Tearing down the facade: a critical look at the current law on targeting the will of the enemy and Air Force doctrine

Jeanne M. Meyer

MAJOR JEANNE M. MEYER *

I. INTRODUCTION

Wars are rarely fought for the pure joy of battle. Rather, as Carl von Clausewitz noted in the early 19th century, war is most often "a true political instrument, a continuation of political intercourse, carried on with other means." (1) Moreover, "the destruction of the military forces of the enemy is not now and never has been the objective of war; it has been merely a means to an end--merely the removal of an obstacle which lay in the path of overcoming the will to resist." (2)

For as long as nations have wielded war as a political instrument, men have also attempted to regulate or limit war. (3) The most recent comprehensive efforts to regulate the conduct of war are found in Protocols I and II to the Geneva Conventions and were completed over twenty years ago. (4) Portions of the Protocols codify and reflect basic principles of the laws of war, such as the principle of distinction and the prohibition against infliction of unnecessary suffering. (5) Other articles, and one in particular, Article 52(2) of Protocol I, may not necessarily reflect customary international law or state practice. On its face, Article 52(2) may appear consistent with customary international law and state practice, (6) however, the definition of a military objective in Article 52(2) arguably allows for the imposition of new limits on targeting inconsistent with prior customary international law and state practice. The specific language that focuses on the military aspect of a potential target creates these limitations. In addition, the international community restrictively interprets the language of Article 52(2), particularly what constitutes a military advantage or a contribution to military action. (7) As a result, some in the international community are increasingly questioning the legality of targets previously considered legitimate military objectives.

When interpreted in such a restrictive way, Calusewitz' observations of war as an extension of politics are disregarded. Previously legitimate targets, whose destruction provided a psychological or strategic advantage, potentially fail under current restrictive interpretations of what contributes to a military effort or provides a military advantage. These restrictions should concern air power advocates in particular as they limit some of the most fundamental and powerful applications of air power during combat. Furthermore, the ultimate result may be that the drafters, and those who wish to interpret and apply Article 52(2) restrictively, unwittingly increase the potential human cost of conflict to both sides.

Using the application of air power as the context, this article will review the historical background of targeting and regulations relating thereto to delineate customary international law and state practice. It will analyze Article 52 in light of customary international law and state practice. It concludes that, as it is increasingly interpreted and applied, Article 52 does not accurately reflect customary international law or current state practice. Attempts to apply Article 52 in such an overly restrictive manner unnecessarily restrict commanders from striking legitimate strategic targets and may even increase the loss of combatant and noncombatant life. An interpretation and application of Article 52 to reflect the realities of war would better serve both the warrior and the protected civilian.

II. DEVELOPMENT OF INTERNATIONAL LAW REGULATING AIR WARFARE

Article 52(2) states:

Attacks shall be limited strictly to military objectives. In so far as objectives are concerned, military objectives are limited to those objects 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 advantage. (8)

As stated in the first sentence, targeting is limited to attacking only "military objectives." Furthermore, an attack is legitimate only if it provides a "definite military advantage." In order to fully analyze Article 52(2)'s definitions of military objective and military advantage, it is important to understand how, or if, previous conventional and customary international law defined these terms. (9) Thus, the following section addresses the development of targeting under conventional and customary international law, focusing in particular on developments concerning the application of air power in combat. (10)

A. Principles of International Law Regulating Air Warfare

The chief of the RAF Bomber Command during World War II, Air Marshal Arthur Harris, concluded after the war that "[i]nternational law can always be argued pro and con, but in this matter of the use of aircraft in war there is, it so happens, no international law at all." (11) While perhaps not entirely true, Air Marshal Harris' statement concerning the regulation of air warfare by international law was more true than not. By the mid-twentieth century, only a few basic principles of the law of war, in combination with outdated conventional law, regulated the conduct of air warfare.

1. Basic Principles of International Law Regulating Air Warfare

The most basic principle underlying the law of war has always been that of discrimination--more commonly known as distinction. (12) The principle of distinction requires that an attacker direct his efforts against only enemy military objects and objectives. (13) This principle generally provided civilians and noncombatants with "an absolute moral immunity from direct, intentional attack," (14) and was commonly referred to as providing noncombatant immunity. However, this immunity was not consistently accorded. Death of noncombatants was acceptable if they died as an ancillary to an attack on a lawful target. (15) Thus, if the death or injury to civilians was an indirect and unintentional result of a lawful attack, then the requirement of distinction was met. (16)

The natural derivative of distinction is the principle of military objective. (17) If one is entitled to target only "lawful" targets, and incidental injury to noncombatants is acceptable only as an indirect and unintended consequence of striking a lawful target, then the definition of what is a lawful target becomes paramount. The somewhat circular answer to this question is often the response that lawful targets are all military objectives. As discussed below, several attempts were made to define what constituted a military objective. (18) For various reasons, however, states did not accept these proposed definitions, and left the determination of what constituted a military objective primarily to the attacker. (19)

In addition to the limitations imposed by the principle of distinction and the requirement of striking only military objectives, classic law of war also required that attacking the target was a military necessity. (20) A Nuremberg tribunal articulated the customary law principle of military necessity in United States v. List:

Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money . . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger, but does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. (21)

The principle of military necessity then, similar to the principle of distinction, acknowledges the potential for unavoidable civilian death and injury ancillary to the conduct of legitimate military operations. However, the principle of military necessity adds to distinction's requirement for targeting only a military objective. Military necessity adds the additional requirement that destroying a particular military objective will provide some type of advantage in overcoming the enemy.

Thus, several basic principles of customary international law that governed the use of all force, including air power, existed by the mid-twentieth century. Attackers were required to distinguish between military objectives and civilians, targeting only military objectives. Further, the destruction of a target had to provide some military advantage to the attacker.

2. Conventional International Law Regulating Air Warfare

The basic principles discussed above were not only considered customary international law, but also were articulated in several international legal documents. Dr. Francis Lieber wrote one of the first modern statements of the law of war. (22) During the Civil War, President Lincoln requested that Lieber write a code of law summarizing the customary practice of nations as it existed at the time. (23) President Lincoln then adopted and issued Lieber's code to the Union Army as Union Army General Order No. 100. (24) The Lieber Code, as it is commonly known, contained several articles articulating basic principles of the law of war. Articles 14 and 15 recognized the principle of military necessity:

Art 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modem law and usages of war.

Art 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war .... (25)

The Lieber Code also formally recognized the principle of distinction in Article 22:

Art. 22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit. (26)

The principle of distinction, however, was not without exception. Lieber specifically states that "[p]ublic war is a state of armed hostility between sovereign nations or governments," and therefore "[t]he citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war." (27) Lieber therefore reflected in his code the prevailing belief of the time that while civilians should not be directly targeted, nevertheless they did not remain immune from injury during combat.

Five years later, the St. Petersburg Declaration tacitly recognized the principle of distinction. (28) Although the purpose of the Declaration was to prohibit a certain type of bullet, its preamble states "[t]hat the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy." (29) The Declaration did not, however, address exactly how one was entitled to weaken such forces.

At the time of the birth of air power, then, several basic principles of international law, codified in various documents, regulated the use of force between states. Upon the arrival of air power and all that its proponents portended, nations took on the task of drafting law specifically regulating the use of this new weapon. In August of 1898, Russia proposed convening an international conference to address issues of disarmament and weapons regulation. (30) The conference convened at The Hague in May of 1899. (31) One of the items proposed for regulation was the discharge or launching of weapons from the air. (32) At the time of this proposal, "every major army in Europe had for some time been making an ongoing investment in military aeronautics." (33)

Although little more than observation from balloons had been done by this time, nations recognized the future potential for using balloons to drop explosives. (34) In response to such uncertainty, the Russians proposed a permanent ban on the discharge of explosives or projectiles from balloons. (35) Initially the commission working on the proposal voted unanimously to adopt the resolution. (36) Ultimately, however, the ban was limited to five years, the final treaty stating that the parties agreed "to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of a similar nature." (37) This limited ban effectively allowed nations to take a wait-and-see attitude regarding possible future uses of air power. It also shifted the dynamic regarding air power from one of prohibition to one of regulation. From its inception, air power and its potential proved too alluring for nations to relinquish completely.

The Second Hague Peace Conference convened in 1907. (38) Perhaps due to the rapid advancement of air power in the previous eight years, little enthusiasm existed for renewing the 1899 prohibition. (39) Although the Conference's attempt to regulate air warfare specifically did not go very far, the Conference did regulate air warfare through conventions regarding land and sea forces. Article 25 of the 1899 Convention on Land Warfare was amended to include bombardment from the air. It read: "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." (40) Article 25, then, essentially replaced the prior prohibition on discharging explosives from balloons or from other new methods, at least with regards to undefended targets.

Restrictions set out on naval bombardment in Convention (IX) Concerning Bombardment by Naval Forces in Time of War (41) proved to be more relevant. Article 1 of the Convention applied the prohibition against land forces bombing undefended places to naval forces as well. (42) Article 2, however, went on to enumerate items that were not covered by Article 1's prohibition. These items included military establishments as well as industries that provided for the armed forces. (43) For the first time, parties recognized that the legitimacy of bombardment was not necessarily related to whether the object was defended, but instead to whether it had military significance." Furthermore, foreshadowing the Army Air Corps' doctrine during World War II, Article 2 recognized the legitimacy of striking economic or industrial targets that were key to the enemy's military effort.

Thus, when World War I broke out seven years later, customary law prohibiting indiscriminate attack and the applicable portions of The Hague Peace Conferences of 1899 and 1907 constituted the only existing regulation of air warfare. After WWI, the international community tried unsuccessfully to modify the existing law regarding air warfare with the 1923 Hague Rules of Air Warfare. (45) Although never formally accepted, the proposed provisions are worth noting for two reasons. First, the proposed conventional rules regulating combat contradicted prior state practice and military thinking of the time. (46) Second, the rules attempted for the first time, in a roundabout way, to define or limit what constituted a military objective. (47) Unfortunately, the proposed definition did not reflect customary international law or past state practice. Based at least in part on these failures to reflect current state practice and customary international law, states' "condemnation of the rules was virtually unanimous," and they "drifted into obscurity, adopted by no nation, and completely ignored by most aviation historians." (48) The world community strongly rejected attempts to codify the law of air warfare that contradicted customary international law. This near unanimous rejection became relevant nearly fifty years later, as the drafters of Protocol I, attempting to once again regulate air warfare, drew on language similar to that rejected in the 1923 Hague Air Rules. (49)

B. Customary International Law--The Practice of States in Air Warfare

Perhaps most relevant to determining international law regarding aerial bombardment is the practice of nations. How nations actually conduct bombardment campaigns reflects not only their beliefs of what international law is and what they are legally obligated to follow, but, over time, also creates customary international law. (50) Thus, it is necessary to look briefly at what nations considered to be lawful targets during various air campaigns. As target selection is primarily determined by military doctrine and theory, (51) consideration of the air power doctrine followed by nations will also be addressed when assessing their practice.

1. World War I

Although unsure of all its potential future uses, almost all the major powers began to experiment with military uses for air power when it was still in its infancy. (52) There was, however, little agreement upon the best use for air power. (53) As a result, the major powers entered World War I with little coherent doctrine for using air power. (54) At the beginning of the war, air power doctrine and technology were still in the formative years. The war, ironically, provided a "legitimate" arena for testing and experimenting with various uses of air power. (55) Initially, states used air power rather sparingly, primarily for reconnaissance and ground troop support. (56) However, by 1917, advancements in technology and training, combined with "the failure of the army campaigns of 1916 and the strategic stalemate on the Western Front promoted greater interest in long-range bombardment." (57) Scrutiny of how the warring parties conducted their bombing campaigns, particularly their choice of targets, reveals their perceptions of the international legal constraints in effect at the time.

