The New Law of War: Legitimizing Hi-Tech and Infrastructural Violence - Thomas W. Smith

The New Law of War: LegitimizingHi-Tech and Infrastructural Violence

Thomas W. Smith

University of South Florida

This article examines how humanitarian laws of war have been recast inlight of a new generation of hi-tech weapons and innovations in strate-gic theory. Far from falling into disuse, humanitarian law is invokedmore frequently than ever to confer legitimacy on military action. Newlegal interpretations, diminished ad bellum rules, and an expansive viewof military necessity are coalescing in a regime of legal warfare thatlicenses hi-tech states to launch wars as long as their conduct is deemedjust. The ascendance of technical legalism has undercut customaryrestraints on the use of armed force and has opened a legal chasmbetween technological haves and have-nots. Most striking is the use oflegal language to justify the erosion of distinctions between soldiers andcivilians and to legitimize collateral damage. Hi-tech warfare has dra-matically curbed immediate civilian casualties, yet the law sanctionsinfrastructural campaigns that harm long-term public health and humanrights in ways that are now clear.

As Adam Roberts ~1993–94:134! has noted, strategic and legal analyses of armedconflict have tended to follow separate paths. Comparing two leading surveys,Peter Paret’s Makers of Modern Strategy ~1986! and Michael Howard et al.’s TheLaws of War ~1994!, one is reminded of what historians call “tunnel history,” inwhich each discipline draws on its own traditions and assumptions, sealed offfrom contact with other fields. Fortunately, the wall dividing law and strategy isbeginning to crumble. This is due to the changing character of conflict as wellas new directions in the study of law. The Cold War effectively severed the fields,thwarting moderation in means and paralyzing international legal institutions.Over the past decade, however, innovations in conventional weapons, risingethnic and substate violence, and ensuing debate over intervention have raised anumber of issues that bridge law and strategy. Students of international law havegrown more politically reflective as well through the International Relations0International Law and Critical Legal Studies movements.1

Author’s note: An earlier version of this article was presented at the annual meeting of the International StudiesAssociation in Chicago, February 21–24, 2001. I wish to thank Michael Joseph Smith at the University of Virginiafor his helpful criticism. My thanks also to Deniz ,Senol of Istanbul and New York who provided invaluable researchassistance.

1 See Ku et al. ~2001! on the need for research that bridges law and politics. Briefly, the International Relations0International Law movement seeks to leaven the study of international law with insights from IR regarding thebehavior of international actors and the effects of international norms and institutions. Critical Legal Studies focus,broadly, on the politics of law. Students of CLS contend that law reflects and reproduces inequalities in nationaland international society. See Ratner and Slaughter ~1999!.

International Studies Quarterly ~2002! 46, 355–374.

© 2002 International Studies Association.Published by Blackwell Publishing, 350 Main Street, Malden, MA 02148, USA, and 108 Cowley Road, Oxford OX4 1JF, UK.

This marriage of disciplines has been particularly revealing with regard to thelaw of war, or “humanitarian law.”2 The two main instruments of modern human-itarian law, the Geneva Laws, the legal protections afforded specific classes ofpeople in wartime; and the Hague Laws, which govern the overall methods ofcombat, have long faced political critiques. Many students of international rela-tions echo the tragic words of Cicero: “in time of war, the law falls silent.” Manyinternational lawyers, too, recognize the precariousness of humanitarian lawamid the rigors of war. As Hersch Lauterpacht noted in a canonical commentary~1953:382!, “if international law is, in some ways, at the vanishing-point of law,the law of war is, perhaps even more conspicuously, at the vanishing-point ofinternational law.” Recent history, however, seems to refute the tragic view. Farfrom disappearing over the horizon, the law of war is invoked more frequentlythan ever, and, in the area of human rights and war crimes, is expanding viastatute and enforcement. At the same time, the United States and its allies prac-tice a new style of legal warfare—what Schmitt ~1998! called “Bellum Americanum”—that hinges on precision-guided bombs, standardized targeting, accepted levelsand types of collateral damage, and high bomber flight altitudes. Once consid-ered obstacles to the war effort, military lawyers have been integrated into stra-tegic and tactical decisions, and even accompany troops into battle. Never hasthe conduct of war been so legalistic.

The argument advanced here is that the law of war has flourished at the costof increased artificiality and elasticity. Law has successfully shaped norms andpractices in the areas of warfare furthest from hi-tech tactics. Strides have beenmade, for example, in the 1980 United Nations Convention on Prohibitions orRestrictions on the Use of Certain Conventional Weapons, and the 1997 Con-vention on the Prohibition of Anti-Personnel Mines. For hi-tech states, these arerelatively low-cost laws. But when modern military necessity calls, the law of warhas legitimized violence, not restrained it. New military technology invariably hasbeen matched by technical virtuosity in the law. New legal interpretations, dimin-ished ad bellum restraints, and an expansive view of military necessity are coalesc-ing in a regime of legal warfare that licenses hi-tech states to launch wars as longas their conduct is deemed just. The new law of war burnishes hi-tech campaignsand boosts public relations, even as it undercuts customary limits on the use offorce and erodes distinctions between soldiers and civilians. Modern warfare hasdramatically reduced the number of direct civilian deaths, yet the law sanctionsinfrastructural campaigns that harm long-term public health and human rights.

Skepticism and the Law of War

E. H. Carr once noted ~1946:170! that students of international affairs wereinclined “to treat law as something independent of, or ethically superior to,politics. ‘The moral force of law’ is contrasted with the implicitly immoral meth-ods of politics. We are exhorted to establish ‘the rule of law,’ to maintain ‘inter-national law and order’ or to ‘defend international law’; and the assumption ismade that, by so doing, we shall transfer our differences from the turbulentpolitical atmosphere of self-interest to the purer, serener air of impartial justice.”

2 Other interdisciplinary efforts are afoot. The Center on Law, Ethics and National Security at Duke University~www.lens.law.duke.edu!, the International Institute of Humanitarian Law ~www.iihl.org!, and the American BarAssociation Standing Committee on Law and National Security ~www.abanet.org0natsecurity! sponsor seminars formilitary lawyers and legal and other scholars. The Carnegie Council on Ethics and International Affairs ~www.cce-ia.org! has brought together faculty from U.S. service academies and universities to weigh moral issues surroundingthe use of military force. The annual Joint Services Conference on Professional Ethics ~www.usafa.af.mil0jscope!,organized by the U.S. Air Force Academy, is also an important forum for these matters. The International Com-mittee of the Red Cross ~www.icrc.org! and Human Rights Watch ~www.hrw.org! are among a number of NGOs thatdeal with human rights and humanitarian law.

356 The New Law of War

Most international lawyers reject this kind of “realist” skepticism, althoughmany others readily concede that politics play a significant role in shaping thestructure and content of law ~see Byers, 2000: introduction!. Louis Henkin ~1979:32!suggested that international law reflected “prevailing political forces within thepolitical system.” In a barb at the sociology of law, Geoffrey Best ~1994:377–378!argued that culturally specific practices had been presumed into universal doc-trine. Other political leanings in the law are now widely recognized: the WorldTrade Organization’s vigilant defense of intellectual property—the all-important“content” of the information age—but its laissez-faire attitude toward sweatshoplabor; the exclusive role accorded the Security Council in convening ad hoc warcrimes tribunals; the tendency for Goliath states to interpret legal obligations inlight of their interests. No longer is international law viewed as a “closed universeof norms,” divorced from the social and political milieu in which they appear~see Hoffmann, 1965:123!.

More thoroughgoing skeptics of the school of Critical Legal Studies claim thatinternational legal institutions are molded to serve the interests of dominantstates. Just as international law in the nineteenth century buttressed the Euro-pean Concert system and, later, imperialism, law continues to confer privilegeson powerful countries ~Gathii, 1998!. This is a far cry from legalists and realistsdutifully debating the utility of international law under anarchy. Critical theoristsfind law very effective, but contend that the logic and coherence we ascribe tolaw actually mirror political interests. Law shapes the popular perception of anact by imbuing it with the “psychic trappings” of legality, reinforcing a chimeraof shared values and international society and cultivating a sense of obligation tothe “civilized” order. The law lends an air of naturalness or inevitability to theexisting hierarchy of power, wealth, and moral capital. These inequalities arethen “reinscribed” into the law ~af Jochnick and Normand, 1994a:57!.

Much of critical legal theory targets the symbiosis between international lawand state sovereignty. As Phillip Trimble has noted ~1990:833!, “A quick look atthe ‘rules’ of international law shows why governments love @it#. . . . @I#nternation-al law confirms much more power and authority than it denies.” It codifiessovereignty, upholds territorial and border controls, economic, regulatory andtax sovereignty, control over airspace, sea-lanes, natural resources, offshore andcontinental shelves, and so on. As globalization blurs the line between domesticand foreign politics, much of international law maintains the separateness ofthese spheres, denying standing to nonstate actors, and smuggling reasons ofstate and particular conceptions of legitimacy into seemingly universal rules. Thesame can be said of any international organization or legal regime that pits theinterests of sovereign states against the aspirations of cosmopolitans and NGOs.

