XI. Commentary-Jus in Bello: Tony Montgomery

• Author: Tony Montgomery
• Pages: 243

T he principle of distinction is a fundamental component of the law of armed conflict. Attackers must adhere to this principle in selecting targets for destruction. What is not appropriately stressed in the literature and commentary is that this same principle applies to the defender as well as to the attacker. Routinely, the enemies of the United States-the Saddam Husseins, the Slobodan Milosevics, and the Taliban-place military equipment in the middle of protected areas containing civilians. As is well known, this is a violation of the law of armed conflict yet the United States constantly finds itself struggling with such difficult targeting issues because of these illegal acts by the enemy.2

Cloaking such targets behind civilians and in protected places does not, however, deprive the target of its military utility. Greater discussion of the responsibility of the defender to segregate such military targets from civilians 1. Lieutenant Colonel Tony Montgomery is the Deputy StaffJudge Advocate for the US Special Operations Command.

2. See 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec.

   12, 1977, 1125 U.N.T.S. 1, art. 51(7), reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Richard Guelff eds., 3rd ed., 2000) [hereinafter DOCUMENTS ON THE LAWS OF WAR] at 419.

   and protected places would be helpful to those who engage in the business of targeting.

   On September 11th, I was a member of the Office of the Staff Judge Advocate for the US Special Operations Command. Recognizing that the terrorist acts perpetrated on September 11th would quickly elicit a response from our nation, my office began searching for use of force parallels that might apply.

   One we found that proved to be of great utility was an article dealing with the use of force in guerilla warfare.3 Many might denounce any sort of similarity between guerilla war and the Global War on Terrorism. I suggest, however, that the concepts are far more similar than dissimilar.

   From an application of force perspective, my office came to several conclusions. Our first conclusion was that our forces should apply the law of armed conflict in the face of the events of September 1 th. United States forces have familiarity with these laws; they train using these laws and are comfortable adhering to them. Secondly, US public support of military operations is...