Legitimate Questions about Legitimate Targets

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I appreciate the opportunity to offer my reactions to Janina Dill’s impressive work on lawful targeting, or more precisely the effectiveness of international law in regulating combat operations.

Janina’s book (Legitimate Targets? International Law, Social Construction and US Bombing) is a fascinating analysis of the complex intersection of international relations and international law. Central to her thesis is the dichotomy between what she defines as the “logic of efficiency” and the “logic of sufficiency.” As she explains, each of these concepts reflects some of the underlying objectives of international legal regulation, most notably in relation to armed conflict. The logic of efficiency essentially prioritizes achieving the strategic end-state “efficiently” over protection of the civilian population, essentially trading civilian risk for rapid victory. In contrast, the logic of sufficiency seeks to limit the risks of armed conflict to each party’s military forces in order to enable them to compete in the contest of arms with limited impact on civilians. Janina posits that the targeting regulatory regime established by Additional Protocol I reflects a “sufficiency” foundation, as it sought to limit the use of combat power to only those potential targets that offered a genuine prospect of weakening enemy military capabilities.

International relations theory is well beyond my area of expertise. Nonetheless, what I found most compelling about Janina’s thesis was how she endeavors to translate theory into a more tangible “package” of principles to clarify the relationship between international law and international relations. It is probably unsurprising, however, that I gravitated more towards Janina’s analysis of the impact of international humanitarian law on the planning and execution of combat operations. While I found her dichotomy between “efficiency” and “sufficiency” interesting, I am not persuaded that IHL’s rationale is so neatly segregated. Throughout her book, I found myself wondering why arguments in favor of sufficiency did not also reflect elements of efficiency, and why arguments in favor of efficiency did not also reflect elements of sufficiency. I do, however, think the dichotomy offers a fascinating and novel lens through which to consider the role of IHL, which is, I believe, ultimately what Janina sought to accomplish.

Janina’s explanation of IHL targeting rules was clear and accurate throughout the text. She also provides important insights into how the law, at least in its current state, provides belligerent forces with ample legal “space” for using decisive combat power. While I might disagree with some of her conclusions about actual U.S. compliance with the law during air operations, overall I felt her treatment of the issue was fair and credible. I was especially impressed by her recognition that the law serves a range of interests, from enabling the efficient defeat of enemy armed forces, to mitigating risk to civilians and their property, to providing those charged with the difficult duty of using deadly combat power with a framework for reconciling the consequences of their decisions with general societal standards of morality.

As a former U.S. Army officer – having served both in tactical intelligence and as a military legal advisor – I was most interested in Janina’s final chapters, where she offers an illustration of her theory by applying it to U.S. air operations. She titles this chapter, “The lack of normative success of international law in US air warfare.” It is here that I take issue with a number of her conclusions. First, she builds this chapter on the assertion that the IHL principle of proportionality is the focal point of balancing military necessity with humanitarian restraint, noting that, “When it comes to the protection of civilians, the way in which IHL attempts to achieve a compromise between utility and appropriateness is the principle of proportionality.” While I agree that the balance between necessity and humanitarian restraint is central to this principle, I believe the assertion overplays the actual operational significance of this principle. As I have argued in a recent article, beyond the extreme ends of the civilian risk assessment spectrum, the inherent uncertainty as to what constitutes “excessive” civilian risk coupled with the constant array of tactical and operational variables limits the utility of proportionality. To Janina’s credit, she actually acknowledges this very same point, when she notes that, “Loss of human life and military gain are never in harmony; reasonable people disagree on all but the most extreme cases of excessive civilian casualties.” In this regard, it is important to note that Janina emphasizes more than once that the compliance with the principle is supposed to be assessed based on anticipated risk, and not actual casualty counts. But she also asserts that it is unavoidable that actual results are increasingly and probably inevitably viewed as the touchstone of compliance or violation.

This also leads into her argument that it is probably impossible to credibly and effectively assess whether IHL actually produces its humanitarian objectives in relation to the regulation of combat power. But both of these assertions fail to account, I believe, for the importance of process as evidence of IHL achieving a positive humanitarian effect. Janina acknowledges the substantial increase in the role of IHL in US target decision-making processes. However, I did not feel that she fully accounted for the significance of this process as a risk mitigation tool, and how this process reflects a genuine interest in advancing IHL’s ultimate objective of mitigating civilian risk.

