It seemed a little safer on the low hill on the edge of Grozny. We wanted to avoid a repeat of the day before, when we had been caught in a Russian air strike in the center of the city. I had lain in the lee of a small wall, wishing my flak jacket covered my legs as well as my back, waiting for the cluster bombs to stop exploding. About a hundred yards away the bomb fragments killed the four Chechen fighters I had been interviewing a minute or so earlier. None of us in the BBC team had been feeling very lucky before the air strike. Now we felt like marked men, like everybody else in Grozny in the first few days of 1995.

We stood on the hill, filming, at fairly long range, the fires that the Russian bombardment had started. Then, new explosions, fire and smoke started to pour out of central Grozny. Perhaps I was just knocked back by a surge of adrenaline and fear, but my memory tells me that the earth shook and the blast vibrated through my guts. In the next few seconds the line of flame and smoke moved right along the line of the city’s main avenue that starts in Minutka Square and ends at the Chechen parliament building. It was a massive, coordinated attack by the heavy artillery and multiple rocket launchers I had seen on the Russian side of the lines. It was hard to believe that anybody could survive the inferno. Grozny disappeared under new clouds of flame and smoke and we got out with our tapes.

I went back into the center of Grozny most days that January. There were many more Russian attacks. Block after block of typical Soviet concrete- and-steel buildings were destroyed. In the few weeks after President Boris Yeltsin ordered his troops to end the Chechen rebellion, the Russians flattened the center of the city. Its destruction was more complete than anything I saw in the former Yugoslavia (including Mostar and Vukovar) and six other wars.

The laws of war state that an attacker must attempt to distinguish between military targets and civilians and their property. If he does not, he is guilty of the war crime of indiscriminate attack. If the attack also results in extensive, unnecessary, and willful damage then he is also guilty of wanton destruction. Proportionality is everything. The laws recognize that a legitimate military operation can kill noncombatants or damage their property. But any damage must not be excessive in comparison to the direct and concrete military advantage anticipated.

Despite the laws’ clarity, their application is often clouded by other considerations. At the Nuremburg Trials, Hermann Goering, the German air minister, and all the major war criminals were charged with “the devastation of towns, not justified by military necessity, in violation of the laws of war.” The charges were not pursued, perhaps because they were accused also of a wide range of other crimes and because the Allies did not want to draw attention to their own bombing campaigns in Germany and Japan.

And in Grozny, Russia could cite the fact that small groups of Chechen fighters were moving around the city almost at will, working their way up to the main confrontation line where they were killing hundreds of Russian conscripts. The shelling I witnessed followed the disastrous failure of a force of Russian tanks to break into the city center. Moscow might argue that shelling was the best and only way to take on the highly motivated Chechens.

If Grozny itself is an ambiguous case under the laws of war, there were plenty of examples that were crystal clear. The scene was a crossroads on the road into Grozny. Refugees had been flooding out of the city in the face of the Russian attack, and enterprising traders had set up corrugated iron shacks to sell drinks and food to those who had money. You could hear the noise of shelling coming from Grozny. Sometimes Russian warplanes flew overhead on their way to bomb the city. In the middle distance the silvery shape of a Russian helicopter-gunship hovered almost motionless over one of the outlying villages. Every now and then it launched a missile into the village, where the Chechens were putting up stiff resistance.

The war was all around, but the crossroads seemed like a backwater. I never saw Chechen fighters use it. The closest bridges were three-quarters of a mile away, and the Russian Air Force had blown up one.

But one morning in January 1995, Russian warplanes had attacked the crossroads, bombing and strafing. There were wounded in the hospital and, we were told, about half a dozen dead—all civilians. There were impact craters in the road. All that was left of the food-and-drink stands were a few twisted pieces of corrugated iron. The traders were picking up where they had left off, rebuilding the stands. And the refugees were still moving out of Grozny. The devastation of the crossroads, though on a far smaller scale than the attack on Grozny, was by all available evidence, a pure example of
wanton destruction.

