[R-G] Casual warfare

[Tim Murphy]

The US revolution in military technology is serving as an incentive to war
and to the indirect targeting of civilians in violation of international
law, says an American expert writing in the London Review of Books.

Michael Byers, professor of international law at Duke University, argues the
US’s new high-tech weaponry – which allows it to wage war from safe
distances at much less cost to itself – is an incentive to launch wars for
reasons other than self-defence, the only permissible grounds for doing so.
The same breakthrough in military technology also allows it to bypass
pitched battles with opposing armed forces and strike directly at power
grids, water filtration plants, and other infrastructure in a bid to break
the will of the civilian population and provoke internal uprisings.

These developments, which first appeared in the Gulf War and Kosovo, have
since led the Pentagon, encouraged by Donald Rumsfeld, to re-evaluate the
conventions of war prohibiting the direct or indirect targeting of
civilians, as well as the use of nuclear and other banned weapons against
enemy troops.

-Supporting facts
http://www.supportingfacts.com/



The laws of war, US-style

By Michael Byers

London Review of Books

February 20 2003

More than three hundred Iraqi civilians died on 13 February 1991 when two US
F-117 stealth bombers targeted the al-Amiriya bunker in Baghdad. Photographs
of the charred and twisted bodies of women and children shocked a world
which, thanks to Norman Schwarzkopf and CNN, had seen little of the horrors
of the Gulf War. Pentagon officials, who claimed to have intelligence
indicating the bunker was a command and control centre, denied knowledge of
the civilian presence. Had they known, the attack would probably have been
classed as a war crime.

International humanitarian law, the jus in bello, concerns the way wars may
be fought. It is distinct from the law governing when wars may be fought
(the jus ad bellum of self-defence and the UN Charter). Also known as the
'laws of war', international humanitarian law traces its origins to 1859,
when the Swiss businessman Henri Dunant witnessed the aftermath of the
Battle of Solferino and initiated a movement that became the International
Committee of the Red Cross. Today, the rules of international humanitarian
law are found in the 1907 Hague Conventions, the 1949 Geneva Conventions and
their two Additional Protocols of 1977, as well as in a parallel body of
unwritten customary international law that binds all countries, including
those that have not ratified the Conventions and Protocols. A central
principle prohibits the direct targeting of civilians, as well as attacks on
military targets that could be expected to cause civilian suffering
disproportionate to the specific military goals to be acheived.

During the first Gulf War, these obligations were taken seriously. Desert
Storm was the first major combat operation undertaken by the United States
since the Vietnam War. Fearful of another domestic backlash if things went
wrong, the politicians left the conduct of hostilities to professional
soldiers - who are trained to fight by the book. Adherence to the rule of
law was further aided by the 18-member coalition. Some US allies accord
considerable importance to the requirements of international humanitarian
law, and so, in order to maintain the coalition, the US had to fight
according to the rules.

Some two hundred military lawyers were dispatched to the Gulf. They vetted
every target: a strike on a statue of Saddam Hussein in Baghdad was ruled
out because only targets that contributed to the Iraqi war effort were
permissible under international humanitarian law. Those legal controversies
that arose stemmed from differing interpretations of the law, rather than
any desire to ignore legal constraints. For example, when the US used
cluster bombs and fuel-air explosives to attack Iraqi armour, at least five
British officers resigned their commissions having seen the effects these
weapons had on Iraqi soldiers. A similar divergence of views arose over the
use of earthmovers and tank-mounted ploughs to bury Iraqi soldiers alive in
their trenches, thus avoiding the dangers of hand-to-hand combat.
International humanitarian law forbids methods of warfare that cause
'unnecessary suffering or superfluous injury', but what do these terms
actually mean? Wars are fought to be won; international humanitarian law
merely balances military necessity against humanitarian concerns. Where one
sets the balance depends on where one's coming from: the insular,
individualistic, religious character of the US would seem to matter here.

After decades of massive defence spending, the US is today assured of
victory in any war it chooses to fight. High-tech weaponry has reduced the
dangers to US personnel, making it easier to sell war to domestic
constituencies. As a result, some US politicians have begun to think of war,
not as the high-risk recourse of last resort, but as an attractive foreign
policy option in times of domestic scandal or economic decline. This change
in thinking has already led to a more cavalier approach to the jus ad
bellum, as exemplified by the Bush doctrine of pre-emptive self-defence. It
is beginning to have a similar effect with regard to the jus in bello. When
war is seen as an ordinary tool of foreign policy - 'politics by other
means' - political and financial considerations impinge on the balance
between military necessity and humanitarian concerns. Soldiers are buried
alive because the folks back home don't like body bags.

In Washington, it has become accepted wisdom that future opponents are
themselves unlikely to abide by international humanitarian law. During the
Gulf War, captured American pilots were brutalised in several ways - some,
for example, were gang-raped. The September 2001 attacks on the Twin Towers
were 'crimes against humanity' - in technical terms, they were acts of
violence committed as part of a systematic attack on a civilian population.
If your enemy is going to cheat, why bother playing by the rules?

