Abstract
In this paper, the author examines the normative framework in coalition operations with respect to the concept of targeting. He considers the complexity of the legal framework, including the mandate and the interplay between international human rights law and the law of armed conflict. The author then considers the implications of the mandate and the use of force used pursuant to it for the applicability of the jus in bello laws regulating the conduct of hostilities. In the second half of the paper, the author examines some legal interoperability problems by reference to the jus in bello laws of targeting, demonstrating the complexity of the targeting decision making process. Finally, he considers the issue of accountability of coalition commanders under the doctrine of command responsibility.
The views expressed in this paper are those of the author in his personal capacity and do not intend to reflect the views of the DG or of the Ministry of Defense.
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Notes
- 1.
An example of such military cooperation is Operation Apollo, in which US and Canadian infantry units conducted combat operations in Afghanistan. See the Canadian Forces’ Contribution to the International Campaign Against Terrorism, cited in Walsh 2005, p. 316.
- 2.
EU operations are based on Council Decisions, pursuant to Articles 42(4) and 43 of the Treaty of the European Union. Treaty on European Union (Lisbon Consolidated Version) OJ C 83/13, 30 March 2010.
- 3.
North Atlantic Treaty, Washington D.C., 4 April 1949, 34 UNTS 243, see in particular Article 5.
- 4.
Multinational is the adjective used to describe activities, operations and organizations in which elements of more than one nation participate.
- 5.
Combined operations should be distinguished from joint operations . The former are operations in which two or more States are involved, whereas the latter are operations in which at least two components or services of a single State participate. When different services or branches of at least two States are involved, those forces are usually referred to as Combined Joint Task Forces (CJTF).
- 6.
According to NATO, ‘coalition operations’ are operations conducted by forces of two or more nations, which may not be allies, acting together for the accomplishment of a single mission, whereas ‘coalition actions’ are multinational actions outside the bounds of established alliances, usually for a single occasion, or for longer cooperation in a narrow sector of common interest. NATO APP-13 Coalition Operations Handbook.
- 7.
As stated by one observer: ‘Multinational operations pose unique challenges, as the respective capabilities, political will and national interests of each partner will impact on its role in the coalition. The challenge of the commanders is to synchronize the contributions of coalition partners so as to project focused capabilities that present no seams nor vulnerability to an enemy for exploitation.’ Center for Law and Military Operations 2004, p. 110.
- 8.
Unified action is the synergetic application of all instruments of national and multinational power; it includes the actions of non-military organizations as well as military forces. This concept is applicable at all levels of command. In a multinational environment, unified action synchronizes and/or integrates multinational operations with the operations of intergovernmental and nongovernmental agencies in an attempt to achieve unity of effort in the operational area. JP 3-16 2007 p. III-12, para 9(a).
- 9.
It should be recalled that substantial portions of AP I have been recognized as being reflective of customary international law.
- 10.
‘Force interoperability’ is ‘[t]he ability of the forces of two or more nations to train, exercise and operate effectively together in the execution of assigned missions and tasks.’ AAP-6 2013, p.2-F-5. Compare with: US DoD, Joint Chiefs of Staff, Dictionary of Military and Associated Terms: ‘Interoperability is the ability to operate in synergy in the execution of assigned tasks.’ JP 1-02 2010 (As Amended Through 2014), p. 133.
- 11.
Mosquera and Haussler 2008, p. 1.
- 12.
The requirement to incorporate legal advisors to advise military commanders is set forth in Article 82 of Additional Protocol I to the Geneva Conventions. AP I, Article 82. On the role of the military legal adviser, see Rogers and Stewart 2010, pp. 538–564. On ROE: see Chap. 8 in this volume, by Boddens Hosang.
- 13.
‘Operational law’ is defined as ‘the body of domestic, foreign and international law that impacts specifically upon the activities of U.S. Forces in war and operations other than war … It includes military justice, administrative and civil law, legal assistance, claims, procurement law, national security law, fiscal law, and international law.’ OPLAW Handbook 1994, p. A-1.
- 14.
The term ‘law of international armed conflict’ (LOAC) is used in a generic way and is synonymous with other terms such as ‘international humanitarian law’ and ‘law of war’.
- 15.
Targeting is the process of selecting and prioritizing targets and matching the appropriate response to them, considering operational requirements and capabilities. JP 1-02 2010 (as amended through 2014), p. 252.
- 16.
International Tribunal for the former Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000, para 48. Available at: http://www.icty.org/sid/10052.
