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Hi-Tech and Infrastructural Violence
Thomas W. Smith
University of South Florida
This article examines how humanitarian laws of war have been recast in
light of a new generation of hi-tech weapons and innovations in strate-
gic theory. Far from falling into disuse, humanitarian law is invoked
more frequently than ever to confer legitimacy on military action. New
legal interpretations, diminished ad bellum rules, and an expansive view
of military necessity are coalescing in a regime of legal warfare that
licenses hi-tech states to launch wars as long as their conduct is deemed
just. The ascendance of technical legalism has undercut customary
restraints on the use of armed force and has opened a legal chasm
between technological haves and have-nots. Most striking is the use of
legal language to justify the erosion of distinctions between soldiers and
civilians and to legitimize collateral damage. Hi-tech warfare has dra-
matically curbed immediate civilian casualties, yet the law sanctions
infrastructural campaigns that harm long-term public health and human
rights in ways that are now clear.
As Adam Roberts ~1993–94:134! has noted, strategic and legal analyses of armed
conf lict have tended to follow separate paths. Comparing two leading surveys,
Peter Paret’s Makers of Modern Strategy ~1986! and Michael Howard et al.’s The
Laws of War ~1994!, one is reminded of what historians call “tunnel history,” in
which each discipline draws on its own traditions and assumptions, sealed off
from contact with other fields. Fortunately, the wall dividing law and strategy is
beginning to crumble. This is due to the changing character of conf lict as well
as 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, rising
ethnic and substate violence, and ensuing debate over intervention have raised a
number of issues that bridge law and strategy. Students of international law have
grown more politically ref lective as well through the International Relations0
International Law and Critical Legal Studies movements.
Author’s note: An earlier version of this article was presented at the annual meeting of the International Studies
Association in Chicago, February 21–24, 2001. I wish to thank Michael Joseph Smith at the University of Virginia
for his helpful criticism. My thanks also to Deniz , Senol of Istanbul and New York who provided invaluable research
See Ku et al. ~2001! on the need for research that bridges law and politics. Brief ly, the International Relations0
International Law movement seeks to leaven the study of international law with insights from IR regarding the
behavior 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 ref lects and reproduces inequalities in national
and 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 the
law of war, or “humanitarian law.”
The two main instruments of modern human-
itarian law, the Geneva Laws, the legal protections afforded specific classes of
people in wartime; and the Hague Laws, which govern the overall methods of
combat, 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.” Many
international lawyers, too, recognize the precariousness of humanitarian law
amid 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 of
international law.” Recent history, however, seems to refute the tragic view. Far
from disappearing over the horizon, the law of war is invoked more frequently
than ever, and, in the area of human rights and war crimes, is expanding via
statute 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 levels
and types of collateral damage, and high bomber f light 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 has
the conduct of war been so legalistic.
The argument advanced here is that the law of war has f lourished at the cost
of increased artificiality and elasticity. Law has successfully shaped norms and
practices in the areas of warfare furthest from hi-tech tactics. Strides have been
made, for example, in the 1980 United Nations Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons, and the 1997 Con-
vention on the Prohibition of Anti-Personnel Mines. For hi-tech states, these are
relatively low-cost laws. But when modern military necessity calls, the law of war
has legitimized violence, not restrained it. New military technology invariably has
been 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 long
as their conduct is deemed just. The new law of war burnishes hi-tech campaigns
and boosts public relations, even as it undercuts customary limits on the use of
force and erodes distinctions between soldiers and civilians. Modern warfare has
dramatically reduced the number of direct civilian deaths, yet the law sanctions
infrastructural 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 were
inclined “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 is
made that, by so doing, we shall transfer our differences from the turbulent
political atmosphere of self-interest to the purer, serener air of impartial justice.”
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 Bar
Association Standing Committee on Law and National Security ~www.abanet.org0natsecurity! sponsor seminars for
military 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 surrounding
the 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 that
deal with human rights and humanitarian law.
356 The New Law of War
Most international lawyers reject this kind of “realist” skepticism, although
many others readily concede that politics play a significant role in shaping the
structure and content of law ~see Byers, 2000: introduction!. Louis Henkin ~1979:32!
suggested that international law ref lected “prevailing political forces within the
political 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 World
Trade Organization’s vigilant defense of intellectual property—the all-important
“content” of the information age—but its laissez-faire attitude toward sweatshop
labor; the exclusive role accorded the Security Council in convening ad hoc war
crimes tribunals; the tendency for Goliath states to interpret legal obligations in
light of their interests. No longer is international law viewed as a “closed universe
of 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 that
international legal institutions are molded to serve the interests of dominant
states. Just as international law in the nineteenth century buttressed the Euro-
pean Concert system and, later, imperialism, law continues to confer privileges
on powerful countries ~Gathii, 1998!. This is a far cry from legalists and realists
dutifully debating the utility of international law under anarchy. Critical theorists
find law very effective, but contend that the logic and coherence we ascribe to
law actually mirror political interests. Law shapes the popular perception of an
act by imbuing it with the “psychic trappings” of legality, reinforcing a chimera
of shared values and international society and cultivating a sense of obligation to
the “civilized” order. The law lends an air of naturalness or inevitability to the
existing hierarchy of power, wealth, and moral capital. These inequalities are
then “reinscribed” into the law ~af Jochnick and Normand, 1994a:57!.
