The Law of Aerial Bombardment and Civil Casualties: Kosovo and Afghanistan

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By

Prof. Hayatullah Khan Khattack[1]

Abstract

(Although rules applicable during armed conflict originated in ancient times, a universal system for regulating conduct during war and offering protection to civilians did not exist. With the advance of technology and the resort to aerial bombardment, war became more deadly and civilians could no longer be insulated from the ravages of conflict. It was in the 20th century that rules began evolving for the protection of civilians. These included the Hague Conventions of 1907, the four Geneva Conventions of 1949 and the two Additional Protocols to the 1949 Conventions. A controversial belief also emerged that air warfare and precision weapons had significantly “humanised war.” The strikes against dual use and so-called emerging targets have resulted in unacceptable civilian casualties. Furthermore, the application of the rules of engagement during air warfare has not been uniform as is evident from the conflicts in Kosovo and Afghanistan. Editor).

Introduction

A belief has emerged that airpower can deliver a strategic victory in modern conflicts. In the West, and in particular the US, this perception has been reinforced by the decisive military victories in the two Gulf Wars, former Yugoslavia and in Afghanistan. Winning the peace is often overlooked. Nevertheless, it is likely that the trend to rely on airpower to achieve strategic victory will continue. This belief, with serious consequences, has been extrapolated to the tactical level in the fight against terrorism and insurgencies. From the international humanitarian law (IHL) perspective,   airpower is also credited with achieving decisive military victories with minimum civilian casualties. Some writers have gone so far as to proclaim:

“ … Air warfare over the past decades has significantly humanised war – if such a phenomena is possible. Tremendous technological strides in the use of precision weapons, as well as development in air and space intelligence-gathering tools, have made it far easier to distinguish between military and civilian targets and then effectively strike the military ones – in short, modern warfare has reduced casualties among both attackers and attacked”[1]

Much of the discussion about the adequacy of IHL revolves around the core issue and concept of distinction. Specifically, can the claim that the use of airpower in modern conflicts has reduced civilian casualties be substantiated?  As the armouries of very few countries can match that of the US in terms of precision weapons, can general conclusions be drawn from the case studies of the use of airpower’s implication for IHL? The relevance of these questions is obvious from the criticism such attacks in various regions have attracted especially in undermining counter-terrorism efforts

This study will focus on Additional Protocol I of the Geneva Conventions, specifically on the use of airpower in two areas of conflict where the boundaries between combatant and non-combatants and military and non-military objects are blurred. Difficulties of targeting and distinction arise when aerial bombardment is contemplated in urban areas as also with objects that have dual-use i.e., both civilian and military.[2] This will continue to cause difficulties in spite of the increasing use of smart weapon systems. Societies are becoming progressively complex and institutions are acquiring both military and civilian functions. Often, the weaker belligerent, usually a developing country, tries to draw the stronger side into urban warfare.[3] Predictably, therefore, issues relating to distinction will continue to cause legal, moral and ethical dilemmas.

In the Kosovo and Afghan conflicts, Western governments have maintained that airpower was used within the framework of the Geneva Conventions and international customary rules.[4] However, in both instances the use of airpower has been vehemently criticised on the ground that it was indiscriminate and in violation of international norms. The debate continues in the Afghan conflict.

Section I – Rise of the Right to Protection of the Civilian

Jus in Bello

Homer’s Achilles brings the wrath of the gods on himself when he desecrates the corpse of Hector.  Rules applicable during armed conflict, ‘jus in bello,’ originated in ancient times.[5] Sun Tzu, circa 500 B.C. enunciated important humanitarian principles   applicable to warfare and the Viqayet, written by Arab scholars in the 13th century, covers all aspects of a code of wartime behaviour. As Quincy Wright has noted:

“Taken as a whole, the war practices of primitive people illustrate various types of international rules of war known at the present time: rules distinguishing types of enemies, rules determining the circumstances, formalities and authority, for beginning and ending war; rules describing limitations of persons, time, place and methods of its conduct, and even rules outlawing war altogether.”

However, a universal system for regulating conduct during war, and offering protection to civilians, did not exist. Belligerents entered into bilateral agreements for a specific conflict, specific period of time and for specific parties. Parties to a conflict set rules on themselves. But rules there were.

As overlapping collections of conventions, treaties and customary law, the period from 19th century onwards is where modern IHL proper (or Law of Armed Conflict or Laws of War) sprout. If one single cause can be identified as leading to development of “universal” rules for the conduct of hostilities then it must be the emergence of the nation state and modern warfare in terms of the horrors that it entailed. It was not surprising that the 1925 and 1929 Geneva Conventions were responses to the horrors of World War 1. The ratio of civilian to military death was 1:200 during the First Great War. During the Second World War the ratio changed to 1:1. It was therefore natural that rules for the protection of civilians were introduced in the 1949 Geneva Convention.[6] Max Huber, as early 1945, strikingly put it in the following terms: “war, as it becomes more and more total, annuls the difference which formerly existed between armies and civilian populations in regard to exposure to injury and danger.”[7]

IHL, therefore, as rules governing the conduct of military operations, the protection of civilians, and treatment of prisoners blossomed in the 20th century. The three major steps in the development of the law were the Hague Conventions of 1907, the four Geneva Conventions of 1949, and the two 1977 Additional Protocols to the 1949 Conventions. The 1907 Hague and 1949 Geneva Conventions re-affirmed and developed customary law and conventions on the methods and means of warfare, the protection of victims of war (including prisoners of war) and the rules concerning the protection of civilians in occupied territory. This stream of law focused mainly on international conflict. The provisions in these treaties affirmed the limits that military commanders have in application of use of force. The 1977 Additional Protocols further developed rules of conduct for the protection of civilians and non-combatants from the effects of hostilities. Additional Protocol II extended the law dealing with non-international armed conflict.

As Geoffrey Best notes, these two additional protocols hugely extended the protection offered to civilians and came as “a cloud burst after a long drought. It is catching up seventy years of inaction and inadequacy.”[8] Although the central idea embodied in the Jus in Bello concept, i.e., the idea of civilian protection or immunity from harm, can be traced back several centuries, civilians had been largely insulated from belligerent actions – until the appearance of modern warfare and in particular airpower. Prior to the emergence of modern warfare, IHL did not have to address the protection of the non-combatant. Thus Best’s comments are true to a point: prior to the emergence of airpower, a nation could be attacked by first destroying its army, civilians generally were not a direct target as they were to become in the First and Second World Wars.[9] The 1949 Convention was specifically drafted to protect civilians in the aftermath of the horrors of the Second World War. The earlier 1907 Hague Conventions, although limited, also restricted armed conflict in order to protect civilians and the League of Nations in 1938, condemned the deliberate bombing of civilians as illegal. IHL reacted to developments in warfare as new circumstances arose in a slow but sure way. Thus, as Sandoz notes:

“in view of the rapid development of modern weaponry, states have felt the need to impose further restrictions, in particular the prohibition against bombing, starving or terrorizing the civilian population as a means of forcing the enemy to capitulate, and the principle of proportionality between the anticipated military gains of an attack and the risk of collateral damage to civilians and their property”[10]

In Europe the intellectual reasons for distinguishing between civilians and combatants, and thus the legal and political theory of Jus in bello, were sown by such writers as Grotius,Vattel and Rousseau from the 17th century onwards culminating in the 20th century into the full blown IHL  as known today.[11] Civilian protection, as noted above,  much predates this intellectual foundation in the 17th century but the culmination in the 20th century of Additional Protocol I (and II) of the 1949 Geneva Conventions[12] took the idea of civilian protection to new heights and gave a clear legal statement as to the distinction of a civilian in armed conflicts. The Geneva Conventions have also been bolstered by other developments in IHL after 1977 that have further affirmed civilian protection. New laws on landmines, and chemical and laser weapons, combine with the statute of the new International Criminal Court and the UN Tribunals for Rwanda and the former Yugoslavia and the Special Court for Sierra Leone to create a growing framework for civilian protection in war and from genocide.

