given the presence of fuel tankers, using white phosphorus created an “obvious and immediate” risk of fire.200 That white phosphorus wedges might set objects on fire increased both the likelihood of civilians being harmed and the extent of the potential harm to civilians. The U.N. HRC Mission, moreover, observed that, contrary to Israel’s statements, the impact was not confined to individual phosphorus wedges coming into contact with civilians, with buildings or with the fuel tankers.201 In fact, ten phosphorus shells exploded inside the compound.202 The U.N. HRC Mission inferred, in view of this, that Israel either foresaw, or should have foreseen, that phosphorus shells (and not merely individual

 196

Ibid., 140 par. 592. Ibid., 140-141 par. 594-595. 198 Ibid., 140 par. 592. 199 Ibid., 134 par. 548. 200 Ibid. 201 Ibid., 138 par. 576. 202 Ibid., 137 par. 575. 197

The Principle of the Least Feasible Damage

321

wedges) would land on the compound.203 Mapped on our scale, the assessment of the U.N. HRC Mission that it was certain that phosphorus wedges would land on the grounds of the shelter204 corresponds to a “very high” likelihood of civilian harm. The U.N. HRC Mission also took into account the possible magnitude of harm to civilians, as the ignition of a fuel tank would have created a “catastrophic fire” and killed hundreds of the civilians who were in the shelter at the time.205 On our scale, the deaths of hundreds of civilians correspond to a “very high” magnitude of harm to civilians. Furthermore, the U.N. HRC Mission took into account the military advantage the commander would have forgone had alternative means of warfare been employed. The U.N. HRC Mission observed that Israel used white phosphorus in the course of three hours.206 Therefore, the troops “were not confronted by surprise fire to which they had to respond with whatever materiel was available to them at the time.”207 This situation did not require immediate Israeli action or reaction, for it was relatively controlled. According to the U.N. staff, during the three hours in which the Israel Defence Forces employed white phosphorus to screen its troops, there was no “sustained fire” in the nearby areas.208 Since the U.N. HRC Mission looked at the degree of danger to which enemy firepower exposed the Israeli forces,209 and at whether the Israeli forces could delay their response210 (presumably) in order to call in additional materiel or troops, the U.N. HRC Mission assessed the degree of military advantage Israel would have forgone had its force employed smoke shells. As its report shows, the U.N. HRC Mission thought that the Israel Defence Forces had enough time to adopt alternative means and methods of warfare.211 This was the case because Israel did not face a continuous

 203

Ibid., 138 par. 576. Ibid. 205 Ibid., 134 par. 549-550. 206 Ibid., 140 par. 590. 207 Ibid. 208 Ibid., 140 par. 591. 209 Ibid. 210 Ibid., 140 par. 590. 211 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 140 par. 590. 204

322

Chapter Seven

threat from Hamas.212 Additionally, the Goldstone Report discusses the fact that, as an army, the Israel Defences Forces are technologically advanced and well equipped.213 Indeed, Israel describes its own forces as a well-trained military.214 With this information, the U.N. HRC Mission thought that it was more likely that the Israeli troops would successfully complete their mission than that Hamas would kill many Israeli soldiers, even if Israel were to employ alternative means and methods of warfare. Perhaps the U.N. HRC Mission thought that forgoing the use of white phosphorus entailed a lesser degree of military advantage than Israel estimated. It follows that the U.N. HRC Mission viewed the element of military advantage as “medium,” or an even smaller degree. Overall, the basis for the conclusion made by the U.N. HRC Mission215 seems to be that the likelihood of injuring civilians was “very high,” that the potential extent of harm to civilians was “very high” and that Israel would have sacrificed either “medium” or a lesser degree of military advantage by employing an alternative means of warfare. Of course, an important caveat to the reasoning of the U.N. HRC Mission is that it looked at the commander’s decision to continue to deploy white phosphorus over a span of three hours,216 and that the commander did not discontinue such use after the U.N. staff had made it known that shells had landed inside the shelter compound.217 The U.N. HRC Mission did focus on the initial decision to use white phosphorus,218 but only observed that in these circumstances the use of white phosphorus breached the principle of proportionality.219 Yet Israel provides a different evaluation of its decision-making. According to Israel, it abandoned the use of white phosphorus when its troops no longer faced an imminent threat.220 The

 212

Ibid., 140 par. 591. Ibid., 24 par. 61. 214 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 8 par. 26. 215 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 140-141 par. 594. 216 Ibid., 140 par. 590. 217 Ibid., 140-141 par. 594. 218 Ibid. 219 Ibid., 140 par. 593. 220 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 130 par. 345. 213

The Principle of the Least Feasible Damage

323

exchange of fire stopped as a result of the initial use of white phosphorus, as Hamas fighters were forced to change their position.221 Notwithstanding the fact that the U.N. HRC Mission concentrated on the commander’s decision to use white phosphorus over a long period of time,222 evidence suggests that it would have treated the initial decision to employ white phosphorus in a similar way. In its analysis of another military operation, the U.N. HRC Mission found that commanders should give “particular consideration” before using “especially hazardous materials,” such as white phosphorus, close to civilian objects such as hospitals.223 What is more, in later sections of the report it said that “the Israeli armed forces were systematically reckless in determining to use white phosphorous in built-up areas and in particular in and around areas of particular importance to civilian health and safety.”224

Finally, the U.N. HRC Mission concluded that because other means of screening the force which do not have the toxic hazards inherent in using white phosphorus are available states should consider banning the chemical in urban combat.225 In order better to understand this guidance, it is necessary to analyse the military advantage a force relinquishes by using smoke shells. Smoke does not interfere with the ability of the enemy to identify targets at night time with infra-red technology.226 The smoke merely disorients the enemy and deteriorates the adversary’s capacity to coordinate the actions of individual soldiers. As a result, the force assumes risk to itself when it uses smoke shells, rather than white phosphorus, to screen its movement. If an enemy is well trained, uses clever tactics and has specialist night vision

 221

Ibid. U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 140 par. 590. 223 Ibid., 148 par. 650. 224 Ibid., 195 par. 894. 225 Ibid., 196 par. 901. 226 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 129-130 par. 344; S.R. Subramanian, “Use of White Phosphorus in Gaza and Some Limitations of International Law,” Institute for Defence Studies and Analyses, March 4, 2009, http://idsa.in/idsastrategiccomments/UseofWhitePhosphorusinGaza_SRSubramani an_040309 (accessed July 21, 2009). 222

324

Chapter Seven

equipment, a force will likely forgo “high” military advantage in employing smoke shells instead of white phosphorus. Regardless of an assumption of risk, then, the force’s prospects of successfully completing the mission remain good. On the other hand, if the adversary is well trained and uses clever tactics, but lacks specialist night vision equipment, then lack of visibility may well make it more likely that the commander’s force (as opposed to the adversary’s) will win the military engagement. Therefore, in such circumstances, a force could forgo a “medium” military advantage in using smoke shells instead of white phosphorus. Here the military advantage of forgoing the use of white phosphorus is lower than in the previous scenario, because the enemy force does not have the technology that the white phosphorus would have countered. For this reason, the employment of either white phosphorus or smoke shells in this instance has similar value. If this line of argument is accepted, then it follows that the U.N. HRC Mission’s conclusion indicates that states should consider forgoing white phosphorus in urban combat,227 irrespective of whether the military advantage in doing so was “medium” or “high.” Significantly, Israel’s228 and the U.N. HRC Mission’s229 analyses of the legal concerns underlying the use of white phosphorus on 15 January, 2009, share some similarities. First, Israel lead with the premise that the likelihood of wedges landing inside the compound was “very small,”230 but the U.N. HRC Mission evaluated it as “very high.”231 Secondly, the U.N. HRC Mission focused on the commander’s decision to continue using white phosphorus, despite having received notification from the U.N. staff that shells had landed inside the compound,232 and despite the

 227

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 196 par. 901. 228 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 129-130 par. 343-346. 229 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 140-141 par. 589-594. 230 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 130 par. 346. 231 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 138 par. 576. 232 Ibid., 138 par. 583.

The Principle of the Least Feasible Damage

325

fact that the intensity of Hamas fire had abated.233 Israel, on the other hand, provided justification only for why it employed white phosphorus in the first place.234 Finally, the U.N. HRC Mission assumed that the Israel Defence Forces either had smoke shells on hand or could have called in other assets,235 but neither of these assumptions was proven. Neither did the U.N. HRC Mission discuss the intensity of the exchange of fires prior to the commander’s initial decision to employ white phosphorus. If the Israel Defence Forces were overmatched by Hamas, only had white phosphorus on hand and could deploy it in such a way as to ensure that no wedges landed inside the compound, it is possible that the U.N. HRC Mission would have reached a different conclusion. That states made it clear that the principle of the least feasible damage does not require a force to sacrifice its survivability or its chances of winning provides evidence for this line of thinking.236 Crucially, the U.N. HRC Mission did not say that the employment of white phosphorus in urban areas is necessarily unlawful.237 Instead, it wrote that commanders should give “particular consideration” before employing white phosphorus in populated areas,238 especially near civilian objects such as hospitals.239 It then advised states to equip forces with smoke shells for combat in cities.240 Thus, both the U.N. HRC Mission and Israel appear to agree that it may be lawful to employ white phosphorus in

 233

Ibid., 140 par. 591. Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 129-130 par. 342-344. 235 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 140 par. 590. 236 The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-23; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.3.1; Ecuador, Academia de Guerra Naval, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, par. 8.1.2.1; Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c); France, Reservations and Declarations Made Upon Ratification of AP I 1977, 11 April 2001, par. 3. 237 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 196 par. 901. 238 Ibid., 195-196 par. 894-901. 239 Ibid., 148 par. 650. 240 Ibid., 196 par. 901. 234

326

Chapter Seven

urban areas in some circumstances. More recently, Israel adopted a new policy of using white phosphorus in populated areas only in two sets of exceptional circumstances, although it did not disclose the nature of these circumstances.241 And the Israeli Supreme Court, in the case of Yoav Hess et al v. Chief of Staff, found this new policy to be in compliance with international humanitarian law.242 Such exceptional circumstances are likely to arise when the military advantage entailed in forgoing the use of white phosphorus is “very high,” which means that the use of smoke shells may endanger the survivability of the force. What can be gleaned from this analysis is that in the future Israel will use white phosphorus, even if doing so may cause a “very high” magnitude of harm to civilians, provided that the force would sacrifice a “very high” military advantage by using alternative means of warfare.

3. The Relationship between the Three Elements 3.1. The Relationship of the Element of Military Advantage to other Elements This portion of the analysis begins by noting that both the Philippines243 and Russia244 placed restrictions on the use of artillery in the proximity of civilian concentrations. This state practice supports an observation of the U.N. HRC Mission: that the use of artillery in urban areas “is likely contrary to international humanitarian law.”245 The U.N. HRC Mission made this statement in reviewing the legality of Israel’s conduct on 8 November, 2006, in Beit Hanoun, which was located in an occupied area of the Gaza strip.246 This state practice reinforces the proposition that the greater the extent of harm a particular means of warfare may inflict, the greater risk commanders will be prepared to assume to their force in their choice of means and methods of warfare as they comply with the principle of the least feasible damage.

 241

Yoav Hess et. al. v. Chief of Staff, Case No. HCJ 4146/11, Judgment, par. 3 (The Supreme Court, Israel July 9, 2013). 242 Ibid., par. 7. 243 Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c). 244 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349. 245 U.N. Human Rights Council, Report of the High-Level Fact-Finding Mission to Beit Hanoun Established under Council Resolution S-3/1, par. 42. 246 Ibid., par. 1.

The Principle of the Least Feasible Damage

327

Although Israel employed mortars247 and white phosphorus248 close to civilian shelters during Operation Cast Lead 2009, this practice does not negate the proposition that the potential magnitude of harm to civilians bears on the decision-making of the commander. This is the case because in both instances Israel justified its decision to use means of warfare that may inflict considerable injury to civilians on the basis of the very low likelihood of the shells landing on the territory of the shelter.249 Moreover, in the course of prosecuting Operation Protective Edge 2014, Israel required its forces to maintain a minimum distance from “sensitive locations”250 such as U.N. administered shelters.251 Further support for this proposition can be gleaned from the conduct of Georgia, which restricts the use of precision-guided artillery in urban combat.252 It is also relevant that the Independent International FactFinding Mission on the Conflict in Georgia observed that the presence of many civilians near the target places greater obligations on the warring parties to take steps to minimise the harm to civilians.253 This analysis confirms the writings of certain scholars. On one occasion Schmitt commented: “the greater the anticipated collateral damage or incidental injury, the greater the risk they [the armed forces] can reasonably be asked to shoulder.”254

Of course, this is not to say that states do not adopt alternative means and methods of warfare if doing so will reduce harm to civilians even to only a small extent. States often assert that they take all measures which are

 247

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 338. 248 Ibid., 128 par. 343. 249 For a discussion on the employment of white phosphorus see Ibid., 130 par. 346. For a discussion on the employment of mortars see Ibid., 128-129 par. 340. 250 Breaking the Silence, This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014), 199. 251 Ibid., 200. 252 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 333-334. 253 Ibid., 323. 254 Schmitt, “Precision Attack and International Humanitarian Law,” 462.

328

Chapter Seven

“practicable” or “practically possible” for them to take.255 They consider themselves obligated, therefore, to reduce civilian harm irrespective of the number of affected civilians, provided that military imperatives allow them to achieve this.

3.2. The Element of Magnitude of Harm to Civilians: Degree of Care and Objects Entitled to Special Protection The state practice on the issue of taking greater care when operating near civilian objects entitled to special protection is mixed. Israel did not hesitate to employ white phosphorus close to shelters256 and hospitals257 during Operation Cast Lead 2009. Yet the U.N. HRC Mission, in assessing the compliance of Israeli forces with the principle of the least feasible damage, focused on the number of civilians present in these civilian buildings, rather than on the nature of these civilian objects.258 Consequently, the U.N. HRC Mission treated the number of civilians present in the proximity of the exploding munitions as a greater determining factor than whether the civilian object enjoyed special protection for the purpose of establishing whether the force has to exercise additional care. Five years later, Israel required its forces to maintain a minimum distance from U.N. administered shelters when they carried out Operation Protective Edge 2014.259 Although Israeli forces did not attack certain military objectives, because of their proximity to civilian objects such as schools, it relaxed this restriction after a rocket killed seven Israeli soldiers who were in an armored personnel carrier at the time.260

 255

France, Reservations and Declarations Made upon Ratification of AP I 1977, 11 April 2001, par. 3; See also Art. 3(10) Amended Protocol II to CCW 1980, Art. 1(5) Protocol III to CCW 1980. 256 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 343. 257 For operations the Israeli forces undertook near the Al-Quds hospital see U.N. Human Rights Council, Human rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 144 par. 615. For a discussion of the operations the Israeli forces carried out near the Al-Wafa hospital see Ibid., 147 par. 635. 258 An analysis of the legality of the employment of white phosphorus may be found in Ibid., 140-141 par. 589-594. An analysis concerning the employment of mortars may be found in Ibid., 158 par. 698-700. 259 Breaking the Silence, This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014), 200. 260 Ibid., 204-205.

The Principle of the Least Feasible Damage

329

As regards the state practice of the United Kingdom, before the United Kingdom signed the Convention on Cluster Munitions 2008,261 which bans cluster munitions that do not recognise military objectives based on their signature,262 it prohibited the use of cluster munitions in the vicinity of civilian objects such as hospitals, schools and mosques.263 Traditional cluster munitions are an area weapon; the dispenser scatters multiple bomblets that do not home in on a specific target.264 On the other hand, the United States of America merely requires that commanders obtain approval from high command before employing cluster munitions near civilian objects, such as hospitals, mosques, historic sites and schools.265 However, when American troops employ cluster munitions, they use a safety margin of at least five hundred meters,266 which they may in some instances reduce to three hundred meters.267 Perhaps because precision munitions for rockets, artillery and mortars are now available,268 the United States of America may further regulate its position on when its forces may employ cluster munitions. At the moment, the United States of America is considering adopting the Cluster Munitions Civilian Protection Act 2013, which prohibits the use of cluster munitions “where civilians are known to be present or in areas normally

 261

International Committee of the Red Cross, “Convention on Cluster Munitions, 30 May 2008,” International Committee of the Red Cross, http://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMSt atesParties&xp_treatySelected=620 (accessed April 15, 2015). 262 Art. 2(2)(c) Convention on Cluster Munitions 2008, [2010] 2688 U.N.T.S.39 (2008). 263 Colonel Gil Baldwin (the Commanding Officer, First Queen’s Dragoon Guards, Welsh Cavalry, British Army) in discussion with Human Rights Watch, July 2, 2003, quoted in Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 95. 264 United States Air Force, Air Force Operations and the Law, 1st ed. (Alabama: The Judge Advocate General’s Department, 2002), 296. 265 Lieutenant Colonel Eric Wesley (the Executive Officer, The Second Brigade, Third Infantry Division, United States Army), in discussion with Human Rights Watch, May 23, 2003, quoted in Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 92. 266 Ibid., quoted in Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, 94. 267 Ibid. 268 Jeffrey Kofman, “Introducing the Small Diameter Bomb,” A.B.C. News, February 16, 2008.

330

Chapter Seven

inhabited by civilians.”269 Although the United States of America authorises its troops to use cluster munitions near civilian objects such as schools, it nevertheless requires that its troops take “extreme care” when attacking military objectives that are located in the vicinity of schools, hospitals, religious shrines and archaeological sites.270 During the armed conflict in 2008, Russia271 and Georgia272 merely spoke of the need to spare civilians and did not discuss the measures they took to spare objects entitled to special protection. The Independent International Fact-Finding Mission on the Conflict in Georgia observes that Georgian troops used massive bombardment in the village in Kekhvi and that this resulted in very heavy damage to hospital buildings.273 This state practice signifies that Georgian commanders did not take greater care when operating near civilian objects entitled to special protection. A resolution adopted on 14 December, 1974, at the United Nations General Assembly provides additional evidence for the position of states on this issue. According to Resolution 3318 (XXIX), states should take special care to protect civilians who are especially vulnerable. Specifically, “[a]ttacks and bombings on the civilian population inflicting incalculable suffering especially on women and children, who are the most vulnerable members of the population shall be prohibited, and such acts shall be condemned.”274

Civilian objects such as maternity homes, schools and hospitals house civilians who are especially vulnerable, and who will find it more difficult to travel to shelters or to evacuate populated areas in the midst of hostilities. Customary international law norms, which govern the

 269

United States Congress, House of Representatives, Committee on Armed Services, Cluster Munitions Civilian Protection Act of 2013, 113th Cong., 1st sess., February 28, 2013, H.R. 881. 270 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, 100. 271 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349. 272 Ibid., 333-334. 273 Ibid., 330. 274 United Nations General Assembly, Declaration on the Protection of Women and Children in Emergency and Armed Conflict, U.N. Doc. A/RES/29/3318 (New York: United Nations, December 14, 1974).

The Principle of the Least Feasible Damage

331

distribution of relief consignments, acknowledge that special care should be taken to protect vulnerable groups of the population.275 Accordingly, children, expectant mothers and nursing mothers with young children are to be given priority in both international and non-international armed conflict.276 When the U.N. Security Council imposed economic sanctions on Iraq, following the country’s invasion of Kuwait in 1990, the resolution provided an exemption for the import of medical supplies and foodstuffs.277 In assessing whether there was a humanitarian need for food supplies to enter Iraq, policy makers gave special attention to children under the age of fifteen, expectant mothers and maternity cases.278 Moreover, according to customary international law, commanders should take “special care” to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and also historic monuments, unless the adversary had converted such buildings into military objectives.279 By the same token, it would be strange for commanders to take greater care when operating near these types of civilian objects, but not in close proximity to buildings which clearly house vulnerable groups. A possible criticism of the proposition that commanders should take greater care when operating near civilian objects entitled to special protection is that the rules of targeting have traditionally been understood to treat all civilians on an equal footing. This remark misses the fact that it is the vulnerability of certain groups of civilians, rather than the identity of individuals who are housed in such buildings, which is the source of

 275

Art. 23 Convention (IV) Relative to the Protection of Civilian Persons in Time of War 1949; Art. 70 API 1977; See also Yoram Dinstein, Charles Garraway, and Michael N. Schmitt, The Manual on the Law of Non- International Armed Conflict With Commentary (Sanremo: International Institute of Humanitarian Law, 2006), 48; Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:475, 478-481. 276 Ibid. 277 See United Nations Security Council, Resolution 661(1990), 2933rd Meeting, The Situation Between Iraq and Kuwait, Doc. S/RES/0661 (New York: United Nations, August 6, 1990); United Nations Security Council, Resolution 666(1990), 2939th Meeting, The Situation Between Iraq and Kuwait, Doc. S/RES/666 (New York: United Nations, September 13, 1990), par. 4. 278 Ibid. 279 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 1:127; Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 335.

332

Chapter Seven

additional obligations. Ideally, states should strive to avoid using aircraft, artillery and mortars, even when these assets carry precision-guided munitions, within a particular proximity of civilian objects entitled to special protection.

3.3. The Relationship of the Element Likelihood of Civilian Harm to the Elements of Military Advantage and Magnitude of Harm to Civilians A point of interest is whether states take into account the occurrence of “small” and “very small” likelihoods of harm to civilians. The analysis of state practice of the Philippines280 showed that commanders may disregard “low” likelihoods of an exploding munition affecting civilians, such as in circumstances in which the commander predicts that an artillery shell will only land infrequently in an area with a concentration of civilians. On the other hand, Russia appears to disregard only the occurrence of “very low” likelihoods of harm to civilians, so that it will only rarely be the case that civilians living in an urban area will be within the blast area of an exploding bomb. Additionally, Israel, in its justification for using white phosphorus close to a shelter compound281 that housed fuel tankers,282 emphasised on the very low likelihood that the wedges would land within the compound.283 Since the Israeli commander said that it was not “anticipated” that white phosphorus wedges would land on the territory of the shelter,284 the commander deemed it as being permissible to disregard rare events, those which happen in very few cases per one hundred instances. The Israeli practice,285 therefore, implies that even if the use of a particular means of warfare has the potential to cause a “high” or a “very high” magnitude of harm to civilians, commanders may choose not to employ

 280

Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c). 281 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128 par. 343. 282 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 134 par. 548. 283 Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 130 par. 346. 284 Ibid. 285 Ibid., 128 par. 343.

The Principle of the Least Feasible Damage

333

alternative means and methods of warfare to reduce danger to civilians if the likelihood of civilians being killed is sufficiently small. In other words, when the likelihood of civilians being affected is very small, a commander may place less weight on the element of magnitude of harm in applying the principle of the least feasible damage, even if the use of a particular means of warfare may cause a “very high” number of civilian casualties. Although it is doubtful that in the circumstances there was actually a “very low” likelihood of white phosphorus shells landing inside the shelter compound, the Israeli commander’s statements nonetheless offer a telling point of how he or she weighed in on the question of whether to take into account the occurrence of very small likelihoods of harm to civilians. Unfortunately, it is impossible to establish with precision whether the commanders either disregarded or placed less weight on the potential occurrence of certain magnitudes of harm to civilians. Nevertheless, the judgment of the International Criminal Tribunal for the former Yugoslavia in the Prosecutor v. Kupreškiü et al. case286 intimates that commanders should construe narrowly those likelihoods of harm to civilians that they either disregard or place less weight on. In that case, the judges explained that commanders should interpret Art. 57 API 1977 so as to construe, as narrowly as possible, their discretionary powers to determine what measures it is “feasible” to take in the circumstances.287 Additionally, they should aim “to expand the protection accorded to civilians.”288 Drawing on the mathematical notion of risk illustrates the practical impact of the commander’s decision to place less weight on the potential magnitude of harm to civilians when the likelihood of such harm occurring is either “small” or “very small.” The term risk refers to how much civilian harm will result on average289 and is calculated by multiplying the likelihood of such harm occurring by the magnitude of the anticipated harm.290 For example, let us assume that there are 100 civilians in a building, and that there is a 1 percent likelihood of a single phosphorus wedge landing on that building and setting it on fire. The overall risk to civilians in this instance would be expressed as one civilian death (plus the

 286

Prosecutor v. Kupreškiü et al., Case No. IT-95-16-T T.Ch.II, Judgment, par. 524-525 (International Criminal Tribunal for the former Yugoslavia January 14, 2000). 287 Ibid. 288 Ibid. 289 Katz, Wyn, and Rosen, Microeconomics, 179. 290 Ibid.

334

Chapter Seven

damage to the building, assuming that the fire does not spread). Similarly, if the likelihood of the wedges igniting a building is 10 percent, the overall risk to civilians would be ten civilians injured or killed. Now imagine that (1) the use of white phosphorus will ensure the survivability of fifteen soldiers, six tanks and one artillery unit, (2) the force is not equipped with smoke munitions (a civilian-friendly alternative) and (3) the infantry unit will lose half of its men and materiel if it does not employ white phosphorus. In cases where the likelihood of white phosphorus wedges setting a civilian building on fire is 1 percent, a commander may well judge that it is not “feasible” to forgo the employment of white phosphorus. The commander may reason that the use of white phosphorus would save the lives of fifteen soldiers, while forgoing the use of white phosphorus will save one civilian life. Equally, the commander may arrive at the same conclusion if the likelihood of white phosphorus wedges setting a civilian building on fire is 10 percent. Of course, this is because the life-saving potential for civilians (ten lives) is less than that of the number of soldiers who will survive if the commander permits the troops to use white phosphorus. However, this is not to suggest that there is an exact correlation between x number of civilian casualties versus y number of own-side military deaths. This chapter will now examine the relative weight commanders place on the likelihood of civilians being injured, the potential magnitude of harm to civilians and the military advantage entailed in forgoing a particular means of warfare. As the chapter has demonstrated, the greater the magnitude of harm to civilians a particular means of warfare may cause, the more willing the commander will be to adopt an alternative option which exposes civilians to less danger.291 Katz, Wyn and Rosen have observed that the average total harm to civilians is shaped by the likelihood of such harm occurring and by the number of civilians in the area.292 Since the number of civilian casualties which an attack will produce is shaped by the likelihood of civilians being killed, it follows that commanders will be more willing to adopt alternative means and methods

 291

Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349; Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c); U.N. Human Rights Council, Report of the High-Level Fact-Finding Mission to Beit Hanoun Established under Council Resolution S-3/1, par. 42. 292 Katz, Wyn, and Rosen, Microeconomics, 179.

The Principle of the Least Feasible Damage

335

of warfare in order to reduce civilian casualties as the likelihood of inflicting casualties among the civilian population increases. For instance, imagine two commanders facing almost identical situations. The only difference is that buildings in village A are made of material that does not ignite easily, while buildings in village B are made of ordinary material. Knowing that there is a 15 percent chance the wedges will set a building on fire, commander A contemplates employing white phosphorus. Commander B anticipates that there is a 55 percent chance that a wedge will ignite a building. All other factors being equal, commander B will give greater consideration to forgoing using white phosphorus than commander A. Of course, this does not detract from the fact that the law requires commanders to adopt alternative means of warfare, as long as it is “practicable” and “practically possible” to employ an alternative means of warfare that would further reduce harm to civilians.293 Therefore, both commander A and commander B have to take steps to reduce civilian harm. Importantly, states will give particular consideration to events that may result in high or very high civilian harm, even if there is only a slight chance that such an event will transpire. For example, say there is a 5 percent chance of a phosphorus wedge reaching a nearby village that has houses made of highly flammable material, such as straw. Imagine that it is known that if a phosphorus wedge sets one building on fire, the fire would spread and damage six hundred buildings and endanger five thousand civilians. In these types of situations the risk posed to civilians by the employment of white phosphorus would be the harm to thirty buildings and two hundred and fifty civilians. The commander will, in such scenarios, presumably consider assuming more risk than if the buildings had been made of less flammable material. The analysis of the U.N. HRC Mission294 supports this position, having said that only a “reckless” commander would employ white phosphorus in the vicinity of fuel tankers located on a civilian shelter.295

 293

France, Reservations and Declarations Made Upon Ratification of AP I 1977, 11 April 2001, par. 3; See also Art. 3(4) Protocol II to CCW 1980, Art. 1(5) Protocol III to CCW 1980. 294 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 140-141 par. 594-595. 295 Ibid.

336

Chapter Seven

3.4. The Relationship between the Elements of Military Advantage, Likelihood of Civilian Harm and Magnitude of Harm to Civilians The state practice of Russia296 and the Goldstone Report297 suggest that when the military advantage entailed in abstaining from using a particular weapon is less than the level of magnitude of harm to civilians, and when the likelihood of killing civilians is either “high” or “very high,” the principle of the least feasible damage requires that the state employ alternative weapons in order to reduce civilian harm. For instance, Russia sacrificed at least “medium” military advantage by not using aircraft and artillery near populated areas. Employing aircraft would have produced “medium” harm to civilians, while artillery would have produced a “high” level of harm. Meanwhile, the Goldstone Report considers the use of mortars unlawful in the circumstances, because the military advantage entailed in calling in aircraft was arguably “medium,” the likelihood of the exploding shell killing civilians was “high” and the magnitude of potential civilian harm was at least “high.” This conclusion is consistent with the reasoning of the U.N. HRC Mission, which observed that it is unlawful for the force to transfer risk from itself to civilians.298 Accordingly, commanders need to employ alternative means and methods of warfare that reduce civilian harm whenever the military advantage they sacrifice in adopting such an alternative option is less than the potential magnitude of harm to civilians, and also whenever the likelihood of harm to civilians materialising is either “high” or “very high.” As well, state practice provides an answer to the question of whether the prohibition against transferring risk onto civilians299 is a minimum requirement for parties to a conflict or whether the troops may need to assume greater risk if circumstances permit them to do so. The practice of the Philippines300 and Georgia301 suggest that these countries sacrifice

 296

Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349. 297 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 140-141 par. 594-595. See also 158 par. 698-700. 298 Ibid., 407 par. 1888. 299 Ibid. 300 Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c).