Much of critical legal theory targets the symbiosis between international law
and state sovereignty. As Phillip Trimble has noted ~1990:833!, “A quick look at
the ‘rules’ of international law shows why governments love @it#. . . . @I#nternation-
al law confirms much more power and authority than it denies.” It codifies
sovereignty, upholds territorial and border controls, economic, regulatory and
tax sovereignty, control over airspace, sea-lanes, natural resources, offshore and
continental shelves, and so on. As globalization blurs the line between domestic
and foreign politics, much of international law maintains the separateness of
these spheres, denying standing to nonstate actors, and smuggling reasons of
state and particular conceptions of legitimacy into seemingly universal rules. The
same can be said of any international organization or legal regime that pits the
interests of sovereign states against the aspirations of cosmopolitans and NGOs.
The use of law to validate the practices of sovereign states is perhaps most
clear 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 “structured
impotence” and “permissive language” of black-letter laws of war have lent a
“façade of legitimacy” to existing wartime practices. “The laws of war have been
formulated deliberately to privilege military necessity at the cost of humanitarian
values.” The Lieber Code ~1863!, adopted during the American Civil War and the
first formal inventory of rules of engagement, set the tone: “To save the country
is paramount to all other considerations” ~Art. 5!; “Military necessity admits of all
direct destruction of life or limb of armed enemies, and of other persons whose
destruction is incidentally unavoidable” ~Art. 15!; “The more vigorously wars are
pursued, the better it is for humanity” ~Art. 29!. af Jochnick and Normand
conclude ~1994a:55! that legal warfare has not been more humane than illegal
warfare. Progress in humanitarian law is a fiction. “The development of a more
elaborate legal regime has proceeded apace with the increasing savagery and
destructiveness 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 is
not merely a set of rules, but is also the bearer of a normative culture. Not so the
law of war, which is construed in a highly technical fashion that risks subverting
its own purpose. Jean Pictet’s standard treatment defines humanitarian law as
that “branch of public international law which owes its inspiration to a feeling
for 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 not
primarily rules governing the technicalities and artifices of a game. They evolved
or have been expressly enacted for the protection of actual or potential victims
of war.” “We shall utterly fail to understand the true character of the law of war
unless we are to realize that its purpose is almost entirely humanitarian in the
literal sense of the word, namely to prevent or mitigate suffering and, in some
cases, to rescue life from the savagery of battle and passion. This, and not the
regulation 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, moral
philosophy, and chivalry. These have been replaced by black letter law, military
discipline, rules of engagement, and “operational law” overseen by battlefield
and 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 about
conduct 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 the
wane since the Renaissance, eroded by the secularization and positivism that
mark “the new science of international law” ~ Johnson, 1975:10!. The emphasis
on conduct is driven by practical reasons as well: ad bellum laws often deal with
inscrutable motives and furtive planning; in bello breaches are easier to uphold
and may even leave a trail of forensic evidence. One can also judge conduct even
when the original legality of a conf lict is in dispute. If law follows practice, the
erosion of jus ad bellum should come as no surprise. There were roughly 690
cross-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 South
Africa’s Apartheid regime, the world turned a blind eye to Pretoria’s frequent
raids into Angola, Namibia, and Mozambique. Turkish troops have entered Iraq
more than 57 times in the past 15 years in pursuit of Kurdish rebels. Attacks
against substate targets have also been routinized. Intervention is often couched
in the language of rescue. As Henkin notes, humanitarian reasons to intervene
are “easy to fabricate,” and every case of intervention has been “justified on some
kind 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 Criminal
Tribunal for Rwanda, and the International Criminal Court, or ICC—has also
given short shrift to jus ad bellum, especially the crime of aggression. The most
comprehensive of these, the ICC Statute, targets genocide, crimes against human-
ity, serious breaches of the laws and customs of war, and aggression. Elements of
358 The New Law of War
the first three crimes are defined crisply in the Statute, which criminalizes “inten-
tionally directing attacks against the civilian population as such” and “extensive
destruction . . . of property, not justified by military necessity.”
The statute was
adopted 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 Security
Council will almost certainly retain control over aggression, even though critics
claim the ICC already is tipped toward Goliath states, at least members of the
Security Council, whom the Statute grants an unlimited number of 12-month
deferrals of the Court’s activities ~Art. 16!. The ICC Statute is also weighted
toward hi-tech states in that machete murder is more likely to be criminalized
than a nuclear holocaust ~weapons of mass destruction are not covered!. As it
stands, the ICC poses no obstacles to modern warfare as long as civilian casual-
ties are unintentional or indirect.
The doctrine of overwhelming or decisive force is firmly ensconced in American
strategic culture ~Hoffman, 1996!. The trope of “lessons learned” in Korea and
Vietnam underpinned the U.S. military buildup in the 1980s and its use in the
1990s. Lubricated by precision weapons, legal renderings of military necessity
have conformed to the doctrine. The view has been quasi-formalized in the
“Powell Doctrine,” articulated by now U.S. Secretary of State Colin Powell, that
military actions should pursue well-defined interests and use overwhelming force.
