The Law of Armed Conflict in Practice: Prima-facie Charges & New Defenses
J. Justin Boyd
19 May 2006
The nature of armed conflict has changed greatly since World War II. Military technology is vastly superior and more deadly. Communications and transportation capabilities have greatly increased. Military objectives now often focus on humanitarian needs and nation building. Old adversaries are now allies and new enemies fight guerilla and insurgent wars to overcome their great military disadvantages. There is, however, at least one thing that has changed little over the years, the Law of War.
The mechanism used to prosecute and convict a war criminal are based on the laws set up to govern the belligerent actions of two large land armies. But two armies fighting in open combat is rarely the seen in the modern world. Recent experience in Kosovo, Iraq and Afghanistan have shown that current conflict usually involves at least one insurgent guerilla group fighting a more powerful state. Many of the old laws fail to account for this new reality. As such, they fail to accomplish the primary purpose of limiting civilian casualties and property destruction.
If a new rule of law is to supplant the old, it must be cognizant of the new reality. It must allow for some insurgent actions while criminalizing others. Labeling the actions all insurgent groups as criminal will provide no incentive for groups to tailor their actions to prevent civilian deaths and property destruction. If all insurgent actions are illegal and subject to a military tribunal, then there are no boundaries for insurgents. One incentive that may promote restraint among an insurgent group, is to provide a defense to a war crime charge.
This is a discussion of one possible avenue for prosecution of war criminals and the defenses that a war crimes defendant may raise. Specifically, it will outline the charging of an insurgent captured by U.S. Forces in Iraq. First, is an outline of the sources of the applicable law and the formation of a prima facie war crime charge. Following that is a discussion of the some possible new defenses and ending with an analysis of some of the overall problems with the defenses.
I. The War Crime Statute
The War Crimes Act of 1996  is the source of law for the United States to charge a person with a war crime. This statute allows for the prosecution of any person, whether inside or outside the United States, who commits a war crime and the victims are US Citizens or members of the Armed Forces. To try a person under the statute, the court must obtain subject matter jurisdiction, which can be accomplished by charging the person with a war crime. Therefore, the first legal question to be answered is what is a war crime?
A. War Crimes & the Law of War
To understand what constitutes a war crime, it is helpful to understand the sources of law concerning them. War crimes are defined in a collection of international treaties, conventions and protocols, and in customary international law that together form a set of rules to govern warfare and armed conflicts. Included within these are laws on weapons, the conduct of warfare, and the treatment of civilians and prisoners of war. Together these rules combine to become what is known as either the Law of War or the Law of Armed Conflict (“LOAC”). Principal among this body of law, and most relevant to modern warfare are the 1949 Geneva Conventions (“Geneva Conventions”).
The Geneva Conventions contain a clause requiring the parties adopting the convention to abide by its rules even if their enemy does not. The LOAC also requires that parties to a conflict adopt certain practices in order to receive its protections. These protections include the proper care or prisoners of war and the privilege to kill during a combat operation. Generally, the practices required are to organize and identify openly as an armed force. Any force that adopts these practices receives belligerent status, the LOAC method of legitimizing a fighting force. Any fighting force that fails to adopt the practices is considered illegitimate, and in theory, is not afforded the protections of belligerent forces under the LOAC.
The question of what constitutes a war crime still remains. The War Crimes Act specifies what qualifies as a war crime: any conduct: 1) defined within the Geneva Conventions as a “grave breach”, 2) a violation of Common Article 3 of the Conventions, 3) prohibited by various articles of the Hague Convention, and 4) that kills or seriously injures civilians in violation of the prohibition against the use of mines, booby-traps and other devices. To determine the nature of the specific prohibited conduct, the conventions themselves must be analyzed, with an eye towards charging a suspected insurgent.
B. Relevant War Crimes
As stated in the introduction, this discussion examines charging a captured Iraqi insurgent. As such, only certain portions of the War Crimes Act are relevant. Common Article 3 of the Geneva Conventions relates to armed conflict of a purely internal and non-international nature. The Hague Convention is designed to restrict the methods and violence of large international opposing armies. Therefore, as against Iraqi insurgents neither Common Article 3 nor the Hague Convention are well suited, although they have been applied by international criminal courts. Both a grave breach of the Geneva Conventions and the use of booby-traps and mines constitute relevant war crimes.
The term “grave breach” is found in the Geneva Conventions and its definition is dependant on other related portions of the Conventions. First, to commit a grave breach, an act must be perpetrated against a certain protected class of people. Geneva Conventions III and IV contain certain protections for two classes of individuals. They are civilians not engaged in combat and armed combatants who are hors de combat. The first category applies non-combatants as defined under the Principle of Distinction.  The latter category applies to combatants who voluntarily surrender or are sick, wounded or no longer able to fight.
Second, after determining whether an action has been committed against a protected person, the nature of the action must be determined. Prohibited conduct includes the “wilful killing, torture or inhuman treatment [of protected persons]… not justified by military necessity” is a grave breach. The first act, willful killing without military necessity, is common murder and will be used to for the remainder of the discussion.