The bombing campaigns of Britain, France, Germany, Italy, and America all reflect adherence to two, interrelated principles of international law: (1) the only legitimate targets are military objectives; and (2) indiscriminate bombing is prohibited. (58) As far as what was considered a military objective, it is important to note that the term was regarded as inclusive of far more than simply the military establishments of the enemy. Furthermore, the list of objects actually struck during the war reflected a far wider range than those listed in Article 24(2) of the 1923 Hague Air Rules. (59) To say that indiscriminate bombing was prohibited is not to say that it did not occur. Rather,

[m]ilitary objectives were aimed at, but, for a variety of reasons, were not always hit and the effect of the attack was too often not very different from that which would have resulted from an intention to bomb indiscriminately. There was undoubtedly a lack of precision. The bombing was largely, to use a nautical expression, "by guess and by God." Things other than military were hit on many occasions. There was, furthermore, a good deal of doubt about what a military objective was. (60)

Numerous reasons accounted for the less-than-precise bombardments: bombing from great heights, faulty intelligence, adverse weather, limited technology, and minimal training and experience. (61) The intent, however, was to attack targets that contributed to the enemy's war fighting effort including those targets that would demoralize the enemy. (62)

As discussed above, collateral damage was considered acceptable (if regrettable) if it was an unintended and indirect consequence of bombing legitimate targets. (63) Similarly, the parties in WWI considered affecting enemy morale, including that of civilians, to be a legitimate, and perhaps desirable, consequence of aerial bombardment. (64) The difference between the wars, however, was that not only did the collateral effect injure and kill civilians, but also influenced an intangible-the morale of the population. The effect was indirect, but it was very much intended. (65) Such an effect was considered a legitimate corollary objective to striking a more traditional military target. (66) The practice of states, then, remained, at least in principle, consistent with the basic principles of distinction and targeting of only military objectives. It rejected, however, conventional law attempts to provide an exclusive list of military objectives and the requirement of a purely military advantage. As one internatio nal law scholar summarized, "The law of war is based upon the practice of nations. In that regard, during World War I, demoralization of the enemy by means of widespread bombardment was accepted by the military services as part of the functions of the aviation bombardment groups, as it was for artillery." (67)

2. The Inter-war Period

The bloody trench warfare of World War I created a fundamental change in the nature of warfare. No longer was war a battle between just opposing armies and navies. War had become total, all encompassing conflict. Battles were now wars of attrition involving the material resources and the morale of entire nations. (68)

The rapid changes in industry, technology and politics added to this targeting evolution. The industrial revolution fully integrated civilians into the industrial war-making capability of their nation. (69) Technological advances in military equipment allowed nations to strike far beyond the military forces fighting on the battlefield, thereby inflicting damage where civilians lived and worked. (70) Furthermore, the idea of popular sovereignty replaced many monarchies, theoretically causing the declaration of war to become an expression of the will of not simply one man, but of the entire population. (71)

State practices in WWI reflected this fundamental change in targeting. (72) Enemy forces were no longer the only objective. (73) In a total war, a nation's entire war-making and war-supporting effort, to include the domestic economy and civilian morale, became a legitimate target. (74) Air power, strategic bombardment in particular, provided the most powerful and efficient method by which to reach these targets.

Proponents of air power came to the forefront after WWI, particularly those who advocated bombardment as the most effective strategic weapon available. (75) Strategic bombardment differed from any type of past warfare in two ways:

First, it formed part of the grand strategic aim by directly attacking the enemy's will to resist, bypassing the surface campaign and independent of its immediate objectives. Second, strategic bombardment focused on complex target systems chosen not because of any direct or necessary relationship with the enemy's forces in the field, but because their destruction would undermine the enemy nation's willingness and capability to wage war at all. (76)

Strategic bombardment doctrine thus went beyond targets that provided an enemy the physical means to wage war--to include targets that affected his psychological ability to wage war. Different theories existed regarding what targets, if destroyed, would undermine an enemy's morale. (77) The concept of morale as a legitimate target was, however, universally accepted as one of the advantages provided by air power. (78) Air Marshal Hugh Trenchard, commander of the Royal Air Force, defined military objectives as "any objectives which will contribute effectively towards the destruction of the enemy's means of resistance and the lowering of his determination to fight." (79) Therefore, during the inter-war years air planners considered morale a military objective as defined by previous state practice. These military men accomplished what lawyers had failed to do previously--provide a viable definition for military objective.

3. World War II

"In the matter of bombing, the second great war started, doctrinally and legally, more or less where the first had left off, but at a greatly advanced point, technically and operationally." (80) The air power strategy of the Allies focused primarily on strategic bombardment. (81) Upon entering the war, the RAF and the Army Air Corps espoused similar targeting strategies in a cooperative strategy for use against the Axis called ABC-1. (82) The twin goals of the RAF and the Army Air Corps were to destroy both the capability and the willingness of the enemy to fight. (83) The RAF, however, perhaps due to the suffering England had endured from the Luftwaffe, initially was more disposed to considering Germany's morale as a specific objective. (84) The Army Air Corps entered the war with its strategic plan set out in Air War Plans Division Plan 1 (AWPD-1). (85) AWPD-l espoused the doctrine of unescorted, high-altitude, precision bombardment of an enemy's industrial centers. (86) However, the Army Air Corps also con sidered morale a legitimate objective. (87) The Army Air Corps, however, believed that the best way to destroy morale was indirectly: "Morale was rejected as a proper objective on its own; the assumption held that the interruption of the economic system would have a secondary impact on German morale." (88)

By 1943, the British and the Americans combined their direct and indirect approaches to affecting morale. (89) In January of 1943, President Franklin D. Roosevelt and Prime Minister Winston Churchill met at Casablanca to discuss further plans for Allied action against Germany. (90) One result of the meeting was a jointly issued document, commonly referred to as the Casablanca Directive. (91) The directive declared the primary objective of the bombers was "the progressive destruction and dislocation of the German military, industrial and economic system, and the undermining of the morale of the German people to the point where their capacity for armed resistance is fatally weakened." (92) The subsequent offensive was carried out around the clock, the RAF employed night area bombing while the Air Corps attempted daylight precision bombardment. (93)

Although attainment of distinction was perhaps more difficult than in the past due to the high levels of commingling of military objectives with civilian populations, it remained viable during WWII. (94) The major parties clearly considered morale a legitimate objective for air planners. (95) The argument remains open whether the means chosen by the parties were effective against morale, or even if the technological means existed to achieve the parties' goals. (96) However, the level of effectiveness of the particular means chosen does not change the fact that state practice demonstrated that states considered affecting civilian morale to be a legitimate objective.

C. Post World War II Developments: Protocol I to the Geneva Conventions

Although World War II marked the end of total war, it was not the end of armed conflict. It did, however, provide the catalyst for new attempts at codifying international law relating to combat. The coming of age of strategic bombardment in WWII presented a powerful weapon with far-reaching capabilities. As a result, civilians became more vulnerable than ever before, "and were inevitably collateral targets, potentially on a much larger scale than previously." (97) Thus, unlike pre-war provisions, the majority of conventions and treaties proposed after WWII dealt with the protection of noncombatants, rather than regulation of the means and methods of warfare. (98)

In the 1950s, the International Committee of the Red Cross (ICRC), proponents of the Geneva Conventions, expanded its focus, venturing outside its role as protector of war victims and into the traditional Hague law of regulating combat. "In particular, members of the ICRC sought to regulate, if not prohibit, the employment of aerial bombardment beyond the immediate battlefield." (99) The ICRC put forth a number of drafts and proposals, as did the Institute of International Law and the United Nations. (100) While the proposals were put forth to the international community, it is important to note that none of them were binding. Furthermore, support for the proposals among the major powers was tepid, at best. (101) In fact the General Counsel of the Department of Defense specifically warned against "attempts to limit the effects of attacks in an unrealistic manner," citing the failed 1923 Hague Rules as such an attempt. (102)

The ICRC's most ambitious effort began in 1974. Over the course of three years, The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (the Conference), met in four sessions. (103) The result of the Conference was Protocol I and Protocol II to the Geneva Conventions. (104) Although the negotiating history and background of the Protocols is extensive, (105) only a few points are relevant to this analysis. Perhaps most surprising is that:

[n]otwithstanding the very clear lesson of the failed 1923 Hague Air Rules against international lawyers exercising the lead in negotiating a treaty in which they lack subject-matter expertise, many delegations--and particularly the Western delegations--were almost exclusively comprised of international lawyers. (106)

The differing agendas of those present at the Conference are also relevant. Attendance at the Conference was far ranging--all state parties that had signed the 1949 Geneva Conventions were invited. (107) Not surprisingly, views of air power and its potential uses differed greatly between Western countries, which possessed superior, technologically advanced air forces, and lesser-developed countries. Viewing themselves as likely to be on the losing side of any battle involving air power, the Third World countries were interested primarily in restricting the use of air power. (108) The influence of these countries should be kept in mind when considering whether proposed restrictive language placed in Article 52(2) truly reflects prior state practice of customary international law, or rather attempts to restrict more powerful countries' possible uses of air power.

III. ANALYSIS

As noted above, states considered affecting enemy morale to be a legitimate consequence of aerial bombardment. (109) The broad concept of "enemy morale" parallels the concept of the "remarkable trinity of war." The trinity consists of the people, the government, and the military.(110) In order to win a war, all three must be in balance. (111) Similarly, in order to defeat an enemy, one can disrupt the enemy's balance by attacking some or all components of the enemy's trinity. In the context of attacking morale, or will, one could therefore attack the morale of the people, the morale of the leadership, the morale of the military, or any combination thereof. As evidenced by past state practice, all three have been attacked with varying degrees of success. (112) It is only the recent, restrictive interpretations of Article 52(2) that attempt to limit state practice, customary international law, and conventional law-all of which have allowed for targeting objectives with at least the partial purpose of affecting enemy morale. Clearly, the targeting of civilians to affect morale through the intentional killing and injuring of civilians is not allowed, and has been rejected by states both in practice and doctrinally. (113) This Part will explore how affecting the morale and will of the enemy, including its civilians, through other means has not been rejected, and, how, until recently, it has been accepted as a lawful use of air power and how recent restrictive interpretations of Article 5 2(2) attempt to unilaterally change that status, regardless of state practice and customary international law.

A. Article 52(2)

Protocol I, Chapter III is entitled "Civilian Objects." Article 52 is the first article of Chapter III, and is entitled "General protection of civilian objects." Paragraph 2 of Article 52 attempts to do what has not been done successfully in the past--define a military objective. Article 52(2) provides essentially two requirements for an object to qualify as a military objective, or target: (114) (1) the target must make an effective contribution to the enemy's military action; and (2) its destruction must provide a definite military advantage to the attacker.

Unfortunately, this definition increasingly is interpreted in an overly restrictive manner. (115) As will be discussed below, current interpretations and applications of Article 52(2) not only turn a blind eye to the reality of war, but also run counter to customary international law, as evidenced by the practice of states both before and after the signing of the Protocols. (116) Article 52(2)'s definition of military objective should be of particular concern to the United States Air Force because the interpretation of 52(2) can have a significant effect on the unique capabilities of air power that make it such a potent weapon.

