Enemy exploitation of the law of armed conflict, and the struggle for a moral high ground

Collateral damage on the 21st century battlefield: enemy exploitation of the law of armed conflict, and the struggle for a moral high ground

Jefferson D. Reynolds

I. INTRODUCTION

“Whoso obeyeth Allah and the messenger, they are with those unto whom Allah hath shown favor, of the prophets and the saints and the martyrs and the righteous. The best of company are they.”

The Koran, Surah IV, Ayah 69

Subordinate only to a state’s decision to wage war, effective targeting of the adversary is the most important and decisive part of successful warfare. Target selection requires military planners and strategists to develop tactical, operational and strategic target sets that destroy the adversary’s centers of gravity to compel capitulation, surrender or defeat. Although collateral damage (1) has historically been an important factor in the targeting cycle, its prominence and visibility have grown as battlefield tactics become more antagonistic and less aligned with humanitarian interests and the law of armed conflict (LOAC). The avoidance of collateral damage can even be determinative for nations like the United States (U.S.) who value LOAC. (2) A decision based on avoidance becomes problematic where key objectives cannot be targeted because of an adversary’s invitation or fabrication of collateral damage to discredit operations. Any targeting decision must be premised on LOAC; however, a decision based on avoidance must carefully evaluate the loss of initiative and tactical superiority, the increasing and persistent nature of these events in the context of a well organized strategy, and the effect on tactical, operational and strategic objectives. Adversaries will improve methods to effectuate collateral damage in an effort to complicate attack planning, promote disinformation campaigns, deter attack, exploit humanitarian interests and, ultimately, improve survivability.

This study illustrates a rising trend in the frequency and severity of adversary violations of LOAC and humanitarian principles to gain a strategic advantage. A proposed solution to this problem requires attacking target sets that are prohibited according to some humanitarian interest groups, improving awareness and understanding of collateral damage, promoting the application of emerging technology, including non-lethal technology, and the use of aggressive information campaigns designed to expose deceptive reports of collateral damage. The study is divided into six sections. Part II provides a parallel review of U.S. targeting strategy, collateral damage, civilian immunity, and the development of LOAC. Although a number of significant incidents of collateral damage are reviewed, this section is not intended to be exhaustive for each conflict studied. Rather, this section illustrates particular events, strategies and principles that contribute to an analysis of LOAC and collateral damage. Part III discusses the application of LOAC to different types of adversaries. With an emphasis on the International Criminal Court, Part IV describes significant problems associated with the prosecution of crimes involving collateral damage. Part V illustrates that violations of LOAC and strategies provoking collateral damage provide the greatest assurance of survival and strategic success for adversaries. Part VI examines specific targeting principles of LOAC, and demonstrates that attempts to reduce the number of permissible target sets may result in greater danger to the civilian population. This section also examines methods to effectively counter an adversary’s attempts to discredit operations where collateral damage occurs.

II. THE HISTORICAL DEVELOPMENT OF TARGETING STRATEGY, CIVILIAN IMMUNITY, AND CONCEALMENT WARFARE

“War is an act of force to compel our enemy to do our will….

[A]ttached to force are certain self-imposed, imperceptible

limitations hardly worth mentioning, known as international law

and custom, but they scarcely weaken it.” (3)

Carl von Clausewitz

In the early 19th century, Clausewitz surmised that warfare was a “true political instrument” to achieve the political objectives of the state waging war. (4) Although Clausewitz may have understated the effect of international law and custom in his conclusions, he recognized that the social condition of the states at war and their relationship to one another gave rise to some restraint. (5) The concept of restraint in warfare did not necessarily evolve from a philosophy of compassion and progressive ideology. More than likely, it evolved out of the necessity to spare resources and labor as a reward for conquest. Virtually all cultures throughout history have exercised restraint and rules of engagement at some level. (6) Even before the fifth century B.C., Greek combatants adopted normative rules of engagement referred to as the common customs of Hellenes or koina nomima, that specifically referenced the immunity of civilians in war. (7) Appreciated for their value in new regimes, labor and resources were often spared for their economic benefit. (8) Civilian immunity is a universally accepted principle in the international community, but the degree of compliance has varied drastically since the fifth century B.C. For example, Clausewitz advocated the targeting of civilian populations because it provided psychological and political advantages to the larger strategy of defeating the will and morale of the adversary. (9) Although direct targeting of civilian populations was widely exercised in the 20th century, prohibition of this practice pursuant to custom and LOAC is now more widely observed. (10) The amplified sensitivity to civilian casualties and other collateral damage, combined with increasing pressure from humanitarian interest groups to categorically exempt certain civilian object target sets from attack, should concern military strategists because of the rising incidence of warfare involving the use of the civilian population for shielding, sanctuary and deception. These asymmetric methods of warfare are described in this study as “concealment warfare.” Concealment warfare promotes target aversion and protracted conflict that potentially results in a higher incidence of both military and civilian casualties.

A. The Early Philosophy of Civilian Immunity

Western warfare has been largely defined by Christian ethics developed between the Middle Ages and the Renaissance. (11) St. Augustine, (12) Thomas Aquinas, (13) Francisco Suarez, Alberico Gentili, Francisco de Vitoria, (14) and later Hugo Grotius and Emerich de Vattel (15) were initially occupied with defining the just war (jus ad bellum), and determining under what conditions war could be declared by a state. (16) One of their collective premises, that war can only be declared by a legitimate authority for reparations or restoration of something lost, is still well recognized in the international community. (17) After the establishment of principles of jus ad bellum, attention was turned to the just method of war jus in bello). Presently receiving the greatest emphasis of study, the methods and strategies of warfare have been the subject of wide debate for centuries, and will likely be central to the discussion of law and war so long as military strategists are driven by tactical creativity and the development of new technology. Notwithstanding the dynamic nature of the modern study of the subject, even the earliest scholars generally recognized that civilians should not be deliberately attacked. However, their incidental targeting was acceptable as a by-product of an attack on a legitimate military objective. (18) In addition, it was customary that the amount of force be proportionate to the objective achieved. (19)

B. Early Codification of Civilian Immunity

Although the customs of LOAC were recognized in 15th-17th century America, (20) it wasn’t until the height of the Civil War that the U.S. would codify the protection of civilians. The year 1863 most clearly marks the division between the era of customary LOAC and codified LOAC. In that year, the U.S. would adopt its first comprehensive code for the conduct of land warfare in Army General Order No. 100, Instructions for the Government of Armies of the United States in the Field, authored by Dr. Francis Lieber of Columbia College. Commonly known as the Lieber Code, the U.S. developed the rules in response to alarming violations of customary laws of war during the Civil War that amounted to domestic terrorism. (21) These events could not be adequately resolved with traditional state and federal law. The Lieber Code specifically prohibited the targeting of civilians and civilian objects. It also recognized that collateral damage should be avoided, but was acceptable if it was the result of an attack on a legitimate military objective. (22) The Lieber Code articulates basic principles of the law of war, including the principle of military necessity in Articles 14 and 15. “Military necessity [consists of] … those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.” Further, “Military necessity admits of all direction of destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable….” (23) Lieber defined the principle of distinction when he stated, “the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.” (24) Finally, Lieber explained that even though war is naturally between sovereign states, citizens may be categorized as the enemy by virtue of their constituency, and therefore endure both the hardships and benefits of war. (25) The Lieber Code represented the prevailing custom of the time–although civilians should not be subject to direct attack, they were not categorically immune. Developing and adopting the first manual for soldiers on the laws of war, the U.S. had the remarkable distinction of creating a cornerstone for the law of war with the Lieber Code. The manual was adopted by Germany, France and Great Britain, and inspired codification of the law and custom of war at the Brussels Convention of 1874 and at the Hague Congresses in 1899 and 1907. (26)

The next significant event in the development of LOAC occurred in 1868 with the Declaration of St. Petersburg. Although the Declaration adopted the principle of distinction, it lacked the clarity offered by the Lieber Code. “The only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy.” (27) The Declaration offered little more than a conceptual statement that war should be concentrated on military forces rather than civilians.

At the Hague Conference of May 1899, delegates from the international community were already envisioning the potential catastrophic consequences of air power to both combatants and civilians. Although limited to balloon reconnaissance at the time, there was growing awareness of the destructive nature of aerial combat operations like bombardment. (28) Consequently, the delegates adopted a five-year ban on “the launching of projectiles and explosives from balloons, or by other new methods of a similar nature.” (29) There was obvious concern for the decisive capabilities aerial weapons offered in warfare; but in the end, the members of the 1899 conference objected to placing any further limitations on the use of air power beyond the short term it would take to further explore its employment in warfare. (30)

The Second Hague Peace Conference of 1907 emphasized civilian immunity in war through conventions concerning land and sea forces. Article 25 of the 1899 Convention on Land Warfare was amended to include bombardment from the air. The amendment states that the attack of undefended towns, villages, dwellings or buildings is prohibited. (31) The same clause was introduced in Article 1 of the 1907 Hague Convention Concerning Bombardment by Naval Forces in Time of War. (32) Undefended ports are generally forbidden from attack except for facilities that are “military works, military or naval establishments, depots of arms or war materiel, workshops or plants which could be utilized for the needs of the hostile fleet or army.” (33) If a port is attacked, the commanding officer of the strike must spare civilian life and property, and give notice of the attack if circumstances permit. (34) A similar rule to prohibit ground attack of “towns, villages, dwellings, or buildings which are undefended” was also introduced. (35) Recognizing that civilian facilities often serve a military purpose, the conventions were a catalyst to the development of requirements to distinguish the military significance of a target from its civilian purpose. The provision also illustrates early recognition of “dual-use” facilities providing services benefiting both the military and civilian populations.

C. World War I: Total War and Targeting Civilian Morale

Customary law and the Hague Conventions of 1899 and 1907 were the only existing legal frameworks for instruction on targeting at the beginning of WW I in 1914. Bombing strategy was tied to the basic custom that only military objectives were legitimate targets and indiscriminate attacks were prohibited. (36) The definition of military objective at the time, however, included more than military forces or military objects. The concept of total war included virtually anything supporting the war effort, inclusive of infrastructure, industry, labor and the will of a state’s population. Targeting civilians was an acceptable strategy insofar as it affected the morale of the enemy population as a military objective. (37) The collateral damage that resulted from injuring and killing civilians influenced the temperament of the population, resulting in failing support of the war effort and pressure on the respective leadership to capitulate. (38) Bombing campaigns were naturally indiscriminate because the practice of bombardment at the time was less precise due to limited technology, the high elevation of attack, environmental conditions, faulty intelligence, limited training and lack of experience. (39) Although there may not have been any specific intention to bomb indiscriminately, it was an acceptable outcome. The imprecise nature of targeting at the time, combined with strategic bombardment, provided an effective method to achieve the advantage of defeating enemy morale.

The concept of defeating enemy morale by attacking the civilian population had appeal to leading strategists of the time. Italian strategist Giulio Douhet argued that the resistance of the adversary could be defeated “more easily, faster, and more economically, and with less bloodshed by directly attacking that resistance at its weakest point.” (40) Douhet identified the civilian population as the weakest center of gravity in total war. (41) Although less severe in tone, Air Marshal Hugh Trenchard, Royal Air Force Commander, defined the military objective as any objective that “will contribute effectively towards the destruction of the enemy’s means of resistance and the lowering of his determination to fight.” (42) These views appropriately reflected the importance of the civilian population in determining a state’s psychological will to participate in war, but failed to observe early principles of distinction and humanity that exempted a civilian population from attack. (43)

D. World War II: Total War and the Scale of Collateral Damage

Although an attempt was made at a Hague conference in 1923, (44) and again in Amsterdam in 1938 (45) to develop a coherent, detailed set of rules for targeting, the effort failed because the decisive nature of air power proved too attractive. Douhet predicted the ending of civilian immunity amid the powerful forces of aerial warfare:

Now it is actually populations and nations, and not their

armies or navies, which come to blows and seize each others’

throats…. (46) We dare not wait for the enemy to begin using the

so-called inhuman weapons banned by treaties before we feel

justified in doing the same…. Owing to extreme necessity, all

contenders must use all means without hesitation, whether or not

they are forbidden by treaties, which after all are nothing but

scraps of paper compared to the tragedy that would follow. (47)

Although disturbing, Douhet’s words were prophetic. WWII brought a massive blow to the movement to achieve civilian immunity in war. Morale and the civilian population were not initially a prominent piece of the bombing strategy in WWII, but quickly became one after Germany executed large scale bombing runs on London in 1940. (48) U.S. strategy was altered only slightly from WW I. Relying on high elevation bombing of the German industrial base, U.S. strategists believed that destruction of Germany’s economy would result in destruction of morale. (49) The immediate purpose of bombing by the Royal Air Force was based on the theory that “destruction of housing and public amenities would undermine both the ability and the willingness of the industrial workers to maintain their posts at the factories.” (50) Beyond this specific objective, the general intent was to erode the German citizen’s will to support the war by making life intolerable. (51)

After the German invasion of Poland, the Polish National Council taking refuge in London reported pervasive looting, mass murder of civilians and other war crimes. Allied forces were reluctant to modify military targeting strategy to counter the threat. (52) On June 19, 1942 the Polish National Council again reported that 140,000 innocent civilians were dead, several times as many were sent to concentration camps, one and a half million were subject to forced labor camps in Germany and nearly two million were robbed of their property, businesses and homes, then expelled to eastern provinces of Poland. (53) Focused on the German economy, allied forces again rejected any strategy in response to the atrocities. (54) The targeting strategy continued to emphasize attacking manufacturing and assembly facilities, and other industrial infrastructure supporting Germany’s war machine. (55) A year later, however, indiscriminate targeting strategies resulted in devastating firestorms in Hamburg in July and August of 1943, raising the city’s air temperature to a catastrophic 800 degrees Celsius during one bombardment. (56) A similar strategy was used in Dresden on February 13, 1945 where refugees were fleeing west to escape the Russian advance. The firestorm there killed over 50,000. (57) The raids were viewed as “part of a climactic psychological warfare campaign” in which the attacks would cause panicking civilians to clog roads and railroads, thus preventing the supply and movement of German troops. (58) Opting to schedule high elevation bombing runs in the evening to avoid German fighter aircraft and artillery, allied forces had difficulty identifying targets. For example, in 1941 only twenty percent of bombs fell within five miles of the target; and in 1943, sixty percent fell within three miles of the target. (59) These events demonstrate that tactical air strategy contributed to excessive collateral damage.

The indiscriminate effects of nuclear weapons used in Hiroshima and Nagasaki in 1945 present a more poignant example of a strategy to strike civilian morale. Further it is the most notable example of collateral damage in modern history. In an effort to achieve the surrender of a determined and resolute Japan without an allied invasion, the U.S. attacked Hiroshima with an atomic bomb on August 6, 1945. (60) The firestorm attained a velocity of 30-40 miles per hour for a period of two to three hours after the initial blast. (61) Although it is impossible to determine the number of civilian casualties, best estimates from U.S. surveys suggest 70,000-80,000 were killed or presumed dead, and an equal number were injured. (62) These numbers indicate that approximately sixty per cent of the city’s population was killed or injured. (63) The Japanese Second Army Headquarters and the Chugoku Regional Army Headquarters were located in Hiroshima, making them important targets because of their command and control capability. (64) In addition, Hiroshima was the home of one of the largest military supply depots and military shipping facilities. Shipping had ceased prior to the attack, however, because of conventional mining in the Inland Sea. (65) The lawful military objectives were destroyed during the attack along with civilian facilities that were unlawful to target even under the tenuous interpretations of LOAC in 1945. The attack rendered any services by medical, fire, police and disaster relief non-existent. Infrastructure including water, gas, electric and communication were almost completely destroyed. (66) Approximately 62,000 of 90,000 buildings were leveled, and an additional 6,000 were severely damaged. (67) Hiroshima was completely devastated.

On August 9, 1945, another atomic bomb was dropped on Nagasaki, killing 35,000-40,000 people. (68) Damage to the city was reduced in large part by the natural landscape of the city, inclusive of hills, valleys, rivers, basins and other natural barriers that absorbed blast. A shift in wind direction also helped contain fires and prevented a firestorm. (69) The attack resulted in 52,000 homes destroyed. (70) These events perpetuated an ongoing problem of giving meaning to early principles of LOAC and customary norms providing protection to civilians during war. Moreover, it exemplified that whatever customary or codified law of war existing at the time was largely meaningless. The atrocities against humanity during WWII by all states involved generated a new and profound interest in civilian immunity, fostering the development of the modern international humanitarian movement, and an emphasis in international law to reform and restore rules protecting the civilian population in war. (71) This movement resulted in a formalized introduction of the modern principle of necessity.

The principle of military necessity requires that there be some military advantage gained from destruction of a target. (72) In United States v. List at the Nuremberg trials, the tribunal defined necessity: (73)

Military necessity permits a belligerent, subject to the laws of

war, to apply any amount and kind of force to compel the

complete submission of the enemy with the least possible

expenditure of time, life, and money…. It permits the

destruction of life of armed enemies and other persons whose

destruction is incidentally unavoidable by the armed conflicts of

the war; it allows the capturing of armed enemies and others of

peculiar danger, but does not permit the killing of innocent

inhabitants for purposes of revenge or the satisfaction of a lust to

kill. The destruction of property to be lawful must be imperatively

demanded by the necessities of war. Destruction as an end in itself

is a violation of international law. There must be some reasonable

connection between the destruction of property and the

overcoming of the enemy forces. (74)

In 1949, the Geneva Conventions also introduced the first comprehensive provisions protecting civilians exposed to the consequences of war. Still in effect, these provisions allow any party to a conflict to declare neutral zones intended to shelter civilians and the wounded. (75) Furthermore, civilian hospitals, ambulances, evacuation aircraft and other medical services are protected from attack unless used to shield activities otherwise designed to cause harm to an adversary. (76)

E. The Korean War: The Era of Limited War

Early in the Korean conflict, the Far East Air Force planned on bombing strategic targets to achieve a psychological advantage. By the Fall of 1950, United Nations (U.N.) air attacks had neutralized nearly every strategic target contributing to the support of the North Korean People’s Army. (77) Since targets were scarce, strikes were focused on the destruction of infrastructure, including hydroelectric facilities and irrigation dams. (78) In June 1952, U.N. air strikes began attacking North Korean hydroelectric power facilities providing electricity to both North Korea and Manchuria, China. The U.N. intended these attacks to force negotiations, and to impress upon China, an ally of North Korea, that the continuation of the war would result in consequences to that country as well. (79) The air campaign included targeting irrigation dams because they provided water for rice cultivation. Although reluctant to directly attack rice crops, U.N. strategists were still prepared to interdict supply lines for North Korean forces. In 1953, approximately twenty irrigation dams were attacked, resulting in the flooding of rail and road systems, and the destruction of rice crops from floodwaters. (80) Ultimately, the campaign may have contributed to the end of the conflict, but it was very likely the threat of a nuclear strike and the threat to expand the war into China that brought closure in July, 1953. (81)

Soon after the close of the Korean conflict, the Convention on the Protection of Cultural Property was developed in 1954. (82) Recognizing that cultural property suffered grave damage in armed conflict and was in increasing danger of destruction, the international community resolved that cultural resources required international protection. (83) The convention was guided by principles previously established in the Conventions at the Hague of 1899 and of 1907, and in the Washington Pact of 1935 (Roerich Pact). (84) The provisions of the convention were incorporated into U.S. Rules of Engagement for Vietnam restricting the targeting of civilian and cultural objects. (85) The legal protection afforded to cultural properties also made these sites attractive locations for the Vietcong to conduct military operations during the Vietnam War. The Vietcong would be among the first to exploit international law to achieve a strategic advantage by conducting military operations from sites immune from attack.

F. The Vietnam War: The Introduction of Concealment Warfare

In Vietnam, targeting strategy was focused, in part, on morale. Aerial combat operations aimed at morale were closely tied to targeting civilian resources. For example, between 1962 and 1967, the U.S. used 2,4-Dichlorophenoxyacetic acid, a toxic chemical defoliant commonly referred to as agent orange, to destroy 233,351 acres of food crops in South Vietnam. (86) During the same period, defoliant operations were conducted on 1,522,300 acres, resulting in exposure to adjacent agricultural land. (87) Although the program was directed at enemy Vietcong forces, it effectively destroyed and denied food to neutral civilian communities because the Vietcong regularly seized food from these communities to support their operations. (88) Although destroying supply lines and denying food is an effective strategy to degrade enemy force morale, the crop destruction program did not have the desired effect of denying food to the Vietcong because of their coercive access to rice at the consumer level. (89) The effected civilian communities resented the program because it destroyed their livelihood, exposed them to a toxic substance, and had limited success in achieving the objective of denying food to enemy forces. (90) The rural population felt the program was as much directed at the civilians as it was the Vietcong. (91)

From 1965 to 1972, air campaigns labeled Rolling Thunder, Linebacker I and II included 775,000 sorties over North Vietnam. (92) The first phase of the Rolling Thunder campaign was designed to destroy the emerging industrial base of North Vietnam. The second phase attempted to degrade North Vietnam’s ability to infiltrate troops and supplies into South Vietnam. (93) The third phase of the campaign attacked industrial and transportation infrastructure in and around Hanoi, Haiphong and buffer zones near the Chinese border. (94) The fourth phase of the campaign from April to November, 1968 was a de-escalation of the bombing to promote negotiations. (95) A psychological operation accompanying this campaign included dropping an estimated one billion leaflets and other pieces of printed material in conjunction with radio broadcasts warning civilians to stay away from military objects subject to attack. (96) The objective of the operation was to minimize civilian casualties, project a message of humanitarianism amidst reports of U.S. targeting misconduct, and discourage civilians from assisting in the restoration and repair of damaged military equipment. (97) While the bombing campaign caused some evacuation of civilians and depressed civilian morale, it did not have the desired effect of achieving concession. The North Vietnamese regime used the bombing campaign to fuel already inflamed perceptions of U.S. forces, and to posture their message that the conflict was a struggle to liberate South Vietnam from American imperialism. (98)

Eager to remove itself from the war, the U.S. executed massive bombing attacks during Linebacker I and II to encourage the North Vietnamese to bring the conflict to a close in accordance with terms it had previously agreed. (99) During an eleven day bombing campaign in 1972 designed to force the North to end the war, the U.S. flew approximately 1,369 sorties targeting military installations, rail yards, petroleum stocks, bridges, roads, electric power production facilities, and steel works believed to support the North’s war effort. (100) The dual-use infrastructure supported the civilian economic base and North Vietnam’s ability to conduct military operations.

Vietnamese leadership described the Vietnam conflict as a “people’s revolution,” requiring the incorporation of the entire Vietnamese population into its defense. (101) The strategy to incorporate the populace into the conflict increased the difficulty in distinguishing between civilian and military objects, and promoted collateral damage. The Vietcong commonly took advantage of objects normally legally immune from attack to conduct military operations and to obtain sanctuary for military personnel, equipment and supplies. Such objects included religious and historical buildings, private dwellings or other civilian structures. (102) In some cases, the U.S. restricted targeting protected objects used as sanctuary. For example, dikes on the Red River being used as platforms for air defense were restricted from attack. (103) Notwithstanding Vietcong transgressions in commingling military personnel and resources with the civilian population, their ability to leverage public sympathy from U.S. bombing campaigns and incidents of collateral damage was novel and well planned. The Vietcong ultimately achieved a strategic advantage that contributed to efforts to discredit U.S. operations and force a withdrawal from the conflict.

Although modern rules of targeting and civilian immunity were not fully codified at the time, the U.S. conducted operations in accordance with rules of engagement that were largely consistent with Protocols Additional I and II of the 1949 Geneva Conventions (Protocols I and II), rules that would not become codified until 1977. (104) U.S. rules of engagement recognized principles of distinction, proportionality, humanity, necessity and the general protection of civilians. (105) In recognition of the importance of observing civilian immunity, rules of engagement for aerial operations in Vietnam specifically stated, “pilots will endeavor to minimize civilian casualties and civilian property damage.” (106) Recognition was also given to the complexity of urban conflict. Rules of engagement required that attacks on targets “in urban areas must preclude unnecessary danger to civilians and destruction of civilian property, and by their nature require greater restrictions than the rules of engagement for less populated areas.” (107) The extent to which U.S. forces complied with rules to minimize attacks on civilians and civilian objects is widely debated, especially given the strategy of the Vietcong to commingle military personnel and resources with civilians. Essentially, Vietcong forces were able to achieve a remarkable degree of strategic superiority by exploiting U.S. rules of engagement designed to protect the civilian population. When attacks were initiated against legitimate targets commingled with civilians, the Vietcong could exploit the incident in the form of an information operation to obtain public sympathy for any collateral damage. The Vietcong were able to rally support from the international community through political protests of U.S. bombing operations. Worldwide and domestic protests isolated U.S. leadership, resulting in limited tactical, operational and strategic options.

Most importantly, the Vietnamese reached out to the

American people, making a distinction between us [the American

public] and our government. For a people facing American

bombs, this was a heroic, calculated, and principled gesture. I

realized how heroic it was when I met some of the victims of our

own bombing and heard them transcend blind rage in order to

send greetings to the American anti-war movement … Politically,

the Vietnamese always believed in the importance of the anti-war

movement … They encouraged it the best they could, knowing

that creating a climate of opinion hostile to the war would be one

important way of ending it. (108)

Vietnam is the first example of a concerted, well-organized strategy by an adversary to exploit humanitarian concerns and discredit the U.S. for collateral damage from combat operations. The failure to effectively counter the Vietcong psychological offensive contributed to a remarkable loss of U.S. support for operations in Vietnam. The U.S. public was likely further agitated by the failure of U.S. decision-makers to comment on bombing operations considered classified. For example, the failure to respond to allegations of wanton destruction during Linebacker II operations isolated the Nixon administration and fueled resentment, leaving the North Vietnamese disinformation campaign unchallenged. (109) The Vietcong were so successful in their strategy to exploit U.S. rules of engagement and discredit U.S. operations that it would become an attractive model for future U.S. adversaries unable to effectively challenge the U.S. on the conventional battlefield. Finally, the Vietnam experience would begin a trend in U.S. military operations that reflects elevated sensitivity to humanitarian concerns and collateral damage.

G. The Modern Law of Targeting and Civilian Immunity

Following the Vietnam War, the ongoing effort to codify the international customs of warfare led to the development of the most recent and relevant rules for targeting. Protocols I and II of the 1949 Geneva Conventions were opened for signature in 1977. (110) These Protocols codify the principles of distinction, proportionality, necessity and humanity. In addition, Protocol I restricts the targeting of cultural resources, the environment, objects containing dangerous forces (dams, dikes and nuclear power facilities), and other items necessary for survival like water purification plants and agricultural foodstuffs. (111) The protocol prohibits a combatant from using civilians or civilian objects as shields (112) or pretending to be a civilian. (113) Article 52(2) of Protocol I, defining what constitutes a “military objective,” also focuses on the protection of civilian objects by attempting to establish criteria for a legitimate target. A military objective pursuant to Article 52(2) makes an effective contribution to the enemy’s military action, and its destruction must provide a definite military advantage to the attacker. More specific, forces may only attack military targets that by their nature, location, purpose or use, effectively contribute to enemy military action. (114) Although the U.S. has not ratified Protocol I, it recognizes the Protocol insofar as it is consistent with customary international law. (115) Moreover, it is thoroughly represented in U.S. military doctrine, practice and rules of engagement. (116) Protocol II enumerates similar restrictions on the attack of civilian objects and populations during non-international conflicts in less comprehensive form as Protocol I. (117) This Protocol is not ratified by the U.S. (118)

The principles of distinction, proportionality, necessity, and humanity form a fundamental basis to determine whether a target may be attacked under LOAC. The principle of distinction requires that military objects be distinguished from civilian objects prior to attack. (119) Distinction is the most important principle affording protection to civilians. Protocol I, Article 51(4) prohibits indiscriminate attacks. “Indiscriminate attacks are: (a) those which are not directed at a specific military objective; … and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.” (120) Civilians enjoy this protection “unless and for such time as they take a direct part in hostilities,” and they may not be used as shields to deny attack of otherwise legitimate military objectives. (121)

This principle is supplemented by the principle of proportionality. Article 51(5)(b) directs that attacks on a specific military objective are impermissible if they “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” (122) Placing further restriction on targeting is Article 50(3), stating that, “the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” (123) A responsible military commander intent on the engagement of a particular target must determine first if it is a military objective, and then whether the collateral damage from destruction of the target is proportionate to the military advantage of destroying it. These articles do not forbid the loss of civilian life, but attempt to prevent civilian casualties and ensure any loss is well justified. In preparation for an attack, Article 57 requires planners to, “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” (124)

The principle of humanity incorporates several concepts, including the principle commonly referred to as “chivalry.” In practice, the principle seldom receives considerable attention relative to other targeting principles because it is inherent to the letter and spirit of LOAC. For example, chivalry distinguishes acts of deception from those that undermine the goodwill of the enemy. Acts of perfidy are prohibited pursuant to Protocol I, Article 37. (125) In contrast, camouflage, decoys, mock operations, and misinformation used to deceive an adversary are not prohibited. (126)

The Convention on Environmental Modification of 1976 was designed to prohibit military use of environmental modification techniques in war and to eliminate the indiscriminate, pervasive, and long-term dangers to mankind. (127) The convention effectively restricts targeting the environment or attempting to use it as a weapon. For example, it would be a violation of the convention to spread aerosol into the atmosphere to dissolve ozone and create drought conditions. The term “environmental modification techniques” refers to any method that manipulates “natural processes–the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.” (128) In comparison, Article 54(2) of Protocol I says it is prohibited to “attack objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population … whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.” (129)

The final significant international instruments that limit targeting are a result of the Final Act of the United Nations Conference on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (Convention on Use of Indiscriminate Weapons of 1980). (130) The convention contributed to the international community’s ongoing effort to codify international law and provide clear instruction on the protection of the civilian population. The convention is separated into four protocols. The Protocol on Non-Detectable Fragments (Protocol I) restricts the use of any weapon that injures by fragments that escape x-ray detection in the human body. (131) Examples of such fragments include ceramic, plastic or other non-metallic projectiles. The Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) prohibits direct use of mines and traps against the civilian population, and any indiscriminate use that potentially causes injury or death to civilians. (132) Protocol II does not forbid the loss of civilian life, but recognizes that these weapons must be directed against a military objective, and civilian casualties must not be excessive in relation to the military advantage anticipated. The Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) prohibits any use of incendiary devices against civilians. (133) The Protocol on Blinding Laser Weapons (Protocol IV) prohibits the employment of lasers specifically designed to cause permanent blindness; (134) however, the incidental or collateral effect of blindness is authorized. (135) The Convention on Use of Indiscriminate Weapons of 1980 and its Protocols repeat the principles already established in Protocols I and II of the 1949 Geneva Conventions. The U.S. is a party to the Convention on Use of Indiscriminate Weapons of 1980, Protocols I and II. It does not recognize Protocols III and IV. (136)

