Guiora: Determining a Legitimate Target: The Dilemma of the Decision Maker

Amos N. Guiora (Univ. of Utah - Law) has posted Determining a Legitimate Target: The Dilemma of the Decision Maker (Texas International Law Journal, forthcoming). Here's the abstract:

Nation states are under attack by non-state actors; whether non-state actors present an existential threat to nation states is debatable, probably unlikely. Nevertheless, the threat to innocent human life that terrorism poses must not be underestimated. Because terrorist organizations have defined the innocent civilian population as legitimate targets, the state must develop and implement aggressive counter terrorism measures. That, in a nutshell, is the state of the world post 9-11. While reasonable minds may disagree as to the degree of threat that terrorism poses, there is little (never say never) disagreement that terrorism poses a (not necessarily the) threat to the nation state.

This reality has forced decision makers to address terrorism and terrorists literally ‘on the fly’. In retrospect, Tuesday morning September 11, 2001 not only caught world leaders by surprise, most were unprepared and untrained to respond in a sophisticated and strategic manner. In the US, as thoroughly documented elsewhere, the lack of preparation directly contributed to significant violations of human rights including torture, rendition, indefinite detention and unauthorized wiretapping. The executive branch in the US chose a path of granting itself unprecedented powers, with Congress and the Supreme Court largely acquiescing.

While historians will judge whether this combination made America safer, the wise words of Benjamin Franklin - “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” - were largely ignored in the aftermath of 9/11. The ten year anniversary of 9/11 serves as a useful benchmark for looking back to gauge what measures have been implemented, to what degrees of effectiveness, and at what cost. The anniversary additionally serves as a useful benchmark for looking forward and addressing how to develop, articulate and implement changes to existing counterterrorism strategy. This article will not offer a broad retrospective of post 9/11 decisions; rather, the article will focus on the definition of legitimate target.

Discussion regarding the AMW manual is particularly relevant to the question of legitimate target. After all, air and missile warfare is directly related to the legitimate target dilemma. Any analysis of air and missile warfare must include discussion regarding defining a legitimate target and then, subsequently, determining when the individual defined as legitimate is, indeed, legitimate. In that context, the link between legitimate target and AMW is inexorable.

Two central questions with respect to operational counterterrorism are who can be targeted and for when is the identified legitimate target a legitimate target. Those two questions go to the heart both of self defense and the use of power. In a counterterrorism regime subject to the rule of law, use of power is neither unlimited nor unrestrained. Regimes subject neither to external or internal restraints may engage in maximum use of force; needless to say, operational results will be uncertain.

A comparative survey of operational counter terrorism is telling for it highlights how distinct approaches color the legitimate target discussion: The Russian experience in Chechnya presents a particularly stark example of maximum force with questionable results. Conversely, Spain’s experience in the aftermath of the Madrid train bombing reflects a different paradigm, one implementing minimum force and maximum restraint. Seven years after 204 Spaniards found their deaths at the hands of Islamic extremists, Spain - as these lines are written - has not experienced a second attack. China’s policy regarding Uyghur’s in Xinxiang Province is best captured in its name: “Strike Hard” campaigns; India, largely in the face of Pakistani supported and facilitated terrorism, has adopted a policy of restraint predicated, largely, on mutual assured deterrence. Colombia’s policy, in the face of twin threats posed by drug cartels and terrorists is aggressive, not dissimilar from China’s. Israel and the US have largely, but certainly not consistently, sought to implement person-specific counterterrorism policies. Policies implemented by the US and Israel include targeted killing/drone attacks, Operation Cast Lead, and detainment of thousands of individuals in Afghanistan and Iraq, often for what can best be described as little, if any, cause.

With the primary focus on who is a legitimate target and when is the target legitimate, the article will be organized as follows: Section I offers a ‘word of caution’ in an age of uncertainty; Section II discusses operational counter terrorism; Section III offers a survey of how the term legitimate target has historically been defined and applied in the battlefield; Section IV focuses on the non-state actor and international law; Section V discusses defining the legitimate target; Section VI focuses on the practical application of the legitimate target discussion from the commander’s perspective; the conclusion proposes a road map moving forward regarding both definition and application of legitimate target.