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Weighing Lives in War$

Jens David Ohlin, Larry May, and Claire Finkelstein

Print publication date: 2017

Print ISBN-13: 9780198796176

Published to Oxford Scholarship Online: September 2017

DOI: 10.1093/oso/9780198796176.001.0001

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Joint and Combined Targeting

Joint and Combined Targeting

Structure and Process

Chapter:
(p.298) 13 Joint and Combined Targeting
Source:
Weighing Lives in War
Author(s):

Michael Schmitt

Jeffrey Biller

Sean C Fahey

David S Goddard

Chad Highfill

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198796176.003.0014

Abstract and Keywords

This chapter discusses how the law is implemented by armed forces during “targeting,” the process by which individuals and objects are systematically analyzed and prioritized for potential engagement. Centered on an examination of the United States’ “Joint Targeting Cycle,” a construct broadly shared by many other states and organizations, such as NATO, it explains how international humanitarian law concepts are given practical effect during armed conflict. The analysis then proceeds to explore the nuances of targeting in different operational domains: air, land, sea, and cyber. While achieving broadly the same set of legal functions, practice has developed to reflect the different means and methods of warfare in each particular environment. The chapter concludes by extending the discussion to targeting in a coalition context, in which processes and procedures are required to account for legal differences between partners, while minimizing the detrimental effect on operations in order to achieve “legal interoperability.”

Keywords:   targeting, joint targeting cycle, NATO, military, armed forces, armed conflict, international humanitarian law, law of armed conflict, legal interoperability

While the rule of proportionality may be stated precisely, the foregoing chapters make it clear that it engages numerous issues of deep complexity and controversy. Its application depends on the ability to characterize and measure the seemingly elusive concepts of military advantage and civilian harm, as well as to find a meaningful way to compare the two. The legal framework underpinning the rule must support decisions about the lawfulness of attacks across the spectrum of military operations, from engagements on the front line to the use of nuclear weapons. Application of the rule of proportionality is remarkable for what it apparently leaves to the judgment of individual soldiers and commanders.

Notwithstanding the ambiguities concerning the application of the rule, individuals charged with the conduct of hostilities have no choice but to find ways to decide upon the proportionality of attacks. Indeed, countless such determinations have been, and continue to be, made every day. Warfare is often unrelenting in its pace and intensity, meaning that questions concerning proportionality must be answered promptly, efficiently, and confidently. To make this possible, armed forces have developed intricate processes and structures to guide and inform the application of the rule of proportionality in practice.

Given the central role of military judgment, any analysis of the rule of proportionality would be incomplete without considering its practical application. Absent such an understanding, legal theory could quickly deviate from reality to reach an outcome that is unworkable in the field. Furthermore, armed forces’ practical application of the rule is of central importance in understanding the content and evolution of the rule of proportionality through state practice. In other words, proposals for normative change must take into account how the rule is applied on the ground, in the heat of combat. They must be sensitive to the realities of modern warfare.

Targeting, the systematic analysis and prioritization of entities considered for possible engagement, lies at the heart of warfare.1 It occurs at all levels of conflict (strategic, operational, and tactical2), across all “domains” of military (p.299) operations,3 and during operations conducted by a single service, several services (joint operation), or multiple countries (combined operations). Through the targeting process, armed forces seek to match potential targets with appropriate lethal and non-lethal actions, the ultimate aim being to achieve specific and measurable “effects” that advance the commander’s objectives.4 While the process is primarily concerned with operational, rather than legal, considerations, decisions made at each stage thereof implicate legal rules, especially those based on the requirements of distinction, proportionality, and precautions in attack. As a result, targeting represents a key context within which international humanitarian law (IHL) is given practical effect.

Targeting is a ubiquitous process among modern militaries. While individual states have developed their own detailed targeting methodologies, the discussion that follows will focus primarily on the United States’ “joint targeting cycle,” as its core elements are reflected, to a greater or lesser degree, in the procedures of other states, as well as NATO.5 However, it is important to recognize that while this chapter reflects current targeting doctrine, the detailed implementation of the targeting process in any particular operation may differ in response to the specific requirements of the situation. Additionally, although the joint targeting cycle is often used to coordinate operations intended to achieve effects on an adversary other than through injury or physical damage, the chapter considers its application only to conduct qualifying as an “attack,” an IHL term of art.6

In US doctrine, the joint targeting cycle applies first and foremost at the joint level of command, in which forces drawn from two or more branches of the armed forces are brought together under a single joint force commander (JFC).7 However, individual services apply the principles of the joint targeting cycle in order to conduct targeting within their own specific domain. This chapter therefore begins with an examination of targeting at the joint level, before considering its specific application in each domain of warfare: air, land, sea, and cyber. It concludes with a brief examination of targeting in the combined operations context, where the forces of two of more states engage in armed conflict as a coalition. In such situations, legal obligations may differ between coalition members and, therefore, the targeting process must be adapted to facilitate interoperability.

(p.300) 1. The Joint Targeting Cycle

The joint targeting cycle begins at the commencement of planning for an operation and continues throughout its execution. It is intended to provide a “comprehensive, iterative, and logical” method by which the various methods and means of warfare available are employed in support of the JFC’s objectives.8

A key aspect of the cycle is its flexibility in accommodating different timescales. “Deliberate” targeting refers to the future plans of the joint force, typically 24–72 hours prior to execution (and sometimes beyond that period), whereas “dynamic” targeting is concerned with the current twenty-four-hour period and comprises a reactive process.9 Along similar lines, targets may be either “planned,” that is, they are known to exist and are scheduled for engagement as part of the deliberate process, or “targets of opportunity,” which are engaged dynamically. The latter category includes both “unplanned” targets, which are known to exist on the battlefield but have not been scheduled for engagement, and “unanticipated” targets, which appear in the course of hostilities without their existence having previously been known.10 Both the deliberate and the dynamic processes, as well as the engagement of all these categories of targets, are incorporated into the joint targeting cycle.

The joint targeting cycle is divided into six distinct phases: (a) understanding the desired end state and commander’s objectives; (b) target development and prioritization; (c) capability analysis; (d) the commander’s decision and force assignment; (e) mission planning and force execution; and (f) assessment.11 As illustrated in Figure 13.1, these form a continuous cycle, with the results of one iteration informing the next. However, while the phases are ordered sequentially, in practice concurrent activity may be taking place at various phases of the cycle in order to develop targets at various stages of maturity. (p.301)

Joint and Combined TargetingStructure and Process

Fig. 13.1 Joint Targeting Cycle12

1.1 Phase 1—the end state and commander’s objectives

The ultimate aim of the targeting process is to facilitate the achievement of the commander’s desired end state.13 Commanders communicate their objectives through a range of operational documentation, especially the operation plan (OPLAN),14 and update their “commander’s intent” throughout the execution of the operation. This includes legal guidance15 that makes clear the applicable legal regime16 and policy guidance regarding how the law is to be applied to the specific operation or theatre.17 The OPLAN is accompanied by rules of engagement (ROE) that set forth the circumstances in which force may be used, as well as any limitations on its use.18 ROE reflect a range of operational, policy, and legal considerations, and may therefore be more restrictive than the law alone. It must be cautioned that while ROE are drafted so that action taken in accordance with them is lawful, this fact does not relieve individual members of the armed forces of their obligation to consider separately the lawfulness of their own actions.

An appreciation of the commander’s objectives is also essential vis-a-vis application of legal rules. In particular, it is important to understand the significance of a particular target in the context of the operation as a whole in order to make an accurate assessment of the anticipated military advantage to be gained from its engagement.19 In terms of the progression of the joint targeting cycle, it is the understanding of the commander’s desired end state and objectives that informs phase 2: target development and prioritization.

1.2 Phase 2—target development and prioritization

In Phase 2, targets are developed and prioritized.20 Development in the targeting context refers to the identification of targets, the successful engagement of which will (p.302) support the commander’s objectives. It begins with a detailed and systematic understanding of the operational environment, including the adversary and its “centers of gravity.”21 From this, targeteers identify “target systems” that must be affected in some way to achieve the commander’s objectives.22 Development concludes with an analysis of the target system that is designed to identify those specific targets therein that can be engaged in order to achieve the desired effect.

Once developed, a potential target is subjected to a vetting and validation process.23 Vetting involves examining the intelligence that has been used to establish the significance of the target. During validation, a board chaired by an officer selected by the JFC and supported by a legal advisor considers each potential target to determine its compatibility with the commander’s direction and its compliance with both the law and the rules of engagement. Validation is not permission to engage the target. Rather, from a legal perspective, it amounts to a determination that the target is a military objective or an individual who may lawfully be targeted, and that everything feasible has been done to verify that status.24 The lawfulness of any actual engagement (i.e. questions of proportionality and precautions in attack) is determined at a later stage in the joint targeting cycle.

