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Essays on Law and War at the Fault Lines pp 131–173Cite as

The Principle of Discrimination in Twenty First Century Warfare

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Abstract

This chapter examines the international humanitarian law principle of discrimination in the context of likely twenty first century warfare. The principle requires that those engaged in hostilities distinguish between civilians (and their property) and military objectives. The continued viability of the norm in light of future methods and means of warfare, which arguably constitute a “revolution in military affairs”, is an open question. In some cases, future warfare will encumber compliance. In others, new methods and means of warfare will make greater discrimination possible. The chapter concludes with tentative suggestions on how to soften the impact of any potentially negative trends.

Previously published in 2 Yale Human Rights and Development Law Journal (1999) 143.

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Notes

  1. 1.

    Colin Gray has cited seven "historical transformations of warfare" since the fall of Rome: (1) fifth century cavalry, which "ushered in a long period of advantage for soldiers who could fight on horseback"; (2) the military revolution of the sixteenth and seventeenth centuries which "was led by the adoption of firearms for siege and open warfare"; (3) the "Nation in Arms," a "concept of popular warfare, increasingly armed and sustained by industrially and agriculturally modern states"; (5) mechanized warfare, signaled in 1916 by use of the tank in the Battle of the Somme and large scale aerial battles over Verdun; (6) nuclear warfare; and (7) information warfare. Gray 1996, p. 297; see also Cohen 1996, at 37 (discussing how technology has engineered a revolution in military affairs).

  2. 2.

    On the "revolution in military affairs," see Secretary of Defense 1998, Chap. 13; Drew 1987, at 21; Fitzsimonds 1995, at 30; Goure 1993, at 175; Krepinevich 1995; McKenzie 1995, at 15; Shelat 1994, at 52.

  3. 3.

    For instance, approximately one million German civilians were killed or wounded by bomber attacks. The attacks also destroyed one-fifth of German homes and rendered 7.5 million people homeless. See Harmon 1991, p. 3.

  4. 4.

    For a discussion of the nuclear RMA, see Libicki 1996.

  5. 5.

    Counter-value targeting is directed against cities and industrial areas; the premise is that one targets that which the opponent values most. Counter-force targeting, by contrast, is the targeting of the enemy's military, most commonly his strategic assets (such as an intercontinental missile force or strategic bomber bases).

  6. 6.

    Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, para 97, reprinted in 35 I.L.M. 809, 830 (July 8, 1996). The Court did not address the use of the weapons in belligerent reprisal, i.e. an unlawful act in response to a prior unlawful act, which is designed to force the opposing belligerent to desist in its unlawful conduct. On the case, see Falk 1997; Turner 1998; Schmitt 1998, at 91.

  7. 7.

    Internal armed conflict is governed by Common Article III to the four 1949 Geneva Conventions and Protocol II Additional to the Geneva Conventions. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed forces in the Field, August 12, 1949, Article 3, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, August 12, 1949, Article 3, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, August 12,1949, Article 3, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, Article 3, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter "Geneva Convention IV"; Protocol Additional to the Geneva Conventions of August 12,1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8,1977, U.N. Doc. A/32/144, Annex II (1977), reprinted in 16 I.L.M. 1442 (1977).

  8. 8.

    There is "bleed over" because human rights law, particularly its non-derogable components, can apply during periods of armed conflict.

  9. 9.

    See, e.g. Final Act of the United Nations Conference on Prohibitions or Restrictions of the Use of Certain Conventional Weapons, October 10, 1980, 1342 U.N.T.S. 7, reprinted in 19 I.L.M. 1523 (1980).

  10. 10.

    Among the first formal expressions of the principle was the St. Petersburg Declaration of 1868, which provided that "the only legitimate object which states should endeavor to accomplish in war is to weaken the military force of the enemy," and that "this object would be exceeded by employment of arms which use aggravate the sufferings of disabled men, or render their death inevitable." Declaration of St. Petersburg, 1868, reprinted in Official Documents, 1 AM. J. INTL L 95 (Supp. 1907).

  11. 11.

    The designation "Geneva Law" refers to that portion of the law of armed conflict addressing protected classes of persons: civilians, prisoners of war, the sick or shipwrecked, and medical personnel. It is distinguished from "Hague Law," which governs methods and means of combat, occupation, and neutrality. For a discussion of the international instruments which fall into each category, and of those which display elements of both, see Demulinen 1987, pp. 3–4.

  12. 12.

    Proactive efforts seek to head off negative consequences before they occur. For instance, Protocol IV of the Conventional Weapons Convention prohibited the use of permanently blinding lasers before they were fielded by any armed force. See Additional Protocol to the Convention on the Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Protocol on Blinding Laser Weapons (Protocol IV), October 13, 1995, 35 I.L.M. 1218 (1996). By contrast, most of humanitarian law is reactive; the best example is the establishment of the International Committee of the Red Cross (ICRC) following Henri Dunant's account of the bloody Battle of Solferino during the Italian War of Unification. See Dunant 1862.

