Fighting the Laws of War

In December 2008 and January 2009, Hamas and Israel waged a fierce three-week battle in the Gaza Strip. The Israel Defense Forces targeted urban infrastructure in Gaza, devastating populated areas as they attempted to end the barrage of Qassam rockets fired indiscriminately by Hamas toward southern Israeli cities. The war ended inconclusively in January, when Israel declared a unilateral cease-fire amid concerns about mounting civilian casualties. But the conflict shifted from Gaza to Geneva in April, when the UN Human Rights Council appointed former South African judge Richard Goldstone -- chief UN prosecutor in Yugoslavia and Rwanda during the 1990s -- to lead a fact-finding mission to Gaza. In September, Goldstone's team announced its conclusion: both Hamas and Israel had violated the laws of war, and both had possibly committed crimes against humanity.

Many have interpreted the Goldstone report, as it has become known, as yet another battle in the Israeli-Palestinian conflict, waged by other means. But the report addressed a more far-reaching issue -- namely, the difficulty of distinguishing civilians from combatants in modern urban warfare.

Two recent books explore that dilemma by examining the relationship between the laws of war and civilian protection during battle. In Moral Dilemmas of Modern War, Michael Gross contends that the current safeguards against civilian casualties are too stringent to address the complexities of today's wars, barring states from adequately combating irregular forces. Meanwhile, Stephen Rockel and Rick Halpern argue in Inventing Collateral Damage that the current international regulations are too weak, permitting and even enabling states to harm civilians during combat.

From two widely different perspectives, the books cast doubt on the value of the existing international regulations presumably designed to mitigate war's impact on civilians. But a closer look suggests that these authors overstate the tensions between the laws of war and the modern battlefield and underestimate just how well the existing statutes are working. Although the laws of war require strengthening, they constitute a firm foundation on which to better protect civilians.

TOO MUCH OR TOO LITTLE?

The current laws of war regarding civilian protection resulted from a process of treaty development that included nineteenth-century agreements to safeguard the sick and wounded, which were gradually extended in the twentieth century to prisoners of war and then to civilians caught in conflict. A cardinal rule of the existing framework insists that civilians may not be deliberately targeted, unless they participate directly in hostilities. The laws stipulate that military forces must direct their operations toward combatants and military objectives only and must conduct themselves in a manner that allows their adversaries to distinguish them from civilians -- by wearing uniforms, for example, or carrying arms openly. The drafters of the Geneva Conventions carefully delineated combatants and civilians to assist militaries in distinguishing between them. In addition, the conventions state that when in doubt, military forces should assume the targets are civilians and that some number of combatants among a civilian population does not render that civilian population a legitimate target.

Gross argues that this legal structure unfairly favors insurgents on the modern battlefield. Many of today's wars are fought in dense urban environments, largely between uniformed state militaries and guerrillas in civilian clothing. The problem, he believes, is not that the rules inadequately protect civilians but that they provide too much protection for nonstate armed groups in this new type of war, on the mistaken assumption that civilians are always innocent bystanders. This hobbles Western militaries in their attempts to protect those considered by Gross to be "truly innocent" civilians -- those who reside in democracies and are subject to guerrilla violence and terrorism.

Many civilians in modern wars are agents and not just bystanders, as Gross correctly points out: they aid and abet insurgents by storing their weapons, producing their propaganda, providing them with food and shelter, and even agreeing to act as civilian shields. It is no surprise to him, then, that powerful states such as Israel and the United States would expand the circle of "legitimate targets" to include civilians who assist insurgents, because it is otherwise difficult to see how they could successfully wage war at all. Gross justifies this expansion by arguing that it is vital for democracies to prevail in asymmetric conflicts. In such conflicts, he argues, democratic states are protecting their own civilians, and in some cases the citizens of other nations, from terrorist attacks.