- 17.
Gill and Fleck 2010, pp. 8–10.
- 18.
See Chap. 6 in this volume, by Schmitt & Widmar.
- 19.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977, 11125 UNTS 609, Article 1(2).
- 20.
- 21.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977, 16 ILM 1391 [hereinafter AP I].
- 22.
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 1997, 36 ILM 1507.
- 23.
Convention on Cluster Munitions, opened for signature, 3 December 2008, 48 International Legal Materials 357 (2008) [hereinafter Oslo Convention].
- 24.
Pouw 2013.
- 25.
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ General List No. 131, 9 July 2004, para 112.
- 26.
See also the position of the Human Rights Committee on the applicability of the ICCPR in the West Bank and Gaza in UN Doc. CCPR/CO/78/ISR and UN Doc. CCPR/C/79/Add.93, para 10.
- 27.
- 28.
See Coomans and Kamminga 2004; Dennis 2005, pp. 119–141; Tondini 2005, pp. 175–242. According to Naert, ‘there seems to be a growing consensus that effective control over territory and effective control over persons (especially detention) constitute jurisdiction in this sense and lead to the applicability of human rights. Beyond this, including in combat situations and in cases of the exercise of limited authority, the matter is not settled.’ Naert 2010, p. 567. See also Ducheine 2008, p. 413; Orakhelashvili 2013, pp. 598–637.
- 29.
Pouw 2013, pp. 154–168.
- 30.
See Al Skeini v. United Kingdom, N° 55721/07, Grand Chamber, Judgment, 7 July 2011; Al Jedda v. United Kingdom, N° 27021/08, Grand Chamber, Judgment, 7 July 2011; Al-Sadoon and Mufdhi v. United Kingdom, ECtHR, N° 61489/08, Judgment, 2 March 2010.
- 31.
AP I, Article 41.
- 32.
Isayeva, Yusupova and Bazayeva v. Russia, App. N° 57950/00, 57948/00, 57949/00, Judgment, 24 February 200541.
- 33.
See also Pouw 2013, p.172.
- 34.
See also Esmukhambetov and Others v. Russia, Case N° 23445/03, ECtHR, Judgment, 29 March 2011; Kerimova and Others v. Russia, N° 171170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05, ECtHR, Judgment, 3 May 2011; Khamzayev and Others v. Russia, N°1503/02, ECtHR, Judgment, 3 May 2011.
- 35.
UN Security Council Resolution S/RES/1973, 17 March 2011.
- 36.
The mandate defines the political end state for the operation. Taking the strategic level as starting point, the JFC derives his military strategic campaign objectives from the mandate of that particular operation. Consequently, political objectives and political end states should be unambiguously clear and well defined in order to facilitate the development of feasible military strategic objectives. On the mandate provided by UNSCR 1973, see also Henderson 2011, p. 767.
- 37.
See also Bartolini 2012, pp. 242–279.
- 38.
- 39.
See Chap. 8 in this volume, by Boddens Hosang.
- 40.
- 41.
Additional amplifications on the ROE are to be found in the ROE Implementation Message. Legal definitions and guidance are contained in the Legal Affairs Annex of the OPLAN.
- 42.
It should be kept in mind that ROE can never authorize actions that would contravene the State’s obligation under IHRL/LOAC. Dinstein 2010, p. 30.
- 43.
Williams 2013, p. 24.
- 44.
Cathcart 2010, p. 202.
- 45.
Hostile intent is defined in the Rules of Engagement Handbook as ‘the threat of the imminent use of force. A determination of hostile intent is based on the existence of an identifiable threat recognizable on the basis of both the following conditions: i. Capability. ii. Intention.’ Cole et al. 2009, Appendex 4 to Annex A, para 4.1.
- 46.
- 47.
Boddens Hosang 2010, p. 436, Rule 23.09.
- 48.
Walsh 2005, pp. 328–330.
- 49.
NATO Legal Deskbook, 2010, p. 257.
- 50.
- 51.
In NATO, targeting is part of an effects based approach to operations (EBAO). COPD INTERIM V1.0 2010, Annex A, pp. A-11–A22. See specifically ibid., Annex A, p. A-15: ‘Effects play a crucial role because they provide a focus of actions and contribute to the accomplishment of objectives and the end state. Actions are designed to create effects that contribute to changes in the capabilities, behaviour or opinions (perceptions) of actors within the operations environment.’
- 52.
