THE AIR FORCE LAW REVIEW

THE AIR FORCE

LAW REVIEW

ARTICLES

COLLATERAL DAMAGE ON THE 21

CENTURY BATTLEFIELD: ENEMY EXPLOITATION OF THE LAW

OF ARMED CONFLICT, AND THE STRUGGLE FOR A MORAL HIGH GROUND

Major Jefferson D. Reynolds

THE AIR BRIDGE DENIAL PROGRAM AND THE SHOOTDOWN OF CIVIL AIRCRAFT UNDER

INTERNATIONAL LAW

Major Darren C. Huskisson, USAF

DOING BUSINESS WITH THE DEVIL: THE CHALLENGES OF PROSECUTING CORPORATE OFFICIALS

WHOSE BUSINESS TRANSACTIONS FACILITATE WAR CRIMES AND CRIMES AGAINST HUMANITY

Major Kyle R. Jacobson

STATE MILITIAS AND THE UNITED STATES: CHANGED RESPONSIBILITIES FOR A NEW ERA

Mr. John F. Romano

FIVE QUESTIONS ABOUT THE MILITARY JUSTICE SYSTEM

Honorable H. F. “Sparky” Gierke

STATE PROPERTY TAX IMPLICATIONS FOR MILITARY PRIVATIZED FAMILY HOUSING PROGRAM

Mr. Phillip Morrison

WHAT HAPPENED TO THE FEDERAL ACQUISITION STREAMLINING ACT’S PROTEST RESTRICTIONS

ON TASK AND DELIVERY ORDERS?

RECENT DEVELOPMENTS IN PROTESTS (AND PROTESTS DISGUISED AS CONTRACT DISPUTES)

RELATED TO ISSUANCE OF TASK AND DELIVERY ORDERS AND PROPOSALS TO IMPROVE AN

IMPAIRED SYSTEM

MAJOR SEAN A. SABIN, USAF

VOLUME 56 2005

THE AIR FORCE

LAW REVIEW

VOL. 56 2005

ARTICLES

Collateral Damage on the 21

Century Battlefield: Enemy Exploitation of the

Law of Armed Conflict, and the Struggle for a Moral High Ground................. 1

Major Jefferson D. Reynolds

The Air Bridge Denial Program and the Shootdown of Civil Aircraft Under

International Law............................................................................................ 109

Major Darren C. Huskisson

Doing Business With the Devil: The Challenges of Prosecuting Corporate

Officials Whose Business Transactions Facilitate War Crimes and Crimes

Against Humanity........................................................................................... 167

Major Kyle R. Jacobson

State Militias and the United States: Changed Responsibilities For

a New Era ...................................................................................................... 233

Mr. John F. Romano

Five Questions About the Military Justice System ........................................ 249

Honorable H. F. “Sparky” Gierke

State Property Tax Implications for Military Privatized Family Housing

Program .......................................................................................................... 261

Mr. Phillip Morrison

What Happened to the Federal Acquisition Streamlining Act’s Protest

Restrictions on Task and Delivery Orders?

Recent Developments in Protests (and Protests Disguised as Contract

Disputes) Related to the Issuance of Task and Delivery Orders and Proposals

to Improve an Impaired System ..................................................................... 283

Major Sean A. Sabin

iii

THE AIR FORCE LAW REVIEW

MAJOR GENERAL JACK L. RIVES, USAF

The Deputy Judge Advocate General of the Air Force

Performing Duties of The Judge Advocate General

OLONEL MICHAEL D. MURPHY, USAF

Commandant, Air Force Judge Advocate General School

AJOR MATTHEW D. VAN DALEN, OF CALIFORNIA

Editor, The Air Force Law Review

AJOR EDWARD D. GRAY, USAF, OF TENNESSEE

Editor Emeritus, The Air Force Law Review

R. GRAHAM E. “STEVE” STEVENS

Managing Editor

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COLLATERAL DAMAGE ON THE 21ST

CENTURY BATTLEFIELD: ENEMY

EXPLOITATION OF THE LAW OF ARMED

CONFLICT, AND THE STRUGGLE FOR A

MORAL HIGH GROUND

JEFFERSON D. REYNOLDS

∗

I. INTRODUCTION

“Whoso obeyeth Allah and the messenger, they are with those

unto whom Allah hath shown favor, of the prophets and the saints

and the martyrs and the righteous. The best of company are they.”

The Koran, Sūrah IV, Ayah 69

Subordinate only to a state’s decision to wage war, effective targeting of

the adversary is the most important and decisive part of successful warfare.

Target selection requires military planners and strategists to develop tactical,

operational and strategic target sets that destroy the adversary’s centers of

gravity to compel capitulation, surrender or defeat. Although collateral

damage

has historically been an important factor in the targeting cycle, its

∗

Jefferson D. Reynolds is an Environmental Counsel to Kirtland Air Force Base in

Albuquerque, New Mexico, and was temporarily assigned as a Research Fellow at the RAND

Corporation in Santa Monica, California where this study was produced. He is a Major in the

Air Force Reserve, J.D. (1990) Hamline University, LL.M. (Environment)(1995) George

Washington University. The views expressed in this article are those of the author and do not

reflect an official position of the RAND Corporation, Department of the Air Force,

Department of Defense or any other U.S. government agency. The author expresses his thanks

to Brian Rosen, J.D. and RAND Ph.D. candidate, for his research assistance and contribution

of parts of this study focused on the International Criminal Court. The author also expresses

his thanks to Mr. Darrell Phillips for comments on a previous draft.

The U.S. Department of Defense [hereinafter DOD] defines collateral damage as,

“unintentional or incidental injury or damage to persons or objects that would not be lawful

military targets in the circumstances ruling at the time. Such damage is not unlawful so long

as it is not excessive in light of the overall military advantage anticipated from the attack.”

U.S.

DEP’T OF DEFENST, DEP’T OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED

TERMS, JP1-02, at 93 (2001); CHAIRMAN OF THE JOINT CHIEFS OF STAFF JOINT METHODOLOGY

FOR

ESTIMATING COLLATERAL DAMAGE AND CASUALTIES FOR CONVENTIONAL WEAPONS:

PRECISION, UNGUIDED, AND CLUSTER, CJCSM 3160.01A (Draft), at A-4 (Feb., 2004). Using a

different definition than DOD, U.S. Central Command [hereinafter CENTCOM] incorporates

environmental damage into their definition. Collateral damage is defined as “unintended

physical damage to any non-combatant person(s), property, or environment(s) occurring

Collateral Damage on 21

Century Battlefield-1

prominence and visibility have grown as battlefield tactics become more

antagonistic and less aligned with humanitarian interests and the law of armed

conflict (LOAC). The avoidance of collateral damage can even be

determinative for nations like the United States (U.S.) who value LOAC.

decision based on avoidance becomes problematic where key objectives cannot

be targeted because of an adversary’s invitation or fabrication of collateral

damage to discredit operations. Any targeting decision must be premised on

LOAC; however, a decision based on avoidance must carefully evaluate the

loss of initiative and tactical superiority, the increasing and persistent nature of

these events in the context of a well organized strategy, and the effect on

tactical, operational and strategic objectives. Adversaries will improve

methods to effectuate collateral damage in an effort to complicate attack

planning, promote disinformation campaigns, deter attack, exploit

humanitarian interests and, ultimately, improve survivability.

This study illustrates a rising trend in the frequency and severity of

adversary violations of LOAC and humanitarian principles to gain a strategic

advantage. A proposed solution to this problem requires attacking target sets

that are prohibited according to some humanitarian interest groups, improving

awareness and understanding of collateral damage, promoting the application

of emerging technology, including non-lethal technology, and the use of

aggressive information campaigns designed to expose deceptive reports of

incidental to military operations.” CENTCOM OPLAN 1003V, COLLATERAL DAMAGE

ESTIMATION POLICY & METHODOLOGY 6 (Table 1)(Mar., 2003).

See William M. Arkin, Fear of Civilian Deaths May Have Undermined Effort, L.A. TIMES,

Jan. 16, 2002, at A(1)1. See also David A. Denny, U.S. Air Force Uses New Tools to

Minimize Civilian Casualties: Avoiding Unintentional Damage Figures Into Targeting, U.S.

EP’T OF STATE WASH. FILE, Mar. 18, 2003, at 5. Brig. Gen. Charles Dunlap, Staff Judge

Advocate for Headquarters, Air Combat Command, U.S. Air Force [hereinafter USAF], says

that the Law of Armed Conflict [hereinafter LOAC], “is becoming a (and sometimes ‘the’) key

factor influencing the conduct of combat air operations.” Id. In one highly reported incident,

concerns about collateral damage restrained an attack on Mullah Mohammed Omar, the

Taliban leader who was found fleeing Kabul, Afghanistan in October, 2001. An un-manned

aerial vehicle [hereinafter UAV] operated by the Central Intelligence Agency detected Omar

and was prepared to engage with two Hellfire laser-guided missiles. The UAV tracked Omar

to a building situated among civilian homes. The agency needed CENTCOM approval to

attack. Rather than give immediate approval to directly target Omar, Gen. Tommy R. Franks,

CENTCOM Commander, and his legal advisors authorized the agency to fire a missile in front

of the building to see who came out. Omar safely departed from the rear of the building after

the attack. Seymour M. Hersh, King’s Ransom, N

EW YORKER, Oct. 22, 2001, at 38. Lt. Gen.

Michael Short, Commander of Allied Air Forces for OPERATION ALLIED FORCE

(Kosovo) believes the concern about collateral damage during the conflict placed coalition

pilots at risk. “Collateral damage drove us to an extraordinary degree . . . . The reaction to

every incident, nationally and internationally was extraordinary and handcuffed.” Lt. Gen.

Short told the Senate Armed Services Committee that a lesson he took from the experience is

that political leaders need “to let us do our jobs. The restrictions placed on us as a result of

collateral damage made us predictable and put our crews at risk.” Sheila Foote, Commander

Hits Excessive Focus on Collateral Damage, D

EF. DAILY, Oct. 25, 1999, at vol. 204(16).

2-The Air Force Law Review

collateral damage. The study is divided into six sections. Part II provides a

parallel review of U.S. targeting strategy, collateral damage, civilian immunity,

and the development of LOAC. Although a number of significant incidents of

collateral damage are reviewed, this section is not intended to be exhaustive for

each conflict studied. Rather, this section illustrates particular events,

strategies and principles that contribute to an analysis of LOAC and collateral

damage. Part III discusses the application of LOAC to different types of

adversaries. With an emphasis on the International Criminal Court, Part IV

describes significant problems associated with the prosecution of crimes

involving collateral damage. Part V illustrates that violations of LOAC and

strategies provoking collateral damage provide the greatest assurance of

survival and strategic success for adversaries. Part VI examines specific

targeting principles of LOAC, and demonstrates that attempts to reduce the

number of permissible target sets may result in greater danger to the civilian

population. This section also examines methods to effectively counter an

adversary’s attempts to discredit operations where collateral damage occurs.

II. THE HISTORICAL DEVELOPMENT OF TARGETING

STRATEGY, CIVILIAN IMMUNITY, AND CONCEALMENT

WARFARE

“War is an act of force to compel our enemy to do our will . . . .

[A]ttached to force are certain self-imposed, imperceptible

limitations hardly worth mentioning, known as international law

and custom, but they scarcely weaken it.”

Carl von Clausewitz

In the early 19th century, Clausewitz surmised that warfare was a “true

political instrument” to achieve the political objectives of the state waging

war.

Although Clausewitz may have understated the effect of international

law and custom in his conclusions, he recognized that the social condition of

the states at war and their relationship to one another gave rise to some

restraint.

The concept of restraint in warfare did not necessarily evolve from

a philosophy of compassion and progressive ideology. More than likely, it

evolved out of the necessity to spare resources and labor as a reward for

conquest. Virtually all cultures throughout history have exercised restraint and

CARL VON CLAUSEWITZ, ON WAR 75 (Michael Howare & Peter Paret eds. and trans.,

Princeton University Press 1984) (1832).

Id. at 87.

Id. at 76.

Collateral Damage on 21

Century Battlefield-3

rules of engagement at some level.

Even before the fifth century B.C., Greek

combatants adopted normative rules of engagement referred to as the common

customs of Hellenes or koina nomima, that specifically referenced the

immunity of civilians in war.

Appreciated for their value in new regimes,

labor and resources were often spared for their economic benefit.

Civilian

immunity is a universally accepted principle in the international community,

but the degree of compliance has varied drastically since the fifth century B.C.

For example, Clausewitz advocated the targeting of civilian populations

because it provided psychological and political advantages to the larger

strategy of defeating the will and morale of the adversary.

Although direct

targeting of civilian populations was widely exercised in the 20th century,

prohibition of this practice pursuant to custom and LOAC is now more widely

observed.

The amplified sensitivity to civilian casualties and other collateral

damage, combined with increasing pressure from humanitarian interest groups

to categorically exempt certain civilian object target sets from attack, should

concern military strategists because of the rising incidence of warfare

involving the use of the civilian population for shielding, sanctuary and

deception. These asymmetric methods of warfare are described in this study as

“concealment warfare.” Concealment warfare promotes target aversion and

See generally MICHAEL HOWARD, GEROGE J. ANDREOPOULOS AND MARK R. SHULMAN, THE

LAWS OF WAR: CONSTRAINTS ON WARFARE IN THE WESTERN WORLD 1-12 (1994).

See HOWARD ET AL., supra note 6, at 13, referencing THUCYDIDES 3.59.I, 6.4.56; cf.

URIPIDES HERACLIDAE 1010. According to Thucydides, early Greek rules governing

interstate conflict included: 1) war should be officially declared before the commencement of

hostilities and treaties; 2) sacred truces, especially those declared for the celebration of the

Olympic games should be observed; 3) hostilities against sacred places and people under the

protection of the gods should be observed; 4) the dead of the enemy should be returned when

asked; 5) prisoners of war should be offered for ransom instead of summarily executed; 6) the

surrender of enemy forces should not result in punishment; 7) noncombatants should not be the

primary target of attack; 8) use of non-hoplite arms (nontraditional arms of the Greeks) should

be limited; and 9) pursuit of defeated and retreating opponents should be limited in duration.

Id. at 13.

See generally CLAUSEWITZ, supra note 3, at 89. Clausewitz’ “remarkable trinity of war”

suggests an enemy’s populace, government and military must be carefully balanced to

successfully wage war. As a result, any element or combination thereof is an appropriate

target in the context of attacking the will of the enemy. Id. See infra note 348 and

accompanying text for Colonel John A Warden’s theory of targeting strategic rings.

See Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the

Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec.

12, 1977, 1125 U.N.T.S. 3, arts. 51-52 [hereinafter Protocol I]; Protocol Additional to the

Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-

International Armed Conflicts (Protocol II), opened for signature Dec. 12, 1977, 1125

U.N.T.S. 609, Part IV [hereinafter Protocol II]. Although the U.S. has not ratified Protocols I

or II, they are recognized as customary international law. Michael J. Matheson, Session I; The

United States’ Position on the Relation of Customary International Law to the 1977 Protocols

Additional to the 1949 Geneva Conventions, 2 AM. U. J. I

NT’L L. & POL’Y 419, 420 (1987).

4-The Air Force Law Review

protracted conflict that potentially results in a higher incidence of both military

and civilian casualties.

A. The Early Philosophy of Civilian Immunity

Western warfare has been largely defined by Christian ethics developed

between the Middle Ages and the Renaissance.

St. Augustine,

Thomas

Aquinas,

Francisco Suarez, Alberico Gentili, Francisco de Vitoria,

and

later Hugo Grotius and Emerich de Vattel

were initially occupied with

defining the just war (jus ad bellum), and determining under what conditions

war could be declared by a state.

One of their collective premises, that war

can only be declared by a legitimate authority for reparations or restoration of

See generally HOWARD ET AL., supra note 6, at 27-40.

St. Augustine of Hippo was born in 354 at Thagaste, an inland city of the Roman province

of Africa. He formed his principles of warfare from the Old Testament and religious leaders

such as Abraham, Moses, Joshua, Samson, Gideon, David and Judas Maccabeus. C

OLM

MCKEOG, INNOCENT CIVILIANS: THE MORALITY OF KILLING IN WAR 21 (2002). St. Augustine

established a punitive model for warfare, making no distinctions between combatants and

civilians. No distinction was required under this model because there is no moral difference

between the two. St. Augustine’s moral emphasis on the guilt of the enemy population could

justify violence against it. The premise of guilt as justification for war was also justification to

protect those who were not guilty. Id. at 28.

While Aquinas’ somewhat evolved opinion of warfare did not approve of the killing of

innocent people, he did not absolutely prohibit it. Id. at 62-63.

A progressive theologian for the era, Francisco De Vitoria made a large step forward in the

protection of civilians. He advocated it would violate natural law to kill innocent women,

children, clerics, religious clergy, foreign travelers, guests of the country, agricultural workers

and the civilian population. Id. at 88, citing F

RANCISCO DE VITORIA, DE JURE BELLI, in J.B.

SCOTT, THE CLASSICS OF INTERNATIONAL LAW 163-87 (1917), and FRANCISCO DE VITORIA,

POLITICAL WRITINGS 315 (Anthony Pagden & Jeremy Lawrence ed. 1991). Only those who

bear arms or engage in fighting were presumed guilty in the absence of evidence to the

contrary. M

CKEOG, supra note 12, at 87. He remarked that it was lawful to attack civilians

“with full knowledge of what one is doing, if this is an accidental effect; for example, during

the justified storming of a fortress or city, where one knows there are many innocent people.”

FRANCISCO DE VITORIA, POLITICAL WRITINGS 315 (Anthony Pagden & Jeremy Lawrence ed.

1991).

Both Grotius and Vattell placed great emphasis on civilian immunity in war. However,

both also recognized that civilian casualties were acceptable as an unintended and unforeseen

consequence of an otherwise legitimate military objective. MCKEOG, supra note 12, at 116-

18.

Id. at 2-3. Although jus ad bellum as a concept contributes greatly to the subject of just

war, it is largely inapplicable to modern interpretation. Principles of jus ad bellum are codified

by the United Nations [hereinafter U.N.] charter, authorizing the use of force only in the

protection of collective security or self-defense. U

NITED NATIONS CHARTER, arts. 2, 39 and 51

(1945).

Collateral Damage on 21

Century Battlefield-5

something lost, is still well recognized in the international community.

After

the establishment of principles of jus ad bellum, attention was turned to the just

method of war (jus in bello). Presently receiving the greatest emphasis of

study, the methods and strategies of warfare have been the subject of wide

debate for centuries, and will likely be central to the discussion of law and war

so long as military strategists are driven by tactical creativity and the

development of new technology. Notwithstanding the dynamic nature of the

modern study of the subject, even the earliest scholars generally recognized

that civilians should not be deliberately attacked. However, their incidental

targeting was acceptable as a by-product of an attack on a legitimate military

objective.

In addition, it was customary that the amount of force be

proportionate to the objective achieved.

B. Early Codification of Civilian Immunity

Although the customs of LOAC were recognized in 15th–17th century

America,

it wasn’t until the height of the Civil War that the U.S. would

codify the protection of civilians. The year 1863 most clearly marks the

division between the era of customary LOAC and codified LOAC. In that

year, the U.S. would adopt its first comprehensive code for the conduct of land

warfare in Army General Order No. 100, Instructions for the Government of

Armies of the United States in the Field, authored by Dr. Francis Lieber of

Columbia College. Commonly known as the Lieber Code, the U.S. developed

the rules in response to alarming violations of customary laws of war during

the Civil War that amounted to domestic terrorism.

These events could not

MCKEOG, supra note 12, at 2-3, 116-18.

Id.

Early American settlers from the 15th through the 17th centuries derived their customs of

warfare predominantly from the experience of England. However, exceptions to custom were

common and acceptable when engaging Native Americans, who were viewed as pagan,

heathen and barbaric by European standards. H

OWARD ET AL., supra note 6, at 59–61.

On August 21, 1863, guerrilla leader William Clarke Quantrill and 450 men from Missouri

attacked Lawrence, Kansas. After looting and burning one fourth of the homes and businesses,

the raiders proceeded to kill 150 unarmed men determined large enough to carry a weapon. In

response to the event, Senator James Lane and General Thomas Ewing drafted orders for the

forced evacuation of inhabitants from four nearby Missouri Counties. Union troops then

surveyed the area for the possessions of the Lawrence citizens. If any were found, the house

containing them was looted and burned in turn. Over 20,000 homes were destroyed as a result

of the Union operation. CHARLES R. MINK, GENERAL ORDER 11: THE FORCED EVACUATION

CIVILIANS DURING THE CIVIL WAR, Military Affairs, vol. XXXV, no. 1, pt. 2, 132–36

(1970). During the Civil War, President Abraham Lincoln and Secretary of War Edwin

Stanton were concerned about reports of pillaging and plundering of private property, torching

of farms, estates and entire communities. Further, the divergent conduct of officers respectful

6-The Air Force Law Review

be adequately resolved with traditional state and federal law. The Lieber Code

specifically prohibited the targeting of civilians and civilian objects. It also

recognized that collateral damage should be avoided, but was acceptable if it

of customary rules to exempt civilians from warfare from those officers who did not recognize

the custom made a codified set of rules necessary. D

ONALD A. WELLS, THE LAWS OF LAND

WARFARE: A GUIDE TO THE U.S. ARMY MANUALS 2-3 (1992). The Lieber code provides in

pertinent part:

Art. 14. Military necessity, as understood by modern civilized nations,

consists in the necessity of those measures which are indispensable for

securing the ends of the war, and which are lawful according to the modern

law and usages of war.

Art. 15. Military necessity admits of all direct destruction of life or limb of

armed enemies, and of other persons whose destruction is incidentally

unavoidable in the armed contests of the war . . . it allows of all destruction

of property, and obstruction of the ways and channels of traffic, travel, or

communication, and of all withholding of sustenance or means of life from

the enemy; of the appropriation of whatever an enemy’s country affords

necessary for the subsistence and safety of the army, and of such deception

as does not involve the breaking of good faith either positively pledged,

regarding agreements entered into during the war, or supposed by the

modern law of war to exist.

Art. 16. Military necessity does not admit of cruelty - that is, the infliction of

suffering for the sake of suffering or for revenge, nor of maiming or

wounding except in fight, nor of torture to extort confessions. It does not

admit of the use of poison in any way, nor of the wanton devastation of a

district. It admits of deception, but disclaims acts of perfidy; and, in general,

military necessity does not include any act of hostility which makes the

return to peace unnecessarily difficult.

Art. 19. Commanders, whenever admissible, inform the enemy of their

intention to bombard a place, so that the noncombatants, and especially the

women and children, may be removed before the bombardment commences.

But it is no infraction of the common law of war to omit thus to inform the

enemy. Surprise may be a necessity.

Art. 20. Public war is a state of armed hostility between sovereign nations or

governments. It is a law and requisite of civilized existence that men live in

political, continuous societies, forming organized units, called states or

nations, whose constituents bear, enjoy, suffer, advance and retrograde

together, in peace and in war.

Art. 21. The citizen or native of a hostile country is thus an enemy, as one of

the constituents of the hostile state or nation, and as such is subjected to the

hardships of the war.

Art. 22. Nevertheless . . . so has likewise steadily advanced, especially in

war on land, the distinction between the private individual belonging to a

hostile country and the hostile country itself, with its men in arms. The

principle has been more and more acknowledged that the unarmed citizen is

to be spared in person, property, and honor as much as the exigencies of war

will admit.

Headquarters, Dep’t of Army, Gen. Orders No. 100, Instructions for the

Government of Armies of the United States in the Field (1863), available at

http://fletcher.tufts.edu/multi/texts/historical/LIEBER-CODE.txt (last visited

Mar. 29, 2003).

Collateral Damage on 21

Century Battlefield-7

was the result of an attack on a legitimate military objective.

The Lieber

Code articulates basic principles of the law of war, including the principle of

military necessity in Articles 14 and 15. “Military necessity [consists of] . . .

those measures which are indispensable for securing the ends of the war, and

which are lawful according to the modern law and usages of war.” Further,

“Military necessity admits of all direction of destruction of life or limb of

armed enemies, and of other persons whose destruction is incidentally

unavoidable . . . .”

Lieber defined the principle of distinction when he stated,

“the unarmed citizen is to be spared in person, property, and honor as much as

the exigencies of war will admit.”

Finally, Lieber explained that even

though war is naturally between sovereign states, citizens may be categorized

as the enemy by virtue of their constituency, and therefore endure both the

hardships and benefits of war.

The Lieber Code represented the prevailing

custom of the time—although civilians should not be subject to direct attack,

they were not categorically immune. Developing and adopting the first manual

for soldiers on the laws of war, the U.S. had the remarkable distinction of

creating a cornerstone for the law of war with the Lieber Code. The manual

was adopted by Germany, France and Great Britain, and inspired codification

of the law and custom of war at the Brussels Convention of 1874 and at the

Hague Congresses in 1899 and 1907.

The next significant event in the development of LOAC occurred in 1868

with the Declaration of St. Petersburg. Although the Declaration adopted the

principle of distinction, it lacked the clarity offered by the Lieber Code. “The

only legitimate object which States should endeavor to accomplish during war

Id.

Id. at arts. 14–15.

Id. at art. 22.

Id. at art. 21.

WELLS, supra note 21, at 5. See Convention (II) with Respect to the Laws and Customs of

War on Land, opened for signature Jul. 29, 1899, 32 Stat. 1803, reprinted in D

IETRICH

SCHINDLER & JIRI TOMAN, THE LAWS OF ARMED CONFLICTS 63 (3d ed. 1988); Convention

(IV) Respecting the Laws and Customs of War on Land, opened for signature Oct. 18, 1907,

36 Stat. 2277, reprinted in R

EISMAN & ANTONIOU at 63. “The attack or bombardment, by

whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited

. . . . The officer in command of an attacking force must, before commencing a bombardment,

except in cases of assault, do all in his power to warn the authorities.” Id. at arts. 25–26.

Similar rules are applicable to naval forces. Undefended ports are generally forbidden from

attack except for facilities that are “military works, military or naval establishments, depots of

arms or war materiel, workshops or plants which could be utilized for the needs of the hostile

fleet or army.” If the port is attacked, the commanding officer of the attack must exercise

restraint to spare civilian life and property, and give notice of the attack if military

circumstances permit. Convention (IX) Concerning Bombardment by Naval Forces in Time of

War, arts. 1–6, Oct. 18, 1907, 36 Stat. 2351, reprinted in W.

MICHAEL RESIMAN & CHRIS T.

ANTONIOU, THE LAWS OF WAR: A COMPREHENSIVE COLLECTION OF PRIMARY DOCUMENTS ON

INTERNATIONAL LAWS GOVERNING ARMED CONFLICT 82 (1994).

8-The Air Force Law Review

is to weaken the military forces of the enemy.”

The Declaration offered little

more than a conceptual statement that war should be concentrated on military

forces rather than civilians.

At the Hague Conference of May 1899, delegates from the international

community were already envisioning the potential catastrophic consequences

of air power to both combatants and civilians. Although limited to balloon

reconnaissance at the time, there was growing awareness of the destructive

nature of aerial combat operations like bombardment.

Consequently, the

delegates adopted a five-year ban on “the launching of projectiles and

explosives from balloons, or by other new methods of a similar nature.”

There was obvious concern for the decisive capabilities aerial weapons offered

in warfare; but in the end, the members of the 1899 conference objected to

placing any further limitations on the use of air power beyond the short term it

would take to further explore its employment in warfare.

The Second Hague Peace Conference of 1907 emphasized civilian

immunity in war through conventions concerning land and sea forces. Article

25 of the 1899 Convention on Land Warfare was amended to include

bombardment from the air. The amendment states that the attack of

undefended towns, villages, dwellings or buildings is prohibited.

The same

clause was introduced in Article 1 of the 1907 Hague Convention Concerning

Bombardment by Naval Forces in Time of War.

Undefended ports are

generally forbidden from attack except for facilities that are “military works,

Declaration of St. Petersburg Renouncing the Use, in Time of War, of Explosive Projectiles

Under 400 Grams Weight, Dec. 11, 1868, 138 Consol. T.S. 297 (1868–9), reprinted in

EISMAN & ANTONIOU, supra note 26, at 35.

THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES, THE CONFERENCE OF 1899, 354

(James Brown Scott ed. 1920). In support of the limited ban, Captain William Crozier offered:

We are without experience in the use of arms whose employment we propose to prohibit

forever. Granting that practical means of using balloons can be invented, who can say that such

an invention will not be of a kind to make its use possible at a critical point on the field of

battle, at a critical moment of the conflict, under conditions so defined and concentrated that it

would decide the victory and thus partake of the quality possessed by all perfected arms of

localizing at important points the destruction of life and property and of sparing the sufferings

of all who are not at the precise spot where the result is decided. Such use tends to diminish the

evils of war and to support the humanitarian considerations which we have in view.

Declaration (IV, 1) to Prohibit for the Term of Five Years the Launching of Projectiles and

Explosives from Balloons, and Other Methods of a Similar Nature, Jul. 29, 1899, 32 Stat.

1839, reprinted in SCHINDLER & TOMAN, supra note 26, at 202–03.

The first aerial bombardment occurred on October 11, 1911, when Italy bombed Turkish

troops and indigenous tribesman in Libya during the Italian-Turkish War. M

CKEOG, supra

note 12, at 125 (2002).

Convention (IV) Respecting the Laws and Customs of War on Land, supra note 26, at art.

25, reprinted in R

EISMAN & ANTONIOU, supra note 26, at 63.

Convention (IX) Concerning Bombardment by Naval Forces in Time of War, arts. 1–6,

supra note 26, reprinted in R

EISMAN & ANTONIOU, supra note 26, at 82.

Collateral Damage on 21

Century Battlefield-9

military or naval establishments, depots of arms or war materiel, workshops or

plants which could be utilized for the needs of the hostile fleet or army.”

If a

port is attacked, the commanding officer of the strike must spare civilian life

and property, and give notice of the attack if circumstances permit.

similar rule to prohibit ground attack of “towns, villages, dwellings, or

buildings which are undefended” was also introduced.

Recognizing that

civilian facilities often serve a military purpose, the conventions were a

catalyst to the development of requirements to distinguish the military

significance of a target from its civilian purpose. The provision also illustrates

early recognition of “dual-use” facilities providing services benefiting both the

military and civilian populations.

C. World War I: Total War and Targeting Civilian Morale

Customary law and the Hague Conventions of 1899 and 1907 were the

only existing legal frameworks for instruction on targeting at the beginning of

WW I in 1914. Bombing strategy was tied to the basic custom that only

military objectives were legitimate targets and indiscriminate attacks were

prohibited.

The definition of military objective at the time, however,

included more than military forces or military objects. The concept of total

war included virtually anything supporting the war effort, inclusive of

infrastructure, industry, labor and the will of a state’s population. Targeting

civilians was an acceptable strategy insofar as it affected the morale of the

enemy population as a military objective.

The collateral damage that

resulted from injuring and killing civilians influenced the temperament of the

population, resulting in failing support of the war effort and pressure on the

respective leadership to capitulate.

Bombing campaigns were naturally

indiscriminate because the practice of bombardment at the time was less

precise due to limited technology, the high elevation of attack, environmental

Id.

Convention (IV) Respecting the Laws and Customs of War on Land, supra note 26, at arts.

25–26, reprinted in R

EISMAN & ANTONIOU, supra note 26, at 63.

J.M. SPAIGHT, AIR POWER AND WAR RIGHTS 228–29 (3d ed. 1947).

LEE KENNETT, THE FIRST AIR WAR 1914–1918 2 (1991). In 1917, Germany conducted an

extensive bombing campaign against England’s military and defense industry to degrade

British morale. England responded with attacks on military targets and “densely populated

industrial centers” in an effort to destroy German morale. Both states intended to degrade

morale among the civilian population to weaken support for the conflict. Richard J. Overy,

Strategic Bombardment Before 1939: Doctrine, Planning, and Operations, in CASE STUDIES IN

STRATEGIC BOMBARDMENT 20–21, 55 (R. Cargill Hall ed. 1998).

KENNETT, supra note 37, at 44–45.

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conditions, faulty intelligence, limited training and lack of experience.

Although there may not have been any specific intention to bomb

indiscriminately, it was an acceptable outcome. The imprecise nature of

targeting at the time, combined with strategic bombardment, provided an

effective method to achieve the advantage of defeating enemy morale.

The concept of defeating enemy morale by attacking the civilian

population had appeal to leading strategists of the time. Italian strategist

Giulio Douhet argued that the resistance of the adversary could be defeated

“more easily, faster, and more economically, and with less bloodshed by

directly attacking that resistance at its weakest point.”

Douhet identified the

civilian population as the weakest center of gravity in total war.

Although

less severe in tone, Air Marshal Hugh Trenchard, Royal Air Force

Commander, defined the military objective as any objective that “will

contribute effectively towards the destruction of the enemy’s means of

resistance and the lowering of his determination to fight.”

These views

appropriately reflected the importance of the civilian population in determining

a state’s psychological will to participate in war, but failed to observe early

principles of distinction and humanity that exempted a civilian population from

attack.

D. World War II: Total War and the Scale of Collateral Damage

Although an attempt was made at a Hague conference in 1923,

and again

in Amsterdam in 1938

to develop a coherent, detailed set of rules for

SPAIGHT, supra note 36, at 228–29.

GIULIO DOUHET, THE COMMAND OF THE AIR 196 (Dino Ferrari trans., 1942).

Id.

C. WEBSTER & N. FRANKLAND, THE STRATEGIC AIR OFFENSIVE AGAINST GERMANY 1939-

45 74 (1961).

See supra text accompanying note 26.

Hague Rules of Aerial Warfare, Feb. 19, 1923, 32 A.J.I.L. (Supp.) 12 (1938), reprinted in

CHINDLER & TOMAN, supra note 26, at 83–84:

Art. 22. Aerial bombardment for the purpose of terrorizing the civilian

population, of destroying or damaging private property not of military

character, or of injuring non-combatants is prohibited.

Art. 24. (1) Aerial bombardment is legitimate only when directed at a

military objective, that is to say, an object of which the destruction or injury

would constitute a distinct military advantage to the belligerent.

(2) Such bombardment is legitimate only when directed exclusively at the

following objectives: military forces; military works; military establishments

or depots; factories constituting important and well-known centers engaged

in the manufacture of arms, ammunition or distinctively military supplies;

lines of communication or transportation used for military purposes.

Collateral Damage on 21

Century Battlefield-11

targeting, the effort failed because the decisive nature of air power proved too

attractive. Douhet predicted the ending of civilian immunity amid the

powerful forces of aerial warfare:

Now it is actually populations and nations, and not their

armies or navies, which come to blows and seize each others’

throats . . . .

We dare not wait for the enemy to begin using the

so-called inhuman weapons banned by treaties before we feel

justified in doing the same . . . . Owing to extreme necessity, all

contenders must use all means without hesitation, whether or not

they are forbidden by treaties, which after all are nothing but

scraps of paper compared to the tragedy that would follow.

Although disturbing, Douhet’s words were prophetic. WWII brought a

massive blow to the movement to achieve civilian immunity in war. Morale

and the civilian population were not initially a prominent piece of the bombing

strategy in WWII, but quickly became one after Germany executed large scale

bombing runs on London in 1940.

U.S. strategy was altered only slightly

from WW I. Relying on high elevation bombing of the German industrial

base, U.S. strategists believed that destruction of Germany’s economy would

(3) The bombardment of cities, towns, villages, dwellings or buildings not in

the immediate neighborhood of the operations of land forces is prohibited.

In cases where the objectives specified in paragraph (2) are so situated that

they cannot be bombarded without the indiscriminate bombardment of the

civilian population, the aircraft must abstain from bombardment.

(4) In the immediate neighborhood of the operations of land forces, the

bombardment of cities, towns, villages, dwellings or buildings is legitimate

provided that there exists a reasonable presumption that the military

concentration is sufficiently important to justify such bombardment, having

regard to the danger thus caused to the civilian population.

(5) A belligerent state is liable to pay compensation for the injuries to the

person or to property caused by the violation by any of its officers or forces

of the provisions of this article.

Draft Convention for the Protection of Civilian Populations Against New Engines of War

(1938), in S

CHINDLER & TOMAN, supra note 26, at 223–25. The convention proposed civilian

protection in war by restricting attacks on undefended towns, discriminating military targets

from civilian objects in defended towns, restricting the use of bombardment to “terrorize” the

enemy, the establishment of civilian safety zones immune from attack, and sanctions before

the International Court of Justice for violation. Id.

DOUHET, supra note 40, at 195.

Id. at 189.

See W.A. Jacobs, The British Strategic Air Offensive Against Germany in World War II, in

ASE STUDIES IN STRATEGIC BOMBARDMENT 91, 118–19 (R. Cargill Hall ed. 1998). British

bombing strategy focused on traditional economic targets, but civilian morale was a secondary

objective. Id.

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result in destruction of morale.

The immediate purpose of bombing by the

Royal Air Force was based on the theory that “destruction of housing and

public amenities would undermine both the ability and the willingness of the

industrial workers to maintain their posts at the factories.”

Beyond this

specific objective, the general intent was to erode the German citizen’s will to

support the war by making life intolerable.

After the German invasion of Poland, the Polish National Council taking

refuge in London reported pervasive looting, mass murder of civilians and

other war crimes. Allied forces were reluctant to modify military targeting

strategy to counter the threat.

On June 19, 1942 the Polish National Council

again reported that 140,000 innocent civilians were dead, several times as

many were sent to concentration camps, one and a half million were subject to

forced labor camps in Germany and nearly two million were robbed of their

property, businesses and homes, then expelled to eastern provinces of

Poland.

Focused on the German economy, allied forces again rejected any

strategy in response to the atrocities.

The targeting strategy continued to

emphasize attacking manufacturing and assembly facilities, and other

industrial infrastructure supporting Germany’s war machine.

A year later,

however, indiscriminate targeting strategies resulted in devastating firestorms

in Hamburg in July and August of 1943, raising the city’s air temperature to a

catastrophic 800 degrees Celsius during one bombardment.

A similar

strategy was used in Dresden on February 13, 1945 where refugees were

fleeing west to escape the Russian advance. The firestorm there killed over

50,000.

The raids were viewed as “part of a climactic psychological warfare

campaign” in which the attacks would cause panicking civilians to clog roads

Overy, supra note 37, at 71. Commonly referred to as the Casablanca Directive, England

and the U.S. resolved that the objectives of combined bombing campaigns should emphasize

the “destruction and dislocation of the German military, industrial and economic system, and

the undermining of the morale of the German people.” W

EBSTER & FRANKLAND, supra note

42, at app. 8, pt. 28.

JOHN ELLIS, BRUTE FORCE: ALLIED STRATEGY AND TACTICS IN THE SECOND WORLD WAR

180 (1990).

Id.

ARIEH H. KOCHAVI, PRELUDE TO NUREMBERG: ALLIED WAR CRIMES POLICY AND THE

QUESTION OF PUNISHMENT 21–22 (1998).

Id. at 22.

Id. at 23–24.

MCKEOGH, supra note 12, at 126.

Id.

Collateral Damage on 21

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and railroads, thus preventing the supply and movement of German troops.

Opting to schedule high elevation bombing runs in the evening to avoid

German fighter aircraft and artillery, allied forces had difficulty identifying

targets. For example, in 1941 only twenty percent of bombs fell within five

miles of the target; and in 1943, sixty percent fell within three miles of the

target.

These events demonstrate that tactical air strategy contributed to

excessive collateral damage.

The indiscriminate effects of nuclear weapons used in Hiroshima and

Nagasaki in 1945 present a more poignant example of a strategy to strike

civilian morale. Further it is the most notable example of collateral damage in

modern history. In an effort to achieve the surrender of a determined and

resolute Japan without an allied invasion, the U.S. attacked Hiroshima with an

atomic bomb on August 6, 1945.

The firestorm attained a velocity of 30–40

miles per hour for a period of two to three hours after the initial blast.

Although it is impossible to determine the number of civilian casualties, best

estimates from U.S. surveys suggest 70,000–80,000 were killed or presumed

dead, and an equal number were injured.

These numbers indicate that

approximately sixty per cent of the city’s population was killed or injured.

The Japanese Second Army Headquarters and the Chugoku Regional Army

Headquarters were located in Hiroshima, making them important targets

because of their command and control capability.

In addition, Hiroshima

was the home of one of the largest military supply depots and military shipping

facilities. Shipping had ceased prior to the attack, however, because of

conventional mining in the Inland Sea.

The lawful military objectives were

destroyed during the attack along with civilian facilities that were unlawful to

target even under the tenuous interpretations of LOAC in 1945. The attack

rendered any services by medical, fire, police and disaster relief non-existent.

Infrastructure including water, gas, electric and communication were almost

completely destroyed.

Approximately 62,000 of 90,000 buildings were

RONALD SCHAFFER, WINGS OF JUDGMENT: AMERICAN BOMBING IN WORLD WAR II, 95–97,

103 (1985).

ARCHER JONES, THE ART OF WAR IN THE WESTERN WORLD 579 (1987).

THE U.S. STRATEGIC BOMBING SURVEY: THE EFFECTS OF ATOMIC BOMBS ON HIROSHIMA

AND

NAGASAKI, REPORT FROM THE CHAIRMAN OF THE U.S. STRATEGIC BOMBING SURVEY 3

(June 30, 1946).

Id.

Id. at 5.

Id. at 6.

Id.

Id. at 8.

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leveled, and an additional 6,000 were severely damaged.

Hiroshima was

completely devastated.

On August 9, 1945, another atomic bomb was dropped on Nagasaki, killing

35,000–40,000 people.

Damage to the city was reduced in large part by the

natural landscape of the city, inclusive of hills, valleys, rivers, basins and other

natural barriers that absorbed blast. A shift in wind direction also helped

contain fires and prevented a firestorm.