The 1977 Additional Protocol I[13]

It was the brutalities of the conflicts in Vietnam, Middle East, Nigeria, etc., and decolonization that gave a further impetus to reaching agreement on the two 1977 Additional Protocols: it was an achievement not to be belittled and “something perhaps rather great [was achieved].”[14] The “greatness” was in the degree of protection that the civilian was being given for the first time and the almost universal acceptance of the Protocol by nation states. But even more important is the global acceptance of the values embodied in it. This was demonstrated by the persistent public discourse on IHL pertaining to the use of force in the Second Gulf War. The main protagonist in the conflict, the US, was constrained to vehemently counter accusations of violating the Conventions although it had not even a ratified protocol I.[15]

As so often in the past, it was the International Red Cross that proposed substantial rules in 1969 to supplement existing IHL.[16] Many of these were included in UN General Assembly Resolution 2675 outlining draft rules for the protection of civilians. These Draft Rules became the basis of the final texts of Additional Protocols I and II to the Geneva Conventions 1949 adopted, through consensus at the Diplomatic Conference convened by the Swiss Federal Council.

Protocol I, for the first time in the history of IHL, defined the civilian caught in a conflict and expressly distinguished “between the civilian population and combatants and between civilian objects and military objects.”[17] Article 50 defines a civilian as a person not directly involved in hostilities and a civilian population consists of such persons. The basic rule is that the parties to a conflict should distinguish between civilians and civilian objects on the one hand and combatants and military objects on the other, and should direct their military operations against the latter. However, even where civilians are not directly the objects of an attack their proximity to a valid military objective may result in it not being attacked if the civilian casualties would be excessive in relation to the military advantage to be gained.

More importantly, a considerable amount of ambiguity as to who is or is not a civilian has been removed by the requirement that “in case of doubt whether a person is a civilian that person shall be considered to be a civilian.”[18] Nevertheless, for example the Afghanistan conflict illustrates, disputes as to distinguishing between civilians and combatants continues to hinder the application of IHL.

Articles 51, 52 and 57 are important in that opposing forces are required to limit their attack to military objectives but of more significance from our perspective is Article 54 which requires protection of objects indispensable to the survival of the civilian population.  Article 51(5a) regulates bombardment in populated areas in that it is prohibited to attack a whole area as one target if in that area several military objectives are located. Article 51 (5b) is worth quoting in full because it refers to the important principle of proportionality (codified for the first time):

Among others, the following types of attack are to be considered indiscriminate -:

“An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

This article requires the commander to weigh the consequences of his decision to attack in terms of the military objective as against possible civilian casualties. This, in itself, is a subjective exercise and depends on the prevailing situation on the field.

Article 52, though important, has generated controversy. It prohibits attacks on non-military objects and defines military objects as “objects which by their very nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offer a definite military advantage”

The interpretation of Article 52 has been debated extensively. For example, when does an advantage become definite? Some states, such as the US, have taken a liberal view of what constitutes a ‘military objective‘[19] while others have adopted a more restricted approach and consider only those objects that have a more direct link with the military to be a military objective.[20]

Article 57 reaffirms:

“.. those who plan or decide upon an attack shall:

take all feasible precautions in the choice of means and methods of attack with a view to avoiding…, incidental loss of civilians life, injury to civilians and damage to civilian objects;”

The above is a summary of the salient Articles of Additional Protocol I relevant to our study and we shall now turn to the important principles enshrined therein and examine those.

Section II – Developments in Air Power & Legal Concepts

The 1977 Additional Protocols constitute a significant development in the protection of the civilian. Specific steps were required to be taken for protecting the civilian and civilian objects during international conflict. Most of the principles and legal concepts contained in Protocol I have a long established basis in customary international law. The main elements relevant to our case studies are those of distinction (or discrimination), proportionality, military necessity and military objectives. There are difficulties in interpretations of these principles which are further complicated by targeting policies and dual-use facilities. The increasing impact of technological developments in weaponry and aerial warfare is also of consequence.

Precision guided ammunitions (PGM’s), satellite-launched/guided missiles and aerial bombardment have changed the face of battle as never before. Development in the precision of weapons has given military planners freedom and flexibility in the use of force.[21] In theory, it is to comply potentially with the distinction requirements of Protocol I between combatants and non-combatants on one hand and protected property and military objects on the other.  But in practice this potential has proved controversial as our case studies will illustrate. The precision of modern bombardment has highlighted several grey areas in IHL such as the targeting of belligerent leadership or dual use targets. Technological developments have had the impact of stretching the boundaries of IHL.

Developments in air power have had a particular influence in the evolution of IHL. But are there rules and regulations restraining aerial bombardment law? Land Warfare Law is certainly well developed and so is, unarguably, Naval Warfare Law. Attempts have been made to regulate aerial bombardment by treaty law but the development in this respect remains non-existent.[22] It is ironic that the advent of airpower has had such an impact on giving impetus to development in the protection of civilian, but the rules and regulations for the conduct of air warfare itself remains nascent. It is to this we turn our attention to first, and, then the legal concepts within Protocol 1 so far as relevant to air warfare.

Air Power and IHL

As mentioned earlier, before the advent of air power civilians were, in general, immune from the effects of war unless, of course, an army was on the march and requisitioning or the civilians were part of a besieged town. With the development of air power, attacks could be launched well behind enemy lines only not against the enemy’s armed forces but also against supply depots, logistics and lines of communication. Inevitably, and increasingly, civilians became casualties.

The changed nature of warfare in the early twentieth century was to have other consequences. The heavy demands of the large but mobile conscripts armies that were put into the field in the Second World War and their increasing reliance on mechanization meant that civilians had to be employed in factories producing weapons, warships and military aircraft, their armaments and components, and in installations producing the fuel to drive vehicles and the raw material such as steel needed to build ships. The emphasis of targeting was shifting away from enemy combatants to the equipment and supplies on which they depended, but at great cost to the enemy’s civilian population. Though still protected by IHL from direct attack, they were not protected from the incidental damage caused as a by-product of attacks on war production facilities. Bombing was still far from precise.[23]

The Second World War started with a commitment by all the major belligerents to avoid casualties to civilians from aerial bombardment. But three years into the war, the inviolability of civilians was totally discarded, especially by the US and Britain. Civilians became deliberate targets. The following description of the effects of a US bombing raid could be mistaken for the attack on Hiroshima or Nagasaki:

There were reports of babies being torn by the high winds from their mother’s arms and sucked into the flames. Many died trapped in the burning wreckage of buildings. Upon entering air-raid shelters, would-be rescuers found nothing but bones suspended in congealed fat. Women and children were charred as to be unrecognisable.[24]

But that was the fate of the German civilians of Hamburg where harm was intentionally inflicted as a military policy through aerial bombardment. Within 25 years of its first use on the western front, Britain and the US took aerial bombardment (strategic bombing) to new heights. Hamburg was to lose 45,000 civilian in one night whilst Dresden, after 14 hours of aerial bombing, over 100,000. Similarly 5 Japanese cities were fire-bombed before the atomic attacks on Nagasaki and Hiroshima. The rationale for aerial bombardment was to destroy the enemy morale. The justification for civilian casualties was that they had become too integrated into the military effort to be isolated from the consequences of war.

