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Belligerent Targeting and the Invalidity of a Least Harmful Means Rule

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Belligerent Targeting and the Invalidity of a Least Harmful Means Rule Belligerent Targeting and the Invalidity of a Least Harmful Means Rule Geoffrey S. Corn Laurie R. Blank Chris Jenks Eric Talbot Jensen 89 INT’L L. STUD. 536 (2013) Volume 89 2013 International Law Studies 2013 Belligerent Targeting and the Invalidity of a Least Harmful Means Rule Geoffrey S. Corn Laurie R. Blank Chris Jenks Eric Talbot Jensen* [Y]ou may fly over a land forever; you may bomb it, atomize it, pulverize it and wipe it clean of life—but if you desire to defend it, protect it, and keep it for civilization, you must do this on the ground, the way the Ro- man legions did, by putting your young men into the mud. — T.R. Fehrenbach, THIS KIND OF WAR (1963) * Professor Corn is Presidential Research Professor of Law, South Texas College of Law; Lieutenant Colonel (Retired), U.S. Army Judge Advocate General’s Corps; Professor Blank is Director, International Humanitarian Law Clinic, Emory University School of Law; Professor Jenks is Assistant Professor of Law and Criminal Justice Clinic Director, SMU Dedman School of Law; Lieutenant Colonel (Retired) U.S. Army Judge Advocate General's Corps; Professor Jensen is Associate Professor at Brigham Young Law School, Lieutenant Colonel (Retired), U.S. Army Judge Advocate General’s Corps. Professors Corn, Jenks and Jensen each served in the U.S. Army for over 20 years, beginning their careers as Intelligence, Infantry and Armor officers, respectively, and then serving in the U.S. Army Judge Advocate Generals’ Corps. Professors Jenks and Jensen participated in operational deployments on peacekeeping missions and as legal advisors to ground com- bat units in Iraq. Portions of this article draw significantly on Professor Corn's earlier arti- cle, Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict, 1 JOURNAL OF INTERNATIONAL HUMANITARIAN LEGAL STUDIES 54 (2010). We would like to thank Allison Arnold (J.D. expected, Brigham Young Law School) and Tariq Mohideen (J.D. expected, 2013, Emory University School of Law) for their helpful and enthusiastic research assistance in the preparation of this article. Most of all, we wish to recognize the great pleasure each of us has had in working on this article with colleagues whose wisdom, friendship and diligence has made this collective effort a genuine professional highlight. 536 Invalidity of a Least Harmful Means Rule Vol. 89 I. INTRODUCTION T he M-4 carbine, standard issue for U.S. armed forces, has two firing op- tions: semi-automatic and three-shot burst. When set to three-shot mode, the carbine discharges three rounds each time the trigger is pulled. These rounds inflict devastating injury. At the very moment you read this article, it is likely that hundreds if not thousands of U.S. service members, like their counterparts in multiple nations, are engaged in training with this and similar weapons. The training conditions soldiers1 to employ a three-round burst aimed at the center mass of the human silhouette once the decision to attack has been made. It does not involve sophisticated discussions about why shots are aimed at center mass, or why three-shot bursts are employed. For the soldier, the logic is self-evident: the employment of combat power against an enemy—whether an individual soldier firing her rifle, a tank gunner firing a highly-explosive anti-tank round, or an Apache pilot letting loose a salvo of rockets—is intended to completely disable the enemy in the most efficient manner in order to eliminate all risk that the opponent remains capable of continued participation in the fight. Because hesitation in the midst of armed hostilities produces unquestionable risk to friendly forces and erodes the good order and discipline essential to effec- tive execution of military operations, the goal of such training is to develop a genuine sense of combat aggressiveness that is uncompromised by any such hesitation once an enemy target has been positively identified. Military training and professional development strives to inculcate this ethos into both the soldiers at the proverbial tip of the spear, and the commanders and staff officers who plan their operations. Close with and de- stroy the enemy is the mantra of the U.S. infantry, and warfare is replete with examples of the lethality associated with combat operations. How soldiers are equipped, trained, and mentally developed for combat is just one indi- cation of the brutal and deadly nature of warfare, or armed conflict in in- ternational legal parlance. At its core, this endeavor involves the deliberate application of combat power that produces a high probability of causing 1. The term “soldier” is used as a generic description of all service members, and is not intended to suggest that the analysis in this article is limited to members of the U.S. Army or to diminish the challenges confronted by their counterparts in the Marine Corps, Air Force, Navy, or Coast Guard. 