The use of law to validate the practices of sovereign states is perhaps mostclear with regard to the laws of war. In a critical history of humanitarian law,Chris af Jochnick and Roger Normand argue ~1994a:50–51! that the “structuredimpotence” and “permissive language” of black-letter laws of war have lent a“façade of legitimacy” to existing wartime practices. “The laws of war have beenformulated deliberately to privilege military necessity at the cost of humanitarianvalues.” The Lieber Code ~1863!, adopted during the American Civil War and thefirst formal inventory of rules of engagement, set the tone: “To save the countryis paramount to all other considerations” ~Art. 5!; “Military necessity admits of alldirect destruction of life or limb of armed enemies, and of other persons whosedestruction is incidentally unavoidable” ~Art. 15!; “The more vigorously wars arepursued, the better it is for humanity” ~Art. 29!. af Jochnick and Normandconclude ~1994a:55! that legal warfare has not been more humane than illegalwarfare. Progress in humanitarian law is a fiction. “The development of a moreelaborate legal regime has proceeded apace with the increasing savagery anddestructiveness of modern war.”

Thomas W. Smith 357

Legalism also has undermined customary restraint in favor of technical com-pliance. Rosalyn Higgins ~1994! and others have noted that international law isnot merely a set of rules, but is also the bearer of a normative culture. Not so thelaw of war, which is construed in a highly technical fashion that risks subvertingits own purpose. Jean Pictet’s standard treatment defines humanitarian law asthat “branch of public international law which owes its inspiration to a feelingfor humanity and which is centered on the protection of the individual” ~Beig-beder, 1999:1!. Lauterpacht held ~1953:363–364! that “rules of warfare are notprimarily rules governing the technicalities and artifices of a game. They evolvedor have been expressly enacted for the protection of actual or potential victimsof war.” “We shall utterly fail to understand the true character of the law of warunless we are to realize that its purpose is almost entirely humanitarian in theliteral sense of the word, namely to prevent or mitigate suffering and, in somecases, to rescue life from the savagery of battle and passion. This, and not theregulation and direction of hostilities, is its essential purpose.”

Laws of War: The State of the Art

Since the mid-nineteenth century, humanitarian law has focused almost exclu-sively on the regulation and direction of hostilities as religious canons, moralphilosophy, and chivalry. These have been replaced by black letter law, militarydiscipline, rules of engagement, and “operational law” overseen by battlefieldand war room lawyers. The dean of just war scholars James Turner Johnson notes~1981:71! that nothing has been more harmful than this technical turn to the“intimate and inseparable relationship” between morality and laws of war.

The Withering of Jus Ad Bellum

Nowhere is this technical turn clearer than in the decline of “philosophical”rules about going to war ~ jus ad bellum! and the rise of procedural rules aboutconduct in war ~ jus in bello!. As witnessed by the debate over NATO’s interven-tion in Yugoslavia in 1999, jus ad bellum has not vanished. But it has been on thewane since the Renaissance, eroded by the secularization and positivism thatmark “the new science of international law” ~ Johnson, 1975:10!. The emphasison conduct is driven by practical reasons as well: ad bellum laws often deal withinscrutable motives and furtive planning; in bello breaches are easier to upholdand may even leave a trail of forensic evidence. One can also judge conduct evenwhen the original legality of a conflict is in dispute. If law follows practice, theerosion of jus ad bellum should come as no surprise. There were roughly 690cross-border military interventions between 1945 and 1991, and interveners usu-ally managed to escape condemnation ~Reilly, 1999!. Border violations and stand-ing aggressions have become routine. Despite universal condemnation of SouthAfrica’s Apartheid regime, the world turned a blind eye to Pretoria’s frequentraids into Angola, Namibia, and Mozambique. Turkish troops have entered Iraqmore than 57 times in the past 15 years in pursuit of Kurdish rebels. Attacksagainst substate targets have also been routinized. Intervention is often couchedin the language of rescue. As Henkin notes, humanitarian reasons to interveneare “easy to fabricate,” and every case of intervention has been “justified on somekind of humanitarian ground” ~Kritsiotis, 1998:1021!.

The burst of humanitarian law over the past decade—statutes for the Inter-national Criminal Tribunal for the Former Yugoslavia, the International CriminalTribunal for Rwanda, and the International Criminal Court, or ICC—has alsogiven short shrift to jus ad bellum, especially the crime of aggression. The mostcomprehensive of these, the ICC Statute, targets genocide, crimes against human-ity, serious breaches of the laws and customs of war, and aggression. Elements of


the first three crimes are defined crisply in the Statute, which criminalizes “inten-tionally directing attacks against the civilian population as such” and “extensivedestruction . . . of property, not justified by military necessity.”3 The statute wasadopted without any elaboration of aggression. This second-class treatment prob-ably stems from the fact that hi-tech states can adhere to the letter of in bello laws,but find jus ad bellum hazier and compliance harder to establish. The SecurityCouncil will almost certainly retain control over aggression, even though criticsclaim the ICC already is tipped toward Goliath states, at least members of theSecurity Council, whom the Statute grants an unlimited number of 12-monthdeferrals of the Court’s activities ~Art. 16!. The ICC Statute is also weightedtoward hi-tech states in that machete murder is more likely to be criminalizedthan a nuclear holocaust ~weapons of mass destruction are not covered!. As itstands, the ICC poses no obstacles to modern warfare as long as civilian casual-ties are unintentional or indirect.4

Decisive Force

The doctrine of overwhelming or decisive force is firmly ensconced in Americanstrategic culture ~Hoffman, 1996!. The trope of “lessons learned” in Korea andVietnam underpinned the U.S. military buildup in the 1980s and its use in the1990s. Lubricated by precision weapons, legal renderings of military necessityhave conformed to the doctrine. The view has been quasi-formalized in the“Powell Doctrine,” articulated by now U.S. Secretary of State Colin Powell, thatmilitary actions should pursue well-defined interests and use overwhelming force.At stake here are the principles of proportionality and excessive means. Is theevil caused by decisive force justified by the good anticipated? Would the pun-ishment fit the crime? The risk is that extreme prudence will stray into overkilland impunity. Members of the Judge Advocates General’s, or JAG, Corps, themilitary’s lawyers, have also had to grapple with new dilemmas of in bello pro-portionality related to asymmetric warfare. Can a modern fighting force respondcommensurably to ethnic cleansing? Or terrorism? Or cyber attacks? As ad bellumconstraints are relaxed, an aversion among democratic societies to putting sol-diers at risk may be the strongest deterrent against launching a war. Politically,decisive force may make it easier to intervene by reducing the odds that Amer-ican soldiers will die.

Aerial Bombing

Aerial bombardment of civilian centers is almost inevitable in modern warfare. Ifthe law is meant to temper these attacks, it has proved pliant. A ban on droppingprojectiles and explosives from tethered and free-f loating balloons was negoti-ated at the Hague Conference in 1899. But with the rise of dirigible programs inRussia, Germany, and France, and the advent of f light, in 1903, in the UnitedStates, technology leaders invariably opposed any legal curbs that might offsettheir comparative advantage in warfare ~Watt, 1979:59–61!. The 1923 HagueDraft Rules on Air Warfare prohibited bombing for the purpose of terrorizingcivilians, destroying nonmilitary targets, or injuring noncombatants. Article 24 of

3 Article 8, Sec. 2 ~a!~iv! and ~b!~i!. The Statute is available at www.un.org0law0icc0statute. The ICC is a humanrights tribunal, not simply a war crimes tribunal. It will address “widespread and systematic” atrocities whichnational courts are unwilling or unable to prosecute. The statute applies whether violations are committed ininternational or domestic conflicts, during humanitarian or nonhumanitarian missions, or even during peacetime;no “nexus” with interstate war is required.

4 For a fuller discussion of the ICC and state preferences see Smith ~2002!.

Thomas W. Smith 359

the Draft Rules prohibited any attack that would result in indiscriminate bomb-ing of civilians, even if the intended target was of military significance. The ruleswere never ratified by any country, although they arguably continue to intimatenorms of conduct. Legal constraints on aerial bombing reached “a tangled andtragic crisis point” during World War II when the ability for massive bombingexisted, but the ability to discriminate between military and civilian targets didnot ~Biddle, 1994:140!. The statutes governing the Nuremberg and Tokyo tribu-nals did not criminalize carpet-bombing because both sides had practiced itwidely.