II. Prima Facie Charge
For simplicity sake, and to create a concrete example of prosecuting and defending a war crime, the focus here is on the charging for a grave breach of the Conventions. Specifically, the crime charged is that of a murdering an American civilian. There are plenty of insurgents who, if caught could be charged with murder as a war crime. For example, insurgents in Iraq have killed American civilians including peace activists and defense contractors. 
The example here is of a captured insurgent who killed a American defense contractor. The facts of the case are as follows: while engaged in a firefight with elements of the U.S. Army, an insurgent observed a person, later identified as a defense contractor, fixing a communications tower. The insurgent believed that the person was assisting the Army in establishing a communications link between the unit and its headquarters. Fearing that the communications link would be used to call in air strikes or reinforcements, the insurgent took aim and fired on the contractor, killing him. The Army forces on the scene returned fire and wounded the insurgent. After the insurgents were forced to pull back from the area, the Army captured the insurgent. The soldiers who captured him identified him as the person who fired upon and killed the contractor. After they reported this up the Army chain of command, the U.S. Army convened a military tribunal to try the insurgent as a war criminal for killing the civilian contractor.
The prosecuting attorney has now brought charges against the insurgent under the War Crimes Act. The charge is a grave breach of the Conventions, to wit murder of an American citizen. The indictment lays out the evidence for the charge: 1) that on the day in question, the defendant shot an American civilian and that his actions were intended to cause death or great bodily harm; 2) that at the time of the shooting, the insurgent was illegally engaged in combat with U.S. Army forces; and 3) that the insurgent is not a member of a lawful belligerency.
To overcome these charges, the insurgent has high hill to climb. The traditional LOAC does not allow much room for defense counsel maneuvering, but three new defense theories have recently been suggested which may give the insurgent a chance to prevail. Before the defendant asserts his defense, however, the court must first determine the status of the insurgent himself. As a threshold issue, the status of the defendant will determine jurisdiction and the availability of the defenses.
A. Insurgent Status
To get the privileges and protections afforded by the LOAC, i.e. the privilege to kill for military necessity, the insurgent must first prove his status as a combatant fighting as part of a belligerency within the meaning of the LOAC. There are currently three ways of looking at this issue of insurgent status. 1) Insurgents are civilians, not combatants and therefore cannot be lawfully targeted and killed by a U.S. Soldier. This means that the insurgent gets none of the privileges of a combatant and are therefore is not immune to a murder charge under municipal law. This also likely means that the insurgent lacks the capacity to commit a war crime. 2) Insurgents are combatants, which means they must be fighting as part of a belligerent group. This means the insurgent get the privilege to kill for military purposes, but can be lawfully targeted and killed by a U.S. Soldier. Combatant status also means that the insurgent is liable for any war crimes he commits under the LOAC. To receive the privileges of combatant status, the insurgent must show first that he is fighting for a belligerent (which may require a showing of a legitimate belligerency e.g. analogies to other legitimate occupational insurgent groups) and, second, that his actions furthered a military objective. 3) Insurgents are unlawful combatant, the Bush Administration’s view, that places the insurgent somewhere between combatant and civilian. This means the insurgent enjoys none of the privileges (privileged military kills) or protections (civilian non-targeting status) of the Geneva Conventions.
A. Insurgents are Civilians
Classifying the insurgent as a civilian is means that he is not part of a recognized military organization. As such, he lacks the legal capacity to commit a war crime within the meaning of the War Crimes Act of 1996. This is because the Geneva Conventions govern only belligerents and the crimes they can commit. A civilian is not governed by the Geneva Conventions and not liable for the corresponding war crimes. Therefore, the war crimes tribunal lacks subject matter jurisdiction. This does not mean that the insurgent is off the hook as this classification renders the insurgent liable for murder in a local civilian court. Depending on the local courts and the popularity of the insurgency, or who controls the courts, this may or may not be an attractive option for the insurgent or prosecutor.
B. Insurgents are Combatants
Charging the insurgent as a combatant eliminates the need for any determination of belligerency or combatant status. In essence, the prosecution stipulates that the insurgent was a combatant fighting as part of a lawful belligerency. Although, depending on the sympathies of the local community, the insurgent may argue for civilian status.
While this may simplify the issues to present at trial, it may also prove to be a politically unavailable choice. If, as in Iraq, the insurgents are viewed by the general public (here and worldwide) as fighting for an unjust cause, there may be political pressure not to concede the issue of status. Giving the defendant lawful combatant status would give credibility to the insurgency as a whole and may create a more persistent insurgency.
