12.1 Forces âDeclared Hostileâ
The use of force or attack on forces âdeclared hostileâ, without the qualification that they be involved in a âhostile actâ or âhostile intentâ as defined by nato, requires the persons to be lawful targets at any time, regardless of current conduct.1 If the opponent complies with the principle of distinction, such as by wearing uniforms, then this is the least complicated attack roe. This may, for instance, be the case in an iac against another Stateâs armed forces (combatants). The challenge arises when the opposing forces fail to distinguish themselves from the civilian population. As one commentator explains, âthe only method to pid an insurgent who does not wear an identifiable uniform is to observe his conductâ.2 Most commonly this will be done by physically observing the person, or through âdetailed and time-consuming intelligence collectionâ.3 If the attack is not carried out on the basis of the opposing forcesâ current activity, it will usually require detailed information about the persons being attacked in order to enable a reasonable conclusion that they are lawful targets.
When targeting terrorist leadership, hostile status is almost certainly accompanied by a conduct-based justification. Indeed, the distinction between conduct and status becomes blurred. When managing the rank-and-file civilian-belligerents, the issue reverts back to conduct even if they are declared hostile, as part of a larger group, because they do not distinguish themselves and do not merit their own intelligence dossier.4
As a result, although members of an organised armed group (âmoagâ) is referred to as a separate category, it was suggested in Section 5.2.3 that the legal requirements should focus on conduct rather than membership. Persons taking a direct part in hostilities on a regular or continuous basis lose their protection from direct attack both during and in between individual acts of dph. Membership in an organised armed group is merely one, albeit important, way the legal requirements for continuous dph may be met.
Although the roe permitting attack on forces âdeclared hostileâ is generally considered to enable status-based targeting, during niacs, the text setting out the persons or groups who are the opposing forces may therefore consist of a combination status and conduct requirements. For instance, the roe may designate as lawful targets members of an organised armed group, the identification of whom is based on continuous dph, or the roe may authorise attack on forces designated hostile in circumstances where they are a threat to the nato mission or nato freedom of movement.5 It should be noted that such formulations are not limited to niacs. During iacs, similar wording may be used to limit attacks to situations set out in the mandate given in a unsc resolution. For instance, the roe may only authorise attack on combatants committing or about to commit attacks on the civilian population.
The second way U.S. forces, acting under nato roe, used direct participation authority (â¦) was by gathering intelligence over time that linked a particular individual to continuous acts of direct participation. In these situations, the nature of the acts committed and the amount of intelligence linking the individual to the acts enabled U.S. forces to determine whether the individual was directly participating in hostilities. If determined to be a direct participant, the person was placed on a list of verified targets. Attack was authorized against the person for such time as he remained on the list. To account for the fact that a person can indicate he is no longer a direct participant by not committing any acts of direct participation over a period of time, the personâs inclusion on the list was not permanent. United States forces were required to refresh his status with new intelligence evidencing the personâs continued direct participation within a given timeframe. Otherwise, the person was removed from the list.6
The greatest challenge with this form of targeting is most likely how to ensure that the âfor such timeâ requirement of dph is met. As explained in Chapter 5,7 if the person is a member of an organised armed group, this increases the likelihood of that person continuing to take a direct part in hostilities in the future. One way of reducing the risk of errors is therefore to have a different authority level for determining that someone is a lawful target, regardless of current activity, depending on whether the person is considered to be a member of an organised armed group or whether the affiliation or motivation for previous conduct is unclear. If it is difficult to determine whether a person is a member of an organised armed group, more information will be required in order to determine continued loss of civilian protection, and where possible, the assessment may be better made at a higher level of command where there is more experience with making such assessments.
In order to determine that someone is taking a direct part in hostilities on a continued or regular basis, whether as a member of an organised armed group or not, military forces must have sufficient information about past activities to warrant an expectation of continued participation in the future. As Janin explains, they may end up having their own âintelligence dossierâ.8 This may for instance include information about past activities, affiliations and contact with other members of an organised armed groups, and intercepted communications providing information about such affiliations or future conduct. The information may come from observing activity, human intelligence (humint), signals intelligence (sigint), or imagery intelligence (imint).9 However, this type of information is most likely to exist for more important targets. As a result, in operations where the opponent does not wear uniforms or an equivalent thereof, status-based targeting roe will be of less practical importance for nato forces involved in combat engagement, dealing with threats as they arise.