Donald Rumsfeld's own disdain for international humanitarian law was
apparent in January 2002, when suspected Taliban and al-Qaida members were
transported to the US naval base in Guantanamo Bay. Ignoring criticism from
a number of European leaders, the UN High Commissioner for Human Rights and
even the normally neutral Red Cross, Rumsfeld insisted the detainees were
not prisoners of war and refused to convene the tribunals required under the
Geneva Conventions to determine their status. He also ignored advice from
the Pentagon's judge advocate generals, and based his decision instead on an
analysis provided by White House counsel Alberto Gonzales, a former
corporate lawyer from Texas. The suspects, who have still not been charged
or granted access to counsel, remain at Guantanamo: at least 14 have
attempted suicide.

There is no love lost between the Defense Secretary and his military
lawyers. In October 2002, CIA operatives used a Predator drone to track the
Taliban leader Mullah Omar to a building in a residential area of Kabul. An
air strike was called off because a lawyer at US Central Command was
concerned about the risk of disproportionate civilian casualties. According
to a report in the New Yorker, the incident left Rumsfeld 'kicking a lot of
glass and breaking doors'. The Secretary has subsequently taken steps to
reduce the number of lawyers in uniform.

Rumsfeld has also been encouraging a re-evaluation of the prohibition on
targeting civilians, particularly with regard to actions directed at
shattering support for the opponent regime. This kind of thinking was
popular during the Second World War - as evidenced by the firebombing of
Dresden and Hamburg - but was subsequently rejected during the negotiation
of the Geneva Conventions. Today, a theory which holds that a regime has
'five strategic rings' is attracting adherents in Washington. According to
this view, each ring represents a different facet of a society: its
political leadership, economic system, supporting infrastructure, population
and military forces. Air power is supposed to enable the United States to
target opponents from the 'inside out', to bypass military forces and go
directly for the political leadership. In this context, the indirect
targeting of civilians - through the destruction of bridges, electrical
grids, oil refineries and water-filtration plants - is considered justified
because it hastens the course of the conflict (while, incidentally, reducing
the cost of victory).

During the first Gulf War, the US targeted the Iraqi national grid, shutting
down hospitals as well as water and sewage pumping stations. The health
consequences for civilians were severe, but the strikes were legal even so:
Iraqi military communications depended heavily on the grid. In 1999, when
Slobodan Milosevic's forces proved considerably more resilient than
expected, the US pushed for the adoption of a looser approach. Electrical
grids and water-filtration plants in Serbia were targeted, not in order to
disrupt the actions of the Yugoslav Army in Kosovo, but in an effort to
provoke domestic opposition to the regime in Belgrade.

In 1991, a number of coalition planes (RAF Tornados especially) were lost to
Iraqi anti-aircraft fire because they were bombing from low altitudes in
order to reduce civilian casualties. Less accurate high-altitude strikes by
B-52s were restricted to targets well clear of civilian areas. In the Kosovo
conflict, almost all the bombing was carried out beyond the reach of Serbian
air defences. As a result Nato pilots were sometimes unable to distinguish
between military and civilian targets. Again, as a result of US pressure
there is now a different reckoning of the balance between military necessity
and humanitarian concerns.

The Kosovo conflict was complicated by the fact that Yugoslavia had ratified
Additional Protocol One, which imposes stricter protections for civilians.
Since every member of Nato apart from the US had also ratified the protocol,
certain types of mission were allocated only to US pilots. Canadian pilots,
who train with their American counterparts, were never assigned as wingmen
to US pilots in missions over the former Yugoslavia. Being bound to higher
standards, they could not be counted on to respond to some threats - to
anti-aircraft fire emanating from a school or hospital, for example - in the
same way that an American pilot would. Whether countries such as Canada and
Britain are collectively liable under Protocol One for the actions of US
pilots operating under Nato targeting procedures remains an open question:
the prosecutor for the International Criminal Tribunal for the Former
Yugoslavia chose not to investigate any of Nato's alleged war crimes. The
issue will not arise in Iraq unless Saddam promptly ratifies Protocol One.

Precision-guided munitions give rise to a further complication. When
civilians are present, international humanitarian law requires belligerents
to use weapons that can distinguish between civilians and combatants; they
should therefore use the most accurate weapons available to them. In yet
another instance of political and financial cost-benefit analyses intruding
into international humanitarian law, the US argues that this imposes an
unfair burden on it, given the substantial costs involved in producing smart
bombs. Extending the same logic, it could be argued that, because these
weapons reduce the number of civilian casualties across a campaign, an
attacking force that uses them is entitled to take more risks - since the
overall collateral damage will still be less than in a low-tech war.
Applying such calculations to rules designed to protect individual human
beings is not only inappropriate, but also immoral.