  13. 13.

    Each of the aforementioned instruments may be found at the ICRC's website: www.icrc.org/unicc/ihl_eng.nsf/web?OpenNavigator. Except for the Landmines Convention, they are also reprinted in Schindler and Taman 1988, at 301, 53,115, 325, 373, 745, 621, 163, 137, and 179, respectively.

  14. 14.

    See, e.g., Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, August 5,1963,14 U.S.T. 1313, 480 U.N.T.S. 43; Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco), February 14, 1967, 634 U.N.T.S. 281, 6 I.L.M. 521 (1967); Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161; Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, February 11, 1971, 23 U.S.T. 701,10 I.L.M. 145 (1971).

  15. 15.

    The range of variables that will determine the future are vast. For instance, which States are likely to be core adversaries in the next century? What types of conflicts will predominate? How effective will the "revitalized" United Nations system be? Which political, religious, and ethnic forces will prove most powerful? Indeed, even technological predictions are suspect. See Brody 1991, at 39. For an extremely interesting effort to identify current trends relevant to the use of force, see D'Amato 1998 Megatrends in the Use of Force, in The Law of Armed Conflict: Into The Next Millennium 1.

  16. 16.

    This principle most clearly expresses humanitarian law's balancing of State-centric interests in resorting to force against the more broadly based human interest in shielding non-participants from the effects of what is, at best, an unfortunate necessity.

  17. 17.

    For discussion of implementation in future conflict, see Doswald-Beck 1998, at 39; and Levie 1998, at 311.

  18. 18.

    Though the RMA certainly will not be limited to the US, most core participants are States traditionally aligned with the US. For instance, a disproportionate share of the most technologically advanced militaries are NATO members.

  19. 19.

    For a comprehensive review of the principle, see generally Rosenblad 1979.

  20. 20.

    Protocol I Additional to the Geneva Conventions expresses the prohibition thusly:

    Indiscriminate attacks are..(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

    Protocol Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflict, June 8,1977,14, Article 51.4(1,-c), U.N. Doc. A/32/144, Annex I (1977), reprinted in 16 I.L.M. 1391, 1413 (1977) (hereinafter) "Additional Protocol 1"1. Unguided missiles exemplify the former, biological weapons the latter.

  21. 21.

    The provision cited in the previous footnote incorporates this prohibition as attacks which "are not directed at a specific military objective…." Id., Article 51.4(a).

  22. 22.

    US Department of Defense 1992, at 621–22, reprinted in 31 I.L.M. 612 (1992).

  23. 23.

    The typology of law of war principles varies. For instance, the US Air Force employs the categories of military necessity, humanity, and chivalry, with proportionality as an element of necessity, whereas the US Navy uses necessity, humanity and chivalry. In substantive effect, though, there is no real difference between the typologies. The law is the same; only the verbiage differs. Cf. Department of the Air Force, International Law-The Conduct of Armed Conflict And Air Operations (AF Pamphlet 110-31,1976), at 1-5-1-6, with US Navy/Mapjne Corps/Coast Guard, The Commender’s Handbook on The Law of Naval Operations (NWP 1-14 M, MCWP 5-2.1, COMDTPUB P5800.7), 5.1 (1995). This chapter adopts the typology of discrimination set forth in Greenwood 1998, at 199–202.

  24. 24.

    Unofficial, but probative compilations of the US' views on the Additional Protocol I by then State Department attorneys can be found in: Matheson 1987; Sofaer 1988.

  25. 25.

    Additional Protocol I, supra note 20, Article 48. The Commentary on the Protocol, citing the St. Petersburg Declaration, includes members of the armed forces in the term "military objectives." Sandoz et al. 1987, at 635. The prohibition is also expressed in Article 51.2 ("The civilian population as such, as well as individual civilians, shall not be the object of attack.") and Article 522 ("Attacks shall be limited to strictly military objectives."). See Additional Protocol I, supra note 20, Articles 51.1, 51.2.

  26. 26.

    Additional Protocol I, supra note 20, Article 52.2. According to the Commentary, the term "object" encompasses combatants. See Sandoz et al. 1987, at 635.

  27. 27.

    The Commentary notes that "[t]he text of this para certainly constitutes a valuable guide, but it will not always be easy to interpret, particularly for those who have to decide about an attack and on the means and methods to be used." See id.

  28. 28.

    Id. at 636 (emphasis added).

  29. 29.

    Id. (emphasis added).

  30. 30.

    Additional Protocol I, supra note 20, Article 51.3 (emphasis added).

  31. 31.

    Sandoz et al. 1987, at 619.

  32. 32.