At stake here are the principles of proportionality and excessive means. Is the
evil 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 overkill
and impunity. Members of the Judge Advocates General’s, or JAG, Corps, the
military’s lawyers, have also had to grapple with new dilemmas of in bello pro-
portionality related to asymmetric warfare. Can a modern fighting force respond
commensurably to ethnic cleansing? Or terrorism? Or cyber attacks? As ad bellum
constraints 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 bombardment of civilian centers is almost inevitable in modern warfare. If
the law is meant to temper these attacks, it has proved pliant. A ban on dropping
projectiles 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 in
Russia, Germany, and France, and the advent of f light, in 1903, in the United
States, technology leaders invariably opposed any legal curbs that might offset
their comparative advantage in warfare ~Watt, 1979:59–61!. The 1923 Hague
Draft Rules on Air Warfare prohibited bombing for the purpose of terrorizing
civilians, destroying nonmilitary targets, or injuring noncombatants. Article 24 of
Article 8, Sec. 2 ~a!~iv! and ~b!~i!. The Statute is available at www.un.org0law0icc0statute. The ICC is a human
rights tribunal, not simply a war crimes tribunal. It will address “widespread and systematic” atrocities which
national courts are unwilling or unable to prosecute. The statute applies whether violations are committed in
international or domestic conf licts, during humanitarian or nonhumanitarian missions, or even during peacetime;
no “nexus” with interstate war is required.
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 rules
were never ratified by any country, although they arguably continue to intimate
norms of conduct. Legal constraints on aerial bombing reached “a tangled and
tragic crisis point” during World War II when the ability for massive bombing
existed, but the ability to discriminate between military and civilian targets did
not ~Biddle, 1994:140!. The statutes governing the Nuremberg and Tokyo tribu-
nals did not criminalize carpet-bombing because both sides had practiced it
While aerial bombing is subject to the general rules of armed conf lict, no laws
govern air attacks per se. Bomber altitudes have not been codified; certain types
of ordnance have not been proscribed for aerial attacks in urban settings; rules
for identifying targets from the air do not exist. American rules of engagement
are derived principally from the 1907 Hague Convention Respecting the Laws
and Customs of War on Land ~“Hague IV”!, including the general limitation of
means ~Art. 22!, avoiding unnecessary suffering ~Art. 23!, prohibiting attacks on
undefended civilian centers ~Art. 25!, and sparing cultural and religious sites,
historical monuments, and hospitals ~Art. 27!. Similar prohibitions are drawn
from the 1907 Hague Convention Concerning Bombardment by Naval Forces
~“Hague IX”!. Finally, rules of engagement cite the 1949 Geneva Convention
Relative to the Protection of Civilians in Time of War ~“Geneva IV”!, including a
series of protections of civilians from “the certain consequences of war” ~Arts.
13–26!. These rules along with legal commentary are collected in Air Force
Pamphlet 110-31, International Law—The Conduct of Armed Conflict and Air Opera-
tions, which concedes that in some cases these civilian protections have been
undermined by “the development of new weapons systems including aircraft and
missiles 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 the
1977 Geneva Protocol I Additional to the Geneva Conventions ~“Protocol I”!,
which was prepared around the same time; indeed, even though the United
States has not signed or ratified it, Protocol I seems increasingly to be the
standard of law American forces strive to meet, suggesting that the mere exis-
tence of more rigorous standards, whether formally acceded to or not, may
inf luence how states act. The “Basic Rule” of Protocol I ~Art. 48! demands that
parties to the conf lict “at all times distinguish between the civilian population
and combatants and between civilian objects and military objectives and . . .
direct their operations only against military objectives.” Specific safeguards apply
to cultural and religious sites ~Art. 53!, survival needs of civilians ~Art. 54!, the
civilian environment ~Art. 55!, and public works ~Art. 56!, as well as medical and
other humanitarian installations. Parties to the conf lict are to take “all feasible
precautions” to verify that civilians are not targeted ~Art. 57!.
The language threading through the Hague and Geneva laws is that civilians
shall 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 foreseen
bad consequences are acceptable as long as they are unintended. Scorned by
Protocol I is available at www.unhchr.ch. The 1977 Geneva Protocol II Additional to the Geneva Conventions
outlines more limited rules on the treatment of civilians in domestic conf licts.
360 The New Law of War
modern ethicists for its artificial treatment of intentions, DDE nonetheless remains
the basis for the legal doctrine of collateral damage, whereby injury to civilian
life 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—even
carefully calibrated uncertainties of air war related to altitude, ordnance, visibil-
ity, and intelligence. To protect pilots and planes from anti-aircraft fire, high
bomber altitudes are favored even though this raises the risk of collateral dam-
age. Just war theorists contend that soldiers hold a different moral status than
that of civilians and thus assume greater risk to life and limb. The Pentagon has
weakened, if not reversed, that assumption. RAND’s Project Air Force found that
the U.S. military favors a “liberal interpretation” of legal duties to avoid collateral
damage, “one that permits an extremely high level of force protection so long as
an appropriate level of accuracy is still ensured” ~Vick et al., 2000:45!.
Distinctions between military and civilian objects are notoriously malleable. If
honored, the law would restrain the kind of low-end violence that marks many
ethnic and civil conf licts. Conversely, hi-tech tactics have had striking success in
minimizing civilian casualties, actually heightening the appeal of aerial bombing.
