Courtesy of Scott Horton
Scott Horton teaches law of armed conflict at Columbia Law School in New York.
Courtesy of Scott Horton
On May 4, 2009, Afghan soldiers came under fire in the village of Granai. American military advisers assisting them decided to call in airstrikes using B-1 bombers. After three strikes, the dust settled, leaving something between 140 and 26 innocent civilians dead (the first number is the Afghan government's, the second, U.S. Central Command's).
On May 11, Defense Secretary Bob Gates announced the replacement of General David D. McKiernan as the senior U.S. commander in Afghanistan. The move came as a surprise to many observers and for days the press struggled to find explanations. The Washington Post called it a "rare decision to remove a wartime commander."
Joint Special Forces Commander Stanley A. McChrystal replaced McKiernan. Was there a connection between the Granai incident and the dozens of similar incidents that had sent Afghan civilian casualties soaring and the replacement of Gen. McKiernan?
A senior Afghanistan adviser in the Obama administration was blunt. He told me that the struggle to control the Taliban was "not going well." In fact, the heavy-handed approach favored by McKiernan was seen as a large part of the problem. There had been heavy reliance on aerial bombing of civilian targets when reports claimed a Taliban leader might be present. The intelligence about the presence of a Taliban leader often proved inaccurate and the events targeted were frequently weddings and funerals. Large numbers of innocent civilians were killed. The result was that rather than eradicate the Taliban, the bombings were alienating the locals and the Kabul government and providing a fertile matrix for the spread of the Taliban. "McKiernan just didn't get it," the adviser said. "He was not implementing the counterinsurgency policy."
There is an acute issue in the background that the Pentagon doesn't want to discuss: collateral damage. Under the law of armed conflict, military forces are required to apply a principle of discrimination — using deadly force against hostile forces, but not against civilian noncombatants. Still, this rule is far from absolute. As applied with respect to civilian population centers, the requirement has only two elements: there must be a legitimate military target, and the damage to civilians must be "proportionate."
More recent efforts to strengthen the protections given civilians have proven controversial. Two additional protocols to the Geneva Conventions are the core of this effort. The first states that "constant care shall be taken to spare the civilian population, civilians and civilian objects." It prohibits carpet bombing, and it narrows the meaning of the "proportionality" by stressing that collateral damage cannot exceed the value of the military objective sought. The second protocol goes even further, saying that civilians may not be "the object of attack." The United States signed, but has not yet ratified, the protocols.
Nevertheless, before the arrival of the Bush administration, the United States viewed itself as bound by most of the protocols except specific provisions that the Reagan administration had criticized, and the Army Field Manuals reflected this view. Under the Bush administration, however, the U.S. view of the protocols became much murkier, as senior officials ridiculed much of the Geneva framework — as shown in former White House Counsel Alberto Gonzales's famous memorandum calling the conventions "quaint" and "obsolete." (Gonzales went on to become attorney general.)
Still, recent U.S. military doctrine recognized the principle of proportionality and involved law of armed conflict specialists in making decisions where civilian casualties could be expected. Decisions were made in the Balkans war, for instance, to strike military targets in civilian population centers in Bosnia and Serbia following careful study of possible collateral damage. It was clear that a number of civilian casualties were anticipated and accepted.
But how many innocent civilian deaths make a strike against a legitimate military target "disproportionate"?
The law of armed conflict provides no clear guidance. With the commencement of the "war on terror," the Bush administration clearly relaxed these rules, seeking generally to exclude law of armed conflict experts from the decision-making process. But the internal rules were a tightly guarded secret. In an article in July 2007, however, Salon's Mark Benjamin learned some of the nitty-gritty of the calculus: "The magic number was 30," said Marc Garlasco, who was the Pentagon's chief of high-value targeting at the start of the war. "That means that if you hit 30 as the anticipated number of civilians killed, the airstrike had to go to [Defense Secretary Donald] Rumsfeld or Bush personally to sign off."
That left ground commanders in a position to authorize bombings whenever it appeared that 29 or fewer innocent civilians would die. Garlasco was describing a procedure in place in 2003, as the Iraq War opened. It's clear that new, highly classified procedures are in place now. But the high level of civilian casualties in Afghanistan suggests strongly that the guidelines contained in these procedures are far more permissive than those applied in the conflict in the Balkans, for instance.
Still, the number of civilians likely to die is just one part of the equation. The military decision-maker also needs to take into account the weaponry used and whether it is properly gauged to the target (among other things, likely to minimize innocent deaths) and the reason for the target. How reliable is the intelligence? How important is the target as a military object? And is the strike designed to protect our own forces? That's usually accorded a high priority.
The replacement of McKiernan does not necessarily reflect the Pentagon's reversion to earlier, more constrictive views about proportionality and civilian deaths under the law of armed conflict. Rather it reflects a different tactical environment. The American object in Afghanistan is not to seize and hold territory, rather it is to pacify the country and strengthen its domestic policing and military capacity so that responsibility can be returned to the Afghan government. A counterinsurgency effort is very substantially about "hearts and minds." And that means that air strikes with high collateral-damage numbers can do more damage to the military mission than the elimination of a Taliban leader can justify. In other words, the weights in a counterinsurgency effort move strongly in favor of reducing the number of civilian casualties.
In the Bush era, the law of armed conflict was often seen as a nuisance, preventing the military from using all its power to quickly address a problem. But the view of many of the fathers of the modern laws of war — the philosopher Immanuel Kant, the theoretician Carl von Clausewitz and their American disciple Francis Lieber, for instance — this viewpoint was mistaken. They argue that the laws of war, faithfully and prudently applied, allow military forces to fight more smartly, more efficiently, and to achieve their goals while minimizing damage to innocent civilians. The American experience in Afghanistan suggests strongly that they are right.