Target selection at CFLCC: a lawyer's perspective.

Lawyers now play a greater and increasingly more visible role during military operations. As experts in international and operational law. Judge Advocates (JAs) help commanders and their staffs navigate the maze of laws, regulations, directives, orders and rules that impact combat operations. In addition to conducting legal reviews of operational plans and providing guidance on issues from the field, operational law attorneys play a supporting role to the commander during the targeting process.

Targeting decisions are critical events for a commander because incorrect decisions can have devastating strategic, operational and tactical consequences. As a member of the targeting board, the judge advocate helps the commander make the right decision by highlighting and addressing important issues, such as military necessity, proportionality and collateral damage.

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The targeting process is, perhaps, the most rule-driven area of combat operations because decisions must comport not only with the commander's intent, but also with the Law of War, the rules of engagement (ROE) and the collateral damage methodology. As members of the targeting review process, JAs are instrumental in advising commanders on these matters.

Like any other staff officer, the JA provides the commander an analysis and recommendation so he can make a well informed decision. Contrary to recent suggestions that lawyers are approving or disapproving certain combat operations, it is always the commander (not the lawyer) who makes the final decision to strike or not to strike a target.

This article addresses the legal issues and discusses the JA's responsibilities in the Deep Operations Coordination Cell (DOCC) at the Coalition Forces Land Component Command (CFLCC) during Operation Iraqi Freedom (OIF). We describe the general targeting rules while illustrating the JA's function in preparing, presenting and training the rules and cover the specific responsibilities of the JA. Finally, we propose recommendations for future conflicts based on lessons learned during OIF.

Judge, what are the rules? Central Command's (CENTCOM's) intent for OIF was to rapidly defeat the enemy to deny his use of weapons of mass destruction (WMD) while preserving critical infrastructure to facilitate the post-conflict rebuilding of Iraq. To accomplish this, CENTCOM limited the authority of subordinate commanders to strike infrastructure, economic objects and lines of communication (LOCs). These constraints were to ensure the CFLCC and Coalition Force Air Component Command (CFACC) plans were synchronized and complementary and to minimize damage.

As the operational-level headquarters responsible for all ground forces, CFLCC had an immediate interest in preserving bridges that would support both combat maneuver as well as the follow-on mission to deliver humanitarian supplies to the Iraqi people. Further, as the lead component for post-hostility operations, CFLCC had a long-term interest in minimizing collateral damage to the greatest extent possible. The degree to which the Iraqi people welcomed the Coalition Forces was viewed as directly proportional to the level of collateral damage inflicted during combat operations. Moreover, because the Coalition ultimately would be responsible for overseeing the reconstruction of Iraq, the plan was to carefully select targets that furthered the military mission while minimizing damage to civilians and their infrastructure.

The Law. The primary sources for the Law of War and the law specifically related to targeting are customary international law: the Hague Regulations, Geneva Conventions and the Additional Protocols to the Geneva Conventions. (1) The law of targeting requires belligerents to discriminate between military and civilian objects and only attack military objectives in order to spare noncombatants as much as possible from the effects of the war. (2) When engaging military objectives, force should not be employed in a manner that is calculated to cause unnecessary suffering. (3)

Furthermore, the principle of proportionality requires that the anticipated loss of civilian life and damage to civilian property, or collateral damage, incidental to attacks not be excessive in relation to the concrete and direct military advantage expected to be gained. (4) (For more information, see the article "The Law of War and Fire Support: A Primer for Fire-Supporters" by Captain Jon D. Holdaway, JA, in the May-June 2001 edition.)

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These laws create a permanent and continuing obligation for military commanders to determine that a proposed target is a valid military objective and that the military advantage gained by engaging the target outweighs the likely injury to civilians or damage to nonmilitary property. Consequently, target lists must be reviewed and updated regularly to ensure that a commander's decision is based on the latest and most accurate information available.

For the CFLCC, discrimination and proportionality were the most common Law of War issues during OIF. Iraqi forces frequently misused protected property for military purposes. It was not uncommon to discover that schools, mosques or hospitals were being used as Iraqi command posts, supply depots or hiding places for regime leaders. Consequently, the protections that these objects typically enjoy were lost when misused for military purposes.

Coalition Forces wanted to preserve these structures and, at times, accepted greater risk than the law requires by delaying strikes on these valid targets until absolutely necessary in self-defense. As members of the targeting boards, JAs helped commanders determine when to use force under these circumstances.