By contrast, Rockel, Halpern, and other contributors to their volume are far more critical of powerful governments' records in war. Whereas Gross emphasizes moral asymmetry in modern war -- highlighting the distinction between democratic armies defending their citizens and guerrillas who attack civilians using the cover of their own countries' populations -- Rockel and Halpern focus on the asymmetry of force between powerful state militaries and their weaker guerrilla adversaries. They claim that the West's callous indifference to "unintended" civilian casualties in the developing world today is analogous to its historical record of atrocities in imperial wars, which often involved depredations against civilians. Just as colonial states in those wars used dehumanizing euphemisms, such as calling natives "savages," to legitimize their actions, modern Western militaries unacceptably justify and sanitize civilian casualties by invoking the concept of "collateral damage" -- a military term used to describe regrettable but unintended, and therefore lawful, casualties of war. The notion that civilian deaths are permissible if unintended, the authors argue, has allowed militaries to whitewash the destructiveness of their operations. In other words, the existing laws of war, which prohibit intentional civilian targeting but permit "accidental" civilian deaths, are part of the problem.

Marc Herold's chapter in Inventing Collateral Damage lends credence to the notion that modern technologies and legal statutes meant to protect civilians may in fact be used in ways that place them in greater danger. His data suggest that the ratio of civilian deaths to tons of ordnance dropped has actually increased in the past 20 years, as precision weapons have been introduced in greater numbers. Herold argues that Western militaries have become overconfident in their ability to safely deploy weapons such as smart bombs and drones in dense urban neighborhoods and at night. This may explain the high number of estimated civilian casualties from drone strikes in Pakistan; the New America Foundation calculates that approximately a third of drone-strike casualties are civilians. It troubles Rockel and Halpern that the laws of war permit such high levels of civilian casualties. In their view, the rules are designed to legitimize violence rather than restrain it.

Both books are thus skeptical about the ability of the existing laws of war to balance national security and the protection of civilians. As interpreted by the Goldstone report, international law appears to handicap states' ability to target insurgents who purposefully operate in civilian areas -- revealing, according to Gross, the inability of the current system to adapt to new modes of war. Meanwhile, in their book, Rockel, Halpern, and the other contributors argue that the existing body of laws protecting civilians during wartime actually sanctions their deaths at the hands of states operating behind the shield of "collateral damage." Do the laws of war, then, need to be adapted to the current era, and if so, how?

STRIKING A BALANCE

In outlining the limitations presented by the laws of war in addressing modern conflicts, Gross argues that the current legal framework for civilian protection must change to meet state interests. He is sympathetic to the new tendency among Western states to broaden the scope of acceptable military targets to include civilians who assist insurgents. Yet this is a deviation from the existing norm by states seeking to pursue their interests outside the bounds of the law. Were this trend adopted as a new legal standard, it would be nothing less than an abandonment of the current rules, weakening civilian protection rather than strengthening it.

Moreover, underlying Gross' belief that the laws of war must change to meet states' needs is the historically flawed notion that modern combat presents unique challenges. The kinds of asymmetries in the warfare he writes about are hardly unprecedented. The laws of war have in fact already adapted to many of the questions that, according to Gross, have been raised for the first time by recent wars. The current framework distinguishes, for example, between civilians who support warring factions by providing food and shelter, who are not automatically rendered legitimate targets, and civilians who take up arms themselves, who do lose their immunity. Gross points out that these rules place critical restraints on the actions of state militaries. But he overstates the case when he suggests that the laws of war tie their hands completely. To Gross, there seem to be only two options for state forces engaged in asymmetric wars: bend the rules by fighting guerrillas with an expanded notion of legitimate targets, or prepare to lose.

