Means and Methods of Warfare
Matthew J. FestaProfessor 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
Agenda
• Principles of the Law of War
• Tactics
• Weapons Treaties
– 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)
Sources• Customary international law• Hague Conventions, 1907• Geneva Protocols I and II, 1977• Recent treaties
Conduct of Hostilities and Targeting
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
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
Other Sources• Tactical Directives
• Doctrine (e.g. Joint Publication 3-60)
• Theater Specific Rules of Engagement (ROE)
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
Law of Armed Conflict Principles
• Military Necessity–Military Objective
• Distinction–Discrimination
• Proportionality• Unnecessary Suffering / Humanity• Chivalry
1. Military NecessityU.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 enemyas soon as possible.”
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.
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
Nature: Purely Military
Location: Key terrain
Purpose: Future intended use
Use: Present usage
Principles of the Law of War
• Military Necessity–Military Objective
• Distinction–Discrimination
• Proportionality• Unnecessary Suffering / Humanity
2. Distinction
Parties to the conflict shall at all times distinguish between the civilian population
and combatants and betweencivilian objects and military objectives
and accordingly shall direct theiroperations only against military objectives.
Protocol I, art. 48
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
PEOPLE and
THINGS
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
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)
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
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
Principles• Distinction
–Military Objects and Person presumed targetable
–Civilians and civilian Objects presumed not targetable
–Both presumptions are rebuttable
Distinction…
Carlos Santana?
Principles of the Law of War
• Military Necessity–Military Objective
• Distinction–Discrimination
• Proportionality• Unnecessary Suffering• Chivalry
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.
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
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.
OR…• It’s not the size of the bomb in the fight,
but the size of the hole the bomb makes…
TargetingApplying LOAC principles, relevant treaties, and policy and operational
concerns to specific kinetic situations.
People, Places, Things
Targeting: Principles• 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
Targeting: Principles• Distinction
–Military Objects and Person presumed targetable
–Civilians and civilian Objects presumed not targetable
–Both presumptions are rebuttable
U.S. Targeting Categories
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”
FACT SHEET1) 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;
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.
Principles of the Law of War• Military Necessity
–Military Objective• Distinction
–Discrimination• Proportionality• Unnecessary Suffering/Humanity• Chivalry
Chivalry• Mutual Respect between Opposing
Forces• Also Called Honor• Respect for the Opponent hors de combat• A Matter of Justness and Good Faith:
–Forbids Treachery–Forbids Perfidy
Enemy Uniforms• 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 items
Enemy Equipment/Colors
Equipment: must remove all enemy insignia
U.S. position on colors is the same as the practice regarding uniforms
Treachery/PerfidyInjuring the enemy by his adherence to the
law of war; why the outrage?
Feigning
Misuse
“Special” Tactics –Assassination
Espionage
Reprisals
Info Ops
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))
• Contrast that with targeting military leadership – Saddam’s palace, Milosevic’s Vila, etc.
–= absolution
Espionage
• Gathering intelligence while in uniform is not espionage
• Not a LOW violation• No protection under the GC for
acts of espionage• Tried under laws of captured
nation• Reaching friendly lines
Principles of the Law of War• Military Necessity
–Military Objective• Distinction
–Discrimination• Proportionality• Unnecessary Suffering/Humanity• Chivalry
4. Unnecessary Suffering/Humanity
Hague IV, art. 23e: [I]t is especially forbidden to employ arms, projectiles, or material
calculated to cause unnecessary suffering(mens rea/intent/design element)
Hague IV, art. 22: The right of belligerents to adopt means of injuring the enemy is
not unlimited
Weapons Review
GP I, art. 36: before any new weapon system is employed, it must conform to international law
WeaponsLEGAL 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
Weapons ReviewLegal Analysis
• Whether 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 targets
• Whether there is a specific treaty or law that prohibits its use
48
Weapons ReviewApplicable Treaties
• 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”
49
Weapons ReviewCustomary International Law
• Historical 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
Key Standards from Customary International Law [and FM 27-10]• Distinction
–Also called “discrimination”–Between combatants and civilians–Between civilian objects and military
objectives
• Proportionality–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
Convention on Certain Conventional Weapons
52
Weapons ReviewCurrent DAJA-IO Review Process
• Lead 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 Services
• Opinion is not published but unless classified is accessible via FOIA
Example: Small Arms Ammo
The Hague Declaration Concerning Expanding Bullets, July 29, 1899
Hollow Point v. Open Tip
Frangible
Open Tip
Open Tip
Hollow Point
Lead Tip
Hollow Point
Nonlethal Weapons• “Bean-bag rounds”• Water cannons• “Goop Gun”
– sticky foam version– super lubricants version
• Tasers - electric shock• Active Denial System
Landmines (Types)Anti-personnel or anti-tank & anti-tank with anti-handling devices
Remotely delivered or non-remotely delivered
Smart or dumb mines
Ottawa TreatyProhibits the use,
stockpiling, production or transfer of Anti-Personnel
Landmines
Doesn’t prohibit the use of Anti-Vehicle Landmines
Bottom-line• 27 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
Claymores
Claymore “mine” (Prot II CCW art. 5, para. 6)
Command detonated v. tripwire mode
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)
Booby-traps• 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.
IncendiariesCCW states: “incendiary weapons do
not include munitions which have incidental incendiary effects, such as
illuminates, tracers, smoke or signaling systems.”
Lasers• 1995 Protocol IV
–“Specifically designed”–“to cause permanent blindness to
unenhanced vision”– Incidental or collateral effect not
banned . . .• Laser Sights, Pointers• Laser Dazzlers• The future – Directed Energy Weapons?
IncendiariesProtocol III of CCW: No use against
military objectives located within concentrations of civilians
Examples
Nonlethal Weapons Misnomer Require a legal review DoDD 3000.3 Purpose:
Discourage, delay, prevent hostile actions
Limit escalation/Avoid lethal forceBetter protect US forcesTemporarily disable equipment,
facilities, personnel
Questions?
Matthew J. FestaSouth Texas College of Law
Dept. of Int’l and Operational LawU.S. Army Judge Advocate General’s
Legal Center and School
Phone [email protected]