IHL was slow to react to developments in air warfare. This was probably because, initially, airpower was intended only for transportation and not for bombardment.[25] At the battle of Marne during the early years of First World War, air reconnaissance proved decisive for the French and disastrous for the German war plans. But air power, in terms of as a method of bombardment, was never even contemplated to play a tactical role let alone a strategic one as it is now. Field Marshal Foch had declared in 1912 that flying was a fascinating sport but not of the slightest interest to the armed forces, notwithstanding the fact that a year earlier the Italians had dropped bombs over Libya for the first time from an aircraft. Hindrance to the development of the rules and codifications, in this area have also been influenced and affected by other factors characteristic to aerial warfare: rapid technological development, relative recent emergence of the aircraft and its dual use as a weapon and serving peaceful civilian purposes. It is thus not surprising that no single set of international rules or treaty governs the conduct of aerial bombardment. Most of the rules that are applied to aerial bombardment are those that derive from the general rules of warfare in the Hague and Geneva Conventions as discussed below.[26]

However, some specific legal regulation relevant to air warfare was introduced in 1899 when the First Hague Peace Conference adopted three Declarations and three Conventions. The first prohibited the launching of projectile and explosives from balloons or similar objects.[27] The measures were temporary (lasting from 4 September 1900 until 4 September 1905) justified by the inaccuracy of such methods in discriminating. However, the regulations were too restrictive and hindered further developments for a permanent ban. The Hague Declaration of 1907, once again, renounced “the discharge of projectiles and explosives from balloons or by other new methods of similar nature.” But application of the Declaration had been conditioned by a general participation clause, and since the declaration had not been ratified by the various belligerents in the First World War, it was binding on no one. Nevertheless, the 1907 Convention did establish restrictions on the means used to injure the enemy and stop property being destroyed unnecessarily. Restrictions were also placed on bombing structures such as hospitals and places of worship during sieges and bombardment.[28] Article 26 also stated that belligerents “do all in their power” to give the civilian population warning of what was coming; but this fell far short of the total inviolability civilians would receive in 1977. The Geneva Conventions was to be expanded on these provisions to include medical shipments and convoys, and hospital zones.[29]

Specific attempts at regulating aerial warfare and protection of civilians from aerial bombardment by treaty, understandably, occurred in the aftermath of the First and Second World Wars. However, these attempts failed.  In 1923, a Commission of Jurists drew up a draft of Rules of Air Warfare, which would have forbidden aerial bombardment of civilians or of injuring non-combatants and additionally defined military objectives to which attacks were to be confined.[30] Once again, four years after the Second World War, the International Committee of the Red Cross formulated Draft Rules for the limitation of the Dangers incurred by the Civilians Population in Time of War.[31] These were similar to the 1923 Rules which prohibited attack on civilian populations and permitted attacks only on military objects. However, what militated against the acceptance of the Rules by governments, was its prohibition on target-area bombardment and its extensive precautionary requirements in attack.

Although no treaty resulted from the above attempts at regulating aerial warfare, both, especially the one of 1923, had a profound impact on customary international law governing aerial warfare which, together with state practice and pronouncement, contributed to the emergence of general principles. A consensus appears to have emerged that civilians should not be the object of attacks and that the incidental harm caused to civilians through the bombardment of military objectives should not be out of proportion to the military advantage to be gained and. to the extent possible, precautions should be taken to protect civilians.[32] These principles, as we have seen above in Section I, found their way into Protocol I. However, in this context, it is also worth mentioning the 1969 UN General Assembly Basic Principles on Armed Conflict that had relevance for aerial bombardment. There were 8 principles and 5 of them are of particular relevance:

2.  “…In the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations.

3. In the conduct of military operations, every effort should be made to spare civilians from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage on civilian population.

4. Civilian populations, as such, should not be the object of military operations.

5. Dwellings and other installations that are used only by civilian populations should not be the object of military operations.

6. Places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the object of military operations.[33]

Air Power & Protocol I

The various provisions of the  two conventions  (1899 and 1907) and the two Rules were to be the building blocs of Protocol I. Protocol I does not  specifically address  aerial bombardment although Article 49 provides that all its articles concerning the protection of the civilians apply to all means of attack. As we have discussed in Section 1, Protocol I clearly prohibits attacks against civilians, civilian objects and protected property. Protocol I obliges belligerents to take measures to limit loss of civilian life and damage to civilian property incidental to attacks on military targets. The Protocol underlines the critical concepts of distinction, military necessity and proportionality: these are the concepts that determine any targeting decisions of planners of air warfare. The absence of treaty law does not mean complete freedom in the use of means and methods during air warfare. Aside from the rules in Protocol I natural law and customary law also impose restrictions. Customary international law restraints on warfare are premised on the idea that violence and destruction that are unnecessary to actual military necessity are wasteful, counterproductive and immoral. The principle of humanity both complements and limits the doctrine of military necessity, proportionality being central to the latter. How are these principles, and consequently Protocol I, applicable to air warfare?

Distinction

Distinction is the most fundamental, and uncontroversial, principle of customary international law. It provides that non-combatants must be distinguished from combatants and military objects from civilian. As discussed earlier, the core principle of distinction is to be found in Article 48 of Protocol. Under Article 50 of Protocol I, a civilian is any person who is not a member of the armed forces in the sense of Article 43 of Protocol I. Members of the armed forces, as so defined, are legitimate objects of attack, except in so far as the law of war extends protection to them in various circumstances. Article 50(2) states that the totality of the entire civilian constitutes the “civilian population.” The presence of soldiers within the civilian population does not deprive the latter of its immunity nor does the presence of large number of soldiers within the civilian population give the former immunity.[34]

Article 51 (4 & 5) states:“Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” However, the fact that attacks upon legitimate military objectives may cause terror among the civilian population does not make such attacks unlawful. Terrorising civilian populations by aerial bombardment had been practiced during the two World Wars, and in the 1960s, in violation of international law; the Rules discussed above would have forbidden terrorising the civilian population. In view of this, the above rule was inserted into Protocol I. This Article also prohibits aerial bombardments to destroy civilian morale. Technically there may be a distinction between terror and morale attacks but in practice they are treated the same. What may be a morale bombing to the attacking force will be a terror bombing to the targeted civilians. As such, aerial bombing intended to force civilians to overthrow their government or leadership would be unlawful bombing.

Central to the principle of distinction is the concept of the military objective, or the legitimate target. The definition of “objects” has two elements: (a) their nature, location, purpose or use must make an effective contribution to military action, and; (b) their total or partial destruction, capture or neutralisation must offer a definite military advantage in the circumstances ruling at the time. It is a requirement that both elements of the definition must be met before a target can be properly considered an appropriate military objective. Without this limitation to the actual situation at hand, the principle of distinction would be void, as every object could in abstracto, under possible future developments become a military objective.  The drafters of Protocol I tried to avoid too large an interpretation of what constitutes a military objective.  The Protocol I definition has been criticised by some American scholars as focusing too narrowly on definite military advantage and paying too little heed to war sustaining capability, including economic targets such as export industries.[35] The British view also appears to be that the Protocol definition is too narrow and include as targets such as broadcasting and television stations as military objectives.[36]

It may be that, for practical purposes, a definition of a civilian object in the Protocol would have been more satisfactory. But because it is not the intrinsic character of an object but the use made of the object that defines it as a military object, military objects had to be defined. Indeed, every object other than those benefiting from special protection (protected property) may become a legitimate object of attack.

Perceived successes of  aerial bombardment, and in particular use of PGM’s, in modern conflicts has also raised questions as to the rationale behind limitation to military objectives, pointing out that the aim of modern conflicts is the capitulation of  (usually dictatorial) governments. As Clausewitz has claimed, the aim of every armed conflict is to defeat the enemy’s will. Acquiring a non-military advantage over the enemy can more effectively accomplish that aim. Traditionally, Clausewitz argued that the centre of an enemy’s gravity was its armed forces. Now some strategists argue that the centre of gravity is no longer the armed forces but may be the political leadership or the political support of the civilian population.[37] So, the argument goes, why limit attacks to just military objectives?

