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 andW 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. The Allies were going to war in the first place. ger as a force for restraint than the well within the limits of military law of war itself. necessity. As British Prime Minister Applying the Law of War In the spring of 1944, the Allies Winston Churchill said at the time, It is not attorneys and judges who planned attacks on the French and humanitarian concerns were part of apply the law of war. That job falls Belgian railway systems to constrain the picture, but it was also an issue to political and military leaders, and German troop movements before the of “high state policy” not to embitter the law of war is a direct concern for Normandy invasion. Statisticians the French. both. Both jus ad bellum and jus in estimated that such attacks could cost Generals and admirals in command bello make commanders and politi- 80,000 civilian lives. Gen. Dwight of operations have a direct stake in cal leaders sensitive to the concepts D. Eisenhower, the Supreme Allied such matters. “You’d have to be crazy of military necessity and proportion- Commander, and his air command- not to consult the lawyers since, if ality. Staying within the bounds of ers challenged those numbers and you violate the Geneva Conventions, the law of war is a key ingredient in took the precaution of selecting tar- you can be indicted as a war crimi- nal,” said one senior officer in Op- eration Desert Storm. Ironically, the early Hague con- ventions wanted to set up compre- hensive rules so that unforeseen cases arising in battle would not “be left to the arbitrary judgment of military commanders” as it was phrased in 1907. However, because criteria such as military necessity and proportion- ality are central to keeping the con- duct of war within lawful bounds, the commander’s judgment is a vital factor. Take, for example, the Rolling Thunder bombing campaign in Viet- nam. “Rolling Thunder was one of the most constrained military cam- paigns in history,” noted Army law- yer W. Hays Parks in a classic study of that operation. “The restrictions imposed by this nation’s civilian Images such as this one—the view as an F-117 fighter’s precision munition homes in on a target during Operation Desert Storm—drew attention to the leaders were not based on the law of possibilities of high-tech targeting systems. war but on an obvious ignorance of

AIR FORCE Magazine / February 2003 41 the law—to the detriment of those lawyer on staff to render an opinion pected by the law of war and kept sent forth to battle.” One example of on the legality of strategic targets. targets off the list. Those very com- this concerned an off-limits hospital manders that the 1907 Hague Con- complex at Viet Tri. “If it was in fact Limiting Collateral Damage vention did not trust turned out to a hospital,” said one pilot, “it must “Every target was examined on be the most powerful agents of re- have been a hospital for sick flak how to approach it with minimum straint. gunners, because every time we looked loss of life,” recalled retired Gen. The perceived force of public opin- at it from a run on the railhead, it was Charles A. Horner, the commander ion and interallied politics drove strat- one mass of sputtering, flashing gun of coalition air forces for the opera- egy again during Operation Allied barrels.” Parks noted that the 1949 tion. Force, NATO’s 1999 air war over Geneva Convention discontinued Key allies such as Britain were Serbia. Estimates of collateral dam- protection for hospitals being used consulted about sensitive topics such age and casualties were made for for “acts harmful to the enemy,” pre- as potential fallout from targeting nearly every fixed target. In the air- sumably including anti-aircraft fire. chemical and biological weapons only campaign, each fixed target in “Given the insistence on widespread storage bunkers. Serbian territory had to be approved photographic coverage of air strikes Control over lawful targets for air via a complex, two-week process. over North Vietnam, US demands strikes became more intense as the Politics, not the dictates of interna- could have been made for cessation war continued. The bombing of the tional law, weeded them out. of the use of hospitals as AA sites, Al Firdos command post bunker on For example, on April 6, 1999, 222 accompanied by the publication of Feb. 13, 1991, was one of the war’s targets were submitted to Gen. Wesley photographs of the sites,” contended major targeting controversies. Un- K. Clark, Supreme Allied Commander Parks. known to the coalition, hundreds of Europe, but only 173 made it through In 1991, Operation Desert Storm civilians were inside the bunker on the full approval process at the North was designed to be everything that the night it was attacked. Although Atlantic Council. Vietnam was not: decisive, rapid, the Al Firdos incident was an acci- The White House was not an im- and waged with a broad coalition of dent, not a violation of the laws of pediment. Secretary of Defense Wil- allies and at the least possible cost. war, bombing Baghdad was almost liam S. Cohen testified to Congress The law of war—at least within a put off-limits. “Targeting in the Bagh- that President Clinton approved all broad understanding—was carefully dad area all but stopped, and General targets presented to him by the Chair- observed from the start. President Schwarzkopf began to anguish over man of the Joint Chiefs of Staff, George H.W. Bush instructed plan- every target we nominated,” Horner Gen. Henry H. Shelton. However, ners to make sure religious and cul- later said. Gen. Colin Powell, Chair- the allies disapproved quite a few tural sites in Iraq were not on the man of the Joint Chiefs of Staff, put targets. target list. Strategic targets were targets in downtown Baghdad off-lim- The mistakes of the NATO air chosen for military reasons but with its. Air planners worked around it by war—from the accidental bombing an eye toward minimizing overall defining Baghdad as anything within of refugee vehicles in a convoy to destruction to Iraq. The special plan- only a three-mile radius of the city the accidental bombing of the Chi- ning group in the “Black Hole,” the center. nese embassy in Belgrade—kept the main coalition air planning center in In this case, senior military lead- air war under the microscope of in- Riyadh, Saudi Arabia, had a military ers went well beyond what was ex- ternational public opinion. Despite the use of precision weapons, every stray bomb caused a surge of doubt about the conduct of the war. In-