Civilians can be protected only if a distinction is maintained between
combatants and non-combatants. This is achieved by offering prisoner of war
status to captured combatants who have carried their arms openly and worn a
fixed distinctive emblem (usually a shoulder patch). This doesn't always
work, especially in conflicts involving irregular forces in poorer
countries, and it can certainly be argued that the requirement of a fixed
distinctive emblem is inconsistent with modern forms of warfare. But the
distinction is most severely threatened by the practice of US special
forces, which constitute an increasingly important part of the US military
and have, with the apparent support of the Secretary of Defense, taken to
wearing civilian clothing. The practice has already been challenged: when
the New Zealand Government sent a contingent of commandos to fight in
Afghanistan, it refused to allow them to wear civilian clothes - a decision
that created considerable friction with the US.

The use of weapons which cause superfluous injury or unnecessary suffering
is similarly prohibited. Dum-dum bullets, chemical and biological weapons
are banned outright on the basis that the military benefits of their use can
never be proportionate to the suffering caused. Other weapons have been
banned by most but not all countries. The US refusal to ratify the 1997
Ottawa Landmines Convention can create awkward situations for its allies. In
2001, Canadian soldiers operating in Afghanistan were ordered by their
American commander to lay mines around their camp. When they refused to do
so, US soldiers - who were not subject to the same restrictions - laid the
mines for them. Depleted uranium, cluster bombs and fuel-air explosives are
among the weapons whose legality remains uncertain. Favoured for their
armour-piercing abilities, depleted uranium shells leave radioactive
residues that might pose health problems for civilians. Given the scientific
uncertainty as to the extent of the risk, one would think that humanitarian
concerns would prevail unless the uranium made a major military
contribution, which it does not. But again, political and financial
expediency has influenced the balance between humanitarianism and military
necessity, at least for the US.

Although nuclear weapons are not absolutely banned, their use is subject to
the normal constraints of international humanitarian law. It is difficult to
see how the use of a nuclear weapon could ever avoid causing suffering
disproportionate to military gain. But in March 2002, the Pentagon issued a
Nuclear Posture Review that cited the need for new nuclear weapons designed
to destroy deeply buried command centres and biological weapon facilities.
Earlier this month, the British Defence Secretary, Geoff Hoon, stated that
the UK reserves the right to use nuclear weapons against Iraq in 'extreme
self-defence'. The basis for Hoon's assertion is a 1996 advisory opinion of
the International Court of Justice in which the Court held that it could not
'conclude definitively whether the threat or use of nuclear weapons would be
lawful or unlawful in an extreme circumstance of self-defence, in which the
very survival of a state would be at stake'. The latter part of this
quotation, which Hoon omitted, shows that his reliance on the opinion is
misplaced. The only state whose survival might be at stake today is Iraq.

Hoon's advisers would do better to direct him to the rules concerning
belligerent reprisals: actions that would normally be violations of
international humanitarian law but which become legally justifiable when
taken in response to violations of the law by the other side. The purpose of
reprisals is to deter further violations; the possibility of their use is
often pointed to as the reason countries comply with international
humanitarian law. Belligerent reprisals, however, must be proportionate to
the original violation, and cannot be directed towards civilians or objects
indispensable to the survival of civilians.

No treaty specifically prohibits belligerent reprisals carried out with
otherwise prohibited weapons. This raises the possibility that it might be
legal to use nuclear weapons in response to the use of chemical or
biological weapons. In 1991, James Baker, then Secretary of State, privately
warned Saddam that any recourse to chemical or biological weapons would
result in a tactical nuclear response. Today, the Bush Administration has
shown no compunction about making the same threat publicly. The National
Strategy to Combat Weap- ons of Mass Destruction, released last December,
'reserves the right to respond with overwhelming force - including through
resort to all of our options - to the use of WMD against the United States,
our forces abroad, and friends and allies'. But the use of any nuclear
weapon, even as a reprisal, would almost certainly cause disproportionate
civilian suffering, and thus be illegal under standard, non-utilitarian
conceptions of international humanitarian law.llll

The military power of the United States will undoubtedly prevail in Iraq.
Reluctant allies will likely be coerced into providing practical and
political support. And most critics will be silenced, not just by the
victory, but also by the fact that only a few thousand civilians will have
been killed. But determining the appropriate balance between military
necessity and humanitarian concerns has never been the exclusive province of
Donald Rumsfeld and his friends. Most international humanitarian law
conventions contain something called the Martens Clause, which in its
original form was drafted by the Russian delegate to the Hague conferences
of 1898 and 1907:

Until a more complete code of the laws of war is issued, the high
contracting Parties think it right to declare that in cases not included in
the Regulations adopted by them, populations and belligerents remain under
the protection and empire of the principles of international law, as they
result from the usages established between civilised nations, from the laws
of humanity, and the requirements of the public conscience.

International humanitarian law is in part what you and I and the rest of the
people on this planet determine it to be. As war approaches, we should
insist that the United States uphold the strict standards of international
humanitarian law, not because it is expedient, but because it is the right
thing to do.

Michael Byers teaches international law at Duke University in North
Carolina.

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