Featured, Features — August 8, 2017 at 11:44 am

Lancelot in the Sky: Protecting Wounded Combatants from Incidental Harm

Major R. Scott Adams[1]

Then Sir Lancelot doubled his strokes again, and smote Sir Gawain on his old wound . . . and he fell to the earth. Anon he awoke and still he waved and thrust at Sir Lancelot, even as he lay on earth, daring him to perform this battle unto the utmost. “I will do no more than I have done,” said Sir Lancelot. “I may not stand to smite a wounded man. God defend me from such a shame.”[2]

I. Introduction

An Air Force B-1 Bomber loiters above Haditha, Iraq after identifying a building known to be an Islamic State (ISIL)[3] weapons cache. Intelligence sources positively identify several individuals near the building as ISIL fighters, and confirm no civilians are near the collateral damage hazard area. The building is properly vetted through the collateral damage estimation methodology and authorized by the target engagement authority. The B-1 fires at the building, intending to destroy the structure and weapons as well as kill the surrounding fighters. After the strike, a battle damage assessment reveals the building is approximately thirty percent destroyed and a large portion of weapons remain undamaged. Several ISIL fighters are confirmed dead, but one is identified as alive but lying on the ground and unable to move. Before striking again the target engagement authority determines the ISIL fighter is wounded, and is, therefore, a noncombatant within the collateral damage hazard area. Thus, the target cannot be struck without approval from the Secretary of Defense. Knowing authorization cannot be obtained quickly, the B-1 abandons the target and returns to base. The ISIL fighter suffers for several hours before dying, and other ISIL fighters retrieve the weapons and abandon the building.

This hypothetical illustrates a restrictive U.S. targeting policy that is not required by the Law of Armed Conflict (LOAC). Specifically, the United States has included wounded combatants in its definition of noncombatants. [4] Additionally, U.S. policy provides wounded combatants substantial protection, not just from direct attack, but also from incidental harm. The principal argument of this Article is that wounded combatants are not noncombatants and that the law does not protect them from incidental harm.

Throughout today’s armed conflicts, the United States has maintained a rigid targeting methodology that applies conventional legal principles to an unconventional enemy.[5] Although U.S. targeting policy has received significant attention, little literature exists on the systematic application of that policy through targeting methodology, [6] more precisely known as the collateral damage estimation methodology (CDM).[7] Among other procedural hurdles, this targeting methodology creates what is known as the noncombatant and civilian casualty cutoff value (NCV).[8] The NCV sets the maximum number of possible noncombatant and civilian casualties for each target execution, within a decision maker’s authority.[9] If a particular strike is expected to exceed the NCV, the approval authority is elevated to the highest levels of Government, far beyond commanders with immediate tactical control.[10] This can lead to situations where a decision could take days when operators have only minutes to act.[11] The NCV varies between different rules of engagement in specific conflicts,[12] but is usually very low in areas where civilian support is a strategic priority.[13] In the fight against ISIL the NCV can be as low as zero.[14] In practice, this means that if one noncombatant casualty is estimated, the strike must be approved by the President or Secretary of Defense.[15] The effect of the low NCV, combined with the classification of wounded combatants as noncombatants, is a significant obstacle to targeting operations.

Persons hors de combat, those wounded and out of the fight, are not noncombatants.[16] Rather, the hors de combat concept is a protection standard for enemy combatants.[17] This standard prohibits making wounded combatants the object of attack.[18] However, the law does not protect wounded combatants from incidental harm, and consequently, they should be excluded from the NCV.

This Article will show that LOAC does not transform combatants into noncombatants under the hors de combat concept. It will then show that current U.S. policy is overly restrictive by erroneously granting noncombatant status to persons hors de combat. It will then conclude by recommending a change to U.S. policy by removing some of the rigid protection now given to wounded combatants.

II. The Hors de Combat Concept

The U.S. fight against ISIL is a non-international armed conflict.[19] This limits jus in bello constraints to Common Article 3 of the Geneva Convention and principles of customary international law.[20] Common Article 3 does not define hors de combat, but states that persons hors de combat must be treated humanely, and granted protection from violence to life and person.[21] The Second Protocol Additional to the Geneva Conventions similarly requires combatants to respect and protect the wounded, but does not define hors de combat.[22] The First Protocol Additional to the Geneva Conventions (AP-I) defines enemy persons hors de combat as (1) persons in the power of an adverse party, (2) persons clearly expressing an intention to surrender; or (3) persons rendered unconscious or otherwise incapable of defense.[23] AP-I also expressly states persons hors de combat may not be made the object of attack,[24] meaning that an attack cannot be purposefully directed against them.[25]

Although AP-I does not apply to non-international armed conflicts, it nonetheless informs targeting decisions in today’s non-international armed conflicts. This is particularly true because the Department of Defense Law of War Manual (DoD Manual) accepts and expands the AP-I definition without regard to conflict classification.[26] Most important to this Article is the third category of persons hors de combat, the unconscious or otherwise incapacitated by wounds.

A. Historical Protection for the Wounded

The practice of protecting wounded enemy combatants has developed over time from the principles of honor and humanity. However, this development came slowly and the ancient world offered little protection to wounded combatants, who were traditionally left to die on the battlefield, or finished off by the enemy.[27] Some of the earliest versions of protection for the wounded include ancient Sanskrit poems, dating back to 200 B.C. These poems tell soldiers not to “strike one who has been grievously wounded.”[28] In the Middle Ages, the concept of reciprocity between enemies became increasingly important,[29] and killing combatants who could not resist came to be regarded as unnecessary violence.[30] In William Shakespeare’s Troilus and Cressida, the warrior Hector demonstrates honor and mercy by protecting and housing wounded enemies.[31] Similarly, Sir Thomas Malory’s character Sir Lancelot, exclaims, “I will never smite a felled knight.”[32]

Wounded combatants also received express protection in a series of treaties and regulations beginning in the mid-nineteenth century. Article 71 of the Lieber Code made it a crime for soldiers in the Civil War to “intentionally inflict additional wounds on any enemy already wholly disabled.”[33] The First Geneva Convention from 1864 states in Article 5 that the presence of any wounded combatant in a house shall ensure its protection.[34] Article 6 further states, “wounded or sick combatants . . . shall be collected and cared for.”[35]

These and many other examples show that protecting wounded combatants is an established principle of customary international law. However, as with many customary principles, it is not difficult to find counter-examples. At Waterloo, British troops slashed French bodies lying on the ground.[36] In World War I and World War II, both sides routinely stabbed the wounded and dead on the ground.[37] This common practice continued in other conflicts after the Geneva Conventions were signed.[38] More recently, a U.S. Marine created international outrage after firing on a wounded insurgent in Fallujah, Iraq. [39] Despite the outrage, an internal investigation determined the shooting was justified, primarily due to the risk that the wounded insurgent was feigning injury.[40] These and other counter-examples do not dispute the widely accepted custom of protecting the wounded,[41] but rather show that a simplistic view of blanket protection is not easily applied. The real world is often more complex than Lancelot’s mercy for the felled knight. Thus, although sometimes difficult to apply, customary international law ordinarily protects wounded combatants from direct attack.