The attack resulted in 52,000 homes

destroyed.

These events perpetuated an ongoing problem of giving meaning

to early principles of LOAC and customary norms providing protection to

civilians during war. Moreover, it exemplified that whatever customary or

codified law of war existing at the time was largely meaningless. The

atrocities against humanity during WWII by all states involved generated a

new and profound interest in civilian immunity, fostering the development of

the modern international humanitarian movement, and an emphasis in

international law to reform and restore rules protecting the civilian population

in war.

This movement resulted in a formalized introduction of the modern

principle of necessity.

The principle of military necessity requires that there be some military

advantage gained from destruction of a target.

In United States v. List at the

Nuremberg trials, the tribunal defined necessity:

Military necessity permits a belligerent, subject to the laws of

war, to apply any amount and kind of force to compel the

complete submission of the enemy with the least possible

expenditure of time, life, and money . . . . It permits the

destruction of life of armed enemies and other persons whose

destruction is incidentally unavoidable by the armed conflicts of

the war; it allows the capturing of armed enemies and others of

Id. at 9. Conventional bombing in Tokyo also was indiscriminate. Attacks on March 9–10,

1945 destroyed 16 square miles of city and killed over twenty thousand people. Id. at 3.

Id. at 5.

Id. at 9.

Id. at 13. Radiation exposure is responsible for seven to eight percent of all deaths in

Hiroshima and Nagasaki. Id. at 15.

See, e.g., 1949 Geneva Conventions, Protocols I & II, supra note 10. The International

Committee of the Red Cross [hereinafter ICRC] was an early proponent of the Geneva

Conventions, and later attempted unsuccessfully to prohibit use of aerial bombardment in

combat because of the high risk of collateral damage. P

ROTECTION OF CIVILIAN POPULATION

AGAINST THE DANGERS OF INDISCRIMINATE WARFARE, ICRC Res. XXVIII (1965).

Protocol I, supra note 10, at art. 52(2).

Agreement for the Prosecution and Punishment of the Major War Criminals of the

European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S.

279.

Collateral Damage on 21

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peculiar danger, but does not permit the killing of innocent

inhabitants for purposes of revenge or the satisfaction of a lust to

kill. The destruction of property to be lawful must be imperatively

demanded by the necessities of war. Destruction as an end in itself

is a violation of international law. There must be some reasonable

connection between the destruction of property and the

overcoming of the enemy forces.

In 1949, the Geneva Conventions also introduced the first comprehensive

provisions protecting civilians exposed to the consequences of war. Still in

effect, these provisions allow any party to a conflict to declare neutral zones

intended to shelter civilians and the wounded.

Furthermore, civilian

hospitals, ambulances, evacuation aircraft and other medical services are

protected from attack unless used to shield activities otherwise designed to

cause harm to an adversary.

E. The Korean War: The Era of Limited War

Early in the Korean conflict, the Far East Air Force planned on bombing

strategic targets to achieve a psychological advantage. By the Fall of 1950,

United Nations (U.N.) air attacks had neutralized nearly every strategic target

contributing to the support of the North Korean People’s Army.

Since

targets were scarce, strikes were focused on the destruction of infrastructure,

including hydroelectric facilities and irrigation dams.

In June 1952, U.N. air

strikes began attacking North Korean hydroelectric power facilities providing

electricity to both North Korea and Manchuria, China. The U.N. intended

these attacks to force negotiations, and to impress upon China, an ally of North

Korea, that the continuation of the war would result in consequences to that

country as well.

The air campaign included targeting irrigation dams

because they provided water for rice cultivation. Although reluctant to directly

attack rice crops, U.N. strategists were still prepared to interdict supply lines

for North Korean forces. In 1953, approximately twenty irrigation dams were

attacked, resulting in the flooding of rail and road systems, and the destruction

U.S. v. List, Feb. 19, 1948, in 11 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG

MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, 1946–1949, at 1253–54.

Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for

signature Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, art. 15.

Id. at arts. 18–22.

ROBERT F. FUTRELL, THE UNITED STATES AIR FORCE IN KOREA 1950–1953 439 (1961).

STEPHEN T. HOSMER, PSYCHOLOGICAL EFFECTS OF U.S. AIR OPERATIONS IN FOUR WARS

1941-1991: L

ESSONS FOR U.S. COMMANDERS 19-20 (1996).

Id.

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of rice crops from floodwaters.

Ultimately, the campaign may have

contributed to the end of the conflict, but it was very likely the threat of a

nuclear strike and the threat to expand the war into China that brought closure

in July, 1953.

Soon after the close of the Korean conflict, the Convention on the

Protection of Cultural Property was developed in 1954.

Recognizing that

cultural property suffered grave damage in armed conflict and was in

increasing danger of destruction, the international community resolved that

cultural resources required international protection.

The convention was

guided by principles previously established in the Conventions at the Hague of

1899 and of 1907, and in the Washington Pact of 1935 (Roerich Pact).

The

provisions of the convention were incorporated into U.S. Rules of Engagement

for Vietnam restricting the targeting of civilian and cultural objects.

The

legal protection afforded to cultural properties also made these sites attractive

locations for the Vietcong to conduct military operations during the Vietnam

War. The Vietcong would be among the first to exploit international law to

achieve a strategic advantage by conducting military operations from sites

immune from attack.

F. The Vietnam War: The Introduction of Concealment Warfare

In Vietnam, targeting strategy was focused, in part, on morale. Aerial

combat operations aimed at morale were closely tied to targeting civilian

resources. For example, between 1962 and 1967, the U.S. used 2,4-

Dichlorophenoxyacetic acid, a toxic chemical defoliant commonly referred to

as agent orange, to destroy 233,351 acres of food crops in South Vietnam.

Id. at 20-21.

President Eisenhower wrote that the U.S. “intended to move decisively without inhibition in

our use of weapons, and would no longer be responsible for confining hostilities to the Korean

peninsula.” D

WIGHT D. EISENHOWER, THE WHITE HOUSE YEARS: MANDATE FOR CHANGE

1953–1956 179–80 (1963).

Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14,

1954, 249 U.N.T.S. 215. The Convention is not ratified by the U.S.

Id. at 240.

Id. Final Act Of the International Peace Conference, Jul. 29, 1899, reprinted in 1 AM J.

INT’L L. 157 (Supp. 1907); Final Act of the Second Peace Conference, Oct. 18, 1907, reprinted

in 36 Stat. 2277, Treaty Series No. 539 (Cmd. 4175, 1914); Treaty on the Protection of Artistic

and Scientific Institutions and Historic Monuments (Roerich Pact), Apr. 15, 1935, 49 Stat.

3267, T.S. No. 899, 167 L.N.T.S. 279.

See infra notes 102 and 105, and accompanying text.

Russell Betts & Frank Denton, An Evaluation of Chemical Crop Destruction In Vietnam, A

Memorandum Prepared for the Office of the Assistant Secretary of Defense/International

Security Affairs and the Advanced Research Projects Agency, RAND Memo RM-5446-1-

Collateral Damage on 21

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During the same period, defoliant operations were conducted on 1,522,300

acres, resulting in exposure to adjacent agricultural land.

Although the

program was directed at enemy Vietcong forces, it effectively destroyed and

denied food to neutral civilian communities because the Vietcong regularly

seized food from these communities to support their operations.

Although

destroying supply lines and denying food is an effective strategy to degrade

enemy force morale, the crop destruction program did not have the desired

effect of denying food to the Vietcong because of their coercive access to rice

at the consumer level.

The effected civilian communities resented the

program because it destroyed their livelihood, exposed them to a toxic

substance, and had limited success in achieving the objective of denying food

to enemy forces.

The rural population felt the program was as much directed

at the civilians as it was the Vietcong.

From 1965 to 1972, air campaigns labeled Rolling Thunder, Linebacker I

and II included 775,000 sorties over North Vietnam.

The first phase of the

Rolling Thunder campaign was designed to destroy the emerging industrial

base of North Vietnam. The second phase attempted to degrade North

Vietnam’s ability to infiltrate troops and supplies into South Vietnam.

The

third phase of the campaign attacked industrial and transportation

infrastructure in and around Hanoi, Haiphong and buffer zones near the

Chinese border.

The fourth phase of the campaign from April to November,

1968 was a de-escalation of the bombing to promote negotiations.

ISA/ARPA 1 (Oct., 1987). Irreversible nervous system damage may result from absorption of

2,4-D through the skin. Inhalation may cause coughing, dizziness or burning in the chest.

Large doses have resulted in digestive and neuromuscular system distress. Ingestion of large

quantities may lead to death within one to two days of exposure. Long-term exposure to 2,4-D

may cause kidney, liver, muscular, digestive or nervous system damage. U.S. Dep’t of

Agriculture, Forest Service Pesticide Fact Sheet at http://infoventures.com/e-

hlth/pestcide/24d.html (last visited Mar. 29, 2004).

See id., at 1.

Id. at ix.

Id. at xii.

Id. at xiii.

THOMAS C. THAYER, WAR WITHOUT FRONTS: THE AMERICAN EXPERIENCE IN VIETNAM 82

(1985).

Robert A. Pape, Jr., Coercive Air Power in Vietnam, 15(2) INT’L SECURITY 114, 118 (Fall,

1990).

Id. Gen. William Momyer states that the objectives of the campaign in Vietnam were

generally the same throughout the war: 1) reduce infiltration of troops and supplies into South

Vietnam; 2) continued aggression in the south would be met with continued aggression in the

north and; 3) to raise the morale of the South Vietnamese people. G

EN. WILLIAM W.

MOMYER, USAF (Ret.), AIR POWER IN THREE WARS, 173 (1978).

Pape, supra note 93, at 119.

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psychological operation accompanying this campaign included dropping an

estimated one billion leaflets and other pieces of printed material in

conjunction with radio broadcasts warning civilians to stay away from military

objects subject to attack.

The objective of the operation was to minimize

civilian casualties, project a message of humanitarianism amidst reports of

U.S. targeting misconduct, and discourage civilians from assisting in the

restoration and repair of damaged military equipment.

While the bombing

campaign caused some evacuation of civilians and depressed civilian morale, it

did not have the desired effect of achieving concession. The North Vietnamese

regime used the bombing campaign to fuel already inflamed perceptions of

U.S. forces, and to posture their message that the conflict was a struggle to

liberate South Vietnam from American imperialism.

Eager to remove itself from the war, the U.S. executed massive bombing

attacks during Linebacker I and II to encourage the North Vietnamese to bring

the conflict to a close in accordance with terms it had previously agreed.

During an eleven day bombing campaign in 1972 designed to force the North

to end the war, the U.S. flew approximately 1,369 sorties targeting military

installations, rail yards, petroleum stocks, bridges, roads, electric power

production facilities, and steel works believed to support the North’s war

effort.

100

The dual-use infrastructure supported the civilian economic base

and North Vietnam’s ability to conduct military operations.

Vietnamese leadership described the Vietnam conflict as a “people’s

revolution,” requiring the incorporation of the entire Vietnamese population

into its defense.

101

The strategy to incorporate the populace into the conflict

increased the difficulty in distinguishing between civilian and military objects,

and promoted collateral damage. The Vietcong commonly took advantage of

objects normally legally immune from attack to conduct military operations

and to obtain sanctuary for military personnel, equipment and supplies. Such

objects included religious and historical buildings, private dwellings or other

civilian structures.

102

In some cases, the U.S. restricted targeting protected

Jack L. Timies, Study on Psychological Operations Against North Vietnam: July 1972-

January 1973, CHECO/CORONA Harvest Division, Operations Analysis Office, HQ PACAF,

pp. 3–6, 15–20 & 32 (May 24, 1974).

ROBERT W. CHANDLER, WAR OF IDEAS: THE U.S. PROPAGANDA CAMPAIGN IN VIETNAM

99–100 (1981).

HOSMER, supra note 78, at 33.

Id. at 39–40.

100

Id. at 39.

101

See generally GEN. VO NGUYEN GIAP & VAN TIEN DUNG, HOW WE WON THE WAR 39–42

(1976).

102

Vietnam Rules of Engagement, 131 CONG. REC. S6261 (1985)[hereinafter Vietnam Rules

of Engagement], reprinted in R

EISMAN & ANTONIOU supra note 26, at 119–121, which states

in part:

Collateral Damage on 21

Century Battlefield-19

objects used as sanctuary. For example, dikes on the Red River being used as

platforms for air defense were restricted from attack.

103

Notwithstanding

Vietcong transgressions in commingling military personnel and resources with

the civilian population, their ability to leverage public sympathy from U.S.

bombing campaigns and incidents of collateral damage was novel and well

planned. The Vietcong ultimately achieved a strategic advantage that

contributed to efforts to discredit U.S. operations and force a withdrawal from

the conflict.

Although modern rules of targeting and civilian immunity were not fully

codified at the time, the U.S. conducted operations in accordance with rules of

engagement that were largely consistent with Protocols Additional I and II of

the 1949 Geneva Conventions (Protocols I and II), rules that would not become

codified until 1977.

104

U.S. rules of engagement recognized principles of

distinction, proportionality, humanity, necessity and the general protection of

civilians.

105

In recognition of the importance of observing civilian immunity,

rules of engagement for aerial operations in Vietnam specifically stated, “pilots

will endeavor to minimize civilian casualties and civilian property damage.”

106

Recognition was also given to the complexity of urban conflict. Rules of

engagement required that attacks on targets “in urban areas must preclude

unnecessary danger to civilians and destruction of civilian property, and by

their nature require greater restrictions than the rules of engagement for less

populated areas.”

107

The extent to which U.S. forces complied with rules to

6. a. All possible means will be employed to limit the risk to the lives and

property of friendly forces and civilians. In this respect, a target must be

clearly identified as hostile prior to making a decision to place fire on it . . . .

c. The enemy is known to take advantage of areas normally considered as

non-military targets. Typical examples of non-military targets are places of

religious or historical value and public or private buildings and dwellings.

When the enemy has sheltered himself or installed defensive positions in

such places, the responsible brigade or higher commander must positively

identify the preparation for, or execution of, hostile enemy acts before

ordering an attack. During the attack, weapons and forces used will be those

which will insure prompt defeat of enemy forces with minimum damage to

structures in the area.

Id. at 115.

103

HOSMER, supra note 78 at 60–64.

104

See Protocols I & II, supra note 10.

105

See Vietnam Rules of Engagement, supra note 102 and infra note 107.

106

Id.

107

See id.

Restrictions and Rules of Engagement, RVN (Republic of Vietnam)

a. All targets selected for an air strike will be approved by the Province

Chief directly or through higher Army of the Republic of Vietnam authority.

20-The Air Force Law Review

b. All pilots will endeavor to minimize non-combatant casualties and civilian

property damage. A strike will not be executed where identification of

friendly forces is in doubt.

c. All pilots will have a knowledge of the disposition of friendly forces

and/or civilians prior to conducting a strike. This information may come

from ground or air briefing.

g. . . . If the attack on a village or hamlet is in conjunction with any

immediate ground operation, the inhabitants must be warned by leaflets

and/or loudspeaker system prior to the attack and must be given sufficient

time to evacuate the area.

Id. at 109–10.

Rules of Engagement

All enemy military personnel and vehicles transporting the enemy or their

supplies may be engaged subject to the following restrictions:

A. When possible the enemy will be warned first and asked to surrender.

B. Armed force is the last resort.

C. Armed civilians will only be engaged in self-defense.

D. Civilian aircraft will not be engaged without approval from above

Division level unless it is in self-defense.

E. Avoid harming civilians unless necessary to save U.S. lives. If possible,

try to arrange for the evacuation of civilians prior to any U.S. attack.

F. If civilians are in the area, do not use artillery, mortars, armed helicopters,

AC-130, lube or rocket-launched weapons, or M551 main guns against

known or suspected targets without the permission of a ground maneuver

Commander Lieutenant Colonel or higher.

G. If civilians are in the area, all air attacks must also be controlled by a

Forward Air Controller or Forward Observer.

H. If civilians are in the area, close air support (CAS), white phosphorus, and

incendiary weapons are prohibited without approval from above Division

level.

I. If civilians are in the area, Infantry does not shoot except at known enemy

locations.

J. If civilians are not in the area, you can shoot at suspected enemy locations.

K. Public works such as power stations, water treatment plants, dams and/or

other utilities may not be engaged without approval from above Division

level.

L. Hospitals, Churches, Shrines, Schools, Museums, and any other historical

or cultural site will not be engaged except in self-defense.

M. All indirect fire and air attacks must be observed.

N. Pilots must be briefed for each mission on the location of civilians and

friendly forces.

O. No booby-traps. No mines except as approved by Division Commander.

No riot control agents without approval from above Division level.

P. Avoid harming civilian property unless necessary to save U.S. lives.

Q. Treat all civilians and their property with respect and dignity. Before

using privately owned property, check to see if any publicly owned property

can substitute. No requisitioning of civilian property without permission of a

company-level Commander and without giving a receipt. If an ordering

officer can contract for the property, then do not requisition if. No looting.

Do not kick down doors unless necessary. Do not sleep in their houses. If

Collateral Damage on 21

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minimize attacks on civilians and civilian objects is widely debated, especially

given the strategy of the Vietcong to commingle military personnel and

resources with civilians. Essentially, Vietcong forces were able to achieve a

remarkable degree of strategic superiority by exploiting U.S. rules of

engagement designed to protect the civilian population. When attacks were

initiated against legitimate targets commingled with civilians, the Vietcong

could exploit the incident in the form of an information operation to obtain

public sympathy for any collateral damage. The Vietcong were able to rally

support from the international community through political protests of U.S.

bombing operations. Worldwide and domestic protests isolated U.S.

leadership, resulting in limited tactical, operational and strategic options.

Most importantly, the Vietnamese reached out to the

American people, making a distinction between us [the American

public] and our government. For a people facing American

bombs, this was a heroic, calculated, and principled gesture. I

realized how heroic it was when I met some of the victims of our

own bombing and heard them transcend blind rage in order to

send greetings to the American anti-war movement . . . Politically,

the Vietnamese always believed in the importance of the anti-war

movement . . . They encouraged it the best they could, knowing

that creating a climate of opinion hostile to the war would be one

important way of ending it.

108

Vietnam is the first example of a concerted, well-organized strategy by an

adversary to exploit humanitarian concerns and discredit the U.S. for collateral

damage from combat operations. The failure to effectively counter the

Vietcong psychological offensive contributed to a remarkable loss of U.S.

support for operations in Vietnam. The U.S. public was likely further agitated

by the failure of U.S. decision-makers to comment on bombing operations

considered classified. For example, the failure to respond to allegations of

wanton destruction during Linebacker II operations isolated the Nixon

administration and fueled resentment, leaving the North Vietnamese

disinformation campaign unchallenged.

109

The Vietcong were so successful in

you must sleep in privately owned buildings, have an ordering officer

contract for it.

R. Treat all prisoners humanely and with respect and dignity.

S. Annex R. the Operations Plan (OPLAN) provides more detail. Conflicts

between this card and the OPLAN should be resolved in favor of the

OPLAN.

Id. at 128-29.

108

GIAP & DUNG, supra note 101, quoting Danny Schechter at Introduction.

109

See W. Hays Parks, Rolling Thunder and the Law of War, AIR UN. REV. 20–21 (1982).

22-The Air Force Law Review

their strategy to exploit U.S. rules of engagement and discredit U.S. operations

that it would become an attractive model for future U.S. adversaries unable to

effectively challenge the U.S. on the conventional battlefield. Finally, the

Vietnam experience would begin a trend in U.S. military operations that

reflects elevated sensitivity to humanitarian concerns and collateral damage.

G. The Modern Law of Targeting and Civilian Immunity

Following the Vietnam War, the ongoing effort to codify the international

customs of warfare led to the development of the most recent and relevant

rules for targeting. Protocols I and II of the 1949 Geneva Conventions were

opened for signature in 1977.

110

These Protocols codify the principles of

distinction, proportionality, necessity and humanity. In addition, Protocol I

restricts the targeting of cultural resources, the environment, objects containing

dangerous forces (dams, dikes and nuclear power facilities), and other items

necessary for survival like water purification plants and agricultural

foodstuffs.

111

The protocol prohibits a combatant from using civilians or

civilian objects as shields

112

or pretending to be a civilian.

113

Article 52(2) of

Protocol I, defining what constitutes a “military objective,” also focuses on the

protection of civilian objects by attempting to establish criteria for a legitimate

target. A military objective pursuant to Article 52(2) makes an effective

contribution to the enemy’s military action, and its destruction must provide a

definite military advantage to the attacker. More specific, forces may only

attack military targets that by their nature, location, purpose or use, effectively

contribute to enemy military action.

114

Although the U.S. has not ratified

Protocol I, it recognizes the Protocol insofar as it is consistent with customary

international law.

115

Moreover, it is thoroughly represented in U.S. military

110

See generally Protocols I & II, supra note 10.

111

Id. at Protocol I, arts. 54–56.

112

Id. at art. 51(3),(7).

113

Id. at art. 37.

114

Id. at art. 52(2).

115

See Memorandum from the President of the United States Transmitting Protocol I

Additional to the Geneva Conventions of August 12, 1949, Concluded at Geneva on June 10,

1977, 1977 U.S.T. LEXIS 465 (Jan. 29, 1987). President Ronald Reagan rejected Protocol I in

1987, stating: “Protocol I is fundamentally and irreconcilably flawed. . . [it] would grant

combatant status to irregular forces even if they do not satisfy the traditional requirements to

distinguish themselves from the civilian population and otherwise comply with the laws of

war.” See also Hans-Peter Gasser, Agora: The U.S. Decision Not to Ratify Protocol I to the

Geneva Convention on the Protection of War Victims, 81 A

M. J. INT’L. L. & POL’Y 910

(1987).

Collateral Damage on 21

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doctrine, practice and rules of engagement.

116

Protocol II enumerates similar

restrictions on the attack of civilian objects and populations during non-

international conflicts in less comprehensive form as Protocol I.

117

This

Protocol is not ratified by the U.S.

118

The principles of distinction, proportionality, necessity, and humanity form

a fundamental basis to determine whether a target may be attacked under

LOAC. The principle of distinction requires that military objects be

distinguished from civilian objects prior to attack.

119

Distinction is the most

important principle affording protection to civilians. Protocol I, Article 51(4)

prohibits indiscriminate attacks. “Indiscriminate attacks are: (a) those which

are not directed at a specific military objective; . . . and consequently, in each

such case, are of a nature to strike military objectives and civilians or civilian

objects without distinction.”

120

Civilians enjoy this protection “unless and for

such time as they take a direct part in hostilities,” and they may not be used as

shields to deny attack of otherwise legitimate military objectives.

121

This principle is supplemented by the principle of proportionality. Article

51(5)(b) directs that attacks on a specific military objective are impermissible

if they “may be expected to cause incidental loss of civilian life, injury to

civilians, damage to civilian objects, or a combination thereof, which would be

excessive in relation to the concrete and direct military advantage

anticipated.”

122

Placing further restriction on targeting is Article 50(3), stating

116

For a discussion of U.S. doctrine and strategy, see infra notes 369 to 398 and

accompanying text.

117

See generally Protocol II, supra note 10 at arts. 13–17.

118

ICRC, Treaties of International Humanitarian Law and States Parties: State Parties &

Signatories By Treaty,

http://www.icrc.org/ihl.nsf/WebNORM?OpenView&Start=53.1.96&Count=150&Expand=53.2 #53.2

(last visited Apr. 15, 2004).

119

Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 Y

ALE

H.R. & DEV. L.J. 143, 148–49 (1999).

120

Protocol I, supra note 10, art. 51. As of March 29, 2004, 159 states were party to the

protocol.

121

Id. at art. 51(3). In addition, civilians may not be used as shields:

The presence or movements of the civilian population or individual civilians

shall not be used to render certain points or areas immune from military

operations, in particular in attempts to shield military objectives from attacks

or to shield, favor or impeded military operations. The Parties to the conflict

shall not direct the movement of the civilian population or individual

civilians in order to attempt to shield military objectives from attacks or to

shield military operations.

Id. at art. 51(7).

122

The following types of attacks are considered indiscriminate:

(a) those which are not directed at a specific military objective; (b) those

which employ a method or means of combat which cannot be directed at a

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that, “the presence within the civilian population of individuals who do not

come within the definition of civilians does not deprive the population of its

civilian character.”

123

A responsible military commander intent on the

engagement of a particular target must determine first if it is a military

objective, and then whether the collateral damage from destruction of the

target is proportionate to the military advantage of destroying it. These articles

do not forbid the loss of civilian life, but attempt to prevent civilian casualties

and ensure any loss is well justified. In preparation for an attack, Article 57

requires planners to, “take all feasible precautions in the choice of means and

methods of attack with a view to avoiding, and in any event to minimizing,

incidental loss of civilian life, injury to civilians and damage to civilian

objects.”

124

The principle of humanity incorporates several concepts, including the

principle commonly referred to as “chivalry.” In practice, the principle seldom

receives considerable attention relative to other targeting principles because it

is inherent to the letter and spirit of LOAC. For example, chivalry

distinguishes acts of deception from those that undermine the goodwill of the

enemy. Acts of perfidy are prohibited pursuant to Protocol I, Article 37.

125

contrast, camouflage, decoys, mock operations, and misinformation used to

deceive an adversary are not prohibited.

126

The Convention on Environmental Modification of 1976 was designed to

prohibit military use of environmental modification techniques in war and to

specific military objective; or (c) those which employ a method or means of

combat the effects of which cannot be limited as required by this Protocol;

and consequently, in each such case, are of a nature to strike military

objectives and civilians or civilian objects without distinction.

Id. at art. 51(4).

Among others, the following types of attacks are considered indiscriminate:

(a) an attack by bombardment by any method or means which treat as a

single military objective a number of clearly separated and distinct military

objectives located in a city, town, village or other area containing a similar

concentration of civilians or civilian objects; and (b) an attack which may be

expected to cause incidental loss of civilian life, injury to civilians, damage

to civilian objects, or a combination thereof, which would be excessive in

relation to the concrete and direct military advantage anticipated.

Id. at art. 51(5).

123

Id. at art. 50(3).

124

Id. at art. 57(2).

125

Id. at art. 37. Prohibited acts include feigning truce or surrender, feigning incapacitation

from wounds or sickness, feigning civilian or non-combatant status, and feigning protected

status by the use of signs, emblems, or uniforms of the U.N. or neutral states. Id.

126

Id.

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eliminate the indiscriminate, pervasive, and long-term dangers to mankind.

127

The convention effectively restricts targeting the environment or attempting to

use it as a weapon. For example, it would be a violation of the convention to

spread aerosol into the atmosphere to dissolve ozone and create drought

conditions. The term “environmental modification techniques” refers to any

method that manipulates “natural processes—the dynamics, composition or

structure of the Earth, including its biota, lithosphere, hydrosphere and

atmosphere, or of outer space.”

128 In comparison, Article 54(2) of Protocol I

says it is prohibited to “attack objects indispensable to the survival of the

civilian population, such as foodstuffs, agricultural areas for the production of

foodstuffs, crops, livestock, drinking water installations and supplies and

irrigation works, for the specific purpose of denying them for their sustenance

value to the civilian population . . . whatever the motive, whether in order to

starve out civilians, to cause them to move away, or for any other motive.”

129

The final significant international instruments that limit targeting are a

result of the Final Act of the United Nations Conference on Prohibitions or

Restrictions on the Use of Certain Conventional Weapons Which May be

Deemed to be Excessively Injurious or to Have Indiscriminate Effects

(Convention on Use of Indiscriminate Weapons of 1980).

130

The convention

contributed to the international community’s ongoing effort to codify

international law and provide clear instruction on the protection of the civilian

population. The convention is separated into four protocols. The Protocol on

Non-Detectable Fragments (Protocol I) restricts the use of any weapon that

injures by fragments that escape x-ray detection in the human body.

131

Examples of such fragments include ceramic, plastic or other non-metallic

projectiles. The Protocol on Prohibitions or Restrictions on the Use of Mines,

Booby-Traps and Other Devices (Protocol II) prohibits direct use of mines and

traps against the civilian population, and any indiscriminate use that potentially

127

Convention On the Prohibition of Military or Any Hostile Use of Environmental

Modification Techniques, opened for signature Dec. 10, 1976, 1108 U.N.T.S. 151; 31 U.S.T.

333, 16 I.L.M. 88. Signed by the U.S. on May 18, 1977 and ratified on January 17, 1980.

128

Id. at art. II.

129

Protocol I, supra note 10, art. 54(2).

130

Final Act of the United Nations Conference on Prohibitions or Restrictions on the Use of

Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have

Indiscriminate Effects [hereinafter Convention on Indiscriminate Weapons], as amended Dec.

21, 2001, opened for signature Apr. 10, 1981, 1342 U.N.T.S. 137, 19 I.L.M. 1523 (1980). The

U.S. ratified the Act and convention, and Protocols I and II with reservation on March 24,

1995. The U.S. does not formally recognize the amendment.

131

Id. at Appendix B, Protocol [I] on Non-Detectable Fragments, Oct 10, 1980, 19 I.L.M.

1523, 1529 (1980). The U.S. ratified the protocol with reservation on March 24, 1995.

26-The Air Force Law Review

causes injury or death to civilians.

132

Protocol II does not forbid the loss of

civilian life, but recognizes that these weapons must be directed against a

military objective, and civilian casualties must not be excessive in relation to

the military advantage anticipated. The Protocol on Prohibitions or

Restrictions on the Use of Incendiary Weapons (Protocol III) prohibits any use

of incendiary devices against civilians.

133

The Protocol on Blinding Laser

Weapons (Protocol IV) prohibits the employment of lasers specifically

designed to cause permanent blindness;

134

however, the incidental or collateral

effect of blindness is authorized.

135

The Convention on Use of Indiscriminate

Weapons of 1980 and its Protocols repeat the principles already established in

Protocols I and II of the 1949 Geneva Conventions. The U.S. is a party to the

Convention on Use of Indiscriminate Weapons of 1980, Protocols I and II. It

does not recognize Protocols III and IV.

136

H. The Era of Asymmetric Warfare and Precision Targeting

1. The Persian Gulf War/OPERATION DESERT STORM

Labeled the “technological revolution in warfare,” the Persian Gulf War

introduced innovative technology and strategy to the battle space, including

precision weaponry, improved surveillance, reconnaissance and stealth

technology. Perhaps most widely praised were precision-guided munitions

(PGM). These weapons were widely used during the Gulf War to minimize

collateral damage and fine tune target sets to meet strategic objectives.

137

Limiting destruction of the civilian infrastructure through the use of PGM

reduced some hardship on the Iraqi people while denying meaningful use by

the military.

138

The initial U.S. coalition bombing campaign against Iraq

132

Convention on Indiscriminate Weapons, Protocol [II] on Prohibitions or Restrictions on

the Use of Mines, Booby-Traps and Other Devices, as amended May 3, 1996, 35 I.L.M. 1206

(1996). The U.S. ratified the protocol with reservation on March 24, 1995. The U.S. ratified

the amendment with reservation on May 24, 1999.

133

Convention on Indiscriminate Weapons,

Protocol [III] on Prohibitions or Restrictions on

the Use of Incendiary Weapons

, Oct. 10, 1980, art. 2, 19 I.L.M. 1534 (1980). The U.S. does

not formally recognize the protocol.

134

Convention on Indiscriminate Weapons, Protocol [IV] on Blinding Laser Weapons, art. 1,

Oct. 13, 1995, 35 I.L.M. 1218 (1996). The U.S. does not formally recognize the protocol.

135

Id. at art. 13.

136

See supra notes 131 to 134 and accompanying text.

137

See U.S.

DEP’T OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR: FINAL REPORT TO

CONGRESS [hereinafter PERSIAN GULF WAR FINAL REPORT] 75 (Apr., 1992).

138

“Careful targeting and expert use of technological superiority—including precision guided

munitions—throughout the strategic air campaign minimized collateral damage and casualties

Collateral Damage on 21

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identified key centers of gravity as: 1) the command, control, and leadership of

Saddam Hussein’s regime; 2) Iraq’s capability to manufacture, service, and

employ weapons of mass destruction; and 3) the Republican Guard.

139

Psychological operations were a key element of the campaign, proposing

strikes against television and radio broadcast facilities that would reduce

military and popular support of the regime.

140

The objective was to

incapacitate and isolate the regime, then incite the Iraqi military and civilian

population to revolt:

141

The leadership, telecommunication infrastructure and C³

[Command, Control and Communication capabilities] became

the essential target sets for producing change in the Iraqi

government. In the view of the Coalition air campaign

planners, these target sets constituted the key centers of gravity

or central nervous system of the Baghdad regime, enabling

Saddam and his associates to govern and control Iraq and its

population. All told, there were 44 leadership and 146

telecommunications and C³ targets in Baghdad and other areas

of Iraq.

142

Specific objectives included the destruction of Iraq’s electric power system

to deny electricity,

143

destruction of fuel production,

144

and bridges over the

to the civilian population, reflecting U.S. policy that Saddam Hussein and his military

machine, not the Iraqi people, were the enemy.” U.S. D

EP’T OF DEFENSE, CONDUCT OF THE

PERSIAN GULF CONFLICT: AN INTERIM REPORT TO CONGRESS [hereinafter PERSIAN GULF WAR

INTERIM REPORT] 4-4 (Jul., 1991).

139

PERSIAN GULF WAR FINAL REPORT, supra note 137, at 116.

140

ARRY D. WATTS ET AL., GULF WAR AIR POWER SURVEY, VOL. II: OPERATIONS EFFECTS

AND

EFFECTIVENESS 30 (1993); see also PERSIAN GULF WAR FINAL REPORT, supra note 137 at

201–03:

Command Facilities: There were 45 targets in the Baghdad area, and others

throughout Iraq, in the leadership command facilities target set. The intent

was to fragment and disrupt Iraqi political and military leadership by

attacking its C2 [command & control] of Iraqi military forces, internal

security elements, and key nodes within the government. Specifically

targeted were facilities from which the Iraqi military leadership, including

Saddam Hussein, would attempt to coordinate military actions. Targets

included national-level political and military headquarters and command

posts (CPs) in Baghdad and elsewhere in Iraq.

141

ATTS ET AL., supra note 140, at 274–75.

142

PERSIAN GULF WAR FINAL REPORT, supra note 137 at 95–96.

143

WATTS ET AL., supra note 140, at 202–03; see also PERSIAN GULF WAR FINAL REPORT,

supra note 137 at 202–03:

Electricity Production Facilities: Electricity is vital to the functioning of a

modern military and industrial power such as Iraq, and disrupting the

28-The Air Force Law Review

Tigris River in downtown Baghdad to disrupt logistics,

145

and the destruction

of television and radio broadcasting facilities to isolate military forces from

electrical supply can make destruction of other facilities unnecessary.

Disrupting the electricity supply to key Iraqi facilities degraded a wide

variety of crucial capabilities, from the radar sites that warned of Coalition

air strikes, to the refrigeration used to preserve biological weapons (BW), to

nuclear weapons production facilities. To do this effectively required the

disruption of virtually the entire Iraqi electric grid, to prevent the rerouting

of power around damaged nodes. Although backup generators sometimes

were available, they usually are slow to come on line, provide less power

than main sources, and are not as reliable. During switch over from main

power to a backup generator, computers drop off line, temporary confusion

ensues, and other residual problems can occur. Because of the fast pace of a

modern, massed air attack, even milliseconds of enemy power disruption can

mean the difference between life and death for aircrews. Attacks on Iraqi

power facilities shut down their effective operation and eventually collapsed

the national power grid. This had a cascading effect, reducing or eliminating

the reliable supply of electricity needed to power NBC [nuclear, biological &

chemical] weapons production facilities, as well as other war-supporting

industries; to refrigerate bio-toxins and some CW [chemical warfare] agents;

to power the computer systems required to integrate the air defense network;

to pump fuel and oil from storage facilities into trucks, tanks, and aircraft; to

operate reinforced doors at aircraft storage and maintenance facilities; and to

provide the lighting and power for maintenance, planning, repairs, and the

loading of bombs and explosive agents. This increased Iraqi use of less-

reliable backup power generators which, generally, are slow to come on line,

and provide less power. Taken together, the synergistic effect of losing

primary electrical power sources in the first days of the war helped reduce

Iraq’s ability to respond to Coalition attacks. The early disruption of

electrical power undoubtedly helped keep Coalition casualties low.

144

See id. at 207:

Oil Refining and Distribution Facilities: Fuel and lubricants are the lifeblood

of a major industrial and military power. Iraq had a modern petroleum

extraction, cracking, and distillation system, befitting its position as one of

the world’s major oil producing and refining nations. Coalition planners

targeted Iraq’s ability to produce refined oil products (such as gasoline) that

had immediate military use, instead of its long-term crude oil production

capability. The air campaign damaged approximately 80 percent of Iraq’s

refining capacity, and the Iraqis closed the rest of the system to prevent its

destruction. This left them with about 55 days of supply at prewar

consumption rates. This figure may be misleading, however, because the

synergistic effect of targeting oil refining and distribution, electricity, the

road, rail and bridge infrastructure, and the national C3 [command, control &

communication] network, all combined to degrade amounts of oil and

lubricants Iraqi commanders received.

145

See HOSMER, supra note 78, at 53, n. 38 (1996); see also PERSIAN GULF WAR FINAL

REPORT, supra note 137 at 207–08:

Railroads and Bridges: Most major railroad and highway bridges in Iraq

served routes that ran between Baghdad and al-Basrah. Iraqi forces in the

KTO [Kuwaiti Theater of Operations] were almost totally dependent for

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their leadership.

146

Even though the air campaign would cause hardship to the

civilian population, coalition planners followed stringent procedures to select

and attack targets to minimize collateral damage and civilian casualties.

147

their logistical support on the lines of communication (LOCs) that crossed

these bridges, making them lucrative targets. Although Iraqi forces had built

large stockpiles of supplies in southeast Iraq by January, DIA [Defense

Intelligence Agency] reported cutting the bridges prevented or reduced

restocking, and prevented reinforcement of deployed forces once the air

campaign began. About three fourths of the bridges between central Iraq and

the KTO were severely damaged or destroyed. Iraqi LOCs into the KTO

were vulnerable because they crossed bridges over the Tigris and Euphrates

rivers. The bridges were destroyed at the rate of seven to ten a week, and the

supply flow into the KTO dropped precipitously. While the supply routes

into the KTO were being interdicted, Iraqi supply troops also were subjected

to heavy air attacks. As bridges were destroyed, long convoys of military

trucks waiting to cross were stranded and attacked. Air attacks also

destroyed supplies stockpiled in the KTO and severely disrupted their

distribution. In an environment where literally nothing was available locally,

these efforts resulted in major shortages of food for fielded forces,

particularly for those units farthest forward.

146

WATTS ET AL., supra note 140, at 274–75; see also PERSIAN GULF WAR FINAL REPORT,

supra note 137 at 203–05:

Telecommunications and Command, Control, and Communication Nodes:

The ability to issue orders to military and security forces, receive reports on

the status of operations, and communicate with senior political and military

leaders was crucial to Saddam Hussein’s deployment and use of his forces.

To challenge his C3, the Coalition bombed microwave relay towers,

telephone exchanges, switching rooms, fiber optic nodes, and bridges that

carried coaxial communications cables. These national communications

could be reestablished and so, required persistent re-strikes. These either

silenced them or forced the Iraqi leadership to use backup systems

vulnerable to eavesdropping that produced valuable intelligence, according

to DIA assessments, particularly in the period before the ground campaign.

More than half of Iraq’s military landline communications passed through

major switching facilities in Baghdad. Civil TV and radio facilities could be

used easily for C3 backup for military purposes. The Saddam Hussein

regime also controlled TV and radio and used them as the principal media

for Iraqi propaganda. Thus, these installations also were struck.

147

Id. at 147–153:

Constraints on the Concept Plan to Avoid Collateral Damage and Casualties:

A key principle underlying Coalition strategy was the need to minimize

casualties and damage, both to the Coalition and to Iraqi civilians. It was

recognized at the beginning that this campaign would cause some

unavoidable hardships for the Iraqi people. It was impossible, for example,

to shut down the electrical power supply for Iraqi C2 facilities or CW

factories, yet leave untouched the electricity supply to the general populace.

Coalition targeting policy and aircrews made every effort to minimize

civilian casualties and collateral damage. Because of these restrictive

policies, only PGM were used to destroy key targets in downtown Baghdad.

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The coalition was so earnest in this approach, a list of “off-limits” targets

was developed that included historical, archaeological, economic, religious and

politically sensitive sites.

148

Additionally, target analysts were tasked to look

in a six-mile area around each target on the master attack list “for schools,

hospitals, and mosques” to identify where extreme care was required.

149

The

norm was to use PGM rather than less accurate gravity weapons in urban or

populated areas. Attack procedures specified that if pilots could not identify

the target or were not confident the weapon would guide properly for any

reason, the weapon should not be delivered.

150

The U.S. conceded that

collateral damage occurred in spite of the tremendous effort to minimize it.

Some of the collateral damage was a result of the Iraqi regime’s invitation and

fabrication of collateral damage.

151

In an effort to deter attack, the Iraqi

148

Id. at 147–153:

Off Limits Targets: Planners were aware that each bomb carried a potential

moral and political impact, and that Iraq has a rich cultural and religious

heritage dating back several thousand years. Within its borders are sacred

religious areas and literally thousands of archaeological sites that trace the

evolution of modern civilization. Targeting policies, therefore, scrupulously

avoided damage to mosques, religious shrines, and archaeological sites, as

well as to civilian facilities and the civilian population. To help strike

planners, CENTCOM target intelligence analysts, in close coordination with

the national intelligence agencies and the State Department, produced a joint

no-fire target list. This list was a compilation of historical, archaeological,

economic, religious and politically sensitive installations in Iraq and Kuwait

that could not be targeted. Additionally, target intelligence analysts were

tasked to look in a six-mile area around each master attack list target for

schools, hospitals, and mosques to identify targets where extreme care was

required in planning. Further, using imagery, tourist maps, and human

resource intelligence (HUMINT) reports, these same types of areas were

identified for the entire city of Baghdad. When targeting officers calculated

the probability of collateral damage as too high, the target was not attacked.