H. The Era of Asymmetric Warfare and Precision Targeting

1. The Persian Gulf War/OPERATION DESERT STORM

Labeled the “technological revolution in warfare,” the Persian Gulf War introduced innovative technology and strategy to the battle space, including precision weaponry, improved surveillance, reconnaissance and stealth technology. Perhaps most widely praised were precision-guided munitions (PGM). These weapons were widely used during the Gulf War to minimize collateral damage and fine tune target sets to meet strategic objectives. (137) Limiting destruction of the civilian infrastructure through the use of PGM reduced some hardship on the Iraqi people while denying meaningful use by the military. (138) The initial U.S. coalition bombing campaign against Iraq identified key centers of gravity as: l) the command, control, and leadership of Saddam Hussein’s regime; 2) Iraq’s capability to manufacture, service, and employ weapons of mass destruction; and 3) the Republican Guard. (139) Psychological operations were a key element of the campaign, proposing strikes against television and radio broadcast facilities that would reduce military and popular support of the regime. (140) The objective was to incapacitate and isolate the regime, then incite the Iraqi military and civilian population to revolt: (141)

The leadership, telecommunication infrastructure and [C.sup.3]

[Command, Control and Communication capabilities] became

the essential target sets for producing change in the Iraqi

government. In the view of the Coalition air campaign

planners, these target sets constituted the key centers of gravity

or central nervous system of the Baghdad regime, enabling

Saddam and his associates to govern and control Iraq and its

population. All told, there were 44 leadership and 146

telecommunications and [C.sup.3] targets in Baghdad and other areas

of Iraq. (142)

Specific objectives included the destruction of Iraq’s electric power system to deny electricity, (143) destruction of fuel production, (144) and bridges over the Tigris River in downtown Baghdad to disrupt logistics, (145) and the destruction of television and radio broadcasting facilities to isolate military forces from their leadership. (146) Even though the air campaign would cause hardship to the civilian population, coalition planners followed stringent procedures to select and attack targets to minimize collateral damage and civilian casualties. (147)

The coalition was so earnest in this approach, a list of “off-limits” targets was developed that included historical, archaeological, economic, religious and politically sensitive sites. (148) Additionally, target analysts were tasked to look in a six-mile area around each target on the master attack list “for schools, hospitals, and mosques” to identify where extreme care was required. (149) The norm was to use PGM rather than less accurate gravity weapons in urban or populated areas. Attack procedures specified that if pilots could not identify the target or were not confident the weapon would guide properly for any reason, the weapon should not be delivered. (150) The U.S. conceded that collateral damage occurred in spite of the tremendous effort to minimize it. Some of the collateral damage was a result of the Iraqi regime’s invitation and fabrication of collateral damage. (151) In an effort to deter attack, the Iraqi regime applied methods of concealment warfare. Iraqi military personnel, weapons, supplies and equipment were located near residential areas and protected objects like mosques, medical facilities, schools and cultural sites (Figures 1 and 2). (152)

[FIGURES 1-2 OMITTED]

Unfortunately, coalition attacks did not achieve the desired result of isolating the Hussein regime. According to battle damage assessments, approximately seventy percent of leadership telecommunications, thirty percent of the leadership, and twenty-five percent of the military communications targets were still operational after the air campaign. (153) One notable reason for the low percentage of targets destroyed was reluctance to engage targets after an estimated 288 Iraqi civilians seeking shelter were killed at the al-Firdos bunker on February 13, 1991. (154) Although the coalition was confident the site was a valid military objective, the event was a pivotal point in the war. All targets engaged after the incident were pre-briefed and approved by the highest ranking officer in the theater, General Norman Schwarzkoph, who took considerable time in his deliberation and denied attack approval for some targets altogether. (155) Moreover, bombing in Baghdad was discontinued following widely critical press throughout the international community. (156) The U.S. argued that Iraq utilized the incident and any other collateral damage incidents, including damage from its own air defenses, in disinformation campaigns designed to discredit coalition operations to the U.S. public and the international community. (157) The portion of the campaign targeting the Iraqi people’s popular support of the regime was probably miscalculated. While the attacks achieved the objective of disrupting the lives of the Iraqi civilian population, an uprising did not occur and Saddam Hussein remained in power after the war. Human Rights Watch (HRW) alleged up to 3,000 civilians were killed from approximately sixty-five incidents of collateral damage. (158) In comparison, Iraqi officials claimed civilian casualties exceeded 7,000. (159) The bombing probably aggravated the already tenuous condition of the civilian population by contributing to the humanitarian crisis that existed from the 1990 U.N. embargo and previous war with Iran. (160) Although the embargo excluded food and medical supplies for humanitarian relief, the Iraqi population suffered a pervasive loss of water treatment, sewerage, electrical and telecommunication service. (161) Further, the high reduction in the available food supply aggravated the tragedy. (162)

Notwithstanding the collateral damage described above, the coalition bombing campaign in Iraq demonstrates a significant transition away from targeting the will and morale of the adversary insofar as it included civilians. Although coalition objectives initially included targeting civilian morale, the al-Firdos bunker incident was a turning point, creating a preoccupation to minimize civilian casualties and any other collateral damage. This is demonstrated by the decision to discontinue bombing in Baghdad and cancel plans to attack bridges over the Tigris River. (163) Additionally, plans to destroy a large statue of Saddam Hussein and a set of victory arches commemorating the Iran-Iraq war were cancelled because it was determined the psychological value of the attacks would not survive the potential political fallout after the al-Firdos attack. (164) The pervasive media attention given to the al-Firdos incident afforded the Iraqi regime a convenient, inexpensive, and highly-effective method to communicate with the international community, appeal to humanitarian interests, and exploit the event to discredit and discontinue coalition bombing operations in Baghdad.

2. War in the Balkans/OPERATION ALLIED FORCE

From March to June 1999, the U.S. and North Atlantic Treaty Organization (NATO) allies engaged in military operations to end Serbian atrocities in Kosovo, and force Slobodan Milosevic to withdraw forces from the area. The NATO coalition had three primary objectives in conducting the campaign: 1) prevent expansion of the conflict into Slovenia, Croatia and Bosnia; 2) end Milosevic’s campaign of ethnic cleansing and repression in Kosovo; and 3) ensure NATO’s credibility would not be damaged by allowing The Federal Republic of Yugoslavia and the Republic of Serbia to breach multi-lateral peace agreements. (165) During the course of the campaign, NATO developed an integrated targeting process that required allied approval for targets presenting a high risk of collateral damage. (166) Destruction of the Serbian military forces was a primary goal of the NATO coalition; however, an attack on the morale of the civilian population was also a focus of the campaign to isolate Milosevic and compel public pressure to end the war. (167) The targets destroyed or significantly damaged in the campaign included eleven railroad bridges, thirty-four highway bridges, twenty-nine percent of all Serbian ammunition storage facilities, fifty-seven percent of the petroleum reserves, all Yugoslav oil refineries, fourteen command posts, over one hundred aircraft, and ten military airfields. (168) Targets also included electrical and broadcast services, news media and two of Milosevic’s homes reportedly used as command and control facilities. (169) Over the course of the fifty-seven day campaign, the emphasis was placed on PGM that increased the probability of destroying the target and minimized collateral damage. During the Persian Gulf War, only ten percent of munitions delivered were PGM compared to ninety percent in OPERATION ALLIED FORCE (OAF) in the Balkans. (170)

Milosevic employed tactics designed to exploit NATO’s political concerns about target selection and collateral damage by commingling military personnel with civilian refugees. (171) Milosevic was compelled to resort to asymmetric methods because of his inability to directly challenge a superior NATO force:

He chose to fight chiefly through asymmetric means: terror

tactics and repression directed against Kosovar civilians; attempts

to exploit the premium the alliance placed on minimizing civilian

casualties and collateral damage; creation of enormous refugee

flows to create a humanitarian crisis, including in neighboring

countries; and the conduct of disinformation and propaganda

campaigns…. The humanitarian crisis created by Milosevic

appeared to be an attempt to end NATO’s operation by

“cleansing” Kosovo of ethnic Albanians, overtaxing bordering

nations’ infrastructures, and fracturing alliance cohesion. (172)

Serbian forces employed a wide variety of concealment warfare tactics to deceive NATO forces. For example, troops and equipment were dispersed, then hidden throughout the countryside in civilian homes, barns, schools, factories, and monasteries. (173) Serb forces dispersed among civilian traffic during movement, (174) and used human shields to protect military equipment. (175) These tactics contributed to several incidents of collateral damage resulting in civilian casualties. Having what appears to be the most accurate and thoroughly researched accounting of collateral damage, HRW concludes that as few as 489, and as many as 528 civilians were killed in approximately ninety incidents of collateral damage. (176) Approximately sixty-four percent of the total civilian deaths occurred in twelve incidents. (177) In comparison, the Federal Republic of Yugoslavia claimed 1,200 to 5,000 civilian casualties from the war. (178) HRW reported that almost half of the incidents occurred during daylight hours, when civilians could reasonably be expected on roads, bridges, and in public buildings. (179) The most notable collateral damage events include inadvertent attacks on refugees over a twelve-mile stretch of the Djakovica-Decane road in Kosovo, resulting in seventy-three civilian casualties; attacks near Korisa, where as many as eighty-seven refugees were killed; and two incidents involving attacks on civilian buses at Luzane and Savine Vode. (180) The most politically significant collateral damage event was the bombing of the Chinese Embassy in Belgrade. Reported as a failure in the process of identifying and validating proposed targets, NATO forces were attempting to target the headquarters of the Yugoslav Federal Directorate of Supply and Procurement, a legitimate military target. (181) None of the military or intelligence databases used to validate targets contained the correct location of the Chinese Embassy. (182)

OAF set the stage for more aggressive challenges of dual-use targets, objects having utility for both the military and civilian population. For example, the destruction of the Serb Radio and Television (SRT) Headquarters in Belgrade that resulted in sixteen dead and sixteen wounded, (183) the “Marshal Tito” Petrovaradin (Varadinski) Bridge in Novi Sad, and the attack on the Belgrade Heating Plant all received significant attention from humanitarian interest groups and the international community. (184) Regardless of NATO’s legal determination that the targets were legitimate military objectives, HRW argued that NATO did not take adequate precautions in warning civilians of the attacks, nor were proportionality principles satisfied because the targets were located in dense urban areas. (185) Ultimately, HRW argued the risks involved to civilians in the attacks were disproportionate to any perceived military benefit achieved. (186) Although NATO targeted the headquarters because it was being used to transmit propaganda supportive of Milosevic, HRW contended it had no military importance because it was not being used to “incite violence,” citing the appropriate destruction of Radio Milles Collines during the Rwandan genocide. (187) HRW went on to argue that even if the attack could be justified, the destruction of the transmitter equipment instead of the building and its occupants would have easily disrupted communication.

Another significant issue that emerged from OAF is the use of cluster munitions. Seven incidents of collateral damage resulted in 90-150 civilian deaths from cluster bombs used by the U.S. and Britain. The most serious incident involved the mid-day attack on Nis airfield, killing fourteen civilians and injuring twenty-eight. (188) Cluster bomb sub-munitions fell in three widely separated areas; near the Pathology building of the Nis Medical Center in southeast Nis, in the town center near the Nis University Rector’s Office and central city market place, and a bus station near the Nis Fortress and the “12 February” Health Center. NATO confirmed the attack on Nis airfield, and on May 8, 1999, NATO Secretary General Solana accepted responsibility, stating that “NATO has confirmed that the damage to the market and clinic was caused by a NATO weapon which missed its target.” The CBU-87 cluster bomb container failed to open over the airfield. Instead, it opened after release from the attacking aircraft, projecting sub-munitions a great distance into the city. (189) An investigation conducted by a committee of the International Criminal Tribunal for the Former Yugoslavia (ICTY) concluded that none of the foregoing collateral damage incidents presented sufficient evidence to warrant additional review or prosecution for violations of LOAC. (190)

3. OPERATION ENDURING FREEDOM: An Emerging Crisis in Distinguishing Combatants from Civilians

OPERATION ENDURING FREEDOM (OEF) gave prominence to the term “effects-based operations.” The term refers to the full integration and interoperability of military forces and other national assets to create a cascading series of effects that achieve strategic goals instead of resorting to traditional force-on-force combat emphasizing physical destruction. (191) More simply, strikes focus on the effects they have on behavior rather than on observable physical damage to objects. The initiative relies heavily on the application of precision-strike technology. (192) Since OEF was largely designed as a coalition operation to remove the Taliban government and eliminate the al-Qaeda terrorist network taking refuge in Afghanistan, targeting the already subjugated civilian population in any form provided no meaningful benefit. The focus of attacks on Taliban and al-Qaeda rather than civilian infrastructure such as bridges, electrical power and water supply services minimized the humanitarian crisis experienced in previous operations. (193) Al-Qaeda and Taliban targets included ground forces, early warning radars, command and control facilities, basing operations, al-Qaeda infrastructure, airfields, aircraft and targets of opportunity–those targets that presented themselves in the course of the campaign that were not pre-planned. (194) The coalition was protective of infrastructure and religious sites, an expression that was instrumental in minimizing conditions contributing to a humanitarian crisis and avoiding any message that the war against terrorism was a war against Islam. Rules of engagement were designed “so as to not needlessly shame or antagonize the enemy, tilt allied or U.S. public opinion in a particular direction, or escalate hostilities.” (195)

Although Taliban and al-Qaeda were unable to organize any significant challenge, numerous collateral damage incidents suggest there was difficulty in distinguishing civilians and civilian objects from combatants. This problem would seem predictable since the al-Qaeda terrorist network was composed of unlawful combatants who were difficult to distinguish from civilians. (196) Many Taliban and al-Qaeda forces were well integrated into the civilian community, (197) and did not fall under a responsible command that conducted operations in accordance with LOAC. Further, they did not have a fixed distinctive sign recognizable from a distance, nor did they carry their arms openly pursuant to article 4(a) of Geneva Convention III. (198)

Concealment tactics used by the adversary in Afghanistan resulted in a number of collateral damage incidents. As many as thirty-five Afghan civilians were killed on October 22, 2001 when a U.S. coalition aircraft attacked the village of Chowkar-Karez. (199) Witnesses interviewed by HRW were unaware of any Taliban or al-Qaeda positions in the area of the attack. (200) The incident in Chowkar-Karez occurred one day after twenty-three civilians were killed when bombs hit the village of Thori, located near a Taliban military base in Oruzgan province. (201) According to witness accounts, U.S. coalition aircraft bombed the area three times on the evening of October 21. (202) The target of the attack was a large Taliban military base known as Gar Mao, located approximately one kilometer from the village. The base was an ammunition depot, defunct military prison, and barracks for Taliban military personnel. (203) Near Hutala, Afghanistan, U.S. A-10 attack aircraft targeting a terrorist suspect, Mullah Wazir, mistakenly killed nine children playing marbles in a field. (204) In another highly publicized event, a U.S. AC-130 gunship attacked a wedding party in the village of Deh Rawud, Uruzgan Province, killing “dozens” of civilians. Reports suggest that a large group of guests at the wedding party were firing weapons into the air in celebration while standing near an artillery site. The aircraft observed directed, sustained gunfire, suggesting an attempt to engage, then returned fire in self-defense. (205) In the Summer of 2002, reporters made a total accounting of eleven locations where civilian casualties were reported: Gardez (Nov. 14, 2001, 23 dead), Khost (Nov. 16, 2001, at least 65 dead), Zani Khel (Nov. 16, 2001, 20 dead), Madoo (Dec. 1, 2001, 55 dead), Khan-i-Merjahuddin (Dec. 1, 2001, 48 dead), Asmani and Pokharai (Dec. 20, 2001, approximately 50 dead), Niazi Qala (late Dec. 2001, 52 dead) Zhawara (Feb. 4, 2002, 3 dead), Char Chine (May 12, 2002, 5 dead) and Kakrak (Jul. 1, 2002, 54 dead). (206)

If the Taliban or al-Qaeda had any plan to mount a campaign of deception or misinformation based on collateral damage, it was not readily identifiable from western media and did not achieve any significant public support. (207) This is probably a result of the popular political and public support of OEF altogether with at least seventy countries participating in the coalition. (208) In some cases, the Afghan population was relatively tolerant of collateral damage. For example, an Afghan group protesting the deaths of forty civilians from a U.S.–led raid on a village near Kandahar were upset with the incident, but expressed an objective view: “We are not against the Americans, but it doesn’t mean they should drop bombs on residents, happy ceremonies and sanctuaries instead of military targets …. The United States should get through to its officers that this kind of incident could destroy relations and the trust between the two nations.” (209)

4. OPERATION IRAQI FREEDOM: Integration of Combatants and Civilians on a Strategic Scale, and the Era of Concealment Warfare

OPERATION IRAQI FREEDOM (OIF) goals were largely aligned with the elimination of weapons of mass destruction (WMD), elimination of any terrorist threat, and the removal of the regime. (210) These political goals were translated into operational objectives: 1) defeat or compel capitulation of Iraqi forces; 2) neutralize regime leadership and its command & control systems; 3) neutralize or control all Iraqi WMD delivery systems and infrastructure; 4) ensure the territorial integrity of Iraq; 5) posture forces for post-hostility operations and initiate humanitarian assistance where feasible; 6) establish conditions for a provisional/ permanent government to assume power; 7) maintain international and regional support; 8) neutralize the Iraqi regime’s security forces; and 9) acquire air, maritime and space supremacy. (211)

Though a complete accounting of damage to civilian objects and civilian casualties resulting from the war is impossible, some attempts to quantify the dead have been made. Iraq claimed 1,252 civilians were killed and 5,103 injured from coalition attacks as of April 3, 2003. (212) A review of records at sixty of Iraq’s 124 hospitals in June of the same year indicated 3,420 dead, including 1,896 in Baghdad. (213) The Associated Press described the count as “fragmentary” and said, “the complete toll, if it is ever tallied, is sure to be significantly higher.” (214) Cluster munitions were reportedly responsible for 273 civilian casualties at al-Hilla and al-Najaf, and ground combat was responsible for 381 civilian deaths at al-Nasiriya. (215) The Los Angeles Times completed a survey of twenty-seven hospitals in Baghdad and the local area, reporting that at least 1,700 civilians died and more than 8,000 were injured in the capital. (216) Problems leading to an accurate count of civilian casualties include the dead being buried almost immediately in observance of Islamic tradition, and the low priority to record and assemble data during combat operations. Part of the problem in maintaining statistics was the inability to distinguish civilians from soldiers who were dressed in civilian clothes. The U.S. does not have a formal requirement to investigate collateral damage incidents, nor does it have any requirement to acquire data on the number of civilians killed or injured during operations. Like previous operations, the most accurate data available is from media, non-government organizations (NGOs) and humanitarian interest groups.

Significant collateral damage incidents resulted from Iraqi forces using civilian shields, feigning surrender, commingling with the civilian population, and misusing emergency relief vehicles or hospitals to conduct military operations (Figures 3-5). (217) Iraqi forces transferred ammunition from military depots to smaller bunkers in civilian neighborhoods, schools, cultural sites, religious sites and other civilian facilities to avoid attack (Figures 6-9). (218) Anti-aircraft weapons were placed on the roof of the Ministry of Information (Figure 10) (219) and the Iraqi 51 st Warning and Control Regiment relocated to a mosque before hostilities. (220) Perfidy, deception and attempts to acquire sanctuary in civilian communities was commonplace for Iraqi forces:

[FIGURES 3-10 OMITTED]

To sum up, we are now observing an activity that has

been going on for over 10 years. The Iraqis have regularly

placed air defense missile systems and associated equipment in

and around civilian areas, including parks, mosques, hospitals,

hotels, crowded shopping districts, and even in cemeteries.

They have positioned rocket launchers next to soccer stadiums

that are in active use, and they’ve parked operational

surface-to-air missile systems in civilian industrial areas.

This is a well-organized, centrally managed effort, and its

objectives are patently clear: preserve Iraq’s military

capabilities at any price, even though it means placing innocent

civilians and Iraq’s cultural and religious heritage at risk. (221)

Iraqi forces were in many cases very well integrated with the civilian community, even to the point of commingling with civilians on buses during combat. (222) Iraqi civilians regularly reported seeing Iraqi troops out of uniform. One witness expressed concern that the practice resulted in numerous civilian casualties. Dr. Abd al-Sayyid, director of al-Nasiriya General Hospital, said “Fedayeen were among the civilian homes…. [T]he problem was with the Iraqi troops and Fedayeen dressed as civilians.” (223) Iraqi witnesses in al-Najaf and in the al-Yarmuk neighborhood of Baghdad reported similar practice among Iraqi forces. (224) Almost every member of the Coalition interviewed by HRW commented on the practice. One senior officer observed, “By March 24 [the fourth day of the war], we were already seeing a large number of irregulars out of uniform. It was clearly a combination of systematic and conscious [strategy].” (225)

The Iraqi strategy to conceal military assets with civilian objects, wear civilian clothes, and commingle with the civilian population was problematic to operations, creating a high potential for civilian casualties and increasing stress on U.S. forces instructed to spare civilian life when engaged. (226) Soldiers from the U.S. Army’s 3rd Infantry Division opened fire on an unidentified four-wheel drive vehicle as it was approaching a U.S. checkpoint near al-Najaf on March 31, 2003. (227) Personnel in Bradley Fighting Vehicles attempted to direct the vehicle to stop, then opened fire with 25mm cannons, killing seven of the fifteen civilian passengers. (228) The London Times reported Iraqi soldiers in civilian dress used women as their scouts to lure U.S. Marines into a firefight. Sixteen Iraqi soldiers were killed in the battle along with twelve civilians. (229) In another event, Marines shot a speeding civilian truck that failed to halt, killing three men only to find bags of rice and no weapons inside. (230) Commenting on the Iraqi Regime’s methods, Vice President Taha Yassin Ramadan threatened: “This is the beginning, and you will hear more good news in the coming days. We will use any means to kill our enemy in our land, and we will follow the enemy into its land.” (231) In a measure to minimize civilian casualties, Coalition forces routinely dropped leaflets from the air advising Iraqi civilians of pending attacks, and to stay away from military assets. The Iraqi regime responded by issuing erroneous warnings that the leaflets were coated with harmful chemical residue. (232)

Reports indicate that Iraqi political leaders may have also used Thuraya cell phones to provoke attacks on protected facilities. On March 24, 2003 two high profile Iraqi political leaders arrived at the same al-Nasiriya hospital where Pvt Jessica Lynch was captive. In an apparent effort to seek protection from attack or to provoke an attack on the hospital, the governor of al-Nasiriya, Adel Mehdi, and head of security, Kamil Bahtat, arrived brandishing Thuraya satellite phones. (233) Aware that the phones could be electronically detected and targeted, physicians at the hospital “were screaming at the Ba’athists to leave…. One of my colleagues even threatened to shoot them if they did not.” (234) The two Ba’athists remained at the hospital unharmed. Although two Red Crescents marked the roof of the hospital and a flag bearing the same symbol was openly displayed, a coalition attack killed four and injured 70 patients. (235) In addition, a physician recalls how ambulances responding to the incident were also attacked: “As the ambulances moved in to take the injured to the other hospital, they fired at them, too, from helicopters.” (236)

Although there were no reports of casualties, volunteer human shields in OIF were prominent in the media, introducing another dynamic to the already difficult issue of civilian presence in the battle space. Not an entirely novel idea, volunteer human shields also placed themselves at strategic locations during OAF. In a notable demonstration protesting the war, more than 200 foreign volunteers, including some from the U.S., placed themselves at Iraqi power plants, water treatment facilities, hospitals and other installations critical to the civilian population. (237) Upon arrival, however, some volunteers were disappointed to find that Iraqi officials refused to let them shield their preferred sites, hospitals and schools. Instead, they were directed to food storage and utility sites, including one with a large military camp around it. (238) Although it is difficult to determine the effect of volunteer human shields on the overall campaign, their presence is recognized as a key factor in CENTCOM’s targeting process. (239) Notwithstanding the ability to qualify volunteer human shields as combatants pursuant to Protocol I, Article 51(3), (240) the presence of volunteer human shields in both OAF and OIF suggests another dynamic in the growing trend to use civilians to gain a strategic advantage. When questioned about his motives for being a human shield, one volunteer expressed satisfaction in achieving at least one goal, “What would you expect the American generals to say? The fact that they even talk about us is already something. It means we are on their agenda. We are trying to annoy them as much as possible.” (241)

III. TO WHOM DO THE RULES APPLY?

“No nation is fit to sit in judgment on any other nation.”

Woodrow Wilson

“I do not know the method of drawing up an indictment against a whole people.”

Edmund Burke

A. Application of the Law of Armed Conflict to State Adversaries

As the U.S. attempts to reach an understanding of the evil that exists in its adversaries, it must reflect on the relationships between historical and recent demonstrations of evil–from the genocide of indigenous populations in North and South America, to the extermination of Jews in WWII, to more recent ethnic cleansing campaigns in Bosnia and Rwanda. Civilians have always been central to conflict and the subject of strategy. The U.S. must also reflect on its own history at war to understand the motive of its adversaries to make civilians central to conflict. To conduct an objective and thoughtful analysis of targeting and LOAC, one must set aside the notion that there is a universal sense of fair play and decency innate to states at war. However noble the ideal, it also presents a paradox when the subject of collateral damage is introduced. These notions create a false sense of superiority and principle that encourage attack from adversaries. The question that requires thoughtful consideration is in whose interest the laws of warfare are developed? Further, to what extent do states manipulate or violate the rules to gain a strategic advantage?

Like many areas of international law, LOAC has been defined by states with the most influence, and by those states with the ability and the interest to enforce it. (242) If international law is not enforced, persistent violations can conceivably be adopted as customary practice, permitting conduct that was once prohibited. (243) A rationalist approach to international law suggests compliance is largely achieved through perceived mutual benefit. Cooperation among states can be sustained as long as it is in their interest to do so. (244) Failure to comply with obligations under international law are traditionally countered with distrust, cultural and social alienation, economic sanction, political estrangement, and in extreme cases, war. In the end, international law is only as strong as the state willing to defend it. States defending it have a political interest to do so, and it is selectively defended according to that interest. For example, U.S. political objectives presented an interest to enforce international peace agreements and prevent genocide in Kosovo (245) that did not exist for the U.S. in Rwanda where 500,000 to 800,000 Tutsi tribesmen, nearly all civilians, were slaughtered by Hatus in 1994. (246) The necessity of international law, however, is also made evident by these same events, and by strategists like Douhet, who openly advocated opening the wrath of war on the civilian population. (247)

Generally, international law in the form of treaties or other international agreements is binding only on the states that enter into them. (248) Customary international law is generally binding on all states regardless of agreement or objection because custom emanates from universal norms of behavior among states. (249) Custom is also like natural law in the sense that certain acts are so fundamentally and morally wrong that it is presumably understood universally without codification. After WWII, the International Law Commission of the United Nations established principles common to all states that were derived from custom. The basic text of the document establishes that anyone committing an act which constitutes a crime under international law may be punished regardless if the individual has acted appropriately under their domestic laws or was acting under the authority of their state government. (250) The International Law Commission also maintained that basic rights and responsibilities are inherent to the maintenance of world order. In their Draft Declaration on Rights and Duties of States, the Commission wrote that states have the duty to “refrain from the threat or use of force against the territorial integrity or political independence of another State in any other manner inconsistent with international law and order.” Further, “Every State has the right of individual or collective self-defense against an armed attack.” (251) Combined with the 1945 U.N. charter, these instruments demonstrate an attempt to establish a minimum set of rules applicable to all states, including in warfare.

The U.N. attempted to specifically codify the protection of civilians in the Geneva Conventions of 1949. The devastating aftermath of WWII on civilians demanded that the international community develop universally acceptable principles for the protection of civilians. Protocols I and II of the Geneva Conventions provide the most modern and comprehensive protection. (252) However, the popularity of the Protocols in the international community was initially mixed. Consistent with a rationalist theory of what compels states to cooperate, the Protocols did not provide mutual benefits to all concerned. Differing agendas of the states present at the conventions resulted in differing interpretations and objections that have relevance today. During negotiations, under-developed states recognized the superior capabilities of western defense technology and argued for restrictions. (253) Attempts by weaker states to negotiate restrictions on states with superior defense technology is one effective method to level the playing field for potential adversaries. Conversely, superior states seek to compel compliance with LOAC principles, restricting a weaker state’s ability to wage war.

The Supreme Court articulated the U.S. resolve to enforce LOAC against U.S. adversaries as early as WWII. In February, 1946 General Douglas MacArthur affirmed the death sentence imposed on Japanese General Tomayuki Yamashita by a U.S. military commission prosecuting him for war crimes in the Philippines. His crimes included the murder of 8,000 civilians and rape of 500 women over a two-week period. (254) Yamashita appealed the conviction to the U.S. Supreme Court on the basis that he did not personally commit the crimes, did not order them, and generally was not aware of them. (255) It was not alleged by the prosecution that Yamashita had knowledge or ordered the crimes, nor was it a requirement for conviction. (256) The Supreme Court denied the petition, explaining there was no error in the tribunal’s judgment. The Court reasoned that Yamashita could or should have known about the atrocities committed by his subordinates. (257) “These [law of war] provisions plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.” (258) Although the court carefully avoided application or mention of a standard of strict liability, a review of the decision suggests it would be difficult to reach a finding of guilt without it. The Court summarized U.S. determination to enforce LOAC against U.S. adversaries as follows:

An important incident to the conduct of war is the

adoption of measures by the military commander, not only to

repel and defeat the enemy, but to seize and subject to

disciplinary measures those enemies who, in their attempt to

thwart or impede our military effort, have violated the law of

war. Ex parte Quirin, supra, 28. The trial and punishment of

enemy combatants who have committed violations of the law of

war is thus not only a part of the conduct of war operating as a

preventive measure against such violations, but is an exercise of

the authority sanctioned by Congress to administer the system

of military justice recognized by the law of war. That sanction

is without qualification as to the exercise of this authority so

long as a state of war exists–from its declaration until peace is

proclaimed. See United States v. Anderson, 9 Wall. 56, 70; The

Protector, 12 Wall. 700, 702; McElrath v. United States, 102

U.S. 426, 438; Kahn v. Anderson, 255 U.S. 1, 9-10. The war

power, from which the commission derives its existence, is not

limited to victories in the field, but carries with it the inherent

power to guard against the immediate renewal of the conflict,

and to remedy, at least in ways Congress has recognized, the

evils which the military operations have produced. See Stewart

v. Kahn, 11 Wall. 493, 507. (259)

In sharp contrast to the Yamashita case, U.S. First Lieutenant William Calley was convicted of the premeditated murder of twenty-two infants, children, women, and elderly men, and the assault with intent to murder a child of approximately two years of age. (260) The crimes took place on March 16, 1968 in the South Vietnamese village of May Lai. (261) Testimony provided by witnesses and circumstantial evidence also suggested his immediate commanding officer, Captain Ernest Medina, also failed in his command responsibility:

He instructed his troops that they were to destroy the

village by “burning the hootches, to kill the livestock, to close

the wells and to destroy the food crops.” Asked if women and

children were to be killed, Medina said he replied in the

negative, adding that, “You must use common sense. If they

have a weapon and are trying to engage you, then you can shoot

back, but you must use common sense.” However, Lieutenant

Calley testified that Captain Medina informed the troops they

were to kill every living thing–men, women, children, and

animals–and under no circumstances were they to leave any

Vietnamese behind them as they passed through the villages

enroute to their final objective. Other witnesses gave more or

less support to both versions of the briefing. (262)

Communication between the officers involved, as well as witness statements from the trial, indicates Medina may have given orders to commit war crimes. A more conservative analysis suggests Medina had or could have had at least some knowledge of Calley’s crimes because he was in close enough proximity to the village to hear small arms in the battle space, knew the My Lai village was not contested by the Vietcong, and had regular communication with Calley. (263) In spite of this evidence, Medina was acquitted of charges that he failed to exercise command responsibility. (264) A comparison of the legal standard applied in the Yamashita case with that in Calley indicates divergent and different applications of the same law. No knowledge was required for the conviction and subsequent execution in Yamashita, while knowledge was specifically required to obtain a conviction of Medina. (265) The failure to apply a near strict liability standard against an enemy commander, but require actual knowledge in cases involving U.S. commanders, illustrates international legal standards favor, and are a function of the state enforcing them. The elements of criminal liability under the current command responsibility doctrine are: 1) the existence of a superior-subordinate relationship between the commander and the perpetrator of the crime; 2) that the commander knew or should have known, owing to the circumstances at the time, that his subordinates had committed, were committing, or planned to commit acts that violate the law of war; and 3) that the commander failed to prevent the commission of the crimes, or failed to punish the subordinates after the commission of the crimes. (266) The current U.S. command responsibility doctrine is similar in many ways to the doctrine applied in Yamashita.