The Principle of the Least Feasible Damage

337

“high” military advantage in order to spare civilians, even when there is a “high” likelihood that “medium” harm to civilians will result if they do not select this alternative option. It may even be the case that Russia302 is prepared to forgo “high” military advantage in order to avoid inflicting “medium” magnitude of harm to civilians. As a consequence, states appear to restrict the use of particular weapons even at times when the military advantage entailed in substituting a weapon with its alternative exceeds the potential magnitude of harm to civilians if they do not make such a substitution. In turn, this analysis points to the fact that the U.N. HRC Mission articulated a minimum obligation and that states may be prepared to assume greater risk. Another question concerns the impact of the fact that different states place different values on the lives of soldiers and civiliansbecause of culture or tradition303might have on the decisionmaking of commanders. A response would be that when the use of a particular means of warfare is likely to cause a “medium” magnitude of harm to civilians, states that are more “casualty averse” will be prepared to employ alternative weapons, if in doing so they will forgo either “medium” or somewhere between “medium” and “high” military advantage. What is more, the analysis reveals that states sometimes may assume more risk in order to spare civilians than is legally required. For instance, the Philippines304 goes beyond the law in condemning the use of non-precision artillery in the proximity of civilians, even when it is impossible to call in aircraft to support its ground troops. Counterinsurgency contexts provide additional examples, insofar as some states are known, for policy reasons, to assume more risk than is legally required.305 For instance, the United States Army Marine Corps Counterinsurgency Field Manual requires that

 301

Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 333-334. 302 Ibid., 349. 303 Schmitt, “The Principle of Discrimination in 21st Century Warfare,” 157; Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 108-109. 304 Philippines, Department of National Defense, Joint Circular on Adherence to I.H.L. and Human Rights 2-91, par. 2(c). 305 The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-13; United States Army, The Army Capstone Concept Operational Adaptability-Operating Under Conditions of Uncertainty and Complexity in an Era of Persistent Conflict, 23.

338

Chapter Seven

in this context the force, for policy reasons, should assume “substantial risk” to itself.306 What follows is a summary of the propositions which can be derived from the practice of states: 1) The greater the likelihood of civilians being killed and the anticipated magnitude of harm to civilians, the more prepared a commander will be to forgo particular means and methods of warfare that cause greater civilian harm. 2) In assessing whether there is an obligation to assume risk to the troopsfor instance, in using smoke munitions instead of white phosphorusthe commander will compare how many soldiers will die and how many civilians will survive if smoke munitions are used. The smaller the reduction in harm to civilians, and the greater the number of casualties the force sustains, the more likely the commander is to use white phosphorus. The commander will reason that it is better to conserve manpower for missions where the assumption of risk will save more civilian lives. 3) A commander may disregard the possibility of substituting means of warfare for their civilian-friendly alternative if civilians will be affected either infrequently or rarely by this course of action. 4) A commander should use a weapon that causes less harm to civilians than an alternative whenever the degree of military advantage which is being forgone in using the alternative option is of the same or lower magnitude than the elements of likelihood of civilian harm and magnitude of harm to civilians. When the likelihood of harm occurring to civilians is either “small” or “medium,” the commander may discount the magnitude of harm that will occur to civilians if he or she does not use a civilianfriendly option by using the likelihood of harm to civilians occurring as a benchmark. For instance, if a commander projects that there is a “medium” likelihood that the employment of particular means of warfare will cause a “high” magnitude of harm

 306

The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-13.

The Principle of the Least Feasible Damage

339

to civilians, he or she may conclude that the projected level of harm lies somewhere between “medium” and “high.” 5) A commander may need to use a weapon that causes less harm to civilians than an alternative if the element of military advantage exceeds by one unit of measurement the element of magnitude of harm to civilians, provided there is a “high” likelihood of civilian harm materialising. For example, a commander should employ civilian-friendly materiel where there is a “high” likelihood of inflicting “medium” magnitude of harm to civilians should such an alternative not be selected and where a commander forgoes “high” military advantage as a result of employing a civilian-friendly alternative. Certainly, if a commander is at the stage where he or she forfeits “high” military advantage by using an alternative means of warfare and where between a “small” and a “medium” magnitude of harm to civilians will result because of the failure to select the civilian-friendly alternative, a commander is likely to conclude that it is not “feasible” to employ that alternative option. 6) The force should take greater care in selecting means and methods of warfare when operating close to civilian objects that house vulnerable groups.

4. Conclusions The proposed framework on how commanders apply the principle of the least feasible damage focuses on the element of military advantage, rather than on military considerations such as the urgency of responding to the adversary’s actions and a force’s own capabilities.307 These considerations can be subsumed under the heading of military advantage. To make full use of this framework, an individual will need to know the characteristics of materiel and criteria commanders used to choose the different combinations of materiel they employed for military purposes. This information may be found in chapter 2. Similarly, an individual must be familiar with the intricacies of various shells, including their fragmentation radius; the likelihood of their landing off target; and the number of shells required successfully to destroy a military objective. Without this knowledge, one can only put forth a very rough estimate of how an attack will impact a

 307

Israel Ministry of Foreign Affairs, The Operation in Gaza: Factual and Legal Aspects, 128-129 par. 340.

340

Chapter Seven

civilian population. Of course, the more knowledge there is about the characteristics of shells and materiel as well as about how various combinations of materiel and tactics work together, the better an individual will be at reconstructing the decision-making of the commander. The value of the proposed framework lies in its simplicity. Since the proposed framework is a skeleton, it is possible to apply to any military scenario. Clearly, any attempt to define how the tactics of the parties to the conflict interact with each other cannot be all-encompassing. Another practical reason for the simplicity of the proposed framework is that states, in justifying their conduct, avoid discussing topics such as how the environment in which the forces operate and enemy capabilities shaped the military choices of a commander. Instead, they tend to confine their explanation to the urgency of responding with available means of warfare in order to protect the force.308 A possible criticism of the proposed framework is that terms such as low, medium, high and very high require qualitative judgment and, therefore, lack precision. However, in some respects, this is in fact a strong point of the proposed framework. For one thing, attempts to put a precise value on military advantage and civilian harm will objectify civilian suffering. Although the application of the principle of proportionality requires commanders to compare military gains with harm to civilians,309 states have chosen not to affix precise figures to measure the relative value they place on military advantage and civilian life.310 Commanders exercise judgment in weighing these two values.311 The advantage of this approach is that decision-makers apply moral values312 in assigning a value to human life. Another criticism might be that a different range for the number of lives could be assigned for the various magnitudes of civilian harm. The response to this criticism would be that the purpose of the scale is to provide a common yardstick for comparing the practice of states, rather than, for instance, to deduce what constitutes a “medium” or a “high” magnitude of harm to civilians. The scale enables us to use a common tool to compare state practice at the same time that it provides a framework for analysis. Had different numbers of casualties been assigned to various

 308

Ibid.; United Kingdom, Debates, Commons, vol. 402 (2002-2003), col. 300. Art. 51(5)(b) API 1977. 310 Watkin, “Assessing Proportionality: Moral Complexity and Legal Rules,” 3. 311 Ibid., 7. 312 Ibid. 309

The Principle of the Least Feasible Damage

341

points on the scale for the values of the magnitudes of harm to civilians, the outcome would have broadly been the same. Since the scale reflects the different levels of harm the weapons cause when compared to each other, and since state practice was analysed using headings such as “high” magnitude of harm to civilians, the outcome would have been the same, even if a different number of civilian casualties were to be assigned to “high” magnitude of harm to civilians. Overall, the qualitative terms assigned to different points on the military advantage scale were helpful for analysing state practice. For instance, the term “medium” military advantage was a useful starting point for studying state practice, because it reflects the fact that it is unlawful to transfer risk onto the civilians,313 and that the force should assume a degree of risk.314 The definition of the point representing “high” military advantagea situation where the forces assume risk, but continue to have a good chance of successfully completing their missionaccords with state practice. States never risk jeopardising the successful completion of the mission and the survivability of the force.315 Nor does the principle of the least feasible damage require parties to the conflict to assume “substantial” risk to their force.316 Consequently, situations in which forces forgo “high” military advantage in adopting alternative means and methods of warfare capture, to a large extent, how much risk forces are likely to be prepared to assume. That military science was used to analyse how much military advantage the commander in all likelihood sacrificed in substituting weapon A with weapon B in a particular situation gives credibility to the analysis. Accordingly, the framework may be used by practitioners to evaluate whether a commander complied with the principle of the least feasible damage in particular circumstances.

 313

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 407 par. 1888. 314 The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-13. 315 Ibid., par. 7-23; France, Reservations and Declarations Made Upon Ratification of AP I 1977, 11 April 2001, par. 3; United States, Office of the Chief of Naval Operations and Headquarters, The Commander’s Handbook on the Law of Naval Operations, par. 8.3.1; Ecuador, Academia de Guerra Naval, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, par. 8.1.2.1. 316 The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-13.

CHAPTER EIGHT THE DUTY TO ISSUE AN ADVANCE WARNING OF THE ATTACK: PERSPECTIVES FROM PSYCHOLOGY

Paradoxically, while it is uncontroversial that states view themselves as being obligated to issue an effective advance warning of attacks that may impact the civilian population, unless circumstances do not permit,1 there is almost no information on how commanders actually make these decisions. It is valuable to turn to other disciplines, in order to gain an insight into how commanders assess whether battlefield circumstances make it impossible to warn civilians about the forthcoming attack. Psychology is a good field of reference, because it describes how mental processes in the brain shape decision-making.2 Of particular interest are studies on how individuals reach decisions under conditions of incomplete information, limited time and uncertainty. Different theories from the field of psychology provide varying vantage points from which to examine the decision-making of the commander. Some of these theories are concerned with how individuals estimate the likelihood of adverse events happening. These theories explain how a commander goes about assessing what chances there are of the troops winning, if civilians are forewarned about the military operation. There is another theory that describes how individuals perceive gains and losses as well as gradations in gains and losses. This theory is useful for demonstrating how a commander applies Goldstone’s reformulation of the warnings requirement, which restates the rule in terms of a proportionality

 1

Art. 57(2)(c) API 1977. American Psychological Association, “Science of Psychology,” American Psychological Association, http://www.apa.org/action/science/index.aspx (accessed April 4, 2015).

2

The Duty to Issue an Advance Warning of the Attack

343

equation.3 Other theories about how individuals deliberate are broader in their focus. They explain how the emotions and personality traits of a commander influence how he or she evaluates the impact of forgoing the element of surprise on the success of the military operation. On yet a broader scale, multidisciplinary teams studied how, through interacting with other individuals, social actors and the media, individuals change their perceptions and actions. Such studies help lawyers to understand what processes lead states to incorporate legal and policy considerations into military manuals and rules of engagement. In turn, knowledge of the mechanisms that allow policy considerations to have a bearing on how commanders interpret and apply the law results in a better understanding of the commanders’ decision-making. Additionally, such knowledge makes it easier to distinguish the times when a commander acted out of a legal obligation from those when a commander took greater care, in order to fulfil policy considerations.

1. The Mechanism behind Making an Assessment when Issuing a Warning of an Attack may “Seriously Compromise” the Chances of Winning Studies in psychology make it possible to model how commanders assess whether circumstances do not permit them to warn the civilians of the military operation. Gary Klein studied how experienced military personnel make decisions under time pressure, with limited information and in circumstances when the situation is quickly evolving.4 He found that they, without consciously realising it, used battlefield scenarios they had experienced in the past to look for patterns that matched the present scenario.5 If there was conflicting information that pointed to prior experience not being a reliable tool for forming an opinion about the situation at hand,6 commanders proceeded to gather additional information.7 If not, commanders went on to hypothesise how the present situation would unfold based on their prior experience.8 Klein’s

 3

U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 131 par. 529. 4 Gary A. Klein, Sources of Power: How People Make Decisions (Cambridge: Massachusetts Institute of Technology Press, 1998), 99. 5 Ibid., 33. 6 Ibid., 92. 7 Ibid., 91-92. 8 Ibid., 89.

344

Chapter Eight

conclusions are corroborated by other studies.9 Klein calls his theory “recognition primed decision-making.”10 Using Klein’s approach, it emerges that in assessing whether circumstances do not permit a warning to be given a commander relies on knowledge about fighting in a particular environment. Of course, civilians are most likely to be affected by fighting that takes place in a populated area. For instance, assume that a commander’s unit is located nine miles from a city, and that the adversary will have time to take up positions in basements and tunnels in a city, if the commander warns civilians about an upcoming attack. The commander knows that fighting in populated areas is always casualty-intensive for both sides.11 However, although the defender benefits from taking up positions in key buildings, battlefield experience shows that the defender’s troops tend to suffer three to four times more casualties than those of the attacker.12 This is due to the fact that an attacker has to use a lot of firepower, in order to infiltrate the city and to take the city building by building.13 The commander also knows that fighting in populated areas is physically and psychologically taxing for the troops.14 Evans recounts that the physical fatigue is compounded by soldiers being exposed to constant noise, being exposed to danger from ricocheting bullets, and being affected by the back-blast, which emanates from weapons fired in confined spaces.15 Psychological stress comes from soldiers constantly having to anticipate hidden ambushes, sniper fire and booby traps.16 Klein’s theory suggests that a commander quickly goes through previously encountered military operations. The commander focuses on features that in previous battles contributed to the force either winning or losing. Such key features include whether the commander had more troops than the enemy, how well trained the troops were, the level of the commander’s skill and charisma, the morale of the unit, how disciplined the troops were, the available materiel, and the relative technological superiority of the

 9

Ibid., 100. Ibid., 89. 11 Evans, City Without Joy: Urban Military Operations into the 21st Century, 3. 12 Knight, “Running the Gauntlet-Force Protection for Tactical Penetration in MOUT,” 3. 13 Ibid. 14 Evans, City Without Joy: Urban Military Operations into the 21st Century, 10. 15 Ibid. 16 Ibid. 10

The Duty to Issue an Advance Warning of the Attack

345

commander’s forces in relation to those of the adversary.17 Furthermore, weather conditions and how much information a commander has about the location and composition of the adversary’s forces affect the chances of winning.18 Under the terms of Klein’s approach, a commander compares the present situation to how varying combinations of these features interacted in previous battles in shaping the outcome of those previous battles. If there is a match between a previous battlefield scenario or particular aspects of a previous battlefield scenario and the scenario at hand, a commander uses this previous scenario in order to extrapolate how the troops will interact with those of the enemy. In turn, in imagining how the characteristics of the troops will interplay with those of the enemy and with environmental conditions, a commander is able to hypothesise what possibility exists that the forces will win, if the attack does not take the enemy by surprise. If a commander is unable to find close analogues to the present situation, the commander may decide to gather more information in order to be able to determine whether the troops can prevail over the enemy, even if an advance warning of the attack had been issued to civilians. It emerges from Klein’s theory that a commander does not analyse the patterns of wins and losses in, for example, the previous seven or fifteen military operations, in order to predict what chance of winning remains if an advance warning of the attack is issued. Instead, a commander takes a holistic approach and looks for military operations with similar features to the present situation. This process of deliberation differs from the way in which scientists and mathematicians go about estimating the likelihood of a particular event taking place. The mathematicians and scientists study the pattern of events that occurred in the past in order to calculate the likelihood of an event occurring, the potential magnitude of gain or loss which may occur, and the scale of gains or harm which will accrue on average.19 Therefore, the decision-making of commanders does not reflect the mathematical approach to estimating the likelihood of a particular event occurring.

 17

Vego, Joint Operational Warfare: Theory and Practice, III-33. Ibid., III-33, III-34. 19 Frank Knight, Risk, Uncertainty and Profit (New York: Houghton Mifflin Company, 1921), 215-216; Peter Bernstein, Against the Gods: the Remarkable Story of Risk (Toronto: John Wiley & Sons, 1996), 121-122. 18

346

Chapter Eight

Research in psychology suggests that a commander does not confine the analysis to comparing the present situation to the previous battles. In establishing whether there exists a possibility to issue an advance warning of an attack, a commander will compare different military options, namely the combinations of materiel and weapons available for carrying out the military operation. A commander will focus on the various available combinations of tactics and weapons, because the likelihood of the force winning is largely determined by what materiel it has and what tactics it employs.20 The research conducted in the field of psychology sheds some light on what mental processes individuals use to evaluate and choose between multiple options.21 When choosing between two alternatives when an outcome is uncertain, individuals first search for a criterion that best differentiates between the two alternatives.22 They achieve this by searching sequentially through selection criteria, and stop this process when they find a criterion that best differentiates between the available options.23 Researchers call this mental process the “take the best” heuristic.24 In the case of a commander, who decides whether or not to issue an advance warning of the attack, this criterion may be the likely duration of the military operation, the number of losses among the troops, or the desired losses among the enemy’s force. Subsequently, decision-makers set a threshold for the chosen selection criterion that should be reached in order for an option to be satisfactory.25 This threshold is called the “aspiration level.”26 A commander could set the “aspiration level” to the maximum number of casualties or loss of materiel which the unit can sustain without losing the battle. Or it could be the maximum length of time within which the troops could fight well without getting too tired. Alternatively, a commander could set the “aspiration level” to the number

 20

Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 191. Gary Klein, “Naturalistic Decision-making,” Human Factors 50, no. 3 (2008): 457-458. 22 Gerd Gigerenzer and Daniel G. Goldstein, “Reasoning the Fast and Frugal Way: Models of Bounded Rationality,” Psychological Review 103, no. 4 (1996): 652653. 23 Ibid., 653. 24 Ibid. 25 David J. Bryant, Making Naturalistic Decision-making “Fast and Frugal” (Toronto: Defence Research Development Canada, 2002); Herbert A. Simon, “A Behavioral Model of Rational Choice,” The Quarterly Journal of Economics 69, no. 1 (1955): 104-105. 26 Simon, “A Behavioral Model of Rational Choice,” 104. 21

The Duty to Issue an Advance Warning of the Attack

347

of the adversary’s soldiers the troops need to kill and to the amount of enemy materiel the forces need to destroy in order to win. Next, individuals sequentially compare different options to the chosen “aspiration level.”27 What threshold an individual sets for the “aspiration level” is determined by past experience.28 Individuals raise their desired threshold if it is easy to find alternative options that satisfy it, and lower this threshold if not many satisfactory alternatives come to mind.29 As a result, the “aspiration level” may shift as individuals sequentially compare different options to this threshold.30 Individuals continue searching for options and comparing them to the “aspiration level” as long as there is a possibility that the options that they have not yet considered will satisfy more goals than the options that they have already considered.31 As the time runs out, it may no longer be possible to treat the value of options that decision-makers have not yet considered as having a bearing on the “aspiration level.”32 In cases where decision-makers do not know all available alternative options, individuals stop the search as soon as they encounter the first option, which is as good as or exceeds their “aspiration level.”33 On the application of this description of the mental processes involved in decision-making, a commander compares different combinations of weapons and tactics against the “aspiration level” for battle duration, attrition level among the troops or casualty level among the enemy’s forces. Interestingly, psychologists found that decision-makers may be guided by numerous criteria.34 Specifically, individuals may have several concurrent goals and may have an “aspiration level” for each of the

 27

Ibid., 106-107. Ibid., 113. 29 Ibid., 111. 30 Ibid. 31 Ibid., 107. 32 Reinhard Selten, “What is Bounded Rationality?,” in Bounded Rationality: the Adaptive Toolbox, ed. Reinhard Selten and Gerd Gigerenzer (London: The Massachusetts Institute of Technology Press, 2001), 20. 33 Simon, “A Behavioral Model of Rational Choice,” 110-111; Gerd Gigerenzer, “The Adaptive Toolbox,” in Bounded Rationality: The Adaptive Toolbox, ed. Reinhard Selten and Gerd Gigerenzer (London: The Massachusetts Institute of Technology Press, 2001), 44. 34 Simon, “A Behavioral Model of Rational Choice,” 110; Selten, “What is Bounded Rationality?,” 20. 28

348

Chapter Eight

goals.35 Accordingly, it could be that a commander compares different packages of weapons and materiel to “aspiration levels” for battle duration, attrition level among the troops and casualty level among the enemy’s troops. These thresholds for the “aspiration level” reflect the duration of fighting the troops are able to endure and the scale of the casualties that the unit can incur without losing to the enemy. If a commander can think of a combination of weapons and materiel that makes it possible to meet the “aspiration levels” for criteria such as the duration of the battle, the commander will conclude that an advance warning of the attack may be issued. Otherwise, the commander may decide to launch an attack without warning the civilians. It was Herbert Simon who put forward the idea that individuals reach decisions by comparing options to an “aspiration level” for a decisionmaking criterion.36 He calls his description of the mental process the “bounded rationality theory.”37 His theory has been confirmed by empirical evidence.38 The mental process, which Simon calls “bounded rationality,” is a product of evolution.39 By employing this mental process, individuals are able to make fast and efficient decisions that match the environmental conditions in which they live.40 This procedure for reaching decisions differs from how the economists conceptualise rational decisionmaking. Rationality, as the economists envisage it, consists of individuals predicting what outcomes would occur if they were to choose various courses of action.41 Individuals then rank in a hierarchical order the alternative courses of action available to them using their preferences as a

 35

Gigerenzer, “The Adaptive Toolbox,” 44. Herbert A. Simon, “Theories of Bounded Rationality,” in Decision and Organization, ed. Roy Radner and C.B. McGuire (Amsterdam: North-Holland Publishing Company, 1972), 168. 37 Herbert A. Simon, “Bounded Rationality in Social Science: Today and Tomorrow,” Mind & Society 1 (2000): 25. 38 Bryan Jones, “Bounded Rationality,” Annual Review of Political Science 2 (1999): 311-312. 39 James March, “Bounded Rationality, Ambiguity, and the Engineering of Choice,” in Rational Choice, ed. Jon Elster (Oxford: Basil Blackwell Ltd., 1986), 151. 40 Peter Todd, “Fast and Frugal Heuristics for Environmentally Bounded Minds,” in Bounded Rationality: the Adaptive Toolbox, ed. Reinhard Selten and Gerd Gigerenzer (London: The Massachusetts Institute of Technology Press, 2001), 52. 41 Jon Elster, “Introduction,” in Rational Choice, ed. Jon Elster (Oxford: Basil Blackwell Ltd., 1986), 4. 36

The Duty to Issue an Advance Warning of the Attack

349

benchmark.42 According to the economists, the decision-makers should choose that course of action that reflects their highest ranked preference.43 In formulating their preferences, individuals should seek to maximise benefits and to minimise costs.44 Following this approach, a commander should think of all available combinations of weapons and materiel and rank these combinations against a benchmark of the degree of military advantage these options offer. The commander should select a combination of those weapons and tactics that offers the highest degree of military advantage. The implication of the “bounded rationality theory” is that individuals reach decisions that do not necessarily match their highest ranked preference.45 Instead, when making decisions under conditions of uncertainty, individuals reach decisions that are “reasonable” and that constitute a “satisfactory” choice.46 Individuals arrive at “reasonable” decisions due to the limitations in the cognitive architecture of the brain and due to the fact that individuals have limited time in which to make a decision.47 Moreover, because individuals have a limited memory capacity, they have computational and information-processing limitations.48 As a result of such constraints, individuals simplify the problem and are incapable of considering all possible alternative options.49 Interestingly, studies show that the mental processes that are embedded in the human brain enable individuals to make more accurate predictions about the future than if they were to arrange all possible combinations of options in order of their preferences.50 Therefore, although a commander does not search for the combination of weapons and materiel that offers the highest

 42

Ibid. Ibid. 44 Mary Zey, Rational Choice Theory and Organizational Theory: a Critique (London: SAGE Publications Inc., 1998), 2. 45 Michael Smithson, “Psychology’s Ambivalent View of Uncertainty,” in Uncertainty and Risk: Multidisciplinary Perspectives, ed. Gabriele Bammer and Michael Smithson (London: Earthscan Publications Ltd., 2008), 209. 46 Peter Neumann and Peter Politser, “Risk and Optimality,” in Risk-taking Behavior, ed. Frank Yates (Chichester: John Wiley & Sons, 1992), 42. 47 Smithson, “Psychology’s Ambivalent View of Uncertainty,” 209. 48 March, “Bounded Rationality, Ambiguity, and the Engineering of Choice,” 145146. 49 Ibid., 148. 50 Laura Martignon, “Comparing Fast and Frugal Heuristics and Optimal Models,” in Bounded Rationality: the Adaptive Toolbox, ed. Reinhard Selten and Gerd Gigerenzer (London: The Massachusetts Institute of Technology Press, 2001), 154. 43

350

Chapter Eight

degree of military advantage, a commander is nevertheless able to arrive at a “reasonable” solution which offers a good prospect for achieving the military goals whilst complying with the law.

2. The Role of the Commander’s Personality There are interesting studies in the field of psychology that point to the fact that the emotions and the personality traits of individuals bear on how they make decisions. Catanzaro, Petty and McKenzie carried out a study looking at whether personality traits bear on a commander’s decisionmaking.51 For the purpose of their enquiry, they took a military scenario of a commander coordinating the delivery of humanitarian aid.52 The task of the commander was to deliver aid to a refugee camp as quickly as possible in order to avoid starvation among the refugees.53 The commander could select different routes along which the trucks had to travel.54 Each route had landmines, but some routes had more landmines than others.55 Although the commander knew that all routes had landmines, information about the relative concentration of landmines in the relevant areas was not disclosed.56 In this experiment, there was no time for the army engineers to de-mine the area.57 This meant that the commander had to explore the road network by dispatching trucks on various routes and by asking the drivers to communicate the information about the relative suitability of the routes.58 The researchers designed the experiment in such a way that the landmine disabled the truck without killing the driver.59 The researchers benchmarked the best planning of the military operation in terms of the greatest number of trucks that made a safe journey to the refugee camp in the shortest time period.60 Accordingly, commanders had to minimise the journey time and the number of trucks that became disabled.61

 51

Jean Catanzaro, Mikel Petty, and Frederic McKenzie, “An Experimental Application of a Trait-based Personality Model to the Simulation of Military Decision-making,” Information and Security 12, no. 1 (2003): 75. 52 Ibid., 76. 53 Ibid. 54 Ibid. 55 Ibid. 56 Ibid. 57 Ibid. 58 Ibid. 59 Ibid., 78. 60 Ibid., 84. 61 Ibid., 86.

The Duty to Issue an Advance Warning of the Attack

351

Some of the subjects consisted of human commanders.62 Additionally, the researchers created a computer program, which simulated the decision-making of commanders who possessed different combinations of personality traits.63 By carrying out an extensive investigation of how infantry units conducted themselves on the battlefield in the twentieth century, the researchers were able to identify eight personality traits that influence the way in which commanders reach decisions.64 These traits are: 1) stability: the emotional ability of the person to remain calm under extreme conditions 2) anxiety: the degree to which an individual is prone to be fearful 3) anger: the tendency of an individual to become aggressive in response to situations that trigger anger 4) humour: the ability of an individual to recover from sudden losses, shocks and other events that have a negative impact on morale 5) acquiescence: the willingness to follow orders, commands and leaders 6) independence: the ability to make independent decisions without leadership from others 7) charisma: the possession of characteristics that others find attractive 8) knowledge: the level of expertise in military science65 The goal of using a program which replicated the decision-making of human commanders was to study how particular personality traits influence the decision-making of human commanders.66 The study did not focus on what set of personality traits lead to best decision-making.67 The use of human commanders in conjunction with a computer-based

 62

Ibid., 85. Ibid., 83. 64 Ibid., 77. 65 Ibid. 66 Ibid., 86. 67 Ibid. 63

352

Chapter Eight

simulation of commanders’ decision-making made it possible to ensure that the automated commanders, which were programmed with various personality traits, approximated the decisions made by human commanders who possessed the relevant personality traits.68 The researchers found that the personality traits commanders possessed had an impact on their decision-making.69 They concluded that different commanders behave differently when faced with similar circumstances.70 Crucially, when commanders reach decisions under conditions of uncertainty, their personality traits influence their decision-making to such an extent that different commanders make decisions that “rarely conform strictly to military doctrine.”71 For instance, the researchers discovered that commanders who had low anxiety, notwithstanding the fact that they were under stress, and who had extensive technical knowledge, managed to deliver safely the greatest number of trucks to the refugees in the shortest time period.72 On the other hand, those commanders who experienced high anxiety and were not knowledgeable did poorly.73 The studies conducted by psychologists into how individuals reach decisions under uncertainty provide some explanation for the phenomenon that the personality traits of commanders influence their decision-making. Finucane, Alhakami, Slovic and Johnson found that emotions influence how individuals perceive and process information, especially when individuals reach decisions under time pressure.74 The emotional response to a situation or towards an object occurs automatically and guides the processing of information and the exercise of judgment.75 Slovic, Finucane, Peters and MacGregor replicated this finding in another set of experiments.76

 68

Ibid., 85. Ibid., 75. 70 Ibid. 71 Ibid., 76. 72 Ibid., 89. 73 Ibid. 74 Paul Slovic et al., “The Affect Heuristic in Judgments of Risks and Benefits,” in The Perception of Risk, ed. Paul Slovic (London: Earthscan Publications Ltd., 2000), 420. 75 Ibid., 412. 76 Paul Slovic, Melissa Finucane, Ellen Peters, and Donald G. MacGregor, “Risk as Analysis and Risk as Feelings: Some Thoughts about Affect, Reason, Risk, and Rationality” Risk Analysis 24, no. 2 (2004): 314. 69

The Duty to Issue an Advance Warning of the Attack

353

To illustrate, they asked toxicologists to rank 30 chemical substances.77 The concentration of the substances was so low that their use should not have been a cause of concern to a regulatory agency.78 In particular, because the substances had low concentration, they would have inflicted a small magnitude of harm if they were to come into contact with their surroundings.79 This meant that the toxicologists should have given the same ranking to each substance.80 In fact, the toxicologists ranked the substances differently.81 When they perceived the substance in a negative light, they ranked it as posing a high risk.82 On the other hand, when the toxicologists had positive associations with the substance, they ranked it as posing a low risk.83 This experiment proves that experts are guided by emotions when they reach decisions in a professional context.84 More direct evidence that emotions influence the decision-making of commanders is found in the testimony a Lieutenant of the Israeli Defence Forces gave to the non-governmental organisation Breaking the Silence. According to him, commanders during Operation Protective Edge 2014 were influenced by their moods when they interpreted guidance on the permissible level of civilian casualties in order to assess what scale of civilian casualties was “moderate.”85 Although personality traits are not emotions as such, they influence what emotions a person experiences, as well as how intensely the individual experiences an emotion in a particular situation. For instance, individuals who have a personality trait of anxiety are more prone to experiencing fear. The research on the impact of emotions on the decision-making of individuals provides support for the validity of the research carried out by Catanzaro, Petty and McKenzie. The findings of Catanzaro, Petty and McKenzie intimate that personality traits, such as stability, anxiety, humour, charisma, anger and knowledge, shape commanders’ decisions whether the situation does not permit them to inform civilians about the forthcoming military operation. A

 77

Ibid., 315. Ibid., 316. 79 Ibid. 80 Ibid. 81 Ibid. 82 Ibid. 83 Ibid. 84 Ibid., 315-316. 85 Breaking the Silence, This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014), 227. 78

354

Chapter Eight

commander who easily panics and finds it difficult to remain calm in a stressful environment is more likely to overestimate the danger that the enemy poses to the survival of the forces. As a result, the commander may make an inaccurate assessment regarding what degree of military advantage is entailed in warning the civilians of the attack. This erroneous appraisal may lead the commander to conclude mistakenly that circumstances do not permit the warning of civilians. Similarly, commanders who are inherently fearful will make conservative decisions, preferring to retain surprise. In turn, this may lead commanders to issue advance warnings to civilians on fewer occasions. The more knowledge commanders have about weapons, tactics and military science, the more able they are to devise tactics that compensate for the fact that civilians received a warning about the looming military operation. Clever tactics also allow a commander to compensate for an inferior number of troops and a lack of technology.86 Equally, a knowledgeable commander is able to estimate more accurately how many soldiers and how much materiel may be lost, and whether the adversary may be overcome, if an advance warning of the attack is issued to civilians. When a commander is knowledgeable about military science, possesses good leadership skills and has charisma, the troops fight better than those which are led by a commander who lacks these qualities.87 Such a commander is able to warn the civilians about the forthcoming military operation on more occasions. More broadly, commanders who are knowledgeable about military science are less affected by disruptions, such as bad weather and the severance of communication with senior command, and are as a consequence in a better position to issue advance warnings to civilians, even when they face adverse circumstances. A commander who possesses the personality trait of humour, namely an ability to recover from sudden negative events and shocks, interprets the requirement to issue an advance warning of the attack differently from commanders who lack this quality. The resilience to adverse events enables individuals to distance themselves from setbacks, such as the fact that the troops lost to the enemy during a previous military engagement. Accordingly, the commander is able to rebound and to have confidence in the troops and leadership abilities, even though the troops lost to the enemy on a previous occasion. As a result, such a commander is likely to

 86 87

Biddle, Military Power: Explaining Victory and Defeat in Modern Battle, 190. Vego, Joint Operational Warfare: Theory and Practice, III-33.

