The Lichfield Group

This article appeared in the December 7, 2005 issue of the Washington Times.

War is hell, as General William Tecumseh Sherman sermonized. The Geneva Conventions and Protocols compound the hell for commanders and soldiers alike by ambiguously defining war crimes in relation to civilian objects as a failure to fight by Queensbury rules. As the United States Supreme Court taught in Connally v. General Construction Co. (1926): “[A] statute that which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”

Article 57 of Protocol I to the Fourth Convention is tantamount to an impractical Miss Manners guide for planning battles and attacking. A commander is made a war criminal by neglecting to do “everything feasible” to verify that neither civilians nor civilian objects will be targeted. But what is feasible to a war critic or pacifist is militarily reckless to a war supporter or general. It would be feasible to devote hundreds of spies to reconnoitering for weeks or months to insure against a miniscule possibility of a planning mistake, for example, the accidental bombing of the Chinese Embassy in the former Republic of Yugoslavia by the United States. But such scrupulous precautions might compromise military success. They are feasible or infeasible only in the eye of the beholder.

A commander is also vulnerable to a war crimes prosecution for failing to “take all feasible precautions in the choice of means and method of attack with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” But a commander does not know in advance what means and methods will be necessary minimize his own losses, to inflict maximum casualties on enemy forces, or to achieve immediate surrender. Consider the atomic bombings of Hiroshima and Nagasaki. It might be said that President Harry Truman committed war crimes by declining to invade Japan by land forces. Collateral civilian damage might have been less. And it is remotely conceivable that the Japanese would have unconditionally surrendered as quickly. But imponderables are the rule, not the exception, in calculating the weapons and tactics necessary to force capitulation.

It would be feasible, i.e., capable of being done, to confine the United States military in Iraq and Afghanistan to attacking with hand guns or pick axes. That would minimize collateral civilian damage at the risk of losing the war or more American soldiers. Thus, article 57 lends itself to an interpretation that makes commanders war criminals for declining to make the protection of civilians and civilian objects more important than winning the war.

The article absurdly instructs commanders to “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Suppose an American general in Iraq is contemplating a combined air and ground attack on Fallujeh to break the backbone and morale of the insurgency. To escape the threat of a war crimes prosecution, the general must task subordinates to estimate collateral civilian damage before attacking. The task is fraught with difficulties. Collateral damage will rise or fall depending on the ease of military success and the vileness of the insurgents in commandeering mosques, hospitals, ambulances, and other customary civilian objects for military use. Neither contingency will be known in advance, yet advance knowledge is necessary to avert the threat of a war crimes indictment.

Even assuming a commander could forecast collateral damage with exactness, he then must contemplate the “concrete and direct military advantage anticipated” in attacking Fallujeh. Nonsensically excluded are intangible or indirect advantages, for example, shattering enemy morale, winning new allies to the war coalition, or facilitating the holding of elections in January 2005. Included would be enemy casualties, weapons destruction, intelligence collection, and the prospect of capturing insurgent leaders. The commander must then pluck from an elusive moral universe an idiosyncratic scale to weigh the projected civilian damage against the speculated military gain. If his scale tips towards the latter and a Fallujeh attack is launched, but the post hoc idiosyncratic scales of international jurists tip towards the former, then the commander would be guilty of a war crime.

The outlandishness of article 57 does not stop there. A commander is required to suspend an attack if in the heat of battle it might appear to a Monday morning quarterback that the military advantage hoped for had lessened and had become excessive in relation to civilian damage. And in choosing between potential places for attack, for example, Mosul or Baghdad, the commander is compelled to choose the site “which may be expected cause the least danger to civilian lives and civilian objects.” A commander who miscalculates in the minds of international judges is a war criminal.

Article 57 and companion war crimes provisions in Protocol I hang as Swords of Damocles over the American military and as due process transgressions. The United States should renounce them as engines of oppression.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.