paper 01.09.2009 department of politics and international relations janina dill university...

Paper 01.09.2009 Department of Politics and International Relations Janina Dill University of Oxford DPhil candidate [email protected]

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The Influence of Law on U.S. Air Targeting Practices in the Two Gulf Wars1

Introduction

The modern US military’s commitment to the rule of law in armed conflict is often

described as historically unprecedented and unmatched among contemporary fighting forces –

an appraisal which is not only forcefully promoted by the US military and political

establishment, but also finds support in a closer examination of the military’s institutional set-

up and organisational culture. Next to the growing number of professional lawyers and their

increased involvement in all aspects of military planning and war fighting, legal terminology

has gradually infused the military discourse. Where once the law was considered to be silent –

on the battlefield of war – today its voice, or at least its vocabulary, is omnipresent in US

command centres.

This “legalization” of US warfare is often considered an indication of the effectiveness

of International Humanitarian Law (IHL). Legitimacy claims for US conduct in war and

praise of the relevance of IHL frequently go hand in hand and appear to logically reinforce

each other. However the observed process of “a move to law”2 in US warfare captures, or so I

argue, only one dimension of the effectiveness of IHL: the input that the perception of a legal

obligation – besides such considerations as strategic necessity, pragmatism or morality – is

allowed to have in the determination of behaviour in war.

While it is no doubt crucial to establish this behavioural relevance of IHL, we also

need to know whether the behaviour that results from an increased sense of legal obligation

accords with our normative expectations of proper conduct in war. These expectations

generally centre on the reduction of human suffering, especially of civilians, as a result of

war, an essentially moral goal. To the extent that it is adhered to, is IHL successful in

reducing civilian suffering? A more complete notion of the effectiveness of IHL thus includes

an enquiry into the net moral benefit of increased behavioural relevance of IHL, i.e. an

enquiry into IHL’s normative success. Based on this premise this analysis asks two questions

to shed light on the effectiveness of international law in regulating war: how much has the

influence of IHL on the process of conduct in war increased and to what extent is increased

legal influence on process correlated with morally improved results of war?

1 I am grateful to Professor Henry Shue for his extensive comments and encouragement. I would also like to thank the members of the US military who kindly agreed to be interviewed, namely Lieutenant General Deptula and ret. Colonel Warden but also the unnamed JAGs and pilots of the USAF. All potential errors in the paper are of course entirely my responsibility. 2 Goldstein et al (2000) xi


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The question whether more influence of IHL on US conduct in war is paralleled by a

reduction of civilian suffering as a result of war can best be discussed regarding an aspect of

US warfare that has undergone a particularly radical legalization: pre-planned air targeting.

The conflict in the Gulf in 1991, dominated by a meticulously planned air campaign, was then

described as “the most legalistic war (…) ever fought”3. However, when the US found itself

in a war with the same country again in 2003, the design, planning and execution of the air

campaign which initiated the invasion differed in that it was still more systematically subject

to legal input. Based on this observation of differing degrees of behavioural relevance of IHL

in the process of pre-planned US air targeting in Operation Desert Storm (ODS) and

Operation Iraqi Freedom (OIF), this paper compares the moral adequacy of targeting results

in the air campaigns “Instant Thunder” and “Shock and Awe” in order to shed light on the

normative success of IHL.

I will begin by investigating the influence of law on the two air campaigns in order to

ground the intuition that IHL’s behavioural relevance has increased dramatically from 1991 to

2003. In part II, the task will be to establish what can be considered morally adequate

targeting results in order to define normative success of IHL. Thereafter, in part III, I will

elaborate and test the hypothesis, which underlies this study, that increased influence of IHL

on US air targeting is not correlated with an improvement in the morality of targeting results.

Part IV will be devoted to discussing possible explanations for the observation that a

quantitatively increased behavioural relevance of IHL does not go hand in hand with

normatively improved targeting results: I will enquire whether this shortfall in normative

success of IHL is due to the features of the set of legal rules which define a legitimate target

of attack or whether the problem lies with its interpretation and application and should hence

inspire a critique of US conduct in air warfare.

I. The “move to law” in US air warfare

Though one of the oldest areas of international law it was only with its codification in

the four Geneva Conventions of 19494 that IHL developed into a coherent branch of

3 Colonel Raymond Ruppert quoted in Jochnick & Normand (1994) 49 4 First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field first adopted in 1864, last revision in 1949; Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea first adopted in 1906, last revision in 1949; Third Geneva Convention relative to the Treatment of Prisoners of War first adopted in 1929, last revision in 1949; Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War first adopted in 1949 (herein GC I-IV).


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international law, and it took the Additional Protocol of 19775 for IHL to reach states’

behaviour during actual combat with relatively detailed positive regulation. AP I is the first

international legal instrument to establish a set of rules defining a legitimate target of attack in

international armed conflict.6 The active participation of the US delegation in the negotiations

leading to the adoption of AP I inspired legal debates within the services, specifically the US

Air Force (USAF) at the end of the 1980s. Even though the US decided against ratifying AP I,

it is often argued that ODS was seen as a test case for the provisions of the treaty considered

new.7

Notwithstanding an important leap forward regarding the reception of IHL into US

military doctrine around the time of ODS, as the 1990s drew to a close a coherent military

legal doctrine on targeting was still a desideratum.8 In contrast, by 2003 a sophisticated

discourse on the interpretation, operationalisation and application of different legal provisions

and concepts had emerged. Recent strategic doctrines routinely and explicitly consider their

relation to legal prescriptions on targeting and the interface between academic and military

debates on IHL keeps growing. Within twelve years the legal regime defining a legitimate

target of attack thus evolved from a recently codified, intensely controversial set of rules

during ODS to a widely discussed and routinely consulted operational guideline during OIF.

Attempts at operationalisation of the relatively indeterminate legal principles defining

a legitimate target of attack according to AP I and their review through the lenses of military

doctrine are best described as generating increased precision of the legal obligations

surrounding air targeting. Besides a reduction in ambiguity and a gain in determinacy of

individual rules, greater precision also means “that the rules are related to one another in a

noncontradictory way, creating a framework within which case-by-case interpretation can be

coherently carried out”.9 In this reading the increase in precision of the legal regime defining

a legitimate target of attack between ODS and OIF is an important enabling condition for law

to gain in behavioural relevance between 1991 and 2003.

5 Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts adopted 1977 (herein AP I). 6 The Convention on the Laws and Customs of War on Land (The Hague II) of July 29 1899 (revised in The Hague IV of 18 October 1907) in fact does contain a Chapter on “Means of Injuring the Enemy, Sieges, and Bombardments”. However, the provisions just as their counterparts in The Convention of the Bombardment by Naval Forces in Time of War (The Hague IX) of 18 October 1907, The Declaration on the Launching of Projectiles and Explosives from Balloons of 29 July 1899 and GC IV merely stipulate general principles which proscribe certain methods of combat, such as the bombardment of undefended town. In contrast to AP I they do not prescribe detailed courses of action for engaging the enemy. 7 See Garraway (2004) 8 See Dunlap (2001) 9 Abbott et al (2000) 413


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The increase in precision of the law on targeting went hand in hand with a delegation

of its interpretation to a Judge Advocate General (JAG) corps that significantly gained in size

and institutional standing between the two air campaigns under investigation. It was Vietnam

that “planted the seeds for an end to the almost exclusive focus of judge advocates on military

justice and peacetime legal issues.”10 After the investigation of the My Lai massacre and the

resulting courts-martial in 1974 the Department of Defense issued Directive 5100.77 to task

the JAGs with “ensuring that all U.S. military operations complied strictly with the Law of

War.”11 In order to rise to the challenge military lawyers had to immerse themselves in all

aspects of strategic planning, operational design and execution, which previously were

beyond the scope of a JAG’s responsibility.