Only when a target satisfied the criteria was it placed on the target list, and

eventually attacked based on its relative priority compared with other targets

and on the availability of attack assets. The weapon system, munition, time

of attack, direction of attack, desired impact point, and level of effort all

were carefully planned. For example, attacks on known dual (i.e., military

and civilian) use facilities normally were scheduled at night, because fewer

people would be inside or on the streets outside.

149

See id. at 153.

150

See id. at 228.

151

See id. at 697–703.

On 11 February, a mosque at al-Basrah was dismantled by Iraqi authorities

to feign bomb damage; the dome was removed and the building dismantled.

US authorities noted there was no damage to the minaret, courtyard building,

or dome foundation which would have been present had the building been

struck by Coalition munitions. The nearest bomb crater was outside the

facility, the result of an air strike directed against a nearby military target on

Collateral Damage on 21

Century Battlefield-31

regime applied methods of concealment warfare. Iraqi military personnel,

weapons, supplies and equipment were located near residential areas and

protected objects like mosques, medical facilities, schools and cultural sites

(Figures 1 and 2).

152

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 1—Iraqi Military Aircraft Staged Near Historical Site

January 30. Other examples include use of photographs of damage that

occurred during Iraq’s war with Iran, as well as of prewar earthquake

damage, which were offered by Iraqi officials as proof of bomb damage

caused by Coalition air raids.

152

A cache of Silkworm surface-to-surface missiles was found inside a school in Kuwait

City. P

ERSIAN GULF WAR INTERIM REPORT, supra note 138, at 12–3.

32-The Air Force Law Review

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 2—Iraqi Military Vehicle Staged Near Mosque

Unfortunately, coalition attacks did not achieve the desired result of

isolating the Hussein regime. According to battle damage assessments,

approximately seventy percent of leadership telecommunications, thirty

percent of the leadership, and twenty-five percent of the military

communications targets were still operational after the air campaign.

153

One

notable reason for the low percentage of targets destroyed was reluctance to

engage targets after an estimated 288 Iraqi civilians seeking shelter were killed

at the al-Firdos bunker on February 13, 1991.

154

Although the coalition was

confident the site was a valid military objective, the event was a pivotal point

in the war. All targets engaged after the incident were pre-briefed and

approved by the highest ranking officer in the theater, General Norman

Schwarzkoph, who took considerable time in his deliberation and denied attack

approval for some targets altogether.

155

Moreover, bombing in Baghdad was

discontinued following widely critical press throughout the international

153

WATTS ET AL., supra note 140, at 289.

154

Barton Gellman, Iraqi Says 288 Bodies Removed From Bombed Structure, WASH. POST,

Feb. 15, 1991, at A29.

155

ICK ATKINSON, CRUSADE: THE UNTOLD STORY OF THE PERSIAN GULF WAR, 294–95

(1993).

Collateral Damage on 21

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community.

156

The U.S. argued that Iraq utilized the incident and any other

collateral damage incidents, including damage from its own air defenses, in

disinformation campaigns designed to discredit coalition operations to the U.S.

public and the international community.

157

The portion of the campaign

targeting the Iraqi people’s popular support of the regime was probably

miscalculated. While the attacks achieved the objective of disrupting the lives

of the Iraqi civilian population, an uprising did not occur and Saddam Hussein

remained in power after the war. Human Rights Watch (HRW) alleged up to

3,000 civilians were killed from approximately sixty-five incidents of

collateral damage.

158

In comparison, Iraqi officials claimed civilian casualties

exceeded 7,000.

159

The bombing probably aggravated the already tenuous

condition of the civilian population by contributing to the humanitarian crisis

that existed from the 1990 U.N. embargo and previous war with Iran.

160

Although the embargo excluded food and medical supplies for humanitarian

relief, the Iraqi population suffered a pervasive loss of water treatment,

sewerage, electrical and telecommunication service.

161

Further, the high

reduction in the available food supply aggravated the tragedy.

162

Notwithstanding the collateral damage described above, the coalition

bombing campaign in Iraq demonstrates a significant transition away from

targeting the will and morale of the adversary insofar as it included civilians.

Although coalition objectives initially included targeting civilian morale, the

al-Firdos bunker incident was a turning point, creating a preoccupation to

minimize civilian casualties and any other collateral damage. This is

demonstrated by the decision to discontinue bombing in Baghdad and cancel

plans to attack bridges over the Tigris River.

163

Additionally, plans to destroy

a large statue of Saddam Hussein and a set of victory arches commemorating

156

WATTS ET AL., supra note 140, at 278 n. 17.

157

PERSIAN GULF WAR INTERIM REPORT, supra note 138, at 12–3.

158

IDDLE EAST WATCH, NEEDLESS DEATHS IN THE GULF WAR: CIVILIAN CASUALTIES

DURING THE CAMPAIGN AND VIOLATIONS OF THE LAWS OF WAR,, Intro. and 19 (1991).

159

See id. at 18.

160

See generally, S

ADRUDDIN AGA KHAN, REPORT TO THE SECRETARY GENERAL OF THE

U.N., HUMANITARIAN NEEDS IN IRAQ,, S22799 (July 15, 1991). “As usual, it is the poor, the

children, the widowed, and the elderly, the most vulnerable amongst the population who are

the first to suffer.” Id. at 5. U.N. Security Counsel Resolutions regarding sanctions on Iraq

include S.C.

Res. 660, U.N. SCOR, 45th Sess., 2932nd mtg., U.N. Doc. S/RES/660 (1990);

S.C.

Res. 661, U.N. SCOR, 45th Sess., 2933rd mtg., U.N. Doc. S/RES/661 (1990); S.C. Res.

666, U.N.

SCOR, 45th Sess., 2939 mtg., U.N. Doc. S/RES/666 (1990); S.C. Res. 688, U.N.

SCOR, 46th Sess., 2982nd mtg., U.N. Doc. S/RES/688 (1991); and S.C.

Res. 986, U.N.

SCOR, 3519th mtg., U.N. Doc. S/RES/986 (1995).

161

SADRUDDIN AGA KHAN, supra note 160, at 13–15.

162

Id.

163

WATTS ET AL., supra note 140, at 287.

34-The Air Force Law Review

the Iran-Iraq war were cancelled because it was determined the psychological

value of the attacks would not survive the potential political fallout after the al-

Firdos attack.

164

The pervasive media attention given to the al-Firdos incident

afforded the Iraqi regime a convenient, inexpensive, and highly-effective

method to communicate with the international community, appeal to

humanitarian interests, and exploit the event to discredit and discontinue

coalition bombing operations in Baghdad.

2. War in the Balkans/OPERATION ALLIED FORCE

From March to June 1999, the U.S. and North Atlantic Treaty Organization

(NATO) allies engaged in military operations to end Serbian atrocities in

Kosovo, and force Slobodan Milosevic to withdraw forces from the area. The

NATO coalition had three primary objectives in conducting the campaign: 1)

prevent expansion of the conflict into Slovenia, Croatia and Bosnia; 2) end

Milosevic’s campaign of ethnic cleansing and repression in Kosovo; and 3)

ensure NATO’s credibility would not be damaged by allowing The Federal

Republic of Yugoslavia and the Republic of Serbia to breach multi-lateral

peace agreements.

165

During the course of the campaign, NATO developed an

integrated targeting process that required allied approval for targets presenting

a high risk of collateral damage.

166

Destruction of the Serbian military forces

was a primary goal of the NATO coalition; however, an attack on the morale

of the civilian population was also a focus of the campaign to isolate Milosevic

and compel public pressure to end the war.

167

The targets destroyed or

significantly damaged in the campaign included eleven railroad bridges, thirty-

four highway bridges, twenty-nine percent of all Serbian ammunition storage

facilities, fifty-seven percent of the petroleum reserves, all Yugoslav oil

refineries, fourteen command posts, over one hundred aircraft, and ten military

164

Id. at 243–45.

165

U.S. D

EP’T OF DEFENSE, REPORT TO CONGRESS: KOSOVO/OPERATION ALLIED FORCE

AFTER ACTION REPORT [hereinafter OAF AFTER ACTION REPORT] Intro.-1 (Jan. 31, 2000):

Phase 1 would establish air superiority over Kosovo (creating a no-fly zone

south of 44 degrees north latitude) and degrade command and control and

the integrated air-defense system over the whole of the Federal Republic of

Yugoslavia. Phase 2 would attack military targets in Kosovo and those

Yugoslav forces south of 44 degrees north latitude, which were providing

reinforcement to Serbian forces in Kosovo. This was to allow targeting of

forces not only in Kosovo, but also in the Federal Republic of Yugoslavia

south of Belgrade. Phase 3 would expand air operations against a wide range

of high-value military and security force targets throughout the Federal

Republic of Yugoslavia. Phase 4 would redeploy forces as required. Id. at

7–8.

166

See id. at xx.

167

John A. Tirpak, Victory in Kosovo, 82 A

IR FORCE MAG. 2 (July, 1999).

Collateral Damage on 21

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airfields.

168

Targets also included electrical and broadcast services, news

media and two of Milosevic’s homes reportedly used as command and control

facilities.

169

Over the course of the fifty-seven day campaign, the emphasis

was placed on PGM that increased the probability of destroying the target and

minimized collateral damage. During the Persian Gulf War, only ten percent

of munitions delivered were PGM compared to ninety percent in OPERATION

ALLIED FORCE (OAF) in the Balkans.

170

Milosevic employed tactics designed to exploit NATO’s political concerns

about target selection and collateral damage by commingling military

personnel with civilian refugees.

171

Milosevic was compelled to resort to

asymmetric methods because of his inability to directly challenge a superior

NATO force:

He chose to fight chiefly through asymmetric means: terror

tactics and repression directed against Kosovar civilians; attempts

to exploit the premium the alliance placed on minimizing civilian

casualties and collateral damage; creation of enormous refugee

flows to create a humanitarian crisis, including in neighboring

countries; and the conduct of disinformation and propaganda

campaigns . . . . The humanitarian crisis created by Milosevic

appeared to be an attempt to end NATO’s operation by

“cleansing” Kosovo of ethnic Albanians, overtaxing bordering

nations’ infrastructures, and fracturing alliance cohesion.

172

Serbian forces employed a wide variety of concealment warfare tactics to

deceive NATO forces. For example, troops and equipment were dispersed,

then hidden throughout the countryside in civilian homes, barns, schools,

factories, and monasteries.

173 Serb forces dispersed among civilian traffic

during movement,

174 and used human shields to protect military equipment.175

168

OAF AFTER ACTION REPORT, supra note 165, at 82.

169

U.S. Dep’t. of Defense, Joint Chiefs of Staff, Joint Statement on the Kosovo After Action

Review (Oct. 14, 1999), available at http://www.defenselink.mil/releases/1999/b10141999_bt478-

99.html

170

OAF AFTER ACTION REPORT, supra note 165, at 88.

171

Id. at 6–7.

172

Id.

173

Id. at 60–63.

174

Id.

175

Chris Stephen, Deaths Prove Kosovo Is No ‘Free Fire’ Zone, T

HE IRISH TIMES, April 16,

1999, at (16)11.

NATO reported earlier this week that Serbia was using large numbers of

ethnic Albanian refugees as human shields, bunching them around tank

convoys, hoping thus to deter prowling jets. The practice came in with the

36-The Air Force Law Review

These tactics contributed to several incidents of collateral damage resulting in

civilian casualties. Having what appears to be the most accurate and

thoroughly researched accounting of collateral damage, HRW concludes that

as few as 489, and as many as 528 civilians were killed in approximately

ninety incidents of collateral damage.

176

Approximately sixty-four percent of

the total civilian deaths occurred in twelve incidents.

177

In comparison, the

Federal Republic of Yugoslavia claimed 1,200 to 5,000 civilian casualties from

the war.

178

HRW reported that almost half of the incidents occurred during

daylight hours, when civilians could reasonably be expected on roads, bridges,

and in public buildings.

179

The most notable collateral damage events include

inadvertent attacks on refugees over a twelve-mile stretch of the Djakovica-

Decane road in Kosovo, resulting in seventy-three civilian casualties; attacks

near Korisa, where as many as eighty-seven refugees were killed; and two

incidents involving attacks on civilian buses at Luzane and Savine Vode.

180

The most politically significant collateral damage event was the bombing of

air strikes: two days after the first NATO bombing, Serbs rounded up

refugees from around the village of Chirez . . . . Bunching them in the

middle of a tank convoy, they forced them to march with the vehicles along

a few miles of exposed road under a clear blue sky to the outskirts of Srbica,

scene of recent heavy fighting. The refugees were released unharmed, having

served their purpose. If there were any NATO jets overhead at the time, they

would presumably have seen the great swarm . . . . Now, western officials

said, the need for such “shields” was the reason why Serbia abruptly halted

its “ethnic cleansing” of Kosovo last week. The “missing” refugees are in

fact thought to be held as mobile shields—to be deployed as necessary.

These people, assuming they have enough food to keep alive, could be used

to protect tank convoys, or, more ambitiously, could perhaps be sent back to

villages that Serbia does not want to bomb. . . . Human shields also bring

NATO face-to-face with the problem of limited war, another problem that is

relatively new. In previous centuries armies would give it their all. Now

NATO is humbled not by Serb firepower but by a list of constraints which

say it must not itself lose casualties, must take care about “collateral”

damage, and must even avoid killing too many of its enemy, or destroying its

economy too comprehensively, lest that enrage world opinion . . . . Partly

this is the fault of the politicians, who in their urge to make everything—

school closures, tax rises—seem all right, try to present the coming battles as

no more horrible than an arcade game, with technology ensuring that only

the bad guys get killed—and no more of them than is necessary.

Id.

176

UMAN RIGHTS WATCH, THE CRISIS IN KOSOVO [hereinafter HRW, THE CRISIS IN

KOSOVO], at http://www.hrw.org/reports/2000/nato/index.htm#P217_53015 (last visited Feb.

17, 2004).

177

Id.

178

Id.

179

Id.

180

Id.

Collateral Damage on 21

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the Chinese Embassy in Belgrade. Reported as a failure in the process of

identifying and validating proposed targets, NATO forces were attempting to

target the headquarters of the Yugoslav Federal Directorate of Supply and

Procurement, a legitimate military target.

181

None of the military or

intelligence databases used to validate targets contained the correct location of

the Chinese Embassy.

182

OAF set the stage for more aggressive challenges of dual-use targets,

objects having utility for both the military and civilian population. For

example, the destruction of the Serb Radio and Television (SRT) Headquarters

in Belgrade that resulted in sixteen dead and sixteen wounded,

183

the “Marshal

Tito” Petrovaradin (Varadinski) Bridge in Novi Sad, and the attack on the

Belgrade Heating Plant all received significant attention from humanitarian

interest groups and the international community.

184

Regardless of NATO’s

legal determination that the targets were legitimate military objectives, HRW

argued that NATO did not take adequate precautions in warning civilians of

the attacks, nor were proportionality principles satisfied because the targets

were located in dense urban areas.

185

Ultimately, HRW argued the risks

involved to civilians in the attacks were disproportionate to any perceived

military benefit achieved.

186

Although NATO targeted the headquarters

because it was being used to transmit propaganda supportive of Milosevic,

HRW contended it had no military importance because it was not being used to

“incite violence,” citing the appropriate destruction of Radio Milles Collines

181

OAF AFTER ACTION REPORT, supra note 165, at xx.

182

Id.

183

HRW, THE CRISIS IN KOSOVO, supra note 176.

According to military sources, there was considerable disagreement between

the United States and French governments regarding the legality and

legitimacy of the target, and there was a lively public debate regarding the

selection of Yugoslav civilian radio and television as a target group. The

NATO attack was originally scheduled for April 12, but due to French

disapproval of the target, it was postponed. According to military, media,

and Yugoslav sources, Western news organizations, who were using the

facility to forward material from Yugoslavia, were alerted by NATO

government authorities that the headquarters would be attacked. Attacks also

had to be rescheduled because of rumors that foreign journalists ignored

warnings to leave the buildings. When the initial warnings were given to

Western media, the Yugoslav government also found out about the intended

attack. When the target was finally hit in the middle of the night on April 23

. . . authorities were no longer taking the threats seriously, given the time that

had transpired since the initial warnings.

184

See generally HRW, THE CRISIS IN KOSOVO, supra note 176.

185

Id.

186

Id.

38-The Air Force Law Review

during the Rwandan genocide.

187

HRW went on to argue that even if the

attack could be justified, the destruction of the transmitter equipment instead of

the building and its occupants would have easily disrupted communication.

Another significant issue that emerged from OAF is the use of cluster

munitions. Seven incidents of collateral damage resulted in 90–150 civilian

deaths from cluster bombs used by the U.S. and Britain. The most serious

incident involved the mid-day attack on Nis airfield, killing fourteen civilians

and injuring twenty-eight.

188

Cluster bomb sub-munitions fell in three widely

separated areas; near the Pathology building of the Nis Medical Center in

southeast Nis, in the town center near the Nis University Rector’s Office and

central city market place, and a bus station near the Nis Fortress and the “12

February” Health Center. NATO confirmed the attack on Nis airfield, and on

May 8, 1999, NATO Secretary General Solana accepted responsibility, stating

that “NATO has confirmed that the damage to the market and clinic was

caused by a NATO weapon which missed its target.” The CBU-87 cluster

bomb container failed to open over the airfield. Instead, it opened after release

from the attacking aircraft, projecting sub-munitions a great distance into the

city.

189

An investigation conducted by a committee of the International

Criminal Tribunal for the Former Yugoslavia (ICTY) concluded that none of

the foregoing collateral damage incidents presented sufficient evidence to

warrant additional review or prosecution for violations of LOAC.

190

3. OPERATION ENDURING FREEDOM: An Emerging Crisis in

Distinguishing Combatants from Civilians

OPERATION ENDURING FREEDOM (OEF) gave prominence to the

term “effects-based operations.” The term refers to the full integration and

interoperability of military forces and other national assets to create a

cascading series of effects that achieve strategic goals instead of resorting to

traditional force-on-force combat emphasizing physical destruction.

191

simply, strikes focus on the effects they have on behavior rather than on

observable physical damage to objects. The initiative relies heavily on the

187

Id.

188

Id.

189

Id.

190

NTERNATIONAL 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 [Hereinafter ICTY FINAL

REPORT], vol. 39(5) (Sep., 2000); 39 I.L.M. 1257, 1282-83 (2000), available at

http://www.un.org/icty/pressreal/nato061300.htm.

191

U..S. JOINT FORCES COMMAND, CONCEPTS DIVISION, WHITE PAPER ON EFFECTS-BASED

OPERATIONS (Oct. 2001).

Collateral Damage on 21

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application of precision-strike technology.

192

Since OEF was largely designed

as a coalition operation to remove the Taliban government and eliminate the

al-Qaeda terrorist network taking refuge in Afghanistan, targeting the already

subjugated civilian population in any form provided no meaningful benefit.

The focus of attacks on Taliban and al-Qaeda rather than civilian infrastructure

such as bridges, electrical power and water supply services minimized the

humanitarian crisis experienced in previous operations.

193

Al-Qaeda and

Taliban targets included ground forces, early warning radars, command and

control facilities, basing operations, al-Qaeda infrastructure, airfields, aircraft

and targets of opportunity—those targets that presented themselves in the

course of the campaign that were not pre-planned.

194

The coalition was

protective of infrastructure and religious sites, an expression that was

instrumental in minimizing conditions contributing to a humanitarian crisis and

avoiding any message that the war against terrorism was a war against Islam.

Rules of engagement were designed “so as to not needlessly shame or

antagonize the enemy, tilt allied or U.S. public opinion in a particular

direction, or escalate hostilities.”

195

Although Taliban and al-Qaeda were unable to organize any significant

challenge, numerous collateral damage incidents suggest there was difficulty in

distinguishing civilians and civilian objects from combatants. This problem

would seem predictable since the al-Qaeda terrorist network was composed of

unlawful combatants who were difficult to distinguish from civilians.

196

192

See Conrad Crane, Effects-Based Operations: A Blast From The Past, D

EFENSE WEEK,

May 14, 2001, at (22)20.

193

Rowan Scarborough, Bombing Plan Spares Civilian Structures, W

ASH. TIMES, Oct. 4,

2001, available at

http://nucnews.net/nucnews/2001nn/0110nn/011004nn.htm#300 (last visited Mar.

15, 2005).

194

See Global Security.Org, Operation Enduring Freedom: Operations, at

http://www.globalsecurity.org/military/ops/enduring-freedom-ops.htm (last visited Mar. 7,

2005).

195

Id.

196

See e.g., White House, Fact Sheet: Status of Detainees at Guantanamo,

2002 WEEKLY

COMP. PRES. DOC. 205 (Feb. 7, 2002), available at

http://www.whitehouse.gov./news/releases/2002/02/print/20020207-13.html (last visited Mar. 15,

2005). “Although we never recognized the Taliban as the legitimate Afghan government,

Afghanistan is a party to the [Geneva] Convention, and the President has determined that the

Taliban are covered by the Convention.”); see also Ambassador Pierre-Richard Prosper, Status

and Treatment of Taliban and al-Qaeda Detainees, at

http://www.state.gov/s/wci/rm/2002/8491pf.htm (last visited Mar. 7, 2005):

[T]he Geneva Conventions do apply . . . . to the Taliban leaders who

sponsored terrorism. But, a careful analysis through the lens of the Geneva

Convention leads us to the conclusion that the Taliban detainees do not meet

the legal criteria under Article 4 of the convention that would have entitled

them to POW status. They are not under a responsible command. They do

not conduct their operations in accordance with the laws and customs of war.

40-The Air Force Law Review

Many Taliban and al-Qaeda forces were well integrated into the civilian

community,

197

and did not fall under a responsible command that conducted

operations in accordance with LOAC. Further, they did not have a fixed

distinctive sign recognizable from a distance, nor did they carry their arms

openly pursuant to article 4(a) of Geneva Convention III.

198

Concealment tactics used by the adversary in Afghanistan resulted in a

number of collateral damage incidents. As many as thirty-five Afghan

civilians were killed on October 22, 2001 when a U.S. coalition aircraft

attacked the village of Chowkar-Karez.

199

Witnesses interviewed by HRW

were unaware of any Taliban or al-Qaeda positions in the area of the attack.

200

The incident in Chowkar-Karez occurred one day after twenty-three civilians

were killed when bombs hit the village of Thori, located near a Taliban

military base in Oruzgan province.

201

According to witness accounts, U.S.

coalition aircraft bombed the area three times on the evening of October 21.

202

The target of the attack was a large Taliban military base known as Gar Mao,

located approximately one kilometer from the village. The base was an

ammunition depot, defunct military prison, and barracks for Taliban military

personnel.

203

Near Hutala, Afghanistan, U.S. A-10 attack aircraft targeting a

terrorist suspect, Mullah Wazir, mistakenly killed nine children playing

They do not have a fixed distinctive sign recognizable from a distance and

they do not carry their arms openly. Their conduct and history of attacking

civilian populations, disregarding human life and conventional norms, and

promoting barbaric philosophies represents firm proof of their denied status.

But regardless of their inhumanity, they too have the right to be treated

humanely.

Id.

197

“Taliban and the al-Qaeda were using Red Crescent buildings and facilities, as well as

vehicles, to attempt to provide them cover so that they could go out and kill innocent men,

women and children.” Press brief by U.S. Dep’t of Defense Secretary Donald Rumsfeld

(2003), at http://www.defenselink.mil/transcripts/2003/

/tr20030425-secdef0126.html (last

visited Feb. 20, 2004).

198

See Prosper, supra note 196; see also Geneva Convention (III) Relative to the Treatment

of Prisoners of War, Aug. 12, 1949, art. 4(a),

6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into

force Oct. 21, 1950) [hereinafter

Geneva Convention III].

199

Human Rights Watch, Afghanistan: New Civilian Deaths Due to U.S. Bombing (Oct. 31,

2001), at http://www.hrw.org/press/2001/10/afghan1026.htm (last visited Feb. 19, 2002).

200

Id.

201

Human Rights News, Afghanistan: U.S. Bombs Kill Twenty-Three Civilians (Oct. 26,

2001), at http://www.Afghanistan U_ S_ Bombs Kill Twenty-three Civilians.htm (Human

Rights Watch Press Release, Quetta, Pakistan, October 26, 2001) (last visited Feb. 19, 2004).

202

Id.

203

Id.

Collateral Damage on 21

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marbles in a field.

204

In another highly publicized event, a U.S. AC-130

gunship attacked a wedding party in the village of Deh Rawud, Uruzgan

Province, killing “dozens” of civilians. Reports suggest that a large group of

guests at the wedding party were firing weapons into the air in celebration

while standing near an artillery site. The aircraft observed directed, sustained

gunfire, suggesting an attempt to engage, then returned fire in self-defense.

205

In the Summer of 2002, reporters made a total accounting of eleven locations

where civilian casualties were reported: Gardez (Nov. 14, 2001, 23 dead),

Khost (Nov. 16, 2001, at least 65 dead), Zani Khel (Nov. 16, 2001, 20 dead),

Madoo (Dec. 1, 2001, 55 dead), Khan-i-Merjahuddin (Dec. 1, 2001, 48 dead),

Asmani and Pokharai (Dec. 20, 2001, approximately 50 dead), Niazi Qala (late

Dec. 2001, 52 dead) Zhawara (Feb. 4, 2002, 3 dead), Char Chine (May 12,

2002, 5 dead) and Kakrak (Jul. 1, 2002, 54 dead).

206

If the Taliban or al-Qaeda had any plan to mount a campaign of deception

or misinformation based on collateral damage, it was not readily identifiable

from western media and did not achieve any significant public support.

207

This is probably a result of the popular political and public support of OEF

altogether with at least seventy countries participating in the coalition.

208

some cases, the Afghan population was relatively tolerant of collateral damage.

For example, an Afghan group protesting the deaths of forty civilians from a

U.S.-led raid on a village near Kandahar were upset with the incident, but

204

Aijaz Rahi, Afghan Village Angry After Gunship Attack (Dec. 7, 2001) at

http://story.news.yahoo.com/news?tmpl=story&cid=514&e=12&u=/

ap/20031207/ap_on_re_as/afghan_us_attack (last visited Feb. 19, 2004).

205

Barbara Starr, Afghans Protest Over Wedding Party Bombing, CNN.Com/World (Jul. 4,

2002) at http://www.cnn.com/2002/WORLD/asiapcf/

central/07/04/afghanistan.bombing

/ (last visited Feb. 19, 2004).

206

Global Security.Org, Operation Enduring Freedom: Operations,

http://www.globalsecurity.org/military/ops/

enduring-freedom-ops.htm (last visited Feb. 19,

2004).

207

But see IslamOnline.net, More Civilian Deaths Confirmed in Afghanistan; U.S. Increases

Pressure On Taliban, Bin Laden, at

http://www.islamonline.net/English/News/2001-

10/22/article10.shtml

(last visited Feb. 20, 2004).

Residents say at least 10 civilians died in the raids, nine of them members of

the same family killed by stray ordnance as they sat down to breakfast . . .

MSNBC also quoted a news agency reporter as saying that he has seen the

bodies of women and children in the carnage of two houses that were hit by

U.S. missiles. It was the highest civilian toll independently confirmed by

foreign media since the October 7 start of the U.S. air campaign on

Afghanistan. A Taliban spokesman said 18 civilians died in Sunday’s

raids. The Taliban have reported that at least 400 civilians have been killed

since the beginning of the U.S. onslaught two weeks ago.

Id.

208

CENTCOM, The Coalition Bulletin, Seventy Countries—Common Values—One Mission,

vol. 1(1) (Oct. 22, 2002).

42-The Air Force Law Review

expressed an objective view: “We are not against the Americans, but it doesn’t

mean they should drop bombs on residents, happy ceremonies and sanctuaries

instead of military targets . . . . The United States should get through to its

officers that this kind of incident could destroy relations and the trust between

the two nations.”

209

4. OPERATION IRAQI FREEDOM: Integration of Combatants and Civilians

on a Strategic Scale, and the Era of Concealment Warfare

OPERATION IRAQI FREEDOM (OIF) goals were largely aligned with

the elimination of weapons of mass destruction (WMD), elimination of any

terrorist threat, and the removal of the regime.

210

These political goals were

translated into operational objectives: 1) defeat or compel capitulation of Iraqi

forces; 2) neutralize regime leadership and its command & control systems; 3)

neutralize or control all Iraqi WMD delivery systems and infrastructure; 4)

ensure the territorial integrity of Iraq; 5) posture forces for post-hostility

operations and initiate humanitarian assistance where feasible; 6) establish

conditions for a provisional/ permanent government to assume power; 7)

maintain international and regional support; 8) neutralize the Iraqi regime’s

security forces; and 9) acquire air, maritime and space supremacy.

211

Though a complete accounting of damage to civilian objects and civilian

casualties resulting from the war is impossible, some attempts to quantify the

dead have been made. Iraq claimed 1,252 civilians were killed and 5,103

injured from coalition attacks as of April 3, 2003.

212

A review of records at

sixty of Iraq’s 124 hospitals in June of the same year indicated 3,420 dead,

including 1,896 in Baghdad.

213

The Associated Press described the count as

“fragmentary” and said, “the complete toll, if it is ever tallied, is sure to be

209

Starr, supra note 205; see also Rahi, supra note 204.

210

Specifically stated goals were detailed as: 1) stabilize and maintain the territorial integrity

of Iraq and promote a broad-based government that renounces weapons of mass destruction

[hereinafter WMD] and terrorism; 2) leverage success in Iraq to compel other countries to

cease support to terrorists and to deny access to WMD; 3) destabilize, isolate, and overthrow

the Iraqi regime and provide support to a new, broad-based government; 4) destroy Iraqi

WMD capability and infrastructure; 5) protect allies and supporters from Iraqi threats and

attacks; and 6) destroy terrorist networks in Iraq. T. M

ICHAEL MOSELEY, LT. GEN.,

COMMANDER, U.S. CENTRAL AIR FORCE, ASSESSMENT AND ANALYSIS DIVISION,

OPERATION IRAQI FREEDOM—BY THE NUMBERS (Apr. 30, 2003).

211

Id.

212

See Niko Price, Tallying Civilian Death Toll in Iraq War Is Daunting, P

HILADELPHIA INQ.,

Jun. 11, 2003, at A-03; Laura King, Baghdad’s Death Toll Assessed, L.A. TIMES, May 18,

2003, at Foreign Desk 1(1); Peter Ford, Survey Pointing to High Civilian Death Toll in Iraq,

HRISTIAN SCI. MONITOR, May 22, 2003, at 1.

213

See supra combined sources in note 212 and accompanying text.

Collateral Damage on 21

Century Battlefield-43

significantly higher.”

214

Cluster munitions were reportedly responsible for

273 civilian casualties at al-Hilla and al-Najaf, and ground combat was

responsible for 381 civilian deaths at al-Nasiriya.

215

The Los Angeles Times

completed a survey of twenty-seven hospitals in Baghdad and the local area,

reporting that at least 1,700 civilians died and more than 8,000 were injured in

the capital.

216

Problems leading to an accurate count of civilian casualties

include the dead being buried almost immediately in observance of Islamic

tradition, and the low priority to record and assemble data during combat

operations. Part of the problem in maintaining statistics was the inability to

distinguish civilians from soldiers who were dressed in civilian clothes. The

U.S. does not have a formal requirement to investigate collateral damage

incidents, nor does it have any requirement to acquire data on the number of

civilians killed or injured during operations. Like previous operations, the

most accurate data available is from media, non-government organizations

(NGOs) and humanitarian interest groups.

Significant collateral damage incidents resulted from Iraqi forces using

civilian shields, feigning surrender, commingling with the civilian population,

and misusing emergency relief vehicles or hospitals to conduct military

operations (Figures 3–5).

217

Iraqi forces transferred ammunition from military

depots to smaller bunkers in civilian neighborhoods, schools, cultural sites,

religious sites and other civilian facilities to avoid attack (Figures 6–9).

218

214

Niko Price, 3,240 Civilian Deaths in Iraq, ASSOC. PRESS, Jun. 10, 2003, at International

News.

215

UMAN RIGHTS WATCH [hereinafter HRW], OFF TARGET: THE CONDUCT OF THE WAR

AND

CIVILIAN CASUALTIES IN IRAQ 128–32 (2003).

216

King, supra note 212.

217

Richard Whittle, U.S. Accuses Iraq Forces Of Engaging In War Crimes, D

ALLAS

MORNING NEWS, Mar. 27, 2003, at A-21.

218

HRW, supra note 215, at 74–76.

In at least some cases, the placement of this military hardware suggested that

Iraqi armed forces failed to take the necessary precautions to spare civilians

from the dangers of urban warfare. From Baghdad to Basra, Human Rights

Watch documented dozens of examples of such lack of precautions. Iraqi

forces established positions in civilian areas in the weeks before the war.

They brought military vehicles and weapons into Nadir, a crowded slum in

al-Hilla, a week or so before the conflict began and several weeks before the

battle there. In a village on the road between al-Hilla and Baghdad, Human

Rights Watch saw three tanks wedged into three narrow alleyways. Such

placement would not have been the result of ordinary maneuvers during

battle. At al-Najah Intermediary School for Girls, located in a Karbala’

residential area, Iraqi troops had dug fighting positions with anti-aircraft

guns in the schoolyard. Human Rights Watch found dug-in mortar positions

and anti-aircraft cannons between homes in Hay al-Zaitun in Basra. Such

placements appear to have been intentional, not merely the result of falling

back into urban areas during fighting. Iraqi forces also placed large caches

44-The Air Force Law Review

Anti-aircraft weapons were placed on the roof of the Ministry of Information

(Figure 10)

219

and the Iraqi 51st Warning and Control Regiment relocated to a

mosque before hostilities.

220

Perfidy, deception and attempts to acquire

sanctuary in civilian communities was commonplace for Iraqi forces:

To sum up, we are now observing an activity that has

been going on for over 10 years. The Iraqis have regularly

placed air defense missile systems and associated equipment in

and around civilian areas, including parks, mosques, hospitals,

hotels, crowded shopping districts, and even in cemeteries.

They have positioned rocket launchers next to soccer stadiums

that are in active use, and they’ve parked operational surface-to-

air missile systems in civilian industrial areas. This is a well-

organized, centrally managed effort, and its objectives are

patently clear: preserve Iraq’s military capabilities at any price,

even though it means placing innocent civilians and Iraq’s

cultural and religious heritage at risk.

221

of weapons and ammunition in civilian neighborhoods. For example,

residents said troops established caches in Hay al-Khadra, a neighborhood of

Baghdad, the week before the war started. Several munition stores seemed

to pre-date the war. Human Rights Watch visited a huge storage facility near

al-Maqal Airfield in Basra that was only a half-kilometer (.3 miles) from a

civilian neighborhood. The quantity and nature of the munitions stored at

this facility were such that if it had been attacked, the civilian neighborhood

would have suffered extensive damage.

Id.

Some Iraqi civilians interviewed by Human Rights Watch interpreted the location of military

hardware in neighborhoods as an intentional attempt by the Iraqi armed forces to use civilians

to protect military objectives. “They put anti-aircraft guns in civilian areas to have a safe

place. They thought the Americans would not hit them because it was between civilians,” said

Dr. Muhammad Hassan al-Ubaidi of al-Najaf Teaching Hospital. Human Rights Watch also

found examples of Iraqi troops failing to take any steps to protect the population, including the

implementation of evacuation plans. Four residents in Nadir, for example, said no precautions

had been taken to ensure their safety. Residents of Hay al-Khadra’a in Baghdad provided

similar testimony. “There were . . . vehicles, armor, and weapons (anti-aircraft and rocket

launchers) in the streets, highway, and homes. . . . The Iraqi forces did not make any attempt

to evacuate us. They did nothing else to protect us and other civilians from the battle,” said

Munkith Fathi Abd al-Razzaq. On the contrary, it appears the Iraqi troops hoped the presence

of civilians would deter enemy attacks. Id.

219

Id. at 74–76.

220

Interview with Col Brett Williams, Chief of CENTCOM Checkmate Division in Tampa,

Florida (Oct. 29, 2003).

221

DOD, Open Briefing on Use of Human Shields in Iraq (Feb. 26, 2003) at

http://www.defenselink.mil/news/Feb2003/t02262003_

t0226humanasst.htm (last visited Mar. 30, 2004).

Collateral Damage on 21

Century Battlefield-45

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 3—Iraqi Civilian Ambulance Used for Military Communications

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 4—Military Radio Equipment Inside Iraqi Civilian Ambulance

46-The Air Force Law Review

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 5—Military Radio Components Inside Iraqi Civilian Ambulance

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 6—Iraqi Military Vehicles Staged Near Mosque

Collateral Damage on 21

Century Battlefield-47

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 7—Iraqi Military Revetments Near Civilian Village and School

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 8—Iraqi Military Revetments Near Civilian Food Storage

Warehouse

48-The Air Force Law Review

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 9—Iraqi Military Ammunition Depot Located Near Mosque

Collateral Damage on 21

Century Battlefield-49

Source: Courtesy of U.S. Department of Defense, Defense Intelligence Agency

Figure 10—Anti-aircraft Guns Located on the Roof of the Iraqi Ministry of

Defense

Iraqi forces were in many cases very well integrated with the civilian

community, even to the point of commingling with civilians on buses during

combat.

222

Iraqi civilians regularly reported seeing Iraqi troops out of

222

James Pinkerton, Marine Tells of Confusion in Warfare, H

OUSTON CHRONICLE, Apr. 4,

2003, at A-23.

Simmons, a crew chief on a light tank, described a confusing, harrowing

type of warfare in which Iraqi troops take off their uniforms to blend in with

the civilian population and Marines have learned to trust no one. “I mean,

you don’t know what to do,” Simmons said. “You just got to be careful.”

He told how a humanitarian mission had turned into a fierce firefight and

how his Marines had “lit up,” or fired upon, buses filled with Iraqis in

civilian clothes. The Marines, he said, surmise that the Iraqis were civilians

being used by Saddam Hussein’s troops as human shields. But the bus

passengers could also have been Iraqi soldiers. He spoke of having to kill

Iraqis who may have been civilians near al Nasiriyah after his unit was

called in to support another Marine outfit. After dark, he said, the Marines

watched as several local buses stopped near their position and large numbers

of people got off. A short time later, he said, the Marines came under attack

by Iraqi troops. “We thought it was just a bus stop,” Simmon said, adding

that Marines quickly surmised that Iraqi soldiers were mixed in with the

passengers. “We were ordered to shoot after the first two buses stopped,” he

said. “It was dark. The civilians were sitting in the seats, and the Iraqi

50-The Air Force Law Review

uniform. One witness expressed concern that the practice resulted in numerous

civilian casualties. Dr. `Abd al-Sayyid, director of al-Nasiriya General

Hospital, said “Fedayeen were among the civilian homes. . . . [T]he problem

was with the Iraqi troops and Fedayeen dressed as civilians.”

223

Iraqi

witnesses in al-Najaf and in the al-Yarmuk neighborhood of Baghdad reported

similar practice among Iraqi forces.

224

Almost every member of the Coalition

interviewed by HRW commented on the practice. One senior officer observed,

“By March 24 [the fourth day of the war], we were already seeing a large

number of irregulars out of uniform. It was clearly a combination of

systematic and conscious [strategy].”

225

The Iraqi strategy to conceal military assets with civilian objects, wear

civilian clothes, and commingle with the civilian population was problematic

to operations, creating a high potential for civilian casualties and increasing

stress on U.S. forces instructed to spare civilian life when engaged.

226

troops were standing in the aisles with their guns out the windows. It was

like a rolling gunship. “Once we started firing at the bus and the civilians

got down on the floor,” Simmons said, “the Iraqi soldiers came out and

started coming toward us. We have thermal imaging, so they didn’t have a

chance. “In the morning, the Marines found dead people in civilian clothes

in and around the bus, Simmons said. He believes that “we did kill some

civilians.” “On each bus we’d find 30 or 40 civilians. We felt bad about it,”

Simmons said.

223

HRW, supra note 215, at 78–79.

224

Id.

225

Id. Other reports of Iraqi combatants fighting in civilian clothes came from Marines

caught in an ambush along the route from al-Nasiriyya to al-Kut, and from soldiers in the

Second Brigade, Third Infantry Division, who fought in al-Najaf. The Iraqis often combined

disguise with use of civilian vehicles, particularly orange-and-white taxis. On April 7, 2003,

for example, Special Republican Guard forces launched a counterattack on Second Brigade

forces entering Baghdad while firing from civilian vehicles and wearing civilian clothes. Id.

226

CENTCOM, Appendix E: Rules of Engagement for U.S. Military Forces in Iraq, Issued

by CENTCOM Combined Forces Land Component Commander (Jan., 2003), reprinted in

HRW, supra note 215, at App. E, p. 138.

1. On order, enemy military and paramilitary forces are declared hostile and

may be attacked subject to the following instructions: a) 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. b) Do not engage anyone

who has surrendered or is out of battle due to sickness or wounds. c) Do not

target or strike any of the following except in self-defense to protect

yourself, your unit, friendly forces, and designated persons or property under

your control: Civilians, Hospitals, mosques, national monuments, and any

other historical and cultural sites. d) Do not fire into civilian populated areas

or buildings unless the enemy is using them for military purposes or if

necessary for your self-defense. Minimize collateral damage. e) Do not

target enemy infrastructure (public works, commercial communication

facilities, dams), Lines of Communication (roads, highways, tunnels,

Collateral Damage on 21

Century Battlefield-51

Soldiers from the U.S. Army’s 3rd Infantry Division opened fire on an

unidentified four-wheel drive vehicle as it was approaching a U.S. checkpoint

near al-Najaf on March 31, 2003.

