Chapter 7: Means and Methods of Warfare

1. Chapter 7: Means and Methods of Warfare

2. International Law Public Law (intergovernmental) Private Law (commercial law) Law of Armed Conflict Law of Peace Conflict Management (jus ad bellum) Rules of Hostilities (jus in bello) Hague Conventions (means & methods) U.N. Charter Geneva Conv/Protocols (humanitarian) Arms Control Customary Law Customary Law

3. Agenda • Principles of the Law of War • Tactics • Weapons Treaties

4. Sources • Customary international law • Hague Conventions, 1907 • Geneva Protocols I and II, 1977 • Recent treaties

5. Principles of the Law of War • Military Necessity • Military Objective • Distinction • Discrimination • Proportionality • Unnecessary Suffering/Humanity • Chivalry

6. Military NecessityU.S. Definition “[T]hat principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible.” • FM 27-10, para. 3a • Hague IV, 23(g)

7. Principles of the Law of War • Military Necessity • Military Objective • Distinction • Discrimination • Proportionality • Unnecessary Suffering / Humanity

8. Distinction Protocol I, art. 48 • Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

9. Principles of the Law of War • Military Necessity • Military Objective • Distinction • Discrimination • Proportionality • Unnecessary Suffering • Chivalry

10. Proportionality Protocol I, Article 51(5)(b) 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.

11. Proportionality Is thisexcessive in relation to that? Civilian death, injury, or damage Concrete and direct military advantage Excessive: exceeding a normal, usual, reasonable, or proper limit

12. Principles of the Law of War • Military Necessity • Military Objective • Distinction • Discrimination • Proportionality • Unnecessary Suffering/Humanity • Chivalry

13. Unnecessary Suffering/Humanity Hague IV, art. 23e: [I]t is especially forbidden to employ arms, projectiles, or material calculated to cause unnecessary suffering (mens rea/intent/design element) Hague IV, art. 22: The right of belligerents to adopt means of injuring the enemy is not unlimited

14. Principles of the Law of War • Military Necessity • Military Objective • Distinction • Discrimination • Proportionality • Unnecessary Suffering/Humanity • Chivalry

15. Chivalry • Mutual Respect between Opposing Forces • Also Called Honor • Respect for the Opponent hors de combat • A Matter of Justness and Good Faith: • Forbids Treachery • Forbids Perfidy

16. Enemy Uniforms • U.S. policy: Combatants may wear enemy uniforms but cannot fight in them (FM 27-10 para. 54, 74) • If captured, military personnel lose their PW status and could be tried as spies • Protocol I: art. 39(2) - prohibits virtually all use of enemy items

17. Enemy Equipment/Colors Equipment: must remove all enemy insignia U.S. position on colors is the same as the practice regarding uniforms

18. Treachery/Perfidy Injuring the enemy by his adherence to the law of war; why the outrage? Feigning Misuse

19. RUSE or PERFIDY? • Army personnel infiltrate insurgents and gain control of civilian hostages • Unmarked white helicopter understood by rebels to be “international mission” given permission to land • Hostages loaded onto white helicopter and freed

20. RUSE or PERFIDY? • Enemy dressed as civilian passes through FOB security gate with stolen contractor id • 2 hours later, after dark, sheds civilian clothes and attacks Dining Facility killing 10 soldiers

21. “Special” Tactics Assassination Espionage Info Ops Reprisals

22. Assassination • Prohibited to put a price on the enemy’s head or to target a purely civilian head of state (Executive Order 12333(2.11)) • Contrast that with targeting military leadership – Saddam’s palace, Milosevic’s Vila, etc.

23. Espionage • Gathering intelligence while in uniform is not espionage • Not a LOW violation • No protection under the GC for acts of espionage • Tried under laws of captured nation • Reaching friendly lines = absolution

24. Belligerent Reprisals • An otherwise illegal act done in response to a prior illegal act by the enemy (FM 27-10 para. 497) • Requires an unsatisfied demand • Can be effective at lower levels

25. Reprisals • U.S. policy: Can only be ordered by the “highest accessible military authority” and then only if: • timely • responsive to enemy’s act • first attempt lessor form of redress • proportional

26. Reprisals • Protocol I 51(6): No reprisals against civilian population • U.S. specifically objects to this provision as contrary to CIL

27. Weapons/Treaty Update GP I, art. 36: before any new weapon system is employed, it must conform to international law

28. Weapons LEGAL REVIEW: DoD Directive 5000.1 “The Defense Acquisition System” The test: Is the acquisition and procurement of the weapon consistent with all applicable treaties, customary international law, and the law of armed conflict?

29. Rationale for weapons review • Grew from Viet Nam War experience, where allegations of “illegality” of U.S. weapons (e.g., M-16, napalm, flechettes, cluster munitions) were made in an attempt by opponents to condemn U.S. operations and limit effective weapon employment and future acquisition. • 1978-1980 CCW conference found allegations unsupported by medical evidence, history. • E.g., flechettes first used by Italy in Libya in 1911; used extensively by German Luftwaffe as early as World War I. • Historical experience: innovation breeds controversy, allegations of “illegality” that often delay, inhibit or stop development, acquisition, or employment. • Weapons review requirement successful, pro-active response. • Legal review clears away illegality myths, provides presumption of legality for issued weapons. • Ensures compliance with our treaty obligations.