B. Application of the Law of Armed Conflict to Non-State Adversaries

The application of international law to non-state adversaries is problematic, and in most cases inappropriate. Non-state actors can be broken into two separate groups: 1) non-state actors who are part of a wholly internal civil conflict where the state’s self determination is at issue; and 2) hostes humani generis, otherwise known as the common enemies of humankind. The popular phrase “one person’s terrorist is another’s freedom fighter” helps make a relevant distinction. Article 3 of the 1949 Geneva Convention provides humanitarian protections to non-state combatants when participating in an internal armed insurgency without questioning the motive or method of the insurgents. (267) The parties to the insurgency are also encouraged to enter into special domestic agreements adopting all the other provisions of the Convention. (268) Applicability of LOAC to non-state actors is complicated by the fact that these actors are not otherwise bound in any way by international law or custom.

The second group of non-state actors, hostes humani generis, includes actors who have no formal state alignment, and whose acts are generally considered criminal to the international community. Since private warfare violates even the earliest principles of international law, (269) the international community is obliged to destroy the threat of hostes humani generis where it exists to maintain international order. (270) This is particularly true where terrorism is concerned. The U.N. has promulgated specific language to deny sanctuary and eliminate terrorist groups wherever they exist. (271) Although state-sponsored terrorism is a significant and constantly emerging threat, these groups do not enjoy the protections or benefits of international law regardless of their state sponsorship.

IV. INTERNATIONAL CRIMES INVOLVING COLLATERAL DAMAGE

“The nation that draws too great a distinction between its scholars and its warriors will have its thinking done by cowards and its fighting done by fools.” Thucydides

Until the creation of the International Criminal Court (ICC) in 1998 at the Hague, Netherlands, (272) war crimes were traditionally prosecuted in tribunals assembled at the end of a conflict. (273) States may also independently prosecute their service members for war crimes under individual military criminal codes like the U.S. Uniform Code of Military Justice. Although the ICC is fully functional, tribunals and military criminal courts are still legitimate forums to prosecute LOAC crimes.

Claims for war crimes have customarily arisen from those states participating in the conflict; however the range of potential claimants seeking redress and influence over LOAC is expanding. For example, families of victims of the SRT attack in Belgrade during OAF attempted to recover monetary damages from the allied attack. (274) HRW and Amnesty International alleged the attack was a violation of LOAC and should be prosecuted as a war crime. (275) The Prosecutor for the ICTY considered reports from both Amnesty International and HRW when determining if indictments were appropriate against NATO for targeting practices in OAF. (276) A group of European law professors independently investigated British and U.S. use of cluster munitions in OIF that resulted in collateral damage at al-Hilla on April 1, 2003, the destruction of al-Jazeera television station on April 8, and a marketplace bombing on April 28. The group referred the report to the ICC for potential prosecution. (277) These examples suggest individuals, NGOs and humanitarian interest groups seek to influence the ICC and promote restrictive interpretations of LOAC, and particularly Article 52(2) of Protocol I. States attempting to subvert LOAC policies and interpretive legal rulings may also be able to obtain a strategic advantage by supporting legal or political restraint of military operations. (278) Although the ICC has not adjudicated a case concerning collateral damage as of the date of this study, it has drafted and codified expansive jurisdiction over the “War Crime of Excessive Incidental Death, Injury, or Damage.”

A. International Criminal Court Jurisdiction

In order to properly prosecute pursuant to the Rome Statute for the International Criminal Court (Rome Statute), the ICC must have both personal and subject matter jurisdiction. Personal jurisdiction refers to a court’s ability to exercise authority over the parties of a case. Subject matter jurisdiction refers to a court’s authority to adjudicate a particular type of case. The ICC has personal jurisdiction over individuals who meet any of three criteria. (279) First, the court has jurisdiction over nationals of an ICC party state. (280) Second, the court has jurisdiction over an act by any individual, including nationals of non-party states, if that act was committed in a party state. (281) Third, the court has jurisdiction over an act by any individual, including nationals of non-party states, if the act was committed in a non-party state and the non-party state requests that the court take jurisdiction of the matter. (282)

The ICC cannot assert jurisdiction over U.S. military members under the first criterion since the U.S. is not a party state to the Rome Statute; (283) however, both the second and third criteria may grant the court jurisdiction over U.S. military personnel. If the U.S. conducts an operation of any kind in a party state, the ICC would have jurisdiction over criminal matters associated with the operation. Similarly, if the U.S. conducts operations in a non-party state, that state could request the ICC to exercise jurisdiction over U.S. actions. As a practical matter, the U.S. has entered into separate international agreements, commonly referred to as Article 98 Agreements, with various states to refuse cooperation with ICC jurisdiction in those areas where it conducts operations. (284)

The court’s jurisdiction is limited by the principle of complementarity, which mandates that the ICC cannot prosecute a case where jurisdiction is already asserted. In other words, if the U.S. or another state asserts jurisdiction over a war crime, then the ICC must defer adjudication to that state. (285) The ICC must also defer where a state investigates a war crime and determines prosecution is inappropriate. (286) This rule has an exception. The ICC is not required to defer to another state if the state is either “unwilling or unable genuinely” to investigate or prosecute. (287) In evaluating a state’s unwillingness, the court will consider whether the purpose of a state’s proceedings regarding a war crime is to shield the individual from criminal liability, whether there is unjustifiable delay in prosecution or investigation, and whether the proceedings are being conducted independently and impartially. Thus, the ICC will decide whether a state’s investigation into a crime is sufficient to preclude the ICC from asserting jurisdiction. (288)

Also posturing the ICC’s jurisdiction and authority over war crimes is the principle of insularity. The ICC is the sole arbiter of its jurisdiction and of any challenges to the propriety of its legal decisions. Article 19, paragraph 1 empowers the ICC alone to resolve all judicial decisions, including decisions relating to jurisdiction, the application of complementarity, and actions that constitute a crime. (289) The court also has an appeals process that is exclusive and internal to the ICC. Thus, the ICC alone decides whether a crime was committed, what actions are sufficient to constitute a crime, and whether a state’s actions are sufficient to invoke the principle of complementarity and preclude the court from exercising its jurisdiction. (290) The Rome Statute permits the Security Council to order the ICC, through a resolution adopted under Chapter VII of the U.N. Charter, to defer a prosecution or investigation for a twelve month period; but absent such a resolution, the ICC would be free to proceed. (291) The breadth of the Rome Statute’s provisions grants the ICC sufficiently broad authority to permit jurisdiction while ensuring rulings cannot be appealed to any outside legal forum.

B. Collateral Damage as a War Crime at the International Criminal Court

The ICC has subject matter jurisdiction over crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. (292) The category of war crimes is the most relevant to incidents of collateral damage. The war crimes category contains fifty separate criminal acts. (293) Many crimes described in the Rome Statute are identical or similar to provisions found in other widely accepted international conventions, such as the 1949 Geneva Conventions. (294) The Rome Statute proscribes that war crimes that are not identical or substantially similar to provisions in other international agreements and conventions emanate from “the established framework of international law.” (295) However, the ICC has been criticized for modifying some well-established criminal definitions and adding other crimes where there is no real consensus in the international community. Accused of advancing a political agenda, the ICC has adopted criminal provisions for acts that are not clearly criminal under current international law. (296) The criminal provision regarding the principle of proportionality is sufficiently vague to allow, and perhaps even invite, prosecutions for almost any collateral damage incident. Article 8, paragraph 2(b)(iv) states it is a crime if an individual “Intentionally launch[es] an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” (297)

A close analysis requires that a crime be separated into individual elements: (298) 1) the perpetrator launched an attack; 2) the attack was such that it would cause incidental death or injury to civilians, damage civilian objects or cause widespread, long-term and severe damage to the natural environment; 3) the perpetrator knew that the attack would result in excessive collateral damage; and 4) the attack was such that the extent of the collateral damage would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. (299) In any war, it is likely that a great number of attacks would easily meet the first, second, and third elements. Many attacks are launched with the knowledge that they will result in some civilian casualties. Whether such acts are criminal depends on the fourth element. The fourth element hinges on the familiar principle of proportionality. What value is placed on collateral damage in comparison to the value placed on the military advantage achieved. (300) Further, the question is whether the former was “clearly excessive” in relation to the latter. An analysis on this subject inevitably becomes subjective and provokes a discussion of “value judgment.”

The third and fourth elements require that the defendant know the collateral damage is clearly excessive in relation to the concrete and direct military advantage achieved. This element may provide a defendant with some protection. A defendant would not be criminally liable if an attack was executed under the personal belief that any collateral damage was not excessive compared to the military objective achieved. (301) Under this interpretation, a defendant’s culpability depends entirely and exclusively on that individual’s own value judgment. (302) If the defendant believed the collateral damage was not excessive, then there could not be a finding of guilt. (303) The court’s own evaluation of the defendant’s value judgment as to the excessive character of the damage is irrelevant. (304) Defendants are able to make an independent value judgment that ultimately determines their own criminality and rewards willful ignorance.

This method of evaluating proportionality for criminality becomes problematic on a number of levels. Although the same discussion applies to damage to objects and the environment, the point is most poignantly and appropriately addressed in the context of the most important aspect of collateral damage, civilian casualties. The value of life ranges among individuals and cultures, making a value determination of civilian casualties compared to a military objective highly variable. (305) The evaluation of proportionality and the practice of humanity are linked insofar as they are based on an individual’s life experience, conscience, moral perspective, culture, spirituality, human condition, and resolve. Moreover, it must be measured on the basis of the defense technology available to a defendant and the circumstances present in the battle space. A defendant given the ability to make an independent value judgment under these circumstances inevitably leads to testimony that the collateral damage in any form is never excessive. Confronted with this dilemma, the ICC may attempt to apply a reasonableness standard to a defendant’s value judgment that would also fail. For example, a military commander from a depressed, under-developed state with little access to the resources necessary to make the most prudent command decisions cannot be held to the same standard of reasonableness as commanders from highly advanced military states with extensive resources, information, technology, and high situational awareness of the battle space. Evaluating the actions of commanders from dissimilar states inevitably leads to a high degree of discrimination, disparity, and variable definitions of reasonableness among states. Further, holding under-developed states to the standards of developed states perpetuates the belief that international law is a product of advanced, western states seeking to regulate conflict on western terms. (306) Although the ICC appears to adopt this approach in the ICC Elements of Crimes, it is also free to disregard it. The Rome Statute states that the Elements of Crimes “shall assist” the court in applying the articles set forth in the various crimes. (307) This language relegates the Elements of Crimes to be mere guidelines in interpreting the substantive provisions of war crimes. (308) Thus, the judges in the ICC have substantial authority and discretion in determining what activities constitute a crime.

C. Economic Sanctions and Collateral Damage

Military strategy that targets centers of gravity valuable to an adversary has similarities to traditional diplomatic tools that leverage states to change behavior. For example, an economic embargo or sanctions can have similar effects to collateral damage. The effects can also create direct or indirect collateral damage in varying degrees. The severity of the collateral damage can be isolated or expansive, depending on the breadth of the sanctions and what sectors of an economy are targeted. Naturally, many products, markets and sectors of a state’s economy targeted for sanction are dual-use for both the military and civilian population. Similar to traditional military strategy, the effect of sanctions can be devastating, and even more fatal to a civilian population than warfare. The generally accepted purpose and emphasis of sanctions lies in modifying a state’s behavior. (309) However, increased use of this method has also resulted in various shortcomings and problems traditionally encountered in warfare. Effectiveness depends on such factors as the policy goals set for the sanctions, criteria used to measure success, the economic condition of the target state, and the level and priority of economic relations with other states. (310) Similar to military strategy related to targeting civilian behavior, economic sanctions “theory” maintains that economic pressure on a civilian population will translate into pressure on their leadership to change. (311) However, the targeted leadership is often immune to these strategies by communicating messages to their civilian population that portray sanctions as retribution and punishment. Like a poorly planned military strategy, the result of poorly planned sanctions can result in the exact opposite effect intended–enhanced popular support for the leadership that was targeted.

It is incongruent that prudent military members are accountable for the loss of civilian life when seemingly well-intentioned diplomatic measures also result in significant collateral damage, including economic depression, excessive reduction in public health services, non-availability of food, water and basic infrastructure, and subsequent death. For example, the strategy to isolate Iraq’s economy after the Persian Gulf War by embargo in 1991 resulted in the same devastating effects as collateral damage from military warfare. (312) Although the embargo excluded food and medical supplies for humanitarian relief, the Iraqi population suffered a pervasive loss of water treatment, sewerage, electrical and telecommunication service, and a high reduction in the available food supply that was directly associated with the embargo. (313)

Crimes before the ICC for collateral damage specifically require that the “conduct took place in the context of and was associated with an international armed conflict.” (314) Essentially, failures in diplomacy are exempt as international crimes regardless of their motive, means, intent, and severity. Failure to establish an fair and just standard, and to assert accountability for failed diplomatic strategies resulting in collateral damage, advocates inconsistent, flawed principles that discriminate against the international military community. Moreover, collateral damage as an international crime is left unchecked where diplomacy is concerned. It seems plausible, at the very least, that the same careful and detailed planning and proportionality analysis required to determine collateral damage for warfare should also be used when applying economic sanctions.

V. CONCEALMENT WARFARE AND THE LAW OF ARMED CONFLICT

Because of this the land mourns, and all who live in it waste away,

the beasts of the field and the birds of the air and the fish of the

sea are dying

Hosea 4:3

Part of the design of concealment warfare is to encourage a dilemma in the observation of LOAC’s humanitarian principles. Adversaries exploit LOAC first by violating provisions prohibiting commingling among the civilian population. The dilemma in observing LOAC occurs when the fundamental premise to protect civilians in war is nullified because engagement of both civilians and an adversary is justified to achieve a military advantage pursuant to Article 52(2) of Protocol I. The adversary exploits LOAC again by accusing the attacker of violating humanitarian principles in LOAC to protect civilians. Strategically, the adversary exploits the loss of civilian life resulting from an attack that is otherwise justified.

A. Civilians in the Center of the Battle Space: The Blame Never Ends

The civilian population has often been subject to the perils of warfare. (315) Despite convenient or timely accusations against any one state for an incident of collateral damage, the only states in a probable position to maintain the moral high ground are those states that have never been to war. Ironically, some states attempting to draw attention to non-compliance with LOAC also have the worst records of human rights violations. In the Persian Gulf War, the Iraqi regime targeted the Israeli civilian population with Scud missiles, (316) and took Kuwaiti hostages for use as human shields. (317) The Government of Kuwait estimates that 1,082 civilians were murdered during the occupation, and many more were forcibly deported to Iraq and remain missing. (318) The Iraqi regime damaged or destroyed 590 Kuwaiti oil well heads, set 508 of them ablaze, and released seven to nine million barrels of oil into the Persian Gulf. (319) Similarly, Milosevic was unable to challenge superior coalition forces during war in the Balkans. As a result, he used terror tactics against Kosovar civilians, exploited efforts by NATO to minimize civilian casualties and collateral damage, triggered large movements of refugees to provoke a humanitarian crisis, and dispersed forces and equipment among the civilian communities they occupied. (320)

Although the incidence of collateral damage in U.S. combat operation has declined since World War II due to improved technology and strategy, the number of civilians killed in conflict has generally increased. The relationship between concealment warfare strategies and high numbers of civilian casualties generated is evident from conflicts in virtually every corner of the world from Cambodia and Uganda to Kosovo and Colombia. (321) The number of civilians killed in conflict since 1900 is estimated at 62.2 million compared to 43.9 million military personnel. Further, the incidence of civilian deaths has increased since the 1949 Geneva Conventions. (322) One explanation for this rising trend is that concealment warfare is the method of choice with higher frequency among adversaries. A subjective review of media and special interest group reporting suggests a similar conclusion–civilians and civilian objects account for the majority of deaths and destruction in 21st century warfare. (323)

Most easily achieved in an urban conflict scenario, placing the civilian population at the center of conflict creates a more favorable battle space, and a higher probability of survival for forces unable to engage under conventional terms. Minimizing collateral damage, while successfully engaging the adversary, is a dilemma common to any responsible state in modern war. However, there is a high degree of variance among states in their appreciation of civilian immunity and how it effects overall strategy. One goal of Soviet forces fighting in Afghanistan was inflicting “massive collateral damage to the civilian infrastructure rapidly in order to erode popular support.” (324)

The efforts of the Soviet and Afghan governments to keep

Afghanistan socialist, and to impose on that society an ideology

alien to its values and traditions has led to: the slaughter of an

estimated 200,000 people; the destruction of entire villages; the

systematic devastation of the countryside and the nation’s

agriculture; a massive violation of human rights and the laws of

war; and one of the largest refugee movements in history. Some

four million Afghans have fled the country, about a quarter of the

total population. (325)

In Chechnya, Russian forces were indifferent to enemy forces attempting to invite or fabricate collateral damage. When advancing on the city of Grozny in 1999, Russian forces were challenged by Mujahedin forces deployed in surrounding villages to attract Russian fire on the civilian population. (326) When villagers protested, they were sometimes beaten or fired at by Mujahedin. Russian forces ignored the attempts to use the villages as a shield and directed “heavy fire–tube and rocket artillery as well as aerial bombing–in order to subdue the centers of resistance.” (327) The number of civilian fatalities was estimated from hundreds to thousands in 1999. (328)

B. An Illusive Moral High Ground

Weaker adversaries unable to directly challenge superior forces in the battle space will seek vulnerabilities that can be easily exploited. Concealment warfare as a sub-category of asymmetric warfare attempts to apply strategy where an adversary cannot effectively respond in kind. The simple application of concealment warfare tactics involves any employment of civilians and civilian objects in the battle space to achieve a strategic advantage. Principles of decency, morality, and humanity reflected in LOAC to protect the civilian population present attractive centers of gravity to exploit where concealment warfare is effectively employed. A state adopting a military doctrine consistent with LOAC must be prepared for adversaries to exploit this commitment to achieve a strategic advantage. In many respects, a state’s value for LOAC and the humanitarian principles supporting it can be central to an adversary’s success.

History would suggest the practice of sparing civilians in war occurs only on the basis of conscience, moral perspective, culture, spirituality, life experience, human condition and resolve. These qualities are highly divergent among individuals in the same community let alone among adversarial states. As a result, one state’s centric ideal of what is ethical and humane in the battle space is subject to question and exploitation by another, regardless of what may be dictated in LOAC. For example, asymmetric tactics labeled “terrorism” by western society must be impartially studied through the eyes of an adversary to see the conventional wisdom of their methods, how they produce successful results, and why it is a highly preferred practice among adversaries. In comparison, regardless of any principle of law, custom or sense of morality, western warfare doctrine principally emanates from the achievement of political and strategic goals. (329) Even the U.S. is postured to exercise the employment of nuclear weapons again if necessary. (330) Although committed to use these weapons in accordance with LOAC, it is the best example that even the most powerful of states with the loftiest of principles is prepared to exercise extreme measures to achieve strategic ends. (331) Adversaries seeking only to survive are equally likely to resort to any method of war, including the use of their civilian populations, to achieve a strategic advantage. Historically, there is no precedent that parties to a conflict play by the rules. Very simply, states will resort to any method of attack or defense available to them, however extreme, to achieve strategic goals or merely to survive.

The rules of war largely created by western society over generations of conflict have resulted in a false sense of principle and moral superiority that translates into a key center of gravity for adversaries to exploit. The more effort made to comply with LOAC’s principles and to achieve the moral high ground, the greater the strategic advantage to potential adversaries. Strict compliance with LOAC fosters highly predictable military doctrine, strategy, operations and tactics. U.S. force structure and strategy is largely defined and influenced by LOAC. In contrast, adversaries operating unrestricted by LOAC gain a strategic advantage over states that value compliance with LOAC. Adversaries deriving little or no benefit from LOAC seek to provoke a conflict that challenges its principles, assails moral uncertainty, and exploits public sympathy. This strategy affords the most convenient, efficient and assured method of success. Concealment warfare challenges western strategy, technology, ideology, morality and resolve. The basic strategy is that one party fights by the rules while another does not. Moreover, a state’s value and compliance with LOAC is essential to the effective execution of an adversary’s strategy to exploit it. As adversaries employ concealment warfare with greater frequency, the incidence of civilian casualties will rise as a result of prudent command decisions consistent with LOAC. (332)

In Figure 11, LOAC clearly applies to the conventional realm of conflict. As warfare moves from the conventional realm in either direction, LOAC becomes less observed in the conflict and more prone to violation. States with superior defense capability like the U.S. are extremely difficult, if not impossible, to challenge in the conventional and unconventional realms of war. Challenges in these realms would likely result in defeat. As a result, concealment and terror warfare provide the most efficient and greatest assurance of survival and success for adversaries. Historically, the trend for conflict also suggests these methods of warfare will continue to be most effective and most favored by adversaries. Future adversaries will likely conduct warfare on the fringes of the spectrum to achieve the highest degree of strategic success. The last vertical line on the model contemplates a hypothetical adversary’s diminished value of conventional warfare in comparison to concealment and terror warfare that exploits LOAC. Further, where an adversary can access weapons of mass destruction, this method of warfare is also preferred. (333)

[FIGURE 11 OMITTED]

VI. TOWARD A UNIVERSAL UNDERSTANDING OF MILITARY STRATEGY AND COLLATERAL DAMAGE

We all should feel bad about the loss of life, anybody’s life,

because every life is precious. It doesn’t matter whether it’s an

Iraqi soldier or a kid in a bunker in Baghdad, we should feel bad

about the loss of one of God’s creatures. On the other hand …

we have nothing to be ashamed of…. Let the deaths of

American, Saudi, and British troops, let the deaths of Iraqi

civilians, remind each of us that war is a hateful thing. (334)

The high incidence of collateral damage in modern conflict combined with the observable benefits of concealment warfare requires effective counter strategies that achieve military objectives while minimizing civilian casualties. If an adversary achieves a strategic advantage on the basis of seeking concealment among the civilian population, then the strategy of concealment warfare continues to succeed and receive validation. Defense technology, strategy and LOAC are all challenged to defy methods of concealment warfare. Each must evolve to preempt an adversary’s ability to exercise denial, deception and sanctuary among the civilian population. All states, NGOs and special interest groups should embrace this effort in support of the imperative to protect civilians in warfare. Perhaps the most important part of a solution to countering concealment warfare is the availability of a broad range of options for commanders to tailor and apply when countering concealment warfare strategies.

A. Dual-Use Targets and Protocol Additional I, Article 52(2)

Where concealment warfare is employed, engaging traditional targets like military objects or forces is problematic because of the high likelihood of civilian casualties. As a result, attacks on these targets have been avoided or cancelled in some cases, resulting in strategic targeting limitations. When these targets are engaged, civilian casualties and other collateral damage can easily be exploited to degrade public support for the conflict. Rather than emphasizing physical destruction of traditional military targets that produce high collateral damage, targeting strategy can focus more closely on those objects critical to an adversary’s behavior and resolve to participate in war.

Based on the concept of effects-based targeting strategy, operations focus on the destruction of objects highly valued by an adversary’s military forces and population. The importance of these objects is so essential to military operations and the daily activities of a civilian population that the adversary is compelled to cease hostilities. One of the most appropriate target sets to achieve this goal includes private and public infrastructure, government institutions and other objects commonly referred to as dual-use objects. The U.S. defines a dual-use object as a facility used for both military and civilian purposes. These facilities provide services like communication, fuel, electricity, transportation, and other national infrastructure to the civilian population. (335) The most obvious difficulty in targeting these objects is that it is impossible to assure avoidance of collateral damage because many objects intended for civilians are also used for military purposes. For example, roads, bridges, railroads, airports, seaports and other infrastructure critical to the civilian population are also vital to a state’s participation in conflict. Communication facilities, power service and other utilities are also commonly shared. Attacking these dual-use objects naturally places the civilian population at risk because of a population’s heavy reliance on these services for daily activity.

Article 52(2) provides essentially two requirements for an object, including one that is dual-use, to qualify as a military objective: 1) the target must make an effective contribution to the enemy’s military action; and 2) its destruction must provide a definite military advantage to the attacker. (336) The term embraces more than military personnel, weapon systems, and other military equipment. Military objectives also include objects that by their nature, purpose, use, or location, contribute to the military initiative and the destruction of which constitutes a “military advantage.” (337) Instead of using the term “military advantage,” Article 52(2) uses the broader expression, “make an effective contribution to enemy action.” (338) This definition includes dual-use facilities and services used to support military operations, such as finance, communication, power generation, transportation, and economic centers of gravity that support and sustain an adversary’s capability to participate in conflict. While dual-use objects may properly be included in target sets, they become increasingly controversial based on the value and level of dependence the civilian population places on the targeted facility or service. Basically, targets having the greatest influence over civilian resolve generate the highest amount of controversy.

The foregoing definitions are commonly manipulated and abused by states at war. (339) Additionally, humanitarian interest groups working to protect civilians from the effects of war narrowly interpret the definitions. (340) For example, when Amnesty International criticized NATO’s attack of the SRT Headquarters in Belgrade, they suggested that Article 52 did not allow attacks on civilian media facilities used to disseminate propaganda:

Amnesty International recognizes that disrupting government

propaganda may help to undermine the morale of the population

and the armed forces, but believes that justifying an attack on a

civilian facility on such grounds stretches the meaning of

“effective contribution to military action” and “definite military

advantage” beyond the acceptable bounds of interpretation. Under

the requirements of Article 52(2) of Protocol I, the SRT

headquarters cannot be considered a military objective. As such,

the attack on the SRT headquarters violated the prohibition to

attack civilian objects contained in Article 52 (I) and therefore

constitutes a war crime. (341)

In sharp contrast, the ICRC has identified railways, roads, bridges, tunnels, media broadcast stations, and other facilities “which are of fundamental military importance” as appropriate military objectives. (342) Traditional targeting theory suggests that destruction of dual-use targets provides the benefit of denying use of the infrastructure for any military purpose while also degrading civilian morale. Dual-use targets like the media headquarters in Kosovo are at the center of the targeting controversy because of highly subjective views of proportionality and uncertainty in its application. Specifically: 1) what is the value assigned to destruction of a dual-use object as a military objective compared to the value placed on subsequent collateral damage and loss of civilian life; 2) what is the value assigned to destruction of the target compared to the consequence of not destroying it; and 3) should the measurement of collateral damage be based on foreseeable physical effects in a defined impact radius or broader in scope to include intangible, non-physical damage.

The concept of effects-based targeting provides particular value in addressing these issues and minimizing collateral damage. Strikes focus on the effects they have on behavior rather than on observable physical battle damage to objects or casualties. (343) If the strategic goal is to end a war on favorable terms while reducing the length of the conflict, minimizing damage, loss of life and expense, then the most highly valued targets must be destroyed early in the conflict. Essentially, the strategy requires immediate, precision strikes on an adversary’s jugular with little collateral damage. Ironically, the most efficient and humane approach to achieving this goal may involve early engagement of the most controversial targets. For example, strikes on property and services that destroy the convenience and lifestyle, rather than the survival of an adversary’s civilian population.

St. Augustine’s punitive model to warfare roughly followed the principle that a nation and its people are undivided. (344) He made no distinctions between combatants and civilians on this level because there was no moral difference between them in the context of a state entity. (345) Lieber also recognized that the state and its people are one, both enduring the consequences of success or failure for the decisions of leadership:

Art. 20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, suffer, advance and retrograde together, in peace and in war.

Art. 21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.

Art. 22. Nevertheless … so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit. (346)

In 1947, J.M. Spaight recognized that the destruction of morale can be achieved without destruction of the civilian population. He proposed attacks centered on the wealth, business, and daily lifestyle of the population rather than its survival. (347) Destruction of these target sets temporarily disrupts commerce, employment, and other activities valued by a civilian population. More recently, Colonel John A. Warden summarized five decades of targeting theory in a simple model called the theory of strategic rings. (348) Although this theory has limited application to non-state adversaries, it is still valuable in understanding potential targets. According to Warden, an adversary’s centers of gravity can generally be illustrated with five concentric rings. The innermost ring is leadership, followed by organic essentials, infrastructure, the civilian population and a nation’s military. (349) Organic essentials and infrastructure translate into dual-use objects like communication, electrical, transportation and other public and private infrastructure. Effects-based targeting strategies conform well to this model. Both propose a theory emphasizing the destruction of specific target sets like organic essentials and infrastructure to promote the disabling of the other target sets by cascading effects. Further, the long-term, catastrophic consequences and humanitarian crises encountered from the traditional targeting of centers of high resistance like the military can be avoided. While the civilian population should never be the subject of direct kinetic attack, the effects on this center of gravity are largely discomfort, morale and resolve to support their leadership in conflict participation. The primary obstacle to this type of campaign is that Article 52(2) arguably prohibits attacking these targets, even though their destruction may reduce the length, cost, damage and casualty rate typically encountered from the destruction of objects providing a distinctly military advantage. Objects providing a military advantage typically translate into the highest center of resistance and the most difficult to engage, especially when they are commingled among the civilian population in concealment warfare.

The term “military objective” in Article 52 (350) should be clearly interpreted to include the organic objectives contemplated by Warden. Targets would include traditional dual-use objects, as well as public or private infrastructure inherent to a nation’s political or economic survivability. Specific targets may include local, regional and national government institutions, as well as financial, banking, and monetary exchange centers. Other infrastructure subject to targeting under these terms would clearly include dual-use objects like communication, transportation, power generation, media generation and broadcast, and industry contributing to the survivability of the adversary’s military or contributes to the resolve of a civilian population. The intent is to include private and public services that directly degrade resolve of a civilian population, and promote a societal opinion that participation in a conflict is hopeless. The foregoing definitions should always be construed in a fashion that minimizes collateral damage and the loss of life.

