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

Army Lawyer, July, 2007 by Joshua E. Kastenberg

Determining proportionality constraints for a PSYOP or MILDEC operation may be difficult compared to a kinetic weapons approach because it is inherently difficult to define the extent of a result. However, it is appropriate to pursue a liberal approach to offensive PSYOP and MILDEC operations precisely because the specific intent and direct effects of these operations do not envision or involve killing or wounding civilians, or damaging property. Likewise, a defensive operation will almost always satisfy a test for proportionality because these operations, by their nature, are designed to protect lives and critical assets.

Distinction

The principle of distinction embodies the concept that the effects of war must be limited to combatants and military objectives as much as is feasible. Civilians and civilian objects should be spared and may not be targeted. (77) However, this principle becomes muddied in many aspects of irregular warfare when insurgent leaders use civilian populations for direct support. In such instances, PSYOP and MILDEC operations may "target" civilian populations with the purpose of undermining a regime or discrediting a belief-set. These same operations may be used to clear non-combatants from a geographic area. For instance, dropping leaflets or publishing media articles telling civilians how to avoid hostile fire achieve valid military purposes by potentially undermining their will to support a regime that may indiscriminately subject them to military fire. In targeting these individuals with PSYOP messages, the law of war is upheld because civilians are protected to a greater extent than they would have otherwise been. On the other hand, a MILDEC operation designed to clog an urban area with non-combatants so as to hamper an opposing enemy's freedom of maneuver might well fail this principle if the civilian population will be subjected to kinetic firefights when they otherwise might have been safe.

Threats that a civilian population will suffer if insurgent leaders are not promptly surrendered may cross the line into illegality. Civilians may not be held as hostages, as such threats, even when not carried out, convey the impression of intent to create a hostage situation. (78) Also, it is a general legal principle that civilians not engaged in hostilities may be free to leave an area if security considerations permit. In short, civilians may not be used as shields. (79) Convincing civilians to take up arms or arrest and kill an insurgent leader may be legal, but fraught with other problems. For one, civilians give up their distinction as non-combatants when they take part in combat operations. Additionally, untrained civilians who take up arms are not likely to adhere to the law of armed conflict.

Although not forming a binding international law norm, a recent Israeli Supreme Court decision, The Public Committee against Torture in Israel v. The Government of Israel, (80) provides an excellent analysis of the non-combatant versus combatant distinction. In that case, the particular issue was targeted killings. The Israeli court held that an insurgent/terrorist, while not necessarily a combatant at the time of the government's targeting of him, did not become a noncombatant simply as a result of the passage of time. (81) In other words, former combatants in irregular warfare who have not surrendered (or abdicated from their membership in an insurgency) remain lawful targets since they are not technically noncombatants.