Military Age Male Signature on Steroids?

by Kevin Jon Heller

In my essay on signature strikes, I criticize (and I’m not alone) the U.S. practice of considering military-age males in an area of known terrorist activity to be lawful targets.  That signature, however, pales in comparison to the possibility that the U.S. is targeting “children with potential hostile intent,” as well:

The US military is facing fresh questions over its targeting policy in Afghanistan after a senior army officer suggested that troops were on the lookout for “children with potential hostile intent”.

In comments which legal experts and campaigners described as “deeply troubling”, Army Lt Col Marion Carrington told the Marine Corp Times that children, as well as “military-age males”, had been identified as a potential threat because some were being used by the Taliban to assist in attacks against Afghan and coalition forces.

“It kind of opens our aperture,” said Carrington, whose unit, 1st Battalion, 508th Parachute Infantry Regiment, was assisting the Afghan police. “In addition to looking for military-age males, it’s looking for children with potential hostile intent.”

In the article, headlined “Some Afghan kids aren’t bystanders”, Carrington referred to a case this year in which the Afghan national police in Kandahar province said they found children helping insurgents by carrying soda bottles full of potassium chlorate.

IHL does not limit the use of lethal force to adults, so a child can be lawfully targeted at any time if he is a member of an organized armed group (by assuming a continuous combat function in it) or for the duration of his participation if he directly participates in hostilities.  That said, because it is unlikely that the U.S. tracks individual children long enough to establish their continuous combat function, the “potential hostile intent” signature is deeply problematic.  ”Hostile intent” does not make a civilian (adult or child) targetable; that intent must be manifested in acts that qualify as direct participation.  And the word “potential” seems to indicate that the U.S. feels free to target children at times when they are not directly participating in hostilities (otherwise they would be manifesting “actual” hostile intent).

Many questions, of course, remain.  It is unclear whether the U.S. is actually targeting children with “potential hostile intent.”  It is also unclear how the U.S. understands “hostile intent” and “potential.” But it doesn’t take an IHL expert to know that targeting children with potential hostile intent creates significant cause for concern.

http://opiniojuris.org/2012/12/07/military-age-male-signature-on-steroids/

13 Responses

  1. Kevin

    I suspect LTC Carrington was using hostile intent as it is defined (and trained) in the US military through the Standing Rules of Engagement (SROE). I’ve pasted it below, but I think you will agree that deadly force could be permissibly employed in response to “the threat of imminent use of force”. I grant you the use of the word “potential” is problematic, literally defined almost anyone has the potential for hostile intent. But I think the fair meaning in the context of an Airborne Battalion Commander in combat providing a statement to the media is potential meaning possible.
    Extrapolating that US forces feel free to target children couldn’t be more wrong. Within the horror that is war, one of the most difficult, and haunting aspects is the maiming or killing of a child. I assure you that US service members, many of them with children of their own, do not take the issue of using force against children lightly.

    Chris  

    h.  Hostile Intent.  The threat of imminent use of force against theUnited States, US forces, and in certain circumstances, US nationals, their property, US commercial assets, and/or other designated non-US forces, foreign nationals and their property.  Also, the threat of force to preclude or impede the mission and/or duties of US forces, including the recovery of US personnel or vital USG property. 

  2. Chris,

    I’m still troubled by the word “potential.”  As I discuss in my essay, the U.S. understanding of DPH is overbroad not only in terms of the kinds of actions that qualify as direct participation, but also in terms of the temporal limits on such participation.  So although I agree that the U.S. would never deliberately target children for no reason, I do not think it is beyond the realm of possibility that it is willing to consider children lawful targets when IHL would say they’re not.

  3. Children carrying soda bottles have potential hostile intent because the bottles can be full of potassium chlorate. The only problem is to program drones to recognize soda bottles.

  4. Adding to what Chris said, U.S. soldiers are trained that their responsive actions must be proportionate to the threat perceived.  Lethal force is a last resort.  To the extent the situation permits, they are trained to respond in a graduated fashion to perceived threats (or indications of hostile intent) to clarify the intent of the actor and the threat posed to the greatest extent possible.  Thus, I read the remarks as clarifying that attention must be paid the behavior of children, not that there is any certain “signature” or act makes children a threat or tagetable.  Children may present a threat (like any other “military-age” or “adult” man or women), they may not. 