While aerial bombing is subject to the general rules of armed conflict, no lawsgovern air attacks per se. Bomber altitudes have not been codified; certain typesof ordnance have not been proscribed for aerial attacks in urban settings; rulesfor identifying targets from the air do not exist. American rules of engagementare derived principally from the 1907 Hague Convention Respecting the Lawsand Customs of War on Land ~“Hague IV”!, including the general limitation ofmeans ~Art. 22!, avoiding unnecessary suffering ~Art. 23!, prohibiting attacks onundefended civilian centers ~Art. 25!, and sparing cultural and religious sites,historical monuments, and hospitals ~Art. 27!. Similar prohibitions are drawnfrom the 1907 Hague Convention Concerning Bombardment by Naval Forces~“Hague IX”!. Finally, rules of engagement cite the 1949 Geneva ConventionRelative to the Protection of Civilians in Time of War ~“Geneva IV”!, including aseries of protections of civilians from “the certain consequences of war” ~Arts.13–26!. These rules along with legal commentary are collected in Air ForcePamphlet 110-31, International Law—The Conduct of Armed Conflict and Air Opera-tions, which concedes that in some cases these civilian protections have beenundermined by “the development of new weapons systems including aircraft andmissiles which extend the struggle beyond the immediate battlefield” ~USAF,1976:3–4!. Nevertheless, the gist of AFP 110-31 is strikingly similar to that of the1977 Geneva Protocol I Additional to the Geneva Conventions ~“Protocol I”!,which was prepared around the same time; indeed, even though the UnitedStates has not signed or ratified it, Protocol I seems increasingly to be thestandard of law American forces strive to meet, suggesting that the mere exis-tence of more rigorous standards, whether formally acceded to or not, mayinfluence how states act. The “Basic Rule” of Protocol I ~Art. 48! demands thatparties to the conflict “at all times distinguish between the civilian populationand combatants and between civilian objects and military objectives and . . .direct their operations only against military objectives.” Specific safeguards applyto cultural and religious sites ~Art. 53!, survival needs of civilians ~Art. 54!, thecivilian environment ~Art. 55!, and public works ~Art. 56!, as well as medical andother humanitarian installations. Parties to the conflict are to take “all feasibleprecautions” to verify that civilians are not targeted ~Art. 57!.5

Civilian Protections

The language threading through the Hague and Geneva laws is that civiliansshall not be “the object” of attacks and that attacks shall not be “directed at”civilians or “calculated” to produce civilian suffering. The 1998 ICC Statute,considered the avant-garde of humanitarian law, similarly prohibits “intention-ally directing” attacks against civilians and civilian objects. In each case, however,collateral damage seems legally defensible. The doctrine of double effect ~DDE!,formulated by Thomas Aquinas in the thirteenth century, holds that even foreseenbad consequences are acceptable as long as they are unintended. Scorned by

5 Protocol I is available at www.unhchr.ch. The 1977 Geneva Protocol II Additional to the Geneva Conventionsoutlines more limited rules on the treatment of civilians in domestic conflicts.


modern ethicists for its artificial treatment of intentions, DDE nonetheless remainsthe basis for the legal doctrine of collateral damage, whereby injury to civilianlife and property becomes merely the “incidental accompaniment” to war ~Ford,1944:289!. Humanitarian law is riddled with this kind of casuistry of intentions.In practice, this softens the rules to account for the uncertainties of war—evencarefully calibrated uncertainties of air war related to altitude, ordnance, visibil-ity, and intelligence. To protect pilots and planes from anti-aircraft fire, highbomber altitudes are favored even though this raises the risk of collateral dam-age. Just war theorists contend that soldiers hold a different moral status thanthat of civilians and thus assume greater risk to life and limb. The Pentagon hasweakened, if not reversed, that assumption. RAND’s Project Air Force found thatthe U.S. military favors a “liberal interpretation” of legal duties to avoid collateraldamage, “one that permits an extremely high level of force protection so long asan appropriate level of accuracy is still ensured” ~Vick et al., 2000:45!.

Distinctions between military and civilian objects are notoriously malleable. Ifhonored, the law would restrain the kind of low-end violence that marks manyethnic and civil conflicts. Conversely, hi-tech tactics have had striking success inminimizing civilian casualties, actually heightening the appeal of aerial bombing.“Don’t Go Downtown without Us” is the title of a recent Air Force journal articleon bombing urban centers ~Schwartz and Stephan, 2000!. Equally striking, how-ever, is how civilian protection has been limited to immediate effects, not thosethat follow from infrastructural damage or from the lingering results of war. AsJoy Gordon has argued ~1999:132–133! with regard to economic sanctions, thetrend is to shift blame from the agent imposing the sanctions ~or leading theattack! to the target nation, because of its misbehavior. One can excavate end-lessly the archaeology of blame, but it is obscene to insist that a war was legalbecause civilians died of poisoned drinking water or interrupted medical sup-plies rather than from direct bombing. Article 8~2!~b!~iv! of the ICC Statutecriminalizes “Intentionally launching an attack in the knowledge that such attackwill cause incidental loss of life or injury to civilians or damage to civilian objectsor widespread, long-term and severe damage to the natural environment whichwould be clearly excessive in relation to the concrete and direct overall militaryadvantage anticipated.” This is a step in the right direction, although prosecutorswill have difficulty proving that attacks were intentional ~especially if the doubleeffect defense is available!, and were unwarranted on military grounds. As oneICRC ~International Committee of the Red Cross! lawyer put it, there is “sosubstantial an element of subjectivity ~the weighing of military benefit and civil-ian damage! that it is very difficult to gauge whether the law has been respected”~Doswald-Beck, 1998:34!.

Dual Use

Protecting civilians from direct attack remains the most compelling in bello rule.Discrimination turns to fiction, however, when extended to electrical grids, watersupplies, and other infrastructure that are the sinews of everyday life. The law ofnations held that war was a contest between states, waged by official, uniformed,armed forces. In the modern age, as entire economies and societies have beenconscripted to the war effort and military and nonmilitary work have converged,the so-called dual-use dilemma has been resolved in a gradual loosening of whatconstitutes a legitimate military target, becoming, in other words, less and less ofa dilemma. Dual use targets increasingly are treated as unambiguous militarytargets. U.S. Air Force doctrine has changed little since its origins in the 1930s,when strategists at the U.S. Air Corps Tactical School developed the “industrialweb” theory of air attacks, which pinpointed “vital centers” of war-making poten-tial that invariably would spill over into civilian life. The vogue today is the

Thomas W. Smith 361

“Strategic Ring Theory” of striking critical nodes of infrastructure in order toinduce “strategic paralysis” in one’s enemy ~Rizer, 2001!. International law sanc-tions the destruction of dual-use facilities so long as the intention is to choke offthe military effort. ~NATO bombing in the Balkans “arced out” electrical gridswithout destroying them permanently.! In an important new study of the normsof aerial bombing Ward Thomas ~2001:165! argues that while “most militaryprofessionals have internalized the norm that civilians should not be directlyharmed in air attacks, the notion that depriving a population of basic goods andservices can be an effective source of pressure on its government remains animportant part of strategic bombing doctrine.” Tactically, there is also pressureto attack fixed dual-use targets rather than moving military ones, which evensophisticated armies have had difficulty striking. In short, twisting dual-use lawhas facilitated waging war against civilian societies ~see Walzer, 1992:xix–xx!.

Hi-Tech0Low-Tech

Humanitarian law favors modern militaries. The capacity to carry out surgicalstrikes opens a legal divide between technological haves and have-nots. Primitivemilitaries cannot compete with their modern counterparts; indiscriminate bomb-ing seems criminally blunt by contrast. The promise of precision-guided bombsdrives much of American strategic and tactical planning as well as procurementpolicies. It is also a boon for public relations officers. Probably the U.S. alone iscapable of waging legal warfare on a vast scale. This was excruciatingly clearwhen Russian military leaders defended the crude bombing of Chechnya and theobliteration of the capital Grozny on grounds that they were parroting NATO’stactics in the Balkans. ~A Pentagon post-mortem on Kosovo recommended thatthe NATO allies buy more American-built smart weapons to balance the finan-cial burdens.! Contemporary laws of war are humanitarian at the low-tech end,and have been crucial in condemning atrocities, including sexual violence, asso-ciated with ethnic and other civil conflicts. But if hi-tech violence is shieldedfrom prosecution, this may sap the moral force of the law and allow low-endoffenders to paint themselves as victims of politicized proceedings.6

Public Health

There is growing interest in the public health effects of war. Human rightsadvocates, like military lawyers, traditionally have focused on discrete acts ofviolence. But public health specialists increasingly view human rights in terms ofthe “structural violence” caused by widespread deprivation or social injustice~Farmer, 1996; Marks, 1999!. This seems apt for judging the lingering effects ofwar and the everyday consequences of economic sanctions. While the securitycommunity views sanctions and attacks on infrastructure as limited remedies,students of human rights find them drastic indeed. The link between humanrights law and public health remains largely an exercise de lege ferenda, i.e.,

6 For example, claims that NATO committed war crimes during the Kosovo campaign were brought up at theICTY. A committee empanelled by the ICTY Prosecutor reviewed evidence and concluded that the collateraldamage wrought by NATO did “not reach the Additional Protocol I threshold,” and that a formal investigation wastherefore not warranted. Citing “widely accepted and reputable legal opinion,” the committee “deliberately refrainedfrom assessing jus ad bellum issues in @its# work.” See ICTY ~2000!. Relatives of several employees of Radio-TelevisionSerbia who were killed in the attack on the studios filed suit with the European Court of Human Rights, or ECHR,charging those NATO countries that are parties to the European Convention on Human Rights with violation ofArt. 2 ~right to life!, Art. 10 ~free expression!, and Art. 13 ~right to effective remedy!. The ECHR ruled that the case,Bankovic v. Belgium ~No. 52207099!, was inadmissible because Article 1 of the convention obliges contracting partiesto respect human rights only within their own jurisdictions.


regarding what the law should be, and not what the law is. The law, in fact, lagsbadly. Oblique support is scattered through the European Convention on HumanRights ~1950! and the International Covenant on Economic, Social and CulturalRights ~1966!, but these face the force majeure of laws of war and military necessity.

