Targeting of Persons: The Contemporary Challenges.

• Author: Dunlap, Charles J., Jr.
• Position: Special Issue: The Law of Armed Conflict

TABLE OF CONTENTS I. INTRODUCTION 887 II. HUMAN SHIELDS 889 III. THE ROLE OF THE MEDIA 892 IV. OPTIONS? 897 V. CONCLUDING OBSERVATIONS 898 I. INTRODUCTION

The targeting of persons engages the most fundamental of all the norms in the law of war: the principle of distinction. Indeed, scholar Gary Solis calls it the "most significant battlefield concept a combatant must observe." (1) The rule itself is simple and direct: in its study of customary international humanitarian law, the International Committee of the Red Cross (ICRC) explains, "The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians." (2) Unlike some provisions of the law of war, the principle of distinction applies to both international armed conflicts, that is, traditional conflicts between nation-states, as well as non-international armed conflicts (NIACs) involving nonstate actors who are part of armed groups. (3) The Manual on Non-International Armed Conflicts, for example, insists that a "distinction must always be made in the conduct of military operations between fighters and civilians." (4)

In the twenty-first century, the challenge for Israel, the United States, and other rule-of-law nations relates to the latter type of conflict, that is, the targeting of persons in NAICs. Very often, the nonstate beings confronted by nation-states in NIACs do not wear uniforms and embed themselves among civilians for the explicit purpose of blurring the distinction between targetable belligerents and protected civilians. That blurring can operate to deter attacks by cautious and conscientious militaries. Moreover, if attacks are conducted, the nonstate actors often use the occurrence of any incidental civilian casualties to claim a violation of the law of war and in that way undermine the legitimacy of the nation-state's military operations. As Professor William Eckhart observes:

Knowing that our society so respects the rule of law that it demands compliance with it, our enemies carefully attack our military plans as illegal and immoral and our execution of those plans as contrary to the law of war. Our vulnerability here is what philosopher of war Carl von Clausewitz would term our 'center of gravity.' (5) Exploiting respect for the rule of law is increasingly the primary way adversaries facing opponents like the United States, Israel, and other nations equipped with advanced weaponry will seek to offset that technological advantage. Indeed, many of these adversaries are quite willing to orchestrate civilian casualty events.

For example, during the 2017 offensive against the Islamic State of Iraq and the Levant (ISIL), ISIL fighters drew an attack on a building in Mosul, Iraq. (6) Unbeknownst to coalition forces, ISIL had hidden explosives in the building, and the coalition strike triggered them, killing over one hundred civilians, with initial reports blaming the coalition for their deaths. (7) The ultimate purpose of such adversary strategies is to undermine public support, both domestically and internationally, and in that way derail the military effort.

Make no mistake about it: democracies need public support to wage war. As two Yale scholars wrote in 1994: "In modern popular democracies, even a limited armed conflict requires a substantial base of public support. That support can erode or even reverse itself rapidly, no matter how worthy the political objective, if people believe that the war is being conducted in an unfair, inhumane, or iniquitous way." (8) This writer has called the strategy of attempting to erode public support through weaponized allegations of illegality "lawfare." (9) The purpose of this brief essay is to discuss several specific contemporary issues of targeting of persons in the context of current operations and to propose some ways for countering adversary efforts.

2. HUMAN SHIELDS

   As already indicated, adversaries today are not just opportunistically exploiting situations where civilians are incidentally killed in an attack; they are actively seeking to cause civilian casualties or, equally as nefariously effective, to create the fear of causing them in the leadership of law-abiding militaries and the societies they represent. The end result is the same: an attack is either limited or forgone altogether. One of the means adversaries employ to create the desired effect is the extensive use of human shielding.

   Human shielding, the International Committee of the Red Cross (ICRC) tells us, is the "intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives." (10) While human shielding is not new to warfare, the extent to which the tactic has today been regularized and systematically employed is unparalleled in the modern era. For example, during the fight for Mosul in 2017, the ISIL's use of human shielding was so "rampant" as to be considered "unprecedented"--even in a conflict where almost no atrocity has been left unused. (11)

   Conventional law of war thinking universally condemns the use of human shields but still insists that attackers must consider the human shields as "civilians" in the targeting calculation. That calculation is found textually in various law of war treaties but is also considered customary international law. The ICRC defines the rule as: "Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited." (12) The problem is that in contemporary conflicts the rule too often incentivizes unscrupulous fighters. Specifically, if such fighters surround themselves with enough civilians, they can legally "shield" themselves by manufacturing a targeting calculation where the expected incidental loss of civilian life would be unlawfully "excessive." This is because many authorities deem the resulting civilian deaths to still be the responsibility of the attacker, even when the defender acts illegally by employing human shields. Put another way, the defender creates a real benefit for himself by violating the law of war proscription against the use of human shields.

   The international community--to include the legal community--has proven to be impotent against nonstate actors who flaunt the law of war in their use of human shielding. Indeed, Israel has found Hamas doctrinal and training manuals "attest to Hamas's intentional efforts to draw the IDF into combat in densely populated areas and to actively use the civilian population in order to obstruct the IDF's military operations." (13) That an adversary would be bold enough to actually train to violate the law is a testament to how serious the situation has become.

   The United States attempted to address this situation by announcing in its 2015 Law of War Manual that harm to human shields does "not prohibit attacks under the proportionality rule." (14) However, a subsequent revision eliminated that provision and instead attempted to distinguish between voluntary and involuntary human shields by saying that "the commander may determine that persons characterized as voluntary human shields are taking a direct part in hostilities." (15) As this writer has said elsewhere:

   This statement seems to be half-right. Whether or not a civilian--human shield or otherwise--needs to be considered in the proportionality analysis in determining whether or not their loss is anticipated to be "excessive" in a particular situation does not turn on their voluntary/involuntary mental state, but rather whether or not their actions constitute "taking part" in hostilities. If by their behavior they take a direct part in hostilities, they lose their protection from attack, and need not be considered in the proportionality analysis. It is hard to think of what action could be more...