“Don’t Go Downtown without Us” is the title of a recent Air Force journal article
on bombing urban centers ~Schwartz and Stephan, 2000!. Equally striking, how-
ever, is how civilian protection has been limited to immediate effects, not those
that follow from infrastructural damage or from the lingering results of war. As
Joy Gordon has argued ~1999:132–133! with regard to economic sanctions, the
trend is to shift blame from the agent imposing the sanctions ~or leading the
attack! 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 legal
because civilians died of poisoned drinking water or interrupted medical sup-
plies rather than from direct bombing. Article 8~2!~b!~iv! of the ICC Statute
criminalizes “Intentionally launching an attack in the knowledge that such attack
will cause incidental loss of life or injury to civilians or damage to civilian objects
or widespread, long-term and severe damage to the natural environment which
would be clearly excessive in relation to the concrete and direct overall military
advantage anticipated.” This is a step in the right direction, although prosecutors
will have difficulty proving that attacks were intentional ~especially if the double
effect defense is available!, and were unwarranted on military grounds. As one
ICRC ~International Committee of the Red Cross! lawyer put it, there is “so
substantial 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”
Protecting civilians from direct attack remains the most compelling in bello rule.
Discrimination turns to fiction, however, when extended to electrical grids, water
supplies, and other infrastructure that are the sinews of everyday life. The law of
nations held that war was a contest between states, waged by official, uniformed,
armed forces. In the modern age, as entire economies and societies have been
conscripted 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 what
constitutes a legitimate military target, becoming, in other words, less and less of
a dilemma. Dual use targets increasingly are treated as unambiguous military
targets. 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 “industrial
web” 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 to
induce “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 off
the military effort. ~NATO bombing in the Balkans “arced out” electrical grids
without destroying them permanently.! In an important new study of the norms
of aerial bombing Ward Thomas ~2001:165! argues that while “most military
professionals have internalized the norm that civilians should not be directly
harmed in air attacks, the notion that depriving a population of basic goods and
services can be an effective source of pressure on its government remains an
important part of strategic bombing doctrine.” Tactically, there is also pressure
to attack fixed dual-use targets rather than moving military ones, which even
sophisticated armies have had difficulty striking. In short, twisting dual-use law
has facilitated waging war against civilian societies ~see Walzer, 1992:xix–xx!.
Humanitarian law favors modern militaries. The capacity to carry out surgical
strikes opens a legal divide between technological haves and have-nots. Primitive
militaries cannot compete with their modern counterparts; indiscriminate bomb-
ing seems criminally blunt by contrast. The promise of precision-guided bombs
drives much of American strategic and tactical planning as well as procurement
policies. It is also a boon for public relations officers. Probably the U.S. alone is
capable of waging legal warfare on a vast scale. This was excruciatingly clear
when Russian military leaders defended the crude bombing of Chechnya and the
obliteration of the capital Grozny on grounds that they were parroting NATO’s
tactics in the Balkans. ~A Pentagon post-mortem on Kosovo recommended that
the 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 conf licts. But if hi-tech violence is shielded
from prosecution, this may sap the moral force of the law and allow low-end
offenders to paint themselves as victims of politicized proceedings.
There is growing interest in the public health effects of war. Human rights
advocates, like military lawyers, traditionally have focused on discrete acts of
violence. But public health specialists increasingly view human rights in terms of
the “structural violence” caused by widespread deprivation or social injustice
~Farmer, 1996; Marks, 1999!. This seems apt for judging the lingering effects of
war and the everyday consequences of economic sanctions. While the security
community views sanctions and attacks on infrastructure as limited remedies,
students of human rights find them drastic indeed. The link between human
rights law and public health remains largely an exercise de lege ferenda, i.e.,
For example, claims that NATO committed war crimes during the Kosovo campaign were brought up at the
ICTY. A committee empanelled by the ICTY Prosecutor reviewed evidence and concluded that the collateral
damage wrought by NATO did “not reach the Additional Protocol I threshold,” and that a formal investigation was
therefore not warranted. Citing “widely accepted and reputable legal opinion,” the committee “deliberately refrained
from assessing jus ad bellum issues in @its# work.” See ICTY ~2000!. Relatives of several employees of Radio-Television
Serbia 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 of
Art. 2 ~right to life!, Art. 10 ~free expression!, and Art. 13 ~right to effective remedy!. The ECHR ruled that the case,
Bankovic ˇ v. Belgium ~No. 52207099!, was inadmissible because Article 1 of the convention obliges contracting parties
to respect human rights only within their own jurisdictions.
362 The New Law of War
regarding what the law should be, and not what the law is. The law, in fact, lags
badly. Oblique support is scattered through the European Convention on Human
Rights ~1950! and the International Covenant on Economic, Social and Cultural
Rights ~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 deliberate
destruction of Iraq’s infrastructure and economy could only have had profound
long-term civilian effects. The war was probably the most unbalanced use of
military force in history, as virtually the entire developed world pooled its resources
to destroy one country ~Gardam, 1993:392!. About 3000 Iraqi civilians died in the
war. The aftermath of the conf lict, aggravated by a decade of economic sanc-
tions, has been a humanitarian catastrophe. Iraq fell in the United Nations
Human 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 a
result of the aggregate effects of the war and the embargo. Iraqi epidemiologists
have placed the overall toll at 1.2 million lives.
