A Practical Perspective on Attacking Armed Groups.

• Author: Huston, R. Patrick
• Position: Special Issue: The Law of Armed Conflict

TABLE OF CONTENTS I. INTRODUCTION 920 II. THREE-PART FRAMEWORK FOR ATTACKING PEOPLE 921 A. Members of State Armed Forces 922 B. Members of Organized Armed Groups 923 1. Which Groups Qualify as 923 Organized Armed Groups? 2. Identifying Members of 924 Organized Armed Groups C. Civilians Who Directly Participate in 925 Hostilities III. ORGANIZED ARMED GROUPS AND DIRECT 926 PARTICIPATION IN HOSTILITIES A. LOAC Should Not Treat Members of 927 Nonstate Armed Groups Better Than Members of State Armed Forces B. Treating Members of Armed Groups 928 No Better Than Members of State Armed Forces Is Consistent with Treaty Law and State Practice C. Treating Members of Armed Groups 929 No Better Than Members of State Armed Forces Reflects the Reality of Military Operations IV. CONCLUSION 930 I. INTRODUCTION

It has been a tremendous honor both to address the 2nd Israeli Defense Forces Conference on the Law of Armed Conflict and to provide this Article. My goal is to provide more detail on my views regarding organized armed groups (1) under International Humanitarian Law, which I will refer to as the Law of Armed Conflict (LOAC). While I am not an academic, I hope to provide the practical perspective that comes from implementing LOAC rules during real-world operations. My perspective also comes from recognizing the need to apply these rules across a broad spectrum of operations: in the air, on the ground, at sea, in both urban and remote areas, and in future conflicts that might not resemble today's fight.

Let me begin by emphasizing that the United States is absolutely committed to complying with the LOAC during all military operations. The United States has devoted more time, training, and personnel to this vital task than any other nation in the history of warfare. To help our commanders comply with the LOAC, I typically apply a three-part framework when I provide legal advice on a proposal to attack any person.

In this Article, I will describe the three questions I ask and highlight some of the practical problems that can arise when we answer each of the three questions. After that, I will move on to a discussion of how organized armed groups are treated under the LOAC, and how that treatment is--and should remain--different from how civilians are treated when they directly participate in hostilities. I consider this distinction to be the most important part of the discussion about targeting persons in today's conflicts, but I note that this key concept is sometimes misunderstood or misapplied, so it plays a prominent role in my presentation.

2. THREE-PART FRAMEWORK FOR ATTACKING PEOPLE

   When describing this three-part framework for targeting a person--or making a person the object of attack, to use the LOAC term (2)--I am drawing on my experience serving as the Staff Judge Advocate for the U.S. Central Command (CENTCOM). Even though the United States was engaged in a number of non-international armed conflicts during my time at CENTCOM, (3) I think that this three-part framework would be relevant for international armed conflicts as well. When conducting combat operations during an armed conflict, a commander will conduct the Joint Targeting Process to select targets to attack. (4) Some of those targets will be people. Before attacking, the commander must determine whether those people are subject to attack under the LOAC. (5) To advise the commander in making that decision, I use a three-part framework. Before applying this three-part framework, I begin by treating all persons as if they are not subject to attack unless we establish otherwise. (6)

   I then apply our three-part framework to determine whether a person is subject to attack. First, I ask whether the person is a member of the armed forces. Second, I ask whether the person is a member of an organized armed group. Finally, I ask whether the person is directly participating in hostilities. In general, if the answer to any one of these questions is "yes," then the person will be subject to attack. If the answer to all three questions is "no," then the person may not be attacked.

   1. Members of State Armed Forces

      This is the simplest of the three concepts. If an individual is wearing a military uniform or carrying a military ID card, we all know he or she generally may be killed 24/7 even, as Professor Yoram Dinstein noted, while asleep in his or her bed. (7)

      The rule that members of the armed forces are generally subject to attack obviously applies to front-line infantry fighters, pilots, and other members of the armed forces who directly participate in hostilities. However, the rule is very broad because it is focused on membership, not conduct--it is not tied to the rule governing civilians who directly participate in hostilities. (8) Before we continue, we should stop and consider just how broad this rule is. Although there are limited exceptions, such as for military medical and religious personnel and persons hors de combat, commanders may generally attack all members of the enemy's armed forces, including rear-echelon support personnel. (9) In order to illustrate this important point, I provide the following examples of roles performed by uniformed members of the US armed forces:

      * Supply / Logistics Specialists

      * Human Resource Managers

      * Military Truck Drivers

      * Public Affairs Officers

      * Finance Clerks

      * Cooks

      * Computer Experts / IT Professionals

      * Military Musicians

      * Military Researchers who Develop / Test Munitions and Drone Technology

      * Communications Experts

      * Civil Affairs Officers

      * And last but not least, Lawyers!

      Few of these uniformed personnel could be described as directly participating in hostilities as that phrase is understood when applying it to civilians, yet all may be attacked by virtue of their membership in the armed forces. It is likely that organized armed groups have similar categories of support personnel.

   2. Members of Organized Armed Groups

      When states are engaged in a non-international armed conflict against organized armed groups, members of those organized armed groups may also be attacked, just like members of the armed forces. (10) However, this analysis presents some legal and practical challenges.

      1. Which Groups Qualify as Organized Armed Groups?

         As the name implies, the group must be both organized and armed. To be organized, the group must have some structure and cohesion. The group must also have some command mechanism that allows the group to execute direction from leaders, though it need not look like a traditional military chain of command. A key consideration is whether the armed group is sufficiently cohesive so that we can impute an intention to wage war to the armed group as a whole. (11)

         The group must also be armed. This does not mean each member must be armed, but it does mean that the group as a whole must generally conduct hostile or belligerent activities--using violence to achieve its objectives, analogous to a state's armed forces. In some cases, if a nonstate actor includes both an armed group and a political organization, and...