    Additional Protocol I, supra note 20, Articles 50.1 (for civilians) and 52.3 (for civilian objects).

  33. 33.

    See, e.g. Parks 1990, pp.113–145.

  34. 34.

    See US Navy/Marine Corps/Coast Guard, supra note 23, at 8.1.1. This assertion is labeled a "statement of customary international law." The Handbook cites General Counsel, Dep't of Defense, Ltr. of September 22, 1972, reprinted in 67 Am. J. Int'l L 123 (1973), as the basis for this characterization.

  35. 35.

    See Letter from DAJA-IA [Department of the Army, Judge Advocate, International Affairs] to Counselor for Defense Research and Engineering (Economics), Embassy of the Federal Republic of Germany (January 22, 1988), cited in Parks 1990, at 134 n. 400.

  36. 36.

    Additional Protocol I, supra note 20. On the issue of proportionality generally, see Fenrick 1982, and Gardam 1993.

  37. 37.

    Additional Protocol I, supra note 20, Article 51.5(b). A similar prohibition, in the context of precautions in attack, is found at id., art 572(a)(iii). Military advantage is evaluated in terms of the entire campaign/war, not simply the immediate advantage from which attacking forces benefit. On this point, see generally Oeter 1995.

  38. 38.

    Indeed, the ICRC Commentary notes that "the criticism [in the Diplomatic Conference and thereafter] was directed particularly at the imprecise wording and terminology…. Such criticisms are justified, at least to some extent. Putting these provisions [paras 4 and 5] into practice… will require complete good faith on the part of belligerents, as well as the desire to conform with the general principle of respect for the civilian population." Sandoz et al. 1987, at 625.

  39. 39.

    Id. at 684.

  40. 40.

    The issue of valuation paradigms in the context of environmental damage during armed conflict is explored more fully in Schmitt 1999b, at 25.

  41. 41.

    This theme is developed in Schmitt 1997.

  42. 42.

    An excellent example of the military's concern with environmental damage was the 1995 international conference on the topic sponsored by the US Naval War College. The proceedings of that conference are published in Grunawalt et al. 1996.

  43. 43.

    Additional Protocol I, supra note 20, Article 57.2(a)(ii) (“With respect to attacks, the following precautions shall be taken… take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects….”).

  44. 44.

    Much of the analysis offered herein draws on Joint Chiefs Of Staff 1997. The principle of discrimination will evolve in the face of changes in the nature of warfare, for, much as water seeks a constant level, law inevitably endeavors to fill normative lacunae or dispense with contextually irrelevant or unresponsive standards.

  45. 45.

    Statistical trends in long-term development are set forth at World Bank, World Development Indicators 1998 (CD-Rom), tbl. 1.4. While the disparities in annual average percentage of growth are not huge, since the developed States start with a much larger economy, the percentages translate into significant differences in actual growth. A particular dilemma is that as the comparative disadvantages of the “have-nots” grow, these States are ever more aware of their status due to the spread of mass communications in lesser developed States. This awareness, and the inflated expectations that are likely to result therefrom, can be a source of instability. Interestingly, though the relative gap may widen, the number of “leaves” may increase in the twenty-first century due to the diffusion of advanced technology. One possible danger of this situation is that more States will have the economic and technological wherewithal to develop indigenous weapons production capabilities, thereby exacerbating the problem of weapons proliferation. For a discussion of the proliferation threat, see Office Of The Secretary Of Defense 1996.

  46. 46.

    For data illustrating differences in the distribution of the gross world product, see generally United Nations 1993. Between 1960 and 1994, the per capita income disparity between the richest and poorest fifths of the world's nations grew from 30 to 1, to 78 to I. The problem may continue to increase because many lesser-developed countries have a birth rate that outpaces their economic growth. See Sinding 1999, at 8.

  47. 47.

    See Economist, June 20, 1998, at 120, tbl. In 1997, the top ten defense spenders were: US, Japan, France, Germany, Britain, Russia, Italy, Saudi Arabia, South Korea, and Brazil.

  48. 48.

    US, France, Italy, Spain, United Kingdom, Russia, India, Thailand, and Brazil. See generally The International Institute For Strategic Studies 1997.

  49. 49.

    See id. at 20.

  50. 50.

    Described by Major General Dennis Gray, ANG (visited April 15, 1999) aflsa.jag.af.mil/GROUPS/NATIONAL_GUARD/ANG/AEFGray.html.

  51. 51.

    See The International Institute For Strategic Studies 1997, at 291–97, tbl. 53 (current as of 1996 and excluding reservists or paramilitary forces).

  52. 52.

    See Graham 1998a, at 4.

  53. 53.

    Figures for national military expenditures are available on-line. See SIPRI Military Expenditure Database (visited April 15,1999) http://www.sipri.se/projects/Milex/Introduction.htrnl. The defense budget calculation for the Chinese military is based on the officially reported budget, but in fact, funds available to the Chinese military exceed this figure.

