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Has the armed conflict in Afghanistan affected the rules on the conduct of hostilities?

Published online by Cambridge University Press:  05 August 2011

Robin Geiß  and
Michael Siegrist
Robin Geiß
Affiliation:
Robin Geiß is Professor at the Faculty of Law, University of Potsdam, Germany.
Michael Siegrist
Affiliation:
Michael Siegrist is editorial assistant of the International Review of the Red Cross, and holds an LLM from the Geneva Academy of International Humanitarian Law and Human Rights.
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Abstract

The armed conflict in Afghanistan since 2001 has raised manifold questions pertaining to the humanitarian rules relative to the conduct of hostilities. In Afghanistan, as is often the case in so-called asymmetric conflicts, the geographical and temporal boundaries of the battlefield, and the distinction between civilians and fighters, are increasingly blurred. As a result, the risks for both civilians and soldiers operating in Afghanistan are high. The objective of this article is to assess whether – and if so how much – the armed conflict in Afghanistan has affected the application and interpretation of the principles of distinction, proportionality, and precaution – principles that form the core of legal rules pertaining to the conduct of hostilities.

Type
The Law
Information
International Review of the Red Cross , Volume 93 , Issue 881: Conflict in Afghanistan II , March 2011 , pp. 11 - 46
Copyright
Copyright © International Committee of the Red Cross 2011

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References

1 The armed opposition operating against the Government of the Islamic Republic of Afghanistan and the international military presence is commonly referred to as the ‘Taliban’, who describe themselves as the Islamic Emirate of Afghanistan. This is a shorthand for a fragmented alliance between different groups such as the Quetta Shura Taliban in Southern Afghanistan, Hezb-i Islami Gulbuddin (HiG) and Hezb-i Islami Khalis in the east, and the Haqqani Network. See a description of non-state armed groups operating in Afghanistan by the Human Security Report Project (HSRP), Afghanistan Conflict Monitor, available at: http://www.afghanconflictmonitor.org/armedgroups.html (last visited 22 March 2011).

2 Quinn, Patrick, ‘Taliban leader: insurgents waging war of attrition’, in The Seattle Times, 15 November 2010Google Scholar, available at: http://seattletimes.nwsource.com/html/nationworld/2013436796_apasafghantalibanmessage.html (last visited 15 March 2011). See also Khan, Ehsan Mehmood, ‘A strategic perspective on Taliban warfare’, in Small Wars Journal, 22 March 2010Google Scholar, available at: http://smallwarsjournal.com/blog/2010/03/a-strategic-perspective-on-tal/ (last visited 15 March 2011).

3 See, e.g., Canadian Army, ‘Troops get close to Afghans’, 15 February 2011, available at: http://www.army.forces.gc.ca/land-terre/news-nouvelles/story-reportage-eng.asp?id=5024 (last visited 15 March 2011); Axe, David, ‘US-led alliance concentrates on Afghan population centers’, in Voice of America, 9 May 2011Google Scholar, available at http://www.voanews.com/english/news/asia/US-led-Alliance-in-Concentrates-on-Afghan-Population-Centers-121518749.html (last visited 27 June 2011).

4 See Watkin, Kenneth, ‘Opportunity lost: organized armed groups and the ICRC “Direct participation in hostilities” interpretative guidance’, in New York University Journal of International Law and Politics, Vol. 42, No. 3, 2010, pp. 641–695Google Scholar; Michael N. Schmitt, ‘Deconstructing direct participation in hostilities: the constitutive elements’, in ibid., pp. 697–739; Bill Boothby, ‘“And for such time as”: the time dimension to direct participation in hostilities’, in ibid., pp. 741–768.

5 For instance, with regard to combatant status of Taliban and Al Qaeda fighters and their detention see, e.g., W. Hays Park, ‘Combatants’, in Michael N. Schmitt (ed.), The War in Afghanistan: A Legal Analysis, US Naval War College International Law Studies, Vol. 85, Naval War College Press, Newport, RI, 2009, pp. 269–275. For a critique of the collective denial of prisoner-of-war status and an analysis of the legal bases of detention see Stéphane Ojeda, ‘US detention of Taliban fighters: some legal considerations’, in ibid., pp. 360–369.

6 For instance: ‘Prior to the use of fires, the commander approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence, fires are prohibited, except under [one] of the following two conditions (specific conditions deleted due to operational security; however, they have to do with the risk to ISAF and Afghan forces).’ See ISAF, General Petraeus issues updated tactical directive: emphasizes ‘disciplined use of force’, News Release, 2010-08-CA-004, Kabul, 4 August 2010, available at: http://www.isaf.nato.int/article/isaf-releases/general-petraeus-issues-updated-tactical-directive-emphasizes-disciplined-use-of-force.html (last visited 15 March 2011).

7 See S. Ojeda, above note 5, pp. 358–359. In accordance with the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), an international armed conflict exists ‘whenever there is a resort to armed force between States’. See ICTY, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 70. According to the commentary to the Geneva Conventions of 1949, an international armed conflict takes place whenever there is ‘Any difference arising between two States and leading to the intervention of armed forces’. Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949, Commentary, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, ICRC, 1952, p. 32.

8 Note that this expression does not depict a ‘third’ type of armed conflict but covers non-international armed conflicts with an ‘international’ dimension. The expression is used in situations where a state (or a multinational force) becomes a party to a pre-existing non-international armed conflict. Such an intervention may result in three outcomes: (1) the existing armed conflict remains a non-international armed conflict if a state or multinational force supports another state against the armed opposition; (2) the armed conflict is transformed into an international armed conflict if the acts of the armed opposition can be attributed to the intervening state or multinational force; or (3) it develops into a ‘mixed conflict’, where the relations between the parties are governed in part by the rules of international armed conflict and in part by those of non-international armed conflict.