Iraq: “Bomb Now, Die Later”

The public health fallout of the Gulf War was largely foreseen. The deliberatedestruction of Iraq’s infrastructure and economy could only have had profoundlong-term civilian effects. The war was probably the most unbalanced use ofmilitary force in history, as virtually the entire developed world pooled its resourcesto destroy one country ~Gardam, 1993:392!. About 3000 Iraqi civilians died in thewar. The aftermath of the conflict, aggravated by a decade of economic sanc-tions, has been a humanitarian catastrophe. Iraq fell in the United NationsHuman Development Index from 55th in 1990 to 126th in 2000. Unicef esti-mates 500,000 under-fives died between 1991 and 1998. The World Health Orga-nization believes there may still be as many as 5000 child deaths per month as aresult of the aggregate effects of the war and the embargo. Iraqi epidemiologistshave placed the overall toll at 1.2 million lives.7 As Peter Kandela ~1991:967! putit in a Lancet article, “bomb now, die later.”

Notwithstanding, the Gulf War has become the touchstone for the “military-technological revolution in warfare” ~Ederington and Mazarr, 1994!. Using smartbombs and other hi-tech stand-off weapons, electronic sensors, stealth capabili-ties, and cyber-intelligence, the Coalition quickly knocked out Iraqi air defenses,neutralized the country’s air force, and crippled its command and control. Ablunt infrastructural war followed. Between January 16 and February 27, 1991,88,500 tons of ordnance were dropped on Kuwait and Iraq, explosive powerequal to seven Hiroshima-sized atomic bombs. Smart bombs accounted for lessthan 10 percent of the tonnage ~Simons, 1998:4!. Unseemly weapons, includingcluster and asphyxiation bombs, were also used. In perhaps the lowest-tech tacticemployed, Iraqi troops entrenched along the “Saddam Line” on the border withSaudi Arabia were buried alive by Allied tanks. W. Hays Parks, the JAG officercredited with coining the term “operational law,” argued after the war thatnothing in humanitarian law “prohibits the breaching tactic utilized. . . . @B#ull-dozing enemy defensive lines has been a common practice of nations ever sincethe tank was introduced into warfare” ~Myrow, 1996–97!. Thanks to a tight scriptand close media controls, however, the conflict is best remembered for theCoalition’s surgical air strikes. The war’s branded image is the video-arcadefootage of a laser-guided missile entering the chimney of an Iraqi Air Forcebuilding and flattening the place.

The Gulf War is equally a touchstone for modern legal warfare. ColonelRaymond Ruppert, staff judge advocate for the U.S. Central Command, calledthe Gulf War “the most legalistic war we’ve ever fought.” Colin Powell, thenchairman of the Joint Chiefs of Staff, noted, “Decisions were impacted by legalconsiderations at every level. . . . @L#awyers proved invaluable in the decision-making process” ~DOD, 1992:605!. The U.S. Department of Defense interimreport to Congress reported that Coalition forces had “scrupulously adhered tofundamental law of war proscriptions” in conducting “the most discriminatemilitary campaign in history,” leaving the impression that the war was “clean andlegal” ~af Jochnick and Normand, 1994b:395, 398!. The final report on the war

7 See UNDP ~2000!. The Human Development Index measures life expectancy, educational attainment, andadjusted real income. For Unicef and WHO statistics see The Economist ~2000!. The Iraqi estimate was reported inReuters ~1999!. See also Shehabaldin and Laughlin ~2000!.

Thomas W. Smith 363

included a lengthy appendix devoted to the law of war ~DOD, 1992:605–632!. Atthe ad bellum level, the legal architecture of the UN served as its crafters hadenvisioned, the Security Council seamlessly discharging its duties under ChapterVII of the Charter.

Iraq’s prior disregard for the laws and customs of war placed the Coalitioncampaign in sharp legal relief. Historical disputes over the Al-Rumeilah oilfieldand Iraqi claims of cross-border oil drilling by Kuwait deserve more discussionthan they have received, but any past injustice pales beside Iraq’s conduct in thisand other recent conflicts. Iraqi troops used nerve and blister gas in the war withIran, and, in 1988, murdered several thousand Iraqi Kurds living in the village ofHalabjah, east of Suleymaniyah. Iraq’s invasion of Kuwait was a classic, cross-border casus belli. That fact, and the blessing of the Security Council, removedmost ambiguities regarding just cause. Iraqi atrocities in Kuwait have been welldocumented ~see DOD, 1992:623–624 and Roberts, 1993–94!. Suffice it to saythat Iraqi soldiers violated virtually every article of the Geneva Conventions.Some 500,000 refugees spilled over into Turkey. There were staggering environ-mental crimes as well, as departing Iraqi troops flooded nine million barrels ofoil into the Persian Gulf and set alight 500 well heads.

Coalition planners identified twelve “target sets” in Iraq: command facilities;electrical grid; telecommunications, including microwave relay towers, telephoneexchanges, switching rooms, fiber optic nodes, and bridges that carried commu-nications cables; air defense systems; air forces and air fields, including aircraftshelters and personnel bunkers; nuclear, biological, and chemical weaponsmanufacturing and storage sites; Scud missile sites; naval forces and port facili-ties; oil refineries and distribution systems—the Pentagon’s final report ~DOD,1992:97! noted that oil is “the life blood of a major industrial and militarypower”; railroads and bridges; Iraqi Army units; and military production andstorage sites. Though not on the original list, water treatment and distributionsystems, food processing plants, irrigation sites, and sewage treatment plantswere also targeted.

To avoid collateral damage, Coalition forces exercised considerable restraintin target selection and in materiel. Schools, hospitals, and other humanitariansites were off limits. Special emphasis was given to the protection of religious andcultural sites in keeping with Hague IV ~Art. 27!, Hague IX ~Art. 5!, the 1923Draft Rules on Air Warfare ~Arts. 25 and 26!, the 1954 Hague Convention for theProtection of Cultural Property, and Protocol I ~Art. 53!, which bars attacks on“historic monuments, works of art or places of worship which constitute thecultural or spiritual heritage of peoples.” Customary law applied as well. Coali-tion leaders were keen not to offend religious sensitivities in the Islamic worldand possibly weaken the Coalition, but the strategic costs of complying with“cultural” rules on mosques and shrines were also low, though the Iraqis cer-tainly exploited this restraint, in one case shielding two fighter jets from attackby parking them adjacent to the 4000-year-old Sumerian temple at Ur, nearBasra. The final report to Congress included line drawings and photographs ofhistorical and religious sites that were spared ~targeteers overlaid satellite photo-graphs and tourist maps to locate cultural sites!. Only precision-guided missileswere used to attack targets in downtown Baghdad, and gunners held fire whentargets could not be positively identified. In the first ten days of the air war, 40percent of attack flights were aborted because of poor visibility. NighthawkStealth Fighters f lew 1300 sorties, most over Baghdad, without losing a singleaircraft. These were flown at night for safety, making identification of targetsharder. Precautions were loosened in attacks on cities outside Baghdad, whichsuffered more civilian deaths per capita and greater damage to nonmilitarystructures than the capital ~Middle East Watch, 1991:6!. There were two acknowl-edged blunders: the February 13, 1991 bombing of the Al-Firdus Bunker, which


killed several hundred Iraqi civilians who, unbeknownst to Coalition forces, weresheltering there; and air attacks, on February 25–27, on military and civiliantraffic retreating north along the road from Kuwait City, what became known asthe “Highway of Death.”

Under the “phased execution” employed by the Coalition, the use of forceescalated as the world public grew inured to the violence. Legality crept towardnecessity on the dual-use question. The Pentagon’s interim report to Congress~DOD, 1991:ch. 4, 2! argued that it was necessary to destroy “electrical produc-tion facilities powering military systems.” This language was replaced in the finalreport with the honest but overwrought claim that “disrupting the electricalsupply to key Iraqi facilities . . . required the disruption of virtually the entireIraqi electric grid, to prevent the rerouting of power around damaged nodes,”and, further, “disrupting electricity was time-crucial and considered vital to pro-tect aircrew lives and ensure mission accomplishment” ~DOD, 1992:96, 180!. AnAir Force planner interviewed by the Washington Post noted that attacks on theelectrical grid were meant to send a message to the Iraqi people: “We’re notgoing to tolerate Saddam Hussein or his regime. Fix that, and we’ll fix yourelectricity” ~Gellman, 1991!.