C. Insurgents are Unlawful Combatants
In between combatant and civilian is a gap in the law that has been filled by the Bush Administration and the use of the “unlawful combatant” status. The administration has classified as an unlawful combatant any person who participates in combat operations but fails to abide by the rules of the LOAC. As the LOAC currently only recognizes two classifications, civilian or combatant, there are no real rules for how to treat people under this classification. In current practice, an unlawful combatant may be killed but will not enjoy POW status when captured. The Bush Administration has labeled insurgents captured in Afghanistan and Iraq as unlawful combatants. While maintaining that captives are unlawful combatants, the administration has nonetheless treated these people as combatants and given them POW like status.
For the purpose of charging the captive insurgent in this example, the prosecution will likely continue to label the insurgent as an unlawful combatant. This position is not desirable for the defendant as it precludes legitimacy, without which the defendant enjoys no privilege to kill. Without privilege, the defendant has no defense.
D. Insurgent Status
It is unclear whether the question of status is a factual or legal. Assuming the prosecution has charged the defendant as an unlawful combatant, the defendant will argue for either civilian or combatant status. In this example, the insurgent is arguing for combatant status. The issue is likely to be raised at pretrial hearing on a motion by the defendant.
Regardless of whether the issue is a factual or legal one, the insurgent defendant has to incorporate evidence of lawful belligerency and combatant status into the defense. If the evidence is elicited in a pretrial hearing and the defendant loses, he may, as a matter of law be precluded from arguing any defense based on privilege. If the court allows the defendant to argue the question during the trial and the fact finder is not persuaded by the evidence a conviction would be much easier to sustain.
Assuming the defendant insurgent succeeds in proving combatant status, and/or is recognized as a combatant, there are two possible avenues for defense. First there are the traditional defenses available to all combatants. These include the collateral damage rule and military necessity. The collateral damage argument would be that the defendant did not intentionally target the contractor, instead he killed civilian contractor as collateral damage from a battle. Collateral damages rules protect the lawful combatant from liability for civilian deaths that are incidental to an otherwise lawful attack. In this case, the defendant intentionally targeted the contractor, therefore this defense is not relevant and will not be discussed.
Military necessity is the principle that a belligerent has the privilege to take actions that may bring about a successful military campaign. These actions, however, cannot violate the LOAC, e.g. using chemical weapons or the intentional targeting of civilians. The problem for the defendant is that under the LOAC, the contractor is a civilian. The LOAC requires that combatants distinguish civilians from legitimate military targets based on the Principle of Distinction.
The core element of the current LOAC is the Principle of Distinction. This principle states that any attack against a non-military target such as a civilian, violates the LOAC. The strictness of the Principle of Distinction is problematic here, for if the defendant intends to argue a privilege to kill, he must somehow show that the contractor is not a civilian. Therefore, the insurgent must argue that he killed the contractor based on some other theory of privilege. If the killing was privileged, it is not a war crime of murder.
III. Defenses Asserted
Recently three people have come up with potential theories of defense for this increasingly common situation. All of these potential defenses recognize that the rules of warfare are increasingly unclear in the realm of insurgency, where soldiers from a nation state are fighting a loosely coordinated group of resisters.
While looking at the defenses, it is better to view them from the perspective of the defense. At trial, the defendant claims the following facts: 1) the contractor was killed during a combat operation in which the contractor was attempting to fix a communication link between the U.S. Army field unit and its headquarters, 2) the insurgent was worried that if the communication link was repaired, the U.S. Army unit would call for reinforcements and wipe out the insurgent and his comrades, and 3) because of this, the insurgent believed he was privileged to purposely target and kill the contractor. Relying on these facts, the defendant insurgent offers an affirmative defense that the contractor was a “legitimate target.” The following theories of legitimacy may be available to the insurgent to use in defense.
A. The Principle of Culpability
The Principle of Culpability defense theory focuses on a target’s relation to both the insurgent and the U.S. Military’s combat operations. Instead of trying to make a clear division between civilians and combatants it draws a distinction between a legitimate target and a protected civilian by examining the location and actions of the target at the time of the killing. This principle states that it is impermissible to attack a civilian intentionally unless 1) the person enters or remains in a contested area or area of combat and 2) the person performs actions intended to achieve military goals of the combatants. In other words, acting like a combatant incurs the danger of being killed like one.
1. Use in Defense
To use this theory, the defendant must prove that the contractor was in a combat area and that fixing the communications link is an action intended to achieve a military goal. The first prong of the defense must be proved if there is a dispute over the nature of the area in question, i.e. was the kill zone a combat or contested area? The defense must present evidence that the location was contested. The defendant would argue this based on the fact that the insurgent and the U.S. Army were engaged in the same location at the same time. If the Army is engaged in a certain area, it means that the area where the action takes place is by its very nature contested. This the defendant would argue is a prima facie showing that is was contested area.
To further prove this point, the defense may be able to discover after action reports or other documentation that indicate the nature of the action and area. For example, if the after-action reports describe combat in the area it would be hard for the Army to dispute its own commander’s characterization of the action. Additionally, the defense could present evidence of combat medals awarded to the soldiers who participated in the fighting.