9 S. Ojeda, above note 5, pp. 359–360.

10 Operation Enduring Freedom was based upon UN Security Council resolution 1368 of 12 September 2001, recognizing the individual and collective right of self-defence in accordance with the UN Charter, condemning the ‘terrorist attacks’ in the United States, and regarding them as a threat to international peace and security. In addition, NATO invoked Article 5 of the North Atlantic Treaty, which considers an armed attack against one or more NATO parties as an attack against all of them. See Article 5 of the North Atlantic Treaty of 4 April 1949; NATO Update, ‘Invocation of Article 5 confirmed’, 2 October 2001, available at: http://www.nato.int/docu/update/2001/1001/e1002a.htm (last visited 14 March 2011). See also ‘7 October 2001: US launches air strikes against Taleban’, in BBC, ‘On this day’, 7 October 2001Google Scholar, available at: http://news.bbc.co.uk/onthisday/hi/dates/stories/october/7/newsid_2519000/2519353.stm (last visited 22 March 2011).

11 Only Pakistan, Saudi Arabia, and the United Arab Emirates recognized the Taliban as de jure government. For a discussion of their recognition, see Rüdiger Wolfrum and Christine E. Phillip, ‘The status of the Taliban: their obligations and rights under international law’, in J. A. Frowein and R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, Vol. 6, 2002, pp. 571–577 and 584–586.

12 Ibid., p. 566; see also Report of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, 17 August 2001, UN Doc. S/2001/789.

13 John Simpson, ‘Eyewitness: the liberation of Kabul’, in BBC News, available at: http://news.bbc.co.uk/2/hi/south_asia/1654353.stm (last visited 10 March 2011).

14 ‘7 December 2001: Taleban surrender Kandahar’, in BBC ‘On this day’, available at: http://news.bbc.co.uk/onthisday/hi/dates/stories/december/7/newsid_4031000/4031711.stm (last visited 22 March 2011).

15 See Dutter, Barbie and Robinson, Stephen, ‘Reign of the Taliban is over’, in The Telegraph, 7 December 2001Google Scholar, available at: http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/1364622/Reign-of-the-Taliban-is-over.html (last visited 22 March 2011).

16 On this discussion see, inter alia, Jelena Pejic, ‘“Unlawful/enemy combatants”: interpretation and consequences’, in Michael N. Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines – Essays in Honour of Yoram Dinstein, Martinus Nijhoff Publishers, Leiden, 2007, pp. 335–336; Rona, Gabor, ‘Legal issues in the “war on terrorism”: reflecting on the conversation between Silja N.U. Voneky and John Bellinger’, in German Law Journal, Vol. 9, No. 5, 2008, pp. 711–736Google Scholar.

17 See UN Security Council resolution 1419 (2002), of 26 June 2002, welcoming the election of Hamid Karzai. See also Report of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, 11 July 2002, UN Doc. S/2002/737. The International Conference on Afghanistan held in December 2001 let to the ‘Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (“Bonn Agreement”)’, S/2001/1154, of 5 December 2001, establishing an interim authority and calling for the establishment of an emergency Loya Jirga. See Lucy Edwards, Morgan, ‘State-building in Afghanistan: a case showing the limits?’, in International Review of the Red Cross, Vol. 92, No. 880, 2010, pp. 967–991CrossRefGoogle Scholar; Norah Niland, ‘Impunity and insurgency: a deadly combination in Afghanistan’, in ibid., pp. 931–950.

18 For the opinion expressed in 2009 that the nature of the conflict between the Coalition states and the armed opposition has not changed, i.e. that the conflict remains an international armed conflict, see, e.g., Yoram Dinstein, ‘Terrorism and Afghanistan’, in M. N. Schmitt, above note 5, pp. 51–53.

19 See Report of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, 18 March 2002, UN Doc. S/2002/278, paras. 45–54.

20 For the mandate of ISAF see in particular UN Security Council resolution 1386 of 20 December 2001; UN Security Council resolution 1510 of 13 October 2003; and UN Security Council resolution 1890 of 8 October 2009.

21 A clear and uniform definition of what constitutes a non-international armed conflict does not exist in international law. However, it is generally accepted that the existence of such a conflict is based on objective criteria, namely the intensity of the violence and the organization of the parties. For a description of the threshold criteria, see International Committee of the Red Cross (ICRC), How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?, ICRC Opinion Paper, March 2008, available at: http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf (last visited 22 March 2011).

22 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims on Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 1.

23 See David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One, Oxford University Press, Oxford, 2009, pp. 47–48 and 49–50. See also Witte, Griff, ‘Taliban shadow officials offer concrete alternative’, in The Washington Post, 8 December 2009Google Scholar; Gopal, Anand, ‘Some Afghans live under Taliban rule – and prefer it’, in The Christian Science Monitor, 15 October 2008Google Scholar, available at: http://www.csmonitor.com/World/Asia-South-Central/2008/1015/p01s01-wosc.html (last visited 22 March 2011).

24 See Article 34 of the Vienna Convention on the Law of Treaties of 23 May 1969, expressing the general rule that ‘a treaty does not create either obligations or rights for a third State without consent’.

25 See Article 1(1) of Additional Protocol II, stating: ‘This Protocol … shall apply to all armed conflicts … which take place in the territory of a High Contracting Party between its armed forces and … organized armed groups which … exercise … control over a part of its territory …’ (emphasis added).

26 See Article 38 of the Vienna Convention on the Law of Treaties.

27 See, e.g., ICTY, Prosecutor v. Dusko Tadić, above note 7, paras. 86 and 89; International Criminal Tribunal for Rwanda (ICTR), The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision of 2 September 1998, paras. 635 and 636.

28 See Claus Kress and Georg Nolte, ‘Im ungleichen Krieg’, in Frankfurter Allgemeine Zeitung, available at: http://www.faz.net/s/RubD5CB2DA481C04D05AA471FA88471AEF0/Doc~E0AAA1FCF923947BEB8C20C7D45EFA2DC~ATpl~Ecommon~Scontent.html (last visited 22 March 2011); Andreas Paulus and Vashakmadze, Mindia, ‘Asymmetrical war and the notion of armed conflict: a tentative conceptualization’, in International Review of the Red Cross, Vol. 91, No. 873, 2009, p. 108Google Scholar. Generally, see Münkler, Herfried, ‘The wars of the 21st century’, in International Review of the Red Cross, Vol. 85, No. 849, 2003, p. 7CrossRefGoogle Scholar.

29 Stephen J. Blank, Rethinking Asymmetric Threats, U.S. Army War College, Strategic Studies Institutes, September 2003, available at: http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=103 (last visited 22 March 2011).