Validated targets are added either to the “joint target list” or the “restricted target list,”25 the difference being that targets on the latter are subject to specified restrictions on their engagement that have been imposed for operational reasons, such as the adverse effect that the engagement may have on other aspects of the operation, for example, relations with the civilian population during a counterinsurgency campaign. Targets on the lists may be nominated for inclusion on the draft joint integrated prioritized target list (JIPTL), which comprises a list of validated targets in order of priority based on their importance vis-à-vis achievement of the commander’s objectives.

1.3 Phase 3—capabilities analysis

Before the joint force commander may approve targets on the JIPTL for engagement, they must undergo “capabilities analysis.”26 Capabilities analysis involves identifying how capabilities at the commander’s disposal might be employed to achieve the desired effect on the particular target system. The goal is to present the commander (p.303) with all viable courses of action. Thus, capabilities analysis requires consideration of both lethal and non-lethal means for engaging the target, as well as the first, second, and higher-order effects of each. A key aspect of the analysis is “weaponeering,” the process of determining the size and type of munition, as well as the method of delivery, required to achieve the desired effect.27

Capabilities analysis provides much of the information the commander needs in order to determine whether a proposed engagement is lawful. In particular, each option identified through weaponeering is accompanied by a prediction of the injury to civilians and harm to civilian objects expected to be caused by the various means and method of attack. Analytical models that predict the effects of the particular munitions within the framework of a “collateral damage estimation” (CDE) methodology are employed to make the assessment.28

The CDE methodology is not, in itself, a proportionality calculation, but rather a systematic way to analyze and communicate expected collateral damage. It serves three related functions. First, it classifies proposed attacks in terms of their expected collateral damage and thus identifies the level of authority (potentially up to the President) that is required to approve their execution. Second, it provides a systematic technique for selecting means and methods that reduce civilian injury and damage to civilian objects, thereby reflecting the obligation to take precautions in attack.29 Finally, CDE methodology provides the officer responsible for approving the engagement with structured information that can be used, together with an assessment of the anticipated military advantage, in deciding on a proposed attack’s proportionality during the next phase.

1.4 Phase 4—commander’s decision and force assignment

Phase 4 is the point at which the commander authorizes the planned engagement of particular targets using specific means and methods of attack.30 It is in this phase that the proportionality determination is made. In concrete terms, the commander’s decision can take a number of forms. The commander may, particularly at the start of an operation, approve a full or partial JIPTL. As the operation progresses, the decision may be to add or remove a target from the JIPTL or change the means or methods to be used against a particular target. The key point from a legal perspective is that during this phase the commander approves specified courses of action, which requires a determination of compatibility with both law and policy guidance.

The commander is guided in his or her decision by the results of the target development and capability analysis work. This means that the commander should be equipped with all of the information required to make a reasoned judgment both as to the anticipated military advantage to be achieved by engaging each target and the injury to civilians and damage to civilian objects expected to be caused by the (p.304) proposed means and method of attack. Before approving the target for engagement, the commander also has to be satisfied that the obligation to take precautions in attack has been met in the course of capability analysis, that is, that all feasible options in the choice of means, methods, and alternate targets have been considered in order to minimize incidental loss of civilian life, injury to civilians, and damage to civilian objects.31 Likewise, while the target will have been through the validation procedure and should, therefore, be a lawful military objective, the obligation to distinguish military objectives from civilians and civilian objects endures throughout the process.32 The commander is therefore not relieved, by virtue of the earlier determination, of his or her obligation to consider the status of the proposed target.

The commander’s decisions are informed by the targeting staff and legal advisor. The legal advisor’s role is not to take responsibility for the decision as to the lawfulness of the proposed attack, but rather to guide the commander in understanding the legal dimensions of the decision which he or she faces. The outcome of that decision may be to approve the proposed course of action or to decline it, likely sending the target back to an earlier phase of the joint targeting cycle to undergo further target development or capability analysis. Approved targets, on the other hand, are engaged in phase 5: mission planning and force execution.

1.5 Phase 5—mission planning and force execution

Once approved targets are communicated to the force, detailed planning for their actual engagement can begin.33 In phase 5, the focus of activity moves from the joint level to individual components (i.e. air, sea, land, and cyber) possessing the capabilities that are to be employed to achieve the desired effect.

Phase 5 must be, above all else, flexible. While the earlier phases in the joint targeting cycle provided the direction that the force requires to understand and plan its mission, the actual conduct of operations must accommodate changing circumstances and emerging threats and opportunities. At the same time that planned targets are being engaged as the culmination of the deliberate process set out above, the force has to be able to conduct a self-contained dynamic targeting process, within the execution phase, to deal with targets of opportunity that emerge.

All targets, whether planned or not, are subject to a process known as “F2T2EA”: find, fix, track, target, engage, and assess.34 For planned targets engaged through the deliberate process, these steps simply confirm, verify, and validate the decisions taken earlier in the joint targeting cycle, reflecting the obligation to continue to consider the lawfulness of an attack up to and throughout its execution. In particular, within the “fix” step, the force achieves “positive identification” of the target, meaning its identification to a specified standard (e.g. the number of sources and type of information considered sufficient). Doing so is consistent with the continuing duty to do everything feasible to verify the status of a target.35 For targets of opportunity, however, the (p.305) F2T2EA process requires fresh determinations as to the status of an emerging target and the lawfulness of any engagement. For this reason, F2T2EA is associated primarily with dynamic targeting.

The find, fix, and track steps involve the identification of a target on the battlefield, the determination of its precise location, and the allocation of resources to maintain a continuous track of its position. Targets subject to the dynamic process usually emerge as a result of intelligence, surveillance, and reconnaissance (ISR) activities that a force conducts throughout an operation. They can emerge at any time and may present only a fleeting opportunity for engagement; accordingly, the force must be ready to react quickly.

The “target” step is central to dynamic targeting. Whereas the lawfulness of targets to be engaged through the deliberate process will have already been considered in detail, the target step of the dynamic process must facilitate the same legal (and operational) determinations in a much compressed timeframe. The officer with authority to approve the target has to be furnished with sufficient information about the target and the proposed means and method of engagement to determine the lawfulness of the target and the proportionality of the proposed attack. That officer must also be able to satisfy him or herself that the requirement to take precautions in attack has been met and that the expected harm to civilians has therefore been reduced so far as is feasible relative to the effects sought.

This means that difficult and nuanced decisions may need to be taken extremely quickly against the backdrop of a rapidly evolving situation. In these circumstances, access to timely and accurate legal advice is essential. Ideally, legal advisors will be located alongside the decision maker whenever dynamic targeting is underway. This allows them to monitor the situation as it develops and see first-hand the information that is to be used to support a decision to engage the target.

Once engagement is authorized, the process moves on to “engage,” the point at which the attack is conducted. Throughout the engagement, the attack continues to be bound by the applicable law, including the duty to take feasible precautions to reduce civilian harm. For this reason, the asset (e.g. an aircraft) responsible for engagement has to establish and maintain “combat identification,” the characterization of objects on the battlefield, in order to make an informed decision as to the continued lawfulness of the attack.36

The final step of phase 5 is an initial assessment of the engagement’s effect on the target,37 a process known as “battle damage assessment” (BDA).38 BDA is part of the wider process of assessment conducted during phase 6 of the joint targeting cycle.

1.6 Phase 6—targeting assessment

The final phase of the joint targeting cycle consists of a continuous assessment of the effectiveness of operations in contributing to the achievement of the commander’s (p.306) objectives.39 While the assessment primarily informs the reevaluation of the commander’s direction and guidance, it also influences subsequent legal determinations as to the anticipated military advantage to be gained through future attacks. More broadly, it is the assessment phase’s contribution to subsequent targeting activity that ensures that the joint targeting cycle is a focused, iterative process in pursuit of the commander’s objectives.

Having considered the joint targeting cycle, the chapter will proceed to discuss its application in each of the domains of warfare, beginning with the air domain.

2. Targeting in the Air Domain

While targeting takes place across all domains, the unique capabilities of aerial bombardment in the engagement of targets render it a key facet of contemporary military operations. As a result, the rhythm of the air campaign will usually be closely aligned with the joint targeting cycle, each phase of which is implemented in part by a corresponding stage of the “joint air tasking cycle.”40

2.1 Key organizational and functional elements

In a joint operation, the air component is commanded by a joint force air component commander (JFACC), who reports to the joint force commander in the chain of command. While the joint targeting cycle ultimately falls within the responsibility of the JFC, its implementation in the air domain is usually delegated to the JFACC.41 The precise degree of authority delegated to the JFACC for the approval and engagement of particular targets will depend upon factors unique to each conflict and theatre of operations. There is no particular legal dimension to the extent of delegation, as the same legal rules apply to attacks at whatever level decisions are taken. Rather, decisions as to delegation reflect a balancing of the joint force commander’s desire to retain control over targeting decisions with the efficiency to be gained through delegation. For instance, in a large-scale conflict, it is likely that greater authority will be delegated, whereas in a low-intensity conflict involving infrequent strikes against politically sensitive targets, authority might be retained at a higher level.