When persons may be attacked based on their status rather than being a threat at the time, the attacking forces must to a greater extent verify that the opposing forces are lawful targets and not hors de combat or otherwise protected for instance due to being medical personnel.10 This will also be more complicated to achieve when the opposing forces fail to respect the principle of distinction. âDistinctionâ not only requires those participating in the hostilities to distinguish themselves from civilians, but also make it possible for those attacking them to avoid harming, inter alia, civilians, injured persons or medical personnel. While State military forces usually will use distinctive emblems such as the red cross or âgenfer crossâ to enable the opposing forces to identify persons entitled to special protection, it is less likely that organised armed groups will have similar systems.11
12.2 âAttackâ and the Role of Targeting Procedures
Because the roe authorise âattackâ on individuals, the considerations presented in Section 11.4 will be equally applicable. There is no requirement of force escalation included in the term, which means that unless otherwise is stipulated, force may be used as a measure of first resort. While the nato hostile act and hostile intent roe are most relevant for combat engagement and dynamic targeting, the roe authorising attack on forces âdeclared hostileâ are likely to be used in both dynamic and deliberate targeting.
These targeting procedures are intended to provide âa methodology that aids the decision-making linking objectives with effects through the appropriate prosecution of prioritised targets and the assessment of any effect generatedâ.12 The targeting doctrines and the detailed procedural requirements therein are important tools for ensuring that force is used in accordance with loac. By ensuring that loac is complied with, the use of force will also respect the prohibition of arbitrary deprivation of life.13 Although a detailed examination of the targeting process is not within the scope of this book, an overview will be included in order to indicate how the loac requirements for the use of force are taken into account.14
The force execution phase consists of six steps: find, fix, track, target, engage, exploit, and assess (F2T2E2A).15 This means that before force is used under the nato attack roe, the nato forces must, inter alia, detect, locate and identify the targets (find and fix), and maintain the information (track) until the attack is carried out.16 This process is usually isr-intensive. Before the decision to attack can be made, it is important to ensure that the target is lawful, is not subject to operational limitations (i.e. is not on a no-strike list or restricted target list, see further below), and that attacking it is expected to contribute towards achieving the end state.17 The targeting step will also include an assessment of means and method of attack, the risk to oneâs own forces, risk of collateral damage (collateral damage estimation (cde), see below) and its reduction, and de-confliction of assets. When the decision is made to carry out the attack, the strike is ordered and the situation is continually monitored.18 Finally, it should be identified whether the engagement of the target presents further opportunities for exploitation, and an initial assessment is made of the effects achieved.19 Further assessment is made in the next phase of the targeting cycle, which results in a battle damage assessment (bda) and measures of performance and effectiveness.20
When the target has been selected and planned in advance, the find, fix and track aspect of the F2T2E2A will be used to âsimply confirm, verify, and validate previous decisions (in some cases requiring changes or cancellation)â.21 Depending on whether the target is attacked on the basis of a schedule or when located (âon-call targetsâ), deliberate targeting should make it feasible to take further precautions both to verify the lawfulness of the target and the presence or absence of protected persons and objects. It should also enable further precautions to be taken to reduce the risk of collateral damage, both because it may be possible to gather further information and because there may be more time to issue warnings or find other ways of achieving the same military advantage.
Deliberate targeting in particular also enables more detailed control of the use of force by the senior military command or higher headquarters through the process of retaining the target engagement authority and/or the release authority for the roe. This allows for stricter control over the requirements for being placed on a target list and how they are applied. For instance, the determination may be required to be made at more than one level of command or involve more people at the same level. By retaining the roe it is also possible for higher levels of command to influence the determination of the acceptable risk of collateral damage for a given attack and risk to mission or own forces. Doing so may, in other words, help reduce civilian casualty rates. However, as was discussed in Section 2.4.1, if the control of the use of force is too detailed and time-consuming, that is, if the roe become too restrictive, it may make it impossible to carry out operations.
