1. Means and Methods of Warfare Matthew J. Festa Professor of Law, South Texas College of Law Associate Professor, International & Operational Law, U.S. Army Judge Advocate General’s Legal Center & School* *Non-attribution policy: materials and ideas presented are those of the instructor and, are not to be attributed to any institution or to the U.S. Government

2. Agenda Principles of the Law of WarPrinciples of the Law of War TacticsTactics Weapons TreatiesWeapons Treaties

3. –Private Law –(commercial law) U.N. Charter Arms Control Customary Law Hague Conventions (means & methods) Geneva Conv/Protocols (humanitarian) Customary Law –Rules of Hostilities –(jus in bello) –Law of Armed Conflict –Law of Peace –Public Law –(intergovernmental) –International Law –Conflict Management –(jus ad bellum)

4. Sources Customary international lawCustomary international law Hague Conventions, 1907Hague Conventions, 1907 Geneva Protocols I and II, 1977Geneva Protocols I and II, 1977 Recent treatiesRecent treaties

5. Conduct of Hostilities and Targeting

6. Purpose of Rules for Hostilities Protect all from unnecessary suffering Diminish adverse effects of conflict Safeguard fundamental human rights Prevent degeneration into savagery or brutality Facilitate restoration of peace Maintain public support (CNN Factor) U.S. Army Field Manual 27-10, para. 2

7. Sources HR: Hague Regulations (Hague IV), 1907 GC: Geneva Conventions I-IV, 1949 AP: Additional Protocols I-III, 1977 FM: Field Manual 27-10, 1956 (C1 1976) CIL: Customary international law Specific treaties, e.g., cultural property, certain conventional weapons

8. Other Sources Tactical Directives Doctrine (e.g. Joint Publication 3-60) Theater Specific Rules of Engagement (ROE)

9. Rules of Engagement Don’t confuse the Law of Armed Conflict with the Rules of Engagement LOAC + political factors + operational goals = ROE LOAC is usually more permissive than ROE

10. Law of Armed Conflict Principles Military Necessity – –Military Objective Distinction – –Discrimination Proportionality Unnecessary Suffering / Humanity Chivalry

11. 1. Military Necessity U.S. Definition FM 27-10, para. 3a Hague IV, art. 23(g) “[T]hat principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible.”

12. Military Necessity AP I, art. 52(2) Military Objective: Those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

13. Military Objective Nature: the type of object Location: areas which are militarily important b/c they must be captured/denied an enemy OR because the enemy must be made to retreat from them (key terrain) Purpose: the future intended or possible use Use: how an object is presently being used

14. Nature: Purely Military Location: Key terrain Purpose: Future intended use Use: Present usage

15. Principles of the Law of War Military NecessityMilitary Necessity –Military Objective DistinctionDistinction –Discrimination ProportionalityProportionality Unnecessary Suffering / HumanityUnnecessary Suffering / Humanity

16. 2. Distinction 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. Protocol I, art. 48

17. Military Objective AP I, art. 52(2) Those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. T H I N G S

18. PEOPLE and THINGS

19. Combatants Hostile force declared: status-based – –Forces authorized to engage in hostilities (e.g. responsible command, distinctive sign, arms carried openly, and LOAC followed) No hostile force declared: conduct-based – –Hostile Act/Hostile Intent – –Civilians taking direct part in hostilities (DPH) – –Individuals in support

20. DPH (Direct Participation in Hostilities) Civilians shall enjoy the protection afforded by this section/part, unless and for such time as they take a direct part in hostilities. AP I, art. 51(3) AP II, art. 13(3)

21. Civilian Objects AP I, Art. 52.1 definition Examples: – –Undefended places – –Hospital and safety zones – –Medical units and establishments – –Medical transports – –Cultural sites – –Prohibitions on pillage

22. Duty to Distinguish AP I, Arts. 48, 51.7, 58 – –Applies to both attacker and defender – –Defender must distinguish own forces from civilians and civilian objects – –Examples: Uniforms, Markings, Duty to Segregate Civilians & Objects

23. Principles DistinctionDistinction –Military Objects and Person presumed targetable –Civilians and civilian Objects presumed not targetable –Both presumptions are rebuttable

24. Distinction… Carlos Santana?

25. Principles of the Law of War Military NecessityMilitary Necessity –Military Objective DistinctionDistinction –Discrimination ProportionalityProportionality Unnecessary SufferingUnnecessary Suffering ChivalryChivalry

26. 3. Proportionality Protocol 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.