PID can be achieved visually or by other means, e.g., by querying the Forward Air Controller (FAC).
- 53.
It should be noted that identification is not solely confined to their geographical location, but also includes the identification of potential targets, which when affected through targeting (kinetic or non-kinetic) ‘generate’ effects that contribute to the overall goals of the coalition operation. Increasingly, the term Combat Identification (CID) is used by tactical units. CID is the capability to differentiate potential targets—mobile and fixed, over large areas with corresponding long distances—as friend, foe or neutral in sufficient time, with high confidence, and at the requisite range to support engagement decisions and weapon release.
- 54.
Short 2002, p. 25.
- 55.
Article 52(2) of AP I reads as follows: ‘In so far as objects are concerned, military objectives are limited to 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 that time, offers a definitive military advantage.’ AP I, Article 52(2).
- 56.
According to Watkin, ‘the Canadian approach of looking at the effect of the attack as a whole is broad enough to include as military objectives targets which indirectly make an effective contribution to an opposing party’s military war effort.’ Watkin 2005, p. 308.
- 57.
AP I, Article 51(4).
- 58.
- 59.
Melzer 2009, p. 85.
- 60.
An example of a ‘declared hostile’ ROE provision is given by Solis:
DECLARED HOSTILE FORCES. CDR, CENTCOM [Commander-in-Chief, Central Command] has designated certain Iraqi military and paramilitary forces (former regime security forces, conventional and/or unconventional air, ground, and naval forces) as declared hostile forces. Since the end of major combat operations, these forces have transitioned from overt conventional resistance to insurgent methods of resistance. This declaration continues to apply to Former Iraqi Military and Paramilitary personnel who are operating as insurgent individuals or groups that continue hostilities against the Iraqi Government and MNF [Multi-National Forces]. These individuals and/or groups may be engaged and destroyed. […].
Solis 2010, p. 508.
- 61.
AP I, Article 57(1).
- 62.
AP I, Article 51(5)(b).
- 63.
The Target Engagement Authority identifies the level of command required to authorize an engagement at each collateral damage level.
- 64.
Planned targets are those known to exist in the operational area and are attacked in accordance with an air tasking order (ATO), mission-type order or fire support plan. Immediate targets are not identified (or selected for attack) soon enough to be included in the normal targeting process. See also Turns 2013, pp. 372–373.
- 65.
UK Ratification Statement to Additional Protocol I, para (c). Available at: http://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=0A9E03F0F2EE757CC1256402003FB6D2 (last visited 1 May 2014).
- 66.
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, 1342 UNTS 137.
- 67.
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 17 September 1997, 2056 UNTS 211 (entered into force 1 March 1999), Article 1(1)(c) [hereinafter Ottawa Convention].
- 68.
Solis 2010, p. 275.
- 69.
- 70.
Ottawa Convention, Article 1(1)(c).
- 71.
Canadian Understanding to Article 1(1)(c) of the Ottawa Convention. Available at http://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=93A8C30465E5CBC54125658500490529 (last visited 25 April 2014). Canada declared that:
in the context of operations, exercises or other military activity sanctioned by the United Nations or otherwise conducted in accordance with international law, the mere participation by the Canadian Forces, or individual Canadians, in operations, exercises or other military activity conducted in combination with the armed forces of States not party to the Convention which engage in activity prohibited under the Convention would not, by itself, be considered to be assistance, encouragement or inducement in accordance with the meaning of those terms in Article 1, paragraph 1(c).
- 72.
Australian Declaration to Article 1(1)(a) of the Ottawa Convention, available at: http://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=C94AC352BD44A2494125658500442880 (last visited 25 April 2014):
It is the understanding of the Government of Australia that, in the context of operations, exercises or other military activity authorized by the United Nations or otherwise conducted in accordance with international law, the participation by the Australian Defense Force, or individual Australian citizens or residents, in such operations, exercises or other military activity, conducted in combination with the armed forces of States not party to the Convention which engage in activity prohibited under that Convention would not, by itself, be considered to be in violation of the Convention.
- 73.
UK Declaration to Article 1(1)(c) of the Ottawa Convention, available at: http://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=8E616974F39078BC41256586004AB729 (last visited 25 April 2014):
It is the understanding of the Government of the United Kingdom that the mere participation in the planning or execution of operations, exercises or other military activity by the United Kingdom’s Armed Forces, or individual United Kingdom nationals, conducted in combination with the armed forces of States not party to the [said Convention], which engage in activity prohibited under that Convention, is not, by itself, assistance, encouragement or inducement for the purposes of Article 1, para (c) of the Convention.