Although the Coalition hewed more or less to humanitarian law, the destruc-tion was enormous. The WHO0UNICEF mission to Iraq in March 1991 foundelectrical supplies cut, drinking water poisoned, environmental controls col-lapsed, public sanitation deteriorated. Child nutrition was dire, there were short-ages of vaccines, drugs, and medical supplies, and a proliferation of water-bornediseases. Diarrhea among children under the age of five increased fourfold.Severe shortages of fuel and agricultural and industrial inputs were widespread.Communications were destroyed, and travel at a standstill. After visiting Iraq thesame month, then UN Under Secretary-General Martti Ahtisaari reported “near-apocalyptic results upon the economic infrastructure.” “Most means of modernlife support have been destroyed or rendered tenuous. Iraq has, for some time tocome, been relegated to a pre-industrial age, but with all the disabilities of apost-industrial dependency on an intensive use of energy and technology” ~Weller,1993:598!.

The United Nations Environment Program reported that Coalition bombing,lubricated by an expansive rendering of dual use, resulted in the “completedestruction” of power stations, water installations, oil refineries, and oil storagedepots. Legal or not, there has been profound and enduring civilian damage.Drainage water and sewage accumulated, the water table rose, and salinity spikedin agricultural areas. Destruction of fertilizer plants undercut agriculture. Nomadshave had to negotiate minefields in the Muthanna Directorate. Toxic chemicalsspilled into the soil and aquifers around bombed factories. Food production fellto 40 percent of prewar levels. Simons ~1998:24–26! recounts a chilling inventoryof chemical pollution caused by aerial attacks of power plants, factories, andfertilizer plants. This is worse than salting the earth.

Ramsey Clark ~1992! and others have mistakenly labeled these excesses as warcrimes. Even if the long-term effects of the war have been as deadly as if civilianshad been bombed outright, the Coalition rarely strayed from the laws of war.The same is true of the sanctions regime. Iraqi officials aggravated conditions byhoarding relief aid and only belatedly accepting the conditions laid down in theUnited Nations oil-for-food program, but even proponents of sanctions in lieu ofwar have been appalled by deepening poverty and flagging public health in Iraq.Critics say the sanctions are worse than a failure because they harm Iraqi civil-ians, yet spare the country’s leadership. In much of the Islamic world, the cam-paign is considered genocide. Disenchantment continued to grow with theseemingly endless air strikes conducted by British, American, and French fight-ers ostensibly enforcing the no-f ly zones in the north and south of the country.

Thomas W. Smith 365

Kosovo: Low-Tech Atrocities/Hi-Tech War

NATO’s 78-day bombing campaign in the Federal Republic of Yugoslavia in theSpring of 1999 confirmed the appeal of hi-tech warfare, even to thwart primitivehuman rights atrocities. Whether or not another infrastructural war was com-mensurate with the end of halting ethnic cleansing is another matter. Broadly,Operation Allied Force has been viewed in two ways. For some, it marked a newkind of human rights realpolitik. NATO bloodied its hands to do justice, incontrast to the international community’s earlier dithering over Bosnia. Launchedwithout the imprimatur of the Security Council, the war was perhaps illegal onad bellum grounds. That just cause was an issue at all illustrated the growing gapbetween the traditional law of nations and the emerging humanitarian consensus~Glennon, 1999; von Kohl, 2000!. Sovereignty and its mirror-image noninterven-tion had ceased to be pillars of international order and had become legal armorfor ethnic cleansers instead. The lessons from Kosovo were that force could haltaggression, that a response should come sooner not later, that it should escalateviolence rather than respond, tit-for-tat, to individual offenses, that interventionin the Balkans should rely more on NATO and less on unarmed and white-suitedOSCE ~Organization for Security and Cooperation in Europe! peacekeepers~whom the Bosnians had bitterly referred to as “ice cream men.”! Most importantwas the realization that negotiations, coercive diplomacy, and other attempts atconflict resolution might fail and violence become necessary.

For others, Kosovo was, at best, a dubious model for redressing widespreadhuman rights violations. The norm of nonintervention should not have beenabandoned so lightly; proceeding without Security Council writ created an awk-ward precedent. The American and Continental left were uneasy with the use ofmilitary force, while many in the global human rights movement were dismayedto see human rights law become the basis for a genuinely terroristic war ~Roberts,1999:103!. Thirty-eight thousand combat sorties were a poor substitute for asustained human rights policy; indeed, the air campaign may even have exacer-bated violence against Kosovars. The idea that humanitarian aims might beachieved through such methods amounted to “moral tourism” ~Pilger, 1999!. Notonly did NATO blacken the idea of humanitarian intervention by equating itwith zero casualties and aerial bombing, but the choice of means suggested thatpreventing genocidal atrocities was not worth the lives of a few Alliance troops~Pierce, 2001:9!.

NATO furiously defended the humanitarian basis of the war and the legalityof its conduct. Spokesman Jamie Shea noted during a press conference themorning after the Chinese Embassy was struck, “NATO never intentionally tar-gets civilians. The overwhelming majority of our targets are military targets, all ofthem indeed are military targets” ~NATO, 1999!.8 Shea’s first sentence was true.In the second he was dissembling. The Joint Chiefs called the campaign “themost precise and lowest-collateral-damage air campaign in history” ~ JCS, 1999!.Stand-off weapons and unmanned aerial vehicles were used to an unprecedenteddegree. Bombers unleashed payloads from 15,000 feet, beyond the reach ofanti-aircraft fire. Pentagon officials claimed that improved global positioningsatellites, advances in in-f light navigation, and a new Joint Direct Attack Muni-tion System, which dropped ordnance from above cloud cover, rendered attackseven more precise than those during the Gulf War. But it was clear from theaccidental civilian strikes—a tram crossing a bridge, a refugee convoy, a passen-ger bus, an open market, a hospital, the Chinese Embassy—that the technology,

8 NATO’s website ~www.nato.int0Kosovo0all-frce.htm! depicts stunning aerial photographs of hundreds of destroyedtargets in Kosovo and Serbia accompanied by descriptions of each day’s activities. This is the most detailed officialhistory of the Kosovo conflict publicly available.


intelligence, and legal vetting of targets were not foolproof. The upshot was thatNATO could attack with impunity; not one NATO soldier died in combat. Theconduct of the war also confirmed that old-fashioned chivalry had been eclipsedby the depersonalization and distance of modern technology and technical law~Woollacott, 1999; and see Meron, 1998:203!.

As in Iraq, the bombing escalated as public interest declined. Despite therhetoric of discrimination, military necessity edged toward civilian targets. Thiswas due in large part to the way that dual use was construed. Under Protocol I~Art. 52! dual-use facilities may be targeted if their destruction will make an“effective contribution to military action” or produce “a definite military advan-tage.” NATO lawyers, however, viewed military effects in potential and indeter-minate ways ~Human Rights Watch, 1998!. Factories and other properties belongingto political supporters of Milosevic were destroyed in the fumbling hope ofundermining the regime. The Belgrade state television studios were bombed,killing 15 staff members, after the station ignored NATO demands that it air“Western programs” instead of war propaganda ~ Jenkins, 1999!. Civilian radiostations and a publishing house were also targeted and destroyed. The numberof approved targets rose in direct proportion to the number of available aircraft.The campaign was launched with 169 targets and ended with 976. Some targetswere struck repeatedly even after they had been functionally destroyed. Giventhe danger of collateral damage, these superfluous strikes “may have been legal,but @they were# not morally justifiable” ~Gingras and Ruby, 2000:108!. NATOfound it easier to strike fixed dual-use targets rather than moving military ones,even though this too increased the risk of civilian injury. KFOR troops in Kosovoreported that a mere 13 Yugoslav Army tanks had been destroyed in the entirecampaign ~Dyer, 1999!.

Fewer than 500 civilians were killed in the war. Yet “degrading” Serbian capa-bilities seemed aimed at punishing Serbs generally for their nationalist excesses.Attacks on a petrochemical complex in Pancevo, on the outskirts of Belgrade,left the vicinity so toxic with vinyl chloride, ammonia, mercury, naphtha, anddioxin that pregnant women there were directed to seek abortions, and all localwomen were advised to avoid pregnancy for two years. Ecotoxicologists expectthe effects of the attack to linger for a generation ~Fineman, 1999!. The com-mittee assembled by the ICTY to examine possible war crimes by NATO identi-fied additional environmental “hot spots” in Kragujevac, Novi Sad, and Bor, butconcluded that the damage did not meet the Protocol I threshold for criminality~ICTY, 2000!. The ICRC reported that unexploded NATO ordnance has killed ormaimed hundreds of civilians in Kosovo and Serbia since the end of the war.Sickness attributed to bombs coated with depleted uranium ~DU! has been inves-tigated among civilians and soldiers involved in the NATO raids. Similar illnesshas been reported in far higher numbers in Iraq, where Britain’s Atomic EnergyAuthority estimated that 40 tons of DU was left on Gulf War battlefields ~Simons,1998:21!. European officials estimate it will cost $30 to $50 billion to repair theinfrastructural damage in Yugoslavia. Bridges over the Danube, railheads, high-ways, communications, oil depots, heating plants, power stations, and water treat-ment facilities were all destroyed. Yugoslav officials estimate it will take 20 yearsfor the economy to recover to 1989 levels ~Woollacott, 1999!.