Yet a third option exists: militaries can choose to place their uniformed men and women in harm's way rather than cede the moral high ground by placing civilians in greater danger. When Gross describes the fundamental dilemma of asymmetric war as "who do we bomb when there are no more accessible military targets?" he assumes that states must deploy aerial firepower to defeat their unconventional enemies. But this is not the only tool in the arsenals of Western states. To combat insurgents and protect civilians simultaneously, governments could choose to use ground troops, which are arguably better equipped to discriminate between innocent bystanders and insurgents and their accomplices. Although militaries risk significantly higher casualties by deploying their troops rather than dropping precision bombs, this sacrifice is precisely what the logic of just war requires: that civilians not become more expendable than a country's armed forces.

Gross is not alone in his undue cynicism about the existing principles. Rockel and Halpern argue that the very idea of "collateral damage," a tenet of the existing laws of war, increases military leaders' apathy toward the consequences of their operations and encourages crimes against civilians. But in making this claim, the authors conflate "collateral damage," which describes regrettable yet lawful casualties of war, and "war crimes," which result when governments deliberately target civilians. For example, many of their book's chapters detail atrocities to which the concept of "unintended casualties" does not apply, such as sexual violence. Moreover, nothing in the case studies shows even a correlation, much less a causal relationship, between the invention of the euphemism "collateral damage" during the Cold War and a purported rise in unintended civilian casualties. In fact, U.S. government documents disclosed by the whistleblower Web site WikiLeaks last October suggest the opposite: in those papers, U.S. troops appeared to invoke the risk of collateral damage to justify their failure to fire at legitimate military targets.

Inventing Collateral Damage does successfully document the brutalities of warfare before the 1949 Geneva Conventions. If anything, however, this suggests that the treaties' norms may have reduced such horrors since World War II. In fact, according to Simon Fraser University's Human Security Report 2005, the overall plight of civilians in recent hostilities appears to have vastly improved relative to earlier times. However extensive the collateral damage in Afghanistan, for example, there is a world of difference between accidentally hitting civilians in Kandahar with not-so-smart bombs and firebombing Dresden to break the population's morale. The distinction between accidental and intentional killing -- and the firm rule that military necessity does not excuse the intentional targeting of civilians -- has saved countless civilian lives in the past half century.

But Rockel and Halpern are right to note that although the international community has worked to reduce intentional civilian targeting, it has been too complacent about reducing unintended civilian casualties. Protection for civilians against the effects of lawful military operations remains scant, and international discussion about increasing those safeguards has been minimal. Many of the contributors to Inventing Collateral Damage suggest that such complacency renders the entire effort to regulate war an exercise in hypocrisy. Yet as in the case of Gross' concerns, a more pragmatic approach would be to explore options for strengthening, expanding, and clarifying the existing rules.

STRENGTHENING CIVILIAN PROTECTION

Although Moral Dilemmas of Modern War and Inventing Collateral Damage suggest otherwise, the laws of war have never been static and have often improved to reflect changing times. Points of confusion in the law regarding civilians can be clarified today through the same process that has been used to ban land mines or protect displaced persons in recent years. Specific rules will need to be worked out by states, but nongovernmental organizations and legal experts are proposing many ideas about what these rules could look like.

First, any international effort to reduce and respond to the civilian costs of war will need a mechanism for measuring and categorizing casualties of war. The Geneva regime currently provides no formal means of tracking who dies and how in military operations worldwide, leaving states' humanitarian policies to be guided by wildly conflicting and ad hoc measures. The Oxford Research Group, a London-based nongovernmental organization dedicated to sustainable security, recently created the Recording Casualties of Armed Conflict project and, with several humanitarian organizations, has issued a memorandum calling on governments to establish rules standardizing this process. Such data, as Gross and Rockel and Halpern argue, are crucial in resolving moral debates over the proportionality of various methods of combat.

Governments should additionally reconsider whether certain weapons, such as high-yield explosives, can really be considered discriminate when deployed in urban areas. A 2010 report by Landmine Action demonstrates that civilian casualties caused by these devices -- artillery shells, bombs, and mortars among them -- are exceedingly high in populated areas, and especially so among children. The damage is even greater when the secondary impacts of urban warfare are considered, including disease, malnutrition, and economic ruin. If the goal is to better protect civilians from the incidental effects of war, limits on the use of such weapons, at least in urban areas, may be required.

