1 Specifically, those set forth in Article 57 of Additional Protocol I (hereinafter AP I) to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, 12 December 1977, reprinted in The Laws of Armed Conflict, Dietrich Schindler & Jiri Toman (eds.), Martinus Nijhoff, Dordrecht, The Netherlands, 2004, p. 711. On precautions in attack, see discussion below.

2 See discussion in Michael N. Schmitt, “The conduct of hostilities during Operation Iraqi Freedom: An international humanitarian law assessment,” Yearbook of International Humanitarian Law (forthcoming), and the Human Rights Watch response thereto.

3 With particular emphasis on precision's optimal environment, air warfare.

4 “A precise point associated with a target and assigned for a specific weapon impact to achieve the intended objective and level of destruction. May be defined descriptively (e.g. vent in center of roof), by grid reference, or geolocation,” Joint Chiefs of Staff, “Joint doctrine for targeting,” Joint Publication 3–60, 17 January 2002, at GL-4.

5 Or one-half of the projectiles carried within a single weapon, such as a cluster bomb unit.

6 Joint Chiefs of Staff, Joint Vision 2020, June 2000, available at <www.dtic.mil/futurejointwarfare/> (visited 22 August 2005).

7 A weapon system is a “combination of one or more weapons with all related equipment, materials, services, personnel, and means of delivery and deployment (if applicable) required for self-sufficiency.” When considering precision, it is more useful to think in terms of weapon systems, for the accuracy of a weapon in a particular attack may depend as much on the capabilities of the platform from which it is launched as the technical parameters of the weapon itself.

8 Intelligence is “the product resulting from the collection, processing, integration, analysis, evaluation, and interpretation of available information concerning foreign countries or areas.” Surveillance is the “systematic observation of aerospace, surface, or subsurface areas, places, persons, or things, by visual, aural, electronic, photographic, or other means.” Reconnaissance is “a mission undertaken to obtain, by visual observation or other detection methods, information about the activities and resources of an enemy or potential enemy, or to secure data concerning the meteorological, hydrographic, or geographic characteristics of a particular area.” Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1–02, as amended through 9 May 2005, available at <www.dtic.mil/doctrine/jel/doddict/> (hereinafter DoD Dictionary, visited 22 August 2005).

9 The decapitation campaign is described at length in Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, December 2003, at pp. 78–79Google Scholar, available at <www.hrw.org/reports/2003/usa1203/> (visited 22 August 2005). For the strikes on ICRC facilities, see Murphy, Sean D., “Contemporary practice of the United States relating to international law,” American Journal of International Law, Vol. 96, 2002, p. 247.Google Scholar

10 Anthony Dworkin, “The Yemen strike,” 14 November 2002, available at <www.crimesofwar.org/onnews/news-yemen.html> (visited 22 August 2005).

11 Defense Advanced Research Project Agency, Bridging the Gap, February 2005, ch. 3.

12 Indeed, of the eight DARPA strategic thrusts, none bears directly on this capability.

13 Weapons systems and weapons are described on a number of websites. In particular, see those of the US Air Force, available at <http://www.af.mil/factsheets/> (visited 22 August 2005); Global Security, available at <http://www.globalsecurity.org/military/systems/index.html> (visited 22 August 2005); and Federation of American Scientists, available at <http://www.fas.org/main/home.jsp> (visited 22 August 2005).

14 During Operation Iraqi Freedom, US forces dropped 5,086 JDAM GBU 31s (2,000 pound), 768 JDAM GBU 32s (1,000 pound), and 675 JDAM GBU 35s (1,000 pound penetrator). A 500 pound variant has been developed and is being employed by the F-16 Falcon and the F-15 Eagle. Figures contained in US Central Command Air Forces, Assessment and Analysis Division, Operation Iraqi Freedom: By the Numbers, 30 April 2003, p. 11, available at <www.globalsecurity.org/military/library/report/2003/ uscentaf_oif_report_30apr2003.pdf> (visited 22 August 2005).

15 The United States defines rules of engagement as “directives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.” DoD Dictionary, op. cit. (note 8). ROE are derived from policy, legal and operational concerns.

16 For example, the 2003 Combined Forces Land Component Commander (Iraq) ROE Card provided: “Positive identification (PID) is required prior to engagement. PID is a reasonable certainty that the proposed target is a legitimate military target. If no PID, contact your next higher commander for decision.” Operational Law Handbook, US Army Judge Advocate General's Legal Center and School, Vol. 101, 2004.