  54. 54.

    See US Government Accounting Office 1995.

  55. 55.

    US Joint Chiefs of Staff, Joint Vision 2010 (1996) [hereinafter Joint Vision 2010] (also available at http://www.dtic.mil/doctrine/jv2010/jv2010.pd1). Each military service in the US has published a complementary service-specific vision: US Navy 1994; US Army 1996; US Air Force 1996.

  56. 56.

    See The concept of “full spectrum dominance” is set forth in Joint Vision 2010, esp. 20–23; Joint Chiefs Of Staff 1997, esp. 50–51.55, at 25–26.

  57. 57.

    See id . at 20–23; Joint Chiefs of Staff 1997, at 50–51.

  58. 58.

    The US specifically cites asymmetric challenges as one of four national security threat categories. The others are regional dangers, transnational dangers, and wild cards (unanticipated threats). See White House 1997.

  59. 59.

    On the issue of leveraging technology to compensate for size, see generally Cordesman 1992.

  60. 60.

    The Institute for National Strategic Studies has noted the following capabilities in the Middle East: Algeria (infrastructure for the production of chemical weapons, base of experts for biological weapon production); Libya (production of chemical weapons, possible research on biological weapons); Egypt (production of chemical weapons, base of experts for biological weapon production); Syria (production of chemical weapons, possible production of biological weapons); Iraq (infrastructure for the production of chemical weapons if decision is made to produce, infrastructure for the production of biological weapons); Iran (production of chemical weapons, possible production of biological weapons); Jordan (base of experts for chemical weapons production, technical base for biological weapons production); Israel (possible production of chemical weapons, infrastructure for production of biological weapons if decision is made to produce). See Institute for National Strategic Studies 1996, at 202.

  61. 61.

    Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, January 13, 1993, U.N. Doc. CD/CW/WP.400/Rev. 1, reprinted in 32 I.L.M. 800 (1993) (hereinafter “Convention on Chemical Weapons”).

  62. 62.

    Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature April 10, 1972, U.N. Doc. A/RES/2826, reprinted in 11 I.L.M. 309 (1972).

  63. 63.

    Among the developed States that have ratified, acceded, or succeeded to the Biological Weapons Convention as of August 1998 are France, Germany, Japan, Russia, United Kingdom, and US. Iraq is not a party, though it is a signatory. Each of these is also a party to the Chemical Weapons Convention, while, again, Iraq is not.

  64. 64.

    Judge Schwebel of the International Court of Justice discusses this episode in his dissenting opinion in the Nuclear Weapons Case. See Nuclear Weapons Case, supra note 6, Dissenting Opinion of Judge Schwebel, at 11; see also Institute for National Strategic Studies 1996, at 203. The problem of countering weapons of mass destruction has drawn attention in military circles. See, e.g. Chandler 1998.

  65. 65.

    See Nuclear Weapons Case, supra note 6.

  66. 66.

    On information warfare in an ad bellum context, see Schmitt 1999a.

  67. 67.

    A concise legal analysis of this incident is offered by Professor Francoise Hampson in Hampson 1992, pp. 53–54.

  68. 68.

    The dearest recent example of casualty aversion occurred following the October 1993 shoot-down of two US Army helicopters that were involved in operations to capture the Somali military leader, General Aideed. Eighteen US servicemen, along with hundreds of Somalis, perished in the incident. The uproar this incident caused in the US led to the withdrawal of all US troops by March 1994. See Anderson 1995, p. 273.

  69. 69.

    Samuel Huntington has argued that future global discord will be based in culture rather than economics or ideology. See generally Huntington 1993.

  70. 70.

    The concept of operating within an opponent's OODA (observe, orient, decide, act) loop implies being able to make decisions faster and better than an opponent so as to force him to react. Enjoying that capability in the twenty-first century will require advanced computer technology to manipulate and operate next-generation sensors and then quickly sort through the resulting data in search of that information relevant to a particular end-user (a commander, unit, or individual soldier).

  71. 71.

    Former Vice-Chairman of the US Joint Chiefs of Staff, Admiral William Owens has highlighted this trend:

    Today, the center of technological acceleration in each of these technologies [battlespace awareness, C'I, and precision use of force] lies generally in the commercial, non-defense sectors. Our ability to accelerate the fielding of systems, on which we will base our future military superiority, thus depends on our capacity to tap into developments taking place for the most part outside the existing Department of Defense laboratory and development infrastructure.

    Owens 1995, at. 36, 38.

  72. 72.