Attitudes toward international humanitarian norms and law by the belligerents in the Gulf War could not have been more distinct. The U.S.-led coalition commander, Gen. Norman Schwarzkopf, frequently consulted with law of war experts, including members of the International Committee of the Red Cross (ICRC), to ensure that specific military operations would not be seen later as violations. In fact, Schwarzkopf’s aides requested so much guidance from the ICRC that its representatives eventually stopped providing it, protesting that they were not legal counsel for the coalition. Iraqi President Saddam Hussein, on the other hand, declined to meet with ICRC representatives.

Of course, the Gulf War was a conventional conflict, and U.S.-led coalition forces enjoyed a great advantage of superior firepower. Though they arguably committed some laws of war violations that contributed to needless civilian deaths, allied forces were able to fight a relatively clean campaign and still win. Saddam Hussein’s forces, on the other hand, committed many violations including grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I. Similarly, during the civil uprisings inside Iraq that immediately followed the Gulf War, Saddam disregarded humanitarian norms in crushing them.

U.S. and Iraqi leaders were responding to different considerations in their attitude toward international humanitarian law (IHL). U.S. commanders feared that any perceived violations by coalition troops might undermine the strong support for the war being expressed back home. Elsewhere, they feared that such violations might break up the U.S.-led coalition of twenty-seven countries against Iraq, and, in particular, compel Arab States to withdraw from it. U.S. leaders feared as well that any coalition intervention during Iraq’s civil uprisings might also split the coalition. Saddam, meanwhile, has never demonstrated much concern for Iraqi public opinion, though, during the Gulf War, he did try to appeal to Pan-Arab sentiments. Saddam’s targeting of civilian population centers in Israel, in particular, was designed to bring Israel into the Gulf War and then, hopefully, split Arab States from the U.S.-led alliance.

Each side in the Gulf War has been accused of violations of IHL; in some cases, the violation is legally clear-cut, while in others experts still debate.

Allied forces destroyed many electrical power stations in Iraq. The attacks adversely affected Iraq’s civilian population, as they rendered sewage plants in many civilian areas inoperable and left many hospitals without power. This led some observers like Human Rights Watch (HRW), a private monitoring organization based in New York, to ask whether the attacks violated IHL and its provisions against attacks on civilian objects. In particular, was the subsequent civilian toll excessive in relation to the concrete and direct military advantage anticipated from the attack? Other observers, however, including the ICRC, saw the same attacks differently. While concerned about the civilian suffering they created, the ICRC nonetheless recognized that electrical power stations can be, and traditionally have been, legitimate military targets.

Coalition forces also launched attacks that killed many civilians, raising questions about indiscriminate attacks involving needless civilian casualties. On February 14, for example, a British plane fired a laser-guided missile at a bridge in the Al-Fallujah neighborhood west of Baghdad. It missed and hit a residential area, killing up to 130 civilians. Some observers, including former U.S. Attorney General Ramsey Clark, claim that all such coalition attacks that resulted in Iraqi civilian casualties constitute war crimes. But without evidence that the neighborhood was intentionally, or negligently, targeted or that it was part of a broader pattern of indiscriminate attacks, this incident does not stand either as a grave breach or as a serious violation of the Geneva Conventions.

Another tragedy had occurred the day before, when a U.S. cruise missile penetrated the Ameriyaa air-raid shelter in Baghdad, killing up to three hundred civilians, including at least ninety-one children. CNN broadcast the carnage. U.S. Brig. Gen. Richard Neal in Riyadh later admitted that allied forces had intentionally targeted the shelter. He also said that coalition commanders knew that the shelter had been previously used by civilians in the mid-1980s during the Iran-Iraq War, but that it had since been converted to “a hardened shelter used for [military] command and control.” HRW refers to Neal’s statements to argue that the attack on the shelter was a laws of war violation. Before they fired at it, allied forces, according to HRW, were obligated, to first warn Iraq that they now considered the former civilian shelter a legitimate military target. HRW added that, in its view, the evidence of the shelter’s alleged conversion to a military purpose was insufficient to overcome the presumption that it was still being used by civilians. Other observers, however, including lawyers for coalition forces, disagree. They point out that the shelter had been used solely for civilian purposes several years previously in the Iran-Iraq War, so allied commanders were not obligated to warn Iraq that they now considered the shelter to be a legitimate military target in the Gulf War. Coalition partners, however, have yet to make their evidence public about the shelter’s alleged conversion to military use.

