Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity
Rosen, Richard D., Vanderbilt Journal of Transnational Law
Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media)provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it allows terrorist and insurgent groups to gain strategic and tactical advantages through their own noncompliance with the law and their adversaries' observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This Article proposes structural changes to the law governing targeting and attitudinal changes by those who interpret it to ensure that civilians receive adequate security from armed attack.
TABLE OF CONTENTS I. INTRODUCTION II. THE DEVELOPMENT OF CIVILIAN IMMUNITY UNDER THE LAW OF WAR A. The Law Before the Hague Regulations of 1907 B. The Hague Regulations 1. Genesis 2. Key Provisions C. From Hague to Protocol I 1. Geneva Gas Protocol of 1925 2. Hague Air Rules of 1923 3. Geneva Conventions of 1949 4. Hague Convention on the Protection of Cultural Property of 1954 III. ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION OF 1949 A. Genesis and Drafting Process B. Law of Civilian Immunity After Protocol I 1. General 2. Principle of Distinction 3. Principle of Proportionality IV. USING COMPLIANCE WITH THE LAW OF WAR AS A MILITARY TACTIC A. al-Amariyah (al-Firdos Bunker) 1991 B. Jenin 2002 C. Fallujah 2004 D. Israel-Hezbollah Conflict 2006 E. Israeli-Hamas Conflict 2008-2009 V. CONCLUSION: ENHANCING CIVILIANS IMMUNITY UNDER THE LAW OF WAR
"Soldiers are made to be killed,' as Napoleon once said; that is why war is hell. But even if we take our standpoint in hell, we can still say that no one else [but soldiers are] made to be killed. This distinction is the basis of the rules of war." (1)
While General Sherman's simple adage that "war is hell" (2) is axiomatic, it is also indisputable that the ravages of war should be reserved for the soldiers who wage it. (3) Those who take no active part in conflict--civilians and as well as combatants who can or will no longer fight--should be spared, to the utmost extent, the horrors of battle. The protection of noncombatants, especially civilians, is the primary purpose of the law of war. (4)
Few disagree with this fundamental principal. (5) Most nations recognize that while "[b]elligerent armies are entitled to try to win their wars.... they are not entitled to do anything that is or seems to them necessary to win." (6) More problematic is discerning the means by which the principle is realized. Unfortunately, some parties to international armed conflicts, acting with the inadvertent (if not tacit) support of many in the international community--including, at times, the United Nations (UN), non-governmental organizations (NGOs), and the press--have chosen to interpret and implement international humanitarian law in such a manner as to intensify, rather than diminish, the collateral effects of war. (7) The path they have taken is leading to more--not less--civilian casualties. (8)
Before 1977, rules governing the conduct of military operations predominantly came from customary international law and the relatively specific restrictions contained in the Hague Regulations of 1907. (9) In 1969, the International Committee of the Red Cross (ICRC) initiated an ambitious process to codify and expand the law of war, particularly the law protecting noncombatants during international armed conflicts. (10) After convening two conferences of government experts in 1971 and 1972, the ICRC proposed two draft protocols to the Geneva Conventions, one applying to international armed conflicts and the other dealing with conflicts of a non-international character. …