B. Redefining Collateral Damage

OAF illustrates that perceptions of what qualifies as a military objective and what is acceptable collateral damage varies among states. The problem becomes most obvious in the context of targeting dual-use facilities like the SRT Headquarters. Unresolved differences in opinion among coalition states can result in the loss of an organized, cohesive alliance. As a coalition partner, the U.S. was criticized in a U.S. General Accounting Office report for failing to execute operations according to doctrine:

The departures from doctrine ranged from not having clear

and attainable objectives to not following various principles

associated with conducting an air campaign to not having a fully

functional command structure…. The departures were caused in

large part by the NATO alliance’s adoption of an operation of

limited scope, a great emphasis on avoiding collateral damage and

alliance casualties, and a desire to achieve its goals within a

short time frame. (351)

The failure ultimately effected operations. The extensive process of target review combined with a preoccupation to avoid collateral damage resulted in cancelled targets, delayed engagements, failure to produce enough targets to adequately mass, and limited strikes producing inconsequential effects. (352) Although there will always be differences in what is politically and militarily tolerable by each member state of a coalition, these differences often go unresolved. If differences cannot be resolved through negotiation of a combined doctrine prior to the formation of a coalition, member states must be prepared to operate independently in accordance with their own doctrine to achieve the goals of a combined campaign.

Traditionally, collateral damage is a result of weapon system malfunction, human error, desperation in the fog of war or because it was intended. In more recent warfare, it occurs when an adversary’s strategy includes concealment among the civilian population. Any formal definition of collateral damage must be largely based on perception, condition and tolerance. For example, the tolerance of collateral damage would be very different for an invaded nation in the desperate state of survival compared to a state participating in war for economic gain. Concomitantly, how should collateral damage be measured in the realms of time and physical effect? To conduct successful effects-based operations, this question is critical in determining the relationship between destruction of a particular target set and the effects anticipated on other centers of gravity. As an illustration, several hundred thousand workers in Yugoslavia were unemployed because key private industry sites supporting Serb forces were destroyed in the air campaign. (353) The short-term effect of these attacks may crush military industry and incite a civilian population to urge early termination of a conflict. However, wholesale destruction of entire segments of industry conceivably leads to economic depression and effects traditionally encountered in a post-conflict humanitarian crisis.

In an effort to provide a better understanding of the perils of collateral damage in modern conflict, a definition must be divided into two categories, both requiring compliance with the principles of LOAC. “Involuntary collateral damage” contemplates any unintended, unanticipated effect of an attack resulting from system malfunction, human error or other errant cause. “Voluntary collateral damage” contemplates any anticipated incidental damage or other effect of an attack that is justified under the principle of proportionality. (354) These definitions are useful when evaluating arguments of proportionality, and communicating differences between collateral damage resulting from unforeseen causes and collateral damage that is defensible.

When applying collateral damage to an effects-based targeting strategy, the definition of collateral damage must be divided again. “Direct collateral damage” is any immediate physical effect incidental to any type of military attack. (355) “Indirect collateral damage” is any delayed, long-term effect, including physical, economic, social, public health, political or other effect incidental to any type of military attack. (356) Failure to adequately evaluate these definitions suggests a faulty proportionality analysis, a defective effects-based targeting strategy, and a flawed post-conflict reconstruction assessment. Although simple, the two categories of collateral damage promote better communication about the different types of collateral damage in modern warfare, as well as encourage a more profound proportionality and effects-based targeting analysis. (357)

Centers of gravity and target sets will change with the economic and political structure of an adversary. Strategically, the question must be asked who is better positioned to influence an early end to a conflict the civilian population or leadership? Further, will effects on a population incite anger, resolve and persistence? Any campaign focusing on the morale of a civilian population must correctly estimate the strengths, weaknesses and overall condition of the population. Direct and indirect collateral damage may inflame public opinion, fuel resentment, reduce support for operations, and frustrate post-conflict reconstruction. (358) For example, in the Persian Gulf War, the campaign to deny an already subjugated population of electricity and other services was far less effective than it would be in a developed country like the U.S., where a higher value is placed on the infrastructure and daily convenience. Attacking infrastructure may cause indirect collateral damage leading to a humanitarian crisis. For example, the campaign in the Persian Gulf War was designed to incite the Iraqi military and civilian population to revolt against the regime. (359) Specific objectives against the Iraqi regime included the destruction of Iraq’s electric power system, (360) fuel production, (361) bridges over the Tigris River in downtown Baghdad, (362) and media facilities. (363) It was recognized that the air campaign would cause hardship to the civilian population in Iraq regardless of their already depressed condition. (364) Thorough planning can anticipate some of these concerns. As a simple illustration, striking an adversary’s power facility to deny electricity to an entire city presumably denies power to hospitals and other emergency services needed for survival. Where these facilities do not already maintain back-up electric generators, they can be provided by aerial delivery or through NGOs prior to attack in an effort to minimize civilian casualties and other indirect collateral damage. In an effort to further minimize civilian casualties, advance notice of a pending attack is often used to evacuate target areas.

C. Non-lethal Coercive Measures and Article 54

The destruction of foodstuffs is also a legitimate target, and potentially a highly effective strategy insofar as it is directly aimed at an adversary’s forces. For example, a leading reason for poor morale among North Korean forces in the Korean War was the shortage of food in 1950-51, after bombing campaigns focused on interdicting supply lines. (365) The high loss of supply trucks was so serious the North Koreans forced American prisoners of war to drive supplies to the front lines. (366) Further, a high number of desertions and surrenders in the Persian Gulf War were attributed to inadequate food and water rations in 1991. (367) Protocol I, Article 54 forbids denying food and water to the civilian population. (368) However, this provision may be shortsighted in its preservation of civilian life. Where concealment warfare is used by an adversary, denial of sustenance may in limited circumstances be the most humane method to assure the survival of civilians occupying a contested area. Denial of basic sustenance combined with constructive information operations provides one potential option that avoids employment of conventional warfare and collateral damage. For example, the combined effect of denying basic infrastructure, food, and water to a contested rural village or several blocks in an urban area would likely encourage all occupants to exit a contested area. Secured exit points may be used to receive, disarm, and provide food, water and other humanitarian services to occupants leaving the contested area. Coercive denial of infrastructure and sustenance requires that a defensible cordon can be established around the contested area, and occupants exiting the area can be effectively managed. Although this method violates Protocol I, Article 54, it may be one method that offers protection of commingled civilians victimized by concealment warfare when used as a coercive, rather than a lethal measure. Ideally, a coercive cordon operation could achieve four objectives: 1) the strategy allows both civilian and combatant occupants to exit the contested area unharmed; 2) anyone exiting the contested area can be disarmed and immediately provided food, water, shelter and other humanitarian services as needed; 3) the conflict can be diffused; and 4) the contested area can be secured with the greatest assurance that the loss of civilian life and collateral damage has been minimized.

Ideally, extreme methods that deny infrastructure and sustenance would diffuse conflict while achieving the surrender or capitulation of any combatants in a contested area without the use of conventional warfare emphasizing battle damage. Coercive denial of infrastructure and sustenance does not distinguish disguised combatants commingled among the civilian population. Further, there is little to prevent combatants from forcibly holding or harming civilians in a prolonged standoff. In either case, however, adversaries will likely become disorganized, lose the initiative, and become directly accountable for any action taken against civilians held hostage or otherwise disallowed from exiting the contested area. Where civilians are held hostage or harmed, adversaries may attempt to defer accountability for their misconduct to the coercive conditions. Similar to a domestic hostage crisis, it is important to note practically and ethically in any information operation that the adversary violated LOAC by seeking sanctuary at the risk of the civilian population, and by taking civilians hostage to achieve a strategic advantage.

Responsible use of coercive methods necessitates rejection of Protocol I, Article 54. Paradoxically, where concealment warfare is designed to exploit LOAC and civilian life, denying sustenance may actually protect civilian lives when compared to the alternative method of traditional kinetic warfare. Although the letter of the law in LOAC is violated, the spirit of LOAC to preserve civilian life is maintained.

D. U.S. Military Doctrine and Targeting

U.S. military doctrine permits targeting behavior, but there are inconsistencies among service targeting definitions, and weak description of the relationships between collateral damage, proportionality and effects-based targeting. The U.S. Joint Chiefs of Staff define strategic air warfare as:

Air combat and supporting operations designed to effect,

through the systematic application of force to a selected series of

vital targets, the progressive destruction and disintegration of the

enemy’s war-making capacity to a point where the enemy no

longer retains the ability or the will to wage war. Vital targets

may include key manufacturing systems, sources of raw material,

critical material, stockpiles, power systems, transportation

systems, communication facilities, concentrations of uncommitted

elements of enemy armed forces, key agricultural areas, and other

such target systems (emphasis added). (369)

Consistent with this definition, U.S. Air Force doctrine is premised on the notion that a successful air campaign is not necessarily quantified by the number of casualties inflicted, how many engagements were won or lost, or the amount of territory occupied, but by whether or not the overarching political objectives were achieved. Greater than any preceding factor, the political objectives, both one’s own and the enemy’s shape the scope and intensity of war.” Armed conflict “is a clash of opposing wills…. While physical factors are crucial in war, the national will and the leadership’s will are also critical components of war. The will to prosecute or the will to resist can be decisive elements.” (370) Identifying will and morale as potential targets, centers of gravity are “those characteristics, capabilities, or localities from which a military force, nation, or alliance derives its freedom of action, physical strength, or will to fight.” (371)

The U.S. Marine Corps also recognizes that centers of gravity can include intangible attributes such as resolve or morale. Nevertheless, “we should recognize that most enemy systems will not have a single center of gravity…. It will olden be necessary to attack several lesser centers of gravity or critical vulnerabilities simultaneously or in sequence to have the desired effect.” (372) U.S. Army doctrine adds that “[f]acilities and installations are studied to identify critical nodes and those of importance in the military, political, and economic infrastructure (center of gravity).” (373) Finally, the U.S. Navy defines a center of gravity as “something the enemy must have to continue military operations, a source of his strength, but not necessarily strong or a strength in itself. There can only be one center of gravity. Once identified, we focus all aspects of our military, economic, diplomatic, and political strengths against it.” The Navy views the morale and will of an adversary more as vulnerabilities instead of centers of gravity. (374)

One notable flaw in military doctrine generally is how new weapons technology and strategy should be employed where collateral damage is a concern. For example, non-kinetic warfare methods that include electronic and information network attacks are very difficult to measure for potential collateral damage. If a computer program virus is released into an adversary’s computer network, it is extremely difficult to ensure confinement of the attack to a specific terminal or group of terminals. Moreover, if a communication frequency is jammed from an electronic attack, then it is impossible to limit the effects of the attack to a particular frequency user. In either case, the effects can disrupt emergency services required for civilian relief. (375) Although these methods offer some of the greatest potential to challenge concealment warfare tactics, the concept of collateral damage is noticeably absent from their doctrine. (376) Finally, U.S. military doctrine incorporates “indirect effects” into effects-based strategy, while comprehensively failing to incorporate “indirect collateral damage” into a proportionality analysis. (377) Conceptually, the collateral damage analysis and the measurement of strategic effects are the same. (378) However, a different conclusion can be reached when attempting to anticipate the comprehensive value of an attack for effects-based operations and the analysis required to conduct a thorough proportionality analysis.

In preparation for any attack, including attacks with new technology, Article 57(2)(a) of Protocol I requires planners to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” (379) Article 51(5)(b) directs that attacks on a specific military objective are impermissible if they “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” (380) A responsible commander must determine whether the collateral damage from destruction of the target is proportionate to the military advantage of destroying it. The benefit of incorporating both direct and indirect collateral damage into the proportionality analysis is a more comprehensive effects-based strategy, as well as a more defensible proportionality review.

E. Defense Technology, Strategy and the Law of Armed Conflict

Improved interoperability of command, control, and communication systems with sensors for intelligence, surveillance and reconnaissance ([C.sup.3]ISR) have been combined with enhanced precision technology to provide capabilities inconceivable when Protocols I and II were opened for signature in 1977. (381) This technology is especially promising in urban environments, where concealment warfare is most effective and prevalent. Improvement in the munitions industry affords the ability to pacify infrastructure without extensive damage or civilian casualties. For example, carbon fiber weapons are able to render electrical infrastructure temporarily disabled. Non-lethal weapons employing electro-magnetic pulse (382) and directed energy (383) have the potential to disable infrastructure without casualties. (384) Although lethal, thermobaric weapons provide the important capability of combining blast concussion with high burn temperatures to incinerate biological and chemical agents. (385)

Attack aircraft delivering these munitions have the capability of selecting and delivering the most appropriate and preferred munition to a target even while airborne. Munition fuse settings can be adjusted before delivery for a desired level of impact. (386) The hard target smart fuse can be set for timing or programmed to count the number of void spaces or barriers it travels through when entering a target structure. The fuse provides the ability to detonate the munition in the exact room or floor of the targeted structure. (387) Fuse technology combined with the development of fifty to seventy-five pound small diameter PGM has promise in further minimizing the risk of involuntary and indirect collateral damage. (388) Available as early as 2006, smaller PGM will likely become highly preferred for employment in urban close combat because they do not create as much damage in comparison to the larger PGM currently in use. (389)

Ground forces use advanced communications, laser guidance target designators and surveyors to calculate target coordinates and guide munitions to a target to further improve accuracy in target selection. (390) These forces are also able to provide other benefits, including near immediate battle damage or effects-based assessments. (391) The future of nano-energetics offers immense promise to minimize collateral damage. Nano-energetics relies on nano-structured explosives and fuel additives, as well as catalytics and photovoltaics. The technology provides more effective control of blast, resulting in the direction of energy and impact to a designated target. (392) This technology will someday provide adaptive materials with properties that can be changed according to the type of target, condition of the target or evolving ISR. Perhaps most promising of all are non-lethal weapons that can be applied against enemy combatants commingled with civilians. (393) Non-lethal weapons are “explicitly designed and primarily employed so as to incapacitate personnel or materiel, while minimizing fatalities, permanent injury to personnel, and undesired damage to property and the environment.” (394) They are designed to have “relatively reversible effects” on people and materiel. (395) Although wider and more extensive application of these weapons to the battle space requires further development and understanding, they provide the most interesting and promising solution to concealment warfare methods without causing the level of collateral damage and casualties traditionally caused by conventional munitions.

As a practical measure, U.S. planners participating in the targeting cycle already employ an extensive methodology to minimize collateral damage. Each of the following factors is considered in target evaluation: 1) type of object to be destroyed; 2) structural integrity of the target; 3) location of target in relation to the presence of non-military objects, protected structures, civilians and human shields; 4) defensive posture of the target; 5) tactical, operational and strategic importance of the target; 6) specific type and accuracy of the weapon delivery system and munition used; 7) manipulation of weapon for use on the specific target (e.g. fuse adjustment); 8) measurement of bomb impact radius; 9) specific tactical strategy tailored to engage the target (e.g. attack heading and weapon impact angle to minimize fragmentation impact); 10) time of attack to strike when the presence of civilians is lowest; 11) necessity of advance warning of a strike to alert civilians to evacuate the target area; and 12) use of non-lethal or non-kinetic weapons. (396) Target analysts use an impact-modeling program named Fast Assessment Strike Tool for Collateral Damage, commonly referred to as “FAST-CD,” to assess the potential for direct collateral damage. The program is able to evaluate a specific target, surrounding terrain, direction, angle of attack, and the particular characteristics of a selected munition to generate an image of a probable field of damage. (397) The program is not capable of evaluating indirect collateral damage.

Although technology and thoughtful targeting process offers the ability to further minimize civilian casualties and collateral damage, adversaries can still complicate or deter attack using concealment warfare. The benchmark for high precision and low collateral damage potentially creates unrealistic expectations of technology where an adversary invites or fabricates collateral damage. Relying too heavily on precision technology may result in overestimation that it cannot be rendered errant by guidance system jamming or other counter-measures employed by an adaptive adversary. (398) Further, inadequate or incorrect ISR will always result in the danger of delivering a PGM to precisely the wrong target. This is especially important for mobile targets. ISR for stationary targets generally has a high degree of confidence, while the same information for a mobile target may be useless only hours after collection. As a result, adversaries may effectively remain mobile and concealed among the civilian population to escape detection and complicate attack.

F. An Emerging Role for Media, Non-Governmental Organizations and Humanitarian Interest Groups

The collateral damage events occurring during U.S. operations provide valuable information about targeting strategy, collateral damage, and the concealment tactics used by adversaries. They also illustrate the value of media, special interest groups, and NGOs in providing important information to the military community about these topics. These groups have a recognizable ability to access and report incidents of collateral damage. (399) Presumably, as non-combatant organizations, these groups have freedom of access and movement to contested areas otherwise denied to an opposing force. Moreover, it is in an adversary’s best interest to provide access because these groups are instrumental to any information operation designed to exploit humanitarian concerns and degrade public support. Their constituency and political influence provide valuable leverage over both political and public opinion. In contrast, these groups also provide objective, accurate information about collateral damage incidents that expose deception or disinformation. For example, an HRW investigation of the bombing of the Dubrava Penitentiary in Kosovo reported that Yugoslav forces killed at least seventy prisoners to fabricate a collateral damage incident. (400)

The level of investigative detail in HRW reporting about collateral damage in OIF is also notable, deserving greater objective value than is traditionally given to data or analytical conclusions from humanitarian interest groups. HRW acquired credible witness summaries, aerial and ground imagery, and significant operations information regarding collateral damage, cluster munitions and time sensitive targeting (TST)in OIF. (401) HRW concludes that: “For the most part, the collateral damage assessment process for the air war in Iraq worked well, especially with respect to preplanned targets. HRW’s month-long investigation in Iraq found that, in most cases, aerial bombardment resulted in minimal adverse effects to the civilian population.” (402)

Adversaries since the Vietnam War have adopted strategies attempting to degrade support for conflicts through attrition, protraction, and exploitation of humanitarian interests by concealment warfare. This strategy incorporates engagement of the international community by leveraging humanitarian interest groups, anti-war movements, and media. It also implies that the public is concerned about civilian casualties as much as they are about military casualties. Although there is debate on the efficacy of public opinion data on collateral damage and the support for military operations, one can safely assume that there is a relationship between the two at some level. (403) Further, public support can be lost based on the number of civilian casualties. (404) A March, 2003 Gallup poll indicates 57 percent of those surveyed would oppose a war in Iraq because “many innocent Iraqi citizens would die.” (405) Public opinion regarding military or civilian casualties is partly dependent on how much value the public places on the end state of the conflict, and partly dependent on whether the public perceives the end state as achievable. (406) Although U.S. polling data offers some level of value in assessing domestic public opinion, its value is highly limited where U.S. operations are exceedingly dependent on foreign state coalition support, and the opinions of those state populations as well.

The Gulf War marks a point in history where the media’s capability to report real-time combat operations provided a highly-effective, cost efficient vehicle for an adversary to communicate battlefield events to the international community. Respectful that the media should never be limited in accurate, objective reporting, it is an immensely powerful medium subject to exploitation with impunity by any party to a conflict. Humanitarian interest groups like HRW have also benefited from access to operational and collateral damage information, even in contested areas, to better communicate their agenda. The combination of expanded media access, greater disclosure of military activities, and increased presence of humanitarian interest groups in the battle space translates into an improved level of influence over domestic and international opinion by these groups. (407) Moreover, the humanitarian interest lobby has become far more organized and gained remarkable popularity since the Vietnam War. As the international community becomes more informed and aligned with these causes, humanitarian interest groups will attempt to leverage public concern and improve their involvement in military operations. As pressure from these groups and the international community to minimize civilian casualties and other collateral damage increases, they will also become more attractive targets for adversaries to exploit.

Concealment warfare provoking collateral damage requires the employment of effective counter-measures that deny the ability to influence humanitarian interest groups, media, and public opinion. At the strategic level, these counter-measures must inform adversaries in both peace and wartime that meaningful targeting and information based methods can and will be employed to deter concealment warfare. A uniform strategy to pro-actively respond to collateral damage would effectively expose and preempt adversary disinformation campaigns and limit adverse political effects. To illustrate, if a dual-use target like a broadcast facility is destroyed because it supports an adversary’s military operations, transmissions should be recorded prior to attack that indicate its use for [C.sup.3] or another military purpose. The careful and thorough collection of “evidence” prior to attack of a controversial target provides a valuable, readily available case to advocate the destruction of the target should a challenge arise. This information could be made available to both media and humanitarian interest groups to support an attack, counter disinformation and deception, and reduce conspiracy theories.

Incidents of both voluntary and involuntary collateral damage should be investigated where feasible to expose adversary disinformation, as well as to responsibly report collateral damage. Thorough investigation of these incidents by a dedicated theater-level collateral damage response team provides two benefits. Information from these investigations provides the ability to apply counter-measures, and the necessary knowledge to confidently engage media and humanitarian interest groups most likely to initiate a challenge. Currently, U.S. military doctrine does not require the investigation of collateral damage incidents, estimations of civilian casualties or levels of damage to civilian objects after attack. One disadvantage to not obtaining this information is that adversaries are left with the ability to fabricate and extort it. A model collateral damage response team would require, at a minimum, dedicated experts with backgrounds in law, (408) public affairs, information operations, intelligence, operation planning, engineering, and munitions. Experts in economics, public health, environment, housing and urban development, labor, and education would also be required to assist in the assessment of indirect collateral damage.

A collateral damage response team would also eliminate the notable lack of competence in discussing complex issues associated with LOAC, targeting, and collateral damage among U.S. Department of Defense personnel. (409) These issues should be addressed exclusively by those officials most familiar with the subject matter to provide clear, accurate information to the public, prevent exploitation of any uncertainty on these issues, promote military policy, and improve education of the media, humanitarian interest groups, and international community. In many cases, the officials most competent to respond to LOAC queries on a consistent basis are attorneys well educated in LOAC. These attorneys are traditionally the one group with the greatest familiarity and unique ability to prepare and educate an audience about the complex dynamics of LOAC and military operations. Commanders and other officials discussing military operations with the media must also be aware that their statements, however flamboyant, confused, intimidating or mundane, can be presented to the ICC as evidence to support a war crime alleged against a U.S. commander or official. (410)

Both humanitarian interest groups and the media are instrumental in the education of the international community through informed, accurate and objective reporting of targeting strategies, collateral damage and concealment warfare. These groups serve as a witness to a judgmental public that supports or objects to participation in conflict. Their access to military operations and the battle space creates an informed public, provides a counter-measure to disinformation and deception, and ensures state responsibility. For example, destruction of the Iraqi regime’s communication infrastructure and embedding reporters in coalition units during OIF reduced the ability of the regime to exploit the media and degrade U.S. public support for operations. In effect, destruction of the communication infrastructure denied the ability to conduct information operations.

Facilitating media and humanitarian interest group access to operations invites objective, third party investigation of collateral damage incidents. Conceivably, cooperation and information exchange with humanitarian NGOs like the ICRC on collateral damage incidents would benefit both military and humanitarian interests. NGOs often have access to contested areas where collateral damage occurs, their level of reporting is often more thorough, they provide valuable data in measuring both direct and indirect collateral damage, and they provide valuable insight on the human condition. In turn, humanitarian interest groups could achieve greater access to post-targeting information to identify operational trends that effect humanitarian concerns. Often viewed as divergent, both military and humanitarian interest groups seek to preserve life and reduce destruction to the extent possible. In pursuit of this goal, it seems plausible that both interests could be well served through mutual sharing of collateral damage information and instruction on operational issues associated with it. On this basis, it is conceivable that an NGO representative could participate in a collateral damage response team to perform as a humanitarian affairs consultant and liaison. Cooperation with humanitarian interest groups on this basis also provides valuable insight into post-conflict reconstruction requirements.

“Therein are rivers of water unpolluted, and rivers of milk whereof the flavor changeth not, and rivers of wine delicious to the drinkers, and rivers of clear-run honey; therein for them is every kind of fruit, with pardon from their Lord.”

The Koran, Surah XLVII, Ayah 15.

The rules of war created on the basis of ideals adopted by western society have become central to adversaries employing concealment warfare methods. Concealment warfare affords the most convenient, efficient and assured means of defying a conventionally superior force by challenging strategy, technology, ideology, morality and resolve. States that value LOAC will naturally make efforts to comply with its principles. Highly influenced by LOAC, the U.S. has comprehensively incorporated it into military doctrine, force structure, strategy, weaponeering, and rules of engagement to the point that it is predictable to an adversary employing concealment warfare.

Throughout its history of warfare, the U.S. has adapted to adversaries and developed defense technology, strategies and processes that are impossible for most nations to meaningfully challenge in the conventional battle space. As a result, adversaries seek to challenge the U.S. with concealment and terror tactics on the fringes of the traditional spectrum of conflict. The relative success of these methods compared to traditional force-on-force methods makes it conceivable that future adversaries will not wear uniforms at all, incorporate more aggressive use of civilian shields, apply more aggressive deception and disinformation campaigns, and commingle military objects and personnel with civilians to the point where U.S. forces are unable to discern any difference between civilians and combatants. Concealment warfare on this basis produces a protracted, complicated and problematic war resulting in a deterioration of principle and U.S. public support for operations.

Potential adversaries well recognized for their repression and human rights violations are most likely to attempt further strategic integration of military forces and objects with their civilian communities. Kim Jong II of North Korea and HuJintao of China rank among the highest targets of concern among humanitarian interest groups for human rights abuses. (411) Chinese defense strategists publicly recognize compliance with LOAC leads to certain defeat, and “non-traditional strategies” must be employed for any success against conventionally superior forces. (412)

Although improvement in technology is important to a comprehensive solution to concealment warfare, targeting strategies and improved public communication are also necessary to a comprehensive solution. Improved understanding and communication of collateral damage and concealment warfare at all levels of military operations and the public is perhaps the easiest counter-measure. The meaningful deterrence of concealment warfare also necessitates the aggressive defense of target sets like dual-use targets currently authorized by LOAC, and the consideration of target sets in the category of organic infrastructure. The use of coercive and non-lethal methods that subdue, incapacitate and diffuse an adversary commingled among civilians without creating civilian casualties is imperative. Finally, difficult and subjective decisions to engage forces employing concealment warfare methods are inescapable. Where humanitarian interest groups, media, members of the international community, the ICC or other NGOs challenge a prudent command decision that involves civilians, well-prepared, thorough, fact-based arguments should be made aggressively and swiftly to defend command action, to maintain the initiative, and prevent operational degradation. Failure to exercise measures that counter concealment warfare will continue to improve an adversary’s survivability while increasing the potential for civilian casualties in future conflicts.

(1) The U.S. Department of Defense [hereinafter DOD] defines collateral damage as, “unintentional or incidental injury or damage to persons or objects that would not be lawful military targets in the circumstances ruling at the time. Such damage is not unlawful so long as it is not excessive in light of the overall military advantage anticipated from the attack.” U.S. DEP’T OF DEFENST, DEP’T OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS, JP1-02, at 93 (2001); CHAIRMAN OE THE JOINT CHIEFS OF STAFF JOINT METHODOLOGY FOR ESTIMATING COLLATERAL DAMAGE AND CASUALTIES FOR CONVENTIONAL WEAPONS: PRECISION, UNGUIDED, AND CLUSTER, CJCSM 3160.01A (Draft), at A-4 (Feb., 2004). Using a different definition than DOD, U.S. Central Command [hereinafter CENTCOM] incorporates environmental damage into their definition. Collateral damage is defined as “unintended physical damage to any non-combatant person(s), property, or environment(s) occurring incidental to military operations.” CENTCOM OPLAN 1003V, COLLATERAL DAMAGE ESTIMATION POLICY & METHODOLOGY 6 (Table 1)(Mar., 2003).

(2) See William M. Arkin. Fear of Civilian Deaths May Have Undermined Effort, L.A. TIMES, Jan. 16, 2002, at A(1)1. See also David A. Denny, U.S. Air Force Uses New Tools to Minimize Civilian Casualties. Avoiding Unintentional Damage Figures Into Targeting, U.S. DEP’T OF STATE WASH. FILE. Mar. 18, 2003, at 5. Brig. Gen. Charles Dunlap, Staff Judge Advocate for Headquarters, Air Combat Command, U.S. Air Force [hereinafter USAF], says that the Law of Armed Conflict [hereinafter LOAC], “is becoming a (and sometimes ‘the’) key factor influencing the conduct of combat air operations.” Id. In one highly reported incident, concerns about collateral damage restrained an attack on Mullah Mohammed Omar, the Taliban leader who was found fleeing Kabul. Afghanistan in October, 2001. An un-manned aerial vehicle [hereinafter UAV] operated by the Central Intelligence Agency detected Omar and was prepared to engage with two Hellfire laser-guided missiles. The UAV tracked Omar to a building situated among civilian homes. The agency needed CENTCOM approval to attack. Rather than give immediate approval to directly target Omar, Gen. Tommy R. Franks, CENTCOM Commander, and his legal advisors authorized the agency to fire a missile in front of the building to see who came out. Omar safely departed from the rear of the building alter the attack. Seymour M. Hersh, King’s Ransom, NEW YORKER, Oct. 22, 2001, at 38. Lt. Gen. Michael Short, Commander of Allied Air Forces for OPERATION ALLIED FORCE (Kosovo) believes the concern about collateral damage during the conflict placed coalition pilots at risk. “Collateral damage drove us to an extraordinary degree…. The reaction to every incident, nationally and internationally was extraordinary and handcuffed.” Lt. Gen. Short told the Senate Armed Services Committee that a lesson he took from the experience is that political leaders need “to let us do our jobs. The restrictions placed on us as a result of collateral damage made us predictable and put our crews at risk.” Sheila Foote, Commander Hits Excessive Focus on Collateral Damage, DEF. DAILY, Oct. 25, 1999, at vol. 204(16).

(3) CARL VON CLAUSEWITZ, ON WAR 75 (Michael Howare & Peter Paret eds. and trans., Princeton University Press 1984) (1832).

(4) Id. at 87.

(5) Id. at 76.

(6) See generally MICHAEL HOWARD, GEROGE J. ANDREOPOULOS AND MARK R. SHULMAN, THE LAWS OF WAR: CONSTRAINTS ON WARFARE IN THE WESTERN WORLD 1-12 (1994).

(7) See HOWARD ET AL., supra note 6, at 13, referencing THUCYDIDES 3.59.1, 6.4.56: cf EURIPIDES HERACLIDAE 1010. According to Thucydides, early Greek rules governing interstate conflict included: 1) war should be officially declared before the commencement of hostilities and treaties; 2) sacred truces, especially those declared for the celebration of the Olympic games should be observed; 3) hostilities against sacred places and people under the protection of the gods should be observed; 4) the dead of the enemy should be returned when asked; 5) prisoners of war should be offered for ransom instead of summarily executed; 6) the surrender of enemy forces should not result in punishment; 7) noncombatants should not be the primary target of attack; 8) use of non-hoplite arms (nontraditional arms of the Greeks) should be limited; and 9) pursuit of defeated and retreating opponents should be limited in duration.