Proportionality

Concentrating unduly on the principle of military objective might lead one to ignore civilian casualties or consider them as collateral damage in the course of legitimate activities. The principle of proportionality counters this tendency by requiring a constant weighing of military and humanitarian values. Although the term proportionality is not mentioned in Protocol I, equivalent terms such as “excessive damage” or “excessive injury” are used in Articles 15, 57 and 85. Therefore, notwithstanding the customary law aspect of the concept, the principle of proportionality clearly does bind parties to the protocol.

As the US is the major protagonist in the case studies to follow and a non-ratifying state of the Protocol, it is important at this juncture to comment on its attitude to the principles enshrined therein. The US has declared its intention to be bound by those principles that reflect customary international law.[38] The US Air Force Pamphlet advises that, in applying international legal limits to air attacks, the following precaution must be taken:

1. Do everything feasible to verify that the objectives attacked are neither civilians nor civilian objects….

2. Take all precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians, and damage to civilian objects; and

3. Refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.[39]

It will be noted that paragraph 3 embodies the principle of proportionality while 1 and 2, embody the principles of discrimination and humanity respectively. Therefore, the US expressly recognizes Article 51 as a customary International law and it will not have escaped attention that the Air Force Pamphlet enjoins attack against civilians in terms virtually identical to Article 51.

However, whether or not a state is a party to the Protocol, its armed forces are required to respect the customary rule of proportionality which attempts to balance military and humanitarian consideration. When applying this rule, those who decide upon an attack must take into account the effects of the attack on the civilian population in their pre-attack calculations. They must determine whether those effects are excessive in relation to the concrete and direct military advantage anticipated. A balancing act must be carried out depending on various factors:

a) the importance of the target and the urgency of the situation;

b) intelligence about the proposed target, i.e. what is being, or will be, used for and when;

c) what weapons are available, their range, accuracy and radius of effect;

d) conditions affecting accuracy of targeting such as terrain, weather, night or day;

e) factors affecting incidental loss or damage, such as the proximity of civilians or civilians objects in the  vicinity of the target or other protected objects or zone and whether they are inhabited, or the possible release of hazardous substances as a result of the attack;

f) the risks to his own troops posed by the various options open to him.[40]

In practice the balancing test is extremely difficult to conduct as it requires comparing and quantifying dissimilar values i.e., military advantage and incidental injury.  How, for example, is one to measure the suffering caused to civilians during attack on a bridge against the military advantage of disrupting enemy logistics/supplies?  Furthermore, the value attributed to a target or the incidental injury depends who is making the assessment and the value is never constant in practice as it should be. Does the concept apply to individual facets of an attack or the attack as a whole? The latter appears to “represent(s) the weight of opinion, (although) consensus remains elusive.”[41]

The emphasis on precise aerial bombardment and from a safe distance without placing the attacking force in danger has created what Schmitt, who has made a special study of the subject, has termed a “false dilemma regarding proportionality.” It has been argued that aerial attacks from a safe distant create increased civilian casualties and the attacks are therefore disproportionate. Schmitt asserts that this argument “wrongly excludes preservation of one’s own forces as an important military advantage to be considered when conducting proportionality calculations.”[42]

Dual Use Objects and Urban Operations

Aerial bombardment of dual-use objects and of targets in urban areas creates particular dilemmas. Precision guided munitions have, to some extent, eased the dilemma of the military planner but experience indicates that accuracy cannot be taken for granted. Additionally, only a very limited number of states have the capability to deploy PGM’s or the resources to afford them. Whilst the targeting of dual use objects raises complex issues in relation to operations in urban environments, the ultimate question revolves around the principle of distinction and proportionality.

The military and civilian populations often use common power sources, transportation networks, and telecommunication systems. Distinguishing between the military and civilian infrastructure is difficult and it may be impossible to disable or destroy only those elements servicing the military.

It would appear from the restrictions within Protocol I that attacks on dual use objects may be unlawful but the issue is not clear-cut and is open to interpretation. It is also not clear from the literature whether there is an absolute prohibition on attacks on dual use objects in terms of customary international law. The US, as a constant objector to and violator of the rule, would adopt the stance that it has not been accepted as a norm. Attacks on dual use objects can have extensive effects on the civilian population and raise concerns about proportionality. Disagreement centres on the weight to be given to the immediate and direct injuries to civilians or the longer indirect effects of an attack on a civilian population. The US and the UK adhere to the former interpretation when making proportionality calculations[43] and tend to liberally interpret “military objective” when it comes to dual use objects.

Aerial bombardment in an urban area poses serious problems for compliance with principles of discrimination and proportionality. Urban environments increase the chances that military attacks will harm civilians and even the impact of small precision munitions can be devastating for the population. The structure and organisation of urban centres where military and civilian institutions can be adjacent to each other or even in the same building creates targeting restrictions and limitations difficult to overcome. To compound these difficulties belligerents may deliberately place military objects or combatants within urban centres.

In the above circumstances any aerial bombardment would still have to comply with proportionality principles and refrain from attacks likely to result in excessive civilian casualties in relation to military gain

Section III – Operation Allied Force

Introduction

Having reviewed the legal principles underlying the protection of civilians and the laws of war pertaining to aerial bombing, we now turn to the use of air power in two case studies: Kosovo and Afghanistan. Tentative conclusions will be drawn from the estimates of casualties and the degree of adherence to Protocol I when air power is used.

Whilst it is possible to investigate and evaluate specific instances of civilian casualties within a particular case study, it is difficult to draw concrete conclusions for comparison purposes between the case studies. One of the main reasons is that there are no consistent and transparent sources for the compilation of figures on civilian casualties.

In both conflicts the US was the main air power, and the military doctrine and air assets used were to some extent uniform. The two theatres of operation were in different continents, under different politico-social conditions. What was politically acceptable in Afghanistan was not so in Kosovo. What critical examination by the media (“CNN” Effect) of aerial bombardment in Afghanistan there was, conceding the context of September 11, could not match that received by Kosovo. The CNN effect was certainly important in determining the freedom of how aerial bombardment was used. Restraint and pressures within the US-led coalitions and the political scrutiny of force was not consistent in the conflicts

The geography and demography of the two regions was starkly contrasting; this in turn had consequences for the way air power was used and the “accessibility” of targets. Population density in the target area determined the size of causalities as well as the degree of restraint.

The type and number of munitions used were important factors: the number of PGMs employed in the Afghan conflict was far greater than in Kosovo.  The duration of the conflicts is yet another factor: the Kosovo war lasted for 78 days and the Afghan 103 days. The ground forces used in Afghanistan were much larger than in Kosovo. This, of course, meant that in the Kosovo war, air power “achieved” the goal of winning a war on its own. The complexity and effectiveness of air defence systems, including fighter cover, also varied: it was highly effective in Kosovo but non-existent in Afghanistan. In both conflicts command of the air by the US-led coalition was achieved at an early stage and air operations took place freely and with impunity.

But the greatest obstacle to securing accurate estimates of civilian casualties is the absence of official records and the difficulty of obtaining information. In Afghanistan this is even more problematic because of the country’s impenetrable terrain and the consequent inability of independent assessors to move about freely. The virtual absence of independent sources as well as the difficulties posed by cultural practices such as the quick burial of the dead in accordance with Islamic traditions collectively result in the absence of  accurate data on casualties.

The Kosovo conflict was fought almost exclusively with air power. Unlike the Afghan war, the political leadership, anticipating a brief campaign, retained control over the use of air power.[44] This ensured greater restraint, discrimination and proportionality. NATO had openly opted for air power to stop the human right violations and ensure withdrawal of Serb forces. Reliance on air power alone made the achievement of political objectives difficult and, after six weeks of bombing, there were more Serb forces in Kosovo than before the campaign.

