Leashing the dogs of war

COLLATERAL DAMAGE

In addition to eroding the limitations on who can resort to armed force, Protocol I also addresses how that force is applied. In planning operations and selecting targets, the armed forces must distinguish between military and civilian objects. This principle of "distinction" is universally accepted and fully endorsed by the United States. The U.S. Army's Field Manual notes that the only valid targets for attack are

   combatants and those objects which by their
   nature, location, purpose, or use make an
   effective contribution to military action and
   whose total or partial destruction, capture,
   or neutralization, in the circumstances ruling
   at the time, offer a definite military
   advantage.

However, the principle of distinction never imposed a zero civilian casualty requirement. Rather, the only obligation is that the number of civilian casualties that result unintentionally from an attack ("collateral damage") cannot be disproportionate to the importance of the overall military objective to be gained. Together, these principles of distinction and proportionality are intended to limit the amount of collateral damage to noncombatants in war.

Protocol I, however, was designed to impose far more stringent limitations on the acceptable level of collateral damage than did traditional jus in bello norms. Under Article 57 of that document, for example, parties are required to take "constant care ... to spare the civilian population." Moreover, when

   a choice is possible between several military
   objectives for obtaining a similar military
   advantage, the objective to be selected shall be
   that the attack on which may be expected to
   cause the least danger to civilian fives and to
   civilian objects.

These, of course, are prime examples of the effort to graft domestic policing rules onto the laws of war without any regard for their military consequences. Any armed force that invariably selects the object or avenue of attack that presents the least danger to civilians inevitably reveals the precise course of its campaign to the enemy. The element of surprise is thus lost, and the likelihood of defeat is increased. Ironically, in addition to being militarily disadvantageous, such a requirement would be highly counter-productive from a humanitarian perspective as well, in that it could lead in many cases to far more protracted conflicts than a decisive and massive use of force at the very outset of combat. All things being equal, more protracted fighting results in higher non-combatant as well as combatant casualties. As Francis Lieber, who authored the first comprehensive jus in bello code for the U.S. Army in 1863, wrote: "The more vigorously wars are pursued the better for humanity. Sharp wars are brief." Accordingly, the traditional jus in bello norms were not overly prescriptive, allowing military commanders to exercise broad discretion in complying with the requirements of discrimination and proportionality.