Arms and the Law

by Scott L. Silliman

With the bombing campaign in Afghanistan nearing the end of its second week, American pilots now have authority to select their own targets within specified "kill zones" in and around Kabul and Kandahar, meaning they may strike at any military target found within those particular areas.

Coincidental with this broadened targeting authority, the Pentagon is having to acknowledge that a warehouse used by the International Committee of the Red Cross and containing foodstuffs and other supplies was bombed in error. This comes several days after a wrong number was entered into a bomb’s targeting coordinates, causing it to strike civilian homes almost a mile from its intended military objective -- a helicopter sitting on a runway in Kabul.

Are these indications that the distinction between military and non-military targets is being blurred? Are our attacks on cities in Afghanistan becoming more indiscriminate? I don’t think so.

As long as there is a demonstrated continuing threat of terrorist attacks against this country, we have the lawful right to use armed force in self-defense against those who threaten us, be they terrorist leaders or harboring states. This right of self-defense is tempered only by the required showing of necessity and proportionality. Our response must be necessary in that no other measure short of armed force will deter the threat, and it must be proportional in that incidental injury to civilians or damage to civilian property must not be excessive when compared to the concrete and direct military advantage anticipated. The regrettable targeting errors of this past week should not cast doubt upon our longstanding commitment to use only precise and proportional force.

Few may realize that the rule of law has been an integral part of American combat decision-making for at least the last 25 years. It was best illustrated during Operation Desert Storm in 1991, when judge advocates -- uniformed military attorneys -- actually deployed with our armed forces and worked side by side with commanders and mission planners to ensure that each site chosen for attack was an appropriate military target under international law. On many occasions, our warplanes returned from missions over Iraq with weapons still on board because there was no approved secondary target after the primary one was scrubbed because of weather or other operational factors.

The same adherence to the rule of law was demonstrated during Operation Allied Force in Kosovo, and I believe it is also reflected in the current combat operations in Afghanistan. There is a story circulating that the Taliban’s supreme leader, Mullah Mohammed Omar, could possibly have been targeted and killed during the first night of bombing, but that the U.S. Central Command Commander, General Franks, chose not to make the attempt because it would have resulted in an excessive number of "collateral" civilian deaths. If the story is true, I submit that the decision was a correct one, regardless of how much it might appear to have been an opportunity wasted.

We have heard on many occasions that the "war against terrorism" is a different type of war, comprised not only of military strikes but also intense intelligence efforts, international diplomacy, economic sanctions and seizures of assets, and a variety of other components. Because this is such a different type of "war," some generally accepted legal principles may not automatically apply. The Geneva Conventions, for instance, govern interstate conflict and therefore seem inapplicable. Even common Article 3 of those conventions, meant to provide some protection in a conflict not of an international character, is probably not invoked.

But regardless of the lack of clarity in the law’s application, the United States, as a matter of official policy, will follow the law of armed conflict in its combat operations, no matter how the conflict is characterized. One of the essential elements of the law of armed conflict is the principle of distinction -- that the civilian population and civilian objects must be protected and only military objectives targeted. Notwithstanding bombs which have gone awry, or may do so in the future, our commitment to this principle remains firm.

We are, and always have been, a nation under the rule of law. Whether in ground engagements or in the skies over Afghanistan, that will be, as it should be, our resolve and our creed.