2Targeting I Review 2. Distinction 3. Military Objective I. Military NecessityTwo elements: lawful (rules out kreigsraison) and “indispensable”Test – what did commander believe was necessary based on facts, circumstances, and information available at the time (Rendulic Rule)2. DistinctionLOW’s bedrock principle … becoming harder and harder to do3. Military ObjectiveApplication of Military Necessity and Distinction to targetingTargeting board analysis begins with two-part test1) NLPU makes effective contribution (Nature, Location, Purpose, Use)2) Capture/Destruction/Neutralization offers concrete/direct military advantageWe’re in the Hague Law arena now!Looking at means and methods of war / conduct of hostilities4 core principlesMilitary NecessityRendulic Rule: an objective test applied to a particular subjectAlso applies when considering proportionality determinations!DistinctionGrandfather rule / bedrock principleMilitary ObjectiveThe application of these two principles to targetingTargeting analysis should always begin with Military Objective two part test!
3Targeting Board Analysis Is it a lawful target?Military objective? 2 part test1) Object by its nature, location, purpose or use makes an effective contribution to military action2) Total or partial destruction, capture, or neutralization in the circumstances ruling at the time offers a definite military advantageMisused protected place?If civilians will be affected due to either your target itself (the military objective) or the means/methods used, than must do a proportionality balancing test
4Targeting Board Analysis Any special protections (e.g., requirement to warn)Is the proposed weapon lawful under the circumstances?Will the expected collateral damage and incidental injury be “excessive in relation to” the military advantage?If so, how can collateral damage and incidental injury be minimized?Does the target and choice of means/method comply with the ROE (which may be more restrictive)?If civilians will be affected due to either your target itself (the military objective) or the means/methods used, than must do a proportionality balancing test
5DISTINCTION AP I Article 51(5)(a) Among others, the following types of attacks are to be considered as indiscriminate:(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.DISTINCTIONMilitary objectives must be separate and distinct … but there appears to be wiggle room allowing commanders to consider military advantage more holistically
6PROPORTIONALITY AP I: Article 51(5)(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.PROPORTIONALITYMilitary objectives must be separate and distinct … but there appears to be wiggle room allowing commanders to consider military advantage more holistically
7Ur Ziggurat, 4000 years oldFirst, this is a famous 1991 photograph of two MiG-21s deliberately positioned next to the Ur Ziggurat, otherwise a tower, near Talil. As you can see, they were brought up this road and parked directly in front of this archeological site. Obviously there's no airfield or landing strip nearby for these aircraft. A coalition strike on the aircraft could well have caused extensive damage to this ancient Mesopotamian cultural treasure. It's over 4,000 years old.Q: Do we even get to proportionality in doing our targeting board analysis?Does this target pass the 2 part test?
8Targeting Board Analysis Is it a lawful target?Military objective? 2 part test1) Object by its nature, location, purpose or use makes an effective contribution to military action2) Total or partial destruction, capture, or neutralization in the circumstances ruling at the time offers a definite military advantageMisused protected place?If civilians will be affected due to either your target itself (the military objective) or the means/methods used, than must do a proportionality balancing test
11What it isn’t: It is different than human rights proportionality It is also different than jus ad bellum proportionality (proportionate response)Why do I say Jus in Bello Proportionality?Human rights proportionalityProtects object of state violenceJus ad Bellum proportionalityProportionate response in self-defense“Nothing unreasonable or excessive”
12Jus ad Bello Proportionality: An attack is not to be launched, or is to be cancelled, suspended, or re-planned, if“the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”API, Art,. 51(5)(b) and Arts. 57(2)(a)(iii) and (2)(b)Note: Art 57 requires pre-calculation of likely collateral damage (Article 57.2(b))Combining relevant sections of Articles 51 and 57, this is the modern day rule of proportionality
13Jus ad Bello Proportionality: With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (i) 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 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;Combining relevant sections of Articles 51 and 57, this is the modern day rule of proportionality
14Jus ad Bello Proportionality: (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.Combining relevant sections of Articles 51 and 57, this is the modern day rule of proportionality
15Balancing Test Is this excessive in relation to that? Civilian death, injury, or damageConcrete and directmilitary advantageExcessive, not extensive!Excessive: “exceeding a normal, usual, reasonable, or proper limit”
16Jus in Bello Proportionality Three PerspectivesFirst, proportionality is a factor in the selection of the target. If civilian losses are inevitable, because of either the intermingling of civilian and military targets or the dual character of the target itself, these must be balanced against the military advantage. Second, the means and methods of attack must be assessed. Some weapons are more likely to involve indiscriminate damage than others…Finally, even if these requirements are met, the conduct of the attack itself must not be negligent and involve unnecessary civilian casualties.Three Perspectives One Must ConsiderTargetIntermingling of civiliansDual UseMeans and MethodsPGMs etc.Is custom changing?ConductTimingWarning – see 57(2)(C) – is surprise important?