30 See Michael N. Schmitt, ‘Asymmetrical warfare and international humanitarian law’, in Wolff Heintschel von Heinegg and Volker Epping (eds), International Humanitarian Law Facing New Challenges, Springer Science and Business Media, Berlin and Heidelberg, 2007, pp. 11–48.

31 Geiß, Robin, ‘Asymmetric conflict structures’, in International Review of the Red Cross, Vol. 88, No. 864, 2006, pp. 757–777CrossRefGoogle Scholar; Pfanner, Toni, ‘Asymmetrical warfare from the perspective of humanitarian law and humanitarian action’, in International Review of the Red Cross, Vol. 87, No. 857, 2005, pp. 149–174CrossRefGoogle Scholar.

32 William C. Martel, Victory in War: Foundations of Modern Military Policy, Cambridge University Press, Cambridge, 2007.

33 See, for instance, D. Kilcullen, above note 23, p. 39 onwards. Traditionally, especially in military theory, asymmetric warfare has often been equated with guerrilla and partisan warfare. See Stephen Metz and Douglas V. Johnson II, Asymmetry and U.S. Military Strategy: Definition, Background, and Strategic Concepts, US Army War College, Strategic Studies Institute, January 2001, available at: http://www.au.af.mil/au/awc/awcgate/ssi/asymetry.pdf (last visited 3 January 2011).

34 See, e.g., D. Kilcullen, above note 23, pp. 50 and 52.

35 Mack, Andrew J. R., ‘Why big nations lose small wars: the politics of asymmetric conflict’, in World Politics, Vol. 27, No. 2, 1975, pp. 175–200CrossRefGoogle Scholar.

36 Ivan Arreguín-Toft, How the Weak Win Wars: A Theory of Asymmetric Conflict, Cambridge University Press, Cambridge, 2005.

37 ‘Is the Afghan War really the longest in U.S. history?’, in The Week, 10 June 2010Google Scholar, available at: http://theweek.com/article/index/203842/is-the-afghan-war-really-the-longest-in-us-history (last visited 22 March 2011).

38 H. Münkler, above note 28, pp. 7–22; Herfried Münkler, Der Wandel des Krieges: Von der Symmetrie zur Asymmetrie, 2nd edn, Velbrück Wissenschaft, Weilerswist, 2006.

39 D. Kilcullen, above note 23, p. 55. Note that the armed opposition uses the expression ‘martyrdom attacks’. See the unofficial ICRC translation in this issue (pp. 000–000) of, ‘The Islamic Emirate of Afghanistan: the laiha [code of conduct] for mujahids’, version of 29 May 2010, Art. 57. For examples of recent suicide and other attacks see, inter alia, Vogt, Heidi and Khan, Mirwais, ‘Afghanistan suicide bomber kills 6 NATO troops’, in The Huffington Post, 12 December 2010Google Scholar, available at: http://www.huffingtonpost.com/2010/12/12/afghanistan-suicide-bomber_n_795588.html (last visited 22 March 2011); Rubin, Alissa J., ‘31 killed in suicide attack on Afghan census office’ in The New York Times, 21 February 2011Google Scholar, available at: http://www.nytimes.com/2011/02/22/world/asia/22afghanistan.html (last visited 22 March 2011); and ‘Taliban attack Afghanistan Nato bases’, in RFI, 28 August 2010Google Scholar, available at: http://www.english.rfi.fr/asia-pacific/20100828-taliban-attack-afghanistan-nato-bases (last visited 22 March 2011). According to a report by the UN Secretary-General, there were about three suicide attacks per week in 2010, mainly targeting international military forces. See Report of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, 10 December 2010, UN Doc. S/2010/630, para. 15.

40 D. Kilcullen, above note 23, pp. 83–86.

41 The notion and definition of armed conflict under international humanitarian law has consequentially received considerable attention in the recent literature. See A. Paulus and M. Vashakmadze, above note 28, pp. 95–125.

42 International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, document prepared by the International Committee of the Red Cross for the 30th International Conference of the Red Cross and Red Crescent, 30IC/07/8.4, October 2007, available at: http://www.icrc.org/eng/assets/files/other/ihl-challenges-30th-international-conference-eng.pdf (last visited 22 March 2011).

43 See ibid.; UN Security Council, ‘Despite progress, civilians continue to bear brunt of conflict, says Under-Secretary-General in briefing to Security Council’, press release of 26 June 2009, SC/9692, available at: http://www.un.org/News/Press/docs/2009/sc9692.doc.htm (last visited 22 March 2011).

44 See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC and Cambridge University Press, Cambridge, 2005, Rule 15, p. 51.

45 The ICTY has aptly noted that: ‘After the First World War, the application of the laws of war moved away from a reliance on reciprocity between belligerents, with the consequence that, in general, rules came to be increasingly applied by each belligerent despite their possible disregard by the enemy. The underpinning of this shift was that it became clear to States that norms of international humanitarian law were not intended to protect State interests; they were primarily designed to benefit individuals qua human beings’. ICTY, Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgment, 14 January 2000, para. 518.

46 Sloane, Robert D., ‘Prologue to a voluntarist war convention’, in Michigan Law Review, Vol. 106, December 2007, p. 481Google Scholar.

47 Ibid.

48 Schmitz, Gregor Peter and Steingart, Gabor, ‘Generäle gegen Obama’, in Der Spiegel, 26 September 2009, pp. 107–109Google Scholar.

49 For unclassified excerpts of a new Tactical Directive of 1 August 2010 (replacing the 1 July 2009 version), see ISAF, above note 6. It is from these excerpts that one can draw some conclusions as to the rules of engagement that were in force.

50 Ibid.

51 See also R. D. Sloane, above note 46, p. 481.

52 See ‘The Islamic Emirate of Afghanistan: the laiha [code of conduct] for mujahids’, above note 39, Art. 81.

53 See US Department of the Army, FM 3-24.2: tactics in counterinsurgency, Washington, DC, 21 April 2009, in particular on clear-hold-build operations, para. 3-106 et seq.