The ROE. The ROE are the commander's primary tool to regulate the use of force. ROE are defined as directives issued by a competent authority to delineate the circumstances and limitations under which its own naval, ground and air forces will initiate and (or) continue combat engagement with other forces encountered. (5) While the ROE for OIF remam classified, they can be described generally as robust for forces in contact with the enemy and more restrictive for pre-planned strikes.

Forces in contact can always engage the enemy under the inherent right of self-defense even if the authority to strike a certain target is withheld to a higher commander. The problem, as is often the case, lies in the interpretation of "in contact." What are the boundaries for self-defense fires, and how should "in contact" be defined? Naturally, if you are being fired upon, you can return fire. But what if the enemy is not firing at you but you are within range? More likely than not, you can engage the enemy.

However, what if the enemy is within range, not firing at you and located next to a protected site that is on a restricted target list and cannot be struck without higher command approval? This is a difficult question that must be answered by the commander on the ground, using his best judgment as to whether or not to seek approval from higher headquarters to conduct the strike or approve the strike under the inherent right of self-defense. If the ground commander orders the strike in self-defense, he must be able to articulate the reasons for his decision.

Doctrinally, the JA is tasked with being the principal assistant to the Director of Operations (J3/C3) or the Director of Plans (J5/C5) during the ROE development process. At the CFLCC, the JAs worked closely with the command group, especially the C3 and C5, as the ROE were being drafted. CENTCOM led the drafting process and solicited input from the component commands. CFLCC proposed various modifications to help the ground forces with input from V Corps and the I Marine Expeditionary Force (I MEF).

Once the ROE were approved and published, the JAs presented training briefings to all soldiers before hostilities started. In addition, the CFLCC Staff Judge Advocate (SJA) prepared an ROE card for all CFLCC forces. The CFLCC commanding general approved the card, and it was issued to every CFLCC soldier as a training aid.

While these tools are helpful, they do not replace real-world situational training. When it comes to applying the ROE, training is vital. (6)

Collateral Damage Methodology. The ROE for OIF specifically referred to the "collateral damage methodology." This methodology provides the commander a process to estimate and mitigate unintended, unnecessary damage to noncombatant persons, property or the environment in the conduct of combat operations.

On 8 March 2003, CENTCOM published the collateral damage methodology for OIF. Although partially classified, the methodology provided standardized procedures for determining potential collateral damage, options available to mitigate that damage and approval authorities for strikes based on anticipated collateral damage during the conduct of operations. See the figure for the unclassified introduction to the collateral damage methodology.

At CFLCC's request to CENTCOM, the collateral damage methodology did not apply to immediate target engagements under the inherent right of self-defense. This exception, like that in the ROE, permitted the ground commander to approve strikes as necessary in self-defense.

This exception did not, however, eliminate the requirements to positively identify all targets, use force proportional to the threat and minimize collateral damage to the extent feasible, given the situation at the time. If a target did not satisfy the self-defense exception or if approval was required by a higher commander, the ground commander was required to request approval from the commander or government official with strike authority.

Like the ROE self-defense exception, this was an area that caused some confusion and consternation among commanders. Primarily, the confusion stemmed from the imprecise nature of this concept and the lack of defined parameters. This is an area of the targeting process that needs to be refined for future conflicts.

Other Sources: Fires Appendix, Special Instructions (SPINS), Orders, Etc. Members of the targeting cell had to be familiar with the fires appendix to the operations order (OPORD), SPINS of the air tasking order (ATO) and fragmentary orders (FRAGOs). Each document contained additional information relevant to the targeting process.

For example, the CENTCOM Fires Appendix contained critical targeting information relating to targeting priorities, desired effects and the rules for time-sensitive targets (TSTs). (7) This information was highly relevant for calculating military necessity, proportionality and collateral damage.

The CFACC published SPINS daily. SPINS contain a section on ROE intended for pilots; however, the SPINS sometimes contain guidance that is applicable to ground forces, such as procedures for requesting close air support (CAS). Consequently, SPINS were another vital source of information for the targeting cell.

Judge, what do you do? US policy requires that commanders comply with the Law of War during all operations; the JA's role is to help the commander comply with the Law of War. (8) In the targeting process, the JA reviews targets for military necessity, proportionality and collateral damage. If a proposed target is not a valid military object, the JA recommends not striking the target.