17 See “Joint doctrine for targeting,” op. cit., ch. 1.

18 An ATO is defined as “a method used to task and disseminate to components, subordinate units, and command and control agencies projected sorties, capabilities and/or forces to targets and specific missions. Normally provides specific instructions to include call signs, targets, controlling agencies, etc., as well as general instructions.” A mission-type order is a directive “to a unit to perform a mission without specifying how it is to be accomplished.” Fire support consists of “fires that directly support land, maritime, amphibious, and special operations forces to engage enemy forces, combat formations, and facilities in pursuit of tactical and operational objectives.” DoD Dictionary, op. cit. (note 8).

19 “Joint doctrine for targeting,” op. cit. (note 4), Figure I–2.

20 On effects-based operations, see Brigadier General David A. Deptula, Effects-based Operations: Change in the Nature of War, Aerospace Education Foundation 2001; Department of Defense, “Effects-based operations briefing,” 19 March 2003 (hereinafter EBO Brief), available at <www.defenselink.mil/news/Mar2003/g030318-D-9085.html> (visited 22 August 2005). On EBO and law, see Schmitt, Michael N., “Aerial effects-based operations and the law of armed conflict,” paper presented at a conference to mark the launch of the UK Manual of the Law of Armed Conflict, Oxford University, Oxford, July 2004.Google Scholar The articles presented will appear in a compilation to be edited by Steven Haines and published by Oxford University Press in 2005.

21 Effects-based operations are defined as “actions taken against enemy systems designed to achieve specific effects that contribute directly to desired military and political outcomes.” US Air Force, “Air Force basic doctrine,” Air Force Doctrine Document 1, 17 November, 2003, p. 98.

22 Effects may be direct (the first-order result of the attack, e.g. destruction from weapon blast) or indirect (second or greater order results, e.g. negative impact on enemy morale). Whether direct or indirect, effects may cumulate or cascade. Cumulative effects are those that compound over time. For instance, enemy morale degrades the longer adversaries are subjected to attack. By contrast, cascading effects are indirect effects that ripple through the enemy's target system, usually from a higher to a lower level of command. For instance, neutralization of a command and control facility can sow confusion among subordinate units.

23 “Joint doctrine for targeting,” op. cit. (note 4), Figure C-3.

24 “Probability of damage (Pd) is used to express the statistical probability (percentage or decimal) that specified damage criteria can be met assuming the probability of arrival.” United States Air Force, “Intelligence targeting guide,” AF Pamphlet 14–210, 1 February 1998, pp. 59–60.

25 Arkin, William M. et al. , On Impact: Modern Warfare and the Environment, a Case Study of the Gulf War, Greenpeace, June 1991, p. 78.Google Scholar For an excellent summary of the precision aspects of the campaign, see Department of Defense, Report to Congress, “Kosovo/Operation Allied Force after-action report,” 31 January 2000.

26 NATO, “Kosovo one year on,” 30 October 2000, available at <www.nato.int/kosovo/repo2000/conduct.htm> (visited 22 August 2005); Gilster, Herman L., Desert Storm: War, Time, and Substitution Revisited, Airpower, spring 1996, p. 8Google Scholar; Kelley, Michael, “The American way of war,” Atlantic Monthly, June 2002, p. 16.Google Scholar

27 By the Numbers, op. cit. (note 14).

28 A dual-use target is a target with both civilian and military functions, such as a factory that makes both civilian and military products or an airfield from which both civilian and military aircraft fly.

29 See e.g. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (hereinafter CIHL), Cambridge University Press, Cambridge, 2005, chapters 3 & 20.

30 Their intent was not to hit Israeli military objectives, but rather to draw Israel into the conflict and thereby disrupt a coalition that included a number of Arab States.

31 See discussion below.

32 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, p. 117.CrossRefGoogle Scholar

33 ICTY, Prosecutor v. Stanislav Galic, Case No. IT-98–29-T, (Trial Chamber), 5 December, 2003, para. 57. Similarly, in reviewing the NATO bombing campaign against Yugoslavia, the group that authored the ICTY Final Report to the Prosecutor cited recklessness as the applicable standard when it urged against issuance of indictments. Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia, “Final Report to the Prosecutor by the Committee established to review the NATO bombing campaign against the Federal Republic of Yugoslavia,” 13 June 2000, reprinted in International Legal Materials, Vol. 39, 2000, p. 1258.Google Scholar

34 Statute of the International Criminal Court (Rome Statute), 17 July 1998, Art. 30, reprinted in Schindler, op. cit. (note 1), p. 1309.