227

Personnel in Bradley Fighting Vehicles

attempted to direct the vehicle to stop, then opened fire with 25mm cannons,

killing seven of the fifteen civilian passengers.

228

The London Times reported

Iraqi soldiers in civilian dress used women as their scouts to lure U.S. Marines

into a firefight. Sixteen Iraqi soldiers were killed in the battle along with

twelve civilians.

229

In another event, Marines shot a speeding civilian truck

that failed to halt, killing three men only to find bags of rice and no weapons

inside.

230

Commenting on the Iraqi Regime’s methods, Vice President Taha

Yassin Ramadan threatened: “This is the beginning, and you will hear more

good news in the coming days. We will use any means to kill our enemy in our

land, and we will follow the enemy into its land.”

231

In a measure to minimize

civilian casualties, Coalition forces routinely dropped leaflets from the air

advising Iraqi civilians of pending attacks, and to stay away from military

assets. The Iraqi regime responded by issuing erroneous warnings that the

leaflets were coated with harmful chemical residue.

232

bridges, railways) and Economic Objects (commercial storage facilities,

pipelines) unless necessary for self-defense or if ordered by your

commander. If you must fire on these objects to engage a hostile force,

disable and disrupt but avoid destruction of these objects, if possible.

2. The use of force, including deadly force, is authorized to protect the

following: Yourself, your unit, and friendly forces, Enemy Prisoners of War,

Civilians from crimes that are likely to cause death or serious bodily harm,

such as murder or rape, Designated civilians and/or property, such as

personnel of the Red Cross/Crescent, UN, and US/UN supported

organizations.

3. Treat all civilians and their property with respect and dignity. Do not

seize civilian property, including vehicles, unless you have the permission of

a company level commander and you give a receipt to the property’s owner.

4. Detain civilians if they interfere with mission accomplishment or if

required for self-defense.

5. CENTCOM General Order No. 1A remains in effect. Looting and the

taking of war trophies are prohibited.

227

Press Release, Amnesty International, Iraq: U.S. Must Investigate Civilian Deaths, News

Service No: 075 (Apr. 1, 2003).

228

Id.

229

Elizabeth Neuffer, City Battles Will Boost Growing Civilian Toll, BOSTON GLOBE, Apr. 7,

2003, at A-25.

230

Id.

231

Press Release, Amnesty International, Iraq: Soldiers’ Surprise Likely to Rebound on

Civilians, News Service No: 076 (Apr. 1, 2003), Bruce Cheadle, Attack on Iraq: War Crime

Allegations Flying; Both Sides in Conflict Charge Each Other with Violating Conventions of

Warfare, W

INDSOR STAR, Mar. 31, 2003, at B-2.

232

Richard Whittle, United States ‘Preparing the Battlefield’ with Anti-Hussein Messages,

DALLAS MORNING NEWS, Mar. 10, 2003, at A-1.

52-The Air Force Law Review

Reports indicate that Iraqi political leaders may have also used Thuraya

cell phones to provoke attacks on protected facilities. On March 24, 2003 two

high profile Iraqi political leaders arrived at the same al-Nasiriya hospital

where Pvt Jessica Lynch was captive. In an apparent effort to seek protection

from attack or to provoke an attack on the hospital, the governor of al-Nasiriya,

Adel Mehdi, and head of security, Kamil Bahtat, arrived brandishing Thuraya

satellite phones.

233

Aware that the phones could be electronically detected and

targeted, physicians at the hospital “were screaming at the Ba’athists to

leave . . . . One of my colleagues even threatened to shoot them if they did

not.”

234

The two Ba’athists remained at the hospital unharmed. Although two

Red Crescents marked the roof of the hospital and a flag bearing the same

symbol was openly displayed, a coalition attack killed four and injured 70

patients.

235

In addition, a physician recalls how ambulances responding to the

incident were also attacked: “As the ambulances moved in to take the injured

to the other hospital, they fired at them, too, from helicopters.”

236

Although there were no reports of casualties, volunteer human shields in

OIF were prominent in the media, introducing another dynamic to the already

difficult issue of civilian presence in the battle space. Not an entirely novel

idea, volunteer human shields also placed themselves at strategic locations

during OAF. In a notable demonstration protesting the war, more than 200

foreign volunteers, including some from the U.S., placed themselves at Iraqi

power plants, water treatment facilities, hospitals and other installations critical

to the civilian population.

237

Upon arrival, however, some volunteers were

disappointed to find that Iraqi officials refused to let them shield their preferred

sites, hospitals and schools. Instead, they were directed to food storage and

utility sites, including one with a large military camp around it.

238

Although it

is difficult to determine the effect of volunteer human shields on the overall

campaign, their presence is recognized as a key factor in CENTCOM’s

targeting process.

239

Notwithstanding the ability to qualify volunteer human

shields as combatants pursuant to Protocol I, Article 51(3),

240

the presence of

233

Ed Vulliamy, Cover Story: Battle Cries, O

BSERVER, Jul. 6, 2003, at 22.

234

Id.

235

Id.

236

Id.

237

Rajiv Chandrasekaran, Human Shields Face the Risks; 200 Activists in Baghdad

Protecting Power Plant, W

ASH. POST, Feb. 25, 2003, at A-18.

238

Fawn Vrazo, Human Shields Return from Iraq with Mixed Experiences, P

HILADELPHIA

INQ., Apr. 6, 2003, at A-11.

239

See infra note 396 and accompanying text.

240

Protocol I, supra note 10, at art. 51(3). The article states, “Civilians shall enjoy the

protection afforded by this Section, unless and for such time as they take a direct part in

hostilities.”

Collateral Damage on 21

Century Battlefield-53

volunteer human shields in both OAF and OIF suggests another dynamic in the

growing trend to use civilians to gain a strategic advantage. When questioned

about his motives for being a human shield, one volunteer expressed

satisfaction in achieving at least one goal, “What would you expect the

American generals to say? The fact that they even talk about us is already

something. It means we are on their agenda. We are trying to annoy them as

much as possible.”

241

III. TO WHOM DO THE RULES APPLY?

“No nation is fit to sit in judgment on any other nation.”

Woodrow Wilson

“I do not know the method of drawing up an indictment against a

whole people.”

Edmund Burke

A. Application of the Law of Armed Conflict to State Adversaries

As the U.S. attempts to reach an understanding of the evil that exists in its

adversaries, it must reflect on the relationships between historical and recent

demonstrations of evil—from the genocide of indigenous populations in North

and South America, to the extermination of Jews in WWII, to more recent

ethnic cleansing campaigns in Bosnia and Rwanda. Civilians have always

been central to conflict and the subject of strategy. The U.S. must also reflect

on its own history at war to understand the motive of its adversaries to make

civilians central to conflict. To conduct an objective and thoughtful analysis of

targeting and LOAC, one must set aside the notion that there is a universal

sense of fair play and decency innate to states at war. However noble the ideal,

it also presents a paradox when the subject of collateral damage is introduced.

These notions create a false sense of superiority and principle that encourage

attack from adversaries. The question that requires thoughtful consideration is

in whose interest the laws of warfare are developed? Further, to what extent

do states manipulate or violate the rules to gain a strategic advantage?

Like many areas of international law, LOAC has been defined by states

with the most influence, and by those states with the ability and the interest to

enforce it.

242

If international law is not enforced, persistent violations can

241

David Filipov, Westerners Taking on Role of ‘Human Shields,’ B

OSTON GLOBE, Feb. 27,

2003, at A-22.

242

When addressing the subject of collateral damage to Secretary of State Henry Kissinger

during the Vietnam War, President Richard Nixon stated: “You’re so goddamned concerned

about the civilians, and I don’t give a damn. I don’t care.” Brian Braiker, The Best of the

Nixon Years: Newly Released Documents From Henry Kissinger’s Time at the White House

54-The Air Force Law Review

conceivably be adopted as customary practice, permitting conduct that was

once prohibited.

243

A rationalist approach to international law suggests

compliance is largely achieved through perceived mutual benefit. Cooperation

among states can be sustained as long as it is in their interest to do so.

244

Failure to comply with obligations under international law are traditionally

countered with distrust, cultural and social alienation, economic sanction,

political estrangement, and in extreme cases, war. In the end, international law

is only as strong as the state willing to defend it. States defending it have a

political interest to do so, and it is selectively defended according to that

interest. For example, U.S. political objectives presented an interest to enforce

international peace agreements and prevent genocide in Kosovo

245

that did not

exist for the U.S. in Rwanda where 500,000 to 800,000 Tutsi tribesmen, nearly

all civilians, were slaughtered by Hutus in 1994.

246

The necessity of

Supplement an Already Rich Record of Tidbits about the 37th President, NEWSWEEK, (May

27, 2004) at http://www.msnbc.msn.com/ id/5079259/site/newsweek/ (last visited Jun. 22,

2004). In the context of a decision to forbid a number of allied countries from bidding on U.S.

reconstruction contracts abroad, President Bush was informed that Prime Minister Schroeder

believed the decision might violate international law. In response, “the President responded

with a sarcastic gibe: ‘International law? I better call my lawyer.” Editorial, Boomerang

Diplomacy, W

ASH. POST, Dec. 12, 2003, at A-36.

243

Professor Michael J. Glennon of the Fletcher School of Law & Diplomacy explains:

Massive violation of a treaty by numerous states over a prolonged period can

be seen as casting that treaty into desuetude, as transforming its provisions to

paper rules that are no longer binding. Or those violations can be regarded

as subsequent custom that creates new law, supplanting the old treaty norms

and permitting conduct that was once a violation. Or state practice can be

considered to have created a non-liquet, to have thrown the law into a state

of confusion where legal rules are not clear and where no authoritative

answer is possible. It makes no practical difference which analytic

framework is applied. The “default position” of international law has long

been that when no restriction can be authoritatively established, a state is

seen as free to act.

Michael J. Glennon, The U.N. Security Council in a Unipolar World, V

IRGINIA J. INT’L L. 98

(Fall, 2003).

244

For a discussion of the rationalist approach to compliance with international law, see, e.g.,

John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations

Theory and International Law, 37 H

ARV. INT’L L.J. 139, 142-47 (1996); Kenneth W. Abbott,

Trust but Verify: The Production of Information in Arms Control Treaties and Other

International Agreements, 26 C

ORNELL INT’L L.J. 1(1993); Kenneth W. Abbott, Modern

International Relations Theory: A Prospectus for International Lawyers, 14 Y

ALE J. INT’L L.

335 (1989).

245

See supra note 165and accompanying text.

246

Although the U.S. was disturbed by the atrocities in Rwanda, and attempted to negotiate

reforms for multi-lateral peace operations, relatively little U.S. military support was offered to

end hostilities and protect the civilian population from genocidal activity. U.S. Dep’t. of State,

White Paper, The Clinton Administration’s Policy on Reforming Multi-National Peace

Operations (May, 1994).

Collateral Damage on 21

Century Battlefield-55

international law, however, is also made evident by these same events, and by

strategists like Douhet, who openly advocated opening the wrath of war on the

civilian population.

247

Generally, international law in the form of treaties or other international

agreements is binding only on the states that enter into them.

248

Customary

international law is generally binding on all states regardless of agreement or

objection because custom emanates from universal norms of behavior among

states.

249

Custom is also like natural law in the sense that certain acts are so

fundamentally and morally wrong that it is presumably understood universally

without codification. After WWII, the International Law Commission of the

United Nations established principles common to all states that were derived

from custom. The basic text of the document establishes that anyone

committing an act which constitutes a crime under international law may be

punished regardless if the individual has acted appropriately under their

domestic laws or was acting under the authority of their state government.

250

247

DOUHET, supra note 40, at 189.

248

See Vienna Convention on the Law of Treaties, May 23, 1969, arts. 26, 29 & 34–38, 1155

U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969). A treaty does not create obligations or rights

for a third state without its consent, but nothing precludes a rule in a treaty from becoming

binding upon a third state as a customary rule of international law. Id. at art. 38.

249

Id.

250

Draft Articles on

Responsibility of States for Internationally Wrongful Acts, in Report of

the International Law Commission on the Work of Its Fifty-third Session, U.N. GAOR, 56th

Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001);

Convention on the Non-Applicability of

Statutory Limitations to War Crimes and Crimes against Humanity,

Nov. 26, 1968, 754

U.N.T.S. 73; European Convention on the Non-Applicability of Statutory Limitations to

Crimes against Humanity and War Crimes, Jan. 25, 1974, 13 I.L.M. 540; Principles of

International Law Recognized in the Charter

of the Nurnberg Tribunal and in the Judgment of

the Tribunal (1950) 2 Y.B. Int’l L. Comm’n 374, 377, U.N. Doc. A/CN.4/SER.A/1950/Add.1:

Principle I. Any person who commits an act which constitutes a crime under

international law is responsible therefore and liable [for] punishment.

Principle II. The fact that internal law does not impose a penalty for an act

which constitutes a crime under international law does not relieve the person

who committed the act from responsibility under international law.

Principle III. The fact that a person who committed an act which constitutes

a crime under international law acted as Head of State or responsible

Government official does not relieve him from responsibility under

international law.

Principle IV. The fact that a person acted pursuant to order of his

Government or of a superior does not relieve him from responsibility under

international law, provided a moral choice was in fact possible to him.

Principle V. Any person charged with a crime under international law has

the right to a fair trial on the facts and law.

Principle VI. The crimes hereinafter set out are punishable as crimes under

international law:

(a) Crimes against peace: (i) Planning, preparation, initiation or waging of a

war of aggression or a war in violation of international treaties, agreements

56-The Air Force Law Review

The International Law Commission also maintained that basic rights and

responsibilities are inherent to the maintenance of world order. In their Draft

Declaration on Rights and Duties of States, the Commission wrote that states

have the duty to “refrain from the threat or use of force against the territorial

integrity or political independence of another State in any other manner

inconsistent with international law and order.” Further, “Every State has the

right of individual or collective self-defense against an armed attack.”

251

or assurances; (ii) Participation in a common plan or conspiracy for the

accomplishment of any of the acts mentioned under (i).

(b) War Crimes: Violations of the laws or customs of war which include, but

are not limited to, murder, ill-treatment or deportation to slave-labour or for

any other purpose of civilian population of or in occupied territory; murder

or ill-treatment of prisoners of war, of persons on the Seas, killing of

hostages, plunder of public or private property, wanton destruction of cities,

towns, or villages, or devastation not justified by military necessity.

deportation and other inhuman acts done against any civilian population, or

persecutions on political, racial or religious grounds, when such acts are

done or such persecutions are carried on in execution of or in connection

with any crime against peace or any war crime. Id.

251

Draft Declaration on Rights and Duties of States, Report of the International Law

Commission Covering its First Session (12 Apr.–9 Jun., 1949) U.N. GAOR, 4th Sess., Supp.

No. 10 (A/925):

Whereas the States of the world form a community governed by

international law,

Whereas the progressive development of international law requires effective

organization of the community of States,

Whereas a great majority of the States of the world have accordingly

established a new international order under the Charter of the United

Nations, and most of the other States of the world have declared their desire

to live within this order,

Whereas a primary purpose of the United Nations is to maintain international

peace and security, and the reign of law and justice is essential to the

realization of this purpose, and

Whereas it is therefore desirable to formulate certain basic rights and duties

of States in the light of new developments of international law and in

harmony with the Charter of the United Nations,

The General Assembly of the United Nations adopts and proclaims this

Declaration on Rights and Duties of States:

Article 1. Every State has the right to independence and hence to exercise

freely, without dictation by any other State, all its legal powers, including the

choice of its own form of government.

Article 2. Every State has the right to exercise jurisdiction over its territory

and over all persons and things therein, subject to the immunities recognized

by international law.

Article 3. Every State has the duty to refrain from intervention in the internal

or external affairs of any other State.

Collateral Damage on 21

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Combined with the 1945 U.N. charter, these instruments demonstrate an

attempt to establish a minimum set of rules applicable to all states, including in

warfare.

The U.N. attempted to specifically codify the protection of civilians in the

Geneva Conventions of 1949. The devastating aftermath of WWII on civilians

demanded that the international community develop universally acceptable

principles for the protection of civilians. Protocols I and II of the Geneva

Conventions provide the most modern and comprehensive protection.

252

However, the popularity of the Protocols in the international community was

initially mixed. Consistent with a rationalist theory of what compels states to

cooperate, the Protocols did not provide mutual benefits to all concerned.

Differing agendas of the states present at the conventions resulted in differing

interpretations and objections that have relevance today. During negotiations,

under-developed states recognized the superior capabilities of western defense

Article 4. Every State has the duty to refrain from fomenting civil strife in

the territory of another State, and to prevent the organization within its

territory of activities calculated to foment such civil strife.

Article 5. Every State has the right to equality in law with every other State.

Article 6. Every State has the duty to treat all persons under its jurisdiction

with respect for human rights and fundamental freedoms, without distinction

as to race, sex, language, or religion.

Article 7. Every State has the duty to ensure that conditions prevailing in its

territory do not menace international peace and order.

Article 8. Every State has the duty to settle its disputes with other States by

peaceful means in such a manner that international peace and security, and

justice, are not endangered.

Article 9. Every State has the duty to refrain from resorting to war as an

instrument of national policy, and to refrain from the threat or use of force

against the territorial integrity or political independence of another State in

any other manner inconsistent with international law and order.

Article 10. Every State has the duty to refrain from giving assistance to any

State which is acting in violation of article 9, or against which the United

Nations is taking preventive or enforcement action.

Article 11. Every State has the duty to refrain from recognizing any

territorial acquisition by another State acting in violation of article 9.

Article 12. Every State has the right of individual or collective self-defense

against armed attack.

Article 13. Every State has the duty to carry out in good faith its obligations

arising from treaties and other sources of international law, and it may not

invoke provisions in its constitution or its laws as an excuse for failure to

perform this duty.

Article 14. Every State has the duty to conduct its relations with other States

in accordance with international law and with the principle that the

sovereignty of each State is subject to the supremacy of international law.

Id.

252

See generally Protocols I & II, supra note 10.

58-The Air Force Law Review

technology and argued for restrictions.

253

Attempts by weaker states to

negotiate restrictions on states with superior defense technology is one

effective method to level the playing field for potential adversaries.

Conversely, superior states seek to compel compliance with LOAC principles,

restricting a weaker state’s ability to wage war.

The Supreme Court articulated the U.S. resolve to enforce LOAC against

U.S. adversaries as early as WWII. In February, 1946 General Douglas

MacArthur affirmed the death sentence imposed on Japanese General

Tomayuki Yamashita by a U.S. military commission prosecuting him for war

crimes in the Philippines. His crimes included the murder of 8,000 civilians

and rape of 500 women over a two-week period.

254

Yamashita appealed the

conviction to the U.S. Supreme Court on the basis that he did not personally

commit the crimes, did not order them, and generally was not aware of

them.

255

It was not alleged by the prosecution that Yamashita had knowledge

or ordered the crimes, nor was it a requirement for conviction.

256

The

Supreme Court denied the petition, explaining there was no error in the

tribunal’s judgment. The Court reasoned that Yamashita could or should have

known about the atrocities committed by his subordinates.

257

“These [law of

war] provisions plainly imposed on petitioner, who at the time specified was

military governor of the Philippines, as well as commander of the Japanese

forces, an affirmative duty to take such measures as were within his power and

appropriate in the circumstances to protect prisoners of war and the civilian

253

In his statement concerning the Geneva Convention, Ambassador George H. Aldrich

stated:

Some countries have been led by their experience, geography, industrial

development, and other factors to invest in and rely on certain weapons for

their military forces, and other countries have been led to invest in and rely

on other weapons. All of these differences, and others, continue to produce

profoundly different views of both priorities and possibilities in the

development of legal restraints on the means and methods of warfare.

U.S. Dep’t of State, Report of the U.S. Delegation to the Conference of Government Experts

on the Reaffirmation and Development of International Humanitarian Law Applicable in

Armed Conflicts 54 (1972). Of the 191 members of the United Nations, 191 are party to the

Geneva Conventions of 1949, 161 are party to Protocol I and 156 are party to Protocol II. Data

accurate as of January 27, 2004. ICRC, States Party to the Geneva Conventions and their

Additional Protocols: Geneva Conventions of 12 August

1949 and their Additional Protocols

of 8 June 1977, at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpaList74/

77EA1BDEE20B4CCDC1256B6600595596 (last visited Jan. 27, 2004).

254

In re Yamashita, 327 U.S. 1 (1946).

255

Id.

256

William H. Parks, Criminal Responsibility for War Crimes, 62 M

IL;. L. REV. 1, 23–24

(1973). Parks argues that evidence in the record of trial indicates Yamashita ordered the

summary execution of 2,000 people. Id. at 27 n. 92.

257

In re Yamashita, 327 U.S.1, 16.

Collateral Damage on 21

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population.”

258

Although the court carefully avoided application or mention

of a standard of strict liability, a review of the decision suggests it would be

difficult to reach a finding of guilt without it. The Court summarized U.S.

determination to enforce LOAC against U.S. adversaries as follows:

An important incident to the conduct of war is the

adoption of measures by the military commander, not only to

repel and defeat the enemy, but to seize and subject to

disciplinary measures those enemies who, in their attempt to

thwart or impede our military effort, have violated the law of

war. Ex parte Quirin, supra, 28. The trial and punishment of

enemy combatants who have committed violations of the law of

war is thus not only a part of the conduct of war operating as a

preventive measure against such violations, but is an exercise of

the authority sanctioned by Congress to administer the system

of military justice recognized by the law of war. That sanction

is without qualification as to the exercise of this authority so

long as a state of war exists—from its declaration until peace is

proclaimed. See United States v. Anderson, 9 Wall. 56, 70; The

Protector, 12 Wall. 700, 702; McElrath v. United States, 102

U.S. 426, 438; Kahn v. Anderson, 255 U.S. 1, 9-10. The war

power, from which the commission derives its existence, is not

limited to victories in the field, but carries with it the inherent

power to guard against the immediate renewal of the conflict,

and to remedy, at least in ways Congress has recognized, the

evils which the military operations have produced. See Stewart

v. Kahn, 11 Wall. 493, 507.

259

In sharp contrast to the Yamashita case, U.S. First Lieutenant William

Calley was convicted of the premeditated murder of twenty-two infants,

children, women, and elderly men, and the assault with intent to murder a child

of approximately two years of age.

260

The crimes took place on March 16,

1968 in the South Vietnamese village of May Lai.

261

Testimony provided by

witnesses and circumstantial evidence also suggested his immediate

commanding officer, Captain Ernest Medina, also failed in his command

responsibility:

258

Id.

259

Id. at 12.

260

United States v. Calley, 22 U.S.C.M.A. 534 (1973).

261

Id. at 536.

60-The Air Force Law Review

He instructed his troops that they were to destroy the

village by “burning the hootches, to kill the livestock, to close

the wells and to destroy the food crops.” Asked if women and

children were to be killed, Medina said he replied in the

negative, adding that, “You must use common sense. If they

have a weapon and are trying to engage you, then you can shoot

back, but you must use common sense.” However, Lieutenant

Calley testified that Captain Medina informed the troops they

were to kill every living thing—men, women, children, and

animals—and under no circumstances were they to leave any

Vietnamese behind them as they passed through the villages

enroute to their final objective.

Other witnesses gave more or

less support to both versions of the briefing.

262

Communication between the officers involved, as well as witness

statements from the trial, indicates Medina may have given orders to commit

war crimes. A more conservative analysis suggests Medina had or could have

had at least some knowledge of Calley’s crimes because he was in close

enough proximity to the village to hear small arms in the battle space, knew the

My Lai village was not contested by the Vietcong, and had regular

communication with Calley.

263

In spite of this evidence, Medina was

acquitted of charges that he failed to exercise command responsibility.

264

comparison of the legal standard applied in the Yamashita case with that in

Calley indicates divergent and different applications of the same law. No

knowledge was required for the conviction and subsequent execution in

Yamashita, while knowledge was specifically required to obtain a conviction

of Medina.

265

The failure to apply a near strict liability standard against an

262

Id. at 538.

263

Id. See also Colonel William G. Eckhardt, Command Criminal Responsibility: A Plea For

a Workable Standard, 97 M

IL. L. REV. 1, 12 (Summer, 1982).

264

Id.

265

Id. at 15. Citing Instructions to the Court Members, United States v. Medina, Appellate

Exhibit XCIII, 18.

INSTRUCTION: In relation to the question pertaining to the supervisory

responsibility of a Company Commander, I advise you that as a general

principle of military law and custom a military superior in command is

responsible for and required, in the performance of his command duties, to

make certain the proper performance by his subordinates of their duties as

assigned by him. In other words, after taking action or issuing an order, a

commander must remain alert and make timely adjustments as required by a

changing situation. Furthermore, a commander is also responsible if he has

actual knowledge that troops or other persons subject to his control are in

the process of committing or are about to commit a war crime and he

wrongfully fails to take the necessary and reasonable steps to insure

Collateral Damage on 21

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enemy commander, but require actual knowledge in cases involving U.S.

commanders, illustrates international legal standards favor, and are a function

of the state enforcing them. The elements of criminal liability under the

current command responsibility doctrine are: 1) the existence of a superior-

subordinate relationship between the commander and the perpetrator of the

crime; 2) that the commander knew or should have known, owing to the

circumstances at the time, that his subordinates had committed, were

committing, or planned to commit acts that violate the law of war; and 3) that

the commander failed to prevent the commission of the crimes, or failed to

punish the subordinates after the commission of the crimes.

266

The current

compliance with the law of war. You will observe that these legal

requirements placed upon a commander require actual knowledge plus a

wrongful failure to act (emphasis added).

A Senate report describing Yamashita’s holding states that the Supreme Court found a foreign

general “responsible for a pervasive pattern of war crimes (1) committed by his officers when

(2) he knew or should have known they were going on but (3) failed to prevent or punish

them.” In re Yamashita, supra note 254 at 10, citing S. Rep. No. 102-249, at 9 (1991). The

International Criminal Tribunals for the Former Yugoslavia and Rwanda have statutes

containing substantively similar language for imposing commander responsibility. “The fact

that any of the acts referred to in article 2 to 5 of the present Statute was committed by a

subordinate does not relieve his superior of criminal responsibility if he knew or had reason to

know that the subordinate was about to commit such acts or had done so and the superior

failed to take the necessary and reasonable measures to prevent such acts or to punish the

perpetrators thereof.” Sta

tute of the International Criminal Tribunal for the Former

Yugoslavia,

S.C. Res. 808, U.N. SCOR, 48th Sess., 3175th mtg., U.N. Doc. S/RES/808, art.

7(3) (1993), annexed to Report of the Secretary-General pursuant to Paragraph 2 of Security

Council Resolution 808 (1993), U.N. Doc. S/25704 & Add. 1 (1993). “The fact that any of the

acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does

not relieve his or her superior of criminal responsibility if he or she knew or had reason to

know that the subordinate was about to commit such acts or had done so and the superior

failed to take the necessary and reasonable measures to prevent such acts or to punish the

perpetrators thereof.”

Statute of the International Criminal Tribunal for Rwanda, S.C. Res.

955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, U.N. Doc. S/RES/955, art. 6(3) (1994).

266

Ford v. Garcia, 289 F.3d 1283, 1288 (2002). Compare, The Rome Statute of the

International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome

Statute], art. 28:

Responsibility of commanders and other superiors In addition to other

grounds of criminal responsibility under this Statute for crimes within the

jurisdiction of the Court: (a) A military commander or person effectively

acting as a military commander shall be criminally responsible for crimes

within the jurisdiction of the Court committed by forces under his or her

effective command and control, or effective authority and control as the case

may be, as a result of his or her failure to exercise control properly over such

forces, where: (i) That military commander or person either knew or, owing

to the circumstances at the time, should have known that the forces were

committing or about to commit such crimes; and (ii) That military

commander or person failed to take all necessary and reasonable measures

within his or her power to prevent or repress their commission or to submit

the matter to the competent authorities for investigation and prosecution. (b)

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U.S. command responsibility doctrine is similar in many ways to the doctrine

applied in Yamashita.

B. Application of the Law of Armed Conflict to Non-State Adversaries

The application of international law to non-state adversaries is problematic,

and in most cases inappropriate. Non-state actors can be broken into two

separate groups: 1) non-state actors who are part of a wholly internal civil

conflict where the state’s self determination is at issue; and 2) hostes humani

generis, otherwise known as the common enemies of humankind. The popular

phrase “one person’s terrorist is another’s freedom fighter” helps make a

relevant distinction. Article 3 of the 1949 Geneva Convention provides

humanitarian protections to non-state combatants when participating in an

internal armed insurgency without questioning the motive or method of the

insurgents.

267

The parties to the insurgency are also encouraged to enter into

special domestic agreements adopting all the other provisions of the

Convention.

268

Applicability of LOAC to non-state actors is complicated by

the fact that these actors are not otherwise bound in any way by international

law or custom.

The second group of non-state actors, hostes humani generis, includes

actors who have no formal state alignment, and whose acts are generally

considered criminal to the international community. Since private warfare

violates even the earliest principles of international law,

269

the international

With respect to superior and subordinate relationships not described in

paragraph (a), a superior shall be criminally responsible for crimes within the

jurisdiction of the Court committed by subordinates under his or her

effective authority and control, as a result of his or her failure to exercise

control properly over such subordinates, where: (i) The superior either knew,

or consciously disregarded information which clearly indicated, that the

subordinates were committing or about to commit such crimes; (ii) The

crimes concerned activities that were within the effective responsibility and

control of the superior; and (iii) The superior failed to take all necessary and

reasonable measures within his or her power to prevent or repress their

commission or to submit the matter to the competent authorities for

investigation and prosecution.

267

See The Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of

War, supra note 75, at art. 3.

268

Id.

269

See, e.g., early Greek normative rules of warfare, supra note 7. E

MMERICH DE VATTEL,

HE LAW OF NATIONS, BOOK III, OF WAR, CHAP. IV. OF THE DECLARATION OF WAR—AND OF

WAR IN DUE FORM, § 4 (1758) (“It would be too dangerous to allow every citizen the liberty of

doing himself justice against foreigners . . . . Thus the sovereign power alone is possessed of

authority to make war.”); L

IEBER, supra note 21, at art. 82:

Men . . . who commit hostilities, whether by fighting, or inroads for

destruction or plunder, or by raids of any kind, without commission, without

Collateral Damage on 21

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community is obliged to destroy the threat of hostes humani generis where it

exists to maintain international order.

270

This is particularly true where

terrorism is concerned. The U.N. has promulgated specific language to deny

sanctuary and eliminate terrorist groups wherever they exist.

271

Although

state-sponsored terrorism is a significant and constantly emerging threat, these

groups do not enjoy the protections or benefits of international law regardless

of their state sponsorship.

IV. INTERNATIONAL CRIMES INVOLVING COLLATERAL

DAMAGE

“The nation that draws too great a distinction between its

scholars and its warriors will have its thinking done by cowards

and its fighting done by fools.”

Thucydides

Until the creation of the International Criminal Court (ICC) in 1998 at the

Hague, Netherlands,

272

war crimes were traditionally prosecuted in tribunals

assembled at the end of a conflict.

273

States may also independently prosecute

their service members for war crimes under individual military criminal codes

like the U.S. Uniform Code of Military Justice. Although the ICC is fully

being part and portion of the organized hostile army, and without sharing

continuously in the war, but who do so with intermitting returns to their

homes and avocations, or with the occasional assumption of the semblance

of peaceful pursuits, divesting themselves of the character or appearance of

soldiers—such men, or squads of men, are not public enemies, and therefore,

if captured, are not entitled to the privileges of prisoners of war, but shall be

treated summarily as highway robbers or pirates.

Id.

270

Principles of International Law Concerning Friendly Relations and Cooperation Among

States, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 18 at 339, U.N. Doc. A/8018

(1970) (establishing the requirement that every State has a duty to deter terrorists from

organizing, instigating, assisting or participating in terrorist acts in another state, or

acquiescing in organized activities within its territory directed towards the commission of such

acts); G.A. Resolution 2131, U.N. GAOR, 20th Sess., Supp. No. 14 at 107, U.N. Doc. A/6221

(1965); G.A. Res. 40/61, U.N. Doc No A/RES/40/61 (1985); S.C. Res. No 748, U.N. Doc No.

S/RES/748 (1992).

271

Id.

272

See e.g.,

Rome Statute, supra note 266.

273

See e.g., Agreement for the Prosecution and Punishment of the Major War Criminals of

the European Axis, supra note 73; Statute of the International Criminal Tribunal for the

Former Yugoslavia, S.C. Res. 808, U.N. SCOR, 48th Sess., 3175th mtg., U.N. Doc.

S/RES/808, at. 1 (1993);

Statute of the International Criminal Tribunal for Rwanda, S.C. Res.

955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, U.N. Doc. S/RES/955, art. 1 (1994).

64-The Air Force Law Review

functional, tribunals and military criminal courts are still legitimate forums to

prosecute LOAC crimes.

Claims for war crimes have customarily arisen from those states

participating in the conflict; however the range of potential claimants seeking

redress and influence over LOAC is expanding. For example, families of

victims of the SRT attack in Belgrade during OAF attempted to recover

monetary damages from the allied attack.

274

HRW and Amnesty International

alleged the attack was a violation of LOAC and should be prosecuted as a war

crime.

275

The Prosecutor for the ICTY considered reports from both Amnesty

International and HRW when determining if indictments were appropriate

against NATO for targeting practices in OAF.

276

A group of European law

professors independently investigated British and U.S. use of cluster munitions

in OIF that resulted in collateral damage at al-Hilla on April 1, 2003, the

destruction of al-Jazeera television station on April 8, and a marketplace

bombing on April 28. The group referred the report to the ICC for potential

prosecution.

277

These examples suggest individuals, NGOs and humanitarian

interest groups seek to influence the ICC and promote restrictive

interpretations of LOAC, and particularly Article 52(2) of Protocol I. States

attempting to subvert LOAC policies and interpretive legal rulings may also be

able to obtain a strategic advantage by supporting legal or political restraint of

274

Serb families attempted to sue seventeen countries over NATO’s bombing of the Serbian

Radio and Television Headquarters. Penny Lewis, Do Civilian Casualties of War Have Any

Rights? L

ONDON TIMES, Aug. 8, 2000, at Features Section.

275

Amnesty International accused NATO forces of violating the laws of war. “The April 23,

1999 bombing of the headquarters of Serbian state radio and television, which left 16 civilians

dead, was a deliberate attack on a civilian object and as such constitutes a war crime.” Richard

Norton-Taylor, Revealed: How War in Kosovo Exposed Weaknesses in Britain’s Armed

Forces: MoD Failed with Resources and Hid Cost of Conflict, Says Watchdog, L

ONDON

GUARDIAN, Jun. 6, 2000, at Home Pages, p. 5. See also notes 184–187 and accompanying text

for further accusations of war crimes in OAF.

276

See I

NTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, supra note 190

at par. 6, 39 I.L.M. at 1258.

277

British use of cluster bombs in OIF is an alleged war crime. Special interest groups like

Peacerights recommend further investigation by the ICC for prosecution. Seven legal

specialists from Britain, Ireland, France and Canada interviewed eyewitnesses and examined

evidence to see if there was a case for referring British conduct to the court. “There is a

considerable amount of evidence of disproportionate use of force causing civilian casualties,”

said Professor Bill Bowring of London Metropolitan University. “The U.S. cannot be tried

before the court because it refuses to sign up to it. The UK did.” Peter Apps, UK Cluster

Bombs May be War Crime, (Jan. 21, 2004) at

http://www.reuters.co.uk/newsPackageArticle.jhtml?type=topNews&storyID=

442590&section=news (last visited Apr. 1, 2004); Tosin Sulaiman, Group Investigating

Whether U.S., British Troops Committed War Crimes, KNIGHT-RIDDER WASH. BUREAU, Apr.

24, 2003, KR-ACC-No. K6299.

Collateral Damage on 21

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military operations.

278

Although the ICC has not adjudicated a case

concerning collateral damage as of the date of this study, it has drafted and

codified expansive jurisdiction over the “War Crime of Excessive Incidental

Death, Injury, or Damage.”

A. International Criminal Court Jurisdiction

In order to properly prosecute pursuant to the Rome Statute for the

International Criminal Court (Rome Statute), the ICC must have both personal

and subject matter jurisdiction. Personal jurisdiction refers to a court’s ability

to exercise authority over the parties of a case. Subject matter jurisdiction

refers to a court’s authority to adjudicate a particular type of case. The ICC

has personal jurisdiction over individuals who meet any of three criteria.

279

First, the court has jurisdiction over nationals of an ICC party state.

280

Second, the court has jurisdiction over an act by any individual, including

nationals of non-party states, if that act was committed in a party state.

281

Third, the court has jurisdiction over an act by any individual, including

nationals of non-party states, if the act was committed in a non-party state and

the non-party state requests that the court take jurisdiction of the matter.

282

The ICC cannot assert jurisdiction over U.S. military members under the

first criterion since the U.S. is not a party state to the Rome Statute;

283

however, both the second and third criteria may grant the court jurisdiction

over U.S. military personnel. If the U.S. conducts an operation of any kind in

a party state, the ICC would have jurisdiction over criminal matters associated

with the operation. Similarly, if the U.S. conducts operations in a non-party

state, that state could request the ICC to exercise jurisdiction over U.S. actions.

As a practical matter, the U.S. has entered into separate international

agreements, commonly referred to as Article 98 Agreements, with various

278

Al Santoli described “international law warfare” as a state’s deceptive participation in

“international or multinational organizations in order to subvert their policies and the

interpretation of legal rulings.” See introduction by AL SANTOLI in LIANG & XIANSUI, infra

note 412 and accompanying text for a discussion of Chinese perceptions of LOAC. Brig Gen

Charlie Dunlap describes the strategy of using law as a means to limit strategy as “lawfare.”

Dunlap, Brief on Air and Information Operations: A Perspective on the Rise of “Lawfare” in

Modern Conflicts, presented at the Naval War College (Jun., 2003).

279

The Rome Statute, supra note 266, at art. 12.

280

Id. at art. 12(2)(b).

281

Id. at art. 12(2)(a).

282

Id. at art. 12(3).

283

ICRC, Treaties of International Humanitarian Law and States Parties: State Parties &

Signatories By Treaty,

http://www.icrc.org/ihl.nsf/WebNORM?\OpenView\&Start=53.1.96&Count

=150&Expand=53.2#53.2

(last visited Apr. 15, 2004.

66-The Air Force Law Review

states to refuse cooperation with ICC jurisdiction in those areas where it

conducts operations.

284

The court’s jurisdiction is limited by the principle of complementarity,

which mandates that the ICC cannot prosecute a case where jurisdiction is

already asserted. In other words, if the U.S. or another state asserts jurisdiction

over a war crime, then the ICC must defer adjudication to that state.

285

The

ICC must also defer where a state investigates a war crime and determines

prosecution is inappropriate.

286

This rule has an exception. The ICC is not

required to defer to another state if the state is either “unwilling or unable

genuinely” to investigate or prosecute.

287

In evaluating a state’s

unwillingness, the court will consider whether the purpose of a state’s

proceedings regarding a war crime is to shield the individual from criminal

liability, whether there is unjustifiable delay in prosecution or investigation,

284

The Rome Statute allows states to enter into international agreements that waive ICC

jurisdiction. Article 98 states:

The Court may not proceed with a request for surrender or assistance which

would require the requested State to act inconsistently with its obligations

under international law with respect to the State or diplomatic immunity of a

person or property of a third State, unless the Court can first obtain the

cooperation of that third State for the waiver of the immunity. The Court

may not proceed with a request for surrender which would require the

requested State to act inconsistently with its obligations under international

agreements pursuant to which the consent of a sending State is required to

surrender a person of that State to the Court, unless the Court can first obtain

the cooperation of the sending State for the giving of consent for the

surrender.

Rome Statute, supra note 266, at art. 98.

285

Rome Statute, supra note 266, at art. 17. U.S. commanders are more appropriately

prosecuted under applicable provisions of the Uniform Code of Military Justice [hereinafter

UCMJ] for war crimes. The UCMJ, however, is limited in the ability to assert jurisdiction

over foreign military nationals suspected of war crimes. A court-martial convened under the

UCMJ has jurisdiction to try a foreign enemy combatant only if the individual has been

granted prisoner of war [hereinafter POW] status. To obtain POW status, the individual must

be sufficiently aligned to a state. See notes 196–198 and accompanying text for criteria to

qualify as a POW. POWs may only be tried and sentenced in a U.S. forum that is substantially

equivalent to the proceedings and rights provided to members of the armed forces of the

detaining power. See Geneva Convention III, supra note 198, at arts. 84, 87, 88, 95, 100, 102,

103, 106, & 108. Although this would normally be a court-martial, a military commission that

provides similar rights and proceedings to a court-martial would also satisfy the requirement.

Individuals that lack POW status like terrorists or non-combatants are subject to military

commissions, tribunals or other venues established by the capturing state. These types of non-

state actors are prosecuted under U.S. jurisdiction pursuant to UCMJ art. 2(a)(9)(2002). The

U.S. may also exercise jurisdiction in U.S. District Courts pursuant to 18 U.S.C. §2441 (2004)

over individuals committing war crimes pursuant to the U.S. War Crimes Act of 1996, 18

U.S.C. §2441 (2004).

286

Rome Statute, supra note 266, at art. 17.

287

Id.

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and whether the proceedings are being conducted independently and

impartially. Thus, the ICC will decide whether a state’s investigation into a

crime is sufficient to preclude the ICC from asserting jurisdiction.

288

Also posturing the ICC’s jurisdiction and authority over war crimes is the

principle of insularity. The ICC is the sole arbiter of its jurisdiction and of any

challenges to the propriety of its legal decisions. Article 19, paragraph 1

empowers the ICC alone to resolve all judicial decisions, including decisions

relating to jurisdiction, the application of complementarity, and actions that

constitute a crime.

