The Big 3 Laws of the Law of War
A study conducted in 2005 by the International Committee of the Red Cross assessed the scope of customary international humanitarian law – those principles derived from treaties or unwritten rules accepted as customary practice that are universally acknowledged – and found that there are 161 Customary Rules of IHL. While each rule is important, there are three that are the cornerstone principles of the law of war: military necessity, proportionality, and distinction.
In a rather cavalier fashion, some characterize the basic mission of the armed forces as breaking things and killing people. While there is some validity to that general characterization, it is more accurate to say breaking those things and killing those people that are reasonably necessary in order to accomplish a legitimate military objective; that is, breakings and killings that make a direct contribution to the underlying aim of the military effort and the eventual defeat of the enemy.
A well-known example based on the principle of military necessity, one that caused some to question the role military lawyers ought to play in military decision making, came from Operation Desert Storm in 1991.
A large statue of Saddam Hussein, the one later toppled in 2003 as Iraqi citizens celebrated the downfall of the Hussein regime, was on the target list for the initial air offensive in January 1991 that preceded U.S. and allied ground forces entering Iraq in February. Military attorneys questioned whether the statue was a legitimate military target under the principle of military necessity. The statue was an immovable and inanimate object that did not contribute to the Iraqi government’s ability to function or its military’s ability to fight. Bombing the statute would have been a purely symbolic gesture that did not make a material contribution towards achieving any legitimate military objective. Additionally, the statue was located in a heavily populated civilian area and in close proximity to a mosque. The likelihood of collateral damage was high. In the end, the statute was removed from the targeting list only to be destroyed by the Iraqi people 12 years later.
A more recent example that is still the subject of debate is the incident in Iraq where two journalists for Reuters, along with several Iraqi civilians, were shot and killed by a U.S. Apache helicopter gunship that recorded the incident on its video camera. Some were quick to label the incident murder and a war crime the moment Wikileaks published the video for the world to see.
If you apply the principle of military necessity it is more likely characterized as an unfortunate incident of war, but not a violation of the law of war. The gunship was patrolling an area in a hot zone where shots had been fired a short time earlier. A group of U.S. forces was on foot patrol a few blocks from the scene. One of the men on the ground, later determined to be a photographer carrying a camera with a large zoom lens, had an object that from the air could reasonably be mistaken for a rocket propelled grenade launcher. Under those circumstances, the determination that the men were legitimate military targets and that engaging them contributed to the military objective – defending nearby friendly forces and eliminating the ability of apparent enemy forces to fight – was unfortunate, but not unreasonable.
Next: Proportionality & Distinction<