35 In the attacks against the Grdelic Gorge bridge, the Djakokic convoy, Dubrava Prison, and Korisa. See for example, Watch, Human Rights, “Civilian deaths in the NATO air campaign,” February 2000, available at <www.hrw.org/reports/2000/nato/index.htm#TopOfPag> (visited 22 August 2005); Amnesty International, “‘Collateral damage’ or unlawful killings? Violations of the laws of war by NATO during Operation Allied Force,” June 2000, available at <www.amnesty.org/ailib/intcam/kosovo/docs/natorep_all.doc> (visited 22 August 2005).+(visited+22+August+2005);+Amnesty+International,+“‘Collateral+damage’+or+unlawful+killings?+Violations+of+the+laws+of+war+by+NATO+during+Operation+Allied+Force,”+June+2000,+available+at++(visited+22+August+2005).>Google Scholar

36 Off Target, op. cit. (note 9).

37 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, para 78.

38 This is the example cited in the ICRC's official commentary on Additional Protocol I: Commentary on the Additional Protocols of 8 June 1997 to the Geneva Conventions of 12 August 1949, Sandoz, Yves, Swinarski, Christophe & Zimmermann, Bruno (eds.), ICRC, Geneva, 1987,Google Scholar para. 1958, (hereinafter Commentary).

39 EBO Brief, op. cit. (note 20). To take another example, during Operation Cobra, the breakout from Normandy, US air forces dropped 14,600 500-pound bombs on one German division, destroying 66 tanks and 11 heavy guns. During Desert Storm, the US dropped 9,800 precision-guided munitions, destroying 2,500 tanks, heavy artillery pieces, and armoured personnel carriers - a ratio of bombs to equipment destroyed that was 50 times that of Operation Cobra. Pape, Robert A., “Hit or miss: What precision air weapons do precisely,” Foreign Affairs, September/October 2004, p. 163.Google Scholar

40 CIHL, op. cit. (note 29), Rule 14; Nuclear Weapons case, op. cit. (note 37), at 587 (Dissenting opinion of Judge Higgins). Article 57(2)(a)(iii) & (b) restates the prohibition in the context of precautions in attack.

41 ICC Statute, op. cit. (note 34), at Art. 8(2)(b)(iv). The Statute modifies “excessive” with the adjective “clearly” and “military advantage” with “overall,” thereby emphasizing both the need for clarity and the importance of avoiding assessments of individual attacks in total isolation.

42 Off Target, op. cit. (note 9), p. 19.

43 Bradley Graham, “US moved early for air supremacy,” Washington Post, 20 July, 2003, p. 26. Twenty such targets were struck; Off Target, op. cit. (note 9), at 20. According to Human Rights Watch, this procedure “worked well” in most cases and the “aerial bombardment resulted in minimal adverse effects to the civilian population”; ibid.

44 Counter-targeting is “preventing or degrading detection, characterization, destruction, and post-strike assessment.” Defense Intelligence Agency, “Saddam's use of human shields and deceptive sanctuaries: Special briefing for the Pentagon Press Corps,” 26 February 2003, available at <www.defenselink.mil/news/Feb2003/g030226-D-9085M.html> (visited 22 August 2005).

45 Todd S. Purdum, “Night time ambush in Iraqi city,” New York Times, 5 April 2003, p. 1; Dexter Filkins, “In the field choosing targets: Iraqi fighters or civilians? Hard decision for copters,” New York Times, 31 March 2003, p. 5. Civilian objects were also used in counter-targeting. Iraqi forces located military equipment and troops in or near civilian buildings. These included specially protected locations such as al-Nasiriyya Surgical Hospital, the Baghdad Red Crescent Maternity Hospital, the Imam Ali Mosque in al-Najaf, and the Abu Hanifa Mosque as bases for operations. Off Target, op. cit. (note 9), pp. 72–73. During the battle for Fallujah, insurgents used 60 of the 100 mosques and 3 medical facilities in the city in this manner. Marine Expeditionary Force & Multi-National Corps-Iraq, “Telling the Fallujah story to the world,” Briefing Slides, 20 November 2004 (on file with author). Although no express provision banning the use of civilian objects as shields exists in IHL, such actions violate Additional Protocol I's Article 58 obligations for Parties to conflict to “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objects; avoid locating military objectives within or near densely populated areas; [and] take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations,” albeit only “to the maximum extent feasible.” See also CIHL, op. cit. (note 29), ch. 6. Iraqi use of specially protected objects also clearly violated other provisions of IHL. The First Geneva Convention stipulates in Article 19 that “responsible authorities shall ensure that…medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.” Contention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, reprinted in Schindler, op. cit. (note 1), p. 459, (hereinafter GC I). Additional Protocol I is completely unambiguous: it states in Art. 12.4 that “[u]nder no circumstances shall medical units be used in an attempt to shield military objectives from attack,” while Art. 53(b) confers similar protection on “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples,” ibid. See also Hague Regulations respecting the Laws and Customs of War on Land, Annex to Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907, Art. 27, reprinted in Schindler, ibid., p. 55, (hereinafter HIVR).

