The Law of War and File Support: A Primer for Fire Supporters.

Since the successes of World War II, the primary feature of the US military has been its ability to mass overwhelming firepower into an area with an amazing amount of accuracy. This has, for the most part, been accomplished by different fire support systems, from FA systems to attack aviation to close air support (GAS) and strategic bombing, sometimes using "smart" bombs. However, because these systems can cause such destruction, their use in combat has been controversial.

Before any organization engages targets, it is imperative for that organization to confirm the legality of its course of action (COA). While it seems a contradiction that the rule of law exists on the battlefield, it nevertheless can be a force multiplier, disarming an enemy's ability to shift attention from his own misconduct on the battlefield and home front as well as helping the combat commander avoid the negative "CNN Moment." The stakes have become even greater with the creation of the International Criminal Court with primary jurisdiction over alleged war crimes.

On top of this is the reality that the Army is entering a state of doctrinal and operational flux. As the Objective Force materializes and doctrinal shifts occur, targeting methodology and the nature of targets will change as well. The most important shift for fire support is the new emphasis on effects and the recognition that there are nontraditional target sets that need to be managed, such as civilians, the media and nongovernmental organizations. [1] Even with these changes, the fundamentals of the Law of War and the conduct of military operations under these principles will still apply.

The purpose of this article is to provide a broad understanding of the Law of War in the context of traditional fire support targeting and a basis for addressing future operations.

Legal Framework. Once a military force engages in operations outside its own borders, the laws that apply increase exponentially. For the US armed forces, these can include international treaties, federal statutes, Supreme Court decisions, Department of Defense (DoD) directives and Department of the Army (DA) regulations. In the joint environment, the regulations of sister services must be considered and the laws and regulations of coalition partners also can affect operations. Applicable laws involve not just military-related issues but can include environmental, civilian-contract employment (e.g., Brown & Root), procurement, fiscal and claims issues.

For fire support operations, however, the critical legal regimes are Customary International Law, The Hague Conventions, The Geneva Conventions of 1949 and the Geneva Convention Protocols I and II of 1977. Specific treaties and regulations also affect military operations, including conventions on cultural property, biological weapons and conventional weapons. Further, DoD and DA have enacted directives, regulations and field manuals that implement treaties and conventions, explain existing rules or establish further rules for military conduct. These instruments form the "Law of War." [2]

Principles of the Law of War. The Law of War can be narrowed down to four principles: military necessity, humanity (or unnecessary suffering), proportionality and discrimination/distinction. These principles become a formula or filter by which military operations can be analyzed for compliance with the Law of War.

Military Necessity. This requires military operations be limited to attacking those objectives that make an effective contribution to military action or offer a definite military advantage. As long as the target has something to do with a strategic, operational or tactical objective, it meets this criteria. For example, during the Kosovo campaign, NATO forces attacked a Serbian television station in Belgrade with the justification that the station was broadcasting as an official organ of the Milosevic government to further Serbia military aims. [3]

Proportionality. This requires a balance between potential military advantage and the loss of life and damage. Whether or not an attack is proportional is based on all the information available to a commander at the time. The requirement is for the commander to make reasonable decisions and reasonably weigh collateral damage against the military advantage.

Humanity. This principle looks to the types of weapons involved in warfare and the manner in which they are employed on specific targets. FM 27-10 The Law of Land Warfare, Paragraph 34b, states that injury-causing weapons are not prohibited, but the Law of War bans those weapons that inflame wounds or create an injury not related to a military objective. An example is that lasers are allowed on the battlefield for limited purposes but cannot be used to intentionall y blind enemy troops.

A good example is where a bridge is identified as a valid military objective, but sources also identify the bridge as a displaced civilian movement route. At any time, there may be 30 to 40 displaced civilians on the bridge. The question for the targeting team and the commander is whether or not the value of the target outweighs the collateral damage that might be caused by the deaths or injuries of the fleeing civilians.

Discrimination and Distinction. This principle requires weapon systems and targeteers distinguish between combatants and non-combatants. For the infantry soldier, this is easily accomplished through rules of engagement (ROE) training. However, for indirect-fire systems, this requires more attention to the target's nature. For instance, most engagement rules limit fire support in built-up areas and require direct, human observation of the target, preventing indiscriminate attacks against improper targets.