Command and control of aerial targeting is centered in an Air Operations Center (AOC).42 The AOC draws together all of the elements necessary to plan and execute the air component of a joint operation, including the implementation of the joint (p.307) targeting cycle in the air domain.43 In the AOC, the JFACC and his or her staff are supported by legal advisors responsible for providing advice across all of the AOC’s activities, including the joint targeting cycle.

2.2 Implementation of the joint targeting cycle in the air domain

The cycle that results in a particular target’s engagement typically begins roughly seventy-two hours earlier, though much of the work that underpins the joint targeting cycle may have been conducted earlier in the operation, sometimes even before commencement of hostilities. In phase 1—commander’s objectives, guidance, and intent—the AOC’s Strategy Division considers the joint force commander’s objectives and formulates a proposed course of action to achieve them in the air domain.44 Based on this course of action, the AOC’s Combat Plans Division commences phase 2, target development, about forty-eight hours prior to the engagement.45 This process results in a list containing targets developed during earlier iterations of the joint targeting cycle, as well as ones that have been freshly developed. These potential targets are then subjected to the vetting and validation process, which typically takes place within the AOC and includes the first formal determination of a potential target’s status as a lawful military objective.

Successfully vetted and validated targets are included on either the joint target list or the restricted target list, depending on whether specific conditions are attached to any future engagement. Targets that the JFACC wants to engage within the current cycle are also nominated for potential inclusion in the joint force commander’s draft JIPTL. They will be considered alongside those nominated by the other component commanders in order to deconflict activity and prioritize those targets that best achieve the joint force commander’s objectives. Targets included in the draft JIPTL then enter phase 3, capabilities analysis, also conducted by the AOC’s Combat Plans Division.46 Generally occurring twenty-four hours before engagement, the analysis identifies potential means and methods of engagement and results in a collateral damage estimation for each option.

The capabilities analysis work, together with the results of target development, informs phase 4, the joint force commander’s decision to approve engagement of targets appearing on the draft JIPTL. This is the point at which all aspects of an attack’s lawfulness, including the status of the target, the proportionality of the proposed engagement, and any precautions in attack, are subject to formal consideration. In the air domain, the approved targets are transferred to an air tasking order (ATO)47 that sets out those targets to be engaged by the JFACC’s assets within each twenty-four-hour period. Given that the process to generate an ATO begins as much as forty-eight (p.308) hours earlier, the joint targeting cycle supports the simultaneous generation of several ATOs at different stages of development.

Upon receipt of the ATO, the AOC’s Combat Operations Division commences phase 5 of the joint targeting cycle: mission planning and force execution.48 This involves turning the ATO into a concrete plan for specific aircraft to fly designated missions and engage particular targets using specified means and methods. The fluid nature of combat means that much may change during execution, and accordingly it must be cautioned that the inclusion of a target on the ATO does not relieve those executing the mission, including the pilot or weapon operator, of their obligation to consider the lawfulness of their actions throughout the mission.49

Aircrew will be provided with additional tailored direction, known as “Special Instructions” (SPINS),50 that reflects the relevant rules of engagement, as well as further guidance on operational matters. Before engaging a target and to the extent that it is feasible, aircrew have to achieve positive identification of the target, as well as situational awareness of the target area, in order to make an informed decision regarding the continued lawfulness of the attack. If they are unable to do so, or conclude that an attack would be unlawful, they may not engage.

At times an intervening event requires the diversion of aircraft from their planned missions, such as when it is necessary to support ground forces or engage a time-sensitive target.51 Within the AOC, such dynamic targeting is the responsibility of the Current Operations Division, which sometimes establishes a cell to perform this function. The authority to direct the engagement of a dynamic target is usually delegated to an officer with the AOC, who monitors the situation as it unfolds, including, when available, through video feeds from surveillance assets. While the dynamic targeting process may take place within a short space of time, there is no diminution in the applicable legal standards. A legal advisor will therefore be available, usually in person, to provide advice as the process unfolds.

The compressed timeframe and reduced opportunity for detailed planning mean that a significant burden may rest on the aircrew engaging a dynamic target to gather the information required to conduct a lawful attack. In particular, the process of combat identification takes on particular importance in a rapidly unfolding situation. As with a planned target, the aircrew retain responsibility for complying with legal requirements throughout the engagement.

Assessment, the final phase of the joint targeting cycle, is key to the ongoing effectiveness of the targeting enterprise.52 The JFACC’s ISR plan includes the collection of (p.309) data, including imagery, to assess the impact of previous attacks. This information feeds directly into future iterations of the joint targeting cycle, for instance in determining whether re-attack is necessary.

3. Targeting in the Land Domain

Targeting in the land domain mirrors to a great extent the process and terminology set out above. Nevertheless, not only can land forces make unique contributions to implementation of the joint targeting cycle, but there remain important differences in how targeting is conducted in the land domain.

3.1 Key organizational and functional elements in land targeting

Unlike the air and maritime domains of warfare, the land domain is often populated with different forces—Marine Corps, Army, and Special Operations Forces (SOF)—operating in the same space, albeit with distinct command structures. To provide “unity of command” over these elements, the joint force commander typically designates a single joint force land component commander (JFLCC),53 who usually establishes a Joint Operations Center (JOC) from which to monitor, assess, plan, and direct current operations.54 The situational awareness provided by the JOC serves, in part, to ensure that land force operations are synchronized with activities in other domains of warfare, thereby achieving “unity of effort.”55 The processes implemented by the JFLCC are designed to identify, develop, and refine potential targets in order to fulfil the JFLCC’s responsibility for determining “the target priorities, effects, and timing for joint land operations.”56

The JOC’s staff is organized by functional areas and supported by legal advisors.57 Legal advisors “must be immediately available and should be consulted at all levels of command.”58 Two warfighting functions—fires and intelligence—are central to the JFLCC’s contribution to the joint targeting cycle. In the land context, the use of weapons to engage targets is referred to as “fires.”59 Fires experts, alongside intelligence (p.310) specialists, are key to the implementation of the joint targeting cycle in the land domain.60 These experts, who operate in fires cells (army) or fires coordination centers (Marine Corps) within a JOC, are trained to understand the specific effects created by individual weapon systems.61 They are primarily responsible for synchronizing the use and effects of organic and other fires capabilities,62 such as fixed- and rotary-wing aircraft, against particular targets and in accordance with the joint force commander’s objectives.63 Intelligence personnel also serve a key function, by obtaining an understanding of the operating environment, identifying centers of gravity, and developing intelligence that aids in the identification and location of individual targets.

A particularly important role that land forces play in supporting the joint targeting cycle is supplying intelligence to support decision making during the joint targeting cycle. Modern militaries increasingly rely on advanced technology to gather information. However, land forces, by virtue of being “on the ground,” have a more refined grasp of physical terrain and local populations and partner forces than their counterparts in other domains. Therefore, they are uniquely situated to understand the conflict’s political, cultural, historical, geographical, and human characteristics.64 The importance of such context in target selection cannot be overstated.65 This knowledge facilitates the accurate identification of the adversary’s center of gravity, and thus enhances the selection and prioritization of individual targets.

3.2 Unique land-based capabilities for target engagement

While tactical land units do nominate targets within their area of operations, in practice their primary focus is on phase 5 of the joint targeting cycle—mission planning and force execution. In terms of the means available to the joint force commander to engage targets, the two unique capabilities that land forces contribute are field artillery and ground forces.

The joint force relies heavily on the use of modern field artillery due to its portability and flexibility on the battlefield.66 Field artillery encompasses indirect fire cannon, surface-to-surface missile launchers, and guided multiple-launch rocket systems.67 These weapons vary in their precision and the physical radius of their (p.311) effects, thereby giving commanders a range of options when matching weapons to the target.68

Though historically viewed as imprecise, artillery is increasingly accurate and effective. Today, it can be used for precise strikes against targets at extended ranges. Field artillery is especially useful in situations where other weapon systems cannot be used without considerable risk to the attacker’s forces. For example, consider a case in which the joint force commander prioritizes the destruction of an enemy’s air defense system, but target-area defenses pose an unacceptable level of risk to air assets. In such a case, the target might be struck instead with long-range, precision-guided artillery fires from a position of relative safety, potentially up to 300 kilometers away.69 Although less accurate than other weapons, area-fire munitions such as high-explosive cannon fire can prove useful as well. In particular, they are frequently employed to suppress enemy fire and deny terrain because such weapons provide rapid and sustained fire that cannot be achieved with precision munitions.70

Ground forces likewise may engage targets. This is a particularly useful option in circumstances where other forms of attack would cause disproportionate injury to civilians or damage to civilian objects, or where there is a particular benefit to be gained from capturing, rather than killing, a human target.71 These operations are tactically planned by those who will carry them out. The planning results in a “concept of operation” (CONOP) that is presented to the appropriate commander for approval.72 CONOPs typically include troop insertion and extraction plans, a joint fire support plan (including close air support),73 and a plan to minimize the risk to civilians. The CONOP process categorizes operations according to levels of risk: the higher the risk, the higher the level of seniority at which it must be approved. Risk to one’s own forces, risk of injury to civilians and damage to civilian objects, potential political repercussions, the time available for planning, and resource requirements are factored into the assessment of risk level.74 Whatever the seniority of the officer authorized to approve the mission, he or she will be supported with legal advice in order to understand the operation’s compatibility with the rules of engagement and, most importantly, the law.