Precision-Guided Law

The role of military lawyers in all this has, according to one study, “changedirrevocably” ~Keeva, 1991:59!. Although liberal theorists point to the broad nor-mative contours that law lends to international relations, the Pentagon wieldslaw with technical precision. During the Gulf War and the Kosovo campaign,JAGs opined on the legal status of multinational forces, the U.S. War Powers

Thomas W. Smith 367

Resolution, rules of engagement and targeting, country f ly-overs, maritime in-terceptions, treatment of prisoners, hostages and “human shields,” and meth-ods used to gather intelligence. Long before the bombing began, lawyers hadjoined in the development and acquisition of weapons systems, tactical plan-ning, and troop training. In the Gulf War, the U.S. deployed approximately430 military lawyers, the allies far fewer, leading to some amusing but perhapsapposite observations about the legalistic culture of America ~Garratt, 1993!.Many lawyers reviewed daily Air Tasking Orders as well as land tactics. Othersfound themselves on the ground and at the front. According to Colonel Rup-pert, the idea was to “put the lawyer as far forward as possible” ~Myrow, 1996–97!.During the Kosovo campaign, lawyers based at the Combined Allied OperationsCenter in Vicenza, Italy, and at NATO headquarters in Brussels approved everysingle targeting decision. We do not know precisely how decisions were takenin either Iraq or Kosovo or the extent to which the lawyers reined in theirmasters. Some “corrections and adjustments” to the target lists were made ~Shot-well, 1993:26!, but by all accounts the lawyers—and the law—were extremelyaccommodating.

The exigencies of war invite professional hazards as military lawyers seek to“find the law” and to determine their own responsibilities as legal counselors. A1990 article in Military Law Review admonished judge advocates not to neglecttheir duty to point out breaches of the law, but not to become military ombuds-men either. The article acknowledged that the JAG faces pressure to demon-strate that he can be a “force multiplier” who can “show the tactical and politicalsoundness of his interpretation of the law” ~Winter, 1990:8–9!. Some tensionbetween law and necessity is inevitable, but over the past decade the focus hasshifted visibly from restraining violence to legitimizing it. The Vietnam-era per-ception that law was a drag on operations has been replaced by a zealous “clientculture” among judge advocates. Commanding officers “have come to realizethat, as in the relationship of corporate counsel to CEO, the JAG’s role is not tocreate obstacles, but to find legal ways to achieve his client’s goals—even whenthose goals are to blow things up and kill people” ~Keeva, 1991:59!. Lt. Col. TonyMontgomery, the JAG who approved the bombing of the Belgrade televisionstudios, said recently that “judges don’t lay down the law. We take guidance fromour government on how much of the consequences they are willing to accept”~The Guardian, 2001!.

Military necessity is undeterred. In a permissive legal atmosphere, hi-techstates can meet their goals and remain within the letter of the law. As noted,humanitarian law is firmest in areas of marginal military utility. When opera-tional demands intrude, however, even fundamental rules begin to erode. TheDefense Department’s final report to Congress on the Gulf War ~DOD, 1992!found nothing in the principle of noncombatant immunity to curb necessity.Heartened by the knowledge that civilian discrimination is “one of the leastcodified portions” of the law of war ~p. 611!, the authors argued that “to thedegree possible and consistent with allowable risk to aircraft and aircrews,” muni-tions and delivery systems were chosen to reduce collateral damage ~p. 612!. “Anattacker must exercise reasonable precautions to minimize incidental or collat-eral injury to the civilian population or damage to civilian objects, consistentwith mission accomplishments and allowable risk to the attacking forces” ~p. 615!.The report notes that planners targeted “specific military objects in populatedareas which the law of war permits” and acknowledges the “commingling” ofcivilian and military objects, yet the authors maintain that “at no time werecivilian areas as such attacked” ~p. 613!. The report carefully constructed aprecedent for future conflicts in which human shields might be deployed, noting“the presence of civilians will not render a target immune from attack” ~p. 615!.The report insisted ~pp. 606–607! that Protocol I as well as the 1980 Convention


on Prohibitions or Restrictions on the Use of Certain Conventional Weapons“were not legally applicable” to the Gulf War because Iraq as well as someCoalition members had not ratified them. More to the point that law followspractice, the report claimed that certain provisions of Protocol I “are not acodification of the customary practice of nations,” and thus “ignore the realitiesof war” ~p. 616!.

Nor can there be any doubt that a more elaborate legal regime has kept pacewith evolving strategy and technology. Michael Ignatieff details in Virtual War~2000! how targets were “developed” in 72-hour cycles that involved collectingand reviewing aerial reconnaissance, gauging military necessity, and coding antici-pated collateral damage down to the directional spray of bomb debris. A judgeadvocate then vetted each target in light of the Geneva Conventions and calcu-lated whether or not the overall advantage to be gained outweighed any expectedcivilian spillover. Ignatieff argues ~2000:198–199! that this elaborate symbiosis oflaw and technology has given birth to a “veritable casuistry of war.” Legal fineprint, hand-in-hand with new technology, replaced deeper deliberation aboutthe use of violence in war. The law provided “harried decision-makers with acritical guarantee of legal coverage, turning complex issues of morality intotechnical issues of legality.” Astonishingly fine discrimination also meant thatunintentional civilian casualties were assumed to have been unintentional, notforeseen tragedies to be justified under the rule of double effect or the fog ofwar. The crowning irony is that NATO went to such lengths to justify its targetsand limit collateral damage, even as it assured long-term civilian harm by destroy-ing the country’s infrastructure.

Perhaps the most powerful justification was provided by law itself. War is oftendressed up in patriotic abstractions—Periclean oratory, jingoistic newsreels, orheroic memorials. Bellum Americanum is cloaked in the stylized language of law.The DOD report is padded with references to treaty law, some of it obscure, thatwas “applicable” to the Gulf War, as if a surfeit of legal citation would convinceskeptics of the propriety of the war. Instances of humane restraint invariablywere presented as the rule of law in action. Thus the Allies did not gas Iraqitroops, torture POWs, or commit acts of perfidy. Most striking is the use of legallanguage to justify the erosion of noncombatant immunity. Hewing to the legal-isms of double effect, the Allies never intentionally targeted civilians as such. Asnoted, by codifying double effect the law artificially bifurcates intentions. Har-vard theologian Bryan Hehir ~1996:7! marveled at the Coalition’s legalistic word-play, noting that the “briefers out of Riyadh sounded like Jesuits as they soughtto defend the policy from any charge of attempting to directly attack civilians.”

The Pentagon’s legal narrative is certainly detached from the carnage on theground, but it also oversimplifies and even actively obscures the moral choicesinvolved in aerial bombing. Lawyers and tacticians made very deliberate deci-sions about aircraft, f light altitudes, time of day, ordnance dropped, confidencein intelligence, and so forth. By expanding military necessity to encompass anextremely prudential reading of “force protection,” these choices were calculatedto protect pilots and planes at the expense of civilians on the ground, departingfrom the just war tradition that combatants assume greater risks than civilians.While it is tempting to blame collateral damage on the fog of war, much of thatuncertainty has been lifted by technology and precision law. Similarly, in Iraqand in Yugoslavia the focus was on “degrading” military capabilities, yet a looseview of dual use spelled the destruction of what were essentially social, economic,and political targets. Coalition and NATO officials were quick to apologize foraccidental civilian casualties, but in hi-tech war most noncombatant suffering isby design.

Does the law of war reduce death and destruction? International law certainlyhas helped to delegitimize, and in rare cases effectively criminalize, direct attacks

Thomas W. Smith 369

on civilians. But in general humanitarian law has mirrored wartime practice. Onthe ad bellum side, the erosion of right authority and just cause has eased thepath toward war. Today, foreign offices rarely even bother with formal declara-tions of war. Under the United Nations system it is the responsibility of theSecurity Council to denounce illegal war, but for a number of reasons its mem-bers have been extremely reluctant to brand states as aggressors. If the law wereless accommodating, greater effort might be devoted to diplomacy and warmight be averted. On the in bello side the ban on direct civilian strikes remainsintact, but double effect and military demands have been contrived to justifyunnecessary civilian deaths. Dual use law has been stretched to sanction newforms of violence against civilians. Though not as spectacular as the obliterationbombing to which it so often is favorably compared, infrastructural war is fardeadlier than the rhetoric of a “clean and legal” conflict suggests. It is true thatrough estimates of the ratio of bomb tonnage to civilian deaths in air attacksshow remarkable reductions in immediate collateral damage. There were some40.83 deaths per ton in the bombing of Guernica in 1937 and 50.33 deaths perton in the bombing of Tokyo in 1945. In the Kosovo campaign, by contrast, therewere between .077 and .084 deaths per ton. In Iraq there were a mere .034~Thomas, 2001:169!. According to the classical definition of collateral damage,civilian protection has improved dramatically, but if one takes into account thestaggering long-term effects of the war in Iraq, for example, aerial bombinglooks anything but humane.