289

The court also has an appeals process that is exclusive

and internal to the ICC. Thus, the ICC alone decides whether a crime was

committed, what actions are sufficient to constitute a crime, and whether a

state’s actions are sufficient to invoke the principle of complementarity and

preclude the court from exercising its jurisdiction.

290

The Rome Statute

permits the Security Council to order the ICC, through a resolution adopted

under Chapter VII of the U.N. Charter, to defer a prosecution or investigation

for a twelve month period; but absent such a resolution, the ICC would be free

to proceed.

291

The breadth of the Rome Statute’s provisions grants the ICC

sufficiently broad authority to permit jurisdiction while ensuring rulings cannot

be appealed to any outside legal forum.

B. Collateral Damage as a War Crime at the International Criminal

Court

The ICC has subject matter jurisdiction over crimes of genocide, crimes

against humanity, war crimes, and the crime of aggression.

292

The category of

288

Id. at art. 17(1).

289

Id. at art. 19

290

Id.

291

Id. at art. 16.

292

Id. at art. 5(1). The crime of aggression has not yet been defined and currently is outside

the court’s jurisdiction. Id. at art. 5(2). Once a definition for the crime of aggression is

adopted in accordance with the requirements of the Rome Statute, the court will be able to

exercise jurisdiction over such acts. Id. Defining aggression suffers from several problems.

First, aggression has never been defined in any multilateral treaty. Report of the International

Law Commission on the Work of its Forty-sixth Session, Draft Statute for an International

Criminal Court, U.N. GAOR, 49th Sess., Supp. No. 10, at 72, art. 20(b), U.N. Doc. A/49/10

(1994). Second, there does not exist a commonly accepted definition of aggression. David

Stoelting, Status Report on the International Criminal Court, 3 H

OFSTRA L. & POL’Y SYMP.

233, 265 (1999). Third, historically, aggression has been considered to be a crime of a state,

not of an individual. Id. Fourth, the crime of aggression equates to finding that there has been

an illegal breach of the peace. Under the U.N. Charter, the Security Council has the power to

determine whether an act constitutes a breach of the peace, and there is a reluctance to give

that power to the ICC. Depending on the conditions by which the court could take jurisdiction

over the crime of aggression, prosecutions could be brought without the Security Council

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war crimes is the most relevant to incidents of collateral damage. The war

crimes category contains fifty separate criminal acts.

293

Many crimes

described in the Rome Statute are identical or similar to provisions found in

other widely accepted international conventions, such as the 1949 Geneva

Conventions.

294

The Rome Statute proscribes that war crimes that are not

identical or substantially similar to provisions in other international agreements

and conventions emanate from “the established framework of international

law.”

295

However, the ICC has been criticized for modifying some well-

established criminal definitions and adding other crimes where there is no real

consensus in the international community. Accused of advancing a political

agenda, the ICC has adopted criminal provisions for acts that are not clearly

criminal under current international law.

296

The criminal provision regarding

the principle of proportionality is sufficiently vague to allow, and perhaps even

invite, prosecutions for almost any collateral damage incident. Article 8,

paragraph 2(b)(iv) states it is a crime if an individual “Intentionally launch[es]

an attack in the knowledge that such attack will cause incidental loss of life or

injury to civilians or damage to civilian objects or widespread, long-term and

severe damage to the natural environment which would be clearly excessive in

relation to the concrete and direct overall military advantage anticipated.”

297

having found that an anticipatory attack constituted a breach of the peace. Thus, the ICC could

find that an anticipatory attack was an illegal act and a breach of the peace even though the

Security Council declined to do so. In the face of these problems, a working group on defining

aggression is attempting to find a solution. See, Daryl A. Mundis, Current Development: The

Assembly of States Parties and the Institutional Framework of the International Criminal

Court, 97 A

M. J. INT’L L. 132 (2003); Silvia A. Fernandez de Gurmendi, Completing the Work

of the Preparatory Commission: The Working Group on Aggression at the Preparatory

Commission for the International Criminal Court, 25 FORDHAM INT’L L.J. 589 (2002).

293

Rome Statute, supra note 266, at art. 8.

294

Examples of war crimes included in the Rome Statute that are derived from previous

conventions include the willful killing, torture, or taking of hostages. Id. at art. 8(2)(a).

295

Id. at art. 8(2)(b).

296

See, e.g., Panel Discussion: Association of American Law Schools Panel on the

International Criminal Court, 36 A

M. CRIM. L. REV. 223, 233 (1999) (Professor Halberstam

argues that the Rome Statute alters well established definitions of crimes, adds new crimes,

and is being used for political purposes).

297

The text of the elements of a crime of Article 8(2)(b)(iv), War Crime of Excessive

Incidental Death, Injury, or Damage:

1. The perpetrator launched an attack. 2. The attack was such that it would

cause incidental death or injury to civilians or damage to civilian objects or

widespread, long-term and severe damage to the natural environment and

that such death, injury or damage would be of such an extent as to be clearly

excessive in relation to the concrete and direct overall military advantage

anticipated. 3. The perpetrator knew that the attack would cause incidental

death or injury to civilians or damage to civilian objects or widespread, long-

term and severe damage to the natural environment and that such death,

injury or damage would be of such an extent as to be clearly excessive in

Collateral Damage on 21

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A close analysis requires that a crime be separated into individual

elements:

298

1) the perpetrator launched an attack; 2) the attack was such that

it would cause incidental death or injury to civilians, damage civilian objects or

cause widespread, long-term and severe damage to the natural environment; 3)

the perpetrator knew that the attack would result in excessive collateral

damage; and 4) the attack was such that the extent of the collateral damage

would be clearly excessive in relation to the concrete and direct overall

military advantage anticipated.

299

In any war, it is likely that a great number

of attacks would easily meet the first, second, and third elements. Many

attacks are launched with the knowledge that they will result in some civilian

casualties. Whether such acts are criminal depends on the fourth element. The

fourth element hinges on the familiar principle of proportionality. What value

is placed on collateral damage in comparison to the value placed on the

military advantage achieved.

300

Further, the question is whether the former

was “clearly excessive” in relation to the latter. An analysis on this subject

inevitably becomes subjective and provokes a discussion of “value judgment.”

The third and fourth elements require that the defendant know the collateral

damage is clearly excessive in relation to the concrete and direct military

advantage achieved. This element may provide a defendant with some

relation to the concrete and direct overall military advantage anticipated. 4.

The conduct took place in the context of and was associated with an

international armed conflict. 5. The perpetrator was aware of factual

circumstances that established the existence of an armed conflict.

Rome Statute, supra note 266, at art. 8(2)(b)(iv). Compare definition of proportionality

provide by Protocol I, art 51(5)(b) at note 122 and accompanying text.

298

The Assembly of State Parties of the ICC drafted elements of crimes to assist the court in

interpreting the Rome Statute’s provisions. See Assembly of State Parties to the Rome Statute

of the International Criminal Court, First session, Official Records, U.N. Doc ICC-ASP/1/3, at

112 (2002) [hereinafter Elements of Crimes].

299

An example of the imprecision of the crime’s definition is that the elements do not

explicitly require that the attack actually result in civilian casualties. Although the elements

could reasonably be interpreted in such a way to require civilian deaths, poor drafting can

result in different constructions of the provision and subject the language to challenge.

300

The ICC recognizes that incidental “injury” and “collateral damage” may occur to achieve

a military advantage. However, the footnote excludes “incidental death.”

The expression “concrete and direct overall military advantage” refers to a

military advantage that is foreseeable by the perpetrator at the relevant time.

Such advantage may or may not be temporally or geographically related to

the object of the attack. The fact that this crime admits the possibility of

lawful incidental injury and collateral damage does not in any way justify

any violation of the law applicable in armed conflict. It does not address

justifications for war or other rules related to jus ad bellum. It reflects the

proportionality requirement inherent in determining the legality of any

military activity undertaken in the context of an armed conflict (emphasis

added).

Elements of Crimes, supra notes 297–298, at 131 n. 36.

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protection. A defendant would not be criminally liable if an attack was

executed under the personal belief that any collateral damage was not

excessive compared to the military objective achieved.

301

Under this

interpretation, a defendant’s culpability depends entirely and exclusively on

that individual’s own value judgment.

302

If the defendant believed the

collateral damage was not excessive, then there could not be a finding of

guilt.

303

The court’s own evaluation of the defendant’s value judgment as to

the excessive character of the damage is irrelevant.

304

Defendants are able to

make an independent value judgment that ultimately determines their own

criminality and rewards willful ignorance.

This method of evaluating proportionality for criminality becomes

problematic on a number of levels. Although the same discussion applies to

damage to objects and the environment, the point is most poignantly and

appropriately addressed in the context of the most important aspect of

collateral damage, civilian casualties. The value of life ranges among

individuals and cultures, making a value determination of civilian casualties

compared to a military objective highly variable.

305

The evaluation of

proportionality and the practice of humanity are linked insofar as they are

based on an individual’s life experience, conscience, moral perspective,

culture, spirituality, human condition, and resolve. Moreover, it must be

measured on the basis of the defense technology available to a defendant and

the circumstances present in the battle space. A defendant given the ability to

make an independent value judgment under these circumstances inevitably

leads to testimony that the collateral damage in any form is never excessive.

Confronted with this dilemma, the ICC may attempt to apply a reasonableness

standard to a defendant’s value judgment that would also fail. For example, a

military commander from a depressed, under-developed state with little access

to the resources necessary to make the most prudent command decisions

cannot be held to the same standard of reasonableness as commanders from

highly advanced military states with extensive resources, information,

technology, and high situational awareness of the battle space. Evaluating the

actions of commanders from dissimilar states inevitably leads to a high degree

301

Elements of Crimes, supra note 298, at 132 n. 37. “As opposed to the general rule set

forth in paragraph 4 of the General Introduction, this knowledge element requires that the

perpetrator make the value judgment as described therein. An evaluation of that value

judgment must be based on the requisite information available to the perpetrator at the time.”

Id.

302

Michael Bothe, War Crimes, in 1 T

HE ROME STATUTE OF THE INTERNATIONAL CRIMINAL

COURT 379, 400 (Cassese et al. eds. 2002).

303

Id.

304

Id.

305

For a discussion of how an individual’s experience and condition effects LOAC, see infra

notes 329-333 and accompanying text.

Collateral Damage on 21

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of discrimination, disparity, and variable definitions of reasonableness among

states. Further, holding under-developed states to the standards of developed

states perpetuates the belief that international law is a product of advanced,

western states seeking to regulate conflict on western terms.

306

Although the

ICC appears to adopt this approach in the ICC Elements of Crimes, it is also

free to disregard it. The Rome Statute states that the Elements of Crimes “shall

assist” the court in applying the articles set forth in the various crimes.

307

This

language relegates the Elements of Crimes to be mere guidelines in

interpreting the substantive provisions of war crimes.

308

Thus, the judges in

the ICC have substantial authority and discretion in determining what activities

constitute a crime.

C. Economic Sanctions and Collateral Damage

Military strategy that targets centers of gravity valuable to an adversary has

similarities to traditional diplomatic tools that leverage states to change

behavior. For example, an economic embargo or sanctions can have similar

effects to collateral damage. The effects can also create direct or indirect

collateral damage in varying degrees. The severity of the collateral damage

can be isolated or expansive, depending on the breadth of the sanctions and

what sectors of an economy are targeted. Naturally, many products, markets

and sectors of a state’s economy targeted for sanction are dual-use for both the

military and civilian population. Similar to traditional military strategy, the

effect of sanctions can be devastating, and even more fatal to a civilian

population than warfare. The generally accepted purpose and emphasis of

sanctions lies in modifying a state’s behavior.

309

However, increased use of

this method has also resulted in various shortcomings and problems

traditionally encountered in warfare. Effectiveness depends on such factors as

the policy goals set for the sanctions, criteria used to measure success, the

economic condition of the target state, and the level and priority of economic

relations with other states.

310

Similar to military strategy related to targeting

civilian behavior, economic sanctions “theory” maintains that economic

306

See L

IANG & XIANSUI, infra note 412 and accompanying text for a discussion of Chinese

perceptions of LOAC.

307

Rome Statute, supra note 266, at art. 9.

308

Mauro Politi, Elements of Crimes, in 1 T

HE ROME STATUTE OF THE INTERNATIONAL

CRIMINAL COURT, supra note 302, at 447 (“[T]he elements are meant to be used by the judges

as simple guidelines in reaching determinations as to individual criminal responsibility.”).

309

See, e.g., M

ARGARET P. DOXEY, INTERNATIONAL SANCTIONS IN CONTEMPORARY

PERSPECTIVE (2d ed. 1996).

310

See, e.g., D

ANIEL W. DREZNER, THE SANCTIONS PARADOX: ECONOMIC STATECRAFT AND

INTERNATIONAL RELATIONS (1999); GARY CLYDE HUFBAUER, JEFFREY J. SCHOTT, &

KIMBERLY ANN ELLIOTT, ECONOMIC SANCTIONS RECONSIDERED (2d ed. 1990).

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pressure on a civilian population will translate into pressure on their leadership

to change.

311

However, the targeted leadership is often immune to these

strategies by communicating messages to their civilian population that portray

sanctions as retribution and punishment. Like a poorly planned military

strategy, the result of poorly planned sanctions can result in the exact opposite

effect intended—enhanced popular support for the leadership that was

targeted.

It is incongruent that prudent military members are accountable for the loss

of civilian life when seemingly well-intentioned diplomatic measures also

result in significant collateral damage, including economic depression,

excessive reduction in public health services, non-availability of food, water

and basic infrastructure, and subsequent death. For example, the strategy to

isolate Iraq’s economy after the Persian Gulf War by embargo in 1991 resulted

in the same devastating effects as collateral damage from military warfare.

312

Although the embargo excluded food and medical supplies for humanitarian

relief, the Iraqi population suffered a pervasive loss of water treatment,

sewerage, electrical and telecommunication service, and a high reduction in the

available food supply that was directly associated with the embargo.

313

Crimes before the ICC for collateral damage specifically require that the

“conduct took place in the context of and was associated with an international

armed conflict.”

314

Essentially, failures in diplomacy are exempt as

international crimes regardless of their motive, means, intent, and severity.

Failure to establish an fair and just standard, and to assert accountability for

failed diplomatic strategies resulting in collateral damage, advocates

inconsistent, flawed principles that discriminate against the international

military community. Moreover, collateral damage as an international crime is

left unchecked where diplomacy is concerned. It seems plausible, at the very

least, that the same careful and detailed planning and proportionality analysis

required to determine collateral damage for warfare should also be used when

applying economic sanctions.

311

Id.

312

See generally, Sadruddin Aga Khan, Report to the Secretary General of the United

Nations, supra note 160, at 13-15, and accompanying text for a discussion of the effects of

U.N. economic sanctions of Iraq.

313

Id.

314

Elements of Crimes, supra notes 297–298, at art. 8(2)(b)(iv).

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V. CONCEALMENT WARFARE AND THE LAW OF ARMED

CONFLICT

Because of this the land mourns, and all who live in it waste away,

the beasts of the field and the birds of the air and the fish of the

sea are dying

Hosea 4:3

Part of the design of concealment warfare is to encourage a dilemma in the

observation of LOAC’s humanitarian principles. Adversaries exploit LOAC

first by violating provisions prohibiting commingling among the civilian

population. The dilemma in observing LOAC occurs when the fundamental

premise to protect civilians in war is nullified because engagement of both

civilians and an adversary is justified to achieve a military advantage pursuant

to Article 52(2) of Protocol I. The adversary exploits LOAC again by accusing

the attacker of violating humanitarian principles in LOAC to protect civilians.

Strategically, the adversary exploits the loss of civilian life resulting from an

attack that is otherwise justified.

A. Civilians in the Center of the Battle Space: The Blame Never Ends

The civilian population has often been subject to the perils of warfare.

315

Despite convenient or timely accusations against any one state for an incident

of collateral damage, the only states in a probable position to maintain the

moral high ground are those states that have never been to war. Ironically,

some states attempting to draw attention to non-compliance with LOAC also

have the worst records of human rights violations. In the Persian Gulf War,

the Iraqi regime targeted the Israeli civilian population with Scud missiles,

316

and took Kuwaiti hostages for use as human shields.

317

The Government of

Kuwait estimates that 1,082 civilians were murdered during the occupation,

and many more were forcibly deported to Iraq and remain missing.

318

The

Iraqi regime damaged or destroyed 590 Kuwaiti oil well heads, set 508 of them

ablaze, and released seven to nine million barrels of oil into the Persian

Gulf.

319

Similarly, Milosevic was unable to challenge superior coalition

forces during war in the Balkans. As a result, he used terror tactics against

Kosovar civilians, exploited efforts by NATO to minimize civilian casualties

315

See supra notes 6-15 and accompanying text.

316

Joseph P. Englehardt, LTC, USA, Desert Shield and Desert Storm: A Chronology and

Troop List for the 1990–1991 Persian Gulf Crisis 52 (1991).

317

PERSIAN GULF WAR FINAL REPORT, supra note 137, at app. O, 692–96.

318

Id. at 714–15.

319

Id. at 695, 714-15.

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and collateral damage, triggered large movements of refugees to provoke a

humanitarian crisis, and dispersed forces and equipment among the civilian

communities they occupied.

320

Although the incidence of collateral damage in U.S. combat operation has

declined since World War II due to improved technology and strategy, the

number of civilians killed in conflict has generally increased. The relationship

between concealment warfare strategies and high numbers of civilian

casualties generated is evident from conflicts in virtually every corner of the

world from Cambodia and Uganda to Kosovo and Colombia.

321

The number

320

OAF AFTER ACTION REPORT, supra note 165, at Intro.-2.

321

In 1936, Italy unsuccessfully attempted to coerce Ethiopian Emperor Haile Selassi to

negotiate a surrender by bombing and spraying the Ethiopian population with mustard gas.

When accompanied with ground assaults, the air attacks ultimately achieved surrender in May,

1936. During WWII in China, repeated Japanese air strikes against Chinese cities were

designed to “create terror and excite antiwar sentiments.” ERNEST R. MAY, LESSONS OF THE

PAST 135 (1973). In 1971, Idi Amin verthrew the government of Uganda, killing over 300,000

civilians in the process. D

AVID W. ZIEGLER, WAR, PEACE, AND INTERNATIONAL POLITICS 95

(1984). In 1975, Cambodian leader Pol Pot embarked on a revolution to transform the country

into an entirely rural and traditional Cambodian community. To promote his campaign, he

ordered the execution of anyone with a western education or who adopted western ideals. An

estimated 2 million people in a country populated by only seven million were killed in less

than four years. U.S. C

ENTRAL INTELLIGENCE AGENCY, NATIONAL FOREIGN ASSESSMENT

CENTER, KAMPUSHEA: A DEMOGRAPHIC CATASTROPHE (May, 1980). On August 29, 1990,

Syria killed several dozen civilian Iraqi demonstrators supporting Iraq’s invasion of Kuwait.

Englehardt, supra note 316, at 18. Philippine Armed Forces Southern Command sources said

on November 27, 2001 that followers of Philippine Muslim insurgency leader Nur Misuari had

taken fifty Christian Filipinos hostage as “human shields” in a firefight at a Philippine

Government complex at Cabatangan. Insurgent Conflict in Philippines Continues to Escalate,

EFENSE & FOR. AFFAIRS DAILY, vol. XIX(187), Nov. 28, 2001. In Qasim Nagar, India, 27

were killed and at least 35 others wounded when militants dressed as Hindu sadhus (holy men)

threw hand grenades and opened fire with automatic weapons on local residents. The victims

were primarily Hindu women and children. Press Release, Amnesty International, India:

Civilians Are Not Legitimate Targets, ASA 20/013/2002, News Service No. 121 (Jul. 15,

2002). For over a decade, Israel, Lebanon, Hizballah and Palestinian groups indiscriminately

lobbed shells and fired rockets at civilian population centers during various stages of their

conflict, causing civilian casualties and damage to residential homes and civilian

infrastructure. H

UMAN RIGHTS WATCH, ERASED IN A MOMENT: SUICIDE BOMBING ATTACKS

AGAINST ISRAELI CIVILIANS, Lib. of Cong. Control No. 2002114404, ISBN 1-56432-280-7

(2002). A single Israeli missile successfully targeting Hamas leader Salah Shehada on July 22

killed 15 Palestinian civilians. Israel came under strong international criticism for the deaths

of the civilians in the attack. Robert Morton Klein, No Questioning Legality of Israel’s

Operation, N

EW JERSEY JEWISH NEWS, vol. LVI(31) p. 22, Aug. 1, 2002. More than 415

Israeli and other civilians were killed, and more than 2,000 injured, as a result of attacks by

Palestinians suicide bombings between September 30, 2000 and August 31, 2002. Bombers

traditionally pack explosives with nails and pieces of metal, then attempt detonation at high-

density civilian locations. Id. Israel came under sharp criticism for an attack in Jenin where

suspected Palestinian suicide bombers were launching attacks and killed 13 Israeli soldiers in

an ambush. Israel launched missiles from helicopters and used armored bulldozers to destroy

civilian houses, making 4,000 people homeless. Reports suggest Israeli soldiers executed one

Collateral Damage on 21

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of civilians killed in conflict since 1900 is estimated at 62.2 million compared

to 43.9 million military personnel. Further, the incidence of civilian deaths has

increased since the 1949 Geneva Conventions.

322

One explanation for this

rising trend is that concealment warfare is the method of choice with higher

frequency among adversaries. A subjective review of media and special

unarmed civilian and wounded an unarmed Palestinian prisoner. Additionally, Palestinian

civilians were used as human shields—in one case forcing a father and son to remain in place

for three hours as soldiers fired over their shoulders. Doctors and ambulances were prevented

from entering the area for 11 days. At least 52 Palestinians were killed along with 23 Israeli

soldiers. Twenty-seven of the 52 Palestinians were suspected members of armed Palestinian

movements such as Islamic Jihad, Hamas and the Al Aqsa Martyrs Brigade. At least 22

civilian casualties included children, the physically disabled and elderly. Andrew Laxon,

Signs of Atrocities at Jenin Refugee Camp Piling Up, NEW ZEALAND HERALD, May 6, 2002, at

World Section. In Indonesia, bombings on October 12, 2002 killed 88 Australians among the

190 or more killed. Video footage of a Jemaah Islamiyah member indicated the bombings

were targeted at Australia and Britain because they are close allies of the U.S. The attack was

retaliation for “200,000 innocent men, women and children killed in Afghanistan” by the U.S.

and its allies. New Admissions by Terror Suspects Confirms That Australians Were Targeted

in Bali, D

EFENSE & FOR. AFFAIRS DAILY, vol. XXI(20), Feb. 11, 2003. Fighting in Burundi on

July 6, 2003 resulted in dozens of shells hitting the central market, bars, pharmacies, a bank

and the central prison. At least two civilians were killed and ten detainees injured. Press

Release, Amnesty International, Burundi: War on Civilians Demands Immediate Action, AFR

16/009/2003, News Service No. 170 (Jul. 15, 2003). In the city of Florencia, Colombia, 11

people died and more than 50 were injured when a motorcycle packed with explosives was

detonated by remote control in a busy street. Press Release, Amnesty International, Colombia:

Targeting Civilians is Unacceptable, AMR 23/064/2003, News Service No. 224 (Sep. 29,

2003). The disputed region of Kashmir has been the source of dozens of attacks on civilians

resulting in hundreds of civilian casualties for both parties in the conflict. In Nadimarg village

in the Indian state of Jammu, approximately 15 men wearing army fatigues disarmed police

officers at a nearby police station and ordered villagers out of their homes. All 24 villagers

were gathered and killed by gunfire. Press Release, Amnesty International, India/Kashmir:

Safeguard the Lives of Civilians, ASA 20/013/2003, News Service No. 65 (Mar. 24, 2003). In

Laos, thousands of predominantly Hmong ethnic minority members involved in an armed

conflict with the Lao military were subject to starvation tactics. Approximately twenty rebel

groups with their families were surrounded by Lao military who prevented them from foraging

for the food they rely on to survive. Press Release, Amnesty International, Laos: Use of

Starvation as a Weapon of War Against Civilians, ASA 26/013/2003, News Service No. 228

(Oct. 2, 2003). Attacks in Darfur, western Sudan, on civilians and civilian objects resulted in

the death of hundreds of civilians and displacement of tens of thousands. The attacks were

committed by “bandits,” armed militia or in the course of fighting between the Sudanese army

and the Sudan Liberation Army. Press Release, Amnesty International, Sudan: Immediate

Steps to Protect Civilians and Internally Displaced Persons in Darfur, AFR 54/079/2003, News

Service No. 201 (Aug. 29, 2003).

322

EOFFREY PARKER, CAMBRIDGE ILLUSTRATED HISTORY OF WARFARE 369 (1995); see

also, E

RIC V. LARSON & BOGDAN SAVYCH, MISFORTUNES OF WAR: IMPACTS OF COLLATERAL

DAMAGE INCIDENTS IN RECENT U.S. WARS 2-4 (Mar., 26 2004)(unpublished manuscript on

file with the RAND Corporation and author). Ruth Sivard estimates 109.7 million people were

killed from war between 1900 and 1995, including 62.2 million civilians and 43.9 million

military. R

UTH LEGER SIVARD, WORLD MILITARY AND SOCIAL EXPENDITURES 1996, 18-19

(16th ed. 1996).

76-The Air Force Law Review

interest group reporting suggests a similar conclusion—civilians and civilian

objects account for the majority of deaths and destruction in 21st century

warfare.

323

Most easily achieved in an urban conflict scenario, placing the civilian

population at the center of conflict creates a more favorable battle space, and a

higher probability of survival for forces unable to engage under conventional

terms. Minimizing collateral damage, while successfully engaging the

adversary, is a dilemma common to any responsible state in modern war.

However, there is a high degree of variance among states in their appreciation

of civilian immunity and how it effects overall strategy. One goal of Soviet

forces fighting in Afghanistan was inflicting “massive collateral damage to the

civilian infrastructure rapidly in order to erode popular support.”

324

The efforts of the Soviet and Afghan governments to keep

Afghanistan socialist, and to impose on that society an ideology

alien to its values and traditions has led to: the slaughter of an

estimated 200,000 people; the destruction of entire villages; the

systematic devastation of the countryside and the nation’s

agriculture; a massive violation of human rights and the laws of

war; and one of the largest refugee movements in history. Some

four million Afghans have fled the country, about a quarter of the

total population.

325

In Chechnya, Russian forces were indifferent to enemy forces attempting to

invite or fabricate collateral damage. When advancing on the city of Grozny in

1999, Russian forces were challenged by Mujahedin forces deployed in

surrounding villages to attract Russian fire on the civilian population.

326

When villagers protested, they were sometimes beaten or fired at by

Mujahedin. Russian forces ignored the attempts to use the villages as a shield

and directed “heavy fire—tube and rocket artillery as well as aerial bombing—

in order to subdue the centers of resistance.”

327

The number of civilian

fatalities was estimated from hundreds to thousands in 1999.

328

323

See supra note 321 and accompanying text.

324

Afghanistan: The Soviet Air War, D

EFENSE & FOR. AFFAIRS STRAT. POLICY, Sept., 1985,

at 12.

325

Strategy ‘85 Conference Attracts Some 40 National Delegations, D

EFENSE & FOR.

AFFAIRS STRAT. POLICY, Aug., 1985, at 2.

326

Yossef Bodansky, Tinder Box in the Caucasus, D

EFENSE & FOR. AFFAIRS STRAT. POLICY,

Apr., 2000, at 4.

327

Id.

328

Id. Reports from hospitals operating in the region indicate that many patients were

landmine or ordnance victims, amounting to 66 killed and 166 injured in 2000 alone. Id.

Collateral Damage on 21

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B. An Illusive Moral High Ground

Weaker adversaries unable to directly challenge superior forces in the

battle space will seek vulnerabilities that can be easily exploited. Concealment

warfare as a sub-category of asymmetric warfare attempts to apply strategy

where an adversary cannot effectively respond in kind. The simple application

of concealment warfare tactics involves any employment of civilians and

civilian objects in the battle space to achieve a strategic advantage. Principles

of decency, morality, and humanity reflected in LOAC to protect the civilian

population present attractive centers of gravity to exploit where concealment

warfare is effectively employed. A state adopting a military doctrine

consistent with LOAC must be prepared for adversaries to exploit this

commitment to achieve a strategic advantage. In many respects, a state’s value

for LOAC and the humanitarian principles supporting it can be central to an

adversary’s success.

History would suggest the practice of sparing civilians in war occurs only

on the basis of conscience, moral perspective, culture, spirituality, life

experience, human condition and resolve. These qualities are highly divergent

among individuals in the same community let alone among adversarial states.

As a result, one state’s centric ideal of what is ethical and humane in the battle

space is subject to question and exploitation by another, regardless of what

may be dictated in LOAC. For example, asymmetric tactics labeled

“terrorism” by western society must be impartially studied through the eyes of

an adversary to see the conventional wisdom of their methods, how they

produce successful results, and why it is a highly preferred practice among

adversaries. In comparison, regardless of any principle of law, custom or sense

of morality, western warfare doctrine principally emanates from the

achievement of political and strategic goals.

329

Even the U.S. is postured to

exercise the employment of nuclear weapons again if necessary.

330

Although

committed to use these weapons in accordance with LOAC, it is the best

example that even the most powerful of states with the loftiest of principles is

329

ON CLAUSEWITZ supra note 3 at 75. Commenting on the Iraqi Regime’s resolve to

survive, Vice President Taha Yassin Ramadan threatened, “We will use any means to kill our

enemy in our land, and we will follow the enemy into its land.” Press Release, Amnesty

International, Iraq: Soldiers’ Surprise Likely to Rebound on Civilians, News Service No: 075

(Apr. 1, 2003), Cheadle, supra note 231, at B-2.

330

See e.g., J

OINT CHIEFS OF STAFF, JOINT PUB. 3-12, DOCTRINE FOR JOINT NUCLEAR

OPERATIONS (Dec. 15, 1995). “Collateral Damage. U.S. forces will limit collateral damage

consistent with employment purposes and desired effect on the target.” Id. at II-6.

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prepared to exercise extreme measures to achieve strategic ends.

331

Adversaries seeking only to survive are equally likely to resort to any method

of war, including the use of their civilian populations, to achieve a strategic

advantage. Historically, there is no precedent that parties to a conflict play by

the rules. Very simply, states will resort to any method of attack or defense

available to them, however extreme, to achieve strategic goals or merely to

survive.

The rules of war largely created by western society over generations of

conflict have resulted in a false sense of principle and moral superiority that

translates into a key center of gravity for adversaries to exploit. The more

effort made to comply with LOAC’s principles and to achieve the moral high

ground, the greater the strategic advantage to potential adversaries. Strict

compliance with LOAC fosters highly predictable military doctrine, strategy,

operations and tactics. U.S. force structure and strategy is largely defined and

influenced by LOAC. In contrast, adversaries operating unrestricted by LOAC

gain a strategic advantage over states that value compliance with LOAC.

Adversaries deriving little or no benefit from LOAC seek to provoke a conflict

that challenges its principles, assails moral uncertainty, and exploits public

sympathy. This strategy affords the most convenient, efficient and assured

method of success. Concealment warfare challenges western strategy,

technology, ideology, morality and resolve. The basic strategy is that one

party fights by the rules while another does not. Moreover, a state’s value and

compliance with LOAC is essential to the effective execution of an adversary’s

strategy to exploit it. As adversaries employ concealment warfare with greater

frequency, the incidence of civilian casualties will rise as a result of prudent

command decisions consistent with LOAC.

332

331

Edinburgh Resolution of the Institute of International Law, On the Distinction Between

Military Objectives and Nonmilitary Objects in General and

Particularly the Problems

Associated with Weapons of Mass Destruction,

66 A.J.I.L. 470-71 (1972).

332

Article 48 of Protocol I requires commanders to distinguish military personnel from

civilians, and military objects from civilian objects. As a practical matter, however, the

majority of responsibility to minimize collateral damage must remain with the adversary who

governs the civilian population and controls the military. The most effective method to ensure

the protection of a civilian population and civilian objects is the comprehensive, regulated and

careful separation of military personnel from civilians, and military objects from civilian

objects, pursuant to Articles 51(7) and 58 of Protocol I. Unfortunately, the violation of these

requirements are central to the execution of concealment warfare strategy.

Collateral Damage on 21

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Terror & Unrestricted Warfare

Limited Nuclear/WMD Warfare

Conventional Warfare

Concealment Warfare

Unconventional Warfare

History of Modern Conflict

WW I WW II Korean War Vietnam War Persian Gulf OAF OEF/OIF Future

War Adversaries

Unlimited Nuclear/WMD Warfare

Figure 11—Subjective Spectrum of Modern Conflict

In Figure 11, LOAC clearly applies to the conventional realm of conflict.

As warfare moves from the conventional realm in either direction, LOAC

becomes less observed in the conflict and more prone to violation. States with

superior defense capability like the U.S. are extremely difficult, if not

impossible, to challenge in the conventional and unconventional realms of war.

Challenges in these realms would likely result in defeat. As a result,

concealment and terror warfare provide the most efficient and greatest

assurance of survival and success for adversaries. Historically, the trend for

conflict also suggests these methods of warfare will continue to be most

effective and most favored by adversaries. Future adversaries will likely

conduct warfare on the fringes of the spectrum to achieve the highest degree of

strategic success. The last vertical line on the model contemplates a

hypothetical adversary’s diminished value of conventional warfare in

comparison to concealment and terror warfare that exploits LOAC. Further,

where an adversary can access weapons of mass destruction, this method of

warfare is also preferred.

333

In what was explained as an error in judgment, Pakistani scientist, Abdul Qadeer Khan,

broadcast an open admission on February 4, 2003, that he sold nuclear weapons technology to

Iran, Libya and North Korea. Products included intermediate range ballistic missiles, complete

ultracentrifuge machines, high frequency inverters, flow meters, pressure-vacuum gauges and

other equipment. The report did not indicate that there was a sale of weapons grade fissile

material. Khan also associated with Iraq and Afghanistan when conducting transactions and

80-The Air Force Law Review

VI. TOWARD A UNIVERSAL UNDERSTANDING OF MILITARY

STRATEGY AND COLLATERAL DAMAGE

We all should feel bad about the loss of life, anybody’s life,

because every life is precious. It doesn’t matter whether it’s an

Iraqi soldier or a kid in a bunker in Baghdad, we should feel bad

about the loss of one of God’s creatures. On the other hand . . .

we have nothing to be ashamed of . . . . Let the deaths of

American, Saudi, and British troops, let the deaths of Iraqi

civilians, remind each of us that war is a hateful thing.

334

The high incidence of collateral damage in modern conflict combined with

the observable benefits of concealment warfare requires effective counter

strategies that achieve military objectives while minimizing civilian casualties.

If an adversary achieves a strategic advantage on the basis of seeking

concealment among the civilian population, then the strategy of concealment

warfare continues to succeed and receive validation. Defense technology,

strategy and LOAC are all challenged to defy methods of concealment warfare.

Each must evolve to preempt an adversary’s ability to exercise denial,

deception and sanctuary among the civilian population. All states, NGOs and

special interest groups should embrace this effort in support of the imperative

to protect civilians in warfare. Perhaps the most important part of a solution to

countering concealment warfare is the availability of a broad range of options

for commanders to tailor and apply when countering concealment warfare

strategies.

A. Dual-Use Targets and Protocol Additional I, Article 52(2)

Where concealment warfare is employed, engaging traditional targets like

military objects or forces is problematic because of the high likelihood of

civilian casualties. As a result, attacks on these targets have been avoided or

cancelled in some cases, resulting in strategic targeting limitations. When

these targets are engaged, civilian casualties and other collateral damage can

easily be exploited to degrade public support for the conflict. Rather than

emphasizing physical destruction of traditional military targets that produce

high collateral damage, targeting strategy can focus more closely on those

objects critical to an adversary’s behavior and resolve to participate in war.

providing instructional services on weapons of mass destruction. Douglas Frantz & Josh

Meyer, For Sale: Nuclear Expertise, L.A. T

IMES, Feb. 22, 2004, at 1.

334

Statement from Gen. Chuck Horner, USAF, Ret., in T

OM CLANCY, EVERY MAN A TIGER:

THE GULF WAR CAMPAIGN 389-90 (1999).

Collateral Damage on 21

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Based on the concept of effects-based targeting strategy, operations focus

on the destruction of objects highly valued by an adversary’s military forces

and population. The importance of these objects is so essential to military

operations and the daily activities of a civilian population that the adversary is

compelled to cease hostilities. One of the most appropriate target sets to

achieve this goal includes private and public infrastructure, government

institutions and other objects commonly referred to as dual-use objects. The

U.S. defines a dual-use object as a facility used for both military and civilian

purposes. These facilities provide services like communication, fuel,

electricity, transportation, and other national infrastructure to the civilian

population.

335

The most obvious difficulty in targeting these objects is that it

is impossible to assure avoidance of collateral damage because many objects

intended for civilians are also used for military purposes. For example, roads,

bridges, railroads, airports, seaports and other infrastructure critical to the

civilian population are also vital to a state’s participation in conflict.

Communication facilities, power service and other utilities are also commonly

shared. Attacking these dual-use objects naturally places the civilian

population at risk because of a population’s heavy reliance on these services

for daily activity.

Article 52(2) provides essentially two requirements for an object, including

one that is dual-use, to qualify as a military objective: 1) the target must make

an effective contribution to the enemy’s military action; and 2) its destruction

must provide a definite military advantage to the attacker.

336

The term

embraces more than military personnel, weapon systems, and other military

equipment. Military objectives also include objects that by their nature,

purpose, use, or location, contribute to the military initiative and the

destruction of which constitutes a “military advantage.”

337

Instead of using

the term “military advantage,”

Article 52(2) uses the broader expression,

“make an effective contribution to enemy action.”

338

This definition includes

dual-use facilities and services used to support military operations, such as

finance, communication, power generation, transportation, and economic

centers of gravity that support and sustain an adversary’s capability to

participate in conflict. While dual-use objects may properly be included in

target sets, they become increasingly controversial based on the value and level

of dependence the civilian population places on the targeted facility or service.

335

U.S. D

EP’T OF AIR FORCE PAM. 14-210, USAF INTELLIGENCE TARGETING GUIDE, par. A

4.2.2 (Feb. 1, 1998).

336

Protocol I, supra note 10, at art. 52(2).

337

Id. See U.S. D

EP’T OF NAVY, ANNOTATED SUPPLEMENT TO THE COMMANDER’S

HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 1-14M, at 8.1.1 (1995)

338

Protocol I, supra note 10, at art. 52(2).

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Basically, targets having the greatest influence over civilian resolve generate

the highest amount of controversy.

The foregoing definitions are commonly manipulated and abused by states

at war.

339

Additionally, humanitarian interest groups working to protect

civilians from the effects of war narrowly interpret the definitions.

340

For

example, when Amnesty International criticized NATO’s attack of the SRT

Headquarters in Belgrade, they suggested that Article 52 did not allow attacks

on civilian media facilities used to disseminate propaganda:

Amnesty International recognizes that disrupting government

propaganda may help to undermine the morale of the population

and the armed forces, but believes that justifying an attack on a

civilian facility on such grounds stretches the meaning of

‘‘effective contribution to military action’’ and ‘‘definite military

advantage’’ beyond the acceptable bounds of interpretation. Under

the requirements of Article 52(2) of Protocol I, the SRT

headquarters cannot be considered a military objective. As such,

the attack on the SRT headquarters violated the prohibition to

attack civilian objects contained in Article 52 (I) and therefore

constitutes a war crime.

341

In sharp contrast, the ICRC has identified railways, roads, bridges, tunnels,

media broadcast stations, and other facilities “which are of fundamental

military importance” as appropriate military objectives.

342

Traditional

339

See e.g. supra, note 321 and accompanying text for a series of citations reporting collateral

damage and civilian casualties from conflict worldwide.

340

HRW criticized NATO attacks on Serb bridges and the national media headquarters,

stating the facilities did not effectively contribute to Serb military action and the attacks did

not contribute to a military advantage. HRW, Civilians Deaths in the NATO Air Campaign,

available at http://www.hrw.org/reports/2000/nato/index.htm#Top-OfPage (last visited Apr. 8,

2004).

341

Amnesty International, NATO/FRY, Collateral Damage or Unlawful Killings: Violations

of the Laws of War by NATO During Operation Allied Force, AI Index: EUR 70/18/00 (June,

2000) at http://www.web.amnesty.org/ai.nsf/index/EUR700182000 (last visited March 8,

2004).

342

In 1956, ICRC proposed several categories of military objectives:

I. The objectives belonging to the following categories are those considered

to be of generally recognized military importance:

(1) Armed forces, including auxiliary or complementary organizations, and

persons who, though not belonging to the above-mentioned formations,

nevertheless take part in the fighting.

(2) Positions, installations or constructions occupied by the forces indicated

in sub-paragraph 1 above, as well as combat objectives (that is to say, those

objectives which are directly contested in battle between land or sea forces

including airborne forces).

Collateral Damage on 21

Century Battlefield-83

targeting theory suggests that destruction of dual-use targets provides the

benefit of denying use of the infrastructure for any military purpose while also

degrading civilian morale. Dual-use targets like the media headquarters in

Kosovo are at the center of the targeting controversy because of highly

subjective views of proportionality and uncertainty in its application.

Specifically: 1) what is the value assigned to destruction of a dual-use object as

a military objective compared to the value placed on subsequent collateral

damage and loss of civilian life; 2) what is the value assigned to destruction of

the target compared to the consequence of not destroying it; and 3) should the

measurement of collateral damage be based on foreseeable physical effects in a

defined impact radius or broader in scope to include intangible, non-physical

damage.