The defendant may also use prior case law. The International Criminal Tribunal for the Former Yugoslavia in its Tadic decision of 1995 ruled on the issue of the scope of armed conflict. In that case the court applied a broad definition of armed conflict to encompass a large geographic and temporal range.
Proving the nature of the target’s actions presents additional evidentiary problems for the insurgent. The contractor is dead and cannot testify, so the only witnesses to the target’s actions are likely to be the defendant, his comrades and the soldiers from the U.S. Army, all of whom will have intense bias. The witnesses for the U.S. will testify that the contractor was fixing a communications system to be used by Iraqi civilians and was not assisting the Army. Further, the contractor was not working with or for the Army unit in question, but was entirely under the control of his civilian boss.
To counter this, the defense must present evidence that the contractor was working directly for the Army or that his actions were helping the Army. Again the defense would have to produce evidence, either through discovery of official Army documents or through witness testimony. Testimonial evidence would be both difficult to get and to trust. The best witnesses for the defendant are likely to be his fellow fighters who, if still alive, will either be captured or still fighting. Captured insurgents would either be codefendants or hopelessly biased for the insurgent and therefore their testimony is highly unreliable. If the defense witnesses are still fighting, their appearance before the tribunal is unlikely to be compelled with a subpoena.
2. Legal Problems
There are two main legal problems with this defense. One is determining what constitutes a combat or contested area and the second is what are actions intended to achieve a military objective. For former issue, whose perspective will be used to determine whether the area in question was contested? While the military may consider certain civilian and rearguard areas are out of the combat area, these areas may be used for supply and storage, thereby making them the best targets available to the insurgent. Additionally, how long must the target remain in the area? What if the target runs from a contested area whenever the insurgents arrive, is hot pursuit allowed?
The latter issue is more problematic. Imagine a civilian who is forced to cooperate with a paramilitary police official and point out the location of an insurgent stronghold. Would it be permissible for an insurgent sniper to shoot the civilian? If the person is voluntarily aiding the enemy, may he be shot. What if he is being coerced? It has echoes of the identification issues that arise from the Principle of Distinction. Here it may seem obvious that helping to restore communications is aiding the military objectives of the opposing combatant, but what if the communication link was also being used by civilians for non-military purposes?
Another problem is whether this defense is whether the mens rea element of the defense is subjective or objective. In this example, the defendant killed someone he believed was a clear danger to his life and the lives of his comrades. If the defendant is unable to prove the two main elements (contested area and culpable action) then does his reasonable belief to the status of the area and conduct of the contractor provide a basis for defense? If the answer to that question is yes, then how does the defendant prove this? A defendant will always testify that he believed the target was a threat. If the defendant’s testimony is either not relevant or not believable, than the prosecution can win the case by relying on the existing strict distinction rules.
B. The Brutality Index
The Brutality Index theory of defense differs from the previous theory by attempting to eliminate the problems associated with the contextual approach used in the previous theory of focusing on the actions and location of the actual target in question. Instead it looks at the nature of the regime in power and the rationale for the insurgent attack. This theory attempts to legitimize insurgent groups that are fighting for human rights against a repressive regime and give such groups more tools for fighting the regime.
First the theory examines the regime opposing the insurgents and seeks to determine how brutal the regime is. Factors that create a brutal regime include denial of access to the political process, repression of basic human rights and the silencing of dissent. Regimes that act in this manner would be considered brutal. Regimes that allow this type of behavior would not be considered brutal.
A disinterested international body would then categorize all governments and occupying forces and place them on a Brutality Index (“Index”). The Index would range from brutal on one end to benign on the other. The more repressive and violent regimes would receive a high score and fall close to the extreme brutal end on the Index. The Index would be compiled and published by a disinterested international body, like the U.N. or Amnesty International. Presumably, this would put any current or future insurgent group on notice and allow them to tailor their actions accordingly.
The consequences of a high score on the Index would be greater international acceptance of violence by insurgent groups. First, the insurgent group will be more readily granted belligerent status and recognized as a legitimate fighting force. Secondly, instead of merely targeting the regime’s military forces, insurgents could target police forces, government officials and other non-combatants that aid and assist the regime. In other words, the more brutal the insurgent’s opponent’s regime, the more targets become available as legitimate. The Index would create a bright line distinction.
1. Use of the Index in Defense
There are main issues that a defendant must address in an attempt to assert a defense under the Brutality Index theory. First, the defendant must persuade the court to recognize the Index as an indicator of a brutal regime and to what extent the regime is brutal. Second, if the defendant is successful on the first issue, he must convince the court that his actions are privileged because of the brutal nature of the regime.
i. Judicial Recognition
Assuming that there is an international body that has created an Index, the first problem is convincing the court to accept the Index. The prosecution will likely fight the introduction of the Index as irrelevant in either a motion in limine or by objection during the trial. They will argue that there is no recognizable defense using the Index or any other measure of brutality. The defendant must then convince the court to recognize the Index.
