Author: Charles J. Dunlap, Jr.
Abstract/Intro:
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.” 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.” 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. 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.”
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 anyincidental 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.’”
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. 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. 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.” This writer has called the strategy of attempting to erode public support through weaponized allegations of illegality “lawfare.” 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.