    The US Space Command is actively seeking partnerships with commercial entities and consortiums, sometimes multinational in nature, as well as with civilian governmental agencies involved in space operations, such as NASA. Indeed, “Global Partnership” is one of Space Command's four operational concepts. US Space Command. On the legal issues involved with such activities 1997, see generally Jankowitsch 1992); and Morgan 1994. The implications of this practice are momentous. If a country uses civilian airliners for military purposes during a war, to what extent do the carrier's aircraft, maintenance facilities, and control centers become lawful targets? What about the regional air traffic control system? Are commercial satellites that provide positioning data to military, commercial, and private aircraft and ships targetable? What about those that provide weather data to both military planners and emergency response organizations? Does the military's use of the Internet make it a target?

  73. 73.

    Additional Protocol 1, supra note 20, Article 58 (b-c).

  74. 74.

    These objections have come from the US, among others. See 1 US Air Force, Office of the Judge Advocate General, Operations Law Deployment Deskbook, tab 12, para 1.7.6.1 (objecting to the provision).

  75. 75.

    See generally Johnson and Libicki 1995.

  76. 76.

    Precision engagement is one of four key concepts in the enabling of full spectrum dominance, as articulated in Joint Vision 2010. The others are dominant maneuver, “the multidimensional application of information, engagement, and mobility capabilities to ‘position and employ widely dispersed joint air, land, sea, and space forces’”; full dimension protection, which will use information technology to better protect US forces; and focused logistics, the “fusion of information, logistics, and transportation technologies to provide rapid crisis response, to track and shift assets even while en route, and to deliver tailored logistics packages and sustainment directly at the strategic, operational, and tactical levels of operations.” Joint Vision 2010, supra note 55, at 20, 23, 24.

  77. 77.

    Id. at 21.

  78. 78.

    See generally Joint Chiefs of Staff 1997, at 51.

  79. 79.

    Space satellites serve as an apt example. By the early twenty-first century, reconnaissance satellites will offer 24-hour worldwide coverage, with improvable resolution of two to three meters. Even more astonishing, in future wars, satellites may be capable of detecting normal conversations on earth with sound sensor technologies. See Thieret et al. 1996, p. 187. Consider this possible future scenario from one US Air Force study:

    In the year 2025, sensor collection provides enough data for a virtual 3D model of the [target] to include its composition, internal structure, baseline characteristics, and tendencies…. Sensors determine the building's exact dimensions and floor plan. They then highlight soft spots. Sensors distinguish between rooms containing biological agents, test equipment, sleeping quarters, and even the snack bar. Target acquisition sensors also construct a baseline, or living archive, of data concerning routine activity and environmental conditions. Examples include the average number of people who enter and exit each day, the number of vehicles in the parking lot, and the level of noise generated by the facility.

    Id. at 185–86. Using this information, targeters can determine where to strike the building, with what, and when the building can best be attacked without causing extensive civilian casualties.

  80. 80.

    For instance, some futurists envision minuscule “robots” with optical and communications capabilities, which would be disguised as insects for use in jungles where present day sensors are often ineffective. See Cooper 1996, at 4. Future sensors may be the size of dust mites and seedable by unmanned aerial vehicles, and could be sucked into the air conditioning system of facilities to be monitored. See id . Sensors' “senses” would not necessarily be limited to sight and hearing. Certain ones might be sensitive to particular chemical make-ups, thus allowing the identification of chemical weapons or metal objects like armor or aircraft. See Thieret et al. 1996, at 187–88.

  81. 81.

    Most notably for the not-too-distant future, the proposed Land Warrior Modular Fighting System will equip soldiers with a helmet-mounted computerized display tied to an improved weapon, thermal sensor for night vision, and an image enhancer. The system will allow the soldier to “see around corners” and transmit data up the chain of command. There are even suggestions that soldiers will have access to eye-sized real time picture map displays to enhance situational awareness. See Pine 1997, at D3; Jezior 1997 (unpublished manuscript on file with the Naval War College Library); see also Infantry System Turns Soldier into High-Tech Urban Warrior, Nat'l Def., April 1997, at 24.

  82. 82.

    An excellent example being developed for the US Navy by Johns Hopkins University is the Force Threat Evaluation and Weapon Assignment System. It will collate data from radar systems aboard the ships of an entire battle group and then fuse it to generate a three-dimensional graphic display of the threat environment for the battle manager. The system will even evaluate threats and suggest which to engage and when. See Waller 1995, at 38, 41.

  83. 83.

    Command, control, communications, computers, intelligence, surveillance, and reconnaissance.

  84. 84.

    Despite impressive film footage of precision guided munitions (PGMs) being employed during the conflict, the Gulf War was actually dominated by conventionally delivered munitions. Only 8% of the weapons used were precision guided. A General Accounting Office study of 20 major targets found that Coalition forces used at least two laser-guided weapons against each. 20% of the targets were struck with at least six weapons, while 15% were hit by eight or more. The need to strike targets repeatedly is persuasive evidence that such weapons were no panacea. See Capaccio 1997, at 1; see also Geldman 1991, at A-1. Since the Gulf War, the US has invested heavily in precision weaponry. For example, the two US carriers deployed to the Persian Gulf in February 1998 carried with them more smart weapons than all six of the carriers deployed during the war. See Graham 1998b, at A-1, 25.