B. Hors De Combat Status

While the historical record shows that wounded combatants are entitled to protection, it does not show that wounded combatants have been categorized as noncombatants or civilians. The Lieber Code, for example, does not use the term hors de combat, or civilian, but refers to noncombatants as “unarmed citizens of the hostile government.”[42] This definition implicitly excludes wounded enemies, who instead fall into the “general” category of combatant, but receive protection under Article 71.[43] Other express treaties similarly distinguish between wounded combatants and civilians or noncombatants. Indeed, only one possible exception can be found to the general rule that treaties do not blur the categorical line between wounded combatants and civilians or noncombatants. The 1864 Geneva Convention uses the term “neutralized” to describe combatants once they became unable to fight due to wounds or sickness.[44] However, this language was dropped in subsequent conventions because, according to commentator Jean Pictet, the term neutral “did not correspond to reality.”[45] Neutrality referred only to persons who did not take part in the conflict, such as civilians-not protected combatants.[46] This distinction between wounded combatants and civilians is further clarified by Pictet in his description of protection for wounded civilians under the Fourth Geneva Convention. Pictet states the “rules are even more essential when the wounded or sick person is a civilian, i.e., a person who, by definition, takes no part in hostilities.”[47]

Today AP-I does not expressly define “noncombatant” but states in Article 43 that all members of the armed forces are combatants, other than medical personnel and chaplains.[48] AP-I defines “civilian” in Article 50, but only by saying what they are not. Specifically, civilians are not combatants under Article 4 of the third Geneva Convention, and they are not medical or religious personnel under Article 43 of AP-I.[49] The AP-I categories can, therefore, be summarized as follows: (1) Combatants, including all members of the armed forces other than noncombatants; (2) Noncombatants, which is limited to medical personnel and chaplains; and (3) Civilians, which includes all persons not in the first two categories. Persons hors de combat cannot reasonably be understood to fall under the description of noncombatants unless they are medical personnel or chaplains. Similarly, persons hors de combat are not civilians, who have no need for an additional layer of protection. Instead, persons hors de combat can only reasonably be understood to be combatants.

1. International Committee of the Red Cross (ICRC) View

Notwithstanding the absence of supporting treaty language, the ICRC, and some scholars,[50] argue that once an enemy is rendered hors de combat, he is “no longer a combatant.”[51] Yet the ICRC acknowledges in its commentary to Article 43 that other than the two express exceptions of medical and religious personnel, “all members of the armed forces are combatants.”[52] The ICRC position is that persons hors de combat are not noncombatants, as defined in Article 43, but they receive the same protection. The ICRC focuses on the effect of protection, rather than status, by stating “harmless civilians and soldiers hors de combat are a priori on the same footing.”[53] This footing notably does not constitute absolute protection.[54] According to the ICRC, AP-I offers less protection to persons hors de combat than the Hague Regulations, which simply prohibited the killing or wounding of persons hors de combat. [55] The ICRC explains that the prohibition against making persons hors de combat the “object of attack,” was adopted “to make clear that what was forbidden was the deliberate attack,” not “incidental consequences of attacks not aimed at them per se.”[56]

This differs from Department of Defense (DoD) literature, which has taken the ICRC position one step further by simply defining wounded combatants with the specific term of art “noncombatant.”[57] Unlike the ICRC, this position does not implicitly create a new status or focus on special protection. Instead, the DoD position simplistically places persons hors de combat into the same category as medical personnel or chaplains.

Yet many scholars consider even the ICRC’s position to be potentially “misleading,” particularly when it claims an enemy is “no longer a combatant” once he becomes hors de combat.[58] In trying to equate the protection of persons hors de combat and noncombatants, the ICRC expands the hors de combat concept beyond what the law expresses.[59] Persons hors de combat and noncombatants are both protected, but at least one important distinction remains. Specifically, treaties which prohibit excessive incidental harm to civilians and noncombatants do not protect combatants, even if they are sick or wounded.[60]

2. International Criminal Tribunal for the former Yugoslavia (ICTY) View

The important distinction between different categories of protected persons was upheld by the ICTY in 2008 in Prosecutor v. Milan Martić.[61] In that case, the ICTY held that persons hors de combat are not civilians or noncombatants under the ICTY Statute.[62]

Milan Martić was prosecuted for participating in a criminal enterprise to create an ethnically Serb territory through the displacement of the non-Serb population.[63] In 1995, Martić ordered the targeting of civilians in the Croatian capital of Zagreb.[64] The prosecutor sought to convict Martić of crimes against humanity, consistent with Article 5 of the ICTY statute, which prohibited specific crimes against “any civilian population.”[65] Among the civilians at Zagreb were persons hors de combat, and the prosecutor sought their inclusion as victims in the Article 5 prosecution.[66] The defense objected to this inclusion and argued that “persons hors de combat are members of the armed forces, cannot claim civilian status under international humanitarian law and, while they may constitute protected persons [they] cannot thereby be equated with civilians.”[67] The Trial Chamber looked to Article 50 of AP-I to define civilian; a definition that excludes wounded combatants.[68]

The prosecutor sought to avoid this narrow definition, and instead use a generic “noncombatant” to describe all persons that could not be targeted under Common Article 3.[69] This is the same approach taken by DoD literature.[70] The Trials Chamber rejected the prosecutor’s argument, finding this approach “would impermissibly blur the principle of distinction between civilians and combatants.”[71] The Trials Chamber relied, in part, on an earlier ICTY case, Prosecutor v. Blaskic, where the court held that “members of the armed forces . . . cannot claim civilian status,” even if unarmed and not participating in hostilities.[72] After extensive discussion, the Martić ICTY Appeals Chamber upheld the Trial Chamber ruling and rejected the prosecutor’s argument for noncombatant status of persons hors de combat.[73]

In another ICTY case, Prosecutor v. Galić, the Appeals Chamber came to the same conclusion and summarized the law by stating “persons hors de combat are certainly protected . . . however, they would still be members of the armed forces . . . as such, they are not civilians.”[74]

3. Summary of Hors De Combat Status

The ICTY position is the more generally accepted and legally correct understanding of the status of persons hors de combat.[75] The ICRC’s claim that wounded combatants are no longer combatants is not justified by historical custom, express treaty, or the principles of LOAC. The hors de combat concept, rather than converting a combatant to a civilian or noncombatant, is a situation-specific standard where an enemy combatant is protected by the law from direct attack.[76] Furthermore, persons hors de combat are not on the same footing as civilians, making the distinction significant. The principles of LOAC, as explained below, demonstrate this point, particularly the principle of proportionality. These principles show that persons hors de combat are protected from direct attack, but not from incidental harm.