U.S.-led forces also killed many civilians when coalition planes, including B-52 bombers, launched heavy strikes in and around the port of Basra. Coalition forces sought to destroy several specific military targets there. Some critics claim coalition forces had resorted to the kind of carpet bombing often seen in World War II, constituting indiscriminate attack, by treating a whole area containing several targets as a single target, in violation of Article 51 of Additional Protocol I. No one disputes that the attacks killed many civilians (though no reliable figures are known) living in residential areas around the port. The question is whether such attacks violated IHL. A U.S. Army spokesman in Riyadh later described Basra as a “military town,” which was quartering, among other forces, a strong contingent of elite Republican Guard troops. Lawyers for coalition forces blame Iraq for the subsequent civilian toll. They point out that Iraq was legally obligated to separate military forces from civilians and not to use the latter as a shield, and that the presence of civilians around military targets does not render such targets immune from attack. Nonetheless, coalition forces, critics argue, could have used more precise arms, such as cruise missiles or laser-guided weaponry, that might have accomplished the same objective with less collateral damage to civilians. U.S. military lawyers have noted in response, however, that the obligation to use more precise weapons systems is qualified by considerations of military necessity, including availability and need for their deployment in missions against other military objectives. Both HRW and the ICRC concluded the resort to saturation strikes claimed needless civilian lives and damage, but the controversy continues.

Another controversial incident involving coalition forces occurred on the last day of the ground campaign, as an entire column of Iraqi troops was retreating from Kuwait. These troops had not surrendered, making them legitimate military targets. Yet, they put up only minimal resistance, while coalition aircraft dropped Rockeye fragmentation bombs and other antipersonnel arms, killing thousands. The ICRC concluded that the attacks “cause[d] unnecessary suffering and superfluous injury,” and that they were tantamount to “a denial of quarter.” Many other observers, however, counter that the concept of denial of quarter does not apply to forces that have not surrendered.

The ICRC also singled out some U.S.-led coalition partners for not devoting enough resources to properly register all their Iraqi prisoners with the ICRC or any other “central tracing agency.” Saudi Arabia, for one, registered none of its prisoners.

Other forces associated with the U.S.-led coalition as well violated humanitarian norms, though it remains unclear whether the violations took place within the context of an internal or international conflict, and which international norms or laws, therefore, would apply. Following the Gulf War, Kuwaiti authorities committed many human rights violations upon their repatriation. Mobs acting with the blessing of authorities harassed, detained, tortured, and sometimes summarily executed thousands, including Palestinians and others suspected of having supported the Iraqi occupation.

Nevertheless, Iraq is responsible for far more violations of humanitarian norms and laws, as its forces entirely disregarded them throughout the Gulf War and its aftermath. On many occasions, Iraq intentionally targeted civilians, which is a grave breach of the Geneva Conventions. During its occupation of Kuwait, Iraqi troops also harassed, tortured, and sometimes summarily executed thousands of Kuwaitis. Other Iraqi abuses also stand as clear rules-of-war violations. Before the Gulf War, Iraq used civilians, typically foreign nationals, as human shields to seek to protect military targets in both Kuwait and Iraq. In Kuwait, this practice was clearly a war crime under Article 51 of Additional Protocol I, because a state of war and occupation clearly existed with respect to Kuwait. Using foreign nationals as human shields within Iraq before the opening of hostilities between Iraq and the coalition forces is a less clear-cut case. In an unmistakable violation, Iraq, during the war, failed to register coalition prisoners of war with the ICRC. Iraq as well humiliated and tortured some coalition prisoners. (Though one U.S. soldier who was a prisoner of war later admitted that he had abused himself to avoid being shown on Iraqi television.)

