Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

Another disagreement between the United States and its allies involves a new form of expansive arms control. Traditionally, only a few weapons--those causing severe and unnecessary suffering--were banned from warfare. Beginning in the late 19th century, for instance, exploding or "dum-dum" bullets were forbidden since they caused far more terrible wounds than necessary to render a soldier hors de combat. The same logic was applied to the use of poison gas after World War I and biological weapons in the post-World War II period. In contrast, numerous negotiations are taking place today to ban whole categories of existing weapons systems and to stifle the development of new ones. For example, most of the United States' NATO allies have signed and are moving towards ratification of the 1997 Ottawa anti-landmine Convention. From the American perspective, however, landmines when deployed properly represent an essential part of its defensive posture in Korea and have a proven ability to perform such critical military tasks as "airfield denial" or blockading WMD-related facilities with minimal collateral damage. It is ill-trained Third World militaries, which have not paid the slightest heed to jus in bello strictures (and which are unlikely to be swayed by the Ottawa Convention) which have misused landmines and caused such large numbers of casualties among civilians. Meanwhile, the fact that the Convention exempted certain dual-use mines used by the European militaries made the whole enterprise appear hypocritical as well.

Similarly, efforts are underway to ban, or to interpret existing legal standards to criminalize, weapons such as cluster munitions and depleted uranium projectiles, as well as to block the development of new military technologies like lasers or unmanned robotic systems, and strategies including attacks on electronic information nodes. Ironically, many of these technologies have the potential to reduce the amount of collateral damage in war--a major goal of Protocol I--or have already done so when used in combat. Yet the use of both cluster bombs and depleted uranium projectiles were among the allegations of wrongdoing considered by the prosecutor for the International Tribunal for Yugoslavia after the 1999 Kosovo campaign. The prosecutor's office correctly concluded that there was no current "consensus" that the use of these weapons violates the laws of armed conflict but conceded that such a consensus could develop in the future. This inherent tension among different doctrinal imperatives, and the disconnect between the broad goals being sought and the specific rigid command-and-control mandates being imposed, is similar to those found in areas of domestic regulation and reflect the "policing" model to which our allies have increasingly subscribed.

Enforcement

THE UNITED States and its allies are also deeply divided over the proper mechanisms for enforcing the laws of war. Traditionally, these rules were interpreted and applied by each individual state, in accordance with its own constitutional and judicial processes. This "domestic" approach has much to recommend. To begin with, it has allowed an interplay between enforcement actions and compliance-fostering institution-building and training. (The latter measures are indispensable if future violations are to be avoided and compliance culture enhanced.) Moreover, a number of key jus in bello issues necessarily require the inherently subjective process of balancing military necessity and humanitarian goals, and the outcome depends very much on who does the balancing. This point was candidly acknowledged in the report issued by the Hague tribunal's prosecutor, after investigating NATO's Kosovo operation: