Means and Methods of
Warfare
Matthew J. Festa
Professor of Law, South Texas College of Law
Associate Professor, International & Operational Law,
U.S. Army Judge Advocate General’s Legal Center & School*
*Non-attribution policy: materials and ideas
presented are those of the instructor and , are not to
be attributed to any institution or to the U.S.
Government
Agenda
• Principles of the Law of
War
• Tactics
• Weapons Treaties
–International Law
–Private Law
–(commercial law)
–Law of Armed
Conflict
–Conflict Management
–(jus ad bellum)
U.N. Charter
Arms Control
Customary Law
–Public Law
–(intergovernmental)
–Law of Peace
–Rules of Hostilities
–(jus in bello)
Hague Conventions
(means & methods)
Geneva Conv/Protocols
(humanitarian)
Customary Law
Sources
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Customary international law
Hague Conventions, 1907
Geneva Protocols I and II, 1977
Recent treaties
Conduct of Hostilities
and Targeting
Purpose of Rules for Hostilities
•
•
•
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Protect all from unnecessary suffering
Diminish adverse effects of conflict
Safeguard fundamental human rights
Prevent degeneration into savagery or
brutality
• Facilitate restoration of peace
• Maintain public support (CNN Factor)
U.S. Army Field Manual 27-10, para. 2
Sources
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HR: Hague Regulations (Hague IV), 1907
GC: Geneva Conventions I-IV, 1949
AP: Additional Protocols I-III, 1977
FM: Field Manual 27-10, 1956 (C1 1976)
CIL: Customary international law
Specific treaties, e.g., cultural property,
certain conventional weapons
Other Sources
• Tactical Directives
• Doctrine (e.g. Joint Publication 3-60)
• Theater Specific Rules of Engagement
(ROE)
Rules of Engagement
• Don’t confuse the Law of
Armed Conflict with the
Rules of Engagement
• LOAC + political factors +
operational goals = ROE
• LOAC is usually more
permissive than ROE
Law of Armed Conflict
Principles
• Military Necessity
– Military Objective
• Distinction
– Discrimination
• Proportionality
• Unnecessary Suffering / Humanity
• Chivalry
1. Military Necessity
U.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, art. 23(g)
Military Necessity
Military Objective: Those objects which
by their nature, location, purpose or use
make an effective contribution to military
action and whose total or partial
destruction, capture or neutralization, in
the circumstances ruling at the time,
offers a definite military advantage.
AP I, art. 52(2)
Military Objective
• Nature: the type of object
• Location: areas which are militarily
important b/c they must be captured/denied
an enemy OR because the enemy must be
made to retreat from them (key terrain)
• Purpose: the future intended or possible use
• Use: how an object is presently being used
Location: Key terrainUse: Present usage
Purpose: Future intended use
Nature: Purely Military
Principles of the Law of War
• Military Necessity
– Military Objective
• Distinction
– Discrimination
• Proportionality
• Unnecessary Suffering / Humanity
2. Distinction
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.
Protocol I, art. 48
Military Objective
Those objects which by their nature,
location, purpose or use make an
effective contribution to military action
and whose total or partial destruction,
capture or neutralization, in the
circumstances ruling at the time, offers a
definite military advantage.
AP I, art. 52(2)
PEOPLE
and
THINGS
Combatants
• Hostile force declared: status-based
– Forces authorized to engage in hostilities
(e.g. responsible command, distinctive sign,
arms carried openly, and LOAC followed)
• No hostile force declared: conduct-based
– Hostile Act/Hostile Intent
– Civilians taking direct part in hostilities (DPH)
– Individuals in support
DPH
(Direct Participation in Hostilities)
Civilians shall enjoy the protection
afforded by this section/part,
unless and for such time as they
take a direct part in hostilities.
AP I, art. 51(3)
AP II, art. 13(3)
Civilian Objects
• AP I, Art. 52.1 definition
• Examples:
–
–
–
–
–
–
Undefended places
Hospital and safety zones
Medical units and establishments
Medical transports
Cultural sites
Prohibitions on pillage
Duty to Distinguish
• AP I, Arts. 48, 51.7, 58
– Applies to both attacker and defender
– Defender must distinguish own forces
from civilians and civilian objects
– Examples: Uniforms, Markings,
Duty to Segregate Civilians & Objects
Principles
• Distinction
– Military Objects and Person
presumed targetable
– Civilians and civilian Objects
presumed not targetable
– Both presumptions are rebuttable
Distinction…
Carlos Santana?
Principles of the Law of War
• Military Necessity
– Military Objective
• Distinction
– Discrimination
• Proportionality
• Unnecessary Suffering
• Chivalry
3. Proportionality
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.
Protocol I, Article 51(5)(b)
Proportionality
Is this excessive in relation to that?
Civilian death,
injury, or damage
Concrete and direct
military advantage
Excessive: exceeding a normal,
usual, reasonable, or proper limit
WHAT I WANT YOU
TO REMEMBER:
• The prohibition is on the death and
destruction caused in the attack, NOT on
the actual attack that caused the death
and destruction.
