A Practical Perspective on Attacking Armed Groups

By Huston, R. Patrick | Vanderbilt Journal of Transnational Law, May 2018 | Go to article overview

A Practical Perspective on Attacking Armed Groups


Huston, R. Patrick, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS     I. INTRODUCTION                                        920   II. THREE-PART FRAMEWORK FOR ATTACKING PEOPLE           921       A. Members of State Armed Forces                    922       B. Members of Organized Armed Groups                923          1. Which Groups Qualify as                       923             Organized Armed Groups?          2. Identifying Members of                        924             Organized Armed             Groups       C. Civilians Who Directly Participate in            925          Hostilities  III. ORGANIZED ARMED GROUPS AND DIRECT                   926       PARTICIPATION IN HOSTILITIES       A. LOAC Should Not Treat Members of                 927          Nonstate Armed Groups Better Than          Members of State Armed Forces       B. Treating Members of Armed Groups                 928          No Better Than Members of State          Armed Forces Is Consistent with Treaty          Law and State Practice       C. Treating Members of Armed Groups                 929          No Better Than Members of State          Armed Forces Reflects the Reality of          Military Operations   IV. CONCLUSION                                          930 

I. INTRODUCTION

It has been a tremendous honor both to address the 2nd Israeli Defense Forces Conference on the Law of Armed Conflict and to provide this Article. My goal is to provide more detail on my views regarding organized armed groups (1) under International Humanitarian Law, which I will refer to as the Law of Armed Conflict (LOAC). While I am not an academic, I hope to provide the practical perspective that comes from implementing LOAC rules during real-world operations. My perspective also comes from recognizing the need to apply these rules across a broad spectrum of operations: in the air, on the ground, at sea, in both urban and remote areas, and in future conflicts that might not resemble today's fight.

Let me begin by emphasizing that the United States is absolutely committed to complying with the LOAC during all military operations. The United States has devoted more time, training, and personnel to this vital task than any other nation in the history of warfare. To help our commanders comply with the LOAC, I typically apply a three-part framework when I provide legal advice on a proposal to attack any person.

In this Article, I will describe the three questions I ask and highlight some of the practical problems that can arise when we answer each of the three questions. After that, I will move on to a discussion of how organized armed groups are treated under the LOAC, and how that treatment is--and should remain--different from how civilians are treated when they directly participate in hostilities. I consider this distinction to be the most important part of the discussion about targeting persons in today's conflicts, but I note that this key concept is sometimes misunderstood or misapplied, so it plays a prominent role in my presentation.

II. THREE-PART FRAMEWORK FOR ATTACKING PEOPLE

When describing this three-part framework for targeting a person--or making a person the object of attack, to use the LOAC term (2)--I am drawing on my experience serving as the Staff Judge Advocate for the U.S. Central Command (CENTCOM). Even though the United States was engaged in a number of non-international armed conflicts during my time at CENTCOM, (3) I think that this three-part framework would be relevant for international armed conflicts as well. When conducting combat operations during an armed conflict, a commander will conduct the Joint Targeting Process to select targets to attack. (4) Some of those targets will be people. Before attacking, the commander must determine whether those people are subject to attack under the LOAC. (5) To advise the commander in making that decision, I use a three-part framework. Before applying this three-part framework, I begin by treating all persons as if they are not subject to attack unless we establish otherwise. …

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