17Three Problems with Proportionality Determining military advantageResponsibility for lossesRule encourages defender to leave civilians in place to “cost-out” high value targetsFriction of war: proportionality asks a question no commander can anticipate~ Hays ParksMilitary AdvantageTalked about thisWho makes the call?How broad?LossesArt 51(3) shifts burden to attacker and demands a degree of certainty that never exists in combatEncourages defender to ignore its obligation to separate civilian populationAttackers always blamed today!Fog and FrictionAnother factor working against limiting collateral damage and determining beforehand the degree of civilian incidental effects
18Standard of ReviewThe legal standard is whether “a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.”~ Prosecutor v. Galić, at para. 58.Perpetrator = commanderThis is an objective (RPP) test applied to a particular subject!Commentary: “putting this into practice requires complete good faith”
19Standard of ReviewMust be CLEARLY disproportionate to become a violation. Close issues don’t count.Perpetrator = commanderThis is an objective (RPP) test applied to a particular subject!Commentary: “putting this into practice requires complete good faith”
20Fallujah“Even extensive civilian casualties can be acceptable if they are not excessive in light of the concrete and direct military advantage anticipated…What do you think? See page 277
21The Plane Bombing a Bridge Scenario Plane on approachReady to bomb bridgeSees a passenger train start to cross bridge
22Solis“ Precision-Guided Munitions are NOT a LOAC/IHL requirement…” 275. Really?
24Force Protection“Application of the principle of proportionality is more easily stated than applied in practice…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….[T]here 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.”~A.V.P. Rogers, “Zero-Casualty Warfare,” 837 Int’l Rev. of the Red Cross 165, 169 (March 2000).Very difficult balance that commander’s must make: risk to troops vs risk to civiliansEric Widmar: Where does the average commander fall in terms of striking this balance? What biases do commanders have when it comes to allowable risk and collateral damage?Gaza article: “I didn’t want to risk the lives of my men. I ordered the house destroyed.”
26Principle of Proportionality And the truth of the matter is, sir, that on deliberately planned targets, we very rarely have either civilian casualties or so called collateral damage. The real challenge is in spontaneous targeting, troops in contact, for example. When a call comes through -- "troops in contact need help now" -- that is the more challenging situation, when Americans or coalition troops are under fire and at risk. ~ Gen Norton Schwartz, Apr 09
27Stopping Point for Proportionality Class – Resume in GWOT
28Jus in Bello Proportionality Application in COIN?“Any use of force generates a series of reactions.”“Counterinsurgencies should calculate carefully the type and amount of force to be applied and who wields it for any operation. An operation that kills five insurgents is counterproductive if collateral damage leads to the recruitment of fifty.”Matt Beran: Different standard in COIN???3-24 COIN Manual explicitly mentions collateral damage as counterproductive to the unique strategic goals of COIN
29Application in COIN?“It doesn't matter how hard we try to avoid hurting the innocent, and we do try very hard. It doesn't matter how proportional the force we deploy, how precisely we strike. It doesn't even matter if the enemy hides behind civilians. What matters are the death and destruction that result and the expectation that we could have avoided it. In the end, all that matters is that, despite our best efforts, sometimes we take the very lives we are trying to protect.”~ Adm Mike Mullen, 15 Feb 09, Wash PostHIDDENThis leads to very restrictive ROE!Expectation: lawfare ideaEnemy doesn’t follow the LOW and US going opposite way (can/should – we can under LOW but shouldn’t under COIN restraint ROE) … US going way beyond what the LOW requires
30Jus in Bello Proportionality Application in COIN?"In this type of war, when the objective is not the enemy's defeat but the people's success, less really is more," Mullen said. "Each time an errant bomb or a bomb accurately aimed but against the wrong target kills or hurts civilians, we risk setting our strategy back months, if not years.“Embedded in Mullen's new doctrine is the somewhat controversial notion that troops should assume greater physical risk in order to protect innocent civilians in places such as Afghanistan and Iraq. "We protect the innocent," Mullen said. "It is who we are.“CJCS Calls for More Restraint in War, Wash Post, 5 Mar 2010From a CJCS Speech at Leavenworth last Thursday
31Proportionality – U.S. Balancing Test Current Test (Conventional Warfare)Proposed Test (Counterinsurgency Warfare)Military Advantage defined as “submission of the enemy”Collateral damage weighed once (against military advantage)Collateral damage accepted as unavoidable and incidentalMilitary Advantage re-defined as “safety and security of the local population”Collateral damage weighed twice (offset to military advantage as well as against it)Collateral damage rejected as neither unavoidable nor incidental