For ODS, 350 attorneys and lawyers deployed with the allied troops.12 Though an

unprecedented ratio at the time this number falls significantly short of the 2,200 judge

advocates, 350 civilian attorneys and 1,400 enlisted paralegals which, 12 years later,

accompanied the troops to Iraq. Besides their gain in sheer number a closer look at the process

of pre-planned targeting in both campaigns suggests that also their actual influence was

considerably greater in 2003 than in 1991. This is visible at different stages of pre-planned air

targeting: (I) during strategic planning, (II) during target development and (III) during

establishment and execution of Air Tasking Orders (ATOs).

(I) After the end of the Cold War, the strategic planning of an air campaign against

Iraq naturally looked at General H. Norman Schwarzkopf’s contingency plan for regional

conflict in southwest Asia, OPLAN 1002-90. It was reviewed in Internal Look 90, an exercise

of the United States Central Command (CENTCOM) and the Air Force Component Central

Command (CENTAF) which generated several lists of potential targets in Iraq. However as

the situation in Iraq evolved, CENTCOM’s contingency plan proved ever less adequate,

which prompted Schwarzkopf, then Commander of CENTCOM, to ask the air staff’s deputy

director for war fighting, Colonel John A. Warden III, for input.13 Project Checkmate,

Warden’s planning cell in the Pentagon, then devised what has become known as Instant

Thunder, a plan for an air campaign based on a number of interlocking target sets. No trained 10 “History of the Judge Advocate General Corps”, http://www.carson.army.mil/LEGAL/History%20of%20the%20Judge%20Advocate%20General.htm (last accessed 9 January 2009). 11 Ibid.; US Department of Defense Directive 5100.77 “Department of Defense Law of War Programme” of 5 November 1974 (last reissued as US Department of Defense Directive 2311.01E of 9 May 2006); US Department of Defense Instruction 5500.15 “Review of Legality of Weapons under International Law” of October 16 1974. 12 Myrow (1996/97) 131 13 See ibid.; Lewis (2003)


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lawyers were involved in project Checkmate, neither were they consulted nor asked to review

the strategy that was to underlie the air campaign.14

The strategic planning for OIF never had to start from scratch but could rely on the

records of ODS. The Combined Forces Command (CFC) and Combined Forces Air

Component Command (CFACC) together issued an Air Operations Directive or Targeting

Directive. When this time an “inventory of all potential targets that might be hit by coalition

forces”15 was established, “[e]very potential target was vetted by judge advocates for

compliance with the Law of War before it got on the list, and then vetted again after it was

complete [emphasis added].”16 Furthermore the US military created a no-strike list and –

unprecedented in the history of US war planning – set up a phone number for UN agencies

and NGO’s to submit objectives to be placed on this list.17 Contrary to ODS, the strategic

planning of the air campaign of OIF was thus legally informed.18

(II) For ODS target development was undertaken by a CENTAF planning cell

established on 20 August 1990 in Riyadh, which has become popularly known as the “Black

Hole”. Under the command of Brigadier General Buster C. Glosson, then Lieutenant Colonel

David A. Deptula was placed in charge of translating target sets into a Master Attack Plan

(MAP) for every day of the air campaign.19 Now Lieutenant General Deptula recalls that no

lawyers assisted him in this task.20 Some commentators, however, describe that two JAGs

were assigned to the Black Hole.21 One of the JAGs, Major Heintzelman, counted among his

responsibilities “scrubbing”22 the MAP in light of potential violations of the principles of

distinction and proportionality.

In 2003, target development included two discrete steps. J2 in the Pentagon had

gathered extensive intelligence for each target, assembled in a folder,23 which included a

14 Interview with ret. Colonel John A. Warden III, 12 June 2008, Command and Staff College, Shrivenham. 15 Kahl (2007) 16 16 Ibid. 17 Ibid. 18 Besides the systematic contingency planning for Iraq throughout the 1990s there are other sources for the strategic design of the 2003 air campaign. Foremost among them is the doctrine “Achieving Rapid Dominance” conceived at the National Defence University. I don’t discuss it as part of the first stage of pre-planned air targeting because, contrary to the work of Project Checkmate, the National Defence University did not gear the doctrine toward an actual war plan. “Achieving Rapid Dominance” uses a fictional invasion of Iraq in 2011 as example. In addition, both the main author of “Achieving Rapid Dominance”, Harlan Ullman, as well as Deputy Secretary of Defence Paul Wolfowitz later denied that the doctrine had been applied during the air campaign against Iraq. 19 Interview with Lieutenant General David A. Deptula, 1 July 2008, USAF HQ, Arlington, Virginia. 20 Ibid. 21 Myrow (1996/97) 139; Lewis (2003) 489ff 22 Lewis (2003) 498 23 Interview with Senior Intelligence Analyst covering Iraq in 2003, 1 August 2008, New York.


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computer assisted collateral damage estimate (CDE).24 Contrary to 12 years before, several

JAGs were allocated the task of vetting the targets based on this information. Intelligence

specialists recall that target folders were often sent back by JAGs who felt that there was not

enough information to clear or reject a target.25 JAGs on the other hand recall that they

frequently removed targets from the list.26 The result of this process was a carefully vetted

Joint Integrated Prioritized Target List (JIPTL). Every item on that list then went through a

process of weaponeering and allocation, which involves a general attempt to mitigate as many

anticipated unintended effects of an air strike as possible.27 In light of this new information

every target was again legally reviewed and then included on a MAP.28

(III) In 1991, the execution of the air campaign followed the translation of the MAP

into ATOs. While the ATO served as a “source of information”29 to the wing-level JAGs, it

was drafted in the Black Hole. To what extent lawyers routinely reviewed it is difficult to

ascertain.30 Moreover, while in execution ATOs were changed between 220 and 900 times.31

Some of the changes are likely to have borne significance for the legality of the targets. An

analogy for the influence of lawyers at this last stage of pre-planned air targeting can be found

in the role of intelligence officers. It is often argued that in 1991 due to stealth and precision

capabilities air power for the first time delivered on its promise to win wars, providing a wide

range of choices in the allocation of fire power. Military commanders later observed that

intelligence could not keep up with the pace and possibilities created by the new weapons

technology, thus turning out to be the limiting factor in the effectiveness of air power.32 Elliot

Cohen notes that suddenly the “short decision times created by modern weapons (…) force[d]

quick decisions.”33 It is unlikely that JAGs in the absence of an institutionalized procedure for

legal input were able to review the many ad hoc changes of ATOs.

24 Kahl (2007) 17f 25 Interview with Senior Intelligence Analyst covering Iraq in 2003, 1 August 2008, New York. 26 Interview with JAG of the rank of Colonel involved in OIF, 28 July 2008, USAF Operations and International Law Division Arlington, Virginia; interview with two JAGs of the rank of ret. Colonel and Major, 27 June 2008, USAF Operations and International Law Division, Arlington, Virginia. 27 Interview with Weapon Specialist of the rank of Major, 26 June 2008, USAF Intelligence Analysis Agency, Arlington, Virginia. 28 Kahl (2007) 17f; interview with JAG of the rank of Colonel involved in OIF, 28 July 2008, USAF Operations and International Law Division, Arlington, Virginia. 29 Lewis (2003) 499 30 Lieutenant General Deptula suggests that this did not routinely occur; interview with Lieutenant General Deptula. 31 Lewis (2003) 498 32 Interview with Lieutenant General Deptula. 33 Cohen (1994) 3; Cohen (1995) 199


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In the 21st century Combined Air Operations Centre (CAOC) several JAGs are on staff

24 hours a day.34 JAGs are present for both the development of an ATO as well as its

execution. Even while already in the air an air crew can consult the CAOC if unforeseen

circumstances arise. The air commander can communicate with the chain of command

through a real-time chat, which includes the JAG on duty.35 Though this step of pre-planned

air targeting is time sensitive the entrenchment of legal considerations into it is allegedly

optimized in that an ad hoc legally informed decision on a target including a CDE revised

according to the changed situation can be obtained in four to seven minutes.36

To sum up, the picture that emerges for OIF is one of an institutionalised two-way

interaction between, on the one hand, JAGs and intelligence officers during strategic planning

and target development and on the other hand between JAGs and commanders/operators

during target development and the ATO drafting and even execution. In contrast, during ODS

the influence of JAGs seems to have been limited to target development. What is striking

about ODS is that even for that stage of pre-planned air targeting, commentators differ quite

considerably in their assessment of the influence of lawyers. Many support the official

government account which stresses that “[p]articular attention was given to the review of

target lists to ensure the consistency of targets selected for attack with United States law of

war obligations.”37 However, interviews with the protagonists of the air campaign suggest that

JAGs though present were only occasionally consulted but not routinely involved in the

decision making process leading up to an air strike.38 One plausible explanation for what

appears to be a slight overstatement of the role of lawyers in the air war of 1991 in parts of the

literature is that the very deployment of JAGs was relatively innovative and thus amazed

some commentators at the time. It is mainly in comparison with the institutional setting and

organisational culture in 2003 that the limitations of the role of JAGs in ODS become evident.