B. Current Restrictive Interpretations

Before considering the impact of overly restrictive interpretations of Article 52(2), one must first delineate the substance of such interpretations. It is interesting to note that the majority of those redefining the scope of 52(2) are not state actors or militaries, but, rather, various non-governmental organizations. For example, subsequent to Operation Allied Force in Kosovo, Human Rights Watch (HRW) issued a detailed report in which it questioned several of the targets chosen by NATO during the air campaign. (117) In particular, HRW found fault with targeting several bridges and the Serb radio and television headquarters. (118)

The HRW report argued that these targets did not meet the definition of a "military objective" under Article 52(2). (119) In so doing, HRW applied an overly restrictive interpretation of the Article. For example, HRW questioned the destruction of several bridges they stated were "not major routes of communications." (120) In response, U.S. military sources stated "that bridges were often selected for attack for reasons other than their role in transportation (for example, they were conduits for communications cables, or because they were symbolic and psychologically lucrative)." (121) HRW discounted this argument by flatly stating, "The destruction of bridges that are not central to transportation arteries or have a purely psychological importance does not satisfy the criterion of making an 'effective contribution to military action' or offering a 'definite military advantage,' the baseline tests for legitimate military targets codified in Protocol I, art. 52." (122)

The report also criticizes the targeting of the Serb Radio and Television (RTS) headquarters in Belgrade. (123) HRW questioned the legitimacy of the target, reasoning that the system "was not being used to incite violence (akin to [radio stations] during the Rwandan genocide), which might have justified their destruction. At worst, as far as we know, the Yugoslav government was using them to issue propaganda supportive of its war effort." (124) The report goes on to state:

In this case, target selection was done more for psychological harassment of the civilian population than for direct military effect. . . . As a consequence, Human Rights Watch believes that 'While stopping such propaganda may serve to demoralize the Yugoslav population and undermine the government's political support, neither purpose offers the concrete and direct military advantage necessary to make them a legitimate military target.' (125)

Amnesty International also published a report on Allied Force, critiquing the North Atlantic Treaty Organization's (NATO) compliance with the law of war, particularly Article 52(2). (126) Amnesty International also specifically criticized the attack on the RTS headquarters in Belgrade. (127) The report noted NATO's justification for attacking the station: "[the station] was a propaganda organ and that propaganda is direct support for military action," (128) but stated:

Amnesty International recognizes that disrupting government propaganda may help to undermine the morale of the population and the armed forces, but believes that justifying an attack on a civilian facility on such grounds stretches the meaning of 'effective contribution to military action' and 'definite military advantage' beyond the acceptable bounds of interpretation. Under the requirements of Article 52(2) of Protocol I, the [station] cannot be considered a military objective. As such, the attack on the [station] violated the prohibition to attack civilian objects contained in Article 52(1) and therefore constitutes a war crime. (129)

Both reports concluded that NATO, and the United States in particular, violated the law of war (Article 52(2)), with Amnesty International ultimately accusing the United States of war crimes. (130) Based on these reports, it is not wild speculation to state that as NGOs gain more influence, their restrictive interpretations of Article 52(2) are currently being ado by the international community and potentially have far-reaching effects. (131)

C. The Reality of War

The fundamental problem with Article 52(2)'s definition of military objective is that, similar to previous failed attempts, (132) it tries to constrict the use of air power to the specific tactical military effort at hand. (133) By restricting targets to those that contribute to military action and provide a military advantage, paragraph 2 ignores the reality that a nation's war effort is composed of more than just military components. Furthermore, defeating an enemy often requires the attainment of advantages that are not necessarily considered strictly military. (134) The goal of war is not simply to defeat the enemy's military forces. "We don't go to war merely to have a nice fight; rather, we go to war to attain something of political value to our organization." (135)

War is a means to an end, and as Clausewitz noted, "[t]he political object is the goal, war is the means of reaching it, and means can never be considered in isolation from their purpose." (136) If the ultimate purpose of war is political, then the goal is to use combat power to change the mental state of the opponent--to impose the attacker's will upon the enemy's will. In order to achieve that, "[i]t is a question, first and last, of persuading minds--the minds of the Government and ... of the people of the enemy country." (137) Defeat of the enemy forces is but one way to achieve this end. In fact, "the destruction of the military forces of the enemy is not now and never has been the objective of war; it has been merely a means to an end--merely the removal of an obstacle which lay in the path of overcoming the will to resist." (138) Air power is the most efficient way to reach beyond the enemy forces to strike at the will of the enemy. Article 52(2), however, prohibits attacks that may provide such potent ial or indeterminate advantages, (139) as well as advantages that extend beyond those associated with the enemy's tactical military effort. State practice shows, however, that the attainment of indeterminate, non-military advantages, such as strategic and psychological advantages, can often be effective in contributing to the defeat of the enemy's will. (140)

D. State Practice and Psychological Advantages in War

State practice over time indicates a clear acceptance of the use of force during war to achieve goals concurrent with destruction of military forces or armament. (141) Psychological advantages over the enemy, whether positive or negative, have long been such a parallel goal of states at war. (142) As previously discussed, during WWII, the RAF and Army Air Corps both considered defeating the morale of the enemy population and leadership to be a legitimate goal that provided an advantage to the Allies. (143) The United States Strategic Bombing Survey reported that by the spring of 1945, sixty-four percent of the Japanese population stated they had reached a point where they felt unable to go on with the war. (144) Of those, "less than one-tenth attributed the cause to military defeats . . . the largest part [attributed the cause] to air attack." (145) More recently, Iraqi air attacks on Iran during the Iraq-Iran War "certainly affected civilian morale and almost certainly led the Iranian government to agree to an armistice with Iraq." (146)

State practice shows that attackers often intend air attacks to influence the enemy decision-makers. Air planners in Korea specifically targeted military objectives after dropping leaflets announcing their intentions. (147) The intent was to evidence to the population and the leadership that the United Nations forces controlled the air. (148) Furthermore, as truce talks began to stalemate after July of 1951, "air power became the dominant instrument for exerting leverage on the enemy to end the war." (149) Similarly, in Vietnam, President Nixon ordered massive bombing attacks during Linebacker I and Linebacker II to bring Hanoi to the bargaining table and force North Vietnam "to abandon its stalling tactics and to settle the war on the terms it had already agreed to." (150)

Furthermore, attacks that are directed at the enemy's military forces may have as their primary intent a psychological effect, rather than a destructive effect. In the Gulf War, the Coalition effectively employed the threat of B-52's to convince Iraqi troops to surrender. (151) The Coalition dropped leaflets stating when and where the bombers would attack, and then attacked precisely as advertised. (152) The psychological effect on the Iraqi troops was stunning--most had to experience such an attack only once to be convinced that surrender was the best course of conduct. (153)

Not all air attacks provide an advantage solely by negatively affecting the enemy's morale. Some also are intended to positively affect friendly morale. General Jimmy Doolittle's raids over Tokyo in 1942 arguably provided negligible military value to the American forces. However they clearly boosted the morale of the American population and forces, which had previously suffered a series of defeats. (154) Perhaps just as importantly, the raids had a significant psychological effect on Japanese leadership. (155) Not only did the raids redirect the focus of Japanese war planning, they also impacted greatly on the Japanese Imperial General Staff. (156) For perhaps the first time, the military staff experienced the reality of their inability to completely defend their homeland from air power. (157)

As evidenced above, militaries have not refrained from using air power to achieve goals other than or concurrent with the destruction of enemy militaries. Such attacks have been directed at enemy military forces, enemy civilians, and enemy leadership. Results varied, but each attack provided some measure of psychological advantage to the attacking force.

E. State Practice and Strategic Advantages in War

Air strikes can also provide strategic advantages, which would rarely meet a limited interpretation of Article 52(2). Under a restrictive interpretation of a military objective, the aerial attacks on targets such as bridges and railroads in the Pas de Calais during the spring of 1944 would not have been permitted because they provided little immediate military advantage to the Allies. Rather, their goal was to provide an indeterminate effect in the future--to convince the Germans that the Allied invasion would occur there, thereby diverting the German military effort away from Normandy. (158) The Allied attack on Dresden poses similar problems. On a tactical level, the attack seemed to provide minimal military advantage. However, on the strategic level, the attack potentially offered the advantages of "providing support for the advance of Soviet forces into eastern Germany, destruction of the lines of communication at a critical chokepoint in order to prevent German reinforcement in opposition to the Soviet advance, and possible hastening of the end of the war." (159)

Thus, the practice of states over time has been to use air bombardment to achieve not only immediate tactical military advantages, but also strategic and psychological advantages over their enemies. The overriding goal of such attacks is to undermine not only the enemy's capability to continue the war, but also his will to continue the war. Furthermore, such attacks can also provide pressure upon the enemy to accede to the will of the attacker. Until the drafting of Article 52(2), states understood these uses of air power to be a legitimate use of force. A restrictive interpretation of the Article, however, requires an attacker to "fit" a potential target within a limited definition of an object that contributes to the enemy's military effort or provides a military advantage to the attacker.

While some of the examples discussed above can easily meet this current restrictive definition of a legitimate target; as discussed below, many would argue that not all could. (160) Commanders are increasingly forced into word games or mental gymnastics in order to justify target choices within the restrictive definition of Article 52(2). By doing so, commanders implicitly attribute binding force of law to the restrictive definition of Article 52(2), opening the door to future limitations on the use of air power in the manner discussed above. The better solution is simply to interpret Article 52(2) consistent with past state practice and customary international law, thereby openly allowing for destruction of targets beyond those focused purely on the immediate tactical military aspect of the conflict. (161).

F. Article 52(2) and the United States Air Force

Since the inception of air power, advocates recognized that it provided a new dimension to warfare. The ability to work in the third dimension allows an attacker to fly over the enemy's fielded forces and directly attack his willingness and ability to fight the war. (162) Air power extends the battlefield significantly. Defeating the protective shield of enemy forces is no longer a prerequisite to victory. Douhet first articulated this unique characteristic of air power, (163) and was soon followed by Spaight, (164) Mitchell, (165) Trenchard, (166) and the ACTS war planners. (167) Today's United States Air Force continues to follow doctrine that exploits this unique characteristic of air power.

1. United States Air Force Doctrine

Since the signing of Protocol I, Air Force doctrine continues to reflect the belief that air power is not restricted to striking purely military targets that provide only a military advantage. Air Force doctrine documents clearly reflect a continuing belief that war is still politics by other means. Air Force Doctrine Document 1: Air Force Basic Doctrine sets out several "enduring truths" it uses to describe the "fundamental nature of war:"

War is an instrument of national policy. Victory in war is not measured by casualties inflicted, battles won or lost, or territory occupied, but by whether or not political objectives were achieved. More than any other factor, political objectives (one's own and those of the enemy) shape the scope and intensity of war. Military objectives and operations must support political objectives...

War is a clash of opposing wills.... While physical factors are crucial in war, the national will and the leadership's will are also critical components of war. The will to prosecute or the will to resist can be decisive elements. (168)

AFDD-1 also clearly recognizes that strategic bombardment is a legitimate means by which to affect the enemy's will:

[Strategic] operations are designed to achieve their objectives without first having to necessarily engage the adversary's fielded military forces in extended operations at the operational and tactical levels of war.... Strategic attack objectives often include producing effects to demoralize the enemy's leadership, military forces, and population, thus affecting an adversary's capability to continue the conflict. (169)

Air Force doctrine clearly recognizes and allows for the attainment of advantages beyond simple tactical military advantages on the battlefield. It provides for choosing targets that also affect the enemy's will and morale, both of their military forces and their civilian population. Air Force targeting directives acknowledge the same concepts. The USAF Intelligence Targeting Guide acknowledges the language of Article 52(2), but only as a guide, or a starting point. The Guide states that a target must qualify as a military objective, and defines military objectives as including those objects so defined by Article 52(2). (170) It does not, however, consider the Protocol's definition as exclusive. It focuses instead on the strategic necessity of the target, rather than its military characteristics: "the key factor [in choosing a target] is whether the object contributes to the enemy's war fighting or war sustaining capability." (171) Unlike Article 52(2), this guidance allows for the possibility that a target m ay not provide an immediate military advantage per Se, but may still contribute to the enemy's ability to fight.

2. United States Air Force Practice

As discussed above, U.S. Air Force practice has long been to strike at targets beyond military forces or armament. Some of the examples discussed would meet the current definition of a military objective under Article 52(2). For example, bombing troops in Iraq after first dropping warning leaflets, although meant primarily to have psychological effects, clearly was an attack authorized by Article 52(2). The troops contributed to Iraq's military effort, and their destruction or surrender provided an obvious advantage to the coalition forces.

However, several of the previous examples, if evaluated honestly, would not comply with current limited interpretations of Article 52(2). Yet arguably, all are consistent with prior state practice and customary international law. The allied bombing of bridges and railroads in the Pas de Calais just prior to the invasion at Normandy clearly provided a military advantage to the Allies. The Germans were convinced that the invasion would occur in the Pas de Calais, thereby diverting the Germans from Normandy. (172)

Article 52(2)'s two-part test requires (173) that the target by its nature, location, purpose or use, make an effective contribution to military action. Arguably, the railroads and bridges in France did not, by their current nature, location, purpose or use make such a contribution. Furthermore, the proposed advantage of their destruction-diversion of the Germans-was hopeful speculation on the part of the Allies. Article 52(2), however, requires the military advantage to be definite. This means "it is not legitimate to launch an attack which only offers potential or indeterminate advantages." (174) Such an unreasonable requirement could prevent legitimate ruses.

The Linebacker II campaign during Vietnam undoubtedly was intended to affect the psychology of the enemy: "Unlike Linebacker I, the President aimed the December bombing directly at the North's will. The President desired a maximum psychological impact on the North Vietnamese to demonstrate that he would not stand for an indefinite delay in the negotiations." (175) Despite this stated intent, however, arguably the campaign complied with the requirements of Article 52(2) as the objects struck were traditional military targets, the destruction of which would provide a military advantage to the Americans. (176) An honest evaluation of the campaign, however, indicates that it might not meet the current restrictive interpretation of Article 52(2).