32Operation Cast Lead “Consent and Advice” Udi: What was Operation Cast Lead?Tell us about Haaretz newspaperMy intro:Fascinating articleReally provides a window into how international law (and lawyers) impacts targeting decisions – dynamics involved in this at a practical level in a very recent military campaignAnd one that has been highly criticizedMore than 35 criminal investigationsGoldstone Report – EU voting on whether to adopt it TODAYLots of politicsOur focus is on the process
33Analysis No ROE – Shoot 1st. Use of Human Shields to enter buildings Property vandalizedFiring at Water TanksUse of White Phosphorous recklesslyIll-disciplined attitude towards civilians
34Analysis Shooting of old man with flashlight? Forcing civilians to enter houses w/ gun on their soldiersSending civilians into a house to tell others to evacuateCalling via Phone to tell people to leave
35The Police Force What are the operative facts? Does tweaking them at all matter?
36Israel ResponseWhereas members of a civilian police force that is solely a civilian police force, who have no combat function are not considered combatants under the Law of Armed Conflict, international law recognises that this principle does not apply where police are part of the armed forces of a party. In those circumstances, they may constitute a legitimate military target. In other words, the status of the Palestinian ―police under the Law of Armed Conflict depends on whether they fulfilled combat functions in the course of the armed conflict. The evidence thus far is compelling that they are.
37Goldstone Report (Sep 09) 1720. The Mission also concludes that Israel, by deliberately attacking police stations and killing large numbers of policemen (99 in the incidents investigated by the Mission) during the first minutes of the military operations, failed to respect the principle of proportionality between the military advantage anticipated by killing some policemen who might have been members of Palestinian armed groups and the loss of civilian life (the majority of policemen and members of the public present in the police stations or nearby during the attack). Therefore, these were disproportionate attacks in violation of customary international law. The Mission finds a violation of the right to life (Article 6 ICCPR) of the policemen killed in these attacks who were not members of Palestinian armed groups.HUMAN RIGHTS IN PALESTINE AND OTHEROCCUPIED ARAB TERRITORIESReport of the United Nations Fact Finding Mission on the Gaza ConflictOn 3 April 2009, the President of the Human Rights Council established the United NationsFact Finding Mission on the Gaza Conflict with the mandate “to investigate all violations ofinternational human rights law and international humanitarian law that might have beencommitted at any time in the context of the military operations that were conducted in Gazaduring the period from 27 December 2008 and 18 January 2009, whether before, during orafter.”2. The President appointed Justice Richard Goldstone, former judge of the Constitutional Courtof South Africa and former Prosecutor of the International Criminal Tribunals for the formerYugoslavia and Rwanda, to head the Mission.4. The Mission interpreted the mandate as requiring it to place the civilian population of theregion at the centre of its concerns regarding the violations of international law.
38Israel ResponseThe issue of proportionality turns on the reasonableness of a commander‘s decision to use a particular munition in a particular context, taking into account the expected military benefit and the expected collateral damage. Second-guessing the reasonableness of a commander‘s decision in a rapidly evolving and complex battlefield situation should not be done lightly, and must take into account the information available to the commander at the time of the decision (not what actually occurred) and the value of the military objective to a reasonable commander (rather than to a third-party observer). In the case of smoke munitions containing white phosphorous, the expected military benefit was that they would protect Israeli forces from attack: a compelling military objective. Against this objective, one must weigh the anticipated risk of harm to civilians and property from the use of smoke munitions, which are designed to be a non-lethal type of munition.
39Goldstone Report1683. In this respect, the Mission recognizes that not all deaths constitute violations of international humanitarian law. The principle of proportionality acknowledges that under certain strict conditions, actions resulting in the loss of civilian life may not be unlawful. What makes the application and assessment of proportionality difficult in respect of many of the events investigated by the Mission is that deeds by Israeli forces and words of military and political leaders prior to and during the operations indicate that as a whole they were premised on a deliberate policy of disproportionate force aimed not at the enemy but at the “supporting infrastructure.” In practice, this appears to have meant the civilian population.
