Targeting and International Humanitarian Law in Afghanistan

• Author: Michael N. Schmitt
• Position: Professor of International Law, US Naval War College, Newport, Rhode Island
• Pages: 307-339

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Targeting and International Humanitarian

Law in Afghanistan

Michael N.Schmitt*

Experience has demonstrated, time and again, that the application of interna-

tional humanitarian law (IHL) on the battlefield is an exercise of extreme in-

tricacy. No aspect of this body of law has proven more difficult to apply than that

governing targeting—the use of force against enemy forces, material and facilities.

Combat operations in Afghanistan since October 7, 2001, the date on which the

United States and its coalition partners launched Operation Enduring Freedom,

have aptly illustrated the complexity of targeting in modern warfare.

This article examines targeting practices during the Operation Enduring Free-

dom campaign through 2008, with emphasis on US operations. Specifically, it ex-

plores the role law played in the calculations of those responsible for planning,

approving and conducting "attacks," defined in IHL as "acts ofviolence against the

enemy, whether in offence or defence." 1As will become apparent, their decisions

were determined less by law than by either the operational realities ofthe battlefield

or, in aClausewitzian sense, the policy dictates underpinning the conflict.

Reference is largely to the law applicable in international armed conflict, that is,

the law governing hostilities between States. 2Although debate continues over

whether the terrorist attacks of September 11, 2001 launched aconflict of this

*Charles H. Stockton Professor of International Law, US Naval War College, Newport, Rhode

Island.

Targeting and International Humanitarian Law in Afghanistan

character,3the October 7coalition strikes against Taliban and terrorist forces based

in Afghanistan unquestionably did so, one between Afghanistan and the States par-

ticipating in the US-led coalition.4Arguably, the conflict became non-international

in June 2002, when the Loya Jirga elected Hamid Karzai President of the Transi-

tional Authority, an act which the United Nations recognized as establishing legit-

imate indigenous governance over asovereign Afghanistan.5Today, the "war" in

Afghanistan comprises anon-international armed conflict between the Afghan

government (supported by foreign States) and various armed groups, most nota-

bly the remnants of the Taliban and Al Qaeda.6

Although the conflict has become non-international, it must be understood that

the IHL norms governing attacks during international armed conflicts, on one

hand, and non-international armed conflicts, on the other, have become nearly in-

distinguishable. In particular, the foundational IHL principle of distinction, which

requires those involved in hostilities to "at all times distinguish between the civil-

ian population and combatants and between civilian objects and military objec-

tives," applies equally in all conflicts. 7That being so, the humanitarian law

governing international armed conflict always serves as an appropriate benchmark

against which to measure targeting practices.

The Operational Environment

Afghanistan presented amultifarious environment in which to apply targeting

law.8The country's physical and human terrains are of unparalleled complexity. At

nearly 650,000 square kilometers, it is roughly the size ofTexas. Much ofthe country

is mountainous and few roads or other means of transportation exist. The 5,500-

kilometer border is ill-defined and porous. These features often compelled US

forces to employ airpower in lieu of ground operations. Habitation is widely scat-

tered and predominantly rural, and combatants are seldom distinguishable from

civilians by dress. The operational result was an unusually heavy reliance on intelli-

gence, surveillance and reconnaissance (ISR) capabilities, rather than visual identi-

fication by an attacker. Complex ethnic and tribal relationships, characterized by

shifting alliances, complicated matters. Indeed, Afghans typically have less sense of

identity as such than as Tajiks, Pashtuns, Hazaras, Turkmens, Uzbeks or members

of other similar groups. In many cases, these ethnic groups straddle borders with

Afghanistan's neighbors—Pakistan, Turkmenistan, Uzbekistan, Tajikistan and

China.

Perhaps most significantly, Afghanistan's recent history has been one of con-

stant warfare, from the internal conflict and ensuing Soviet invasion of 1979,

through the Soviet withdrawal adecade later, and into the war that led to the 1996

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Michael N. Schmitt

Taliban victory. Defeat of the Taliban by the US-led coalition in late 2001 ushered

in the period ofhostilities considered here. Many Afghans have known nothing but

war, and many have found themselves on both sides of the battle lines at different

times. Amassive illegal narcotics infrastructure financially fuels these conflicts. Af-

ghanistan is presently the world's largest producer of opium, with an output of

eight thousand metric tons in 2008. Since unemployment runs at 40 percent, and

in light ofaper capita gross domestic product ofameager $800, both the drug trade

and conflict offer attractive means of subsistence.9

As noted, terrain, distance and infrastructure led the coalition forces to rely

heavily on air attacks. Political demands for aquick response to September 11, the

practical difficulty ofrapidly deploying ground forces and fear ofrepeating the disas-

trous Soviet experience further led to an emphasis on air operations. 10 During the

initial phase of hostilities, friendly indigenous armed groups, supported by US and

coalition special forces, shouldered responsibility for most ground operations.

However, once the conflict morphed into aclassic insurgency, ground operations

assumed increasing importance. Nevertheless, air attack remains adominant fea-

ture of the war in Afghanistan.

Targeting in aCounterinsurgency

Within months, the conflict in Afghanistan became an insurgency in which tradi-

tional methods ofwarfare no longer sufficed. 11 As US military doctrine recognizes,

the application offorce to defeat an insurgency must be but part of abroader strategy

that incorporates paramilitary, political, economic, psychological and civic actions.

The application of apurely military approach to irregular warfare [IW] has not proved

successful in the past. IW is about winning awar of ideas and perception. Its battles are

fought amongst the people and its outcomes are determined by the perceptions and

support of the people. The campaign must change the perception and offer viable

alternatives, rather than specifically kill an enemy or destroy his resources in

isolation. 12

This reality necessitates carefully measured use of force, lest the complementary

components of the strategy suffer. The current US counterinsurgency (COIN)

manual accordingly cautions,

[a]ny use offorce generates aseries ofreactions Counterinsurgents should calculate

carefully the type and amount of force to be applied and who wields it for any

operation. An operation that kills five insurgents is counterproductive if collateral

damage leads to the recruitment of fifty more insurgents. ...[Thus,] it is vital for

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