  85. 85.

    Inertial navigation is dead reckoning performed automatically by a device that continuously integrates acceleration and direction from a known point of departure in order to ascertain location. Its advantage is that it is completely passive and self-contained; therefore, its users are not subject to electronic signal monitoring or electronic countermeasures. Some warheads will actually count walls penetrated to ensure that the warhead explodes within the desired room. This capability is particularly useful in strikes against biological or chemical facilities in which the goal is to destroy toxins without releasing them into the atmosphere. See Matthews 1998, at 6. To place this degree of accuracy in historical perspective, during World War II, one-half of all bombs dropped landed over one mile from their intended target. See All Things Considered (National Public Radio broadcast, February 13, 1998).

  86. 86.

    For instance, combat aircraft today use information provided by on-board sensors or verbal communications with other aircraft, such as the Airborne Warning and Control System (AWACS), or ground controllers. In the not-too-distant future, by contrast, fighters and bombers will have direct access to data gathered by space- and ground-based sensors, unmanned reconnaissance aerial vehicles, and aircraft other than specialized platforms like the AWACS. See Usaf scientific advisory board , p. 11. On the ground, the US Army may field a “brilliant” anti-armor submunition that will be fired by the Army Tactical Missile System. The munitions will use acoustic and infrared sensors to identify a formation of vehicles, single one out for attack, and destroy it. See Owens 1995, at 37.

  87. 87.

    Today, a weapon usually destroys through penetration of the target and explosion. This approach will predominate in the next century, but be much improved. Microtechnology will allow weapons to be much smaller, thereby permitting more of them to be carried aboard delivery platforms. See Thieret et al. 1996, at 189. Consider hardened targets. Today they are best attacked with at least a two-thousand pound guided bomb unit; in the future they may be attacked with a 250 lb weapon just as effectively. Moreover, microexplosive technology will make it possible for minute quantities of explosive to destroy a target, further facilitating miniaturization and limiting the collateral damage and incidental injury produced by larger explosions. See Usaf scientific advisory board 1995, at 9–10.

  88. 88.

    The term non-lethal is somewhat controversial because death is possible in the case of many such weapons; it is simply less likely. Therefore, these weapons are increasingly being labeled less-lethal rather than non-lethal. On non-lethal weapons, see generally Duncan 1998; Cook III et al. 1995, at 77; Duncan 1998.

  89. 89.

    Consider acoustic and microwave weapons. The former generate sound frequencies that cause pain and nausea, while the latter cause discomfort or seizure by raising the target's body temperature. See Pasternak 1997, at 38. Other technologies being considered include sleep agents, “slick-urns,” which coat surfaces with an anti-traction substance that renders them difficult to walk or drive on, and “stick-urns,” a sticky foam that can immobilize individuals without killing them. See Schneider 1997, pp. 9–10, 27. Other potential non-lethals that some have suggested for use against enemy equipment include electromagnetic pulse weapons that produce radio-frequency wavelengths damaging to electrical equipment, see id. at 14, super-caustics and embrittling agents that can be sprayed from aircraft or delivered by shells to corrode or weaken surfaces such as bridges, optical lenses, tires, etc., see id. at 20–22, microbes that eat rubber, silicon, electronics, and oil, see Jezior 1997, at 16, and “super-glue,” an air-dispensable substance that fouls equipment and weapons, see Schneider 1997, at 9–10.

  90. 90.

    The Naval War College's Mackubin Owens has questioned the current “obsession” with technology. According to Owens, there is a

    Recrudescence of a McNamara-like worship of technology in some part of the Pentagon, a worship that ignores the principal lesson of military history: as long as war involves humans, no technology can completely eliminate friction, ambiguity and uncertainty, thereby ensuring that a military organization will function at 100% efficiency…. The question is, who is more relevant in the real world: Clausewitz, who observed that “everything is simple, but the simplest thing is difficult. The difficulties accumulate and the end by producing a kind of friction that is inconceivable unless one has experienced war”; or those who reject him, explicitly or implicitly, assuming that technology will render friction in war obsolete?

    Owens 1996, at 5, 6. For a fascinating account of how a combatant might fight against a technologically superior military, see generally Dunlap CJ Jr 1996, at 22.

  91. 91.

    As an example, the removal of the pilot and cockpit in “uninhabited combat aerial vehicles” may allow novel design features that reduce the radar cross section by a factor of two. See Usaf scientific advisory board 1995, at 8.

  92. 92.

