Bombing Iran’s IAEA safe-guarded nuclear facilities

Targeting must adhere to the LOAC {law of armed conflict} and all applicable ROE {rules of engagement}. It is the policy of the DOD that the Armed Forces of the United States will comply with the law of war during all armed conflicts, however such conflicts are characterized, and, unless otherwise directed by competent authorities, the US Armed Forces will comply with the principles and spirit of the law of war during all other operations {in all other military operations}. The “law of war” is a term encompassing all international law for the conduct of hostilities binding on the United States including treaties and international agreements to which the United States is a party, and applicable customary international law. The “law of war” is also commonly referred to as the LOAC.

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Military Necessity. Is this target a valid “military objective”? “Military necessity” acknowledges that attacks can be made against targets, but only targets that are valid “military objectives.” In this case, the term “military objective” in this context comes from the description in the Additional Protocol to the Geneva Convention that describes military objectives as “... (T)hose objects by their nature, location, purpose or use make an effective contribution to military action ...” Though the US is not a signatory to the Additional Protocol it views this definition as an accurate restatement of customary international law that we recognize and with which we comply.

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Distinction (Discrimination). Have we distinguished between combatants and non-combatants; have we distinguished between military objectives and protected property or places? The principle, based on customary international law, requires parties to direct operations only against combatants and military objectives. It prohibits “indiscriminate attacks.”

Subject: 1977 Protocols Additional to the Geneva Conventions: Customary International Law Implications

This is in reply to your memorandum of 26 March 1986, same subject, to the undersigned. In that memo you asked our views on which articles of the Protocol are currently recognized as customary international law, and which should be supported for eventual incorporation into that law. Our views were to be based on the list of provisions provided by OJCS {Office of the Joint Chiefs of Staff}.

We view the following provisions as already part of customary international law:

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g. Civilians: Articles 51, paragraph 2; 52, paragraphs 1 and 2 (except for the reference to “reprisal”); and 57, paragraphs 1, 2(c) and 4).

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In addition to the undersigned, Lt Col Burrus M. Carnahan, USAF, and CDR John C. W. Bennett, JAGC, USN, participated in preparation of this memorandum.

Military necessity ... Attacks must be limited to military objectives, i.e., any objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Examples include troops, bases, supplies, lines of communications, and headquarters.

Chapter 8. The Law of Targeting

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8.2 Military Objectives. Only military objectives may be attacked. Military objectives are combatants (see Chapter 5), military equipment and facilities (except medical and religious equipment and facilities), and those objects which, by their nature, location, purpose, or use, effectively contribute to the enemy’s war-fighting or war-sustaining capability and whose total or partial destruction, capture, or neutralization would constitute a definite military advantage to the attacker under the circumstances at the time of the attack. Military advantage may involve a variety of considerations, including the security of the attacking force.

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8.3. Civilians and Civilian Objects. Civilians and civilian objects may not be made the object of deliberate or indiscriminate attack. ... Civilian objects consist of all objects that are not military objectives.

{1956:}

Chapter 1. Basic Rules and Principles

Section I. General

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3. Basic Principles

a. Prohibitory Effect. The law of war ... requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes ...

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Chapter 2. Hostilities

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Section IV. Bombardments, Assaults, and Sieges

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{1976:}

40. Permissible Objects of Attack of Bombardment

a. Attacks Against the Civilian Population as Such Prohibited. Customary international law prohibits the launching of attacks (including bombardment) against either the civilian population as such or individual civilians as such.

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c. Military Objectives. Military objectives — i.e., combatants, and those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage — are permissible objects of attack (including bombardment). Military objectives include, for example, factories producing munitions and military supplies, military camps, warehouses storing munitions and military supplies, ports and railroads being used for the transportation of military supplies, and other places that are for the accommodation of troops or the support of military operations. Pursuant to the provisions of Article 25, HR, however, cities, towns, villages, dwellings, or buildings which may be classified as military objectives, but which are undefended (para 39b), are not permissible objects of attack.

41. Unnecessary Killing and Devastation

Particularly in the circumstances referred to in the preceding paragraph, loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as military objectives or defended places within the meaning of the preceding paragraph but also that these objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated. ... (HR, art. 23, par. (g) ...).