At the CFLCC level, this was the exception rather than the rule as operational fires were almost exclusively focused on military units. Symbolic targets, such as a statue of Saddam Hussein, were deemed to be valid military objectives because they were symbols of the regime. (9)

Typically, the likelihood of excessive collateral damage is the issue most often identified by the JA and brought to the attention of the commander. The commander takes this information into account and decides whether or not to attack a target.

The CFLCC JA's major role during operations was to review target nominations. All pre-planned targets were reviewed for compliance with the Law of War, ROE and collateral damage methodology. In the process, each target was vetted for military necessity, proportionality, collateral damage and the presence of restricted/no-strike targets in close proximity to the fixed-wing aircraft's desired mean point of impact (DMPI) for precision-guided munitions. The CFLCC JA was responsible for conducting this analysis and raising any potential concerns to the DOCC.

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In addition, the CFLCC JA forwarded the analysis to his counterpart at CFACC. This was crucial because the perspective of the air component often differed from that of the ground component, especially with regards to the importance of a target to the ground forces. Furthermore, the analysis helped the air component select the appropriate ordnance and angle of attack.

CFLCC DOCC. At the CFLCC, the DOCC was responsible for targeting. The JA was a member, and readily available to help with any targeting issues. In addition to around-the-clock support to current operations, the JA participated in the daily effects board (DEB) and the candidate target list (CTL) review.

During the daily effects board meeting, the deputy commanding general for operations (DCG-O) reviewed the battle damage assessment (BDA) and approved targeting objectives and provided guidance for them. The JA, while a standing member of the DEB, was largely a passive observer. At times, the DCG-O or other staff members asked questions regarding the ROE or collateral damage methodology; however, a discussion of legal issues during the DEB was the exception rather than the rule.

The operational law attorney earned his pay during the CTL review. The CTL consisted of the target nominations from the CFLCC and its subordinate commands. V Corps and I MEF. This list contained CFLCC target nominations to CFACC for shaping the battlefield. The DOCC JA reviewed every proposed target on the CTL for legal sufficiency.

There was rarely a question as to the legitimacy of CFLCC's proposed targets as the vast majority were Iraqi military units. There were, however, often concerns about collateral damage, especially when seeking to destroy a target in an urban area. (See the article "Legal Issues with Fires in COE Populated Areas" by Lieutenant General Burwell B. Bell III, et al in the January-February 2003 edition.)

With sophisticated software and imagery, the JA reviewed the proposed targets and their potential for excessive collateral damage. Protected sites were of special concern: schools, mosques, bridges, hospitals and water treatment facilities. Knowing that medical supplies were scarce and most of the water in Iraq is polluted, Coalition Forces took great care to avoid any harm to these facilities.

After noting all the protected sites near a potential target, the JA advised the deputy DOCC chief about the collateral damage considerations. The deputy then decided whether or not to raise the issue to the DCG-O or the DOCC chief to remove the proposed target from that day's CTL or to forward the target to CFACC with a notation of the collateral damage concerns.

More often, the target nominations were forwarded to CFACC with an explanation of collateral damage considerations. The explanation included the proximity and function of the concerned facility. For example, a hospital 400 meters or a water treatment plant 200 meters away from the DMPI would be noted. The CFACC then used this information to help select the proper weapon with which to engage the target.

How do we simplify the process? One of the greatest challenges with targeting during OIF was navigating all the sources for the rules. As noted, the commander and his staff had to be familiar with many documents to make targeting decisions. At the CFLCC, the JA maintained a list of all rules in effect and distributed the rules to the command group, DOCC and the liaison officers from V Corps and I MEF. The JA regularly briefed the rules, provided guidance and relayed legal concerns to the JAs at CENTCOM.

In the future, serious thought should be devoted to simplifying and streamlining the process so all information is readily available, perhaps by publishing it in one source document or by using technology to post all of the rules on a single secure Internet protocol net (SIPRNET) web page.

Publish the Rules Sooner. Political and military leaders should strive to finalize and approve the ROE and collateral damage methodology in a more timely fashion. Although the planning process for OIF began in February 2002, the ROE were not published until late February 2003 and the collateral damage methodology was not published until 8 March 2003.

The publication so close to the start of hostilities on 19 March 2003 presented major challenges for the components and their subordinate units. It takes time for the information to be disseminated, and it takes even more time for it to be properly trained and understood. If time is available, then this information should be published sooner rather than later.

