Tag: targeting

Targeting in Armed Conflict: DPH, CCF, WTF?

Usually when I blog about drones and extrajudicial execution, someone leaves a comment to the effect that terror suspects are “legitimate military targets” under the re-envisioned laws of war. The question of whether they are or aren’t is a bit tricky, but since the number of bloggable stories is vastly outweighing the time I have to post at present, I’ve called in my colleague Betcy Jose to explain. – Charli Carpenter

Guest Post by Betcy Jose, University of Colorado-Denver

Quiz:

You’re a sniper in the armed forces of your country which is in the midst of a civil war. Among the following choices, who could you permissibly target under international law?

A. A hacker who is disrupting vital communications occurring on your military’s computer network during the slower parts of War Games.

B. A rebel fighter who’s fallen asleep during night watch.

C. Child soldiers in the midst of training exercises in preparation for their first experience in combat.

D. The leader of the opposing armed group who is attending the funeral of the second in command.

What’s your answer? Scratching your head in uncertainty? Well, to be fair, it’s a trick question because the answer is all of the above. Let me try to explain how.

Choice A: International humanitarian law (IHL), the body of law which governs the conduct of armed hostilities, requires belligerents to refrain from intentionally targeting civilians. This is the distinction principle which is part of the civilian immunity norm. However, IHL does allow for the targeting of civilians while they directly participate in hostilities (DPH). DPH is how you’re supposed to distinguish between permissible and impermissible civilian targets. DPH includes using weapons, collecting intelligence, and disrupting/damaging critical computer networks. Once civilians lay down their weapon or stop hacking into military networks, they are no longer targetable. So, you can target the hacker while s/he is trying to hack into your military’s computer system, even if s/he did it out of boredom. But s/he regains immunity once the hacking stops.

Choices B, C, and D: The people in these scenarios are also targetable in a non-international armed conflict, but for different reasons from those governing the targeting of the civilian hacker. The people in these scenarios would be targetable because they have a continuous combat function (CCF), and they are not considered civilians.

The ICRC came up with this concept in response to claims by state actors that relying solely on a DPH method of distinction to determine permissible targets advantaged rebel groups. States argued they could only target rebel fighters when they were engaged in DPH. Why was this problematic? Because since rebel fighters are not members of state armed forces, they are civilians. Thus, they regain their immunity once they drop their weapons, only to return to fight state armed forces another day. So the ICRC, which is charged with developing IHL, came up with CCF in the hopes of addressing these state concerns while maintaining the protections offered by the civilian immunity norm. Here’s how it works:

A member of an organized armed conflict has a CCF if that role entails sustained direct participation in hostilities. This definition essentially addresses the concerns raised by state actors. Individuals who possess a CCF are targetable as long as they hold this role in an organized armed group. That’s why the rebel leader can be targeted while attending a funeral even though s/he may not be engaged in hostilities at the moment. Organized armed groups can be those that are aligned with the state as well as those that act against the state. The category doesn’t require a particular position in the armed conflict, just a degree of organization in order to distinguish it from rebellions or insurgencies which IHL does not cover.

Thus, while DPH and CCF may seem like distinct methods of distinguishing between permissible and impermissible targets during a non-international armed conflict, the two are connected. CCF also maintains civilian immunity by requiring states to be selective in their targeting of the opposition. They can target a person who holds a CCF anytime, but they can only target civilians while they DPH.

This is all well and good. But if you’re still scratching your head, join the club. The utility of this category is hotly debated and the Guidance is not universally endorsed by states. Humanitarian actors are concerned that states can manipulate these rules to further their objectives at the expense of civilian populations. Thus, how well these categories advance their intended aim of protecting civilians who have the misfortune of finding themselves in the heat of battle is a question that’s hard to answer.

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War Crimes and the Arab Spring. Again.

The direct targeting of actors protected under the laws of war has been one of the most disturbing trends arising out of the Arab Spring. For example, the targeting of medical workers and ambulance drivers was well documented and reported on last year. Additionally, here at the Duck we’ve been following the issue. In recent months Dan Nexon wrote about the targeting of doctors who treated protesters in Bahrain and I’ve bloged about the growing concern of the ICRC who have seen themselves and their workers targeted. Unfortunately, this trend has continued into 2012. In January, the vice-president of the Syrian Red Crescent Abdulrazak Jbeiro was shot and killed in circumstances described as “unclear” – an act that was widely condemned by the the ICRC and officials world wide.