(p.312) Positive identification of targets is essential in both deliberate and dynamic targeting. In this regard, land forces are often ideally placed to identify targets on the battlefield in order to support other platforms, such as aircraft. Tactical land forces deploy with a range of personnel trained in day or night target acquisition, such as laser-ranging and laser-designating to support surface-to-surface or air-to-surface strikes.75 These personnel include forward observers and joint terminal attack controllers (JTAC).76

3.3 Actions during unplanned engagements with the enemy

Ground forces can encounter the enemy at any time, whether on patrol or in their operating bases. In today’s complex operating environment, such unplanned engagements are routine. Accordingly, support platforms, including on-call aircraft, are typically available to respond as required.77 These troops-in-contact situations stand in contrast to the deliberate or dynamic targeting processes, in which decisions are taken from the safety of an operations center with the benefit of extensive advice and situational information.78 The authority to support forces engaged in unplanned engagements is usually granted to aircrew and other weapon operators under the terms of their rules of engagement.

When directing supporting aircraft, artillery, or other units sent to assist, forward observers and JTACs often work under fire as they gather and communicate information about the location of targets, own forces, and other entities such as civilians and civilian objects in the target area. These are stressful, fast-paced events, in which adversaries are frequently intermingled with both civilians and one’s own forces. Despite the urgency and complexity of the situation, those executing support missions retain responsibility for compliance with the law, in particular the obligation to take precautions in attack in order to minimize injury to civilians and damage to civilian objects. Although the situation may be desperate, this fact “does not remove the aircrews’/JTACs’ responsibility to avoid civilian and friendly troop casualties.”79 Such decisions are typically taken without the benefit of on-hand legal advice, thereby highlighting the need for pre-deployment training that includes clear guidance on the law.

4. Targeting in the Maritime Domain

Maritime operations implicate many of the targeting issues posed by aerial and land targeting and employ many of the same processes. The operational environment, (p.313) however, is somewhat unique. While underway, naval forces are operational around the clock, and are expected to respond to all threats at all times. Additionally, operations may be conducted in international waters, where states uninvolved in a conflict enjoy the right to continue peacetime activities such as shipping, and where the possibility of surprise attack is especially acute. Moreover, certain activities that may involve a form of targeting, such as blockade or visit and search, are unique to the maritime environment.

The laws and policy governing United States naval forces (which include both Navy and Coast Guard assets) require that all naval warfare operations be conducted in accordance with international law,80 particularly the law governing naval warfare. This section examines how legal concerns are functionally applied to naval targeting operations in the maritime domain.

4.1 Key organizational and functional elements in maritime targeting

The joint force maritime component commander (JFMCC) “wields sea power in support of the joint force commander’s objectives.”81 Although the individual appointed and the forces attached vary depending on the mission, a fleet82 commander typically serves as the JFMCC and controls various task forces,83 most notably the afloat Carrier Strike Group (CSG)84 and the Amphibious Ready Group/Marine Expeditionary Unit (ARG/MEU). The JFMCC’s primary responsibilities in the joint targeting cycle are to manage intelligence collection assets (which inform the selection of targets and the timing of targeting operations); nominate targets to the joint force commander, particularly those that exceed the maritime component commander’s organic capabilities or operational boundaries; plan operations; engage targets; and provide input during the post-operation assessment process.85 In the maritime domain, the work required to support these functions takes place in the Maritime Operations Center (MOC).

(p.314) The JFMCC uses the MOC to control assigned forces. It is also the hub for coordinating support with other component commanders. Permanent MOCs are located at the respective US naval fleet headquarters (Third Fleet in San Diego, California; Fourth Fleet in Mayport, Florida; Fifth Fleet in Manama, Bahrain; Sixth Fleet in Naples, Italy; and Seventh Fleet in Yokosuka, Japan).

A highly flexible construct, the MOC is both a planning and execution mechanism adaptable to particular missions and operational environments.86 Within the MOC, cross-functional teams are formed to manage various tasks. As it relates to the targeting process in the maritime domain, critical teams within the MOC include the Maritime Intelligence Operations Center (MIOC),87 the Current and Future Operations Cells (COP and FOP),88 and the Fires Element (FE).89 Fleet Staff Judge Advocates serve in the MOC and have a position on its “watch floor,” a full-time, fully manned command center that monitors all ongoing operations.

4.2 The targeting process in the maritime operational domain

As in the other domains, maritime deliberate targeting is functionally modeled on the joint targeting cycle.90 It is designed both to develop targets within the maritime area of operation that can be prosecuted with organic assets and to identify those that are to be nominated to the joint force commander.91 In maritime operations, typical deliberate targets include enemy naval command and control infrastructure, coastal defense systems, ballistic missile equipment, mine storage facilities, vessels in port, and amphibious assembly areas.

The MOC Fires Element plays a central role in the maritime targeting process. The FE is a multi-discipline entity composed primarily of specialists in military intelligence, operational planning, and weapons systems. It (a) coordinates the development of the maritime commander’s “targeting guidance, intentions, and risk tolerance”; (b) compiles and prioritizes maritime target nominations; (c) forwards those maritime target nominations to the joint force commander; (d) synchronizes the maneuver of maritime forces in support of targeting operations (generally in the form of a “tasking order”); (e) coordinates the execution of targeting operations with other component commanders and the joint force commander; and (f) monitors the execution of the operation, or “strike.”92

During the first three phases of the joint targeting cycle, the FE analyzes the JFMCC’s guidance and operational objectives. This includes identification and development of targets that meet those objectives, as well as matching appropriate “effects” to targets.93 For instance, a maritime operational objective might be to ensure that (p.315) the maritime area of operations remains clear of enemy mines. An appropriate effect to meet this objective could be ensuring that enemy vessels do not leave port, so that they are unable to mine the area. A tactic to achieve this effect could be to target the vessels. During this process, all viable alternative tactics are considered.

The FE (in coordination with subordinate tactical commands) is additionally responsible for vetting and validating targets and nominating them to the joint force commander.94 Nominated targets may be engaged by either maritime or non-maritime means, such as through the use of air platforms.95 The maritime component commander may also conduct a separate process for prioritizing and engaging targets within the maritime domain.96

At times, the sole role of the JFMCC in deliberate targeting is as a force provider to the joint force commander, who engages targets identified, developed, and nominated by other component commanders. For example, the joint force commander may decide to conduct an airstrike on an inland enemy command-and-control complex. Though not a conventional maritime target, tactical aircraft may be launched from a warship and have their control transferred, or “chopped,” to the JFACC. In this case, the JFMCC is considered the “supporting” commander.

At other times, the JFMCC will be the operational commander in a targeting operation. For instance, in anticipation of ground or amphibious operations, the joint force commander might want to first establish air superiority over a particular area. If an integrated air defense system (IADS) that threatens the joint force commander’s air assets is located along the coast, he or she could direct the JFMCC to suppress the IADS. The JFMCC might decide, for operational reasons or because it is necessary in order to minimize injury to civilians or damage to civilian objects, to use embarked Marines or SOF to conduct a raid on the IADS instead of conducting an airstrike. In such a scenario, the JFC may keep the JFMCC in command of the entire targeting operation.

4.3 Maritime dynamic targeting and the uniqueness of the maritime domain

The fluid nature of the maritime domain means that many targets can only be engaged through the dynamic targeting process. In particular, maritime dynamic targets often require a rapid response because maritime forces are located in waters in which other vessels that may pose an immediate threat operate. Moreover, ships are by nature mobile and therefore the opportunity to engage them may be lost if action is not quickly taken. To accommodate these realities, the JFMCC may delegate dynamic targeting authority to subordinate tactical maritime commanders.