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{1956:}

Section VI. Treatment of Property During Combat

56. Devastation

The measure of permissible devastation is found in the strict necessities of war. Devastation as an end in itself or as a separate measure of war is not sanctioned by the law of war. There must be some reasonably close connection between the destruction of property and the overcoming of the enemy's army.

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58. Destruction and Seizure of Property

It is especially forbidden * * * to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war (HR, art. 23, par. (g).)

DoD Law of War Program

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2. Applicability and scope

This Directive applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).

3. Definitions

3.1. Law of War. That part of international law that regulates the conduct of armed hostilities. It is often called the “law of armed conflict.” The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law.

3.2. Reportable Incident. A possible, suspected, or alleged violation of the law of war, for which there is credible information, or conduct during military operations other than war that would constitute a violation of the law of war if it occurred during an armed conflict.

4. Policy

It is DoD policy that:

4.1. Members of the DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.

4.2. The law of war obligations of the United States are observed and enforced by the DoD Components and DoD contractors assigned to or accompanying deployed Armed Forces.

4.3. An effective program to prevent violations of the law of war is implemented by the DoD Components.

4.4. All reportable incidents committed by or against U.S. personnel, enemy persons, or any other individual are reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action.

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5. Responsibilities

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5.7. The Heads of the DoD Components shall:

5.7.1. Comply with the policies contained in this Directive.

5.7.2. Institute and implement effective programs to prevent violations of the law of war, including law of war training and dissemination, as required by Articles 47 and 50, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (Reference (c)); Articles 48 and 51, Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea of August 12, 1949 (Reference (d)); Articles 127 and 130, Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Reference (e)); Articles 144 and 147, Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Reference (f)); and Sections 801-940 of title 10, United States Code (U.S.C.), the Uniform Code of Military Justice (Reference (g)).

5.7.3. Make qualified legal advisers at all levels of command available to provide advice about law of war compliance during planning and execution of exercises and operations; and institute and implement programs to comply with the reporting requirements established in section 6.

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5.10. The Chairman of the Joint Chiefs of Staff shall:

5.10.1. Provide appropriate guidance to the Commanders of the Combatant Commands, consistent with Reference (l) {10 U.S.C. 163(a)(2)}.

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5.10.3. Review appropriate plans, policies, directives, and rules of engagement, as necessary, ensuring their consistency with the law of war obligations of the United States.

5.10.4. Ensure that plans, policies, directives, and rules of engagement issued by the Commanders of the Combatant Commands are consistent with this Directive and the law of war.

5.11. The Commanders of the Combatant Commands shall:

5.11.1. Institute programs within their respective commands to prevent violations of the law of war and ensure that their commands’ plans, policies, directives, and rules of engagement are subject to periodic review and evaluation, particularly in light of any violations reported.

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5.11.8. Ensure all plans, policies, directives, and rules of engagement issued by the command and its subordinate commands and components are reviewed by legal advisers to ensure their consistency with this Directive and the law of war.

5.11.9. Ensure that law of war training and dissemination programs of subordinate commands and components are consistent with this Directive and the law of war obligations of the United States.

Implementation of the DoD Law of War Program

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4. Policy

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b. At all appropriate levels of command and during all stages of operational planning and execution of joint and combined operations, legal advisors will provide advice concerning law of war compliance.

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Enclosure A
Responsibilities

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3. The commanders of combatant commands are responsible for the overall execution of the DOD Law of War Program within their respective commands. Specific responsibilities include ensuring:

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d. Command legal advisors attend planning and operations-related conferences for military operations and exercises, as appropriate, to enable them to provide advice concerning law of war compliance during joint and combined operations.

e. All operation plans (including preplanned and adaptively planned strategic targets), concept plans, rules of engagement, execute orders, deployment orders, policies, and directives are reviewed by the command legal advisor to ensure compliance with domestic and international law, this instruction, and the DOD Law of War Program.

Joint Force Staff Judge Advocate’s Duties and Responsibilities

Law of War and Related International Legal Considerations

Ensure that all plans, orders, policies, rules of engagement (ROE), and target lists issued by the command and its subordinate commands are reviewed by legal advisors for compliance with applicable law and policy as required by Department of Defense Directive (DoDD) 2311.01E, DoD Law of War Program, and Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 5810.01B, Implementation of DoD Law of War Program.