As Peter Kandela ~1991:967! put
it 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 smart
bombs 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. A
blunt infrastructural war followed. Between January 16 and February 27, 1991,
88,500 tons of ordnance were dropped on Kuwait and Iraq, explosive power
equal to seven Hiroshima-sized atomic bombs. Smart bombs accounted for less
than 10 percent of the tonnage ~Simons, 1998:4!. Unseemly weapons, including
cluster and asphyxiation bombs, were also used. In perhaps the lowest-tech tactic
employed, Iraqi troops entrenched along the “Saddam Line” on the border with
Saudi Arabia were buried alive by Allied tanks. W. Hays Parks, the JAG officer
credited with coining the term “operational law,” argued after the war that
nothing in humanitarian law “prohibits the breaching tactic utilized. . . . @B#ull-
dozing enemy defensive lines has been a common practice of nations ever since
the tank was introduced into warfare” ~Myrow, 1996–97!. Thanks to a tight script
and close media controls, however, the conf lict is best remembered for the
Coalition’s surgical air strikes. The war’s branded image is the video-arcade
footage of a laser-guided missile entering the chimney of an Iraqi Air Force
building and f lattening the place.
The Gulf War is equally a touchstone for modern legal warfare. Colonel
Raymond Ruppert, staff judge advocate for the U.S. Central Command, called
the Gulf War “the most legalistic war we’ve ever fought.” Colin Powell, then
chairman of the Joint Chiefs of Staff, noted, “Decisions were impacted by legal
considerations at every level. . . . @L#awyers proved invaluable in the decision-
making process” ~DOD, 1992:605!. The U.S. Department of Defense interim
report to Congress reported that Coalition forces had “scrupulously adhered to
fundamental law of war proscriptions” in conducting “the most discriminate
military campaign in history,” leaving the impression that the war was “clean and
legal” ~af Jochnick and Normand, 1994b:395, 398!. The final report on the war
See UNDP ~2000!. The Human Development Index measures life expectancy, educational attainment, and
adjusted real income. For Unicef and WHO statistics see The Economist ~2000!. The Iraqi estimate was reported in
Reuters ~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!. At
the ad bellum level, the legal architecture of the UN served as its crafters had
envisioned, the Security Council seamlessly discharging its duties under Chapter
VII of the Charter.
Iraq’s prior disregard for the laws and customs of war placed the Coalition
campaign in sharp legal relief. Historical disputes over the Al-Rumeilah oilfield
and Iraqi claims of cross-border oil drilling by Kuwait deserve more discussion
than they have received, but any past injustice pales beside Iraq’s conduct in this
and other recent conf licts. Iraqi troops used nerve and blister gas in the war with
Iran, and, in 1988, murdered several thousand Iraqi Kurds living in the village of
Halabjah, east of Suleymaniyah. Iraq’s invasion of Kuwait was a classic, cross-
border casus belli. That fact, and the blessing of the Security Council, removed
most ambiguities regarding just cause. Iraqi atrocities in Kuwait have been well
documented ~see DOD, 1992:623–624 and Roberts, 1993–94!. Suffice it to say
that 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 f looded nine million barrels of
oil 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, telephone
exchanges, switching rooms, fiber optic nodes, and bridges that carried commu-
nications cables; air defense systems; air forces and air fields, including aircraft
shelters and personnel bunkers; nuclear, biological, and chemical weapons
manufacturing 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 military
power”; railroads and bridges; Iraqi Army units; and military production and
storage sites. Though not on the original list, water treatment and distribution
systems, food processing plants, irrigation sites, and sewage treatment plants
were also targeted.
To avoid collateral damage, Coalition forces exercised considerable restraint
in target selection and in materiel. Schools, hospitals, and other humanitarian
sites were off limits. Special emphasis was given to the protection of religious and
cultural sites in keeping with Hague IV ~Art. 27!, Hague IX ~Art. 5!, the 1923
Draft Rules on Air Warfare ~Arts. 25 and 26!, the 1954 Hague Convention for the
Protection of Cultural Property, and Protocol I ~Art. 53!, which bars attacks on
“historic monuments, works of art or places of worship which constitute the
cultural or spiritual heritage of peoples.” Customary law applied as well. Coali-
tion leaders were keen not to offend religious sensitivities in the Islamic world
and 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 attack
by parking them adjacent to the 4000-year-old Sumerian temple at Ur, near
Basra. The final report to Congress included line drawings and photographs of
historical and religious sites that were spared ~targeteers overlaid satellite photo-
graphs and tourist maps to locate cultural sites!. Only precision-guided missiles
were used to attack targets in downtown Baghdad, and gunners held fire when
targets could not be positively identified. In the first ten days of the air war, 40
percent of attack f lights were aborted because of poor visibility. Nighthawk
Stealth Fighters f lew 1300 sorties, most over Baghdad, without losing a single
aircraft. These were f lown at night for safety, making identification of targets
harder. Precautions were loosened in attacks on cities outside Baghdad, which
suffered more civilian deaths per capita and greater damage to nonmilitary
structures 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
364 The New Law of War
killed several hundred Iraqi civilians who, unbeknownst to Coalition forces, were
sheltering there; and air attacks, on February 25–27, on military and civilian
traffic retreating north along the road from Kuwait City, what became known as
the “Highway of Death.”