The concept of effects-based targeting provides particular value in

addressing these issues and minimizing collateral damage. Strikes focus on the

effects they have on behavior rather than on observable physical battle damage

(3) Installations, constructions and other works of a military nature, such as

barracks, fortifications, War Ministries (e.g. Ministries of Army, Navy, Air

Force, National Defense, Supply) and other organs for the direction and

administration of military operations.

(4) Stores of army or military supplies, such as munition dumps, stores of

equipment or fuel, vehicles parks.

(5) Airfields, rocket launching ramps and naval base installations.

(6) Those of the lines and means of communications (railway lines, roads,

bridges, tunnels and canals) which are of fundamental military importance.

(7) The installations of broadcasting and television stations; telephone and

telegraph exchanges of fundamental military importance.

(8) Industries of fundamental importance for the conduct of the war:

(a) industries for the manufacture of armaments such as weapons, munitions,

rockets, armored vehicles, military aircraft, fighting ships, including the

manufacture of accessories and all other war material;

(b) industries for the manufacture of supplies and material of a military

character, such as transport and communications material, equipment of the

armed forces;

centers of fundamental importance for the conduct of war, such as the

metallurgical, engineering and chemical industries, whose nature or purpose

is essentially military;

(d) storage and transport installations whose basic function it is to serve the

industries referred to in (a)–(c);

(e) installations providing energy mainly for national defense, e.g. coal, other

fuels, or atomic energy, and plants producing gas or electricity mainly for

military consumption.

(9) Installations constituting experimental, research centers for experiments

on and the development of weapons and war material.

ICRC, C

OMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA

CONVENTIONS OF 12 AUGUST 1949, at 632-633.

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to objects or casualties.

343

If the strategic goal is to end a war on favorable

terms while reducing the length of the conflict, minimizing damage, loss of life

and expense, then the most highly valued targets must be destroyed early in the

conflict. Essentially, the strategy requires immediate, precision strikes on an

adversary’s jugular with little collateral damage. Ironically, the most efficient

and humane approach to achieving this goal may involve early engagement of

the most controversial targets. For example, strikes on property and services

that destroy the convenience and lifestyle, rather than the survival of an

adversary’s civilian population.

St. Augustine’s punitive model to warfare roughly followed the principle

that a nation and its people are undivided.

344

He made no distinctions between

combatants and civilians on this level because there was no moral difference

between them in the context of a state entity.

345

Lieber also recognized that

the state and its people are one, both enduring the consequences of success or

failure for the decisions of leadership:

Art. 20. Public war is a state of armed hostility between

sovereign nations or governments. It is a law and requisite of

civilized existence that men live in political, continuous societies,

forming organized units, called states or nations, whose

constituents bear, enjoy, suffer, advance and retrograde together,

in peace and in war.

Art. 21. The citizen or native of a hostile country is thus an

enemy, as one of the constituents of the hostile state or nation, and

as such is subjected to the hardships of the war.

Art. 22. Nevertheless . . . so has likewise steadily advanced,

especially in war on land, the distinction between the private

individual belonging to a hostile country and the hostile country

itself, with its men in arms. The principle has been more and

more acknowledged that the unarmed citizen is to be spared in

person, property, and honor as much as the exigencies of war will

admit.

346

In 1947, J.M. Spaight recognized that the destruction of morale can be

achieved without destruction of the civilian population. He proposed attacks

centered on the wealth, business, and daily lifestyle of the population rather

343

U.S. Joint Forces Command, Concepts Division, White Paper on Effects-based Operations

(Oct. 18, 2001).

344

MCKEOG, supra note 12, at 21.

345

Id. at 28.

346

Headquarters, Dep’t of Army, Gen. Orders No. 100, supra note 21.

Collateral Damage on 21

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than its survival.

347

Destruction of these target sets temporarily disrupts

commerce, employment, and other activities valued by a civilian population.

More recently, Colonel John A. Warden summarized five decades of targeting

theory in a simple model called the theory of strategic rings.

348

Although this

theory has limited application to non-state adversaries, it is still valuable in

understanding potential targets. According to Warden, an adversary’s centers

of gravity can generally be illustrated with five concentric rings. The

innermost ring is leadership, followed by organic essentials, infrastructure, the

civilian population and a nation’s military.

349

Organic essentials and

infrastructure translate into dual-use objects like communication, electrical,

transportation and other public and private infrastructure. Effects-based

targeting strategies conform well to this model. Both propose a theory

emphasizing the destruction of specific target sets like organic essentials and

infrastructure to promote the disabling of the other target sets by cascading

effects. Further, the long-term, catastrophic consequences and humanitarian

crises encountered from the traditional targeting of centers of high resistance

like the military can be avoided. While the civilian population should never be

the subject of direct kinetic attack, the effects on this center of gravity are

largely discomfort, morale and resolve to support their leadership in conflict

participation. The primary obstacle to this type of campaign is that Article

52(2) arguably prohibits attacking these targets, even though their destruction

may reduce the length, cost, damage and casualty rate typically encountered

from the destruction of objects providing a distinctly military advantage.

Objects providing a military advantage typically translate into the highest

center of resistance and the most difficult to engage, especially when they are

commingled among the civilian population in concealment warfare.

The term “military objective” in Article 52

350

should be clearly interpreted

to include the organic objectives contemplated by Warden. Targets would

include traditional dual-use objects, as well as public or private infrastructure

inherent to a nation’s political or economic survivability. Specific targets may

include local, regional and national government institutions, as well as

financial, banking, and monetary exchange centers. Other infrastructure

subject to targeting under these terms would clearly include dual-use objects

like communication, transportation, power generation, media generation and

broadcast, and industry contributing to the survivability of the adversary’s

military or contributes to the resolve of a civilian population. The intent is to

include private and public services that directly degrade resolve of a civilian

population, and promote a societal opinion that participation in a conflict is

347

SPAIGHT, supra note 36, at 17-18.

348

John A. Warden, The Enemy as a System, A

IRPOWER JOURNAL 42 (Spring, 1995)

349

Id.

350

Protocol I, supra note 10, at art. 52(2).

86-The Air Force Law Review

hopeless. The foregoing definitions should always be construed in a fashion

that minimizes collateral damage and the loss of life.

B. Redefining Collateral Damage

OAF illustrates that perceptions of what qualifies as a military objective

and what is acceptable collateral damage varies among states. The problem

becomes most obvious in the context of targeting dual-use facilities like the

SRT Headquarters. Unresolved differences in opinion among coalition states

can result in the loss of an organized, cohesive alliance. As a coalition partner,

the U.S. was criticized in a U.S. General Accounting Office report for failing

to execute operations according to doctrine:

The departures from doctrine ranged from not having clear

and attainable objectives to not following various principles

associated with conducting an air campaign to not having a fully

functional command structure . . . . The departures were caused in

large part by the NATO alliance’s adoption of an operation of

limited scope, a great emphasis on avoiding collateral damage and

alliance casualties, and a desire to achieve its goals within a short

time frame.

351

The failure ultimately effected operations. The extensive process of target

review combined with a preoccupation to avoid collateral damage resulted in

cancelled targets, delayed engagements, failure to produce enough targets to

adequately mass, and limited strikes producing inconsequential effects.

352

351

U.S.

GENERAL ACCOUNTING OFFICE, KOSOVO AIR OPERATIONS: NEED TO MAINTAIN

ALLIANCE COHESION RESULTED IN DOCTRINAL DEPARTURES, GAO-01-784, 5 (Jul., 2001).

352

Id.

To ensure that collateral damage was limited, alliance members were

involved in the approval of individual fixed targets, which was not consistent

with military doctrine. The alliance emphasized avoiding collateral damage

because it was concerned that unfavorable public opinion could fracture the

alliance. According to doctrine, the military commander of the operation

would have much more discretion in selecting and prioritizing the individual

targets to be struck. However, alliance members wanted to review

individual targets to assess the potential for collateral damage and the

sensitivity of the targets. This approach led to reviews by multiple levels of

command above the commanding general that often included reviews by the

U.S. National Command Authorities, NATO’s North Atlantic Council, and

some individual alliance members. This cumbersome review process often

took an additional 2 weeks to get individual targets approved. A Center for

Naval Analysis report on targeting stated that of 778 fixed targets that were

approved by the commanding general, about 64 percent required a higher

level of approval. At the end of the operation, over 150 targets were still

Collateral Damage on 21

Century Battlefield-87

Although there will always be differences in what is politically and militarily

tolerable by each member state of a coalition, these differences often go

unresolved. If differences cannot be resolved through negotiation of a

combined doctrine prior to the formation of a coalition, member states must be

prepared to operate independently in accordance with their own doctrine to

achieve the goals of a combined campaign.

Traditionally, collateral damage is a result of weapon system malfunction,

human error, desperation in the fog of war or because it was intended. In more

recent warfare, it occurs when an adversary’s strategy includes concealment

among the civilian population. Any formal definition of collateral damage

must be largely based on perception, condition and tolerance. For example, the

tolerance of collateral damage would be very different for an invaded nation in

the desperate state of survival compared to a state participating in war for

economic gain. Concomitantly, how should collateral damage be measured in

the realms of time and physical effect? To conduct successful effects-based

operations, this question is critical in determining the relationship between

destruction of a particular target set and the effects anticipated on other centers

of gravity. As an illustration, several hundred thousand workers in Yugoslavia

were unemployed because key private industry sites supporting Serb forces

were destroyed in the air campaign.

353

The short-term effect of these attacks

waiting approval. The high level concern about collateral damage also led to

some approved targets being canceled, which caused some missions to be

canceled at the last minute or aborted. The commanding general had the

authority to approve fixed targets that would potentially cause less than 20

civilian casualties and mobile targets. This authority was only given to him

later in the operation. Several senior Air Force officials believed this led to

an inefficient use of assets. Officials at the air operation center stated that

the high level approval process also led to approved targets being provided

on a sporadic basis, which limited the military’s ability to achieve planned

effects and mass and parallel operations as recommended in doctrine. For

example, to achieve the effect of stopping production of an oil refinery, one

official said that several targets were identified and submitted for approval.

However, the approval was provided only for some of those targets, which

reduced the effectiveness of the strike since the refinery was not totally

disabled. Moreover, several officials said that the process could not produce

enough targets in a timely manner for the number of aircraft involved to

conduct parallel and simultaneous operations as called for in mass and

parallel attack doctrine.

353

Gregory R. Copley, The New Rome & The New Religious Wars, Conflict and Politics; the

Kosovo Crisis, D

EFENSE & FOR. AFFAIRS STRAT. POLICY, Mar., 1999, at 3.

Civilian Targets: Despite claiming victory for the destruction of

Yugoslavia’s oil refining capability, the US and NATO failed to disclose the

reality of their air strikes. This writer saw the results of some of the strikes.

In the city of Pancevo, virtually a suburb of Belgrade, air strikes had

repeatedly hit the oil refinery, the fertilizer factory and the petrochemical

plant—all among the largest installations of their type in South-Eastern

Europe—and an aircraft manufacturing facility. The damage was indeed

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may crush military industry and incite a civilian population to urge early

termination of a conflict. However, wholesale destruction of entire segments

of industry conceivably leads to economic depression and effects traditionally

encountered in a post-conflict humanitarian crisis.

In an effort to provide a better understanding of the perils of collateral

damage in modern conflict, a definition must be divided into two categories,

both requiring compliance with the principles of LOAC. “Involuntary

collateral damage” contemplates any unintended, unanticipated effect of an

attack resulting from system malfunction, human error or other errant cause.

“Voluntary collateral damage” contemplates any anticipated incidental damage

or other effect of an attack that is justified under the principle of

proportionality.

354

These definitions are useful when evaluating arguments of

enormous, but, despite repeated claims that only military-related targets were

being hit, it was clear that at Pancevo, and at many other locations in

Yugoslavia, strictly and unequivocally civil targets were being struck. This,

given the precision of the targeting, indicated that the conduct of the war and

its objectives were very different than those being cited by the White House.

By April 19, 1999, a conservative estimate concluded that 400,000 to

500,000 Yugoslavs (not counting the Kosovo refugees) out of the appr. 11-

million population had directly lost their employment because of the

destruction of their factories. This meant that some two-million people were

without income. But indirectly, the impact on employment was far greater.

When the 300,000 car-a-year automobile factory—the one which made the

Yugo car—was destroyed, for example, all of the component makers were

themselves “hit”: they lost their customer, forcing their own closure or

cutbacks. At Pancevo alone, some 10,000 people were thrown out of work,

and the city began to empty as children were sent to stay with relatives in the

country, and those rendered jobless took their families in search of safety.

The air strikes against the oil refinery may have been understandable, given

that a legitimate military or strategic target is indeed the fuel supply that

services the Armed Forces. But it was struck, on one of the attacks, on the

first day of the Orthodox Easter, a pointed reminder that the Clinton White

House—which had hesitated to launch strikes against Iraq during the Muslim

Ramadan holy period of fasting—cared little for the sentiments of the

Orthodox communities worldwide. This did not pass unnoticed among the

300-million Orthodox Christians around the world. The total value of the

damage in Pancevo was about $1.3-billion, some $650-million of this at the

oil refinery, which was hit a total of three times (by April 19, 1999). [Total

cost of the war to the Yugoslav infrastructure during the first 30 days of

bombing is estimated at $100-billion.] The flames at the Pancevo oil

refinery, soaring 20 meters into the air, and billowing black smoke continued

unabated two days after the last of the strikes.

354

The U.S. Joint Chiefs of Staff propose the term “additional damage” instead of “voluntary

collateral damage” in their draft manual to estimate collateral damage. “Additional damage.

Unintentional or incidental injury or damage to persons or objects that would be lawful

military targets in the circumstances ruling at the time.” C

HAIRMAN OF THE JOINT CHIEFS OF

STAFF, JOINT METHODOLOGY FOR ESTIMATING COLLATERAL DAMAGE AND CASUALTIES FOR

Collateral Damage on 21

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proportionality, and communicating differences between collateral damage

resulting from unforeseen causes and collateral damage that is defensible.

When applying collateral damage to an effects-based targeting strategy, the

definition of collateral damage must be divided again. “Direct collateral

damage” is any immediate physical effect incidental to any type of military

attack.

355

“Indirect collateral damage” is any delayed, long-term effect,

including physical, economic, social, public health, political or other effect

incidental to any type of military attack.

356

Failure to adequately evaluate

these definitions suggests a faulty proportionality analysis, a defective effects-

based targeting strategy, and a flawed post-conflict reconstruction assessment.

Direct effects are the immediate, first order consequence of a military action

(weapons employment results, etc.), unaltered by intervening events or

mechanisms. They are usually immediate and easily recognizable. (For

example, a parked aircraft is destroyed either by a direct hit from a bomb, or

it is sufficiently close to the point of detonation that it receives the brunt of

the weapon’s blast and fragments.) Indirect effects are the delayed and/or

displaced second-and third-order consequences of military action. They are

often accentuated by intermediate events or mechanisms to produce desired

outcomes that may be physical or psychological in nature. Indirect effects

are often difficult to recognize, due to subtle changes in adversary behavior

that may hide their extent. (For example, the plane destroyed as a direct

effect of an attack on an airfield, combined with similar attacks on all the

assets of an adversary’s air defense system, over time may ultimately

degrade the legitimacy of the regime by portraying them as incapable of

protecting the populace).

CONVENTIONAL WEAPONS: PRECISION UNGUIDED, AND CLUSTER [hereinafter CJCS

OLLATERAL DAMAGE METHODOLOGY], CJCSM 3160.01A (Draft), at A-4 (Feb., 2004).

355

Compare definition of “collateral damage” provided at footnote 1 supra.

356

A thorough indirect collateral damage assessment must evaluate all foreseeable effects of

a military operation on violence, crime, political infrastructure, housing, environment, public

health, water and sanitation infrastructure, power infrastructure, poverty, economy, labor and

unemployment, and education. The U.S. Joint Chiefs of Staff propose the term “collateral

effects” instead of “indirect collateral damage” in their draft manual to estimate collateral

damage:

Collateral Effects. This term encompasses all non-CBRN [chemical,

biological, radiological and nuclear] effects resulting from military

operations, beyond the immediate incidental physical damage caused by the

weapon’s detonation. These include unintentional or incidental effects or

damage to the civilian infrastructure (e.g., industry, power, petroleum,

communications, transportation, public services), economy, environment,

political stability, Allied/Coalition partnerships, etc. within a region, country

or affecting the territory of surrounding states, cross boundaries or buffer

zones that were not intended in relation to the commander’s objectives or

functional target systems being struck.

CJCS

COLLATERAL DAMAGE METHODOLOGY, supra note 354, at A-4.

Targeting effects are categorized in two categories by the U.S. Joint Chiefs of Staff, direct or

indirect:

U.S. D

EP’T OF DEFENSE, DOCTRINE FOR TARGETING, JP 3-60, at I-6 (2002).

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Although simple, the two categories of collateral damage promote better

communication about the different types of collateral damage in modern

warfare, as well as encourage a more profound proportionality and effects-

based targeting analysis.

357

Centers of gravity and target sets will change with the economic and

political structure of an adversary. Strategically, the question must be asked

who is better positioned to influence an early end to a conflict—the civilian

population or leadership? Further, will effects on a population incite anger,

resolve and persistence? Any campaign focusing on the morale of a civilian

population must correctly estimate the strengths, weaknesses and overall

condition of the population. Direct and indirect collateral damage may inflame

public opinion, fuel resentment, reduce support for operations, and frustrate

post-conflict reconstruction.

358

For example, in the Persian Gulf War, the

campaign to deny an already subjugated population of electricity and other

services was far less effective than it would be in a developed country like the

U.S., where a higher value is placed on the infrastructure and daily

convenience. Attacking infrastructure may cause indirect collateral damage

leading to a humanitarian crisis. For example, the campaign in the Persian

Gulf War was designed to incite the Iraqi military and civilian population to

revolt against the regime.

359

Specific objectives against the Iraqi regime

included the destruction of Iraq’s electric power system,

360

fuel production,

361

bridges over the Tigris River in downtown Baghdad,

362

and media

357

The U.S. Joint Chiefs of Staff recognize that the “cumulative” and “cascading” effects of

targeting strategy require assessment.

Direct and indirect effects possess three fundamental characteristics that

qualitatively impact the influence they exert on adversary capabilities.

Cumulative Nature of Effects . . . tend to compound, such that the ultimate

result of a finite number of direct effects is greater than the sum of their

immediate consequences. Likewise, indirect effects often synergistically

combine to produce greater changes than the sum of their individual

consequences. This may occur at the same or at different levels of war as the

contributing lower order effects are achieved. Cascading Nature of Effects .

. . can ripple through an adversary target system, often influencing other

target systems as well; most typically through nodes that are common and

critical to related target systems. The cascading of indirect effects, as the

name implies, usually flows from higher to lower levels of war. As an

example, destruction of a headquarters element will result in the loss of

command and control (C2) and synergy of subordinate units.

Id. at I-6-7.

358

See e.g., Alissa J. Rubin, Fallouja: No Good Options, L.A.T

IMES, Apr. 4, 2001, at A-1.

359

WATTS ET AL., supra note 140, at 274–75.

360

Id. at 291–92; see also P

ERSIAN GULF WAR FINAL REPORT, supra note 137, at 202-03.

361

Id. at 207.

362

HOSMER, supra note 78, at n. 38; see also PERSIAN GULF WAR FINAL REPORT, supra note

137, at 207–08.

Collateral Damage on 21

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facilities.

363

It was recognized that the air campaign would cause hardship to

the civilian population in Iraq regardless of their already depressed

condition.

364

Thorough planning can anticipate some of these concerns. As a

simple illustration, striking an adversary’s power facility to deny electricity to

an entire city presumably denies power to hospitals and other emergency

services needed for survival. Where these facilities do not already maintain

back-up electric generators, they can be provided by aerial delivery or through

NGOs prior to attack in an effort to minimize civilian casualties and other

indirect collateral damage. In an effort to further minimize civilian casualties,

advance notice of a pending attack is often used to evacuate target areas.

C. Non-lethal Coercive Measures and Article 54

The destruction of foodstuffs is also a legitimate target, and potentially a

highly effective strategy insofar as it is directly aimed at an adversary’s forces.

For example, a leading reason for poor morale among North Korean forces in

the Korean War was the shortage of food in 1950–51, after bombing

campaigns focused on interdicting supply lines.

365

The high loss of supply

trucks was so serious the North Koreans forced American prisoners of war to

drive supplies to the front lines.

366

Further, a high number of desertions and

surrenders in the Persian Gulf War were attributed to inadequate food and

water rations in 1991.

367

Protocol I, Article 54 forbids denying food and water

to the civilian population.

368

However, this provision may be shortsighted in

363

See e.g., W

ATTS ET AL., supra note 140; see also PERSIAN GULF WAR FINAL REPORT,

supra note 137, at 203–05.

364

Id. at 147–153.

365

HOSMER, supra note 78, at 106.

366

Id.

367

Id. at 158 and 185.

368

Protocol I, supra note 10, at arts. 51 & 54. Article 54 states:

1. Starvation of civilians as a method of warfare is prohibited.

2. It is prohibited to attack, destroy, remove or render useless objects

indispensable to the survival of the civilian population, such as foodstuffs,

agricultural areas for the production of foodstuffs, crops, livestock, drinking

water installations and supplies and irrigation works, for the specific purpose

of denying them for their sustenance value to the civilian population or to the

adverse Party, whatever the motive, whether in order to starve out civilians,

to cause them to move away, or for any other motive.

3. The prohibitions in paragraph 2 shall not apply to such of the objects

covered by it as are used by an adverse Party: (a) As sustenance solely for

the members of its armed forces; or (b) If not as sustenance, then in direct

support of military action, provided, however, that in no event shall actions

against these objects be taken which may be expected to leave the civilian

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its preservation of civilian life. Where concealment warfare is used by an

adversary, denial of sustenance may in limited circumstances be the most

humane method to assure the survival of civilians occupying a contested area.

Denial of basic sustenance combined with constructive information operations

provides one potential option that avoids employment of conventional warfare

and collateral damage. For example, the combined effect of denying basic

infrastructure, food, and water to a contested rural village or several blocks in

an urban area would likely encourage all occupants to exit a contested area.

Secured exit points may be used to receive, disarm, and provide food, water

and other humanitarian services to occupants leaving the contested area.

Coercive denial of infrastructure and sustenance requires that a defensible

cordon can be established around the contested area, and occupants exiting the

area can be effectively managed. Although this method violates Protocol I,

Article 54, it may be one method that offers protection of commingled civilians

victimized by concealment warfare when used as a coercive, rather than a

lethal measure. Ideally, a coercive cordon operation could achieve four

objectives: 1) the strategy allows both civilian and combatant occupants to exit

the contested area unharmed; 2) anyone exiting the contested area can be

disarmed and immediately provided food, water, shelter and other

humanitarian services as needed; 3) the conflict can be diffused; and 4) the

contested area can be secured with the greatest assurance that the loss of

civilian life and collateral damage has been minimized.

Ideally, extreme methods that deny infrastructure and sustenance would

diffuse conflict while achieving the surrender or capitulation of any

combatants in a contested area without the use of conventional warfare

emphasizing battle damage. Coercive denial of infrastructure and sustenance

does not distinguish disguised combatants commingled among the civilian

population. Further, there is little to prevent combatants from forcibly holding

or harming civilians in a prolonged standoff. In either case, however,

adversaries will likely become disorganized, lose the initiative, and become

directly accountable for any action taken against civilians held hostage or

otherwise disallowed from exiting the contested area. Where civilians are held

hostage or harmed, adversaries may attempt to defer accountability for their

misconduct to the coercive conditions. Similar to a domestic hostage crisis, it

is important to note practically and ethically in any information operation that

the adversary violated LOAC by seeking sanctuary at the risk of the civilian

population, and by taking civilians hostage to achieve a strategic advantage.

Responsible use of coercive methods necessitates rejection of Protocol I,

Article 54. Paradoxically, where concealment warfare is designed to exploit

LOAC and civilian life, denying sustenance may actually protect civilian lives

when compared to the alternative method of traditional kinetic warfare.

population with such inadequate food or water as to cause its starvation or

force its movement.

Collateral Damage on 21

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Although the letter of the law in LOAC is violated, the spirit of LOAC to

preserve civilian life is maintained.

D. U.S. Military Doctrine and Targeting

U.S. military doctrine permits targeting behavior, but there are

inconsistencies among service targeting definitions, and weak description of

the relationships between collateral damage, proportionality and effects-based

targeting. The U.S. Joint Chiefs of Staff define strategic air warfare as:

Air combat and supporting operations designed to effect,

through the systematic application of force to a selected series of

vital targets, the progressive destruction and disintegration of the

enemy’s war-making capacity to a point where the enemy no

longer retains the ability or the will to wage war. Vital targets

may include key manufacturing systems, sources of raw material,

critical material, stockpiles, power systems, transportation

systems, communication facilities, concentrations of uncommitted

elements of enemy armed forces, key agricultural areas, and other

such target systems (emphasis added).

369

Consistent with this definition, U.S. Air Force doctrine is premised on

the notion that a successful air campaign is not necessarily quantified by the

number of casualties inflicted, how many engagements were won or lost, or the

amount of territory occupied, but by whether or not the overarching political

objectives were achieved. Greater than any preceding factor, the political

objectives, both one’s own and the enemy’s shape the scope and intensity of

war.” Armed conflict “is a clash of opposing wills . . . . While physical

factors are crucial in war, the national will and the leadership’s will are also

critical components of war. The will to prosecute or the will to resist can be

decisive elements.”

370

Identifying will and morale as potential targets, centers

of gravity are “those characteristics, capabilities, or localities from which a

369

U.S. D

EP’T OF THE AIR FORCE, BASIC AEROSPACE DOCTRINE OF THE UNITED STATES AIR

FORCE, AFM 1-1, vol. II, at 302 (March, 1992). Clearly recognizing the value of “behavior”

and “perception” in targeting strategy, the U.S. Joint Chiefs of Staff also define a target as, “an

area, complex, installation, force, equipment, capability, function, or behavior identified for

possible action to support the commander’s objectives, guidance, and intent (emphasis

added).” U.S. D

EP’T OF DEFENSE, DOCTRINE FOR TARGETING, supra note 356 at I-2. “When

choosing targets, the commander must be focused on the purpose of the fires striking chosen

targets . . . . Targeting effects are the cumulative results of actions taken to engage

geographical areas, complexes, installations, forces, equipment, functions, perception, or

information by lethal and non-lethal means. Id. I-5-6.

370

U.S.

DEP’T OF THE AIR FORCE, AIR FORCE DOCTRINE, AFDD 1, at 6 (1997).

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military force, nation, or alliance derives its freedom of action, physical

strength, or will to fight.”

371

The U.S. Marine Corps also recognizes that centers of gravity can include

intangible attributes such as resolve or morale. Nevertheless, “we should

recognize that most enemy systems will not have a single center of gravity . . .

. . It will often be necessary to attack several lesser centers of gravity or

critical vulnerabilities simultaneously or in sequence to have the desired

effect.”

372

U.S. Army doctrine adds that “[f]acilities and installations are

studied to identify critical nodes and those of importance in the military,

political, and economic infrastructure (center of gravity).”

373

Finally, the U.S.

Navy defines a center of gravity as “something the enemy must have to

continue military operations, a source of his strength, but not necessarily strong

or a strength in itself. There can only be one center of gravity. Once

identified, we focus all aspects of our military, economic, diplomatic, and

political strengths against it.” The Navy views the morale and will of an

adversary more as vulnerabilities instead of centers of gravity.

374

371

U.S. DEP’T OF THE AIR FORCE, STRATEGIC ATTACK, AFDD 2-1.2, at 13 (1998); see also

U.S. D

EP’T OF DEFENSE DEP’T OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED

TERMS, JP1-02, at 80 (2001).

372

U.S. D

EP’T OF THE NAVY, U.S. MARINE CORPS, WARFIGHTING, MCDP 1, at 46-47 (1997).

373

U.S. D

EP’T OF THE ARMY, THE TARGETING PROCESS, FM6-20-10, at 3-11 (1996). “Center

of gravity usually relates to the main enemy force or capability. The concept of center of

gravity is useful as a tool to analyze enemy strengths and vulnerabilities. By identifying and

controlling decisive points, commanders gain a marked advantage over the enemy and can

influence the outcome of an action.” U.S. D

EP’T OF THE ARMY, DECISIVE FORCE: THE ARMY

THEATER OPERATIONS, FM 100-7, at 1-5 (1995).

374

U.S. D

EP’T OF THE NAVY, NAVAL WARFARE, NDP 1, at 35-37.

As an example, a lengthy re-supply line supporting forces engaged at a

distance from the home front could be an enemy’s center of gravity. The re-

supply line is something the enemy must have, a source of strength, but not

necessarily capable of protecting itself. Opportunities to access and destroy

a center of gravity are called critical vulnerabilities. To deliver a decisive

blow to the enemy’s center of gravity, we must strike at objectives affecting

the center of gravity that are both critical to the enemy’s ability to fight and

vulnerable to our offensive actions . . . . Some, such as electrical power

generation and distribution facilities ashore or the fleet oilers supporting a

task group may be obvious. On a strategic level, examples may include a

nation’s dependence on a certain raw material imported by sea to support its

war-fighting industry, or its dependence on a single source of intelligence

data as the primary basis for its decisions. Alternatively, a critical

vulnerability might be an intangible, such as morale. In any case, we define

critical vulnerabilities by the central role they play in maintaining or

supporting the enemy’s center of gravity and, ultimately, his ability to resist.

We should not attempt to always designate one thing or another as a critical

vulnerability. A critical vulnerability frequently is transitory or time-

sensitive. Some things, such as the political will to resist, may always be

critical, but will be vulnerable only infrequently. Other things, such as

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One notable flaw in military doctrine generally is how new weapons

technology and strategy should be employed where collateral damage is a

concern. For example, non-kinetic warfare methods that include electronic and

information network attacks are very difficult to measure for potential

collateral damage. If a computer program virus is released into an adversary’s

computer network, it is extremely difficult to ensure confinement of the attack

to a specific terminal or group of terminals. Moreover, if a communication

frequency is jammed from an electronic attack, then it is impossible to limit the

effects of the attack to a particular frequency user. In either case, the effects

can disrupt emergency services required for civilian relief.

375

Although these

methods offer some of the greatest potential to challenge concealment warfare

tactics, the concept of collateral damage is noticeably absent from their

doctrine.

376

Finally, U.S. military doctrine incorporates “indirect effects” into

effects-based strategy, while comprehensively failing to incorporate “indirect

collateral damage” into a proportionality analysis.

377

Conceptually, the

collateral damage analysis and the measurement of strategic effects are the

same.

378

However, a different conclusion can be reached when attempting to

capital cities or an opponent’s fleet, may often be vulnerable, but are not

always critical. What is critical will depend on the situation. What is

vulnerable may change from one hour to the next. Something may be both

critical and vulnerable for a brief time only.

Id.

375

When coalition forces proposed a “cyber attack” during OAF, the idea was quickly

reviewed for potential LOAC violations.

When the DOD considered hacking into Serbian computer networks to

disrupt military operations and basic civilian services, the Pentagon held

back because of continuing legal uncertainties and limitations relative to the

new field of “cyber warfare.” It is theoretically possible for soldiers at

computer terminals to invade an opponent’s networks and shut down

electrical facilities, interrupt telephone service, crash trains and disrupt

financial systems; but the Defense Department’s Office of General Counsel

issued a 50-page “Assessment of International Legal Issues in Information

Operations,” stating that the misuse of cyber attacks could subject US

authorities to war crimes charges. Commanders should apply the same “law

of war”‘ principles to computer attacks that they do to the use of bombs and

missiles. These principles restrict attacks to targets that are of military

necessity only, minimizing collateral damage and avoiding indiscriminate

attacks.

Kernan Chaison, Cyber Warfare Rules “Bumfuzzle” DOD Lawyers, J. E

LECTRONIC DEF., Jan.

1, 2000, no. 1, vol. 23(16).

376

See generally DEP’T OF DEFENSE, JOINT DOCTRINE FOR ELECTRONIC WARFARE, JP3-51

(2000); and D

EP’T OF DEFENSE, JOINT DOCTRINE FOR INFORMATION OPERATIONS, JP3-13

(1998).

377

See supra note 356 and accompanying text for definitions of “indirect effects” and

“indirect collateral damage.”

378

In effects-based targeting, measures of effectiveness [hereinafter MOEs] are defined as:

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anticipate the comprehensive value of an attack for effects-based operations

and the analysis required to conduct a thorough proportionality analysis.

In preparation for any attack, including attacks with new technology,

Article 57(2)(a) of Protocol I requires planners to “take all feasible precautions

in the choice of means and methods of attack with a view to avoiding, and in

any event to minimizing, incidental loss of civilian life, injury to civilians and

damage to civilian objects.”

379

Article 51(5)(b) directs that attacks on a

specific military objective are impermissible if they “may be expected to cause

incidental loss of civilian life, injury to civilians, damage to civilian objects, or

a combination thereof, which would be excessive in relation to the concrete

and direct military advantage anticipated.”

380

A responsible commander must

determine whether the collateral damage from destruction of the target is

proportionate to the military advantage of destroying it. The benefit of

incorporating both direct and indirect collateral damage into the proportionality

analysis is a more comprehensive effects-based strategy, as well as a more

defensible proportionality review.

MOEs in military operations are defined as tools used to measure results

achieved in the overall mission and execution of assigned tasks. MOEs are a

prerequisite to the performance of combat assessment. Assessment of such

indicators normally takes place at the tactical, operational, and even strategic

levels of war, and goes beyond counting craters or vehicles destroyed. The

key is to determine when the predetermined conditions have been met that

affect adversary operational employment or overall strategy and whether or

not the anticipated effects are occurring. The continuing intelligence

analysis process helps to ensure that proper combat assessment

measurements take place.

U.S. D

EP’T OF DEFENSE, DOCTRINE FOR TARGETING, supra note 356, at I-8.

379

Protocol I, supra note 10, at art. 57(2).

380

The following types of attacks are considered indiscriminate:

(a) those which are not directed at a specific military objective; (b) those

which employ a method or means of combat which cannot be directed at a

specific military objective; or (c) those which employ a method or means of

combat the effects of which cannot be limited as required by this Protocol;

and consequently, in each such case, are of a nature to strike military

objectives and civilians or civilian objects without distinction.

Id. at art. 51(4).

(a) an attack by bombardment by any method or means which treat as a

single military objective a number of clearly separated and distinct military

objectives located in a city, town, village or other area containing a similar

concentration of civilians or civilian objects; and (b) an attack which may be

expected to cause incidental loss of civilian life, injury to civilians, damage

to civilian objects, or a combination thereof, which would be excessive in

relation to the concrete and direct military advantage anticipated.

Id. at art. 51(5).

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E. Defense Technology, Strategy and the Law of Armed Conflict

Improved interoperability of command, control, and communication

systems with sensors for intelligence, surveillance and reconnaissance (C

ISR)

have been combined with enhanced precision technology to provide

capabilities inconceivable when Protocols I and II were opened for signature in

1977.

381

This technology is especially promising in urban environments,

where concealment warfare is most effective and prevalent. Improvement in

the munitions industry affords the ability to pacify infrastructure without

extensive damage or civilian casualties. For example, carbon fiber weapons

are able to render electrical infrastructure temporarily disabled. Non-lethal

weapons employing electro-magnetic pulse

382

and directed energy

383

have the

potential to disable infrastructure without casualties.

384

Although lethal,

thermobaric weapons provide the important capability of combining blast

concussion with high burn temperatures to incinerate biological and chemical

agents.

385

381

Avocating initiatives to ensure all of weapon systems and platforms are inter-operable and

able to move data seamlessly, Gen. Lester Lyles, Commander of USAF Air Force Materiel

Command, testified before the U.S. Senate Armed Services Committee: “As a result of this

AFMC-wide enterprise, our special tactics warriors will soon have a digital machine-to-

machine capability that helps to quickly connect the right aircraft with the right munitions,

guided precisely to the right target, at just the right time, to achieve the desired effect. This

new automated process helps to reduce the time it takes to target the terrorist threat, while at

the same time reducing human error in the targeting process.” Kerry Gildea, Services

Investing in S&T Areas To Avoid Friendly Fire Incidents, D

EFENSE DAILY, Apr. 1, 2003, vol.

218(1).

382

Id. The electromagnetic-pulse (EMP) weapon is ideal for military objects located in

fortified underground facilities or beneath civilian buildings. In theory, EMP can penetrate

bunkers using cables, ventilation ducts, pipes and other openings to transmit a pulse spike.

Although these weapons may cause relatively extensive collateral damage, their employment is

far more humane than their kinetic counterparts that rely on blast. “The EMP weapon is

that fries electronics wherever it reaches. Some reported performance numbers for an earlier

version are: a 50-microsecond electromagnetic spike with 30-million peak amps and 20-

million peak joules. This makes lightening look like static electricity.” Id.

383

Ray Nelson, Directed Energy Efforts Increase at AFRL, SPACE & MISSILE, Sep. 15, 2003,

vol. 4(36).

384

Lisa Troshinsky, Non-Lethal Weapons Move Beyond Tactical Arena and Into The Navy,

AVY NEWS & UNDERSEA TECH., Mar. 27, 2000, vol. 17(13).

385

Commentary, The High End Crusader, High Tech Weapons Key to Iraq War, N

EW TECH.

WEEK, Jan. 6, 2003, vol. 17(1). Thermobaric technology is a significant enhancement to

operations in urban environments. A thermobaric weapon combines the effects of a fireball

with the pressure of a blast concussion, filling the space into which it is fired. “It is capable of

turning corners and traveling upwards through openings between building floors. Coupled

with a penetrating warhead, a thermobaric weapon can penetrate indoor or underground spaces

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Attack aircraft delivering these munitions have the capability of selecting

and delivering the most appropriate and preferred munition to a target even

while airborne. Munition fuse settings can be adjusted before delivery for a

desired level of impact.

386

The hard target smart fuse can be set for timing or

programmed to count the number of void spaces or barriers it travels through

when entering a target structure. The fuse provides the ability to detonate the

munition in the exact room or floor of the targeted structure.

387

Fuse

technology combined with the development of fifty to seventy-five pound

small diameter PGM has promise in further minimizing the risk of involuntary

and indirect collateral damage.

388

Available as early as 2006, smaller PGM

will likely become highly preferred for employment in urban close combat

because they do not create as much damage in comparison to the larger PGM

currently in use.

389

Ground forces use advanced communications, laser guidance target

designators and surveyors to calculate target coordinates and guide munitions

to a target to further improve accuracy in target selection.

390

These forces are

also able to provide other benefits, including near immediate battle damage or

effects-based assessments.

391

The future of nano-energetics offers immense

promise to minimize collateral damage. Nano-energetics relies on nano-

structured explosives and fuel additives, as well as catalytics and

photovoltaics. The technology provides more effective control of blast,

resulting in the direction of energy and impact to a designated target.

392

This

technology will someday provide adaptive materials with properties that can be

changed according to the type of target, condition of the target or evolving

ISR. Perhaps most promising of all are non-lethal weapons that can be applied

and then set off a blast of heat and pressure strong enough to destroy biological or chemical

agents.” Id.

386

OAF AFTER ACTION REPORT, supra note 165, at 95.

387

David Atkinson, Smart Fuses Improve Weapon Efficiency, D

EFENSE DAILY, Aug. 13,

1998, vol. 199(95).

388

Lorenzo Cortes, Britain Interested in SDB, But Boeing Concentrating Efforts On Air

Force Use, D

EFENSE DAILY INT., Jun. 6, 2003, vol. 3(23). Boeing is currently testing a 250-

pound small diameter bomb designed to provide accuracy and minimize the effects of

collateral damage. The munition is slated to enter service with the F-15E in September, 2006

and then the F/A-22.

389

Hunter Keeter, Marines, SOCOM Plan Greater Cooperation, DEFENSE DAILY INT., Mar.

1, 2002, vol. 3 (17).

390

Frank Wolfe, Ground Forces Aided Recon, Targeting, Damage Assessment, D

EFENSE

DAILY, Aug. 13, 2002, vol. 215(30).

391

Id.

392

Ray Nelson, Nano-technology and Biotechnology for Future Defense, S

PACE & MISSILE,

Aug. 15, vol. 3(22).

Collateral Damage on 21

Century Battlefield-99

against enemy combatants commingled with civilians.

393

Non-lethal weapons

are “explicitly designed and primarily employed so as to incapacitate personnel

or materiel, while minimizing fatalities, permanent injury to personnel, and

undesired damage to property and the environment.”

394

They are designed to

have “relatively reversible effects” on people and materiel.

395

Although wider

and more extensive application of these weapons to the battle space requires

further development and understanding, they provide the most interesting and

promising solution to concealment warfare methods without causing the level

of collateral damage and casualties traditionally caused by conventional

munitions.

As a practical measure, U.S. planners participating in the targeting cycle

already employ an extensive methodology to minimize collateral damage.

Each of the following factors is considered in target evaluation: 1) type of

object to be destroyed; 2) structural integrity of the target; 3) location of target

in relation to the presence of non-military objects, protected structures,

civilians and human shields; 4) defensive posture of the target; 5) tactical,

operational and strategic importance of the target; 6) specific type and

accuracy of the weapon delivery system and munition used; 7) manipulation of

weapon for use on the specific target (e.g. fuse adjustment); 8) measurement of

bomb impact radius; 9) specific tactical strategy tailored to engage the target

(e.g. attack heading and weapon impact angle to minimize fragmentation

impact); 10) time of attack to strike when the presence of civilians is lowest;

11) necessity of advance warning of a strike to alert civilians to evacuate the

target area; and 12) use of non-lethal or non-kinetic weapons.

