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Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

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Nevertheless, Europe embraced Protocol I based on the document's avowed humanitarian aspirations, and this has already materially affected NATO operations. At the beginning of the 1999 NATO air campaign against Slobodan Milosevic's Yugoslavia, NATO evidently resolved to meet the requirements of Protocol I (even though not all of its members were bound by that instrument). Consequently, its targeting decisions were driven by a desire to avoid civilian casualties, resulting in a widely criticized "command by committee" approach. According to a recent assessment, targets were divided into three groups, with any NATO government able to veto a move from one target set to another. These groupings included "Phase I" targets that were "indisputably military", such as troop concentrations; "Phase II" targets involving dual civilian and military use objects, such as power stations, refineries and bridges; and "Phase III" targets--those locations "associated with Serb repression." Clearly, the last category would be the least defensible under Protocol I, since attacking them would not have contributed directly to military victory. The rules, under which NATO launched military operations in large part to protect the Kosovo Albanians from "ethnic cleansing" but was unable to apply adequate firepower to halt this conduct immediately, produced perverse results in both the military and humanitarian sphere.

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Similarly, Coalition forces fighting in Iraq, partially because of political considerations and partially because of British concerns, adopted exceptionally restrained rules of engagement. For example, the U.S. rules required that any attacks that carried the risk of more than thirty civilian casualties had to be approved at the highest command level, up to and including the Secretary of Defense. Of course, there are real and immediate costs associated with rules of engagement designed primarily to avoid collateral damage. Fortunately, to date these costs have been occluded by U.S. military superiority and mostly assumed the form of lost opportunities.

In Afghanistan, for example, Taliban leader Mullah Omar appears to have been one beneficiary of these stringent rules, as he reportedly made good his escape when U.S. forces were denied timely permission to attack his convoy. According to one Washington Post report, such considerations have prevented operators of the armed Predator drones from opening fire on terrorist targets at least 15 times. Similarly, numerous U.S. special operations have been altered or canceled altogether because of concern for excessive collateral damage. If this policy continues, it will certainly prolong the war on terror, and the problem would become much more acute if these stringent but discretionary rules of engagement are transformed into new legal requirements, which would brook no deviation, no matter how compelling the military need.

However, even with these elaborate safeguards in place, the United States and its allies have been accused of "war crimes" in all their recent military engagements. Such complaints about the NATO air war against Yugoslavia were actually considered by the prosecutor of the International Criminal Tribunal for the former Yugoslavia, and there is little doubt that Protocol I's provisions regarding civilian casualties are also the basis of recent claims that U.S. forces committed "war crimes" in Afghanistan and Iraq. Similarly, in its assessment of the April 2002 Israeli incursion into Jenin, Amnesty International concluded that the Israeli Defense Forces (IDF) had applied a "disproportionate use of force" because they inflicted roughly thirty civilian casualties. This criticism was all the more ironic because the IDF resorted to house-to-house combat, refusing to use stand-off weapons and artillery out of a concern for civilian casualties, and lost over thirty of its own soldiers as a result. An even more fundamental problem was that Amnesty failed to analyze seriously the IDF's military imperatives, without which it could not, by definition, perform any proportionality analysis. Instead Amnesty was content to assert that war crimes were committed merely because some civilians died in combat. Under this Manichean standard, any use of force whatsoever would necessarily be deemed illegal under Protocol I.

Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

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