Assist the J-3 {operations} or J-5 {plans} in preparing ROE request and authorization messages according to CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces.

Advise the JFC and staff on the legal authority for, and constraints on, the conduct of military operations, including the use of force.

3. Joint Task Force Staff

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b. Operations Directorate

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(2) In coordination with JTF J-2, J-5, and staff judge advocate (SJA), develops the RTL and NSL for CJTF approval. Once approved, forwards them to the JTCB and components for use in the joint targeting planning process.

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i. Staff Judge Advocate. The JTF SJA responsibility is to advise the CJTF on applicable international and domestic laws, multilateral and bilateral agreements, LOAC issues, compliance with published ROE, and other pertinent issues involved in target recommendations and decision procedures.

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8. Phase 2 – Target Development and Prioritization

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e. Target Validation

(1) Target validation is a CJTF responsibility ... In addition, target validation reviews whether attacking the target would be in compliance with LOAC and ROE. ... Target validation is done by targeteers, in consultation with the strategy planners and other experts/agencies, as required. The first part of validation asks such questions as:

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(c) ... Is attacking the target lawful? What are the LOAC and ROE considerations?

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(h) Are there any facilities or targets on the NSL or RTL collocated with the target being validated?

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(3) The CJTF’s intelligence personnel, SJA, planners, and other personnel are included in the target development process and must be familiar with the JTFs target validation process {sic: JTF’s}.

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f. Target List Development

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(3) The second step of Phase 2 (target development) ends with the creation of the JTL. The JTL is a consolidated list of targets (developed, vetted, and validated from the CTL) upon which there are no restrictions placed. The JTL is a dynamic database; the JTF J-2 modifies this database to include periodic TDN inputs from national agencies, combatant commands, and assigned component forces. In simpler terms, what the JTL means to target development is that it is a list of all the valid targets available for nomination for some type of action. The JTL is not a component specific list; these are targets available for any type of exploitation or attack, lethal or nonlethal, air, ground or other delivery methods.

(4) JTF components select targets from the JTL to compile their respective TNLs and forward them to the CJTF. The TNLs are then combined, validated, and prioritized to form a draft JIPTL that is submitted to the JTCB for finalization. Targets are checked against the NSL and the RTL at each successive level. Component commanders must request the CJTF (or the CJTF’s appointed representative) review and approve RTL targets nominated to the JIPTL before execution.

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(6) The CJTF may also prohibit or restrict joint force attacks on specific targets or objects based on military risk, LOAC, ROE, or other considerations. Targeting restrictions fall into two categories, no strike (sometimes called prohibited) and restricted.

(a) The NSL is a list of objects or entities characterized as protected from the effects of military operations under international law or the ROE. Attacking these targets may violate the LOAC (e.g., cultural and religious sites, embassies belonging to noncombatant countries, hospitals, schools) or interfere with friendly relations with other nations, indigenous populations, or governments. The NSL is compiled independently of, and in parallel to, the CTL. It is important to note, however, that entities from the CTL may be moved to the NSL if, as a result of additional target development (vetting), it is determined that attacking them may violate the LOAC. Conversely, targets placed on a NSL may be removed and become subject to military action if their status as a protected object or entity has changed. For example, a church that functions as a weapons storage facility or a barracks will lose its protected status and may be legally attacked.

(b) A restricted target is a valid target that has specific restrictions placed on the actions authorized against it, due to operational considerations. Actions that exceed specified restrictions are prohibited until coordiated and approved by the establishing HQ. Attacking restricted targets may interfere with projected friendly operations. This list also includes restrictions on targets directed by higher authorities. The targets on the RTL are nominated by elements of the joint force, approved by the CJTF, and include restricted targets directed by higher authorities. Targets may have certain specific restrictions associated with them that should be clearly documented in the RTL, such as do not strike during daytime or strike only with a certain weapon.

(7) Some targets may require special precautions, such as chemical, biological, or nuclear facilities, or targets in close proximity to no-strike targets. When targets are restricted from lethal attacks, targeteers should consider nonlethal capabilities as a means to achieve desired effects or support the objectives.

For additional information, see JP 2-0, Joint Intelligence {3.04mb.pdf, dtic}.