Methodology for Applying the Law of War. Military leaders require a methodology for analyzing military operations to determine whether or not they meet Law of War standards. This methodology looks at four areas of military operations: targets, weapons, ordnance and tactics.

Targets. Targets fall into three categories: persons, places and property. Applying the principle of military necessity, these categories can be targeted if they make an "effective contribution to military action," [4] actual or potential.

"Persons" are either combatants or non-combatants (civilians, injured combatants or prisoners of war). Combatants, obviously, are those engaging in military actions. While most are "lawful" combatants, there are individuals on the battlefield who can be considered "unlawful" combatants. Uniformed members of a nation's armed force are lawful combatants, but the Law of War also recognizes members of militias, volunteer forces or organized resistance movements under limited conditions. [5] If a combatant does not fall into this definition, they are "unlawful" combatants, treated as mere criminals under host nation law and afforded only the most basic due process protections of the Law of War.

"Places" are defended or undefended. Obviously, if an enemy chooses to defend a particular place, then that place becomes a lawful target. For example, if the enemy positions an artillery battery in the courtyard of a basilica, the religious site becomes a lawful target.

On the other hand, an undefended place may not be targeted. The test: all combatants and mobile military equipment are removed, no hostile use made of fixed military installations or establishments, no acts of hostilities are committed by the authorities or by the population and no activities in support of military operations are undertaken. [6]

Specific places and "property" are protected under the Law of War. They include hospitals and safety zones established for the protection of sick and wounded and civilians (places that can lose their protection, however, if used in a manner other than for medical purposes); cultural sites identified as "historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples"; [7] "works and installations containing dangerous forces," [8] such as dams, dikes and nuclear electrical generating stations; and "objects indispensable to the survival of the civilian population," [9] including agricultural areas, drinking water installations or irrigation works, if targeted for the purpose of denying sustenance to the civilian population.

A good tool for tracking protected places is the advanced FA tactical data system (AFATDS). Using civil affairs and military intelligence assets as resources, it can establish no-fire areas (NEAs) and restricted fire areas (RFAs). AFATDS then can help identify protected areas during the planning process.

Weapons can be illegal by their own design or by their improper use. This includes exploding small-arms projectiles, hollow-point ammunitions or the use of a properly designed weapon to cause unnecessary suffering. For instance, while there is no Law of War prohibiting guided munitions, there could be a Law of War violation if a commander selects non-guided munitions over guided munitions (assuming they are in the inventory and available) for use in a civilian area with the intent to cause unnecessary suffering.

Weapons and Ordnance. The Law of War does not necessarily limit prosecuting combat with weapons and ordnance as long as the enemy and their places are properly targeted using weapons and ordnance in their proper manner. [10] Under direction of DoD, all weapon systems and ordnance are reviewed by The Judge Advocate General for legality under the Law of War. [11]

The international community, including most coalition partners, has moved to ban all APLs. In 1997, the "Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction" was drafted and signed. As of April 1999, 133 nations had signed the convention and 67 had ratified it, bringing it into force as international law. Because the international community would not give the US an exception for the use of APLs in Korea and allow the usage of self-destructive mines, the US withdrew from the convention.

Land mines, because they are deliverable by fire support assets, are of specific concern, especially in deep operations. Before 1997, the Law of War restricted the use of anti-personnel land mines (APL) in areas of civilian concentration. [12] Remotely delivered mines (such as artillery-delivered) are permissible only if their location can be accurately recorded or if they are self-destructing. Non-remotely delivered mines are allowed in civilian areas only if there is a military objective under the control of an adverse party or measures are in place to protect civilians, such as warning signs.

The bottom line for APLs is that all mines in a combat unit's inventory must be self-destructive, and those mines must be used carefully so as to avoid collateral damage to civilians.

Incendiaries, which include napalm, flame throwers, tracer rounds and white phosphorus, are not illegal, per se, but must be monitored for their use to prevent "unnecessary suffering." [13] For instance, white phosphorus is not banned as a method for marking targets or for igniting flammable targets, but it should not be used as an anti-personnel munition unless other types of conventional antipersonnel ordnance are unavailable.