(p.316) The law of naval warfare includes legal rules unique to targeting in the maritime environment. Of particular importance are those applicable to the capture and, in some circumstances, destruction of merchant shipping. While civilians and civilian objects are generally protected in the maritime domain as they are on land and in the air, the importance of maritime trade to an adversary’s war effort has led to the development of specific rules according to which forces may intercept merchant vessels that act in support of the enemy. For instance, enemy merchant shipping may be attacked if it resists capture, if it is sailing under the protection of a convoy, and in certain other specified circumstances.97 Neutral merchant vessels may be subject to capture, and sometimes destruction, if they meet certain criteria, such as the carriage of contraband or the breach of a blockade.98

5. Targeting in the Cyber Domain

Utilization of computers and information networks to aid the prosecution of warfare is nothing new. However, cyberspace is now considered a warfighting domain on par with the air, land, and sea.99 Initially a contentious subject, broad consensus exists that international humanitarian law applies in principle to cyber operations conducted in the context of an armed conflict, although how it applies to particular types of cyber operation remains subject to debate.100

The term “cyber operations” encompasses only those operations in which the primary purpose is achieving objectives in and through cyberspace.101 For example, an air-to-ground strike that destroys a server farm and has an effect in cyberspace would not be considered a cyber operation because the strike occurred through the air, not cyber, domain of operations. That said, kinetic strikes that have an effect in cyberspace should be coordinated to reconcile potential impacts on cyber operations that are underway. The joint force commander should view cyber operations through the same lens as more traditional military capabilities, that is, as a tool by which an effect can be applied against an operational requirement utilizing the basic tenets of targeting doctrine. The JFC should also bear in mind the potential for cyber operations to create effects across various domains.

Joint and Combined TargetingStructure and Process

Fig. 13.2 Operational Domain Relationships102

(p.317) The basic joint doctrine that applies in other domains governs the cyber targeting process. For example, the joint operational planning process, which utilizes the six-phase targeting cycle, provides the framework for planning cyber operations.103 Unfortunately, the particulars of how cyber targeting takes place remain almost entirely classified. To further complicate matters, states rarely acknowledge the extent of their cyber capabilities or explain their positions on the application of the law to them. Open-source discussion of targeting in the cyber domain therefore lacks detail and remains somewhat speculative.

Cyber operations include the denial of access to or the degradation, disruption, destruction, or manipulation of the adversary’s information systems or networks in a manner that supports the joint force commander’s objectives.104 Many cyber targets are rather conventional in the sense of causing an effect on the battlespace. For example, if the joint force commander wants to shut down communications between an enemy’s C2 nodes, a cyber tool or weapon may be just as effective as a kinetic attack, and may avoid placing one’s own forces or civilians’ lives at risk.

Such operations differ from most other types of engagement in that a physical presence by cyber operators and military equipment within the theatre of operations is not required. Moreover, they offer an option that is capable, in some instances, of achieving objectives with less physical destruction than their kinetic counterparts.105 Cyber (p.318) operations are also unusual in the extremely broad geographic range over which they may exert effects. In light of their uniqueness, cyber operations necessitate a high level of interagency and intergovernmental deconfliction, as well as a sufficient level of approval to ensure appropriate consideration of such matters as their foreign policy implications.106

These and other factors have resulted in complicated command and control structures for cyber operations.107 In the United States, cyberspace is not solely the purview of any one military service. Rather, each service maintains cyber forces to operate in cyberspace. The synchronization of these forces is assigned to United States Strategic Command and is primarily executed through its subordinate command, United States Cyber Command.108 Those cyber operations that are conducted under the authority of a regionally based joint force commander (and where the effects of that operation will occur inside the geographic commander’s Area of Operations) are typically conducted through coordination with Cyber Command.

Cyber targeting requires an understanding of the system to be targeted, such that its vulnerabilities can be exploited.109 Just as a targeteer working in the air domain has to understand the working of a petroleum production facility to determine the most logical weapon for a kinetic strike, an understanding of an entire cyber network is necessary to ensure that a cyber strike creates its intended effects and to limit unwanted collateral effects. An additional factor cyber targeteers must take into account is the potential to affect friendly networks due to the first, second, or third-order effects of offensive cyber operations.110

The planning process for cyber operations is becoming fully integrated into the overall joint targeting process,111 including the development of tools for weaponeering cyber operations and for assisting commanders in making determinations relevant to the lawfulness of a particular attack, such as an operation’s effect on civilian systems.112 In most US military operations, cyber planning on behalf of the regional combatant commander is accomplished through the Cyberspace Support Element (CSE), a forward component of United States Cyber Command.113 The CSE takes the JFC’s targeting priorities, determines which desired effects can be achieved through cyber operations, and refers potential targets back to planners at United States Cyber Command for deconfliction and execution through their assigned service components.114

(p.319) Legal considerations common to the other domains also govern cyber operations.115 One significant legal challenge is determining expected injury to civilians and damage to civilian objects, a task required in order to meet the requirements of proportionality and precautions in attack.116 For example, the targeting of dual-use computer networks necessitates an assessment of likely effects on those parts of the network that are distinct and have no military significance, but that are linked to the targeted military-use portion of the network.117 Other legal concerns include the determination of when cyber operations constitute “attacks” for the purpose of applying rules on conducting attacks; assessment of the feasibility of measures that might avoid civilian harm; and consideration of the legal implications of using civilian personnel in support of cyber operations.118

6. Coalition Targeting and Legal Interoperability

While the armed forces of a state still sometimes act alone, coalitions are pervasive in modern warfare.119 They may be ad hoc, such as the multinational force that invaded Iraq in 2003, or reliant upon existing structures and organizations, like NATO. Whatever the composition, partners must be able to operate and engage in conflict effectively alongside one another, an attribute referred to as “interoperability.”120

An important component of interoperability is “legal interoperability.”121 Recognizing that states may have different legal obligations, or may interpret their obligations differently, measures must be put in place to manage these differences, so as to protect the interests of individual states and prevent the violation of national obligations while not detracting from the effectiveness of the combined operations. (p.320) This section will briefly examine why differences emerge between coalition partners, before describing some of the mechanisms used to achieve legal interoperability.

6.1 Why differences arise between coalition members on questions of law

Generally, states bear responsibility in international law for the actions of their own armed forces,122 whether those forces act alone or in a coalition, and whether or not they follow the orders of a commander of a different nationality.123 Where part of a state’s armed forces is placed at the disposal of an international organization, such as the UN or NATO, it is only if that organization exercises effective control over the elements concerned that conduct may be attributable to it, rather than to the sending state.124 Even in that instance, the sending state may, in certain circumstances, still bear some responsibility for the actions of its own forces.125

Although all states are party to the four Geneva Conventions of 1949 and a substantial body of international humanitarian law undoubtedly applies universally as a matter of customary international law,126 states’ obligations relating to the conduct of their armed forces may differ significantly. Members of a coalition may have differing treaty obligations,127 and may differ in their opinions as to the existence of particular (p.321) customary norms.128 Even where states are subject to the same obligations, they may take different positions on the meaning, scope, or applicability of a particular rule or legal regime. Furthermore, states may have varying tolerance for the risk of being held responsible for breaches of their legal obligations, or for members of their armed forces being found individually liable for crimes under domestic or international law.129

Differences between states on questions of law extend beyond the merely academic and can have important practical consequences for the conduct of coalition operations. Consider, for example, the United States’ view that the category of lawful military objectives includes those that make an effective contribution to the war-sustaining, as well as the warfighting, capability of an adversary.130 This is a controversial position,131 broader than that of many states, including other NATO members.132 Its application in a targeting context may mean that there are economic targets that the United States believes to be lawful military objectives, but which coalition partners consider to be civilian in nature. According to the latter view, not only must such objects not be targeted, but they must be weighed as collateral damage in any proportionality calculation. Numerous similar examples exist in the realm of international humanitarian law alone,133 even before considering differing positions with respect to other bodies of law, such as human rights law.134

Such differences do not prevent states from working together as part of a coalition.135 However, respecting states’ individual obligations may be in tension with the requirement for coalition members to “operate together coherently, effectively and efficiently.”136 While coalitions will necessarily differ in their structure and composition, unity of effort is achieved through integration, to some extent, of command and control functions.137 As a result, the decision to employ forces for a particular purpose (p.322) may be taken by a command structure partly or wholly drawn from the armed forces of a different state than that of the assets and individuals used to execute the mission. In the particular context of targeting, the decision to nominate a target and authorize its engagement, including the determination of proportionality, may be taken by a coalition, rather than national, chain of command. Without mechanisms to take account of different states’ positions, this situation would obviously risk members of a state’s armed forces being directed to take action contrary to that state’s own view of its legal obligations.

