by Adam S. Chilton & Eric A. Posner
VOLUME 56 :: No. 2
VOLUME 56 :: No. 2
Victim Testimony in International and Hybrid Criminal Courts: Narrative Opportunities, Challenges, and Fair Trial Demands
Affirmative Target Identification: Operationalizing the Principle of Distinction for U.S. Warfighters
The Law of Armed Conflict (LOAC) principle of distinction is undoubtedly the cornerstone of that regime of law, which seeks to balance military necessity against humanitarian considerations in order to mitigate the horrifying effects of war on its many victims. The principle of distinction requires belligerents to take constant care to spare civilians and to direct their attacks only against combatants, fighters, and military objectives. Together with the related rule of proportionality, the principle of distinction operates to restrain military decision-makers, prohibiting them from launching attacks that directly or indiscriminately target civilians.
Over the past two decades, the United States has required its forces to obtain “positive identification” (PID) of military targets prior to engaging them. PID is defined as a “reasonable certainty that the object of attack is a legitimate military target.” However, as this Article argues, the PID formulation could stand to be refined. It sets a standard that is at once both too rigid and too narrow; it appears to require a degree of precision that is often impossible to achieve in war, while at the same time providing little guidance on the nature of the information that must inform the decision to attack a target. This Article argues for a new, more accurate formulation of the LOAC principle of distinction: the requirement for the affirmative identification of a target. The Article traces the history and evolution of the principle of distinction, identifies the critical characteristics of both war and law that affect the distinction determination, and examines its application in international criminal cases, State practice, Treaty law, military manuals, and other sources of international law. The Article then explores the origins of the PID formulation, demonstrating its inherent flaws and the potential risk posed by continuing to employ it, before proposing a more accurate and comprehensive standard.
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