396

Target

analysts use an impact-modeling program named Fast Assessment Strike Tool

for Collateral Damage, commonly referred to as “FAST-CD,” to assess the

potential for direct collateral damage. The program is able to evaluate a

393

The U.S. Army’s concept for non-lethal capabilities includes weapons that can

incapacitate, disorient, temporarily disable, irritate, stun, confuse, subdue, immobilize, and

disburse. Weapons could include sonic generators, acoustic generators, inorganic and organic

substances causing pungent odors, discomfort and temporary disability, non-penetrating

projectiles, strobe lights, stun weapons, water cannons, optical munitions, adhesive coatings,

anti-traction and immobilizing agents, combustible dispersants, entanglement agents and

devices, and aqueous foams. U.S D

EP’T OF THE ARMY, TRADOC PAMPHLET 525-73,

ONCEPT FOR NONLETHAL CAPABILITIES IN ARMY OPERATIONS, App. B (Dec. 1, 1996).

394

U.S. D

EP’T OF DEFENSE DIR. 3000.3, DOD POLICY FOR NON-LETHAL WEAPONS para. 3

(July 9, 1996).

395

Id.

396

Interview with Brett A. Plentl, Lt. Col., USAF, conducted at the RAND Corporation in

Santa Monica, California (Dec. 11, 2003). Lt. Col. Plentl holds a Senior Navigator

Aeronautical Rating, and was detailed as a planner in the targeting cycle for CENTCOM

Combined Air Operations Center (CAOC) during OPERATION ENDURING FREEDOM and

the Air Force Central Command CAOC during OPERATION IRAQI FREEDOM. See also

CENTCOM Brief, Targeting and Collateral Damage, March 5, 2003.

100-The Air Force Law Review

specific target, surrounding terrain, direction, angle of attack, and the particular

characteristics of a selected munition to generate an image of a probable field

of damage.

397

The program is not capable of evaluating indirect collateral

damage.

Although technology and thoughtful targeting process offers the ability to

further minimize civilian casualties and collateral damage, adversaries can still

complicate or deter attack using concealment warfare. The benchmark for

high precision and low collateral damage potentially creates unrealistic

expectations of technology where an adversary invites or fabricates collateral

damage. Relying too heavily on precision technology may result in

overestimation that it cannot be rendered errant by guidance system jamming

or other counter-measures employed by an adaptive adversary.

398

Further,

inadequate or incorrect ISR will always result in the danger of delivering a

PGM to precisely the wrong target. This is especially important for mobile

targets. ISR for stationary targets generally has a high degree of confidence,

while the same information for a mobile target may be useless only hours after

collection. As a result, adversaries may effectively remain mobile and

concealed among the civilian population to escape detection and complicate

attack.

F. An Emerging Role for Media, Non-Governmental Organizations and

Humanitarian Interest Groups

The collateral damage events occurring during U.S. operations provide

valuable information about targeting strategy, collateral damage, and the

concealment tactics used by adversaries. They also illustrate the value of

397

David A. Denny, U.S. Air Force Uses New Tools to Minimize Civilian Casualties:

Avoiding Unintentional Damage Figures Into Targeting, U.S. D

EP’T OF STATE WASHINGTON

FILE, Mar. 18, 2003, at 5.

398

Steven Sifers, LTC, USA, An Infantryman’s Doubts About Smart Weapons, D

EFENSE

WEEK, April 2, 2001, vol. 22(14). Cautioning that leaders should not fall prey to the myth that

PGM can execute “bloodless surgical strikes.” Adversaries of PGM will attempt to provoke

collateral damage for propaganda. Use in previous operations demonstrates PGM are

vulnerable to neutralization by software failure, terrain, weather and adaptive adversaries. Id.

The successful development of new PGM like the Tomahawk Land Attack Missile (TLAM)

and the Joint Direct Attack Munition (JDAM), both of which use Global Positioning System

(GPS) information for guidance, have improved overall target accuracy. OAF

AFTER ACTION

REPORT, supra note 165, at 6-7. However, PGM with GPS guidance also presents the

potential vulnerability of jamming, resulting in the ability to render a munition errant and

provoke collateral damage. Id. at xxiii. Even though jamming systems are typically among

the first targets destroyed in an air campaign, their existence is a warning that these systems

can be improved to create effective counter-measures that increase collateral damage.

Christian Lowe, Lockheed Answers GPS Jamming Threat, SPACE & MISSILE, Nov. 30, 2000, at

5(10); David Whitman, Keeping Our Bearings, U.S. N

EWS & WORLD REP., Oct. 21, 2002, at

72.

Collateral Damage on 21

Century Battlefield-101

media, special interest groups, and NGOs in providing important information

to the military community about these topics. These groups have a

recognizable ability to access and report incidents of collateral damage.

399

Presumably, as non-combatant organizations, these groups have freedom of

access and movement to contested areas otherwise denied to an opposing

force. Moreover, it is in an adversary’s best interest to provide access because

these groups are instrumental to any information operation designed to exploit

humanitarian concerns and degrade public support. Their constituency and

political influence provide valuable leverage over both political and public

opinion. In contrast, these groups also provide objective, accurate information

about collateral damage incidents that expose deception or disinformation. For

example, an HRW investigation of the bombing of the Dubrava Penitentiary in

Kosovo reported that Yugoslav forces killed at least seventy prisoners to

fabricate a collateral damage incident.

400

The level of investigative detail in HRW reporting about collateral damage

in OIF is also notable, deserving greater objective value than is traditionally

given to data or analytical conclusions from humanitarian interest groups.

HRW acquired credible witness summaries, aerial and ground imagery, and

significant operations information regarding collateral damage, cluster

munitions and time sensitive targeting (TST) in OIF.

401

HRW concludes that:

“For the most part, the collateral damage assessment process for the air war in

Iraq worked well, especially with respect to preplanned targets. HRW’s

month-long investigation in Iraq found that, in most cases, aerial bombardment

resulted in minimal adverse effects to the civilian population.”

402

Adversaries since the Vietnam War have adopted strategies attempting to

degrade support for conflicts through attrition, protraction, and exploitation of

humanitarian interests by concealment warfare. This strategy incorporates

engagement of the international community by leveraging humanitarian

interest groups, anti-war movements, and media. It also implies that the public

is concerned about civilian casualties as much as they are about military

casualties. Although there is debate on the efficacy of public opinion data on

collateral damage and the support for military operations, one can safely

assume that there is a relationship between the two at some level.

403

Further,

399

ICTY FINAL REPORT, supra note 190 at 39 I.L.M. 1282—83; compare HRW, THE CRISIS

KOSOVO, supra note 176.

400

Id.

401

See generally HRW, supra note 215.

402

HRW, supra note 215, at 20.

403

ARK LORELL, CHARLES KELLEY, JR. CASUALTIES, PUBLIC OPINION, AND PRESIDENTIAL

POLICY DURING THE VIETNAM WAR v., RAND Project Air Force Study R-3060-AF (March,

1985). The report examines the relationship between casualties and public support for U.S.

military intervention in Korea and Vietnam:

102-The Air Force Law Review

public support can be lost based on the number of civilian casualties.

404

March, 2003 Gallup poll indicates 57 percent of those surveyed would oppose

a war in Iraq because “many innocent Iraqi citizens would die.”

405

Public

opinion regarding military or civilian casualties is partly dependent on how

much value the public places on the end state of the conflict, and partly

dependent on whether the public perceives the end state as achievable.

406

Although U.S. polling data offers some level of value in assessing domestic

public opinion, its value is highly limited where U.S. operations are

exceedingly dependent on foreign state coalition support, and the opinions of

those state populations as well.

The Gulf War marks a point in history where the media’s capability to

report real-time combat operations provided a highly-effective, cost efficient

vehicle for an adversary to communicate battlefield events to the international

community. Respectful that the media should never be limited in accurate,

objective reporting, it is an immensely powerful medium subject to

exploitation with impunity by any party to a conflict. Humanitarian interest

groups like HRW have also benefited from access to operational and collateral

damage information, even in contested areas, to better communicate their

agenda. The combination of expanded media access, greater disclosure of

military activities, and increased presence of humanitarian interest groups in

the battle space translates into an improved level of influence over domestic

and international opinion by these groups.

407

Moreover, the humanitarian

interest lobby has become far more organized and gained remarkable

popularity since the Vietnam War. As the international community becomes

more informed and aligned with these causes, humanitarian interest groups will

attempt to leverage public concern and improve their involvement in military

operations. As pressure from these groups and the international community to

minimize civilian casualties and other collateral damage increases, they will

also become more attractive targets for adversaries to exploit.

Casualties were probably the single most important factor eroding public

support for each of the conflicts . . . . Poll data indicate that any U.S.

commitment of combat personnel to a sustained Third World conflict that . .

. is not perceived as a direct and immediate threat to the continental United

States will in all probability provoke considerable public opposition once the

brief “rally around the flag” effect dissipates. This includes situations

involving threats to oil sources in the Middle East.

404

Id.

405

Katie Fairbank & Doug J. Swanson, U.S. War Support Hinges on Sparing Civilians,

ALLAS MORN. NEWS, Mar. 26, 2003, at 1(A).

406

Interview with Eric V. Larson, Media Analyst, RAND Corporation in Santa Monica,

California (Mar. 26, 2004); see generally L

ARSON & SAVYCH, supra note 322, at 106.

407

See generally, M

IDDLE EAST WATCH, supra note 158. The report attempts to provide a

full accounting of coalition violations of the laws of armed conflict.

Collateral Damage on 21

Century Battlefield-103

Concealment warfare provoking collateral damage requires the

employment of effective counter-measures that deny the ability to influence

humanitarian interest groups, media, and public opinion. At the strategic level,

these counter-measures must inform adversaries in both peace and wartime

that meaningful targeting and information based methods can and will be

employed to deter concealment warfare. A uniform strategy to pro-actively

respond to collateral damage would effectively expose and preempt adversary

disinformation campaigns and limit adverse political effects. To illustrate, if a

dual-use target like a broadcast facility is destroyed because it supports an

adversary’s military operations, transmissions should be recorded prior to

attack that indicate its use for C³ or another military purpose. The careful and

thorough collection of “evidence” prior to attack of a controversial target

provides a valuable, readily available case to advocate the destruction of the

target should a challenge arise. This information could be made available to

both media and humanitarian interest groups to support an attack, counter

disinformation and deception, and reduce conspiracy theories.

Incidents of both voluntary and involuntary collateral damage should be

investigated where feasible to expose adversary disinformation, as well as to

responsibly report collateral damage. Thorough investigation of these

incidents by a dedicated theater-level collateral damage response team

provides two benefits. Information from these investigations provides the

ability to apply counter-measures, and the necessary knowledge to confidently

engage media and humanitarian interest groups most likely to initiate a

challenge. Currently, U.S. military doctrine does not require the investigation

of collateral damage incidents, estimations of civilian casualties or levels of

damage to civilian objects after attack. One disadvantage to not obtaining this

information is that adversaries are left with the ability to fabricate and extort it.

A model collateral damage response team would require, at a minimum,

dedicated experts with backgrounds in law,

408

public affairs, information

operations, intelligence, operation planning, engineering, and munitions.

Experts in economics, public health, environment, housing and urban

development, labor, and education would also be required to assist in the

assessment of indirect collateral damage.

A collateral damage response team would also eliminate the notable lack of

competence in discussing complex issues associated with LOAC, targeting,

and collateral damage among U.S. Department of Defense personnel.

409

408

JAGs are required to review and coordinate on “all operation plans . . . concept plans,

rules of engagement, execute orders, deployment orders, policies, and directives . . . to ensure

compliance with domestic and international law.” U.S. D

EP’T OF DEFENSE, IMPLEMENTATION

OF THE

DOD LAW OF WAR PROGRAM, CJCSI 1810.01A, par. 6(c)(5) (Aug., 1999).

409

The following transcript from a daily DOD press briefing illustrates the difficulty some

senior officials have addressing issues associated with LOAC:

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These issues should be addressed exclusively by those officials most familiar

with the subject matter to provide clear, accurate information to the public,

prevent exploitation of any uncertainty on these issues, promote military

policy, and improve education of the media, humanitarian interest groups, and

international community. In many cases, the officials most competent to

respond to LOAC queries on a consistent basis are attorneys well educated in

LOAC. These attorneys are traditionally the one group with the greatest

familiarity and unique ability to prepare and educate an audience about the

complex dynamics of LOAC and military operations. Commanders and other

officials discussing military operations with the media must also be aware that

their statements, however flamboyant, confused, intimidating or mundane, can

Media Question: Going to that, using foreign volunteers, why do you not

consider those folks to be enemy combatants since they voluntarily place

themselves there?

Sr. Defense Official: I’m not a legal expert, but you certainly could argue

that since they’re working in the service of the Iraqi government, they may,

in fact, have crossed the line between combatant and noncombatant.

Media Question: And just one sort of technical question. It’s often stated

that the use of human shields is in violation of the international law of armed

conflict. When you say that, are you referring to a recognized body of law?

Or, you know, where can we go look that up? Is it a series of—

Sr. Defense Official: Yeah. I’m going to refer you to the OSD general

counsel, but my—I know there are certain portions of the Geneva

Convention that state that explicitly, that it is not permissible to use the

civilians. I don’t know if they—I think they may even use the term “shield.”

Media Question: It seems to me—I want to go back to this point here. This is

a really critical distinction. Are these people, once they volunteer, are they

putting them—taking themselves away from civilians and they’re there now

on the combatant side? This to me seems like the crux of the whole matter.

And you’re saying, “I don’t know, I’m not a legal expert.” Somebody must

have figured this out at the Pentagon.

Sr. Defense Official: Again, yeah, I’m—I’m an intelligence expert. It’s not

that I’m trying to dodge the question, but I think we would need OSD policy

and legal affairs folks to answer your question.

Media Question: In this room and also at the White House, we’ve had

warnings given from the United States to Iraqi military that if you follow

orders of Saddam’s regime to deploy weapons of mass destruction, that you

will be subject to a war crimes trial. Since what you’re discussing today is

violations of the Geneva Convention and other international law, are you at

this point also saying that if people in Iraq follow Saddam’s orders to use

civilians, to use mosques, schools and other things, that that would be in

violation of international law; they also are subjecting themselves to a

potential for prosecution in war crimes trials after the war?

Sr. Defense Official: I can’t answer that. I don’t have the legal expertise. But

certainly there is that implication here.

U.S. Dept. of Defense Briefing on Use of Human Shields in Iraq (Feb. 26, 2003) at

http://www.defenselink.mil/news/Feb2003/t02262003_t0226humanasst.htm (last visited Feb.

19, 2004).

Collateral Damage on 21

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be presented to the ICC as evidence to support a war crime alleged against a

U.S. commander or official.

410

Both humanitarian interest groups and the media are instrumental in the

education of the international community through informed, accurate and

objective reporting of targeting strategies, collateral damage and concealment

warfare. These groups serve as a witness to a judgmental public that supports

or objects to participation in conflict. Their access to military operations and

the battle space creates an informed public, provides a counter-measure to

disinformation and deception, and ensures state responsibility. For example,

destruction of the Iraqi regime’s communication infrastructure and embedding

reporters in coalition units during OIF reduced the ability of the regime to

exploit the media and degrade U.S. public support for operations. In effect,

destruction of the communication infrastructure denied the ability to conduct

information operations.

Facilitating media and humanitarian interest group access to operations

invites objective, third party investigation of collateral damage incidents.

Conceivably, cooperation and information exchange with humanitarian NGOs

like the ICRC on collateral damage incidents would benefit both military and

humanitarian interests. NGOs often have access to contested areas where

collateral damage occurs, their level of reporting is often more thorough, they

provide valuable data in measuring both direct and indirect collateral damage,

and they provide valuable insight on the human condition. In turn,

humanitarian interest groups could achieve greater access to post-targeting

information to identify operational trends that effect humanitarian concerns.

Often viewed as divergent, both military and humanitarian interest groups seek

to preserve life and reduce destruction to the extent possible. In pursuit of this

goal, it seems plausible that both interests could be well served through mutual

sharing of collateral damage information and instruction on operational issues

associated with it. On this basis, it is conceivable that an NGO representative

could participate in a collateral damage response team to perform as a

humanitarian affairs consultant and liaison. Cooperation with humanitarian

interest groups on this basis also provides valuable insight into post-conflict

reconstruction requirements.

410

A discussion of the International Criminal Court, potential war crimes and jurisdiction is

provided in Chapter IV.

106-The Air Force Law Review

VII. CONCLUSION

“Therein are rivers of water unpolluted, and rivers of milk

whereof the flavor changeth not, and rivers of wine delicious to

the drinkers, and rivers of clear-run honey; therein for them is

every kind of fruit, with pardon from their Lord.”

The Koran, Sūrah XLVII, Ayah 15.

The rules of war created on the basis of ideals adopted by western society

have become central to adversaries employing concealment warfare methods.

Concealment warfare affords the most convenient, efficient and assured means

of defying a conventionally superior force by challenging strategy, technology,

ideology, morality and resolve. States that value LOAC will naturally make

efforts to comply with its principles. Highly influenced by LOAC, the U.S.

has comprehensively incorporated it into military doctrine, force structure,

strategy, weaponeering, and rules of engagement to the point that it is

predictable to an adversary employing concealment warfare.

Throughout its history of warfare, the U.S. has adapted to adversaries and

developed defense technology, strategies and processes that are impossible for

most nations to meaningfully challenge in the conventional battle space. As a

result, adversaries seek to challenge the U.S. with concealment and terror

tactics on the fringes of the traditional spectrum of conflict. The relative

success of these methods compared to traditional force-on-force methods

makes it conceivable that future adversaries will not wear uniforms at all,

incorporate more aggressive use of civilian shields, apply more aggressive

deception and disinformation campaigns, and commingle military objects and

personnel with civilians to the point where U.S. forces are unable to discern

any difference between civilians and combatants. Concealment warfare on this

basis produces a protracted, complicated and problematic war resulting in a

deterioration of principle and U.S. public support for operations.

Potential adversaries well recognized for their repression and human rights

violations are most likely to attempt further strategic integration of military

forces and objects with their civilian communities. Kim Jong II of North

Korea and HuJintao of China rank among the highest targets of concern among

humanitarian interest groups for human rights abuses.

411

Chinese defense

strategists publicly recognize compliance with LOAC leads to certain defeat,

and “non-traditional strategies” must be employed for any success against

conventionally superior forces.

412

411

David Wallechinsky, The World’s 10 Worst Dictators, P

ARADE/L.A. TIMES, Feb. 22,

2004, at 4-5.

412

Col. Qia Liang and Col. Wang Xiangsui, Chinese People’s Army, embrace the use of

computer viruses, drug trafficking, environmental attacks, information warfare, stock market

manipulation and other nontraditional strategies to challenge the U.S. military and economic

Collateral Damage on 21

Century Battlefield-107

Although improvement in technology is important to a comprehensive

solution to concealment warfare, targeting strategies and improved public

communication are also necessary to a comprehensive solution. Improved

understanding and communication of collateral damage and concealment

warfare at all levels of military operations and the public is perhaps the easiest

counter-measure. The meaningful deterrence of concealment warfare also

necessitates the aggressive defense of target sets like dual-use targets currently

authorized by LOAC, and the consideration of target sets in the category of

organic infrastructure. The use of coercive and non-lethal methods that

subdue, incapacitate and diffuse an adversary commingled among civilians

without creating civilian casualties is imperative. Finally, difficult and

subjective decisions to engage forces employing concealment warfare methods

are inescapable. Where humanitarian interest groups, media, members of the

international community, the ICC or other NGOs challenge a prudent

command decision that involves civilians, well-prepared, thorough, fact-based

arguments should be made aggressively and swiftly to defend command action,

to maintain the initiative, and prevent operational degradation. Failure to

exercise measures that counter concealment warfare will continue to improve

an adversary’s survivability while increasing the potential for civilian

casualties in future conflicts.

advantage. Col. Wang said, “we are a weak country, so do we need to fight according to your

rules? No. War has rules, but those rules are set by the West . . . if you use those rules, then

weak countries have no chance.” John Pomfret, China Ponders New Rules of ‘Unrestricted

War,’ W

ASH. POST, Aug. 8, 1999, at A-1. Labeled “unrestricted warfare” that includes both

military and non-military tactics, the two strategists identify U.S. refusal to “consider means

that are contrary to tradition” as a primary weakness in its outlook on warfare. Perspective,

The New Book on Fighting Goliath: Chinese Officers Lay Out How Weak Foes Can Stymie

Strong, C

HICAGO TRIB., Apr. 13, 2003, at C-3.

In cases such as Chechnya vs. Russia, Somalia vs. the United States,

Northern Ireland guerrillas vs. Britain and Islamic Jihad vs. the entire West,

without exception we see the consistent, wise refusal to confront the armed

forces of the strong country head-to-head. Instead, the weaker side has

contended with its adversary by using guerrilla war (mainly urban war),

terrorist war, holy war, protracted war, network war and other forms of

combat. . . . Mostly the weaker side selects as its main axis of battle those

areas or battle lines where its adversary does not expect to be hit. The center

of mass of the assault is always a place which will result in a huge

psychological shock to the adversary . . . . It often makes an adversary

which uses conventional forces and conventional measure as its main combat

strength look like a big elephant charging into a china shop. It is at a loss as

to what to do, and unable to make use of the power it has.

COL. QIAO LIAN & COL. WANG XIANGSUI, People’s Liberation Army of China, UNRESTRICTED

WARFARE: CHINA’S MASTER PLAN TO DESTROY AMERICA 182 (2002).

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THE AIR BRIDGE DENIAL PROGRAM AND

THE SHOOTDOWN OF CIVIL AIRCRAFT

UNDER INTERNATIONAL LAW

AJOR DARREN C. HUSKISSON*

I. INTRODUCTION

In August 2003, President George W. Bush approved a plan to resume

a key component of U.S. counter-drug operations in Latin America, allowing

the U.S. to again share real-time intelligence with Columbia to track, intercept

and even shootdown aircraft suspected of carrying drugs.

The

recommencement of similar operations with Peru in the near future is possible,

and the initiation of such an operation with Brazil is now under discussion.

These types of operations have proven quite effective in their ability to deter

airborne drug traffickers.

The shootdown of suspected drug aircraft by countries such as

Colombia and Peru is not new, and the success of such operations relies

heavily on the airborne tracking and intelligence that only the United States is

equipped to provide. This U.S. support was suspended in 2001 for more than

two years in the wake of an unfortunate incident in which a Peruvian A-37

interceptor, operating as part of a joint U.S.-Peruvian counter-narcotics

mission, fired two salvos of machine gun fire into a small Cessna floatplane

(OB-1408),

after it had been identified as a probable drug trafficking aircraft.

Unfortunately, the aircraft was not ferrying drugs but rather carried members

of an American Baptist Missionary Group. Two people on the aircraft were

killed, a U.S. missionary and her infant daughter, both killed by the gunfire

from the Peruvian aircraft. This incident was the low-water mark in the history

of the shootdown program code-named the Air Bridge Denial Program

(ABDP). The ABDP had long operated as one part of a larger “war on drugs.”

The target of this war, the drug trade in South America, has been classified as a

threat to the national security of the United States and is known to support such

terrorist and insurgent groups as the Revolutionary Armed Forces of Colombia

(FARC) and the Sendero Luminoso (SL) or “Shining Path” group of Peru,

insurgent forces responsible for enormous suffering in these countries.

While the shootdown of civil aircraft engaged in drug running dates

* Major Darren C. Huskisson (B.G.S., University of Nebraska - Omaha; J.D., University of

Nebraska; LL.M., McGill University) is Chief of Space Law, United States Strategic

Command, Offutt AFB, Nebraska. He is a member of the State Bar of Nebraska.

See Stephen J. Hedges, U.S., Colombia to Resume Air Patrols; Anti-Drug Flights Halted in

’01 After Missionary’s Death, C

HICAGO TRIBUNE, Aug. 20, 2003, at 3.

The designation “OB” indicates a Peruvian-registered aircraft.

The Air Bridge Denial Program - 109

back at least to the early 1990s, the ABDP has been officially involved in the

shootdown of suspect aircraft since 1995. Despite objections from the Defense

Department and from other Cabinet Agencies in the early 1990s, the

Governments of Colombia and Peru introduced this shootdown component to

interdiction operations. Until the shootdown of OB-1408 in 2001, the

interceptor forces of Colombia and Peru had shot down, forced down or strafed

with gunfire a number of civil aircraft suspected of carrying illegal drugs on

the basis of real-time intelligence provided by the United States Government.

While one cannot argue with the general success of the shootdown

component of the ABDP, the shootdown of civil aircraft has long been a

thorny legal issue. From the beginning of the Cold War, the U.S. had

maintained a consistently negative attitude toward the use of weapons against

civil aircraft in flight,

a disapproval that peaked in 1983 when the Soviet

Union shot Korean Airlines Flight 007 (KAL 007) out of the sky and surfaced

again in reaction to the Cuban shootdown of civil aircraft belonging to the

Brothers to the Rescue (BTTR) Group in 1996. The U.S. is not alone in its

stance. As evidenced by international reactions to a number of civil aircraft

shootdowns, it is safe to say that the international community as a whole

generally abhors the shootdown of civil aircraft; nevertheless it has remained

surprisingly silent on the issue of ABDP shootdowns. While there has been no

large-scale outcry over the shootdown operations being conducted in the skies

over South America, there are potential international legal problems inherent in

these shootdowns.

Along with questions specific to ABDP operations are additional

questions regarding the shootdown of civil aircraft generally. What exactly

does international law forbid? What defenses to internationally wrongful

conduct could potentially excuse the shootdown of a civil aircraft? Is it a

violation of international law for a State to shootdown planes suspected of

carrying illegal drugs even when the operation is conducted in that State and is

targeted against an aircraft registered in that State? Are there previously

unaddressed human rights concerns with shootdown operations? Can such

operations go beyond targeting drugs to target perhaps illegal weapons,

weapons of mass destruction (WMDs) and missile technology transfers, or

even terrorists themselves aboard civil aircraft in flight? The implications of

these answers will not only affect the international perception of the legality of

ABDP shootdowns, but will also clarify the law relating to other possible uses

of force against civil aircraft in the now three-year-old Global War on Terror

(GWOT).

ABDP shootdowns have escaped international legal analysis largely

due to the fact that the States involved have asserted “sovereignty,” arguing

that the subjacent State alone has the right to deal with aircraft flying over its

territory as it sees fit. However, as we will see, the drug operations that are the

See 140 CONG. REC., 12785 (Sept. 12, 1994) (Statement of Sen. Kassebaum).

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target of the ABDP are inherently international and invoke international legal

concerns that far surpass the reaches of sovereignty. To ignore the shootdown

of these aircraft is to ignore the development of international law.

In the examination of today’s potential shootdown situations, one must

do away with the mentality that was pervasive during the Cold War and with

the KAL 007 shootdown specifically. The shootdown of KAL 007 and other

shootdown events of the Cold War have the similarity of being “intrusion

shootdowns.” The aircraft were targeted with deadly force solely for where

they were (in most cases, illegally flying over repressive Eastern Bloc

countries), not for what they were doing. An international legal consensus has

developed holding that intrusion shootdowns are per se illegal under

international law.

Modern analysis must move beyond this mindset and take a close look

at the what and not the where. The ABDP shootdowns target the actions of

drug traffickers and the threats posed by their flights; therefore, the legality of

these operations must be analyzed from that standpoint. With this change in

view, one must be mindful that such analysis could have repercussions for civil

aviation and for international law issues in general, especially in the midst of

the international upheaval that has resulted from the GWOT.

Part II of this article will examine the history of the ABDP shootdown

operations, from their inception to the 2003 resumption of operations. Part III

will examine the various sources of international law relating to the use of

force against civil aircraft and will attempt to distill some specific rules that are

applicable to the legal analysis of ABDP operations and shootdowns in

general. Part IV of this article will look at the circumstances under

international law in which a State may be relieved of its international

obligations, focusing on the options that could be used to justify the shootdown

of civil aircraft and will seek to apply these options in an effort to determine

the international legality of the ABDP shootdowns. Finally, Part V will

examine other potential issues relating to the shootdown of civil aircraft as part

of the ABDP.

II. THE HISTORY OF THE AIR BRIDGE DENIAL PROGRAM AND

THE SHOOTDOWN OF SUSPECTED DRUG AIRCRAFT

The Air Bridge Denial Program derives its name from its goal: to deny

the South American drug network the “air bridge” used to transfer semi-refined

cocaine from growing areas in rural Peru, Bolivia and Colombia to processing

plants in Colombia and onward to destination countries. While this

transportation network also includes land and water routes, its lifeblood is

aerial transportation.

The denial of this air bridge, initially through the

At times, almost 90 percent of the drug trafficking operations between Peru and Colombia

have been conducted by air. See G

ENERAL ACCOUNTING OFFICE, U.S. DRUG INTERDICTION

The Air Bridge Denial Program - 111

interdiction of suspect planes on the ground and later through the use of

weapons against aircraft in flight, is seen as a key component of the overall

success of U.S. counter-drug operations. However, while this component has

had a long and successful history, it has been controversial.

A. Early Counter-Drug Operations in South America

1. The Origin of the Program

In the 1980s, the production and international transshipment of cocaine,

along with other illegal drugs from Latin America, morphed into a national

security problem, necessitating involvement from more than just police forces

and the U.S. Coast Guard. In response, there has been a constant U.S. counter-

drug presence in Latin America since at least the early years of the Reagan

Administration. Starting in 1985, the U.S. began funding Peruvian operations,

code-named “Condor,” aimed at destroying airstrips used by drug-running

aircraft, hoping to destroy the pillars of the air bridge.

While “Condor”

involved increased logistical and intelligence support, the real increase in

military activity began in 1989 with President George H. W. Bush’s so-called

“Andean Initiative.” This initiative involved the deployment of seven Special

Forces teams and approximately 100 military advisors to Colombia, Bolivia

and Peru to train the armies of the region to fight the drug war.

Beginning in the early 1990s, the United States Southern Command

began a program called “Support Justice” to assist in the aerial monitoring of

the air bridge. “Support Justice” involved the use of P-3 and AWACS

surveillance aircraft, the goal of which was to “confirm anecdotal law

enforcement information regarding the frequent use of small private aircraft to

move . . . cocaine” and to “provide objective data on the non-commercial

routes being used by trafficking aircraft, the flight times, departure points and

final destinations.”

Peru used this information to implement a program of

ISSUES IN LATIN AMERICA 1 (1994), available at http://www.fas.org/irp/gao/nsi95032.htm

[hereinafter Testimony of Joseph E. Kelley] (Statement of Joseph E. Kelley, Director-in-

Charge, International Affairs Issues, National Security and International Affairs Division,

Testimony Before the Legislation and National Security Subcommittee, Committee on

Government Operations, House of Representatives).

See JoAnn Kawell, Closing the Latin American Air-Bridge: A Disturbing History, FOR.

POL’Y IN FOCUS (2001), available at www.fpif.org/pdf/gac/0105airbridge.pdf.

See CONGRESSIONAL RESEARCH SERVICE, INSTANCES OF USE OF UNITED STATES ARMED

FORCE ABROAD, 1978-1999 (1999).

DEPARTMENT OF STATE, PERU INVESTIGATION REPORT: THE APRIL 20, 2001 PERUVIAN

SHOOTDOWN INCIDENT (2001), available at

http://www.fas.org/irp/news/2001/08/peru_shootdown.html [hereinafter S

TATE DEPARTMENT

PERU REPORT]. The major operations under this code name were Support Justice III,

September 1991 – April 1992 (halted when a U.S. C-130 was fired upon by Peruvian jets), and

Support Justice IV, November 1992 – May 1994. See I

NSTITUTE FOR DEFENSE ANALYSIS,

ETERRENCE EFFECTS AND PERU’S FORCE-DOWN/SHOOT-DOWN POLICY: LESSONS LEARNED

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interdiction at the points of departure and arrival of suspect aircraft, thereby

avoiding the need to use force against drug trafficking aircraft in flight.

While

“Support Justice” provided much needed intelligence and surveillance support

to Peru, the focus of the United States was about to move far beyond “Support

Justice” levels with the Presidential election of 1992.

2. The Introduction of a Shootdown Component

While both the Reagan and Bush administrations had focused on

countering the South American drug trade under operations such as “Condor,”

the “Andean Initiative,” and “Support Justice,” President Clinton was

determined to take the fight directly to the enemy. In 1993, President Clinton

signed Presidential Decision Directive 14 (PDD 14),

which shifted the focus

of U.S. counter-drug operations from the “transit zone in the Caribbean Sea

and the Gulf of Mexico to the source zone, chiefly Colombia, Peru and

Bolivia.”

As one of the first moves in support of PDD 14, the U.S. began using

ground radar stations and aerial tracking platforms to provide real-time

intelligence for the interception of suspect aircraft.

Peru and Colombia used

this information to go one step beyond the original intent of some policy

makers in Washington. In 1993, Peru began the implementation of Peruvian

Decree Law Number 25426, which authorized the Peruvian military to use

force against suspected drug aircraft in flight.

In early 1994, Colombia

confirmed to State Department officials their intention to implement a similar

program.

In a response to an American request for assurances that Peru

FOR COUNTER-COCAINE INTERDICTION OPERATIONS 18 (2000) [hereinafter DETERRENCE

EFFECTS].

See STATE DEPARTMENT PERU REPORT, supra note 7.

See U.S., OFFICE OF THE WHITE HOUSE PRESS SECRETARY, PRESS RELEASE REGARDING

PRESIDENTIAL DECISION DIRECTIVE 14 (1993), available at

http://www.fas.org/irp/offdocs/pdd14.htm.

SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE, A REVIEW OF UNITED

STATES ASSISTANCE TO PERUVIAN COUNTER-DRUG AIR INTERDICTION EFFORTS AND THE

SHOOTDOWN OF A CIVILIAN AIRCRAFT ON APRIL 20, 2001 3 (2001) [hereinafter SENATE PERU

REPORT].

See STATE DEPARTMENT PERU REPORT, supra note 7.

See SENATE PERU REPORT, supra note 10 at 3.

In 1990, the Columbian government had conceived of a nearly identical shootdown

program, the implementation of which had been suspended under U.S. pressure. See State

Department Message 1994Bogota01852, Revised Colombian Interception Procedures, 2

(1994), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB44/doc1.pdf

[hereinafter February 1994 Bogotá Cable] (Cable sent from the U.S. Embassy in Bogotá to the

U.S. Secretary of State). The idea of resorting to the use of weapons against airborne drug

traffickers was not new, and it is not just a Colombian or Peruvian idea. A law sponsored by a

U.S. Senator would have allowed U.S. law enforcement to use force against suspected drug

aircraft in flight. That effort was strongly opposed by the Department of State in 1989, and the

bill never became law. See State Department Memorandum, Position Paper on the Use of

The Air Bridge Denial Program - 113

would not use U.S.-provided intelligence to attack civil aircraft in flight, Peru

stated that it would continue to “frontally combat, with the means of which it

itself disposes, against illicit trafficking in drugs within the parameters of its

internal legal regime . . . .”

There was a similar response from Columbia.

3. The 1994 Interruption of Real-Time Intelligence

The nascent shootdown program proved enormously effective early on

in Peru, and by some accounts Peru shot down over 30 aircraft while tracking

and stopping an additional 190.

With this budding success, legal questions

surrounding the shootdown policies might very well have been ignored by the

U.S. Government, but for an opinion by lawyers at the Department of Defense

(DoD) warning that U.S. forces supplying the real-time information to the

Colombian and Peruvian forces could be subject to criminal prosecution under

U.S. domestic law. This opinion led the DoD to immediately implement an

interruption in cooperation with Colombia and Peru, including the sharing of

real-time intelligence. Both Peru and Colombia responded angrily, and drug

traffickers immediately increased their operations via the air bridge.

Agreement with the DoD position that shootdown operations could

expose U.S. forces to legal jeopardy was quickly forthcoming lawyers in the

Departments of Justice, State, Defense, Treasury and Transportation, all of

whom concluded that U.S. support of shootdown operations was probably a

violation of U.S. law.

In a final opinion, the Office of Legal Counsel of the

Department of Justice concluded that the ABDP operations supporting the

shootdown of civil aircraft created substantial risk that such operations would

constitute aiding and abetting a violation of the Aircraft Sabotage Act of

1984.

In its sweeping opinion, the DoJ stated that:

Weapons Against Aircraft Suspected of Carrying Drugs, (1989) [hereinafter October 1989

Position Paper], reprinted in State Department Memorandum, Forcedown Policy: Options for

Colombia and Peru (1994), available at

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB44/doc2.pdf.

State Department Message 1994Lima04197, Suspension of Provision of DOD Real-Time

Radar Track Data to Peru 2-3 (1994), available at

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB44/doc5.pdf (Message from U.S. Embassy

in Lima to the U.S. Secretary of State).

See February 1994 Bogotá Cable, supra note 13, at 5.

See 140 CONG. REC. 8254-55 (July 1, 1994) (Statement of Sen. John Kerry). Another count

had Peru having shot down 41 aircraft from 1992-94. See Eric Edward Geiser, The Fog of

Peace: The Use of Weapons Against Aircraft in Flight During Peacetime, 4 J. INT’L LEGAL

STUD. 187, 218 (1998) [hereinafter Fog of Peace].

See Testimony of Joseph E. Kelley, supra note 4 at 2.

See DEPARTMENT OF JUSTICE, OFFICE OF LEGAL COUNSEL, UNITED STATES ASSISTANCE TO

COUNTRIES THAT SHOOT DOWN CIVIL AIRCRAFT INVOLVED IN DRUG TRAFFICKING 2 (1994),

available at http://www.usdoj.gov/olc/shootdown.htm [hereinafter Opinion of the Office of

Legal Counsel].

Pub. L. No. 98-473, 98 Stat. 2187 (1984).

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USG [United States Government] agencies and personnel may

not provide information (whether ‘real-time’ or other) or other

USG assistance (including training and equipment) to Colombia

or Peru in circumstances in which there is a reasonably

foreseeable possibility that such information or assistance will

be used in shooting down civil aircraft, including aircraft

suspected of drug trafficking.

In light of such an opinion, it was impossible to restart the cooperation without

a change in U.S. law. What resulted was an interagency review to find ways to

resume the support while immunizing U.S. participants.

Legislation, sponsored by Senator John Kerry of Massachusetts,

quickly found its way to Congress as an amendment to the 1995 National

Defense Authorization Act.

The legislation passed, and it was signed into

law on 5 October 1994 as Section 1012 of the National Defense Authorization

Act, entitled “Official Immunity for Authorized Employees and Agents of the

United States and Foreign Countries Engaged in Interdiction of Aircraft Used

in Illicit Drug Trafficking.”

A Presidential determination, required under

section 1012, was signed by President Clinton in December making the

necessary findings related to Columbia

and signed a nearly identical one a

week later regarding Peru.

Both determinations recognized the threat posed

by drugs and found that steps were in place to prevent the shootdown of

innocent civil aircraft.

Opinion of the Office of Legal Counsel, supra note 18 at 35.

Senator Kerry had criticized the DoD’s decision to end cooperation with Colombia and Peru,

saying that it “cut off at the knees a program that was working.” 140 C

ONG. REC. 8255 (July

1, 1994) (Statement of Sen. John Kerry). He firmly believed that the amendment was in

compliance with international law, specifically citing the sovereign right of a State to act as it

sees fit within its own territory.

The amendment was not without its detractors, and the speed with which it came to a vote

was duly noted. Senator Malcolm Wallop condemned the amendment, stating that it had been

adopted “without the benefit of hearings and in the face of significant opposition by affected

organizations” and that it “sets troubling precedents for U.S. and international law and

contradicts key international conventions governing air safety….” 140 C

ONG. REC. S12771

(Sept. 12,) (Statement of Sen. Malcolm Wallop). Another Senator stated her belief that the

amendment set the stage for a “deadly game of chance,” in effect authorizing the shootdown of

civil aircraft on an “educated guess.” 140 C

ONG. REC. S12785 (Sept. 12, 1994) (Statement of

Sen. Nancy Kassebaum).

Pub. L. 103-337, sec. 1012, 108 Stat. 2883 (1994).

OFFICE OF THE PRESIDENT OF THE UNITED STATES, PRESIDENTIAL DETERMINATION 95-7

(1994), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB44/doc11.pdf.

OFFICE OF THE PRESIDENT OF THE UNITED STATES, PRESIDENTIAL DETERMINATION 95-9

(1994), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB44/doc12.pdf.

The memoranda signed by President Clinton contemplated that ICAO Intercept Procedures

would be used in the operations. See M

EMORANDUM OF JUSTIFICATION FOR PRESIDENTIAL

DETERMINATION REGARDING THE RESUMPTION OF U.S. AERIAL TRACKING INFORMATION

The Air Bridge Denial Program - 115

While these determinations laid the foundations for putting the U.S.

government back in the shootdown business, the legal success was a domestic

one at best. The fact that international legal issues still lingered was not lost on

the State Department.

Notwithstanding these potential international legal

issues, the U.S. resumed real-time intelligence sharing in 1995, for the first

time under the name “Air Bridge Denial Program.”

B. 1995 – Present

1. Six Years of Air Bridge Denial Operations

During the period after the resumption of intelligence sharing in 1995

until 2001, the U.S. participated in 14 shootdown operations with the

Peruvians, with Peruvians claiming 38 total shootdowns.

The Colombians

conducted an unknown number of shootdowns during this time, with most of

their attacks targeting aircraft already on the ground.

Once cannot question the program’s behavioral modification and

deterrence effects on drug runners, as even the mere perception that authorities

might use force against suspected drug aircraft had the effect of reducing

flights.

Such was the case with the resumption of U.S. support. In 1995,

Peruvian interdiction of only 13% of all flights had the effect of reducing

trafficking flights by 64% overall.