The Duty to Issue an Advance Warning of the Attack

355

conclude that circumstances do not permit him or her to issue an advance warning of the attack to civilians on fewer occasions than commanders who are less able to recover from past setbacks. A commander’s tendency to become aggressive in response to situations that trigger anger influences how a commander interprets the requirement to issue an advance warning of the attack in circumstances when the enemy engages in conduct that is regarded as giving the adversary an unfair advantage. For instance, the adversary may choose not to wear a distinctive sign, in order to blend in with the civilian population.88 Adversaries who use this tactic in populated areas are protected when being attacked and when launching a counter-attack.89 Whenever the opponent uses such tactics, a commander may perceive that due to complying fully with international humanitarian law the troops find it more difficult to achieve military goals. As a result, the actions of the adversary may lead a commander to interpret the targeting rules in a more permissive fashion.90 Commanders who are less prone to responding aggressively to conduct which angers they are likely to be less inclined to interpret the rules of targeting liberally. This is because the greater the hostility experienced by commanders in response to the enemy’s actions, the more likely they are to take measures in response to enemy’s actions. Of course, there is a link between the personality traits of humour and anger. When individuals are able to rebound easily from negative events, they are likely to be able to contain the feeling of anger. Therefore, individuals who possess the personality trait of humour exhibit the trait of anger to a lesser extent. This suggests that commanders who have the personality trait of humour and who are able to contain their feeling of anger tend to interpret the qualifying term “unless circumstances do not permit” more narrowly. However, there is indirect evidence that even commanders who possess the humour personality trait are to some extent influenced by the feeling that it is unfair that their troops are exposed to greater danger due to complying with the law, when interpreting whether circumstances do not

 88

Richard Norton-Taylor, “Asymmetric Warfare,” Guardian, October 3, 2001; Rabbi Irwin Kula and Craig Hatkoff, “A Fearful Scimitar: I.S.I.S. and Asymmetric Warfare,” Forbes, September 2, 2014. 89 John-Hopkins, “Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts,” 471. 90 Ibid.

356

Chapter Eight

permit them to warn civilians about the impending military operation. The psychologists Slovic, Finucane, Peters and MacGregor found that when individuals view an activity in a negative light, they regard engaging in that activity as exposing themselves to high risk and as conferring low benefit.91 Since commanders view the adversary’s tactic of not wearing a distinctive sign in order to blend in with the local population as unfair, they perceive this conduct in a negative light. This negative association with the adversary’s conduct is likely to lead a commander to perceive that warning civilians necessitates the exposure of the troops to higher risk. Although it is very challenging to fight in circumstances when it is difficult to distinguish between civilians and civilians who are taking a direct part in hostilities, the emotions experienced by a commander will magnify the risk that this tactic is perceived to pose to the troops. Another relevant consideration is that when individuals act under time pressure, their emotions have greater influence on their decision-making.92 Since emotions are automatic and guide the reasoning process,93 the personality trait of humour mitigates the intensity of the emotion, but does not eliminate the impact of emotions on decision-making. Thus, a commander is inevitably influenced by emotions when determining whether circumstances make it impossible to issue an advance warning. Although the personality traits of a commander, such as humour, reduce the impact of emotions such as anger, they do not eliminate the influence of such emotions on decision-making. These findings suggest that the armed forces should select commanders who exhibit the personality traits of stability, low anxiety, humour, charisma and knowledge. Meanwhile, they should avoid appointing commanders who exhibit personality traits such as anger, who handle stress poorly and who find it difficult to rebound from adverse events. By selecting commanders whose personality traits enable them to issue advance warnings of the attack to civilians on more occasions, states will contribute to the protection of civilians. Additionally, the armed forces should design training exercises in such a way as to make commanders aware of how their personality traits affect their decision-making. This measure will enable commanders to work on their weaknesses, in order to improve the quality of their decisionmaking. For instance, commanders who have a tendency to respond with

 91

Slovic, Finucane, Peters, and MacGregor, “Risk as Analysis and Risk as Feelings: Some Thoughts about Affect, Reason, Risk, and Rationality,” 315-316. 92 Ibid., 315. 93 Slovic et al., “The Affect Heuristic in Judgments of Risks and Benefits,” 412.

The Duty to Issue an Advance Warning of the Attack

357

aggression to behaviour which angers them can undergo training so as to be able to modulate the intensity of their reaction. Military trainers have found that it is possible to train out undesirable characteristics in commanders’ performances.94 Of course, when a commander is placed in a “stressful and unexpected situation” which was not covered in military training, a commander will be guided by psychological characteristics and personality traits rather than by the decision-making templates that were learned during training.95 Accordingly, the training should be designed in such a way as to minimise the chances of a commander encountering a stressful situation which was not covered during training.

3. The Influence of Mental Templates on the Decision-Making of a Commander Psychologists have conducted experiments on how individuals process information about potential losses and gains when making decisions under conditions of uncertainty.96 These experiments provide intriguing insights about how the cognitive architecture of the brain influences how a commander determines when circumstances do not permit him or her to warn civilians about the upcoming attack. In particular, in evaluating whether the issuance of an advance warning may “seriously compromise”97 the chances of the unit winning, a commander estimates the likelihood of the troops surviving and of the troops achieving their mission objective. It is possible to view a commander as deliberating whether or not to play a lottery. When individuals buy a lottery ticket, they incur expenditure in exchange for a chance to win a greater sum. When the commander decides whether or not to assume a degree of risk to the force and to the mission in issuing an advance warning in order to confer a benefit on civilians, the commander balances the loss of military advantage against the gain in a reduction of civilian deaths. In doing so, the commander, just like the lottery player, decides whether it is justified

 94

Catanzaro, Petty, and McKenzie, “An Experimental Application of a Trait-based Personality Model to the Simulation of Military Decision-making,” 76. 95 Ibid. 96 Iain Wilkinson, “Psychology and Risk,” in Beyond the Risk Society: Critical Reflections on Risk and Human Security, ed. Gabe Mythen and Sandra Walklate (London: Open University Press, 2006), 28. 97 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551.

358

Chapter Eight

to run the risk of incurring a loss. The following research in the field of psychology is suitable for analysing military decision-making because it looks at how individuals make decisions under conditions of uncertainty and how they assess the likelihood of particular events occurring. Kahneman and Tversky conducted research on what mental processes individuals employ in order to estimate the likelihood of an event occurring.98 They discovered that individuals rely on mental templates, which they call heuristics, when estimating the likelihood of an event occurring, in order to simplify the processing of information.99 Individuals do not use the mathematical laws of probability to estimate the likelihood of events.100 Instead, they use particular rules, which are embedded in the brain, for simplifying the estimation process.101 The reliance on such mental templates leads individuals to make biased assessments of the likelihood of a particular event taking place.102 Interestingly, when experts make decisions intuitively, as opposed to basing decisions on statistical data, they exhibit the same biases.103 This is unsurprising, because the cognitive patterns in the brain for making predictions about the future emerged as an evolutionary response, in order to enable human beings to respond to danger.104 Some of these mental templates will now be examined, in order to shed light on how cognition impacts the way in which commanders interpret, when circumstances do not permit them to warn civilians of the attack.

3.1. The Mental Template of “Availability” Kahneman and Tversky found that when they asked subjects to predict the occurrence of an event, or the frequency with which a class of events

 98

Amos Tversky and Daniel Kahneman, “Judgment under Uncertainty: Heuristics and Biases,” in Judgment under Uncertainty: Heuristics and Biases, ed. Amos Tversky, Daniel Kahneman, and Paul Slovic (Cambridge: Cambridge University Press, 1985), 3. 99 Amos Tversky and Daniel Kahneman, “On the Psychology of Prediction,” in Judgment under Uncertainty: Heuristics and Biases, ed. Daniel Kahneman, Amos Tversky, and Paul Slovic (Cambridge: Cambridge University Press, 1985), 48. 100 Ibid. 101 Tversky and Kahneman, “Judgment under Uncertainty: Heuristics and Biases,” 3. 102 Ibid., 18. 103 Ibid. 104 Ortwin Renn, Risk Governance: Coping with Uncertainty in a Complex World (London: Earthscan, 2008), 105.

The Duty to Issue an Advance Warning of the Attack

359

would occur,105 the individuals’ responses were influenced by the ease with which they could imagine the occurrence of a given event.106 This finding has several implications. First, individuals judge the frequency with which an event occurs by the ease with which they can imagine that event.107 The easier it is to imagine an adverse event happening, the more likely it is that an individual will judge that event as being likely to materialise, even though the likelihood of this adverse event happening may in fact be small.108 Second, the easier it is for an individual to remember an event and the easier the event comes to mind, due, for instance, to the person having recently experienced a similar event, the more likely it is that an individual will perceive the event as being likely to take place and assign a greater frequency to its occurrence.109 For instance, farmers in Yucatan told their interviewers that the droughts in the region were very severe.110 Their answer was driven by the fact that the most recent drought was very severe.111 The researchers concluded that the response of the farmers was coloured by their recent experience, because on average the droughts in the region were moderate.112 The assessment of the farmers regarding the severity of the droughts in the region stemmed from the fact that the severe drought, which took place more recently, was easier to recall.113 Third, when individuals have emotions associated with an adverse event,114 or when an adverse occurrence has personal significance,115 they tend to perceive that event as being more likely to take place and as occurring with greater frequency.116 Kahneman and Tversky call this

 105

Kahneman and Tversky, “Judgment under Uncertainty: Heuristics and Biases,” 3. Ibid., 11. 107 Ibid., 12. 108 Ibid., 13. 109 Ibid., 14. 110 Ibid. 111 Ibid. 112 Ibid. 113 Ibid. 114 Paul Slovic, Howard Kunreuther, and Gilbert White, “Decision Processes, Rationality and Adjustment to Natural Hazards,” in The Perception of Risk, ed. Paul Slovic (London: Earthscan Publications Ltd., 2000), 14. 115 Glynis Breakwell, The Psychology of Risk (Cambridge: Cambridge University Press, 2007), 80. 116 Slovic, Kunreuther, and White, “Decision Processes, Rationality and Adjustment to Natural Hazards,” 13. 106

360

Chapter Eight

mental template the “availability heuristic.”117 One of the implications seen when individuals allow this mental template to guide their perception is that they may fail to foresee events that had never occurred in the past118 and may underestimate the likelihood of events that have a low likelihood of occurring.119 The fact that the mental template of “availability” influences how a commander interprets the situation on the battlefield may be gleaned from the Ameriyya Air Raid Shelter incident. In that incident, the commander did not consider the low-likelihood possibility that the civilians used the second floor of a command and control bunker as an air raid shelter.120 The “availability heuristic” explains why the American commanders failed to envisage this possibility. In particular, experiments show that low frequency events, in contrast to high frequency events, do not come to the mind of the decision-maker easily.121 Since the possibility of civilians sheltering in a command and control shelter does not easily come to the mind of a commander and is hard to imagine, the reliance on the mental template of “availability” resulted in the American commander substantially underestimating the likelihood that the bunker was a dual-use object. Additionally, the mental template of “availability” influenced the decisionmaking of American commanders following the Ameriyya tragedy. The recent experience of grossly underestimating the likelihood of civilians being present inside a military objective led the commanders to be on alert and to overestimate the likelihood of harming civilians. Specifically, in the aftermath of the media coverage of this tragic event, the United States Army changed its procedure, so that the highest ranking officer in the

 117

Kahneman and Tversky, “Judgment under Uncertainty: Heuristics and Biases,”

11. 118

Slovic, Kunreuther, and White, “Decision Processes, Rationality and Adjustment to Natural Hazards,” 14. 119 Paul Slovic, Sarah Lichtenstein, and Baruch Fischhoff, “Cognitive Processes and Societal Risk Taking,” in The Perception of Risk, ed. Paul Slovic (London: Earthscan Publications Ltd., 2000), 42. 120 Michael R. Gordon, “U.S. Calls Target a Command Center,” New York Times, February 10, 1991; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, 129. 121 Slovic, Lichtenstein, and Fischhoff, “Cognitive Processes and Societal Risk Taking,” 37.

The Duty to Issue an Advance Warning of the Attack

361

theatre, General Norman Schwarzkopf, had to approve all targets.122 In effect, the Ameriyya incident, being an extreme event, displaced in the memory of commanders less extreme outcomes,123 where there were no civilians present inside a military objective. Another reason why the Ameriyya incident led commanders to estimate the likelihood of harming civilians as being high in subsequent military operations is the media coverage of the tragedy. Research shows that graphic incidents make an event easy to imagine.124 The images of charred bodies near the destroyed command and control bunker relayed by journalists125 undoubtedly left an imprint in the mind of American commanders. The mental process of “availability” explains why the United States of America changed the procedural rules for vetting targets,126 despite the fact that the intelligence unequivocally pointed to the fact that the command and control bunker in the Ameriyya incident no longer served as an air raid shelter. Lawyers concur that the American commander was not negligent in failing to detect the presence of civilians.127 The commander was entitled to conclude that the target was a military objective and that there was no need to check for the presence of civilians. Turning back to the warnings requirement, commanders are influenced by the mental template of “availability” when they estimate how many more men they will lose, and the likelihood of losing the battle, if they issue an advance warning of the attack. The more soldiers the enemy has and the more technologically advanced the adversary’s armed forces are, the more graphically a commander can imagine the enemy killing his or her troops. At this stage, the ease of imagining the enemy killing the troops will heighten a commander’s assessment of the degree of danger the enemy poses to the unit. In turn, when the enemy’s military capability easily comes to mind, a commander may underestimate the strength that the

 122

Rick Atkinson, Crusade: The Untold Story of the Persian Gulf War (New York: Houghton Mifflin Company, 1993), 294-295. 123 Slovic, Kunreuther, and White, “Decision Processes, Rationality and Adjustment to Natural Hazards,” 14-15. 124 Ibid. 125 Nora Boustany, “Bombs Killed Victims as They Slept,” Washington Post, February 14, 1991. 126 Atkinson, Crusade: The Untold Story of the Persian Gulf War, 294-295. 127 Solis, The Law of Armed Conflict: International Humanitarian Law in War, 259; Hampson, “Means and Methods of Warfare in the Conflict in the Gulf,” 97.

362

Chapter Eight

troops derive from employing clever tactics and from being commanded by a skilled leader. Consequently, the operation of the “availability” mental template may result in a commander concluding that circumstances do not permit him or her to warn the civilians of the attack, even where options are available for mitigating the impact of the enemy receiving advance notice of the forthcoming military operation. Of course, the personality traits determine the degree to which commanders are influenced by the mental template of “availability.” The research on how the personality traits bear on decision-making suggests that a commander who finds it difficult to remain calm under stressful conditions, or who is fearful, is more likely to overestimate the degree of danger to which forgoing surprise exposes the troops. Such a commander is less able to assess correctly the impact of employing clever tactics on the chances of the troops winning. Another way in which the mental template of “availability” feeds into the deliberation of a commander is if he or she had already lost to the adversary in one or more military operations. The research intimates that a commander who has recently experienced defeat may overestimate the likelihood of losing in the next battle. As a result, a commander may conclude that the issuance of an advance warning of an attack will “seriously compromise”128 the chances of winning, when in fact the troops could win, notwithstanding the fact that civilians had been informed about the forthcoming military operation. Again, the research on the role of the personality traits on the decision-making of a commander indicates that commanders who are able to recover from sudden losses and shocks may be less affected by the operation of this mental template. However, because mental templates are a product of evolution,129 even resilient commanders who possess the trait of humour are affected by their experience in past battles when estimating the likelihood of losing to the enemy or of sustaining very high casualties among their soldiers. Another relevant feature of the mental template of “availability” for analysing the decision-making of a commander is that the brain more easily retrieves events that are personally significant130 and events that are

 128 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551. 129 Slovic, Lichtenstein, and Fischhoff, “Cognitive Processes and Societal Risk Taking,” 40. 130 Breakwell, The Psychology of Risk, 80.

The Duty to Issue an Advance Warning of the Attack

363

linked to experienced emotions.131 As a result, the brain treats such events as being more likely to occur. A commander whose troops experienced heavy casualties in the previous battle has greater emotional association with incurring losses than a commander who won the previous battle with fewer casualties. Moreover, the less time a commander has to grieve and to recover from the experience of losing soldiers in the previous battle, the stronger the commander’s emotional link to the adverse event of sustaining losses among the troops. Such commanders may assess the likelihood of sustaining casualties as being higher than would commanders who had had time to recover from the deaths of their colleagues. Consequently, the time period between the previous military operations and the current military operation, as well as the scale of casualties the troops sustained in the previous battle, are likely to have an effect on a commander’s evaluation of whether circumstances do not permit him or her to give a warning to the civilians. While the personality traits of a commander, such as resilience to stress and an ability to recover from adverse experiences, may mitigate somewhat the effect of the mental template of “availability,” such personality traits are unlikely to eliminate the effect of the mental processes on decision-making.

3.2. The Mental Template of “Representativeness” Kahneman and Tversky found that when estimating the likelihood of a particular event taking place, individuals focus on the degree to which such an event has properties that are similar to available evidence.132 In place of using information about the pattern of similar past events, they employ this mental template to estimate the likelihood of an event occurring.133 The two researchers call this mental template the “representativeness” heuristic.134 Kahneman and Tversky drew their conclusions from the following experiment. They told subjects that they had administered personality tests to seventy lawyers and thirty

 131

Slovic, Kunreuther, and White, “Decision Processes, Rationality and Adjustment to Natural Hazards,” 14. 132 Kahneman and Tversky, “Judgment Under Uncertainty: Heuristics and Biases,” 32-33. 133 Kahneman and Tversky, “On the Psychology of Prediction,” 48. 134 Kahneman and Tversky, “Judgment Under Uncertainty: Heuristics and Biases,” 32-33.

364

Chapter Eight

engineers.135 Therefore, the group to whom they had administered the test had one hundred professionals in total.136 Kahneman and Tversky then drew five personality descriptions at random from this group.137 They asked half of the subjects, whom they designated as group one, to estimate the likelihood that each of the personality descriptions that they had drawn belonged to a lawyer.138 Kahneman and Tversky requested the other half of the subjects, named group two, to estimate the likelihood that each of the drawn personality descriptions belonged to an engineer.139 Subsequently, Kahneman and Tversky asked the subjects to participate in another experiment.140 This time, the researchers did not provide the subjects with any personality descriptions.141 They told the subjects that they drew five individuals from the group of professionals.142 In the second experiment, Kahneman and Tversky set up this group of professionals so that there were seventy lawyers and thirty engineers in the group.143 The subjects had to estimate the likelihood that each of the five drawn individuals was either a lawyer or an engineer.144 The researchers found that, when they were not given personality descriptions, the subjects used the laws of probability to estimate the likelihood of drawing an engineer or a lawyer from the group of professionals.145 However, when they had personality descriptions of the persons who had been drawn from the group, the subjects relied on stereotypes about the type of individuals who chose particular occupations in order to judge what likelihood existed that each drawn individual was an engineer or a lawyer.146 The subjects relied on this method of estimation even though the personality descriptions were too broad to give any insight into the personality of the person who had been drawn.147 In effect, the subjects treated the personality descriptions as representative of

 135

Kahneman and Tversky, “On the Psychology of Prediction,” 53. Ibid. 137 Ibid. 138 Ibid. 139 Ibid. 140 Ibid., 54. 141 Ibid. 142 Ibid. 143 Ibid. 144 Ibid. 145 Ibid., 56. 146 Ibid. 147 Ibid. 136

The Duty to Issue an Advance Warning of the Attack

365

the individuals of a given profession and, therefore, as valuable indicators of the occupation of the individual who had been drawn from the group.148 The subjects, guided by the mental template of “representativeness,” used the mental process of looking for features that were representative of the individuals who belonged to a group, in this case engineers or lawyers.149 Kahneman and Tversky discovered that experts rely on judgment, intuition and educated guesswork to a large extent when making forecasts, even when they construct mathematical models or simulations for generating forecasts.150 The experts focus on the specific features of the situation at hand and on characteristics that distinguish it from other similar situations.151 Even when there is information about outcomes that have been observed in a pattern of similar cases, the experts do not rely on such information as much as they should in order to make their predictions more accurate.152 Information about past events is useful for projecting what will happen in the future, when the cases are homogenous or sufficiently similar.153 All that is needed is a loose enough criterion for similarity.154 As a consequence, experts do not give sufficient weight to the information that is useful for arriving at a mathematical estimate of the likelihood of an event occurring. They continue to be guided by the mental process of “representativeness,” even when information about the past frequency of similar events is available. In the context of military decision-making, the operation of the mental process of “representativeness” results in a commander comparing the relative capability of his or her and those of the enemy against the backdrop of what occurred in the previous military operation or military operations. The commander may take into account the pattern of winnings and losses in the previous military operations, but will not analyse this pattern in detail.

 148

Ibid. Ibid. 150 Daniel Kahneman and Amos Tversky, “Intuitive Prediction: Biases and Corrective Procedures,” in Judgment under Uncertainty: Heuristics and Biases, ed. Daniel Kahneman, Amos Tversky, and Paul Slovic (Cambridge: Cambridge University Press, 1985), 414. 151 Ibid., 415. 152 Ibid. 153 Knight, Risk, Uncertainty and Profit, 227. 154 Ibid. 149

366

Chapter Eight

According to Kahneman and Tversky, when individuals are guided by the mental template of “representativeness,” they sometimes produce reasonable estimates of the likelihood of an event materialising.155 On other occasions, they make severely flawed assessments.156 This occurs for several reasons. Kahneman and Tversky found that when they asked the subjects to make predictions about the performance of students based on the results of previous examinations, the subjects predicted that each student would do either very well or poorly.157 The subjects rarely gave middle values for a student’s performance.158 Kahneman and Tversky concluded that individuals have the greatest confidence in estimates that are actually the most likely to be off the mark.159 It can be gleaned from this research that commanders tend to assess their chances of winning as being high or low. They do not estimate the possibility of winning as being closer to a moderate likelihood, such as it being more likely that their troops will win. Accordingly, commanders appear to assess circumstances as permitting them to issue an advance warning of the attack when they have either a good or a very good chance of winning. The commanders may conclude that it is not possible to warn civilians of the attack when the likelihood of winning is closer to a middle value, such as when it is more likely that the forces will win as a result of making predictions that are extreme. This suggests that when the likelihood that the force will win is closer to a middle value, commanders may erroneously conclude that their troops have an insufficiently high chance of winning if civilians are informed about the planned military operation. Another interesting aspect of the mental template of “representativeness” is that the decision-makers focus on recent or current performance in order to project how an individual will execute a task in the future, and do not analyse the patterns of past performance.160 This research indicates that a commander focuses on whether his or her forces won the previous battle. The commander does not study trends in previous military operations. Consequently, when evaluating whether circumstances do not permit a warning to be given, a commander looks at how the troops performed in relation to the enemy in the previous battle. If the unit lost to the enemy, then a commander is likely to make a conservative estimate of the chances

 155

Kahneman and Tversky, “On the Psychology of Prediction,” 48. Ibid. 157 Ibid., 66. 158 Ibid. 159 Ibid. 160 Kahneman and Tversky, “Judgment under Uncertainty: Heuristics and Biases,” 8. 156

The Duty to Issue an Advance Warning of the Attack

367

of the troops winning in the next battle. As a result, a commander may decide not to warn civilians about the attack even though circumstances permit him or her to do so. Conversely, if the troops won the previous battle, then a commander is more likely to assess that circumstances permit a warning to be given. In doing so, a commander may draw a false conclusion. This is because experience shows that a student can perform well on a flight test, but then do poorly on the next try.161 The phenomenon known as “regression” in mathematics explains why this is the case.162 The concept of regression may be illustrated using a pattern of plant growth. A parent may have offsprings that have different heights, but subsequent generations would not continue to be born taller or shorter.163 Instead, their relative heights will fluctuate around a mean height.164 In the context of a flight test, an individual can perform well, but cannot perform well indefinitely without doing poorly on a test at some point. Kahneman and Tversky found that individuals either do not incorporate the effect of the fact that an individual cannot continue to have a good or bad performance,165 or do not sufficiently account for this phenomenon.166 It can be concluded from this research that commanders focus only on a handful of military operations when making predictions about the chances of their troops winning. As a result, they are overly influenced by their experience in the previous battle or a handful of past military operations.