46 Article 51.7 of AP I forbids the use of “[t]he presence or movements of the civilian population or individual civilians … to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations,” a prohibition that is unquestionably customary. On the customary nature of the prohibition, see CIHL, op. cit. (note 29), Rule 97. See also ICC Statute, op. cit. (note 34), Art. 8.2 (b) (xxiii).

47 For a discussion of this point, see Schmitt, Michael N., “Targeting and humanitarian law: Current issues,” Israel Yearbook on Human Rights, Vol. 59, 2003, p. 59.Google Scholar

48 See generally, Schmitt, Michael N., “Humanitarian law and direct participation in hostilities by private contractors or civilian employees,” Chicago Journal of International Law, Vol. 5, 2005, p. 511Google Scholar; Schmitt, Michael N., “‘Direct participation in hostilities’ and 21st century armed conflict,” in Fischer, Horst et al. (eds.), Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck, Berlin, 2004, pp. 505–529.Google Scholar

49 According to the United States Air Force manual Air Force Operations and the Law, “standards of conduct should apply equally to the attacker and defender. In other words, that the responsibility to minimize collateral injury to the civilian population not directly involved in the war effort remains one shared by the attacker and the defender; and that the nation that uses its civilian population to shield its own military forces violates the law of war at the peril of the civilians behind whom it hides. …At the same time, however, targeters and judge advocates should consider the necessity of hitting the particular target, the expected results versus expected collateral damage, and ways to minimize civilian casualties, if possible.” Air Force Operations and the Law, Department of the Air Force, Judge Advocate General's Department, 2002, p. 293. See also the discussion in “Joint doctrine for targeting”, op. cit. (note 4), at A-2 – A-3, and USAF “Intelligence targeting guide,” op. cit. (note 24), at A4.2.1.2.

50 “Some belligerents might have information owing to a modern reconnaissance device, while other belligerents might not have this type of equipment.” Commentary, op. cit. (note 38), para. 2199.

51 A standard that is, as noted, evolving along with technological advances in precision.

52 Commentary, op. cit. (note 38), para. 2198.

53 United Kingdom, Reservations and Declaration Made on Ratification, Corrected Letter of 18 June 1998, para. I (c), reprinted in Schindler, op. cit. (note 1), pp. 815–816.

54 Commentary, op. cit. (note 38), para. 2200.

55 Belt, Stuart W., “Missiles over Kosovo: Emergence, lex lata, of a customary norm requiring the use of precision munitions in urban areas,” Naval Law Review, Vol. 47, 2000, p. 174.Google Scholar Interestingly, he applies, in the present author's view, the wrong provision of the law of international armed conflict to arrive at an incorrect legal principle. He asserts that the duty applies in the context of the principle of proportionality, whereas the better position is that if such a duty exists (it does not), it would derive from obligations regarding the selection of means of warfare (precautions in attack).

56 See Infeld, Danielle L., “Precision guided munitions demonstrated their pinpoint accuracy in Desert Storm: But is a country obligated to use precision technology to minimize collateral civilian injury and damage,” George Washington Journal of International Law and Economics, Vol. 26, 1992, p. 109, arguing against such a notion.Google Scholar

57 For example, Human Rights Watch addressed the Djakovica Road incident, concluding that because “higher altitude seems to have impeded a pilot from adequately identifying a target,” “inadequate precautions were taken to avoid civilian casualties.” “Civilian deaths,” op. cit. (note 35).

58 Declaration, op. cit. (note 53), para. 1 (b). But, in contrast, the ICRC Commentary rejected contribution to “military success” as a component of feasibility, suggesting that it was “too broad” and expressing concern that in “invoking success...one might end up by neglecting the humanitarian obligations prescribed here.” Commentary, op. cit. (note 38), para. 2198 (in the context of verifying targets).

59 Rogers, A.P.V., Law on the Battlefield, Manchester University Press, Manchester and New York, 2nd ed., 2004, p. 108.Google Scholar

60 It was described in the commentary as accepted by the Conference “without much discussion.” Commentary, op. tit. (note 38), para. 2226.