Indeed in 1991, the mere possibility that a JAG would have reviewed a particular

target in light of the principles of distinction and proportionality before it was struck could be

considered a significant step forward in the legalization of US air warfare. However, given the 34 Interview with JAG of the rank of Colonel involved in OIF, 28 July 2008, USAF Operations and International Law Division, Arlington, Virginia. 35 Interview with USAF F15 pilot during OIF, 20 June 2008, Command and Staff College, Shrivenham; interview with USAF B-1 pilot during OIF, 19 June 2008, Command and Staff College, Shrivenham; Interview with JAG of the rank of Colonel involved in OIF, 28 July 2008, USAF Operations and International Law Division, Arlington, Virginia. 36 Interview with ret. USAF Colonel deployed to the CAOC during OIF, 26 June 2008, USAF Intelligence Analysis Agency, Arlington, Virginia per video conference. 37 US Department of Defense, Final Report to Congress “Conduct of the Persian Gulf War” October 1992: 692 38 Interview with Lieutenant General Deptula; interview with USAF Colonel involved in ODS, 27 June 2008 ODS, USAF Office of the General Counsel, Virginia, Arlington; interview with ret. Colonel Warden.


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indeterminacy of the principles of distinction and proportionality, much of IHL’s salience in

regulating actual combat hinges on the imperative to take “constant care” in the planning and

carrying out of an attack put forward through the law’s imposition of precautionary measures

in attack in Article 57 AP I. Adam Roberts, while abstaining from qualifying any part of ODS

as illegal, expresses concern “about the performance of belligerents in carrying out their

obligations not merely to set out to attack only legitimate targets, but also to exercise the

maximum care in planning and carrying out attacks.”39 It is a significant dent in the picture of

ODS as an exemplary case of legalistic warfare that doubts remain regarding the

implementation of the precautionary measures provision,40 which is the foremost way for a

belligerent to demonstrate a good faith effort to give maximum effect to IHL41 and thus an

important measure of its true behavioural relevance.

The requirement to take constant care draws attention to the fact the institutionalized

involvement of legal experts in pre-planned air warfare is not the only indicator of

behavioural relevance of IHL. Law can also influence targeting because military commanders

and operators, i.e. the decision-makers themselves, take it into consideration due to the

perception or even internalization of a legal obligation that bears on their behaviour. During

OIF the US came much closer to doing justice to its obligation to take constant care under

Article 57 AP I. While this is partly the result of the described involvement of JAGs from the

early planning to the release of a weapon, it is also indicative of the extent to which military

decision makers themselves were aware of legal obligations and the importance they assigned

to legality vis-à-vis other considerations in the planning and carrying out of an attack.

Already on the political stage the justifications of the two wars suggest an increased

relevance of IHL in 2003. Adam Roberts notes that in 1990-91 the President’s “speeches

before and during the war contained relatively little reference, direct or indirect, to the laws of

war.”42 In his address to the nation on the eve of ODS, George H.W. Bush “specified that

targets which U.S. forces were attacking were military in character, but contained no other

indication of the limits applicable to the belligerents under the laws of war.” 43 This stands in

stark contrast to the omnipresence of legal references in George W. Bush’s effort to prepare

the country for invasion in 2003. International law was already at the forefront of politics

39 Roberts (1994) 158 40 “[S]hortcomings appear to have involved deliberate decisions by allied commanders to take less than the maximum feasible precautions necessary to avoid harm to civilians;” HRW (1991) 6. 41 See Dill (2008) 42 Roberts (1994) 150 43 Ibid.


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given the lingering controversy over the legality of the resort to force against Iraq. However it

is striking how legal terminology also permeates projections of potential war scenarios

implying that the US administration considered legality of conduct an important means of

legitimizing the operation overall. Whereas in 1991 world order concepts and morality often

supplemented primarily military or political justifications of US warfare, in 2003 discussions

of conduct in purely military or political terms are virtually absent. The omnipresence of legal

references suggests that legality was considered the linchpin for legitimacy and that IHL was

by then the inevitable normative framework as far as legitimate conduct in war is concerned.

Interviews with military commanders and operators corroborate the evidence of a

much stronger sense of legal obligation in 2003 than in 1991. Retired Colonel Warden

concedes that in the design of the air campaign Instant Thunder “the law ha[d] some effect

because it [was] pretty well internalised”.44 However, he argues that “the normative standard

of the law is wrong, [because] it has developed with assumptions about what war is like which

are incorrect”.45 He thus assigned a low priority to legal considerations when planning the air

campaign for ODS.46 A number of comments about target selection by Lieutenant General

Charles Horner, Air Component Commander of CENTCOM at the time, evoke the wording of

AP I. While they suggest that the US indeed strove to meet the standards enshrined therein, it

is unclear whether this occurred out of a sense of legal obligation.47 Lieutenant General

Deptula holds that when devising the MAP for ODS a separate consideration of the law on his

part was virtually superfluous.48 Targeting followed the doctrine of effects based operations

rather than aiming at maximum destructiveness, which he considered as being in lock-step

with legal obligations anyway.49 The notion that unprecedented technological capabilities,

limited war aims and the doctrine of effects based targeting made the US prone to over-fulfil

any potential legal obligation may have weakened the sense of urgency to pay separate

attention to IHL in 1991.50

44 Interview with ret. Colonel Warden. 45 Ibid. 46 It is important to note that the air campaign that dominated ODS is not congruent with Instant Thunder as envisaged by Colonel Warden. Due to the disagreement between Colonel Warden and General Horner regarding the relative weight of independent strategic air operations and ground support missions, even the name Instant Thunder disappeared from the records of the war. Nevertheless, the targets sets proposed by Warden were the basis for the MAP; interview with Lieutenant General Deptula; Atkinson (1993) 63. 47 Roberts (1994) 150 48 I will critically discuss this assumption below. 49 Interview with Lieutenant General Deptula. 50 See also Lewis (2003); Interview with JAG of the rank of Major General, 2 July 2008, USAF Department of the Judge Advocate General, Arlington, Virginia.


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In contrast, JAGs in 2003 describe commanders as acutely legally aware,

comprehensively trained in IHL and receptive to or even eager for legal input.51 Many

insiders from the US military explain the internalisation of legal norms regarding targeting

with a concept of military professionalism that has solidified in the US military since the end

of the Cold War and that rests on legalism as one important pillar.52 IHL did enjoy some

behavioural relevance in 1991 as a “greater emphasis [was placed] on the accurate targeting

of bombing than in previous conflicts.”53 However, a comparison with pre-planned air

targeting in OIF sheds light on how much IHL could still gain in behavioural relevance as

evidenced by the institutionalised and more regularised role of JAGs at all stages of pre-

planned air warfare as well as the stronger sense of a legal obligation among decision makers

in 2003.