54 See, e.g., Save the Children, Provincial Reconstruction Teams and Humanitarian: Military Relations in Afghanistan, London, 2004. In addition, for at least the period between 11 September 2001 and 1 May 2003, US and/or Coalition forces sometimes wore ‘indigenous clothing to blend in with the forces that they were supporting’ or ‘civilian clothes while engaged in humanitarian relief efforts’. Center for Law and Military Operations, The Judge Advocate General's Legal Center and School, Legal Lessons Learned from Afghanistan and Iraq, Volume I: Major Combat Operations (11 September 2001–1 May 2003), United States Army, 2004, pp. 64–69.

55 See, e.g. ISAFMEDIA, ‘Meet a Marine Sergeant who blends in with the Afghan people to do his job’, 02 May 2011, available at: http://www.youtube.com/watch?v=VoTH5tfTHIQ&feature=youtube_gdata (last visited 5 May 2011).

56 For an in-depth discussion, see the various contributions in the New York University Journal of International Law and Politics, Vol. 42, No. 3, 2010, available at: http://www.law.nyu.edu/journals/jilp/issues/jilpvolume42/index.htm (last visited 22 March 2011).

57 M. N. Schmitt, above note 4, p. 737 and n. 123 citing Michael N. Schmitt, ‘“Direct participation in hostilities” and 21st century armed conflict’, in Horst Fischer et al. (eds), Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck, Berlin, Berliner Wissenschafts-Verlag, 2004, p. 509. The author argues that ‘[g]ray areas should be interpreted liberally, i.e., in favour of finding direct participation’.

58 K. Watkin, above note 4, p. 691.

59 In non-international armed conflicts, the membership approach is not uncontested: see e.g. Noam Lubell, Extraterritorial Use of Force Against Non-state Actors, Oxford, Oxford University Press, 2010, pp. 148–155. In its study on direct participation, the ICRC adopted a membership approach based on continuous combat function. See ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, May 2009, pp. 31–36.

60 Note that civilians also include members of the Taliban without continuous combat function and who are not directly participating in hostilities. At least in the period between 11 September 2001 and 1 May 2003, the Operation Enduring Freedom rules of engagement did not declare any forces hostile. Instead, they relied upon the notion of ‘likely and identifiable threat (LIT)’ and positive identification (PID) thereof, which caused confusion among the troops. The forces were trained for the usual three-pronged approach, including declaration of hostile forces (targetable at any time), addressing direct participation in hostilities, and, for situations not connected to hostilities, incorporating the concept of self-defence. See Center for Law and Military Operations, above note 54, pp. 96–103; Michael N. Schmitt, ‘Targeting and international humanitarian law in Afghanistan’, in M. N. Schmitt, above note 5, p. 314.

61 It is estimated that about a million guns are held by Afghan civilians, which equates to about 4.4 firearms per 100 people. See data compiled by GunPolicy.org, available at: http://www.gunpolicy.org/firearms/region/afghanistan (last visited 22 March 2011).

62 See, e.g., Hall, Allan, ‘US troops “tricked into killing Afghan drug clan's rival”’, in The Telegraph, 30 March 2009Google Scholar, available at: http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/5079429/US-troops-tricked-into-killing-Afghan-drug-clans-rival.html (last visited 22 March 2011); Sengupta, Kim, ‘Taliban factions may be using British forces to assassinate rival commanders’, in The Independent, 25 July 2008Google Scholar, available at: http://www.independent.co.uk/news/world/asia/taliban-factions-may-be-using-british-forces-to-assassinate-rival-commanders-876801.html (last visited 22 March 2011).

63 For an in-depth overview of the discussion, see Melzer, Nils, ‘Keeping the balance between military necessity and humanity: a response to four critiques of the ICRC's Interpretive Guidance on the Notion of Direct Participation in Hostilities’, in New York University Journal of International Law and Politics, Vol. 42, No. 3, 2010, p. 831Google Scholar.

64 See Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, Addendum: study on targeted killings, UN Doc. A/HRC/14/24/Add. 6, 28 May 2010, para. 65. See also Jinks, Derek, ‘Protective parity and the laws of war’, in Notre Dame Law Review, Vol. 79, 2004, pp. 1524–1528Google Scholar.

65 Brooks, Rosa Ehrenreich, ‘War everywhere: rights, national security law, and the law of armed conflict in the age of terror’, in University of Pennsylvania Law Review, Vol. 153, 2004, pp. 675CrossRefGoogle Scholar and 757: ‘It would be far better to make combatant status a purely functional question, one that hinges not on technicalities, but on the degree to which a person is directly, actively, and primarily involved in knowingly or intentionally planning or carrying out acts of violence’; May, Larry, ‘Killing naked soldiers: distinguishing between combatants and noncombatants’, in Ethics and International Affairs, Vol. 19, No. 3, 2005, p. 39CrossRefGoogle Scholar.

66 See Abresch, William, ‘A human rights law of internal armed conflict: the European Court of Human Rights in Chechnya’, in The European Journal of International Law, Vol. 16, No. 4, 2005, pp. 758–760CrossRefGoogle Scholar and 767.

67 European Court of Human Rights (ECtHR), Isayeva, Yusupova and Bazayeva v. Russia, ECtHR, App. Nos. 57947–49/00 (24 Feb. 2005); Isayeva v. Russia, ECtHR, App. No. 57950/00 (24 Feb. 2005).

68 In its country report on Colombia (1999), the Inter-American Commission of Human Rights (IACHR) emphasized that, under Article 4 ACHR, the use of lethal force in law enforcement operations could not lawfully be based on mere suspicion or on collective criteria, such as membership in a group. According to the report: ‘the police are never justified in depriving an individual of his life based on the fact that he belongs to a “marginal group” or has been suspected of involvement in criminal activity. Nor may the police automatically use lethal force to impede a crime or to act in self-defence. The use of lethal force in such cases would only be permissible if it were proportionate and necessary’; IACHR, Report Colombia 1999, Chapter IV, para. 213.

69 Moreover, the justification of so-called collateral damage, while it is not illegal per se under international human rights law, would be far more difficult than it is under IHL.

70 See also Francisco Martin, Forrest, ‘Using international human rights law for establishing a unified use of force rule in the law of armed conflict’, in Saskatchewan Law Review, Vol. 64, 2001, pp. 347–396Google Scholar.

