MWI Podcast: “The Law of War and the Urban Battlefield”

A week ago, I had the honor of being a guest on West Point’s Modern Warfare Institute’s (MWI) Urban Warfare Project Podcast hosted by John Spencer.  As Lawfire^® readers know, I consider John to be the nation’s top urban warfare expert. The podcast’s topic was “The Law of War and the Urban Battlefield,” and we covered a lot of ground in about an hour. 

A couple of notes about the podcast

a. I mentioned an excellent article that John had written on the application of the law of war to the Israel-Hamas conflict – it can be found here.  Also, John mentioned a post I had written, and it is found here (and a related one is here).

b. I also referred to what was then a forthcoming post on proportionality. It can now be found here

c. I cited the International Court of Justice case on the Legality of the Threat or Use of Nuclear Weapons, and noted its holding that it “cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” I misstated the date of the case; it was actually a 1996 decision, not 1986.

d. We talked about the use of the phrase “innocent civilians”; more can be found here.

e. John also asked about which actors are targetable in urban warfare scenarios. Actually, the rules themselves are largely the same as in other situations, but the facts and circumstances of urban fights can make them devilishly difficult to apply.  That said, allow me to flesh out my response a bit as to how the lawfulness of targeting can be impacted by the type of conflict involved.  Specifically:

There are two types of conflicts in international law: international armed conflicts (IACs) which arise when there are nation-States on both sides; and non-international armed conflicts (NIACs) where there is a nation-State (or States) only on one side, with the other side composed exclusively of fighters who are non-State actors. 

The difference between a NIAC and an IAC is significant because the Geneva Conventions mostly (albeit not exclusively) apply only to IACs, while NIACs are governed mainly (but, again, not exclusively) by customary international law.

In NIACs, members of non-State armed groups can be targeted, as well as any other persons who are directly participating in hostilities on their side.  (The DoD Law of War Manual provides much guidance on what kinds of activities would constitute “direct participation” in hostilities—see an extract here.)

In my response to John’s question, I should have made it clearer that in an NIAC, “members of state armed forces enjoy combatant privileges and legal recognition,” while members of non-State armed groups generally do not. 

As the DoD Law of War Manual explains, with lawful combatancy comes the “combatant’s privilege” (see here).  This means, the Manual tells us, “that a combatant’s ‘killing, wounding, or other warlike acts are not individual crimes or offenses,’ if they are done under military authority and are not prohibited by the law of war.”  Accordingly, members of the State’s armed forces are not subject to prosecution for lawful warfighting against non-State actors.

However, non-State actors are generally not lawful combatants. Thus, they can be prosecuted via the domestic law of the State they are opposing for “killing, wounding, or other warlike acts” – even if the same acts would have been lawful had they been committed by a lawful combatant such as a member of the State’s armed forces.

Thus, in most NIACs, it needs to be understood that attacks by non-State actors on government forces can create criminal culpability under domestic law for the non-State actor.  They can be prosecuted by the State as, for example, murderers. 

To be clear, in a NIAC the armed forces of the State are generally not lawfully targetable by the non-State actors, as doing so would typically expose the non-State actors to criminal prosecution under the domestic law of the State they are fighting.

f. John asked me where people could get information about the law of war, and I mentioned this blog (of course!), but I also should have cited West Point’s Articles of War blog.  It is very reliable and addresses emerging issues in a timely way.  It is the one law-focused blog I systematically check.

You can find this podcast here.  

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!