An important truism is that media presence impacts on the number of casualties. This is amply demonstrated by the Kosovo conflict were media exposure ensured fewer casualties while in Afghanistan the numbers were much higher because of the relatively weak media presence. The latter’s watchdog role thus sensitises public opinion and, consequently, compliance with IHL.[45] In democracies, media exposure inevitably also influences political direction of targeting policy and the operational freedom of the military.[46]

NATO policy on the use of air power and targeting policy were well known: first targets to be hit were Serbian surface-to-air missile sites, military installations and troop concentrations. Others included those used by civilians and military such as communication facilities, roads and bridges. Attacks on dual-use facilities, such as power stations, oil and petroleum depots received particular media attention. Considerable efforts were, therefore, made to limit attacks to military targets and avoid civilian causalities and damage to civilian objects. Targeting was tightly controlled by constant review of its legal, political and military terms at the NATO headquarters (SHAPE) and national capitals of the participating NATO members. Dual-use targets were to have a distinct military component to secure approval for attack.[47]

The US-led Operation Allied Force began on 24 March 1999 when Richard Holbrooke’s attempt at mediation failed and OSCE monitors withdrew from Kosovo. Fourteen NATO member-countries launched air attacks from 24 European bases and 3 aircraft carriers. The war, that was supposed to last a few days rather than weeks,   concluded after 78 days resulting in the deaths of 500 civilian and about 600 Serb military and police.[48] NATO conducted over 37,000 sorties and used approximately 40 percent PGM.[49] Two-third of the first month of aerial bombardment took place during the night and, more importantly, in the first month of the campaign 50 percent of the strike sorties were cancelled, tons of bombs were dropped in the Adriatic due to bad weather, under the rules of engagement imposed by the politicians.[50]

“Morale” Targeting

During the Kosovo conflict several targets were hit raising worldwide concerns and publicity. Similar incidents occurred in Iraq and later in Afghanistan more frequently but never received the same media attention and hence there was no important restraining influence. In Kosovo such incidents included the attack on a passenger train transporting internally displaced civilians, the Chinese embassy, bridges, Serbian television and the electric grid systems. Some of these were targeting errors because of faulty intelligence, some were accidents, whilst other were deliberate attacks justified by military necessity. Human Rights Watch (HRW) found that “all too often NATO targeting subjected the civilian population to unacceptable risks” either in its illegal targeting or failing to take adequate precautions to verify civilians presence when attacking mobile targets.[51] The HRW reports question whether civilian casualties were sufficiently taken into account or whether NATO’s strategy of psychological warfare was intended to harass civilians. NATO’s high altitude bombing was specifically identified as a reason for the unacceptable risks taken with the civilian population.

The Chinese Embassy incident on 7 May 1999 was admitted as a mistake by the US Air force and was attributed to incorrect information.[52] A mobile target that was attacked resulting in large civilian casualties was the Djakovica convoy on 14 April 1999.  The target was found to be a civilian object although NATO claimed that all the available intelligence indicated that it was military and that the attack was called off when it was realized that the object attacked was civilian.[53] In practical terms, air power without sufficient ground intelligence made targeting vulnerable to human error and NATO’s dependence only on non-ground intelligence made it difficult to achieve political objectives.

The Djakovica incident raised several issues. One was NATO’s policy of bombing from an altitude of 15,000 feet in order to minimize risks to the pilots especially from hand held surface-to-air missiles and ant-aircraft artillery; another was rules of engagement for air patrols seeking target opportunities without verification.[54] Protocol I imposes a duty to undertake all “feasible precautions” before commencing attack. Hans-Peter Gasser comments:

The keyword is feasible: the law does not expect the impossible, but it asks the Commander or the staff Officer to do what he can do. The United Kingdom’s declaration on signing Protocol I give appropriate indications for the interpretation of this notion. ‘the word feasible means that which is practicable or practicably possible, taking into account all circumstances at the time including  those relevant to the sources of the military operations’.[55]

Protocol I would require a pilot to get close to the target to identify it correctly whilst military necessity and advantage, would require pilots to fly at a sufficient height to reduce risk. Also relevant is the rule mentioned earlier of presumption when there is doubt i.e., when the identification of a target is in doubt it must be presumed to be a civilian.  In situations where states are not party to Protocol I, customary international law requires attacking only military objectives. Although unclear from available literature, the level of care would not be higher in customary international law than in Protocol I, namely “do all that is feasible.” Clearly, the requirements of IHL and military advantage are in conflict and this is an area that requires further research.

Milosevic’s intransigence compelled NATO to change its strategy and attack dual use targets plus those that would instigate the public to exert pressure on the political leadership. Public morale thus became a target towards the middle of the 78 day campaign, while in the Gulf conflict it was targeted from the start.[56] Yugoslav electric installations and industrial structures began to be hit on the 40th day of the campaign and almost 70 percent of the power was disrupted. The HWR report, states that targets were chosen to harass civilians and that these included bridges and radio and television stations.

Serbian Television and Radio

In the early hours of 23 April 1999, NATO aircraft attacked the Serbian State Television (RTS) in Belgrade killing 17 civilians. At the time at least 120 people were in the building and the attack generated heated international controversy: RTS was entitled to the protection granted to civilian objects, though not absolute protection, was it therefore a legitimate military objective? Was state control and ownership of a “pro-government propaganda apparatus” sufficient to regard it as a military target especially when 17 civilians died? Alternatively, was the attack proportional? Finally, were the civilians forewarned about the attack?

NATO argued that RTS was targeted because it had become the mouthpiece of Milosevic and was responsible for fostering ethnic nationalism and hatred. It however primarily relied on the dual-use of RTS to justify its aerial bombardment: the RTS was linked to the C3 (command, control and communication) network.  At a press conference prior to the bombing, NATO declared RTS a military objective, but apparently gave no   warning to the civilians to vacate the premises. Although not journalists,[57] in the traditional sense of the word, the RTS personnel were protected persons as Protocol I equates them to civilians during armed conflict.[58] However, as the ICTY Committee opined, if the additional use of the facilities was that of an integral part of the C3 network, then it was a legitimate target.[59] This view approximates that of Protocol I that a dual-use object may be a lawful military object when the criteria of Article 52 have been met (see Section I above).

The Final Report also concluded that although civilian casualties were high, the attack on RTS was not disproportionate. This conclusion was reached by counterbalancing the civilian deaths with the overall concrete and “direct military advantage anticipated” from attacking the specific dual-use component of the network. The coordinated targeting of the radio relay buildings were intended to deny communications to Serb troops and afford NATO military advantage.

Even if the concept of proportionality affords the attacker considerable latitude, he is required to limit damage to civilians and take all feasible precautions as stipulated in Article 51 and 57 of the Protocol. In this respect, serious reservations have been expressed whether NATO did in fact take the necessary measures to protect the civilians from harm. Its warnings were contradictory, unclear and too little.[60] The Final Report concluded that although there were conflicting testimonies, NATO should have given sufficient advance warning.[61]

Finally, the ICTY Committee concluded that the use of the media to incite hatred may justify its destruction but propaganda alone was not sufficient to warrant such an attack.[62] NATO’s claim was that the destruction of RTS for its propaganda role was secondary, if complementary, to that of its C3 function. However, it is unavoidable that during a conflict, state controlled media is involved in propaganda and journalists, therefore, should be accorded protection.[63]

On balance, in the light of articles 51, 52 and 57 of Protocol I, the attack on RTS was a violation of IHL. Although the Protocol was not ratified by some of the attacking states, the principles enshrined in these articles were the same as in customary international law.

On balance, however, the degree of compliance with IHL during Operation Allied Force was exemplary especially the extent to which NATO forces went out of their way to avoid casualties. On the other hand, the conditions under which Operation Allied Force took place were exceptional and problematic for comparison purposes.