Assuming arguendo that the Index exists and is accepted by the court, the first question to address is whether the Index automatically creates a legally recognized legitimate insurgency. Here is another problem of either fact or law: does the fact that a regime receives a high score on the Index mean that it is by law brutal or is the Index merely evidence for the defense to prove the legitimacy of the insurgency? If it is a matter of law, is the Index judicially noticeable? Does it create a rebuttable or irrebuttable presumption of brutality? If the Index is merely evidence of brutality, what other evidence must the defendant show to prove its legitimacy?
Another issue the defense must deal with is the scope of the Index score . Does the regime as a whole get a score or does the score filter down and change depending on the unit involved? If the score does filter and differ based on region or individual units, how is the insurgent to know the score? Would, for example, individual units be required to carry Index cards or paint markers on their vehicles? Additionally, the Index score may change over time. If the U.S. occupational elements were to change their policies and receive a lower score, this temporal element would need to be addressed at trial. In this situations the defendant must first argue that the entire U.S. occupation is brutal. Failing that, he must then try to prove that the individual U.S. Army unit in control of his area is brutal through evidence of bad or repressive actions.
ii. Index Score Consequences
The second question then is, even if the Index shows the regime to be brutal, does its brutality rise to the level which would allow an insurgent to target a contractor fixing a communication line? In this case, the killing of a contractor who is aiding the U.S. Army must be justified by the brutality of the U.S. Army, its current occupation, the provisional Iraqi government and new Iraqi Army as a whole.
First, what if the Index score is at the low end of the brutal range? A low score on the issue of brutality means that the insurgent had few legitimate targets besides traditional armed combatants. This makes the job of defense much more difficult. In this situation that defendant insurgent must show that the actions of the contractor are so implicitly tied to the U.S. Army’s combat operations as to make them one and the same. Therefore, the targeting and killing of the contract is the same as targeting and killing a uniformed soldier.
If the regime receives a low score and the defendant insurgent believes he will lose, he could argue that the overall brutality index score should not be applied to the individual U.S. Army unit that controls the insurgent’s area of operations. The defense could claim that while the regime as a whole has a low brutality score, the individual regime units in the area were much more brutal and therefore should not receive the same protections. A good example of this would be in Iraq today where 4 out of the total of 18 provinces account for 85% of all insurgent violence. If the U.S. Army’s response to this is more restrictions and offensive combat operations in the 4 most violent provinces, it seems likely that the brutality index in those provinces would be higher than in the rest of the country. If the US Army overall receives a low score it would greatly restrict the actions of insurgents in areas where its actions do not conform to it overall score.
Alternatively, the defendant could argue that even if the Index score for the Army, or any elements of the Army is low and as a matter of law not brutal, then are the actions in a certain instance brutal? For example, if the Index score is compiled monthly and the Army receives a low score, the defendant may be able to argue that the in the time before the next score was released and when the action occurred, the Army changed its tactics in such a way that it deserved a higher score.
If the brutality index score for the U.S. Army is high, then it is likely that the insurgent would be justified in killing any and all contractors of the U.S. Army. This is because a high score allows for the targeting of a wider range of regime actors, and in this case, a contractor is likely being paid and controlled directly by the U.S. Army.
Additionally, this defense presents the same issue regarding intent as does the Principle of Culpability. That being, did the defendant perform an action he believed was allowed by the Index score? In the current example, the defendant will argue that although he was not allowed to kill a contractor, at the time he believed the contractor was a legitimate target. His belief could be based on any number of reasonable claims such as mistaken identity or misinformation from his commander.
2. Legal Problems
Beyond the defendant’s arguments in the case at hand, the court may struggle with several other legal arguments in dealing with the Index theory of defense. One issue with the defense is in defining the type of actions that are allowed by the Index. It could be that the Index’s governing body has created an exhaustive inventory of all possible actions that are allowed for each progressively higher score on the index. But even a very long list would still be unable to account for every situation. For example, the index might have a code that defines an acceptable action at a certain index level as “targeting of civilian contractors who are in the process of aiding a regime in the process of offensive combat operations.” The definitions in the code would have to include the meanings for targeting, civilian contractor, process and aiding. If the code fails to define these terms, it is up to the parties to argue what they mean. Further, even if the code defines these terms, it is still up to the court to interpret their meaning within the context of the case at hand.
Another issue is, merely because the Index gives the regime a high score and the insurgency has the privilege to target government contractors, does that fact give the insurgency free reign? In other words, may the insurgent kill any and all contractors, wherever and whenever they may find them? Or must the insurgents confine their attacks to a subclass of active contractors? Can the insurgents now target the CEO of the company that supplies the contractors? At some point the Index and the court would have draw the line, but where that line would be drawn is unclear.
