The Laws of War, US-Style

Michael Byers

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 achieved.

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 Weapons 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.

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.