By the time Linebacker II commenced, the Americans had been bombing North Vietnam intermittently for almost five years. (177) While some targets had previously been off-limits, nevertheless, at Linebacker II's inception, previous bombardment had reduced substantially the number of viable targets. (178) Although leaders stated that the objective of the bombings was "the deliberate destruction of military targets in North Vietnam," they also conceded that fewer targets existed after 1968. (179) While certainly some useful targets still existed, based on the assessment of American leaders as to the quantity and quality of targets remaining, it seems difficult to justify the massive amounts of firepower laid down during Linebacker II. (180) It is rather hard to argue that the few remaining targets of Linebacker II were truly contributing the North's military effort, or that their destruction provided any real military advantage to the South. Yet, Linebacker II did accomplish its true intent--to bring North Vietna m quickly back to the bargaining table. Under a broader interpretation of a military objective under Article 52(2), consistent with prior state practice, there would be no question of the legitimacy of Linebacker II. Under current restrictive interpretations, however, the campaign is open to question.

Likewise, the recent conflict in Kosovo readily highlights the application of air power to achieve more than destruction of the enemy's military capability. Clearly, destruction of the Serbian military forces was a goal of the NATO coalition. (181) From inception, however, the primary goal of the campaign was to influence the behavior of Serbia's leader, Slobodan Milosevic, and bend his will to that of the coalition. (182) In pursuit of these goals, the air campaign took a dual approach: "destruction of Serb forces and enabling installations in Kosovo and attack of strategic targets within Serbia itself, which attacks were intended to diminish the will to resist of both Milosevic and the Serb population." (183) Targets included bridges, railroads, airfields, airplanes, petroleum and oil stocks, power, broadcast capabilities, and command and control headquarters, at least two of which were Milosevic's homes. (184) Each target arguably contributed to the Serbs' military effort, and the destruction of each would provide a military advantage to the NATO alliance, thereby falling within the definition of military objective as required by Article 52(2). However, as explained above, several NGO's would not consider all these targets as lawful military objectives.

When analyzing the air campaign in Kosovo, it is interesting that although this was certainly a military effort on the part of NATO, it was not necessarily a conflict in the traditional, military v. military, sense. The Serbs did possess some anti-air weaponry, but after the first several days, the conflict was not between two military forces. Rather, the conflict pitted the military force of NATO against the will and resolve of Milosevic and the Serbian leadership. (185) In fact, arguably it was not until the air campaign shifted focus from striking troops and armament (186) to strategic targets or centers of gravity 187) that the campaign became truly successful. Viewing the conflict from this perspective requires a concomitant change in targeting perspective. Bending the will of Milosevic required more than just destruction of objects that contributed to the military effort, particularly if preservation of those objects was not one of his priorities. For example, some targets were chosen for reasons other than their military value:

There were other types of targets that had a high political symbolism, which went beyond their actual military value--like the television system. We knew that Milosevic used TV as an instrument of command and control. He used it to control the population, to inflame the passions of ethnic cleansing, and so forth. (189)

Furthermore, viewed from the perspective of NATO's quickly gained air supremacy and lack of NATO troops on the ground, destruction of few, if any, targets could provide a true military advantage to NATO under a restrictive interpretation of Article 52(2). Yet the destruction of those targets could, and ultimately did, provide a strategic and psychological advantage to the coalition, contributing to Milosevic's capitulation. (190)

NATO specifically targeted objects intended to affect the morale of the enemy forces and civilian population. (191) While the affect on enemy troop morale arguably is allowed under Article 52(2), current restrictive interpretations of the Article do not allow for targeting enemy civilian morale. (192) If so, then it appears that a majority of the NATO air campaign against Kosovo, while a key component of the overall campaign, was illegitimate under some current interpretations of what constitutes a legitimate military objective. This unusual result is not only inconsistent with prior state practice, but clearly points out the difficulty with interpreting Article 52(2) in a restrictive manner. If the very real possibility exists, as was the case of Kosovo, that "the Serbian population forced Milosevic to call the war off when the life of the Serbian population was made very uncomfortable," (193) then removal of that strategic option for overcoming the will of the enemy may ultimately lead to longer and more de structive wars.

G. Application of Article 52(2)

The stated goal of Article 52(2) was to provide increased protection for the civilian population. (194) Ironically, by drafting provisions that are interpreted contrary to customary international law and state practice, the ICRC may have achieved the opposite effect.

No one would argue that terror bombing or directly targeting civilians to cause death or injury is lawful. However, as has been discussed, affecting enemy morale, including that of civilians, through indirect means has long been considered a legitimate goal. The question is how best to achieve that goal. In the past, effectiveness of attempts to use air power to affect enemy morale was mixed, due in part to limited technological capability to strike with precision. Ironically, just as air power began to attain the technological capability to strike targets with precision, Protocol I reduced its options to do so. As a result, air planners are placed in an unusual situation. In order to affect what has customarily been considered a legitimate target, the will of the enemy (to include civilian morale), the Air Force must first find a target that can be defined as a legitimate military objective under a restrictive interpretation of Article 52(2). Often this can cause more damage to the civilian population than i s intended or desired.

This trend can be seen most vividly in the destruction of dual-use targets. Dual-use targets are most commonly defined as those targets that are used for both military and civilian purposes, such as power plants that provide electricity to both civilian institutions as well as military command and control centers. (195) Theoretically, destroying or disabling such targets gives the attacker a dual effect--he cripples the ability of the enemy forces to function, while simultaneously affecting the morale of the civilian population.

Two problems arise, however, when targeting dual-use targets. First, the desired effect may be relatively short-term, but may cause more long-term damage than desired. For example, the morale of the Iraqi citizens was clearly a target during the Gulf War. (196) In order to achieve that objective, Coalition forces struck dual-use targets such as power supplies, railroads, and bridges. (197) The strikes had the desired temporary effects, but also imposed more serious long-term effects on the civilian population. (198) Similarly, in Kosovo, one of NATO's goals was to influence the Serbian population to pressure their leadership to end the conflict. (199) Again, as in the case of the Gulf War, the means chosen ultimately may have caused more negative long-term effects than desired. (200)

The question becomes whether the pressure to justify a target as dual-use, thereby conforming to the requirements of Article 52(2), causes the rejection of targets better tailored to achieve the desired objective. For example, in Kosovo, NATO employed a weapon designed to knock out Serbian power grids and transformer yards. (201) NATO aircraft dropped small dispensers that opened over the power sources, setting free specially treated wire that intertwined and caused instant short circuits in the electrical system.(202) The weapon cut off power to 70 percent of Yugoslavia, yet the effect was only temporary, with most power returning within a day. (203) Although temporary, the attack effectively brought the war home to the Serbian population--without massive, long-term destruction. Such a short duration of disablement, however, was unlikely to severely affect the Serbian military effort. Arguably, a restrictive interpretation of Article 52(2) would not consider the first strikes to be against legitimate militar y objectives, as it is unlikely that disruption of electricity for such a short period of time truly provided a military advantage to NATO. (204) These strikes would therefore be illegal.

Soon thereafter, NATO struck power sources with more force, disabling them for much longer periods of time. (205) Because these strikes offered a definite military advantage to an object that made a contribution to military action, these strikes would comply with Article 52(2). However, in the long run, the first strikes, rather than the more destructive later strikes that complied more fully with Article 52(2), were perhaps not only the more effective strikes in terms of ending the conflict, but also the more humane strikes.

The second problem with dual-use targeting is that the sole goal of the attacker may be only to affect the will of the enemy leadership and population. There may not be any military advantage to striking the target--at least as military advantage is defined by Article 52(2). Yet, from the beginning one of the goals in Kosovo was to bend Milosevic to the will of the NATO coalition. As Lt. Gen. Short stated, "I'd have gone for the head of the snake on the first night. I'd have turned the lights out the first night.... Milosevic and his cronies would have waked up the first morning asking what the hell was going on." (206)

If in fact the goal is not necessarily to destroy an enemy's war-fighting capability, but rather to modify' their willingness to use that capability. It seems that it would be more efficient to allow destruction of the targets that would best achieve those objectives. More importantly, it may also be more humane. (207) However, such targets may not always fit into the current restrictive interpretation of Article 52(2). As a result, attackers may feel pressure to chose a target that results in more destruction, but can more readily be justified under a restrictive interpretation.

As a corollary to broadening the interpretation of Article 52(2) to allow for a military advantage to include affecting the will of the enemy, consideration should also be given to allowing a more expansive interpretation of objects that contribute to military action. (208) Perhaps the targets best suited to achieving that goal are those expressly prohibited by Article 52--civilian objects, specifically, those objects that will affect the citizens'. (209)

Extending the chain of causation by this step is not as extreme as it initially sounds. If the destruction of certain civilian property contributes to the demoralization of the population, thereby leading to pressure to end the conflict, this result is more humane than protecting these items at the price of prolonging a bloody conflict. (210) This does not mean allowing for the attack of life-sustaining necessities. (211) Rather it foresees attacks on property that enjoys no special protection under current international law, other than the fact that it is categorized as exclusively civilian property. (212) Furthermore, any such attack would still have to comply with the prohibition against targeting civilian lives as well as military necessity.

The concept of destroying property, rather than life, is not new. J.M. Spaight stated in 1947:

[airpower's] purpose is the destroying of your enemy's morale and will to resist. That purpose can be achieved by other means than mass-slaughter. It can be achieved by methods which international law can approve, as it never will approve the destruction of innocent lives for such an end. Let your object be to destroy the enemy's inanimate rather than his human resources, his wealth and business rather than his citizens' lives; to make work, if one may put it so, for the builder, the unemployment exchange, the bankruptcy court, rather than for the coroner and the undertaker ... In brief, I will give [airpower] property to destroy if [airpower] will give me life to save. (213)

The goal in destroying such property is to influence the population to bring the war to a quicker, less bloody end. According to General William T. Sherman, in response to criticism of his treatment of the Southern population in the Civil War, if the population protests, "I will answer that war is war, and not popularity seeking. If they want peace, they and their relatives must stop the war." (214) It seems equally logical that air power could have been used to pressure the silent "Serbian intelligentsia" to influence the Serbian leadership. (215) Perhaps the most humane way of achieving that goal would be to target objects not indispensable to survival, but objects the destruction of which would have a direct impact on the population. Such targets might include bank accounts, financial institutions, shops, entertainment sites, and government buildings. (216) Destruction of these targets would likely have a significant impact on the population's morale, but would not cause the type of long-term suffering and casualties potentially caused by destruction of dual-use targets. Under Article 52(2), however, such attacks are prohibited, leaving only those that provide a direct military advantage, such as dual-use targets, to be destroyed. Ultimately restricting the targeting of bank accounts, financial institutions, shops, entertainment sites, and government buildings and similar objects may prove more destructive in the long run.

The difficulty with such an approach is, and always has been, the determination of which targets to strike in order to achieve the goal of affecting the will of the enemy--both leadership and population. Simply because this is difficult, however, does not mean that it should be abandoned or ignored. The future of air power appears to be application in precise, discrete measures in order to aid in the attainment of political goals. Rarely, if ever, will it be applied as it was during World War II, with the stated goal of unconditional surrender of the enemy. If so, military leadership must attain a better understanding of the centers of gravity of its potential enemies--and not simply the military-oriented centers. According to one analyst, "the central problem is this: If we are going to make it with this kind of precision airpower in very low volume, akin to acupuncture, we really have to know where to put the needle. To make the other guy back down, you must understand his politics, his soul." (217) Once th is capability is attained, Article 52(2) should not be restrictively interpreted to prohibit the ability to exploit the unique capabilities of air power to assist in the quick and humane termination of conflict.

IV. CONCLUSION

Although attempts to regulate war have occurred for almost as long as war has existed, the fundamental nature of war has not changed. War is a means states use to achieve a political aim. The ultimate goal of a nation at war is to impose its will on the enemy. The advent of air power provides the most powerful means to achieve this goal because it operates in the third dimension to bypass the fielded forces and directly attack the enemy's capability and will to fight. (218) Restrictive interpretations of Article 52(2), however, limit this capability unnecessarily.

Article 52(2) defines legitimate targets as objects that contribute to military action, or whose destruction provides a military advantage to the attacker. (219) Interpreting Article 52(2) restrictively by focusing solely on the military effort of the enemy, however, is shortsighted and inconsistent with prior state practice. The type of conflicts prevalent in the world today center more than ever on the application of force to bend the will of the enemy. Moreover, destruction of military-oriented targets is not always the most efficient or humane way in which to achieve that goal.