    See DiNardo and Hughes 1995, at 69, 75.

  93. 93.

    See, e.g. Munro 1995, at 24.

  94. 94.

    The US military has over 2.1 million computers and 10,000 local area networks. See Ricks 1997, at 1; B2. Computer network attack can take many forms, most commonly through introduction of a “virus.” For example, “logic bombs” can be transmitted to a computer where they sit idle until activated by a specific event or at a set time. They might be used, for example, to attack such targets as air defense or air traffic control systems. Other techniques include flooding a system with so much data it cannot process it, or the use of “sniffer” programs to gather access codes allowing entry into target systems. In many instances, the attacks may occur without the knowledge of the victim. On the threat posed by information warfare from the US perspective, see Office of The Under Secretary of Defense For Acquisition And Technology 1996, at app. B (Threat Assessment).

  95. 95.

    Reports of a war game held at National Defense University several years ago portray one hypothetical future war scenario. Set in the year 2000, it involved an OPEC meeting that goes awry when Saudi Arabia opposes Iranian demands for an oil production cutback in order to drive prices up. Iran mobilizes and conducts several attacks on Saudi warships. It also begins to conduct information warfare operations to destabilize the Saudi regime and keep the US and United Kingdom out of the fray. A Saudi refinery is destroyed when computer malfunctions in its control mechanisms cause a fire, a “logic bomb” placed in the computer system running US railways causes a passenger train to derail, computer “worms” begin to corrupt the US military's classified deployment database, and a “sniffer” disrupts fund transfers in the Bank of England. See Lohr 1996, at Dl. The civilian consequences of these and similar operations are self-evident.

  96. 96.

    See discussion supra note 84.

  97. 97.

    For criticism of the coalition's actions during the 1991 Gulf War, see generally Human Rights Watch 1991; and Normand and Jochnick 1994. The proceedings of a panel chaired by Professor Oscar Schacter at the 1992 meeting of the American Society of International Law offer a more balanced approach. Panelists included Professors Frits Kalshoven, Francoise Hampson, Yoram Dinstein, Ruth Wedgwood, and Colonel Fred Green. See Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity 1992. The US' position on the subject is set forth in US Dept of Defense, supra note 22, at 611–17.

  98. 98.

    For instance, in the first night's attacks against central Baghdad, only highly precise F-117 Nighthawk aircraft and Tomahawk land attack missile (TEAM) cruise missiles were employed in order to minimize collateral damage and incidental injury. While almost 48 key targets in and near Baghdad were struck in the first 24 h of the campaign, direct civilian casualties were minimal. See US Dept of Defense, supra note 22, at 116–18, 177–78.

  99. 99.

    Expectations will shift accordingly. For instance, speaking of his decision to order attacks in August 1998 against a suspected secret chemical plant in Sudan, President Clinton stated that “I did not want some person who was a nobody to me, but who may have a family to feed and a life to live, and probably had no earthly idea what else was going on there, to die needlessly.” Weiner and Myers 1998, at A-1. Thus, highly precise cruise missiles were used to strike the plant at a time when it would not be filled with employees.

  100. 100.

    On these attacks, see Crawford 1997, at 101.

  101. 101.

    The limited criticism of the Gulf War air campaign that has been voiced evidences this growing sensitization, for it was predominately based on allegations that coalition attacks did not pay adequate attention to subsequent-tier effects.

  102. 102.

    See Geneva IV, supra note 7, Articles 29,149; Additional Protocol I, supra note 20, Articles 75.2(c), 85.2.

  103. 103.

    See Additional Protocol I, supra note 20, Article 51.7–8.

  104. 104.

    See US Dept of Defense, supra note 22, at 607–08, 613–15.

  105. 105.

    And, in fact, have. Since the Gulf War, Iraqi citizens have occupied potential targets on multiple occasions to shield the targets against threatened air attacks by the multinational forces still patrolling Iraqi sides. The ability of the Iraqi Air Force or air defense to deter such attacks is minimal; thus, the resort to civilian shields.

  106. 106.

    Perfidious acts are those “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under rules of international law applicable in armed conflict, with intent to betray that confidence.” Protocol I, supra note 20, Article 37. Typical examples involve misuse of the Red Cross, Red Crescent, or the surrender flag. Such practices are also proscribed by the Annexed Regulations to Hague IV. See Hague Convention IV Respecting the Laws and Customs of War on Land, with Annexed Regulations, October 18, 1907, Article 23(F), reprinted in Schindler and Taman 1988, at 63, 83. The combatant/noncombatant distinction is found in varying formats in Hague Convention IV, id ., Article 1; Geneva IV, supra note 7, Article 4A(2); and Additional Protocol I, supra note 20, Article 44.

  107. 107.

