UNIVERSITY OF UTAH S.J. QUINNEY COLLEGE OF LAW LEGAL STUDIES RESEARCH PAPER SERIES A Critical Decision Point on the Battlefield-Friend, Foe, or Innocent Bystander Matthew V. Ezzo and Amos N. Guiora [Research Paper No. 057- 08-03] This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstracts=33333 A Critical Decision Point On the Battlefield – Friend, Foe, or Innocent Bystander By Matthew V. Ezzo and Amos N. Guiora Captain James Smith reported to the Battalion Command Post outside of Kabul, Afghanistan. Captain Smith was anxious to receive the next mission for India Company. Captain Smith and his men had been actively engaging al Qaeda supported militants over the past 2 weeks. They had successively conducted raid operations against militant compounds near the Afghanistan and Pakistan border. On each occasion, the militants were caught off-guard and therefore had little opportunity to offer resistance. Captain Smith sat in the Command Post listening to the latest intelligence reports from the Battalion Intelligence Officer. The intelligence reports indicate an unusually large amount of activity from the local civilian population in and around suspected militant strongholds. Captain Smith notes this as the Battalion Commander steps into the tent to issue the operations order for the next day. India Company is to conduct an early morning raid on a suspected militant compound near the southeastern Afghanistan and Pakistani border. Unmanned aerial vehicles have provided imagery that indicates that the militants are consolidating and re- grouping in a large clay and brick enclosed compound at the base of Hill 402. India Company is to seize the objective by force and consolidate on the compound so that follow-on forces can conduct a thorough search of the compound for weapons caches and any other valuable intelligence. Captain Smith leaves the Command Post confident about his mission and anxious to brief his subordinates. Captain Smith and his men infiltrate to the objective under the cover of darkness and reach the compound about an hour before their pre-dawn, coordinated attack. As Captain Smith and some of his subordinate leaders are conducting a visible reconnaissance of the compound using their night vision devices, they begin to notice a group of women and older males starting to walk the perimeter of the compound about an hour before dawn…just when the attack is supposed to launch. The women and older aged males appear to be unarmed, but seem to be walking the perimeter of the compound in a fashion normally associated with sentries walking their post. Captain receives a call on the radio from the Battalion Commander asking him to launch the Matthew V. Ezzo, J.D. is currently a Presidential Management Fellow with the Department of the Navy. The opinions and content expressed in this article are exclusively those of Mr. Ezzo and Prof. Guiora. They do not represent the views of the Department of Defense or the Department of the Navy. Amos N. Guiora, Professor of Law, S.J. Quinney College of Law, University of Utah, Publications include ―Global Perspectives on Counter-terrorism‖ (Aspen Publishers); ―Constitutional Limits on Coercive Interrogation‖ (Oxford University Press, March, 2008); ―Fundamentals of Counterterrorism‖ (Aspen Publishers, Fall, 2008), Interrogating the Detainees: Extending a Hand or a Boot,‖ University of Michigan Journal of Law Reform, 41 U. MICH. J.L. REFORM ___(forthcoming) The authors would like to thank Mr. Jeffrey Lowe (J.D. expected, S.J. Quinney College of Law, May 2009) for his significant research and editing contributions. 1 attack as planned as the follow-on forces are on their way. Captain Smith knows he is at a critical decision point…are these people walking the perimeter of the compound innocent civilians or are they working with the militants and therefore legitimate targets?1 I. Introduction We come to this article from different—yet ultimately similar—professional backgrounds. One of us, Matt Ezzo, was a United States Marine Corps infantry officer who served in various company level leadership positions. During his time in the Marine Corps, Mr. Ezzo led Marine Corps infantry units during security operations in the Republic of Haiti and various operations in Kosovo and Albania. Amos Guiora served for 19 years in the Israel Defense Forces and had command responsibility for the development of an interactive video based on international law, Israeli law and the IDF code teaching junior commanders an 11 point code of conduct with respect to a civilian population in ―armed conflict short of war‖. We write this article based on our mutual conviction that a (perhaps the) significant challenge facing military commanders in operational counter-terrorism is the requirement to distinguish between innocent civilians and combatants2. The rules of war boil down to one central principle: the need to distinguish combatants from noncombatants.3 That requirement is rooted in and articulated by international law which 1 This scenario is fictitious, but is meant to serve as a potential real-world situation for junior commanders on today‘s battlefields. This scenario should be kept in mind as you read this article regarding the critical strategic, operational and legal decisions that junior commanders must assess and ultimately make regarding human shields. Human shields are a very real threat on today‘s battlefield. Identifying whether they are there voluntarily or not is an important assessment that a junior commander may have to make before he decides to engage an enemy force. 