Suchergebnisse

Thirteen years after the United States initiated a military response to the terrorist attacks of September 11, 2001, the nation continues to prosecute what it considers an armed conflict against transnational terrorist groups. How the core purpose of the law of armed conflict has influenced operational decisions related to all aspects of the military response to al-Qaeda and associated forces is the focus of this book.

Few violations of the law of armed conflict (LOAC) are as pernicious as using civilians to shield military objectives from attack. This unlawful tactic unfortunately seems to be an all too common practice of organized armed groups, especially in conflicts against tactically superior conventional state armed forces. The very term "human shielding" presupposes, however, the ultimate objective is to prevent an opponent from attacking the shielded military objective or, in the alternative, substantially complicate that attack decision. But is a shielding effect always the ultimate objective of such civilian exploitation? This article argues that the answer is no; that there is a more aggravated form of "human shielding" that occurs when the party exploits civilians in an effort to "bait" the opponent into launching an attack in the hope that it will actually produce civilian casualties, casualties that can be exploited in the broader "legitimacy battle." Thus, unlike the conduct-based violation of human shielding condemned by the LOAC, this tactic seeks to produce the far more egregious result of civilian casualties by exploiting the attacking force as an "innocent agent" to launch an attack. In this situation, the defending force effectively uses the attacking force to "indirectly" attack civilians by executing an attack on the shielded military objective even though the attack is assessed as lawful. This aggravated form of civilian exploitation is not fully captured by the concept of human shielding. Accordingly, this article argues that more effort needs to be devoted to identifying when and how such "indirect attacks" on civilians can be identified and condemned.

Today, isolated force-on-force battles are considered a relic of the past. Instead, armed forces must expect to conduct combined arms maneuver operations in and around civilians and civilian population centers. And this expectation is only increased when anticipating operations against enemies who see embedding their vital assets in densely populated areas as a force multiplier. This perception is based on not only the inherent tactical advantages of embedding assets among civilian population centers (such as ready access to logistics and lines of communication), but also their recognition that the complexity of conducting operations against these assets in a legally compliant manner will inhibit the efforts of their state opponents. All of this points towards the importance of a more comprehensive understanding of targeting reasonableness--an understanding based on the tactical situation that frames attack decisions and the nature of the combat operation in which those decisions are made. This latter aspect of assessing attack reasonableness will be enhanced by considering not only whether an attack decision is deliberate or dynamic/time-sensitive but also the impact of the "mission-type" context of operations. As this Article will explain, because operations conducted pursuant to mission-type orders involve inherently decentralized attack decisions, the expectation of what is or is not reasonable is different than in the context of deliberate attack decisions. Because of this, those responsible for implementing LOAC obligations and assessing compliance with these obligations should lead to a prioritization of the rule of precautionary measures as the focal point for civilian risk mitigation.

AbstractOperating under responsible command is an essential requirement to qualify as a lawful combatant, and is also central to the doctrine of command responsibility. This reveals the inextricable link between the role of the commander and the effective implementation of the international humanitarian law (IHL). Understanding this linkage is vital to ensuring that commanders and other military leaders fulfil their obligation to prepare subordinates to navigate the chaos of mortal combat within the legal and by implication moral framework that IHL provides. Few commanders would question the proposition that responsible commanders prepare their military units to effectively perform their combat missions. However, operational effectiveness is only one aspect of developing a "responsible" command. Because this term is grounded in the expectation of IHL compliance, a truly responsible command exists only when the unit is prepared to execute its operational mission in a manner that fully complies with IHL obligations. This broader conception of a disciplined and effective military unit reflects the true nature of the concept of responsible command, as only military units built on this conception of discipline advance the complementary objectives of military effectiveness and humanitarian respect. Accordingly, the requirement that lawful combatants operate under responsible command is an admonition to all military leaders that truly effective military units are those capable of executing their missions with maximum operational effect within the framework of humanitarian constraint that defines the limits of justifiable violence during armed conflict.