6.2 Mechanisms for achieving legal interoperability

Various mechanisms exist to reconcile state positions and interests in the design of the operation, as well as in its execution.138 In setting the initial parameters for an operation—in particular, the combined OPLAN and ROE—the options open to coalitions have been described as either a “maximalist” or “minimalist” approach.139 According to a maximalist approach, the common parameters for an operation would be set according to the most restrictive rules drawn from across the coalition. While this would mean that the OPLAN and ROE can be applied equally by all coalition members, it restricts states’ freedom to act to the full extent of their perceived legal authority, since each member of the coalition will be adhering to the lowest legal common denominator. Where there exist significant differences between states on questions of law, this may be a significant issue.

By contrast, the minimalist approach is to set the common parameters for the operation according to the least restrictive rules from across the coalition, with individual states then further restricting the actions of their respective armed forces through additional national instructions. This has the advantage of maximizing states’ ability to act to the full extent of their perceived legal authority, but means that each member of the coalition will be participating according to different rules, thereby adding a layer of complication to the operation.

NATO practice arguably falls between the two approaches. While NATO operates on the basis of a consensus of its members and will set the parameters of an operation, including ROE, on this basis, it has developed a process for its members to caveat their agreement.140 These caveats, which usually amount to prohibitions of particular activities in specific circumstances, are formally reported to NATO and visible to coalition commanders, thereby mitigating some of the potential confusion that may arise from (p.323) different states’ armed forces fighting according to different rules. Unfortunately, the caveats declared by states sometimes fail to express the full extent to which they differ from the coalition position. When this occurs, differences, particularly in the interpretation or application of particular rules, may not be captured by the formal caveat process.

Account must be taken of any such differences between coalition members in the execution of an operation. Three aspects of this requirement are of particular importance. First, it is essential that coalition commanders know and understand where differences lie, in order that they can assign forces to tasks efficiently and effectively. For example, a commander needs to know if only some states permit their forces to execute a certain type of mission, or how the forces of each state will respond to a particular situation. To the extent feasible, these differences are typically recorded in a matrix containing each state’s position on a particular type of mission, target, munition, or anything else relevant to the execution of the operation. The matrix is made available to the commander’s staff and used to inform planning and mission execution.

Second, individual national positions on questions of law must be incorporated into the process of authorizing particular missions. This may be achieved through the use of “red-card” holders:141 Individuals empowered to provide or withhold consent for the use of a particular state’s assets, for example its aircraft, to conduct a particular mission. Individual red-card holders may play a key role in the overall command structure of the coalition; however, when providing consent for their state’s assets to be used for a particular mission, their responsibility is to apply the instructions provided by their national government. Therefore, although a coalition chain of command will typically adopt a targeting methodology broadly similar to the joint targeting cycle described previously,142 the requirement for national consent will necessitate a parallel authorization process.

Precise requirements differ from operation to operation, but in practice the red-card holder for a particular state is typically a senior officer physically located in one of the coalition’s headquarters. Once a mission—subject to either the deliberate or the dynamic targeting process—reaches a certain point in the coalition’s approval process, it will be submitted in parallel to the holders of the red cards for each nation whose assets may be used. Final execution by a particular state’s assets will then depend on authorization from both the coalition chain of command and the relevant red-card holder.

In order for red-card holders to apply their red cards appropriately, they require ready access to national legal and policy advice throughout an operation, as well as reach-back to their national authorities, particularly in the case of highly sensitive (p.324) missions.143 They will also require access to all of the information—including target intelligence, as well as the proposed means and method of execution and anticipated collateral damage—that they need to make an independent decision on the lawfulness of the proposed task. While red-card holders may sometimes be physically remote from the coalition chain of command, these information requirements mean that they are ideally collocated, like coalition commanders, with the coalition’s targeting cell. In NATO, they are typically located in a Combined Air Operations Centre, essentially the coalition’s equivalent to the Air Operations Center described above.

Finally, the involvement of national red-card holders is alone insufficient to ensure that states’ legal positions are reflected in the execution of authorized missions, or during unplanned engagements. Considerable responsibility often rests with pilots and others on the front line. Consequently, individual members of a state’s armed forces need to understand and apply their own national restrictions, as well as coalition direction. Generally, this means that individuals must act, in any particular situation, according to the more restrictive of two sets of rules—those issued by the coalition and those issued by their national authorities. It is important that commanders appreciate these differences, so that they understand how the forces of different states will react in particular situations.144

In the modern world, states must be able to fight alongside each other. Reconciling national positions on questions of law with the need to execute coherent, effective, and efficient coalition operations is a complicated task that must be achieved at several levels. In this process, states’ interests must be reflected in setting the parameters for a coalition operation. The practical effect of this requirement is that to maintain operational flexibility, coalition members will often fight according to different rules. Managing such differences in the heat of conflict requires situational awareness of national restrictions, as well as efficient and effective mechanisms in both planning and executing missions.

Notes:

(*) The views expressed in this chapter are those of the authors in their personal capacity and do not necessarily represent any position of the governments of the United States or United Kingdom.

(1.) US, Chairman, Joint Chiefs of Staff (CJCS), Joint Publication (JP) 1-02, “Department of Defense Dictionary of Military and Associated Terms” (February 2016) 236

(2.) The strategic level is that at which a nation determines its objectives and allocates its resources to achieve them. At the operational level, campaigns and major operations are planned, conducted, and sustained to achieve strategic objectives. Individual battles and engagements are then planned and executed at the tactical level. JP 1-02 (n 1) 176, 227, 234.

(3.) US, CJCS, JP 3-60, “Joint Targeting” (January 2013) I-6. “Domains” refers to the air, land, sea, and cyber environments.

(4.) JP 3-60 (n 3) vii–ix.

(5.) See, for example, North Atlantic Treaty Organization (NATO) “Allied Joint Doctrine for Joint Targeting” (AJP) 3.9 (April 2016).

(6.) “ ‘Attacks’ means acts of violence against the adversary, whether in offence or defence.” Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (concluded June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (Additional Protocol I) Art 49(1).

(7.) The term “joint” refers to United States military operations in which elements of two or more military services participate, whereas the terms “combined” and “coalition” refer to military operations in which the forces of two or more States operate together. JP 1-02 (n 1) 40, 121. “Joint force commander” is a general term denoting the officer in command of a joint force. JP 1-02 (n 1) 125.

(8.) JP 3-60 (n 3) I-10.

(9.) Ibid II-1–II-2.

(10.) Ibid II-2–II-3.

(11.) Ibid II-3.

(12.) Ibid II-4.

(13.) Ibid II-4–II-5.

(14.) An operation plan is a “complete and detailed joint plan,” which sets out the joint force commander’s desired end state, her objectives, and how she will achieve them, together with the supporting information the force will need for its implementation. JP 1-02 (n 1) 177.

(15.) The operation plan will typically include a section or annex dealing specifically with the law and its application to the operation.

(16.) For example, whether a situation amounts to an armed conflict and, if so, whether it is an international or non-international armed conflict.

(17.) In particular, this is likely to include additional policy direction, which may act as a further restraint on permitted action, over and above the relevant legal obligations. This might include, for example, policy direction prohibiting attacks that are expected to cause more than a defined level of injury to civilians or harm to civilian objects, even where such an attack would be lawful according to the rule of proportionality.

(18.) n 1Alan Cole et al, Sanremo Handbook on Rules of Engagement (International Institute of Humanitarian Law 2009) 2

(19.) This understanding will be important in considering the proportionality of an engagement, according to which it is prohibited to conduct “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Additional Protocol I (n 6) Art 57(2)(iii).

(20.) JP 3-60 (n 3) II-5-II-13.

(21.) n 1Carl Von Clausewitz, On War (Michael Howard and Peter Paret eds, Princeton University Press 1984) 595–96

(22.) “Targeteers” is an informal term widely used to describe the specialist officers responsible for the targeting process.

(23.) JP 3-60 (n 3) II-11. The target systems are collections of components that are related in their performance of a specific function. For example, an adversary’s military command and control structure is a target system composed of numerous components, including both people and objects.

(24.) Additional Protocol I (n 6) Art. 57(2)(a)(i).

(25.) The joint targeting cycle involves a significant administrative effort to track potentially large numbers of targets at different stages of the process. On target list management and the definitions of the various target lists, see JP 3-60 (n 3) II-11–II-12.

(26.) Ibid II-13–II-16.

(27.) The precise definition is “[t]‌he process of determining the quantity of a specific type of lethal or nonlethal means required to create a desired effect on a given target.” JP 1-02 (n 1) 258.

(28.) JP 3-60 (n 3) II-14, II-18.

(29.) Additional Protocol I (n 6) Art 57(2)(ii).

(30.) JP 3-60 (n 3) II-16-II-20.

(31.) Additional Protocol I (n 6) Art 57(2)(ii) and 57(3).

(32.) Ibid Art 57(2)(b).

(33.) JP 3-60 (n 3) II-20–II-30.

(34.) JP 3-60 (n 3) II-21.

(35.) Additional Protocol I (n 6) Art 57(2)(a)(i).