Iraqi forces also fired Scud missiles that hit civilian population centers in Saudi Arabia and Israel, an act which some claim was the war crime of directly targeting civilians or indiscriminately attacking population centers. Nonetheless, for these attacks to constitute war crimes, it must first be proven either that Iraq intentionally targeted the civilian centers in order to attack civilians directly or else failed to take measures to insure that military objectives were targeted. Though some of the thirty-seven missiles directed into Saudi Arabia appear to have been aimed at military targets, others appear to have been aimed at cities like Riyadh, the Saudi capital. Most of the thirty-nine Scud missiles fired into Israel and the occupied West Bank seem to have been aimed at cities like Tel Aviv, the Israeli capital. Three questions remain open. Could the missiles Iraq fired at population centers reasonably be shown to have been aimed at legitimate military targets in those cities within the limits of Iraqi technological capabilities? Did anticipated specific and concrete military benefit of such attacks for Iraq outweigh civilian costs (excluding from the calculation the illegal military advantage gained from terror attacks on civilians themselves)? On the other hand, did coalition authorities violate their IHL duties by commingling civilians with military targets in Saudi Arabia? It would appear in fact as difficult to prove illegality in the Scud attacks on Saudi Arabia as it would the coalition attacks on Basra and Baghdad.

But the Scud attacks on Israel would appear to be the most difficult for Iraq to justify, given that coalition forces were not present in Israel, nor was Israel a party to the conflict. Absent some substantial evidence showing that Israel was about to enter the war against Iraq, thus justifying a preemptive military strike against legitimate military targets, the Scud attacks against Israel would appear to have been terror attacks directed against civilians. It is widely acknowledged that Iraq’s aim was to draw Israel into the conflict by attacks on its civilian population; although IHL is silent with respect to how a war starts or spreads, Iraq’s method appears in this case illegal.

Iraq also committed several acts of environmental warfare as part of its military strategy. The ecological impact of the attacks, which provided Iraq with perhaps a slight and only fleeting military advantage, will no doubt be felt for years. During the Gulf War, Iraq released millions of liters of crude oil into the Persian Gulf in an attempt to undermine seawater desalination plants that were being used by coalition forces. Toward the end of the war, Iraq set fire to as many as 950 oil wells, which discharged tons of toxic gases into the atmosphere. To be considered a violation of IHL, such acts must cause the environment widespread, long-term, and severe damage. Experts still disagree whether the above acts meet this threshold.

Iraqi forces committed human rights violations against many of its own citizens, principally in the Shia- and Kurdish-led insurgencies immediately after the end of the coalition-led campaign, which is at least inconsistent with international humanitarian norms. Here U.S. President George Bush also played a key role. On March 1, Bush called upon Iraqis “to put [Saddam] aside” and bring Iraq “back into the family of peace-loving nations.” The same day, Shias in southern Iraq began calling for insurrection, while Kurds in northern Iraq rebelled two weeks later; coalition forces stood by as Iraqi troops, backed by tanks and helicopter gunships, decimated the insurgents through scorched-earth campaigns. In many of these attacks, Iraqi forces appear to have made no attempt to distinguish between civilian and military targets. On March 20, in As-Samawah in southern Iraq, Iraqi units advanced behind a human shield of captured Shia women, as they shot Shia men on sight. On March 28, in Kirkuk in northern Iraq, Iraqi helicopter gunships and multiple-rocket launchers dropped a blanket of fire on fleeing Kurdish guerrillas and civilians, again without appearing to distinguish between them. Iraqi Army Special Forces, which led the assault, also summarily executed many Kurdish combatants (as well as Newsweek freelance photographer Gad Gross) after capture.

Iraq further violated humanitarian norms and human rights in its treatment of foreign detainees at the Abu Ghraib prison west of Baghdad, where captured journalists were also held. Though captured journalists were treated as prisoners of war, in accordance with Article 4 of the Third Geneva Convention, Iraq generally failed to acknowledge holding them until their release, in violation of the rules of war. At least one journalist, CBS News correspondent Bob Simon, was physically tortured.

