Discussion

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Modem Technology: Is There An Obligation to Use It?

Brian O'Donnell:1

We had some discussion on the precision-guided munitions issue and I'd like to turn that to the targeting analysis issue for collateral damage purposes.

Colonel Montgomery's presentation yesterday discussed the highly technical nature of some of the new technology that we've used to determine the blast patterns of buildings whether it's going to be walls falling in, walls falling out and so forth. Are we establishing in the panel's opinion-probably Hays Parks would be the best person to answer this-a new standard that if we don't take advantage of that new technology in future operations, then we have failed to utilize all reasonable means to minimize collateral damage? W. Hays Parks:

I don't know enough about the formulas for determining how many civilians are likely to be inside an objective or how many collateral civilian casualties there may be. I will note that years ago I looked at the Top Secret original target package for North Vietnam. It was written in August of 1964 and gave an estimate that there were 2.7 persons living in each structure. I feel sorry for that.7 person whoever that may be. I'll let Tony Montgomery really respond more to that, but I feel that we know what munitions can do. The JDAM that we have is very well developed, quite sophisticated. So I feel fairly good about that side of it provided you have accurate delivery. I have not seen the formulations for how we determine that there's going to be X number of civilians in a particular structure or how likely it is we'll have X amount of collateral civilian casualties. I do think that we may be again creating expectations there 1. Lieutenant Commander, United States Navy; International Law Advisor, Naval Warfare Development Command.

that when these formula do not work, people will look at them in the most negative fashion.

Mike Newton:2

In fulfilling the obligation of the law to take all feasible measures, it's easy to jump to precision-guided munitions which I think is what the media and much of the public has done. But in point of fact, I think the targeteers and our Air Force colleagues would agree that what really is done is an assessment of how to weaponeer a target, how to attack it, when to attack it in the way most likely to minimize collateral damage. I would give you just one example-the MUP [Yugoslav Ministry of Internal Affairs police forces] police station in Jackavitza. If you attacked it on an east-west axis, there were four-story civilian apartment buildings on either side. They didn't do that. They attacked it with five hundred pound dumb bombs on a north-south access.

There's a big bomb crater in the road in front of the building. The building is devastated. There's a big bomb crater in the parking lot behind the building.

Beautiful weaponeering, and the civilians on either side weren't affected-the windows weren't even broken. I think that's an example of the kinds of things that US militaries do precisely to minimize collateral damage which lead into a question really for the panel as a whole.

Human Shields: Can Abuse of the Law of War Be a Force Multiplier?

Mike Newton:

There was press reporting on the attack on the RTS station where, when you look at what happened, the US military took steps to minimize collateral damage. It was press reporting that in fact Slobodan Milosevic had advance notice of the attack on the RTS station and the casualties that were caused were caused by the fact that he took people, rounded them up and locked them in the station-literally locked them into the station-as a propaganda vehicle to then exploit to the world media, which he did successfully. I mean the very fact that people perceive of that as an unlawful attack; the very fact that we're still discussing it is, I think, an indicator of Milosevic's success.

If you do go down the road of pursuing future legal developments, how do you envision using the law? I mean it's pretty clear to me that people are using the laws as a force multiplier to actually assist an unethical defendant. How 2. Lieutenant Colonel, United States Army; Office of War Crimes Issues, Department of State.

would you guard against that because very clearly that's what we're seeing in the practicality on the ground-an unethical defender is using the law as a way to limit and constrain the attacker even when the attacker is making a huge effort to comply with the law? So how would you address that as a matter of law if you do try to come up with an additional protocol or further targeting restrictions? W. Hays Parks:

I think the one thing that I would look at if we were rewriting additional Protocol I, I would make it a grave breach to use human shields. I think that's not in there. You could perhaps interpret that from using the grave breach provision of the Civilians' Convention if you're on occupied territory. But if you're not, I think the dilemma you have is that some nations felt then and feel now that if I can draft my men and women into my military and have them die in my defense, I can use my civilians the same way. If those are civilians of another country-as happened both I think in Yugoslavia and also happened in Iraq in 1990 when hostages were taken and used as human shields-then you have a grave breach of Article 147. I think, however, we still have the unresolved dilemma that existed at the time of negotiation of Additional Protocol I as to what extent can the leadership of an enemy nation use its own population as human shields.

John Murphy:

The only comment I'll make on the situation that's been posed here is that it illustrates the difficulty of getting the facts straight in an armed conflict.

Part of the problem in the situation you pose is that Mr Milosevic was successful in getting a certain element of the press to believe the story and that if all the facts had come out, then there really would have been no valid charge that the United States forces had violated the law of armed conflict. In fact, quite the contrary would have been charged. But of course getting the facts straight during any crisis, certainly during armed conflict, continues to be a major-perhaps irresolvable-problem.

Yves Sandoz:

The problem is not so much a need to change the law but to implement it.

There are too many violations; but it's not drafting new laws that will change this. We have to find better ways to react to violations of the law. That is the key issue.

Michael Bothe:

I must admit, I have not quite seen where this problem of human shields comes in. This is in violation of the laws of war certainly. In Yugoslavia, this is a subject for the jurisdiction of the ICTY. As it is a violation of the laws of war, it comes under the definition of the crimes which are subject to the jurisdiction of that Court under Article 3 of the Statute of the ICTY. Having said that, I entirely agree that much more attention should be paid to this current practice.

Do We Need An Additional Protocol For Humanitarian Intervention?

Christopher Greenwood:

This question is for Ove Bring regarding his proposal for drafting an additional protocol for humanitarian interventions. Which body of...