C. The Principles of the Law of Armed Conflict and Persons Hors de Combat

1. Humanity and Necessity

The hors de combat concept falls primarily within the LOAC principle of humanity.[77] According to the DoD Manual, humanity forbids the infliction of suffering or injury that is unnecessary to accomplish a legitimate military purpose.[78] Military necessity may be considered the logical inverse of the principle of humanity.[79] Military necessity justifies necessary actions taken toward a military goal, and humanity prohibits actions that cause suffering and are unnecessary for that goal.[80] The hors de combat concept is an application of the principle of humanity by holding that once an enemy combatant is wounded to the point of incapacitation, killing him would not further any military purpose. That concept is better suited to conventional warfare, but is applied to today’s asymmetrical fight.[81]

2. Proportionality

It is proportionality that balances the inverse principles of humanity and necessity, specifically by weighing incidental harm against military advantage.[82] As the ICRC has explained, “an attack is prohibited when it may be expected to cause incidental harm to civilians and civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated.”[83] This statement is a reflection of Article 51 of AP-I, which does not forbid incidental harm, but requires it to not be excessive in relation to the advantage expected.[84] AP-I and the ICRC both use the specific term “civilian,” excluding combatants from the protection against excessive incidental harm, even if protected from direct attack.

Up until December, 2016, the DoD Manual did not comment directly on whether persons hors de combat must be considered in a proportionality analysis. However, the 2016 updates to the DoD Manual expressly state that proportionality does not, generally, require consideration of military personnel, even if they are protected from direct attack.[85] Earlier versions of the DoD Manual explained that the duty to protect persons hors de combat comes from the general obligation of customary international law to “respect and protect” the sick and wounded.[86] However, the DoD Manual also stated before 2016 that despite the “respect and protect” obligation, military personnel “are deemed to have accepted the risk of harm through deliberate proximity to military objectives.” [87] For these combatants, incidental harm is not prohibited by proportionality, “even if such persons become wounded.”[88]

Some commentators argued this position was a “time-honored norm of international law,”[89] but others criticized it as overly aggressive.[90] The 2016 updates clarified DoD’s position by stating the presence of wounded combatants does not exempt nearby targets, but operators must take feasible precautions to reduce the risk of harm to the wounded.[91]

Applying a proportionality test to protect wounded combatants may unintentionally create protection for nearby legitimate targets. Consequently, the updated DoD Manual seeks to avoid this potential obstacle by excluding persons hors de combat from a proportionality analysis, but still meet the obligation to “respect and protect” the wounded through feasible precautions in attack.[92]

3. Precautions in Attack

The ICRC describes precautions in attack as an independent principle of LOAC that creates a duty to take “constant care” to spare civilians and civilian objects.[93] Again the ICRC uses the specific term “civilian.”[94] The DoD Manual does not view precautions as a stand-alone principle; yet DoD expands the duty described by the ICRC beyond civilians to “other protected persons and objects protected from being made the object of attack,” and thereby includes persons hors de combat.[95]

The U.S. policy to protect persons hors de combat under precautions, but exclude them from a proportionality analysis, is significant because of the way the U.S. military applies these policies. While proportionality is a subjective decision, precautions in attack are applied through a rigid process known as the Collateral Damage Estimation Methodology.

III. United States Targeting Policy Regarding Incidental Harm

A. The Collateral Damage Estimation Methodology (CDM)

The CDM is one step of the targeting process intended to ensure military operations maintain a “high value on preserving civilian and noncombatant life.” [96] Other sources explain U.S. targeting in a more comprehensive way than contemplated here.[97] This section narrowly seeks to explain the complex CDM process to show the protection it grants wounded combatants.

Within the CDM, there first exists a dichotomy between two different types of targets: deliberate and dynamic.[98] Deliberate targets are planned in advance on static objectives,[99] whereas dynamic targeting occurs within a more immediate timeframe on targets of opportunity, and are approved by leaders with live, tactical control.[100] Targets are systematically listed through an intricate planning process.[101] Execution is then planned through a deliberate target strike, or taken more spontaneously through dynamic targeting as opportunities arise.[102] However, both targets follow the CDM. In simplistic terms, the CDM is a technical process that answers the following questions about each target:

  1. Can I PID [positively identify] the object I want to affect?
  2. Are there protected or collateral objects, civilian or noncombatant personnel, involuntary human shields, or significant environmental concerns within the effects range of the weapon I would like to use to attack the target?
  3. Can I mitigate damage to those collateral concerns by attacking the target with a different weapon or with a different method of engagement, yet still accomplish the mission?
  4. If not, how many civilians and noncombatants do I think will be injured or killed by the attack?
  5. Are the collateral effects of my attack excessive in relation to the expected military advantage gained and do I need to elevate this decision to the next level of command to attack the target based on the [rules of engagement] in effect?[103]

The first step of the CDM is positive identification, or obtaining a reasonable certainty that a defined object of attack is a legitimate military target.[104] Operators place great emphasis here because target misidentification is the most common cause of collateral damage incidents and civilian casualties.[105] Simplistically, positive identification is confirming the person or object in sight is the same target intended to be struck.