The cdm encompasses the joint standards, methods, techniques, and processes for a commander to conduct cde and mitigate unintended or incidental damage or injury to civilian or noncombatant [sic] persons or property or the environment. It assists commanders in weighing risk against military necessity and in assessing proportionality within the framework of the military decision-making process. In short, the cdm is a means for a commander to adhere to the low.25
After establishing pid, cdm requires those involved in the targeting process26 to identify potential collateral objects, including no-strike entities, in the vicinity of the target.27 Collateral objects are persons, places or objects that may not be the object of an attack due to legal, political or operational limitations. It may, for instance, be persons not considered as roe defined opposing forces, and objects or places with general or special protection. Objects and places such as religious, cultural or historical buildings or structures; medical facilities (military and civilian); civilian refugee camps; works and installations containing dangerous forces such as dams, dykes and nuclear electrical generating stations; and public utilities and facilities such as water supply facilities and fire stations are likely to be placed on a no-strike list (nsl) to enhance their protection.28 Collateral objects located within the collateral hazard area (cha) become collateral concerns. The cha is determined by the collateral effects radius (cer) of the warhead, weapon, or weapon class planned to be used.29 The identification and geospatial location of collateral concerns must be maintained during the force execution phase of the attack.30
Where there is a risk of collateral damage from an attack, military forces are required to reduce that risk.31 This is done, inter alia, by reducing the collateral hazard area so that less collateral objects become collateral concerns (known as âweaponeeringâ). The collateral hazard area may for instance be reduced by using a different warhead, weapon or weapon system with a smaller collateral effects radius, or by using a delayed fuse, meaning that the warhead is fused âto detonate either in the target structure or below ground, which mitigates fragmentation effects by using the building or ground to absorb fragmentsâ.32 If the target is in an area with protected buildings, the risk to those buildings may be reduced by defining the direction of the attack so that they are less likely to be hit by missiles which accidentally over â or undershot. Finally, when the most appropriate way of carrying out the attack has been determined, the decision has to be made whether the expected collateral damage is lawful, and whether it is acceptable in light of operational and political considerations and restraints on the use of force. The higher the risk of collateral damage, the higher the target engagement authority for the attack is likely to be, thereby enabling stricter control of the use of force.33
Although the cdm is a very useful for assessing proportionality, it is not in itself sufficient. It does not, for instance, take into account foreseeable indirect effects of the attack.34 It is therefore important that those who plan and carry out the attacks ensure that all feasible precautions are taken to avoid collateral damage, beyond the considerations included in the cdm. Furthermore, cdm does not consider military advantage. Instead, it assists the proportionality calculation by estimating the collateral damage that must be taken into account. Those who plan or decide upon an attack must use the information collected through cdm to assess whether the expected collateral damage is excessive to the concrete and direct military advantage anticipated.35
This category of attack roe may also be applied to attacks on objects, however, this is beyond the focus of this book.
Eric D. Montalvo, âWhen Did Imminent Stop Meaning Immediate? Jus in bello Hostile Intent, Imminence and Self-Defense in Counterinsurgencyâ, Army Lawyer, August 2013, p. 24, p. 31. See also Randall Bagwell and Molly Kovite, âIt is Not Self-Defence: Direct Participation in Hostilities Authority at the Tactical Levelâ, 224(1) Military Law Review 1 (2016), p. 8.
Bagwell, Randall and Kovite, âIt is not self-defenceâ, ibid, p. 8.
Janin, Albert S., âEngaging Civilian-Belligerents Leads to Self-defense/Protocol I Marriageâ, Army Lawyer (July 2007), DA PAM 27-50-410, p. 103. The term âcivilian-belligerentâ is used by the author to describe persons participating in hostilities without being combatants. ibid, p. 83.
Prescott raises concerns that the authorisation to conduct conduct-based targeting accidentally âmorphs into a status-based understandingâ. Prescott, Jody M., âTactical Implementation of Rules of Engagement in a Multinational Force Realityâ, in Corn, Geoffrey S., Rachel E. VanLandingham and Shane R. Reeves (eds.), U.S. Military Operations â Law, Policy and Practice, Oxford University Press, Oxford, 2016, pp. 267â268. To illustrate the problem, he uses the example of someone digging an irrigation ditch being mistaken for an ied emplacer. However, this is arguably not so much a distinction between conduct and status-based targeting but more to do with situational awareness and having sufficient situational awareness and contextual understanding to distinguish threatening behaviour from innocent acts.
