|By Roy Gutman and Daoud Kuttab
As Western air forces bombarded Iraqi military targets at the start of the Gulf War, Iraq repeatedly fired SS-1 (Scud) missiles into Israel. Scuds never were known for their precision, but they became even less accurate as a result of Iraq’s earlier decision during the Iran-Iraq War to triple the range to 560 miles.
The margin of error was at least two thousand yards, making the missile almost useless for hitting military targets but highly effective in terrorizing the population in an urban area. Of the eleven attacks on Israeli targets, many landed in densely populated residential areas in Tel Aviv or Haifa or in open fields; others were intercepted by U.S.-supplied Patriot antimissile missiles and never came anywhere close to the target. There is no evidence that Iraq made any attempt to aim the Scud missiles at military targets.
The Scud assaults exemplify indiscriminate attack, a defined war crime under the 1977 Additional Protocol I to the 1949 Geneva Conventions. An indiscriminate attack is one in which the attacker does not take measures to avoid hitting non-military objectives, that is, civilians and civilian objects. Protocol I states: “Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
An indiscriminate attack also includes using means and methods that, like the Scud, cannot be directed at specific military objectives or whose effects cannot be limited.
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.” Although every instance of indiscriminate attack violates the law of armed conflict, it is equally the case where attacking a military target may cause collateral damage to civilians or civilian objects. If the harm to civilians is proportionate to the military advantage expected, the attack, other things being equal, is a legal act of war. If the harm is “excessive in relation to the concrete and direct military advantage anticipated,” the attack is prohibited, whether or not indiscriminate. (Concrete means perceivable by the senses; direct means having no intervening factor.)
Although the United States and several other countries have not ratified Additional Protocol I, this provision is considered to be part of customary law and therefore binding upon all parties to a conflict. Indiscriminate attack has never been specifically banned in internal conflicts, yet this principle carries over as a matter of customary law.
Nearly every army has at some point carried out what today would be described as an indiscriminate attack. Examples include Germany’s V-II rocket attacks during World War II, the Allied “strategic bombing” and firebombing of Dresden and Hamburg, as well as the U.S. carpet-bombing during the Vietnam War. To curb the practice, Additional Protocol I prohibits an attack “by bombardment which treats as a single military objective a number of military objectives located in a city, town, village, or other area containing a similar concentration of civilians or civilian objects.”
The point of this provision is to prevent an attacker from treating a whole city that contains not only civilians but also military targets as a single military target. The individual military objectives may still be targeted, with the possibility of collateral damage to civilians, but weapons must be aimed individually. What counts as sufficiently discriminate targeting is an important question of interpretation, in light of the physical constraints of weapons systems and the inability even with “smart” weapons to achieve perfect targeting. For that matter, there is not even a requirement that only smart weapons be used.
Even after the protocol came into effect, some of the world’s most advanced armies violated the law. Human Rights Watch (HRW) in Civilian Pawns: Laws of War Violations and the Use of Weapons on the Israel-Lebanon Border (1996) documented repeated examples of indiscriminate attack during Israel’s long-running conflict with the Hizbollah in southern Lebanon. During the 1993 Operation Accountability, the Israeli army targeted Hizbollah members—whether civilians or military—as well as sympathizers and relatives and also shelled whole villages without distinction of specific military objectives. (It should be noted that Israel is not a party to the 1977 Protocol I.)
There were direct attacks on purely civilian targets such as Sidon’s wholesale vegetable market, and at one stage Israel warned it would fire on any means of transportation in about twenty villages, turning the region into a free fire zone. But Hizbollah, in the period before the Israeli operation, had also fired Katyusha rockets at Israel, hitting no military installations but causing the civilian population to flee south. This, too, was a clear violation of the ban on indiscriminate attacks. Also, Hizbollah issued no warnings and it used weaponry with obvious inaccuracy. In addition, HRW concluded, Hizbollah, in not directing its weapons at military targets, had used weapons to terrorize the civilian population. In essence, what may have started as indiscriminate attack resulted in direct attack, aimed at civilians—also clearly a war crime. The excuse used by Hizbollah, that it was firing in retaliation, made clear that it was attacking civilians by way of reprisal.
In 1995 and 1996, Israel and the Hizbollah again attacked each others’ civilian targets. In Operation Grapes of Wrath in April 1996, there was evidence that Israel had carried out “indiscriminate and disproportionate attacks against civilians in what had become virtual ‘free-fire’ zones across large swaths of the south” of Lebanon, culminating in the shelling of a makeshift refugee compound at a UN post south of Tyre in which more than one hundred displaced civilians were killed. Israel said Hizbollah had fired mortars and Katyusha rockets from a position three hundred meters from the UN post. Locating military objectives near a concentration of civilians, known as shielding, is also a war crime, and the laws of armed conflict are clear that an attacker is not precluded from attacking a legitimate military target by the proximity of civilians or civilian objects. While acts of shielding did not render the zone immune from attack, neither did they “give Israel license to fire indiscriminately into a wide area that includes a UN base and concentrations of civilians,” Human Rights Watch correctly noted (emphasis added). The International Committee of the Red Cross (ICRC) one day later issued a statement in which it “firmly condemned” the Israeli shelling at Qana and reiterated there was an “absolute ban” on indiscriminate attacks. However, a senior ICRC official said after an investigation that the real problem here was the fact that the Israeli system was designed to automatically fire back on the source of the original attack. Therefore Israel did not take sufficient precautions in their attack to ensure that it would not result in disproportionate civilian deaths. The UN’s military advisor concluded in a May 1996 report that it was “unlikely that gross technical and/or procedural errors led to the shelling of the United Nations Compound.” However, he added “it cannot be ruled out completely.”
Types of Indiscriminate Attack
1. An attack that is not targeted at military objectives. (Damage to civilian property that is actually intended is known as wanton destruction, especially if it is wide-scale.)
2. Use of weapons that are not able to be properly targeted.
3. Use of weapons that have uncontrollable effects.
4. An attack that treats an area with similar concentrations of military and civilian objectives as a single military objective.
5. An attack that may be expected to cause harm to civilians or civilian objectives in excess of the concrete and direct military advantage anticipated.