The U.S. Air Force in particular has developed precise., long-range capabilities to strike targets that can affect the will of the enemy--both military and civilian. As such, U.S. military leadership must resist the pressure to accept restrictive interpretations of Article 52(2). To do so ultimately may cause more destruction and devastation as planners search for targets that will not only achieve their specific goals, but can also be justified under a restrictive interpretation of a legitimate military objective. Rather, the United States should openly assert that it continues to consider bending the will of the enemy to be a legitimate goal when applying the force of air power. Furthermore, during times of armed conflict, the United States should continue to strike targets to achieve that goal, consistent with the basic principles of the law of war. Such actions do not repudiate the value or legitimacy of Article 52(2), but instead exercise a valid interpretation of its language consistent with prior custo mary international law and state practice.

(1.) CARL VON CLAUSEWITZ, ON WAR 87 (Michael Howard & Peter Paret eds. and trans., 1976).

(2.) Lieutenant General Harold L. George, Chief, Bombardment Section, Air Corps Tactical School, Lecture to ACTS students, 1932, quoted in HAYWOOD S. HANSELL, JR., THE AIR PLAN THAT DEFEATED HITLER 33 (1972).

(3.) These attempts generally fall into two categories: jus ad bellum and jus in bello. The former attempts to regulate when force may be used, while the latter regulates the means and methods of force nations may resort to once engaged in conflict. William J. Schmidt, The Protection of Victims of International Armed Conflicts: Protocol I Additional to the Geneva Conventions, 24 A.F. L. REV. 189, 191-92 (1984). Although the development of jus ad bellum has a rich history, in theory, the concept is inapplicable today, as the United Nations' Charter effectively outlaws the use of force except in cases of collective security or self-defense. U.N. CHARTER art. 2, para 4, art. 39, and art. 51. The primary focus over the past century has been on jus in bello, the regulation of the means by which nations fight. Within the principle of jus in bello, the development of the law fell into two categories. The first category, governed by the Geneva Conventions, regulates treatment of those individuals out of combat. See C onvention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, reprinted in DIETRICH SCHINDLER & JIRI TOMAN, THE LAWS OF ARMED CONFLICTS 373 (3d ed. 1988); Convention (II) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, opened for signature Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, reprinted in SCHINDLER & TOMAN, supra, at 401; Convention (Ill) Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, reprinted in SCHINDLER & TOMAN, supra, at 423; and Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S 287, reprinted in SCHINDLER & TOMAN, supra, at 495. The second category, governed by the law of The Hague, regulates the way in which war is fought. See Convention (II) with Respect to the Laws and Cu stoms of War on Land, opened for signature July 29, 1899, 32 Stat. 1803, reprinted in SCHINDLER & TOMAN, supra, at 63; Convention (IV) Respecting the Laws and Customs of War on Land, opened for signature Oct., 18, 1907, 36 Stat. 2277, reprinted in SCHINDLER & TOMAN, supra, at 63.

(4.) Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature Dec. 12, 1977, 1125 U.N.T.S. 48 [hereinafter Protocol II]. The U.S. has not ratified Protocol I, however it does consider most provisions reflective of customary international law and has not specifically objected to the language in Article 52. Michael J. Matheson, Session I; The United States' Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. Int'l L. & Pol'y 419, 420 (1987).

(5.) Protocol I, supra note 4, art. 48, 51. In its 1996 Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons, the International Court of Justice referred to the principles of distinction and unnecessary suffering as the two "cardinal principles" of international humanitarian law. 1996 I.C.J. 226, 257 (July 8).

(6.) See infra text accompanying note 8.

(7.) See infra Part III.B.

(8.) Protocol I, supra note 4, art. 52, para. 2.

(9.) Previous treaties or attempts to codify the law of war axe important, as "treaties must often be interpreted in light of the rules of customary international law or of the nonconsensual sources. Like statutes in common law context, treaties often presume and rely upon a preexisting set of legal rules." MALCOLM N. SHAW, INTERNATIONAL LAW 11 (4th ed. 1977). See also Vienna Convention on the Law of Treaties, May 23, 1969, art. 31, 2 I.L.M. 679.

(10.) For a very thorough history of this area, see W. Hays Parks, Air War and the Law of War, 32 A.F.L. REV. 1, (1990).

(11.) ARTHUR HARRIS, BOMBER OFFENSIVE 177 (1947).

(12.) Parks supra note 10, at 4.

(13.) Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 YALE H.R. & DEV. L.J. 143, 148-49 (1999).

(14.) JAMES TURNER JOHNSON, CAN MODERN WAR BE JUST? 27 (1984). A judge advocate in the Spanish Army of the Netherlands, Balthazar de Ayala, noted in 1582 that the "intentional killing of innocent persons, for example, women and children, is not allowable in war." 2 AYALA, DE JURE ET OFFICIO ET DISCIPLINA MILITARI 33, 44 (Classics of International Law, ed. 1912) quoted in Burrus M. Carnahan, The Law of Air Bombardment in its Historical Context, 17 A.F. L. REV. 39, 40 (1975).

(15.) Parks, supra note 10, at 4. This was best evidenced in the methods of siege warfare. One of the primary principles of siege warfare was that the defender of the city under siege bore the burden of protecting his citizens from incidental harm. Any harm occurring as a result of the siege--starvation, bombardment, sacking--was considered incidental and allowable. See also Matthew C. Waxman, Siegecraft and Surrender: The Law and Strategy of Cities as Targets, 39 VA. J. INT'L L. 353 (1999).

(16.) Spanish theologian Francisco De Vitoria went so far as to state that "[i]t is occasionally lawful to kill the innocent not by mistake, but with full knowledge of what one is doing, if this is an accidental effect: for example, during the justified storming of a fortress or city, where one knows there are many innocent people." FRANCISCO DE VITORIA, POLITICAL WRITINGS 315 (Anthony Pagden & Jeremy Lawrence eds., 1991).

(17.) Horace B. Robertson, Jr., The Principle of the Military Objective in the Law of Armed Conflict, in 72 THE LAW OF MILITARY OPERATIONS 196, 196 (Michael N. Schmitt ed., 1998).

(18.) See discussion Part III.C.

(19.) Id.

(20.) The concept of military necessity is reflected in Article 52(2)'s requirement that destruction of the target provide a "military advantage" to the attacker. See Protocol I, supra note 4, art. 52, para. 2.

(21.) 11 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS 1253-54 (1950).

(22.) Introductory Note to Francis Lieber, Instructions for the Government of Armies of the United States in the Field, originally published as U.S. War Department, Adjutant General's Office, General Orders No., 100 art. 22 (Apr. 24, 1863) [hereinafter The Lieber Code], reprinted in SCHINDLER & TOMAN, supra note 3, at 3.

(23.) Id.

(24.) Id.

(25.) Id. art. 14, 15 (emphasis added).

(26.) Id. art. 22.

(27.) Id. at 6-7 (quoting The Lieber Code, supra note 22, art. 20, 21).

(28.) Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Dec. 11, 1868, 138 Consol. T.S. 297 (1868-69), reprinted in SCHINDLER & TOMAN, supra note 3, at 102.

(29.) Id.

(30.) INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE CONFERENCES AND THEIR OFFICIAL REPORTS 1-2 (James Scott Brown ed., 1916).

(31.) THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907, vi (James Scott Brown ed., 1918).

(32.) Id. at 220-22.

(33.) LEE KENNETT, THE FIRST AIR WAR 1914-1918, 2(1991).

(34.) One Polish scholar warned in 1898 that "[i]t appears that we are very close to finding ourselves face to face with a danger before which the world cannot remain indifferent." Id. at 1 (quoting I JEAN DE BLOCH, LA GUERRE, 203 (1898)).

(35.) KENNETT, supra note 33, at 1-2.

(36.) Id.

(37.) Declaration (IV, 1) to Prohibit for the Term of Five Years the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature, July 29, 1899, 32 Stat. 1839, reprinted in SCHINDLER & TOMAN, supra note 3, at 202-03. An Army artillery officer, Captain William Crozier, proposed the limited ban, arguing:

We are without experience in the use of arms whose employment we propose to prohibit forever. Granting that practical means of using balloons can be invented, who can say that such an invention will not be of a kind to make its use possible at a critical point on the field of battle, at a critical moment of the conflict, under conditions so defined and concentrated that it would decide the victory and thus partake of the quality possessed by all perfected arms of localizing at important points the destruction of life and property and of sparing the sufferings of all who are not at the precise spot where the result is decided. Such use tends to diminish the evils of war and to support the humanitarian considerations which we have in view.

THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES, THE CONFERENCE OF 1899, 354 (James Brown Scott ed., 1920). Crozier's argument appealed to the delegates' eternal hope that a weapon could be found that would make war less bloody and indiscriminate through efficiency. KENNETT, supra note 33, at 2.

(38.) The five-year prohibition agreed upon at the conference lapsed in 1904, but the anticipated follow-on conference did not take place as scheduled due to, among other things, the Russo-Japanese War. KENNETT, supra note 33, at 5.

(39.) Ultimately, the prohibition was renewed, but instead of setting a specific timeframe, the prohibition was to be in effect until the Third Hague Peace Conference, anticipated in 1916. Paul A. Goda, The Protection of Civilians from Bombardment by Aircraft: The Ineffectiveness of the International Law of War, 33 MIL. L. REV. 93, 94 (1966). In reality, the prohibition had little significance, as only the United States and Great Britain committed themselves to the treaty. As the treaty only bound parties at war with each other, it had no effect in either World War I or World War II. Parks, supra note 10, at 17.

(40.) Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, reprinted in SCHINDLER & TOMAN, supra note 3, at 83-84 (emphasis added).

(41.)(Convention (IX) Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 Stat. 2351, reprinted in SCHINDLER & TOMAN, supra note 3, at 812.

(42.) Id.

(43.) Id.

(44.) "Parks, supra note 10, at 18.

(45.) Hague Rules of Air Warfare, drafted Dec. 1922-Feb. 1923 [hereinafter Hague Rules], reprinted in SCHINDLER & TOMAN, supra note 3, at 207.

(46.) Parks, supra note 10, at 31. For example, Article 24(3) prohibited bombing an objective listed in Article 24(2) if "they cannot be bombarded without the indiscriminate bombardment of the civilian population." SCHINDLER & TOMAN, supra note 3, at 210 (quoting the Hague Rules, supra note 45, art. 24, para. 3). This proposal directly contradicted at least two customary international law principles. First, it shifted the burden of avoiding an undefined "indiscriminate" attack to the attacker, whereas previously collateral damage was simply considered an allowable consequence if the damage was unintentional and indirect. Second, Article 24(3) shifted the criteria for determination of the legitimacy of an attack from the intent of the attacker to the results of an attack. Both concepts were unacceptable to the nations in attendance. Parks, supra note 10, at 33.

(47.) Article 24(2) provided an exclusive list of military objectives: "military forces; military works; military establishments or depots; factories constituting important and well-known centers engaged in the manufacture of arms, ammunition or distinctively military supplies; lines of communication or transportation used for military purposes." SCHINDLER & TOMAN, supra note 3, at 210 (quoting the Hague Rules, supra note 45, art. 24, para. 2). The term "military objective" itself was left undefined. By providing an exclusive list, however, Article 24(2) contradicted customary international law and current military thinking. As noted by James Spaight, a member of the British delegation to the conference, the restrictive list clearly did not reflect the practice of states during World War I. During the war, states targeted not only those items listed, but also docks, warehouses, blast furnaces, power stations, granaries, oil wells, and more. J.M. SPAIGHT, AIR POWER AND WAR RIGHTS 228 (3d ed. 1947). Furthermore , the exclusive list did not allow for the "dynamic nature of targeting, as the value of a potential military objective may vary depending upon the circumstances ruling at the time." Parks, supra note 10, at 33.

(48.) Parks, supra note 10, at 33, 35.

(49.) There was one final non-binding attempt to limit air warfare just prior to the outbreak of World War II British Prime Minister Neville Chamberlain proposed three basic rules for bombing during a debate in the House of Commons on June 21, 1938. Chamberlain stated:

I think we may say that there are, at any rate, three rules of international law or three principles of international law which are as applicable to warfare from the air as they are to war at sea or on land. In the first place, it is against international law to bomb civilians as such and to make deliberate attacks upon civilian populations. That is undoubtedly a violation of international law. In the second place, targets which are aimed at from the air must be legitimate military objectives and must be capable of identification. In the third place, reasonable care must be taken in attacking these military objectives so that by carelessness a civilian population in the neighborhood is not bombed.