For aerial bombers themselves modern war does live up to its clean and legalimage. While war and intervention have few steadfast constituents, the myth ofimmaculate warfare has eased fears that intervening soldiers may come to harm,which polls in the U.S., at least, rank as being of great public concern, and evengreater military concern. A new survey of U.S. civilian and military attitudesfound that soldiers were two to four times more casualty-averse than civiliansthought they should be ~Feaver and Kohn, 2001!. By removing what is perhapsthe greatest restraint on the use of force—the possibility of soldiers dying—lawand technology have given rise to the novel moral hazards of a “postmodern,risk-free, painless war” ~Woollacott, 1999!. “We’ve come to expect the immacu-late,” notes Martin Cook, who teaches ethics at the U.S. Army War College inCarlisle, PA. “Precision-guided munitions make it very much easier to go to warthan it ever has been historically.” Albert Pierce, director of the Center for theStudy of Professional Military Ethics at the U.S. Naval Academy argues, “standoffprecision weapons give you the option to lower costs and risks . . . but you mightbe tempted to do things that you might otherwise not do” ~Belsie, 1999!.

Conclusion

The utility of law to legitimize modern warfare should not be underestimated.Even in the midst of war, legal arguments retain an aura of legitimacy that ismissing in “political” justifications. The aspirations of humanitarian law are sound.Rather, it is the instrumental use of law that has oiled the skids of hi-techviolence. Not only does the law defer to military necessity, even when verybroadly defined, but more importantly it bestows on those same military demandsall the moral and psychological trappings of legality. The result has been tolegalize and thus to justify in the public mind “inhumane military methods andtheir consequences,” as violence against civilians is carried out “behind theprotective veil of justice” ~af Jochnick and Normand, 1994a:50!. Hi-tech statescan defend hugely destructive, essentially unopposed, aerial bombardment byciting the authority of seemingly secular and universal legal standards. Thegrowing gap between hi- and low-tech means may exacerbate inequalities inmoral capital as well, as the sheer barbarism of “premodern” violence committed


by ethnic cleansers or atavistic warlords makes the methods employed by hi-techwarriors seem all the more clean and legal by contrast.

This fusion of law and technology is likely to propel future American inter-ventions. Despite assurances that the campaign against terrorism would differfrom past conflicts, the allied air war in Afghanistan, marked by record numbersof unmanned drones and bomber flights at up to 35,000 feet, or nearly 7 milesaloft, rarely strayed from the hi-tech and legalistic script. While the attack on theWorld Trade Center confirmed a thousand times over the illegality and inhu-manity of terrorism, the U.S. response has raised further issues of legality andinhumanity in conventional warfare. Civilian deaths in the campaign have beensubstantial because “military objects” have been targeted on the basis of extremelylow-confidence intelligence. In several cases targets appear to have been chosenbased on misinformation and even rank rumor. A liberal reading of dual use andthe authorization of bombers to strike unvetted “targets of opportunity” alsoincreased collateral damage. Although 10,000 of the 18,000 bombs, missiles, andother ordnance used in Afghanistan were precision-guided munitions, the warresulted in roughly 1000 to 4000 direct civilian deaths, and, according to theUNHCR, produced 900,000 new refugees and displaced persons. The Pentagonhas nevertheless viewed the campaign as “a more antiseptic air war even than theone waged in Kosovo” ~Dao, 2001!. General Tommy Franks, who commanded thecampaign, called it “the most accurate war ever fought in this nation’s history”~Schmitt, 2002!.9

No fundamental change is in sight. Governments continue to justify collateraldamage by citing the marvels of technology and the authority of internationallaw. One does see a widening rift between governments and independent humanrights and humanitarian relief groups over the interpretation of targeting anddual-use law. But these disputes have only underscored the ambiguities of human-itarian law. As long as interventionist states dominate the way that the rules ofwar are crafted and construed, hopes of rescuing law from politics will be dimindeed.

References

Beigbeder, Y. ~1999! Judging War Criminals: The Politics of International Justice. New York: St. Martin’sPress.

Belsie, L. ~1999! How War Has Evolved Since World War II. Christian Science Monitor, September 2,p. 1.

Best, G. ~1994! War and Law Since 1945. Oxford: Clarendon Press.Biddle, T. D. ~1994! “Air Power.” In The Laws of War: Constraints on Warfare in the Western World, edited

by M. Howard, G. J. Andreopoulos, and M. R. Shulman, pp. 140–159. New Haven, CT: YaleUniversity Press.

Byers, M., ed. ~2000! The Role of Law in International Politics. Oxford: Oxford University Press.Carr, E. H. ~1946! The Twenty Years’ Crisis, 1919–1939: An Introduction to the Study of International

Relations. London: Macmillan.Clark, R., et al. ~1992! War Crimes: A Report on United States War Crimes Against Iraq. Washington, DC:

Maisonneuve Press.

9 The most rigorous independent accounts of civilian deaths in Afghanistan thus far have been compiled byMarc W. Herold, an economist at the University of New Hampshire; and by Carl Conetta at the CommonwealthInstitute Project on Defense Alternatives. Herold ~2001! estimates that 3767 civilians died in the first two monthsof the allied air war. Conetta ~2002! pegs the count at 1000 to 1300. The Pentagon claims that far fewer civilianswere killed, although it has begun investigations into a number of the air attacks. Human Rights Watch sent alsoa team of investigators to Afghanistan in March 2002 to survey civilian deaths. For a grasp of the moral issuesinvolved in the air war, Nicholas J. Wheeler’s essay on the “war is hell” doctrine as applied to Afghan civilians isindispensable reading ~see Wheeler, 2002!.

Thomas W. Smith 371

Conetta, C. ~2002! Strange Victory: A Critical Appraisal of Operation Enduring Freedom and the AfghanistanWar. Cambridge, MA: Commonwealth Institute Project on Defense Alternatives. Available at@http:00www.comw.org0pda00201strangevic.html#.

Dao, J. ~2001! The New Air War: Fewer Pilots, More Hits and Scarcer Targets. The New York Times,November 29, p. B1.

Doswald-Beck, L. ~1998! Implementation of International Humanitarian Law in Future Wars. NavalWar College Review 52~1!:24–52.

Dyer, G. ~1999! The Future of Air Wars—and Just Wars. Minneapolis Star Tribune, July 4, 17A.The Economist ~2000! Iraq and the West: When Sanctions Don’t Work. April 8, pp. 23–27.Ederington, L. B., and M. J. Mazarr, eds. ~1994! Turning Point: The Gulf War and U.S. Military

Strategy. Boulder, CO: Westview Press.Farmer, P. ~1996! On Suffering and Structural Violence: A View from Below. Daedalus 125~1!:261–274.Feaver, P. D., and R. H. Kohn, eds. ~2001! Soldiers and Civilians: The Civil-Military Gap and American

National Security. Cambridge, MA: MIT Press.Fineman, M. ~1999! The Path to Peace: Yugoslav City Battling Toxic Enemies. Los Angeles Times,

July 6, p. A1.Ford, J. C. ~1944! The Morality of Obliteration Bombing. Theological Studies 5:261–309.Gardam, J. G. ~1993! Proportionality and Force in International Law. American Journal of International

Law 87~3!:391–413.Garratt, D. ~1993! “The Role of Legal Advisors in the Armed Forces.” In The Gulf War 1990–91 in

International and English Law, edited by P. Rowe, pp. 55–62. London: Routledge0Sweet & Maxwell.Gathii, J. T. ~1998! International Law and Eurocentricity. European Journal of International Law

9~1!:184–211.Gellman, B. ~1991! Allied Air War Struck More Broadly in Iraq. Washington Post, June 23, p. A1.Gingras, J. L., and T. Z. Ruby ~2000! Morality and Modern Air War. Joint Force Quarterly

~Summer!:107–111.Glennon, M. J. ~1999! The New Interventionism. Foreign Affairs 78~3!:2–7.Gordon, J. ~1999! A Peaceful, Silent, Deadly Remedy: The Ethics of Economic Sanctions. Ethics &

International Affairs 13:123–142.The Guardian ~2001! They Are Just Covering Their Ass. October 9. Available at @http:00www.guardian.

co.uk0waronterror0story00,1361,565830,00.html#.Hehir, B. ~1996! The Uses of Force in the Post–Cold War World. Washington, DC: Woodrow Wilson

International Center for Scholars.Henkin, L. ~1979! How Nations Behave: Law and Foreign Policy, 2nd ed. New York: Columbia University

Press0Council on Foreign Relations.Herold, M. W. ~2001! A Dossier on Civilian Victims of United States’ Aerial Bombing of Afghanistan: A

Comprehensive Accounting, Media File 21~1!. Available at @http:00www.media-alliance.org0mediafile020-50dossier0herold12-6.html#.