    In some sense, all targeting in unconventional warfare is a “signature stirke” because enemy fighters don’t identify themselves as fighting members of and armed group.  Soldiers must therefore respond to actions rather than uniforms, insignia or openly carried weapons.  This does not necessarily mean that soldiers will shoot those who are potential threats merely because they are potential threats.  As I said, they are trained to graduate their reponse to indications of hostile intent using non-lethal means.  

    For these reasons, this post seems to be much ado about little, if not nothing.

  5. What about “implicit bias?”  Not perceiving these children as children while perceiving them as a hostile threat.  To give a domestic equivalent – what if the child is perceived as a Trayvon Martin threat.  We rely on the training and we rely on the judgment of those trained.  I worry about the calculus that goes into the proportionality evaluation where one tends to value one’s own at one level and any of the other side at something less.  The outside view then recalculates the value of the other to a higher level and the soldier is accused of “killing children.”  The difference between the two is the delta that has in it: 1) us armchair second guessing soldier’s in harm’s way; 2) our wondering whether our soldiers’ training makes them as good as we are told they are supposed to be and 3) our memory of situations where the sense was not the children of the other side were as valued as we are to believe.  This is the dilemma sitting here.
    Best,
    Ben

  6. Ben, how does your “implicit bias” concern differ from adults to children?  Your concern could apply to either.  If anything, soldiers would have an impicit bias against perceiving a child as a threat.  So to remind them that not all children are necessrily “innocent” and deserving of closer attention would likely only serve to correct that bias.  Not perceiving them as necessarily “innocent” does not equate to affirmatively pereiving them as a threat.  

    We must rely on judgment and training.  That is all we have on a messy, ambiguous battlefield of human actors.  Some internalize it better than others.  Some carry implicit biases that no amount of training can fully expunge.  Still, as we have been discussing recently at Lawfare, humans are preferable to machines.

  7. We’re being a little quick to leap to conclusions about the use of lethal force against children here, aren’t we?

    True, the article opens with discussion of a US Marine Corps strike against individuals believed to be planting an IED which resulted in the deaths of several children who may or may not have actually been involved in such activity.  But the quote which is drawing the bulk of the commentary avove bears no relationship to the fatal strike.  It is from an Army officer working with Afghan police who says they are looking for children involved with “potential hostile intent.”  This doesn’t say they’re looking to kill them – indeed if working with Afghan police isn’t it more likely that they’re looking to investigate or apprehend them rather than to kill them?  And their actions may well be governed by Afghan domestic law although I do suspect that ultimately the US government would assert that they retain the ability to defend themselves under US Rules of Engagement if the Afghan police rules are significantly more restrictive.

  8. Implicit bias can vary toward adult or children. Look at the citizen noncitizen distinction in the NDAA indefinite detention. Or the illegal alien trope. The demonizing of people is the heart and has an old and long pedigree that we struggle against. Not sure the ” my god is bigger than you god” types show that nuance we would hope. I agree humans are better than machines but we know how bad we humans can be – way long history.

  9. This is painful to write, but Glenn Greenwald reminded me. On the valuing of children, does anyone but me remember the fake and unfinished vaccination program in Pakistam that was part of the effort to get Bin Laden? Those kids were sacrificed in America’s name by very highly trained Americans.

  10. Mr Davis, respectfully, I believe that statement is hyperbolic.

    It’s doubtful that the majority of readers here have been vaccinated against hepatitis b (wasn’t mandatory for anyone in the US with the exception of healthcare workers before the highschool graduating class of 2008). The vaccinations were neither ‘fake’ nor were the children ‘sacrificed’ (to my knowledge). Hepatitis B is spread via bodily fluid contact, which isn’t an activity that children would typically be engaging in.  

    A healthcare worker myself, I would never condone vaccination under false pretenses but in point of order, the community in question was one of the more affluent within Pakistan (not an area in need of free vaccination, typically), and there is nothing that I have read to indicate that the information given regarding the specific vaccination (necessary followups, ect) was false.

  11. With all due respect Liz, if we don’t condone vaccination under false pretenses, how can we condone vaccination under false pretenses? The “it was not so bad rationalizations” are just that. Health care workers doing insidious things in 3rd world countries for national security reasons has a pedigree. Would not want it on my children, should call it out then when it’s on their children.

  12. Liz,

    You need to re-read the original article in the Guardian.  The vaccinations were initially provided in a poor part of town; the doctor only gave the first of three necessary vaccinations and then moved to the affluent part of town to give the next set, leaving the poor children not effectively immunized.

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