Air-delivered incendiaries have been banned in areas of civilian concentration under a protocol to the 1980 Conventional, Weapons Treaty, [14] but the US has not ratified this protocol. The US position is that air-delivered incendiaries may be proper against targets in areas of civilian concentration if their usage would reduce civilian deaths, e.g., to destroy a chemical weapons factory in which the incendiary device bums the chemicals rather than disperses them.

Even though chemical weapons have been banned as a matter of international law for decades, [15] they are still in the military stockpiles of a few countries and a factor in certain combat scenarios. The prohibition applies to the use of all lethal, incapacitating and biological agents. The 1993 Chemical Weapons Convention [16] bans the development, production, stockpile, transfer or engagement of chemical weapons and requires the destruction of chemical weapons currently stockpiled.

Biological weapons are banned under their own conventions, as well. [17] Specific treaties do not cover herbicides, such as Agent Orange, but the US has renounced all first use, except for domestic purposes and establishing defensive perimeters. [18] Although no longer delivered by artillery, nuclear weapons are not prohibited by international law. [19]

Tactics. The final area of military operations affected by the Law of War is tactics. The rules for prosecuting war protect all parties. Once the Law of War has been breached, then no party is immune and protection cannot he guaranteed. Fire supporters should be concerned with reprisals, treachery and perfidy.

According to FM 27-10, reprisals are retaliation by a party using a method that violates the Law of War in response to an act by another party that violates the Law of War. [20] For instance, if Blueland Forces killed Redland soldiers held as POWs, Redland then could respond in an act of reprisal that may or may not violate the Law of War. However, the Geneva Protocols have created enough rules limiting reprisals that they are rarely, if ever, allowed. [21] Finally, under US policy, if reprisals are allowed under the Law of War, only the National Command Authority can authorize the reprisals.

Treachery and perfidy are tactics that involve harming an enemy through his adherence to the Law of War. [22] Examples are feigning surrender or feigning death or injury and then using that as a surprise to attack an enemy force. As required by the Law of War, enemies ensure all parties conduct operations in accordance with the Law of War on the good faith that the enemy will not violate the Law of War to gain a military advantage. Once the Law of War is used against an enemy as a tactic, then neither side can be assured that it is protected under the law.

Ruses, on the other hand, are proper. What distinguishes a ruse from perfidy is that a ruse, while deceptive in regards to gaining an advantage, does not rely on an enemy's adherence to the Law of War to establish the deception. Therefore, radar jamming, transmitting false information to deceive an enemy, establishing false units, using an enemy s signs and passwords and psychological warfare are not Law of War violations. [23]

The Targeting Process and the Law of War. The targeting methodology of detect, decide, deliver and assess ([D.sup.3]A) ensures attack of the right target with the right asset at the right time. This includes ensuring the "right target" is a legal target, the "right asset" is a proper weapon or ordnance and the Law of War is followed through the entire process. During the targeting process, the critical Law of War issues arise during the decide phase, The decide phase is where intelligence collection focuses on targets identified during the detect phase and attack planning takes place. [24] The most important functions, from a Law of War perspective, are establishing the high-payoff target list (HPTL), developing the attack guidance matrix (AGM) and determining target selection standards (TSS).

Fire supporters should be asking the following questions. What is the nature of the target? Does it fall into a prohibited person/place/property category? What RFAs or NFAs are in place? What is the potential for collateral damage? Where, if any, are enemy weapons of mass destruction (WMD) sites? Have I cross-checked with the ROE?

The best resource for developing RFAs and NFAs is the civil affairs team that has the best knowledge of where potentially prohibited targets are. The team plans and develops theater RFAs and NFAs and tracks the status of displaced civilians. For example, a COA to deploy a Gator minefield on a particular enemy route may be affected by displaced civilians' flow and potentially cause high collateral damage.

Law of War problems can arise from detailed issues, such as munition effects size and dispersion patterns. When using indirect fire in built-up areas, assuming the ROE allow it, collateral damage can be minimized through high-angle fires and the limited use of dual-purpose improved conventional munitions (DPICM).

Legal issues during the detect, deliver and assess phases decrease if the Law of War is considered during the decide phase. These other phases do include Law of War issues, from awareness by intelligence sensors and analysts--including the FA intelligence officer (FAIO) sitting in the analysis and control element (ACE)--to using the assess phase to determine Law of War compliance during the fight. The key is fire supporters must anticipate and plan for these issues. Otherwise, as the smoke of battle clears, the potential for the combat commander to be assaulted by the ubiquitous television camera and have a "CNN Moment" increases exponentially.

