Belligerent Targeting and the Invalidity of a Least Harmful Means Rule
| Author | Geoffrey S. Corn - Laurie R. Blank - Chris Jenks - Eric Talbot Jensen |
| Position | Presidential Research Professor of Law, South Texas College of Law - Director, International Humanitarian Law Clinic, Emory University School of Law - Assistant Professor of Law and Criminal Justice Clinic Director, SMU Dedman School of Law - Associate Professor at Brigham Young Law School, Lieutenant Colonel (Retired), U.S. Army Judge Advocate... |
| Pages | 536-626 |
International Law Studies 2013
536
Belligerent Targeting and the Invalidity of a Least
Harmful Means Rule
Geoffrey S. Corn
Laurie R. Blank
Chris Jenks
Eric Talbot Jensen*
[Y]ou may fly over a land forever; you may bomb it, atomize it, pulverize
it and wipe it clean of life—but if you desire to defend it, protect it, and
keep it for civilization, you must do this on the ground, the way the Ro-
man legions did, by putting your young men into the mud.
— T.R. Fehrenbach, THIS KIND OF WAR (1963)
* Professor Corn is Presidential Research Professor of Law, South Texas College of Law;
Lieutenant Colonel (Retired), U.S. Army Judge Advocate General’s Corps; Professor
Blank is Director, International Humanitarian Law Clinic, Emory University School of
Law; Professor Jenks is Assistant Profe ssor of Law and Criminal Justice Clinic Director,
SMU De dman School of Law; Lieutenant Colonel (Retired) U.S. Army Judge Advocate
General's Corps; Professor Jensen is Ass ociate Professor at Brigham Young Law School,
Lieutenant Colonel (Retired), U.S. Army Judge Advocate General’s Corps. Pr ofessors
Corn, Jenks and Jensen each served in the U.S. Army for ov er 20 years, beginning their
careers as Intelligence, Infantry and Armor officers, respectively, and then serving in the
U.S. Army Judge Advocate Generals’ Corps. Professors Jenks and Jensen participated in
operational deployments on peacekeeping missions and as legal advisors to ground com-
bat units in Iraq. Portions of this article draw significantly on Professor Corn's earlier arti-
cle, Mixing Apples a nd Hand Grenades: The Logical Limit of Applying Human Rights Norms to
Armed Conflict, 1 JOURNAL OF INTERNATIONAL HUMANITARIAN LEGAL STUDIES 54
(2010). We would like to thank Allison Arnold (J.D. expected, Brigham Young Law
School) and Tariq Mohideen (J.D. expected, 2013, Emory University School of Law) for
their helpful and enthusiastic research assistance in the preparation of this article. Most of
all, we wish to recognize the great pleasure each of us has had in working on this article
with colleagues whose wisdom, fr iendship and diligence has made this collective effort a
genuine professional highlight.
Invalidity of a Least Harmful Means Rule Vol. 89
537
T
I. INTRODUCTION
he M-4 carbine, standard issue for U.S. armed forces, has two firing op-
tions: semi-automatic and three-shot burst. When set to three-shot mode,
the carbine discharges three rounds each time the trigger is pulled. These
rounds inflict devastating injury. At the very moment you read this article,
it is likely that hundreds if not thousands of U.S. service members, like
their counterparts in multiple nations, are engaged in training with this and
similar weapons. The training conditions soldiers
1
to employ a three-round
burst aimed at the center mass of the human silhouette once the decision
to attack has been made. It does not involve sophisticated discussions
about why shots are aimed at center mass, or why three-shot bursts are
employed. For the soldier, the logic is self-evident: the employment of
combat power against an enemy—whether an individual soldier firing her
rifle, a tank gunner firing a highly-explosive anti-tank round, or an Apache
pilot letting loose a salvo of rockets—is intended to completely disable the
enemy in the most efficient manner in order to eliminate all risk that the
opponent remains capable of continued participation in the fight. Because
hesitation in the midst of armed hostilities produces unquestionable risk to
friendly forces and erodes the good order and discipline essential to effec-
tive execution of military operations, the goal of such training is to develop
a genuine sense of combat aggressiveness that is uncompromised by any
such hesitation once an enemy target has been positively identified.
Military training and professional development strives to inculcate this
ethos into both the soldiers at the proverbial tip of the spear, and the
commanders and staff officers who plan their operations. Close with and de-
stroy the enemy is the mantra of the U.S. infantry, and warfare is replete with
examples of the lethality associated with combat operations. How soldiers
are equipped, trained, and mentally developed for combat is just one indi-
cation of the brutal and deadly nature of warfare, or armed conflict in in-
ternational legal parlance. At its core, this endeavor involves the deliberate
application of combat power that produces a high probability of causing
1
. The term “soldier” is used as a generic description of all service members, and is
not intended to suggest that the analysis in this article is limited to members of the U.S.
Army or to diminish the challenges confronted by their counterparts in the Marine Corps,
Air Force, Navy, or Coast Guard.
International Law Studies 2013
538
death—the use of weapons (means) and tactics (methods) of warfare that
could never, in any other context, be considered justified by domestic or
international legal principles. One of the axiomatic rules of war is that the
authority to employ this combat power—to attack—is justified based on a
determination of enemy belligerent status: once a potential object of attack
is positively identified as a member of an enemy belligerent group, these
devastating means and methods of warfare may lawfully be utilized. This
authority is not, however, unlimited, and terminates as no longer justified
once the enemy is rendered combat ineffective as the result of disabling
wounds or capture, conditions that clearly indicate the enemy belligerent is
physically incapable of engaging in hostile conduct presumptively associat-
ed with this status.
There is virtually no disagreement in the contemporary international
discourse on the law of armed conflict (LOAC) with the rule that once an
enemy belligerent becomes hors de combat—what a soldier would recognize
as “combat ineffective”—the authority to employ deadly force terminates.
2
However, what qualifies as hors de combat and accordingly operates to rebut
the status-based presumption of hostility and accordant targetability has
become a flashpoint of current international legal debate. Until recently,
almost all experts interpreted hors de combat to mean incapacitation resulting
from wounds, sickness, or capture.
3
Accordingly, an enemy belligerent falls
within the proverbial crosshairs of status-based targeting authority unless
and until rendered physically incapable of continuing to perform a belliger-
ent function. Furthermore, unless this incapacity is involuntary as the result
of wounds or sickness, the individual enemy bears the burden of demon-
strating this incapacity through the act of surrender. Indeed, it is no exag-
geration to assert that members of the armed forces, especially members of
the military legal profession charged with educating, training, and advising
the armed forces, universally embrace this understanding of the law.
Recently, however, some have forcefully asserted that the LOAC in-
cludes an obligation to capture in lieu of employing deadly force whenever
doing so presents no meaningful risk to attacking forces, even if the enemy
2
. Protocol Additional to t he Geneva Conventions of 12 August 1949, and Relating
U.N.T.S. 3 [hereinafter AP I].
3
. YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTER-
NATIONAL ARMED CONFLICT 159 (2010); A.P.V. ROGERS, LAW ON THE BATTLEFIELD
48–49 ( 2004); FRITS KALSHOVEN & LIESBETH ZEGVELD, CONSTRAINTS ON THE WAG-
ING OF WAR 97 (2011).
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