The deaths of Marie Colvin and Remi Ochlik are an example of another neutral actor in wartime that has frequently been targeted – the press. Accredited journalists are protected under the laws of war, specifically the 1949 Geneva Conventions and Additional Protocol I. If they are wounded, sick (GCI 13(4)) or shipwrecked (GCII 13(4)) they are given protections. If they are captured, accredited correspondents are to be given POW status. (GCIII 4A(4)). Additional Protocol I devotes an section to the protection of journalists:

Art 79. Measures or protection for journalists
1. Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1.
2. They shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians, and without prejudice to the right of war correspondents accredited to the armed forces to the status provided for in Article 4 (A) (4) of the Third Convention.
3. They may obtain an identity card similar to the model in Annex II of this Protocol. This card, which shall be issued by the government of the State of which the Journalist is a national or in whose territory he resides or in which the news medium employing him is located, shall attest to his status as a journalist.

(A good and longer summary of the rules may be found here.

It is true that these rules in the 1949 Geneva Conventions and API are for international (and not internal) armed conflict. But as non-combatants the direct targeting of these individuals would also be illegal under any legal framework. Further, it can be argued that directly targeting aid workers and journalists is a clear violation of customary international law for both international and non-international armed conflict.

This is, of course, on top of the relentless shelling, bombing and targeting of civilians by Syrian forces. While the deaths of these journalists once again highlight what is going on, we should not lose sight of the fact that it would seem, at best, thousands of civilians have died in the conflict since last year. The methods employed by the Syrian armed forces come nowhere near the standards by which we measure the conduct of hostilities.
Worse, it is clear that civilians are suffering great deprivations as a result of the uprising and crackdown. This has lead the ICRC to specifically request access to the civilian population in order to deliver food, water, medicine and fuel.

Last year the ICRC launched a campaign about that which impedes the delivery of assistance and aid in areas of hostilities and armed conflict. Certainly, a consequence of the Arab spring has been to highlight how fragile many of these international norms are. I am not going to pretend that I have any amazing solutions to the crisis in Syria – everything seems like a pretty terrible option. But there can be no doubt that we should be standing up for the laws of war and demanding that Syria’s ‘allies’ (Russia and China) place pressure on Syria to respect international law. At a minimum this is the very least we – and they – can do. The right to deliver humanitarian assistance and the protection of aid workers has long been established in international law. And significantly, this includes UN Security Council Resolution 1502 which (having been adopted unanimously) both Russia and China voted for in 2003.

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More on Gotovina

Ante Gotovina

Last week I wrote about targeting and mentioned the Gotovina Case. This case has become interesting for those interested in international law and post-conflict justice because of the decision of the court (among other things) effectively states that a 4% error rate in targeting in a complex military operation was tantamount to a war crime.

As I said in the post, the decision prompted several laws of war scholars (many of whom were former JAGs) to have a roundtable at Emory University on the decision and subsequently write up an amicus brief  supported by 12 international law experts from the US, Canada and the UK which was submitted to the appeals chamber at the ICTY. This prompted a response from the prosecution which may be read here.

What I didn’t realize, however, was that the Court was deciding that day to reject the amicus. You can read their decision here.

I must admit that going through the Court’s decision does not inspire confidence. That the decision begins with a discussion about the word length is… like something I might write at the END of my comments on a student essay.

Next, in the brief “Discussion” of the merits of the arguments, the court briefly states that it is “not convinced that the applicants’ submissions would assist in determining the issues on appeal”, and invokes procedural rules for submitting evidence. It further states that the amicus brief is problematic because it does not identify the fact that one of the authors, Geoff Corn, was an expert witness for the defence. Given that this later point should have been pretty obvious and they are already lecturing the authors for going over the word limit, you wonder how this should have been done? Or why this is a matter of substance in deciding the merits of the worth of the amicus?

Either way, the Court uses these points to reject the amicus in a brief dismissal that I find wanting. Disappointingly, the amicus has been dismissed on rather procedural and technical grounds. And this is important: if international courts are going to be making controversial decisions suggesting that a 4% error rate is tantamount to a war crime and if they reject advice on this matter because someone didn’t explicitly attach a CV to an amicus that violated the 10% +/- rule, I am concerned. And you have to wonder what kind of message this send to countries thinking about signing up to war crimes courts/trials?

Regarding my post from last week, Geoff Corn responded in the comments to direct readers to his SSRN paper on the matter. I would definitely recommend interested Duck readers to take a look.

Clearly, Gotovina remains a case that should be closely watched. The man himself remains a controversial figure. Being concerned with his trial is not to say he is not guilty of some crimes. However, it is clear that many experts in this area are concerned about logic employed by the ICTY on several important aspects of the case and the future implications of war crimes trials.

I look forward to more reaction from the amicus authors and other scholars on this matter.

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