(8) Id. at 13.

(9) See generally CLAUSEWITZ, supra note 3, at 89. Clausewitz’ “remarkable trinity of war” suggests an enemy’s populace, government and military must be carefully balanced to successfully wage war. As a result any element or combination thereof is an appropriate target in the context of attacking the will of the enemy, Id. See infra note 348 and accompanying text for Colonel John A Warden’s theory of targeting strategic rings.

(10) See Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3, arts. 51-52 [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature Dec. 12, 1977, 1125 U.N.T.S. 609, Part IV [hereinafter Protocol II]. Although the U.S. has not ratified Protocols I or II, they are recognized as customary international law. Michael J. Matheson, Session I; The United States’ Position on the Relation Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT’L L. & POL’Y 419, 420 (1987).

(11) See generally HOWARD ET AL., supra note 6, at 27-40.

(12) St. Augustine of Hippo was born in 354 at Thagaste, an inland city of the Roman province of Africa. He formed his principles of warfare from the Old Testament and religious leaders such as Abraham, Moses, Joshua, Samson, Gideon, David and Judas Maccabeus. COLM MCKEOG, INNOCENT CIVILIANS: THE MORALITY OF KILLING IN WAR 21 (2002). St. Augustine established a punitive model for warfare, making no distinctions between combatants and civilians. No distinction was required under this model because there is no moral difference between the two. St. Augustine’s moral emphasis on the guilt of the enemy population could justify violence against it. The premise of guilt as justification for war was also justification to protect those who were not guilty. Id. at 28.

(13) While Aquinas’ somewhat evolved opinion of warfare did not approve of the killing of innocent people, he did not absolutely prohibit it. Id. at 62-63.

(14) A progressive theologian for the era, Francisco De Vitoria made a large step forward in the protection of civilians. He advocated it would violate natural law to kill innocent women, children, clerics, religious clergy, foreign travelers, guests of the country, agricultural workers and the civilian population. Id. at 88, citing FRANCISCO DE VITORIA, DE JURE BELLI, in J.B. SCOTT, THE CLASSICS OF INTERNATIONAL LAW 163-87 (1917), and FRANCISCO DE VITORIA, POLITICAL WRITINGS 315 (Anthony Pagden & Jeremy Lawrence ed. 1991). Only those who bear arms or engage in fighting were presumed guilty in the absence of evidence to the contrary. MCKEOG, supra note 12, at 87. He remarked that it was lawful to attack civilians “with full knowledge of what one is doing, if this is an accidental effect; for example, during the justified storming of a fortress or city, where one knows there are many innocent people.” FRANCISCO DE VITORIA, POLITICAL WRITINGS 315 (Anthony Pagden & Jeremy Lawrence ed. 1991).

(15) Both Grotius and Vattell placed great emphasis on civilian immunity in war. However, both also recognized that civilian casualties were acceptable as an unintended and unforeseen consequence of an otherwise legitimate military objective. MCKEOG, supra note 12, at 116-18.

(16) Id. at 2-3. Although jus ad bellum as a concept contributes greatly to the subject of just war, it is largely inapplicable to modern interpretation. Principles of jus ad bellum are codified by the United Nations [hereinafter U.N.] charter, authorizing the use of force only in the protection of collective security or self-defense. UNITED NATIONS CHARTER, arts. 2, 39 and 51 (1945).

(17) MCKEOG, supra note 12, at 2-3, 116-18.

(18) Id.

(19) Id.

(20) Early American settlers from the 15th through the 17th centuries derived their customs of warfare predominantly from the experience of England. However, exceptions to custom were common and acceptable when engaging Native Americans, who were viewed as pagan, heathen and barbaric by European standards. HOWARD ET AL., supra note 6, at 59-61.

(21) On August 21, 1863, guerrilla leader William Clarke Quantrill and 450 men from Missouri attacked Lawrence, Kansas. After looting and burning one fourth of the homes and businesses, the raiders proceeded to kill 150 unarmed men determined large enough to carry a weapon. In response to the event, Senator James Lane and General Thomas Ewing drafted orders for the forced evacuation of inhabitants from tour nearby Missouri Counties. Union troops then surveyed the area for the possessions of the Lawrence citizens. If any were found, the house containing them was looted and burned in turn. Over 20,000 homes were destroyed as a result of the Union operation. CHARLES R. MINK, GENERAL ORDER 11: THE FORCED EVACUATION OF CIVILIANS DURING THE CIVIL WAR, Military Affairs, vol. XXXV, no. 1, pt. 2, 132-36 (1970). During the Civil War. President Abraham Lincoln and Secretary of War Edwin Stanton were concerned about reports of pillaging and plundering of private property, torching of farms, estates and entire communities. Further, the divergent conduct of officers respectful of customary rules to exempt civilians from warfare from those officers who did not recognize the custom made a codified set of rules necessary. DONALD A. WELLS, THE LAWS OF LAND WARFARE: A GUIDE TO THE U.S. ARMY MANUALS 2-3 (1992). The Lieber code provides in pertinent part:

Art. 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

Art. 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war … it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist.

Art. 16. Military necessity does not admit of cruelty–that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

Art. 19. Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity.

Art. 20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, suffer, advance and retrograde together, in peace and in war.

Art. 21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.

Art. 22. Nevertheless … so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.

Headquarters, Dep’t of Army, Gen. Orders No. 100, Instructions for the Government of Armies of the United States in the Field (1863), available at http://fletcher.tufts.edu/multi/texts/historical/LIEBER-CODE.txt (last visited Mar. 29, 2003).

(22) Id.

(23) Id. at arts. 14-15.

(24) Id. at art. 22.

(25) Id. at art. 21.

(26) WELLS, supra note 21, at 5. See Convention (II) with Respect to the Laws and Customs of War on Land, opened for signature Jul. 29, 1899, 32 Star. 1803, reprinted in DIETRICH SCHINDLER &. JIRI TOMAN, THE LAWS OF ARMED CONFLICTS 63 (3d ed. 1988); Convention (IV) Respecting the Laws and Customs of War on Land, opened for signature Oct. 18, 1907, 36 Stat. 2277, reprinted in REISMAN & ANTONIOU at 63. “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited …. The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.” Id. at arts. 25-26. Similar rules are applicable to naval forces. Undefended ports are generally forbidden from attack except for facilities that are “military works, military or naval establishments, depots of arms or war materiel, workshops or plants which could be utilized for the needs of the hostile fleet or army.” If the port is attacked, the commanding officer of the attack must exercise restraint to spare civilian life and property, and give notice of the attack if military circumstances permit. Convention (IX) Concerning Bombardment by Naval Forces in Time of War, arts. 1-6, Oct. 18, 1907, 36 Stat. 2351, reprinted in W. MICHAEL RESIMAN & CHRIS T. ANTONIOU, THE LAWS OF WAR: A COMPREHENSIVE COLLECTION OF PRIMARY DOCUMENTS ON INTERNATIONAL. LAWS GOVERNING ARMED CONFLICT 82 (1994).

(27) Declaration of St. Petersburg Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grams Weight, Dec. 11, 1868, 138 Consol. T.S. 297 (1868-9), reprinted in REISMAN & ANTONIOU, supra note 26, at 35.

(28) THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES, THE CONFERENCE OF 1899, 354 (James Brown Scott ed. 1920). In support of the limited ban, Captain William Crozier offered: We are without experience in the use of arms whose employment we propose to prohibit forever. Granting that practical means of using balloons can be invented, who can say that such an invention will not be of a kind to make its use possible at a critical point on the field of battle, at a critical moment of the conflict, under conditions so defined and concentrated that it would decide the victory and thus partake of the quality possessed by all perfected arms of localizing at important points the destruction of life and property and of sparing the sufferings of all who are not at the precise spot where the result is decided. Such use tends to diminish the evils of war and to support the humanitarian considerations which we have in view.

(29) Declaration (IV, 1) to Prohibit for the Term of Five Years the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature, Jul. 29, 1899, 32 Star. 1839, reprinted in SCHINDLER & TOMAN, supra note 26, at 202-03.

(30) The first aerial bombardment occurred on October 11, 1911, when Italy bombed Turkish troops and indigenous tribesman in Libya during the Italian-Turkish War. MCKEOG, supra note 12, at 125 (2002).

(31) Convention (IV) Respecting the Laws and Customs of War on Land, supra note 26, at art. 25, reprinted in REISMAN & ANTONIOU, supra note 26, at 63.

(32) Convention (IX) Concerning Bombardment by Naval Forces in Time of War, arts. 1-6, supra note 26, reprinted in REISMAN & ANTONIOU, supra note 26, at 82.

(33) Id.

(34) Id.

(35) Convention (IV) Respecting the Laws and Customs of War on Land, supra note 26, at arts. 25-26, reprinted in REISMAN & ANTONIOU, supra note 26, at 63.

(36) J.M. SPAIGHT, AIR POWER AND WAR RIGHTS 228-29 (3d ed. 1947).

(37) LEE KENNETT, THE FIRST AIR WAR 1914-1918 2 (1991). In 1917, Germany conducted an extensive bombing campaign against England’s military and defense industry to degrade British morale. England responded with attacks on military targets and “densely populated industrial centers” in an effort to destroy German morale. Both states intended to degrade morale among the civilian population to weaken support for the conflict. Richard J. Overy, Strategic” Bombardment Before 1939. Doctrine, Planning, and Operations, in CASE STUDIES IN STRATEGIC BOMBARDMENT 20-21, 55 (R. Cargill Hall ed. 1998).

(38) KENNETT, supra note 37, at 4445.

(39) SPAIGHT, supra note 36, at 228-29.

(40) GIULIO DOUHET, THE COMMAND OF THE AIR 196 (Dino Ferrari trans., 1942).

(41) Id.

(42) C. WEBSTER & N. FRANKLAND, THE STRATEGIC AIR OFFENSIVE AGAINST GERMANY 1939-45 74 (1961).

(43) See supra text accompanying note 26.

(44) Hague Rules of Aerial Warfare, Feb. 19, 1923, 32 A.J.I.L. (Supp.) 12 (1938), reprinted in SCHINDLER & TOMAN, supra note 26, at 83-84:

Art. 22. Aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants is prohibited.

Art. 24. (1) Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent.

(2) Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centers engaged in the manufacture of arms, ammunition or distinctively military supplies; lines of communication or transportation used for military purposes.

(3) The bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighborhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph (2) are so situated that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment.

(4) In the immediate neighborhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population.

(5) A belligerent state is liable to pay compensation for the injuries to the person or to property caused by the violation by any of its officers or forces of the provisions of this article.

(45) Draft Convention for the Protection of Civilian Populations Against New Engines of War (1938), in SCHINDLER & TOMAN, supra note 26, at 223-25. The convention proposed civilian protection in war by restricting attacks on undefended towns, discriminating military targets from civilian objects in defended towns, restricting the use of bombardment to “terrorize” the enemy, the establishment of civilian safety zones immune from attack, and sanctions before the International Court of Justice for violation. Id.

(46) DOUHET, supra note 40, at 195.

(47) Id. at 189.

(48) See W.A. Jacobs, The British Strategic Air Offensive Against Germany in World War II, in CASE STUDIES IN STRATEGIC BOMBARDMENT 91, 118-19 (R. Cargill Hall ed. 1998). British bombing strategy focused on traditional economic targets, but civilian morale was a secondary objective. Id.

(49) Overy, supra note 37, at 71. Commonly referred to as the Casablanca Directive, England and the U.S. resolved that the objectives of combined bombing campaigns should emphasize the “destruction and dislocation of the German military, industrial and economic system, and the undermining of the morale of the German people.” WEBSTER & FRANKLAND, supra note 42, at app. 8, pt. 28.

(50) JOHN ELLIS, BRUTE FORCE: ALLIED STRATEGY AND TACTICS IN THE SECOND WORLD WAR 180 (1990).

(51) Id.

(52) ARIEH H. KOCHAVI, PRELUDE TO NUREMBERG: ALLIED WAR CRIMES POLICY AND THE QUESTION OF PUNISHMENT 21-22 (1998).

(53) Id. at 22.

(54) Id. at 23-24.

(55) MCKEOGH, supra note 12, at 126.

(56) Id.

(57) Id.

(58) RONALD SCHAFFER, WINGS OF JUDGMENT: AMERICAN BOMBING IN WORLD WAR II, 95-97, 103 (1985).

(59) ARCHER JONES, THE ART OF WAR IN THE WESTERN WORLD 579 (1987).

(60) THE U.S. STRATEGIC BOMBING SURVEY: THE EFFECTS OF ATOMIC BOMBS ON HIROSHIMA AND NAGASAKI, REPORT FROM THE CHAIRMAN OF THE U.S. STRATEGIC BOMBING SURVEY 3 (June 30, 1946).

(61) Id.

(62) Id.

(63) Id. at 5.

(64) Id. at 6.

(65) Id.

(66) Id. at 8.

(67) Id. at 9. Conventional bombing in Tokyo also was indiscriminate. Attacks on March 9-10, 1945 destroyed 16 square miles of city and killed over twenty thousand people. Id. at 3.

(68) Id. at 5.

(69) Id. at 9.

(70) Id. at 13. Radiation exposure is responsible for seven to eight percent of all deaths in Hiroshima and Nagasaki. Id. at 15.

(71) See, e.g., 1949 Geneva Conventions, Protocols I & II, supra note 10. The International Committee of the Red Cross [hereinafter ICRC] was an early proponent of the Geneva Conventions, and later attempted unsuccessfully to prohibit use of aerial bombardment in combat because of the high risk of collateral damage. PROTECTION OF CIVILIAN POPULATION AGAINST THE DANGERS OF INDISCRIMINATE WARFARE, ICRC Res. XXVIII (1965).

(72) Protocol I, supra note 10, at art. 52(2).

(73) Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S. 279.

(74) U.S. v. List, Feb. 19, 1948, in 11 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, 1946-1949, at 1253-54.

(75) Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, art. 15.

(76) Id. at arts. 18-22.

(77) ROBERT F. FUTRELL, THE UNITED STATES AIR FORCE IN KOREA 1950-1953 439 (1961).

(78) STEPHEN T. HOSMER, PSYCHOLOGICAL EFFECTS OF U.S. AIR OPERATIONS IN FOUR WARS 1941-1991: LESSONS FOR U.S. COMMANDERS 19-20 (1996).

(79) Id.

(80) Id. at 20-21.

(81) President Eisenhower wrote that the U.S. “intended to move decisively without inhibition in our use of weapons, and would no longer be responsible for confining hostilities to the Korean peninsula.” DWIGHT D. EISENHOWER, THE WHITE HOUSE YEARS: MANDATE FOR CHANGE 1953-1956 179-80 (1963).

(82) Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 215. The Convention is not ratified by the U.S.

(83) Id. at 240.

(84) Id. Final Act Of the International Peace Conference, Jul. 29, 1899, reprinted in 1 AM J. INT’L L. 157 (Supp. 1907); Final Act of the Second Peace Conference, Oct. 18, 1907, reprinted in 36 Stat. 2277, Treaty Series No. 539 (Cmd. 4175, 1914); Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact), Apr. 15, 1935, 49 Stat. 3267, T.S. No. 899, 167 L.N.T.S. 279.

(85) See infra notes 102 and 105, and accompanying text.

(86) Russell Betts & Frank Denton, An Evaluation of Chemical Crop Destruction In Vietnam, A Memorandum Prepared for the Office of the Assistant Secretary of Defense/International Security Affairs and the Advanced Research Projects Agency, RAND Memo RM-5446-1-ISA/ARPA 1 (Oct., 1987). Irreversible nervous system damage may result from absorption of 2,4-D through the skin. Inhalation may cause coughing, dizziness or burning in the chest. Large doses have resulted in digestive and neuromuscular system distress. Ingestion of large quantities may lead to death within one to two days of exposure. Long-term exposure to 2,4-D may cause kidney, liver, muscular, digestive or nervous system damage. U.S. Dep’t of Agriculture, Forest Service Pesticide Fact Sheet at http://infoventures.com/ehlth/pestcide/24d.html (last visited Mar. 29, 2004).

(87) See id., at 1.

(88) Id. at ix.

(89) Id. at xii.

(90) Id. at xiii.

(91) Id. at xiii.

(92) THOMAS C. THAYER, WAR WITHOUT FRONTS: THE AMERICAN EXPERIENCE IN VIETNAM 82 (1985).

(93) Robert A. Pape, Jr., Coercive Air Power in Vietnam, 15(2) INT’L SECURITY 114, 118 (Fall, 1990).

(94) Id. Gen. William Momyer states that the objectives of the campaign in Vietnam were generally the same throughout the war: 1) reduce infiltration of troops and supplies into South Vietnam; 2) continued aggression in the south would be met with continued aggression in the north and; 3) to raise the morale of the South Vietnamese people. GEN. WILLIAM W. MOMYER, USAF (Ret.), AIR POWER IN THREE WARS, 173 (1978).

(95) Pape, supra note 93, at 119.

(96) Jack L. Timies, Study on Psychological Operations Against North Vietnam: July 1972-January 1973, CHECO/CORONA Harvest Division, Operations Analysis Office, HQ PACAF, pp. 3-6, 15-20 & 32 (May 24, 1974).

(97) ROBERT W. CHANDLER, WAR OF IDEAS: THE U.S. PROPAGANDA CAMPAIGN IN VIETNAM 99-100 (1981).

(98) HOSMER, supra note 78, at 33.

(99) Id. at 39-40.

(100) Id. at 39.

(101) See generally GEN. VO NGUYEN GIAP & VAN TIEN DUNG, HOW WE WON THE WAR 39-42 (1976).

(102) Vietnam Rules of Engagement, 131 CONG. REC. S6261 (1985)[hereinafter Vietnam Rules of Engagement], reprinted in REISMAN & ANTONIOU supra note 26, at 119-121, which states in part:

6. a. All possible means will be employed to limit the risk to the

lives and property of friendly forces and civilians. In this

respect, a target must be clearly identified as hostile prior to

making a decision to place fire on it…. c. The enemy is known to

take advantage of areas normally considered as non-military targets.

Typical examples of non-military targets are places of religious or

historical value and public or private buildings and dwellings. When

the enemy has sheltered himself or installed defensive positions in

such places, the responsible brigade or higher commander must

positively identify the preparation for, or execution of, hostile

enemy acts before ordering an attack. During the attack, weapons and

forces used will be those which will insure prompt defeat of enemy

forces with minimum damage to structures in the area.

Id. at 115.

(103) HOSMER, supra note 78 at 60-64.

(104) See Protocols I & II, supra note 10.

(105) See Vietnam Rules of Engagement, supra note 102 and infra note 107.

(106) Id.

(107) See id.

Restrictions and Rules of Engagement, RVN (Republic of Vietnam)

a. All targets selected for an air strike will be approved by the Province Chief directly or through higher Army of the Republic of Vietnam authority.

b. All pilots will endeavor to minimize non-combatant casualties and civilian property damage. A strike will not be executed where identification of friendly forces is in doubt.

c. All pilots will have a knowledge of the disposition of friendly forces and/or civilians prior to conducting a strike. This information may come from ground or air briefing. g…. If the attack on a village or hamlet is in conjunction with any immediate ground operation, the inhabitants must be warned by leaflets and/or loudspeaker system prior to the attack and must be given sufficient time to evacuate the area. Id. at 109-10.

Rules of Engagement

All enemy military personnel and vehicles transporting the enemy or their supplies may be engaged subject to the following restrictions:

A. When possible the enemy will be warned first and asked to surrender.

B. Armed force is the last resort.

C. Armed civilians will only be engaged in self-defense.

D. Civilian aircraft will not be engaged without approval from above Division level unless it is in self-defense.

E. Avoid harming civilians unless necessary to save U.S. lives. If possible, try to arrange for the evacuation of civilians prior to any U.S. attack.

F. If civilians are in the area, do not use artillery, mortars, armed helicopters, AC-130, lube or rocket-launched weapons, or M551 main guns against known or suspected targets without the permission of a ground maneuver Commander Lieutenant Colonel or higher.

G. If civilians are in the area, all air attacks must also be controlled by a Forward Air Controller or Forward Observer.

H. If civilians are in the area, close air support (CAS), white phosphorus, and incendiary weapons are prohibited without approval from above Division level.

I. If civilians are in the area, Infantry does not shoot except at known enemy locations.

J. If civilians are not in the area, you can shoot at suspected enemy locations.

K. Public works such as power stations, water treatment plants, dams and/or other utilities may not be engaged without approval from above Division level.

L. Hospitals, Churches, Shrines, Schools, Museums, and any other historical or cultural site will not be engaged except in self-defense.

M. All indirect fire and air attacks must be observed.

N. Pilots must be briefed for each mission on the location of civilians and friendly forces.

O. No booby-traps. No mines except as approved by Division Commander. No riot control agents without approval from above Division level.

P. Avoid harming civilian property unless necessary to save U.S. lives.

Q. Treat all civilians and their property with respect and dignity. Before using privately owned property, check to see if any publicly owned property can substitute. No requisitioning of civilian property without permission of a company-level Commander and without giving a receipt. If an ordering officer can contract for the property, then do not requisition if. No looting. Do not kick down doors unless necessary. Do not sleep in their houses. If you must sleep in privately owned buildings, have an ordering officer contract for it.

R. Treat all prisoners humanely and with respect and dignity.

S. Annex R. the Operations Plan (OPLAN) provides more detail. Conflicts between this card and the OPLAN should be resolved in favor of the OPLAN.

Id. at 128-29.

(108) GIAP & DUNG, supra note 101, quoting Danny Schechter at Introduction.

(109) See W. Hays Parks, Rolling Thunder and the Law of War, AIR UN. REV. 20-21 (1982).

(110) See generally Protocols I & II, supra note 10.

(111) Id. at Protocol I, arts. 54-56.

(112) Id. at art. 51(3),(7).

(113) Id. at art. 37.

(114) Id. at art. 52(2).

(115) See Memorandum from the President of the United States Transmitting Protocol I Additional to the Geneva Conventions of August 12, 1949, Concluded at Geneva on June 10, 1977, 1977 U.S.T. LEXIS 465 (Jan. 29, 1987). President Ronald Reagan rejected Protocol I in 1987, stating: “Protocol I is fundamentally and irreconcilably flawed … [it] would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war.” See also Hans-Peter Gasser, Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Convention on the Protection of War Victims, 81 AM. J. INT’L. L. & POL’Y 910 (1987).

(116) For a discussion of U.S. doctrine and strategy, see infra notes 369 to 398 and accompanying text.

(117) See generally Protocol II, supra note 10 at arts. 13-17.

(118) ICRC, Treaties of International Humanitarian Law and States Parties.” State Parties & Signatories By Treaty, http://www.icrc.org/ihl.nsf/WebNORM?OpenView& Start=53.1.96&Count=150&Expand=53.2 #53.2 (last visited Apr. 15, 2004).

(119) Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 YALE H.R. & DEV. L.J. 143, 148-49 (1999).

(120) Protocol I, supra note 10, art. 51. As of March 29, 2004, 159 states were party to the protocol.

(121) Id. at art. 51(3). In addition, civilians may not be used as shields:

The presence or movements of the civilian population or individual

civilians shall not be used to render certain points or areas immune

from military operations, in particular in attempts to shield

military objectives from attacks or to shield, favor or impeded

military operations. The Parties to the conflict shall not direct

the movement of the civilian population or individual civilians in

order to attempt to shield military objectives from attacks or to

shield military operations.

Id. at art. 51(7).

(122) The following types of attacks are considered indiscriminate:

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be

directed at a specific military objective; or (c) those which

employ a method or means of combat the effects of which cannot

be limited as required by this Protocol; and consequently, in

each such case, are of a nature to strike military objectives

and civilians or civilian objects without distinction.

Id. at art. 51 (4).

Among others, the following types of attacks are considered

indiscriminate: (a) an attack by bombardment by any method or means

which treat as a single military objective a number of clearly

separated and distinct military objectives located in a city, town,

village or other area containing a similar concentration of

civilians or civilian objects; and (b) an attack which may be

expected to cause incidental loss of civilian limb, injury to

civilians, damage to civilian objects, or a combination thereof,

which would be excessive in relation to the concrete and direct

military advantage anticipated.

Id. at art. 51(5).

(123) Id. at art. 50(3).

(124) Id. at art. 57(2).

(125) Id. at art. 37. Prohibited acts include feigning truce or surrender, feigning incapacitation from wounds or sickness, feigning civilian or non-combatant status, and feigning protected status by the use of signs, emblems, or uniforms of the U.N. or neutral states. Id.

(126) Id.

(127) Convention On the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, opened for signature Dec. 10, 1976, 1108 U.N.T.S. 151; 31 U.S.T. 333, 16 I.L.M. 88. Signed by the U.S. on May 18, 1977 and ratified on January 17, 1980.

(128) Id. at art. II.

(129) Protocol I, supra note 10, art. 54(2).

(130) Final Act of the United Nations Conference on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects [hereinafter Convention on Indiscriminate Weapons], as amended Dec. 21, 2001, opened for signature Apr. 10, 1981, 1342 U.N.T.S. 137, 19 I.L.M. 1523 (1980). The U.S. ratified the Act and convention, and Protocols I and II with reservation on March 24, 1995. The U.S. does not formally recognize the amendment.

(131) Id. at Appendix B, Protocol [I] on Non-Detectable Fragments, Oct 10, 1980, 19 I.L.M. 1523, 1529 (1980). The U.S. ratified the protocol with reservation on March 24, 1995.

(132) Convention on Indiscriminate Weapons, Protocol [II] on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended May 3, 1996, 35 I.L.M. 1206 (1996). The U.S. ratified the protocol with reservation on March 24, 1995. The U.S. ratified the amendment with reservation on May 24, 1999.

(133) Convention on Indiscriminate Weapons, Protocol [III] on Prohibitions or Restrictions on the Use of Incendiary Weapons, Oct. 10, 1980, art. 2, 19 I.L.M. 1534 (1980). The U.S. does not formally recognize the protocol.

(134) Convention on Indiscriminate Weapons, Protocol [IV] on Blinding Laser Weapons, art. 1, Oct. 13, 1995, 35 I.L.M. 1218 (1996). The U.S. does not formally recognize the protocol.

(135) Id. at art. 13.

(136) See supra notes 131 to 134 and accompanying text.

(137) See U.S. DEP’T OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR: FINAL REPORT TO CONGRESS [hereinafter PERSIAN GULF WAR FINAL REPORT] 75 (Apr., 1992).

(138) “Careful targeting and expert use of technological superiority–including precision guided munitions–throughout the strategic air campaign minimized collateral damage and casualties to the civilian population, reflecting U.S. policy that Saddam Hussein and his military machine, not the Iraqi people, were the enemy.” U.S. DEP’T OF DEFENSE, CONDUCT OF THE PERSIAN GULF CONFLICT: AN INTERIM REPORT TO CONGRESS [hereinafter PERSIAN GULF WAR INTERIM REPORT] 4-4 (Jul., 1991).

(139) PERSIAN GULF WAR FINAL REPORT, supra note 137, at 116.

(140) BARRY D. WATTS ET AL., GULF WAR AIR POWER SURVEY, VOL. II: OPERATIONS EFFECTS AND EFFECTIVENESS 30 (1993); see also PERSIAN GULF WAR FINAL REPORT, supra note 137 at 201-03:

Command Facilities: There were 45 targets in the Baghdad area, and

others throughout Iraq, in the leadership command facilities target

set. The intent was to fragment and disrupt Iraqi political and

military leadership by attacking its C2 [command & control] of Iraqi

military forces, internal security elements, and key nodes within

the government. Specifically targeted were facilities from which the

Iraqi military leadership, including Saddam Hussein, would attempt

to coordinate military actions. Targets included national-level

political and military headquarters and command posts (CPs) in

Baghdad and elsewhere in Iraq.

(141) WATTS ET AL., supra note 140, at 274-75.

(142) PERSIAN GULF WAR FINAL REPORT, supra note 137 at 95-96.

(143) WATTS ET AL., supra note 140, at 202-03; see also PERSIAN GULF WAR FINAL REPORT, supra note 137 at 202 03:

Electricity Production Facilities: Electricity is vital to the

functioning of a modern military and industrial power such as Iraq,

and disrupting the electrical supply can make destruction of other

facilities unnecessary. Disrupting the electricity supply to key

Iraqi facilities degraded a wide variety of crucial capabilities,

from the radar sites that warned of Coalition air strikes, to the

refrigeration used to preserve biological weapons (BW), to nuclear

weapons production facilities. To do this effectively required the

disruption of virtually the entire Iraqi electric grid, to prevent

the rerouting of power around damaged nodes. Although backup

generators sometimes were available, they usually are slow to come

on line, provide less power than main sources, and are not as

reliable. During switch over from main power to a backup generator,

computers drop off line, temporary confusion ensues, and other

residual problems can occur. Because of the fast pace of a modern,

massed air attack, even milliseconds of enemy power disruption can

mean the difference between life and death for aircrews. Attacks on

Iraqi power facilities shut down their effective operation and

eventually collapsed the national power grid. This had a cascading

effect, reducing or eliminating the reliable supply of electricity

needed to power NBC [nuclear, biological & chemical] weapons

production facilities, as well as other war-supporting industries;

to refrigerate bio-toxins and some CW [chemical warfare] agents; to

power the computer systems required to integrate the air defense

network; to pump fuel and oil from storage facilities into trucks,

tanks, and aircraft; to operate reinforced doors at aircraft storage

and maintenance facilities; and to provide the lighting and power

for maintenance, planning, repairs, and the loading of bombs and

explosive agents. This increased Iraqi use of less-reliable backup

power generators which, generally, are slow to come on line,

and provide less power. Taken together, the synergistic effect of

losing primary electrical power sources in the first days of the war

helped reduce Iraq’s ability to respond to Coalition attacks. The

early disruption of electrical power undoubtedly helped keep

Coalition casualties low.

(144) See id. at 207:

Oil Refining and Distribution Facilities: Fuel and lubricants are

the lifeblood of a major industrial and military power. Iraq had a

modern petroleum extraction, cracking, and distillation system,

befitting its position as one of the world’s major oil producing

and refining nations. Coalition planners targeted Iraq’s ability to

produce refined oil products (such as gasoline) that had immediate

military use, instead of its long-term crude oil production

capability. The air campaign damaged approximately 80 percent of

Iraq’s refining capacity, and the Iraqis closed the rest of the

system to prevent its destruction. This left them with about 55 days

of supply at prewar consumption rates. This figure may be

misleading, however, because the synergistic effect of targeting oil

refining and distribution, electricity, the road, rail and bridge

infrastructure, and the national C3 [command, control &

communication] network, all combined to degrade amounts of oil and

lubricants Iraqi commanders received.