3. Likely Outcome
Taking into account the defendant’s likely arguments and the problems associated with the theory, it seems that any court accepting the Index and the defenses asserted would be forced to take a contextual approach to deciding an individual case. In other words, each case may be fact specific and decided on a case-by-case basis. As avoiding contextual application was the main goal of the Index, unless the court applies a strict interpretation to the Index, the Brutality Index Theory will fail to achieve its goal.
Applying the Index to the case at hand, it appears that the insurgent would have a decent case. While any occupying force may appear brutal to the local inhabitants who lose autonomy, the U.S. occupation is arguably an attempt to provide political outlets for the people. Although Abu Ghraib and other abuses have occurred, the overall goal of the occupation is to give total and complete power to the people of Iraq. If the goal of the Index is to encourage insurgency against bad regimes, this case appears to be an argument for the opposite. That is, insurgencies against good regimes should be discouraged. Therefore, the U.S. would likely receive a relatively low score. The insurgents may still be able to fight the U.S. military itself, but they will be highly restricted in target selection. It seems reasonable to conclude that they would be precluded from attacking civilians who are not acting directly at the behest of or completely under the control of the military. Therefore, this case would rest almost completely on proving that the contractor was, in effect, a part of the military. If the insurgent wins this argument he would likely win the case.
C. Threat Assessment
A final theory of defense, Threat Assessment, relies on more traditional notion of military necessity. This theory, loosely termed the Threat Assessment, looks at the insurgent’s mental state at the time the killing occurred and the danger the insurgent believed he faced. While the Principle of Culpability and the Brutality Index assign a status to either the target or the conflict, the Threat Assessment theory looks at each individual action and asks whether the target was killed out of necessity. This theory differs from traditional defense of military necessity in the way it treats a military objective.
The defense of military necessity has three main elements. First the conduct must be in furtherance of a legitimate military objective. Second, the damage to non-military objects must be in proportion to the importance of the military object being sought. Third, the attack cannot violate other aspects of the LOAC. The last element goes hand-in-hand with the first. For example, a general could not order the intentional attack of a civilians unless there was military objective to the destruction, such as the destruction of armament factories. Even so, only the factories themselves or the supporting infrastructure could be attacked.
Threat assessment changes the way the first and third prong are viewed. While traditional military objectives are often the capturing of territory or the removal of a belligerent force, insurgent objectives may be the destabilization of the regime or the recognition of the international community. As such, the insurgent needs to attack a wider array of targets than is traditionally allowed by the LOAC. For example, the police may be composed of civilians but acting under the direction of or in concert with the military. Distinctions between civilian and military are irrelevant to the insurgent in this situation.
1. Use in defense
This theory is really a case by case method for examining the doctrine of military necessity. This is the least logistically complex theory for forming a defense and a more traditional theory that an American trial court would be comfortable with. The defendant, however, must still prove the validity of his new version of military necessity or the case will be lost.
In this case, the defendant argues that as a combatant, he may attack any military target that furthers his legitimate military goal. The defendant argues that his legitimate military goal is the overthrow of the occupying regime. As such, the destruction of anything that supports the regime is legitimate target. Assuming the defendant is a combatant, he has the burden of convincing that court of his necessity.
His status notwithstanding, he must first convince the court that his goals are legitimate. Because his goals are nontraditional in a strictly military sense, he must convince the court to recognize a new objective as legitimate. For this the defendant may call on experts in military history to describe the history of other insurgencies that would reflect favorably on the defendant’s actions. For example, a comparison with the goals and strategy of the French underground during World War II may help to show the legitimacy of the insurgent actions.
If the defendant can show legitimacy, he must next show that the target was killed in the furtherance of that legitimate goal. Here the defendant has two arguments: 1) communications links help to stabilize the regime and support the military and 2) anything that helps the regime to destroy the insurgency allows the regime to gain more control.
The first argument can be made using traditional military necessity doctrine. That is, attacks on traditional military targets that result in collateral civilian damage have been traditionally defended as within the protections of military necessity. Here the insurgent was attempting to destroy the communications link and the only way to do that was by attacking the personal fixing the link. This argument will not require the court to change its view on the doctrine of military necessity.
The second argument is slightly different. The defendant claims that the civilian was working towards establishing a communications link that would allow the military to call in more troops and destroy the insurgent’s base of operations. The insurgent killed the contractor because it was the only way to ensure the survivability of his unit and its legitimate goals.
2. Legal Problems
The issue of a military objective may be impossible for the defendant to prove. Military necessity generally relies on both tactical and strategic considerations. Therefore, even though the insurgency’s goals may be legitimate, the defendant must still prove the legitimacy of his tactical decisions. For example, it could be that the insurgent’s mission was of a secret nature and public acknowledgement could threaten his comrades still in the field. Or the defendant may have been a foot soldier and was not informed of the higher plan by his superiors. In this case, he only has the ‘following orders’ defense, a defense which has failed in many other courts.
For all practical purposes, the insurgent must convince the court of his legitimate status. The Threat Assessment Theory rests on military necessity, therefore success likely hinges on the status of the insurgent. If the insurgent loses the combatant status argument, he will likely lose any military necessity argument. This is because only the military can have a legitimate military objective, for which it accrues the necessity privilege.