OR…
• It’s not the size of the bomb in the fight,
but the size of the hole the bomb makes…
Targeting
Applying LOAC principles, relevant
treaties, and policy and operational
concerns to specific kinetic situations.
People, Places, Things
Targeting: Principles
• Military Necessity
– justifies those measures not
forbidden by international law
which are indispensable for
securing the complete submission of
the enemy as soon as possible
Targeting: Principles
• Distinction
– Military Objects and Person
presumed targetable
– Civilians and civilian Objects
presumed not targetable
– Both presumptions are rebuttable
U.S. Targeting Categories
Targeting Considerations
– Legal Sources
– Rules of Engagement
– Theater-specific directives
– Policy
– Operational objectives
– Approval authorities
– Self Defense—
• inherent right vs. hostile act/hostile intent
– “can” vs. “should”
FACT SHEET
1) Near certainty that the terrorist target is present;
2) Near certainty that non-combatants will not be injured or
killed;
3) An assessment that capture is not feasible at the time of the
operation;
4) An assessment that the relevant governmental authorities in
the country where action is contemplated cannot or will not
effectively address the threat to U.S. persons; and
5) An assessment that no other reasonable alternatives exist to
effectively address the threat to U.S. persons.
Principles of the Law of War
• Military Necessity
– Military Objective
• Distinction
– Discrimination
• Proportionality
• Unnecessary Suffering/Humanity
• Chivalry
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
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
Enemy
Equipment/Colors
Equipment: must remove all enemy
insignia
U.S. position on colors is the same as the
practice regarding uniforms
Treachery/Perfidy
Injuring the enemy by his adherence to the
law of war; why the outrage?
Feigning
Misuse
“Special” Tactics
–Assassination
Espionage
Info Ops
Reprisals
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.
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
Principles of the Law of War
• Military Necessity
– Military Objective
• Distinction
– Discrimination
• Proportionality
• Unnecessary Suffering/Humanity
• Chivalry
4. Unnecessary
Suffering/Humanity
Hague IV, art. 22: The right of belligerents to
adopt means of injuring the enemy is
not unlimited
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)
Weapons Review
GP I, art. 36: before any new weapon system is
employed, it must conform to international law
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?
Weapons Review
Legal 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
47
Weapons Review
Applicable Treaties
•
Article 23, Annex to Hague Convention
IV Respecting the Laws and Customs of
War On Land of 1907.
– “[I]t is especially forbidden –
….
e. To employ arms, projectiles or material calculated
to cause unnecessary suffering….”
•
Also prohibits use of “poison or
poisoned weapons”
48
Weapons Review
Customary 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)
49
Key Standards from Customary
International Law [and FM 27-10]
• 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.
50
Convention on Certain
Conventional Weapons
51
Weapons Review
Current 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
52
Example: Small Arms Ammo
Hollow Point v. Open
Tip
Frangible
The Hague Declaration Concerning Expanding Bullets, July 29, 1899
Open Tip
Lead Tip
Open Tip
Hollow Point
Hollow Point
Nonlethal Weapons
• “Bean-bag rounds”
• Water cannons
• “Goop Gun”
– sticky foam version
– super lubricants version
• Tasers - electric shock
• Active Denial System
Landmines
Landmines (Types)
Anti-personnel or antitank & anti-tank with
anti-handling devices
Smart or dumb
mines
Remotely delivered or
non-remotely delivered
Ottawa Treaty
Prohibits the use,
stockpiling, production or
transfer of Anti-Personnel
Landmines
Doesn’t prohibit the use of AntiVehicle Landmines
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 antivehicle land mines can only be
employed outside Republic of Korea
with Presidential authorization
– After 2010 US will no longer employ
persistent anti-personnel or antivehicle land mines
Available at www.state.gov/t/pm/rls/fs/30044.htm
Claymores
Claymore “mine” (Prot II CCW art. 5, para. 6)
Command detonated v. tripwire mode
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)
Booby-traps
• Prohibited uses: (art. 7 of CCW AMP II)
– protective emblems
– sick and wounded/burial sites
– medical stuff
– children’s toys
– food or drink
– objects of religious nature
– historic monuments
– animals or their carcasses
Incendiaries
CCW states: “incendiary weapons do
not include munitions which have
incidental incendiary effects, such as
illuminates, tracers, smoke or signaling
systems.”
Lasers
• 1995 Protocol IV
– “Specifically designed”
– “to cause permanent blindness to
unenhanced vision”
– Incidental or collateral effect not
banned . . .
• Laser Sights, Pointers
• Laser Dazzlers
• The future – Directed Energy Weapons?
Incendiaries
Protocol III of CCW: No use against
military objectives located within
concentrations of civilians
Examples
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
Questions?
Matthew J. Festa
South Texas College of Law
Dept. of Int’l and Operational Law
U.S. Army Judge Advocate General’s
Legal Center and School
Phone 713.646.1857
mfesta@stcl.edu