Iraq as well violated the human rights of many Iraqi detainees in Abu Ghraib prison. I was detained there along with photojournalist Alain Buu for two weeks beginning about one month after the end of the Gulf War. Though we were not physically harmed, we saw and heard many Iraqis being tortured by prison authorities: hitting a man on the buttocks with a flat board intermittently all night long, while making him crow like a rooster; hosing down a stripped prisoner outside on a cold day, and then stunning him repeatedly with an electroshock weapon; and beating a sixteen-year-old boy, accused of sedition, with rubber hoses. Sometimes we just heard, coming from another cellblock in the prison, the long screams of men in extreme, sustained pain. Some of the violence was perpetrated capriciously by guards; other acts were executed under orders from higher authorities to extract information.

The Gulf War and its aftermath demonstrate the strengths and gaps of international humanitarian norms and law. Though the U.S.-led coalition in some cases at least encroached upon the rules of war, the allies in most cases did make a conscious effort to adhere to them. Saddam Hussein chose to ignore them nearly altogether.

Military necessity is a legal concept used in international humanitarian law (IHL) as part of the legal justification for attacks on legitimate military targets that may have adverse, even terrible, consequences for civilians and civilian objects. It means that military forces in planning military actions are permitted to take into account the practical requirements of a military situation at any given moment and the imperatives of winning. The concept of military necessity acknowledges that even under the laws of war, winning the war or battle is a legitimate consideration, though it must be put alongside other considerations of IHL.

It would be overly simplistic to say that military necessity gives armed forces a free hand to take action that would otherwise be impermissible, for it is always balanced against other humanitarian requirements of IHL. There are three constraints upon the free exercise of military necessity. First, any attack must be intended and tend toward the military defeat of the enemy; attacks not so intended cannot be justified by military necessity because they would have no military purpose. Second, even an attack aimed at the military weakening of the enemy must not cause harm to civilians or civilian objects that is excessive in relation to the concrete and direct military advantage anticipated. Third, military necessity cannot justify violation of the other rules of IHL.

Moreover, the action in question has to be in furtherance of a military, not a political, goal. This poses obvious problems of characterization. Is persuading the enemy to surrender a military or political goal? Is “persuading” the enemy to surrender by aerial bombardment a military or political goal.

What constitutes a military objective will change during the course of a conflict. As some military objectives are destroyed, the enemy will use other installations for the same purpose, thereby making them military objectives and their attack justifiable under military necessity. There is a similarly variable effect on the determination of proportionality. The greater the military advantage anticipated, the larger the amount of collateral damage—often civilian casualties—which will be “justified” or “necessary.” This flexibility also appears with regard to the prohibition of the use of weapons that cause “superfluous injury or unnecessary suffering.” The greater the necessity, the more suffering appears to be justified. Thus, even in the Advisory Opinion on the Legality of the Use of Nuclear Weapons the majority of judges in the International Court of Justice in The Hague left open the possibility that a State might be able to justify its use of nuclear weapons where the very survival of the State was under serious threat.

State practice recognizes that judgments about military necessity often require subjective evaluations with incomplete information on the battlefield and imperfect knowledge of where the failure to take action might lead. For this reason, great discretion has always been attached to commanders’ judgments, especially those made under battlefield conditions. Rarely, if ever, is the judgement of a field commander in battle—balancing military necessity and advantage—subject to legal challenge, let alone criminal sanction. An exception would be when the method of warfare used by the commander was illegal per se, and therefore not covered by the claim of military necessity.

In some cases, there is a presumption that certain actions are unlawful; it was not possible to prohibit them in absolute terms but they are unlawful unless justified by “imperative military necessity.” This qualification of “absolutely necessary” or “for reasons of imperative military necessity” puts a significant burden of proof on those invoking the exception. Examples include the Fourth Geneva Convention, which restricts the internment of protected persons and the transfer or deportation from an area of occupied territory; Additional Protocol I, which would normally prohibit a scorched-earth policy but which allows it in exceptional circumstances in national territory; and Additional Protocol II, which normally prohibits the internal displacement of the civilian population.

In the course of hostilities, these rules impose significant restraints on the conduct of law-abiding forces, but those forces may be able lawfully to invoke military necessity where their very survival or the requirements of winning the conflict are at stake.

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.”

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.