382 PARL. DEB., H.C. 1360 (1938), quoted in SPAIGHT, supra note 47, at 257. On the first day of WWII, President Franklin Roosevelt made a similar appeal, asking

every government which may be engaged in hostilities publicly to affirm its determination that its armed forces shall in no event, and under no circumstances, undertake the bombardment from the air of civilian populations or of unfortified cities, upon the understanding that these same rules of warfare will be scrupulously observed by all their opponents.

Letter of Franklin D. Roosevelt to the governments of Nazi Germany, Italy, France, Britain, and Poland (Sept. 1, 1939), in THE IMPACT OF AIRPOWER: NATIONAL SECURITY AND WORLD POLITICS 68 (Eugene M. Emme ed., 1959). Neither statement, however, was binding on any country, and in fact, simply reflected a universal acceptance of the principle of distinction. The general response of the warring nations was to promise to limit bombardment to "strictly military objectives." SPAIGHT, supra note 47, at 260. The end result, then, was little, if any effect, on actual practice during World War II. Parks, supra note 10, at 36-37.

(50.) Customary international law is created upon the concurrence of two events: (1) a general and consistent practice of states; and (2) a sense of obligation on the part of the states to follow that practice. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section]102(2) (1987).

(51.) JASON B. BARLOW, STRATEGIC PARALYSIS: AN AIRPOWER THEORY FOR THE PRESENT 25 (1994); see also Phillip S. Meilinger, Air Strategy: Targeting for Effect, XIII AEROSPACE POWER J. 48, 56 (Winter 1999) ("One must realize, however, that the choice of strategy will have a significant effect on the targets selected for air attack.... Our policy goals and the nature of the war will determine the most effective air strategy to employ.").

(52.) See KENNETT, supra note 33, at 1-22.

(53.) See Id.

(54.) For a discussion of how various countries incorporated air power into their military prior to WWI, see id.

(55.) Richard J. Overy, Strategic Bombardment Before 1939: Doctrine, Planning, and Operations, in CASE STUDIES IN STRATEGIC BOMBARDMENT 11, 13 (R. Cargill Hall ed., 1998).

(56.) Id. at 13-14.

(57.) Id. at 15.

(58.) SPAIGHT, supra note 47, at 228-29. For a full discussion of the air warfare practice of states during WWI, see id. at 220-43; see generally KENNETT, supra note 33.

(59.) Targets included iron, steel, chemical, and engine factories, docks, oil refineries and storage areas, power, water and gas stations, and granaries. SPAIGHT, supra note 47, at 228; Overy, supra note 55, at 19.

(60.) SPAIGHT, supra note 47, at 228.

(61.) Id. at 233-36.

(62.) Attacks were not limited to bombardment of enemy forces, but also included German attacks on the Channel ports and French attacks on the Badische Analin und Soda Fabrik, rumored to be the production source for German chlorine gas, as well as German dirigible hangers. Both sides also made attempts to attack the others' leadership, as the Allies attempted to attack Kaiser Wilhelm, the German Crown Prince, and Prince Rupprecht of Bavaria, while the Germans tried more than once to catch Tsar Nicholas with their bombers. KENNETT, supra note 33, at 49-50.

(63.) See supra text accompanying notes 12-16.

(64.) KENNETT, supra note 33, at 44-5. Kennett notes that prior to World War I, military strategists discussed the morale of the population to be a specific objective for strategic bombers. Id. For example, a French airman stated that while an air attack on Paris might do little in the way of material damage, it would have an immense psychological impact on Parisians; while an American aviator noted that a minor air attack against New York would be devastating to the population. Id. Such a result was considered desirable, as although it would kill and injure civilians, in the long run it would shorten the war as the same civilians would quickly sue for peace. Id. See also Overy, supra note 55, at 14.

(65.) Parks notes that not only was collateral damage accepted as an inevitable result of bombardment, but also "an equally long-standing principle was that collateral damage, as a result either of general bombardment or inaccurate bombardment, [was] a way in which the morale of an enemy nation could be affected, legally." Parks, supra note 10, at 51.

(66.) In the summer of 1917, the Germans launched a bombing campaign against England "partly in hopes that it would create a morale crisis and weaken England's willingness to prolong the conflict." Overy, supra note 55, at 17. The targets were military and military industries, but in addition to destruction of the targets, the Germans hoped to collapse British morale. The British responded with a plan to attack military targets and "densely populated industrial centers" in order to destroy the morale of the Germans. Id. at 20-21.

(67.) M.W. ROYSE, LA PROTECTION DES POPULATIONS CIVILES CONTRE LES BOMBARDMENTS 73-74 (1930), quoted in Parks, supra note 10, at 41.

(68.) Overy, supra note 55, at 12. See also JOHNSON, supra note 14, at 129-30. Johnson notes that "beginning with the French Revolution the entire nation was cast as simultaneously the cause for which to fight, the source of volunteer or conscript manpower, and the base of support for the military effort." Id.

(69.) JOHNSON, supra note 14, at 130.

(70.) See, e.g., ROBERT FRANK FUTRELL, IDEAS, CONCEPTS, DOCTRINE: BASIC THINKING IN THE UNITED STATES AIR FORCE 1907-1960 75-76 (1989); John F. Shiner, From Air Service to Air Corps: The Era of Billy Mitchell, in WINGED SHIELD, WINGED SWORD: A HISTORY OF THE USAF 71, 75 (1997).

(71.) Oji Umozurike, Protection of the Victims of Armed Conflicts: Civilian Population, in INTERNATIONAL DIMENSIONS OF HUMANITARIAN LAW 187, 187 (United Nations Educational, Scientific and Cultural Organization ed., 1988).

(72.) See discussion infra Part II.B.3.

(73.) Id.

(74.) Overy, supra note 55, at 26.

(75.) FUTRELL, supra note 70, at 78-82.

(76.) Id. at 11.

(77.) The Italian air power theorist, Giulio Douhet, proposed the most extreme view. Douhet argued that the quickest way to end a total war was to attack the population directly. He believed that "war is won by crushing the resistance of the enemy; and this can be done more easily, faster, and more economically, and with less bloodshed by directly attacking that resistance at its weakest point." GIULIO DOUHET, THE COMMAND OF THE AIR 196 (Dino Ferrari trans., 1942). In Douhet's view, the population was the weakest point. Id. Thus he advocated destroying morale by directly destroying the population.

(78.) Overy, supra note 55, at 26.

(79.) IV C. WEBSTER & N. FRANKLAND, THE STRATEGIC AIR OFFENSIVE AGAINST GERMANY 1939-45, 74 (1961). During this time, only two air forces, the Royal Air Force and the Army Air Corps, made systematic operational plans for strategic air offensives. Others concentrated on tactical air power or delayed planning. Overy, supra note 55, at 65. As the RAF and the Army Air Corps were the primary strategic planners before the war, it seems particularly important to consider their understanding of what constituted a legitimate military objective.

(80.) SPAIGHT, supra note 47, at 259.

(81.) Bernard C. Nalty, The Army Air Forces in Desperate Battle, 1941-1942, in WINGED SHIELD, WINGED SWORD: A HISTORY OF THE USAF 201, 222-24 (1997).

(82.) Stephen L. McFarland & Wesley Phillips Newton, The American Strategic Air Offensive Against Germany in World War II, in CASE STUDIES IN STRATEGIC BOMBARDMENT 183, 184 (R. Cargill Hall ed., 1998).

(83.) Id. at 224-26.

(84.) W.A. Jacobs, The British Strategic Air Offensive Against Germany in World War II, in CASE STUDIES IN STRATEGIC BOMBARDMENT 91, 118 (R. Cargill Hall ed., 1998)

While mass bombing attacks on civilian morale were much discussed after World War I within and beyond the RAE, none of the [war plans] drafted before World War II singled out morale as a target. Moreover, none of the first three Air Ministry directives issued to Bomber Command in early 1940 even mentioned the civilian population or morale in any way.

Id. It was not until after the Luftwaffe bombing raids on London began in the fall of 1940 that Air Ministry directives addressed morale. At that time, the directives paired "traditional selective economic targets with a secondary emphasis on civilian morale." Id. at 119.

(85.) For a full discussion of the development of AWPD-l, see HANSELL, supra note 2, at 33.

(86.) AWPD-1 was written by a small number of influential airmen, all of whom had ties to the Army's Air Corps Tactical School (ACTS). The ACTS was the focal point for development of strategic doctrine prior to World War II. Therefore, not surprisingly, AWPD-1 reflected the ACTS view advocating direct attacks on the enemy's economic structure for the dual purposes of reducing the capability and willingness of the enemy to continue the war. BARLOW, supra note 51, at 47; see also Peter R. Faber, Interwar US Army Aviation and the Air Corps Tactical School: Incubators of American Airpower. in THE PATHS OF HEAVEN: THE EVOLUTION OF AIRPOWER THEORY 183, 211-21 (1997).

(87.) Under the sub-heading of "Possible Lines of Action," AWPD-1 included "undermining of German morale by air attack" as a potential line of action for an air offensive. HANSELL, supra note 2, at 299 (extract of AWPD-1).

(88.) Overy, supra note 55, at 71.

(89.) EDWARD C. HOLLAND, III, FIGHTING WITH A CONSCIENCE: THE EFFECTS OF AN AMERICAN SENSE OF MORALITY ON THE EVOLUTION OF STRATEGIC BOMBING CAMPAIGNS 16 (1992).

(90.) RICHARD D. DAVIS, CARL A. SPAATZ AND THE AIR WAR IN EUROPE 155 (1993).

(91.) Id. at 589.

(92.) WEBSTER & FRANKLAND, supra note 79, at app. 8, Pt. 28.

(93.) This division of work reflected not only the differing technological capabilities between the Allies, but also their interpretation of the Directive. The RAF focused on the portion concerning morale. They did not, however, interpret this to allow random killing of large numbers of people. However, "it did entail depriving them of their homes, heat, light, water, urban transportation, and perhaps food. Homeless and hungry workers, they reasoned, do not produce munitions and, like soldiers who are wounded, are a greater impediment to the state at war than dead ones." HANSELL, supra note 2, at 169. The American forces, however, concentrated on the portion regarding destruction of the industrial and economic system as the key to a "fatal weakening." However, "the differences between British and American airmen were not as deep as might appear on the surface.... The debate was over method, and was related more to operational equipment and capability and survivability than to the need for 'fatal weakening' pe r se." Id. at 169-70.

(94.) Parks, supra note 10, at 52.

(95.) See infra Part II.B.3. But see Judith Gail Gardam, Proportionality and Force in International Law, 87 AM. J. INT'L L. 391, 401 (1993) (States agreeing at a minimum, "that the deliberate targeting of the civilian population for the purpose of terrorization was unlawful.").

(96.) See generally STEPHEN T. HOSMER, PSYCHOLOGICAL EFFECTS OF U.S. AIR OPERATIONS IN FOUR WARS 1941-1991: LESSONS FOR U.S. COMMANDERS (1996) (discussing the psychological effects of bombardment on both enemy civilians and enemy combatants); THE UNITED STATES STRATEGIC BOMBING SURVEYS (EUROPEAN WAR, PACIFIC WAR) (reprint 1987) [hereinafter USSBS] (reprint of the summary reports of the strategic bombing surveys conducted at the close of World War II); Martin L. Fracker, Psychological Effects of Aerial Bombardment, VI AIRPOWER J. 56 (Fall 1992) (arguing that the effects of aerial bombardment on civilian morale primarily depend on the expectation of the population).