Conclusion. Of course, any time Law of War questions arise--from planning to execution to after-action reviews (AARs)--the best resource is the commander's legal advisor. [25] Recent changes in doctrine place legal advisors and experts in the Law of War farther forward on the battlefield at the brigade and division tactical command posts.

While it may seem inconsistent, the Law of War provides an important boundary for the conduct of all military operations. The Law of War is not merely a "nice" set of rules but is the foundation for the way the US conducts its operations.

Fire support targeting sits at the crossroads of the Law of War and the conduct of military operations.

Captain Jon D. Holdaway, Judge Advocate (JA), is a Defense Counsel for the US Army Trial Defense Service, Fort Sill Field Office, Fort Sill, Oklahoma. In his past assignment at Fort Sill, he served as a Legal Assistance Attorney and Administrative/Operational Law Attorney for the IIId Armored Corps Deep Operations and Coordination Cell (DOCC) and was the operational legal advisor to the IIId Armored Corps Artillery staff. Before joining the Judge Advocate General Corps, Captain Holdaway was a Korean Linguist with the 141st Military Intelligence Battalion, providing support for interrogations and counterintelligence operations in Korea, as part of the Utah Army National Guard. He holds a Juris Doctorate from Brigham Young University in Utah.

Endnotes:

(1.) Colonel Jerry C. Hill and Major Carl R. Trout, "Effects-Based Fires--The Future of Fire Support Coordination and Execution," FA Journal (November-December 2000). 6.

(2.) The best resource for understanding Army commitments under the Hague and Geneva Conventions is FM 27-10 The Law of Land Warfare, July 1966. FM 27-10 is being updated as a joint Law of War manual. The other primary document for the Law of War is "DA Pamphlet 27-1-1, Protocols to the Geneva Conventions of 12 August 1949," September 1979. The US has not ratified the Geneva Protocols but recognizes many of its provisions.

(3.) Dana Priest, More US Troops Heed to Albania as NATO Adds Targets: Electric Power Transformers Attacked," Washington Post (24 April 1999), A17.

(4.) Geneva Protocol 1, supra Note 2 Article 52(2). See also, FM 27-10. supra Note 2, Paragraph 40.

(5.) FM 27-10. supra Note 2, Paragraph 61. Under Geneva Protocol, supra Note 2, Article 43, medical personnel and chaplains are not considered combatants.

(6.) FM 27-10, Change 1, supra Note 12, Paragraph 39b. See also, Geneva Protocol I, supra Note 2, Article 59, for further rules for occupying undefended areas.

(7.) Geneva Protocol I, supra Note 2, Article 53(a).

(8.) Ibid., Article 56.

(9.) Geneva Protocol I, supra Note 2, Article 54.

(10.) FM 27-10, supra Note 2, Paragraph 33.

(11.) Department of Defense (DOD) Directive 5000.2, 'Operation of the Defense Acquisition System," Paragraph 4.7.3.1.4. (23 October 2000).

(12.) "Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects" (CWT), October 10. 1980, Protocol II, Articles 4 and 5. Protocol II has not yet been ratified by the US Congress, but the President directed US forces would no longer use non-self-destructing anti-personnel land mines (APL) except on the Korean Peninsula end for training.

(13.) FM 27-10. supra Note 2, Paragraph 36.

(14.) 1980 CWT, supra Note 17, Protocol Ill.

(15.) "Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare." 17 June 1925. See discussion in FM 27-10, Change 1. supra Note 4, Paragraph 38.

(16.) "Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons end on their Destruction,' 13 January 1993.

(17.) "Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons end on Their Destruction," 10 April 1972.

(18.) Executive Order 11850, 8 April 1975.

(19.) FM 27-10, supra Note 2. Paragraph 35.

(20.) Ibid., at Paragraph 497.

(21.) Geneva Protocol I. supra Hole 2. Articles 51-56.

(22.) FM 27-10, supra Note 2, Paragraph 50.

(23.) Ibid., at Paragraph 51.

(24.) Ibid., FM 60-20-10 Tactics, Techniques and Procedures for the Targeting Process, 8 May 1996, 2-1.

(25.) FM 27-100 Legal Support to Operations, 30 September 1999.