Tactical level PSYOP and MILDEC information operations: how to smartly and lawfully prime the battlefield

Army Lawyer, July, 2007 by Joshua E. Kastenberg

If, for example, an inactive insurgent cell resides in a densely populated urban enclave, this principle might prohibit PSYOP and MILDEC operations designed to push the cell members into open armed confrontation with coalition units. On the other hand, an operation designed to sway the local population's support from the cell leadership which in turn causes factions to fire upon each other, would not necessarily violate the principle, because the effects-based intent underlying the operation was only to divorce the inactive cell from possible non-combatant support.

Psychological operations and MILDEC operations may be viewed as a matter of military necessity so that conventional operations adhere to the other law of war constraints. Indeed, one can argue that such operations, particularly when designed to separate non-combatants from combatants, or even to dissuade non-combatant support to combatants give strength to the principle of distinction. However, as is the case of any justification of military operations under LOAC, even a liberal approach to the principle of military necessity is not without limits. Psychological operations and MILDEC operations designed to keep an inherently non-combatant population in a state of confusion to the point where livelihoods are disrupted and residents flee may very well cross into an unlawful operation if there is no discernable threat prior to the operation's commencement. Likewise, such operations must be timed so that if the effects of the operation rise to the level just noted, then they are of definite duration. On the other hand, operations designed to produce loyalty or trust in U.S. forces will almost, under any condition, be acceptable under the necessity principle.

Defensive operations designed to reduce the risk of attack, such as placing a phony minefield or broadcasting the sound of barking German Shepherds, will under almost every condition be categorized as necessary and lawful. On the other hand, an operation designed to clear a village of its inhabitants which results in the displacement of protected civilians must have some justification under this principle.

Proportionality

It is possible that a tactical MILDEC or PSYOP operation will produce (or cause to be produced) "suffering" or "injury." This can make it difficult to apply the traditional balancing test inherent in the concept of proportionality to PSYOP and MILDEC. There are different definitions of the term proportionality, but its basic premise is that a military operation, whether it involves the placement of a single kinetic explosive or consists of an hours-long artillery barrage should be proportional to the objective of the operation (assuming the objective is otherwise compatible with LOAC). (75)

To the extent that these operations are not aimed at directly producing injury or suffering, they will more likely be constrained by policy or operational considerations than by legal ones in time of armed conflict. As an example, a MILDEC operation which is designed to evacuate an urban area of its non-combatant population may result in a stampede, or rioting. Ostensibly Article 51 of Protocol I protects civilian populations against this type of result (if the result were intended). (76) On the other hand, if the effects-based intent was to separate a terrorist cell from a non-combatant population (to protect that noncombatant population), the proportionality principle is met, even if an unforeseen and unintended consequence was the injurious stampede.