Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003

• Author: Charles J. Dunlap, Jr
• Position: Major General, United States Air Force
• Pages: 139-154

VIII

Come the Revolution: ALegal Perspective on

Air Operations in Iraq since 2003

Charles J. Dunlap, Jr.*

Introduction

Hasthe early part ofthe twenty-first century shown the most dramatic revolu-

tion in the role oflaw in armed conflict in history? 1Evidence suggests that it

has. Today, for example, allegations about civilian casualties often dominate our dis-

cussions about strategy in irregular war, itself aphenomenon that, according to the

National Defense Strategy, will preoccupy our military services for years to come.2

Indeed, as will be discussed below in more detail, adherence to law in armed

conflict fact andperception is increasingly acentral, ifnot defining, concern of field

commanders, as well as military and civilian leaders at every level. It is appropriate

then to pause for amoment and discuss our experiences in Iraq since 2003, and to

see what lessons we should—and should not—draw from them. Of course, there

are many aspects ofthe role oflaw—and lawyers—but this paper will confine itself

to some of the issues that arose from the use of airpower.

Combat Operations

Perhaps the most dramatic change during the major combat operations (MCO)

phase of Operation Iraqi Freedom (OIF) 3that impacted adherence to the law of

*Major General, United States Air Force. The views and opinions expressed are those of the

author alone and not necessarily those ofthe Department ofDefense or any ofits components.

Come the Revolution: ALegal Perspective on Air Operations in Iraq since 2003

armed conflict (LOAC) was the vast increase in precision-guided munitions

(PGMs)4employed by coalition air forces (even though their employment is not, per

se, required by LOAC).5During 1991's Operation Desert Storm, just 8percent of the

air-delivered bombs and missiles were PGMs.6By contrast, during the MCO phase

of OIF that percentage rose to nearly 68 percent.7Today, virtually all are PGMs.

PGMs provided unique opportunities to minimize the risk to civilians and their

property, acentral aim of LOAC. Consider this 2003 report from Time magazine

about the early phases of OIF:

Judging from the look ofthe [OIF] battlefields today, the bombing was largely surgical.

In the open market in Mahmudiyah, five tanks were hit from the air while they were

parked in alleyways so narrow that their gun turrets could not be turned. The

storefront windows afew feet away were blown out, but otherwise the surrounding

buildings are intact.8

Besides PGMs, something of amore strategic mindset was at play during OIF. In

short, simply because aparticular target might lawfully be struck, that did not mean

that it would be attacked. In fact, "hundreds of bridges, rail lines, power stations

and other facilities" as well as "communication nodes and afew leadership sites"

were spared.9

The targeting restraint demonstrated not only abetter understanding of legal

and moral imperatives, but also the practicalities of twenty-first- century opera-

tions. For example, one aviator observed that "[a] lot of care was put into selecting

only those valid military targets that were absolutely essential to assist in taking

Baghdad and securing the country" because planners knew that "anything destroyed

from the air, like Iraqi roads, bridges, and power-generating stations, would have

to be rebuilt during the post-war period." 10

It appears that this pragmatic mindset, along with the revolutionary new muni-

tions technologies, helped OIF air operations adhere to LOAC. Even Human Rights

Watch (HRW), in its December 2003 report entitled Off Target: The Conduct of the

War and Civilian Casualties in Iraq, gave alargely favorable assessment to the air

campaign. 11 Although highly critical of leadership targeting and the use of cluster

munitions, HRW nevertheless acknowledged that coalition forces "took significant

steps to protect civilians during the air war." 12 In particular, HRW concluded that

"air strikes on preplanned fixed targets apparently caused few civilian casualties,

and ... air forces generally avoided civilian infrastructure." 13

Despite an initially slower pace of kinetic air operations after 2003, 14 the Air

Force continued to develop technologies to enhance the ability to apply force with

great discretion. While the MCO phase did feature a"far greater use of overhead

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