(145) See HOSMER, supra note 78, at 53, n. 38 (1996); see also PERSIAN GULF WAR FINAL REPORT, supra note 137 at 207-08:

Railroads and Bridges: Most major railroad and highway bridges in

Iraq served routes that ran between Baghdad and al-Basrah. Iraqi

forces in the KTO [Kuwaiti Theater of Operations] were almost

totally dependent for their logistical support on the lines of

communication (LOCs) that crossed these bridges, making them

lucrative targets. Although Iraqi forces had built large stockpiles

of supplies in southeast Iraq by January, DIA [Defense

Intelligence Agency] reported cutting the bridges prevented or

reduced restocking, and prevented reinforcement of deployed forces

once the air campaign began. About three fourths of the bridges

between central Iraq and the KTO were severely damaged or

destroyed. Iraqi LOCs into the KTO were vulnerable because they

crossed bridges over the Tigris and Euphrates rivers. The bridges

were destroyed at the rate of seven to ten a week, and the supply

flow into the KTO dropped precipitously. While the supply routes

into the KTO were being interdicted, Iraqi supply troops also

were subjected to heavy air attacks. As bridges were destroyed,

long convoys of military trucks waiting to cross were stranded and

attacked. Air attacks also destroyed supplies stockpiled in the KTO

and severely disrupted their distribution. In an environment where

literally nothing was available locally, these efforts resulted in

major shortages of food for fielded forces, particularly for those

units farthest forward.

(146) WATTS ET AL., supra note 140, at 274-75; see also PERSIAN GULF WAR FINAL REPORT, supra note 137 at 203-05:

Telecommunications and Command, Control, and Communication Nodes:

The ability to issue orders to military and security forces, receive

reports on the status of operations, and communicate with senior

political and military leaders was crucial to Saddam Hussein’s

deployment and use of his forces. To challenge his C3, the Coalition

bombed microwave relay towers, telephone exchanges, switching rooms,

fiber optic nodes, and bridges that carried coaxial communications

cables. These national communications could be reestablished and so,

required persistent re-strikes. These either silenced them or forced

the Iraqi leadership to use backup systems vulnerable to

eavesdropping that produced valuable intelligence, according to DIA

assessments, particularly in the period before the ground campaign.

More than half of Iraq’s military landline communications passed

through major switching facilities in Baghdad. Civil TV and radio

facilities could be used easily for C3 backup for military purposes.

The Saddam Hussein regime also controlled TV and radio and used them

as the principal media for Iraqi propaganda. Thus, these

installations also were struck.

(147) Id. at 147-153:

Constraints on the Concept Plan to Avoid Collateral Damage and

Casualties: A key principle underlying Coalition strategy was the

need to minimize casualties and damage, both to the Coalition and to

Iraqi civilians. It was recognized at the beginning that this

campaign would cause some unavoidable hardships for the Iraqi

people. It was impossible, for example, to shut down the electrical

power supply for Iraqi C2 facilities or CW factories, yet leave

untouched the electricity supply to the general populace. Coalition

targeting policy and aircrews made every effort to minimize civilian

casualties and collateral damage. Because of these restrictive

policies, only PGM were used to destroy key targets in downtown

Baghdad.

(148) Id. at 147-153:

Off Limits Targets: Planners were aware that each bomb carried a

potential moral and political impact, and that Iraq has a rich

cultural and religious heritage dating back several thousand years.

Within its borders are sacred religious areas and literally

thousands of archaeological sites that trace the evolution of

modern civilization. Targeting policies, therefore, scrupulously

avoided damage to mosques, religious shrines, and archaeological

sites, as well as to civilian facilities and the civilian

population. To help strike planners, CENTCOM target intelligence

analysts, in close coordination with the national intelligence

agencies and the State Department, produced a joint no-fire target

list. This list was a compilation of historical, archaeological,

economic, religious and politically sensitive installations in Iraq

and Kuwait that could not be targeted. Additionally, target

intelligence analysts were tasked to look in a six-mile area around

each master attack list target for schools, hospitals, and mosques

to identify targets where extreme care was required in planning.

Further, using imagery, tourist maps, and human resource

intelligence (HUMINT) reports, these same types of areas were

identified for the entire city of Baghdad. When targeting officers

calculated the probability of collateral damage as too high, the

target was not attacked. Only when a target satisfied the criteria

was it placed on the target list, and eventually attacked based on

its relative priority compared with other targets and on the

availability of attack assets. The weapon system, munition, time

of attack, direction of attack, desired impact point, and level of

effort all were carefully planned. For example, attacks on known

dual (i.e., military and civilian) use facilities normally were

scheduled at night, because fewer people would be inside or on the

streets outside.

(149) See id. at 153.

(150) See id. at 228.

(151) See id. at 697-703.

On 11 February, a mosque at al-Basrah was dismantled by Iraqi

authorities to feign bomb damage; the dome was removed and the

building dismantled. US authorities noted there was no damage to the

minaret, courtyard building, or dome foundation which would have

been present had the building been struck by Coalition munitions.

The nearest bomb crater was outside the facility, the result of an

air strike directed against a nearby military target on January 30.

Other examples include use of photographs of damage that occurred

during Iraq’s war with Iran, as well as of prewar earthquake damage,

which were offered by Iraqi officials as proof of bomb damage

caused by Coalition air raids.

(152) A cache of Silkworm surface-to-surface missiles was found inside a school in Kuwait City. PERSIAN GULF WAR INTERIM REPORT, supra note 138, at 12-3.

(153) WATTS ET AL., supra note 140, at 289.

(154) Barton Gellman, Iraqi Says 288 Bodies Removed From Bombed Structure, WASH. POST, Feb. 15, 1991, at A29.

(155) RICK ATKINSON, CRUSADE: THE UNTOLD STORY OF THE PERSIAN GULF WAR, 294-95 (1993).

(156) WATTS ET AL., supra note 140, at 278 n. 17.

(157) PERSIAN GULF WAR INTERIM REPORT, supra note 138, at 12-3.

(158) MIDDLE EAST WATCH, NEEDLESS DEATHS IN THE GULF WAR: CIVILIAN CASUALTIES DURING THE CAMPAIGN AND VIOLATIONS OF THE LAWS OF WAR,, Intro. and 19 (1991).

(159) See id. at 18.

(160) See generally, SADRUDDIN AGA KHAN, REPORT TO THE SECRETARY GENERAL OF THE U.N., HUMANITARIAN NEEDS IN IRAQ,, S22799 (July 15, 1991). “As usual, it is the poor, the children, the widowed, and the elderly, the most vulnerable amongst the population who are the first to suffer.” Id. at 5. U.N. Security Counsel Resolutions regarding sanctions on Iraq include S.C. Res. 660, U.N. SCOR, 45th Sess., 2932nd mtg., U.N. Doc. S/RES/660 (1990); S.C. Res. 661, U.N. SCOR, 45th Sess., 2933rd mtg., U.N. Doc. S/RES/661 (1990); S.C. Res. 666, U.N. SCOR, 45th Sess., 2939 mtg., U.N. Doc. S/RES/666 (1990); S.C. Res. 688, U.N. SCOR, 46th Sess., 2982nd mtg., U.N. Doc. S/RES/688 (1991); and S.C. Res. 986, U.N. SCOR, 3519th mtg., U.N. Doc. S/RES/986 (1995).

(161) SADRUDDIN AGA KHAN, supra note 160, at 13-15.

(162) Id.

(163) WATTS ET AL., supra note 140, at 287.

(164) Id. at 243-45.

(165) U.S. DEP’T OF DEFENSE, REPORT TO CONGRESS: KOSOVO/OPERATION ALLIED FORCE AFTER ACTION REPORT [hereinafter OAF AFTER ACTION REPORT] Intro.-1 (Jan. 31, 2000):

Phase 1 would establish air superiority over Kosovo (creating a

no-fly zone south of 44 degrees north latitude) and degrade command

and control and the integrated air-defense system over the whole of

the Federal Republic of Yugoslavia. Phase 2 would attack military

targets in Kosovo and those Yugoslav forces south of 44 degrees

north latitude, which were providing reinforcement to Serbian forces

in Kosovo. This was to allow targeting of forces not only in Kosovo,

but also in the Federal Republic of Yugoslavia south of Belgrade.

Phase 3 would expand air operations against a wide range of

high-value military and security force targets throughout the

Federal Republic of Yugoslavia. Phase 4 would redeploy forces as

required. Id. at 7-8.

(166) See id. at xx.

(167) John A. Tirpak, Victory in Kosovo, 82 AIR FORCE MAG. 2 (July, 1999).

(168) OAF AFTER ACTION REPORT, supra note 165, at 82.

(169) U.S. Dep’t. of Defense, Joint Chiefs of Staff, Joint Statement on the Kosovo After Action Review (Oct. 14, 1999), available at http://www.defenselink.mil/releases/1999/b10141999_bt478-99.html.

(170) OAF AFTER ACTION REPORT, supra note 165, at 88.

(171) Id. at 6-7.

(172) Id.

(173) Id. at 60-63.

(174) Id.

(175) Chris Stephen, Deaths Prove Kosovo Is No ‘Free Fire’ Zone, THE IRISH TIMES, April 16, 1999, at (16)11.

NATO reported earlier this week that Serbia was using large numbers

of ethnic Albanian refugees as human shields, bunching them around

tank convoys, hoping thus to deter prowling jets. The practice came

in with the air strikes: two days after the first NATO bombing,

Serbs rounded up refugees from around the village of Chirez….

Bunching them in the middle of a tank convoy, they forced them to

march with the vehicles along a few miles of exposed road under a

clear blue sky to the outskirts of Srbica, scene of recent heavy

fighting. The refugees were released unharmed, having served their

purpose. If there were any NATO jets overhead at the time, they

would presumably have seen the great swarm…. Now, western

officials said, the need for such “shields” was the reason why

Serbia abruptly halted its “ethnic cleansing” of Kosovo last week.

The “missing” refugees are in fact thought to be held as mobile

shields–to be deployed as necessary. These people, assuming they

have enough food to keep alive, could be used to protect tank

convoys, or, more ambitiously, could perhaps be sent back to

villages that Serbia does not want to bomb…. Human shields also

bring NATO face-to-face with the problem of limited war, another

problem that is relatively new. In previous centuries armies would

give it their all. Now NATO is humbled not by Serb firepower but by

a list of constraints which say it must not itself lose casualties,

must take care about “collateral” damage, and must even avoid

killing too many of its enemy, or destroying its economy too

comprehensively, lest that enrage world opinion…. Partly this is

the fault of the politicians, who in their urge to make

everything–school closures, tax rises–seem all right, try to

present the coming battles as no more horrible than an arcade game,

with technology ensuring that only the bad guys get killed–and no

more of them than is necessary.

Id.

(176) HUMAN RIGHTS WATCH, THE CRISIS IN KOSOVO [hereinafter HRW, THE CRISIS IN KOSOVO], at http://www.hrw.org/reports/2000/nato/index.htm#P217_53015 (last visited Feb. 17, 2004).

(177) Id.

(178) Id.

(179) Id.

(180) Id.

(181) OAF AFTER ACTION REPORT, supra note 165, at xx.

(182) Id.

(183) HRW, THE CRISIS IN KOSOVO, supra note 176.

According to military sources, there was considerable disagreement

between the United States and French governments regarding the

legality and legitimacy of the target, and there was a lively public

debate regarding the selection of Yugoslav civilian radio and

television as a target group. The NATO attack was originally

scheduled for April 12, but due to French disapproval of the target,

it was postponed. According to military, media, and Yugoslav

sources, Western news organizations, who were using the facility to

forward material from Yugoslavia, were alerted by NATO government

authorities that the headquarters would be attacked. Attacks also

had to be rescheduled because of rumors that foreign journalists

ignored warnings to leave the buildings. When the initial warnings

were given to Western media, the Yugoslav government also found out

about the intended attack. When the target was finally hit in the

middle of the night on April 23 … authorities were no longer

taking the threats seriously, given the time that had transpired

since the initial warnings.

(184) See generally HRW, THE CRISIS IN KOSOVO, supra note 176.

(185) Id.

(186) Id.

(187) Id.

(188) Id.

(189) Id.

(190) INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: FINAL REPORT TO THE PROSECUTOR BY THE COMMITTEE ESTABLISHED TO REVIEW THE NATO BOMBING CAMPAIGN AGAINST THE FEDERAL REPUBLIC OF YUGOSLAVIA [Hereinafter ICTY FINAL REPORT], vol. 39(5) (Sep., 2000); 39 I.L.M. 1257, 1282-83 (2000), available at http://www.un.org/icty/pressreal/nato061300.htm.

(191) U..S. JOINT FORCES COMMAND, CONCEPTS DIVISION, WHITE PAPER ON EFFECTS-BASED OPERATIONS (Oct. 2001).

(192) See Conrad Crane, Effects-Based Operations: A Blast From The Past, DEFENSE WEEK, May 14, 2001, at (22) 20.

(193) Rowan Scarborough, Bombing Plan Spares Civilian Structures, WASH. TIMES, Oct. 4, 2001, available at http://nucnews.net/nucnews/2001nn/0110nn/011004nn.htm#300 (last visited Mar. 15, 2005).

(194) See Global Security.Org, Operation Enduring Freedom: Operations, at http://www.globalsecurity.org/military/ops/enduring-freedom-ops.htm (last visited Mar. 7, 2005).

(195) Id.

(196) See e.g., White House, Fact Sheet: Status of Detainees at Guantanamo, 2002 WEEKLY COMP. PRES. DOC. 205 (Feb. 7, 2002), available at http://www.whitehouse.gov./news/releases/2002/02/print/20020207-13.html (last visited Mar. 15, 2005). “Although we never recognized the Taliban as the legitimate Afghan government, Afghanistan is a party to the [Geneva] Convention, and the President has determined that the Taliban are covered by the Convention.”); see also Ambassador Pierre-Richard Prosper, Status and Treatment of Taliban and al-Qaeda Detainees, at http://www.state.gov/s/wci/rm/2002/8491pf.htm (last visited Mar. 7, 2005):

[T]he Geneva Conventions do apply …. to the Taliban leaders who

sponsored terrorism. But, a careful analysis through the lens of

the Geneva Convention leads us to the conclusion that the Taliban

detainees do not meet the legal criteria under Article 4 of the

convention that would have entitled them to POW status. They are not

under a responsible command. They do not conduct their operations

in accordance with the laws and customs of war.

They do not have a fixed distinctive sign recognizable from a

distance and they do not carry their arms openly. Their conduct

and history of attacking civilian populations, disregarding human

life and conventional norms, and promoting barbaric philosophies

represents firm proof of their denied status. But regardless of

their inhumanity, they too have the right to be treated humanely.

Id.

(197) “Taliban and the al-Qaeda were using Red Crescent buildings and facilities, as well as vehicles, to attempt to provide them cover so that they could go out and kill innocent men, women and children.” Press brief by U.S. Dep’t of Defense Secretary Donald Rumsfeld (2003), at http://www.defenselink.mil/transcripts/2003//tr20030425-secdef0126.html (last visited Feb. 20, 2004).

(198) See Prosper, supra note 196; see also Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 4(a), 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950) [hereinafter Geneva Convention III].

(199) Human Rights Watch, Afghanistan: New Civilian Deaths Due to U.S. Bombing (Oct. 31, 2001), at http://www.hrw.org/press/2001/10/afghan1026.htm (last visited Feb. 19, 2002). 200 Id.

(201) Human Rights News, Afghanistan: U.S. Bombs Kill Twenty-Three Civilians (Oct. 26, 2001), at http://www.Afghanistan U S Bombs Kill Twenty-three Civilians.htm (Human Rights Watch Press Release, Quetta, Pakistan, October 26, 2001) (last visited Feb. 19, 2004).

(202) Id.

(203) Id.

(204) Aijaz Rahi, Afghan Village Angry After Gunship Attack (Dec. 7, 2001) at http://story.news.yahoo.com/news?tmpl=story&cid=514&e=12&u=/ ap/20031207/ap_on re as/afghan us attack (last visited Feb. 19, 2004).

(205) Barbara Starr, Afghans Protest Over Wedding Party Bombing, CNN.Com/World (Jul. 4, 2002) at http://www.cnn.com/2002/WORLD/asiapcf/ central/07/04/afghanistan.bombing/(last visited Feb. 19, 2004).

(206) Global Security.Org, Operation Enduring Freedom: Operations, http://www.globalsecurity.org/military/ops/enduring-freedom-ops.htm (last visited Feb. 19, 2004).

(207) But see IslamOnline.net, More Civilian Deaths Confirmed in Afghanistan; U.S. Increases Pressure On Taliban, Bin Laden, at http://www.islamonline.net/English/News/2001-10/22/articlel0.shtml (last visited Feb. 20, 2004).

Residents say at least 10 civilians died in the raids, nine of them

members of the same family killed by stray ordnance as they sat down

to breakfast … MSNBC also quoted a news agency reporter as saying

that he has seen the bodies of women and children in the carnage of

two houses that were hit by U.S. missiles. It was the highest

civilian toll independently confirmed by foreign media since the

October 7 start of the U.S. air campaign on Afghanistan. A Taliban

spokesman said 18 civilians died in Sunday’s raids. The Taliban have

reported that at least 400 civilians have been killed since the

beginning of the U.S. onslaught two weeks ago.

Id.

(208) CENTCOM, The Coalition Bulletin, Seventy Countries–Common Values–One Mission, vol. 1(1) (Oct. 22, 2002).

(209) Starr, supra note 205; see also Rahi, supra note 204.

(210) Specifically stated goals were detailed as: 1) stabilize and maintain the territorial integrity of Iraq and promote a broad-based government that renounces weapons of mass destruction [hereinafter WMD] and terrorism; 2) leverage success in Iraq to compel other countries to cease support to terrorists and to deny access to WMD; 3) destabilize, isolate, and overthrow the Iraqi regime and provide support to a new, broad-based government; 4) destroy Iraqi WMD capability and infrastructure; 5) protect allies and supporters from Iraqi threats and attacks; and 6) destroy terrorist networks in Iraq. T. MICHAEL MOSELEY, LT. GEN., COMMANDER, U.S. CENTRAL AIR FORCE, ASSESSMENT AND ANALYSIS DIVISION, OPERATION IRAQI FREEDOM–BY THE NUMBERS (Apr. 30, 2003).

(211) Id.

(212) See Niko Price, Tallying Civilian Death Toll in Iraq War Is Daunting, PHILADELPHIA INQ., Jun. 11, 2003, at A-03; Laura King, Baghdad’s Death Toll Assessed, L.A. TIMES, May 18, 2003, at Foreign Desk 1(1); Peter Ford, Survey Pointing to High Civilian Death Toll in Iraq, CHRISTIAN SCI. MONITOR, May 22, 2003, at 1.

(213) See supra combined sources in note 212 and accompanying text.

(214) Niko Price, 3,240 Civilian Deaths in Iraq, ASSOC. PRESS, Jun. 10, 2003, at International News.

(215) HUMAN RIGHTS WATCH [hereinafter HRW], OFF TARGET: THE CONDUCT OF THE WAR AND CIVILIAN CASUALTIES IN IRAQ 128-32 (2003).

(216) King, supra note 212.

(217) Richard Whittle, U.S. Accuses Iraq Forces Of Engaging In War Crimes, DALLAS MORNING NEWS, Mar. 27, 2003, at A-21.

(218) HRW, supra note 215, at 74-76.

In at least some cases, the placement of this military hardware

suggested that Iraqi armed forces failed to take the necessary

precautions to spare civilians from the dangers of urban warfare.

From Baghdad to Basra, Human Rights Watch documented dozens of

examples of such lack of precautions. Iraqi forces established

positions in civilian areas in the weeks before the war.

They brought military vehicles and weapons into Nadir, a crowded

slum in al-Hilla, a week or so before the conflict began and

several weeks before the battle there. In a village on the road

between al-Hilla and Baghdad, Human Rights Watch saw three tanks

wedged into three narrow alleyways. Such placement would not have

been the result of ordinary maneuvers during battle. At al-Najah

Intermediary School for Girls, located in a Karbala’

residential area, Iraqi troops had dug fighting positions with

anti-aircraft guns in the schoolyard. Human Rights Watch found

dug-in mortar positions and anti-aircraft cannons between homes

in Hay al-Zaitun in Basra. Such placements appear to have been

intentional, not merely the result of falling back into urban

areas during fighting. Iraqi forces also placed large caches

of weapons and ammunition in civilian neighborhoods. For example,

residents said troops established caches in Hay al-Khadra, a

neighborhood of Baghdad, the week before the war started. Several

munition stores seemed to pre-date the war. Human Rights Watch

visited a huge storage facility near al-Maqal Airfield in Basra

that was only a half-kilometer (.3 miles) from a civilian

neighborhood. The quantity and nature of the munitions stored at

this facility were such that if it had been attacked, the civilian

neighborhood would have suffered extensive damage.

Id.

Some Iraqi civilians interviewed by Human Rights Watch interpreted the location of military hardware in neighborhoods as an intentional attempt by the Iraqi armed forces to use civilians to protect military objectives. “They put anti-aircraft guns in civilian areas to have a safe place. They thought the Americans would not hit them because it was between civilians,” said Dr. Muhammad Hassan al-Ubaidi of al-Najaf Teaching Hospital. Human Rights Watch also found examples of Iraqi troops failing to take any steps to protect the population, including the implementation of evacuation plans. Four residents in Nadir, for example, said no precautions had been taken to ensure their safety. Residents of Hay al-Khadra’a in Baghdad provided similar testimony. “There were … vehicles, armor, and weapons (anti-aircraft and rocket launchers) in the streets, highway, and homes …. The Iraqi forces did not make any attempt to evacuate us. They did nothing else to protect us and other civilians from the battle,” said Munkith Fathi Abd al-Razzaq. On the contrary, it appears the Iraqi troops hoped the presence of civilians would deter enemy attacks. Id.

(219) Id. at 74-76.

(220) Interview with Col Brett Williams, Chief of CENTCOM Checkmate Division in Tampa, Florida (Oct. 29, 2003).

(221) DOD, Open Briefing on Use of Human Shields in Iraq (Feb. 26, 2003) at http://www.defenselink.mil/news/Feb2003/t02262003_t0226humanasst.htm (last visited Mar. 30, 2004).

(222) James Pinkerton, Marine Tells of Confusion in Warfare, HOUSTON CHRONICLE, Apr. 4, 2003, at A-23.

Simmons, a crew chief on a light tank, described a confusing,

harrowing type of warfare in which Iraqi troops take off their

uniforms to blend in with the civilian population and Marines have

learned to trust no one. “I mean, you don’t know what to do,”

Simmons said. “You just got to be careful.” He told how a

humanitarian mission had turned into a fierce firefight and how his

Marines had “lit up,” or fired upon, buses filled with Iraqis in

civilian clothes. The Marines, he said, surmise that the Iraqis

were civilians being used by Saddam Hussein’s troops as human

shields. But the bus passengers could also have been Iraqi

soldiers. He spoke of having to kill Iraqis who may have been

civilians near al Nasiriyah after his unit was called in to support

another Marine outfit. After dark, he said, the Marines watched as

several local buses stopped near their position and large numbers

of people got off. A short time later, he said, the Marines came

under attack by Iraqi troops. “We thought it was just a bus stop,”

Simmon said, adding that Marines quickly surmised that Iraqi

soldiers were mixed in with the passengers. “We were ordered to

shoot after the first two buses stopped,” he said. “It was dark.

The civilians were sitting in the seats, and the Iraqi troops were

standing in the aisles with their guns out the windows. It was like

a rolling gunship. “Once we started firing at the bus and the

civilians got down on the floor,” Simmons said, “the Iraqi soldiers

came out and started coming toward us. We have thermal imaging, so

they didn’t have a chance. “In the morning, the Marines found dead

people in civilian clothes in and around the bus, Simmons said. He

believes that “we did kill some civilians.” “On each bus we’d find

30 or 40 civilians. We felt bad about it,” Simmons said.

(223) HRW, supra note 215, at 78-79.

(224) Id.

(225) Id. Other reports of Iraqi combatants fighting in civilian clothes came from Marines caught in an ambush along the route from al-Nasiriyya to al-Kut, and from soldiers in the Second Brigade, Third Infantry Division, who fought in al-Najaf. The Iraqis often combined disguise with use of civilian vehicles, particularly orange-and-white taxis. On April 7, 2003, for example, Special Republican Guard forces launched a counterattack on Second Brigade forces entering Baghdad while firing from civilian vehicles and wearing civilian clothes. Id.

(226) CENTCOM, Appendix E: Rules of Engagement for U.S. Military Forces in Iraq, Issued by CENTCOM Combined Forces Land Component Commander (Jan., 2003), reprinted in HRW, supra note 215, at App. E, p. 138.

1. On order, enemy military and paramilitary forces are declared hostile and may be attacked subject to the following instructions: a) Positive identification (PID) is required prior to engagement. PID is a reasonable certainty that the proposed target is a legitimate military target. If no PID, contact your next higher commander for decision, b) Do not engage anyone who has surrendered or is out of battle due to sickness or wounds, c) Do not target or strike any of the following except in self-defense to protect yourself, your unit, friendly forces, and designated persons or property under your control: Civilians, Hospitals, mosques, national monuments, and any other historical and cultural sites, d) Do not fire into civilian populated areas or buildings unless the enemy is using them for military purposes or if necessary for your self-defense. Minimize collateral damage, e) Do not target enemy infrastructure (public works, commercial communication facilities, dams), Lines of Communication (roads, highways, tunnels, bridges, railways) and Economic Objects (commercial storage facilities, pipelines) unless necessary for self-defense or if ordered by your commander. If you must fire on these objects to engage a hostile force, disable and disrupt but avoid destruction of these objects, if possible.

2. The use of force, including deadly force, is authorized to protect the following: Yourself, your unit, and friendly forces, Enemy Prisoners of War, Civilians from crimes that are likely to cause death or serious bodily harm, such as murder or rape, Designated civilians and/or property, such as personnel of the Red Cross/Crescent, UN, and US/UN supported organizations.

3. Treat all civilians and their property with respect and dignity. Do not seize civilian property, including vehicles, unless you have the permission of a company level commander and you give a receipt to the property’s owner.

4. Detain civilians if they interfere with mission accomplishment or if required for self-defense.

5. CENTCOM General Order No. 1A remains in effect. Looting and the taking of war trophies are prohibited.

(227) Press Release, Amnesty International, Iraq: U.S. Must Investigate Civilian Deaths, News Service No: 075 (Apr. 1, 2003).

(228) Id.

(229) Elizabeth Neuffer, City Battles Will Boost Growing Civilian Toll, BOSTON GLOBE, Apr. 7, 2003, at A-25.

(230) Id.

(231) Press Release, Amnesty International, Iraq: Soldiers’ Surprise Likely to Rebound on Civilians, News Service No: 076 (Apr. 1, 2003), Bruce Cheadle, Attack on Iraq: War Crime Allegations Flying; Both Sides in Conflict Charge Each Other with Violating Conventions of Warfare, WINDSOR STAR, Mar. 31, 2003, at B-2.

(232) Richard Whittle, United States ‘Preparing the Battlefield’ with Anti-Hussein Messages, DALLAS MORNING NEWS, Mar. 10, 2003, at A-1.

(233) Ed Vulliamy, Cover Story.” Battle Cries, OBSERVER, Jul. 6, 2003, at 22.

(234) Id.

(235) Id.

(236) Id.

(237) Rajiv Chandrasekaran, Human Shields Face the Risks; 200 Activists in Baghdad Protecting Power Plant, WASH. POST, Feb. 25, 2003, at A-18.

(238) Fawn Vrazo, Human Shields Return from Iraq with Mixed Experiences, PHILADELPHIA INQ., Apr. 6, 2003, at A-11.

(239) See infra note 396 and accompanying text.

(240) Protocol I, supra note 10, at art. 51(3). The article states, “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.”

(241) David Filipov, Westerners Taking on Role of ‘Human Shields.’ BOSTON GLOBE, Feb. 27, 2003, at A-22.

(242) When addressing the subject of collateral damage to Secretary of State Henry Kissinger during the Vietnam War, President Richard Nixon stated: “You’re so goddamned concerned about the civilians, and I don’t give a damn. I don’t care.” Brian Braiker, The Best of the Nixon Years: Newly Released Documents From Henry Kissinger’s Time at the White House Supplement an Already Rich Record of Tidbits about the 37th President, NEWSWEEK, (May 27, 2004) at http://www.msnbc.msn.com/ id/5079259/site/newsweek/ (last visited Jun. 22, 2004). In the context of a decision to forbid a number of allied countries from bidding on U.S. reconstruction contracts abroad, President Bush was informed that Prime Minister Schroeder believed the decision might violate international law. In response, “the President responded with a sarcastic gibe: ‘International law? I better call my lawyer.” Editorial, Boomerang Diplomacy, WASH. POST, Dec. 12, 2003, at A-36.

(243) Professor Michael J. Glennon of the Fletcher School of Law & Diplomacy explains:

Massive violation of a treaty by numerous states over a prolonged

period can be seen as casting that treaty into desuetude, as

transforming its provisions to paper rules that are no longer

binding. Or those violations can be regarded as subsequent custom

that creates new law, supplanting the old treaty norms and

permitting conduct that was once a violation. Or state practice can

be considered to have created a non-liquet, to have thrown the law

into a state of confusion where legal rules are not clear and where

no authoritative answer is possible. It makes no practical

difference which analytic framework is applied. The “default

position” of international law has long been that when no

restriction can be authoritatively established, a state is seen as

free to act.

Michael J. Glennon, The U.N. Security Council in a Unipolar World, VIRGINIA J. INT’L L. 98 (Fall, 2003).

(244) For a discussion of the rationalist approach to compliance with international law, see, e.g., John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 HARV. INT’L L.J. 139, 142-47 (1996); Kenneth W. Abbott, Trust but Verify.” The Production of Information in Arms Control Treaties and Other International Agreements, 26 CORNELL INT’L L.J. 1(1993); Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT’L L. 335 (1989).

(245) See supra note 165and accompanying text.

(246) Although the U.S. was disturbed by the atrocities in Rwanda, and attempted to negotiate reforms for multi-lateral peace operations, relatively little U.S. military support was offered to end hostilities and protect the civilian population from genocidal activity. U.S. Dep’t. of State, White Paper, The Clinton Administration’s Policy on Reforming Multi-National Peace Operations (May, 1994).

(247) DOUHET, supra note 40, at 189.

(248) See Vienna Convention on the Law of Treaties, May 23, 1969, arts. 26, 29 & 34-38, 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969). A treaty does not create obligations or rights for a third state without its consent, but nothing precludes a rule in a treaty from becoming binding upon a third state as a customary rule of international law. Id. at art. 38.

(249) Id.

(250) Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001); Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, Nov. 26, 1968, 754 U.N.T.S. 73; European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, Jan. 25, 1974, 13 I.L.M. 540; Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal (1950) 2 Y.B. Int’l L. Comm’n 374, 377, U.N. Doc. A/CN.4/SER.A/1950/Add.1:

Principle I. Any person who commits an act which constitutes a crime under international law is responsible therefore and liable [for] punishment.

Principle II. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V. Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI. The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War Crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war, of persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. Id.