71 ICRC, above note 59, pp. 27–36.

72 Ibid., pp. 77–82.

73 W. Parks, Hays, ‘Part IX of the ICRC “Direct Participation in Hostilities” study: no mandate, no expertise, and legally incorrect’, in New York University Journal of International Law and Politics, Vol. 42, No. 3, 2010, p. 815Google Scholar.

74 See US Department of the Air Force, Air Force Pamphlet (AFP 110-31), International Law: The Conduct of Armed Conflict and Air Operations, Judge Advocate General Activities, 19 November 1976, para. 1-3(1), pp. 1–5 recalling that: ‘Armed conflict must be carried on … within the limits of the prohibitions of international law, including the restraints inherent in the principle of necessity’.

75 For statistics of civilian casualties see United Nations Assistance Mission in Afghanistan (UNAMA), Annual Report 2010: Protection of Civilians in Armed Conflict, Kabul, March 2011, p. 29.

76 ICRC, above note 59, p. 77.

77 W. Hays Parks, ‘Asymmetries and the identification of legitimate military objectives’, in W. Heintschel von Heinegg and V. Epping, above note 30, pp. 65–116.

78 Although there is discussion about the interpretation of Article 52 of Additional Protocol I, the wording itself is undisputed and it is not contested that the definition has customary law status: see J.-M. Henckaerts and L. Doswald-Beck, above note 44, Rule 8.

79 Hampson, Françoise J., ‘Proportionality and necessity in the Gulf conflict’, in Proceedings of the Annual Meeting (American Society of International Law), Vol. 86, 1992, pp. 45Google Scholar and 49; Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, p. 93; Bothe, Michael, ‘The protection of the civilian population and NATO bombing on Yugoslavia: comments on a report to the prosecutor of the ICTY’, in European Journal of International Law, Vol. 12, No. 3, 2001, p. 534CrossRefGoogle Scholar.

80 Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff, Geneva, 1987, para. 2022.

81 Program on Humanitarian Policy and Conflict Research (HPCR), Harvard University, Manual on International Law Applicable to Air and Missile Warfare, Commentary, 2009, p. 109, available at: http://www.ihlresearch.org/amw/manual/ (last visited 22 March 2011).

82 Y. Dinstein, above note 79, p. 93.

83 HPCR, above note 81, p. 109.

84 Ibid., p. 109, note 261.

85 Y. Dinstein, above note 79, p. 88.

86 With regard to dual-use objects the ICTY Prosecutor's report emphasized that the criteria laid out in Article 52 of Additional Protocol I must be met in each individual case and that ‘[a] general label is insufficient’. ‘Final report to the prosecutor by the committee established to review the NATO bombing campaign against the Federal Republic of Yugoslavia’, 8 June 2000, pp. 47 and 55, available at: http://www.icty.org/x/file/About/OTP/otp_report_nato_bombing_en.pdf (last visited 22 March 2011).

87 In the application of joint fires in Afghanistan, for instance, several factors need to be taken into account before an attack is permitted. This includes, inter alia, an assessment as to whether or not the target makes an effective contribution to the enemy military action and as to whether its destruction offers a definite military advantage (i.e. whether it is a military objective). Guidance for the Application of Joint Fires, Annex B to HQ ISAF SOP, Dated 06, extract presented at the Rules of Engagement Workshop, International Institute of Humanitarian Law, Sanremo, 13–17 September 2010. According to Joint Pub 3-09, Doctrine for Joint Fire Support, 12 May 1998, p. I–1, joint fires are ‘fires produced during the employment of forces from two or more components in coordinated action toward a common objective’.

88 For the application of the proportionality principle in non-international armed conflicts, see J.-M. Henckaerts and L. Doswald-Beck, above note 44, Rule 14, p. 48.

89 Asbjørn Eide, ‘The laws of war and human rights: differences and convergences’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honor of Jean Pictet, Martinus Nijhoff, Dordrecht, 1984, p. 681.

90 Note that the ICRC commentary rejects this argument because very high civilian losses and damages would be contrary to the fundamental rules of the Protocol. See Y. Sandoz et al., above note 80, para. 1980.

91 Y. Dinstein, above note 79, p. 122.

92 ‘Final report to the prosecutor’, above note 86, para. 49.

93 Almost all NATO member states ratifying Additional Protocol I (and also other states when signing or ratifying the Protocol) made identical declarations according to which ‘military advantage’ is to be understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.

94 Y. Dinstein, above note 79, p. 123; Fenrick, William J., ‘The rule of proportionality and Protocol I in conventional warfare’, in Military Law Review, Vol. 98, 1982, pp. 111–112Google Scholar; Ian Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I, Martinus Nijhoff, Leiden, 2009, p. 200 (‘the assessment can include a military advantage that will not crystallize until sometime in the future’).

95 ‘Document A/CONF.183/INF/10 – International Committee of the Red Cross: Statement of 8 July 1998 Relating to the Bureau Discussion Paper in Document A/CONF.183/C.1/L.53’, in United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, Official Records, Vol. III: Reports and other documents, p. 225, point 2.

96 I. Henderson, above note 94, p. 208.

97 For a detailed description of targeting in counterinsurgency in general and in Afghanistan in particular, see M. N. Schmitt, above note 60, pp. 309–326. See also a description of the Joint Targeting Cycle and Collateral Damage Estimation Methodology (CDM) attached to United States District Court for the District of Columbia, Nasser Al-Aulaqi v. Barack H. Obama, et al., Declaration of Jonathan Manes, No. 10-cv–1469 (JDB), 8 October 2010.

98 Positive identification is ‘a reasonable certainty that the proposed target is a legitimate military target’. Center for Law and Military Operations, above note 54, p. 96.

99 Ibid., p. 103. Note that, while the rules of engagement must remain within IHL limits, i.e. can only permit the targeting of military objectives, they may impose greater targeting restrictions for political or operational reasons.