Another way of describing the difference between the behavioural relevance of law in

1991 and 2003 is in terms of the lifecycle of a norm54 stipulating that law ought to be the

dominant determinant of behaviour in air targeting. This “legalization” norm was only in the

process of emergence at the time of ODS. Some rules crucial for targeting enshrined in AP I,

the very concept of Operational Law and the notion of deployed JAGs as helpful in waging

war were new in 1991; legality was only one among several frameworks of normative

reference. In 2003, to the contrary, legality was the pivotal criterion for legitimacy of conduct

in war and the dominant framework of normative reference. The above investigation suggests

that the legalization norm had “acquire[d] a taken-for-granted quality and [is now] no longer a

matter of broad public debate.”55 Actors adhere to it “for reasons that relate to their

[professional] identities.”56 In his description of OIF Colin Kahl diagnoses an “internalization

of non-combatant immunity within the US military’s organizational culture”.57 Finnemore and

Sikkink describe the point where norms are followed due to internalization and through

institutionalization as the last stage of a norm’s lifecycle.58

This raises the question whether IHL in the context of pre-planned US air targeting

can still gain in behavioural relevance or whether the smooth and comprehensive

entrenchment of law in the processes described above provides as much opportunity as 51 Interview with JAG of the rank of Colonel involved in OIF, 28 July 2008, USAF Operations and International Law Division, Arlington, Virginia. 52 Ibid. 53 Roberts (1994) 176 54 For the concept of a norm’s lifecycle see Finnemore & Sikkink (1998). 55 Ibid. 895 56 Ibid. 902 57 Kahl (2007) 8 58 Finnemore & Sikkink (1998)


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possible for the legal regime defining a legitimate target of attack to influence US conduct in

war. It is beyond the scope of this paper to elaborate on potential gaps in the legalization of

US air warfare. However, this should not be interpreted as implying that US adherence to the

law is perfect. For the purpose of this attempt to shed light on the effectiveness of IHL in the

two US air campaigns in the Gulf, it suffices to conclude that if IHL has changed international

armed conflict for the better, this normative success will reveal itself in the pre-planned air

targeting of OIF, especially in comparison with the air campaign of 1991, because IHL

enjoyed an unprecedented degree of behavioural relevance. It appears that as far as war goes,

pre-planned US air targeting in the 21st century is the easiest case for IHL to make a moral

difference in international armed conflict.

II. Defining morally adequate results of air targeting and normative success of IHL

So far “we have defined legalization in terms of key characteristics of rules and

procedures, not in terms of effects.”59 But as mentioned above, I argue that the effects of what

is often called a process of legalization chiefly determine whether we should really consider

IHL effective in regulating international armed conflict. It is necessary to define what we

think those effects should be in order to answer the question whether IHL is normatively

successful. What kind of change in targeting results do we expect to observe in light of the

enhanced momentum of a legal obligation and the delegation of its interpretation to legal

experts, i.e. increased behavioural relevance of IHL?

Generally the standard we use to assess a law’s normative success derives from the

object and purpose of a law. However, IHL is-not founded-on one-straightforward principle,

but on an “uneasy compromise”60 between military and moral-imperatives. Likewise there is

not simply one single object and purpose underlying the legal definition of a legitimate target,

such as to render war humane or to allow the stronger party to win.61 One could argue that

the object and purpose of the targeting regime is to strike a balance between humanitarian

concerns and military necessity. On its own terms IHL would thus be effective if that was

achieved. However a balance between two contradictory normative aims does not provide a

workable measure for normative success in the way the object and purpose of the law would

59 This is true of most literature in International Relation that is concerned with international law; see Abbott et al. (2000); Keohane et al (2000); Kahler (2000); for a critical discussion see Finnemore & Toope (2001). 60 Shue and Wippman (2002) 559 61 Hersch Lauterpacht argued that the object and purpose of all rules in this regime is humanitarian. Many commentators would disagree. Although the disagreement receives little academic attention, it is manifest in the persistent survival of alternative names for the regime. The ICRC is the strongest promoter of the label ‘IHL’ while in the US even among academics the designation ‘laws of armed conflict’ or ‘laws of war’ is preferred.


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if it were geared toward one, for instance, moral goal. After all, it merely raises the question

how exactly two often diametrically opposed goals should be weighed against each other.

As an alternative to looking for the standard for normative success within the law, one

could ask to what extent the behaviour that results from compliance with the law accords with

our non-legal normative expectations of proper conduct in war. Expectations of a morally

fought war generally centre on the reduction of human suffering, namely of civilians, as a

result of war. The obvious way to investigate normative success of law would hence be to

enquire whether increased behavioural relevance of IHL is correlated with a reduction in

civilian casualties as a result of US air strikes in 1991 and 2003.

There are, however, three reasons for rejecting civilian casualties as a valid measure

for the normative success of IHL. First, two other variables chiefly determine casualty levels

in war and both differ significantly for the two air campaigns under investigation: weapons

technology and war aims. On the one hand, as a general rule of thumb, it is safe to assume

that the more precision technology is employed, the fewer (unintended) civilian casualties

occur. Although ODS saw the first use of the F-116 stealth fighter and the integration of the

Global Positioning System into targeting, most offensive actions were undertaken with older

Vietnam era technology. While in 1991 only 7-8% of the munitions used were precision-

guided, that figure rose to 68% during the combat phase in 2003.62

On the other hand, OIF pursued much broader aims than ODS. The operational and

tactical imperatives that arise from using force for purposes of regime change are more likely

to result in civilian casualties than a war that is fought to reverse an aggression.63 Colin Kahl,

for instance, stresses that “the number of civilians killed during the 2003 invasion was similar

to that of the 1991 Persian Gulf War, even though the mission objectives in 2003 required

coalition forces to operate much more extensively in Iraqi cities.”64 However, there is no

reason to believe that these two factors, war aims and weapons technology, cancel each other

out. We simply do not know how to weigh technology, war aims and the influence of law

against each other when accounting for civilian casualties.

Secondly, the enemy has a vote in how a strategy of attack plays out. While the regime

in Iraq never put much emphasis on the protection of its civilian population, some of the most

casualty-intensive air strikes in ODS, such as the destruction of the Al Fierdos bunker in

Baghdad, can be accounted for by a failure on the part of the Iraqi regime to take defensive

62 Kahl (2007) 21 63 A detailed comparison of the operational objectives is undertaken below. 64 Kahl (2007) 11


13

actions and are not primarily due to patterns of target selection by the US,65 be they legally

informed or not. In addition, it is unclear to what extent Iraqi strategies of commingling and

human shielding in 2003 raised the number of civilian casualties that resulted from US air

strikes.

Lastly, counting victims of war is notoriously difficult. Ramsey Clarke alleged that the

air war in 1991 caused a minimum of 110,000 civilian casualties.66 Yet, other estimates are as

“low” as one-tenth of that figure.67 The numbers for OIF diverge almost as widely. Iraq Body

Count estimates that 7393 civilians died as a result of major combat,68 while the project on

Defence Alternatives suggests that 3230-4327 Iraqis fell victim to US attack.69 These

discrepancies can partly be explained with a subsisting controversy as to the necessary degree

of nexus between a civilian’s death and a military action for the fatality to count as a casualty

of war. “True, in the Gulf War relatively small numbers of Iraqis […] died before the ground

war, although others suffered indirectly from the combined effects of air attack and the

coalition embargo.”70 Many commentators thus argue that merely counting “battlefield

deaths” is misleading in that it overlooks the extreme vulnerability of modern societies to the

destruction of infrastructure, thereby disguising the true extent of civilian suffering caused by

war.

In devising a measure for the normative success of IHL it is necessary to strike a

compromise between non-legal normative, i.e. moral, expectations of adequate targeting

results which suggest that the only “ought” for IHL is to reduce civilian suffering and the fact

that, on its own terms, IHL is successful when it accommodates military imperatives as well

as reduces suffering. The linchpin of a normatively successful regulation of international

armed conflict is the delimitation of what is fair game in war from what is off-limits. Contrary

to morality, law can do more than just urge the maintenance of as large a protected sphere (a

minimization of civilian casualties) as possible; law can and does propose a formula

according to which this sphere is defined.