(97.) Gardam, supra note 95, at 400. While Gardam's statement is accurate in that it reflects a "new" means by which militaries can inflict massive damage on civilians, by no means is airpower the only, or even predominant, means by which civilians have been killed. During World War II, only 1.5 to 2 million of the approximately 40 million civilian deaths were attributable to strategic bombardment. WILLIAMSON MURRAY & ALLAN R. MILLETT, A WAR TO BE WON: FIGHTING THE SECOND WORLD WAR 554-55 (2000). Further, the horrific casualties in some of the most recent conflicts, Rwanda, Sierra Leone, Angola, East Timor, and Kosovo, resulted almost exclusively from conflict on the ground. See GERARD PRUNIER, THE RWANDA CRISIS: HISTORY OF A GENOCIDE 255-57, 261-65 (1995) (estimating approximately 800,000 killed, the majority by the use of guns or machetes); Human Rights Watch, Government Human Rights Commissions in Africa: Sierra Leone, at http://hrw.org/reports/2001/africa/sierraleone/sierraleone.html (last visited Nov. 5, 2001) (noting that the rebels accounted for vast numbers of civilian murders, rapes, executions, and limb amputations); Amnesty International, 1999 Annual Report on the Republic of Sierra Leone, at http://www.amnesty.org/ailib/aireport/ar99/afr51.htm (last visited Nov. 5, 2001) (cataloging the thousands of civilians killed or abused by rebel forces); Amnesty International, 1999 Annual Report on the Republic of Angola, at http://www.amnesty.org/ailib/aireport/ar99/afr12.htm (last visited Nov. 5, 2001) (noting the deaths and disappearances of hundreds of civilians at the hands of both government and rebel forces); Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 AM. J. INT'L L. 46, 46 nn. 1-2, 50 (2001) (discussing the massive ethnic cleansing conducted against civilians by local armed forces in both Kosovo and East Timor).

(98.) See, e.g., Geneva Conventions, supra note 3.

(99.) Parks, supra note 10, at 64.

(100.) See Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, ICRC (1956), reprinted in SCHINDLER & TOMAN, supra note 3, at 251; Protection of Civilian Populations Against the Dangers of Indiscriminate Warfare, ICRC Res. XXVIII (1965), reprinted in SCHINDLER & TOMAN, supra note 3, at 259; Human Rights in Armed Conflict, Int'l Conf. on Human Rights Res. XXIII (May 12, 1968), reprinted in SCHINDLER & TOMAN, supra note 3, at 261; Respect for Human Rights in Armed Conflicts, G.A. Res. 2444, U.N. GAOR, 23rd Sess., Supp. No. 18, at 50-51, U.N. Doc. A/7218 (1969), reprinted in SCHINDLER & TOMAN, supra note 3, at 263; The Distinction Between Military Objectives and Non-Military Objects in General and Particularly the Problems Associated with Weapons of Mass Destruction, Inst. of Int'l Law Res. (Sept. 9, 1969), reprinted in SCHINDLER & TOMAN, supra note 3, at 265; Basic Principles for the Protection of Civilian Populations in Armed Conflicts, G.A. Res. 2675, U.N. GAOR, 25 th Sess., Supp. No. 28, at 76, U.N. Doc. A/8028 (1971), reprinted in SCHINDLER & TOMAN, supra note 3, at 267.

(101.) Parks, supra note 10, at 66.

(102.) Letter from General Counsel, Department of Defense, to Senator Edward M. Kennedy (Sept. 22, 1972) in Arthur W. Rovine, Contemporary Practice of the United States Relating to International Law, 67 AM. J. INT'L. L. 122, 123 (1973).

(103.) INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 xxxii-xxxiii (Yves Sandoz et al. eds., 1987) [hereinafter ICRC COMMENTARY].

(104.) Protocol I, supra note 4, Protocol II, supra note 4.

(105.) See generally ICRC COMMENTARY, supra note 103; W. Hays Parks, The 1977 Protocols to the Geneva Conventions of 1949, NAVAL WAR C. REV. 17-27 (Fall 1978).

(106.) Parks, supra note 10, at 76. With regard to the employment of air power, "there was no delegate at the diplomatic Conference who had dropped a bomb in anger in the quarter century preceding the conference," to include the United States delegation. Id. at 78, n.261. Considering the quantum leaps in air power technology and doctrine since the end of World War II, it seems particularly negligent to attempt to regulate the use of air power without the input of those familiar with its use and capabilities. In theory, this deficiency could have been addressed by ensuring that draft proposals received military review and input before acceptance. In reality, however, this was not the case. It was not until 1981, four years after the United States signed the protocols, that a full military review of the provisions took place. Id. at 91. As Parks notes, although the United States delegation often assumed their interpretation of the effect of various provisions was correct, in fact, "the U.S. delegation made nume rous decisions regarding provisions in Protocol I and Protocol II without an appreciation of their potential implications, and without consultation with the military services." Id. at n.259.

(107.) For a list of attendees, see SCHINDLER & TOMAN, supra note 3, at 700-03.

(108.) As the senior U.S. representative to the Conference of Government Experts, Ambassador George H. Aldrich noted:

Some countries have been led by their experience, geography, industrial development, and other factors to invest in and rely on certain weapons for their military forces, and other countries have been led to invest in and rely on other weapons .... All of these differences, and others, continue to produce profoundly different views of both priorities and possibilities in the development of legal restraints on the means and methods of warfare.

U.S. DEPARTMENT OF STATE, REPORT OF THE U.S. DELEGATION TO THE CONFERENCE OF GOVERNMENT EXPERTS ON THE REAFFIRMATION AND DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS, GENEVA, May 3-Jun 2, 1972, 54 (1972). Things had not changed much since the Hague Convention of 1899, where the Russians hoped for a slow in the growth of land armaments primarily because they realized its artillery was quickly becoming inferior to that of the Germans and Australians. Additionally, those present who lagged behind in submarine capabilities attempted to limit the future uses of submarines. KENNETT, supra note 33, at 1.

(109.) See discussion supra Part II.B.3.

(110.) HARRY G. SUMMERS, JR., ON STRATEGY: A CRITICAL ANALYSIS OF THE VIETNAM WAR 5 (1982). Colonel Summers derives his trinity from Clausewitz's On War. Clausewitz' trinity is made up of three forces: (1) primordial violence, hatred, and enmity; (2) forces not the product of human thought or intent, such as friction; and (3) war's subordination to reason as an instrument of policy. CLAUSEWITZ, supra note 1, at 89. Clausewitz then links these three forces with, in order, the people, the military, and the government. Id. From this, many have inaccurately cited the people, the military, and the government as Clausewitz' "remarkable trinity." Edward Villacres & Christopher Bassford, Reclaiming the Clausewitzian Trinity, PARAMETERS 9, 11 (Autumn 1995).

(111.) SUMMERS, supra note 110, at 5-6; CLAUSEWITZ, supra note 1, at 89.

(112.) See discussion infra Part III.A.3-4.

(113.) See discussion supra Part II.B.3.

(114.) The Commentary makes clear that "objective" is defined as "the point aimed at;" in other words, the target. ICRC COMMENTARY, supra note 103, at 634. It was not intended to encompass "the general objective (in the sense of aim or purpose) of a military operation." Id.

(115.) See discussion infra Part III.B.

(116.) Article 52(2) is not the only provision that is a reversal of customary international law. See Parks, supra note 10, at 94-101, 173 (comparing prior customary international law to the Protocol provisions regarding reprisals, prisoner of war status, and the principle of proportionality).

(117.) Human Rights Watch, Vol. 12, No 1. Civilian Deaths in the NATO Air Campaign (Feb. 2000), available at http://www.hrw.org/reports/2000/nato/index.htm (on file with the Air Force Law Review) [hereinafter HRW Report].

(118.) Id.

(119.) Id.

(120.) Id.

(121.) Id.

(122.) Id.

(123.) Id.

(124.) Id.

(125.) Id. (emphasis added).

(126.) Amnesty International, NATO/FRY, "Collateral Damage" or Unlawful Killings?. Violations of the Laws of War by NATO During Operation Allied Force, AI Index: EUR 70/18/00 (June 2000), available at http://www.web.amnesty.org/ai.nsf/index/EUR700182000 (on file with the Air Force Law Review).

(127.) Id. at 38.

(128.) Id. at 39.

(129.) Id.

(130.) Id.; HRW Report, supra note 117.

(131.) One could argue that the simple existence of such "extreme" or "fringe", interpretations by these organizations has little or no real effect on the international community. However, no less than the Office of the Prosecutor of the International Criminal Tribunal for Yugoslavia considered the reports of both organizations, as well as the organizations' calls for indictments of NATO political and military figures, when determining if the Court should indict such figures. International Criminal Tribunal for Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, para. 6 (June 13, 2000), reprinted in 39 ILM 1257, 1258 (2000) [hereinafter Final Report to ICTY].

(132.) Note the similarity of Article 52(2)'s language with that contained in Article 24(1) of the 1923 Hague Air Rules: "Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent." SCHINDLER & TOMAN, supra note 3, at 210 (quoting the Hague Rules, supra note 45, art. 24, para. 1).

(133.) War, however, is fought at a strategic level, with strategic targets. Limitation of Article 52(2) to tactical targets purposely ignores this reality. See FINAL REPORT ON THE CONDUCT OF THE GULF WAR 613 (1992) (stating that "military advantage is not restricted to tactical gains, but is linked to the full context of war strategy").

(134.) "Military" is normally defined as "of, for, or pertaining to the armed forces," or "of, for, or pertaining to war." See RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1220 (2d ed. 1998).

(135.) John A. Warden, III, The Enemy as a System, 1 AIRPOWER J. 40, 43 (Spring 1995).

(136.) CLAUSEWITZ, supra note 1, at 87.

(137.) SPAIGHT, supra note 47, at 2.

(138.) Lieutenant General Harold L. George, Chief, Bombardment Section, Air Corps Tactical School, Lecture to ACTS students, 1932, quoted in HANSELL, supra note 2, at 33.

(139.) See ICRC COMMENTARY, supra note 103, at 636.

(140.) In fact, means short of force are often used against countries to pressure them to modify their behavior. The UN Charter specifically sanctions the use of these measures, such as economic embargoes and diplomatic pressures, when determined appropriate by the Security Council. U.N. CHARTER art. 41. These measures are specifically intended to bend a country's will to that of another country or group of countries.

(141.) See discussion supra Part II.B.3.

(142.) Id.

(143.) Id.

(144.) USSBS, supra note 96, at 95. Arguably such effects ultimately result in little or no gain when imposed upon populations of totalitarian states. Nonetheless, it is still instructive to note that such degeneration of morale through air power is possible.

(145.) Id.

(146.) Warden, supra note 135, at 8.

(147.) ROBERT F. FUTRELL, THE UNITED STATES AIR FORCE IN KOREA 1950-1953, 516 (1983).

(148.) Id. at 521.

(149.) HOSMER, supra note 96, at 17-18; see also ROBERT FRANK FUTRELL, IDEAS, CONCEPTS, DOCTRINE: BASIC THINKING IN THE UNITED STATES AIR FORCE 1907-1960, 340-45 (1989).

(150.) HOSMER, supra note 96, at 39. Interestingly, the North Vietnamese were also able to attack and affect the morale of the United States population, albeit in a more indirect way. "As the North Vietnamese showed, it is entirely possible to create conditions that lead the civilian population of the enemy to call on its government to change die state's policies. The North Vietnamese accomplished their aims by raising American military casualty levels higher than the American people would tolerate." Warden, supra note 135, at 8.

(151.) RICHARD P. HALLION, STORM OVER IRAQ: AIR POWER AND THE GULF WAR 218-19 (1992) (giving several examples of the B-52s' effect on the Iraqi surrender).

(152.) Id.

(153.) As the Coalition had hoped, some did not even have to experience an attack before surrendering. One troop commander stated that he had surrendered because of the B-52 attacks. When told that his position had never been attacked by B-52's, he replied "That is true, but I saw one that had been attacked." Id. at 218.

(154.) Meilinger, supra note 51, at 11.

(155.) See UNITED STATES STRATEGIC BOMBING SURVEY, JAPANESE AIR POWER 10 (July 1946).

(156.) Id.

(157.) RONALD H. SPECTOR, EAGLE AGAINST THE SUN: THE AMERICAN WAR WITH JAPAN 155 (1985); JOHN KEEGAN, THE SECOND WORLD WAR 271 (1989).

(158.) W. Hays Parks, Conventional Aerial Bombing and the Law of War, in PROCEEDINGS, NAVAL REVIEW 98, 114 (1982).

(159.) Parks, supra note 10, at 176-77. Whether one agrees that firebombing was the best way to achieve Allied ends is a question not addressed here.