3.3. The Mental Template of “Adjustment and Anchoring” Individuals are guided by yet another mental template, known as the “adjustment and anchoring heuristic.”167 Kahneman and Tversky discovered that when they asked subjects to make a numerical prediction, such as to estimate the distance between two cities,168 the subjects used the following procedure for arriving at an estimate. They began with making an “initial guess” about the value, in this case the distance between two

 161

Kahneman and Tversky, “On the Psychology of Prediction,” 68. Ibid. 163 Bernstein, Against the Gods: the Remarkable Story of Risk, 167. 164 Ibid. 165 Kahneman and Tversky, “On the Psychology of Prediction,” 59. 166 Ibid., 62. 167 Kahneman and Tversky, “Judgment under Uncertainty: Heuristics and Biases,” 14. 168 Ibid., 17. 162

368

Chapter Eight

cities.169 The individuals normally conduct a “partial computation” to arrive at this initial guess for the value.170 They then make adjustments to this initial value as they carry out further analysis.171 To illustrate, when Kahneman and Tversky asked individuals to estimate the value of the Dow-Jones stock market index on a particular day, the subjects began by thinking of a value that best reflected the average value of the Dow-Jones stock market index on an average day.172 They then adjusted this initial estimate as they undertook more analysis or as they obtained more information.173 Kahneman and Tversky conducted an experiment in which they showed how the operation of the mental template of “adjustment and anchoring” affects how individuals arrive at estimates of values.174 They asked one group of subjects to calculate approximately the distribution of values for the distance from New Delhi to Pekin.175 They took the median value for the distance from New Delhi to Pekin estimated by the first group and gave it to the second group.176 Subsequently, they asked the second group to estimate whether the actual distance between the two cities was greater and by how much.177 The two procedures for calculating the distance between New Delhi and Pekin the researchers gave to group one and group two are equivalent and should yield identical distributions.178 However, the subjects in the first group gave answers that were too extreme, whilst the subjects in the second group gave values that were too conservative.179 Kahneman and Tversky concluded that the way in which a question is framed influences what initial value individuals assign to their initial guess.180 Specifically, when the question is framed so as to mention a particular value, individuals use this value as a starting point for making adjustments.181 Moreover, the two researchers argue that this experiment

 169

Ibid. Breakwell, The Psychology of Risk, 81. 171 Kahneman and Tversky, “Judgment under Uncertainty: Heuristics and Biases,” 14. 172 Ibid., 17. 173 Ibid. 174 Ibid., 14-15. 175 Ibid., 17. 176 Ibid. 177 Ibid. 178 Ibid. 179 Ibid., 17-18. 180 Ibid., 14. 181 Ibid. 170

The Duty to Issue an Advance Warning of the Attack

369

confirms that the initial value that individuals use for making an educated guess shapes the final estimate at which they arrive by influencing the degree to which they calibrate the initial value.182 In the military context, a commander estimates how many soldiers are likely to be lost if an advance warning of an attack is issued. The value a commander chooses to use as a starting point from which to derive an estimate determines whether the final figure is too small or too big. For instance, if a commander uses the number of soldiers killed in the previous military operation as a starting point, the commander will arrive at a different estimate than if the average number of deaths that occurred in the past five or six military operations were to be used. There is some indication from the studies carried out by Kahneman and Tversky on how experts reach decisions183 that commanders concentrate on the outcome of the previous battle, instead of on the overall pattern of military operations. If this is in fact the case, then it follows that when commanders estimate the number of men they expect to lose in the next battle, their assessment is influenced by how many men their unit lost in the previous military engagement. In turn, their estimate will feed into their evaluation of whether circumstances do not permit them to warn the civilians about the forthcoming military operation. In effect, it may well be that whether a commander won or lost the previous battle exerts a substantial influence on his or her assessment of whether the preservation of surprise is crucial to winning. It may of course be the case that, because commanders get feedback after each attack on how accurate their estimate of the extent of casualties among their troops was, they learn to calibrate better their estimates and are less susceptible to the effects of the “anchoring and adjustment” heuristic. Researchers studied the projections of the American forecasters about the weather.184 The researchers found that when individuals make frequent predictions based on their subjective estimates of the likelihood of a particular event occurring, such as the likelihood of heavy rain on a Monday, and when they received feedback on the accuracy of their

 182

Ibid., 17-18. Kahneman and Tversky, “Intuitive Prediction: Biases and Corrective Procedures,” 415-416. 184 Paul Anand, Foundations of Rational Choice Under Risk (Oxford: Clarendon Press, 1993), 16. 183

370

Chapter Eight

estimates, their predictions become very accurate in relation to the actual relative frequency of the event in question.185

4. Insights regarding how Commanders Apply Goldstone’s Formulation of the Rule Kahneman and Tversky conducted experiments on how individuals make choices when they are presented with alternative options that involve gains and losses.186 For instance, in one of their experiments the two researchers asked the subjects whether they would travel to another store in order to save money on buying a calculator.187 Kahneman and Tversky varied the price of the calculator and the amount the subjects would save, in order to compare what choices the subjects made depending on the value of the proposed gain (in this case the amount of savings on buying a calculator).188 This research gives an insight into the decision-making of a commander, because a commander faces a choice between two alternative options. The first option involves issuing an advance warning of the attack and reducing civilian casualties. The second option is not to warn the civilians about the imminent military operation and to benefit from retaining an element of surprise. Additionally, a commander may need to attach relative values to gains in military advantage and harm to civilians. In particular, Goldstone reformulated the warnings requirement in terms of a proportionality equation.189 Goldstone put forward that commanders should warn the civilians of the military operation whenever “the injury or damage done to civilians or civilian objects by not giving a warning is excessive in relation to the advantage to be gained by the element of surprise for the particular operation.”190

 185

Ibid. Daniel Kahneman and Amos Tversky, “The Framing of Decisions and the Psychology of Choice,” in Rational Choice, ed. Jon Elster (Oxford: Basil Blackwell Ltd., 1986), 123. 187 Ibid., 136. 188 Ibid. 189 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 131 par. 529. 190 Ibid. 186

The Duty to Issue an Advance Warning of the Attack

371

In effect, Goldstone envisages commanders balancing the loss associated with civilian deaths and destruction of civilian objects against the military gain which accrues if the attacking troops retain an element of surprise. According to Kahneman and Tversky, when presented with a choice between two alternatives, which involve either making a gain or incurring a loss, individuals establish a reference point.191 They use the reference point as a frame of reference for understanding the information before them.192 Afterwards, individuals proceed to evaluate available decision options.193 They use the reference point they established in the beginning stages of decision-making to judge whether something is a loss or a gain.194 Kahneman and Tversky found that subjects were more ready to travel to another store to save $5 on a $15 calculator than to save the same amount on a $125 calculator.195 They concluded from this outcome that when evaluating alternative decision options the human mind processes the information in such a way that the “impact of a change diminishes with the distance from the reference point.”196 The implication of this mental process is that individuals perceive the subjective value of a gain of, for instance, between $15 and $20 as greater than the subjective value of a gain between $115 and $120.197 The same is true for losses.198 Individuals perceive a loss between $15 and $20 as greater than the loss between $115 and $120.199 Kahneman and Tversky call this phenomenon, in which individuals judge as diminishing the impact of a change in value when that value lies further away from the reference

 191

Kahneman and Tversky, “The Framing of Decisions and the Psychology of Choice,” 125. 192 Ibid. 193 Daniel Kahneman and Amos Tversky, “Advances in Prospect Theory: Cumulative Representation of Uncertainty,” Journal of Risk and Uncertainty 5 (1992): 303. 194 Ibid. 195 Kahneman and Tversky, “The Framing of Decisions and the Psychology of Choice,” 136. 196 Kahneman and Tversky, “Advances in Prospect Theory: Cumulative Representation of Uncertainty,” 303. 197 Kahneman and Tversky, “The Framing of Decisions and the Psychology of Choice,” 126. 198 Ibid. 199 Ibid.

372

Chapter Eight

point, the “principle of diminishing sensitivity.”200 They call the process by which individuals assess gains and losses in relation to a reference point the “prospect theory.”201 More recently, Kahneman and Tversky found that individuals assess potential gains and losses separately.202 This means that individuals attach greater significance to the possibility of making a loss than to the possibility of making a gain.203 Kahneman and Tversky named this finding the “cumulative prospect theory.”204 Summers, Slovic, Hine and Zuliani investigated how individuals perceive the death of civilians in war, depending on the number of affected civilians.205 They found that individuals detect small changes in their environment well, but are less able to detect and to respond to big changes.206 This means that if the stimulus is small, only a small change needs to be added before the person perceives the change in the physical environment.207 For a large stimulus, a greater change must be added before the person detects a change in the physical environment.208 Therefore, individuals perceive the death of each individual more acutely when there are seventeen deaths than when there are twenty seven deaths. To give a more striking illustration, Albert Szent-Gyorgi pointed out, “I am deeply moved if I see one man suffering and would risk my life for him. Then I talk impersonally about the possible pulverisation of our big cities [by an atomic bomb], with a hundred million dead. I am unable to multiply one man’s suffering by a hundred million.”209

 200

Kahneman and Tversky, “Advances in Prospect Theory: Cumulative Representation of Uncertainty,” 303. 201 Ibid., 297. 202 Ibid., 301. 203 Ibid., 303. 204 Ibid., 302. 205 Paul Slovic et al., “Insensitivity to the Value of Human Life: a Study of Psychophysical Numbing,” in The Perception of Risk, ed. Paul Slovic (London: Earthscan Publications Ltd., 2000), 373. 206 Ibid., 372-373. 207 Ibid., 373. 208 Ibid. 209 Quoted in Ibid., 372.

The Duty to Issue an Advance Warning of the Attack

373

Another way of illustrating the findings is to compare how individuals perceive light of varying intensity.210 For instance, when an individual is presented with lamps A and B, and lamp A emits light that is four times brighter than lamp B, individuals perceive lamp A to emit light that is only twice as bright as that of lamp B.211 Summers, Slovic, Hine and Zuliani use the term “psychophysical numbing” to indicate that individuals detect small changes in their environment more acutely than larger changes.212 The phenomenon of “psychophysical numbing” stems from the cognitive make up of humans.213 The cognitive and perceptual mechanisms of the human mind are designed to sensitise people to small changes in their environment.214 The by-product of this biological adaptation to environmental conditions is that people are less able to detect and respond to big changes in their environment.215 Fetherstonhaugh, Slovic, Johnson and Friedrich conducted laboratory studies in which they examined how individuals evaluate the loss of life.216 In one of their experiments, they gave subjects a questionnaire.217 The subjects had to imagine that they were government officials who had to choose between funding programs A, B, C and D.218 All of the programs had an equal cost. Program A would decrease the unemployment rate.219 Program B would build roads in a country with poor transportation links.220 Both programs C and D would deliver water to the Rwandan refugees in Zaire and would save the lives of four thousand and five hundred refugees.221 The only difference between program C and program D was the size of the refugee camp to which the water would be

 210

Slovic et al., “Insensitivity to the Value of Human Life: a Study of Psychophysical Numbing,” 373. 211 Ibid. 212 Paul Slovic et al., “‘Psychophysical Numbing’: An Empirical Basis for Perceptions of Collective Violence,” in Collective Violence: Harmful Behavior in Groups and Govenments, ed. Craig Summers and Eric Markusen (Lanham: Rowman & Littlefield, 1999). 213 Slovic et al., “Insensitivity to the Value of Human Life: a Study of Psychophysical Numbing,” 372-373. 214 Ibid., 373. 215 Ibid. 216 Ibid., 373-386. 217 Ibid., 375. 218 Ibid. 219 Ibid. 220 Ibid. 221 Ibid.

374

Chapter Eight

supplied.222 The camp in program C had eleven thousand refugees, while the camp in program D had two hundred and fifty thousand refugees.223 The researchers deliberately did not present program C and D side by side.224 On the last page of the questionnaire, the subjects had to indicate whether it is better to save lives in a small or a large refugee camp and to explain their choice.225 The results revealed that most subjects realised that program C and program D both saved the same number of lives among the refugees.226 However, subjects preferred to save lives in a smaller refugee camp than in the larger refugee camp.227 This experiment demonstrates that the more people die in an incident, the lesser the value attached by an external observer to each life.228 This finding is corroborated by Kahneman and Tversky’s “prospect theory.”229 As Kahneman and Tversky discovered, individuals placed more value on saving five dollars when the calculator cost only fifteen dollars, than when the calculator cost one hundred and twenty five dollars.230 The “prospect theory” and the concept of “psychophysical numbing” suggest that individuals put greater subjective value on saving a specified number of lives when a tragedy is small than when a tragedy affects more individuals.231 Fetherstonhaugh, Slovic, Johnson and Friedrich made an important caveat to their finding that individuals place a smaller value on each human life as the total number of individuals who are affected increases.232 They discovered that the subjects are more susceptible to this phenomenon when they consider a specific situation in isolation.233 In contrast, when the subjects have numerous specific scenarios and interventions presented to them side-by-side, and when the description of the scenario clearly

 222

Ibid. Ibid. 224 Ibid. 225 Ibid. 226 Ibid. 227 Ibid., 376. 228 Ibid., 373. 229 Ibid. 230 Kahneman and Tversky, “The Framing of Decisions and the Psychology of Choice,” 136. 231 Slovic et al., “Insensitivity to the Value of Human Life: a Study of Psychophysical Numbing,” 373. 232 Ibid., 386-387. 233 Ibid. 223

The Duty to Issue an Advance Warning of the Attack

375

illustrates the number of lives each intervention would save, they are less influenced by the overall size of the group which the intervention is designed to assist.234 Turning back to the duty to give an advance warning of the attack, unless circumstances do not permit, a commander focuses on conducting a military operation in a particular populated area. Since a commander looks at a single scenario, as opposed to different scenarios which are presented side by side, a commander is likely to exhibit what researchers refer to as “psychophysical numbing.” Consequently, as the size of the overall population increases, a commander is less sensitive to changes in the number of civilians who would survive were civilians able to evacuate the area. The implication of the research conducted by Fetherstonhaugh, Slovic, Johnson and Friedrich is that in determining whether circumstances do not permit an advance warning to be issued, commanders place greater weight on the life of each civilian when the warning might reduce from two hundred to one hundred the deaths in a small town, than when it might decrease the deaths in a large town from two thousand to one thousand and nine hundred. Accordingly, when applying Goldstone’s formulation of the warnings requirement, the value that commanders attach to the humanitarian loss is shaped by the size of the population in a particular village or city. The smaller the conurbation, the more acutely the commanders perceive the death of each civilian, and the greater the average value attached to the loss of one human life. As a result, when they apply Goldstone’s test before embarking on a military operation in a big city, commanders place insufficient weight on the extent of harm to civilians which will result if they do not warn the civilians about the attack. Therefore, commanders should be aware of how their cognition impacts their valuation of life, and should attach greater weight to civilian casualties and damage to civilian objects whenever the military operation will be taking place in a large or densely populated city. Another interesting feature for analysing the decision-making of a commander may be found in the “cumulative prospect theory.” According to this theory, individuals assess gains and losses separately,235 and perceive differences in the magnitudes of losses as being more significant than the differences in the magnitudes of gains.236 In using Goldstone’s

 234

Ibid. Kahneman and Tversky, “Advances in Prospect Theory: Cumulative Representation of Uncertainty,” 301. 236 Ibid., 303. 235

376

Chapter Eight

approach, a commander compares the harm to civilians which will occur if an advance warning of the attack is not given, with the gain in military advantage which will accrue if an element of surprise is retained. Here, a commander treats harm to civilians as a loss, and perceives the military advantage, which accrues from preserving an element of surprise, as a gain. On the application of the “cumulative prospect theory,” a commander places greater weight on sustaining losses than on making a gain. This means that a commander attaches greater weight to humanitarian loss than to military advantage when applying Goldstone’s test. The situation is different if a commander applies the traditional formulation of the rule, namely that there is no obligation to warn civilians about the imminent attack if doing so may “seriously compromise”237 a commander’s chances of winning. Using this approach, a commander focuses attention on the likelihood of not achieving the mission. Since a commander here focuses on the loss of military advantage that would be entailed by warning the civilians about the attack, a commander attaches particular significance to the loss of military advantage. Consequently, a commander places more weight on the loss of military advantage than if the commander had applied Goldstone’s formulation of the rule. It can be gleaned from this discussion that commanders engage in a different decision-making process depending on whether they apply the traditional formulation of the warnings requirement, or Goldstone’s reformulation of this rule. It is unclear which provides better protection to the civilians: the application of the warnings requirement as it is traditionally formulated or Goldstone’s restatement of the rule. On the one hand, when commanders apply the traditional formulation of the warnings requirement, they avoid the pitfall of giving insufficient weight to the value of a civilian life, especially when the military operation is taking place in or near a very populated area. This is because they focus on their chances of winning, rather than on how many civilians will survive if civilians have an opportunity to evacuate. On the other hand, commanders give greater significance to the loss of military advantage when they apply the traditional test than when they apply Goldstone’s test.



237 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551.

The Duty to Issue an Advance Warning of the Attack

377

5. Explaining the Influence of Policy Considerations using the “Social Amplification Theory” Traditionally, lawyers in commenting on a particular rule tended to focus on state practice and the associated feeling of obligation to follow that rule.238 Notwithstanding this fact, lawyers are well aware that international humanitarian law, like any other area of law, is socially embedded. In other words, culture and dynamics in societies influence how states formulate legal rules and how commanders apply such rules to battlefield scenarios. For example, White observes that the American troops recklessly, and in some cases intentionally, targeted the civilian population during the Vietnam War.239 The American public responded with an outcry, after viewing broadcasts that informed it about these practices.240 As a result, the United States of America conducted hostilities in subsequent armed conflicts in such a way as to comply with international humanitarian law and started to interpret the rules of targeting more narrowly.241 Presently, such factors as the way the media portray war, the initiatives of civil society groups such as non-governmental organisations and the negative public attitude towards civilian casualties combine to influence the way in which Western states apply legal rules. Shaw calls the post-Cold War phenomenon of global state institutions, law, markets, media and civil society monitoring wars “global surveillance warfare.”242 To illustrate, Canestaro, who at the time of making this statement worked at the United States Central Intelligence Agency, explains that “the restrictions on United States military action are driven as much by political fear of public reaction to casualties as they are by respect for the law, and are often stricter than the law of war would otherwise require.”243

Meanwhile, Oren, a journalist commenting on Operation Protective Edge 2014 conducted by Israel in Gaza, observes that Hamas deliberately

 238

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, I.C.J. Reports 1969, p. 45, par. 77. 239 White, “Civilian Immunity in the Precision-guided Age,” 188. 240 Ibid. 241 Ibid. 242 Shaw, The New Western Way of War: Risk-transfer and Its Crisis in Iraq, 56-57. 243 Canestaro, “Legal and Policy Constraints on the Conduct of Aerial Precision Warfare,” 433.

378

Chapter Eight

prevented civilians from evacuating, after Israel had warned the civilians of the upcoming military operation using leaflets, telephone calls and text messages.244 According to Oren, by increasing casualties among the civilian population, Hamas wanted to mobilise international public opinion against Israel’s decision to respond to rocket strikes on its territory with a military operation.245 Hamas anticipated that the images broadcast by the media of civilian casualties would mobilise public opinion and would pressure governments to use the U.N. as an arena to condemn the conduct of Israel.246 The following events provide context for Oren’s observations. The Foreign Secretary of the United Kingdom, Philip Hammond, told Israel’s government that Western public opinion was turning away from Israel, due to the scale of its offensive and the high number of civilian casualties.247 Meanwhile, Chile and Peru withdrew their ambassadors from Israel, citing a shared “great concern” that Israel’s conduct appeared to be a “collective punishment” to Gaza’s Palestinians.248 Since the number of civilian casualties the armed forces inflict depends on whether their commanders issue an effective advance warning of the attack to civilians, commanders may for policy reasons take greater care than is required by the law and assume additional risks in order to warn the civilians of the attack. Of course, not all governments are influenced by either domestic or international public opinion. For instance, Human Rights Watch249 reported that the Syrian armed forces breached the customary international law requirement to issue a warning to hospital staff and to give a reasonable time limit for the enemy to either desist from using the hospital premises to commit hostile acts or to arrange the

 244

Michael Oren, “Oren: Hamas Media Strategy Relies on Deaths of Civilians,” CNN News, July 22, 2014, http://edition.cnn.com/2014/07/21/opinion/oren-hamasmedia-strategy (accessed April 11, 2015). 245 Ibid. 246 Ibid. 247 Cassandra Vinograd, “Public Support for Israel Shifting amid Gaza War, Britain Warns,” NBC News, July 30, 2014, http://www.nbcnews.com/storyline/middle-east-unrest/public-support-israelshifting-amid-gaza-war-britain-warns-n168366 (accessed April 11, 2015). 248 Ibid. 249 Human Rights Watch, Death from the Skies: Deliberate and Indiscriminate Air Strikes on Civilians (New York: Human Rights Watch, 2013), 30-31.

The Duty to Issue an Advance Warning of the Attack

379

evacuation of patients.250 This rule may be found in Art. 19 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 1949251 and Art. 11(2) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol II) of 1977.252 In fact, the Syrian armed forces allegedly launched direct attacks on hospitals, even though these buildings were clearly marked.253 So what factors determine the extent to which public opinion shapes the way commanders interpret and apply the rules of targeting in general, and the warnings requirement in particular? There is a theory that cuts across the disciplines of psychology, sociology, anthropology and communications theory254 that sheds some light on this question. Roger Kasperson and his colleagues developed the “social amplification theory” as part of their effort to explain how people perceive and respond to activities that expose individuals or society to danger.255 The theory attempts to unify psychological, social and cultural perspectives on the study of risk.256 The “social amplification theory” assumes that individuals are embedded in society and are influenced by their interactions with each other.257 This means that when individuals receive a message about an activity which exposes individuals to danger, it is not the case that only cognitive processes influence how they perceive the message about risk.258 Rather, interactions with other individuals influence how the mind

 250

Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, 17-4 par. 34; Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:536-537. 251 Art. 19 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 1949. 252 Art. 11(2) API 1977. 253 Human Rights Watch, Death from the Skies: Deliberate and Indiscriminate Air Strikes on Civilians, 30. 254 Paul Bimal Kanti, Environmental Hazards and Disasters: Contexts, Perspectives And Management (Oxford: John Wiley & Sons Ltd., 2011), 43. 255 Jeanne Kasperson et al., “The Social Amplification of Risk: Assessing Fifteen Year of Research and Theory,” in The Social Amplification of Risk, ed. Nick Pidgeon, Paul Slovic, and Roger Kasperson (Cambridge: Cambridge University Press, 2003), 13. 256 Ibid. 257 The Royal Society Study Group, Risk: Analysis, Perception and Management (London: The Royal Society, 1992), 116. 258 Ibid.

380

Chapter Eight

perceives and transforms the message about the hazardous activity.259 According to the “social amplification theory,” as individuals communicate with each other, their perception of the degree of danger to which an activity exposes persons shifts in either of the following two ways.260 The perceived danger of the activity may be amplified, meaning that individuals pay considerable attention to activities that in fact pose low risk.261 Alternatively, the degree of danger is attenuated, meaning that individuals downplay the degree of danger posed by an activity.262 The following mechanism captures how messages about risk get transformed as they reach particular individuals and as individuals communicate to each other. Once a risk materialises and results in an adverse event, such as an accident or the depletion of the ozone layer, those who directly experience the loss communicate with others about the event and the danger of the activity in question.263 Alternatively, the information about the adverse consequences of an activity gets transmitted through social networks such as news media, nongovernmental organisations, government agencies, opinion leaders and social groups.264 Upon hearing the information, individuals use attention filters to select information which they view as having importance for retention and analysis.265 The individuals employ mental processes to decode and process the incoming information.266 Subsequently, they evaluate and interpret the information.267 Individuals either ignore or reduce the significance of the components of the decoded message that conflict with their beliefs or values.268 On the other hand, if they find the message appealing, or if the message reflects their existing beliefs, they experience intensified feelings in respect to the

 259

Ibid. Kasperson et al., “The Social Amplification of Risk: Assessing Fifteen Year of Research and Theory,” 13. 261 Ibid. 262 Ibid. 263 Roger Kasperson et al., “The Social Amplification of Risk: Theoretical Foundations and Empirical Applications,” Journal of Social Issues 48, no. 4 (1992): 140-141. 264 Ibid. 265 Ibid., 140. 266 Ibid. 267 Ibid. 268 Ibid., 141. 260

The Duty to Issue an Advance Warning of the Attack

381

hazardous activity.269 After receiving and analysing the communication, individuals may change their attitude about an activity which exposes individuals or society to risk.270 Whether individuals change their opinions is driven by their personal values, the mental processes involved in interpreting information271 and the rules of the group to which they belong, such as a scientific community or an interest group.272 As individuals communicate with each other and receive information from the media, social groups and non-governmental organisations,273 they may decide to mount a social and political action so as to put pressure on the government to address the risk posed by a particular activity.274 The impact of mobilisation towards a particular risky activity may have ripple effects and spread to other geographical areas.275 Other possible consequences include individuals and non-governmental organisations initiating litigation in order to force the government to implement procedures to reduce the degree of risk posed by an activity.276 Individuals may lose confidence in the government institutions that failed to prevent the harm from materialising.277 The government may respond by adopting regulatory actions to address the public concerns.278 While the “social amplification theory” is too broad to be empirically tested,279 experiments show that it has validity.280 The fact that as individuals communicate to each other their attitudes to risks undergo a transformation281 explains why commanders may reach

 269

Ibid. Ibid., 140-141. 271 Ibid., 141. 272 Ibid. 273 Ibid., 140-141. 274 Ibid., 142; Renn, Risk Governance: Coping with Uncertainty in a Complex World, 139. 275 Kasperson et al., “The Social Amplification of Risk: Theoretical Foundations and Empirical Applications,” 143. 276 Renn, Risk Governance: Coping with Uncertainty in a Complex World, 139. 277 Kasperson et al., “The Social Amplification of Risk: Theoretical Foundations and Empirical Applications,” 142. 278 Ibid. 279 Kasperson et al., “The Social Amplification of Risk: Assessing Fifteen Year of Research and Theory,” 38. 280 Kasperson et al., “The Social Amplification of Risk: Theoretical Foundations and Empirical Applications,” 151-152. 281 Ibid., 140-141. 270

382

Chapter Eight

somewhat different conclusions regarding what the rule of targeting requires in a battlefield scenario, although the rule is meant to have a fixed meaning. For instance, the British forces tend to assume more risk than their American counterparts.282 The culture and social values of the armed forces as well as the society in which they live influence how commanders understand and apply the rules of targeting. Additionally, when there is publicly available information about the way in which the armed forces conducted a particular military operation, when there are social actors who can mobilise public opinion, when there are channels for pressuring the government to change its conduct, and when there are incentives (or sanctions) for the government to act, society will be able to exert greater influence on the way in which commanders interpret and apply the rules of targeting. In the case of counterinsurgencies, churches may mobilise the public in countries where the population is religious. These mechanisms operate both on the national and the international levels. For instance, nongovernmental organisations frequently approach the U.N. bodies in order to urge them to act on issues such as violations of international humanitarian law and international human rights law. The knowledge of how social processes and public discourse influence military decision-makers and governments allows lawyers to interpret state practice more accurately. This knowledge makes it easier to separate those governmental actions that are influenced by political, cultural and social forces from those actions influenced by the need to fulfil legal obligations. For instance, during Operation Desert Storm 1991 precision-guided bombs comprised only 6.7 percent of the bombs the United States of America employed.283 Following Operation Allied Force 1999 Lord Robertson, who was then NATO Secretary-General, observed that the public viewed the use of dumb bombs as no longer acceptable.284 As a result states would have to procure solely precision-guided bombs.285 During Operation Iraqi Freedom 2003, 70 percent of the bombs that the United States of America

 282

United Kingdom, Defence Committee, Minutes of Evidence, Commons, vol. 57-II (2002-2003), cols. 877-878. 283 James M. Hasik and Michael Russell Rip, The Precision Revolution: G.P.S. and the Future of Aerial Warfare (Annapolis: Naval Institute Press, 2002), 212. 284 Vago Muradian, “Robertson: Europe Must Spend More Wisely to Achieve Gains,” Defence Daily, December 8, 1999, 6, quoted in Belt, “Missiles Over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas,” 166. 285 Ibid.

The Duty to Issue an Advance Warning of the Attack

383

employed were precision-guided.286 Although the United States of America has dramatically increased its reliance on precision-guided bombs since 1990, it has been very careful to emphasise in its military manuals that it does not view itself as being legally bound to employ precision-guided bombs.287 Rather, the Report to Congress reveals that the United States of America for political and moral reasons minimises civilian casualties to the greatest degree possible.288 Turning back to the context of the warnings requirement, when analysing whether a commander gave or failed to give an advance warning of an attack, it is important to consider not only whether the situation did not permit the commander to warn the civilians, but additionally how public pressure may have shaped the deliberation process. The “social amplification theory” provides a roadmap for analysing whether, and if so how, public discourse on national and international levels may have fed into the decision-making of a commander. The knowledge of this theory enables lawyers to accurately establish whether a commander, in acting in a particular way, was motivated to comply with the law or to implement policy requirements.

6. Conclusions The application of theories from the field of psychology leads to a different analysis than when a legal approach is employed. This is due to the fact that psychology is concerned with studying the relationship between brain function and behaviour,289 while lawyers look for sources of the law and how states interpret their legal obligations. The application of theories from the field of psychology to analyse how commanders go about deciding whether circumstances do not permit them to warn civilians of an attack demonstrates what cognitive processes are involved in their deliberation. These theories make it possible to reconstruct how

 286

Terry McCarthy, “What Ever Happened to the Republican Guard?,” Time, May 12, 2003. 287 Department of the Army, The Army Lawyer D.A. P.A.M. 27-50-379 (Charlottesville: The Judge Advocate General’s Legal Center & School, 2004), 53 n. 86. 288 United States Department of Defense, Final Report to Congress: Conduct of the Persian Gulf, 100. 289 American Psychological Association, “Science of Psychology,” American Psychological Association, http://www.apa.org/action/science/index.aspx (accessed April 4, 2015).

384

Chapter Eight

commanders assess when the issuance of an advance warning of the attack is likely to “seriously compromise”290 either their chances of winning or the survival of their troops. For instance, the application of the theory of “psychophysical numbing” and “cumulative prospect theory” led to an unexpected finding that commanders will make somewhat divergent decisions, depending on whether they follow the traditional formulation of the warnings requirement or Goldstone’s restatement of the rule. Although the current state of knowledge in psychology does not give a comprehensive picture of the cognitive processes involved in the decisionmaking of commanders, it at least provides a better understanding of how commanders deliberate. As a discipline, law lacks the tools to explain and illustrate how commanders evaluate when circumstances make the preservation of surprise a key element for achieving victory. It is possible to synthesise the various theories in the field of psychology that have been examined in this chapter. Klein’s finding that individuals look for patterns in events that they had experienced in the past in order to make predictions about the future291 may be linked to the “representativeness heuristic.” According to the “representativeness heuristic,” individuals focus on the degree to which the situation at hand has properties that are similar to available evidence.292 The implication of the “representativeness heuristic” is that a commander tends to use primarily information about either the previous military operation or a handful of prior military operations, when matching patterns between the current situation and prior experience. Moreover, due to the “availability” and the “adjustment and anchoring” heuristics, in projecting how the planned military operation will unfold, a commander is substantially influenced by whether the most recent military operation or a handful of recent military operations were won or lost. The “representativeness heuristic” operates so that in making an estimate of how many soldiers will be killed and how long the military operation will last if civilians are warned about the attack, a commander will produce an extreme estimate. Accordingly, a commander will perceive the chances of winning as being either high or low. The emotions and personality traits of the commander and the perception that an opponent is

 290 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551. 291 Klein, Sources of Power: How People Make Decisions, 89. 292 Kahneman and Tversky, “Judgment Under Uncertainty: Heuristics and Biases,” 32-33.