DOD photo deed, the concerns about political impact greatly exceeded the restraint imposed by reasonable precaution in the laws of war. Laws of war and self-imposed tar- geting restrictions mingled again during Operation Enduring Freedom in 2001–02. Those at the combined air operations center who saw the tactical picture made their frustra- tions known. The target calculus in Operation Enduring Freedom was dictated, it appeared, by an intense desire on the part of senior Pentagon and White House officials to wage the war care- fully. Targets were carefully scruti- nized by Gen. Tommy R. Franks, US In 1995 NATO responded to Serb attacks on civilians in Bosnia with Operation Central Command’s commander, the Deliberate Force air strikes against military targets. Here, an American soldier Pentagon, and the White House. “I checks out a Serb tank stopped in its tracks. Continued on p. 44

Continued from p. 42 think it’s important to say that the targeting by the United States and by coalition forces has been very careful,” Defense Secretary Donald H. Rumsfeld told CNN in October 2001. “It’s been very measured.”

Cultural and civilian sites were USAF photo by SrA. Jeffrey Allen kept off-limits. The policy goal of minimum destruction seemed to be just as important as the broad laws of war in the target selection pro- cess. Commanders struggled to en- sure that targets hit to support North- ern Alliance ground forces stuck to military necessity. The law was no bar to use of the most modern weapons. Said legal scholar Danielle L. Gilmore, who performed a study of lawful target- ing in Desert Storm: “Nothing in the An F-16 of the 510th Fighter Squadron, Aviano AB, Italy, flies an Allied Force law of war regulates the type of mission. In the 1999 NATO air war over Serbia, each target had to be approved weapon that must be used when spe- through a two-week process governed mostly by politics. cifically attacking particular targets. The applicable law only mandates a that the defenders were not uphold- of noninterference, which holds that balancing of military necessity and ing their end of the laws of war. nations in peacetime must not inter- unnecessary suffering so that the Military vehicles had been seen in fere with the operation of each other’s concept of proportionality is fol- the vicinity of these warehouses, satellites in space. However, in war- lowed. The rule becomes one of rea- according to the Pentagon. time, laws on the use of force again sonable precaution.” US forces intentionally struck only apply. As the general counsel report By this criterion, the precautions military and terrorist targets, said noted, “The existing treaty restric- taken more than upheld the laws of the spokesman. tions on military operations in space war. “To the extent that there have The US code of conduct also led are in fact very limited.” been significant military targets in to the intense scrutiny of targets such Information operations broaden areas that do have population nearby,” as civilian vehicles or buildings the scope by raising new questions said Rumsfeld, “they have almost thought to harbor terrorist leaders. about what exactly constitutes use always been targeted with a weapon Military necessity depended on the of force. In 1998, Russia attempted that has a high degree of precision so commanders’ judgment, and in Op- to get the UN to outlaw informa- that there will not be a high amount eration Enduring Freedom, com- tion warfare, but the UN passed of collateral damage.” manders chose to take time and ex- only a weak resolution the follow- Accidental strikes did happen. Yet ercise caution in identifying lawful ing year and other member states one incident—the mistaken October targets. declined to follow up. For now, 2001 strike on a compound with a information operations remain sub- Red Cross warehouse—pointed up The Future of Lawful Targets ject to a commander’s judgment on the obligations of the defenders to Twenty-first century warfare will the same principles of necessity, do their part. A Pentagon spokesman hold new challenges when it comes proportionality, and discrimination explained that the International Com- to space operations and information that guide traditional use of force. mittee of the Red Cross warehouses operations. Terrorists and other unconven- were targeted by US forces because Space law started with Sputnik tional adversaries will not observe the Taliban used them for storage of and is already nearly 50 years old. any of these laws. But highly re- military equipment. Commingling “There is probably no other field of fined concepts of what constitutes a food aid and military vehicles—even human endeavor that produced so lawful target are deeply ingrained if one building displays the red cres- much international law in such a short in the American military. High-vis- cent—goes against the grain of the period,” noted a 1999 Defense De- ibility campaigns and instant media laws of war. In this case, the strike partment general counsel study. reporting simply underline the need was inadvertent, but it pointed out Unique to space law is the principle to exercise great care, on political as well as legal grounds. The laws of war leave plenty of room for Rebecca Grant is a contributing editor of Air Force Magazine. She is presi- commanders to judge when a target dent of IRIS Independent Research in Washington, D.C., and has worked for must be struck due to military ne- RAND, the Secretary of the Air Force, and the Chief of Staff of the Air Force. Grant is a fellow of the Eaker Institute for Aerospace Concepts, the public cessity. Yet recent experience em- policy and research arm of the Air Force Association’s Aerospace Education phasizes that American command- Foundation. Her most recent article, “The Clash About CAS,” appeared in the ers, at least, err on the side of caution January issue. and respect. ■

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