It should be acknowledged that many other legal issues have been glossed over in order to discuss the possible defenses. An attempt is made here to identify some of those other issues, for both the prosecution and the defense, but not to suggest any means for resolution.
Before the trial begins, the issue of jurisdiction will likely be raised in a motion by the defendant. Specifically, the issue of personal jurisdiction may force the prosecution to identify the insurgent as a combatant to even obtain jurisdiction to prosecute for a war crime. The prosecution will have trouble with Constitutional protections such as empanelling a jury of insurgent peers. Confrontation clause issues may often conflict with the protection of national and operational security interests in a way that prevents discovery or the availability of witnesses.
Another large problem is proving whether the defendant actually fired the shot that killed the contractor. While the example used presents clear evidence of liability, in a real combat situation confusion and uncertainty will likely make this type of determination impossible. For example, if many insurgents fired on the contractor, attributing the cause of death to this one defendant may be an impossible element to prove. Therefore, the prosecution may be forced to use a theory of vicarious liability, felony-murder, conspiracy or a joint criminal enterprise to prove up causation.
The burden shifting nature of these affirmative defenses means the insurgent will be uniquely challenged. The insurgent is required to gather evidence in his favor which may be next to impossible to acquire. Due to the destructive nature of warfare, physical evidence at the battle scene or the scene itself may literally be destroyed. Crime scene analysis may be impossible to conduct as the battlefield may still be a hostile area or under the control of regime’s opponents. While this may seem to benefit the insurgent (his force holds the field) it could be that the insurgent forces in the area are unwilling or unable to assist in the investigation. Beyond that, the reliability of any evidence gathered under such conditions would be seriously suspect.
The outcome for the defendant could hinge on the status of the conflict. If the insurgents are still fighting the evidentiary issues discussed above could be too much to overcome. However, if the hostilities have ended, witnesses may suddenly be available to testify for the defense. Witness testimony would help the defendant to describe the scene and the actions of the contractor.
All these other issues aside, the main issue with all these defenses is still the status of the insurgency and the political pressures involved. The prosecution of war crimes is usually conducted by a combat victor, or occupying regime, who has many political motivations for conducting a public trial of the enemy. Therefore, the perception of the insurgent group among the regime is important. Legitimate insurgents are likely to get more protections and leeway to attack. On the other hand, any group that targets illegitimate targets is likely to be labeled a terrorist organization and lose any and all privileges.
The other critical issue is whether the tribunal is willing to go beyond the traditional concepts of the Principle of Distinction. If the court is unable or unwilling to recognize a non-traditional notion of distinction and instead hold fast to the notion of a contractor as a civilian and the insurgent as an illegal combatant, the defendant’s case will be lost before the opening statements.
 18 U.S.C. §2441.
 Ingrid Detter DeLupis, Law of War 129 (2d ed., Cambridge University Press 2000).
 Geneva Conventions of 12 August 1949 for the Protection of War Victims, Aug. 12, 1949, 6 U.S.T. 3114 [hereinafter “Geneva Convention I”]; 6 U.S.T. 3217 [hereinafter “Geneva Convention II”]; 6 U.S.T. 3316 [hereinafter “Geneva Convention III”]; and 6 U.S.T. 3516 [hereinafter “Geneva Convention IV”].
 Geneva Conventions, common art. 2
 Geneva Conventions, common art. 5
 See Henry H. Perritt, Jr., Making International Criminal Law Realistic [unpublished manuscript on file with author] for discussion on the privilege to kill in combat.
 Hague Convention (IV) Respecting the Laws and Customs of War on Land, appendices §1 chap. 1 art. 1, Oct. 18, 1907, 36 Stat. 2277. [hereinafter “Hague Convention”].
 DeLupis, supra n. 3,
 see Prosecutor v. Dusko Tadic A/K/A "Dule," International Tribunal for the former Yugoslavia, Case No. IT-94-1-AR72 (October 2, 1995)
 e.g. Geneva Convention III, art. 50.
 Out of action; disabled. The American Heritage Dictionary (2000).
 Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), art. 48, U.N. Doc. A/32/144, Annex I, 1125 U.N.T.S. 512, reprinted in 16 I.L.M. 1391 (1977) [hereinafter “Additional Protocol I”].
 While the U.S. has not ratified Additional Protocol I, it has recognized the relevant portions as part of customary international law. See e.g., Michael J. Matheson, Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U.J. INT'L L. & POL'Y 419 (1987) [hereinafter “Protocol II”]
 Geneva Convention III, art. 50.