2 In the context of operational counter-terrorism we define combatants as individuals who threaten innocent civilians and soldiers alike. However, we do not argue that an individual who kills a soldier is a terrorist, as terrorism is acts only against civilian targets. A combatant in the terrorism paradigm is not a soldier, as he/she does not meet the four-part Geneva Convention requirement (bear arms openly, follow the rules of war, belong to a chain of command and wear insignia). In terms of dress, the civilian is undistinguishable from the combatant and therein lies the dilemma facing the commander who must decide quickly if the person before him/her is a represents a threat. 3 See also Amos N. Guiora, Teaching Morality in Armed Conflict – The Israel Defence Forces Model Jewish Political Studies Review, 18 JEWISH POL. STUD. REV., NO. 1-2 at 3 (Spring 2006)(―What concerns us is how the contemporary army prepares itself for today's war, which is 2 soldiers are obligated to act in accordance with. Unlike traditional war in which soldiers fought soldiers and tanks attacked tanks, the post 9/11 world is characterized by the ―unseen enemy in the dark shadows of the back alleys‖. What increasingly complicates the commanders‘ dilemma in determining the status either of the individual standing before him, or the shadow he believes to be a person in the near-by alley, is what we describe and define as ―voluntary human shields‖. Our definition refers to a civilian who voluntarily4 places himself between the soldier and the armed combatant. We have chosen to address this issue for multiple reasons: commanders demand clear criteria regarding the status of those in the ―zone of combat‖5; the innocent civilian must be protected6; international law demands the soldier be trained in distinguishing between the innocent and non-innocent and the community supporting terrorist organizations must know that the truly innocent will be protected (to the greatest extent possible). fundamentally different from yesterday's war. That difference relates to the core question of whom is the soldier fighting; who is the enemy? Contemporary armed conflict does not and will not take place on the vast battlefields of the past; rather, it will occur in the back alleys of Groznyy, Nablus and Mosul. The soldier will not be facing another soldier wearing a uniform with insignia, carrying his weapon openly, and serving in a unit with a clear chain of command. In the contemporary combat arena, the combat is far more complicated, complex, and ambiguous than in traditional warfare for two primary reasons. Increasingly, combat will occur in urban centers and not on a battlefield, and civilians will be very much present.‖). 4 A term we define as: A person not compelled by another‘s influence, who acts without compulsion and on his or her own initiative; See also Black‘s Law Dictionary (8th ed., West 2004)(Voluntary - 1. Done by design or intention <voluntary act>. 2. Unconstrained by interference; not impelled by outside influence <voluntary statement>. 3. Without valuable consideration; gratuitous <voluntary gift. 4. Having merely nominal consideration <voluntary deed>); See also Merriam-Webster Online (Voluntary - 1: proceeding from the will or from one's own choice or consent 2: unconstrained by interference: SELF-DETERMINING 3: done by design or intention: INTENTIONAL <voluntary manslaughter> 4: of, relating to, subject to, or regulated by the will <voluntary behavior> 5: having power of free choice 6: provided or supported by voluntary action <a voluntary organization> 7: acting or done of one's own free will without valuable consideration or legal obligation.) Available at http://www.m- w.com/dictionary/voluntarily (last viewed 25 January 2008). 5 The term refers to the location of a terrorist attack and highlights its flexibility; unlike the set- piece battle field of yesterday, the ―zone of combat‖ includes a just hijacked commercial airliner, a shopping center under attack and an alley in Mosul where American forces are under fire 6 It is our thesis that the innocent civilian requires protection from two sources: the military unit that may mis-identify him and categorize him as a threat and from the terrorist organization that has pushed him into the line of fire 3 History provides some insight on the impact human shields have on the decisions made on today‘s battlefield.