61 The relevant provisions of Article 4 A of the Third Geneva Convention extend combatant status to: “

1. (1)

   (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

2. (2)

   (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

   1. (a)

      (a) that of being commanded by a person responsible for his subordinates;

   2. (b)

      (b) that of having a fixed distinctive sign recognizable at a distance;

   3. (c)

      (c) that of carrying arms openly;

   4. (d)

      (d) that of conducting their operations in accordance with the laws and customs of war.” Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, Art. 142, reprinted in Schindler, op. cit. (note 1), p. 507.

These four conditions are inherent in the meaning of “armed forces”; they also apply to the persons referred to in Article 4A(1). As noted by Michael Bothe et al, “[i]t is generally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907 Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered unnecessary and redundant to spell them out in the Conventions.” Michael Bothe et al, New Rules for Victims of Armed Conflict, Martinus Nijhoff Publishers, The Hague/Boston/London, 1982, p. 234. See also discussion in CIHL, op. cit. (note 29), at 15.

62 While it is not a war crime to attack the enemy, it may amount to a criminal offence (e.g. murder) under the national law of capturing forces. Lacking immunity, such persons may be prosecuted in the courts of any State with subject matter over the offence and personal jurisdiction over the offender. This point is reflected in CIHL, op. cit. (note 29), Rule 106.

63 “Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.” AP I, op. cit. (note 1), Art. 43.2. The classic article on the subject is the one by Baxter, Richard R., “So-called ‘unprivileged belligerency’: Spies, guerrillas and saboteurs,” British Yearbook of International Law, 1952, p. 323Google Scholar, reprinted in Military Law Review, 1975, Bicentennial Issue, p. 487.

64 Party buildings were regularly used as military supply depots and mustering points. Off Target, op. cit. (note 9), p. 70.

65 The prohibition dates back to the 1863 Lieber Code and also appears in the 1899 and 1907 Hague Regulations, the 1906, 1929, and 1949 Geneva Conventions, and Additional Protocol I. See: Instructions for the Government of Armies of the United States in the Field (Lieber Code), promulgated as General Orders No. 100, US Department of the Army, Art. 117, reprinted in Schindler, op. cit. (note 1), p. 3; Convention (II) with Respect to the Laws and Customs of War on Land, with annexed Regulations, of 29 July 1899, Art. 23(f), ibid., p. 55; HIVR, op. cit. (note 45), Art. 23(f); Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 6 July 1906, Arts. 27–28, reprinted in Schindler, op. cit. (note 1), p. 385; Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 27 July 1929, Arts. 24 & 28, ibid., p. 409; GC I, op. cit. (note 45), Arts. 39, 44, 53, 54; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, Arts. 41, 44, 45, reprinted in Schindler, op. cit. (note 1), p. 485; AP I, ibid., (note 1), Art. 38.1.

66 See also the 1907 Hague Regulations ban on “improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention,” a prohibition that is now unquestionably customary law, HIVR, op. cit. (note 45), Art. 23(f); CIHL, op. cit. (note 29), ch. 18; International Military Tribunal (Nuremberg), Judgment and Sentences, 1946, American Journal of International Law, Vol. 41, 1947, p. 218. The reference is to the Geneva Convention of 1864. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August, 1864, reprinted in Schindler, op. cit. (note 1), p. 365.Google Scholar

67 This would include civilian bombers who wore civilian clothes in order to get close enough to detonate their explosives.

68 See, e.g. Glenn Collins, “Allied advances, tougher Iraqi resistance, and a hunt in the Tigris,” New York Times, 24 March 2003, p. 1; Brian Knowlton, “Bush tells of ‘good progress’ but says war has just begun,” International Herald Tribune, 24 March 2003, p. 6. The said actions are specifically banned in AP I, Art. 37.1 (a).

69 Centres of gravity consist of “[t]hose characteristics, capabilities, or sources of power from which a military force derives its freedom of action, physical strength, or will to fight.” DoD Dictionary, op. cit. (note 8).

70 There may be many purposes for attacking civilians: disrupting a coalition, as in Iraqi targeting of Israeli cities in 1991; intimidating non-governmental and intergovernmental organizations, as in the attacks on the UN and ICRC headquarters in Iraq; making the conflict appear too costly to belligerent States and citizens, as in the Iraqi kidnapping and murder of foreign hostages; or targeting one's own population to deter cooperation with the enemy, as in attacks against Iraqi security forces and law officials.

71 See for example, CIHL, op. cit. (note 29), ch. 2; Nuclear Weapons case, op. cit. (note 37), para. 78.