 <http://news.bbc.co.uk/1/hi/world/middle_east/4795678.stm> last visited on 3/12/2006
 <http://www.cnn.com/2005/WORLD/meast/10/24/iraq.main/index.html> last visited on 2/15/2006
 Military tribunals derive their power from the U.S. Constitution Art. II, §2 (which gives the President as Commander in Chief the power to appoint military commissions) and Art. I § 8 (which grants Congress the power ''[t]o define and punish... [o]ffenses against the Law of Nations''). Accordingly the Uniform Code of Military Justice, Art. 18 “provides that ‘[g]eneral courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war.' Article 21 notes that conferring jurisdiction on courts-martial does 'not deprive military commissions...of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.’ Read together, Articles 18 and 21 reflect Congress's intent not to divest military commissions of the jurisdiction they have by ‘statute or by the law of war’… The [military tribunal] is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-Chief in war... Congress has specifically recognized the military [tribunal] as the proper war-court... The legitimacy of military tribunals are also recognized by the Geneva Convention III, ‘that violations of common law, even if committed outside a state of war, may properly result in trial.’” Tribunals have historically been used to try captured enemy combatants for war crimes. Tribunals usually consist of a panel of three to seven judges who sit as both a judge and fact finder. Defendants before a tribunal enjoy many of the same rights and privileges as would a defendant before a court martial. Matthew Bender, Procedure for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism. §§ 2, 3 (Lexis 2002). See generally Bradley, Curtis. The Constitutional Vlaidity of Military Commissions, 5 Green Bag 2d 249 (2002); Ex Parte Quirin, 317 U.S. 1 (1941) [hereinafter Quirin].
 See Geoffrey S. Corn, et al., To Be or Not to Be, That is the Question: Contemporary Military Operations and the Status of Captured Personnel, DA-PAM 27-50-319 ARMY LAW at 1 & 14 (Jun., 1999) describing the actions allowed by the LOAC by stating that “it is foreseeable that soldiers will be directed to kill, maim, assault, kidnap, sabotage, and steal in furtherance of their nation state's objectives. In international armed conflicts, the law of war provides prisoners of war with a blanket of immunity for their pre-capture warlike acts.”
 Geneva Convention III imposes on a belligerent the obligation to respect the privileges of a captured lawful enemy combatant. The privileges and protections together give the combatant the ability to conduct military operations within the LOAC. However, acting outside these privileges makes the captured combatant vulnerable to a war crimes charge.
 Joseph P. Bialke, Al-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict, 55 A.F.L. Rev. 1, 10-11 (2004).
 While the term “unlawful combatant” has been widely used by the Bush Administration, the status was not created by the Administration and has been recognized within the LOAC by Protocol I, art. 45(c), supra n. 14., which states in the relevant part that “[a]ny person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with [Convention IV] shall have the right at all times to the protection of Article 75 of the Protocol [governing the treatment of non-combatant participants],” See also Quirin n. 19 stating that “[b]y universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” (internal notations omitted).
 Id. at 2.
 Id. at 3.
 Id. at 4.
 The term “collateral damage” is defined by the Dep’t of Defense as "unintentional or incidental injury or damage to persons or objects that would not be lawful military targets in the circumstances ruling at the time. Such damage is not unlawful so long as it is not excessive in light of the overall military advantage anticipated from the attack." U.S. Dep’t of Defense, Dep’t of Defense Dictionary of Military and Associated Terms, JP1-02, at 93 (2001).
 Bialke, supra n. 22, at 26.
 Protocol II art. 13.
 Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 YALE HUM. RTS. & DEV. L.J. 143, 148 (1999).
 Swiney, Gabriel. Saving Lives: The Principle of Distinction and the Realities of Modern War. 39 Int’l. Law. 733.
 Id. at 24.
 Tadic, supra n. 11.
Andrew T. Strong. Neutralizing Threat: Reevaluating the Scope of Acceptable Targets in Unconventional Conflicts. <http://operationkosovo.kentlaw.edu/ats-final-ir.htm> last visited on 4/29/06.
 Id. at 30.
 Id. at 31.
 <http://www.foreignaffairs.org/20060301faessay85201/stephen-biddle/seeing-baghdad-thinking-saigon.html?mode=print> last visited on 3/15/2006
 Henry H. Perritt, Jr., Making International Criminal Law Realistic [unpublished manuscript on file with author]
 <http://www.crimesofwar.org/thebook/military-necessity.html> last visited on 4/29/2006
 Bialke, supra n. 22, at 26.
 Also termed the “Nuremberg Defense”, this defense was raised unsuccessfully during the Nuremberg Trials, by William Calley in the My Lai Massacre Trial and most recently and unsuccessfully by Linddie England in the Abu Ghraib prison torture scandal. See generally See Lawrence, Frank. The Nuremberg Principles: A Defense for Political Protesters. 40 Hastings L.J. 397 (1989); <http://en.wikipedia.org/wiki/Nuremberg_Defense> last visited on 5/2/2006.
 For a discussion of the problems associated with using a joint criminal enterprise theory in prosecution see Jacob Ramer, Hate By Association. <http://operationkosovo.kentlaw.edu/jar-final-seminr.htm> last visited on 4/29/06.