Day Two, Panel One: Demystifying War: The Role of International Humanitarian Law

Moderator: Elizabeth Neuffer, journalist, Boston Globe, and the author of a forthcoming book about war crimes and the Rwanda and Bosnia war crimes tribunals.

Discussant: Ann Cooper, Executive Director Committee to Protect Journalists

d) How Can the Law Serve as the Basis for “Humanitarian Intervention”?
Col. Charles J. Dunlap, Staff Judge Advocate, Central Command Air Forces/9th U.S.Air Force

COL. DUNLAP: I very much appreciate this opportunity to speak to you. It's an important audience and I do need to caveat my remarks by telling you that Jim and the Ambassador are giving you the official view. I'm going to give you my personal views as a guy at the pointed end of the stick trying to implement and train people and execute the mission.

I'm a military lawyer and as someone said earlier, I guess Michael Ignatieff talked about lawyers being at the elbow, it really is that way. And when I first came in, yeah, I used to teach the law of armed conflict, but you weren't actually in on the operations looking at targets and stuff like that. It's really been basically since the Gulf War that that happened.

And today, for example, the central command we have eight lawyers who are in the Middle East right now. And we have one lawyer that's in the command center that's executing the no-fly zone whenever operations are going on so that there's the immediate availability like I talked about in Protocol One legal advice be immediately available. And he's a colonel, to give immediate advice on the rules of engagement, targeting and so forth.

And then each week in our command we have a number of video teleconferences where we go over very specifically potential targets in Iraq. And they get a legal scrub not only by the lawyers in my command, and I personally go to the meeting, but also at central command and also at the other commands that are involved in the teleconferencing.

And what's interesting about it is you almost never see a target come up, at least in Iraq, that would be a violation of the law. But what you do see, what there's a lot of sensitivity to is what journalists have transformed in the last ten years. I think in those meetings today, not so much -- I'd like to think it's because everyone is concerned about the rule of law and everything else but I think it's more of a concern that the commanders are very sensitive to the relationship between public support -- and it's very Clausewitzian when you think about it -- and the execution, the ability to accomplish the mission. So they want lawyers in there reviewing the targets.

And interestingly enough, about six weeks ago we had a big exercise called Blue Flag. And it's down at Hurlburt Field, Florida, and it's how we're going to fight wars in the future with the Air Operations Center when we have 2 or 3,000 sorties a day.

And coming out of that I asked one of the operators, the head of the Command Center, how many lawyers he thought he was going to need. What would the footprint be? And he said 9 to 12, because you need a lawyer in the Command Center operating 24 hours a day at the re-flow desk. That's where we do the dynamic re-targeting.

Say a guy's flying somewhere and he sees a target and that's how it gets approved in the Command Center so that you can do that dynamic re-targeting. We want to have a lawyer right there. So the world has really changed in that regard since I first came in.

I just want to make a couple of footnotes to some of the other things that were said. When we talk about the international criminal court, you know, here's my view on that. The problem that I have with it is in a democracy we're dependent upon volunteers.

And what is the relationship between somebody in the service and a democracy and the country at large? Are we going to ask young people to be subject to a court that doesn't meet minimum U.S. constitutional standards?

I mean, the way the court is we could not run a court martial based on those standards of evidence. I am not saying, however, I think that the international criminal court is constitutional. In other words, we could do it for some technical, legal reasons. But that's not to say that the international criminal courts meets the same legal standards as, for example, a U.S. court martial.

I think there's been a lot of discussion about the gap between the military and civilian society. So what extent do we want to tell those who volunteer to serve in democracies that they are unworthy of the same protections that other citizens have?

And once you disconnect this notion of citizen soldier in a democracy and you get this kind of what I call legionnaire armies, that's not such a good thing for democracies, especially in the 21st century. Just something to think about.

The Land Mine Convention. The one law we never talk about is the law of intended consequences. You know, nobody's in favor of a bomb that's going to blow a kid's arm off. But I was just out in Kuwait and I asked our young security police commander what weapon she would most want at As Salimiyah Air Base, which is about 34 clicks from the Iraqi border. And she's worried about Iraqi commandos. And she said, "Claymores." That's the one weapon she wants. I thought she was going to say .50 cal or a lab or something like that. But it was Claymores, because she knows that that's the most effective way to execute force protection.

But think about a couple of other things. In modern conflict there's a lot of dual-use facilities. Say if the enemy disperses his aircraft onto civilian fields when we're fighting these wars in the 21st century we've got to think about conflict termination. What kind of world are we going to have at the end of the conflict?

So the enemy disperses to this civilian airfield. What do you do with that? Well, there's a couple of things you can do. You can bomb the hell out of the thing or you could use a runway denial weapon like the gator system, which is anti-personnel mines and anti-tank mines. In other words, you drop them on the runway. They can't use the facility but at the same time the facility is not being blown to bits, so that after the war this huge infrastructure is not there.

And let me pose another hypothetical. How would you attack a weapons of mass destruction manufacturing facility? How would you attack a germ warfare manufacturing laboratory? Would you drop a big bomb on it so that stuff goes up into the atmosphere? Would you burn it?