30. Example: Thermo Baric Weapons • British sensitivity • Post-World War II unilateral renunciation of incendiary weapons as a matter of policy. • Name ‘thermo baric’ incorrectly inferred incendiary weapon, apparently as first thermo baric munitions and mission placed in Soviet Army flamethrower battalions. • Parliamentary response declared UK would not develop thermo baric weapons as a matter of policy. • British policy incorrectly translated by some into conclusion that thermo baric munitions were prohibited by law of war.

31. U.S. Thermo Baric Legal Reviews to Date • Air Force: BLU-118 (December 20, 2001) • Navy (for Marine Corps): Shoulder Launched Multipurpose Weapon (September 16, 2002) • Army: 40mm Munition (November 26, 2002) • All legal reviews concluded that thermo baric weapons are lawful weapons. • Blast weapons are historic. • All written unclassified. • All thermo baric weapons employed in Operations ENDURING FREEDOM and IRAQI FREEDOM. • No negative reports. • No legal challenges. • No calls for new international negotiations to prohibit or regulate.

32. Weapons ReviewLegal Analysis • Whether the weapon or its intended use in armed conflict causes unnecessary suffering • Whether the weapon can be controlled in a manner to discriminate between civilian and military targets • Whether there is a specific treaty or law that prohibits its use

33. Weapons ReviewApplicable Treaties • Article 23, Annex to Hague Convention IV Respecting the Laws and Customs of War On Land of 1907. • “[I]t is especially forbidden – …. • To employ arms, projectiles or material calculated to cause unnecessary suffering….” • Also prohibits use of “poison or poisoned weapons”

34. Weapons ReviewCustomary International Law • Historical Examples • Bullets that flatten or expand easily in the human body • Lances with barbed heads • Irregular shaped bullets • Projectiles filled with glass • Use of substances on bullets that would tend to inflame a wound • Exploding munitions of less than 400 grams (but only if primarily intended to be used against personnel)

35. Distinction Also called “discrimination” Between combatants and civilians Between civilian objects and military objectives Proportionality Loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. Key Standards from Customary International Law [and FM 27-10]

36. Convention on Certain Conventional Weapons

37. 1980 CCW: A brief history • Challenges to legality of weapons used by U.S. in Viet Nam War prompted calls by vocal minority for UN international conference to regulate or prohibit certain conventional weapons. • Legality debate in other international fora 1974-1977. • United Nations CCW Conference met in Geneva from 1978-1980. • Original conference produced umbrella treaty (CCW) and three protocols. • Protocol I: Bans fragments intended to avoid x-ray. • Protocol II: Regulates landmines and booby-traps to protect civilian population. • Protocol III: Regulates incendiary weapons to protect civilian population.

38. CCW, 1974-2008: Reading the tea leaves Weapon ConsideredProtectionAction • Cluster bombs Combatants None* Civilians • “Plastic fragments” Combatants Protocol I** • Land mines Civilians Protocol II • Incendiary weapons Civilians Protocol III • Fuel air explosives Combatants None • Small-caliber projectiles Combatants None • Directed energy weapons Combatants None • Flechettes Combatants None • Naval mines Civilians None • Blinding laser weapons Combatants Protocol IV** * Under renewed consideration ** Bans nonexistent weapon

39. Weapons ReviewCurrent DAJA-IO Review Process • Lead role assigned to Special Assistant to The Judge Advocate General for Law of War Matters • Assisted by active and reserve component lawyers assigned to DAJA-IO • Opinion typically coordinated with other Services • Opinion is not published but unless classified is accessible via FOIA

40. Small Arms Ammo Hollow Point v. Open Tip Frangible The Hague Declaration Concerning Expanding Bullets, July 29, 1899

41. Open Tip Lead Tip Open Tip Hollow Point Hollow Point

42. Nonlethal Weapons • Misnomer • Require a legal review DoDD 3000.3 • Purpose: • Discourage, delay, prevent hostile actions • Limit escalation/Avoid lethal force • Better protect US forces • Temporarily disable equipment, facilities, personnel

43. Nonlethal Weapons • “Bean-bag rounds” • Water cannons • “Goop Gun” • sticky foam version • super lubricants version • Tasers - electric shock • Active Denial System

44. Landmines

45. Landmines (Types) Anti-personnel or anti-tank & anti-tank with anti-handling devices Smart or dumb mines Remotely delivered or non-remotely delivered

46. Ottawa Treaty Prohibits the use, stockpiling, production or transfer of Anti-Personnel Landmines Doesn’t prohibit the use of Anti-Vehicle Landmines

47. Amended Protocol II to the CCW • Remotely delivered antipersonnel landmines must be equipped with self-destruct features • Non remotely delivered persistent mines must be marked and monitored • All antipersonnel mines must be detectable with available technology • Party laying mines is responsible for removal

48. Bottom-line • 27 Feb 04 – New US Policy on Landmines • Eliminate persistent landmines of all types from the arsenal (persistent AP mines in ROK only) • Between now and 2010, persistent anti-vehicle land mines can only be employed outside Republic of Korea with Presidential authorization • After 2010 US will no longer employ persistent anti-personnel or anti-vehicle land mines Available at www.state.gov/t/pm/rls/fs/30044.htm

49. Claymores Claymore “mine” (Prot II CCW art. 5, para. 6) Command detonated v. tripwire mode

50. Booby-traps A device designed to kill or maim an unsuspecting person who disturbs an apparently harmless object or performs a normally safe act (CCW Amended Protocol II, art. 2.4)