Chapter 4: Principles

1. Chapter 4: Principles

2. The Regulatory Foundation • Contemporary LOAC is built on a foundation of core principles • These principles are implemented through numerous treaty provisions • Familiarity with these principles is essential to: • Provide a “default” standard for situations of treaty uncertainty • Provide an “azimuth” for the planning and training

3. Filling the Void • LOAC principles have always been useful to fill potential regulatory voids • This concept is reflected in the Marten’s Clause, which recognized the potential for hostilities falling outside the scope of treaty applicability • Originally included in the 1899 Hague Convention IV • Included in the 1949 Geneva Conventions • Included in the 1977 Additional Protocols

4. Filling the Void • LOAC principles are especially important for US operational practice • DOD Directive 3120.01A requires compliance with LOAC principles during all military operations: • Sets a consistent baseline for training and execution • Ensures “principled” military action across the operational spectrum

5. What are the Principles? • LOAC principles are characterized slightly differently in various sources • Generally, the core principles include: • Military Necessity • Humanity • Distinction • Proportionality • The Prohibition Against Inflicing Unnecessary Suffering

6. What are the Principles? • Military Necessity and Humanity are best understood as “first principles” of the LOAC: • The balance between necessity and humanity is central to conflict regulation • All other principles reflect aspects of both necessity and humanity

7. Military Necessity • Military Necessity: justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible • Reflects a rejection of the unlimited effect of necessary by acknowledging that forbidden actions are conclusively unnecessary • Does not justify the infliction of destruction or suffering unrelated to achieving a military objective

8. Humanity • Requires the humane treatment of any person not actively participating in hostilities: • Always strive to minimize harm to innocent civilians • Extend humane protections to even your enemy once he is subdued • Prohibits any suffering not justified by the dictates of military necessity

9. Distinction • Distinction implements the principles of necessity and humanity by permitting deliberate attack only against targets that make a genuine contribution to subduing the enemy • Military Objects and Person presumed targetable • Civilians and civilian Objects presumed not targetable • Both presumptions are rebuttable

10. Principles • Proportionality: Implements the principle of humanity by prohibiting attacks on otherwise lawful targets when the collateral effects to innocent civilians and their property will be excessive compared to the military advantage achieved • But also reflects the principle of necessity by permitting the knowing but non-deliberate infliction of suffering on these civilians so long as it is not considered excessive compared to the anticipated military advantage

11. Unnecessary Suffering • Longstanding principle that prohibits the infliction of superfluous injury or suffering against enemy personnel • Originally applied only to weapons (means), but AP I extends prohibition to tactics (methods) • Originally included a scienter element: applied to the “calculated” infliction of unnecessary suffering, but AP I eliminates this element • As a general rule, weapons fielded are presumed consistent with this principle • Modern trend has been to identify pernicious weapons and prohibit them by treaty (like chemical weapons)

12. Rules of Engagement • Policy, not Law • But must be consistent with applicable LOAC • US ROE reiterate significance of core LOAC principles • Commanders use ROE to tailor use of force authority to dictates of particular missions

13. Questions?