The second step addresses target restriction concerns.[106] This step considers whether there are protected entities within the weapon range and references a comprehensive no-strike list, maintained by the combatant command and displayed as an overlay in battle management systems.[107] The no-strike list may include specific facilities designated as protected by policy decision and will include known locations under legal protection, such as hospitals.[108] Operators will also reference population density tables and take additional steps of analysis if a structure is within the weapon range. Operators may also reference a “pattern of life” observation to gain a more comprehensive understanding of civilian inhabitants[109] near the target.[110]

Third, if any collateral concerns are raised, consideration is given to mitigate damage.[111] Operators consider if different weapons or methods will avoid damage while still accomplishing the mission.[112] Fourth, if mitigation measures are inadequate or not practical, operators take an assessment to quantify the expected damage.[113] Finally, the commander accomplishes a proportionality analysis.[114] Operators address each concern from the five questions more technically through a five-level collateral damage estimation (CDE).[115] The CDE requires answers to specific, factual questions.[116] Each CDE level requires the operator to consult reference tables that are grounded in research, experiment, history and battle experience.[117] The tables are also specifically tailored to address collateral concerns based on weapon capability and munition limitations, or potential for delivery error.[118] The final step of the CDE analysis is only reached when, after all reasonable mitigation techniques have been exhausted, collateral damage appears unavoidable.[119] Assessing this damage is not a “casualty count”[120] but an estimate of potential harm. Operators then compare the estimate to the noncombatant and civilian casualty cut-off value or NCV.[121] It is the rules of engagement that quantify the NCV, not the CDM.[122] But if the NCV is exceeded, decision authority on the target is elevated to the Secretary of Defense or the President.[123]

B. Effect of CDM and NCV on Persons Hors De Combat

In Afghanistan, Iraq, and Syria, the NCV can be as low as zero.[124]  The practical effect of an NCV of zero is that if one noncombatant, as defined by the CDM, is likely to be harmed by a strike, approval authority is elevated to the highest levels of Government. This does not mean all targets with a possible noncombatant casualty are off-limits. Rather, in practical terms, it means those strikes cannot be executed without advanced planning.

Contrary to the popular myth that the United States recklessly conducts a “double tap” of targets, killing innocent rescuers,[125] the U.S. military conducts a battle damage assessment following each strike.[126] Frequently, targets require multiple strikes for mission accomplishment. However, if the battle damage assessment reveals the presence of a wounded combatant,[127] the target exceeds the NCV on re-strike.

The combination of the low NCV and the inclusion of wounded combatants in the definition of noncombatant results in a significant obstacle to effective targeting. The presence of one wounded combatant requires abandonment of the target. The effect of this policy would be less restrictive if the President or Secretary of Defense were constantly on stand-by to make targeting decisions. But the image of the President watching live video of the Bin-Laden raid is simply not how the process works for the over 23,000 different ISIL targets.[128] Consequently, the process requires approval that cannot be obtained in time.

C. Restrictive Policy Decisions

The CDM creates a process of high standards that ensures compliance with LOAC, often by exceeding minimum legal requirements. Similar restrictive policies are not unusual for the United States. The U.S. military often goes beyond minimal legal restrictions for a variety of reasons.[129] Such restraint might be expected, not simply for honor or altruism, but also self-interest, particularly where civilian support is a critical component of success.[130] Additionally, other nations may sometimes “wish to set a higher standard,”[131] a consideration of particular importance in a multi-national coalition. For example, in February 1991, U.S. aircraft attacked retreating Iraqi forces along Highway 80 near Basra, Iraq.[132] The media referred to the attack as “the highway of death,” and the international community was outraged after seeing photographs of the destruction caused by the attack.[133] The attack was a lawful use of force, but the emotional reaction caused the United States to change its policy and no longer target retreating Iraqi forces.[134]

Another famous example can be found in General David Petraeus’s 2010 restriction in Afghanistan. Petraeus explained that excessive force can lead to “tactical victories” that later “prove to be strategic setbacks.”[135] Consequently, Petraeus prohibited commanders from firing on any target before determining no civilians were present. This policy effectively required absolute protection of civilians, rather than a traditional proportionality analysis. Petraeus was not responding to external pressure, but rather imposed very restrictive rules of engagement for a strategic benefit.[136]

Unlike these two examples, the United States does not benefit from defining wounded combatants as noncombatants. In a non-international armed conflict against ISIL, this policy grants more protection than is required by law, and will not relieve international pressure or create strategic benefit. Any third party that approved of an initial strike with an ISIL fighter nearby will also approve a second strike, even if the ISIL fighter is wounded.[137] As the minister to the Chinese Duke of Suhn said in 683 B.C., “if we grudge a second wound, it would be better not to wound at all.”[138]

IV. Conclusion

Wounded combatants are not noncombatants. They are enemy combatants that are protected from direct attack. Whether through oversight or extra precaution, the United States has chosen to define wounded combatants as noncombatants. This is a decision that comes without external pressure, strategic advantage, or other policy justification.[139] Furthermore, this overly restrictive policy limits operational capability without creating a moral advantage. In today’s asymmetrical air warfare against ISIL, the non-State enemy is relatively defenseless. The wounded are not collected, and the enemy lacks medical resources.[140] Under these circumstances, it is not honor, but “asinine ethics”[141] that moves the U.S. military to attack the enemy from the air without reciprocal risk, but then protect him from incidental harm once he becomes wounded.

Wounded enemy combatants should be specifically excluded from the definition of noncombatant in DoD literature. To prevent possible abuse of this more permissive definition, persons hors de combat should be added to the second question of the CDM process. Explanation of the term within the CDM would prohibit making persons hors de combat the object of attack. This more accurate understanding of what constitutes a noncombatant and more flexible approach to precautions in attack will allow commanders to more effectively accomplish the mission while maintaining compliance with LOAC.

[1] Judge Advocate, United States Air Force. Presently assigned as the U.S. Air Force Legal Exchange Officer to the Directorate of Operations and Security Law, Australian Defence Force, Canberra, Australia. LL.M., 2017, The Judge Advocate General’s Legal Center and School, United States Army; J.D., 2008, Regent University; B.S., 2005, Brigham Young University. Previous assignments include Assistant Staff Judge Advocate, 673d Wing, Joint Base Elmendorf-Richardson, Alaska, 2008-20011 (Chief of Legal Assistance, Chief of Contracts and Environmental Law, Trial Counsel and Chief of Training); Military Commissions Attorney, Joint Task Force-Guantanamo Bay, Cuba, 2010; Assistant Staff Judge Advocate, 375th Air Mobility Wing, Scott Air Force Base, Illinois, 2011-2012 (Chief of Military Justice); Deputy Regional Environmental Counsel, Air Force Legal Operations Agency, Atlanta, Georgia, 2012-2014; Deputy Staff Judge Advocate, 455th Air Expeditionary Wing, Bagram Airfield, Afghanistan, 2014; Attorney, Aviation Law Branch, Air Force Legal Operations Agency, Joint Base Andrews, Maryland, 2014-2016. Member of the bars of North Carolina and the United States Court of Appeals for the Armed Forces. This article was submitted in partial completion of the Master of Laws requirements of the 65th Judge Advocate Officer Graduate Course.

 

[2] Thomas Malory, Le Morte Darthur: The Winchester Manuscript 504 (Helen Cooper ed., 1998).