Higgins, R. ~1994! Problems and Process: International Law and How We Use It. Oxford: Clarendon Press.Hoffman, F. G. ~1996! Decisive Force: The New American Way of War. Westport, CT: Praeger.Hoffmann, S. ~1965! The State of War: Essays on the Theory and Practice of International Politics. New York:

Praeger.Howard, M., G. J. Andreopoulos, and M. R. Shulman, eds. ~1994! The Laws of War: Constraints on

Warfare in the Western World. New Haven, CT: Yale University Press.Human Rights Watch ~1998! Human Rights Watch Letter to NATO Secretary-General Javier Solana.

Available at @http:00www.hrw.org0campaigns0kosovo980solana.shtml#.Ignatieff, M. ~2000! Virtual War: Kosovo and Beyond. London: Chatto & Windus.International Criminal Tribunal for the Former Yugoslavia @ICTY# ~2000! Final Report to the

Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against theFederal Republic of Yugoslavia. Available at @http:00www.un.org0icty0pressreal0nato061300.htm#.

Jenkins, S. ~1999! Nato’s Moral Morass: The Manner in Which We Conduct This War DemeansBritish Values. The Times ~London!, April 28, p. 20.

af Jochnick, C., and R. Normand ~1994a! The Legitimation of Violence: A Critical History of theLaws of War. Harvard International Law Journal 35~1!:49–95.

af Jochnick, C., and R. Normand ~1994b! The Legitimation of Violence: A Critical Analysis of theGulf War. Harvard International Law Journal 35~2!:387–416.

Johnson, J. T. ~1975! Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200–1740. Princeton, NJ: Princeton University Press.

Johnson, J. T. ~1981! The Just War Tradition and the Restraint of War: A Moral and Historical Inquiry.Princeton, NJ: Princeton University Press.


Joint Chiefs of Staff @JCS# ~1999! Joint Statement on the Kosovo After Action Review. Available at@http:00www.defenselink.mil0news0Oct19990b10141999_bt478-99.html#.

Kandela, P. ~1991! Iraq: Bomb Now, Die Later. Lancet 337~8747!:967.Keeva, S. ~1991! Lawyers in the War Room. ABA Journal ~December!:52–59.von Kohl, C. ~2000! Priority for Human Rights or for International Law? Human Rights Review

1~2!:88–93.Kritsiotis, D. ~1998! Reappraising Policy Objections to Humanitarian Intervention. Michigan Journal

of International Law 19~4!:1005–1050.Ku, C., P. F. Diehl, B. A. Simmons, D. G. Dallmeyer, and H. K. Jacobson ~2001! Exploring Inter-

national Law: Opportunities and Challenges for Political Science Research: A Roundtable.International Studies Review 3~1!:3–23.

Lauterpacht, H. ~1953! “The Problem of the Revision of the Law of War.” In British Yearbook ofInternational Law, 1952, pp. 360–382. London: Oxford University Press.

Marks, S. P. ~1999! Economic Sanctions as Human Rights Violations: Reconciling Political and PublicHealth Imperatives. American Journal of Public Health 89:1509–1513.

Meron, T. ~1998! Bloody Constraint: War and Chivalry in Shakespeare. New York: Oxford UniversityPress.

Middle East Watch ~1991! Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaignand Violations of the Laws of War. New York: Human Rights Watch.

Myrow, S. A. ~1996–97! Waging War on the Advice of Counsel: The Role of Operational Law in theGulf War. USAFA Journal of Legal Studies 7. Available at @http:00www.usafa.af.mil0dfl0journal0volume70Myrow.html#.

NATO ~1999! Kosovo Crisis Background Briefings. Available at @http:00www.nato.int0kosovo0press0b990508a.htm#.

Paret, P., ed. ~1986! Makers of Modern Strategy from Machiavelli to the Nuclear Age. Princeton, NJ:Princeton University Press.

Pierce, A. C. ~2001! The Ethics of Casualties. Paper presented at the Annual Meeting of the Inter-national Studies Association, Chicago, February 21–24.

Pilger, J. ~1999! Moral Tourism: Whatever Nato Says, The War Was Waged Against Innocent Civiliansand the Tyrant Is Still in Place. The Guardian, June 15, p. 18.

Ratner, S. R., and A.-M. Slaughter ~1999! Appraising the Methods of International Law: A Pro-spectus for Readers. American Journal of International Law 93:291–302.

Reilly, D. ~1999! Peace Through Coercion: The Effect of Foreign Military Intervention on Democ-ratization and War. OJPCR: Online Journal of Peace and Conflict Resolution 2~1!. Available at@http:00members.aol.com0peacejnl02_1reilly.htm#.

Reuters ~1999! Iraq Sanctions Kill Over 1.25 Million People—Paper, December 29.Rizer, K. R. ~2001! Bombing Dual-Use Targets: Legal, Ethical, and Doctrinal Perspectives. Aerospace

Power Chronicles. Available at @http:00www.airpower.maxwell.af.mil0airchronicles0cc0Rizer.html#.Roberts, A. ~1993–94! The Laws of War in the 1990–91 Gulf Conflict. International Security 18~3!:134–181.Roberts, A. ~1999! NATO’s “Humanitarian War” over Kosovo. Survival 41~3!:102–223.Schmitt, E. ~2002! After January Raid, Gen. Franks Promises to Do Better. New York Times, February

8, p. A14.Schmitt, M. N. ~1998! Bellum Americanum: The U.S. View of Twenty-First Century War and Its

Possible Implications for the Law of Armed Conflict. Michigan Journal of International Law19~4!:1051–1090.

Schwartz, N. A., and R. B. Stephan ~2000! Don’t Go Downtown Without Us: The Role of AerospacePower in Joint Urban Operations. Aerospace Power Journal 14~1!:3–11.

Shehabaldin, A., and W. M. Laughlin, Jr. ~2000! Economic Sanctions Against Iraq: Human andEconomic Costs. The International Journal of Human Rights 3~4!:1–18.

Shotwell, C. B. ~1993! Economy and Humanity in the Use of Force: A Look at the Aerial Rules ofEngagement in the 1991 Gulf War. USAFA Journal of Legal Studies 4:15–57.

Simons, G. ~1998! The Scourging of Iraq: Sanctions, Law and Natural Justice, 2nd ed. Basingstoke,England: Macmillan.

Smith, T. W. ~2002! Moral Hazard and Humanitarian Law: The International Criminal Court and theLimits of Legalism. International Politics 39~2!. Forthcoming.

Thomas, W. ~2001! The Ethics of Destruction: Norms and Force in International Relations. Ithaca, NY:Cornell University Press.

Trimble, P. R. ~1990! International Law, World Order, and Critical Legal Studies. Stanford Law Review42~3!:811–845.

U.S. Department of the Air Force @USAF# ~1976! International Law—The Conduct of Armed Conflict

Thomas W. Smith 373

and Air Operations @Air Force Pamphlet 110-31#. Washington, DC: U.S. Government PrintingOffice.

U.S. Department of Defense @DOD# ~1991! Conduct of the Persian Gulf Conflict: An Interim Report toCongress. Washington, DC: Department of Defense.

U.S. Department of Defense @DOD# ~1992! Conduct of the Persian Gulf War: Final Report to Congress.Washington, DC: Department of Defense.

United Nations Development Programme @UNDP# ~2000! Human Development Report 2000. NewYork: Oxford University Press.

Vick, A., et al. ~2000! Aerospace Operations in Urban Environments. Santa Monica, CA: RAND.Walzer, M. ~1992! Just and Unjust Wars: A Moral Argument with Historical Illustrations, 2nd ed. New

York: Basic Books.Watt, D. C. ~1979! “Restraints on War in the Air Before 1945.” In Restraints on War: Studies in the

Limitation of Armed Conflict, edited by M. Howard, pp. 57–77. Oxford: Oxford University Press.Weller, M., ed. ~1993! Iraq and Kuwait: The Hostilities and Their Aftermath. Cambridge: University of

Cambridge Research Centre for International Law0Grotius Publications.Wheeler, N. J. ~2002! Protecting Afghan Civilians from the Hell of War. Paper from the Social

Science Research Council symposium, “After Sept. 11: Perspectives from the Social Sciences.”Available at @http:00www.ssrc.org0sept110essays0wheeler.htm#.

Winter, M. E. ~1990! “Finding the Law”: The Values, Identity, and Function of the International LawAdviser. Military Law Review 128~Spring!:1–34.

Woollacott, M. ~1999! Winged Victory. The Guardian, June 4, p. 19.


Documents

The New Law of War: Legitimizing Hi-Tech and Infrastructural Violence - Thomas W. Smith