Yet even new regulations governing the deployment of explosives in populated areas would still likely leave some civilians in the crossfire. And in such cases, the Campaign for Innocent Victims in Conflict, a Washington-based nongovernmental organization, argues that governments should provide compensation to civilians accidentally harmed during legitimate combat operations, just as they sometimes pay reparations to victims of war crimes. The U.S. government has actually taken the lead on this issue, initiating a system of condolence payments for the families of civilian casualties of the wars in Afghanistan and Iraq. Several other countries, including Georgia, Germany, and Pakistan, are beginning to follow suit, and Israel has paid reparations in several limited cases. If widely adopted, this practice would not only provide some solace to civilians when disaster strikes but also, perhaps, incentivize militaries to take greater care to avoid causing such casualties in the first place.

Even if no new laws are developed in the near future, military planners, government officials, and lawyers could reduce civilian casualties by simply modifying their interpretations of the existing legal doctrines. To begin, clarifying the notion of what constitutes direct civilian participation in hostilities would help states more accurately judge when civilians remain protected and when they have lost their immunity. The International Committee of the Red Cross has already drafted language defining "direct participation" as acts that cause direct harm either to enemy forces or to the enemy's military operations and capacity, but states should develop a consensus around a definition so that they and others can be better held accountable for their actions.

Additional questions in need of resolution include how to determine whether, in the words of international treaties, a government has taken "all feasible precautions" to prevent civilian harm and whether it has inflicted "excessive" civilian casualties in relation to its military gains. The current laws of war leave these issues to states' discretion, but governments could collaborate to limit the gray area between civilian deaths considered unfortunate and those deemed unlawful. New or clarified rules will need to balance humanitarian principles in war with the human security costs of doing too little in cases in which insurgents or terrorists prey intentionally on the innocent. Many militaries are already grappling not just with how to weigh civilian casualties against military necessity but also with how to balance the risk of civilian casualties during a given strike against the benefits that such a strike could provide to those civilians by neutralizing predatory militias.

Some might argue that further innovations in the laws of war are unlikely. But the international rules that are now taken for granted -- say, the right of wounded soldiers to receive aid from neutral humanitarians on the battlefield -- once seemed just as far-fetched. And reconsiderations of humanitarian law have often occurred in times of systemic crisis such as these, when the human costs of the mismatch between existing laws and changing times become clear. One such transformation took place in the 1970s, when the Additional Protocols to the Geneva Conventions were established. States recognized that the most recent Geneva regulations, passed in 1949 and designed to address the conditions of World War II, required updating to respond to the unconventional wars associated with decolonization. The Additional Protocols extended the definition of "lawful combatants" to nonstate parties fighting wars of national liberation and codified the existing rules against targeting civilians, whose protection had previously been instituted only in relation to civilian conditions in occupied territories. Similarly, the 1998 Rome Statute, which created the International Criminal Court, represented an effort to bolster the Geneva regime. The court was created in response to the atrocities in Bosnia and Herzegovina and Rwanda in the 1990s -- horrors that underscored the need for an international judicial body to prosecute and punish war criminals. According to the Human Security Report 2005, the number of war crimes and genocides committed by government forces is dropping. This may well be in part because the original rules were augmented and are now influencing military doctrine worldwide.

Collateral damage in modern warfare, too, can be minimized by more clear-cut regulations. Governments should work to reduce both long-term and short-term civilian harm in war, atone for lawful as well as unlawful deaths, and cooperate to bring nonstate actors that target civilians to justice. But to achieve this, states must work together to strengthen the rules themselves. And assessments of the existing laws of war should be balanced and forward-looking rather than cynically pessimistic. It is well within the power of the international community to strengthen civilian protection in the twenty-first century.