 

[3] The Islamic State (ISIL) is a non-state militant group known by different names, including the Islamic State of Iraq and Syria (ISIS) or by the Arabic acronym Daesh. Faisal Irshaid, Isis, Isil, IS or Daesh? One Group Many Names, BBC News (Dec. 2, 2015), http://www.bbc.com/news/world-middle-east-27994277. This Article will refer to the group simply as ISIL.

 

[4] Chairman, Joint Chiefs of Staff, Instr. 3160.01, No-Strike and the Collateral Damage Estimation Methodology GL-5 (13 Feb. 2009) [hereinafter CJCSI 3160.01] (defining noncombatant as “military medical personnel, chaplains, and those out of combat, including prisoners of war and the wounded, sick and shipwrecked). Unlike the Chairman’s Instruction, the Manual definition is considerably vague: “one source might use the term ‘noncombatant’ to mean all persons who are not combatants, including persons placed hors de combat and civilians.” U.S. Dep’t of Def, DoD Law of War Manual para. 4.1.1.1 (Dec. 2016). The Manual also provides a more restrictive definition, but concludes by stating that in “contemporary parlance,” persons hors de combat can be included in the noncombatant definition. Id.

 

[5] Jeh Charles Johnson, National Security Law, Lawyers, and Lawyering in the Obama Administration, 31 Yale L. & Pol’y Rev. 141, 145 (2012); see CJCSI 3160.01 at D-1.

 

[6] Gregory S. McNeal, Targeted Killing and Accountability, 102 Geo. L.J. 681, 685 (2014).

 

[7] See CJCSI 3160.01, supra note 4.

 

[8] Id. at D-A-30.

 

[9] Id. at GL-7.

 

[10] See id.

 

[11] See, e.g., Lieutenant General John W. Hesterman III, Command Directed Investigation into Civilian Casualties Alleged to Have Occurred on 13 March 2015 at an ISIL Checkpoint in Hatra District, Iraq (20 April 2015) (witness stating that seeking approval takes longer than would be ideal during an operation, even if the approval authority is within the operations center); see also Eric Schmidt and Mark Mazzetti, Secret Order Lets U.S. Raid Al Qaeda, N.Y. Times, Nov. 9, 2008, at A1.

 

[12] See CJCSI 3160.01 at D-2.

 

[13] During the initial invasion of Iraq in 2003, the NCV was set at thirty, reflecting the lower value placed on central control of targeting decisions during the early phase of combat operations. See McNeal, supra note 6, at 751. This can be contrasted with operations in Afghanistan in 2009 where the NCV was set at one. Id. at 751–52. Up until 2008, approval for strikes required approval from the National Command Authority at Central Command Headquarters in Tampa, FL. Id. at 752. After 2009, approval was withheld at the Secretary of Defense level. Id.

 

[14] See Hesterman, supra note 11.

 

[15] CJCSI 3160.01, supra note 4 at GL-5.

 

[16] See Hors de Combat, Dorota Marianna Banaszewska, Max Planck Encyclopedia of Public International Law (Nov. 2015), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e2170.

 

[17] Id.

 

[18] U.S. Dep’t of Defense, Law of War Manual, para. 2.3.1 (Dec. 2016); Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict, opened for signature December 12, 1977, art. 41, 1125 U.N.T.S. 3. The International Committee of the Red Cross (ICRC) states that in a non-international armed conflict, members of an organized armed group are legitimate targets, unless they are hors de combat. International Committee of the Red Cross, Handbook on International Rules Governing Military Operations 146 (2012) [hereinafter ICRC Handbook].

 

[19] The hors de combat concept was introduced to protect soldiers in an international armed conflict, see Brian J. Egan, Legal Adviser, U.S. Dep’t of State, Address at the American Society of International Law (Apr. 1, 2016)the United States has expressly stated that U.S. practice is consistent with the 1977 Additional Protocol II to the 1949 Geneva Conventions, which provides that in a non-international armed conflict against a non-State actor, the principles of distinction, proportionality, necessity, humanity and precaution all apply. Id. Article 41 of Protocol I applies specifically to combatants, not civilians. Yoram Dinstein, The Conduct of Hostilities Under the Law of Armed Conflict 28 (2004). Thus, despite any ambiguity in the difference between international and non-international armed conflicts, the distinction here is moot because U.S. policy follows the generally accepted approach of applying the protections of Protocol I to non-State actors.

 

[20] Egan, supra note 19.

 

[21] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3(1), Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31.

 

[22] Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflict, opened for signature June 8, 1977, art. 7, 1125 U.N.T.S. 609.

 

[23] Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict, opened for signature December 12, 1977, art. 41, 1125 U.N.T.S. 3. The United States is not a signature party of Additional Protocol I, but generally complies with many of its provisions. Brian J. Egan, Legal Adviser, U.S. Dep’t of State, Address at the American Society of International Law (Apr. 1, 2016). The U.S. State Department has specifically mentioned Article 10 as customary international law. Michael J. Matheson, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT’L L & POL’Y 415, 423 (1987). Article 41 has not been expressly accepted, but is not refuted. See Id.

 

[24] Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict, opened for signature December 12, 1977, art. 41, 1125 U.N.T.S. 3.

 

[25] See U.S. Dep’t of Def, DoD Law of War Manual para. 5.4.1 (Dec. 2016). The DoD Manual defines persons hors de combat as: “[1] persons in the power of an adverse power; [2] persons not yet in custody, who have surrendered; [3] persons who have been rendered unconscious or otherwise incapacitated by wounds, sickness or shipwreck; and [4] persons parachuting from aircraft in distress.” Id.

 

[26] U.S. Dep’t of Def, DoD Law of War Manual para. 5.9 (Dec. 2016).

 

[27] Avril McDonald, Hors de Combat: Post-September 11 Challenges to the Rules, in The Legitimate Use of Military Force 219, 224 (Howard M. Hensel ed., 2008).

 

[28] Leslie C. Green, Essays on the Modern Law of War 7–8 (2d ed. 1999).

 

[29] See Sean Coughlan, Medieval Warfare Had Well-Organized ‘Ransom Market’, BBC News (Jan. 24, 2013), http://www.bbc.com/news/education-21168437.

 

[30] McDonald, supra note 27, at 224.

 

[31] See William Shakespeare, Troilus & Cressida act 5, sc. 3. It is significant to note that although Shakespeare portrays Hector as a chivalrous hero and Achilles as a cruel realist, the same is not true of Homer’s Iliad. In the Iliad, Achilles desecrates Hector’s body after killing his archenemy, but later weeps together with Hector’s father, Priam, and then provides the body to the enemy king. Alberto Manguel, Homer’s The Iliad and The Odyssey: A Biography (2007).

