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In Determining “Military Necessity” and “Proportionality,” the Commander’S Judgment Is More Critical Than Ever

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In Determining “Military Necessity” and “Proportionality,” the Commander’S Judgment Is More Critical Than Ever In determining “military necessity” and “proportionality,” the commander’s judgment is more critical than ever. In Search of Lawful Targets HEN bombs fall, con- rather than just an exercise in barbar- By Rebecca Grant troversy about the law ity. Limiting the right to make war of war is seldom far was the first step. Among the Ro- behind. Airpower is a mans, Cicero wrote of just war. St. weapon of such reach Augustine and St. Thomas Aquinas Wand potential devastation that it has both regarded war as one of the di- long provoked sharp debate about vine rights of kings. These two Chris- the legality of its operations. In re- tian philosophers formed the first core cent campaigns, where combatant of just war doctrine among European casualties have been extremely low, societies. Their concepts of just war accidental civilian deaths from col- covered two areas: waging a war for Terrorists and other adversaries will lateral damage have made headlines. justifiable reasons and conducting war not observe the laws of war, but However, senior air planners show according to a set of rules that recog- highly refined concepts of what great concern for upholding the law nize mercy and proportionality. constitutes a lawful target are deeply ingrained in the American military. At of war, in no small part out of a To Augustine, it made “a great dif- right, a USAF pilot scours the desire for domestic acceptance and ference by which causes and under horizon. to maintain the international unity which authorities men undertake the of effort. wars that must be waged.” He de- Even in this age of precision war- fined war as part of the natural life of fare, many still raise questions about the state, as long as the war aimed at what constitutes a “lawful target.” ultimately securing peace. A mon- When a command’s staff lawyers arch had a right to wage war, said advise a combatant commander, they Augustine, but had to show mercy are drawing on centuries of tradition toward prisoners and vanquished pop- as well as international conventions ulations. and treaties. Deciding whether a con- Aquinas in the 13th century re- voy of vehicles in a Predator Un- fined Augustine’s principles into manned Aerial Vehicle’s scope is a three necessary conditions: War must lawful target demands working knowl- be prosecuted by a lawful authority, edge of the principles of armed con- which is empowered to wage war; flict and a hefty dose of the com- the war must have a just cause; and it mander’s judgment. must intend “to achieve some good or to avoid some evil.” The Origins of Just War As Europe’s wars of religion ta- There are no lawful targets without pered off, the sovereign state became “lawful” wars. The first concepts of the primary agent of right and wrong lawful conduct in war sought to make in warfare. The state shouldered the war an instrument of national policy moral responsibility for wars. Cicero 38 AIR FORCE Magazine / February 2003 Staff photo by Guy Aceto AIR FORCE Magazine / February 2003 39 oners of war and on the use of bom- bardment and “poison or poisoned arms” and defined who could be con- sidered a spy. Attack of undefended areas was specifically outlawed by Article 25. Naval bombardment was the primary threat at the time, but the language presciently made room for air war- fare as it decreed that the “attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” The Hague Conventions also outlined protections for signifi- cant sites. Article 27 of the 1907 convention stated: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to reli- Two A-20 Havocs from Ninth Air Force attack a French railyard during World gion, art, science, or charitable pur- War II. Despite the danger of civilian casualties, delaying German troop poses, historic monuments, hospi- movements before the D-Day invasion was judged a military necessity. tals, and places where the sick and wounded are collected, provided they founded his view of just war on the poor conduct by a belligerent erodes are not being used at the time for idea of a human society with norms the just cause of the war and under- military purposes.” and morals that transcended the juris- mines its legitimacy because caus- The law of war is in many ways diction of individual states. Dutch ing unnecessary deaths or damage is sympathetic to attackers. As the 1907 philosopher Hugo Grotius extended seen as counter to international norms Hague Convention warned: “It is the this notion in his 17th century con- and customs. In modern coalition duty of the