Under the “phased execution” employed by the Coalition, the use of force
escalated as the world public grew inured to the violence. Legality crept toward
necessity 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 final
report with the honest but overwrought claim that “disrupting the electrical
supply to key Iraqi facilities . . . required the disruption of virtually the entire
Iraqi 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!. An
Air Force planner interviewed by the Washington Post noted that attacks on the
electrical grid were meant to send a message to the Iraqi people: “We’re not
going to tolerate Saddam Hussein or his regime. Fix that, and we’ll fix your
electricity” ~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 found
electrical 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-borne
diseases. 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 the
same month, then UN Under Secretary-General Martti Ahtisaari reported “near-
apocalyptic results upon the economic infrastructure.” “Most means of modern
life support have been destroyed or rendered tenuous. Iraq has, for some time to
come, been relegated to a pre-industrial age, but with all the disabilities of a
post-industrial dependency on an intensive use of energy and technology” ~Weller,
The United Nations Environment Program reported that Coalition bombing,
lubricated by an expansive rendering of dual use, resulted in the “complete
destruction” of power stations, water installations, oil refineries, and oil storage
depots. Legal or not, there has been profound and enduring civilian damage.
Drainage water and sewage accumulated, the water table rose, and salinity spiked
in agricultural areas. Destruction of fertilizer plants undercut agriculture. Nomads
have had to negotiate minefields in the Muthanna Directorate. Toxic chemicals
spilled into the soil and aquifers around bombed factories. Food production fell
to 40 percent of prewar levels. Simons ~1998:24–26! recounts a chilling inventory
of chemical pollution caused by aerial attacks of power plants, factories, and
fertilizer plants. This is worse than salting the earth.
Ramsey Clark ~1992! and others have mistakenly labeled these excesses as war
crimes. Even if the long-term effects of the war have been as deadly as if civilians
had been bombed outright, the Coalition rarely strayed from the laws of war.
The same is true of the sanctions regime. Iraqi officials aggravated conditions by
hoarding relief aid and only belatedly accepting the conditions laid down in the
United Nations oil-for-food program, but even proponents of sanctions in lieu of
war have been appalled by deepening poverty and f lagging 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 the
seemingly 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 the
Spring of 1999 confirmed the appeal of hi-tech warfare, even to thwart primitive
human 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 new
kind of human rights realpolitik. NATO bloodied its hands to do justice, in
contrast to the international community’s earlier dithering over Bosnia. Launched
without the imprimatur of the Security Council, the war was perhaps illegal on
ad bellum grounds. That just cause was an issue at all illustrated the growing gap
between 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 armor
for ethnic cleansers instead. The lessons from Kosovo were that force could halt
aggression, that a response should come sooner not later, that it should escalate
violence rather than respond, tit-for-tat, to individual offenses, that intervention
in the Balkans should rely more on NATO and less on unarmed and white-suited
OSCE ~Organization for Security and Cooperation in Europe! peacekeepers
~whom the Bosnians had bitterly referred to as “ice cream men.”! Most important
was the realization that negotiations, coercive diplomacy, and other attempts at
conf lict resolution might fail and violence become necessary.
For others, Kosovo was, at best, a dubious model for redressing widespread
human rights violations. The norm of nonintervention should not have been
abandoned so lightly; proceeding without Security Council writ created an awk-
ward precedent. The American and Continental left were uneasy with the use of
military force, while many in the global human rights movement were dismayed
to 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 a
sustained human rights policy; indeed, the air campaign may even have exacer-
bated violence against Kosovars. The idea that humanitarian aims might be
achieved through such methods amounted to “moral tourism” ~Pilger, 1999!. Not
only did NATO blacken the idea of humanitarian intervention by equating it
with zero casualties and aerial bombing, but the choice of means suggested that
preventing genocidal atrocities was not worth the lives of a few Alliance troops
NATO furiously defended the humanitarian basis of the war and the legality
of its conduct. Spokesman Jamie Shea noted during a press conference the
morning after the Chinese Embassy was struck, “NATO never intentionally tar-
gets civilians. The overwhelming majority of our targets are military targets, all of
them indeed are military targets” ~NATO, 1999!.
Shea’s first sentence was true.
In the second he was dissembling. The Joint Chiefs called the campaign “the
most precise and lowest-collateral-damage air campaign in history” ~ JCS, 1999!.
Stand-off weapons and unmanned aerial vehicles were used to an unprecedented
degree. Bombers unleashed payloads from 15,000 feet, beyond the reach of
anti-aircraft fire. Pentagon officials claimed that improved global positioning
satellites, advances in in-f light navigation, and a new Joint Direct Attack Muni-
tion System, which dropped ordnance from above cloud cover, rendered attacks
even more precise than those during the Gulf War. But it was clear from the
accidental 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,
NATO’s website ~www.nato.int0Kosovo0all-frce.htm! depicts stunning aerial photographs of hundreds of destroyed
targets in Kosovo and Serbia accompanied by descriptions of each day’s activities. This is the most detailed official
history of the Kosovo conf lict publicly available.
366 The New Law of War
intelligence, and legal vetting of targets were not foolproof. The upshot was that
NATO could attack with impunity; not one NATO soldier died in combat. The
conduct of the war also confirmed that old-fashioned chivalry had been eclipsed
by 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 the
rhetoric of discrimination, military necessity edged toward civilian targets. This
was 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 belonging
to political supporters of Milosevic were destroyed in the fumbling hope of
undermining 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 radio
stations and a publishing house were also targeted and destroyed. The number
of approved targets rose in direct proportion to the number of available aircraft.