IHL rests on the premise that “the only legitimate aim in war is to defeat the enemy

militarily” based on the assumption that “every enemy can be overcome by sufficiently

weakening its military forces. Once its military forces are neutralized, even the politically,

65 Kahl (2006) 5 66 Clarke (1992) 209 67 Heidenrich quoted in Roberts (1994) 171; various Reports by the US Government to Congress do not provide any estimates. 68 “Iraq Body Count Questions and Answers”, www.iraqbodycount.org (last accessed 8 January 2009). 69 See Conetta (2003) 70 Cohen (1994) 7


14

psychologically or economically strongest enemy can no longer resist”.71 Just as IHL is blind

before the adversaries’ political goals in fighting a war, their moral causes are inadmissible as

arguments regarding their conduct in war and for that matter their selection of targets. There

is a strict boundary between jus in bello and jus ad bellum considerations. In order for IHL to

apply equally to all parties to an armed conflict regardless of their respective cause, the law

resists any linkage of conduct in war to the causes for which it is fought.72 IHL’s logic is one

of sequencing the use of armed force and politics. Once parties engage in armed conflict, they

have to “bracket” their political objectives, as victory is defined in purely military terms.

This logic – the cutting-off of conduct in war from its moral and political context (both

the causes for the resort to force as well as the aims pursued with it) – translates into targeting

that acknowledges a fictitious division of the battle space into a military and a civilian sphere.

Military and thus prima facie legitimate objectives are only those objectives “which by their

nature, location, purpose or use make an effective contribution to military action and whose

total or partial destruction, capture or neutralization, in the circumstances ruling at the time,

offers a definite military of advantage.”73 Any damage to the non-combatant or civilian sphere

has to be avoided and if it occurs as an unintended side effect requires justification in terms of

proportionality.74

The logic according to which IHL strives to regulate international armed conflict is

hence one of sequencing and distinction. It starts out with the acknowledgement of a prima

facie immune civilian sphere that is distinguished from the military sphere of legitimate

targets. While an unintended involvement of the civilian sphere can be legal if it meets the

criterion of proportionality, the first imperative is (and this has to be the attacker’s intention)

to leave the civilian sphere unharmed. Functionally and in time the “in bello sphere” of

legitimate targeting is separate from the civilian political context.

The legal logic of distinction and sequencing75 competes with a long line of strategic

thinking specifically inspired by air power that postulates that the adequate standard for

guiding and assessing behaviour in war is purely effectiveness. The first imperative is not

71 Sassòli (2003) 3 72 This boundary has often been criticised for various reasons, mostly that humanitarian interventions should respond to stricter requirements whereas wars of national self-defence, especially those in which the survival of a state is at stake, could meet a more relaxed humanitarian standard. However, these opinions have remained minority views, so compelling is the pragmatic argument that any way of opening the jus in bello to jus ad bellum considerations will erode compliance or weaken the law’s protective force, as in reality most adversaries would always claim that they fight for a just cause; for the minority view see Bothe (2001). 73 Article 52 (2) AP I 74 Article 51 (5) b AP I 75 For reasons of brevity I will refer to it only as the logic of distinction.


15

distinction but to quickly achieve the war’s desired political end state. In this reading, the

overriding criterion for target selection is the contribution which a target’s neutralization or

destruction makes to ending the war, i.e. achieving the war’s ends. This logic of effectiveness

tears down the fictitious barrier that IHL erects between a military sphere and the political,

moral, and social context of a war. Advocates hold that “the air weapon should be unleashed

against entirely new categories of property that current conceptions of [IHL] put off-limits”76

but which promise quicker achievement of the desired end state.

Elliot Cohen, a long-time expert on air power, provides an exemplary argument based

on the logic of effectiveness when he observes that “[t]he sprinkling of air strikes over an

enemy will harden him without hurting him and deprive the United States of an intangible

strategic asset.”77 As a result, he argues that “[w]hen presidents use [air power], they should

either hurl it with devastating lethality against a few targets (say, a full-scale meeting of an

enemy war cabinet or senior-level military staff) or extensively enough to cause sharp and

lasting pain to a military and a society.”78 From this imperative of effectiveness he infers that

“[i]t appears likely that civilian populations or large portions of them will continue to be the

objects of terror.”79 And finally he extrapolates his own stipulation about the effective use of

air power to a statement about the nature of war as such: “In many cases today, war means

bringing power, particularly air power, to bear against civil society.”80

Taken to its extreme, i.e. the denial of any absolute imperative of distinction, the logic

of effectiveness as conceived by early air power enthusiasts such as Guilio Douhet, is

diametrically opposed to the logic of the law. As it is a functional criterion that renders

objectives legitimate targets (the contribution their destruction or neutralization makes toward

achieving the war’s ends), every objective is potentially fair game. If it is civilian morale the

targeting of which will most quickly achieve the war’s desired political end state, then this is a

legitimate target. The difference between moderate forms of the logic of effectiveness and

IHL, however, is one of degree. It is the criterion of a “definite military advantage” and an

“effective contribution to military action” that defines the boundaries of the legitimate sphere

of military action according to the logic of distinction. Although this is also a functional

criterion, in the law’s logic “every enemy can be overcome by sufficiently weakening its

76 Dunlap (2000); see also Meyer (2001) 77 Cohen (1994) 9 78 Ibid. 79 Ibid. 80 Ibid.


16

military forces [emphasis added]”.81 In the moral and political vacuum that is the law’s “in

bello sphere” military progress, narrowly defined, is the only yardstick for defining an

advantage. The logic of effectiveness, in contrast, replaces the strictly military value of an

objective as criterion of a legitimate target with the much broader criterion of the contribution

of an attack toward a desired political end state. Correspondingly the logic of effectiveness

rejects the law’s attempt at sequencing the use of force and politics and advocates parallel

warfare.82

It is this logic of effectiveness that links the Second World War concept of strategic

bombing to the contemporary doctrine of effects based targeting. However while the

advocates of traditional strategic bombing do not recognize any non-combatant sphere as off

limits at all, most advocates of effects based targeting or related concepts recognize an

absolute imperative of distinction, namely the prohibition against directly targeting what is

defined as civilian. However the shift in focus away from the object of an attack (subject to a

binary definition as either military or civilian) to the effects generated by an attack impacts on

what is defined as civilian, potentially broadening the definition of a legitimate target. As

effectiveness replaces distinction as the primary imperative of action, the protected civilian

sphere shrinks.

Does pre-planned air targeting according to the logic of distinction really yield less

civilian suffering than an air campaign which follows the logic of effectiveness? In other

words, is the relative dominance of the logic of distinction over the logic of effectiveness a

conceptually valid approximation of morally adequate targeting results? After all this measure

is supposed to be faithful to both the inherent logic of IHL as well as our moral expectations

of what law should do when regulating war. The logic of effectiveness is justified normatively

with the credo that “sharp wars are brief”. Since from the beginning no absolute boundary

impedes military action, the stronger party will achieve its aims quicker, thus ending the war

sooner so that ultimately fewer civilians get hurt. It is beyond the scope of this brief paper to

show empirically that this credo is fallacious. Here it is treated as an assumption that the

delimitation and protection of a non-combatant sphere through distinction more effectively

reduces civilian suffering in war than a greater engagement of the non-combatant ambit traded

against the doubtful promise of a quicker end to the war. However I acknowledge that this

81 Sassolì (2003) 3 82 “Parallel warfare is the application of combat power simultaneously at the strategic, operational, and tactical levels of war to effect paralysis on the enemy's ability to function. It can reduce the time and manpower invested in a conflict.” Schneider (1998) 1.