    See Additional Protocol I, supra note 20, Article 44.3. As noted supra note 24, the US opposes this provision. According to the Rapporteur, the Additional Protocol I provision exception “recognized that situations could occur in occupied territory and in wars of national liberation in which a guerrilla fighter could not distinguish himself throughout his military operations and still retain any chance of success.” XV Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977, at 453, CDDH/407/Rev. 1, 9119.

  108. 108.

    For an argument that it need not, see Infeld 1992.

  109. 109.

    The difficulties of returning to normalcy in the States formed from the former Yugoslavia and the continuing mistrust and isolation of Iraq are in no small part the product of war crimes committed during those conflicts. For obvious reasons, negotiating and implementing agreements made with a foe that committed such breaches is difficult at best. By contrast, consider the ease with which Argentina and the United Kingdom returned to relative normalcy following the Falklands/Malvinas war, in which compliance with humanitarian law was widespread.

  110. 110.

    As Adam Roberts has noted, “[t]here is a need to place more emphasis on the idea that this body of law is intensely practical—that it represents, at least in part, a set of professional military standards and bargains among States; that its origins are as much military as diplomatic; and that its implementation can have consequences which are for the most part compatible with the interests of those applying it.” Roberts 1998, at 359, 381.

  111. 111.

    On this issue, and aerial warfare generally, see the excellent article by Parks 1997, pp.77–84.

  112. 112.

    Consider, for example, the US response to the La Belle Disco bombing in Berlin in 1986, the crystallization of British attitudes towards the Northern Ireland issue following IRA bombings, or Israeli reaction to the Intifada.

  113. 113.

    On jurisdiction, see Dinstein 1998, at 17. On war crimes generally, see Meron 1998, at 325.

  114. 114.

    For a discussion of the US rationale for opposition by the Ambassador who led the US Delegation, see Scheffer 1999. On the ICC more generally, see Arsanjani 1999; Nanda 1998; and American Society of International Law, Bibliography on International Criminal Court (visited April 15,1999) http://www.asil.org/crmctbib.htm.

  115. 115.

    United Nations Operation in Somalia (I & II) and United Nations Protection Force. These operations are discussed in United Nations 1996, pp. 285–318, 511–42.

  116. 116.

    One interesting proposal is that when the sales of arms “to relatively poor nations are unavoidable, international law should require the sellers to actually subsidize the price of sophisticated weaponry that can be used with greater likelihood of distinguishing between combatants and noncombatants.” Wright 1991, p. 337.

  117. 117.

    United Nations Special Commission (UNSCOM).

  118. 118.

    Convention on Chemical Weapons, supra note 61, art VII. The OPCW maintains an informational website. See Organization for the Prohibition of Chemical Weapons, The Chemical Weapons Convention Home Page (visited April 15,1999) http://www.opcw.nl/pts.home.htm.

  119. 119.

    See generally Schmitt 1998.

  120. 120.

    This point does illustrate one possible “valid” motivation for a “have-not” State to strike directly at enemy civilians or civilian objects. In the case of a coalition force consisting of “strange bedfellows,” potential cracks in the coalition may be exploited by taking this tact. Saddam Hussein certainly tried this with his Scud attacks on Israeli population centers, and with some effect. Much of the US air effort was redirected to finding mobile Scud launchers in the hope that they could be destroyed, thereby foreclosing the need for the Israelis to enter the fray. The immediate military benefit, however, of destroying the Scuds was minimal. Instead, it was a “political” operation, for had the Israelis attacked Iraqi forces, it was not certain that the coalition, which included opponents of Israel such as Syria, would have held together. That said, the circumstances under which such a scenario might recur are fairly unlikely, and certainly not sufficient alone to justify a “have-not” State in opting out of a more stringent humanitarian regime because of fear that it might lose a valuable option open to it when facing superior forces in the future.

  121. 121.

    As noted earlier, the future described is particularly dependent on official US publications such as Joint Vision 2010, supra note 55; White House 1997; and Joint Chiefs of Staff 1997.

  122. 122.

    Kahn 1993, p. 437. Note that to some extent his analysis mixes, compares, and contrasts ad bellum and in bello issues. This detracts from the persuasiveness of the argument.

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    Michael N. Schmitt

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Abbreviations

AEF

Air expeditionary force

AWACS

Airborne warning and control system

GNP

Gross national product

ICC

International Criminal Court

ICRC

International Committee of the Red Cross

NATO

North Atlantic Treaty Organization

NBC

Nuclear, biological, and chemical

RMA

Revolution in military affairs

THAAD

Theater high altitude area defense

UN

United Nations

UNOSOM

United Nations Operations in Somalia

UNPROFOR

United Nations Protected Force

UNSCOM

United Nations Special Commission

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Schmitt, M.N. (2011). The Principle of Discrimination in Twenty First Century Warfare . In: Essays on Law and War at the Fault Lines. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-740-1_4

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