- 74.
Dahl 2013, p. 350.
- 75.
Ottawa Standing Committee on the General Status and Operation of the Convention, 16 May 2003, United Kingdom intervention on Article 1. Available at http://www.apminebanconvention.org/fileadmin/pdf/mbc/IWP/SC_may03/speeches_gs/UK_Art_1.pdf (last visited 25 April 2014).
- 76.
Dahl 2013, p. 350.
- 77.
Ibid.
- 78.
B-GJ-005-104/FP-021, Annex A, para A002(11)(d).
- 79.
Watkin 2005, p. 288.
- 80.
Compare with Article 1(1)(c) of the Ottawa Convention.
- 81.
Command and control arrangements for coalition action are specific to the particular operation. Coalition partners may operate independently in separate areas of operations, they may act under the tactical and operational control of a lead nation, or some arrangements in-between. See Cathcart 2010, pp. 235–244.
- 82.
NATO defines ‘full command’ as the ‘military authority and responsibility of a commander to issue orders to subordinates. It covers every aspect of military operations and administration and exists only within national services. AAP-6 2013, p. 2-F-7. States that assign forces to a NATO operation will always retain full command of those forces and will only delegate operational command or operational control. Ibid.
- 83.
Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to the United Nations Peacekeeping Operation, UN Doc. A/46/185, 23 May 1991, Annex. In UN operations, UN Command ‘involves the full authority to issue operational directives within the limits of (1) a specific mandate of the Security Council; (2) an agreed period of time, with the stipulation that an earlier withdrawal requires adequate prior notification; and (3) a specific geographical range (the mission area as a whole)’. Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects: Command and Control of United Nations Peacekeeping, UN Doc. A/49/681, 21 November 1994, para 6.
- 84.
According to Greenwood, three different models can be identified: (1) Operations under UN command and control, in which a force is composed of national contingents placed under UN command and control pursuant to agreements between the Participating States and the United Nations; (2) Operations conducted under national command and control but authorized by the Security Council; and (3) Operations in which a force under United Nations command has operated alongside other forces under national command and control. Greenwood 1998, pp. 12–13.
- 85.
In general, States will never delegate more than Operational Command. Needless to say that peace operations are generally conducted under a complex command structure combining both UN authority and Member State powers, in which case it cannot be said that the Organization exercises exclusive control. Porretto and Vité 2006, p. 28.
- 86.
According to NATO, ‘operational command’ is ‘[t]he authority granted to a commander to assign missions or tasks to subordinate commanders, to deploy units, to reassign forces, and to retain or delegate operational and/or tactical control as the commander deems necessary.’ AAP-6 2013, p. 2-O-3.
- 87.
NATO defines ‘tactical command’ as ‘[t]he authority delegated to a commander to assign tasks to forces under his command for the accomplishment of the mission assigned by higher authority.’ AAP-6 2013, p. 2-T-1. UN ‘tactical command’ means ‘[t]he authority delegated to a Military or Police Commander in a United Nations Peacekeeping Operation to assign tasks to forces under their command for the accomplishment of the mission assigned by higher authority.’ United Nations Department of Peacekeeping Operations 2008, para D(10).
- 88.
According to NATO, ‘operational control’ is ‘[t]he authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time, or location and to deploy units concerned, and to retain or assign tactical control to those units.’ AAP-6 2013, p. 2-O-3. The United Nations defines UN ‘operational control’ as ‘[t]he authority granted to a Military Commander in a United Nations Peacekeeping Operation to direct forces assigned so that the Commander may accomplish specific missions or tasks which are usually limited by function, time, or location (or a combination), to deploy units concerned and/or military personnel, and to retain or assign Tactical Command or Control of those units/personnel. Operational Control includes the authority to assign separate tasks to subunits of a contingent, as required by operational necessities … in consultation with the Contingent Commander and as approved by the United Nations Headquarters.’ United Nations Department of Peacekeeping Operations 2008, para D(9).
- 89.
NATO defines ‘tactical control’ as ‘[t]he detailed and, usually, local direction and control of movements or manoeuvres necessary to accomplish missions or tasks assigned.’ AAP-6 2013, p. 2-T-2. UN ‘Tactical Control’ means ‘[t]he detailed and local direction and control of movement, or manoeuvre, necessary to accomplish missions or tasks assigned. As required by operational necessities, the Head of the Military Component (HOMC) and the Head of the Police Component (HOPC) may delegate the Tactical Control of assigned military/police personnel to the subordinate sector and/or unit commanders.’ United Nations Department of Peacekeeping Operations 2008, para D(11).
