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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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OVER-REGULATING WAR

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The zero collateral damage problem aside, the new jus in bello norms, reflected in Protocol I and embellished by various academic commentators, have become overly proscriptive and prescriptive. What used to be a few simple normative principles, to be considered by well-trained soldiers when making battlefield decisions, have become something akin to a complex regulatory code to be applied by lawyers on a case-by-case basis, with the full benefit of hindsight. Many of Protocol I's key provisions are phrased in terms like doing "everything feasible", or taking "all feasible precautions", or acting "to the maximum extent feasible." Such terminology defies objective definition, making it all but impossible to assess compliance at the time any particular action is taken. Open-ended legal proscriptions are bad enough in the context of human endeavors in peacetime; they are particularly pernicious in the confusing and confused context of combat, where human judgment is stressed to the utmost and the fog of war reigns. The treaty thus leaves all military forces in combat of any kind open to allegations that they have violated its requirements, for no vigorous combat action could ever comply with Protocol I's strictures. In fact, the only certain way to comply with the treaty is simply to avoid armed conflict altogether.

Protocol I's potential to benefit practitioners of "asymmetric" warfare, not to mention downright criminals, has not gone unnoticed. Both Palestinian militants and Saddam Hussein's Iraq have deliberately placed their own civilians in harm's way in the hope that Israeli or U.S. forces accidentally kill them. (This is particularly the case since Protocol I has also been interpreted to require a higher standard for attacking targets protected by "human shields" than traditional jus in bello norms.) For Hussein, efforts to cause civilian casualties formed part of a systematic strategy, wherein schools, hospitals and mosques, as well as protected symbols like the Red Cross and Red Crescent, were employed for military advantages. Hence, international legal norms that were designed to protect civilians are now serving as an incentive for tyrants and terrorists to endanger their lives. One commentator fittingly called such tactics "lawfare."

TARGETS AND WEAPONS

Strategic targeting, which traditionally has been a very technical military area, has become another controversial legal subject. This is so despite the facts that targeting is ever more precise, and that the growing ability of U.S. forces to discriminate even among legitimate military objectives, targeting enemy leaders such as Saddam Hussein and Osama bin Laden, is a development that has favorable humanitarian as well as operational consequences. Attacking the chain of command in ways that, at best, produce decapitation and the total collapse of enemy resistance and, at worst, disorient the foe, dramatically shortens the duration of hostilities and saves numerous civilian and combatant lives. Unfortunately, this growing personalization of warfare, where it becomes possible in ways unseen since the advent of modern mechanized warfare to target not just enemy combatants, but specific officers, combined with the growing transatlantic doctrinal divergence, has prompted undue protestations.

Leashing the dogs of war

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

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