The Duty to Issue an Advance Warning of the Attack

385

using unfair tactics will exert an influence on a commander’s assessment of the chances of the troops winning. Furthermore, personality traits such as fearfulness and an inability to handle stress well influence what “aspiration level” a commander sets for the number of soldier casualties that could be sustained without compromising the chances of winning. A commander who lacks resilience to stress, or who is fearful, may set the “aspiration level” for the maximum number of acceptable soldier casualties to a benchmark that is low. In turn, this may lead a commander to conclude that there are no combinations of weapons and tactics that fulfil this “aspiration level.” If a commander lives in a country that has mechanisms for the general public or international community to pressure the government to act in a particular way, then a commander will also consider policy considerations when applying the warnings requirement. The theories from the field of psychology provide a striking picture of the decision-making of commanders. It turns out that a commander does not merely use knowledge of military science to model how the materiel and tactics of the troops will interact with those of the adversary. Instead, a commander’s deliberation involves a multitude of different cognitive processes. An understanding of these cognitive processes provides an additional insight into why states have drafted the rules of targeting in general, and the warnings requirement in particular, to require commanders to exercise judgment when interpreting what the rule requires in a battlefield scenario. In particular, the traditional formulation of the warnings requirement captures the fact that the human brain is primarily designed to deal with the environmental conditions that surround human beings, rather than with numbers.293 In fact, individuals in the seventeenth century started to use mathematics to calculate the likelihood that an event would occur and the magnitude of harm which would occur on average.294 The warnings requirement is framed in an open-ended fashion because commanders find it easier to make estimates, such as the likelihood that their troops will win even though the enemy has notice about an impending attack, when they do not need to convert qualitative judgments into numbers. The obligation to issue an advance warning of an attack is framed to reflect the way in which the human brain processes information. So it is not only the difficulty of quantifying the military advantage

 293

Smithson, “Psychology’s Ambivalent View of Uncertainty,” 211. Ian Hacking, “Risk and Dirt,” in Risk and Morality, ed. Aaron Doyle and Richard V. Ericson (Toronto: University of Toronto Press Inc., 2003), 27. 294

386

Chapter Eight

conferred by the preservation of surprise that led states to frame the warnings requirement in an open-ended fashion. Rather, the rationale for this choice is that commanders can make faster and better judgments when they do not have recourse to mathematics and quantification.



CHAPTER NINE CONCLUSION

The rules of targeting contain a crucial stipulation that requires parties to any given conflict to take constant care to spare the civilian population.1 This book provides practitioners with additional tools for scrutinising whether commanders planned and executed military operations in compliance with the rules of targeting. It is hoped that practitioners and civil society groups will find such tools valuable for holding states accountable for their conduct. In order to provide a refined analysis of state practice, the decision-making involved in the application of each rule was broken down into its constitutive elements, or component parts. In turn, the conduct of commanders was then analysed in terms of how they weighed, or balanced, the relevant elements. This analytical framework shifts the trajectory of enquiry dramatically, because in their commentary on state practice, scholars have not addressed the elements entailed in commanders’ decision-making. When looking at the obligation placed upon attackers to warn civilians about forthcoming military operations, unless circumstances do not permit them from doing so, the enquiry was extended beyond international humanitarian law. By turning to the field of psychology, in order to analyse a rule of international humanitarian law, this book generated unexpected and significant insights regarding how commanders determine whether circumstances do not permit them to issue an advance warning of an attack to civilian populations. The analysis in this book contributes to the ongoing scholarly attempts to resolve existing ambiguities in the law, as well as disagreements among scholars. For instance, an examination of how commanders balance the elements of urgency of responding to the adversary’s actions, force protection, available intelligence and harm to civilians through a targeting error led to the conclusion that the principle of distinction allows parties to a conflict to proceed with an attack when each element confirms that the proposed target is in fact a military objective. As a result, this finding points to the

 1



Art. 57(1) API 1977.

388

Chapter Nine

fact that attackers may not cite military considerations, such as the urgency of action and force protection, in order to argue that they are only able to achieve a lower degree of certainty about the identity of the intended target in the circumstances. This proposition goes against the writings of scholars such as Corn, who maintains that circumstances shape the degree of certainty an attacker can achieve.2 As well, another implication of the analysis of state practice is that the proposition that soldiers should have a specific and, in the circumstances, reasonable level of certainty3 ought to be interpreted narrowly. This discovery is useful for the work of practitioners. According to the anonymous testimonies of the Israeli soldiers presented in the report Breaking the Silence, for example, when carrying out Operation Protective Edge 2014, they were instructed by their superiors to presume that an individual took a direct part in hostilities, unless the activity was clearly “sterile.”4 For this reason, the soldiers could shoot at individuals standing near windows,5 but also at persons standing on rooftops who were looking in their direction.6 Yet these instructions do not comply with the principle of distinction for two reasons. First, because states may not invoke force protection to argue that it was only possible to achieve a lower degree of certainty in the circumstances, it was unlawful for the Israeli troops to shoot individuals whom they considered to be behaving suspiciously. Secondly, given the fact that states may not invoke lack of available information to justify acting on a lower degree of certainty, it was unlawful for the Israeli soldiers to shoot at individuals who were standing near windows, even though the troops lacked binoculars or similar vision-enhancing devices. The Israeli troops could open fire, for instance, when they observed or received information about conduct that posed a threat to the soldiers and which reinforced the view that it was urgent to act in order to protect the force from an attack. This means that the soldiers had to look for signs such as

 2

Radsan and Murphy, “Measure Twice, Shoot Once: Higher Care for C.I.A. Targeted Killing,” 1226. 3 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law,” 1039. 4 Breaking the Silence, This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014), 26-27. 5 Ibid., 29. 6 Ibid., 28.



Conclusion

389

the presence of a weapon or the mounting of booby traps on a window frame before shooting at individuals who stood near windows. Another suggestive outcome of the analysis is the realisation that it is useful to look beyond international humanitarian law for tools with which to examine the rules of targeting. The standard of proof of “beyond reasonable doubt” turned out to be a valuable yardstick, or measuring tool, for analysing state practice on the principle of distinction. It provided a threshold in relation to which the degrees of certitude states require their armed forces to achieve could be mapped. It became apparent that the degree of certainty the principle of distinction requires approximates the degree of certainty required by the standard of proof of “beyond reasonable doubt.” This made it possible to construct a scale which not only shows gradations of the degrees of certainty, but also depicts a cut off point at which a degree of certainty falls below that which is required by the principle of distinction. If practitioners would like to examine additional expressions for capturing the degree of certainty, which is comparable to the degree of certainty called for by the principle of distinction, they may refer to the ample jurisprudence in common law jurisdictions on the standard of proof of “beyond reasonable doubt.” The scale, which was developed in chapter 5, is a valuable starting point for discussing controversies surrounding particular instances of state practices. For example, Cavallaro, Sonnenberg and Knuckey raise an important question: they ask whether the practice of the United States of America of choosing targets based on an analysis of patterns of activity in the area captured by drones complies with the law.7 Although it is difficult to make sweeping statements about any particular intelligence-gathering methodology, the use of the scale provides insights into circumstances in which employing this methodology is problematic. According to the former United States Ambassador to Pakistan, Cameron Munter, whenever a drone pilot encounters a male between the ages of twenty and forty, the pilot may justifiably treat this individual as though he were exhibiting suspicious patterns of behavior, and, for that reason, determine that this person merits surveillance.8 On 17 March, 2011, an American pilot applied this framework for identifying suspicious patterns of activity and

 7

Knuckey, Cavallaro, and Sonnenberg, Living under Drones: Death, Injury and Trauma to Civilians from U.S. Drone Practices in Pakistan, 114. 8 Tara McKelvey, “A Former Ambassador to Pakistan Speaks Out,” Daily Beast, November 20, 2012, http://thedailybeast.com/articles/2012/11/20/a-formerambassador-to-pakistan-speaks-out.html (accessed April 15, 2015).



390

Chapter Nine

fired four missiles into a bus depot in the town of Datta Khel in Pakistan.9 The deputy director of the Central Intelligence Agency, Steve Kappes, explained that the pilot saw “a lot of military-age males” at that location.10 Since the United States of America instructs its forces to consider men between the ages of twenty and forty to be associated with terrorist activity, the pilot concluded that the group was a lawful target.11 In fact, the meeting consisted of tribal elders, who had gathered to settle a local dispute concerning a chromite mine.12 On the application of the scale, parties to the conflict may not proceed with an attack when it is merely “very likely” that the proposed target is a military objective. Rather, they should be “sure” that the target is a military objective, in the sense that the remaining possibility that the proposed target is a civilian object is “fanciful” or “whimsical.” It could be that the pilot thought that because terrorist groups consist of military-aged men, a gathering of many military-aged males in an area where militants were known to operate indicated that it was “very likely” that militants assembled at the bus depot. At the same time, it was not “reasonable” for the pilot to believe that the only credible explanation for why a group of men would congregate in this fashion related to terrorist activities. For one thing, in Pakistan it is customary for tribal leaders to gather in order to settle local disputes.13 Another possible explanation for the gathering is that the men congregated to pray. Since it was not in the circumstances a “fanciful” possibility that the men were civilians, it was unlawful for the pilot to carry out the strike. The mistaken targeting of civilians would have been avoided had the United States of America collected information regarding the context of the meeting; this could take the form of intelligence either about the purpose of the meeting or the identity of individuals who were present. Not only was this particular meeting open to the public, but the elders had also informed the Pakistani Army about it ten days in advance.14

 9

Arianna Huffington, “‘Signature Strikes’ and the President’s Empty Rhetoric on Drones,” Huffington Post, July 10, 2013, http://www.huffingtonpost.com/ariannahuffington/signature-strikes-and-the_b_3575351.html (accessed April 15, 2015). 10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid.



Conclusion

391

As well, another practice followed from this system of choosing targets on the basis of observing patterns of activity in areas: American drone pilots striking convoys of vehicles which bear the characteristics of Al Qaeda or Taliban leaders, provided that these pilots judge the risk of inflicting civilian casualties to be low.15 On the application of the scale, such attacks comply with the principle of distinction only if the characteristics of vehicles driven by militants are so distinct that there would be a “fanciful” or very remote possibility that the vehicles are civilian. Given that both the Taliban16 and Al Qaeda17 neither wear a distinctive sign nor mark their vehicles to distinguish them from those driven by civilians,18 the possibility of confusing the Taliban’s and Al Qaeda’s vehicles with civilian vehicles is neither “fanciful” nor “whimsical.” For instance, the vehicles could be driving in a convoy formation, because a tribal leader posted bodyguards to escort his five wives and twelve children. Past events demonstrate that when pilots align particular characteristics that they associate with convoys driven by militia with groups of vehicles, they may mistakenly target civilians. During Operation Allied Force 1999, a NATO pilot concluded that the movement, size, shape, colour, spacing and high speed of vehicles in a convoy indicated that Serbian troops were inside the vehicles.19 After the attack, however, it transpired that the convoy consisted of Albanian refugees, who were fleeing ethnic cleansing.20 Previous instances in which groups of civilian

 15

Eric Schmitt and David E. Sanger, “Pakistan Shift Could Curtail Drone Strikes,” New York Times, February 22, 2008, http://www.nytimes.com/2008/02/22/washington/22policy.html?_r=1& (accessed April 14, 2015). 16 Assistant Attorney General Jay S. Bybee, Memorandum from Assistant Attorney General Jay S. Bybee to the White House Counsel on the Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949 (United States Department of Justice, February 7, 2002), 3. 17 Assistant Attorney General Jay S. Bybee, Memorandum for Alberto R. Gonzales Counsel to the President and William J. Haynes II General Counsel of the Department of Defense Re Application of Treaties and Laws to Al Qaeda and Taliban Detainees (United States Department of Justice, January 22, 2002), 10. 18 Harold Hongju Koh, “Remarks at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law” (speech, The Annual Meeting of the American Society of International Law, Washington, DC, March 25, 2010). 19 “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 67. 20 Ibid., par. 63.



392

Chapter Nine

vehicles have been mistaken for a military convoy surely should suggest to armed forces that it is not a “fanciful” possibility that vehicles on a road are in fact driven by civilians. The analysis of two military scenarios shows that using the footage relayed by a drone camera to analyse patterns of activity, with an eye towards identifying potential targets, does not necessarily provide a pilot with the information required to conclude that he or she has indeed attained the high degree of certainty demanded of the principle of distinction. This is not to say that this intelligence-gathering methodology is not valuable in certain circumstances. For instance, an American drone pilot has recounted how the technology onboard a drone made it possible to identify successfully an improvised explosive device on a road.21 The pilot saw a “strange circle” glowing on the infrared imaging screen.22 In this case, it was common for the militants to douse a tire with gasoline, in order to plant an improvised explosive device, and such devices left a “telltale heat signature.”23 Accordingly, the use of the intelligence-gathering methodology of identifying targets based on observation of suspicious patterns of activity is likely to be unlawful, unless the pattern of activity has such distinct characteristics so as to make it a “fanciful” possibility that the proposed target is in fact a civilian or a civilian object. New perspectives surrounding the issue of whether the principle of distinction permits parties to the conflict to identify targets based on the observation of patterns of suspicious activity demonstrate that the scale is a valuable tool. This discussion shows that it is desirable for researchers to cast their net wide in search of analytical tools, particularly by looking at other areas of law. Currently, the practice of looking beyond international humanitarian law in order to address grey areas in this area of law is in an embryonic stage. The use of the standard of proof of “beyond reasonable doubt” to develop a scale is uncontroversial, because the points on the scale reflect (and bolster) another discovery, which was made in chapter 5. This second finding is that attackers may not use military considerations, such as force protection, to argue that circumstances shape the degree of certainty the principle of distinction requires. At the same time, it is important to reiterate that scholars should use concepts from other areas of

 21 Matthew Power, “Confessions of a Drone Warrior,” GQ Magazine, October 23, 2013, http://www.gq.com/news-politics/big-issues/201311/drone-uav-pilotassassination (accessed March 30, 2015). 22 Ibid. 23 Ibid.



Conclusion

393

law with great care, in order to ensure that they do not introduce into international humanitarian law the theoretical foundations of other areas of law. And, of course, care should be taken to ensure that the use of concepts from other areas of law or disciplines does not revise the current legal architecture. The intentions of states should be respected. In chapter 6, the analysis of the rule of target verification made it possible to put forward a new proposition. In particular, military considerations such as urgency of action have less weight than humanitarian considerations with respect to the application of this rule. This is the case unless taking additional verification measures entails forgoing considerable military advantage. For the purpose of our analysis, military advantage is considerable when a force risks its chances of survival both by carrying out additional verification checks, and also when the troops lack particular reconnaissance resources. What is more, an examination of state practice in that chapter demonstrates that when the likelihood of misidentifying the target is highfor instance, because it is very foggythe commander should not invoke military considerations in order to justify the fact that it is not “feasible” to conduct further surveillance or reconnaissance. This proposition goes against the arguments made by scholars such as Schmitt. Schmitt maintains that commanders may proceed with an attack even if they think that the intelligence is not entirely reliable, provided that the possible harm to civilians resulting from a mistake is not excessive in relation to the military advantage offered by the attack.24 The proposition derived in chapter 6 is, however, in line with the writings of scholars such as Oeter, who argues that commanders should attain “subjective certainty” that the proposed target is a military objective prior to instructing their subordinates to execute the attack.25 The propositions developed in chapter 6 regarding how commanders apply the rule of target verification reflect a higher standard than those drawn in chapter 7 in the context of the principle of the least feasible damage. This is unsurprising, because commanders bear in mind the obligation of the attacker to comply with the principle of distinction when they interpret what forms of verification the rule of target verification requires them to take. Since states understand the term “feasible” to have the same meaning in the context of both the rule of target verification and the principle of the

 24

Schmitt, “The Conduct of Hostilities During Operation Iraqi Freedom: an International Humanitarian Law Assessment,” 88. 25 Oeter, “Methods and Means of Combat,” 3rd ed., 200-201.



394

Chapter Nine

least feasible damage,26 the propositions presented in chapter 7 are equally applicable to the rule of target verification. Therefore, the propositions made in chapter 7 may be used to gauge what obligations the rule of target verification as such places on a commander in the circumstances. In chapter 7, for instance, it was shown that the greater the likelihood that many civilians would be affected by an attack, the more risk a commander may be prepared to assume to the force in selecting means and methods of warfare. Accordingly, the greater the likelihood of misidentifying the target, the less inclined a commander will be to conclude that it is not “feasible” to carry out additional verification measures. Furthermore, the discussion in chapter 7 suggests that it is “feasible” to conduct additional reconnaissance whenever the military advantage entailed in allocating further reconnaissance resources to the current mission is of the same or lower magnitude as the elements of likelihood of mistakenly engaging a civilian object and the magnitude of harm to civilians. In assigning values to the elements of military advantage, likelihood of civilian harm and magnitude of harm to civilians, it is possible to use the scale in chapter 7, albeit in a modified form. Specifically, it is necessary to amend the scale so as to make it fit the context of the rule of target verification. In the case of the element of military advantage, rather than concentrating on the chances that the force will win, the focus should instead be on the extent to which allocating further resources to the current mission may jeopardise a commander’s ability to carry out a competing mission or missions. Thus, on the proposed scale, a commander forgoes “medium” military advantage in taking further verification measures when gathering more intelligence results in it being more likely than not that there are adequate resources to carry out the present as well as a competing military mission. The commander sacrifices “low” military advantage when there is a “high” likelihood that conducting further reconnaissance will leave sufficient resources for a competing mission. By turning to the element of the likelihood of civilian harm, one notices that what is relevant is the likelihood of mistakenly targeting a civilian object, not the likelihood of a certain amount of harm to civilians materialising. Finally, there is no need to modify the definition of the element of

 26 Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, par. 428, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:374; Kenya, The School of Military Police, Law of Armed Conflict Manual Military Basic Course, Précis No. 4, 8, quoted in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2:377.



Conclusion

395

magnitude of harm to civilians. The amended table, which reflects the context of the rule of target verification, is illustrated below. Table for the element magnitude of harm to civilians Intelligence, surveillance or reconnaissance asset

Harm (number of deaths, if the target turns out to be a civilian object) 1-13 14+ 32-64 50-300

Scale of harm Low Medium High Very high

Fig. 9-1

Table for the element likelihood of civilian harm Likelihood of attacking a civilian object

Fig. 9-2



Very low

Low

Medium

High

Very high

Rare

Infrequent

Equal likelihood that the object is a civilian object or a military objective

Good chance that the object is a civilian object

Virtual certainty that the object is a civilian object

Chapter Nine

396

Table for the element military advantage Degree of military advantage forgone if resources allocated to gather more intelligence

Low

Medium

High

Very high

High likelihood of having sufficient resources for a competing mission

More likely than not that there are sufficient resources for carrying out a competing mission

Some resources left to carry out a competing mission, but not enough to gather intelligence of the desired quality

Lack of sufficient resources to carry out a competing mission

Fig. 9-3

Alternatively, practitioners could construct their own scale, provided that they use a common benchmark for assigning values to all three elements. The present author did not draw up a scale in order to study the state practice on the rule of target verification, for it is difficult to express exactly by what degree each type of asset improves the accuracy of target verification. Indeed, there is no available data on the degree to which employing different assets reduces the likelihood of mistakenly concluding that the proposed target is a military objective. Another significant finding, which emerged in chapter 6, is that the concurrent applicability of the principle of discrimination and the rule of target verification means that there are limitations as to which states may invoke lack of resources to argue that it is not “feasible” to undertake a particular verification measure. For example, if a pilot is unable to place a bomb on a target in approximately half of his or her sorties, a state should not bomb military objectives from the air, even if it lacks experienced personnel. Yet the duty to comply with the principle of distinction places even tighter restrictions. Since the principle of distinction does not permit parties to a conflict to invoke lack of resources to lower the degree of certainty required of them, attackers will have to find an alternative intelligence-gathering methodology if they lack a particular reconnaissance option.



Conclusion

397

For instance, imagine that a state possesses only old aircraft, which enable pilots to distinguish between civilian objects and military objectives when they fly at tree-top level. The enemy’s air defence systems pose such threat to the aircraft that they imperil the survivability of the pilot. A commander may have to deploy ground troops, supported not by aircraft but by artillery, in order to comply with the principle of distinction. Imagine, moreover, that a state only has inexperienced pilots, and that the pilots find it difficult to orient themselves whilst they are in the air. A commander is unlikely to dispatch the pilots to carry out a strike, even though he or she could argue that it is not “feasible” to send experienced pilots to carry out the mission. Since the pilots find it challenging to orient themselves in the air, they may fail to locate their target. And a pilot who is unable to identify correctly the location of the target will find it difficult to comply with the principle of distinction. A caveat to the analysis carried out in chapter 6, however, is that due to constraints on the amount of available information, the author had to apply judgment in reconstructing how the commander deliberated. Therefore, the interpretation of state practice entails an element of conjecture, as it reflects the author’s view of how the commander must have deliberated in the circumstances. Unfortunately, until more information becomes available to the public about how commanders reach their decisions in particular situations, scholars will have to offer their own interpretations of how a commander, in all likelihood, arrived at his or her conclusions in a given scenario. That the present author derived these propositions about how commanders apply the rule of target verification after fully examining multiple instances of state practice gives credibility to the analysis. Moreover, the fact that it was possible to identify common trends in state practice also bolsters the conclusions. In all circumstances, it was possible to reconcile the decision-making process of commanders from different countries. Chapter 7 derived six propositions which capture how commanders apply the principle of the least feasible damage to battlefield scenarios. Although these propositions are logical, they are not readily apparent. For instance, an examination of state practice made it evident that the greater the likelihood that civilians will be injured, the greater the likelihood that commanders will place more weight on the element of the magnitude of civilian casualties; in this case, civilian casualties will result unless commanders adopt alternative means and methods of warfare. Commanders are more likely to substitute means and methods of warfare



398

Chapter Nine

for alternatives which pose less danger to civilians when their troops operate in densely populated areas rather than when they conduct military operations near farming communities. Additionally, they may take greater care when fighting in a village which is situated in a jungle and which has houses made of bamboo than when a battle takes place in a city, in which the buildings, having been made from technologically-advanced building materials, are durable. Practitioners may use the propositions for how the principle of the least feasible damage applies to battlefield scenarios, which were suggested in chapter 7, to gain a more nuanced overview of state practice. To illustrate, the American Army Marine Corps Counterinsurgency Field Manual states that the forces should “take some risk”27 across all spectrums of armed conflict. On its face, what degree of risk the standard of “some risk” corresponds to is unclear. The state practice of Russia28 and the Philippines,29 as well as the reasoning of the experts in the Goldstone Report,30 suggest that states should be prepared to forgo at least “medium” military advantage, as long as there is a “high” likelihood that the attack may inflict a “medium” magnitude of harm to civilians. From these sources, it appears that by requiring that the force assume “some risk,”31 the United States of America instructs its armed forces to forgo at least “medium” military advantage in selecting the means and methods of warfare across all spectrums of armed conflict. On our scale, when a commander believes that his or her forces are more likely to prevail over the adversary than the enemy is to win the military operation, and when the means and methods of warfare are substituted with civilian-friendly alternatives, the commander forgoes “medium” military advantage. The likelihood of civilians being injured or killed is “high” when there is a good chance that civilians will be harmed. If the use of particular means

 27

The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-13. 28 Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 349. 29 Philippines, Department of National Defense, Joint Circular on Adherence to IHL and Human Rights 2-91, par. 2(c). 30 U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 140-141 par. 594-595. See also 158 par. 698-700. 31 The United States Army, The U.S. Army Marine Corps Counterinsurgency Field Manual, par. 7-13.



Conclusion

399

and methods of warfare inflicts approximately between fourteen and thirty deaths, then it has resulted in a “medium” magnitude of harm to civilians. It is easier to apply the scale to determine whether a commander complied with the principle of the least feasible damage when the decision relates to the employment of a particular type of materiel, such as mortars, against a military objective or a group of combatants. That said, the scale is admittedly much more difficult to use to analyse the planning of an entire military operation. Indeed, while planning such an operation, the commander carefully chooses how best to combine a mix of different assets, such as tanks, aircraft and artillery. While it may not be “feasible” to forgo altogether the employment of particular means of warfare, such as artillery, it may be possible to substitute a number of artillery pieces with a civilian-friendly alternative. Of course, it is difficult to say with precision how many units of particular means of warfare it is “feasible” to forgo in the circumstances. This is because any attempt to gauge which party to the conflict enjoys military and tactical superiority is necessarily subjective and open to debate. There is also room for disagreement regarding exactly how much firepower a commander has to use in order to increase his or her chances of successfully completing the mission. Thus, the assessment of how much military advantage a commander will sacrifice in the circumstances if a specific number of units of a particular means of warfare are substituted with alternatives entails a degree of conjecture. Notwithstanding these difficulties, it is possible to apply the scale to gauge whether a commander, in planning a military operation, complied with the principle of the least feasible damage. In order to do so, it is necessary to assign approximate values to the elements of military advantage, likelihood of civilian harm and magnitude of harm to civilians. With an eye towards estimating the magnitude of harm to civilians that a commander anticipated, one must calculate how many unitsof each type of materiela commander used. A certain magnitude of harm to civilians should be assigned to each type of materiel, according to the scale. Afterwards, the practitioner should estimate the overall magnitude of harm that a commander could anticipate inflicting while employing that combination of materiel. Practitioner could attain this estimate both by calculating the ratio of materiel and by approximating where on the scale the overall magnitude of civilian harm lies for each type of materiel represented in the ratio. Alternatively, one could calculate the proportion of civilian casualties that resulted from the use of different materiel.



400

Chapter Nine

For instance, imagine that a commander used eight aircraft (a medium scale of harm), four non-precision artillery units (a high level of harm) and four non-precision tanks (a medium level of harm). At this point, it is necessary to mention that by 1973 tanks could successfully engage a military objective using just two, and in some cases a single, munition, but this varies according to the model.32 The non-governmental organisation Action on Armed Violence estimates that a tank shell produces almost as much civilian harm as a single mortar shell.33 In our example, a commander used a total of sixteen units of materiel, with a ratio of three units of materiel that inflict “medium” magnitude of harm to civilians to one unit of materiel that inflicts a “high” magnitude of harm to civilians. Specifically, the ratio here is twelve (tanks and aircraft) to four (artillery), or three to one. This ratio suggests that the overall scale of civilian casualties, which a commander could anticipate, is much closer to the “medium” threshold than to the “high” threshold. According to a different calculation, 75 percent of civilian casualties resulted from materiel that inflicted a “medium” amount of harm to civilians, while 25 percent of civilian casualties followed from materiel that generates “high” civilian casualties. The author calculated these figures by taking the total number of units of materiel, here sixteen, and designating it as 100 percent. When the number of artillery units, here four, is multiplied by one hundred and divided by the total number of units, here sixteen, it emerges that artillery comprised 25 percent of the materiel. If one assumes that each type of materiel fired the same number of munitions, then the use of artillery inflicted 25 percent of the civilian casualties. Of course, in order further to refine the analysis, it is necessary to incorporate the rate of fire. Clearly, there is a difference between firing an artillery shell every four seconds and every four minutes. Therefore, the scale of anticipated civilian harm should be adjusted in light of the information about the average rate of fire. Subsequently, practitioners should estimate the likelihood that a commander anticipated that there were civilians within the blast radius of the munition. To do this, practitioners may refer to the information concerning the kill and injury radiuses of the various munitions. The more information there is about the location of buildings with high civilian concentrations, about how closely together the buildings were spaced and

 32

Scales Jr., Certain Victory: The U.S. Army in the Gulf War, 9-10. Dodd and Perkins, An Explosive Situation: Monitoring Explosive Violence in 2012, 28. 33



Conclusion

401

about how many civilians remained in the area, the more accurate the prediction will be about the likelihood of an explosion affecting civilians. The next point of enquiry is the degree of military advantage that a commander anticipated sacrificing in employing a combination of means of warfare that avoided or minimised harm to civilians. Here, it is useful to know whether a commander expected that his or her troops would be outnumberedbe it numerically or technologically. Information available to a commander pertaining to the performance of enemy troops in previous military operations can be used to conjecture what opposition that commander could expect to encounter. Whether either of the parties to the conflict enjoyed an advantagebecause of one party’s having been located in a populated or mountainous area, or because of that party’s having had better training or another relevant characteristicis also relevant. It is, moreover, valuable to establish the troops’ rate of fire as well as the rate of fire that was necessary to prevent the enemy from manning the materiel or to destroy the adversary’s materiel. For instance, it is known that in 2008 Georgia subjected Tskhinvali to intensive artillery shelling,34 with its troops firing shells every fifteen to twenty seconds.35 In light of the testimony military experts gave before the International Criminal Tribunal for the former Yugoslavia in the case of Prosecutor v. Gotovina, it appears that this rate of fire is far greater than is necessary to prevent the enemy from moving and manning the materiel.36 Indeed, it reportedly is sufficient to fire four to five artillery or mortar rounds per hour in order to disorient the enemy and to prevent the adversary from manning the materiel.37 That the Georgian troops were exposed to low levels of danger as a result of their intensive artillery

 34

Independent International Fact-Finding Mission on the Conflict in Georgia, Report Volume II, 340. 35 Ibid., 339. 36 Konings, “Addendum to Expert Report 'Fire Support during Operation Storm'” Doc. P2160, 5-6, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1169 (International Criminal Tribunal for the former Yugoslavia April 15, 2011); Corn, “Expert Report” Doc. T. 21542, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1170 (International Criminal Tribunal for the former Yugoslavia April 15, 2011). 37 Konings, “Addendum to Expert Report 'Fire Support during Operation Storm'” Doc. P2160, 5-6, quoted in Prosecutor v. Gotovina, Case No. IT-06-90-T T. Ch.I., Judgment, par. 1169 (International Criminal Tribunal for the former Yugoslavia April 15, 2011).



