2. Reemphasize that the infliction of collateral damage is not a per se violation of international law.
JAs during Operation Allied Force were sensitive to the fact that some participants in the target review process might misunderstand the legal implications of collateral damage. In other words, the JAs wanted to ensure there was no misperception that the infliction of collateral damage was a per se violation of international law, and that the collateral damage analysis did not come at the expense of forgetting the military necessity analysis.[25]
The relevant concept of international law is the principle of proportionality. Proportionality is essentially a balancing test: the "loss of life and damage to property incidental to attacks [also known as collateral damage] must not be excessive in relation to the concrete and direct military advantage expected to be gained."[26] It follows that nothing stops a commander from placing a high premium on minimizing collateral damage.
However, as the USEUCOM JAs point out, a necessary step in the equation is articulating the military advantage to be gained.[27] Disapproving targets based solely on collateral damage assessments without a discussion of military necessity raises the suspicion that an overly restrictive legal standard is being applied. JAs can serve a critical role by emphasizing to staffs and commanders that the infliction of collateral damage is only one side of the proportionality balancing test.
3. Understand the ongoing debate over targeting the will of the enemy.[28]
The primary goal of Operation Allied Force was to compel Milosevic to capitulate to NATO's terms.[29] Accordingly, the air campaign was dual pronged: 1) destroy Serbia's military capability, and 2) break the will of Milosevic and the Serb population.[30] Many of the targets that had the effect of satisfying the latter prong highlight the current debate over the lawfulness of targeting the will of the enemy.
The latest — and most pertinent to this discussion — effort to codify and reflect the law of targeting is Article 52(2) of Protocol I to the Geneva Conventions (GP I).[31] The Article states:
Attacks shall be limited strictly to military objectives. In so far as objectives are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.[32]
The U.S. has not ratified GP I, but it does view Article 52(2) as an accurate statement of customary international law.[33] There is some disagreement, however — not only between states,[34] but within U.S. legal circles[35] — over what exactly Article 52(2) encompasses. The plain language meaning of the Article is not settled, the dispute centering on the interpretation of what constitutes "a contribution to military action" and what provides a "military advantage."
During Operation Allied Force, it is a matter of public record that, in addition to strictly military targets, NATO aircraft targeted "dual-purpose" objects—that is, targets whose destruction had the simultaneous effect of damaging the enemy's military capability and dampening the morale of the civilian leadership and population. Such dual-purpose targets included bridges, highways, electrical power installations, and railroads. Few would question the lawfulness of striking these targets under the Article 52(2) standard. [36]
The selection of other targets, however, has spawned debate in the U.S. and international legal community. For example, NATO aircraft targeted television stations.[37] They also dropped dispensers of specially treated wire over electrical power sources designed to cut off power to seventy percent of the Serbian population for a period of roughly twenty-four hours.[38] Striking these targets undoubtedly contributed to the NATO goal of breaking the enemy's will to fight. However, some argue that these targets may not have been sufficiently military in nature and, accordingly, may have run afoul of a restrictive interpretation of Article 52(2).[39] JAs should understand that varying interpretations of Article 52(2) exist, and familiarize themselves with the terms of this debate.[40]
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