100 The CARVER tool was initially developed as a target analysis methodology for US Special Operations Forces. It is used to assess mission validity and requirements throughout the targeting and mission planning cycle and assists in selecting the best targets. For a definition of the factors, see Joint Pub 3-05.5, Joint Special Operations Targeting and Mission Planning Procedures, 1993, p. II-8 and glossary. See also US Field Manual FM 34-36, Special Operations Forces Intelligence and Electronic Warfare Operations, Department of the Army, 1991, Appendix D, superseded by FM 3-05.102, Army Special Operations Forces Intelligence, Department of the Army, 2001, para. 2–68. An example of a modified CARVER tool was presented at the Rules of Engagement Workshop, International Institute of Humanitarian Law, Sanremo, 13–17 September 2010.

101 Extract of Joint Forces Command Brunssum OPLAN 30302, presented at the Rules of Engagement Workshop, International Institute of Humanitarian Law, Sanremo, 13–17 September 2010. The formal CDE methodology need not be conducted in self-defence situations. However, the principles of proportionality and necessity still have to be observed in such situations. See Center for Law and Military Operations, above note 54, p. 104.

102 M. N. Schmitt, above note 60, p. 311.

103 See, e.g., Public Prosecutor General of the Federal Court of Justice, Einstellungsvermerk, 3BJs 6/10-4, Karlsruhe, 16 April 2010, p. 22, available at: http://www.generalbundesanwalt.de/docs/einstellungsvermerk20100416offen.pdf (last visited 22 March 2011).

104 ‘Final report to the prosecutor’, above note 86, para. 50.

105 Ibid., para. 52; ICTY, Prosecutor v. Zoran Kupreškić et al., IT-95-16-T, Judgment of 14 January 2000, para. 526.

106 Footnote 37 of the elements of crime of Article 8 para. 2(b)(iv) of the Rome Statute contains an exception to the mental requirements laid out in paragraph 4 of the ‘General Introduction’, according to which, with respect to mental elements associated with elements involving value judgment, such as those using the terms ‘inhumane’ or ‘severe’, it is not necessary that the perpetrator personally completed a particular value judgement, unless otherwise indicated. See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, Cambridge, 2003, p. 161. Different views have been expressed on the interpretation of footnote 37. However, on the whole a rather subjective standard seems to be endorsed in this regard. There appears to be agreement between states that this footnote should not lead to the result of exonerating a reckless perpetrator who knows the anticipated military advantage and the expected incidental damage or injury but gives no thought to evaluating the possible excessiveness of the incidental injury or damages; ibid., p. 165.

107 ‘Final report to the prosecutor’, above note 86, para. 50, states: ‘Although there will be room for argument in close cases, there will be many cases where reasonable military commanders will agree that the injury to noncombatants or the damage to civilian objects was clearly disproportionate to the military advantage gained’. In the Kupreškić case, the ICTY relied on the Martens Clause as a minimum reference and argued on this basis that the prescriptions – in this case the prescriptions of Articles 57 and 58 of Additional Protocol I – must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians; ICTY, Prosecutor v. Zoran Kupreškić et al., above note 105, para. 525.

108 United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, section 2.2; United States Department of the Navy, The Commander's Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12-1/COMDTPUB P5800.7A, July 2007, para. 5.3.1. It has been pointed out that the criterion of minimum expenditure of time, life, and physical resources should be understood to apply not only to the assailant but also to the party attacked; see Y. Sandoz, C. Swinarski, and B. Zimmermann (eds), above note 80, para. 1397.

109 Y. Dinstein, above note 79, p. 93.

110 Beard, Jack M., ‘Law and war in the virtual era’, in American Journal of International Law, Vol. 103, No. 3, 2009, p. 433Google Scholar.

111 I. Henderson, above note 94, p. 164.

112 For the application of this rule in non-international armed conflicts, see J.-M. Henckaerts and L. Doswald-Beck, above note 44, Rule 16.

113 Chandrasekaran, Rajiv, ‘Petraeus review directive meant to limit Afghan civilian deaths’, in The Washington Post, 9 July 2010Google Scholar. See also, ISAF, Tactical Directive, 6 July 2009, available at: http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf (last visited 22 March 2011). A ‘pattern of life’ analysis including Predator coverage was also conducted in the targeting of a senior HiG commander in November 2006. Case study presented at the Rules of Engagement Workshop, International Institute of Humanitarian Law, Sanremo, 13–17 September 2010.

114 Y. Sandoz, C. Swinarski, and B. Zimmermann (eds), above note 80, para. 2198.

115 ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Volume III: Protection of the Civilian Population Against Dangers of Hostilities, 1971, p. 136.

116 ICRC, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1974–1977), Vol. 15, p. 285. A feasibility assessment is necessarily contextual and what is feasible also hinges on the reconnaissance resources available to the attacker. It is therefore generally accepted that, in practice, technologically advanced parties may be bound to a higher standard than those parties who lack similarly advanced reconnaissance means. See also Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), Geneva, 10 October 1980, Article 3(4). Accordingly, ‘[f]easible precautions are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations’.

117 See, e.g., the statements made by the UK, Turkey, Germany, Canada, and the US, ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1974–1977), Vol. 6, pp. 211, 214, 224, 226, and 241 respectively.

118 Y. Sandoz, C. Swinarski, and B. Zimmermann (eds), above note 80, para. 2918.

119 Ibid., para. 2195. Moreover, the ICRC Commentary requires that the evaluation of the information obtained must include a serious check of its accuracy.

120 I. Henderson, above note 94, p. 163.

121 The presumptions entailed in Article 51 para. 1 and Article 52 para. 3 of Additional Protocol I have remained the subject of controversy, however. Particularly in the case of non-international armed conflicts, no clear rule regulates situations where the character of a person is in doubt. Nevertheless, it seems appropriate to demand the same careful and balanced approach in deciding upon the status of people as is required in international armed conflicts. See J.-M. Henckaerts and L. Doswald-Beck, above note 44, Rule 6, pp. 23–24.

122 Public Prosecutor General of the Federal Court of Justice, above note 103. Note that airstrikes seem to have been limited to troops-in-contact (TIC) situations. The German commander eventually classified the situation as an imminent threat, on the ground that he feared that the fuel tanks could be used against the Provincial Reconstruction Team (PRT) in Kunduz or be prepared for later attacks. Ibid., p. 23.

