Commentary: W.Hays Parks

• Author: W.Hays Parks
• Pages: 281

t is the role of a commentator to comment on the program offered, the topic before the panel, or the papers offered before that panel. While my emphasis will be on the latter, necessarily it will range over all three.

The premise for this conference-lessons learned from Operation Allied Force, the NATO air campaign against Serbian forces in Kosovo-raises many questions. Allied Force may be a classic example of the adage, 'Bad cases make bad law,' with few valid lessons. As NATO's first military operation, a prime objective was keeping the nineteen-member alliance intact. Another was continuation of the Clinton Administration's objective in each of its peace operations after Somalia of using military force, but with the admonition to commanders to 'do no harm,' a flawed philosophy akin to wanting to make an omelet without breaking any eggs. In Allied Force, uncommon steps were taken by NATO forces to reduce to an absolute minimum collateral civilian casualties and collateral damage to civilian objects, and in some instances avoiding Serbian military casualties as well.1 These steps could be 1. This generated considerable criticism in the official Air Force evaluation. See HEADQUARTERS UNITED STATES AIR FORCE, INITIAL REPORT: THE AIR WAR OVER SERBIA,

AEROSPACE POWER IN OPERATION ALLIED FORCE pp. x, 54 (2000). Of particular note is the following (p. x):

Traditionally, air planners have assumed that political conditions will allow the most efficient employment of aerospace power, giving planners the latitude to optimize survivability, target effects, and and collateral damage considerations. During the air war over Serbia, such latitude did not exist. Not all members of the 19-nation Alliance would have accepted the intensity and violence required to fight this war if military planning had followed optimum Air Force doctrine. As long as Serbia was unable to inflict significant Allied casualties, NATO accepted some operational inefficiencies associated with those political restraints.

taken because the United States and one or two of its allies had the capability to do so, not because they necessarily felt legally obligated to do so. Professor Murphy's articulation of the essential elements of the customary international law process would indicate that these voluntary actions offer little, if any, precedent as to future law of war interpretation.2

The questions my two colleagues were asked are somewhat troubling, as they limit the scope of the inquiry. Specifically, they focus entirely on the obligations of the force engaged in offensive operations, to the neglect of the defending ground force.3 This flows in part from the incorrect, perhaps intentional, use of the word 'attacks' in the 1977 Additional Protocol 14 to refer to actions taken either by an attacker or defender.5 Use of 'attacks' to refer to acts of defense is etymologically inconsistent with its definition and customary use in any of the six official languages of Additional Protocol I, a point conceded in the Official Commentary of the International Committee of the Red Cross.6 Limiting the definition of attacks to 'acts of violence against the adversary' is inconsistent with the customary law principle of distinction, partially codified in Article 48,7 and other provisions of Additional Protocol I that prohibit the use of the civilian population or individual civilians as human 2. See Professor Murphy's paper in this volume.

3. This unfortunate and incorrect effect is demonstrated in articles critiquing Operation Allied Force. See, for example, Peter Rowe, Kosovo 1999: The air campaign, 82 INTERNATIONAL REVIEW OF THE RED CROSS 147 (2000) and A. Rogers, Zero-casualty warfare, 82

   INTERNATIONAl REVIEW OF THE RED CROSS 165, 176 (2000). The former examines only the efforts of the attacker to reduce collateral civilian casualties, while the latter offers only three sentences on the obligation of the defender.

4. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3,

   DOCUMENTS ON THE LAWS OF WAR 422 (A. Roberts and R. Guelff eds., 3d. ed. 2000) [hereinafter Protocol I].

5. Article 49, paragraph 1 of Additional Protocol I states, ''Attacks' means acts of violence against the adversary, whether in offense or defense.' 6. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, at 603 (Yves Sandoz et al. eds., 1987).

7. Article 48 states: 'In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.' Using the term 'Parties to the conflict' rather than 'States Parties' (to the Protocol) ignores the customary law obligation of a government to take reasonable measures to separate military objectives from civilian objects, and vice versa, in peacetime and war.

   shields.8 That this definition was the beginning of a slippery slope to erode the customary law principle of distinction is evident not only in the questions framed for this session, but also in the answers of the two primary presentations. Professor Murphy notes this inconsistency. Others, including some of the sources he cites, have failed to do so.

   This second point is offered to emphasize a concluding comment of Professor Murphy. As he notes,9 it is ironic that a nation committed to the rule of law, that has spent billions of dollars-in all likelihood more money than all other nations combined-to develop the most sophisticated target intelligence systems, weapons systems capable of the most accurate weapons delivery, precision-guide munitions, that provides the best training for the men and women who operate them, and employs a multi-level, redundant, disciplined target approval process, has its operations placed under a post-conflict microscope, while the illegal actions of its opponent in using human shields, and gross violations of the law of war in other conflicts occurring simultaneously around the world, are ignored. It is doubtful that others who purport to follow the rule of law could have conducted the same campaign with fewer collateral civilian casualties. This 'Do as I say, not as I can't do' approach 8. Article 51, paragraph 7 states:

   The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

   Article 58 provides:

   The Parties to the conflict shall, to the maximum extent...