Affirmative Target Identification: Operationalizing the Principle of Distinction for U.S. Warfighters

64 Pages Posted: 22 Apr 2015 Last revised: 29 Mar 2016

See all articles by John Merriam

John Merriam

Government of the United States of America - Judge Advocate General's Corps

Date Written: April 15, 2015

Abstract

The law of armed conflict (LOAC) principle of distinction has long been recognized as the bedrock of the LOAC’s humanitarian protections, and as such States seek to promulgate rules of engagement and other directives that would give force and effect to this principle. In the post-9/11 era, the U.S. has required its forces to obtain “positive identification” of targets prior to attack, defined as “a reasonable certainty” that the proposed target is a lawful one. This article argues that this is a misleading and incomplete formulation of the LOAC principle of distinction, and after an extensive “deconstruction” of the principle of distinction, proposes an alternative that is drawn directly from international jurisprudence and State practice.

Keywords: positive identification, PID, principle of distinction, LOAC, law of armed conflict, international humanitarian law, IHL, targeting, indiscriminate, reasonable military commander

Suggested Citation

Merriam, John, Affirmative Target Identification: Operationalizing the Principle of Distinction for U.S. Warfighters (April 15, 2015). 56:1 Virginia Journal of International Law 83 (2016). Available at SSRN: https://ssrn.com/abstract=2597065

John Merriam (Contact Author)

Government of the United States of America - Judge Advocate General's Corps

United States

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