Section IV   – Operation Enduring Freedom

If Operation Allied Force was characterized by restraint and is likely to be highly scrutinised, Operation Enduring Freedom was anything but restrained and unlikely to be scrutinised seriously because of the aftermath of 11 September 2001. The Taliban’s harsh rule and links to Osama Bin laden alienated international sympathy. Furthermore,   Afghanistan was neither located in Europe nor did it have large oil reserves to generate the sympathy of the international media. The mainly US-UK coalition with NATO support began bombing of the Taliban regime on 7 October 2001 to bring about regime change.

Operation Enduring Freedom was fundamentally different in other ways too. Unlike the two other campaigns, aerial bombardment did not have any worthwhile targets such as complex industrial structures or extensive electrical grid systems, or even dual-use facilities: the Russian occupation of Afghanistan in 1979 and the subsequent civil war   that had raged since 1992 had left the country denuded of targets. With the absence of civilian objects that could be bombed, civilians became targets with little regard to proportionality or precautionary measures. Most of the US aerial bombardment occurred over 9 of Afghanistan’s 32 provinces which comprise less than 25 percent of the country’s territory but more than 50 percent of its population.

The context of the Afghanistan conflict, as that of any other, is important. The context of any conflict determines the way adversaries are viewed or treated. For Afghanistan, 11 September 2001 is important for two reasons: the attitude of the US to international norms, its perception of the threats and how it reacted to these; secondly, criticism of US violation of IHL was muted because of post-9/11 global sympathy.

The Project on Defence Alternatives (PDA) concluded in its study of the conflict:

Despite the adulation of Operation Enduring Freedom as a “finely-tuned” or “bulls-eye” war, the campaign failed to set a new standard for precision in one important respect: the rate of civilians killed per bomb dropped. In fact, this rate was far higher in the Afghanistan conflict – perhaps four times higher – than in the 1999 Balkan war. In absolute terms, too, the civilian death toll in Afghanistan surpassed that incurred by the NATO bombing over Kosovo and Serbia; indeed, it may have been twice as high.[64]

Estimates on the number of civilians killed in Afghanistan from October 2001 till the end of March 2002, vary greatly.[65] The US, as per policy, does not maintain casualty records but various organizations have estimated civilian deaths between 1000 and 3,400. PDA estimates that between 1000 to 1300 civilians died as a consequences of bombing, whilst Human Rights Watch puts the figure at around 1000.[66]A much disputed estimate by an American academic, Prof. Marc Herold, puts the civilian dead between 3000 – 3400 during the period under consideration.[67] Compilation of data by the various organizations and individuals of casualties have their weaknesses but all point to heavy civilian losses.[68] The difficulties with estimating casualties are compounded by the US’s refusal to release their figures of civilian casualties, and also the US decision to purchase all the exclusive rights to all the satellite images from Space Imaging Inc.; these images would have made it possible to corroborate damage from aerial bombardment.[69]

Although 60 percent of munitions used in Afghanistan were PGMs, compared to 38 percent in Kosovo, the casualty estimates are surprising.  There were other distinguishing features: greater reliance on bombers as compared to tactical aircraft, aircraft on longer  flights en route to sorties, majority of sorties were undertaken by tactical naval aircraft and finally the majority of the PGM’s used were satellite guided as compared to  Kosovo where laser guided munitions were more extensively deployed.[70] Several other factors contributed to the higher rate of casualties: e.g., the lack of fixed targets, foes indistinguishable characteristics from the civilian population and reliance by the US for targeting intelligence on forces opposing the Taleban.[71] But because of the safety mechanism inserted into Protocol I and customary international humanitarian law, the excessive civilian casualties should still not have occurred.

In the name of targeting Al-Qaeda, scores of civilians were killed in different incidents with no apparent respect to proportionality and distinction.  As we saw above, in the case of Kosovo, where large numbers of civilians were killed in a few incidents the worldwide publicity and scrutiny was understandable. However, in the case of Afghanistan no such examination has been forthcoming in spite of the larger number of incidents. In October 2001, for example, the following incidents were reported by the British papers: 11th October, village of Karam was bombed leaving over 100 dead;[72] 13th October, over 15 civilians killed, US claims a stray missile was responsible for deaths;[73] 21st October, bomb kills over 80 in a Herat hospital;[74] and 31st October, Red Crescent Clinic hit killing 12 civilians in Kandahar.[75] The same month there were other incidents of refugees, ambulances, wedding celebrations being attacked from the air with sizeable civilian casualties but these remain unconfirmed. In subsequent months numerous other incidents occurred where civilian casualties ran into scores.

Afghanistan’s limited civilian infrastructure did not remain intact after a few weeks of the aerial bombardment. On 15 October the main telephone exchange was knocked out killing 15 civilians; on the 28 October the electric grid system in Kandahar, the spiritual capital of the Taliban, was destroyed depriving the whole province of electricity; on  31 October several attacks were launched against the Kajakai dam; and on 12 November a direct hit on Al-Jazeera new agency in Kabul raised concern as earlier Secretary of State Powell had asked the agency to tone down its reports of casualties in Afghanistan.[76]

Despite the large number of civilians killed in dubious circumstances, no attempt has been made by either the US, UK or international non-governmental agencies to hold an enquiry such as those held after the Kosovo conflict. The military was given complete freedom in targeting policy as western politicians did not have a constituency to be concerned about if Afghan casualties ever became known.

Emerging Targets and Civilian deaths

The vast majority of the US-UK strikes during operation Enduring Freedom were carried out against what is termed “emerging” targets – targets that are not pre-determined and do not exist on maps and which require immediate military response. Air attacks against emerging targets are inherently inaccurate and indiscriminate. It is attacks against emerging targets that caused the greatest number of civilian casualties. One such incident was the attack on a convoy of Afghans, including tribal leaders, from the province of Paktia on their way to the inauguration of the interim Afghan leader, Hamid Karzai.

The incident on 30 December when the village of Qalai Niazi was struck is instructive as to the degree of violations of Protocol I and, in particular, the principle of proportionality and the advance warning rule enshrined in Article 57. The incident also demonstrates the indifference of the western media about civilian deaths in Afghanistan compared to Kosovo.

The US, which at first denied the incident, contended that the village sheltered Taliban and Al Qaeda fighters and had ammunitions dumps. Western reporters confirmed weapons stockpiles as well as civilian casualties including children. British papers reported the incident in graphic detail.[77] The New York Times and the Los Angeles Times merely touched upon the event as a backgrounder to the inauguration of Hamid Karzai’s interim government. The Times reported a few months later that the UN estimates of civilians deaths were 52 including 25 children;[78] the Guardian, however, estimated between 57 and 107 fatalities but added that “innumeracy, rapid burials, damage to bodies, propaganda and remoteness” impeded verifiable statistics.[79]

Granted that Qalai Niazi was a legitimate target, and there is no evidence to indicate that the US did not genuinely believe this to be the case, questions still arise whether sufficient warning was given to the civilians or whether the force used against the village was proportional to the military advantage. The evidence gathered by journalists indicates that the answers are in the negative.[80]

To eliminate the alleged presence of Taliban and Al-Qaeda fighters, three waves of B-52 bombers struck the village followed by helicopter strikes. UN sources reported that civilians, including children, were strafed whilst running for cover. Since the attack had been planned several weeks in advance,[81] it was not an emerging target and, therefore, the failure to give prior warning to the civilian was a violation of IHL.  It was also   reported that British forces were on the scene within a day of the attack, and this raises questions as to the method used to strike Qalai Niazi i.e., an alternative form of attack was available.

