1. Chapter 4: Principles

2. The Regulatory Foundation
Contemporary LOAC is built on a foundation of core principles
These principles are implemented through numerous treaty provisions
Familiarity with these principles is essential to:
Provide a “default” standard for situations of treaty uncertainty
Provide an “azimuth” for the planning and training

3. Filling the Void
LOAC principles have always been useful to fill potential regulatory voids
This concept is reflected in the Marten’s Clause, which recognized the potential for hostilities falling outside the scope of treaty applicability
Originally included in the 1899 Hague Convention IV
Included in the 1949 Geneva Conventions
Included in the 1977 Additional Protocols

4. Filling the Void
LOAC principles are especially important for US operational practice
DOD Directive A requires compliance with LOAC principles during all military operations:
Sets a consistent baseline for training and execution
Ensures “principled” military action across the operational spectrum

5. What are the Principles?
LOAC principles are characterized slightly differently in various sources
Generally, the core principles include:
Military Necessity
Humanity
Distinction
Proportionality
The Prohibition Against Inflicing Unnecessary Suffering

6. What are the Principles?
Military Necessity and Humanity are best understood as “first principles” of the LOAC:
The balance between necessity and humanity is central to conflict regulation
All other principles reflect aspects of both necessity and humanity

7. Military Necessity
Military Necessity: justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible
Reflects a rejection of the unlimited effect of necessary by acknowledging that forbidden actions are conclusively unnecessary
Does not justify the infliction of destruction or suffering unrelated to achieving a military objective

8. Humanity
Requires the humane treatment of any person not actively participating in hostilities:
Always strive to minimize harm to innocent civilians
Extend humane protections to even your enemy once he is subdued
Prohibits any suffering not justified by the dictates of military necessity

9. Distinction
Distinction implements the principles of necessity and humanity by permitting deliberate attack only against targets that make a genuine contribution to subduing the enemy
Military Objects and Person presumed targetable
Civilians and civilian Objects presumed not targetable
Both presumptions are rebuttable

10. Principles
Proportionality: Implements the principle of humanity by prohibiting attacks on otherwise lawful targets when the collateral effects to innocent civilians and their property will be excessive compared to the military advantage achieved
But also reflects the principle of necessity by permitting the knowing but non-deliberate infliction of suffering on these civilians so long as it is not considered excessive compared to the anticipated military advantage

11. Unnecessary Suffering
Longstanding principle that prohibits the infliction of superfluous injury or suffering against enemy personnel
Originally applied only to weapons (means), but AP I extends prohibition to tactics (methods)
Originally included a scienter element: applied to the “calculated” infliction of unnecessary suffering, but AP I eliminates this element
As a general rule, weapons fielded are presumed consistent with this principle
Modern trend has been to identify pernicious weapons and prohibit them by treaty (like chemical weapons)

12. Rules of Engagement Policy, not Law
But must be consistent with applicable LOAC
US ROE reiterate significance of core LOAC principles
Commanders use ROE to tailor use of force authority to dictates of particular missions

13. Questions?