402

Chapter Nine

shelling points to the fact that Georgia did not take any precautionary measures to safeguard the civilians. Of course, the smaller the discrepancy between the intensity of firepower necessary to prevent the enemy from moving and manning the equipment and the intensity of fires that the attacker actually used, the more challenging it is to assess what degree of military advantage an attacker eschewed in order to reduce the danger to civilians. This is because the information available about how much firepower is necessary to disorient the enemy38 does not accurately reflect the specific situation the commander faced. What is more, since each battlefield scenario is unique, how much firepower a commander had to use in order to increase his or her prospects of successfully completing the mission will be up for debate. For instance, an anonymous Israeli soldier told the non-governmental organisation Breaking the Silence that when the troops were not aware of the exact danger the enemy posed to them, they fired three shells at the enemy each minute.39 According to this soldier, it was lawful for the force to employ such a rate of fire in the circumstances.40 Even though a practitioner assigns approximate values to elements such as military advantage, he or she does not strip the analysis of its credibility. Since commanders lack complete information about the situation on the battlefield41 and since military planning is an art rather than a science, states do not expect their military leaders to make precise calculations or predictions. In fact, during Operation Protective Edge 2014, senior Israeli commanders left local commanders on the ground apply their own judgment while evaluating what would constitute a “low,” a “medium” or a “high” amount of harm to civilians.42 Furthermore, such estimates regarding the elements of military advantage, likelihood of civilian harm and magnitude of harm to civilians are consistent with the intention of states that drafted the rules of targeting in such a way as to leave it to commanders to exercise judgment in interpreting what the rule requires in a given situation.43 For all that, however, practitioners must attend to those

 38

Ibid. Breaking the Silence, This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014), 67-68. 40 Ibid. 41 Ibid., 208-209. 42 Ibid., 226-227. 43 Australian Defence Force, The Manual on the Law of Armed Conflict ADFP 37, par. 551; “Final Report to the Prosecutor by the Committee Established to Review 39



Conclusion

403

factors which bore on the military advantage a commander would have sacrificed had a particular type of materiel been substituted with its alternative, and also arrive at a reasonable estimate of the value of the element of military advantage. As well, the same is also true when practitioners estimate the likelihood of killing civilians that a commander foresaw and the extent of harm to civilians he or she expected to be inflicted. The application of theories from the field of psychology in chapter 8 demonstrates that commanders’ assessments of whether circumstances do not permit them to give a warning to civilians about a forthcoming military operation involve a multitude of cognitive processes. In fact, the discussion shows that the brain is much better suited to qualitative rather than quantitative judgments about the likely occurrence of particular events. As chapter 8 reveals, an examination of some of the cognitive processes involved in how individuals choose between alternative options and make decisions under conditions of uncertainty makes it clear that the open-ended way in which the rules of targeting are formulated suits the way that the human brain processes information. In particular, the human brain has developed in a way that enables it to manage ambiguity and to make holistic assessments about situations. Scholarly research in psychology suggests that commanders are able to make quick and sound judgments, even though they do not quantify with precision elements such as military advantage and the likelihood of civilians being killed when they apply the rules of targeting. Moreover, the fact that the human brain excels at making holistic assessments points to the fact that it is undesirable to define the rules of targeting with mathematical precision. More broadly, as the discussion in this book makes clear, the rules of targeting are ill-suited to the conceptualisation carried out in mathematics and precise measurements. This is due not only to the unpredictable nature of the battlefield environment but also to the complex way in which the troops of the parties to the conflict interact with one another. As a result, it is impossible to develop a comprehensive guidance which may be applied, without consideration of the situation at hand, to give a precise answer regarding the point at which it is no longer “feasible” to adopt a particular measure. Nor is it possible to say exactly how many casualties, among a commander’s own troops, would lead him

 the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,” par. 29; Watkin, “Assessing Proportionality: Moral Complexity and Legal Rules,” 7.



404

Chapter Nine

or her to conclude that the circumstances do not permit a warning to civilians about the forthcoming attack. Applying theories from the field of psychology in order to understand better how commanders apply the requirement to issue an advance warning of an attack, unless circumstances do not permit, chapter 8 shows that it is valuable to use theories outside international humanitarian law in order to enrich the analysis. Availing of psychology to generate new insights into international humanitarian law is uncontroversial, because it does not clash with the intentions of states. Specifically, human beings have the same cognitive processes and it is human beings who represent states on an international arena. Since the same cognitive processes guide the drafters of the rules of targeting when processing information, and since they formulated the rules in such a way as to reflect how commanders make decisions, psychology merely illuminates how states anticipated that commanders would interpret the rules of targeting. Overall, it is desirable for lawyers of international humanitarian law to broaden the enquiry beyond their own discipline.





BIBLIOGRAPHY

Audiovisual Materials BBC2. Moral Combat - NATO at War. BBC2, March 12, 2000. “Network of Hezbollah Tunnels Discovered in Lebanon.” Happening Now. Video. New York: Fox News, May 31, 2011. Rath, Arun, and David Fanning. “Frontline.” Rules of Engagement. DVD. Arlington, Virginia: PBS, February 19, 2008.

Articles Andrew, Martin. “The Russian Experience of Urban Combat: Some Lessons from Central Asia.” Australian Army Journal 1, no. 2 (2003): 163-167. Asymmetric Warfare Group. “Russian-Republic of Georgia Conflict.” Joint Centre for Operational Analysis Journal 11, no. 2 (2009): 1. Barber, Rebecca. “The Proportionality Equation: Balancing Military Objectives and Civilian Lives in the Armed Conflict in Afghanistan.” Journal of Conflict and Security Law 15, no. 3 (2010): 467-500. Bay, Matteo F., and Javier Ruiz Calzado. “Tetra Laval II: The Coming of Age of the Judicial Review of Merger Decisions.” World Competition 28, no. 4 (2005): 433-453. Bellinger III, John B., and William J. Haynes II. “A U.S. Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law.” International Review of the Red Cross 89, no. 866 (2007): 443-471. Belt, Lieutenant Commander Stuart Walters. “Missiles Over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas.” Naval Law Review 47 (2000): 115-175. Blank, Laurie R. “After ‘Top Gun’: How Drone Strikes Impact the Law of War.” University of Pennsylvania Journal of International Law 33, no. 3 (2012): 675-718. —. “The Application of IHL in the Goldstone Report: a Critical Commentary.” Yearbook of International Humanitarian Law 12 (2009): 347-402.

406

Bibliography

Bourbonnière, Michel. “Law of Armed Conflict (LOAC) and the Neutralisation of Satellites or Ius in Bello Satellitis.” Journal of Conflict and Security Law 9, no. 1 (2004): 43-69. Canestaro, Nathan A. “Legal and Policy Constraints on the Conduct of Aerial Precision Warfare.” Vanderbilt Journal of Transnational Law 37 (2004): 431-484. Catanzaro, Jean, Mikel Petty, and Frederic McKenzie. “An Experimental Application of a Trait-based Personality Model to the Simulation of Military Decision-making.” Information and Security 12, no. 1 (2003): 75-92. Clark, General Wesley K. “The United States and NATO: The Way Ahead.” Parameters Winter (1999-2000): 2-14. Corn, Lieutenant Colonel Gary P. and Geoffrey S. Corn, “The Law of Operational Targeting: Viewing the LOAC Through an Operational Lens.” Texas International Law Journal 47 (2012): 337-398. Corn, Geoffrey S. “Targeting, Command Judgment, and a Proposed Quantum of Information Component: A Fourth Amendment Lesson in Contextual Reasonableness.” SelectedWorks (February 2011) 1-51. http://works.bepress.com/cgi/viewcontent.cgi?article=1005&context=g eoffrey_corn. Cornish, Paul. “Myth and Reality: U.S. and U.K. Approaches to Casualty Aversion and Force Protection.” Defense Studies 3, no. 2 (2003): 121128. Crandall, Carla. “Ready...Fire...Aim! A Case for Applying Due Process Principles Before Engaging in Drone Strikes.” Florida Journal of International Law 24 (2012): 55-90. DeSaussure, Ariane L. “The Role of the Law of Armed Conflict During Persian Gulf War: An Overview.” Air Force Law Review 37 (1994): 41-68. Drake, Aaron M. “Current United States Air Force Drone Operations and Their Conduct in Compliance with International Humanitarian Law-an Overview.” Denver Journal of International Law and Policy 39, no. 4 (2010-2011): 629-660. Dunlap, Charles J. “Kosovo, Casualty Aversion and the American Military Ethos: a Perspective.” U.S. Air Force Academy Journal of Legal Studies 10 (1999-2000): 95-105. Elhefnawy, Nader. “Defensive Armour Deployments in Urban Areas.” ARMOR, January-February (2003): 14-17. Engel, Christoph. “Preponderance of the Evidence Versus Intime Conviction: A Behavioral Perspective on a Conflict between American and Continental European Law.” Vermont Law Review 33 (2009): 435-467.

A Toolbox for the Application of the Rules of Targeting

407

Farrell, Theo. “The Dynamics of British Military Transformation,” International Affairs 84, no. 4 (2008): 777-807. Gigerenzer, Gerd, and Daniel G. Goldstein. “Reasoning the Fast and Frugal Way: Models of Bounded Rationality.” Psychological Review 103, no. 4 (1996): 650-669. Grant, Rebecca. “Altitude: Contrary to Popular Opinion, Lower Is Not Always Best.” Air Force Magazine 84, no. 10 (2001): 52-57. Green, Fred. “Remarks by Fred Green.” American Society of International Law Proceedings 86 (1992): 62. Hampson, Françoise. “Proportionality and Necessity in the Gulf Conflict.” American Society of International Law Proceedings 86 (1992): 45-54. Haque, Adil Ahmad. “Killing in the Fog of War.” Southern California Law Review 86 (2012): 63-116. Harris, J.W. “The Case of the Slippery Equity.” The Modern Law Review 38, no. 5 (1975): 557-563. Hays Parks, W. “Air War and the Law of War.” Air Force Law Review 32 (1990): 1-225. —. “Conventional Weapons and Weapons Reviews.” Yearbook of International Humanitarian Law 8 (2005): 55-142. John-Hopkins, Michael. “Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts.” International Review of the Red Cross 92, no. 878 (2010): 469-493. Jones, Bryan. “Bounded Rationality.” Annual Review of Political Science 2 (1999): 297-321. Kahl, Colin H. “How We Fight.” Foreign Affairs 85, no. 6 (2006): 83-101. Kennedy, Duncan. “Form and Substance in Private Law Adjudication.” Harvard Law Review 89 (1976): 1685-1778. Kilcullen, David. “The Essential Debate: Combined Arms and the Close Battle in Complex Terrain.” Australian Army Journal 1, no. 2 (2003): 67-80. Klein, Gary. “Naturalistic Decision Making.” Human Factors 50, no. 3 (2008): 456-460. Lewis, Michael W. “The Law of Aerial Bombardment in the 1991 Gulf War.” American Journal of International Law 97 (2003): 481-509. Matheson, Michael J. “Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions.” American University Journal of International Law and Policy 2 (1987): 419-431. McDermott, Roger N. “Russia’s Conventional Armed Forces and the Georgian War.” Parameters 39, no. 1 (2009): 65-80. Melzer, Nils. “Interpretive Guidance on the Notion of Direct Participation

408

Bibliography

in Hostilities Under International Humanitarian Law.” International Review of the Red Cross 90, no. 872 (2008): 991-1047. Neuman, Noam. “Applying the Rule of Proportionality: Force Protection and Cumulative Assessment in International Law and Morality.” Yearbook of International Humanitarian Law 7 (2004): 79-112. Parkerson, John Embry Jr. “United States Compliance with Humanitarian Law Respecting Civilians During Operation Just Cause.” Military Law Review 133 (1991): 31-66. PoKempner, Dinah, Marc Garlasco, and Bonnie Docherty. “Off Target on the Iraq Campaign: A Response to Professor Schmitt.” Yearbook of International Humanitarian Law 6 (2003): 111-125. Quéguiner, Jean-François. “Precautions Under the Law Governing the Conduct of Hostilities.” International Review of the Red Cross 88, no. 864 (2006): 793-821. Radsan, Afsheen John, and Richard Murphy. “Measure Twice, Shoot Once: Higher Care for C.I.A.-targeted Killing.” University of Illinois Law Review 2011 (2011): 1201-1241. Renn, Ortwin, William J. Burns, Paul Siovic, and Jeanne X. Kasperson. “The Social Amplification of Risk: Theoretical Foundations and Empirical Applications.” Journal of Social Issues 48, no. 4 (1992): 137-160. Richard A Lacquement Jr. “The Casualty Aversion Myth.” Naval War College Review 57, no. 1 (2004): 39-57. Rogers, A.P.V., and Iain J. MacLeod. “The Use of White Phosphorus and the Law of War.” Yearbook of International Humanitarian Law 10 (2007): 75-97. Rogers, A.P.V. “Zero-casualty Warfare.” International Review of the Red Cross 837 (2000): 165-181. Roscini, Marco. “Targeting and Contemporary Aerial Bombardment.” International and Comparative Law Quarterly 54, no. 2 (2005): 411443. Rowe, Peter. “Kosovo 1999: The Air CampaignHave the Provisions of Additional Protocol I Withstood the Test?” International Review of the Red Cross 82, no. 837 (2000): 147-164. Sassòli, Marco. “Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to Be Clarified.” International Law Studies 90 (2014): 308-340. Schmitt, Michael N. “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance.” Virginia Journal of International Law 50, no. 4 (2009-2010): 795-839. —. “Precision Attack and International Humanitarian Law.” International

A Toolbox for the Application of the Rules of Targeting

409

Review of the Red Cross 87, no. 859 (2005): 445-466. —. “The Conduct of Hostilities During Operation Iraqi Freedom: An International Humanitarian Law Assessment.” Yearbook of International Humanitarian Law 6 (2003): 73-109. —. “The Principle of Discrimination in 21st Century Warfare.” Yale Human Rights and Development Law Journal 2 (1999): 143-182. Schwartz, David L., and Christopher B. Seaman. “Standards of Proof in Civil Litigation: An Experiment from Patent Law.” Harvard Journal of Law & Technology 26, no. 2 (2013): 430-480. Shamash, Hamutal. “How Much Is Too Much? An Examination of the Principle of Jus in Bello Proportionality?” Israel Defense Forces Law Review 2 (2005-2006): 103-148. Sharkey, Noel. “Death Strikes from the Sky: The Calculus of Proportionality.” Technology and Society Magazine 28, no. 1 (2009): 16-19. Simon, Herbert A. “A Behavioral Model of Rational Choice.” The Quarterly Journal of Economics 69, no. 1 (1955): 99-118. —. “Bounded Rationality in Social Science: Today and Tomorrow.” Mind & Society 1 (2000): 25-39. Slovic, Paul, Melissa Finucane, Ellen Peters, and Donald G. MacGregor. “Risk as Analysis and Risk as Feelings: Some Thoughts about Affect, Reason, Risk, and Rationality.” Risk Analysis 24, no.2 (2004): 311-322. Stephens, Dale, and Michael W. Lewis. “The Law of Armed Conflict: A Contemporary Critique.” Melbourne Journal of International Law, 6, no.1 (2005): 1-31. Summers, Robert S. “Professor MacCormick on H. L. A. Hart’s Legal Theory.” American Journal of Comparative Law 31 (1983): 481-488. Tversky, Amos, and Daniel Kahneman. “Advances in Prospect Theory: Cumulative Representation of Uncertainty.” Journal of Risk and Uncertainty 5 (1992): 297-316. Vautravers, Alexandre. “Military Operations in Urban Areas.” International Review of the Red Cross 92, no. 878 (2010): 437-452. Volokh, Alexander. “n Guilty Men.” University of Pennsylvania Law Review 146 (1997): 173-216. Wagner, Markus. “The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems.” Vanderbilt Journal of Transnational Law 47 (2014): 1-54. Watkin, Kenneth. “Assessing Proportionality: Moral Complexity and Legal Rules.” Yearbook of International Humanitarian Law 8 (2005): 3-53.

410

Bibliography

Wright, Jason D. “‘Excessive’ Ambiguity: Analysing and Refining the Proportionality Standard.” International Review of the Red Cross 94, no. 886 (2012): 819-854.

Books Ali, Maulana Muhammad. English Translation of the Holy Quran: With Explanatory Notes. Edited by Zahid Aziz. Wembley: Ahmadiyya Anjuman Lahore Publications, 2010. Anand, Paul. Foundations of Rational Choice Under Risk. Oxford: Clarendon Press, 1993. Anderson, Terry, and Thomas Gardner. Criminal Law. 12th ed. Stamford: Cengage Learning, 2014. Atkinson, Rick. Crusade: The Untold Story of the Persian Gulf War. New York: Houghton Mifflin Company, 1993. Bailey, Major General J.B.A. Field Artillery and Firepower. Annapolis, Maryland: Naval Institute Press, 2004. Barnett, Michael, and Martha Finnemore. “Political Approaches.” In The Oxford Handbook on the United Nations, edited by Thomas Weiss and Sam Daws, 41-57. Oxford: Oxford University Press, 2007. Bartolini, Giulio. “Air Operations Against Iraq (1991 and 2003).” In The Law of Air Warfare: Contemporary Issues, edited by Natalino Ronzitti and Gabriella Venturini, 227-272. Utrecht: Eleven International Publishing, 2006. Bernstein, Peter. Against the Gods: The Remarkable Story of Risk. Toronto: John Wiley & Sons, 1996. Biddle, Stephen. Military Power: Explaining Victory and Defeat in Modern Battle. Princeton: Princeton University Press, 2004. Bimal Kanti, Paul. Environmental Hazards and Disasters: Contexts, Perspectives and Management. Oxford: John Wiley & Sons Ltd., 2011. Biuk-Aghai, Robert P. et al. “Individual Movement Behaviour in Secure Physical Environments: Modelling and Detection of Suspicious Activity.” In Behaviour Computing: Modelling, Analysis, Mining and Decision, edited by Longbing Cao and Philip S. Yu, 241-253. London: Springer-Verlag, 2012. Blackstone, William. Commentaries on the Laws of England. Vol. 4. Oxford: Clarendon Press, 1766. Boothby, William. The Law of Targeting. Oxford: Oxford University Press, 2012. Bothe, Michael, Waldemar Solf, and Karl Josef Partsch. New Rules for

A Toolbox for the Application of the Rules of Targeting

411

Victims of Armed Conflict. London: Martinus Nijhoff Publishers, 1982. Breakwell, Glynis. The Psychology of Risk. Cambridge: Cambridge University Press, 2007. Brody, David C., and James R. Acker. Criminal Law. 2nd ed. London: Jones and Bartlett Publishers International, 2010. Brown, Neil. “Issues Arising from Coalition Operations: An Operational Lawyer’s Perspective.” In International Law and Military Operations. vol. 84, edited by Michael D. Carsten, 227-234. Newport, Rhode Island: United States Naval War College International Law Studies, 2008. Bryant, David J. Making Naturalistic Decision Making “Fast and Frugal.” Toronto: Defence Research Development Canada, 2002. Chesterton, Gilbert K. “The Methuselahite.” In All Things Considered, 118-125. Charleston: BiblioBazaar LLC., 2006. Christopher, Paul. The Ethics of War and Peace: An Introduction to Legal and Moral Issues. 3rd ed. Upper Saddle River: Pearson Prentice Hall, 2004. Cohen, Ariel, and Robert E. Hamilton. The Russian Military and the Georgia War: Lessons and Implications. Carlisle: United States Strategic Studies Institute, June 2011. Cole, Alan. “Legal Issues in Forming the Coalition.” In The War in Afghanistan: A Legal Analysis. vol. 85, edited by Schmitt, Michael N., 141-153. Newport, Rhode Island: Naval War College, 2009. Cordesman, Anthony. The Lessons and Non-lessons of the Air and Missile Campaign in Kosovo. Westport: Praeger Publishers, 2001. Dale, Stephens. “Counterinsurgency and Stability Operations: a New Approach to Legal Interpretation.” In The War in Iraq: A Legal Analysis. vol. 86, edited by Raul Pedrozo, 289-321. Newport, Rhode Island: Naval War College, 2010. Dewar, Colonel Michael. War in the Streets: The Story of Urban Combat from Calais to Khafji. Devon: David & Charles Plc., 1992. Dinstein, Yoram. “Collateral Damage and the Principle of Proportionality.” In New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, 211-224. New York: Transnational Publishers, 2005. —. The Conduct of Hostilities Under the Law of International Armed Conflict. 2nd ed. Cambridge: Cambridge University Press, 2010. Dinstein, Yoram, Charles Garraway, and Schmitt, Michael N. The Manual on the Law of Non- International Armed Conflict with Commentary. Sanremo: International Institute of Humanitarian Law, 2006. Dunlap, Charles J. “Come the Revolution: A Legal Perspective on Air

412

Bibliography

Operations in Iraq Since 2003.” In The War in Iraq: A Legal Analysis. vol 86, edited by Raul Pedrozo, 139-154. Newport, Rhode Island: Naval War College, 2010. —. “Legal Issues in Coalition Warfare: a U.S. Perspective.” In The Law of War in the 21st Century: Weaponry and the Use of Force. vol. 82, edited by Anthony M. Helm, 221-231. Newport, Rhode Island: Naval War College, 2006. Elster, Jon. “Introduction.” In Rational Choice, edited by Jon Elster, 1-26. Oxford: Basil Blackwell Ltd., 1986. Evans, Air Marshal David. War: a Matter of Principles. London: Macmillan Press Ltd., 1997. Evans, Michael. City Without Joy: Urban Military Operations into the 21st Century. Australian Defence College Occasional Series. Canberra: Department of Defence, 2007. Fox, Craig. “Wittgenstein on Meaning and Meaning-blindness.” In Wittgenstein: Key Concepts, edited by Kelly Dean Jolley, 27-40. Durham: Acumen, 2010. Futrell, Robert F. The United States Air Force in Korea 1950-1953. Revised. Washington, DC: Office of Air Force History, United States Air Force, 1983. Gigerenzer, Gerd. “The Adaptive Toolbox.” In Bounded Rationality: The Adaptive Toolbox, edited by Gerd Gigerenzer and Selten Reinhard, 37-50. 2001: The M.I.T. Press, London. Greenwood, Christopher. “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict.” In Essays on the War in International Law, edited by Christopher Greenwood, 555-592. London: Cameron May, 2007. Guymon, CarrieLyn D. Digest of United States Practice in International Law. Oxford: Oxford University Press, 2012. Hacking, Ian. “Risk and Dirt.” In Risk and Morality, edited by Aaron Doyle and Richard V. Ericson, 22-47. Toronto: University of Toronto Press Inc., 2003. Hallion, Richard P. Storm Over Iraq: Air Power and the Gulf War. Washington, DC: Smithsonian Institute Press, 1992. Hampson, Françoise. “Means and Methods of Warfare in the Conflict in the Gulf.” In The Gulf War 1990-1991 in International and English Law, edited by Peter Rowe, 89-110. London: Sweet & Maxwell, 1993. Hart, H. L. A. The Concept of Law. 2nd ed. Oxford: Oxford University Press, 1997. —. The Concept of Law. 1st ed. Oxford: Oxford University Press, 1994. Hasik, James M., and Michael Russell Rip. The Precision Revolution:

A Toolbox for the Application of the Rules of Targeting

413

G.P.S. and the Future of Aerial Warfare. Annapolis: Naval Institute Press, 2002. Henckaerts, Jean-Marie, and Louise Doswald-Beck. Customary International Humanitarian Law. vol. 1. Cambridge: Cambridge University Press, 2005. —. Customary International Humanitarian Law. vol. 2. Cambridge: Cambridge University Press, 2005. Henderson, Ian. The Contemporary Law of Targeting. Leiden: Martinus Nijhoff Publishers, 2009. Holmes, Tony. U.S. Navy Hornet Units of Operation Iraqi Freedom: Part One. Oxford: Osprey Publishing, 2004. Huang, Alexander Chieh-Cheng. “Transformation and Refinement of Chinese Military Doctrine: Reflection and Critique on the P.L.A.’s View.” In Seeking Truth from Facts: A Retrospective on Chinese Military Studies in the Post-Mao Era, edited by James C. Mulvenon and Andrew N.D. Yang, 131-140. Santa Monica: RAND Corporation, 2001. Hughes, Graham. “Common Law Systems.” In Fundamentals of American Law, ed. Alan B. Morrison, 9-26. New York: Oxford University Press, 1996. Jensen, Eric T., Derek Grimes, and Joseph B. Berger. Operational Law Handbook. Charlottesville: The Judge Advocate General’s Legal Centre and School, 2004. Johnson Dana J., Preston Niblack, and James A. Winnefeld. A League of Airmen: U.S. Air Power in the Gulf War. Santa Monica: RAND Corporation, 1994. Johnson, David E. Learning Large Lessons: the Evolving Roles of Ground Power and Air Power in the Post-Cold War Era. Santa Monica: RAND Corporation, 2007. Jordan, David. “Air and Space Warfare,” in Understanding Modern Warfare. ed. David Jordan, 178-223. Cambridge: Cambridge University Press, 2008. Kaczorowska, Alina. Public International Law. London: Routledge, 2010. Kalshoven, Frits. Reflections on the Law of War. Leiden: Martinus Nijhoff Publishers, 2007. Kasperson, Roger et al. “The Social Amplification of Risk: Assessing Fifteen Year of Research and Theory.” In The Social Amplification of Risk, edited by Roger Kasperson and Nick Pidgeon, 13-46. Cambridge: Cambridge University Press, 2003. Kazazi, Mojtaba. Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals. The Hague: Kluwer Law International, 1996.

414

Bibliography

Keaney, Thomas A., and Eliot A. Cohen. Gulf War Air Power Survey: Planning and Command and Control. Vol. 1. Washington, DC: United States Government Printing Office, 1993. Klein, Gary A. Sources of Power: How People Make Decisions. Cambridge: M.I.T. Press, 1998. Knight, Frank. Risk, Uncertainty and Profit. New York: Houghton Mifflin Company, 1921. Lonsdale, David J. “Strategy.” in Understanding Modern Warfare, ed. David Jordan, 14-63. Cambridge: Cambridge University Press, 2008. MacCulloch, Angus, and Barry J. Rodger. Competition Law and Policy in the E.C. and U.K. 4th ed. London: Routledge Cavendish, 2008. Mancini, Marina. “Air Operations Against Federal Republic of Yugoslavia (1999).” In The Law of Air Warfare: Contemporary Issues, edited by Natalino Ronzitti and Gabriella Venturini, 273-297. Utrecht: Eleven International Publishing, 2006. March, James. “Bounded Rationality, Ambiguity, and the Engineering of Choice.” In Rational Choice, edited by Jon Elster, 142-156. Oxford: Basil Blackwell Ltd., 1986. Martignon, Laura. “Comparing Fast and Frugal Heuristics and Optimal Models.” In Bounded Rationality: The Adaptive Toolbox, edited Gerd Gigerenzer and Selten Reinhard, 147-172. London: The M.I.T. Press, 2001. McCarthy, James R., and George B. Allison. Linebacker II: A View From the Rock. vol. VI. United States Air Force Southeast Asia Monograph Series. Washington, DC: Office of Air Force History, United States Air Force, 1979. Morgan, Wyn, Michael Katz, and Harvey Rosen. Microeconomics. Berkshire: McGraw-Hill Companies, 2006. Murphy, John. “Some Legal (and a Few Ethical) Dimensions of the Collateral Damage Resulting from NATO’s Kosovo Campaign.” In Legal and Ethical Lessons of NATO’s Kosovo Campaign. vo. 78, edited by Andru E. Wall, 229-255. Newport, Rhode Island: Naval War College, 2002. Murphy, Peter, and Richard Glover. Murphy on Evidence. 12th ed. Oxford: Oxford University Press, 2011. Neumann, Peter, and Peter Politser. “Risk and Optimality.” In Risk-taking Behavior, edited by Frank Yates, 27-44. Chichester: John Wiley & Sons, 1992. O’Connell, Mary Ellen. “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009.” In Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force, edited by Simon Bronitt,

A Toolbox for the Application of the Rules of Targeting

415

Miriam Gani, and Saskia Hufnagel, 263-292. Oxford: Hart Publishing, 2011. Oeter, Stefan. “Comment: Is the Principle of Distinction Outdated?” In International Humanitarian Law Facing New Challenges, edited by Volker Epping and Wolff Heintschel von Heinegg, 53-64. Berlin: Springer, 2007. —. “Methods and Means of Combat.” In The Handbook of International Humanitarian Law, edited by Dieter Fleck, 3rd ed. Oxford: Oxford University Press, 2013. —. “Methods and Means of Combat.” In The Handbook of Humanitarian Law in Armed Conflicts, edited by Dieter Fleck. Oxford: Oxford University Press, 2003. Olásolo, Héctor. Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute. Leiden: Martinus Nijhoff Publishers, 2008. Ponti, Christian. “Air Operations Against Afghanistan (2001-2002).” In The Law of Air Warfare: Contemporary Issues, edited by Natalino Ronzitti and Gabriella Venturini, 299-324. Utrecht: Eleven International Publishing, 2006. Porat, Ariel, and Alex Stein. Tort Liability Under Uncertainty. Oxford: Oxford University Press, 2001. Primoratz, Igor. “Civilian Immunity in War: Its Grounds, Scope and Weight.” In Civilian Immunity in War, edited by Igor Primoratz, 21-41. Oxford: Oxford University Press, 2007. Program on Humanitarian Policy and Conflict Research. HPCR Manual on International Law Applicable to Air and Missile Warfare. Bern: Harvard University, 2009. —. Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare. Edited by Yoram Dinstein. Cambridge: University of Harvard, 2010. Pyle, Richard. Schwarzkopf: The Man, The Mission, The Triumph. New York: Signet Books, 1991. Renn, Ortwin. Risk Governance: Coping with Uncertainty in a Complex World. London: Earthscan, 2008. Roberts, Adam, and Richard Guelff. Documents on the Laws of War. 3rd ed. Oxford: Oxford University Press, 2000. Rogers, A.P.V. Law on the Battlefield. 2nd ed. Manchester: Manchester University Press, 2004. Sandoz, Yves. “Commentary.” In Legal and Ethical Lessons of NATO’s Kosovo Campaign. vol. 78, edited by Andru E. Wall, 273-280. Newport, Rhode Island: Naval War College, 2002.