Afghan air defences were non-existent in comparison with that of Kosovo where NATO aircraft were constrained to fly higher and civilians became more vulnerable. In   Afghanistan pilots flew at low altitudes and made greater use of PGMs and this should have resulted in fewer civilian casualties.  Notwithstanding that casualty figures could have been inflated or inaccurately reported by the media and human rights organizations, Afghanistan underwent the most devastating air bombing of civilians in recent times.  Human Rights Watch reported:

The US military takes precautions to minimize civilian loss of life during its operations – but obviously not enough. There is now a pattern of mistakes, apparently as a result of faulty intelligence, that has led to too many civilians’ deaths and no clear changes in the way the United States plans and carries out military operations.[82]

Section VI- Conclusion

A general conclusion is that efforts to comply with Protocol I when airpower was used were exemplary especially in the discrimination of civilians and strictly civilian objects. In neither of the case studies were civilians directly and intentionally targeted. However, the striking of dual-use facilities was extensive and in Afghanistan, emerging targets were always presumed to be terrorists/Taliban fighters, thereby continuously causing large civilians casualties.[83] It appears that in Afghanistan, the avoidance of civilian casualties was not accorded priority in planning strikes. The military was given a free hand and the Bush administration did not have political constraints.

The extent of political involvement, as opposed to allowing the military a free hand in targeting, is important for compliance with IHL. There are two contradictory but important considerations: politicians desire a “zero-casualty war” on the one hand, and on the other, they are averse to mass media projection of casualties. The CNN effect is difficult to ignore because international public opinion is anti-war. Political rather than military necessity has become the decisive factor in targeting.

Although the two case studies are not entirely comparable, in the 1999 conflict force was used to seek compliance with limited objectives whereas in the Afghan conflict the US sought the elimination of the Taliban regime and Al Qaida. In the wake of 9/11, the objectives of the Afghan war had domestic and international support. This enabled the US military to adopt rules of aerial engagement in Afghanistan that may perhaps have been unacceptable in 1999.


[1] Prof. Hayatullah Khan Khattak is a faculty member of the National Defence University, Islamabad. He also chairs the Directorate of Collaboration and Publication at ISSRA.


[1] Col. Phillip Meilinger, ‘Precision Aerospace Power, Discrimination, and the future of war’ Aerospace Power Journal (Fall 2001), 1. See also George and Meredith Friedman, The Future of War (New York: Crown, 1996). For a contrary view on the impact of modern weapons see Charles Dunlap, ‘Technology: Recomplicating  Moral life for the Nation’s Defenders’, Parameters (Autumn 1999)

[2] The term aerial bombardment includes, among other things “dropping munitions from manned or unmanned aircraft, strafing, and using missiles or rockets against enemy targets on land.” U.S. Dept of the Air Force, Air Force Pamphlet No. 110-31, International Law — The Conduct of Armed Conflict and Air Operations, November 19, 1976, para. 5-1 at 5-1

[3] The militia armies in and around the Mosque of Imam Ali in Najaf , Iraq being a case in point.

[4] The US may have not signed up to the 1977 Protocols “… But [the US] considers itself guided if not bound by the relevant provisions of the most”. Amy J. Hyatt, Ordered Chaos: The increasing complex rules of lawyers in Targeting (National Defense University, 20000) p4. The 1976 US Airforce Pamphlet and the 1991 US Rules of Engagement Pocket Card during Operation Desert Storm reflected provisions of protocol 1 in regard to distinction, proportionality and necessity. See Mathew Waxman International Law and the Politics of Urban Air Operations (Santa Monica: RAND, 2000) p12. See also Michael Matheson, “The United States Positions on the Relation of Customary International Law to the 1977 Protocol Additional to the 1949 Geneva Convention”, American University Journal of International Law and Policy, Vol.2 (1987)

[5] Many of the ancient texts such as the Mahabharqata , Bible and the Koran have references as to how enemies during war should be treated. From a historical and from various cultural aspects of  the roots and development of IHL see International Dimensions of Humanitarian Law (Paris: UNESCO, 1988)

[6] M. Sassoli & A. Bouvier, How Does Law Protect in War ?, ICRC, Geneva, 1949, p145

[7] Jean Pictet, ed., “Commentary Geneva Conventions”, Vol. IV  (Geneva: ICRC , 1958), p5

[8] Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflict (London: Methuen, 1983) p325 (paperback ed.)

[9] It is generally believed that civilians did not suffer that much during the First World War but recent research has shown the opposite. See Ruth Harris, “The child of the Barbarian: Rape, race and nationalism in France During the First World War”, Past and Present, No. 141, 1993. Also note Clausewitz comment in reference to 18th Century warfare: “Not only in its means but also in its aim was increasingly became limited to the fighting force itself  … All Europe rejoiced at this development.” Karl Von Clausewitz, On war (Book 8) P 87.

[10] Yves Sandoz, “Protecting People in Times of War”, The UN Chronicle , Winter  1999, 36:4, p214

[11] For a historical development of IHL see Best, Humanity at War and also Best, War and Law since 1945 (Oxford: Oxford University Press, 1994)

[12] Henceforth to be referred to as the Protocol I.

[13] On 26th June 2004 , 161 states had ratified the Protocol I see Appendix B for list of states and dates treaty ratified (source ICRC at  http://www.icrc.org/Web/Eng/siteen0.nsf/htmlall/party_gc)

[14] Best, Humanity at War, p320 and  pp315 – 319 for a discussion of the politics that determined the final draft of the Protocols.

[15] The US has indicated for many years that accepts the various parts of the Protocols but not the whole. It has never indicated publicly which specific parts it accepts and which it not and why. It would appear, however, that The US has problems with the  following  provisions of the Protocol: 1) certain provisions are viewed as politically motivated: the granting of prisoner of war status to members of liberation movements  2) provisions that grant irregular fighter legal status 3) provisions that limit means and methods of warfare including prohibition on nuclear weapons  and 4) provisions that limits attack on dual-use facilities. Thus, the US and Turkey, currently remain outside the treaty system.

[16] Hans-Peter Gasser, “some Legal Issues concerning Ratification of the 1977 Geneva Protocols” in Michael Meyer (ed.), Armed Conflict and the New Law (London: British Institute of International and Comparative Law, 1989) p82

[17] Additional Protocol I, Article 48 (See Appendix A)

[18] Additional Protocol, Article 50, Para 1.

[19] See Marco Sassoli, “Legitimate Targets of Attacks under International Humanitarian Law”, IPCR Policy Brief, January 2003. See also William Fenrick, “Attacking the enemy civilians as a punishable offence”, Duke Journal of Comparative and International Law, 7:539and W. Parks “Air War and the Law of War”, The Air Forces Law Review, 32:1

[20] ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 (Geneva: Maritime Publishers, 1987) (available on on-line at http//www.icrc.org.)

[21] Development and research  into precision weapons, it is argued, is in part fuelled by desire to reduce civilian casualties See John Alexander, “Optional Lethality”, Harvard International Review, Vol. 23:2, 2001,

[22] Col. Jay Terry, “The evolving Law of Aerial Warfare”, Air University, November-December 1975, p13

[23] A. P. V. Rogers, “Zero Causality Warfare”, International Review of the Red Cross, No. 837, 31st March 2000, p166

[24] O. David , The Holocaust and Strategic Bombing: Genocide and total war in 20th Century (Boulder: Westview, 1995) p159

[25] Michael Howard (ed.) , Restraints on War: Studies in the Limitations of Armed Conflict, (Oxford: UP, 1979) pp58-65

[26] Javier Gomez, “The Law of Air Warfare”, International Review of the Red Cross, no. 323, 30th June 1998, pp 347 – 363

[27] Declaration to Prohibit for the Term of Five years the Launching of projectiles and Explosives From Balloons , and other Methods of a Similar Nature (Hague IV, I), July 29, 1899.

[28] Hague Convention IV, Art. 27,

[29] Geneva Convention IV, (1949), Art. 18 – 23

[30] Rules of Air warfare, drafted by a Commission of Jurists at the Hague, 1923, Art. 23 and 24 (See ICRC website, www.icrc.org.)