besieged to indicate the cept of natural law with binding, uni- warfare, attention to the law of war presence of such buildings or places versal norms for behavior in war that is a strategic imperative. by distinctive and visible signs, which applied to all humanity. Governments shall be notified to the enemy be- and rulers might change, but the soci- The International Conventions forehand.” ety of man still demanded restraints A second and far more detailed Just seven years after this interna- on conduct. level of the law of war focuses on tional flurry of activity, World War For Grotius, wrote legal scholar operations and tactics. I erupted, introducing many of the Mark Edward DeForrest, a war was Criteria for lawful targets date to new weapons anticipated in the Hague just if it met three basic criteria: the 19th century. The first Geneva treaties. The violence of that war led The danger faced by the nation Convention “for the amelioration of in two directions. First, several na- is immediate. the condition of the wounded in tions, after World War I, outlawed The force used is necessary to armies in the field” was promulgated war altogether. Nine nations signed adequately defend the nation’s in- in August 1864 (although not rati- the Kellogg–Briand Pact of 1928, terests. fied by the US until 1882). Subse- which renounced war “as an instru- The use of force is proportion- quent Geneva Conventions form the ment of national policy.” The senti- ate to the threatened danger. present-day basis for protocols against ment did not last. All the signatories The Nuremberg tribunal after chemical weapons and for proper (except Czechoslovakia, which was World War II again acknowledged treatment of combatants, noncom- occupied by Nazi Germany) later the concept of customary internal batants, and prisoners. fought in World War II. Second, the law, universally applicable and rec- The law of war has been polished world’s nations produced the 1928 ognized regardless of the state’s le- over and over again in attempts to Geneva Convention, which ruled out gal system. cope with mass warfare, destructive the use of chemical weapons. Re- Traditionally the law of war boils new weapons, and evolving interna- markably, although all sides held down to two concepts: jus ad bellum, tional norms. Early efforts sought to stockpiles of chemical weapons, none which includes a just cause, compe- ban new modes of warfare. The Hague were employed on the battlefields of tent authority, and right intention; Conventions of 1899 and 1907 up- World War II. and jus in bello, or justice within the dated a series of rules and limita- However, that war set a new stan- way the war is waged. In practice, tions on the conduct of war and the dard for brutality in other areas. One the guiding principles of jus ad behavior of the victors when they reaction was the formation of the bellum and jus in bello intertwine. occupied territory. The desire of the United Nations. Another was the Striking the wrong target and caus- High Contracting Parties was to “di- Geneva Convention of 1949, which ing unnecessary civilian deaths can minish the evils of war, so far as made modifications to the laws of weaken international or domestic military necessities permit.” They war that took great care to protect support for a war. A perception of listed rules on the treatment of pris- human rights. 40 AIR FORCE Magazine / February 2003 To be called lawful, targets had to fall within these rules and other new concepts of just war laid down in the post–World War II updates of the Geneva Convention. One of the most important of these new concepts was proportionality. In 1977, Protocol I to the Geneva Convention stipulated that attackers had to “take all fea- sible precautions in the choice of means and methods of attack, with a view to avoiding, and in any event, to minimizing, incidental loss of ci- vilian life, injury to civilians, and damage to civilian objects.” Twentieth century warfare put air- power in the spotlight. Reactions to the RAF firebombing campaigns in Germany and to similar tactics in the Pacific war led to decades of post- war debate on what truly constituted The Vietnam War featured some of the harshest aircrew restraints in history. lawful targets for air warfare. With Restrictions imposed by the nation’s civilian leaders went well beyond the law nuclear weapons looming in the back- of war and exposed service members unnecessarily to risks. ground, making the case for lawful bombing targets became part not only keeping up support for waging war gets away from population centers of just conduct of the war, but also of in the first place. Sometimes, politi- wherever possible and warning ci- the whole underlying rationale for cal concerns prove to be even stron- vilians to stay away.
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