The campaign was launched with 169 targets and ended with 976. Some targets
were struck repeatedly even after they had been functionally destroyed. Given
the danger of collateral damage, these superf luous strikes “may have been legal,
but @they were# not morally justifiable” ~Gingras and Ruby, 2000:108!. NATO
found 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 Kosovo
reported that a mere 13 Yugoslav Army tanks had been destroyed in the entire
campaign ~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 Pancˇevo, on the outskirts of Belgrade,
left the vicinity so toxic with vinyl chloride, ammonia, mercury, naphtha, and
dioxin that pregnant women there were directed to seek abortions, and all local
women were advised to avoid pregnancy for two years. Ecotoxicologists expect
the 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, but
concluded that the damage did not meet the Protocol I threshold for criminality
~ICTY, 2000!. The ICRC reported that unexploded NATO ordnance has killed or
maimed 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 illness
has been reported in far higher numbers in Iraq, where Britain’s Atomic Energy
Authority 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 the
infrastructural 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 years
for the economy to recover to 1989 levels ~Woollacott, 1999!.
The role of military lawyers in all this has, according to one study, “changed
irrevocably” ~Keeva, 1991:59!. Although liberal theorists point to the broad nor-
mative contours that law lends to international relations, the Pentagon wields
law 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 had
joined in the development and acquisition of weapons systems, tactical plan-
ning, and troop training. In the Gulf War, the U.S. deployed approximately
430 military lawyers, the allies far fewer, leading to some amusing but perhaps
apposite observations about the legalistic culture of America ~Garratt, 1993!.
Many lawyers reviewed daily Air Tasking Orders as well as land tactics. Others
found 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 Operations
Center in Vicenza, Italy, and at NATO headquarters in Brussels approved every
single targeting decision. We do not know precisely how decisions were taken
in either Iraq or Kosovo or the extent to which the lawyers reined in their
masters. Some “corrections and adjustments” to the target lists were made ~Shot-
well, 1993:26!, but by all accounts the lawyers—and the law—were extremely
The exigencies of war invite professional hazards as military lawyers seek to
“find the law” and to determine their own responsibilities as legal counselors. A
1990 article in Military Law Review admonished judge advocates not to neglect
their 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 political
soundness of his interpretation of the law” ~Winter, 1990:8–9!. Some tension
between law and necessity is inevitable, but over the past decade the focus has
shifted 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 “client
culture” among judge advocates. Commanding officers “have come to realize
that, as in the relationship of corporate counsel to CEO, the JAG’s role is not to
create obstacles, but to find legal ways to achieve his client’s goals—even when
those goals are to blow things up and kill people” ~Keeva, 1991:59!. Lt. Col. Tony
Montgomery, the JAG who approved the bombing of the Belgrade television
studios, said recently that “judges don’t lay down the law. We take guidance from
our 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-tech
states 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. The
Defense 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 least
codified portions” of the law of war ~p. 611!, the authors argued that “to the
degree possible and consistent with allowable risk to aircraft and aircrews,” muni-
tions and delivery systems were chosen to reduce collateral damage ~p. 612!. “An
attacker must exercise reasonable precautions to minimize incidental or collat-
eral injury to the civilian population or damage to civilian objects, consistent
with mission accomplishments and allowable risk to the attacking forces” ~p. 615!.
The report notes that planners targeted “specific military objects in populated
areas which the law of war permits” and acknowledges the “commingling” of
civilian and military objects, yet the authors maintain that “at no time were
civilian areas as such attacked” ~p. 613!. The report carefully constructed a
precedent for future conf licts 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
368 The New Law of War
on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
“were not legally applicable” to the Gulf War because Iraq as well as some
Coalition members had not ratified them. More to the point that law follows
practice, the report claimed that certain provisions of Protocol I “are not a
codification of the customary practice of nations,” and thus “ignore the realities
of war” ~p. 616!.
Nor can there be any doubt that a more elaborate legal regime has kept pace
with evolving strategy and technology. Michael Ignatieff details in Virtual War
~2000! how targets were “developed” in 72-hour cycles that involved collecting
and reviewing aerial reconnaissance, gauging military necessity, and coding antici-
pated collateral damage down to the directional spray of bomb debris. A judge
advocate then vetted each target in light of the Geneva Conventions and calcu-
lated whether or not the overall advantage to be gained outweighed any expected
civilian spillover. Ignatieff argues ~2000:198–199! that this elaborate symbiosis of
law and technology has given birth to a “veritable casuistry of war.” Legal fine
print, hand-in-hand with new technology, replaced deeper deliberation about
the use of violence in war. The law provided “harried decision-makers with a
critical guarantee of legal coverage, turning complex issues of morality into
technical issues of legality.” Astonishingly fine discrimination also meant that
unintentional civilian casualties were assumed to have been unintentional, not
foreseen tragedies to be justified under the rule of double effect or the fog of
war. The crowning irony is that NATO went to such lengths to justify its targets
and 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 often
dressed up in patriotic abstractions—Periclean oratory, jingoistic newsreels, or
heroic 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, that
was “applicable” to the Gulf War, as if a surfeit of legal citation would convince
skeptics of the propriety of the war. Instances of humane restraint invariably
were presented as the rule of law in action. Thus the Allies did not gas Iraqi
troops, torture POWs, or commit acts of perfidy. Most striking is the use of legal
language to justify the erosion of noncombatant immunity. Hewing to the legal-
isms of double effect, the Allies never intentionally targeted civilians as such. As
noted, 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 sought
to defend the policy from any charge of attempting to directly attack civilians.”