123 See, e.g., ibid., p. 36 et seq.; Reuter, Christoph, ‘Entschädigung für die Kundus-Opfer steht’, in Stern, 5 August 2010Google Scholar, available at: http://www.stern.de/politik/ausland/tanklaster-angriff-in-afghanistan-entschaedigung-fuer-die-kundus-opfer-steht-1590279.html (last visited 22 March 2011); Sturcke, James and Batty, David, ‘Nato air strike in Afghanistan kills scores’, in The Guardian, 4 September 2009Google Scholar.

124 Michael Bothe, Karl Josef Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Convention of 1949, Martinus Nijhoff, The Hague, 1982, p. 279.

125 J.-M. Henckaerts and L. Doswald-Beck, above note 44, Rule 20, p. 62, emphasis added.

126 See Statement of the Office of the Federal Prosecutor of 19 April 2010, para. 2, available at: http://www.generalbundesanwalt.de/de/showpress.php?searchstring=Klein&newsid=360 (last visited 22 March 2011).

127 United States, Air Force Pamphlet (1976), para. 5–3(c)(2)(d).

128 United Kingdom, Military Manual (1958), para. 291.

129 The ICRC Commentary provides that giving a warning may be inconvenient when the element of surprise in the attack is a condition of its success: see Y. Sandoz, C. Swinarski, and B. Zimmermann (eds), above note 80, para. 2223.

130 For this terminology and definition of these paradigms, see Nils Melzer, Targeted Killing in International Law, Oxford University Press, Oxford, 2008, in particular pp. 85–90 and 269–298 respectively.

131 Considerable debate exists regarding the extraterritorial application of human rights. See, inter alia, Jann K. Kleffner, ‘Human rights and international humanitarian law: general issues’, in Terry D. Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations, Oxford University Press, Oxford, 2010, p. 69 onwards; and N. Lubell, above note 59, pp. 193–235. For instance, according to Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the rights and freedoms of the convention must be secured ‘to everyone within their [the High Contracting Parties’] jurisdiction'. In its case law, the European Court of Human Rights (ECtHR) particularly relies on the criterion of ‘effective control’ in order to affirm the extraterritorial applicability of human rights. See, ECtHR, Loizidou v. Turkey, Preliminary Objections (Grand Chamber), 23 February 1995, paras. 61–64; ECtHR, Öcalan v. Turkey, Judgment (Grand Chamber), 12 May 2005, para. 91; ECtHR, Al-Saadoon and Mufdhi v. UK, Admissibility Decision, 30 June 2009, paras. 87–88. Contrary to the ECHR, the wording of the International Covenant on Civil and Political Rights (ICCPR) is more ambiguous, as its Article 2(1) requires a state party to ‘respect and ensure to all individuals within its territory and subject to its jurisdiction the rights’ set out in the convention. However, the Human Rights Committee (HRC) has affirmed the possible extraterritorial application in several instances. See, most prominently, HRC, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, para. 10; HRC, Concluding Observations: United States of America, 2006, UN Doc. CCPR/C/USA/CO/3, para. 10; HRC, Lopez Burgos v. Uruguay (Communication No. 52/1979), 29 July 1981, UN Doc. CCPR/C/13/D/52/1979, para. 12. Finally, the rights and freedoms in the American Convention on Human Rights must be respected and ensured ‘to all persons subject to their [the state parties’] jurisdiction' (Article 1). See, e.g., Inter-American Commission on Human Rights, Armando Alejandre, Jr., et al. v. Republic of Cuba, Case Report No. 86/99, 29 September 1999, para. 23.

132 International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, para. 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, p. 136, para. 106. See also Orna Ben-Naftali and Shany, Yuval, ‘Living in denial: the application of human rights in the Occupied Territories’, in Israel Law Review, Vol. 37, No. 1, 2003–2004, pp. 103–105Google Scholar.

133 Hutchinson, Brian, ‘Assignment Kandahar: checkpoint 5-1’, in National Post, 10 August 2010Google Scholar; Clark, Mandy, ‘Afghan checkpoints key in battle for Kandahar’, in CBS News, 3 August 2010Google Scholar.

134 See, e.g., ‘Rebuilding an Afghan military checkpoint’, in OUT On The Porch, 29 November 2010Google Scholar, available at: http://outontheporch.org/2010/11/29/rebuilding-an-afghan-military-checkpoint/ (last visited 22 March 2011).

135 See ICTY, Prosecutor v. Dusko Tadić, above note 7, paras. 68 and 69; ICTR, The Prosecutor v. Jean-Paul Akayesu, above note 27, para. 635.

136 See Article 27(4) of the Fourth Geneva Convention.

137 See Article 43 of the Hague Regulations of 1907.

138 See, in particular, UN Security Council resolution 1943 of 13 October 2010, and UN Security Council resolution 1890 of 8 October 2009. For the mandate of ISAF, see UN Security Council resolution 1386 of 20 December 2001 and UN Security Council resolution 1510 of 13 October 2003.

139 See Articles 48, 51(2), and 52(2) of Additional Protocol I; and Article 13(2) of Additional Protocol II. See also J.-M. Henckaerts and L. Doswald-Beck, above note 44, Rules 1 and 7. For a commentary on attacks, see Y. Sandoz, C. Swinarski, and B. Zimmermann (eds), above note 80, paras. 4783 and 1882, defining attacks as simply referring to ‘the use of armed force to carry out a military operation’.

140 See Article 51(1) of Additional Protocol I and Article 13(1) of Additional Protocol II. See also Y. Sandoz, C. Swinarski, and B. Zimmermann (eds), above note 80, paras. 1935–1936 and 4761–4771.

141 Nils Melzer, ‘Law enforcement and the conduct of hostilities’, in T. D. Gill and D. Fleck, above note 131, p. 42.

142 Ibid., pp. 43 and 44.

143 N. Melzer, above note 130, pp. 174–175 and 277. For an argument that checkpoints in occupied territory are governed by domestic law and human rights law, see Sassòli, Marco, ‘Legislation and maintenance of public order and civil life by occupying powers’, in European Journal of International Law, Vol. 16, No. 4, 2005, pp. 665–666CrossRefGoogle Scholar. Afghanistan ratified the ICCPR of 23 March 1976 on 24 April 1983 and it is thus binding for all Afghan forces maintaining a checkpoint. For Coalition forces, the applicable human rights obligations will depend on the treaties that they have ratified, which raises the question whether and to what degree these human rights instruments are applicable extraterritorially. In addition, status and rights of ISAF are detailed in the ‘Military technical agreement: between the International Security Force (ISAF) and the interim administration of Afghanistan (“Interim Administration”)’ of 4 January 2002, in International Legal Materials, Vol. 41, No. 5, 2002, p. 1032Google Scholar.