(36.) Combat identification is defined as “[t]‌he process of attaining an accurate characterization of detected objects in the operational environment sufficient to support an engagement decision.” JP 1-02 (n 1) 38.

(37.) JP 3-60 (n 3) II-30.

(38.) Battle damage assessment is “[t]‌he estimate of damage composed of physical and functional damage assessment, as well as target system assessment, resulting from the application of lethal or nonlethal military force.” JP 1-02 (n 1) 23.

(39.) JP 3-60 (n 3) II-31.

(40.) US CJCS, JP 3-30, “Operational Procedures for Air Operations Center” (February 2014), III-18–III-26.

(41.) JP 3-60 (n 3) III-16–III-17.

(42.) The AOC is the senior element of the Theater Air Control System (TACS), which is composed of airborne and ground-based command and control elements. Airborne elements of the TACS (AETACS) are the Airborne Warning and Control System (AWACS) and the Joint Surveillance Target Attack Radar System (JSTARS). The ground elements are the AOC, Control and Reporting Center (CRC), Air Support Operations Center (ASOC), and Tactical Air Control Party (TACP). The AOC is responsible, through the promulgation of theater-wide direction and guidance, for the effective integration of TACS elements. JP 3-30 (n 40) II-8–II-9.

(43.) The AOC is generally divided into five divisions: Strategy; Combat Plans; Combat Operations; Intelligence, Surveillance, and Reconnaissance; and Air Mobility. JP 3-30 (n 40) app E.

(44.) JP 3-30 (n 40) III-22.   

(45.) Ibid III-22–III-23.   

(46.) Ibid III-23–III-24.

(47.) The air tasking order is “[a]‌ method used to task and disseminate to components, subordinate units, and command and control agencies projected sorties, capabilities and/or forces to targets and specific missions.” JP 1-02 (n 1) 10.

(48.) JP 3-30 (n 40) III-24–III-25.

(49.) This reflects the obligation to cancel or suspend an attack “if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Additional Protocol I (n 6) Art 57(2)(b).

(50.) JP 3-30 (n 40) III-24.

(51.) Ibid III-25. A number of aircraft may be assigned to provide these “on-call” functions.

(52.) Ibid III-25–III-26.

(53.) US CJCS JP 3-31, “Command and Control for Joint Land Operations” (February 2014) II-1.

(54.) Ibid “Joint Task Force Headquarters” (July 2012) VII-3. Subordinate land units, such as battalion task forces or brigade combat teams, will normally establish forward tactical operations centers (TOC) to accomplish the same in their respective area of operations. Subordinate operation centers coordinate closely with the JOC, often with liaison officers serving there. While it is common for Special Operations Forces to have at least a legal advisor at battalion level, conventional forces typically have a robust operational law team only at brigade-level TOCs and above. See generally US Army Field Manual (FM) 1-04, “Legal Support to the Operational Army” (January 2012).

(55.) Ensuring that land operations are coordinated with air and maritime operations enables forces from different organizations or commands to work toward common objectives. This cooperation is known as “unity of effort.” JP 1-02 (n 1) 252.

(56.) JP 3-31 (n 53) II-2.

(57.) The functional areas are command and control, fires, intelligence, logistics, movement and maneuver, and sustainment. US CJCS JP 3-0 “Joint Operations” (August 2011) III-1.

(58.) JP 3-60 (n 3) A-7.

(59.) “Fires” refers to the use of weapon systems or other actions to achieve desired effects. JP 1-02 (n 1) 86. It is a term used in particular in the land domain.

(60.) The JFLCC relies on the Army or Marine Corps to act as the primary agency responsible for establishing a fires cell or fires coordination center to synchronize all joint fires throughout the area of operations. JP 3-31 (n 53) IV-13.

(61.) JP 1-02 (n 1) 86. Fires experts also operate in units subordinate to the JFLCC.

(62.) “Organic” assets are those permanently assigned to a particular unit, rather than being drawn from elsewhere in the force.

(63.) JP 3-31 (n 53) IV-13.

(64.) US Army, TRADOC Pamphlet (PAM) 525-3-1, “The US Army Operating Concept: Win in a Complex World 220-2040” (October 2014) 8–10.

(65.) It also enables land forces to identify objects in the area of operations for addition to the No Strike List (NSL) or Restricted Target List (RTL).

(66.) Field artillery assets are generally not limited by terrain or weather to the extent of air-to-surface platforms. US Army Field Manual (FM) 3-09, “Field Artillery Operations and Fire Support” (April 2014) 1-1.

(67.) Indirect fire differs from direct fire in that there is no direct line of sight between the shooter and the target. Thus, an observer (physical or through sensors) is generally required for indirect fires. Ibid 1-1.

(68.) Precision munitions have a circular error probability (CEP) of less than 10 meters; near-precision from 10 to 50 meters; and area fire munitions greater than 50 meters. CEP is the radius of a circle, centered on the aimpoint, within which 50 percent of the rounds fired will land. Ibid 2-24.

(69.) Ibid 2-25.

(71.) Both the United States and the United Kingdom’s forward-looking operating concepts forecast future conflicts moving into urban areas, and predict that, “[b]‌ecause urban environments degrade the ability to target threats with precision, joint operations will require land forces capable of operating in congested and restricted urban terrain … to defeat those threats.” PAM 525-3-1 (n 64) 12; UK Chiefs of Staff, Joint Concept Note (JCN) 2/12, “Future Land Operating Concept” (May 2012) 2-2.

(72.) The CONOP process is used extensively in current operations as a “method for deconfliction, synchronization, assigning assets, and demonstrating how the operation is nested” with the higher commander’s objectives. Edward Sanford, “Optimizing Future Operations for Special Forces Battalions: Reviewing the CONOP Process” (Thesis, Naval Postgraduate School 2013) 1.

(73.) Close air support (CAS) is an “air action by fixed-wing and rotary-wing aircraft against hostile targets that are in close proximity to friendly forces and requires detailed integration of each air mission with the fire and movement of those forces.” US CJCS JP 3-09.3, “Close Air Support” (November 2014) xi.

(74.) Sanford (n 72) 12.

(75.) US, Army, Training Circular (TC) 3-09.31, “Fire Support Training for the Brigade Combat Team Commander” (November 2013) 1-9, 10.

(76.) A forward observer operates with frontline troops and is trained to call for and adjust naval and ground gunfire, whereas a JTAC, also operating with frontline troops, is certified to guide attacking aircraft onto a target. JP 1-02 (n 1) 94, 133.

(77.) This may include diversion of aircraft from the activity directed in the air tasking order.

(78.) For those involved with the employment of close air support, troops-in-contact (TIC) means “friendly ground forces receiving effective fire.” JP 3-09.3 (n 73) III-36.

(79.) Ibid.

(80.) US Navy, Secretary of the Navy Instruction (SECNAVINST) 3300.1C, “Law of War” (May 2009). See also Navy Regulations, 1990, Article 0705, Observance of International Law; U.S. Navy, U.S. Marine Corps and U.S. Coast Guard, NWP 1-14M/MCWP 5-12/COMDTPUB P5800.7A, “The Commander’s Handbook on the Law of Naval Operations” (2007) 6-1.

(81.) US Navy, Navy Tactics, Techniques, and Procedures (NTTP) 3-32.1, “Maritime Operations Center” (April 2013) 17.

(82.) A “fleet” is an organization of ships, aircraft, Marine forces, and shore-based fleet activities under a commander who may exercise operational as well as administrative control. JP 1-02 (n 1) 85. A “numbered fleet” (for example, the Third Fleet in San Diego, California) is a major tactical unit of the Navy immediately subordinate to a major fleet command (for example, the US Pacific Fleet) and comprises various task forces, elements, groups, and units for the purpose of prosecuting specific naval operations. JP 1-02 (n 1) 169.

(83.) A “task force” is a component of a fleet organized by the commander of a task fleet or higher authority for the accomplishment of a specific task or tasks. JP 1-02 (n 1) 237.

(84.) A “carrier strike group” is a standing naval task group consisting of a carrier, embarked air wing, surface combatants, and submarines operating in mutual support with the task of destroying hostile submarine, surface, and air forces within the group’s assigned operational area and striking at targets along hostile shore lines or projecting power inland. JP 1-02 (n 1) 28.

(85.) JP 3-60 (n 3) III-2, C-1.

(86.) NTTP 3-32.1 (n 81) 1-3. Examples of missions in the maritime include direct engagement with enemy fleet forces, conducting a blockade of an enemy port, prosecuting operations ashore launched from the sea, or acting as a force provider of tactical aircraft to the joint force air component commander.

(87.) Ibid 2-1.

(88.) Ibid 3-3, 3-8.

(89.) Ibid 3-15–3-16.

(90.) Ibid E-3.