416

Bibliography

Sandoz, Yves, Christophe Swinarski, and Bruno Zimmermann. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Geneva: International Committee of the Red Cross, 1987. Sassòli, Marco, and Antoine A Bouvier. How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law. vol. 1. Geneva: International Committee of the Red Cross, 1999. Sassòli, Marco, Antoine A. Bouvier, and Anne Quintin, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law Part I. vol. 1. 3rd ed. Geneva: International Committee of the Red Cross, 2011. Sassòli, Marco, and Lindsey Cameron. “The Protection of Civilian Objects-current State of the Law and Issues De Lege Ferenda.” In The Law of Air Warfare: Contemporary Issues, edited by Natalino Ronzitti and Gabriella Venturini, 35-74. Utrecht: Eleven International Publishing, 2006. Scales Jr., Major General Robert H. Yellow Smoke: the Future of Land Warfare for America’s Military. Lanham: Rowman & Littlefield Publishers Inc., 2003. —. Certain Victory: The U.S. Army in the Gulf War. 2nd ed. Dulles: Brassey’s Inc., 1997. Scheb, John M., and John M. II Scheb. Criminal Law and Procedure. 8th ed. Belmont: Wadsworth Publishing Company, 2013. Schmitt, Michael N. “Targeting and International Humanitarian Law in Afghanistan.” In The War in Afghanistan: A Legal Analysis. vol. 85, edited by Michael N. Schmitt, 307-339. Newport, Rhode Island: Naval War College, 2009. —. “Targeting in Operational Law.” In The Handbook of the International Law of Military Operations, edited by Dieter Fleck and Terry Gill, 245-276. Oxford: Oxford University Press, 2010. —. “The Law of Targeting.” In Perspectives on the ICRC Study on Customary International Humanitarian Law, edited by Susan Breau and Elizabeth Wilmshurst, 131-168. Cambridge: Cambridge University Press, 2007. Schroeder, Karl. Crisis in Zefra. Kingston: Director General Land Capability Development, 2005. Selten, Reinhard. “What Is Bounded Rationality?.” In Bounded Rationality: The Adaptive Toolbox, edited by Reinhard Selten and Gerd Gigerenzer, 13–33. London: The M.I.T. Press, 2001. Shaw, Martin. The New Western Way of War: Risk-transfer and Its Crisis

A Toolbox for the Application of the Rules of Targeting

417

in Iraq. Cambridge: Polity Press, 2005. Simon, Herbert A. “Theories of Bounded Rationality.” In Decision and Organization, edited by Roy Radner and C.B. McGuire, 161-176. Amsterdam: North-Holland Publishing Company, 1972. Slovic, Paul, Craig Summers, D. Zuliani, and D. Hine. “‘Psychophysical Numbing’: An Empirical Basis for Perceptions of Collective Violence.” In Collective Violence: Harmful Behaviour in Groups and Governments, edited by Craig Summers and Eric Markusen. Lanham: Rowman & Littlefield, 1999. Slovic, Paul, David Fetherstonhaugh, Stephen Johnson, and James Friedrich. “Insensitivity to the Value of Human Life: a Study of Psychophysical Numbing.” In The Perception of Risk, edited by Paul Slovic, 372-388. London: Earthscan Publications Ltd., 2000. Slovic, Paul, Howard Kunreuther, and Gilbert White. “Decision Processes, Rationality and Adjustment to Natural Hazards.” In The Perception of Risk, edited by Paul Slovic, 1-30. London: Earthscan Publications Ltd., 2000. Slovic, Paul, Melissa Finucane, Ali Alhakami, and Stephen Johnson. “The Affect Heuristic in Judgments of Risks and Benefits.” In The Perception of Risk, edited by Paul Slovic, 411-427. London: Earthscan Publications Ltd., 2000. Slovic, Paul, Sarah Lichstenstein, and Baruch Fischhoff. “Cognitive Processes and Societal Risk Taking.” In The Perception of Risk, edited by Paul Slovic, 32-49. London: Earthscan Publications Ltd., 2000. Smithson, Michael. “Psychology’s Ambivalent View of Uncertainty.” In Uncertainty and Riskࣟ: Multidisciplinary Perspectives, edited by Gabriele Bammer and Michael Smithson, 205-218. London: Earthscan Publications Ltd., 2008. Solis, Gary. The Law of Armed Conflict: International Humanitarian Law in War. Cambridge: Cambridge University Press, 2010. Stewart, Colonel Darren M. “New Technology and the Law of Armed Conflict.” In International Law and the Changing Character of War. vol. 87, edited by Raul A. Pedrozo and Daria P. Wollschlaeger, 271298. Newport, Rhode Island: Naval War College, 2011. Summers, Sarah J., and John D. Jackson. The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions. Cambridge: Cambridge University Press, 2012. Todd, Peter. “Fast and Frugal Heuristics for Environmentally Bounded Minds.” In Bounded Rationality: The Adaptive Toolbox, edited by Gerd Gigerenzer and Selten Reinhard, 51-70. London: The M.I.T. Press, 2001.

418

Bibliography

Tremeear, W.J. Canadian Criminal Cases. 3rd ed. vol. 106. Aurora: Canada Law Book Company Ltd., 1997. Tuck, Christopher. “Land Warfare.” In Understanding Modern Warfare, edited by David Jordan, James Kiras, David Lonsdale, Ian Speller, Christopher Tuck, and C. Dale Walton, 64-121. Cambridge: Cambridge University Press, 2008. Tversky, Amos, and Daniel Kahneman. “Intuitive Prediction: Biases and Corrective Procedures.” In Judgment under Uncertainty: Heuristics and Biases, edited by Daniel Kahneman, Paul Slovic and Amos Tversky, 414-421. Cambridge: Cambridge University Press, 1985. Tversky, Amos, and Daniel Kahneman. “On the Psychology of Prediction.” In Judgment Under Uncertainty: Heuristics and Biases, edited by Daniel Kahneman, Paul Slovic and Amos Tversky, 48-68. Cambridge: Cambridge University Press, 1985. Tversky, Amos, and Daniel Kahneman. “The Framing of Decisions and the Psychology of Choice.” In Rational Choice, edited by Jon Elster, 123-138. Oxford: Basil Blackwell Ltd., 1986. Tversky, Amos, Paul Slovic, and Daniel Kahneman. “Judgment Under Uncertainty: Heuristics and Biases.” In Judgment Under Uncertainty: Heuristics and Biases, edited by Daniel Kahneman, Paul Slovic and Amos Tversky, 3-22. Cambridge: Cambridge University Press, 1985. United States Army Command and General Staff College. Student Text 3-0 Operations. Fort Leavenworth, Kansas: United States Government Printing Office, 2000. United States Joint Chiefs of Staff. Department of Defense Dictionary of Military and Associated Terms. United States of America: United States Department of Defense, 2011. Vego, Milan. Joint Operational Warfare: Theory and Practice. 2nd ed. Newport, Rhode Island: Naval War College, 2009. von Clausewitz, Karl. Principles of War. London: Stephen Austin and Sons Ltd., 1943. Wall, Andru E., ed. “Discussion.” In Legal and Ethical Lessons of NATOs Kosovo Campaign. vol. 78, 297-310. Newport, Rhode Island: Naval War College, 2002. Walzer, Michael. Just and Unjust Wars. 4th ed. New York: Basic Books, 2006. Warden III, Lieutenant Colonel John. White PaperAir Force Performance in Desert Storm, Department of the Air Force. Washington, DC: Pentagon, April 1991. Warden III, Colonel John A. The Air Campaign: Planning for Combat. Lincoln: toExcel Press, 2000.

A Toolbox for the Application of the Rules of Targeting

419

White, Hugh. “Civilian Immunity in the Precision-guidance Age.” In Civilian Immunity in War, edited by Igor Primoratz, 182-200. Oxford: Oxford University Press, 2007. White, Gilbert, Howard Kunreuther, and Paul Slovic. “Decision Processes, Rationality and Adjustment to Natural Hazards.” In The Perception of Risk, edited by Paul Slovic, 1-30. London: Earthscan Publications Ltd., 2010. Wigmore, John H. Treatise on the Anglo-American System of Evidence in Trials at Common Law. 3rd ed. Boston: Little, Brown and Company, 1940. Wilkinson, Iain. “Psychology and Risk.” In Beyond the Risk Society: Critical Reflections on Risk and Human Security, edited by Gabe Mythen and Sandra Walklate, 25-42. London: Open University Press, 2006. Winnefeld, James A., Preston Niblack, and Dana Johnson. A League of Airmen: U.S. Air Power in the Gulf War. Santa Monica: RAND Corporation, 1994. Wion, Anaïs. “An Analysis of 17th Century Ethiopian Pigments.” In The Indigenous and the Foreign in Christian Ethiopian Art: On PortugueseEthiopian Contacts in the 16th-17th Centuries, edited by Isabel Boavida and Manuel Joao Ramos, 103-112. Aldershot: Ashgate Publishing Ltd., 2004. Wittgenstein, Ludwig. Philosophical Investigations. Translated by Joachim Schulte, Peter Michael Stephan Hacker, and Gertrude Elizabeth Margaret Anscombe. 4th ed. Chichester: Blackwell Publishing Ltd., 2009. Zegveld, Liesbeth, and Frits Kalshoven. Constraints on the Waging of War: An Introduction to International Humanitarian Law. 4th ed. Geneva: International Committee of the Red Cross, 2001. Zey, Mary. Rational Choice Theory and Organizational Theory: a Critique. London: SAGE Publications Inc., 1998.

Conferences Abdullahi, Honourable Justice Umar Faruk. “Inter Relations between Common Law and Sharia Law.” Presentation, the International Society for the Reform of Criminal Law, Vancouver, June 22-26, 2007. Gippini-Fournier, Eric. “The Elusive Standard of Proof in E.U. Competition Cases.” Presentation, the 14th Annual E.U. Competition Law and Policy Workshop, Robert Schuman Centre for Advanced Studies, Florence, June 19-20, 2009.

420

Bibliography

Housen-Couriel, Deborah. “Disruption of Satellite Transmissions Under I.H.L.: Launching New Paradigms.” Presentation, the 6th Annual International Humanitarian Law Conference, Jerusalem, November 2829, 2011. Knight, Charles. “Running the GauntletForce Protection for Tactical Penetration in MOUT.” Presentation, the Land Warfare Conference, Melbourne, October 2000.

Dissertation Choi, Yimoon. “Jurors’ Subjective Certainty and Standards of Proof: The Role of Emotion and Severity of Charge in Subjective Probability Judgment.” PhD diss., University of Nebraska, 2013. Gleeson, Patrick K. “Legal Aspects of the Use of Force in Space.” Master’s thesis, Institute of Air and Space Law, McGill University, 2005. Rearick, Perry. “Force Protection and Mission Accomplishment in Bosnia and Herzegovina.” Master’s thesis, United States Army Command and General Staff College, 2001. Taylor, Michael W. “Orbital Debris: Technical and Legal Issues and Solutions.” Master’s thesis, Institute of Air and Space Law, McGill University, 2006.

Government Documents and Reports Bybee, Assistant Attorney General Jay S. Memorandum for Alberto R. Gonzales Counsel to the President and William J. Haynes II General Counsel of the Department of Defense Re Application of Treaties and Laws to Al Qaeda and Taliban Detainees. United States Department of Justice, January 22, 2002. Bybee, Assistant Attorney General Jay S. Memorandum from Assistant Attorney General Jay S. Bybee to the White House Counsel on the Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949. United States Department of Justice, February 7, 2002. Director of Force Transformation (OSD). Network-Centric Warfare: Creating a Decisive Advantage. Washington, DC: Department of Defense, 2003. Israel Ministry of Foreign Affairs. Conclusion of Investigations into Central Claims and Issues in Operation Cast Lead Part 2. Jerusalem: Israel Ministry of Foreign Affairs, April 22, 2009.

A Toolbox for the Application of the Rules of Targeting

421

http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/Pages/Conclusion_of_ %20Investigations_into_Central_Claims_and_Issues_in_Operation_Ca st_Lead-Part2_22-Apr-200.aspx. —. The Operation in Gaza: Factual and Legal Aspects. Jerusalem: Israel Ministry of Foreign Affairs, July 29, 2009. http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0017675DAFEF7/0/GazaOperationwLinks.pdf. United Kingdom. Debates, Commons, vol. 402 (2002-2003), col. 300. United Kingdom. Defence Committee. Minutes of Evidence, Commons, vol. 629 (1999-2000), col. 11. United Kingdom. Defence Committee. Minutes of Evidence, Commons, vol. 57-II (2002-2003), cols. 877-878. United Kingdom. Defence Committee. Minutes of Evidence, Commons, vol. 57-II (2002-2003), col. 250. United Kingdom. Defence Committee. Minutes of Evidence, Commons, vol. 57-II (2002-2003), col. 108. United Kingdom. House of Commons Foreign Affairs Committee. “The U.K.’s Foreign Policy Approach to Afghanistan and Pakistan: Fourth Report of Session 2010-11.” vol. 1. London: The Stationery Office Limited, 2011. United States Army. Message from the Department of the Army to the Legal Advisor of the United States Army Deployed in the Gulf, January 11, 1991. United States Congress. House of Representatives. Committee on Armed Services. Cluster Munitions Civilian Protection Act of 2013. 113th Cong., 1st sess., February 28, 2013. United States Congress. Senate. Select Committee on Intelligence. Report of Whether Public Statements Regarding Iraq by U.S. Government Officials were Substantiated by Intelligence Information. 110th Cong., 2nd sess., 2008. United State Congress. Senate. Senate on U.S. Rules of Engagement in Vietnam War 1969-1972. Congressional Record S 3011. 99th Cong., March 14, 1985. United States Congress. Senate. Senate Foreign Relations Committee. Afghanistan’s Narco War: Breaking the Link between Drug Traffickers and Insurgents. 111th Cong., 1st sess., 2009. United States Department of Defense. Conduct of the Persian Gulf Conflict/An Interim Report to Congress. Washington, DC: United States Government Printing Office, July 1991.

422

Bibliography

United States Department of Defense. Final Report to Congress: Conduct of the Persian Gulf War. Washington, DC: United States Government Printing Office, 1992. United States General Accounting Office. Operation Desert Storm: Evaluation of the Air Campaign Doc. GAO/NSIAD-97-134. Washington, DC: United States General Accounting Office, 1997. Warner, John W. et al. Report to Congressional Committees: Recent Campaigns Benefited from Improved Communications and Technology, but Barriers to Continued Progress Remain. Washington, DC: United States General Accounting Office, 2004.

International Documents Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 2010. Inter-American Commission on Human Rights. Third Report on the Human Rights Situation in Colombia Doc. OEA/Ser.L/V/II.102 Doc. 9.rev.1. Washington, DC: Inter-American Commission on Human Rights, February 26, 1999. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Geneva (1974-1977). vol. I. Bern: Federal Political Department, 1978. —. vol. II. Bern: Federal Political Department, 1978. —. vol. III. Bern: Federal Political Department, 1978. —. vol. IV. Bern: Federal Political Department, 1978. —. vol. V. Bern: Federal Political Department, 1978. —. vol. VI. Bern: Federal Political Department, 1978. —. vol. VII. Bern: Federal Political Department, 1978. —. vol. VIII. Bern: Federal Political Department, 1978. —. vol. IX. Bern: Federal Political Department, 1978. —. vol. X. Bern: Federal Political Department, 1978. —. vol. XI. Bern: Federal Political Department, 1978. —. vol. XII. Bern: Federal Political Department, 1978. —. vol. XIII. Bern: Federal Political Department, 1978. —. vol. XIV. Bern: Federal Political Department, 1978. —. vol. XV. Bern: Federal Political Department, 1978.

A Toolbox for the Application of the Rules of Targeting

423

—. vol. XVI. Bern: Federal Political Department, 1978. NATO Secretary General. “M.C. Position on an Effects-Based Approach to Operations.” Doc. MCM-0052-2006. unclassified document, NATO, June 6, 2006. The Independent Commission of Inquiry on the Syrian Arab Republic. Report of the Independent Commission of Inquiry on the Syrian Arab Republic Doc. A/HRC/27/60. Geneva: United Nations, August 13, 2014. United Nations Human Rights Council. Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict. Doc. A/HRC/12/48. Geneva: United Nations, September 15, 2009. —. Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1. Doc. A/HRC/3/2. Geneva: United Nations, November 23, 2006. —. Report of the High-Level Fact-Finding Mission to Beit Hanoun Established under Council Resolution S-3/1. Doc. A/HRC/9/26. Geneva: United Nations, September 1, 2008. —. Report of the International Commission of Inquiry on Libya. Doc. A/HRC/19/68. Geneva: United Nations, March 2, 2012. —. Report of the United Nations High Commissioner for Human Rights on the Implementation of Human Rights Council Resolutions S-9/1 and S12/1: Addendum. Doc. A/HRC/28/80/Add.1. Geneva: United Nations, March 5, 2013.

Reports Akers Frank H. Jr. and Singleton George B. Task Force Ranger: a Case Study Examining the Application of Advanced Technologies in Modern Urban Warfare. National Security Program Office, November 2000. Amnesty International. Federal Republic of Yugoslavia (FRY)/NATO: Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO During Operation Allied Force. London: Amnesty International, October 15 2008. http://www.amnesty.org/en/library/info/EUR70/018/2000/en. Breaking the Silence. This Is How We Fought in Gaza: Soldiers’ Testimonies and Photographs from Operation “Protective Edge” (2014). Jerusalem: Breaking the Silence, 2014. Criminal Policy Group Justice For All Team. Justice for AllWhitepaper. Colegate: The Stationery Office Limited, 2002. Dodd, Henry, and Robert Perkins. An Explosive Situation: Monitoring

424

Bibliography

Explosive Violence in 2012. London: Action on Armed Violence, March 2013. Human Rights Watch. Death from the Skies: Deliberate and Indiscriminate Air Strikes on Civilians. New York: Human Rights Watch, 2013. —. Off Target: the Conduct of the War and Civilian Casualties in Iraq. New York: Human Rights Watch, 2003. —. Precisely Wrong: Gaza Civilians Killed by Israeli Drone-Launched Missiles. New York: Human Rights Watch, 2009. —. Rain of Fire: White Phosphorus in Gaza. New York: Human Rights Watch, 2009. —.“Troops in Contact”: Airstrikes and Civilian Deaths in Afghanistan. New York: Human Rights Watch, 2008. —. Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya. New York: Human Rights Watch, 2012. —. Up In Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia. New York: Human Rights Watch, 2009. —. Why They Died: Civilian Casualties in Lebanon During the 2006 War. New York: Human Rights Watch, 2007. Independent International Fact-Finding Mission on the Conflict in Georgia. Report Volume 1, September 2009. http://www.ceiig.ch/pdf/IIFFMCG_Volume_I.pdf. —. Report Volume 2, September 2009. http://www.ceiig.ch/pdf/IIFFMCG_Volume_II.pdf. Knuckey, Sarah, James Cavallaro, and Stephen Sonnenberg. Living under Drones: Death, Injury and Trauma to Civilians from U.S. Drone Practices in Pakistan. Stanford Law School and New York University School of Law, September 2012. LaVella, L. Operation Enduring Freedom: Time Sensitive Targeting Process Study. Veridan Information Solutions Inc., 2003. Lord Robertson Of Port Ellen. Kosovo One Year On: Achievement and Challenge. Brussels: NATO, March 21, 2000. http://www.nato.int/kosovo/repo2000/report-en.pdf. Middle East Watch. Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War. New York: Human Rights Watch, October 15, 2008. Nardulli Bruce R. et al. Disjoined War: Military Operations in Kosovo 1999. Santa Monica: RAND Corporation, 2002. Report on Expert Meeting “Targeting Military Objectives.” Geneva: The University Centre for International Humanitarian Law, May 12, 2005.

A Toolbox for the Application of the Rules of Targeting

425

Schweizer, Mark. “The Civil Standard of Proof–What Is It, Actually?” Preprints of the Max Planck Institute for Research on Collective Goods 2013/12 July (2013): 1. The Ministry of Justice. Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures. London: The Crown, 2011. The Royal Society Study Group. Risk: Analysis, Perception and Management. London: The Royal Society, 1992. United Kingdom Ministry of Defence. Operations in Iraq: Lessons for the Future. 19 December 2003. Published by the Directorate General Corporate Communication. United States Department of the Army. The Stryker Brigade Combat Team Infantry Battalion FM 3-21.21. Washington, DC: Department of the Army Headquarters, 2003. United States Department of Defense. Defense Budget Priorities and Choices 2012. Washington, DC: United States Department of Defense, 2012. United States Department of Defense. Quadrennial Defense Review Report. Washington, DC: United States Department of Defense, September 30, 2001. van Riper, Paul. A Concept for Future Military Operations on Urbanized Terrain. Quantico: Department of the Navy Marine Corps Combat Development Command, 25 July 1997. Waxman, Matthew. International Law and the Politics of Urban Air Operations. Santa Monica: RAND Corporation, 2000.

Military Manuals and Doctrine Publications Australian Defence Force. The Manual on the Law of Armed Conflict A.D.F.P. 37. Canberra: Defence Publishing Service, 1994. Australian Defence Force Warfare Centre. Australian Defence Doctrine Publication 06.4 Law of Armed Conflict. Canberra: Defence Publishing Service, 2006. Belgium. Etat-Major Général. Droit de la Guerre Dossier d’Instruction pour Soldat J.S.-3. Forces Armées Belges, undated. Benin. Forces Armées du Bénin. Ministère de la Défense Nationale le Droit de la Guerre. Fascicules 3.1995. Cameroon. Présidence de la République, Ministere de la Défense. Droit International Humanitaire et Droit de la Guerre Manuel de l’Instructeur en Vigueur Dans les Forces Armées. 3d ed. Etat-major des Armées, 1992.

426

Bibliography

Canada. Office of the Judge Advocate General. The Law of Armed Conflict at the Operational and Tactical Level. Ottawa: National Defence Headquarters, 1999. Côte d’Ivoire. Droit de la Guerre Manuel D’instruction Livre 3. vol. 1. Ministère de la Défense, 2007. Croatia Ministry of Defence. Compendium Law of Armed Conflicts. Republic of Croatia: Ministry of Defence, 1991. —. Basic Rules of the Law of Armed ConflictsCommanders’ Manual. Croatia Ministry of Defence: Zagreb, 1992. de Mulinen, Frédéric. Handbook on the Law of War for Armed Forces. Geneva: International Committee of the Red Cross, 1987. Ecuador. Academia de Guerra Naval. Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques. Salinas: Academia de Guerra Naval, 1989. Italia Ufficio Addestramento e Regolamenti. Regoli Elementari di Diritto di Guerra. Reparto 1. Roma: Stato Maggiore della Difeso, 1992. Kenya. The School of Military Police. Law of Armed Conflict, Military Basic Course (ORS). Precis 4. Kenya, 1997. Netherlands. Nederland Ministerie van Defensie. Toepassing Humanitair Oorlogsrecht Voorschift No. 27-412/1. Den Haag: Koninklijke Landmacht, 1993. Philippines. Department of National Defense. Joint Circular on Adherence to I.H.L. and Human Rights 2-91. Quezon City: Department of National Defense, 1991. Russia. The President of the Russian Federation. “The Military Doctrine of Russian Federation.” The Office of the President of the Russian Federation, February 5, 2010. http://www.kremlin.ru/ref_notes/461. South African National Defence Force. Revised Civic Education Manual. 2004. Spain. Division de Operaciones. Orientaciones. El Derecho de los Conflictos Armados OR7-004. 2 Tomos. vol. 1. El Estado Mayor del Ejército Division de Operaciones, 1996. Togo. Etat-Major Général des Forces Armées Togolaises. Ministère de la Défense Nationale Le Droit de la Guerre. III fascicules. 1996. United Kingdom Ministry of Defence. Joint Warfare Publication (J.W.P.) 0-01 British Defence Doctrine. Ministry of Defence: London, 1997. —. United Kingdom Joint Service Manual of the Law of Armed Conflict. Oxford: Oxford University Press, 2004. United Kingdom. Royal Air Force. British Air and Space Power Doctrine A.P. 3000. 4th ed. London: Ministry of Defence, 2009. United States Air Force. Air Force Doctrine Document 1. Washington,

A Toolbox for the Application of the Rules of Targeting

427

DC: Department of Defense, 2003. United States Air Force. Air Force Operations and the Law. 1st ed. Alabama: The Judge Advocate General’s Department, 2002. United States Army. Army Field Manual FM 3-0 Operation. Washington, DC: United States Government Printing Office, 2008. —. The Army Capstone Concept Operational AdaptabilityOperating Under Conditions of Uncertainty and Complexity in an Era of Persistent Conflict TRADOC Pamphlet 525-3-0. Fort Monroe, Virginia: United States Army Training and Doctrine Command, 2009. —. The Army Lawyer D.A. P.A.M. 27-50-379. Charlottesville: The Judge Advocate General’s Legal Center & School, 2004. —. The Stryker Brigade Combat Team Infantry Battalion FM 3-21.21. Washington, DC: Department of the Army Headquarters, 2003. —. The United States Army Functional Concept for Fires 2016-2028 TRADOC Pamphlet 525-3-4. Fort Monroe, Virginia: United States Army Training and Doctrine Command, 2010. —. The United States Army Marine Corps Counterinsurgency Field Manual No 3-24. Chicago: The University of Chicago Press, 2007. United States Army Training and Doctrine Command, The United States Army Operating Concept 2016-2028 TRADOC Pamphlet 525-3-1. Fort Monroe, Virginia: United States Army, 2010. —. The U.S. Army Functional Concept for Protection 2016-2028 TRADOC Pamphlet 525-3-5. Fort Monroe, Virginia: United States Army, 2010. United States Department of Defense. U.S. Army Field Manual Law of Land Warfare 27-10. Washington, DC: Department of the Army, 1956. United States Department of the Air Force. International LawThe Conduct of Armed Conflict and Air Operations Air Force Pamphlet 110-31. Washington, DC: United States Air Force, 1976. United States Department of the Navy. Naval Doctrine Publication 6 Naval Command and Control. Washington, DC: Office of the Chief of Naval Operations, Headquarters United States Marine Corps, 1995. United States Joint Chiefs of Staff. Joint Publication 1: Joint Warfare of the Armed Forces of the United States. Washington, DC: United States Government Printing Office, 2000. —. U.S. Joint Publication 3-0 Doctrine for Joint Operations. Washington, DC: United States Government Printing Office, 2005. United States Office of the Chief of Naval Operations and Headquarters. The Commander’s Handbook on the Law of Naval Operations NWP114M. Washington, DC: Department of the Navy, United States Marine

428

Bibliography

Corps and Department of Transportation, United States Coast Guard, 2007.

Online Sources American Psychological Association. “Science of Psychology.” American Psychological Association. http://www.apa.org/action/science/index.aspx. A.T.K. “Ammunition 30mm X 173mm.” A.T.K. http://www.atk.com/products-services/30mm-x-173mmammunition. —. “Ballistic Trajectory Extended-Range Munition.” A.T.K. http://www.atk.com/capability/precision-munitions. BBC News. “Drones: What Are They and How Do They Work?.” BBC News, January 31, 2012, http://www.bbc.com/news/world-south-asia-10713898. —. “Flashback: 1991 Gulf War.” BBC News, March 20, 2003. http://news.bbc.co.uk/1/hi/world/middle_east/2754103.stm. —. “U.S. Army Unveils 1.8 Gigapixel Camera Helicopter Drone.” BBC News, December 29, 2011. http://www.bbc.co.uk/news/technology16358851. Civil Georgia. “Chief of Staff Testifies Before War Commission.” Civil Georgia, October 29, 2008. http://www.civil.ge/eng/article.php?id=19851. —. “National Security Council Chief Testifies Before War Commission.” Civil Georgia, October 28, 2008. http://www.civil.ge/eng/article.php?id=19845. Davydov, Denis. “The Ukrainian Armed Forces Resumed the Artillery Shelling in the Donetsk Region.” Channel 1, January 12, 2015. http://www.1tv.ru/news/world/275508. Defense Update. “Precision Guidance Kit (P.G.K.) Improving the Accuracy of Artillery Fire.” Defense Update. http://defense-update.com/products/p/pgk.htm. Department of City Planning of the City of New York. “Zoning Data Tables, Residence Districts.” New York City Planning, 2014. http://www.nyc.gov/html/dcp/pdf/zone/zoning_handbook/zoning_data _tables.pdf#page=1. —. “Zoning Districts: Residence Districts.” New York City Planning, 2014. http://www.nyc.gov/html/dcp/html/zone/zh_resdistricts.shtml.