Our friend lay in bed, plucking nervously at the gray, bloodstained sheets, her eyes covered by a bandage, her face patterned with glass cuts. “I want to go home,” she said vehemently. “I’m terrified of staying in this building.”

We could understand her concern: the concrete blocks and curved facades of the Kosevo hospital complex in Sarajevo were scarred by shrapnel marks, bullet marks, and shell craters. Two weeks earlier, two patients had been killed when a shell hit their ward. We could hear the sounds of bombardment in the distance, and, suspiciously close to the hospital, the hollow sound of outgoing mortar fire. Hospitals are generally immune from attack under the Geneva Conventions, which grant civilians and civilian objects a high level of theoretical protection in times of war. The siege of Sarajevo, however, made a mockery of the humanitarian ideal that the dangers of war should be limited, as far as possible, to the armed forces engaged in the fighting.

The concept of immunity, the rule that certain people and places should be “protected and respected” during wartime, can be dated back at least to 1582, when a Spanish judge suggested that “intentional killing of innocent persons, for example, women and children, is not allowable in war.” The Geneva Conventions of 1949 confirmed immunity for civilians, hospitals, and medical staff, and the 1977 Additional Protocols to the conventions state: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”

The absolute rule is that civilians must not be directly targeted for military attack. Furthermore, some individuals considered especially vulnerable —children under fifteen, the elderly, pregnant women, and mothers of children under seven—are granted special protection and may, for example, be moved to safe zones exempt from attack by agreement of the warring parties. The wounded, sick, or shipwrecked, military personnel who are considered to be hors de combat, are protected, as are prisoners of war.

Hospitals, both fixed and mobile, ambulances, hospital ships, medical aircraft, and medical personnel—whether civilian or military—are also entitled to protection from hostile fire under the Geneva Conventions, provided that structures are marked with a red cross or red crescent and not used improperly or near military objectives, and staff are properly protected. Staff include not only doctors, nurses, and orderlies, but the drivers, cleaners, cooks, crews of hospital ships—in short, all those who help a medical unit to function. Some aid workers—for example, Red Cross volunteers treating the sick and wounded on the battlefield—are also covered, as are military chaplains. Other than hospitals, certain other buildings cannot be attacked. Places of worship and historic monuments are protected, as are civilian structures like schools and other objects that are not being used to support military activities. Under the 1954 Convention on Cultural Property important places of worship, historic sites, works of art, and other cultural treasures are likewise protected from attack.

There are exceptions. A school, for example, becomes a legitimate military target if soldiers are based there. With hospitals, the situation is more complicated since they are permitted to keep armed guards on their grounds. But immunity from attack can be lost if the people or objects are used to commit acts that are harmful to one side in a conflict. If the Bosnian Serbs besieging Sarajevo had concluded that government forces were firing weapons from within the Kosevo hospital complex, they would have had the right to fire back—but only if they had first asked the Bosnian government to stop using the hospital as a shield and had given them a reasonable period to comply.

Causing harm to an innocent person or object is not always illegal. Civilian deaths and damage are allowed as the result of an attack on a military target, but only if the attack is likely to confer a definite military advantage. Damage to people or objects who are in principle deemed to be immune under international humanitarian law must not be excessive in relation to the expected military gain. For example, breaking the windows of a hospital during an attack on an arms dump five hundred meters away would not be illegal since the civilian damage would be far outweighed by the military gain.

But keeping legitimate military targets separate from protected civilian sites is hard to do on the ground. Under international humanitarian law, the parties to a conflict are obliged to separate their military from their civilians as much as possible. But the reality is that this can be difficult. In Sarajevo, for example, the territory under siege was so small that to do so was all but impossible. That said, in Sarajevo, as in many towns across Bosnia-Herzegovina, it seemed clear that the besiegers’ primary target was civilians. That was one of the reasons why Radovan Karadzic and Ratko Mladic, the civilian and military leaders of the secessionist Bosnian Serbs, were charged with war crimes by the International Criminal Tribunal in The Hague.