40Operation Cast Lead Issues Military objective determination Proportionality determinationsRole of the International Law DivisionReputationContextInternational LawDevelopment through violations?
41Operation Cast Lead Military Objective? Police Academy Graduation: lawful target?"Underlying our rationale was the way Hamas used the security forces," says a senior ILD figure. "Actually, one can look at the totality as the equivalent of the enemy's armed force, so they were not perceived as police. In our eyes, all the armed forces of Hamas are the equivalent of the army, just as in the face of the enemy's army every soldier is a legitimate target.""As we understand it," says a senior figure in ILD, "the way Hamas operates is to use the entire governmental infrastructure for the organization's terrorist purposes, so that the distinctions are a bit different. We adjust the targets to the case of a terrorist regime."
43Goldstone Report1685. The Mission recognizes fully that the Israeli 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. The fundamental principles of distinction and proportionality apply on the battlefield, whether that battlefield is a built up urban area or an open field.HUMAN RIGHTS IN PALESTINE AND OTHEROCCUPIED ARAB TERRITORIESReport of the United Nations Fact Finding Mission on the Gaza ConflictOn 3 April 2009, the President of the Human Rights Council established the United NationsFact Finding Mission on the Gaza Conflict with the mandate “to investigate all violations ofinternational human rights law and international humanitarian law that might have beencommitted at any time in the context of the military operations that were conducted in Gazaduring the period from 27 December 2008 and 18 January 2009, whether before, during orafter.”2. The President appointed Justice Richard Goldstone, former judge of the Constitutional Courtof South Africa and former Prosecutor of the International Criminal Tribunals for the formerYugoslavia and Rwanda, to head the Mission.4. The Mission interpreted the mandate as requiring it to place the civilian population of theregion at the centre of its concerns regarding the violations of international law.
44Operation Cast Lead Q: How does one make such calculations? "Assume that there is a terrorist in Gaza and you know that the terrorist is a Palestinian male bachelor between the ages of 18 and 45 and that tomorrow he is for certain going to kill an Israeli male aged between 18 and 45, and there is only one opportunity to kill him: by means of a missile, which will definitely succeed. How many Palestinian bachelors aged do you agree to have die, with certainty, from the missile?"
45Operation Cast Lead Q: how does one make such calculations? I don't know what the right answer is, but I know that the question has to be asked before an attack. If the commander asked the question and answered it based on a test of reasonableness; the task of the legal expert has been fully carried out.
46Operation Cast Lead The Development of Customary International Law 'What we are seeing now is a revision of international law,' Reisner says. 'If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later it is in the center of the bounds of legitimacy.“ (Reisner)
47Operation Cast Lead Q: What is the lawyer’s role? Generally, the conception is that the lawyer outlines the limits. He makes it clear to the commander where the red lines are beyond which he must not go, and that everything he does within the red lines is his responsibility. Because we are the army's lawyers, we will try to defend cases in gray areas.“"Our goal is not to fetter the army, but to give it the tools to win in a lawful manner”
48Operation Cast Lead What about the lawyer-client relationship? One of the core reasons for ILD's permissive approach may be its desire to preserve a modicum of relevance and influence in periods when the atmosphere in the General Staff and the territorial commands is particularly militant.
49Operation Cast Lead Q: Is humanitarian law obsolete? "Today, this discipline is utilized only to justify the use of force. It has ceased to exist, because there is a clear inconsistency between the rules and the reality to which they are applied. Distinctions between types of conflicts or between civilians and combatants no longer exist in the field, and one can put forward weighty and serious reasons that will justify almost any action. The implication is to validate the use of almost unlimited force in a manner that is totally at odds with the basic goal of humanitarian law. Instead of legal advice and international humanitarian law minimizing suffering, they legitimize the use of force.“ ~ Prof Ben-Naftali
50Operation Cast Lead Q: Is humanitarian law obsolete? "As long as you accept the paradigm of the rules of law, the division into those who are involved and those who are not involved is right in a war against terrorism and also in a war against another state. The question is how to translate this in a specific case. Is a power station a legitimate target when you are fighting Syria? Apparently it is. In certain circumstances a calculation will have to be made of how much it contributes to the military effort and how much it contributes to the civilian population, and the same calculation has to be made in connection with Hamas ... Just because one can make cynical use of all kinds of distinctions in their application does not mean the distinctions should be scrapped. They need to be adapted. The question is how to do that.“ ~ Prof Blum, HLS
51Operation Cast Lead“This story attests to the considerable flexibility that the laws of war allow, particularly the tests of proportionality--the damage inflicted on military targets and collateral damage to civilians. Reisner cautions against cases in which the judgment of the legal expert might replace the moral judgment of the commander, who in the last analysis bears responsibility for his actions.”Who makes / should make the call?