Intelligence is the Key. The validity of a target is more a question of intelligence than a question of law. This was especially true during OIF when Iraqi forces purposefully violated the Law of War by, among other things, fighting in civilian clothes and misusing protected property, such as schools and hospitals for command posts and ambulances as mobile command and control facilities.

Because of the superiority of the US armed forces, our enemies will continue to violate the Law of War to gain a short-term tactical advantage. As the force-on-force combat model decays, asymmetric threats will increase.

Intelligence will be the antidote to this duplicity. With positive identification, US forces can engage a cheating enemy with long-range fires instead of waiting until contact with the enemy triggers the right of self-defense.

Only the commander can order a strike. The JA's role is to ensure the order is the result of a well informed decision, taking into account the relevant Law of War considerations of necessity, humanity, discrimination and proportionality. In doing so, the JA facilitates the commander's success.

In the modern era of war, when the media immediately transmits both our targeting successes as well as our failures, the commander can only benefit from having more information.

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Endnotes:

1. The United States has not ratified the Geneva Protocols but considers many sections to be legally binding as customary international law.

2. Protocol 1. Article 52(2) defines military objectives as "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."

3. Hague Regulation, Article 23e.

4. Protocol I, Article 51.

5. Joint Pub 1-02 Dictionary of Military and Associated Terms.

6. See generally Major Mark S. Martin's "Rules of Engagement for Land Forces: A Matter of Training, not Lawyering," Military Law Review (Winter 1994), 143.

7. Time-sensitive targets (TSTs) are delined as targets of such high priority to friendly forces that the joint force commander (JFC) designates it as requiring immediate response because it poses (or soon will pose) a danger to friendly forces or it is a highly lucrative, fleeting target of opportunity. Joint Pub 3-60 Joint Doctrine for Targeting (17 January 2002) vii. The JA reviews TSTs for collateral damage concerns and compliance with the ROE.

8. DoDD 5100.77 DoD Law of War Program. 9 December 1998.

9. During OIF, striking statues was forbidden from the air because the potential for high collateral damage exceeded the military advantage anticipated by the attack. In this case, the anticipated advantage was to undermine the regime's control of the Iraqi people. The ground forces, less constrained by collateral damage concerns, were authorized to tear down the symbols of the deposed regime.

RELATED ARTICLE

In its most basic form, the collateral damage methodology is considered and applied by every warfighter at every level within the chain of command. The high value our nation and society places on the preservation of human life guides each of us to apply collateral damage mitigation to every target we engage. The methodology boils down to five simple questions that must be answered before attacking any target on the battlefield.

1. Can I positively identify the object or person I want to attack as a legitimate military target authorized for attack by the current rules of engagement (ROE)?

2. Is there a protected facility (i.e., no strike), civilian object or people, or significant environmental concern within the effects range of the weapon I would like to use to attack the target?

3. Can I avoid damage to that concern by attacking the target with a different weapon or with a different method or approach?

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4. If not, how many people do I think will be injured or killed by my attack?

5. Do I need to call my higher commander for permission to attack this target?

By Lieutenant Colonel James K. Carberry, USMC, and M. Scott Holcomb

Lieutenant Colonel James K. Carberry, USMC Judge Advocate (JA), deployed with the Coalition Force Land Component Command (CFLCC) for Operation Iraqi Freedom (OIF) and served as the Chief of International and Operational Law. Currently, he is a Litigation Attorney with the Office of the Judge Advocate General, US Navy, at the Navy Yard, Washington, DC. Previously, he deployed with the 13th Marine Expeditionary Unit to the Arabian Gulf (August 2001 to July 2002) where he participated in Operation Determined Response and Operation Enduring Freedom (OEF). He holds a Master of Law from The Judge Advocate General's School at Charlottesville, Virginia.

M. Scott Holcomb, until recently, was a JA Captain in the Army and deployed with the CFLCC for OIF, serving in the Targeting, Plans, and Current Operations Cells. Currently he is a lawyer with Sutherland, Asbill and Brennan in Atlanta, Georgia. He also deployed with the CFLCC for OEF in Afghanistan and was the legal advisor to the Operational Planning Group. Before being assigned to the CFLCC, Captain Holcomb served as the Division Artillery Trial Counselor in the 3d Infantry Division (Mechanized) at Fort Stewart, Georgia, and deployed to Bosnia for Stabilization Force 8 (SFOR 8). He holds a Juris Doctorate from West Virginia University.