144 See Common Article 3; Article 4(2)(a) of Additional Protocol II; J.-M. Henckaerts and L. Doswald-Beck, above note 44, Rule 89.

145 See O. Ben-Naftali and Y. Shany, above note 132, pp. 104–105.

146 See above note 131.

147 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/ser.L/V/II.116, Doc. 5 rev 1 corr., 22 October 2002, paras. 86–92; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above note 64, para. 32; HRC, Suarez de Guerrero v. Colombia, No. 45/1979, 31 March 1982, CCPR/C/15/D/45/1997, para. 13.2.

148 See, e.g., HRC, Suarez de Guerrero v. Colombia, above note 147, paras. 13.2–3. While similar, the ECHR has set out a slightly different system. Article 2(2) of the ECHR is violated if a deprivation of life is not ‘absolutely necessary’ to achieve one of the listed justification purposes. Like the other human rights systems, the ECHR also requires that the use of force is proportionate and that precautions be taken in order to ‘avoid or minimise, to the greatest extent possible’ any risk to life or the recourse to lethal force. See, e.g., ECtHR, Case of Ergi v. Turkey, No. 66/1997/850/1057, 28 July 1998, paras. 79–81, stating that government forces setting up an ambush in the vicinity of a village, and thus exposing the villagers to the risk of crossfire, should have taken adequate precautions. For the requirements on the organization and control of an anti-terrorist operation, see ECtHR, McCann and others v. The United Kingdom, No. 17/1994/464/545, 27 September 1995, paras. 194 and 202–213.

149 HRC, Suarez de Guerrero v. Colombia, above note 147, para. 13.2.

150 ECtHR, Case of Güleç v. Turkey, No. 54/1997/838/1044, 27 July 1998, para. 71.

151 EctHR, McCann and others v. The United Kingdom, above note 148, paras. 211–212.

152 Escalation of force (EoF) procedures seem to include, inter alia, standardized warning signs, speed bumps, spike/tyre-shredder strips, pen flares, traffic cones, and bull horns. See, e.g., Stevens, John, ‘A vignette: Coalition casualties, vehicle control points/cordons & CIVCAS’, in COIN Common Sense, Vol. 1, No. 1, February 2010Google Scholar, ISAF-Afghanistan, p. 6. See also Center for Army Lessons Learned (CALL), Escalation of Force Handbook: Tactics, Techniques, and Procedures, 07-21, July 2007. The need for more non-lethal weapons in the context of Afghanistan has recently been acknowledged by a senior US Marine commander. See Lamothe, Dan, ‘2-star supports more use of nonlethal weapons’, in Marine Corps Times, 2 February 2011Google Scholar, available at: http://www.marinecorpstimes.com/news/2011/02/marine-corps-afghanistan-tasers-nonlethal-weapons-020110/ (last visited 22 March 2011). For a compilation of available and future non-lethal weapons, see DoD Non-Lethal Weapons Program, Non-Lethal Weapons for Today's Operations, 2011, available at: https://www.jnlwp.usmc.mil/misc/publications/AR2011.PDF (last visited 22 March 2011).

153 See, e.g., Mayer, Jane, ‘The predator war: what are the risks of the C.I.A.'s covert drone program?’, in The New Yorker, 26 October 2009Google Scholar, available at: http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer (last visited 22 March 2011).

154 Note that drones are not outlawed as a weapons platform. It is mainly their use for targeted killings that has been the subject of debate. See, e.g., Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above note 66, p. 24. For a discussion of their legality under international law see, e.g., Chatham House, International Law and the Use of Drones: Summary of the International Law Discussion Group Meeting Held at Chatham House on Thursday, 21 October 2010, Mary Ellen O'Connell and Michael N. Schmitt (speakers), and Elizabeth Wilmshurst (chair).

155 Drew, Christopher, ‘Drones are weapons of choice in fighting Qaeda’, in The New York Times, 16 March 2009Google Scholar.

156 Schmitt, Michael N., ‘Precision attack and international humanitarian law’, in International Review of the Red Cross, Vol. 87, No. 859, 2005, p. 448CrossRefGoogle Scholar.

157 See US Air Force, MQ-1B Predator, Factsheet, 20 July 2010, available at: http://www.af.mil/information/factsheets/factsheet.asp?fsID=122; and US Air Force, MQ-9 Reaper, Factsheet, 18 August 2010, available at: http://www.af.mil/information/factsheets/factsheet.asp?fsID=6405 (both last visited 22 March 2011); O'Connell, Mary Ellen, ‘The international law of drones’, in The American Society of International Law Insights, Vol. 14, No. 36, 12 November 2010Google Scholar; Gebauer, Matthias et al. , ‘Accident-prone wonder weapons: Afghanistan war logs reveal shortcomings of US drones’, in Der Spiegel, 27 July 2010Google Scholar.

158 C. Drew, above note 155.

159 Operations and cross-border attacks in Pakistan present manifold challenging questions not only from a human rights or IHL angle but also from a jus ad bellum perspective that are beyond the scope of this article. See, e.g., Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above note 66, pp. 10–15 and 25.

160 See Chatham House, above note 154, p. 5, where O'Connell notes that there are about six to seven casualties per attack, out of which usually only one person was on the hit list. This also raises concern about how those planning or deciding upon an attack carry out proportionality assessments. For an argument that the advanced technological capabilities of UAVs allowing for virtual ‘persistent surveillance’ (and thus making more relevant information available) lead to stricter requirements for targeting decisions, proportionality, and precautions, see J. M. Beard, above note 110, especially pp. 420, 428–442, and 444.

161 In cases where the drone is operated, in the context of an armed conflict, by a civilian contractor or by intelligence agencies (e.g. the CIA), the pilot would participate directly in hostilities and could potentially be targeted. In addition, the pilot's participation could raise issues regarding criminal liability and detention status.

162 See most prominently Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above note 66, pp. 24–25.