Bagwell and Kovite, âIt is Not Self-Defenceâ (n 2) pp. 35â36, referencing Bagwellâs personal experiences from Afghanistan (footnotes omitted).
See Section 5.2.3.4.
See also Prescott, âTactical Implementation of ROEâ (n 5) p. 252, emphasising that âmilitary operations are intelligence-drivenâ.
Norwegian Armed Forces, Manual i krigens folkerett (Trans: Manual of the Law of Armed Conflict), issued under the authority of the Chief of the Defence, [2013] [hereinafter referred to as Norwegian LOAC Manual], p. 55.
Hans Boddens Hosang, Rules of Engagement (PhD thesis, University of Amsterdam 2017, available at
ibid, p. 193, fn. 148.
nato, Allied Joint Publication 3.9: Allied joint doctrine for joint targeting (AJP-3.9), (nato Standardization Office (nso), Edition A Version 1, 31 July 2017),
The prohibition on arbitrary deprivation of life is examined in Section 4.2. For an analysis of the joint targeting process from a human rights perspective, see Ian David Park, The Right to Life in Armed Conflict (Oxford University Press, Oxford, 2018) pp. 125â134.
For a more detailed overview, see e.g. Gary P. Corn, James H. Dapper, and Winston Williams, âTargeting and the Law of Armed Conflictâ, Chapter 6 in Geoffrey S. Corn, Rachel E. VanLandingham and Shane R. Reeves (eds.), U.S. Military Operations â Law, Policy and Practice (Oxford University Press, Oxford, 2016) and James A. Burkart, âDeadly Advice: Judge Advocates and Joint Targetingâ, 2016 Army Lawyer 10.
nato, AJP-3.9 (n 12) pp. 2â4 to 2â6.
ibid, p. 2â5.
ibid.
ibid, pp. 2â5 and 2â6.
ibid, p. 2â6.
ibid, pp. 2â6 and 2â7.
U.S. cjcs, Joint Targeting (Joint Publication (JP) 3â60, 31 January 2013,
nato, AJP-3.9 (n 12) p. 1â5.
ibid, p. 1â9. This is only intended to be a brief overview over cdm. See also U. .S. cjcs, No-Strike and the Collateral Damage Estimation Methodology (cjcsi 3160.01A, 13 February 2009,
tst is defined as âtsts are those targets requiring an immediate response because they pose (or will soon pose) a danger to friendly forces or are highly lucrative, fleeting targets of opportunity whose successful engagement is of high priority to achieve campaign or operational objectivesâ. nato, AJP-3.9 (n 12) p. 1â2.
U.S. cjcs, No-Strike and the Collateral Damage Estimation Methodology (n 23) p. D-1. low is Law of War, referred to as loac in this book.
The cjcsi 3160.01A states that it is the âinherent responsibility of all commanders, observers, air battle managers, weapons directors, attack controllers, weapons systems operators, intelligence analysts, and targeting personnelâ. ibid, p. A-6.
ibid, p. C-1â2.
ibid, Enclosure B, and U.S. cjcs, JP 3â60 Joint Targeting (n 21) p. II-12.
U.S. cjcs, No-Strike and the Collateral Damage Estimation Methodology (n 23) p. GL-4.
ibid, p. C-3.
See Section 5.5.
U.S. cjcs, No-Strike and the Collateral Damage Estimation Methodology (n 23) p. D-A-2.
On the different cde levels, see ibid, Appendix A to Enclosure D. See also illustrations in U.S. Defense Intelligence Agency, Joint Targeting Cycle and Collateral Damage Estimation Methodology (CDM) (Presentation given by General Counsel 10 Nov 2009,
âThe effects of blast induced debris have not been characterized; of note, blast induced debris has been operationally observed to be a significant hazard to noncombatant personnel.â U.S. cjcs, No-Strike and the Collateral Damage Estimation Methodology (n 23) p. D-A-2. On the question of what effects must be taken into account when assessing proportionality, see Section 5.5.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of victims of International Armed Conflicts (Protocol I) [1977], printed in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts (Martinus Nijhoff Publisher, 1988) pp. 711ff, Article 57(2)(a)(iii).