27. Proportionality Is this excessive in relation to that? Civilian death, injury, or damage Concrete and direct military advantage Excessive: exceeding a normal, usual, reasonable, or proper limit

28. WHAT I WANT YOU TO REMEMBER: The prohibition is on the death and destruction caused in the attack, NOT on the actual attack that caused the death and destruction.The prohibition is on the death and destruction caused in the attack, NOT on the actual attack that caused the death and destruction.OR… It’s not the size of the bomb in the fight, but the size of the hole the bomb makes…It’s not the size of the bomb in the fight, but the size of the hole the bomb makes…

29. Targeting Applying LOAC principles, relevant treaties, and policy and operational concerns to specific kinetic situations. People, Places, Things

30. Targeting: Principles Military NecessityMilitary Necessity –justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible

31. Targeting: Principles DistinctionDistinction –Military Objects and Person presumed targetable –Civilians and civilian Objects presumed not targetable –Both presumptions are rebuttable

32. U.S. Targeting Categories

33. Targeting Considerations – –Legal Sources – –Rules of Engagement – –Theater-specific directives – –Policy – –Operational objectives – –Approval authorities – –Self Defense— inherent right vs. hostile act/hostile intent – –“can” vs. “should”

34. FACT SHEET 1)Near certainty that the terrorist target is present; 2)Near certainty that non-combatants will not be injured or killed; 3) An assessment that capture is not feasible at the time of the operation; operation; 4)An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and 5) An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

35. Principles of the Law of War Military NecessityMilitary Necessity –Military Objective DistinctionDistinction –Discrimination ProportionalityProportionality Unnecessary Suffering/HumanityUnnecessary Suffering/Humanity ChivalryChivalry

36. Chivalry Mutual Respect between Opposing ForcesMutual Respect between Opposing Forces Also Called HonorAlso Called Honor Respect for the Opponent hors de combatRespect for the Opponent hors de combat A Matter of Justness and Good Faith:A Matter of Justness and Good Faith: –Forbids Treachery –Forbids Perfidy

37. Enemy Uniforms U.S. policy: Combatants may wear enemy uniforms but cannot fight in them (FM 27-10 para. 54, 74)U.S. policy: Combatants may wear enemy uniforms but cannot fight in them (FM 27-10 para. 54, 74) –If captured, military personnel lose their PW status and could be tried as spies Protocol I: art. 39(2) - prohibits virtually all use of enemy itemsProtocol I: art. 39(2) - prohibits virtually all use of enemy items

38. Enemy Equipment/Colors Equipment: must remove all enemy insignia U.S. position on colors is the same as the practice regarding uniforms

39. Treachery/Perfidy Injuring the enemy by his adherence to the law of war; why the outrage? Feigning Misuse

40. “Special” Tactics –Assassination Espionage Reprisals Info Ops

41. Assassination Prohibited to put a price on the enemy’s head or to target a purely civilian head of state (Executive Order 12333(2.11))Prohibited to put a price on the enemy’s head or to target a purely civilian head of state (Executive Order 12333(2.11)) Contrast that with targeting military leadership – Saddam’s palace, Milosevic’s Vila, etc.Contrast that with targeting military leadership – Saddam’s palace, Milosevic’s Vila, etc.

42. –= absolution Espionage Gathering intelligence while in uniform is not espionageGathering intelligence while in uniform is not espionage Not a LOW violationNot a LOW violation No protection under the GC for acts of espionageNo protection under the GC for acts of espionage Tried under laws of captured nationTried under laws of captured nation Reaching friendly linesReaching friendly lines

43. Principles of the Law of War Military NecessityMilitary Necessity –Military Objective DistinctionDistinction –Discrimination ProportionalityProportionality Unnecessary Suffering/HumanityUnnecessary Suffering/Humanity ChivalryChivalry

44. 4. Unnecessary Suffering/Humanity Hague IV, art. 23e: [I]t is especially forbidden to employ arms, projectiles, or material Hague IV, art. 23e: [I]t is especially forbidden to employ arms, projectiles, or material calculated to cause unnecessary suffering ns rea/intent/design element) (mens rea/intent/design element) Hague IV, art. 22: The right of belligerents to adopt means of injuring the enemy is not unlimited

45. Weapons Review GP I, art. 36: before any new weapon system is employed, it must conform to international law

46. Weapons LEGAL REVIEW: DoD Directive 5000.1 “The Defense Acquisition System” ? –The test: Is the acquisition and procurement of the weapon consistent with all applicable treaties, customary international law, and the law of armed conflict?

