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

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 713.646.1857mfesta@stcl.edu