War on terrorTrump’s campaign rhetoric, ISIS and the law of war
Presidential candidate Donald Trump said that one reason the U.S. war against ISIS is “ineffective” is that “We’re fighting a very politically correct war.” Exactly what Trump is suggesting doing is not clear, but it is significant that Trump recently acknowledged that the U.S.“is bound by laws and treaties” and that as president he would “not order a military officer to disobey the law.” Instead, he said he would “seek [the] advice” of military and other officials. This is good news, and something all the candidates – and their critics – ought to embrace, as applying the law of war in the twenty-first century is much more complicated than many think. Words do matter, and where the nation’s security is concerned, no words can be more important..
As a retired military officer, I do not publicly endorse candidates.
But as someone who served as a judge advocate, or military lawyer, for thirty-four years, I do think it can be helpful to examine in a nonpartisan way the legal aspects of Donald Trump’s campaign rhetoric on the use of force against the Islamic State, or ISIS.
Here are two recent quotes from Trump:
One of the problems that we have and one of the reasons we’re so ineffective is they’re trying to, they’re using [their own families] as shields …
We’re fighting a very politically correct war. [Y]ou have to take out their families. They care about their lives, don’t kid yourself, but they say they don’t care about their lives. You have to take out their families.
Exactly what Trump is suggesting doing is not clear here, so let us examine some of the different possibilities.
Protecting human shields
Some might argue Trump was merely making the point that regardless of the enemy’s use of their own families as human shields, he would still order attacks on Islamic State fighters.
The law in this regard is made clear in the 2015 U.S. Department of Defense Law of War Manual, which codifies how the U.S. military can wage war. Civilians cannot be targeted unless they are directly participating in hostilities – a distinction that can be complicated to determine.
However, the manual also concludes that the illegal use of human shields does not necessarily bar otherwise legitimate attacks on military targets like enemy fighters. According to the manual, the party that employs human shields assumes responsibility for any injury to them.
Here’s where it gets complicated. Normally, the “proportionality rule” forbids any attack if it is expected that the incidental civilian casualties would be excessive in relation to the anticipated military gain, such as killing ISIS fighters.
However, with respect to situations where the enemy is using civilians as human shields, the manual’s view of the law puts the shields in a unique category. Although an attacker would still need to do everything feasible to protect the shields, the proportionality rule itself would not bar an attack on those who use them.
