grant “material assistance” to Islamists/civilian populations that harbor them including “food, healthcare, or shelter”
require the U.S. to abjure its air power and transfer weapons and intelligence to Islamists who could eschew insignia, use prohibited weapons, and hide among civilians
oblige wealthy Western militaries to “employ more precise weapons to minimize civilian casualties
require U.S. forces to “assume greater risk [than LOAC requires].”
(2) Islamist detainees are entitled to combatant immunity even when they hide weapons and wear civilian clothing before and during attacks
(3) U.S. lacks legal authority to detain indefinitely and interrogate Islamists
Implications:
(1) Islamists should not observe distinction because, by wearing civilian clothing and hiding weapons until the moment of attack, they avail themselves of defensive advantage of blending in with civilian populations to mask movements and gain protection, as well as offensive advantage of achieving greater surprise against U.S. forces who do not appreciate the threat posed by unmarked Islamist fighters
(2) one rule governs conduct of honorable U.S. troops, who must wear uniforms and insignia, carry arms openly, and distinguish between combatants/noncombatants only to be detained, interrogated, and worse by barbaric Islamist captors whose treatment of POWs includes beheading and death, while a second rule governs Islamist detainees, who—no matter how perfidiously they behave in battle—would be assured all the benefits of POW status on capture at the very least, and perhaps even to release from captivity prior to cessation of hostilities, not to mention the prospect of financial compensation for “damages” arising out of their detention.
(3) CLOACA arguments create the legal predicate for premature release and return of dangerous Islamists to the fight where they are free once again to target Western troops
enemy combatants may be targeted and killed wherever and whenever they can be found so long as attacks against them are otherwise consistent with LOAC
enemy combatants may be targeted and killed wherever and whenever they can be found so long as attacks against them are otherwise consistent with LOAC
two skeins of scholarship would narrow—or even foreclose—the legal authority to target and kill Islamist fighters while making it much more difficult to distinguish them from civilians, thereby enabling Islamists to enhance their own survivability at the expense of the civilian populations within whom they shelter.
(1) Designation of an individual to be targeted and killed is a command decision predicated upon a factual determination that the target is a member of an enemy armed force or that his killing will reduce a threat. Determination can be made instantaneously through a uniform or insignia worn by the potential target, or by prior identification through intelligence operations or conduct past or present that establishes the potential target as allied or auxiliary to the enemy armed force. Targeting and killing uniformed members of armed forces has been a noncontroversial proposition since the origin of war. Yet Islamist combatants do not wear uniforms and purposefully intermingle within urban civilian populations, frustrating their identification and elimination. In response, the U.S. turned to intelligence and unmanned aerial vehicles [“UAVs”] to find and eliminate Islamist unlawful combatants. UAVs, as with other weapons systems, do not require that targets of TK be afforded a warning or judicial process before use. To require either, or that less harmful means be employed, would create hesitancy and additional risk to U.S. forces. Predictably, CLOACA charges that TK is “no different from ‘extrajudicial killing,’ ‘assassination,’ and the use of ‘death squads’.” To this cohort TK denies process due even foreigners in wartime; if Islamists are denied the opportunity to surrender their killings compromise the “values, goals, and purposes of the liberal state itself.” Only a criminal justice paradigm requiring warranted arrests and trials of Islamists will satisfy critics whose scholarship and litigation campaigns castigate U.S. personnel who order and use UAVs as suborning “wickedness[,] cowardice and…perfidy[.]”
uniformed members of state armed forces are combatants and lawful targets at all times, but in 4GW the prohibited yet routine involvement of ununiformed civilians in combat or combat support on behalf of Islamist VNSAs clouds the task of distinguishing who may and may not be targeted and killed
uniformed members of state armed forces are combatants and lawful targets at all times, but in 4GW the prohibited yet routine involvement of ununiformed civilians in combat or combat support on behalf of Islamist VNSAs clouds the task of distinguishing who may and may not be targeted and killed
civilians lose noncombatant immunity when they undertake “direct participation in hostilities”
DPH (traditional view): (1) uniformed military personnel, civilians carrying weapons, chains-of-command and those who offer material or moral support—planners, propagandists, logisticians, and financiers are (2) subject to targeting not merely during attack phase but at all times b/c their unlawful combatancy or support thereof is an (3) ongoing, comprehensive enterprise in which attacks are episodic but recurring, and preceded and followed by cycles of recruitment, planning, preparation, and movement directly connected to and productive of military consequences; (4) those who merely condone or applaud unlawful combatancy might not qualify as lawful targets whereas “bankers, propagandists, even farmers and cooks, c[an] be targeted…regardless of whether they ever held a weapon.”(5) denies civilian immunity to those whose contributions to the generation of unlawful combat power are intermittent and furtive until they permanently cease hostile activities or surrender into captivity
