Legal Pespective from the EUCOM Targeting Cell

• Author: Tony Montgomery
• Pages: 189

The Beginnings D uring Operation Allied Force I was assigned to Headquarters, US European Command (EUCOM) as the Deputy Staff Judge Advocate and Chief, Operations Law. My responsibilities included being the legal member of the group that reviewed all fixed targets. In early July 1998, I attended one of the first meetings of the Kosovo Planning Group. This cross-functional group of officers was formed to evaluate the situation in Kosovo and make recommendations on possible courses of action (COAs). As the months passed, and a military confrontation seemed more likely, sets of targets were developed to support each of the various COAs. Target sets were refined, modified and discussed along with each COA.

The legal advisor's role/responsibility in this process is to offer well-reasoned advice, based on relevant data, in accordance with existing law and policy guidance. In the target development process, legal advisors help to ensure that a decision to attack a target or set of targets is based on known facts or reasonable assumptions. Usually, only after sifting through the facts do the assumptions come to light. There are always assumptions: about the weather, weapon effectiveness, absence or presence of people, impact on the enemy and others. Legal advisors identify and then voice concerns when the assumptions being made go beyond the reasonable person standard. This requires knowing the law, awareness of other restrictions, understanding of the military and political objectives, familiarity with the methods of achieving those objectives and, finally, the ability to synthesize and make a recommendation on a target or set of targets.

Actions at the time of the attack will be held to the standard of reasonableness; based on the evidence available at the time, factoring in the situation, time to attack and enemy actions. A commander must be reasonable in uncovering facts but clairvoyance is not a requirement. The legal advisor-if doing their job-will point out where in the rush for victory the line of reasonableness appears about to be crossed. Legal advisors provide recommendations on whether the proposed use of force abides by the law of war and do this by offering advice on both restraint and the right to use force.

Of course, the final decision on attacking a target is the subjective one of assessing the value of innocent human lives against the value of capturing/destroying a particular military objective. To assist a commander in making this subjective determination, a legal advisor-just like anyone involved-can provide an opinion and, a recommendation on a target or any other aspect of the operation. However, the final decision will always be the commander's.

Legal advisors do not set the political or military objectives of a campaign, nor do they approve or disapprove targets.

Targeting-Some Basics For those with no personal experience, it may come as a surprise to know that targeting is more than just looking at some 'things' and deciding that today those will be destroyed. Objects are selected as targets based on campaign goals, intent, guidance, military objectives, and compliance with the law of war. Targeting is the process that identifies, detects, selects, and prioritizes targets in order to achieve a specific result based on the commander's objectives, guidance, and intent, then matches weapons systems to achieve that result, and finally assesses the results. Target selection is not at all haphazard-at least not at the planning level.

The current theory around which targets were developed during Operation Allied Force is known as 'effects based targeting.' Effects based targeting theorizes that by attacking specific links, nodes, or objects the effect or combination of effects will achieve the desired objective. If the theory is correct, following this approach will conserve resources, reduce the overall risk to friendly forces and civilians and, ultimately, shorten the conflict. However, the increasing ability to routinely hit targets with great accuracy has not been matched by a commensurate understanding of exactly which targets must be hit to achieve specific outcomes...