Collateral damage on the 21st century battlefield: enemy exploitation of the law of armed conflict, and the struggle for a moral high ground.

• Author: Reynolds, Jefferson D.

I. INTRODUCTION

Whoso obeyeth Allah and the messenger, they are with those unto whom Allah hath shown favor, of the prophets and the saints and the martyrs and the righteous. The best of company are they.

The Koran, Surah IV, Ayah 69

Subordinate only to a state's decision to wage war, effective targeting of the adversary is the most important and decisive part of successful warfare. Target selection requires military planners and strategists to develop tactical, operational and strategic target sets that destroy the adversary's centers of gravity to compel capitulation, surrender or defeat. Although collateral damage (1) has historically been an important factor in the targeting cycle, its prominence and visibility have grown as battlefield tactics become more antagonistic and less aligned with humanitarian interests and the law of armed conflict (LOAC). The avoidance of collateral damage can even be determinative for nations like the United States (U.S.) who value LOAC. (2) A decision based on avoidance becomes problematic where key objectives cannot be targeted because of an adversary's invitation or fabrication of collateral damage to discredit operations. Any targeting decision must be premised on LOAC; however, a decision based on avoidance must carefully evaluate the loss of initiative and tactical superiority, the increasing and persistent nature of these events in the context of a well organized strategy, and the effect on tactical, operational and strategic objectives. Adversaries will improve methods to effectuate collateral damage in an effort to complicate attack planning, promote disinformation campaigns, deter attack, exploit humanitarian interests and, ultimately, improve survivability.

This study illustrates a rising trend in the frequency and severity of adversary violations of LOAC and humanitarian principles to gain a strategic advantage. A proposed solution to this problem requires attacking target sets that are prohibited according to some humanitarian interest groups, improving awareness and understanding of collateral damage, promoting the application of emerging technology, including non-lethal technology, and the use of aggressive information campaigns designed to expose deceptive reports of collateral damage. The study is divided into six sections. Part II provides a parallel review of U.S. targeting strategy, collateral damage, civilian immunity, and the development of LOAC. Although a number of significant incidents of collateral damage are reviewed, this section is not intended to be exhaustive for each conflict studied. Rather, this section illustrates particular events, strategies and principles that contribute to an analysis of LOAC and collateral damage. Part III discusses the application of LOAC to different types of adversaries. With an emphasis on the International Criminal Court, Part IV describes significant problems associated with the prosecution of crimes involving collateral damage. Part V illustrates that violations of LOAC and strategies provoking collateral damage provide the greatest assurance of survival and strategic success for adversaries. Part VI examines specific targeting principles of LOAC, and demonstrates that attempts to reduce the number of permissible target sets may result in greater danger to the civilian population. This section also examines methods to effectively counter an adversary's attempts to discredit operations where collateral damage occurs.

II. THE HISTORICAL DEVELOPMENT OF TARGETING STRATEGY, CIVILIAN IMMUNITY, AND CONCEALMENT WARFARE

"War is an act of force to compel our enemy to do our will.... [A]ttached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it." (3) Carl von Clausewitz In the early 19th century, Clausewitz surmised that warfare was a "true political instrument" to achieve the political objectives of the state waging war. (4) Although Clausewitz may have understated the effect of international law and custom in his conclusions, he recognized that the social condition of the states at war and their relationship to one another gave rise to some restraint. (5) The concept of restraint in warfare did not necessarily evolve from a philosophy of compassion and progressive ideology. More than likely, it evolved out of the necessity to spare resources and labor as a reward for conquest. Virtually all cultures throughout history have exercised restraint and rules of engagement at some level. (6) Even before the fifth century B.C., Greek combatants adopted normative rules of engagement referred to as the common customs of Hellenes or koina nomima, that specifically referenced the immunity of civilians in war. (7) Appreciated for their value in new regimes, labor and resources were often spared for their economic benefit. (8) Civilian immunity is a universally accepted principle in the international community, but the degree of compliance has varied drastically since the fifth century B.C. For example, Clausewitz advocated the targeting of civilian populations because it provided psychological and political advantages to the larger strategy of defeating the will and morale of the adversary. (9) Although direct targeting of civilian populations was widely exercised in the 20th century, prohibition of this practice pursuant to custom and LOAC is now more widely observed. (10) The amplified sensitivity to civilian casualties and other collateral damage, combined with increasing pressure from humanitarian interest groups to categorically exempt certain civilian object target sets from attack, should concern military strategists because of the rising incidence of warfare involving the use of the civilian population for shielding, sanctuary and deception. These asymmetric methods of warfare are described in this study as "concealment warfare." Concealment warfare promotes target aversion and protracted conflict that potentially results in a higher incidence of both military and civilian casualties.

1. The Early Philosophy of Civilian Immunity

   Western warfare has been largely defined by Christian ethics developed between the Middle Ages and the Renaissance. (11) St. Augustine, (12) Thomas Aquinas, (13) Francisco Suarez, Alberico Gentili, Francisco de Vitoria, (14) and later Hugo Grotius and Emerich de Vattel (15) were initially occupied with defining the just war (jus ad bellum), and determining under what conditions war could be declared by a state. (16) One of their collective premises, that war can only be declared by a legitimate authority for reparations or restoration of something lost, is still well recognized in the international community. (17) After the establishment of principles of jus ad bellum, attention was turned to the just method of war jus in bello). Presently receiving the greatest emphasis of study, the methods and strategies of warfare have been the subject of wide debate for centuries, and will likely be central to the discussion of law and war so long as military strategists are driven by tactical creativity and the development of new technology. Notwithstanding the dynamic nature of the modern study of the subject, even the earliest scholars generally recognized that civilians should not be deliberately attacked. However, their incidental targeting was acceptable as a by-product of an attack on a legitimate military objective. (18) In addition, it was customary that the amount of force be proportionate to the objective achieved. (19)

2. Early Codification of Civilian Immunity

   Although the customs of LOAC were recognized in 15th-17th century America, (20) it wasn't until the height of the Civil War that the U.S. would codify the protection of civilians. The year 1863 most clearly marks the division between the era of customary LOAC and codified LOAC. In that year, the U.S. would adopt its first comprehensive code for the conduct of land warfare in Army General Order No. 100, Instructions for the Government of Armies of the United States in the Field, authored by Dr. Francis Lieber of Columbia College. Commonly known as the Lieber Code, the U.S. developed the rules in response to alarming violations of customary laws of war during the Civil War that amounted to domestic terrorism. (21) These events could not be adequately resolved with traditional state and federal law. The Lieber Code specifically prohibited the targeting of civilians and civilian objects. It also recognized that collateral damage should be avoided, but was acceptable if it was the result of an attack on a legitimate military objective. (22) The Lieber Code articulates basic principles of the law of war, including the principle of military necessity in Articles 14 and 15. "Military necessity [consists of] ... those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war." Further, "Military necessity admits of all direction of destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable...." (23) Lieber defined the principle of distinction when he stated, "the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit." (24) Finally, Lieber explained that even though war is naturally between sovereign states, citizens may be categorized as the enemy by virtue of their constituency, and therefore endure both the hardships and benefits of war. (25) The Lieber Code represented the prevailing custom of the time--although civilians should not be subject to direct attack, they were not categorically immune. Developing and adopting the first manual for soldiers on the laws of war, the U.S. had the remarkable distinction of creating a cornerstone for the law of war with the Lieber Code. The manual was adopted by Germany, France and Great Britain, and inspired...