 

[32] Thomas Malory, Le Morte Darthur: The Winchester Manuscript 504 (Helen Cooper ed., 1998). Today’s DoD Law of War Manual seems to agree, in principle, with the chivalric Lancelot, stating “persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack.” U.S. Dep’t of Def, DoD Law of War Manual para. 5.9.4 (Dec. 2016).

 

[33] U.S. Dep’t of War, General Order No. 100, Instructions for the Government of the Armies of the United States in the Field by Order of the Secretary of War, art. 71 (1863).

 

[34] Geneva Convention for the Amelioration of the Conditions of the Wounded in the Armies of the Field art. 5, Aug. 22, 1864, 22 Stat. 940.G

 

[35] Id. at art. 6. One historical example of protecting the wounded is the experience of Justice Oliver Wendell Holmes, Jr. at the battle of Antietam. The young Holmes was serving as a Captain in the 20th Massachusetts Volunteer Infantry Regiment. Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes 56 (1989). During the early morning battle on September 17, 1862, Holmes was shot through the neck while retreating from a Confederate advance. G. Edward White, Oliver Wendell Holmes, Jr. 20–21 (2006). After the shot, Holmes struggled 300 yards to reach a farmhouse. On arrival, Holmes could see the house was full of wounded men. Jim Buchanan, For This Our Son and Brother Was Dead and is Alive Again: Oliver Wendell Holmes’ Hunt for the Captain, Part 4, (Oct 29, 2010), http://walkingthewestwoods.blogspot.com

/2010/10/for-this-our-son-and-brother-was-dead.html. Soon after Holmes’ arrival, the house was overtaken by Confederates who asked two questions: (1) “Yankees?” And (2) “Wounded?” After the wounded men answered yes to both questions, the Confederates provided water before continuing to advance. Id.

 

[36] Charles Dalton, The Waterloo Roll Call 53 (2d ed. 1904).

 

[37] Stephen W. Simpson, Shoot First, Ask Questions Later: Double-Tapping Under the Laws of War, 108 W. Va. L. Rev. 751, 754 (2006).

 

[38] Id.

 

[39] See Jamie McIntire, Marine Cleared in Videotaped Shooting, CNN (May 5, 2005), http://www.cnn.com

/2005/US/05/05/falluja.marine/. During a U.S. led offensive to clear the city of insurgents, a television journalist embedded with the Marines filmed a small group of Marines enter a mosque after a small arms skirmish. Id. Inside the mosque the Marines found several wounded combatants on the ground. A Marine Corporal is then heard on film saying: “He’s . . . faking he’s dead” followed by a shot and the same voice then saying, “well, he’s dead now.” Id.

 

[40] See id.; Christine Lagorio, World Reacts to Mosque Shooting, CBS News (Nov. 17, 2004), http://www.cbsnews.com/news/world-reacts-to-mosque-shooting/.

 

[41] Banaszewka, supra note 16.

 

[42] U.S. Dep’t of War, General Order No. 100, Instructions for the Government of the Armies of the United States in the Field by Order of the Secretary of War, art. 155 (1863).

 

[43] Id. at art. 71.

 

[44] Geneva Convention for the Amelioration of the Conditions of the Wounded in the Armies of the Field art. 7, Aug. 22, 1864, 22 Stat. 940.

 

[45] IV Jean Pictet, The Geneva Conventions of 12 August 1949: Commentary 133–34 (1958).

 

[46] See id.

 

[47] Id. at 134.

 

[48] Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict, opened for signature December 12, 1977, art. 43(2), 1125 U.N.T.S. 3.

 

[49] See id. at art. 50.

 

[50] E.g., L.C. Green, The Contemporary Law of Armed Conflict 88 (2d ed. 2000); Morris Greenspan, Modern Law of Land Warfare 56 (1959).

 

[51] ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 1602 (1987) [hereinafter “ICRC Commentary”]. Furthermore, in its annual report on protecting civilians in Afghanistan, the United Nations includes soldiers rendered hor de combat in its calculation of “civilian casualties.” U.N. Assistance Mission in Afghanistan Human Rights Unit, Annual Report on Protection of Civilians in Armed Conflict 24 (Jan. 2010), https://unama.unmissions.org/sites/default/files/protection

_of_civilian_2009_report_english_1.pdf. It should be noted, however, that the United Nations takes an extremely broad view of what constitutes a civilian casualty and would extend the definition to any soldier not taking part in active hostilities. See id. Additionally, the International Criminal Tribunal for Rwanda (ICTR) found, with no discussion or analysis that persons rendered hors de combat are civilians for purposes of crimes against humanity. Prosecutor v. Akayesu, No. ICTR-96-4-T, Trial Chamber Judgment, ¶ 582 (Int’l Crim. Trib. for Rwanda Sep. 2, 1998).

 

[52] ICRC Commentary, supra note 51, at para 1677.

 

[53] Id., at para 1605.

 

[54] See id.

 

[55] Id.

 

[56] Id.

 

[57] See CJCSI 3160.01, supra note 4 at GL-7; see also U.S. Dep’t of Def, DoD Law of War Manual para. 4.1.1.1 (Dec. 2016).

 

[58] Banaszewska, supra note 16.

 

[59] See id.

 

[60] U.S. Dep’t of Def, DoD Law of War Manual para. 17.14.1.2 (Dec. 2016).

 

[61] Prosecutor v. Milan Martić, No. IT-95-11-A, Appeals Chamber Judgment (Int’l Crim Trib. for the Former Yugoslavia Oct. 8, 2008).

 

[62] See id.

 

[63] Milan Martić, at ¶ 2–3.

 

[64] Id. at ¶ 4.

 

[65] Id. at ¶ 272.

 

[66] See id.

 

[67] Id. at ¶ 286.

 

[68] Id. at ¶ 273; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict, opened for signature December 12, 1977, art. 50, 1125 U.N.T.S. 3.

 

[69] Milan Martić, at ¶ 277.

 

[70] See, e.g., CJCSI 3160.01, supra note 4 at GL-7.

 

[71] Milan Martić at ¶ 273.

 

[72] Id.; Prosecutor v. Blaškić, Case No. IT-95-14-A, Appeals Chamber Judgement, ¶ 113 (Int’l Crim. Trib. for the Former Yugoslavia July 29, 2004).

 

[73] Milan Martić. at ¶ 273.

 

[74] Prosecutor v. Galić, Case. No. IT-98-29-A, Appeals Chamber Judgment, ¶ 144 n.437 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 30, 2006).

[75] See Banaszewska, supra note 16.

