Targeting and Humanitarian Law: Current Issues

• Author: Michael N. Schmitt
• Position: Professor of International Law, George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen, Germany
• Pages: 151-194

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Targeting and Humanitarian Law:

Current Issues

Michael N. Schmitt1

In the 21st century, the art and science of targeting, particularly in the aerial

environment, has become extraordinarily complex. So too has compliance

with humanitarian law. Battlefields of centuries past were linear in character,

with opposing forces facing each other across aFEBA (forward edge of the bat-

tle area). This positioning, together with the limited range and mobility of

weapons systems, rendered civilian populations relatively immune to the direct

effects of warfare. Civilians were either distant from the battlefield or fled as

hostilities drew near.

The advent of long-range strike capability led to a revolution in military-legal

affairs.2Civilian populations and objects were not only placed at greater risk due to

their proximity to lucrative, and now viable, military and infrastructure targets,

but civilians and civilian objects became objectives themselves in various strategic

bombing doctrines.3Humanitarian law reacted by affirming their immunity from

direct attack, most notably with the 1977 codification ofthe distinction principle in

Protocol Additional Ito the Geneva Conventions.4

Today, technological advances in range, precision, and stealth, as well as the trans-

parency resulting from advanced C4ISR technologies,5have again transformed the

nature of warfare. Entire countries now comprise the battlespace. And the technologi-

cal "haves" can strike the assets of their ill-equipped adversaries with near total

Targeting and Humanitarian Law: Current Issues

impunity. For instance, during Operation Iraqi Freedom, coalition forces lost only one

fixed wing aircraft to enemy fire.6Such asymmetry has momentous consequences, not

only for combat operations, but also for the application of humanitarian law.

This article explores several of the more pressing legal issues involving tar-

geting during 2lst -century armed conflict—targeting doctrine, targeting an op-

ponent's leadership, targeting terrorists, the use of human and civilian object

shields, treating military installations as a unitary target, and computer net-

work attack. Each is especially relevant given the likely use of "lawfare" by op-

ponents of the United States and its coalition partners, most recently

demonstrated during Operation Iraqi Freedom.7Humanitarian law has be-

come apermanent fixture on the modern battlefield. Those who ignore this re-

ality do so at their own risk.

Targeting Doctrine, Compellance Campaigns, and Military Objectives

Effects-based operations (EBO) have replaced attrition targeting in US doctrine.

In attrition warfare, extensive pre-planned target lists are developed and targets

are then destroyed serially, while engaging targets of opportunity as located. Re-

duced to basics, the enemy is defeated by progressively weakening its military

forces. In contrast, effects-based operations represent "the maturation of ...

technologies merged with the theory of targeting for systematic effect rather than

absolute destruction."8The confluence of three factors makes EBO possible: ad-

vanced technologies; effects-based planning; and parallel warfare, anew concept

of operations.9

Technological advances enable effects-based operations by generating new op-

tions for attack. For example, the use of low-observable (stealth) technologies in

the F- 1 1 7Nighthawk or B-2 Spirit aircraft permits smaller attack packages because

stealth aircraft need no escorts. 10 This frees systems that would otherwise be tasked

for escort duties to conduct attacks themselves. It also heightens the likelihood of

mission success by making attacks less detectable than would be the case with pen-

etration by alarge package.

Advances in precision also facilitate effects-based operations. The Joint Direct

Attack Munition (JDAM) constitutes the great leap forward in this regard. JDAMs

are guidance tail kits that use an inertial navigation system and global positioning

system satellite (GPS) linkage to achieve aCEP (circular error probable—radius of

acircle within which Vi of the bombs will strike) of approximately 20 feet when at-

tached to free-fall 1,000 and 2,000-pound bombs. 11 A500-pound variant entering

the inventory will improve accuracy and allow aircraft to carry more weapons per

sortie. Nearly all attack aircraft can carry the JDAM, and each weapon is

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Michael N. Schmitt

independently targetable. Thus, even single-seat fighters such as the F-16 can now

strike multiple targets during asingle sortie. JDAM's bargain price tag of approxi-

mately $2 1,000 per tail kit makes it an affordable option against the vast majority of

targets. Combined, these characteristics dramatically increase the number of tar-

gets that can be struck in avery short period with ahigh degree of accuracy. 12 The

net result is the capability to conduct "shock and awe" campaigns, i.e., campaigns

that stun opponents into confusion and dismay.

Advances in information technology also enable effects-based operations. In-

formation systems now make it possible to "rapidly collect, share, access, and ma-

nipulate information," while sometimes linking the sensor directly to delivery

system. 13 By doing so more quickly and comprehensively than an opponent (and

by using information technology to blind the enemy), friendly forces can operate

inside his OODA (observe, orient, decide, act) loop. 14 Paralysis eventually results.

The second element of EBO is effects-based planning. This method of planning

seeks to achieve specific effects with the least risk, in the shortest time possible, and

with minimal expenditure of resources by considering both direct and indirect ef-

fects. Direct effects are "immediate, first order consequences," 15 i.e., the damage

directly caused by the weapon. Classic attrition warfare emphasizes direct effects.

However, effects-based planning also factors in indirect effects—"the delayed and/

or displaced second- and third-order consequences of military action." 16 Atypical

example is loss of support for aregime that appears inept or impotent in the face of

repeated enemy attacks. 17

Both direct and indirect effects have three fundamental characteristics. The first

is the cumulative nature of individual effects. This occurs when the overall impact

of various attacks is greater then the sum of the individual attacks themselves; the

attacks operate synergistically. Loss of support for the regime in the example cited

above exemplifies this phenomenon.

Cascading effects are "indirect effects [that] ripple through an adversary target

system, often influencing other target systems as well." 18 Typically, they occur

when striking targets at ahigher level of conflict. For instance, damaging anational

level command and control net will influence lower levels ofthe conflict as the abil-

ity to receive intelligence and direction from above, and to coordinate operations

with other units, diminishes. Targeting leadership represents perhaps the pinnacle

of acascading effects focused mission.

Collateral effects are the unintended consequences of an attack. 19 To the extent

that foreseeable collateral effects affect civilians or civilian objects, the humanitarian

law principle of proportionality requires balancing them against the military advan-

tage that accrues from attacking the target.

20 Further, although it is sometimes

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