A Toolbox for the Application of the Rules of Targeting

429

Sauer, Frank. “ICRAC Statement on Operational Issues to the U.N. C.C.W. Expert Meeting.” ICRAC. http://icrac.net/2014/05/icrac-state ment-on-operational-issues-to-the-un-ccw-expert-meeting. Gharib, Ali. “United States to Increase Drone Fleet and Special Forces.” Thinkprogress Security, January 26, 2012. http://thinkprogress.org/security/2012/01/26/412115/us-to-increasedrone-fleet-and-special-forces. Hatamoto, Michael. “Role of Unmanned Aerial Vehicles Continues to Expand.” DailyTech, October 30, 2013. http://www.dailytech.com/Role+of+Unmanned+Aerial+Vehicles+Cont inues+to+Expand/article33644.htm. Human Rights Watch. “Ukraine: U.S. Should Raise Rights Issues.” Human Rights Watch, September 18, 2014. http://www.hrw.org/news/2014/09/17/ukraine-us-should-raise-rightsissues. —. “Ukraine: Unguided Rockets Killing Civilians.” Human Rights Watch, July 24, 2014. http://www.hrw.org/news/2014/07/24/ukraine-unguided-rocketskilling-civilians. International Committee of the Red Cross. “Convention on Cluster Munitions, 30 May 2008.” International Committee of the Red Cross. http://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPage s_NORMStatesParties&xp_treatySelected=620. —. “Practice Relating to Rule 14: Proportionality in Attack.” International Committee of the Red Cross, April 3, 2012. http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule14. —. “Practice Relating to Rule 15: The Principle of Precautions in Attack.” International Committee of the Red Cross, April 3, 2012. http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule15. —. “Practice Relating to Rule 16: Target Verification.” International Committee of the Red Cross, April 3, 2012. http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule16. —. “Practice Relating to Rule 17: Choice of Means and Methods of Warfare.” International Committee of the Red Cross, April 3, 2012. http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule17. —. “Practice Relating to Rule 20: Advance Warning.” International Committee of the Red Cross, April 3, 2012. http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule20. —. “Israel: Ratifications/Accessions.” International Committee of the Red Cross, April 3, 2012. http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=IL

430

Bibliography

—. “United States of America: Ratifications/Accessions.” International Committee of the Red Cross, April 3, 2012. http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=US. Israel Defence Forces. “Conclusions of Investigations into Central Claims and Issues in Operation Cast Lead: Part 1.” Israeli Government Communique, April 22, 2009. http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/Pages/IDF_Conclusio n_of_investigations_Operation_Cast_Lead_Part1_22-Apr 2009.htm.aspx. —. “Conclusions of Investigations into Central Claims and Issues in Operation Cast Lead: Part 2.” Israeli Government Communique, April 22, 2009. http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/Pages/Conclusion_of_ %20Investigations_into_Central_Claims_and_Issues_in_Operation_Ca st_Lead-Part2_22-Apr-200.aspx. —. “IDF Begins Widespread Campaign on Terror Targets in the Gaza Strip.” Israel Defence Forces, November 14, 2012. http://www.idfblog.com/2012/11/14/idf-begins-widespread-attack-onterror-sites-in-the-gaza-strip. —. “IDF Carries out Widespread Attack on Gaza Terror Sites.” Israel Defence Forces, November 16, 2012. http://www.idf.il/1283-17570-EN/Dover.aspx. —. “Why Were Private Property and Infrastructure in Gaza Harmed?” Israel Defence Forces, November 19, 2012. http://www.idfblog.com/2012/11/19/were-private-property-andinfrastructure-in-gaza-harmed. Kable Intelligence Limited. “Namer Heavy Armoured Infantry Vehicles, Israel.” Army-Technology. http://www.army-technology.com/projects/namerheavyarmouredin. Ki-Moon, Secretary-General Ban. “‘Clear and Convincing’ Evidence of Chemical Weapons Use in Syria, U.N. Team Reports.” News release, September 16, 2013. http://www.un.org/apps/news/story.asp?NewsID=45856.VQ1klfmsW Wt. McChrystal, Major General Stanley A. “Coalition Targeting Procedures.” News release, April 3, 2003. http://2002-2009-fpc.state.gov/19326.htm. Minasian, Sergei. “Some Lessons for the ‘Five Day War’ for Southern Caucasus.” The Centre of Political Science, September 19, 2008. http://www.politcom.ru/article.php?id=6895%3E.

A Toolbox for the Application of the Rules of Targeting

431

Office of the United Nations High Commissioner for Human Rights. “Statement of the Special Rapporteur Following Meetings in Pakistan.” Office of the United Nations High Commissioner for Human Rights, March 14, 2013. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?New sID=13146&LangID=E. Owen, Paul and John Cook. “Laser Guided Bombs and Joint Direct Attack Munition.” http://typhoon.starstreak.net/common/AG/iron.html. Pike, John. “Indirect Fire.” GlobalSecurity. http://www.globalsecurity.org/military/systems/ground/indirect.htm. —. “Mortars.” GlobalSecurity.org. http://www.globalsecurity.org/military/systems/ground/mortars.htm. —. “M2 and M3 Bradley Fighting Vehicle Systems.” GlobalSecurity.org. http://www.globalsecurity.org/military/systems/ground/m2.htm. —. “Stealth Geometry.” GlobalSecurity.org. http://www.globalsecurity.org/military/world/stealthaircraftgeometry.htm Precise Machining & Manufacturing. “J.D.A.M.: Smart Bomb, Smart Program.” http://www.precisemachining.com/jdam.php. Rhem, Sergeant 1st Class Kathleen T. “American Troops Training, Equipping Georgian Military.” News release, May 30, 2002. http://www.defense.gov/News/NewsArticle.aspx?ID=43997. —. “United States Military Works to Avoid Civilian Deaths, Collateral Damage.” News release, March 5, 2003. http://www.defense.gov/news/newsarticle.aspx?id=29337. Royal Air Force. “RAFPaveway II & III.” Royal Air Force. http://www.raf.mod.uk/equipment/paveway23.cfm;%20http://typhoon. starstreak.net/common/AG/iron.html. —. “The RAF Regiment Roles.” The Royal Air Force. http://www.raf.mod.uk/rafregiment/roles. Rumsfeld, Donald H., and General Richard B. Myers. “Rumsfeld and Myers Briefing on Enduring Freedom.” News release, October 7, 2001. http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=2011. Senior Defense Official. “Background Briefing On Targeting.” News release, March 5, 2003. http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2007. Sinai, Uriel. “Investigations: White Phosphorus.” Forensic Architecture, January 4, 2009. http://www.forensic-architecture.org/investigations/ white-phosphorus.

432

Bibliography

Sinclair, E.J. “Aviation in Operational Maneuver.” News release, undated. Stanley A., McChrystal, and A.S.D. P.A. Victoria Clarke. “Department of Defense News Briefing.” News release, April 8, 2003. http://www.iwar.org.uk/news-archive/2003/04-08-4.htm. Subramanian, S.R. “Use of White Phosphorus in Gaza and Some Limitations of International Law.” Institute for Defence Studies and Analyses, March 4, 2009. http://idsa.in/idsastrategiccomments/UseofWhitePhosphorusinGaza_S RSubramanian_040309. United States Air Force. “Airborne Battle Management 1A4X1.” The United States Air Force. http://www.af.mil/information/factsheets/factsheet.asp?id=4523. Zemanek, Karl. “Vienna Convention on the Law of Treaties: Historical Context.” United Nations Audiovisual Library of International Law. http://legal.un.org/avl/ha/vclt/vclt.html.

Magazines and Newspapers Atkinson, Rick. “War’s Course Depends on Air Power.” Washington Post, January 17, 1991. Bearak, B., T. Shah, C.J. Chivers, and A.W. Wafa. “7 Children Killed in Coalition Airstrike on Religious Compound in Afghanistan.” New York Times, November 10, 2007. Beaumont, Peter. “How Israel Put Gaza Civilians in Firing Line.” Observer, November 12, 2006. http://www.theguardian.com/world/2006/nov/12/israel. Bellamy, Christopher, and Patrick Cockburn. “Allies Assess Precision of Bomb Raids.” Independent, March 19, 1991. Boustany, Nora. “Bombs Killed Victims as They Slept.” Washington Post, February 14, 1991. Chassay, Clancy. “Cut to Pieces: The Palestinian Family Drinking Tea in Their Courtyard.” Guardian, March 23, 2009. http://www.theguardian.com/world/2009/mar/23/gaza-war-crimesdrones. Clark, Kate. “Targeted Killings and Two Worlds in Afghanistan: Inside the Takhar Attack.” Foreign Policy, May 11, 2011. http://afpak.foreignpolicy.com/posts/2011/05/11/the_takhar_attack_tar geted_killings_and_two_worlds_in_afghanistan?wp_login_redirect=0. Cloud, David S. “C.I.A. Drones Have Broader List of Targets.” Los Angeles Times, May 5, 2010. http://articles.latimes.com/2010/may/05/world/la-fg-drone-targets-

A Toolbox for the Application of the Rules of Targeting

433

20100506. Coll, Steve. “The Unblinking Stare: The Drone War in Pakistan.” New Yorker, November 24, 2014. Coren, Ora. “Georgian Fighting Drives out Israeli Security Consultants.” Haaretz, August 10, 2008. http://www.haaretz.com/print-edition/business/georgian-fightingdrives-out-israeli-security-consultants-1.251435. Cruickshank, Michael. “Can I.S.I.S. Shoot down a Coalition Aircraft?.” Conflict News, December 16, 2014. http://www.conflict-news.com/can-isis-shoot-coalition-aircraft. Daily Mail Reporter. “Is That Really Just a Fly? Swarms of Cyborg Insect Drones Are the Future of Military Surveillance.” Daily Mail Online, June 19, 2012. http://www.dailymail.co.uk/sciencetech/article-2161647/Is-really-justfly-Swarms-cyborg-insect-drones-future-military-surveillance.html. Donnelly, John. “War in Iraq/Targeting the Leadership; After Airstrike, U.S. Seeks Clues on Fate of Hussein and Sons.” Boston Globe. April 9, 2003. Drennan, Justine. “Who Has Contributed What in the Coalition against the Islamic State?.” Foreign Policy, November 12, 2014. http://foreignpolicy.com/2014/11/12/who-has-contributed-what-in-thecoalitionagainst-the-islamic-state. Dyer, Clare. “Lord Denning, Controversial 'People's Judge,’ Dies Aged 100.” Guardian. 6 March 1999. http://www.guardian.co.uk/uk/1999/mar/06/claredyer1. Egozi, Arie. “Israel Praises U.A.V. Abilities during Operation Change of Direction Anti-Hezbollah Lebanon Campaign.” Flight International, August 29, 2006. http://www.flightglobal.com/news/articles/israel-praises-uav-abilitiesduring-operation-change-of-direction-anti-hezbollah-lebanoncampaign-208706. Fox News. “Syria’s Civil War Leaves Its Cities, Economy and Cultural Heritage in Shambles.” Fox News, October 9, 2012. http://www.foxnews.com/world/2012/10/09/syria-civil-war-leaves-itscities-economy-and-cultural-heritage-in-shambles. Franklin, Jonathan. “U.S. Military Using Lightweight Mini-drones Launched from Battlefield.” Guardian, June 12, 2012. http://www.guardian.co.uk/world/2012/jun/12/us-military-minidrones-battlefield. Franky. “NATO Running Out of Laser Guided Bombs In Libya.” Laser Weekly, May 10, 2011.

434

Bibliography

http://www.laserweekly.com/nato-running-out-of-laser-guided-bombsin-libya. Gordon, Michael R. “U.S. Calls Target a Command Center.” New York Times. 14 February 1991. Graham, Bradley. “U.S. Moved Early for Air Supremacy.” Washington Post. July 20, 2003. Griffiths, Sarah. “Britain’s Deadly Superdrone Makes First Flight: Taranis Unmanned Military Vehicle ‘Surpassed All Expectations’ in the Air.” Daily Mail, February 5, 2014. Guardian. “The Gulf War: No Explanation for Civilians’ Presence, Says GeneralThe Suggestion that Saddam Put Women and Children in the Bombed Bunker as Part of Strategy Was Described as Plausible at a U.S. Briefing.” Guardian. February 14, 1991. Hosenball, Mark. “Obama Administration Official Publicly Defends Drone Attacks.” Newsweek, March 26, 2010. http://www.newsweek.com/obama-administration-official-publiclydefends-drone-attacks-216954. Huffington, Arianna. “‘Signature Strikes’ and the President’s Empty Rhetoric on Drones.” Huffington Post, July 10, 2013. http://www.huffingtonpost.com/arianna-huffington/signature-strikesand-the_b_3575351.html. Jean, Grace V. “Reaper Drones Accomplishing Traditional Fighter Jet Missions.” National Defense Magazine, August 2008. http://hwww.nationaldefensemagazine.org/archive/2008/August/Pages/ ReaperDronesAccomplishingTraditionalFighterJetMissions.aspx. Katz, Gregory, and Albert Aji. “Syria Intervention? Momentum Builds For Western Military Action.” Huffington Post. August 27, 2013. http://www.huffingtonpost.com/2013/08/27/syriaintervention_n_3825104.html. Kenyon, Henry S. “Sensor Technology Opens New Horizons.” Signal Online. 2008. http://www.afcea.org/content/?q=node/1619. Khan, Dera Ismail. “U.S. Drone Strike Kills Four Suspected Militants in Pakistan.” Guardian, September 28, 2014. Kofman, Jeffrey. “Introducing the Small Diameter Bomb.” ABC News, February 16, 2008. Krasnikov, Denys, and Iryna Savchuk. “Infrastructure Damage in Ukraine’s East Is Massive Blow to Economy.” Kyiv Post, August 15, 2014. http://www.kyivpost.com/content/ukraine/damage-ofinfrastructure-in-the-eastis-a-massive-blow-to-economy-infographic360785.html. Lenorowitz, J.M. “Air Crew Training, Avionics Credited For F-15Es High

A Toolbox for the Application of the Rules of Targeting

435

Target Rate Hits.” Aviation Week & Space Technology, April 22, 1991. Levinson, Charles. “Gaza’s Kids Collect a Different Sort of Shell.” Agence France-Presse, May 29, 2006. Mannion, Jim. “‘Appropriate’ Force Used in Civilian Death Incident: U.S.” Agence-France Presse. May 16, 2007. Mayer, Jane. “The Predator War: What are the Risks of the C.I.A.’s Covert Drone Program?.” New Yorker. 26 October, 2009. McCarthy, Terry. “What Ever Happened to the Republican Guard?” Time, May 12, 2003. McKelvey, Tara. “A Former Ambassador to Pakistan Speaks Out.” Daily Beast, November 20, 2012. http://thedailybeast.com/articles/2012/11/20/a-former-ambassador-topakistan-speaks-out.html. McClam, Erin, and Abigail Williams. “Which Countries Are Doing What in the I.S.I.S. Coalition?.” NBC News, September 26, 2014. http://www.nbcnews.com/storyline/isis-terror/which-countries-aredoing-what-isiscoalition-n212596. Morocco, John D. “Looming Budget Cuts Threaten Future of Key HighTech Weapons.” Aviation Week & Space Technology, April 22, 1991. Munk, Erika. “The New Face of Techno-War.” The Nation, May 6, 1991. Muradian, Vago. “Robertson: Europe Must Spend More Wisely to Achieve Gains.” Defence Daily, December 8, 1999. Narayanaswami, V.R. “War Lingo from the Gulf.” Hindu, April 29, 2003. http://www.thehindu.com/thehindu/edu/2003/04/29/stories/200304290 0010200.htm. Netburn, Deborah. “Meet Meshworm, the Resilient Earthworm Robot from D.A.R.P.A. and M.I.T.” Los Angeles Times, August 13, 2012. http://articles.latimes.com/2012/aug/13/business/la-fi-tn-meshwormrobot-20120813. New York Times. “War in the Gulf: Military Briefing; Excerpts From Remarks by General Schwarzkopf in Riyadh.” New York Times, January 28, 1991. http://www.nytimes.com/1991/01/28/world/war-gulf-military-briefingexcerpts-remarksgeneral-schwarzkopf-riyadh.html?pagewanted=1. Norton-Taylor, Richard. “Asymmetric Warfare.” Guardian, October 3, 2001. http://www.theguardian.com/world/2001/oct/03/afghanistan.socialscience. Obozrevatel. “A Creepy Robot-Worm Is Ready to Spy.” Obozrevatel, August 14, 2012. http://tech.obozrevatel.com/science/24691-zhutkovatyijrobot-chervyak-gotov-shpionit.-video.htm.

436

Bibliography

Oren, Michael. “Oren: Hamas Media Strategy Relies on Deaths of Civilians.” CNN News. July 22, 2014. http://edition.cnn.com/2014/07/21/opinion/oren-hamas-media-strategy. Owen, Jonathan. “Fight I.S.I.S. on the Ground, Says Senior British General and Former NATO Chief.” Independent, October 26, 2014. http://www.independent.co.uk/news/uk/home-news/fight-isis-ontheground-says-senior-british-general-and-former-nato-chief9818588.html. Power, Matthew. “Confessions of a Drone Warrior.” GQ Magazine, October 23, 2013. http://www.gq.com/news-politics/big-issues/ 201311/drone-uav-pilot-assassination. Priest, Dana. “Tension Grew with Divide Over Strategy.” Washington Post, September 21, 1999. Rawnsley, Adam. “C.I.A. Drone Targeting Tech Revealed, Qaeda Claims.” Wired, July 8, 2009. http://www.wired.com/2009/07/infraredbeacons-guiding-cia-drone-strikes-qaeda-claims. Rawnsley, Adam, and Noah Shahtman. “Crazy Military Tracking Tech, From Super Scents to Quantum Dots.” Wired, May 18, 2011. http://www.wired.com/2011/05/crazy-military-trackingtech/?pid=430#slideid-430. Rogan, Tom. “I.S.I.S. Caught a Coalition Pilot: What Does It Mean?.” National Review Online. December 24, 2014. http://www.nationalreview.com/article/395354/isis-caught-coalitionpilot-what-does-it-mean-tomrogan. Rose, David. “How C.I.A. Spies Deal Death from the Skies: Thousands Killed by U.S. Unmanned Drones.” Daily Mail. London, April 17, 2011. http://www.dailymail.co.uk/news/article-1377611/How-CIAspies-deal-death-skies-Thousands-killed-U-S-unmanned-drones.html. RT News. “British Elite Unit Carrying out Secret Missions in Iraq, Hundreds of I.S.I.S. Militants Killed.” RT News, November 23, 2014. http://rt.com/uk/208175-sas-secret-attack-isis. Schechter, Eric. “Kamikaze Drones: Miniature Munitions for Dismounted Troops.” ArmyTimes, August 14, 2013. http://www.armytimes.com/article/20130814/NEWS04/308140013/Ka mikaze-drones-Miniaturemunitions-dismounted-troops. Schmitt, Eric, and C.J. Chivers. “In Strikes on Libya by NATO, an Unspoken Civilian Toll.” New York Times, December 17, 2011. http://www.nytimes.com/2011/12/18/world/africa/scores-ofunintended-casualties-innato-war-inlibya.html?pagewanted=all&_r=0. Schmitt, Eric, and David E. Sanger. “Pakistan Shift Could Curtail Drone Strikes.” New York Times, February 22, 2008.

A Toolbox for the Application of the Rules of Targeting

437

http://www.nytimes.com/2008/02/22/washington/22policy.html?_r=1&. Schwartz, James. “Munitions Used in the Air War.” Washington Post, February 6, 1991. Shane, Scott. “C.I.A. Drone Use Is Set to Expand Inside Pakistan.” New York Times, December 4, 2009. Shlomo, Shamir. “U.N. Human Rights Chief Endorses Goldstone Gaza Report.” Haaretz Newspaper, October 14, 2009. http://www.haaretz.com/news/un-human-rights-chief-endorsesgoldstone-gaza-report-1.6116. Smith, Jeffrey R. “Picking Right Weapon for a Target Is Complex Decision.” Washington Post, February 6, 1991. South China Morning Post. “Intense Artillery Fire in Ukraine’s Rebel Bastion Dontesk.” South China Morning Post, November 9, 2014. http://www.scmp.com/news/world/article/1635781/intense-artilleryfire-ukraines-rebel-bastion-donetsk. Stockman, Farah. “Hussein Gave Orders by Code, Official Says.” Boston Globe, December 17, 2003. Telegraph. “Yemen Al-Qaeda Commander Dies from Drone Strike Wounds.” Telegraph, January 24, 2013. http://www.telegraph.co.uk/news/worldnews/middleeast/yemen/98256 20/Yemen-al-Qaeda-commander-dies-from-drone-strike-wounds.html. Thompson, Mark and Timothy J. Burger. “How to Attack a Dictator, Part II.” Time. April 21, 2003. Traynor, Ian. “Afghans Are Still Dying as Air Strikes Go On. But No One Is Counting.” Guardian, February 12, 2002. http://www.theguardian.com/world/2002/feb/12/afghanistan.iantrayno. Tsiganok, Anatoly. “Assessing the Campaign in the South Caucasus.” Nezavisimoye Voyennoye Obozreniye, September 19, 2008. Vinograd, Cassandra. “Public Support for Israel Shifting amid Gaza War, Britain Warns.” NBC News, July 30, 2014. http://www.nbcnews.com/storyline/middle-east-unrest/public-supportisrael-shifting-amid-gaza-war-britain-warns-n168366. Vlasov, Dmitry, et al. “Ukraine, Rebels Both Claim to Control Dontesk Airport.” Tulsa World, January 19, 2015. http://www.tulsaworld.com/news/usworld/ap/ukraine-and-rebels-bothclaim-tocontrol-donetsk-airport/article-dd223b17-9953-5d8a-82ecebeee973c434.html. Walker, Christopher. “Israel Arming of Georgia Sours Russian Relations.” Week, September 24, 2008. http://www.theweek.co.uk/25777/israelarming-georgia-sours-russian-relations.

438

Bibliography

Washington Post. “Reconsidering the Goldstone Report on Israel and War Crimes.” Washington Post, April 2, 2011. http://www.washingtonpost.com/opinions/reconsidering-the-goldstone report-on-israel-and warcrimes/2011/04/01/AFg111JC_story_1.html. Whittle, Richard.“The Man Who Invented the Predator.” Air & Space Magazine, April 2013. http://www.airspacemag.com/flight-today/the-man-who-invented-thepredator-3970502/?no-ist. Williamson, Alex. “Out of Sight.” Economist, July 27, 2013. Wintour, Patrick. “U.S. Forms ‘Core Coalition’ to Fight I.S.I.S. Militants in Iraq.” Guardian, September 5, 2014. http://www.theguardian.com/world/2014/sep/05/us-core-coalitionfight-isis-militants-iraq-nato. Ybarra, Maggie. “Can You Hear Me Now? Cell Phones to Power U.S. Mini Missiles of the Future.” Washington Times, May 7, 2014.

Research Papers Blank, Laurie R. “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law.” Emory University School of Law Public Law & Legal Theory Research Paper Series 12, no. 186 (2011). Boivin, Alexandra. “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare.” Geneva Academy of International Humanitarian Law and Human Rights Research Paper Series 2 (2006). Kates, Robert William. “Hazard and Choice Perception in Flood Plain Management.” University of Chicago Department of Geography Research Paper No. 78 (1962). Lyons, Bruce, Gordon Douglas Menzies, and Daniel John Zizzo. “Professional Interpretation of the Standard of Proof: An Experimental Test on Merger Regulation.” C.C.P. Working Paper 10-2, 2009. O’Connell, Mary Ellen. “Unlawful Killing with Combat Drones: a Case Study of Pakistan, 2004-2009.” Notre Dame Law School Legal Studies Research Paper 09-43 (2010). Roblyer, Dwight. “Beyond Precision: Issues of Morality and Decision Making in Minimizing Collateral Casualties.” ACDIS Occasional Paper April (2004). White, Jeffrey, and Lieutenant Colonel Eddie Boxx. “Responding to Assad’s Use of Airpower in Syria.” Policywatch 1999 (November 20, 2012).

A Toolbox for the Application of the Rules of Targeting

439

http://www.washingtoninstitute.org/policy-analysis/view/respondingtoassads-use-of-airpower-in-syria.

Speeches Kennedy, David. “Modern War and Modern Law.” Lecture, Innovating Global Security Lecture Series, Watson Institute for International Studies, Brown University, October 12, 2006. http://www.watsoninstitute.org/events_detail.cfm?id=794. Koh, Harold Hongju. “Remarks at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law.” Speech, Annual Meeting of the American Society of International Law, Washington DC, March 25, 2010. http://www.state.gov/s/l/releases/remarks/139119.htm. Singh, Prashant Kumar. “The Evolution of Chinese Military Doctrine.” Presentation, the Fellows’ Seminar, Institute for Defence Studies and Analyses, New Delhi, February 1, 2013. http://www.idsa.in/event/The EvolutionofChinasMilitaryDoctrines.html.

United Nations Resolutions United Nations General Assembly. Declaration on the Protection of Women and Children in Emergency and Armed Conflict. U.N. Doc. A/RES/29/3318. New York: United Nations, December 14, 1974. United Nations General Assembly. Resolution 2675 (1970). Twenty-Fifth Session. Basic Principles for the Protection of Civilian Populations in Armed Conflict. Doc. A/RES/2675. New York: United Nations, December 9, 1970. United Nations General Assembly. Sixty-Fourth Session. Agenda Item 64. Report of the Human Rights Council. U.N. Doc. A/64/L.11. New York: United Nations, November 2, 2009. United Nations Security Council. Resolution 661(1990). 2933rd Meeting. The Situation Between Iraq and Kuwait. Doc. S/RES/0661. New York: United Nations, August 6, 1990. United Nations Security Council. Resolution 666(1990). 2939th Meeting. The Situation Between Iraq and Kuwait. Doc. S/RES/666. New York: United Nations, September 13, 1990. United Nations Security Council. Resolution 1973. Resolution 1973 Adopted by the Security Council at its 6498th Meeting on 17 March 2011. U.N. Doc. SC/10200. New York: United Nations, March 17, 2011.

INDEX

artillery, 37 attack, 76 azimuth, 69 “combined arms” warfare, 43 “effects-based” operations, 13, 14 “means” of warfare, 34 “methods” of warfare, 46 “network-centric warfare”, 47 “Revolution in Military Affairs”, 48 “time-sensitive” targets, 28 accuracy, 313 advance warning of the impending attack, 17 air burst fuse, 68 air defence suppression aircraft, 25, 64 air defence system, 25 airborne manager, 25 aircraft, 39 Al Qaeda, 1, 32, 179, 214 anti-radiation missile, 26 armed conflict, 11 Chechen War, 237 Georgia-South Ossetia Conflict 2008, 315 Operation Allied Force 1999, 23, 24, 52, 73, 80, 81, 83, 89, 91, 110, 130, 217, 382, 391 Operation Cast Lead 2009, 1, 78, 87, 95, 117, 245, 307, 318, 327, 328 Operation Change of Direction 2006, 20 Operation Desert Storm 1991, 21, 24, 49, 53, 76, 78, 81, 88, 111, 134, 137, 270, 382 Operation Enduring Freedom 2001, 15, 65, 81

Operation Grapes of Wrath 1996, 47 Operation Iraqi Freedom 2003, 65, 78, 81, 106, 111, 125, 138, 204, 217, 267, 382 Operation Protective Edge 2014, 81, 84, 285, 286, 327, 328, 353, 377, 388, 402 Operation Unified Protector 2011, 82, 198, 282 Russia-Georgia War 2008, 303 Second Lebanon War 2006, 60, 222 Vietnam War, 11, 377 World War I, 42 Bomb, 14, 23, 41, 42, 51, 52, 53 dumb bomb, 41, 286 Joint Direct Attack Munition, 25 precision-guided bomb, 25, 40, 69, 70, 285 spike missile, 30 case studies, 55 al-Fakhura incident, 245, 307 Ameriyya air raid shelter incident, 21, 134, 196, 227, 259, 360 decapitation strikes, 28, 29, 138, 204, 205, 206, 217, 219, 220, 225, 226, 267, 277 Djakovica incident, 23, 26, 91, 93, 219, 251 drone strikes, 30 high-altitude flying, 23 Marwahin village incident, 222 Mekele incident, 262 Military operation in KatyrYurt, 237 Russia-Georgia War 2008, 303

A Toolbox for the Application of the Rules of Targeting Military operation in Tskhinvali, 317 Use of white phosphorus near a U.N. shelter, 318 Zabet Amanullah, 235 civilian harm, 284 Clausewitz, 3, 11 cluster munitions, 329 cost-benefit analysis, 71 cyber attack, 14 decision-making, 350 emotions, 350 personality traits, 350 delay fuse, 68 drone, 1, 27, 29, 389, 392 duty to issue an advance warning of the attack effective, 110 how far in advance, 114 unless circumstances do not permit, 115, 148 electronic warfare, 25 electronic warfare aircraft, 64 force protection, 53, 81 forward air controller, 25 framework for the application of the principle of the least feasible damage, 338 framework for the application of the rule of target verification, 272, 394 Gary Klein, 343 recognition primed decisionmaking, 344 global surveillance warfare, 377 helicopter, 39 Herbert Simon, 348 aspiration level, 346, 347, 348, 385 bounded rationality theory, 348, 349 improvised explosive device, 392 infantry, 35 infantry fighting vehicles, 35 infra-red optical device, 67

441

intelligence, 13, 15, 17, 18, 19, 20, 23, 25, 28, 29, 32, 54 ISIS, 82, 85 likelihood of civilian harm, 290 high, 290 low, 290 medium, 290 very high, 290 very low, 290 manoeuvre, 46 mental templates, 357, 358 adjustment and anchoring, 367 availability, 358 cumulative prospect theory, 372, 375 principle of diminishing sensitivity, 372 prospect theory, 372, 374 psychophysical numbing, 373, 374 representativeness, 363 meshworm, 33 military advantage, 291 high, 291, 394 low, 292, 394 medium, 292, 394 very high, 291 military doctrine, 15 military operation, 13 mortars, 38 NATO, 13 obligation of risk assumption, 80 operational factors, 216 pattern of activity analysis, 389, 391 political risk, 11 principle of distinction error through targeting, 219 force protection, 217, 229 intelligence, 218, 230 scale, 208, 209 urgency of action, 217, 229 principle of proportionality concrete, 79 direct, 79 excessive, 74

442 principle of the least feasible damage, 64 feasible, 64, 143, 144, 145 scale, 284 psychology, 342 risk, 333, 334 rule of target verification feasible, 58, 124 rules of targeting, 12 duty to issue an advance warning of the attack, 107, 148, 342, 403 principle of discrimination, 269, 396 principle of distinction, 18, 57 173, 389 principle of proportionality, 71, 146 principle of the least feasible damage, 64, 143, 283, 397 rule of target verification, 18, 27, 58, 124, 232, 394 satellite, 14 scale, 389



Index sensors, 17 smoke shells, 67, 318 social amplification theory, 377 soft positivism theory, 158 standard of proof, 184 standard of proof of “beyond reasonable doubt”, 184, 193, 194, 198, 203, 204, 389 standard of proof of “clear and convincing” evidence, 184, 199 stealth technology, 26 strategy, 12 surprise, 54 tactics, 14, 17, 18, 26, 43, 44, 46, 48, 49, 50, 54, 55 movement and manoeuvre, 17 tanks, 35 theory of legal rules, 158 use of fires, 34 Visibuilding system, 33 white phosphorus, 66, 288, 318 Wittgenstein’s theory of language, 161