Closely related to what I believe was the under-valuation of process as an manifestation of IHL effectiveness was my reaction to her assertion that proportionality is the focal point for achieving the “utility/appropriateness” balance, an assertion I believe is overstated. First, in my experience, operational decision-makers have a much more nuanced appreciation of this “balance”, and recognize that the package of IHL civilian risk mitigation rules are not really seeking a “balance” between utility and appropriateness. Instead, they understand that where civilian risk cannot be justified by genuine military interests – and would therefore fail Janina’s standard of appropriateness – there is no utility in the use of combat power. Second, I believe Janina undervalued the significance of precautionary measures in this target decision-making equation, and how these measures provide a more objective measure of whether IHL is achieving its ultimate goal. In my view, integrating consideration of precautions into the targeting process, and implementing precautions where feasible, is one of the most significant measures to ensure combat power is employed in a way that advances IHL’s objectives of facilitating the prompt and efficient accomplishment of operational and tactical objectives while at the same time mitigating risk to civilians and their property.

Janina ultimately concludes that neither the proposed “efficiency” or “sufficiency” theory of IHL hold much promise for aligning IHL’s outcomes with broader international public expectations. She therefore suggests an alternative approach to target legality regulation: a “liability” theory, which at its core is a rejection of “status”-based combatant targeting. This approach imposes what Janina refers to as a necessity requirement on all targeting, essentially making all combat targeting “conduct” based. Janina acknowledges this approach to targeting authority is strongly opposed by military legal experts. However, she also, quite accurately I believe, explains how both international law (through the increasing influence of human rights law and adjudications on IHL interpretations), and broader international public expectations of greater respect for all human life, are producing an increasingly problematic attenuation between what IHL actually permits and how IHL aligns with the demands of the international community.

I tend to agree with Janina’s explanation of why the existing IHL targeting equation is likely to come under increasing opposition, substantially influenced by an increasing attenuation between international public expectations and the brutal reality of even IHL-compliant hostilities. But I also felt the book left at least two important questions unaddressed: first, should we seek to better align IHL “outcomes” with international public expectations, especially when that public rarely approaches questions of wartime morality and legitimacy through the lens of military experience? And second, what role should the military profession play in IHL’s evolution, and can military considerations justify this inherent gap?

Closely related to this last point, I felt Janina could have provided additional treatment of the possibility that a shift to what she calls a “liability”-based targeting regime would produce its own set of problems. To her credit, she does acknowledge the risk that changes to the law in that direction might result in a loss of credibility, and in turn respect for the law, among those responsible for its implementation. But what is absent from her culminating analysis is a comprehensive explanation of the inherent rationale for the existing “sufficiency” or “efficiency” regime, with its accordant status-based targeting framework. I am on record defending this regime by emphasizing two of its fundamental underpinnings: the difference between the peacetime individualized threat response and the wartime objective of bringing an enemy, in the collective sense, into submission; and the inherent tactical logic of presumption-based targeting authority. While I certainly did not expect Janina to embrace the necessity of the existing status-based targeting regime, the lack of a comprehensive explanation of the importance of this regime, most notably from the perspective of the warfighter, was disappointing.

Ultimately, however, Janina’s development of the thesis she framed at inception – the relationship between international relations theory, international law, and the regulation of hostilities – is outstanding. While I may take issue with some of her theories related to the foundation, justification, and efficacy of IHL, the stresses she identifies between international expectations and the existing IHL conduct-of-hostilities framework are a vital consideration as the law continues to evolve. Janina ultimately illuminates the inherent tension between targeting based on an existing legal regime that evolved to provide belligerents ample “maneuver space” to achieve their tactical and operational objectives, and thereby to contribute to achieving a strategic end-state; and the increasing consternation with the consequences of armed hostilities in the domain of international relations. Janina provides an interesting and insightful analytical methodology to better understand and explain the inevitable divergence in responses to the question, “was that attack legitimate?” While we might not agree on all the details of this methodology, we do agree that these divergences are produced by influences well beyond only black letter IHL.

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Jordan says

September 23, 2015

so from her point of view, should the drone circle over their heads until they actually pick up the gun?