(251) Draft Declaration on Rights and Duties of States, Report of the International Law Commission Covering its First Session (12 Apr.-9 Jun., 1949) U.N. GAOR, 4th Sess., Supp. No. 10 (A/925):

Whereas the States of the world form a community governed by international law,

Whereas the progressive development of international law requires effective organization of the community of States,

Whereas a great majority of the States of the world have accordingly established a new international order under the Charter of the United Nations, and most of the other States of the world have declared their desire to live within this order,

Whereas a primary purpose of the United Nations is to maintain international peace and security, and the reign of law and justice is essential to the realization of this purpose, and

Whereas it is therefore desirable to formulate certain basic rights and duties of States in the light of new developments of international law and in harmony with the Charter of the United Nations,

The General Assembly of the United Nations adopts and proclaims this Declaration on Rights and Duties of States:

Article 1. Every State has the right to independence and hence to exercise freely, without dictation by any other State, all its legal powers, including the choice of its own form of government.

Article 2. Every State has the right to exercise jurisdiction over its territory and over all persons and things therein, subject to the immunities recognized by international law.

Article 3. Every State has the duty to refrain from intervention in the internal or external affairs of any other State.

Article 4. Every State has the duty to refrain from fomenting civil strife in the territory of another State, and to prevent the organization within its territory of activities calculated to foment such civil strife.

Article 5. Every State has the right to equality in law with every other State.

Article 6. Every State has the duty to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms, without distinction as to race, sex, language, or religion.

Article 7. Every State has the duty to ensure that conditions prevailing in its territory do not menace international peace and order.

Article 8. Every State has the duty to settle its disputes with other States by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Article 9. Every State has the duty to refrain from resorting to war as an instrument of national policy, and to refrain from the threat or use of force against the territorial integrity or political independence of another State in any other manner inconsistent with international law and order.

Article 10. Every State has the duty to refrain from giving assistance to any State which is acting in violation of article 9, or against which the United Nations is taking preventive or enforcement action.

Article 11. Every State has the duty to refrain from recognizing any territorial acquisition by another State acting in violation of article 9.

Article 12. Every State has the right of individual or collective self-defense against armed attack.

Article 13. Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.

Article 14. Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law.

Id.

(252) See generally Protocols I & II, supra note 10.

(253) In his statement concerning the Geneva Convention, Ambassador George H. Aldrich stated:

Some countries have been led by their experience, geography,

industrial development, and other factors to invest in and rely on

certain weapons for their military forces, and other countries have

been led to invest in and rely on other weapons. All of these

differences, and others, continue to produce profoundly different

views of both priorities and possibilities in the development of

legal restraints on the means and methods of warfare.

U.S. Dep’t of State, Report of the U.S. Delegation to the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 54 (1972). Of the 191 members of the United Nations, 191 are party to the Geneva Conventions of 1949, 161 are party to Protocol I and 156 are party to Protocol II. Data accurate as of January 27, 2004. ICRC, States Party to the Geneva Conventions and their Additional Protocols: Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977, at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpaList74/ 77EA1BDEE20B4CCDC 1256B6600595596 (last visited Jan. 27, 2004).

(254) In re Yamashita, 327 U.S. 1 (1946).

(255) Id.

(256) William H. Parks, Criminal Responsibility for War Crimes, 62 MIL;. L. REV. 1, 23-24 (1973). Parks argues that evidence in the record of trial indicates Yamashita ordered the summary execution of 2,000 people. Id. at 27 n. 92.

(257) In re Yamashita, 327 U.S.1, 16.

(258) Id.

(259) Id. at 12.

(260) United States v. Calley, 22 U.S.C.M.A. 534 (1973).

(261) Id. at 536.

(262) Id. at 538.

(263) Id. See also Colonel William G. Eckhardt, Command Criminal Responsibility: A Plea For a Workable Standard, 97 MIL. L. REV. 1, 12 (Summer, 1982).

(264) Id.

(265) Id. at 15. Citing Instructions to the Court Members, United States v. Medina, Appellate Exhibit XCIII, 18.

INSTRUCTION: In relation to the question pertaining to the

supervisory responsibility of a Company Commander, I advise

you that as a general principle of military law and custom a

military superior in command is responsible for and required,

in the performance of his command duties, to make certain the

proper performance by his subordinates of their duties as

assigned by him. In other words, after taking action or issuing

an order, a commander must remain alert and make timely

adjustments as required by a changing situation. Furthermore, a

commander is also responsible if he has actual knowledge that

troops or other persons subject to his control are in the process

of committing or are about to commit a war crime and he wrongfully

fails to take the necessary and reasonable steps to insure

compliance with the law of war. You will observe that these legal

requirements placed upon a commander require actual knowledge plus

a wrongful failure to act (emphasis added).

A Senate report describing Yamashita’s holding states that the Supreme Court found a foreign general “responsible for a pervasive pattern of war crimes (1) committed by his officers when (2) he knew or should have known they were going on but (3) failed to prevent or punish them.” In re Yamashita, supra note 254 at 10, citing S. Rep. No. 102-249, at 9 (1991). The International Criminal Tribunals for the Former Yugoslavia and Rwanda have statutes containing substantively similar language for imposing commander responsibility. “The fact that any of the acts referred to in article 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 808, U.N. SCOR, 48th Sess., 3175th mtg., U.N. Doc. S/RES/808, art. 7(3) (1993), annexed to Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add. 1 (1993). “The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, U.N. Doc. S/RES/955, art. 6(3) (1994).

(266) Ford v. Garcia, 289 F.3d 1283, 1288 (2002). Compare, The Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], art. 28:

Responsibility of commanders and other superiors In addition to

other grounds of criminal responsibility under this Statute for

crimes within the jurisdiction of the Court: (a) A military

commander or person effectively acting as a military commander

shall be criminally responsible for crimes within the jurisdiction

of the Court committed by forces under his or her effective

command and control, or effective authority and control as the case

may be, as a result of his or her failure to exercise control

properly over such forces, where: (i) That military commander or

person either knew or, owing to the circumstances at the time,

should have known that the forces were committing or about to commit

such crimes; and (ii) That military commander or person failed to

take all necessary and reasonable measures within his or her power

to prevent or repress their commission or to submit the matter to

the competent authorities for investigation and prosecution. (b)

With respect to superior and subordinate relationships not described

in paragraph (a), a superior shall be criminally responsible for

crimes within the jurisdiction of the Court committed by

subordinates under his or her effective authority and control, as a

result of his or her failure to exercise control properly over such

subordinates, where: (i) The superior either knew, or consciously

disregarded information which clearly indicated, that the

subordinates were committing or about to commit such crimes; (ii)

The crimes concerned activities that were within the effective

responsibility and control of the superior; and (iii) The superior

failed to take all necessary and reasonable measures within his or

her power to prevent or repress their commission or to submit the

matter to the competent authorities for investigation and

prosecution.

(267) See The Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, supra note 75, at art. 3.

(268) Id.

(269) See, e.g., early Greek normative rules of warfare, supra note 7. EMMERICH DE VATTEL, THE LAW OF NATIONS, BOOK III, OF WAR, CHAP. IV. OF THE DECLARATION OF WAR–AND OF WAR IN DUE FORM, [section] 4 (1758) (“It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners…. Thus the sovereign power alone is possessed of authority to make war.”); LIEBER, supra note 21, at art. 82:

Men … who commit hostilities, whether by fighting, or inroads for

destruction or plunder, or by raids of any kind, without commission,

without being part and portion of the organized hostile army, and

without sharing continuously in the war, but who do so with

intermitting returns to their homes and avocations, or with the

occasional assumption of the semblance of peaceful pursuits,

divesting themselves of the character or appearance of soldiers–such

men, or squads of men, are not public enemies, and therefore,

if captured, are not entitled to the privileges of prisoners of war,

but shall be treated summarily as highway robbers or pirates.

Id.

(270) Principles of International Law Concerning Friendly Relations and Cooperation Among States, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 18 at 339, U.N. Doc. A/8018 (1970) (establishing the requirement that every State has a duty to deter terrorists from organizing, instigating, assisting or participating in terrorist acts in another state, or acquiescing in organized activities within its territory directed towards the commission of such acts); G.A. Resolution 2131, U.N. GAOR, 20th Sess., Supp. No. 14 at 107, U.N. Doc. A/6221 (1965); G.A. Res. 40/61, U.N. Doc No A/RES/40/61 (1985); S.C. Res. No 748, U.N. Doc No. S/RES/748 (1992).

(271) Id.

(272) See e.g., Rome Statute, supra note 266.

(273) See e.g., Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, supra note 73; Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 808, U.N. SCOR, 48th Sess., 3175th mtg., U.N. Doc. S/RES/808, at. 1 (1993); Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, U.N. Doc. S/RES/955, art. 1 (1994).

(274) Serb families attempted to sue seventeen countries over NATO’s bombing of the Serbian Radio and Television Headquarters. Penny Lewis, Do Civilian Casualties of War Have Any Rights? LONDON TIMES, Aug. 8, 2000, at Features Section.

(275) Amnesty International accused NATO forces of violating the laws of war. “The April 23, 1999 bombing of the headquarters of Serbian state radio and television, which left 16 civilians dead, was a deliberate attack on a civilian object and as such constitutes a war crime.” Richard Norton-Taylor, Revealed: How War in Kosovo Exposed Weaknesses in Britain’s Armed Forces: MoD Failed with Resources and Hid Cost of Conflict, Says Watchdog, LONDON GUARDIAN, Jun. 6, 2000, at Home Pages, p. 5. See also notes 184-187 and accompanying text for further accusations of war crimes in OAF.

(276) See INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, supra note 190 at par. 6, 39 I.L.M. at 1258.

(277) British use of cluster bombs in OIF is an alleged war crime. Special interest groups like Peacerights recommend further investigation by the ICC for prosecution. Seven legal specialists from Britain, Ireland, France and Canada interviewed eyewitnesses and examined evidence to see if there was a case for referring British conduct to the court. “There is a considerable amount of evidence of disproportionate use of force causing civilian casualties,” said Professor Bill Bowring of London Metropolitan University. “The U.S. cannot be tried before the court because it refuses to sign up to it. The UK did.” Peter Apps, UK Cluster Bombs May be War Crime, (Jan. 21, 2004) at http://www.reuters.co.uk/newsPackageArticle.jhtml?type=topNews&storyID= 442590&section=news (last visited Apr. 1, 2004); Tosin Sulaiman, Group Investigating Whether U.S., British Troops Committed War Crimes, KNIGHT-RIDDER WASH. BUREAU, Apr. 24, 2003, KR-ACC-No. K6299.

(278) Al Santoli described “international law warfare” as a state’s deceptive participation in “international or multinational organizations in order to subvert their policies and the interpretation of legal rulings.” See introduction by AL SANTOLI in LIANG & XIANSUI, infra note 412 and accompanying text for a discussion of Chinese perceptions of LOAC. Brig Gen Charlie Dunlap describes the strategy of using law as a means to limit strategy as “lawfare.” Dunlap, Brief on Air and Information Operations: A Perspective on the Rise of “Lawfare” in Modern Conflicts, presented at the Naval War College (Jun., 2003).

(279) The Rome Statute, supra note 266, at art. 12.

(280) Id. at art. 12(2)(b).

(281) Id. at art. 12(2)(a).

(282) Id. at art. 12(3).

(283) ICRC, Treaties of International Humanitarian Law and States Parties: State Parties & Signatories By Treaty, http://www.icrc.org/ihl.nsf/WebNORM?OpenView& Start=53.1.96&Count=150&Expand=53.2#53.2 (last visited Apr. 15, 2004.

(284) The Rome Statute allows states to enter into international agreements that waive ICC jurisdiction. Article 98 states:

The Court may not proceed with a request for surrender or assistance

which would require the requested State to act inconsistently with

its obligations under international law with respect to the State or

diplomatic immunity of a person or property of a third State, unless

the Court can first obtain the cooperation of that third State for

the waiver of the immunity. The Court may not proceed with a request

for surrender which would require the requested State to act

inconsistently with its obligations under international agreements

pursuant to which the consent of a sending State is required to

surrender a person of that State to the Court, unless the Court can

first obtain the cooperation of the sending State for the giving of

consent for the surrender.

Rome Statute, supra note 266, at art. 98.

(285) Rome Statute, supra note 266, at art. 17. U.S. commanders are more appropriately prosecuted under applicable provisions of the Uniform Code of Military Justice [hereinafter UCMJ] for war crimes. The UCMJ, however, is limited in the ability to assert jurisdiction over foreign military nationals suspected of war crimes. A court-martial convened under the UCMJ has jurisdiction to try a foreign enemy combatant only if the individual has been granted prisoner of war [hereinafter POW] status. To obtain POW status, the individual must be sufficiently aligned to a state. See notes 196-198 and accompanying text for criteria to qualify as a POW. POWs may only be tried and sentenced in a U.S. forum that is substantially equivalent to the proceedings and rights provided to members of the armed forces of the detaining power. See Geneva Convention III, supra note 198, at arts. 84, 87, 88, 95, 100, 102, 103, 106, & 108. Although this would normally be a court-martial, a military commission that provides similar rights and proceedings to a court-martial would also satisfy the requirement. Individuals that lack POW status like terrorists or non-combatants are subject to military commissions, tribunals or other venues established by the capturing state. These types of non-state actors are prosecuted under U.S. jurisdiction pursuant to UCMJ art. 2(a)(9)(2002). The U.S. may also exercise jurisdiction in U.S. District Courts pursuant to 18 U.S.C. [section] 2441 (2004) over individuals committing war crimes pursuant to the U.S. War Crimes Act of 1996, 18 U.S.C. [section] 2441 (2004).

(286) Rome Statute, supra note 266, at art. 17.

(287) Id.

(288) Id. at art. 17(1).

(289) Id. at art. 19

(290) Id.

(291) Id. at art. 16.

(292) Id. at art. 5(1). The crime of aggression has not yet been defined and currently is outside the court’s jurisdiction. Id. at art. 5(2). Once a definition for the crime of aggression is adopted in accordance with the requirements of the Rome Statute, the court will be able to exercise jurisdiction over such acts. Id. Defining aggression suffers from several problems. First, aggression has never been defined in any multilateral treaty. Report of the International Law Commission on the Work of its Forty-sixth Session, Draft Statute for an International Criminal Court, U.N. GAOR, 49th Sess., Supp. No. 10, at 72, art. 20(b), U.N. Doc. A/49/10 (1994). Second, there does not exist a commonly accepted definition of aggression. David Stoelting, Status Report on the International Criminal Court, 3 HOFSTRA L. & POL’Y SYMP. 233, 265 (1999). Third, historically, aggression has been considered to be a crime of a state, not of an individual. Id. Fourth, the crime of aggression equates to finding that there has been an illegal breach of the peace. Under the U.N. Charter, the Security Council has the power to determine whether an act constitutes a breach of the peace, and there is a reluctance to give that power to the ICC. Depending on the conditions by which the court could take jurisdiction over the crime of aggression, prosecutions could be brought without the Security Council having found that an anticipatory attack constituted a breach of the peace. Thus, the ICC could find that an anticipatory attack was an illegal act and a breach of the peace even though the Security Council declined to do so. In the face of these problems, a working group on defining aggression is attempting to find a solution. See, Daryl A. Mundis, Current Development: The Assembly of States Parties and the Institutional Framework of the International Criminal Court, 97 AM. J. INT’L L. 132 (2003); Silvia A. Fernandez de Gurmendi, Completing the Work of the Preparatory Commission: The Working Group on Aggression at the Preparatory Commission for the International Criminal Court, 25 FORDHAM INT’L L.J. 589 (2002).

(293) Rome Statute, supra note 266, at art. 8.

(294) Examples of war crimes included in the Rome Statute that are derived from previous conventions include the willful killing, torture, or taking of hostages. Id. at art. 8(2)(a).

(295) Id. at art. 8(2)(b).

(296) See, e.g., Panel Discussion: Association of American Law Schools Panel on the International Criminal Court, 36 AM. CRIM. L. REV. 223, 233 (1999) (Professor Halberstam argues that the Rome Statute alters well established definitions of crimes, adds new crimes, and is being used for political purposes).

(297) The text of the elements of a crime of Article 8(2)(b)(iv), War Crime of Excessive Incidental Death, Injury, or Damage:

1. The perpetrator launched an attack. 2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Rome Statute, supra note 266, at art. 8(2)(b)(iv). Compare definition of proportionality provide by Protocol I, art 51 (5)(b) at note 122 and accompanying text.

(298) The Assembly of State Parties of the ICC drafted elements of crimes to assist the court in interpreting the Rome Statute’s provisions. See Assembly of State Parties to the Rome Statute of the International Criminal Court, First session, Official Records, U.N. Doc ICC-ASP/1/3, at 112 (2002) [hereinafter Elements of Crimes]. (299) An example of the imprecision of the crime’s definition is that the elements do not explicitly require that the attack actually result in civilian casualties. Although the elements could reasonably be interpreted in such a way to require civilian deaths, poor drafting can result in different constructions of the provision and subject the language to challenge. (300) The ICC recognizes that incidental “injury” and “collateral damage” may occur to achieve a military advantage. However, the footnote excludes “incidental death.”

The expression “concrete and direct overall military advantage”

refers to a military advantage that is foreseeable by the

perpetrator at the relevant time. Such advantage may or may not be

temporally or geographically related to the object of the attack.

The fact that this crime admits the possibility of lawful incidental

injury and collateral damage does not in any way justify any

violation of the law applicable in armed conflict. It does not

address justifications for war or other rules related to jus ad

bellum. It reflects the proportionality requirement inherent in

determining the legality of any military activity undertaken in the

context of an armed conflict (emphasis added).

Elements of Crimes, supra notes 297-298, at 131 n. 36.

(301) Elements of Crimes, supra note 298, at 132 n. 37. “As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgment as described therein. An evaluation of that value judgment must be based on the requisite information available to the perpetrator at the time.” Id.

(302) Michael Bothe, War Crimes, in 1 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 379, 400 (Cassese et al. eds. 2002).

(303) Id.

(304) Id.

(305) For a discussion of how an individual’s experience and condition effects LOAC, see infra notes 329-333 and accompanying text.

(306) See LIANG & XIANSUI, infra note 412 and accompanying text for a discussion of Chinese perceptions of LOAC.

(307) Rome Statute, supra note 266, at art. 9.

(308) Mauro Politi, Elements of Crimes, in 1 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, supra note 302, at 447 (“[T]he elements are meant to be used by the judges as simple guidelines in reaching determinations as to individual criminal responsibility.”).

(309) See, e.g., MARGARET P. DOXEY, INTERNATIONAL SANCTIONS IN CONTEMPORARY PERSPECTIVE (2d ed. 1996).

(310) See, e.g., DANIEL W. DREZNER, THE SANCTIONS PARADOX: ECONOMIC STATECRAFT AND INTERNATIONAL RELATIONS (1999); GARY CLYDE HUFBAUER, JEFFREY J. SCHOTT, & KIMBERLY ANN ELLIOTT, ECONOMIC SANCTIONS RECONSIDERED (2d ed. 1990).

(311) Id.

(312) See generally, Sadruddin Aga Khan, Report to the Secretary General of the United Nations, supra note 160, at 13-15, and accompanying text for a discussion of the effects of U.N. economic sanctions of Iraq.

(313) Id.

(314) Elements of Crimes, supra notes 297-298, at art. 8(2)(b)(iv).

(315) See supra notes 6-15 and accompanying text.

(316) Joseph P. Englehardt, LTC, USA, Desert Shield and Desert Storm: A Chronology and Troop List for the 1990-1991 Persian Gulf Crisis 52 (1991).

(317) PERSIAN GULF WAR FINAL REPORT, supra note 137, at app. O, 692-96.

(318) Id. at 714-15.

(319) Id. at 695, 714-15.

(320) OAF AFTER ACTION REPORT, supra note 165, at Intro.-2.

(321) In 1936, Italy unsuccessfully attempted to coerce Ethiopian Emperor Haile Selassi to negotiate a surrender by bombing and spraying the Ethiopian population with mustard gas. When accompanied with ground assaults, the air attacks ultimately achieved surrender in May, 1936. During WWII in China, repeated Japanese air strikes against Chinese cities were designed to “create terror and excite antiwar sentiments.” ERNEST R. MAY, LESSONS OF THE PAST 135 (1973). In 1971, Idi Amin verthrew the government of Uganda, killing over 300,000 civilians in the process. DAVID W. ZIEGLER, WAR, PEACE, AND INTERNATIONAL POLITICS 95 (1984). In 1975, Cambodian leader Pol Pot embarked on a revolution to transform the country into an entirely rural and traditional Cambodian community. To promote his campaign, he ordered the execution of anyone with a western education or who adopted western ideals. An estimated 2 million people in a country populated by only seven million were killed in less than four years. U.S. CENTRAL INTELLIGENCE AGENCY, NATIONAL FOREIGN ASSESSMENT CENTER, KAMPUSHEA: A DEMOGRAPHIC CATASTROPHE (May, 1980). On August 29, 1990, Syria killed several dozen civilian Iraqi demonstrators supporting Iraq’s invasion of Kuwait. Englehardt, supra note 316, at 18. Philippine Armed Forces Southern Command sources said on November 27, 2001 that followers of Philippine Muslim insurgency leader Nur Misuari had taken fifty Christian Filipinos hostage as “human shields” in a firefight at a Philippine Government complex at Cabatangan. Insurgent Conflict in Philippines Continues to Escalate, DEFENSE & FOR. AFFAIRS DAILY, vol. XIX(187), Nov. 28, 2001. In Qasim Nagar, India, 27 were killed and at least 35 others wounded when militants dressed as Hindu sadhus (holy men) threw hand grenades and opened fire with automatic weapons on local residents. The victims were primarily Hindu women and children. Press Release, Amnesty International, India: Civilians Are Not Legitimate Targets, ASA 20/013/2002, News Service No. 121 (Jul. 15, 2002). For over a decade, Israel, Lebanon, Hizballah and Palestinian groups indiscriminately lobbed shells and fired rockets at civilian population centers during various stages of their conflict, causing civilian casualties and damage to residential homes and civilian infrastructure. HUMAN RIGHTS WATCH, ERASED IN A MOMENT: SUICIDE BOMBING ATTACKS AGAINST ISRAELI CIVILIANS, Lib. of Cong. Control No. 2002114404, ISBN 1-56432-280-7 (2002). A single Israeli missile successfully targeting Hamas leader Salah Shehada on July 22 killed 15 Palestinian civilians. Israel came under strong international criticism for the deaths of the civilians in the attack. Robert Morton Klein, No Questioning Legality of Israel’s Operation, NEW JERSEY JEWISH NEWS, vol. LVI(31) p. 22, Aug. 1, 2002. More than 415 Israeli and other civilians were killed, and more than 2,000 injured, as a result of attacks by Palestinians suicide bombings between September 30, 2000 and August 3 l, 2002. Bombers traditionally pack explosives with nails and pieces of metal, then attempt detonation at high-density civilian locations. Id. Israel came under sharp criticism for an attack in Jenin where suspected Palestinian suicide bombers were launching attacks and killed 13 Israeli soldiers in an ambush. Israel launched missiles from helicopters and used armored bulldozers to destroy civilian houses, making 4,000 people homeless. Reports suggest Israeli soldiers executed one unarmed civilian and wounded an unarmed Palestinian prisoner. Additionally, Palestinian civilians were used as human shields–in one case forcing a father and son to remain in place for three hours as soldiers fired over their shoulders. Doctors and ambulances were prevented from entering the area for 11 days. At least 52 Palestinians were killed along with 23 Israeli soldiers. Twenty-seven of the 52 Palestinians were suspected members of armed Palestinian movements such as Islamic Jihad, Hamas and the Al Aqsa Martyrs Brigade. At least 22 civilian casualties included children, the physically disabled and elderly. Andrew Laxon, Signs of Atrocities at Jenin Refugee Camp Piling Up, NEW ZEALAND HERALD, May 6, 2002, at World Section. In Indonesia, bombings on October 12, 2002 killed 88 Australians among the 190 or more killed. Video footage of a Jemaah Islamiyah member indicated the bombings were targeted at Australia and Britain because they are close allies of the U.S. The attack was retaliation for “200,000 innocent men, women and children killed in Afghanistan” by the U.S. and its allies. New Admissions by Terror Suspects Confirms That Australians Were Targeted in Bali, DEFENSE & FOR. AFFAIRS DAILY, vol. XXI(20), Feb. 11, 2003. Fighting in Burundi on July 6, 2003 resulted in dozens of shells hitting the central market, bars, pharmacies, a bank and the central prison. At least two civilians were killed and ten detainees injured. Press Release, Amnesty International, Burundi: War on Civilians Demands Immediate Action, AFR 16/009/2003, News Service No. 170 (Jul. 15, 2003). In the city of Florencia, Colombia, 11 people died and more than 50 were injured when a motorcycle packed with explosives was detonated by remote control in a busy street. Press Release, Amnesty International, Colombia: Targeting Civilians is Unacceptable, AMR 23/064/2003, News Service No. 224 (Sep. 29, 2003). The disputed region of Kashmir has been the source of dozens of attacks on civilians resulting in hundreds of civilian casualties for both parties in the conflict. In Nadimarg village in the Indian state of Jammu, approximately 15 men wearing army fatigues disarmed police officers at a nearby police station and ordered villagers out of their homes. All 24 villagers were gathered and killed by gunfire. Press Release, Amnesty International, India/Kashmir: Safeguard the Lives of Civilians, ASA 20/013/2003, News Service No. 65 (Mar. 24, 2003). In Laos, thousands of predominantly Hmong ethnic minority members involved in an armed conflict with the Lao military were subject to starvation tactics. Approximately twenty rebel groups with their families were surrounded by Lao military who prevented them from foraging for the food they rely on to survive. Press Release, Amnesty International, Laos: Use of Starvation as a Weapon of War Against Civilians, ASA 26/013/2003, News Service No. 228 (Oct. 2, 2003). Attacks in Darfur, western Sudan, on civilians and civilian objects resulted in the death of hundreds of civilians and displacement of tens of thousands. The attacks were committed by “bandits,” armed militia or in the course of fighting between the Sudanese army and the Sudan Liberation Army. Press Release, Amnesty International, Sudan: Immediate Steps to Protect Civilians and Internally Displaced Persons in Darfur, AFR 54/079/2003, News Service No. 201 (Aug. 29, 2003).

(322) GEOFFREY PARKER, CAMBRIDGE ILLUSTRATED HISTORY OF WARFARE 369 (1995); see also, ERIC V. LARSON & BOGDAN SAVYCH, MISFORTUNES OF WAR: IMPACTS OF COLLATERAL DAMAGE INCIDENTS IN RECENT U.S. WARS 2-4 (Mar., 26 2004)(unpublished manuscript on file with the RAND Corporation and author). Ruth Sivard estimates 109.7 million people were killed from war between 1900 and 1995, including 62.2 million civilians and 43.9 million military. RUTH LEGER SIVARD, WORLD MILITARY AND SOCIAL EXPENDITURES 1996, 18-19 (16th ed. 1996).

(323) See supra note 321 and accompanying text.

(324) Afghanistan.” The Soviet Air War, DEFENSE & FOR. AFFAIRS STRAT. POLICY, Sept., 1985, at 12.

(325) Strategy ’85 Conference Attracts Some 40 National Delegations, DEFENSE & FOR. AFFAIRS STRAY. POLICY, Aug., 1985, at 2.

(326) Yossef Bodansky, Tinder Box in the Caucasus, DEFENSE & FOR. AFFAIRS STRAY. POLICY, Apr., 2000, at 4.

(327) Id.

(328) Id. Reports from hospitals operating in the region indicate that many patients were landmine or ordnance victims, amounting to 66 killed and 166 injured in 2000 alone. Id.

(329) VON CLAUSEWITZ supra note 3 at 75. Commenting on the Iraqi Regime’s resolve to survive, Vice President Taha Yassin Ramadan threatened, “We will use any means to kill our enemy in our land, and we will follow the enemy into its land.” Press Release, Amnesty International, Iraq: Soldiers’ Surprise Likely to Rebound on Civilians, News Service No: 075 (Apr. 1, 2003), Cheadle, supra note 231, at B-2.

(330) See e.g., JOINT CHIEFS OF STAFF, JOINT PUB. 3-12, DOCTRINE FOR JOINT NUCLEAR OPERATIONS (Dec. 15, 1995). “Collateral Damage. U.S. forces will limit collateral damage consistent with employment purposes and desired effect on the target.” Id. at II-6.

(331) Edinburgh Resolution of the Institute of International Law, On the Distinction Between Military Objectives and Nonmilitary Objects in General and Particularly the Problems Associated with Weapons of Mass Destruction, 66 A.J.I.L. 470-71 (1972).

(332) Article 48 of Protocol I requires commanders to distinguish military personnel from civilians, and military objects from civilian objects. As a practical matter, however, the majority of responsibility to minimize collateral damage must remain with the adversary who governs the civilian population and controls the military. The most effective method to ensure the protection of a civilian population and civilian objects is the comprehensive, regulated and careful separation of military personnel from civilians, and military objects from civilian objects, pursuant to Articles 51(7) and 58 of Protocol I. Unfortunately, the violation of these requirements are central to the execution of concealment warfare strategy.

(333) In what was explained as an error in judgment, Pakistani scientist,

Abdul Qadeer Khan, broadcast an open admission on February 4, 2003, that he sold nuclear weapons technology to Iran, Libya and North Korea. Products included intermediate range ballistic missiles, complete ultracentrifuge machines, high frequency inverters, flow meters, pressure-vacuum gauges and other equipment. The report did not indicate that there was a sale of weapons grade fissile material. Khan also associated with Iraq and Afghanistan when conducting transactions and providing instructional services on weapons of mass destruction. Douglas Frantz & Josh Meyer, For Sale: Nuclear Expertise, L.A. TIMES, Feb. 22, 2004, at 1.

(334) Statement from Gen. Chuck Homer, USAF, Ret., in TOM CLANCY, EVERY MAN A TIGER: THE GULF WAR CAMPAIGN 389-90 (1999).

(335) U.S. DEP’T OF AIR FORCE PAM. 14-210, USAF INTELLIGENCE TARGETING GUIDE, par. A 4.2.2 (Feb. 1, 1998).

(336) Protocol I, supra note 10, at art. 52(2).

(337) Id. See U.S. DEP’T OF NAVY, ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 1-14M, at 8.1.1 (1995)

(338) Protocol I, supra note 10, at art. 52(2).

(339) See e.g. supra, note 321 and accompanying text for a series of citations reporting collateral damage and civilian casualties from conflict worldwide.

(340) HRW criticized NATO attacks on Serb bridges and the national media headquarters, stating the facilities did not effectively contribute to Serb military action and the attacks did not contribute to a military advantage. HRW, Civilians Deaths in the NATO Air Campaign, available at http://www.hrw.org/reports/2000/nato/index.htm#Top-OfPage (last visited Apr. 8, 2004).

(341) Amnesty International, NATO/FRY, Collateral Damage or Unlawful Killings: Violations of the Laws of War by NATO During Operation Allied Force, AI Index: EUR 70/18/00 (June, 2000) at http://www.web.amnesty.org/ai.nsf/index/EUR700182000 (last visited March 8, 2004).