[31] Draft Rules for the limitation of the Dangers incurred by Civilians Population in Time of War, (Geneva: ICRC, 1958), p166 (2nd)

[32] Col. Jay Terry, “Evolving Law of Aerial Warfare Law”, op. cit.

[33] Quoted in  International Dimensions of Humanitarian Law, pp116 – 117

[34] Article 50 (3)

[35] A.P.V. Rogers, Law on the Battlefield (1996), cited in William Fenrick, “Attacking the enemy civilians as a punishable offence”, Duke Journal of Comparative International Law”, 7: 539. The ICRC proposed list of proposed categories of military objectives does not include television and broadcasting stations. In respect of the war sustaining entities, of the US perspective, see US Navy’s Commanders Handbook on the Law of Naval Operation, in Michael Schmitt, “The Impact of High And Low-Tech Warfare on the Principle of Distinction” , Briefing Paper HPCI (November 2003), p3

[36] W. Hays Parks, “ Air War and the Law of War”, Air Force Law Review (1990), 32:1, pp138

[37] William Fenrick, “Targeting and Proportionality during NATO Bombing Campaign against Yugoslavia”, E.J.I.L. (2001), p491,n6.  See also Michael Schmitt, “The Impact of High And Low-Tech Warfare on the Principle of Distinction”, pp7-8.

[38] Michael Matheson, “The United States Position on the Relations of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions”, American University Journal of international Law and Policy, 2 (1987), pp419 -431.

[39] Air Force Pamphlet No. 110-31, at 5-1.

[40] A.P. V. Roger, “Zero-Casualty Warfare”, op. cit.

[41] Michael Schmitt, “Rethinking the Geneva Conventions”, Crimes of War Project, 30th January 2003, p3.

[42] Michael Schmitt,  “Impact of High and Low -Tech Warfare on the Principle of Distinction”, pp 10-11

[43] Kenneth Rizer, “Bombing Dual-Use Targets: Legal, Ethical, and Doctrinal Perspectives”, Air and Space Power Chronicles, 1 May 2001, p4.

[44] For a discussion of the restrictions placed on the military operating  by politicians in avoiding civilians casualties see Phillip Meilinger, “Winged Defense: Airwar, the Law, and morality”, Armed Forces and Society, 20:1 (Fall 1993).  Differing views, political and military, within NATA was another important factor constraining compliance with IHL

[45] Although the “CNN factor” was coined during the Iraq conflict, the media’s impact of that war on public opinion was not comparable to that of the conflict at the door step of Europe and worldwide publicity of white Europeans being involved in ethnic cleansing. NATO launched 23,000 bombs against Yugoslavia and only 20 went astray but these 20 generated more publicity and outcry then the 23,000 that hits their target.

[46] Grant Hammond, “Myths of the Air War over Serbia: Some ‘Lessons’ not to Lear”, Aerospace Power Journal, 14:4 (winter, 2000) at on-line: www.airpower.maxwell.af.mil/airchrincles/apj/apj000/win00/hammond.htm

[47] Protocol 1, Article 82 requires legal advisor to review targets and advise commanders on targets. The Kosovo conflict has been referred to by some writers as the “Lawyers war”. At the time of the conflict in 1999 Turkey, US and France were the only members of NATO not signatory to the Protocol. Most of the NATO states had instructed their aircrews not to take part in attacks of dubious legality.

[48] Human Rights Watch,  Civilian Deaths in the NATO Air Campaign, (NY: HRW, 2000) at on-line http://www.hrw.org/reports/2000/nato/Natbm200-01.htm

[49] Human Rights Watch,  ibid. p5.

[50] Timothy Thomas, “Kosovo and the Current Myth of  information Superiority”, in Parameters (Spring 2000) at on-line http://carlile.www.army.mil/uaawc/parameters/000spring/thomas.htm

[51] See  Human Rights Watch, “Civilian Deaths in the NATO Air Campaign”, 12:1 (February, 2000)

[52] UN, ICTY, Final Report o the Prosecutor by the Committee Established to Review the NATO Bombing campaign Against the Federal Republic of Yugoslavia, 8 June 2000, pp39-41 paras 80-85.

[53] The ICTY report determined in this instance that neither the aircrews nor the commanders showed the degree of recklessness in failing to take precautionary measures in identifying the target that would sustain charges. Ibid, pp30-33 paras 63-70

[54] Ibid. Although the Prosecutors Report did not find evidence of recklessness it did find that the rules of engagements did contribute to the incident occurring.

[55] Op. Cit., p88

[56] As discussed earlier attacks on public morale are unlawful under the protocol. See also the opinion of the ICTY Committee which asserted that attacking civilian morale is not a military objective. Final Report 55 and 76

[57] The casualties were technicians, make-up artists and auxiliary artists

[58] Protocol 1, Article 79. The Convention does not define journalism.

[59] Final Report, paras 55 and 76

[60] See Amnesty international, “NATO/Federal Republic of Yugoslavia Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force”, June 2000. See also Human Rights Watch, op. cit. where it is claimed that the Yugoslav authorities did not believe that STR was in any threat. P9.

[61] Final Report,  para 77.

[62] Final Report, paras 47 – 55

[63] The BBC, in wartime, by virtue of its Charter can be enlisted in the war-time effort; does that make BBC journalist a legitimate military target?

[64] Carl Conetta, “Operation Enduring Freedom: Why a higher Rate of Civilian Bombing Casualties”, Project on Defense Alternative Briefing Report, No. 11, Revised Version 24th January 2002, pp 1 -2 at online www.comw.org/pda/0201oef.html

[65] Aerial bombardment, even up to now continues but the period chosen represents a convenient cut-off point although the Talebans had given the capital, Kabul, up in the first two months of the campaign.

[66] Carl Conetta, op. cit. p5. Human Rights Watch, “Civilians Deaths in Afghanistan”, 20th June 2002, Press Release.

[67] Marc W. Herold, “A dossier on Civilian Victims of United States Aerial Bombing of Afghanistan: A Comprehensive Accounting Revised]” at online www.cursor.org/stories/civilian_deaths.htm see also BBC, 3rd January 2002, Afghanistan’s civilian deaths mount” quoting Prof. Herold as saying: “I think that a much more realistic figure would be around 5,000. You know for Afghanistan, 3,700 to 5,000 is a really substantial number.”

[68] For the methodological weaknesses of casualty figures see Lucinda Fleeson, “The Civilian Casualty Conundrum: Have American news Organisations soft-pedalled the ‘collateral damage’ of the fighting in Afghanistan? Or have foreign news outlets and academic studies grossly inflated the toll”, American Journalism Review, April 2002 at online www.ajr.org/article_printable.asp?id=2491

[69] See Carl Conetta, op. cit. p8. Talebans claimed that over 5,000 civilians were killed and 10,000 wounded.

[70] ibid., p3

[71] ibid., p3

[72] Talebans claim over 200 dead. See the Guardian, 12th October 2001.

[73] The Observer, 14th October 2001.

[74] The Guardian, 22nd October 2001

[75] The Times, 1st November 2001

[76] Carl Conetta, op. cit. p4

[77] See The Independent, 1st January 2002 (“ US accused of Killing 100 civilians”), The Times, 1st January 2002 (“100 villagers Killed” in US Air strikes’) and the Guardian, 1st January 2001 (“US accused of killing over 100 in Village Airstrikes”)

[78] The Times, 1st April 2002

[79] The Guardian, 1st July 2002

[80] Despite the high rates of civilian deaths in Afghanistan there does not appear to be extensive research carried out although what there is is by journalists.

[81] The Times , 1st April 2002

[82] John Sifton, Human Rights Watch, Press Release 13 December 2003

[83] Even as this conclusion is being drafted the media is reporting 17 civilians, including three children, death during an aerial attack on what was believed to be a terrorist safe house. This has been a regularly occurrence in the Afghan conflict. Newsnight. BBC 2   Television, 2nd September 2004