In the mid-1960s, when I was covering the war in Vietnam for the Associated Press, U.S. commanders were issued wallet-size cards bearing the warning to “use your firepower with care and discrimination, particularly in populated areas.” Often, these cards ended up in a pocket of a pair of tropical fatigues, where they remained, ignored, for the duration of the bearer’s tour of duty.

The intention of the Department of Defense in issuing the cards was to help prevent jittery U.S. soldiers from mistakenly, or intentionally, declaring a suspect village a “free fire zone,” then destroying it and its residents. All too often, postmortem investigations revealed that such zones had been peaceful and should not have been assaulted. This type of incident with its attendant hostile publicity—My Lai was perhaps the most infamous, if not necessarily the most egregious—was a recurring nightmare of the military high command and a succession of U.S. administrations.

But the cards only served to accent official naiveté. In reality, U.S. troops in Vietnam seldom knew with any certainty which villages were friendly, siding with the Americans and their Saigon-based allies, and which supported the Hanoi-backed Viet Cong Communist guerrillas.

The practice of establishing free fire zones was instituted because many villages in what was then South Vietnam willingly provided safe haven to Viet Cong fighters. Some, by contrast, were forcibly occupied by marauding bands of guerrillas, who used the villages for cover. Many more were devotedly anti-Communist. Yet, the American forces often had fundamental difficulty in distinguishing among any of these villagers. The fact that the guerrillas commonly dressed in black cotton pajama-style outfits, like those worn by most Vietnamese peasants, served only to heighten the confusion.

But despite the GIs’ confusion, international law enjoins armies to avoid targeting any but military objectives and assures protection to civilians, in almost any circumstance. Free fire zones as defined by Department of Defense doctrine and the rules of engagement are a severe violation of the laws of war for two reasons. First, they violate the rule against direct attack of civilians by presuming that after civilians are warned to vacate a zone, then anyone still present may lawfully be attacked. The rule prohibiting direct attacks on civilians provides no basis for a party to a conflict to shift the burden by declaring a whole zone to be “civilian free.” And second, they violate the rule against indiscriminate attack by presuming without justification in the law that warning civilians to leave eliminates the legal requirements to discriminate in targeting its weapons.

Where the protection of the Geneva Conventions does not provide a mantle to civilians is when they take “a direct part in hostilities.” There were, of course, occasions when Vietnamese civilians directly attacked U.S. troops, but those which drew the attention of news reporters were overwhelmingly those in which a village was labeled a free fire zone and innocent lives were taken in outbursts of indiscriminate fire and brutality.

Faced with this negative coverage and with severe difficulty in enforcing international laws limiting the imposition of free fire zones, as well as other elements of the rules of engagement, the Pentagon over time added more directives to its pocket cards: a village could not be bombed without warning even if American troops had received fire from within it; a village known to be Communist could be attacked only if its inhabitants were warned in advance; only once civilians had been removed could a village be declared a free fire zone and shelled at will.

According to an article by Maj. Mark S. Martens of the U.S. Army’s Judge Advocate-General’s Corps and a distinguished graduate of the U.S. Military Academy, Oxford University, and Harvard Law School, all these rules were “radically ineffective.” Often they were simply ignored. In some cases, illiterate peasants couldn’t understand leaflets dropped to warn them that their villages would soon become a free fire zone. In other cases, hurried, forcible evacuations left large numbers of defenseless civilians behind, to be killed by bombing, shelling, small arms assaults, or burning. “The only good village,” went one bit of cynical GI wisdom, “is a burned village.”

Ineffective efforts to rein in the GIs’ propensity to create free fire zones in Vietnam resulted in a sense among many Vietnamese as well as Americans that U.S. forces were undisciplined. More important, perhaps, the widely touted grand plan to capture the “hearts and minds” of the Vietnamese was immeasurably diminished by the perception—let alone the outbreaks of reality—that Americans did not value Vietnamese lives.

Toward the end of the 1960s, the term free fire zone itself was dropped from the U.S. military lexicon in no small part because that doctrine embraced actions that the United States today would regard as illegal. Subsequent U.S. military manuals and rules of engagement, whether for ground, air, or naval forces, tend to track quite closely with the central principle of international humanitarian law on civilian immunity and the prohibition on the targeting of civilians.