You know, sometimes you think burning this stuff is going to -- you know, there's some biological stuff that unless you get really high temperatures it's still going to be around. But what you really want to do is deny the use of that facility. And let me tell you something. Putting a bunch of anti-personnel mines onto that facility is going to deny the enemy the use of the facility but at the same time not create the potential for environment catastrophe.

And it is true, as somebody mentioned, yeah the United States is spending $240 million to come up with alternatives to land mines. I mean, I don't know what they're going to come up with. I don't even know what they're looking at. But, you know, be careful what you pray for. You might get rid of the land mines but you might come up with some other kind of weapon which is even more horrific.

If somebody held a gun to my head and said, "Just give me a place to look," I'd start looking at weapons that affect people's psychology, either through light or sound or something like that. I mean, is it better to drive someone crazy or is it better to have a land mine, which if you use the U.S. type, which is self-neutralizing -- in other words, it neutralizes itself after a specific period. As you can see, it's just my personal opinion here. It's not necessarily -- Jim is keeling over in his chair over there.

Chemical and biological. You know, nobody is in favor of chemical and biological weapons. Well, let's think that one through. A lot of the reasons, a lot of the impediments to developing non-lethal technologies and using them in warfare is because they can. You know, can you use tear gas as a means and method of warfare? A lot of countries will tell you no.

Protocol One we've had some discussion about. And I think the Ambassador talked about reprisal. I think reprisal is an important thing that we need to have. We need to hold at risk in a catastrophic way those who choose to use biological weapons and so forth. But do you know what the problem is?

There's almost nothing under Protocol One that you can attack that you can't attack anyway because the prohibition is against civilian objects. You know, if you're going to do a reprisal, in other words, reprisal allows you to do something that would otherwise be illegal to stop the legality -- I mean, I want to hold at risk something, you know, civilian objects that you would not otherwise be allowed to attack but your specifically prohibited from doing that.

And let's talk about civilian objects. Jim was correct, you can't attack civilian objects. And let me give you a hypothetical because I don't know if it's true or not. Do you guys remember during the Kosovo war they were going to launch a cyber attack against Milosevic's bank account. I don't know if that was being contemplated, whether it was true or whatever.

But one of the issues that was discussed among the lawyers was, well that's personal property and you can't target personal property unless it's somehow connected directly with a military record. So now you're going to your commander, and this is where commanders think that we're a little bit wacky sometimes. Yeah, you can attack the leader. You can kill the leader if he's the commander in-chief of the Armed Forces if he's acting in that capacity. But damn, you can't go after his bank account because that's illegal under the law of war.

And so I'm almost thinking that we need to re-evaluate really what non-combatant immunity especially as it's applied to objects because, you know, let's value life. Let's value life above objects and let's hold at risk not every society. You can destroy every object they had. I served in Somalia. You could destroy every object they had and it wouldn't have made any difference. But there are certain societies that destroying objects, even civilian objects, will have a coercive effect on them. And I think that we may want to take a look at doing that.

You know, a lot of the law of armed conflict developed, especially non-combatant immunity, when there was a pretty clear separation between who are the combatants and who are the noncombatants. And it never meant to say, and it doesn't say, that noncombatants are morally innocent or necessarily not an integral part of the war-making ability especially in modern societies.

There's an interesting book out, almost as interesting as Crimes of War. Let me tell you guys something that's really good about this from my perspective as a guy in the field, people are actually doing to read this because it has pictures in it. We laugh but the reality is trying to get people, the busy, the soldier, the air man, even the senior guys to look at something -- it's short articles. It has pictures in it. My God, they might actually read it.

As you're writing your stuff make it readable, make it accessible. Don't write to each other. Make it accessible to the people and help us get out to the people who are actually executing the mission.

Anyway, I was getting back to this book, Soul of Battle, by Victor Davis Hanson. He's a classicist. And he looks at three classic battles where campaigns actually -- Sherman, Patton, and then Epaminondas. To make a long story short, what he says is -- he has interesting things to say about how democracies ought to wage war in the future looking back through history. And what he said is that each one of these regimes that was attacked -- the Spartans, the confederates or the Nazis -- there was a fundamentally evil regime. And the way that they were crushed is that the property was devastated. You know, Sherman’s march to the sea. Relatively few people were killed, but the property was utterly destroyed and it removed the ability to wage war.

And so I guess if I had one agenda is I think we need to re-look at the immunity that's currently afforded property. And there's obviously some limitations. We have to put in there no religious facilities and so forth. But if we can hold at risk things over people we ought to do it. And along that line looking at -- somebody mentioned lasers, blinding lasers.

You know, forgive me, but I don't understand why the international humanitarian law would count -- it somehow seems to say to me that it's better to be dead than blind. Blinding lasers have great military utility, especially against the kinds of people we're going to be fighting in the 21st century, because if you can blind an adversary it's almost better than killing them because it creates a burden on his logistics system. It creates a psychological problem with his co-soldiers. But the guy is still alive. And, you know, if the alternative is killing him and killing everyone then I think that we ought to rethink the consequences of some of the things that we have to say.

Well, I think I've done enough damage for one meeting. This is just my view, and hopefully it will stimulate some discussion.

Charles Dunlap, Bio.
Staff Judge Advocate, U.S. Strategic Command, Offutt Air Force Base, Nebraska.

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