The Pentagon’s legal narrative is certainly detached from the carnage on the
ground, but it also oversimplifies and even actively obscures the moral choices
involved in aerial bombing. Lawyers and tacticians made very deliberate deci-
sions about aircraft, f light altitudes, time of day, ordnance dropped, confidence
in intelligence, and so forth. By expanding military necessity to encompass an
extremely prudential reading of “force protection,” these choices were calculated
to protect pilots and planes at the expense of civilians on the ground, departing
from 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 that
uncertainty has been lifted by technology and precision law. Similarly, in Iraq
and in Yugoslavia the focus was on “degrading” military capabilities, yet a loose
view of dual use spelled the destruction of what were essentially social, economic,
and political targets. Coalition and NATO officials were quick to apologize for
accidental civilian casualties, but in hi-tech war most noncombatant suffering is
Does the law of war reduce death and destruction? International law certainly
has 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. On
the ad bellum side, the erosion of right authority and just cause has eased the
path toward war. Today, foreign offices rarely even bother with formal declara-
tions of war. Under the United Nations system it is the responsibility of the
Security 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 were
less accommodating, greater effort might be devoted to diplomacy and war
might be averted. On the in bello side the ban on direct civilian strikes remains
intact, but double effect and military demands have been contrived to justify
unnecessary civilian deaths. Dual use law has been stretched to sanction new
forms of violence against civilians. Though not as spectacular as the obliteration
bombing to which it so often is favorably compared, infrastructural war is far
deadlier than the rhetoric of a “clean and legal” conf lict suggests. It is true that
rough estimates of the ratio of bomb tonnage to civilian deaths in air attacks
show remarkable reductions in immediate collateral damage. There were some
40.83 deaths per ton in the bombing of Guernica in 1937 and 50.33 deaths per
ton in the bombing of Tokyo in 1945. In the Kosovo campaign, by contrast, there
were 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 the
staggering long-term effects of the war in Iraq, for example, aerial bombing
looks anything but humane.
For aerial bombers themselves modern war does live up to its clean and legal
image. While war and intervention have few steadfast constituents, the myth of
immaculate 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 even
greater military concern. A new survey of U.S. civilian and military attitudes
found that soldiers were two to four times more casualty-averse than civilians
thought they should be ~Feaver and Kohn, 2001!. By removing what is perhaps
the greatest restraint on the use of force—the possibility of soldiers dying—law
and 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 in
Carlisle, PA. “Precision-guided munitions make it very much easier to go to war
than it ever has been historically.” Albert Pierce, director of the Center for the
Study of Professional Military Ethics at the U.S. Naval Academy argues, “standoff
precision weapons give you the option to lower costs and risks . . . but you might
be tempted to do things that you might otherwise not do” ~Belsie, 1999!.
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 is
missing 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-tech
violence. Not only does the law defer to military necessity, even when very
broadly defined, but more importantly it bestows on those same military demands
all the moral and psychological trappings of legality. The result has been to
legalize and thus to justify in the public mind “inhumane military methods and
their consequences,” as violence against civilians is carried out “behind the
protective veil of justice” ~af Jochnick and Normand, 1994a:50!. Hi-tech states
can defend hugely destructive, essentially unopposed, aerial bombardment by
citing the authority of seemingly secular and universal legal standards. The
growing gap between hi- and low-tech means may exacerbate inequalities in
moral capital as well, as the sheer barbarism of “premodern” violence committed
370 The New Law of War
by ethnic cleansers or atavistic warlords makes the methods employed by hi-tech
warriors 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 differ
from past conf licts, the allied air war in Afghanistan, marked by record numbers
of unmanned drones and bomber f lights at up to 35,000 feet, or nearly 7 miles
aloft, rarely strayed from the hi-tech and legalistic script. While the attack on the
World Trade Center confirmed a thousand times over the illegality and inhu-
manity of terrorism, the U.S. response has raised further issues of legality and
inhumanity in conventional warfare. Civilian deaths in the campaign have been
substantial because “military objects” have been targeted on the basis of extremely
low-confidence intelligence. In several cases targets appear to have been chosen
based on misinformation and even rank rumor. A liberal reading of dual use and
the authorization of bombers to strike unvetted “targets of opportunity” also
increased collateral damage. Although 10,000 of the 18,000 bombs, missiles, and
other ordnance used in Afghanistan were precision-guided munitions, the war
resulted in roughly 1000 to 4000 direct civilian deaths, and, according to the
UNHCR, produced 900,000 new refugees and displaced persons. The Pentagon
has nevertheless viewed the campaign as “a more antiseptic air war even than the
one waged in Kosovo” ~Dao, 2001!. General Tommy Franks, who commanded the
campaign, called it “the most accurate war ever fought in this nation’s history”
No fundamental change is in sight. Governments continue to justify collateral
damage by citing the marvels of technology and the authority of international
law. One does see a widening rift between governments and independent human
rights and humanitarian relief groups over the interpretation of targeting and
dual-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 of
war are crafted and construed, hopes of rescuing law from politics will be dim
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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: Yale
Byers, M., ed. ~2000! The Role of Law in International Politics. Oxford: Oxford University Press.
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