Collateral damage on the 21st century battlefield: enemy exploitation of the law of armed conflict, and the struggle for a moral high ground

Air Force Law Review, Wntr, 2005 by Jefferson D. Reynolds

I. INTRODUCTION

"Whoso obeyeth Allah and the messenger, they are with those unto whom Allah hath shown favor, of the prophets and the saints and the martyrs and the righteous. The best of company are they."

The Koran, Surah IV, Ayah 69

Subordinate only to a state's decision to wage war, effective targeting of the adversary is the most important and decisive part of successful warfare. Target selection requires military planners and strategists to develop tactical, operational and strategic target sets that destroy the adversary's centers of gravity to compel capitulation, surrender or defeat. Although collateral damage (1) has historically been an important factor in the targeting cycle, its prominence and visibility have grown as battlefield tactics become more antagonistic and less aligned with humanitarian interests and the law of armed conflict (LOAC). The avoidance of collateral damage can even be determinative for nations like the United States (U.S.) who value LOAC. (2) A decision based on avoidance becomes problematic where key objectives cannot be targeted because of an adversary's invitation or fabrication of collateral damage to discredit operations. Any targeting decision must be premised on LOAC; however, a decision based on avoidance must carefully evaluate the loss of initiative and tactical superiority, the increasing and persistent nature of these events in the context of a well organized strategy, and the effect on tactical, operational and strategic objectives. Adversaries will improve methods to effectuate collateral damage in an effort to complicate attack planning, promote disinformation campaigns, deter attack, exploit humanitarian interests and, ultimately, improve survivability.

This study illustrates a rising trend in the frequency and severity of adversary violations of LOAC and humanitarian principles to gain a strategic advantage. A proposed solution to this problem requires attacking target sets that are prohibited according to some humanitarian interest groups, improving awareness and understanding of collateral damage, promoting the application of emerging technology, including non-lethal technology, and the use of aggressive information campaigns designed to expose deceptive reports of collateral damage. The study is divided into six sections. Part II provides a parallel review of U.S. targeting strategy, collateral damage, civilian immunity, and the development of LOAC. Although a number of significant incidents of collateral damage are reviewed, this section is not intended to be exhaustive for each conflict studied. Rather, this section illustrates particular events, strategies and principles that contribute to an analysis of LOAC and collateral damage. Part III discusses the application of LOAC to different types of adversaries. With an emphasis on the International Criminal Court, Part IV describes significant problems associated with the prosecution of crimes involving collateral damage. Part V illustrates that violations of LOAC and strategies provoking collateral damage provide the greatest assurance of survival and strategic success for adversaries. Part VI examines specific targeting principles of LOAC, and demonstrates that attempts to reduce the number of permissible target sets may result in greater danger to the civilian population. This section also examines methods to effectively counter an adversary's attempts to discredit operations where collateral damage occurs.

II. THE HISTORICAL DEVELOPMENT OF TARGETING STRATEGY, CIVILIAN IMMUNITY, AND CONCEALMENT WARFARE

   "War is an act of force to compel our enemy to do our will....
   [A]ttached to force are certain self-imposed, imperceptible
   limitations hardly worth mentioning, known as international law
   and custom, but they scarcely weaken it." (3)
   Carl von Clausewitz

In the early 19th century, Clausewitz surmised that warfare was a "true political instrument" to achieve the political objectives of the state waging war. (4) Although Clausewitz may have understated the effect of international law and custom in his conclusions, he recognized that the social condition of the states at war and their relationship to one another gave rise to some restraint. (5) The concept of restraint in warfare did not necessarily evolve from a philosophy of compassion and progressive ideology. More than likely, it evolved out of the necessity to spare resources and labor as a reward for conquest. Virtually all cultures throughout history have exercised restraint and rules of engagement at some level. (6) Even before the fifth century B.C., Greek combatants adopted normative rules of engagement referred to as the common customs of Hellenes or koina nomima, that specifically referenced the immunity of civilians in war. (7) Appreciated for their value in new regimes, labor and resources were often spared for their economic benefit. (8) Civilian immunity is a universally accepted principle in the international community, but the degree of compliance has varied drastically since the fifth century B.C. For example, Clausewitz advocated the targeting of civilian populations because it provided psychological and political advantages to the larger strategy of defeating the will and morale of the adversary. (9) Although direct targeting of civilian populations was widely exercised in the 20th century, prohibition of this practice pursuant to custom and LOAC is now more widely observed. (10) The amplified sensitivity to civilian casualties and other collateral damage, combined with increasing pressure from humanitarian interest groups to categorically exempt certain civilian object target sets from attack, should concern military strategists because of the rising incidence of warfare involving the use of the civilian population for shielding, sanctuary and deception. These asymmetric methods of warfare are described in this study as "concealment warfare." Concealment warfare promotes target aversion and protracted conflict that potentially results in a higher incidence of both military and civilian casualties.