537 International Law Studies 2013 death—the use of weapons (means) and tactics (methods) of warfare that could never, in any other context, be considered justified by domestic or international legal principles. One of the axiomatic rules of war is that the authority to employ this combat power—to attack—is justified based on a determination of enemy belligerent status: once a potential object of attack is positively identified as a member of an enemy belligerent group, these devastating means and methods of warfare may lawfully be utilized. This authority is not, however, unlimited, and terminates as no longer justified once the enemy is rendered combat ineffective as the result of disabling wounds or capture, conditions that clearly indicate the enemy belligerent is physically incapable of engaging in hostile conduct presumptively associat- ed with this status. There is virtually no disagreement in the contemporary international discourse on the law of armed conflict (LOAC) with the rule that once an enemy belligerent becomes hors de combat—what a soldier would recognize as “combat ineffective”—the authority to employ deadly force terminates.2 However, what qualifies as hors de combat and accordingly operates to rebut the status-based presumption of hostility and accordant targetability has become a flashpoint of current international legal debate. Until recently, almost all experts interpreted hors de combat to mean incapacitation resulting from wounds, sickness, or capture.3 Accordingly, an enemy belligerent falls within the proverbial crosshairs of status-based targeting authority unless and until rendered physically incapable of continuing to perform a belliger- ent function. Furthermore, unless this incapacity is involuntary as the result of wounds or sickness, the individual enemy bears the burden of demon- strating this incapacity through the act of surrender. Indeed, it is no exag- geration to assert that members of the armed forces, especially members of the military legal profession charged with educating, training, and advising the armed forces, universally embrace this understanding of the law. Recently, however, some have forcefully asserted that the LOAC in- cludes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even if the enemy 2. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 41, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I]. 3. YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTER- NATIONAL ARMED CONFLICT 159 (2010); A.P.V. ROGERS, LAW ON THE BATTLEFIELD 48–49 (2004); FRITS KALSHOVEN & LIESBETH ZEGVELD, CONSTRAINTS ON THE WAG- ING OF WAR 97 (2011). 538 Invalidity of a Least Harmful Means Rule Vol. 89 belligerent is neither physically disabled nor manifesting surrender. The convergence of a number of influences seems to have fueled this theory, including the increasing emphasis on the humanitarian foundation of the LOAC,4 the renewed assertion by the International Committee of the Red Cross (ICRC) that the principle of humanity imposes a “capture instead of kill” rule whenever tactically feasible,5 the widely-cited Israeli High Court of Justice opinion analyzing the legality of targeted killings,6 and most recently the work of one scholar who claims to have discovered highly probative but heretofore overlooked evidence of state practice and opinio juris that conclusively establishes this obligation.7 Proponents of this obligation to cap- ture rather than kill, or to use the least harmful means to incapacitate ene- my belligerents, do not contest the general authority to employ deadly force derived from belligerent status determinations. Instead, they insist that the conditions that rebut this presumptive attack authority are broader than the traditional understanding of the meaning of hors de combat em- braced by military experts and include any situation where an enemy bellig- erent who has yet to be rendered physically incapable of engaging in hostili- ties may be subdued without subjecting friendly forces to significant risk of harm.8 4. See, e.g., Theodor Meron, The Humanization of Humanitarian Law, 94 AMERICAN JOURNAL OF INTERNATIONAL LAW 239 (2000); Marko Milanovic, Norm Conflicts, Interna- tional Humanitarian Law and Human Rights Law, in XIX/1 HUMAN RIGHTS AND INTERNA- TIONAL HUMANITARIAN LAW: COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW 95–128 (Orna Ben-Naftali ed., 2010); Noam Lubell, Parallel Application of International Humanitarian Law and International Human Rights Law: An Examination of the Debate, 40 ISRA- EL LAW REVIEW 648–60 (2007). 5. INTERNATIONAL COMMITTEE OF THE RED CROSS, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HU- MANITARIAN LAW 81-82, (2008) [hereinafter INTERPRETIVE GUIDANCE]. 6. HCJ 769/02 Pub. Comm. Against Torture in Israel v. Gov’t of Israel 26 [2005] (Isr.) [hereinafter Targeted Killings Case].
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