17

assumption ultimately requires if not empirical at least analytical verification. For the purpose

of this paper I suggest treating the dominance of the logic of distinction over the logic of

effectiveness in targeting as defining morally adequate targeting results and thus as a measure

for the normative success of IHL.

III. Two air campaigns, two logics of targeting

I will now enquire to what extent behavioural relevance of IHL and morally adequate

targeting results are correlated, in order to shed light on the normative success of IHL in

regulating pre-planned US air warfare. This section of the paper explores the hypothesis that,

contrary to our expectation, the legalization of US air targeting does not coincide with the

triumph of the logic of distinction over the logic of effectiveness. This means that increased

influence of law on air warfare does not go hand in hand with a reduction of civilian suffering

if I am correct to assume that the logic of distinction would more effectively reduce civilian

suffering. I do not claim to establish causality between the influence of law on pre-planned air

targeting and the observed targeting results from either of the two air campaigns. More

modestly, the paper strives to show that, in spite of the described legalization of US warfare,

IHL fails to impose its own logic of distinction on pre-planned air targeting, that is, it is

behaviourally relevant yet normatively unsuccessful.

IHL’s logic of distinction translates into targeting that emphasises the winning of a

war through destruction of enemy capabilities rather than through coercive effect. Three

major characteristics are indicative of the logic of distinction as underlying an air campaign.

Firstly, as targets are selected purely on the basis of their military value rather than according

to the potential political effect that their neutralization might yield, the relative emphasis on

strategic compared to tactical effects in the choice of targets should be small. Secondly, a

discernable emphasis should be on attrition, which aims at interdicting the capabilities that a

soldier needs to fight rather than those needed to live.83 In other words, a narrow criterion of

relevance to the war effort should determine whether economic infrastructure or any other

dual use targets are legitimate. Thirdly, the number of target sets with only marginal direct

counterforce implications, such as leadership targets and media installations, should be small.

83 Walzer (2006) 146


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Operation Desert Storm

The operational objectives of ODS were to “attack Iraqi political-military leadership

and command and control”, to “gain and maintain air superiority”, to “sever Iraqi supply

lines”, to “destroy known nuclear, biological and chemical production storage and delivery

capabilities” and “to liberate Kuwait city”.84 Instant Thunder identified twelve sets of targets,

the neutralization of which was to achieve these ends: (1) nuclear and biological facilities, (2)

scud missile facilities, (3) military support production and research facilities, (4) leadership,

(5) command, control and communications sites, (6) electrical power, (7) oil facilities, (8)

railroads and bridges, (9) airfields, (10) naval ports and facilities, (11) strategic air defences

and (12) Republican Guards.85

It is well documented that General Horner initially took issue with Instant Thunder’s

apparent emphasis on “strategic air power” as opposed to tactical ground support missions.86

As a result, during the actual air campaign bombing for strategic effect was much more

balanced by tactical missions than the initial plan suggests. Though it remained a point of

contention whether the air campaign did enough to prepare the battlefield for the ground

invasion, compared to conducting deep strikes into the heart of Baghdad, the fact that the

ground offensive took merely 100 hours suggests that the attention paid to “tank plinking”

from the air and the decimation of the Iraqi troops in Kuwait, i.e. bombing for tactical effect,

was significant.

The emphasis on classical counterforce targeting during the air campaign is manifest

in the distribution of air strikes across the twelve target sets established by Instant Thunder.

85% of all air strikes were directed against airfields, naval and port facilities, strategic air

defences and the Republican Guards. Among those the “Iraqi ground forces in the Kuwait

theatre attracted the most attention from coalition air forces.”87 Only 15% of all air strikes

were directed against targets from sets (1) to (8).88 Among those sets (1), (2), (3), (7) and (8)

represent targets of interdiction. Air power was thus primarily geared toward the attrition of

the Iraqi military through direct destruction of fielded forces and interdiction of military

capabilities.

84 US Department of Defense, Final Report to Congress “Conduct of the Persian Gulf War” October 1992: 96f. 85 GWAPS 105ff; Lewis (2003) 488. 86 Lewis (2003) 485 87 Cohen (1994) 2 88 GWAPS 148


19

Target sets (5) and (6) proved more controversial as they included many dual use

structures.89 “The Iraqi electrical grid, oil refineries and most of the telephone and

communications system stopped functioning.”90 While these targets, no doubt, do have some

counterforce implications and can potentially qualify as military objectives, their destruction

also generates a coercive effect and it is simply impossible to ascertain ex post facto whether

they were included in the MAP for coercion or whether their neutralization was militarily

necessary. The Iraqi leadership is the clearest example of a target set with little counterforce

implications, but clear political relevance. Moreover, repeated strikes on this target set

explicitly aimed at generating a coercive effect (namely to prompt the leadership to withdraw

troops from Kuwait, without actually being defeated). However the attention given to

leadership targets in ODS stands in stark contrast to its importance in 2003: Target set (4) was

the least frequently attacked with only 2% of all air strikes falling into this category,

suggesting that coercion took a back seat during the 1991 air campaign.

In line with the above assumption that the logic of effectiveness is less likely to

generate morally adequate targeting results, the three target sets that least accord with the

logic of distinction generated most of the civilian suffering. Much of the damage done by the

air campaign can be accounted for by secondary effects of air strikes on targets from sets (5)

and (6), while the attempt to chase the regime’s leadership from “hole to hole”, target set (4),

bore the most risk of causing direct collateral damage. However, it has to be stressed that the

effects of the air campaign are still subject to radically different perceptions. General

Schwarzkopf claimed to have “[c]ripple[d] Iraq’s military system while leaving its agriculture

and commerce intact and its population largely unharmed.”91 Outside commentators in

contrast, deplored that ODS “wrought nearly apocalyptic results upon the economic

infrastructure of what had been, until January 1991, a rather highly urbanized and mechanized

society.”92 The utter lack of intersubjective consensus in the perception of the results of US

air targeting corroborates that just like the number of civilian casualties a broader concept of

‘damage done to the civilian sphere’ is on its own not a workable measure for the normative

success of IHL.

Regarding the logic underlying the air campaign, however, the conclusion is

unambiguous: An element of coercion is visible in the air campaign’s inclusion of the Iraqi

89 This is, to a lesser extent, also true for target set (7). 90 Cohen (1994) 2 91 Quoted in Roberts (1994) 155 92 Quoted in ibid. 157


20

leadership and dual use infrastructure (target sets 4 to 6) as targets of attack. However, these

three target sets attracted only a marginal share of air strikes (electrical power plants made up

3% of all targets) and do have counterforce implications as well. Air power contributed to

achieving the five stated aims of ODS mainly through interdiction and direct destruction of

enemy military capabilities - through counterforce targeting in accordance with the logic of

distinction.

Operation Iraqi Freedom

The operational objectives of OIF were to “defeat or compel capitulation of Iraqi

forces”, to neutralize the regime’s leadership, to neutralize Iraq’s WMD delivery systems and

to control the WMD infrastructure, to ensure the territorial integrity of Iraq, to deploy and

position forces for post-hostility operations while initiating humanitarian assistance within

capabilities, to set military conditions for a provisional/permanent government to assume

power, to maintain international and regional support, to neutralize the regime’s command

and control capacities and security forces, and to gain and maintain air, maritime and space

superiority.93 While some of the items on this list echo the operational objectives of ODS, the

anticipated occupation of the country and the aim to change the Iraqi regime add a whole new

operational dimension.

Contrary to 1991 target development for OIF was not done according to target sets,

but according to ‘desired mean points of impact’ (DMPIs)on military objectives, which were

categorized according to the ‘strategy to task mission’ they would further if achieved.94 This

suggests a closer focus on effects than in 1991 and an ever shorter line of thinking between

the overall political and strategic aims of the war and operational and tactical level targeting.

While the exact balance between bombing for strategic and bombing for tactical effect during

OIF is difficult to ascertain, it is beyond doubt that the cognitive and institutional link

between political aims and actual aim points has never in the history of US warfare been

closer.

