Affirmative target identification : operationalizing the principle of distinction for U.S. warfighters
John J. Merriam
Host item entries:
Virginia journal of international law, Vol. 56, no. 1, March 2016, p. 83-146
Photocopies. - Source : https://heinonline.org/HOL/Page?handle=hein.journals/vajint56&id=89&collection=journals&index= (last accessed on 18.06.2020)
Over the past two decades, the United States has required its forces to obtain “positive identification” (PID) of military targets prior to engaging them. PID is defined as a “reasonable certainty that the object of attack is a legitimate military target.” However, as this article argues, the PID formulation could stand to be refined. It sets a standard that is at once both too rigid and too narrow; it appears to require a degree of precision that is often impossible to achieve in war, while at the same time providing little guidance on the nature of the information that must inform the decision to attack a target. This article argues for a new, more accurate formulation of the law of armed conflict (LOAC) principle of distinction: the requirement for the affirmative identification of a target. The article traces the evolution of the principle of distinction, identifies the critical characteristics of both war and law that affect the distinction determination, and examines its application in international criminal cases, State practice, treaty law, military manuals, and other sources of international law. It then explores the origins of the PID formulation, demonstrating its inherent flaws and the potential risk posed by continuing to employ it, before proposing a more accurate and comprehensive standard.