52Concluding Observations ProportionalityConcluding ObservationsDOD ReportBy placing a heavy burden on attackers, the modern LOW creates a perverse incentive for defenders to violate distinction and wage “lawfare”Jus in Bello Proportionality TodayDifferent than human rights and jus ad bellum proportionalityThree perspectives: 1) Target, 2) Means/Method, 3) Conduct (timing, warning etc.)Requires commander to balance “force protection” concerns with collateral damage concernsStandard: would a reasonable commander in the commander’s circumstances view the incidental effects as excessive compared to the concrete and direct military advantage (requires “complete good faith”)Different application in COIN?“A slightly ambiguous protective provision is preferable to none at all” ~ Solis
53Concluding Observations ProportionalityConcluding Observations21st Century Contexts strain its application“Any use of force generates a series of reactions.” ~ COIN Manual“[A]ll that matters is that, despite our best efforts, sometimes we take the very lives we are trying to protect.” ~ Adm MullenProportionality BalancingIt’s the commander responsibility!“Reasonable man” standardReasonable efforts (“everything feasible”) to determine expected collateral damageMust also be able to articulate “concrete and direct” military advantageLegal Advisors playing important role in this balancing
55Operation Cast Lead"The troops are in an area in which combat is extremely complicated. Not only is it a crowded, densely built-up area, but the terrorists are located in the most populated areas, and on top of that there are explosive devices, tunnels and booby traps everywhere. In this situation, and with the form of combat against them different from combat against a military enemy who meets you in the field, the way to move forward is to use force that produces results: if the building is boobytrapped and you shoot at it, the effect is greater."
56Operation Cast Lead Q: Voluntary human shields = DPH? Once a warning is issued, say senior ILD officers, a strike against civilians who are bodily defending a structure can be validated as though they were combatants."The people who go into a house despite a warning do not have to be taken into account in terms of injury to civilians, because they are voluntary human shields. From the legal point of view, I do not have to show consideration for them. In the case of people who return to their home in order to protect it, they are taking part in the fighting."
57Operation Cast LeadUntapped potential in international law: the dilemma of the gray areas?The dilemma of the gray areas and ILD's attempts to discover untapped potential in international law may perhaps explain the unit's great enthusiasm for providing legal advice to the army and the glint in advisers' eyes when certain terms roll off their tongue: 'proportional equilibrium,' 'legitimate military target,' 'illegal combatants.'Reminds of Zelikow: murky area of the law
58Operation Cast LeadQ: Is armed conflict the right paradigm for the WOT?When we started to define the confrontation with the Palestinians as an armed confrontation, it was a dramatic switch, and we started to defend that position before the Supreme Court. In April 2001 I met the American envoy George Mitchell and explained that above a certain level, fighting terrorism is armed combat and not law enforcement. His committee [which examined the circumstances of the confrontation in the territories] rejected that approach. Its report called on the Israeli government to abandon the armed confrontation definition and revert to the concept of law enforcement. It took four months and four planes to change the opinion of the United States, and had it not been for those four planes I am not sure we would have been able to develop the thesis of the war against terrorism on the present scale."
59Operation Cast Lead Q: What is the right paradigm? Effectively, the question was whether we could treat terrorists like an army and use our force against them openly. We wrote a revolutionary opinion, stating that above a certain level fighting terrorism is analogous to war and that, subject to very specific rules, we will authorize such attacks. (Reisner)
60Legal advisers in the armed forces One of the most striking features of the Kosovo campaign, in fact, was the remarkably direct role lawyers played in managing combat operations to a degree unprecedented in previous wars...the role of lawyers in this war should be sobering - indeed alarming - for devotees of power politics who denigrate the impact of law on international conflict.Richard K. Betts, Foreign Affairs, July/August 2001API, Art 82. Legal advisers in armed forces: "The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject."Along with the need for accurate intelligence gathering, the use of legal advisers is important to determine the legality of targets and target lists. To better fulfil obligations under the LoAC, legal adviser play an increasingly important role in both the planning and conduct of operations at formation levels and are a staff resource for lower level units.However, the presence of a lawyer does not obviate the commander's duty to know something of the LoAC himself…Law is becoming a key factor in the planning and execution of operations