Nevertheless since this time the ground war ran almost parallel to the air campaign and

was much more extensive than in 1991, support of ground forces did play a material role.

52% of all DMPIs on the JIPTL belonged in the category of “missions to support the ground

93 OIF – By the Numbers” 4 94 Not all eleven ‘strategy to task missions’ were relevant for the air component; for a full list see ibid.


21

component”. 79% of all DMPIs (15592 in total)95 that were ultimately struck either qualified

as “kill box interdiction”, missions to support special operations, or missions to neutralize

moving targets in support of the ground component. Missions with the aim to “support the

ground component” but aimed at pre-planned fixed targets account for another 1% of air

strikes (234 DMPIs). While kill box interdiction is an unambiguous counterforce mission, it is

difficult to qualify the other missions without knowing what was actually struck. From the

airborne decimation of fielded forces to the destruction of dual use infrastructure or even the

weakening of enemy morale, various missions could be categorized as support of the ground

component.

The maintenance of air supremacy was, just as twelve years before, high up on the

agenda. 1441 DMPIs (7%) were struck for the achievement of this end.96 While this mission

could include problematic targets such as electrical grids, the categorization suggests that they

were chosen for their counterforce implications rather than for coercive effect. On the other

hand, long-range interdiction, which was at the forefront of the air campaign in 1991, played

only a marginal role in 2003.97 Since this time the war’s end was not merely to defeat or cause

parts of the Iraqi forces to retreat but to occupy the entire country, attrition could from the

beginning only be part of the strategy. Rather than to utterly conquer the country, it seems

likely that the US let coercion do part of the job of dealing with the entire Iraqi military and

political system.

While much of the essential information is classified, news reports indeed suggest that

“[t]he Pentagon battle plan aim[ed] not only to crush Iraqi troops, but also wipe out power and

water supplies in the capital, Baghdad”98 This quest for coercion is also visible in the fact that

the second most important function of air power (after support of the ground invasion)

according to the pattern of DMPIs was “the suppression of the regime’s ability to command

Iraqi forces and govern the State.” 1799 DMPIs (9% of all air strikes) were devoted to that

aim. The US has acknowledged air strikes on at least 10 media installations and 52 leaders of

the regime as well as both power generation and distribution facilities.99

95 This includes Close Air Support. CAS is not part of pre-planned air targeting and thus technically beyond the scope of this investigation. Unfortunately, I have not been able to shed light on how much of the 79% of air strikes fall into the category of CAS. 96 832 DMPIs (4%) for the neutralization and control of WMD infrastructure and delivery systems; OIF – By the Numbers 9. 97 Lewis (2003) 483 98 West (2003) 99 HRW (2003) 6


22

While it is impossible to say exactly how much emphasis there was on coercion and

whether these targets also had any counterforce implications unless data is released specifying

what was actually struck, it is indicative of the logic of effectiveness that air power was used

to render the regime unable not only to fight but also to govern. The advantage sought with

the use of air power was primarily political rather than military in nature. Donald Rumsfeld

elaborated in his first press briefing after the invasion that air strikes had taken place “‘on a

scale that indicates to Iraqis’ that Saddam and his leadership were finished.”100 He

acknowledged that the early day air assault against Baghdad was supposed to make leaders

lose control so that those affiliated with the regime were starting to wonder where they stood

and in general to “instil shock and awe”.101 In line with this aim the US apparently used a

broader functional criterion to define legitimate “military” objectives of attack. US doctrine

indeed recently featured a change in the wording of its definition of a military objective as

including as legitimate targets those which are “war sustaining”.102 This is a case par

excellence of the logic of effectiveness at work. If the end of a war is to oust a regime its

governing elites are clearly “war-sustaining”.

In conclusion, targets (or rather missions) with only marginal direct counterforce

implications, such as leadership targets and media installations, are more numerous and much

more pivotal in the achievement of operational objectives during OIF than they were during

ODS. The relative emphasis on strategic compared to tactical effects in the choice of targets is

smaller in ODS than in OIF. While interdiction in the traditional sense played an important

role in 1991, it took a back seat in 2003. Instead of attriting military capabilities US air power

was launched directly against structures and individuals that were considered war-sustaining,

i.e. keeping the political system in place. According to the three criteria identified above,

targeting during ODS followed mainly the logic of distinction, while US air targeting twelve

years later displays strong signs of the logic of effectiveness. Notwithstanding the much

100 “Shock and Awe campaign under way” CNN online of 2 March 2003 http://www.cnn.com/2003/fyi/news/03/22/iraq.war/ (last accessed 9 January 2009). 101 Ibid. 102 In 1997 the attribute ‘war-sustaining’ is introduced as a criterion for mission assessment (US Air Force Tactical Air Command and US Army Training and Doctrine Command, Air Land Sea Application Centre, Field Manual 90-36 “The Joint Targeting Process and Procedures For Targeting Time-Critical Targets” of July 25 1997: I-10). The 2002 Joint Doctrine for Targeting uses it to explain the definition of military objectives (“Civilian objects consist of all civilian property and activities other than those used to support or sustain the adversary’s war fighting capability”; Joint Chiefs of Staff, Joint Publication 3-6017 “Joint Doctrine for Targeting” of January 2002: A-2). In 2003 the attribute has entered the definition of a military objective (US Department of Defense “Military Commission Instruction No. 2” of April 30 2003: 3 Article 5d).


23

increased behavioural relevance of IHL, when it comes to normatively shaping US air

targeting in the 21st century, the law seems to have lost out against air power thinking.

IV. Tentative explanations

The fact that IHL is behaviourally more relevant in OIF than in ODS yet normatively

less successful raises a number of questions. One cluster of explanations for why the US

followed different logics of air targeting in the two gulf wars lies with the radically different

real world circumstances of the two campaigns. As hinted above the broader aims in 2003

would have required much more military force if they were to be achieved solely by means of

counterforce warfare, through the application of “brute force”.103 Coercion and a more

explicit involvement of the political and thus civilian sphere seem likely in light of the war’s

end, regime change. In fact, the use of force in 2003 mainly aimed at the political system to

begin with, which is visible in the strategy to task mission to suppress the “regime’s ability to

command Iraqi forces and govern the State.” Every war ultimately has a political goal. But in

1991 the immediate aim of the use of force was military (the withdrawal of Iraqi forces from

Kuwait) and the desired political end state a result of this genuinely military aim. The fact that

no military victory could generate the political end state sought with the use of force in 2003

is still painfully obvious.104

In addition, changes in strategic thought and technological progress at the close of the

20th century have favoured the logic of effectiveness. In 1991 effects based targeting was

more of a strategic aspiration than an operational concept. Lieutenant General Deptula

repeatedly stated that his attempts at it were hampered by lack of timely intelligence and the

continued insistence of the services to do battle damage assessments in physical rather than

functional terms. In addition precision munitions were still a marginal phenomenon. Twelve

years later, by no means out of style, the doctrine could be properly implemented. Where

intelligence and technology had fallen short in 1991, in 21st century US air warfare we see

effects based targeting at work.

103 See Biddle (2006) 104 Whether one deplores the anti-Clausewitzian implications of the logic of distinction which requires one to build a fictitious barrier between the immediate military aim of the use of force and the ultimately political goal of every war, or whether one concludes that a war which cannot be successfully fought according to the logic of distinction cannot be a legal war, depends on whether one accepts the assumption that the logic of distinction is morally preferable to the logic of effectiveness in a significant way. And of course it only matters if the normative success of IHL, beyond its behavioural relevance, is considered important when asking about the effectiveness of international law in regulating war. Whatever conclusion one draws from the observation that the political goal of a war seems to prejudge the logic of targeting, it throws yet another stone against the conceptual wall between jus in bello and jus ad bellum.