(160.) Such a statement is not an extreme view, in light of the stance already taken by an eminent international lawyer. Professor Hamilton DeSaussure argues, based on Article 52(2)'s requirement of a military advantage, that the Linebacker II bombing during Vietnam was an illegal operation. Hamilton DeSaussure & Robert Glasser, Methods and Means of Warfare: Air Warfare--Christmas 1972, in LAW AND RESPONSIBILITY IN WARFARE: THE VIETNAM EXPERIENCE 119-39 (Peter D. Trooboff ed., 1975). DeSaussure states: "any destruction that is not primarily and predominantly designed to weaken the enemy military is unlawful. When its foremost purpose is to coerce an immediate political settlement, it is illegal per se, even though military objects are targeted." Id. at 139.

(161.) Such an interpretation would still, of course, have to comply with basic principles of the law of war, such as the principles of distinction and proportionality, and the prohibition against unnecessary suffering.

(162.) Overy, supra note 55, at 11.

(163.) DOUHET, supra note 77, at 179.

(164.) SPAIGHT, supra note 47, at 3.

(165.) Mark A. Clodfelter, Molding Airpower Convictions: Development and Legacy of William Mitchell's Strategic Thought, in THE PATHS OF HEAVEN: THE EVOLUTION OF AIRPOWER THEORY 79, 96 (Phillip S. Meilinger ed., 1997).

(166.) Phillip S. Meilinger, Trenchard, Slessor, and Royal Air Force Doctrine before World War II, in THE PATHS OF HEAVEN: THE EVOLUTION OF AIRPOWER THEORY 41, 41-42 (Phillip S. Meilinger ed., 1997).

(167.) Faber, supra note 86, at 215.

(168.) AIR FORCE DOCTRINE DOCUMENT I: AIR FORCE BASIC DOCTRINE [AFDD-1] 6-7 (1997) (emphasis added).

(169.) Id. at 51.

(170.) U.S. DEP'T OF AIR FORCE PAM. 14-210, USAF INTELLIGENCE TARGETING GUIDE, para. 1.7.1 (1 Feb. 98).

(171.) Id.

(172.) See text accompanying note 158.

(173.) The commentary states:

The definition [of a military objective] comprises two elements:

a) the nature, location, purpose or use which makes an effective contribution to military action;

b) the total or partial destruction, capture or neutralization which in the circumstances ruling at the time offers a definite military advantage. Whenever these two elements are simultaneously present, there is a military objective in the sense of the Protocol.

ICRC COMMENTARY, supra note 103, at 635.

(174.) Id. at 636.

(175.) MARK CLODFELTER, THE LIMITS OF AIRPOWER: THE AMERICAN BOMBING OF NORTH VIETNAM 182 (1989).

(176.) Targets included rail yards, storage areas, power plants, communication centers, and airfields. Id. at 184.

(177.) Id. at 172.

(178.) Some have gone so far as to argue that almost "every major military target and installation that could directly weaken the enemy forces in the South had been destroyed well before December 1972." DeSaussure & Glasser, supra note 160, at 129. This argument not only ignores the existence of numerous previously off-limit advantageous targets, but also assumes that a target once struck could never again become a valid target.

(179.) Id. at 121, quoting General Earl Wheeler, then Chairman of the Joint Chiefs of Staff and Secretary of Defense Robert McNamara; see also CLODFELTER, supra note 175, at 189 ("Haiphong's absence from the strike list was symptomatic of a new problem for the Air Force planners: a lack of suitable targets.").

(180.) B-52s alone dropped 15,237 tons of bombs during Linebacker II. Navy and Air Force fighters combined to drop roughly another 5,000 tons. CLODFELTER, supra note 175, at 194.

(181.) It must be kept in mind, however, that one of the main reasons for the destruction of the military was not necessarily to destroy the military per se, but to remove the Serbian capability to continue ethnic cleansing in the region. Interview by PBS with U.S. Army General Wesley Clark, Supreme Allied Commander, NATO, (Feb. 2,2000) at http://www.pbs.org/wgbh/pages/frontline/shows/kosovo/interviews/clark .html (visited Apr. 16, 2001) (on file with the Air Force Law Review) [hereinafter Clark Interview] ("[i]t was very important militarily [to bomb the Serb ground forces as] these forces were the agents and the support of the ethnic cleansing."). Additionally, strikes at Serbian troops prevented them from mounting an effective offensive against the Kosovo Liberation Army. James A. Kitfield, Another Look at the Air War That Was, 82 AIR FORCE MAG. 4 (Oct. 1999), available at http://www.afa.org/magazine/1099eaker.html (on file with the Air Force Law Review); see also Clark Interview ("It was clear that [Milose vic] was going to use his military forces [to finish off the KLA]. Therefore, they quite properly became one of the focuses of the campaign.") Finally, if and when NATO ground troops were to be deployed, any prior reduction of Serbian troops in Kosovo would have been welcomed by NATO planners.

(182.) General Klaus Naumann, Chairman of the North Atlantic Treaty Organization's Military Committee, stated that the military option was intended "to go after those targets which really hit the opponent and force him to accept our will." Interview by PBS with Gen. Klaus Naumann, Chairman, NATO Military Committee (Feb. 22, 2000) available at http://www.pbs.org/wgbh/pages/frontline/shows/kosovo/interviews/nauma nn.html (visited Apr. 16, 2001) (on file with the Air Force Law Review). NATO goals demanded that Serbia: "(1) halt the ethnic-cleansing campaign against ethnic Albanian Kosovars, (2) pull Serb troops and police from Kosovo, (3) permit deployment in Kosovo of a NATO-led peacekeeping force, (4) allow the expelled Kosovars to return to their homes, and (5) resume participation in efforts to reach a political solution in Kosovo." John A. Tirpak, Victory in Kosovo, 82 AIR FORCE MAG. 2 (July 1999), available at http://www.afa.org/magazine/watch/0799watch.htm1 (on file with the Air Force Law Review).

(183.) Tirpak, supra note 182, at 5.

(184.) Clark Interview, supra note 181.

(185.) Similar to the Linebacker II campaign in Vietnam, a primary goal of the air campaign was to bring Milosevic back into negotiations with the NATO countries: "The lights are going out, the bridges are coming down, and the military headquarters are going to be blown up. And we're going to go after that target set until it's destroyed. We think that'll bring Milosevic to the table." Interview by PBS with Lt. Gen. Michael C. Short, Joint Forces Air Component Commander, NATO (Feb. 22, 2000), available at http://www.pbs.org/wgbh/pages/frontline/shows/kosovo/interviews/short .html (visited Apr. 16, 2001) (on file with the Air Force Law Review) [hereinafter Short Interview].

(186.) From the beginning, U.S. Air Force leaders considered striking Milosevic's 3rd Army to be a waste of time and assets. Lt. Gen. Michael C. Short, NATO's Joint Force Air Component Commander stated that he never felt the Serbian Army was a center of gravity. Short did not think that Milosevic considered his own Army important: "Body bags coming home from Kosovo didn't bother [Milosevic], and it didn't bother the [Yugoslav] leadership elite." Dana Priest, The Commander's War. The Battle Inside Headquarters, WASH. POST, Sept. 21, 1999, Al.

(187.) See AFDD-1, supra note 168, at 79 (defining centers of gravity as "those characteristics, capabilities, or localities from which a military force derives its freedom of action, physical strength, or will to fight.").

(188.) "[M]ost analysts agree that the Air Force's campaign against bridges, buildings, refineries and other fixed targets--once NATO approved them--was an enormous success." Richard J. Newman, The Bombs that Failed in Kosovo, U.S. NEWS & WORLD REP. 28, 30 (Sept. 20, 1999).

(189.) Clark Interview, supra note 181.

(190.) Kitfield, supra note 181, at 4-5.

(191.) Lt. Gen. Short clearly suggested that NATO's intent was to affect Serb civilians:

There can be no doubt in your mind that with the power down as the result of a hard kill and refrigerator not running and no water in your house and the public transportation system in Belgrade not running and no street lights, that the war was brought home, not just to the ruling elite, but to the average Serb on the street.

Interview by Steve Inskeep with Lt. Gen. Michael C. Short, NATO Joint Forces Air Component Commander, NPR's Morning Edition (National Public Radio broadcast, Sept. 15, 1999) (on file with author).

(192.) See supra Part III.A.1.

(193.) Edward N. Luttwak, senior fellow at the Center for Strategic and International Studies, quoted in Kitfield, supra note 181, at 4.

(194.) ICRC COMMENTARY, supra note 103, at xxxiv.

(195.) See U.S. DEP'T OF AIR FORCE PAM. 14-210, USAF INTELLIGENCE TARGETING GUIDE, para. A 4.2.2 (1 Feb. 98). Other targets include fuel depots, transportation systems, communication systems.

(196.) EDWARD C. MANN, III, THUNDER AND LIGHTNING: DESERT STORM AND THE AIRPOWER DEBATES 44(1995); THOMAS A. KEANEY & ELIOT A. COHEN, REVOLUTION IN WARFARE? AIR POWER IN THE PERSIAN GULF 36 (1995).

(197.) KEANEY & ELIOT, supra note 196, at 34-36. Destruction of the targets provided military advantages to the Coalition, but it was clear that planners also envisioned and considered the effect on civilian morale and will to fight. Id.

(198.) Charles J. Dunlap, Jr., Technology: Recomplicating Moral Life for the Nation's Defenders, in XXIX PARAMETERS 24, 30-31 (1999); Gardam, supra note 95, at n.13.

(199.) See supra text accompanying notes 181-193.

(200.) For example, the short-term military advantage of destroying bridges over the Danube has caused other long-term effects. See e.g. Romania Loses $100M Over Danube, AP WORLDSTREAM, Mar. 19 2000, available in Lexis-Nexis library AP file (reporting that Romania has lost over $100 million in shipping revenue due to rubble blocking the Danube after NATO bombing of Danube bridges) (on file with the Air Force Law Review).

(201.) Dana Priest, The Commander's War: Bombing by Committee, WASH. POST, Sept. 20, 1999, at Al.

(202.) Id at A10.

(203.) Id.

(204.) Others would argue that even short-term disruption of power can provide a military advantage such as temporary safe air corridors.

(205.) Id.

(206.) Dana Priest, Air Chief Faults Kosovo Strategy, WASH. POST, Oct. 22, 1999, at A14.

(207.) Including striking those targets that the independent group Human Rights Watch considered violations of Article 52(2), the group estimated that only between 488 and 527 civilian deaths occurred as a result of NATO bombing in Kosovo. See HRW Report, supra note 117. While any civilian death is tragic, relative to the amount of air munitions released (23,614 munitions by NATO's estimate) civilian casualties were extremely low. Final Report to ICTY, supra note 131, at para. 54.

(208.) Charles J. Dunlap, Jr., The End of Innocence: Rethinking Noncombatancy in the Post-Kosovo Era, STRATEGIC REVIEW 9, 17 (Summer 2000).

(209.) Id. at 11-16. Examples include banks, financial institutions, and factories and stores that produce and sell luxury products. Id. at 14.

(210.) Id. at 13-14 and 16.

(211.) Id. at 15. Article 54, Protocol I already prohibits the targeting of objects "indispensable" to civilian survival, such as food and water, when the intent is to deny them to civilians. Protocol I, supra note 4, art. 54.

(212.) Dunlap supra note 208.

(213.) SPAIGHT, supra note 47, at 17-18.

(214.) WILLIAM T. SHERMAN, MEMOIRS 585 (1990).

(215.) Dunlap supra note 208, at 14-15.

(216.) Id. at 14.

(217.) Edward N. Luttwak, senior fellow at the Center for Strategic and International Studies, quoted in Kitfield, supra note 181, at 4.

(218.) Air power is uniquely capable of directly and immediately affecting the enemy's will:

when the decision is made to use force, then [air power] need[s] to go in with overwhelming force, quite frankly, extraordinary violence that the speed of it, the lethality of it, the weight of it has to make an incredible impression on the adversary, to such a degree that he is stunned and shocked and his people are immediately asking, 'Why in the world are we doing this? If this is just the first night, then what in the world is the rest of it going to be like? How long can we endure it, and more importantly, why are we having to endure it? Let's ask our leaders why this is happening.

Short Interview, supra note 185.

(219.) See Protocol I, supra note 4, art. 52, para. 2.

* Major Meyer (B.A., Duke University; J.D. Duke University School of Law; LL.M, The Army Judge Advocate General School; MA in Air Warfare from American Military University) is a Judge Advocate with the United States Air Force currently assigned as an instructor, International and Operational Law Division, The Army Judge Advocate General School, Charlottesville, Virginia. She is a member of the Texas State Bar.

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