(91.) While the focus of maritime deliberate targeting is on targets within the maritime area of operation, as part of a joint force, maritime commanders may nevertheless recommend targets outside of the maritime area of operations that are better prosecuted with assets and capabilities that may not be under the direct control of the maritime commander (for example, an inland airfield outside the effective range of the maritime component commander’s organic assets, but that can easily be targeted with Air Force strategic bombers).

(92.) NTTP 3-32.1 (n 81) E-3.

(93.) Ibid E-4–E-6.

(94.) Ibid E-6 (“Weaponing for each target is completed to the greatest extent possible during [target] development and should include many different weaponeering options considering all potential weapons and a variety of aimpoint solutions. Collateral damage estimation should also be done for each weaponeering solution. The SJA will conduct a legal review in conjunction with CDE, reviewing targets for LOAC and ROE/RUF considerations.”)

(95.) NTTP 3-32.1 (n 81) E-8.

(96.) Ibid.

(97.) NWP 1-14M (n 80), para. 8.6.6.2.

(98.) International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (CUP 1995) 26–27

(99.) US JP 3-12(R), “Cyberspace Operations” (February 2013), GL-4 (“Cyberspace. A global domain within the information environment consisting of interdependent networks of information technology infrastructures and resident data, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers”).

(100.) Michael N Schmitt (ed), Tallinn Manual on the International Law Applicable to Cyber Warfare (CUP 2013)

(101.) JP 3-0 (n 57) IV-3.

(102.) LeMay Center for Doctrine, Annex to JP 3-12(R), “Airpower Doctrine: Cyberspace Operations” 18.

(103.) JP 3-12(R) (n 99) IV-1.

(104.) Ibid II-5.

(105.) US Submission to the UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (2012-2013) 4 (“Cyber operations that result in non-kinetic or reversible effects can be an important tool in creating options that minimize unnecessary harm to civilians. In this regard, cyber capabilities may in some circumstances be preferable, as a matter of policy, to kinetic weapons because their effects may be reversible, and they may hold the potential to accomplish military goals without any destructive kinetic effect at all”).

(106.) JP 3-12 (R) (n 99) IV-12.

(107.) See ibid IV-8 for the US doctrinal cyberspace command and control construct.

(108.) JP 3-12(R), Airpower Doctrine Annex: Cyberspace Operations (n 102) 19. United States Cyber Command (USCYBERCOM) is the combatant command primarily responsible for planning and prosecuting US military cyberspace operations.

(109.) JP 3-60 (n 3) II-5.

(110.) JP 3-12(R) (n 99) IV-3.

(111.) JP 3-12(R) (n 99) II-9.

(112.) One such example is the Joint Capabilities Analysis and Assessment System (JCAAS). LeMay Center for Doctrine, Annex to JP 3-60, “Airpower Doctrine Targeting” 26.

(113.) JP 3-12(R) (n 99) IV-7   .

(114.) Ibid IV-9.

(115.) DoD Law of War Manual (n 100) 997.

(116.) JP 3-12(R) (n 99) IV-4.

(117.) Harold Hongju Koh, Legal Adviser, Department of State, “International Law in Cyberspace: Remarks as Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012),” reprinted in 54 Harv Intl L J Online (December 2012) 8 (“Parties to an armed conflict will need to assess the potential effects of a cyber-attack on computers that are not military objectives, such as private, civilian computers that hold no military significance, but may be networked to computers that are valid military objectives. Parties will also need to consider the harm to the civilian uses of such infrastructure in performing the necessary proportionality review”).

(118.) DoD Law of War Manual (n 100) para 16.5.

(119.) HM Government, National Security Strategy and Strategic Defence and Security Review 2015 (November 2015)

(120.) According to NATO doctrine, “The effectiveness of Allied forces in peace, crisis or in conflict, depends on the ability of the forces provided to operate together coherently, effectively and efficiently. Allied joint operations should be prepared for, planned and conducted in a manner that makes the best use of the relative strengths and capabilities of the forces which members offer for an operation. Interoperability of formations and units of a joint and multinational unit has three dimensions, technical (eg, hardware, systems,) procedural (eg doctrines, procedures) and human (eg language, terminology, and training).” NATO, Allied Joint Doctrine (AJP 01(D), 2010) para 0314.

(121.) The International Committee of the Red Cross (ICRC) describes legal interoperability “as a way of managing legal differences between coalition partners with a view to rendering the conduct of multinational operations as effective as possible, while respecting the relevant applicable law.” International Committee of the Red Cross, “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts” (31IC/11/5.1.2, 2011) 32–33.

(122.) Boris Kondoch and Marten Zwanenberg, “International Responsibility” in Terry D Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (2nd edn, OUP 2015)

(123.) Program on Humanitarian Policy and Conflict Research, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (March 2010)

(124.) Draft Articles on the Responsibility of International Organizations, Report of the International Law Commission on the Work of its Sixty-Third Session (26 April–3 June and 4 July–12 August 2011), GA, Official Records, Sixty-Sixth Session, Supplement No 10, UN Doc A/66/10 Art 7. On the application of this to the military, see Kondoch and Zwanenberg (n 122) s 30.04.

(125.) Kondoch and Zwanenberg (n 122) s 30.05.

(126.) The full extent and precise content of customary international humanitarian law remains subject to debate. However, the ICRC identified a significant corpus in its comprehensive survey, many rules of which are relatively uncontroversial. Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (CUP 2005). For a collection of critical views of the ICRC study, see Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007).

(127.) International Committee of the Red Cross, “State Parties to the Following International Humanitarian Law and Other Related Treaties as of 13-Jul-2016” (2016) <http://www.icrc.org/applic/ihl/ihl.nsf/xsp/.ibmmodres/domino/OpenAttachment/applic/ihl/ihl.nsf/5FE9C868227EDD1CC1257F330052D22D/%24File/IHL_and_other_related_Treaties.pdf> accessed 23 July 2016

(128.) John B Bellinger III and William J Haynes II, “A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law” (2007) 89 Intl Rev of the Red Cross 443

(129.) An important factor here may be the different enforcement mechanisms (such as human rights monitoring bodies and courts, as well as the International Criminal Court) to which states are subject through their treaty obligations.

(130.) DoD Law of War Manual (n 100) para 5.7.6.2.

(131.) William H Boothby, The Law of Targeting (Oxford University Press 2012) 106

(132.) Marten Zwanenberg, “International Humanitarian Law Interoperability in Multinational Operations” (2013) 95 International Review of the Red Cross 681

(134.) Beth Van Schaack, “The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change” (2014) 90 Intl L Stud 20

(135.) According to the Air and Missile Warfare Manual: “A State may participate in combined operations with States that do not share its obligations under the law of international armed conflict although those other States might engage in activities prohibited for the first State.” Air and Missile Warfare Manual (n 123) r 164.

(136.) AJP 01(D) (n 120) para 0314.

(137.) n 120Blaise Cathcart, “Command and Control in Military Operations” in Terry D Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (2nd edn, Oxford University Press 2015)

(138.) For a general discussion on the mechanisms available to coalitions, see the commentary to Air and Missile Warfare Manual (n 123) r 162.

(139.) Zwanenberg, “International Humanitarian Law Interoperability in Multinational Operations” (n 132) 700–3. The terms “maximalist” and “minimalist” are not always used in the literature, but they helpfully describe concepts at either end of the spectrum of available options.

(140.) According to NATO targeting doctrine, “Nations will always reserve the right to issue national targeting guidance in respect of specific operations. However, any generic national guidance should be communicated to NATO by the appropriate national representative at the political (NAC), military strategic (ACO), and operational (JFC) levels before the onset of, and during, any operation. Nations contributing capabilities for the prosecution of targets will provide refined guidance and national caveats for their employment as early as possible during the planning phase of an operation. This guidance should cover any national requirement for approving targets allocated for prosecution by that nation’s assets, including both the level of that approval and the method required to achieve it.” NATO, Allied Joint Doctrine for Joint Targeting (AJP 3.9, Edition A Version 1, April 2016) para 0309.

(141.) For a description of the red-card holder role according to NATO doctrine, see NATO, Allied Joint Doctrine for Air and Space Operations (AJP 3.3, Edition B Version 1, April 2016) para 2.2.1.

(142.) See, for example, AJP 3.9 (n 140) ch 2.

(143.) NATO doctrine states that “Individual nations will often authorize specific levels of delegated authority of collateral damage for an operation in accordance with their legal interpretation and policy constraints. This will be passed to a senior national representative, who receives support from national legal, policy and targeting advisors. The senior national representative refers any targets that fall outside their delegated authority back to their nation for clearance.” AJP 3.9 (n 140) para 0127.

(144.) Neil Brown, “Issues Arising from Coalition Operations: An Operational Lawyer’s Perspective” (2008) 84 Intl L Stud 225