24

Besides the shift to effects base targeting and parallel warfare, another strategic

current points toward the logic of effectiveness in the 2003 air campaign: the doctrine of

“Achieving Rapid Dominance”, better known as “shock and awe”. While it is controversial to

what extent the thus dubbed initial air campaign against Baghdad was shocking and awesome

enough to warrant association with the concept, it is clear that the National Defence

University’s thinking influenced the intellectual climate within which the air campaign was

planned and designed. In many ways “Achieving Rapid Dominance” is a condensed

expression of warfare according to the logic of effectiveness.

It is by no means a surprise that the logic of targeting follows some combination of the

factors of war aims, strategic thought and technology. However, what this comparison reveals

is that the logic of targeting does not follow the law. In spite of the radically increased

behavioural relevance of IHL, in what seems to render pre-planned US air warfare of the 21st

century the easiest possible case for IHL to be normatively successful, the logic of distinction

is less visible than twelve years before. While the mentioned changes in real world

circumstances thus go some way to explain the increase in targeting according to the logic of

effectiveness, it remains a puzzle how this could have gone hand in hand with such an

impressive increase in behavioural relevance of IHL.

One could of course argue that armed conflict the political, strategic and technological

context of which favours the logic of effectiveness is no longer an easy case for normatively

successful legal regulation and that IHL simply lost out against powerful strategic, political

and technological imperatives. However, this raises the question what we expect IHL to

accomplish – given the political, strategic and technological context of its application – in

order to be able to consider it normatively successful. A second cluster of explanations for the

triumph of the logic of effectiveness in OIF and the observed discrepancy in behavioural

relevance and normative success of IHL thus looks at the law and its interpretation.

The coincidence of adherence to the law and morally inadequate results is often

considered an indication of a bad faith application of the law or an interpretation contra

legem. In this reading the observed targeting according to the logic of effectiveness should

inspire criticism of the US military’s conduct of its 2003 air campaign. Far from laudable, the

comprehensive legalization of US air targeting would appear as a means of abusing the

normative momentum of the law to legitimize morally inadequate practices. Kramer and

Schmitt have pointed toward this possibility when they warned that “[w]hile it is true that

policy should play a role in interpreting grey areas of law, one must be careful not to confuse


25

interpretation with misapplication of the law. Policy preference is not acceptable as an excuse

for ignoring normative strictures of the jus in bello”.105 Others argue that an interpretation of

IHL in line with the actor’s rational interest (which is likely based on strategic thought, war

aims and available technology) is entirely legitimate; legal rules’ “rationale is that adhering to

them produces desired outcomes, and their authority is conditional on their effectiveness in

bringing about those outcomes”.106

But if law claims to be anything but an epiphenomenon of rational interest, it needs to

put up some resistance against interpretations which flout its inherent logic. An alternative to

“blaming the US” for morally inadequate targeting results, notwithstanding apparent

adherence to the law, is thus “blaming” the law for its lack of normative success in spite of its

ample opportunities to influence behaviour. If a good faith attempt to give more behavioural

relevance to IHL goes hand in hand with a trend of less morally adequate targeting results, the

law would not deserve the normative momentum it currently receives as the foremost criterion

of legitimate conduct in war. Is there something wrong with the legal definition of a

legitimate target of attack?

It is the concept of a definite military advantage, which delimits the sphere of

legitimate military targets from the protected civilian sphere according to the logic of

distinction. A long-standing controversy regarding the interpretation of the Article 52(2)

definition of a military objective according to the criterion of a definite military advantage

reveals that it suffers from a threefold indeterminacy. The first question arising in any attempt

to operationalise the criterion of military advantage concerns the necessary degree of nexus

between an act of destruction or neutralisation and military advantage.107 The ICRC

commentary requires “a concrete and perceptible military advantage rather than a hypothetical

one”.108 As mentioned, official US doctrine embraces as a valid interpretation of Article 52(2)

that the destruction of an object contributing to the adversary’s war-sustaining effort would

yield a definite military advantage. However the neutralisation of an object characterized by

its contribution to the adversary’s war-sustaining effort, such as a factory transforming raw

material, at first leads merely to an indirect advantage which will only become concrete and

perceptible as a cumulative effect of many similar targeting acts.

105 Kramer & Schmitt (2008) 1429 106 Nardin (2008) 391 107 Dinstein (2002) 3; Schmitt (2003) 4; Shue and Wippman hold that there is an “additional requirement of situational relevance” beyond the fact that an object potentially contributes to the military effort of the adversary (Shue and Wippman (2002) 561) while the ICRC requires the advantage to be “substantial and relatively close”; Sandoz et al (1987) 2209. 108 Sandoz et al (1987) 2209


26

Secondly, the appropriate frame of reference to determine a military advantage is

subject to differing interpretations. US military manuals are not the only ones stating that

‘“the military advantage anticipated from an attack” is intended to refer to the advantage

anticipated from the attack considered as a whole and not only from isolated or particular

parts of the attack.”109 The statement that “military advantage is not restricted to tactical

gains, but is linked to the full context of war strategy”110 goes only a little further but seems to

come closer to conflicting with the ICRC commentary that stipulates that “an attack as a

whole is a finite event, not to be confused with an entire war”.111 US battlefield behaviour

seems to suggest that “the full context of war strategy” means the general political aim of an

intervention. As a result, targeting choices are not conducted within a purely military logic but

increasingly according to genuinely political prescriptions.112

The third question regards the nature of a definite military advantage and is closely

related to the frame of reference for its determination. Even though a literal interpretation of

Article 52(2) suggests that the advantage has to be genuinely military, the lines between

military and political advantage are blurred if the operational focus of an intervention is not to

defeat the adversary militarily but to coerce the enemy (including its political regime and civil

society) into certain behaviour.

All three facets of indeterminacy of the concept of military advantage – the nature, the

frame of reference and the degree of nexus – point toward the same problem: if interpreted

very broadly the criterion of a definite military advantage to define a legitimate target of

attack accommodates the logic of effectiveness. As the difference between air power used

according to moderate forms of the logic of effectiveness versus the logic of distinction is one

of degrees (exactly when does effectiveness override distinction, how tightly knit are politics,

strategy, operations and tactics), the narrowness of the frame of reference and the degree of

nexus between a military action and the advantage sought, as well as the latter’s nature,

determine which logic the use of air power follows.

While this possible continuum of interpretations of the concept of a definite military

advantage explains how an increase in behavioural relevance of IHL and the dominance of the

logic of effectiveness in air warfare can coincide, as observed, it does not answer the question

109 Reservation (i) entered by the UK upon ratification of Protocol I, 28 January 1998, see IRRC No. 322: 186 ff. 110 International and Operational Law Department, The Judge Advocate General’s Legal Centre and School (2006) Operational Law Handbook, Charlottesville: 16 111 Ibid.; for an opposing opinion see Schmitt (2002) 8. 112 The US has among other countries made a declaration to that effect in the travaux préparatoires of the First Additional Protocol; quoted in Henckaerts and Doswald-Beck (2005).


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whether we consider such an interpretation contra legem or whether we just conclude that the

law is too indeterminate to impose its own logic. Isn’t the insertion of the word “war-

sustaining” into the definition of a legitimate target of attack the ultimate proof of the bad

faith attempt to cut off the law from its underlying logic and to make it compatible with the

logic of effectiveness?113 Do we point the finger at the US for using the law to legitimize

practices that contradict its own logic or do we denounce the legal definition of a legitimate

target of attack as inherently indeterminate? I suggest that we do neither but start by

acknowledging that giving effect to IHL does not end with stocking lawyers in the CAOC and

that agreement on highly indeterminate principles of targeting such as distinction and

proportionality does not mean that the international community has substantively agreed on

what it considers fair game in war and thus morally adequate targeting results (as an

indication of normatively successful legal regulation). It is necessary to critically revisit both

these issues if we encounter patterns of targeting that appear legally warranted but morally

inadequate.

113 See footnote 101


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