In the lead up to this year’s ASIL Annual Meeting, we asked some of our leading authors in international law to reflect on the most important new frontier in the area, what challenges it confronts, and how the field of international law is adapting to it. Rachel E. VanLandingham considers the principle of distinction in the context of complex military operations and its impact on international humanitarian law.
While exciting topics such as autonomous weapons and cyberwarfare may at first blush seem like the most “important new frontiers” in international humanitarian law, there is another more immediate and complex challenge confronting those engaged in current and looming wars, a challenge with a human face. Today and unfortunately tomorrow, professional militaries find, and will continue to find, it increasingly difficult to determine who is friend or foe in the modern battle-space. Adherence to and implementation of the principle of distinction in the context of complex military operations against lawless opponents is the vitally important new frontier in international humanitarian law.
I’m not speaking about the not-so-new difficulties of fighting wars in an urban terrain, an environment in which elementary schools sit next door to anti-aircraft batteries. Yes, that’s a volatile situation that brings infantry men and women face-to-face with human consequence of combat operations in close proximity to civilians living their daily lives. It is instead the difficulties created by engaging enemies whose fighters intentionally cloak themselves in the protective appearance of civilians, exploiting the hesitation to attack anyone with such an appearance to gain tactical and strategic advantages against their law-abiding opponents. The legal answer to these complex situations is defined by the law of armed conflict principle of distinction, which allows deliberate attack against such enemies once the presumption of civilian status is rebutted. But what may seem simple is not; quickly determining who falls within the scope of lawful attack is often a momentous task, especially in the pressure-filled situation of close quarter combat. While challenging, conduct-based attack decisions are essentially the equivalent of a law enforcement use of force, dictated by a manifestation of hostile act or hostile intent by the opponent – and hence legally not a new frontier.
But lawful attacks on enemy belligerents are not limited to this type of conduct-based decision-making, even though this method reduces the risk of error (of mistaking civilians for the enemy). The law of armed conflict (LOAC, synonymous with international humanitarian law) allows opposing parties to target—to kill—enemy fighters based purely on their status as enemy fighters. That is, regardless if enemy belligerents happen to be sleeping, or otherwise not fighting at the moment, their status as members of an enemy belligerent group triggers the LOAC-permitted legal authority to attack. Only when the belligerent is rendered “hors de combat,” such as having surrendered or been incapacitated, is this authority terminated. On the micro level, this legal authority to target members of an opposing armed force necessarily means that those who seek to engage in such targeting must first make an objectively reasonable determination whether the individual qualifies as a lawful object of attack. Those engaged in targeting must ask and answer: is this individual a lawful target? And this is where things get really, really hard.
Membership determinations—what is known militarily as threat identification—are and will remain frustratingly difficult in most of today’s and tomorrow’s armed conflicts, in large measure because today’s enemies do not adhere to the law of war. They refuse to distinguish themselves from civilians, instead exploiting their anonymity in order to gain the tactical advantage of attack hesitation, and the strategic advantage that flows from mistakes that result in civilian casualties. In addition to their refusal to wear uniforms or otherwise distinguish themselves from civilians, the very nature of today’s enemy forces make membership determinations of their ranks fraught with challenge. Instead of the hierarchical, organized armed group that the law of war primarily developed to regulate, today’s non-state armed group is often de-centralized and maximizes technology such as the Internet to recruit, train, and execute operations. So is a member of al-Qaeda one who swears bayat (an oath of allegiance) but then only posts comments on social media, exhorting the group to defeat the enemy at all costs? If the answer is yes—and the extant law doesn’t clearly answer this question—then they are targetable under the law of armed conflict. What about the individual who travels with a group of known al-Qaeda members, cooking for them, driving them to various locations, acting as an armed bodyguard on occasion? Are they a “member” despite no formal oath of allegiance, at least one that isn’t discernable? Or what about the individual that provides legal advice to various known members of ISIS? And has sworn some type of allegiance to that group? Are they a “member” for targeting purposes per the law of armed conflict? (Assuming an on-going armed conflict against these groups, of course.)
This is where understanding how the law is operationalized is pivotal to understanding how law, facts, and process intersect to advance the ultimate goal of legal compliance and civilian risk mitigation. Of course, not all targeting decisions are made with the luxury of time and extensive process. But even in the time-sensitive context, the standard for compliance must be whether the judgment to attack was, under the circumstances, reasonable. Making such judgments against illicit enemies is the great challenge of the contemporary battle-space.
Featured image: U.S. Army Sgt. Robert V. Graham, of Fayetteville, N.C., is greeted by young villagers during a mission to assess an irrigation ditch-clearing project in the Beshood district of eastern Afghanistan’s Nangarhar province. Photo by Sgt. Albert Kelley, US Army. Public domain via Wikimedia Commons.