- 90.
Kelly 2005, p. 163.
- 91.
As far as EU military operations are concerned, the Operation Commander will be vested with the appropriate command authority, allowing him sufficient flexibility over the required forces. EU Council Doc. 11096/03 EXT 1, 26 July 2006.
- 92.
Naert 2012, pp. 373–404.
- 93.
Regulations Respecting the Laws and Customs of War on Land, annexed to Convention No. IV Respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2227, Article 3; AP I, Article 91.
- 94.
AMW Manual 2013, Rule 162.
- 95.
For peacekeeping operations, the responsibility of the acts and omissions of the members of the Force remains with the United Nations. See UN Doc. A/46/185 (23 May 1991), para 7 of the UN Model Contribution Agreement:
During the period of their assignment to [the United Nations peace-keeping operation], the personnel made available by [the Participating State] shall remain in their national service but shall be under the command of the United Nations, vested in the Secretary-General, under the authority of the Security Council. Accordingly, the Secretary-General of the United Nations shall have full authority over the deployment, organization, conduct and direction of [the United Nations peace-keeping operation], including the personnel made available by [the Participating State].
See also ibid, para 9:
The functions of [the United Nations peace-keeping operation] are exclusively international and the personnel made available by [the Participating State] shall regulate their conduct with the interests of the United Nations only in view. Except on national administration matters, they shall not seek or accept instructions in respect of the performance of their duties from the authority external to the United Nations, nor shall the Government of [the Participating State] give such instructions to them.
However, in practice, States intervene in daily decisions and by doing so they create a parallel chain of command. In such case, the State engages its responsibility if it continues to exercise effective control over its troops.
- 96.
Different situations are possible. The C2 rests with the international organization, but it is not excluded that C2 is delegated to a coalition of States.
- 97.
ILA 2004, p. 24.
- 98.
According to the Venice Commission:
[n]ot all acts by KFOR troops which happen in the course of an operation ‘under the unified command and control’ … of a NATO Commander must be attributed in international law to NATO but they can also be attributed to their country of origin […]. Thus, acts by troops in the context of a NATO-led operation cannot simply all be attributed either to NATO or to the individual troop-contributing states. There may even be difficult intermediate cases, such as when soldiers are acting on the specific orders of their national commanders which are, however, themselves partly in execution of directives issued by the KFOR commander and partly within the exercise of their remaining scope of discretion.
Opinion No 280/2004, Opinion on Human Rights in Kosovo: Possible Establishment on Review Mechanisms, CDL-AD (2004)033, 11 October 2004, para 79.
- 99.
See Cerone 2001, p. 486.
- 100.
Short 2002, p. 25.
- 101.
See also Zwanenburg 2005, pp. 47–48.
- 102.
In particular, see the difficulties raised in Kosovo and the relationships between the UN, NATO and the TCN in the Behrami and Saramati case before the ECtHR. Behrami and Saramati v. France, Germany and Norway, ECtHR, N. 71412/01 and 78166/01, Decision as to the Admissibility, 2 May 2007. Rowe states that ‘the acts of a military group organized into a military structure may be attributed to a European Convention of Human Rights State where that State keeps its own armed forces within its borders but wields overall control over the group, not only by equipping and financing [it], but also by coordinating or helping in the general planning of its military activity.’ Rowe 2005, p. 197.
- 103.
See Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955 annex, U.N. Doc. S/RES/955, (8 November 1994), reprinted in 33 International Legal Materials 1598 (1994), Article 6(1); Statute of the International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827, U.N. Doc. S/RES/827 (25 May 1993), adopting The Secretary-General Report Pursuant to Para 2 of Security Council Resolution 808, Article 7(1);
Rome Statute, 17 July 1998, 2187 UNTS 90, Article 25.
- 104.
Ibid.
- 105.
API, Articles 86 and 87.
- 106.
Fenrick 2010.
- 107.
ICTY, Prosecutor v. Delalic et al., IT-96-21-T, Trial Chamber, 16 November 1998, para 377.
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De Cock, C. (2016). Targeting in Coalition Operations. In: Ducheine, P., Schmitt, M., Osinga, F. (eds) Targeting: The Challenges of Modern Warfare. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-072-5_11
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