 

[76] See id.

 

[77] U.S. Dep’t of Def, DoD Law of War Manual para. 2.3.1 (Dec. 2016).

 

[78] Id.. The circumstances presented in this Article’s hypothetical create an interesting dilemma for operators regarding the principle of humanity. ISIL does not have easy access to competent medical care. Gilad Shiloak, This ISIS Letter is a Rare Glimpse Into the State of Jihadi Medical Care, The Week (Jan. 9, 2016), http://theweek.com/articles/597397/isis-letter-rare-glimpse-into-state-jihadi-medical-care. Additionally, the Assad regime’s apparently deliberate targeting of hospitals in Syria has largely removed access to medical care in these areas. Helen Coster, Commentary: Why Warring Factors Target Hospitals, Reuters (Apr. 28, 2016), http://www.reuters.com/article/us-mideast-syria-commentary-idUSKCN0XP2CD. However, the United States does not collect the wounded, provide medical care or airdrop medical supplies in these areas of conflict. Consequently, a seriously wounded ISIL fighter that is abandoned at the target may suffer more and die later from injuries, rather than die quickly on re-strike. A serious argument can be made, therefore, that re-striking a wounded ISIL fighter could be more humane than leaving him on the battlefield in some circumstances.

[79] U.S. Dep’t of Def, DoD Law of War Manual para. 2.3.1.1 (Dec. 2016).

 

[80] Id.

 

[81] An interesting question is raised regarding this assumption when targeting individuals based on status alone. An interesting example is the case of Baitullah Mehsud, who was reportedly killed by the Central Intelligence Agency in Pakistan in 2009. Jane Meyer, The Predator War: What are the Risks of the C.I.A.’s Covert Drone Program? New Yorker, Oct. 26, 1999, http://www.newyorker.com/magazine/2009/10/26/the-predator-war. Mehsud was recovering from diabetes and kidney ailments, and was receiving an intravenous drip when attacked. Id. Some claimed this targeted killing violated LOAC, but Mehsud was targeted because of his status as a leader, and had been organizing several recent terror attacks while recovering from his illness. See id.

 

[82] See U.S. Dep’t of Def, DoD Law of War Manual para.2.1.2.3 & para. 2.3.1.1 (Dec. 2016).

 

[83] ICRC Handbook, supra note 18, at 147.

 

[84] Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict, opened for signature December 12, 1977, art. 51(5), 1125 U.N.T.S. 3.

 

[85] U.S. Dep’t of Def, DoD Law of War Manual para. 5.10.1.2 (Dec 2016).

 

[86] E.g., U.S. Dep’t of Def, DoD Law of War Manual para. 17.14.1.2 (May 2016). The phrase “respect and protect” can be found in Article 12 of the First Geneva Convention. Geneva Convention for the Amelioration of the Conditions of the Wounded in the Armies of the Field art. 12, Aug. 22, 1864, 22 Stat. 940.

 

[87] U.S. Dep’t of Def, DoD Law of War Manual para. 17.14.1.2 (May 2016).

 

[88] Id.

 

[89] Charles J. Dunlap, Jr., The DoD Law of War Manual and its Critics: Some Observations, 92 Int’l L. Stud. 85, 98 (2016).

 

[90] Marty Lederman, Good News: DoD to Correct Proportionality Sections of Law of War Manual, Just Security, (Nov. 14, 2016), https://www.justsecurity.org/34412/good-news-dod-correct-proportionality-sections-manual/.

 

[91] U.S. Dep’t of Def, DoD Law of War Manual para. 17.14.1.2 (Dec. 2016).

[92] Id.

 

[93] ICRC Handbook, supra, note 18, at para. 5.2.3.1.

 

[94] Id.

 

[95] U.S. Dep’t of Def, DoD Law of War Manual para. 5.11 (Dec. 2016).

 

[96] CJCSI 3160.01, supra note 4 at D-1, D-3. The Chairman of the Joint Chiefs of Staff is responsible for providing guidance to combatant commanders on the law of war. U.S. Dep’t of Def., Dir. 2311.01E, DoD Law of War Program para. 5.10 (5 May 2006).

 

[97]E.g., McNeal, supra, note 6; Jennifer M. O’Connor, General Counsel, U.S. Dep’t of Defense, Applying the Law of Targeting to the Modern Battlefield (Nov. 28, 2016).

 

[98] Joint Chiefs of Staff, Joint Pub. 3-60, Joint Targeting II-1 (31 Jan 2013) [hereinafter JP 3-60].

 

[99] Before a facility, person or object makes the target list a number of questions have already been answered during the planning process including, among others: What are the LOAC concerns? Does the target contribute to the adversary’s capability and will to wage war? Is the target still operational? Is it still a viable part of a system? Where is the target located? What psychological impact will operations have on the adversary? What would be the impact of not striking the target? McNeal, supra note 6, at 723–24.

 

[100] JP 3-60, supra note 98 at II-1 and II-2.

 

[101] See id. A target is run through a detailed vetting process before inclusion in the list, especially if the target is a specifically named individual. McNeal, supra note 6. For purposes of this Article, the vetting process of all targets must generally comply with the commander’s intent. JP 3-60.

 

[102] See JP 3-60, supra note 98. Actions taken out of collective or self-defense, in response to hostile intent or hostile act, are neither deliberate nor dynamic targets. Self-defense actions generally avoid the bureaucratic hurdles of the Collateral Damage Estimation Methodology (CDM).

 

[103] CJCSI 3160.01, supra note 4 at D-A-7. In a recent speech, General Counsel for the Department of Defense, Ms. Jennifer M. O’Connor stated that DoD policy will be changing in the near future to consider all human shields as protected civilians under the LOAC. Jennifer M. O’Connor, General Counsel, U.S. Dep’t of Defense, Applying the Law of Targeting to the Modern Battlefield (Nov. 28, 2016).

 

[104] CJCSI 3160.01, supra note 4 at A-6.

 

[105] Gregory S. McNeal, Are Targeted Killings Unlawful?: A Case Study in Empirical Claims Without Empirical Evidence, in Targeted Killings: Law and Morality in an Asymmetrical World 326, 331 (Claire Flinkelstein, Jens David Ohlin & Andrew Altman eds., 2012). One primary error leading to the Kunduz Médicines Sans Frontières (MSF) Trauma Center strike was the aircrew’s failure to establish positive identification. Major General William B. Hickman, Army Regulation 15-6 Report of Investigation of the Airstrike on the Médicines Sans Frontières/Doctors Without Borders Trauma Center in Kunduz, Afghanistan on 3 October 2015 (11 November 2015).