47. 47 Weapons Review Legal Analysis Whether the weapon or its intended use in armed conflict causes unnecessary sufferingWhether the weapon or its intended use in armed conflict causes unnecessary suffering Whether the weapon can be controlled in a manner to discriminate between civilian and military targetsWhether the weapon can be controlled in a manner to discriminate between civilian and military targets Whether there is a specific treaty or law that prohibits its useWhether there is a specific treaty or law that prohibits its use

48. 48 Weapons Review Applicable Treaties Article 23, Annex to Hague Convention IV Respecting the Laws and Customs of War On Land of 1907.Article 23, Annex to Hague Convention IV Respecting the Laws and Customs of War On Land of 1907. –“[I]t is especially forbidden – …. e.To employ arms, projectiles or material calculated to cause unnecessary suffering….” Also prohibits use of “poison or poisoned weapons”Also prohibits use of “poison or poisoned weapons”

49. 49 Weapons Review Customary International Law Historical ExamplesHistorical Examples –Bullets that flatten or expand easily in the human body –Lances with barbed heads –Irregular shaped bullets –Projectiles filled with glass –Use of substances on bullets that would tend to inflame a wound –Exploding munitions of less than 400 grams (but only if primarily intended to be used against personnel)

50. 50 Key Standards from Customary International Law [and FM 27-10] DistinctionDistinction –Also called “discrimination” –Between combatants and civilians –Between civilian objects and military objectives ProportionalityProportionality –Loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.

51. 51 Convention on Certain Conventional Weapons

52. 52 Weapons Review Current DAJA-IO Review Process Lead role assigned to Special Assistant to The Judge Advocate General for Law of War MattersLead role assigned to Special Assistant to The Judge Advocate General for Law of War Matters –Assisted by active and reserve component lawyers assigned to DAJA-IO Opinion typically coordinated with other ServicesOpinion typically coordinated with other Services Opinion is not published but unless classified is accessible via FOIAOpinion is not published but unless classified is accessible via FOIA

53. Example: Small Arms Ammo The Hague Declaration Concerning Expanding Bullets, July 29, 1899 Hollow Point v. Open Tip Frangible

54. Open Tip Hollow Point Lead Tip Hollow Point

55. Nonlethal Weapons “Bean-bag rounds”“Bean-bag rounds” Water cannonsWater cannons “Goop Gun”“Goop Gun” –sticky foam version –super lubricants version Tasers - electric shockTasers - electric shock Active Denial SystemActive Denial System

56. Landmines

57. Landmines (Types) Anti-personnel or anti- tank & anti-tank with anti-handling devices Remotely delivered or non-remotely delivered Smart or dumb mines

58. Ottawa Treaty Prohibits the use, stockpiling, production or transfer of Anti-Personnel Landmines Doesn’t prohibit the use of Anti- Vehicle Landmines

59. Bottom-line 27 Feb 04 – New US Policy on Landmines27 Feb 04 – New US Policy on Landmines –Eliminate persistent landmines of all types from the arsenal (persistent AP mines in ROK only) –Between now and 2010, persistent anti- vehicle land mines can only be employed outside Republic of Korea with Presidential authorization –After 2010 US will no longer employ persistent anti-personnel or anti- vehicle land mines Available at www.state.gov/t/pm/rls/fs/30044.htm

60. Claymores Claymore “mine” (Prot II CCW art. 5, para. 6) Command detonated v. tripwire mode

61. Booby-traps A device designed to kill or maim an unsuspecting person who disturbs an apparently harmless object or performs a normally safe act (CCW Amended Protocol II, art. 2.4)

62. Booby-traps Prohibited uses: (art. 7 of CCW AMP II)Prohibited uses: (art. 7 of CCW AMP II) –protective emblems –sick and wounded/burial sites –medical stuff –children’s toys –food or drink –objects of religious nature –historic monuments –animals or their carcasses –Etc.

63. Incendiaries CCW states: “incendiary weapons do not include munitions which have incidental incendiary effects, such as illuminates, tracers, smoke or signaling systems.”

64. Lasers 1995 Protocol IV1995 Protocol IV –“Specifically designed” –“to cause permanent blindness to unenhanced vision” –Incidental or collateral effect not banned... Laser Sights, PointersLaser Sights, Pointers Laser DazzlersLaser Dazzlers The future – Directed Energy Weapons?The future – Directed Energy Weapons?

65. Incendiaries Protocol III of CCW: No use against military objectives located within concentrations of civilians Examples

66. Nonlethal Weapons  Misnomer  Require a legal review DoDD 3000.3  Purpose:  Discourage, delay, prevent hostile actions  Limit escalation/Avoid lethal force  Better protect US forces  Temporarily disable equipment, facilities, personnel

67. Questions? Matthew J. Festa South Texas College of Law Dept. of Int’l and Operational Law U.S. Army Judge Advocate General’s Legal Center and School Phone 713.646.1857 mfesta@stcl.edu