(342) In 1956, ICRC proposed several categories of military objectives:

I. The objectives belonging to the following categories are those considered to be of generally recognized military importance:

(1) Armed forces, including auxiliary or complementary organizations, and persons who, though not belonging to the above-mentioned formations, nevertheless take part in the fighting.

(2) Positions, installations or constructions occupied by the forces indicated in sub-paragraph 1 above, as well as combat objectives (that is to say, those objectives which are directly contested in battle between land or sea forces including airborne forces).

(3) Installations, constructions and other works of a military nature, such as barracks, fortifications, War Ministries (e.g. Ministries of Army, Navy, Air Force, National Defense, Supply) and other organs for the direction and administration of military operations.

(4) Stores of army or military supplies, such as munition dumps, stores of equipment or fuel, vehicles parks.

(5) Airfields, rocket launching ramps and naval base installations.

(6) Those of the lines and means of communications (railway lines, roads, bridges, tunnels and canals) which are of fundamental military importance.

(7) The installations of broadcasting and television stations; telephone and telegraph exchanges of fundamental military importance.

(8) Industries of fundamental importance for the conduct of the war:

(a) industries for the manufacture of armaments such as weapons, munitions, rockets, armored vehicles, military aircraft, fighting ships, including the manufacture of accessories and all other war material;

(b) industries for the manufacture of supplies and material of a military character, such as transport and communications material, equipment of the armed forces;

(c) factories or plants constituting other production and manufacturing centers of fundamental importance for the conduct of war, such as the metallurgical, engineering and chemical industries, whose nature or purpose is essentially military;

(d) storage and transport installations whose basic function it is to serve the industries referred to in (a)-(c);

(e) installations providing energy mainly for national defense, e.g. coal, other fuels, or atomic energy, and plants producing gas or electricity mainly for military consumption.

(9) Installations constituting experimental, research centers for experiments on and the development of weapons and war material.

ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AT 632-633.

(343) U.S. Joint Forces Command, Concepts Division, White Paper on Effects-based Operations (Oct. 18, 2001).

(344) MCKEOG, supra note 12, at 21.

(345) Id. at 28.

(346) Headquarters, Dep’t of Army, Gen. Orders No. 100, supra note 21.

(347) SPAIGHT, supra note 36, at 17-18.

(348) John A. Warden, The Enemy as a System, AIRPOWER JOURNAL 42 (Spring, 1995)

(349) Id.

(350) Protocol I, supra note 10, at art. 52(2).

(351) U.S. GENERAL ACCOUNTING OFFICE, KOSOVO AIR OPERATIONS: NEED TO MAINTAIN ALLIANCE COHESION RESULTED IN DOCTRINAL DEPARTURES, GAO-01-784, 5 (Jul., 2001).

(352) Id.

To ensure that collateral damage was limited, alliance members were

involved in the approval of individual fixed targets, which was not

consistent with military doctrine. The alliance emphasized avoiding

collateral damage because it was concerned that unfavorable public

opinion could fracture the alliance. According to doctrine, the

military commander of the operation would have much more discretion

in selecting and prioritizing the individual targets to be struck.

However, alliance members wanted to review individual targets to

assess the potential for collateral damage and the sensitivity of

the targets. This approach led to reviews by multiple levels of

command above the commanding general that often included reviews by

the U.S. National Command Authorities, NATO’s North Atlantic

Council, and some individual alliance members. This cumbersome

review process often took an additional 2 weeks to get individual

targets approved. A Center for Naval Analysis report on targeting

stated that of 778 fixed targets that were approved by the

commanding general, about 64 percent required a higher level of

approval. At the end of the operation, over 150 targets were still

waiting approval. The high level concern about collateral damage

also led to some approved targets being canceled, which caused some

missions to be canceled at the last minute or aborted. The

commanding general had the authority to approve fixed targets that

would potentially cause less than 20 civilian casualties and mobile

targets. This authority was only given to him later in the

operation. Several senior Air Force officials believed this led to

an inefficient use of assets. Officials at the air operation center

stated that the high level approval process also led to approved

targets being provided on a sporadic basis, which limited the

military’s ability to achieve planned effects and mass and parallel

operations as recommended in doctrine. For example, to achieve the

effect of stopping production of an oil refinery, one official said

that several targets were identified and submitted for approval.

However, the approval was provided only for some of those targets,

which reduced the effectiveness of the strike since the refinery was

not totally disabled. Moreover, several officials said that the

process could not produce enough targets in a timely manner for the

number of aircraft involved to conduct parallel and simultaneous

operations as called for in mass and parallel attack doctrine.

(353) Gregory R. Copley, The New Rome & The New Religious Wars, Conflict and Politics; the Kosovo Crisis, DEFENSE & FOR. AFFAIRS STRAT. POLICY, Mar., 1999, at 3.

Civilian Targets: Despite claiming victory for the destruction of

Yugoslavia’s oil refining capability, the US and NATO failed to

disclose the reality of their air strikes. This writer saw the

results of some of the strikes. In the city of Pancevo, virtually a

suburb of Belgrade, air strikes had repeatedly hit the oil refinery,

the fertilizer factory and the petrochemical plant–all among the

largest installations of their type in South-Eastern Europe–and an

aircraft manufacturing facility. The damage was indeed enormous,

but, despite repeated claims that only military-related targets were

being hit, it was clear that at Pancevo, and at many other locations

in Yugoslavia, strictly and unequivocally civil targets were being

struck. This, given the precision of the targeting, indicated that

the conduct of the war and its objectives were very different than

those being cited by the White House. By April 19, 1999, a

conservative estimate concluded that 400,000 to 500,000 Yugoslavs

(not counting the Kosovo refugees) out of the appr. 11-million

population had directly lost their employment because of the

destruction of their factories. This meant that some two-million

people were without income. But indirectly, the impact on employment

was far greater. When the 300,000 car-a-year automobile factory–the

one which made the Yugo car–was destroyed, for example, all of the

component makers were themselves “hit”: they lost their customer,

forcing their own closure or cutbacks. At Pancevo alone, some 10,000

people were thrown out of work, and the city began to empty as

children were sent to stay with relatives in the country, and those

rendered jobless took their families in search of safety. The air

strikes against the oil refinery may have been understandable, given

that a legitimate military or strategic target is indeed the fuel

supply that services the Armed Forces. But it was struck, on one of

the attacks, on the first day of the Orthodox Easter, a pointed

reminder that the Clinton White House–which had hesitated to launch

strikes against Iraq during the Muslim Ramadan holy period of

fasting–cared little for the sentiments of the Orthodox communities

worldwide. This did not pass unnoticed among the 300-million

Orthodox Christians around the world. The total value of the damage

in Pancevo was about $1.3-billion, some $650-million of this at the

oil refinery, which was hit a total of three times (by April 19,

1999). [Total cost of the war to the Yugoslav infrastructure during

the first 30 days of bombing is estimated at $100-billion.] The

flames at the Pancevo oil refinery, soaring 20 meters into the air,

and billowing black smoke continued unabated two days after the last

of the strikes.

(354) The U.S. Joint Chiefs of Staff propose the term “additional damage” instead of “voluntary collateral damage” in their draft manual to estimate collateral damage. “Additional damage. Unintentional or incidental injury or damage to persons or objects that would be lawful military targets in the circumstances ruling at the time.” CHAIRMAN OF THE JOINT CHIEFS OF STAFF, JOINT METHODOLOGY FOR ESTIMATING COLLATERAL DAMAGE AND CASUALTIES FOR CONVENTIONAL WEAPONS: PRECISION UNGUIDED, AND CLUSTER [hereinafter CJCS COLLATERAL DAMAGE METHODOLOGY], CJCSM 3160.01A (Draft), at A-4 (Feb., 2004).

(355) Compare definition of “collateral damage” provided at footnote 1 supra.

(356) A thorough indirect collateral damage assessment must evaluate all foreseeable effects of a military operation on violence, crime, political infrastructure, housing, environment, public health, water and sanitation infrastructure, power infrastructure, poverty, economy, labor and unemployment, and education. The U.S. Joint Chiefs of Staff propose the term “collateral effects” instead of “indirect collateral damage” in their draft manual to estimate collateral damage:

Collateral Effects. This term encompasses all non-CBRN [chemical,

biological, radiological and nuclear] effects resulting from

military operations, beyond the immediate incidental physical

damage caused by the weapon’s detonation. These include

unintentional or incidental effects or damage to the civilian

infrastructure (e.g., industry, power, petroleum, communications,

transportation, public services), economy, environment, political

stability, Allied/Coalition partnerships, etc. within a region,

country or affecting the territory of surrounding states, cross

boundaries or buffer zones that were not intended in relation to

the commander’s objectives or functional target systems being

struck.

CJCS COLLATERAL DAMAGE METHODOLOGY, supra note 354, at A-4.

Targeting effects are categorized in two categories by the U.S. Joint Chiefs of Staff, direct or indirect:

Direct effects are the immediate, first order consequence of a

military action (weapons employment results, etc.), unaltered by

intervening events or mechanisms. They are usually immediate and

easily recognizable. (For example, a parked aircraft is destroyed

either by a direct hit from a bomb, or it is sufficiently close to

the point of detonation that it receives the brunt of the weapon’s

blast and fragments.) Indirect effects are the delayed and/or

displaced second-and third-order consequences of military action.

They are often accentuated by intermediate events or mechanisms to

produce desired outcomes that may be physical or psychological in

nature. Indirect effects are often difficult to recognize, due to

subtle changes in adversary behavior that may hide their extent.

(For example, the plane destroyed as a direct effect of an attack

on an airfield, combined with similar attacks on all the assets of

an adversary’s air defense system, over time may ultimately degrade

the legitimacy of the regime by portraying them as incapable of

protecting the populace).

U.S. DEP’T OF DEFENSE, DOCTRINE FOR TARGETING, JP 3-60, at I-6 (2002).

(357) The U.S. Joint Chiefs of Staff recognize that the “cumulative” and “cascading” effects of targeting strategy require assessment.

Direct and indirect effects possess three fundamental

characteristics that qualitatively impact the influence they exert

on adversary capabilities. Cumulative Nature of Effects … tend to

compound, such that the ultimate result of a finite number of

direct effects is greater than the sum of their immediate

consequences. Likewise, indirect effects often synergistically

combine to produce greater changes than the sum of their individual

consequences. This may occur at the same or at different levels of

war as the contributing lower order effects are achieved. Cascading

Nature of Effects … can ripple through an adversary target

system, often influencing other target systems as well; most

typically through nodes that are common and critical to related

target systems. The cascading of indirect effects, as the name

implies, usually flows from higher to lower levels of war. As an

example, destruction of a headquarters element will result in the

loss of command and control (C2) and synergy of subordinate units.

Id. at I-6-7.

(358) See e.g., Alissa J. Rubin, Fallouja: No Good Options, L.A. TIMES, Apr. 4, 2001, at A-I.

(359) WATTS ET AL., supra note 140, at 274-75.

(360) Id. at 291-92; see also PERSIAN GULF WAR FINAL REPORT, supra note 137, at 202-03.

(361) Id. at 207.

(362) HOSMER, supra note 78, at n. 38; see also PERSIAN GULF WAR FINAL REPORT, supra note 137, at 207-08.

(363) See e.g., WATTS ET AL., supra note 140; see also PERSIAN GULF WAR FINAL REPORT, supra note 137, at 203-05.

(364) Id. at 147-153.

(365) HOSMER, supra note 78, at 106.

(366) Id.

(367) Id. at 158 and 185.

(368) Protocol I, supra note 10, at arts. 51 & 54. Article 54 states:

1. Starvation of civilians as a method of warfare is prohibited.

2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

3. The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party: (a) As sustenance solely for the members of its armed forces; or (b) If not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.

(369) U.S. DEP’T OF THE AIR FORCE, BASIC AEROSPACE DOCTRINE OF THE UNITED STATES AIR FORCE, AFM 1-1, vol. II, at 302 (March, 1992). Clearly recognizing the value of “behavior” and “perception” in targeting strategy, the U.S. Joint Chiefs of Staff also define a target as, “an area, complex, installation, force, equipment, capability, function, or behavior identified for possible action to support the commander’s objectives, guidance, and intent (emphasis added).” U.S. DEP’T OF DEFENSE, DOCTRINE FOR TARGETING, supra note 356 at I-2. “When choosing targets, the commander must be focused on the purpose of the fires striking chosen targets…. Targeting effects are the cumulative results of actions taken to engage geographical areas, complexes, installations, forces, equipment, functions, perception, or information by lethal and non-lethal means. Id. I-5-6.

(370) U.S. DEP’T OF THE AIR FORCE, AIR FORCE DOCTRINE, AFDD 1, at 6 (1997).

(371) U.S. DEP’T OF THE AIR FORCE, STRATEGIC ATTACK, AFDD 2-1.2, at 13 (1998); see also U.S. DEP’T OF DEFENSE DEP’T OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS, JP1-02, at 80 (2001).

(372) U.S. DEP’T OF THE NAVY, U.S. MARINE CORPS, WARFIGHTING, MCDP 1, at 46-47 (1997).

(373) U.S. DEP’T OF THE ARMY, THE TARGETING PROCESS, FM6-20-10, at 3-11 (1996). “Center of gravity usually relates to the main enemy force or capability. The concept of center of gravity is useful as a tool to analyze enemy strengths and vulnerabilities. By identifying and controlling decisive points, commanders gain a marked advantage over the enemy and can influence the outcome of an action.” U.S. DEP’T OF THE ARMY, DECISIVE FORCE: THE ARMY IN THEATER OPERATIONS, FM 100-7, at 1-5 (1995).

(374) U.S. DEP’T OF THE NAVY, NAVAL WARFARE, NDP 1, at 35-37.

As an example, a lengthy re-supply line supporting forces engaged

at a distance from the home front could be an enemy’s center of

gravity. The re-supply line is something the enemy must have, a

source of strength, but not necessarily capable of protecting

itself. Opportunities to access and destroy a center of gravity are

called critical vulnerabilities. To deliver a decisive blow to

the enemy’s center of gravity, we must strike at objectives

affecting the center of gravity that are both critical to the

enemy’s ability to fight and vulnerable to our offensive

actions…. Some, such as electrical power generation and

distribution facilities ashore or the fleet oilers supporting a

task group may be obvious. On a strategic level, examples may

include a nation’s dependence on a certain raw material imported

by sea to support its war-fighting industry, or its dependence on

a single source of intelligence data as the primary basis for its

decisions. Alternatively, a critical vulnerability might be an

intangible, such as morale. In any case, we define critical

vulnerabilities by the central role they play in maintaining or

supporting the enemy’s center of gravity and, ultimately, his

ability to resist. We should not attempt to always designate one

thing or another as a critical vulnerability. A critical

vulnerability frequently is transitory or time-sensitive. Some

things, such as the political will to resist, may always be

critical, but will be vulnerable only infrequently. Other

things, such as capital cities or an opponent’s fleet, may often be

vulnerable, but are not always critical. What is critical will

depend on the situation. What is vulnerable may change from one

hour to the next. Something may be both critical and vulnerable for

a brief time only.

Id.

(375) When coalition forces proposed a “cyber attack” during OAF, the idea was quickly reviewed for potential LOAC violations.

When the DOD considered hacking into Serbian computer networks to

disrupt military operations and basic civilian services, the

Pentagon held back because of continuing legal uncertainties and

limitations relative to the new field of “cyber warfare.” It is

theoretically possible for soldiers at computer terminals to invade

an opponent’s networks and shut down electrical facilities,

interrupt telephone service, crash trains and disrupt financial

systems; but the Defense Department’s Office of General Counsel

issued a 50-page “Assessment of International Legal Issues in

Information Operations,” stating that the misuse of cyber attacks

could subject US authorities to war crimes charges. Commanders

should apply the same “law of war”‘ principles to computer attacks

that they do to the use of bombs and missiles. These principles

restrict attacks to targets that are of military necessity only,

minimizing collateral damage and avoiding indiscriminate attacks.

Kernan Chaison, Cyber Warfare Rules “Burnfuzzle” DOD Lawyers, J. ELECTRONIC DEF., Jan. 1, 2000, no. 1, vol. 23(16).

(376) See generally DEP’T OF DEFENSE, JOINT DOCTRINE FOR ELECTRONIC WARFARE, JP3-51 (2000); and DEP’T OF DEFENSE, JOINT DOCTRINE FOR INFORMATION OPERATIONS, JP3-13 (1998).

(377) See supra note 356 and accompanying text for definitions of “indirect effects” and “indirect collateral damage.”

(378) In effects-based targeting, measures of effectiveness [hereinafter MOEs] are defined as:

MOEs in military operations are defined as tools used to measure

results achieved in the overall mission and execution of assigned

tasks. MOEs are a prerequisite to the performance of combat

assessment. Assessment of such indicators normally takes place at

the tactical, operational, and even strategic levels of war, and

goes beyond counting craters or vehicles destroyed. The key is to

determine when the predetermined conditions have been met that

affect adversary operational employment or overall strategy and

whether or not the anticipated effects are occurring. The

continuing intelligence analysis process helps to ensure that

proper combat assessment measurements take place.

U.S. DEP’T OF DEFENSE, DOCTRINE FOR TARGETING, supra note 356, at I-8.

(379) Protocol I, supra note 10, at art. 57(2).

(380) The following types of attacks are considered indiscriminate:

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be

directed at a specific military objective; or (c) those which

employ a method or means of combat the effects of which cannot be

limited as required by this Protocol; and consequently, in each

such case, are of a nature to strike military objectives and

civilians or civilian objects without distinction.

Id. at art. 51(4).

(a) an attack by bombardment by any method or means which treat as a

single military objective a number of clearly separated and distinct

military objectives located in a city, town, village or other area

containing a similar concentration of civilians or civilian

objects; and (b) an attack which may be expected to cause

incidental loss of civilian life, injury to civilians, damage to

civilian objects, or a combination thereof, which would be

excessive in relation to the concrete and direct military advantage

anticipated.

Id. at art. 51(5).

(381) Avocating initiatives to ensure all of weapon systems and platforms are inter-operable and able to move data seamlessly, Gen. Lester Lyles, Commander of USAF Air Force Materiel Command, testified before the U.S. Senate Armed Services Committee: “As a result of this AFMC-wide enterprise, our special tactics warriors will soon have a digital machine-to-machine capability that helps to quickly connect the fight aircraft with the right munitions, guided precisely to the right target, at just the right time, to achieve the desired effect. This new automated process helps to reduce the time it takes to target the terrorist threat, while at the same time reducing human error in the targeting process.” Kerry Gildea, Services Investing in S&T Areas To Avoid Friendly Fire Incidents, DEFENSE DAILY, Apr. 1, 2003, vol. 218(1).

(382) Id. The electromagnetic-pulse (EMP) weapon is ideal for military objects located in fortified underground facilities or beneath civilian buildings. In theory, EMP can penetrate bunkers using cables, ventilation ducts, pipes and other openings to transmit a pulse spike. Although these weapons may cause relatively extensive collateral damage, their employment is far more humane than their kinetic counterparts that rely on blast. “The EMP weapon is powered by a large conventional high-explosive charge and generates an electromagnetic spike that fries electronics wherever it reaches. Some reported performance numbers for an earlier version are: a 50-microsecond electromagnetic spike with 30-million peak amps and 20-million peak joules. This makes lightening look like static electricity.” Id.

(383) Ray Nelson, Directed Energy Efforts Increase at AFRL, SPACE & MISSILE, Sep. 15, 2003, vol. 4(36).

(384) Lisa Troshinsky, Non-Lethal Weapons Move Beyond Tactical Arena and Into The Navy, NAVY NEWS & UNDERSEA TECH., Mar. 27, 2000, vol. 17(13).

(385) Commentary, The High End Crusader, High Tech Weapons Key to Iraq War, NEW TECH. WEEK, Jan. 6, 2003, vol. 17(1). Thermobaric technology is a significant enhancement to operations in urban environments. A thermobaric weapon combines the effects of a fireball with the pressure of a blast concussion, filling the space into which it is fired. “It is capable of turning comers and traveling upwards through openings between building floors. Coupled with a penetrating warhead, a thermobaric weapon can penetrate indoor or underground spaces

and then set off a blast of heat and pressure strong enough to destroy biological or chemical agents.” Id.

(386) OAF AFTER ACTION REPORT, supra note 165, at 95.

(387) David Atkinson, Smart Fuses Improve Weapon Efficiency, DEFENSE DAILY, Aug. 13, 1998, vol. 199(95).

(388) Lorenzo Cortes, Britain Interested in SDB, But Boeing Concentrating Efforts On Air Force Use, DEFENSE DAILY INT., Jun. 6, 2003, vol. 3(23). Boeing is currently testing a 250-pound small diameter bomb designed to provide accuracy and minimize the effects of collateral damage. The munition is slated to enter service with the F-15E in September, 2006 and then the F/A-22.

(389) Hunter Keeter, Marines, SOCOM Plan Greater Cooperation, DEFENSE DAILY INT., Mar. 1, 2002, vol. 3 (17).

(390) Frank Wolfe, Ground Forces Aided Recon, Targeting, Damage Assessment, DEFENSE DAILY, Aug. 13, 2002, vol. 215(30).

(391) Id.

(392) Ray Nelson, Nano-technology and Biotechnology for Future Defense, SPACE & MISSILE, Aug. 15, vol. 3(22).

(393) The U.S. Army’s concept for non-lethal capabilities includes weapons that can incapacitate, disorient, temporarily disable, irritate, stun, confuse, subdue, immobilize, and disburse. Weapons could include sonic generators, acoustic generators, inorganic and organic substances causing pungent odors, discomfort and temporary disability, non-penetrating projectiles, strobe lights, stun weapons, water cannons, optical munitions, adhesive coatings, anti-traction and immobilizing agents, combustible dispersants, entanglement agents and devices, and aqueous foams. U.S DEP’T OF THE ARMY, TRADOC PAMPHLET 525-73, CONCEPT FOR NONLETHAL CAPABILITIES IN ARMY OPERATIONS, App. B (Dec. 1, 1996).

(394) U.S. DEP’T OF DEFENSE DIR. 3000.3, DOD POLICY FOR NON-LETHAL WEAPONS para. 3 (July 9, 1996).

(395) Id.

(396) Interview with Brett A. Plentl, Lt. Col., USAF, conducted at the RAND Corporation in Santa Monica, California (Dec. 11, 2003). Lt. Col. Plentl holds a Senior Navigator Aeronautical Rating, and was detailed as a planner in the targeting cycle for CENTCOM Combined Air Operations Center (CAOC) during OPERATION ENDURING FREEDOM and the Air Force Central Command CAOC during OPERATION IRAQI FREEDOM. See also CENTCOM Brief, Targeting and Collateral Damage, March 5, 2003.

(397) David A. Denny, U.S. Air Force Uses New Tools to Minimize Civilian Casualties: Avoiding Unintentional Damage Figures Into Targeting, U.S. DEP’T OF STATE WASHINGTON FILE, Mar. 18, 2003, at 5.

(398) Steven Sifers, LTC, USA, An Infantryman’s Doubts About Smart Weapons, DEFENSE WEEK, April 2, 2001, vol. 22(14). Cautioning that leaders should not fall prey to the myth that PGM can execute “bloodless surgical strikes.” Adversaries of PGM will attempt to provoke collateral damage for propaganda. Use in previous operations demonstrates PGM are vulnerable to neutralization by software failure, terrain, weather and adaptive adversaries. Id. The successful development of new PGM like the Tomahawk Land Attack Missile (TLAM) and the Joint Direct Attack Munition (JDAM), both of which use Global Positioning System (GPS) information for guidance, have improved overall target accuracy. OAF AFTER ACTION REPORT, supra note 165, at 6-7. However, PGM with GPS guidance also presents the potential vulnerability of jamming, resulting in the ability to render a munition errant and provoke collateral damage. Id. at xxiii. Even though jamming systems are typically among the first targets destroyed in an air campaign, their existence is a warning that these systems can be improved to create effective counter-measures that increase collateral damage. Christian Lowe, Lockheed Answers GPS Jamming Threat, SPACE & MISSILE, Nov. 30, 2000, at 5(10); David Whitman, Keeping Our Bearings, U.S. NEWS & WORLD REP., Oct. 21, 2002, at 72.

(399) ICTY FINAL REPORT, supra note 190 at 39 I.L.M. 1282–83; compare HRW, THE CRISIS IN KOSOVO, supra note 176.

(400) Id.

(401) See generally HRW, supra note 215.

(402) HRW, supra note 215, at 20.

(403) MARK LORELL, CHARLES KELLEY, JR. CASUALTIES, PUBLIC OPINION, AND PRESIDENTIAL POLICY DURING THE VIETNAM WAR V., RAND Project Air Force Study R-3060-AF (March, 1985). The report examines the relationship between casualties and public support for U.S. military intervention in Korea and Vietnam:

Casualties were probably the single most important factor eroding

public support for each of the conflicts…. Poll data indicate that

any U.S. commitment of combat personnel to a sustained Third World

conflict that.. is not perceived as a direct and immediate threat to

the continental United States will in all probability provoke

considerable public opposition once the brief “rally around the

flag” effect dissipates. This includes situations involving threats

to oil sources in the Middle East.

(404) Id.

(405) Katie Fairbank & Doug J. Swanson, U.S. War Support Hinges on Sparing Civilians, DALLAS MORN. NEWS, Mar. 26, 2003, at 1(A).

(406) Interview with Eric V. Larson, Media Analyst, RAND Corporation in Santa Monica, California (Mar. 26, 2004); see generally LARSON & SAVYCH, supra note 322, at 106.

(407) See generally, MIDDLE EAST WATCH, supra note 158. The report attempts to provide a full accounting of coalition violations of the laws of armed conflict.

(408) JAGs are required to review and coordinate on “all operation plans … concept plans, rules of engagement, execute orders, deployment orders, policies, and directives … to ensure compliance with domestic and international law.” U.S. DEP’T OF DEFENSE, IMPLEMENTATION OF THE DOD LAW OF WAR PROGRAM, CJCSI 1810.01A, par. 6(c)(5) (Aug., 1999).

(409) The following transcript from a daily DOD press briefing illustrates the difficulty some senior officials have addressing issues associated with LOAC:

Media Question: Going to that, using foreign volunteers, why do you

not consider those folks to be enemy combatants since they

voluntarily place themselves there?

Sr. Defense Official: I’m not a legal expert, but you certainly

could argue that since they’re working in the service of the Iraqi

government, they may, in fact, have crossed the line between

combatant and noncombatant.

Media Question: And just one sort of technical question. It’s often

stated that the use of human shields is in violation of the

international law of armed conflict. When you say that, are you

referring to a recognized body of law? Or, you know, where can we go

look that up? Is it a series of–

Sr. Defense Official: Yeah. I’m going to refer you to the OSD

general counsel, but my–I know there are certain portions of the

Geneva Convention that state that explicitly, that it is not

permissible to use the civilians. I don’t know if they–I think they

may even use the term “shield.”

Media Question: It seems to me–I want to go back to this point

here. This is a really critical distinction. Are these people, once

they volunteer, are they putting them–taking themselves away from

civilians and they’re there now on the combatant side? This to me

seems like the crux of the whole matter. And you’re saying, “I don’t

know, I’m not a legal expert.” Somebody must have figured this out

at the Pentagon.

Sr. Defense Official: Again, yeah, I’m–I’m an intelligence expert.

It’s not that I’m trying to dodge the question, but I think we would

need OSD policy and legal affairs folks to answer your question.

Media Question: In this room and also at the White House, we’ve had

warnings given from the United States to Iraqi military that if you

follow orders of Saddam’s regime to deploy weapons of mass

destruction, that you will be subject to a war crimes trial. Since

what you’re discussing today is violations of the Geneva Convention

and other international law, are you at this point also saying that

if people in Iraq follow Saddam’s orders to use civilians, to use

mosques, schools and other things, that that would be in violation

of international law; they also are subjecting themselves to a

potential for prosecution in war crimes trials after the war?

Sr. Defense Official: I can’t answer that. I don’t have the legal

expertise. But certainly there is that implication here.

U.S. Dept. of Defense Briefing on Use of Human Shields in Iraq (Feb. 26, 2003) at http://www.defenselink.mil/news/Feb2003/t02262003_t0226humanassthtm (last visited Feb. 19, 2004).

(410) A discussion of the International Criminal Court, potential war crimes and jurisdiction is provided in Chapter IV.

(411) David Wallechinsky, The World’s 10 Worst Dictators, PARADE/L.A. TIMES, Feb. 22, 2004, at 4-5.

(412) Col. Qia Liang and Col. Wang Xiangsui, Chinese People’s Army, embrace the use of computer viruses, drug trafficking, environmental attacks, information warfare, stock market manipulation and other nontraditional strategies to challenge the U.S. military and economic advantage. Col. Wang said, “we are a weak country, so do we need to fight according to your rules? No. War has rules, but those rules are set by the West… if you use those rules, then weak countries have no chance.” John Pomfret, China Ponders New Rules of ‘Unrestricted War,’ WASH. POST, Aug. 8, 1999, at A-1. Labeled “unrestricted warfare” that includes both military and non-military tactics, the two strategists identify U.S. refusal to “consider means that are contrary to tradition” as a primary weakness in its outlook on warfare. Perspective, The New Book on Fighting Goliath: Chinese Officers Lay Out How Weak Foes Can Stymie Strong, CHICAGO TRIB., Apr. 13, 2003, at C-3.

In cases such as Chechnya vs. Russia, Somalia vs. the United States,

Northern Ireland guerrillas vs. Britain and Islamic Jihad vs. the

entire West, without exception we see the consistent, wise refusal

to confront the armed forces of the strong country head-to-head.

Instead, the weaker side has contended with its adversary by using

guerrilla war (mainly urban war), terrorist war, holy war,

protracted war, network war and other forms of combat…. Mostly the

weaker side selects as its main axis of battle those areas or battle

lines where its adversary does not expect to be hit. The center of

mass of the assault is always a place which will result in a huge

psychological shock to the adversary…. It often makes an adversary

which uses conventional forces and conventional measure as its main

combat strength look like a big elephant charging into a china shop.

It is at a loss as to what to do, and unable to make use of the

power it has.

COL. QIAO LIAN & COL. WANG XIANGSUI, People’s Liberation Army of China, UNRESTRICTED WARFARE: CHINA’S MASTER PLAN TO DESTROY AMERICA 182 (2002).

JEFFERSON D. REYNOLDS *

* Jefferson D. Reynolds is an Environmental Counsel to Kirtland Air Force Base in Albuquerque, New Mexico, and was temporarily assigned as a Research Fellow at the RAND Corporation in Santa Monica, California where this study was produced. He is a Major in the Air Force Reserve, J.D. (1990) Hamline University, LL.M. (Environment)(1995) George Washington University. The views expressed in this article are those of the author and do not reflect an official position of the RAND Corporation, Department of the Air Force, Department of Defense or any other U.S. government agency. The author expresses his thanks to Brian Rosen, J.D. and RAND Ph.D. candidate, for his research assistance and contribution of parts of this study focused on the International Criminal Court. The author also expresses his thanks to Mr. Darrell Phillips for comments on a previous draft.

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