 

[106] McNeal, supra note 105, at 331.

 

[107] CJCSI 3160.01, supra note 4 at C-B-2.

 

[108] Id. at GL-7. No-strike objects are generally facilities used for a civilian function. A facility may lose the no-strike protection if it is used for a military purpose.

 

[109] Contrary to popular myth, the collateral damage estimation does not consider all adult males in the vicinity of a target to be combatants. Egan, supra note 19. Classifying individuals near a target involves an assessment of operational activities, characteristics, and identifiers. Id.

 

[110] McNeal, supra note 6, at 739.

 

[111] CJCSI 3160.01, supra note 4 at D-A-7.

 

[112] Id.

 

[113] Id.

 

[114] See id.

 

[115] See generally CJCSI 3160.01, supra note 4.

 

[116] See id.

 

[117] McNeal, supra note 6, at 741-42.

 

[118] CJCSI 3160.01, supra note 4 at D-A-6.

 

[119] Id. at D-A-29.

 

[120] Id. at D-A-30.

 

[121] The Chairman’s instruction defines noncombatants as “military medical personnel, chaplains, and those out of combat, to including prisoners of war and the wounded, sick and shipwrecked.” CJCSI 3160.01, supra note 4 at GL-7. The NCV is the “casualty threshold” of civilians and noncombatants. Id.

 

[122] CJCSI 3160.01, supra note 4 at GL-7

 

[123] Id. at D-A-35.

 

[124] Major General William B. Hickman, Army Regulation 15-6 Report of Investigation of the Airstrike on the Médicines Sans Frontières/Doctors Without Borders Trauma Center in Kunduz, Afghanistan on 3 October 2015 (11 November 2015); Lieutenant General John W. Hesterman III, Command Directed Investigation into Civilian Casualties Alleged to Have Occurred on 13 March 2015 at an ISIL Checkpoint in Hatra District, Iraq (20 April 2015).

 

[125] See, e.g., Conor Frierdersdorf, The Obama Administration’s Drone Strike Dissembling, The Atlantic (Mar. 14, 2016), http://www.theatlantic.com/politics/archive/2016/03/the-obama-administrations-drone-strike-dissembling/473541/.

 

[126] See Office of the Secretary of Defense, Joint Battle Damage Assessment, Joint Test and Evaluation, Commander’s Handbook for Joint Battle Damage Assessment, 1 June 2004, I-1; McNeal, supra note 6, at 757; see also Executive Order 13732, United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force, 81 Federal Register 44485 (Jul. 1, 2016).

 

[127] Operators must ask a difficult factual question as to whether a combatant is truly wounded, as defined by the Chairman’s Instruction. It would certainly be difficult to determine a combatant is “incapacitated or otherwise incapable of defense” as Protocol I states. The Chairman’s Instruction establishes a lower standard and this Article assumes that operators will conservatively assume a combatant reaches that definition, or have sufficient information to conclude that is the case.

 

[128] U.S. Dep’t of Def, Operation Inherent Resolve, Strike Update as of July 26, 2017 (2017), https://www.defense.gov/OIR/.

 

[129] U.S. Dep’t of Def, DoD Law of War Manual para. 18.7.2.3 (Dec. 2016). The DoD Law of War Manual explains that authority is often withheld to higher echelons of approval even when LOAC would allow a subordinate commander to decide. Id. at para. 5.10.3. The principle of proportionality is one relevant example where authority is often withheld. Id. The policy reason for such restrictions is that more senior leaders often have a more comprehensive understanding of military operations, allowing a more accurate analysis of the military advantage to be gained. Id.

 

[130] See id. As explained by the DoD Manual, “the sympathy and support of the civilian population are frequently important objectives in non-international armed conflict. In order to ensure such support, commanders and their forces may operate under rules of engagement that are more restrictive than what the law of war requires.” Id. at para. 17.5.1.3.

 

[131] Id. at para. 18.7.2.3.

 

[132] Major Ariane L. DeSaussure, The Role of the Law of Armed Conflict During the Persian Gulf War: An Overview, 37 AF L. Rev. 41, 67 (1994).

 

[133] Id.

 

[134] McNeal, supra note 6 at 780.

 

[135] ISAF Tactical Directive, 4 August 2010, available at: https://www.dvidshub.net/news/53931/gen-petraeus-issues-updated-tactical-directive-emphasizes-disciplined-use-force.

 

[136] General Petraeus, Unclassified Excerpts from Tactical Directive, Aug. 1, 2010, reprinted in International Security Assistance Force – Afghanistan, Headquarters, General Petraeus Issues Updated Tactical Directive: Emphasizes “Disciplined Use of Force,” Aug. 4, 2010.

 

[137] This is especially true because any practical benefit to classifying wounded combatants as noncombatants is severely limited by the U.S. decision not to collect the wounded. Common Article 3 requires signature parties to collect and care for the wounded and sick. Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3(2) Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. But this seemingly clear rule comes with many exceptions and clarifications. The ICRC’s commentary on the provision states it must be followed “as soon as the tactical situation permits.” ICRC Handbook, supra note 18, at 111. Pictet’s commentary clarifies that the rule only applies “at the front,” and only to “the occupant of the field of battle.” I Jean Pictet, The Geneva Conventions of 12 August 1949: Commentary 150–51 (1952). The United States is prepared to launch operations to recover a downed pilot. See Nolan Peterson, Hunting ISIS: We’re Killing 1,000 Fighters a Month, Newsweek (Sep. 16, 2015), http://www.newsweek.com/hunting-isis-were-killing-1000-fighters-month

-372663. However, it relies on the exceptions to the legal requirement of collecting wounded or dead enemies.

 

[138] The Chinese Classics V: The Chu’un Ts’ew with The Tso Chuen 183 (James Legge Oxford ed., 1893). This quote from the Duke of Suhn’s minister is a criticism of the Duke’s aristocratic honor, for which he sacrificed victory by withholding attack until the enemy was no longer vulnerable. Id. The argument here is that “asinine ethics” should only prevail in a war of no significance. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations 226–27 (1977).

 

[139] Policy considerations of targeting typically look to whether the strike may arouse political or cultural sensitivities, and whether the strike may affect public opinion. McNeal, supra note 6. Additionally, operators must consider the impact of not conducting operations against the target. Id.

 

[140] See Gilad Shiloak, This ISIS Letter is a Rare Glimpse Into the State of Jihadi Medical Care, The Week (Jan. 9, 2016), http://theweek.com/articles/597397/isis-letter-rare-glimpse-into-state-jihadi-medical-care.

 

[141] Walzer, supra note 138, at 226 (1977).

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