The cocaine market was crippled in that

country, with farmers abandoning two-thirds of their fields

and forced

SHARING AND OTHER ASSISTANCE TO THE GOVERNMENT OF PERU 2 (1994) [hereinafter

RESIDENTIAL JUSTIFICATION MEMO], reprinted in Senate Peru Report, supra note 10. Peru,

for its part, complied, codifying the use of ICAO Intercept Procedures into Peruvian Law

24883 in late 1994. See id. at 5.

See Department of State, Cable to U.S. Embassy Bogotá, Presidential Determination

Demarche, December 15, 1994, available at

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB44/doc13.pdf [hereinafter Presidential

Determination Demarche].

See SENATE PERU REPORT, supra note 10 at 5.

See id. at 10.

See Fog of Peace, supra note 16 at 218.

Before an official shootdown policy was in place during one of the earlier “Support Justice”

operations, an “accidental” shootdown of a trafficking aircraft alone led to a temporary 60%

reduction in flights. See DETERRENCE EFFECTS, supra note 7 at IV-41.

See id. at 2.

See id.

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production into a few “safe havens” in Colombia.

The effects felt in the U.S.

were astonishing.

With the success of the program came a slowdown in “end-game”

operations in the late 1990s. Despite huge shootdown numbers initially, from

1998 to 2000 there was only one shootdown.

This was unquestionably the

result of ABDP becoming a victim of its own success.

2. The Shootdown of OB-1408 to Today

On 20 April 2001, OB-1408 left Islandia, Columbia bound for Peru.

On board were Americans James and Veronica Bowers, missionaries with the

Association of Baptists for World Evangelism (ABWE), their daughter Charity

and son Cory, and pilot Kevin Donaldson (also with the ABWE). The Bowers

had been in nearby Leticia, Colombia to obtain a residence visa for Charity,

whom they had recently adopted. Because OB-1408 was a floatplane, it

needed to stay close to the Amazon River in case of an emergency, which

made for an unusual flight path, actually necessitating a brief penetration of

Brazilian airspace.

The unusual flight path of OB-1408 soon attracted attention. OB-1408

was soon identified by U.S. and Peruvian authorities as a possible drug flight,

and the Peruvians had scrambled fighter aircraft for an interception. When the

occupants noticed a Peruvian military jet following the aircraft, Donaldson

radioed the Iquitos tower of his position and mentioned that he was being

trailed by military jets.

Shortly thereafter, the Peruvians opened fire. The

plane landed on the Amazon River near Pebas, and Veronica and Charity

Bowers were dead.

In the wake of the tragedy that took two innocent lives, programs in

both Peru and Colombia were suspended pending a review of safety

procedures. After several years of fact-finding and diplomacy, no doubt

lengthened by attention focused elsewhere, such as the 9/11 attacks and the

The Putumayo and Caqueta regions of Colombia, isolated and, for all practical purposes,

beyond the reach of the Colombian Government, saw a rapid rise in cocaine production after

the implementation of the ABDP. See id. at II-23. Success in slowing down production in one

jurisdiction often leads to more production elsewhere, as drug lords have no use for

international boundaries.

After four years of ABDP operations, cocaine prices in the U.S. dropped by 40%, and casual

use dropped by 15%. See id. Additionally, there was a corresponding rise in the U.S. street

price for cocaine and a reduction in positive drug test rates. See id. The ABDP was credited

as being “the only consistent and plausible explanation for the collapse of the illicit coca

markets in Peru.” Id. at III-2.

See SENATE PERU REPORT, supra note 10 at 10.

See SENATE PERU REPORT, supra note 10 at 20.

See id. at 21. That very same controller had just before responded to a Peruvian military

request for information on the location of OB-1408. That controller had reported that he was

still on the water at Islandia, as Leticia air traffic control had not advised him of OB-1408’s

departure.

The Air Bridge Denial Program - 117

wars in Afghanistan and Iraq, operations in Colombia have restarted. Under

the newly established rules, there are checklists of steps that must be followed

in shootdown situations to avoid the taking of innocent life.

The program is already showing results in reducing drug production.

The recommencement of U.S. cooperation led to the seizure of 18.5 tons of

cocaine in its first nine months.

Colombian forces have intercepted 26

aircraft, nine of which flew in from Brazil (a very important fact in the legal

analysis), capturing 13 of them and destroying the other 13 on the ground.

No aircraft have been shot down so far.

Despite the success in Colombia, drug cultivation is on the rise in many

other countries, including Peru and Brazil, two countries that are waiting to

join in the shootdown game. Peru awaits a U.S. Presidential Determination,

and Brazil is in the final stages of a law that would allow them to shoot down

aircraft that enter Brazil and refuse to identify themselves and refuse orders to

land.

Brazil has in fact firmly warned the U.S. that it will enact its own

shootdown plan, with or without a Presidential Determination.

C. Legal Issues Still Unresolved

As the ABDP enters a new phase of operations, questions of domestic

law remain largely a non-issue. However, questions of international law

remain a holdover from the very commencement of shootdown operations.

The U.S. Government, particularly the State Department, has sought an

international legal basis for the shootdown portion of ABDP since its very

inception. A State Department cable to the U.S. Embassy in Bogotá shortly

after the first restarting of ABDP recognized the importance of an international

legal justification. “Now that we have resumed the sharing of intelligence, it is

important that we work carefully to gain acceptance by the international legal

system of what we are doing . . . .”

One means of achieving international acceptance is to seek the creation

of a narrow exception in international law where “drug trafficking threatens the

political institutions of a state and where the country imposes strict procedures

See Drug-Runners Beware, THE WASHINGTON TIMES, Aug. 8, 2003, at A18.

See Brazil: Visiting Colombian Delegation Explains Results of Shoot-Down Law, BBC

WORLDWIDE MONITORING, June 5, 2004, LEXIS, News Library (Translated by the BBC from

Correio Braziliense).

See id.

See Brazil: Ultimatum to US on ‘Shootdown’ Law, LATIN AMERICA WEEKLY REPORT, June

1, 2004, LEXIS, News Library.

Presidential Determination Demarche, supra note 27. Even Senator Strom Thurmond, never

one to be overly concerned about international law, worried that the shootdowns would expose

U.S. persons to international liability. See 140 C

ONG. REC. S8222 (July 1, 1994).

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to reduce the risk of attack against non-drug trafficking aircraft.”

Such an

exception has never been articulated by any legal authority, nor has it achieved

international recognition; however, international law may be broad enough for

the recognition of just such an argument.

III. INTERNATIONAL LAW GOVERNING THE

SHOOTDOWN OF CIVIL AIRCRAFT

International law is the law that governs relations among nations and is

based on the consent of sovereign States by their status as State parties to

international conventions or by their conduct amounting to customary

international law. International law may be ascertained from various sources.

Since the birth of aviation, especially since the Second World War, a great deal

of international law has developed relating to the use of weapons against civil

aircraft in flight.

A. United Nations Charter

1. Prohibition on the Use of Force under Article 2(4)

The UN Charter is often seen as being at the apex of international law.

The obligations assumed by States under the Charter trump all other

conflicting obligations.

When determining the limits placed on a State’s

ability to project force against another State, including perhaps the use of force

against foreign civil aviation, the primary authority is the Charter. The use of

force against another State is prohibited under the Charter unless it is

conducted in self-defense or in accordance with Chapter VII of the Charter.

Article 2(4) of the Charter is seemingly clear in its mandate:

All Members shall refrain in their international relations from

the threat or use of force against the territorial integrity or

political independence of any state, or in any other manner

State Department Memorandum, Implementing the President’s Decision on Colombia Peru

Forcedown Policy 2-3 (1994), available at

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB44/doc10.pdf [hereinafter June 1994

Memo to Secretary of State] (Decision Memorandum to Secretary of State Warren Christopher

concerning drug aircraft shootdowns).

Under Article 38 of the Statute for the International Court of Justice, the sources of

international law are found in international agreements, international custom, and general

principles of law, with subsidiary determination of the law being garnered through judicial

decisions and the teachings of the world’s most highly qualified publicists. S

TAT. OF THE INT’L

CT. OF J., June 26, 1945, 59 Stat. 1031 (entered into force Oct. 24, 1945).

“In the event of a conflict between the obligations of the Members of the United Nations

under the present Charter and their obligations under any other international agreement, their

obligations under the present Charter shall prevail.” U.N.

CHARTER, art. 103.

The Air Bridge Denial Program - 119

inconsistent with the Purposes of the United Nations.

While the notion of what constitutes a use of force has not been clearly

established either by state practice or by scholars, it is clear that Article 2(4)

certainly includes all uses of armed force as well as other types of physical

force that might typically be used against civil aircraft in flight.

Additionally,

while States are the primary focus of this prohibition, a State may be held

accountable for the acts of others in certain circumstances.

Any analysis of conduct potentially in violation of Article 2(4) is full

of pitfalls. There are few other provisions of international law with such

political implications as Article 2(4) and certainly few others with such

ambiguous meaning in its key provisions.

A full-scale analysis of what is and

is not a use of force has been the subject of scores of works of international

law and is far beyond the scope of this article. It is useful, however, to

examine how this provision of international law can potentially impact

operations involving the shootdown of civil aircraft, including those conducted

as part of ABDP operations.

2. The Shootdown of Civil Aircraft as a Use of Force

Many potential shootdown scenarios do not implicate the rules on the

use of force under the Charter, as they do not involve cross-border activity.

Id., art. 2(4).

See THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 112-13 (Bruno Simma, ed.,

1994). There is strong support for the proposition that it includes any cross-frontier military

action, regardless of scope or purpose. See id. at 117-118. This almost certainly includes not

only actions in other States, but also actions conducted in places beyond the sovereign control

of any State, such as the high seas, outer space, and Antarctica.

For example, a State may be guilty of an unlawful use of force if it is in control of armed

bands or terrorists sent across borders to use armed or physical force in another State,

including engaging in the shootdown of civil aircraft. See id. at 115.

“The prohibition on the use of force . . . is burdened with uncertainties resulting from the,

undoubtedly ambiguous, wording of the relevant provisions of the UN Charter, as well as from

their unclear relations to one another. These ambiguities leave room for individual states to

interpret the Charter provisions in accordance with their particular political interests.” Id. at

127-8.

See David K. Linnan, Iran Air Flight 655 and Beyond: Free Passage, Mistaken Self-

Defense, and State Responsibility, 16 Y

ALE J. INT’L L. 245, 387 (1991) [hereinafter Iran Air

Flight 655]. The notion that a State may be guilty of an unlawful use of force through actions

conducted in its own territory has been subject to considerable doubt in international law. The

issue was before the International Court of Justice (ICJ), but the court refused to consider the

question of whether a use of force could occur on a State’s own territory. See Legality of the

Threat or Use of Nuclear Weapons, 1996 I.C.J. Reports 226, para. 50. [hereinafter Nuclear

Weapons Case]. In his in-depth analysis of every use of force from 1945-1991, Professor

Mark Weisburd does not include any civil aircraft shootdowns as “uses of force.” He does

however, include two lesser operations against civil aircraft. He classifies both the 1985

interception over the high seas of an Egypt Air 737 by U.S. fighters as a use of force. He also

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However, evidence suggests that the use of weapons against a foreign civil

aircraft in international airspace is a use of force and must therefore be justified

under the rules of the UN Charter. After the 1996 BTTR shootdown, President

Clinton is reported to have considered a missile attack on Cuban MiG-29 bases

in response.

Since there was no Chapter VII authorization from the Security

Council, President Clinton would have been acting under the inherent right to

self-defense, necessarily implying that the U.S. was the victim of an armed

attack, an aggravated form of force and a violation of Article 2(4). It can

therefore be said that any planned shootdown operation outside the area of

sovereign control of a State is subject to the limits of the UN Charter and may

not take place unless the strict requirements of Article 51 are met, or the

operation is conducted under a Chapter VII authorization from the UN Security

Council.

At present, ABDP programs are conducted by States inside their own

territorial airspace. As such, there is no implication of Article 2(4).

However, should there be any plans to conduct shootdown operations non-

consensually over another sovereign State, such an action would be a use of

force and a violation of Article 2(4). Professor Schmitt has agreed in theory,

stating that an action such as conducting a no-fly zone conducted without the

consent of the subjacent State, even without the shootdown of aircraft, would

be a use of force.

classifies a similar operation by the Israeli Air Force over the high seas as a use of force. This

implies that even an action against civil aviation that does not result in a shootdown can be a

use of force if it is done outside sovereign territory. Conversely, a shootdown done inside an

area of sovereign control is not a use of force under Article 2(4). See A.

MARK WEISBURD,

SE OF FORCE: THE PRACTICE OF STATES SINCE WORLD WAR II 291-93 (1997). We shall

therefore proceed under the understanding that a use of force has some measure of

extraterritoriality that is not applicable to a State’s actions in areas under its sovereign control.

See Andres Oppenheimer, Missile Attack Weighed After Shootdown, MIAMI HERALD, Oct.

10, 1996 at 25A.

If there were an international agreement among participating States to conduct cross-border

operations, this too would not precipitate an Article 2(4) violation amongst its participants, as

the potential victim would have consented to the operation.

See Michael N. Schmitt, Clipped Wings: Effective and Legal No-Fly Zone Rules of

Engagement, 20 L

OY. L.A. INT’L & COMP. L.J. 727, 743 (1998). There is one interesting

situation in which such a non-consensual shootdown could take place. Recall that in 2002, the

CIA used a hellfire missile launched from a Predator Unmanned Aerial Vehicle (UAV)

operating over Yemen to kill 6 suspected terrorists riding in a car. See Norman G. Printer, Jr.,

The Use of Force Against Non-State Actors under International Law: An Analysis of the U.S.

Predator Strike in Yemen, 8 U.C.L.A.

J. INT’L & FOREIGN AFF. 331, 335-36 (2003). This

raises the question as to when the situation will arise when a military or intelligence arm of a

government will decide to target a terrorist who is being transported in a civil aircraft. Could

such an aircraft be shot down? Foreign assassination has been seen as a violation of Article

2(4). See Louis Rene Beres, The Newly Expanded American Doctrine of Preemption: Can it

Include Assassination?, 31 DENV. J. INT’L L. & POL’Y 157, 160 (2002). In response to the

U.S. Predator strike in Yemen, the Swedish Foreign Minister said if the U.S. did it without

Yemeni permission, then it was an unlawful use of force. See Heinz Klug, Civil Liberties in a

The Air Bridge Denial Program - 121

The point may not be academic; non-consensual shootdown operations

against hostile targets may be on the horizon. The U.S. military is currently

working to fit Predator UAVs with sidewinder missiles, possibly designed for

this very purpose.

Such a broadening of ABDP operations could take place

in a situation in which a country fails to take adequate steps to stop the flow of

illegal drugs from inside its borders, leading to the implementation of non-

consensual shootdown operations over that State’s territory. While the rules

on the use of force do not directly impact current ABDP operations, they do

certainly lay down rules regarding where such operations can lawfully be

conducted. The shootdown of civil aircraft, including shootdowns conducted

under ABDP, may not extend beyond the area of sovereign control of a State

without implicating the UN Charter norms regulating the use of force.

B. Public International Air Law

While the UN Charter contains rules governing State behavior that will

necessarily govern any operation involving the use of force among nations,

public international air law is more specific. It covers a wide range of topics,

only a small slice of which is relevant here.

1. The Chicago Convention of 1944

The Convention on International Civil Aviation,

commonly known as

the Chicago Convention, is the primary international agreement relating to

international civil aviation. Under the penumbra of this convention are three

major provisions that relate to the shootdown of civil aircraft: Article 3d,

Annex 2 and Article 3bis. While one would expect these provisions to be

universally applicable among parties to the convention

and to have relatively

clear meanings, neither is absolutely true. Nonetheless, an examination of

these provisions is important in a review of the normative structure of this area

of law.

While the Chicago Convention is not generally applicable to state

Time of Terror: The Rule of Law, War, or Terror, 2003 WIS. L. REV. 365, 380 (2003)

[hereinafter Civil Liberties]. There is no reason to believe that the same would not be true if

the operation had been targeted at a terrorist in an aircraft versus one riding in a vehicle on the

ground. It should be noted that these types of targeted killings have been justified under

international law under self-defense. While the question of whether such operations are legal

under a self-defense argument is beyond the scope of this article, if such operations are indeed

justified under self-defense, then they could necessarily be conducted against civil aircraft, so

long as the requirements of self-defense, necessity, and proportionality are met.

See CONGRESSIONAL RESEARCH SERVICE, HOMELAND SECURITY: DEFENDING U.S.

AIRSPACE 6 (2003), available at http://www.fas.org/sgp/crs/RS21394.pdf.

Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295

[hereinafter Chicago Convention].

Of the 191 UN members, 188 are parties to the Chicago Convention.

122-The Air Force Law Review

aircraft, the Convention contains two provisions relating to the operation of

state aircraft. First, States are forbidden to fly state aircraft over the territory of

another State without permission from that State.

The second requirement for

state aircraft is contained in Article 3(d), which requires that parties

“undertake, when issuing regulations for their state aircraft, that they will have

due regard for the safety of navigation of civil aircraft.”

The requirements of Article 3(d) are quite general in scope. It certainly

obligates States to set up some type of regulatory regime for state aircraft, but

what this means specifically is subject to debate. One view, and probably the

best, is that the “word ‘regulation’ is subject to a broad interpretation in order

to include military orders, including rules of engagement given by military

hierarchy to its pilots and air traffic controllers.”

Both the United States and

Canada have taken such a position in the past.

In fact, the United States has

gone even further, taking the position that Article 3(d) prohibits the shootdown

of civil aircraft, even in the setting of ABDP-style shootdowns.

The ICAO

Council has recognized that a shootdown event can be contrary to the

provisions of the Convention, implying that the relevant provision is Article

3(d).

The generalities of Article 3(d) should not operate to render void its

applicability to the shootdown of civil aircraft. The requirement to refrain

from shooting down civil aircraft is properly within its general mandate and is

binding upon signatories, unless some provision of international law excuses

the State from such an obligation. After an examination of Article 3bis and

Annex 2, the importance of Article 3(d) will be apparent, as it is the only

universally binding provision contained in the original Chicago Convention.

Complementing Article 3d is Annex 2. ICAO has a power that few

international organizations have, quasi-legislative power. The Chicago

Convention mandates that ICAO adopt standards and recommended practices

(SaRPs) on a whole host of matters relating to international civil aviation.

See Chicago Convention, supra note 57, art. 3(c).

Id., art. 3(d).

Michel Bourbonniere & Louis Haeck, Military Aircraft and International Law: Chicago

OPUS 3, 66 J.

AIR L. & COM. 885, 926-27 (2001) [hereinafter Chicago OPUS 3].

See id. at 927.

See October 1989 Position Paper, supra note 13. After the shootdowns started, the U.S.

again called such actions a violation of Article 3(d). See June 1994 Memo to Secretary of

State, supra note 45 at 2.

Council Resolution Concerning Israeli Attack on Libyan Civil Aircraft, ICAO, 12 INT’L

LEGAL MATERIALS. 1180 (1973) [hereinafter ICAO Resolution on Libyan Shootdown]. In this

resolution the Council implied that the Israeli attack did indeed violate the Chicago

Convention. Such an understanding was also implied by the U.S. in internal Department of

State communications. See February 1994 Bogotá Cable, supra note 13 at 3. Article 3(d) has

been described as the “principle treaty obligation imposed upon States for the regulation of the

flight of military aircraft applicable during times of peace and armed conflict found in the

Chicago Convention.”

Chicago OPUS 3, supra note 61 at 913.

Chicago Convention, supra note 57, art. 37.

The Air Bridge Denial Program - 123

These SaRPs are contained in annexes to the Convention that may be amended

by the ICAO Council with a 2/3 vote.

Every interception of an aircraft by fighter jets is potentially dangerous,

even in the most routine situation. As such, ICAO has promulgated rules in

Annex 2, entitled “Rules of the Air,” which deal with the rules to be followed

when undertaking to intercept a civil aircraft.

Annex 2 had previously

contained a provision calling on States to refrain from the use of weapons

against civil aircraft, but that provision was removed in 1984.

Nevertheless,

Annex 2 contains important rules relevant to issues surrounding the shootdown

of civil aircraft.

Annex 2 provides that interceptions must be undertaken as a last resort,

and when undertaken, their purpose must be solely to identify the suspect

aircraft,

using a three-phased approach for the identification. Communication

is standardized for those aircraft undertaking interceptions, with phrases for

oral communication

and signals for visual communication provided.

While

the use of weapons is not addressed, Annex 2 does warn that using “tracer

bullets to attract attention is hazardous, and it is expected that measures will be

taken to avoid their use . . . .”

The applicability of Annex 2 is subject to debate. Annex 2 contains no

recommended practices, only standards requiring notice from States that refuse

to comply. Most of the major provisions relating to the interception of civil

aircraft contained in Annex 2 came in 1984 in the form of Amendment 27.

Both the U.S. and the U.S.S.R. believed that the amendments were ultra vires,

in that the amendments unduly attempted to regulate state aircraft in violation

of the Chicago Convention. However, the majority of States did not believe

that the amendments regulated state aircraft, but rather were designed to

protect international civil aviation, well within the ambit of the Chicago

Convention.

The U.S. never registered a difference regarding Amendment

Id., art. 90. While recommended practices are of no binding effect, standards are binding on

all State parties, unless they file a difference with ICAO. See id., art. 38. But even then, the

differences are of limited effect. A State can only promulgate rules in areas over its own

sovereign control, and ICAO rules are in force over the high seas. See id., art. 12.

Id., annex 2, app. 2, attach. A.

It was believed that, since this prohibition was already a part of general international law, it

had no place in an annex from which States could deviate from compliance under Article 38 by

filing a difference with ICAO. See Michael Milde, Interception of Civil Aircraft vs. Misuse of

Civil Aviation, 11 A

NNALS OF AIR AND SPACE LAW 105, 113 (1986) [hereinafter Interception

of Civil Aircraft].

Chicago Convention, supra note 57, annex 2, attach. A, para. 2.1. The implication here is

that an interception may not be undertaken for the purpose of engaging in a shootdown

operation.

Id., table A-1

Id., annex 2, app. 1.

Id., attach. A, para. 8.

See KI-GAB PARK, LA PROTECTION DE LA SOUVERAINETE AERIENNE, 306 (1991) [hereinafter

OUVERAINETE AERIENNE].

124-The Air Force Law Review

27, mainly because it does not accept the premise that any part of Annex 2

applies to the operation of state aircraft.

Complicating the issue is the status

of Annex 2 relating to areas outside the jurisdiction of any State. Article 12 of

the Chicago Convention gives ICAO the power to issue rules relating to the air

space over the high seas.

Also, Annex 2 is only applicable to the interception

of aircraft. Some countries do not have interception capabilities and are reliant

solely on anti-aircraft artillery (AAA) forces for anti-aircraft capability. Annex

2 would not apply to AAA operations. Thus, while its provisions are

important, the legal effect of Annex 2 is not without limitations.

Soon after the shootdown of KAL 007, nations recognized the

weaknesses in the Chicago Convention and work began to create a protocol to

the Chicago Convention that would codify more specific rules regarding the

use of weapons against civil aircraft in flight. What resulted was the Montreal

Protocol of 10 May 1984, which amended Article 3 of the Convention and

became known as Article 3bis.

Article 3bis of the Chicago Convention governs the issue of the use of

weapons against civil aircraft:

The contracting States recognize that every State must refrain

from resorting to the use of weapons against civil aircraft in

flight and that, in case of interception, the lives of persons on

board and the safety of aircraft must not be endangered. This

provision shall not be interpreted as modifying in any way the

rights and obligations of States set forth in the Charter of the

United Nations.

The requirement that States refrain from the use of weapons against aircraft in

flight is balanced by measures designed to protect the sovereignty of the

subjacent State.

[E]very State . . . is entitled to require the landing at some

designated airport of a civil aircraft flying above its territory

without authority or if there are reasonable grounds to conclude

that it is being used for any purpose inconsistent with the aims

of this Convention; it may also give such aircraft any other

instructions to put an end to such violations . . . . Each

contracting State agrees to publish its regulations in force

See Interception of Civil Aircraft, supra note 68 at 121.

Chicago Convention, supra note 57, art. 12.

Amendment of Convention on International Civil Aviation with Regard to Interception of

Civil Aircraft, ICAO Doc. 9437, A25-Res. (May 10, 1984), reprinted in 23 I

NT’L LEG.

MATERIAL 705 (1984) [Article 3bis].

Id., art. (a).

The Air Bridge Denial Program - 125

regarding the interception of civil aircraft.

While it was adopted unanimously at the Twenty-fifth Session (Extraordinary)

of the ICAO Assembly, the amendment lingered without receiving the required

number of ratifications to come into force for 14 years. Article 3bis finally

came into force for State parties on October 1, 1998, with the ratifications of

Guinea and, ironically, Cuba.

The actual legal effect resulting from the coming into force of Article

3bis may be less important than for most treaties, as the use of the words

“contracting States recognize that every State must refrain from the resort to

weapons against civil aircraft” in paragraph (a) of the amendment seems to

indicate that this amendment is a codification of already existing customary

international law. In fact, it has been pointed out that “no delegation [at the

Extraordinary ICAO Assembly in 1984] challenged the fact that the

prohibition of use of force against civil aircraft is already part of general

international law.”

Many imminent scholars, including Professor Michael

Milde, the head of the ICAO Legal Bureau at the time, believe that it is indeed

reflective of customary international law.

However, such a belief is not

universal.

While it seems clear that Article 3bis covers all international civil

aviation, regardless of the type of airframe and regardless of whether the

aircraft is engaged in service as a commercial airliner, different views have

also been put forth. The Government of Colombia took the position that

Article 3bis covered only “commercial airliners” and other aircraft with

legitimate flight plans and not all civil aircraft.

Such an interpretation would

render many general aviation flights that might stray across international

boundaries unprotected by international law.

There is also a question about the protection afforded to domestic civil

aviation under Article 3bis. While the amendment does not make a distinction

between foreign and domestic civil aircraft, the prevailing view is that

protection afforded by Article 3bis is for foreign aircraft, not aircraft of a

State’s own registration.

Such an interpretation would be ultra vires and

would exceed the scope of the Chicago Convention, the focus of which is

international civil aviation.

Id., art. (b).

See Shootdown Law Ratified, 149 AIR TRANSPORT 33 (1998).

International Organizations: 25

Session (Extraordinary) of the ICAO Assembly, 9 ANNALS

AIR AND SPACE L. 455 at 457 (1984).

See Interception of Civil Aircraft, supra note 68 at 125.

See February 1994 Bogotá Cable, supra note 13 at 5.

Interception of Civil Aircraft, supra note 68 at 126.

“At no stage to the deliberations and drafting did the Assembly . . . contemplate regulation

of the status of an aircraft in relation to the state of its own registration, as this would have

exceeded the scope of the Convention, which limits it to international civil aviation.”

Ruwantissa Abeyratne, Crisis Management Toward Restoring Confidence in Air Transport –

126-The Air Force Law Review

The critics of Article 3bis are many. Some have called it an attempt to

“codify the almost uncodifiable;”

others have said it “had something for

everyone and resolved nothing.”

There is one glaring weakness in Article

3bis. Article 3bis lacks provisions regarding what a State can do when a

suspect aircraft refuses to comply with instructions, thus prompting the

question, how does a State “play by the rules and yet deal effectively with

someone who does not?”

Although that question was asked about terrorists,

it is equally applicable to the drug traffickers in South America and to other

non-State misuses of civil aviation. Therein is contained the fundamental

weakness of Article 3bis: the lack of practical enforcement measures to be

employed when a suspect aircraft refuses to land. Notwithstanding this, the

amendment is an honest attempt to put an end to the shootdowns that were an

all too common part of the Cold War.

2. Customary International Law

States are not only bound by international agreements that they sign

and ratify, but also by norms that are developed through state practice.

When

attempting to ascertain customary international law, one looks to the actual

practice of States and to what degree that practice reflects opinio juris, a sense

of legal obligation versus mere comity.

It is useful here to briefly discuss the

law that can be ascertained from past shootdowns of civil aircraft.

The

reaction of States to these shootdowns is telling, and some useful rules can be

deduced from these events and from the reactions following them that are

helpful to serve as gap-fillers in situations where treaty law is inapplicable.

Attack on an Air France Airliner in the Berlin Corridor – 29 April

1952. On 29 April 1952, an Air France airliner is alleged to have deviated

Legal and Commercial Issues, 67 J. AIR L. & COM. 595, 616 (2002). The proposed words

“aircraft of the other contracting State” were deleted to show that the obligation was not to

other signatories of Article 3bis but to all States, not to aircraft of a State’s own registration.

However, this view may be stretched, as Article 3bis does not seem concerned with the

nationality of those on board, only with the State of registration of the aircraft.

Peter Ateh-Afac Fossungo, The ICAO Assembly: The Most Unsupreme of Supreme Organs

in the United Nations System? A Critical Analysis of Assembly Sessions, 26 T

RANSP. L.J. 1, 22

(1998).

R.W. JOHNSON, SHOOTDOWN: THE VERDICT ON KAL 007 237 (1986).

Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 WIS.

INT’L L.J. 145 (2000).

It has been recognized that customary international law can exist alongside identical norms

contained in treaty law. See Case Concerning Military and Paramilitary Activities in and

Against

Nicaragua, (Nicaragua V. U.S.) Merits, 1986 I.C.J. Rep. 14, para. 178 [hereinafter

Nicaragua Case].

See Nuclear Weapons Case, supra note 52 at para. 64.

A number of works have discussed these events in great detail. See Bernard E. Donahue,

Attacks on Foreign Civil Aircraft Trespassing in National Airspace, 30 A.F.

L. REV. 49, 54-63

(1989) [hereinafter Attacks on Foreign Civil Aircraft].

The Air Bridge Denial Program - 127

from its designated route through the Berlin Corridor, straying over East

German Territory. In response, Soviet MiG-15 fighters attacked the aircraft

with cannon and machine gun fire. The attack, though it did not result in a

total loss of passengers and crew as is the case in other situations, did

nonetheless lead to several injuries.

This event proved to be the first in a

series of Cold War attacks on civil airliners, and state reaction is useful in

ascertaining the first hint of developing international norms regarding the use

of force against civil aircraft.

In opposition to the Soviet attack, the French, joined by the Americans

and the British, stated that, regardless of where the aircraft was located, any

use of weapons, even to warn a stray aircraft, was “entirely inadmissible and

contrary to all standards of civilized behavior.”

In their defense, the Soviets

stated that they were responding to a border incursion and had made attempts

to warn the aircraft and order it to land.

They further bolstered their claims of

innocence by saying that the shots were only meant to be warning shots.

The reaction by the Allies confirms their belief that it was not lawful

under international law to use force against a civil aircraft in such a situation.

What is even more interesting is the Soviet reaction. They never asserted a

right to shootdown an aircraft in response to a mere trespass. In fact, their

response sounds more like “it was an accident” rather than an attempt to put

forth a legal justification for the shootdown.

Cathay Pacific Shootdown by PRC Forces Near Hainan Island – 23

July 1954. In this incident, fighter aircraft from the People’s Republic of

China shot down a British registered Cathay Pacific airliner carrying 12

passengers and 6 crew en route from Bangkok to Hong Kong in the vicinity of

Hainan Island. The surprise attack by PRC forces forced the small airliner to

crash in the sea, resulting in 10 deaths.

The attack was described by the U.S. as “barbarity” and was

condemned by both the U.S. and the British Governments.

The Chinese

formally apologized for the incident and offered to pay compensation, calling

it an unfortunate accident, having mistaken the aircraft for a Nationalist

Chinese military aircraft. The facts of the case seem to indicate that the

Chinese did indeed believe the aircraft belonged to a hostile air force and was

en route to attack a Chinese naval base on Hainan Island.

The reaction to this case is quite similar to the Air France incident.

See John T. Phelps, Aerial Intrusions by Civil and Military Aircraft in Time of Peace, 107

IL. L. REV. 255, 276-77 (1985) [hereinafter Aerial Intrusions].

Oliver J. Lissitzyn, The Treatment of Aerial Intruders in Recent Practice and International

Law, 47 A

M. J. INT’L L. 559, 574 (1953).

See Aerial Intrusions, supra note 91 at 277.

See Farooq Hassan, A Legal Analysis of the Shooting of Korean Airlines Flight 007 by the

Soviet Union, 49 J.

AIR L. & COMM. 555, 571 (1984) [hereinafter Legal Analysis of KAL 007].

See Fog of Peace, supra note 16 at 193-94.

See id. at 194.

See Aerial Intrusions, supra note 91 at 278.

128-The Air Force Law Review

What makes this case even stronger evidence of the international norm

prohibiting the use of force against civil airliners in flight is the formal apology

offered by the Chinese, at a time shortly after the Korean War and during a

time of tension with the U.S. and U.K when the Chinese could have easily hid

behind Cold War rhetoric. This strongly supports the binding nature of the

prohibition contained in customary international law.

El-Al Constellation Shootdown over Bulgaria – 27 July 1955. While

both the attack on the Air France aircraft over Berlin and the Cathay Pacific

aircraft near Hainan Island prompted international rebuke, the gravity and scale

of these two incidents would pale in comparison to the next shootdown the

following year. On 27 July 1955, an Israeli-registered El-Al Constellation

carrying 51 passengers and 7 crewmembers en route from London to Tel Aviv

strayed over Bulgarian airspace and was shot down by Bulgarian interceptors.

Everyone on board was killed.

The attack came with no warning to the crew and without any attempt

to force the aircraft to land before Bulgarian forces opened fire.

Israel, the

U.S. and the U.K. were the strongest critics. Israel said that the Chicago

Convention (presumably Article 3d) codified general international law and that

simple defense of airspace was never enough to justify the destruction of a

civilian aircraft.

100

The United Kingdom stated that it was unacceptable for any

State to shootdown a civil aircraft in peacetime.

101

The French joined in, going

so as to call the shootdown an act of war.

102

In a very contrite note to the United States, Bulgaria expressed regret

for the incident, promised to punish the pilots, and offered compensation for

the deaths and material damage.

103

This regret was short-lived, as Bulgaria

later denied responsibility for the incident and offered only ex gratia payments.

They eventually made a complete reversal, laying the blame squarely on the

El-Al crew.

104

Dissatisfied with the Bulgarian actions, the United States, the

U.K., and Israel filed suit in the ICJ. Bulgaria refused to submit to the

jurisdiction of the court, and the case was never heard, thus leaving the legal

aspect of the event unresolved.

Israeli Shootdown of a Libyan Airlines 727 over the Sinai Peninsula –

21 February 1973. In this case, Israeli fighters intercepted a suspicious Boeing

727 airliner with the markings of the Libyan national airline over the Israeli-

occupied Sinai Peninsula. After attempts to get the airliner to land failed, the

judgment was made that the aircraft was hostile and had to be shot down.

See Attacks on Foreign Civil Aircraft, supra note 90 at 54; See Aerial Intrusions, supra note

91 at 279.

See Attacks on Foreign Civil Aircraft, supra note 90 at 55.

100

See id. at 56-57.

101

See Fog of Peace, supra note 16 at 194-95.

102

See id. at 195.

103

See Attacks on Foreign Civil Aircraft, supra note 90 at 55.

104

See id. at 56.

The Air Bridge Denial Program - 129

Israeli warplanes fired at the airline, causing it to crash and resulting in the

death of 106 persons. Various factors played into the erroneous decision to

fire. The aircraft was flying near the Dimona Research Facility and an Israeli

nuclear separation plant, two extremely critical national security facilities.

105

The aircraft was also near Israeli troop concentrations, and the Israelis had

intelligence of possible suicide attacks using civil aircraft.

106

International reaction was overwhelmingly negative. Israel itself stated

that had it known it was a passenger jet, it would not have fired on the

aircraft.

107

In a most general statement, the ICAO Council concluded that the

shootdown violated the “principles enshrined in the Chicago Convention.”

108

While the aircraft had intruded over Israeli-occupied territory, this case

is not an “intrusion shootdown.” The aircraft was targeted because it was seen

as a threat. What is critical here is the quantum of evidence ascertained by

Israel in making the judgment that the aircraft was hostile. International law

will clearly excuse the shootdown of an airliner being used in a suicide attack

as the Israelis suspected, but the criterion used in this case to make the

determination was insufficient. At the very least, the Israelis acted in haste

before confirming anecdotal data. The negative reaction internationally

reflects a belief that Israel’s actions were not warranted by the nature of the

threat posed by the aircraft.

Korean Airlines Flight 902 Shootdown over the USSR – 20 April 1978.

In a nearly forgotten incident of the Cold War, Korean Airlines flight 902, a

Boeing 707, was fired upon by a Soviet MiG after it strayed over the USSR

near the Kola Peninsula. The aircraft descended rapidly after losing pressure

and nearly half of a wing in the missile attack, and Soviet authorities believed

it had crashed. The captain eventually put the aircraft down on a frozen lake.

Amazingly, only two persons were killed.

There was little diplomatic outcry, primarily because absent protests

from the U.S. and ROK, others were unwilling to protest themselves.

109

One

can speculate that this silence was perhaps due to the low casualty figure or to

a desire on the part of the Koreans to retrieve their flight crew from Soviet

custody. Whatever the reason, the Soviets were quite strong in their

justification, asserting the right to defend their airspace against any intruders.

However, evidence suggests that the Soviets did not intend to shoot down a

civil aircraft and had no “shoot on sight” rules for intruding civil aircraft.

When the Soviet pilot was ordered to destroy KAL 902,

he protested telling his controller that he could clearly see the

105

See Jacob Sundberg, Legitimate Responses to Aerial Intruders: The View from a Neutral

State, 10 A

NNALS OF AIR & SPACE LAW 258, 267 (1985).

106

See Attacks on Foreign Civil Aircraft, supra note 90 at 59.

107

See id.

108

See ICAO Resolution on Libyan Shootdown, supra note 64.

109

See Attacks on Foreign Civil Aircraft, supra note 90 at 61.

130-The Air Force Law Review

civil markings. When the ground controllers repeated the order,

the pilot again questioned the order. At this point a Soviet

general identified himself to the pilot and ordered him to

destroy KAL 902. Only then did the pilot fire at the aircraft.

An American intelligence officer who was listening to the

conversation later commented that, evident from the pilot’s

incredulous tone, it was an exception to policy for Soviet

interceptor pilots to shoot at passenger airlines.

110

American RC-135 reconnaissance aircraft use the 707 airframe, likely leading

to the confusion by Soviet leaders. Only because those on the ground were

convinced that KAL 902 was a spy aircraft, did the order to fire come.

111

While the lesson is subtle, it can be said that even the Soviets, who certainly

had the most aggressive Cold War policy for intruders, realized that such a use

of force against a civil airliner was not appropriate under international law.

The Shootdown of Korean Airlines Flight 007- 31 August 1983. On the

night of this incident, Soviet air defense forces began tracking a suspected

American RC-135 reconnaissance flight. They tracked this aircraft for 78

minutes and made a failed interception attempt over the Kamchatka Peninsula.

A second attempt resulted in a successful interception just off Sakhalin Island,

and Soviet fighters fired on the target, causing it to crash into the Sea of Japan

southwest of Sakhalin Island. It was Korean Airlines flight 007, off course on

its path to Seoul, South Korea.

The international outcry was unprecedented. The U.S. Government

called it a crime against humanity and said that such a shootdown of a foreign

civil airliner violated international law.

112

Others followed suit. The

Australian Government focused not on the location of the aircraft but rather on

its function, saying that it was never permissible to shoot down an unarmed

civil aircraft that had no military purpose.

113

The shootdown was denounced

by a wide range of countries from the French and Italians to the PRC. At no

point did the Soviets ever challenge the argument that customary international

law prohibited the shootdown of civil aircraft.

114

This international disapproval is strongly supportive of the principle

that the use of force against civil aircraft is a violation of international law.

However, despite its importance in Cold War politics and how its outcome

affected events at ICAO regarding the approval of Article 3bis and

Amendment 27 to Annex 2, it is of limited use because of its factual setting.

The Soviets, however outrageously reckless their actions might have been,

110

Id. at 61-62.

111

See id. at 62.

112

See Aerial Intrusions, supra note 91 at 257.

113

See id. at 257.

114

See Note, Legal Argumentation in International Crisis: The Downing of Korean Air Lines

Flight 007, 97 H

ARV. L. REV. 1198 at 1201 (1984).

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were likely operating under a belief that they were firing on a state aircraft that

was violating their territory for an unfriendly purpose. “[S]ome evidence

suggests that neither the Soviet pilot nor ground controller ever appreciated

that the target was a civilian passenger airliner.”

115

The visual identification

was made from below, at an angle from which the silhouette of KAL 007

would be similar to that of an RC-135. Because the Russian pilots never had

an opportunity to see the most distinctive feature of the 747, the hump at the

front of the aircraft, they simply assumed it was an RC-135 because it had 4 jet

trails.

116

Also, KAL 007 had flown over some of the most sensitive Russian

military sites on the Kamchatka Peninsula and Sakhalin Island.

117

The real

lesson arising from the KAL 007 incident is not so much that it is illegal to

shootdown civil aircraft, already a well-accepted rule, but that the Soviet

procedures for the identification of hostile aircraft subject to attack were

abysmally lacking.

The Shootdown of Iran Air Flight 655 – 3 July 1988. While the U.S.

held the moral high ground in the KAL 007 incident, this would change when

the U.S.S. Vincennes shot down Iran Air flight 665 off the coast of Iran. This

shootdown was unique in that it was the first major shootdown involving

surface fire. All other shootdowns had been conducted by interceptors, which

by their nature make identification easier. To complicate matters in this case,

the shootdown came contemporaneously with surface action against forces of

the Islamic Revolutionary Guard.

118

The U.S. asserted that the shootdown of IR 655 was not a violation of

international law, claiming that since the U.S.S. Vincennes acted in self-

defense, albeit mistaken self-defense, the shootdown was not unlawful. As the

argument goes, while the crew of the Vincennes mistakenly identified IR 655

as a threat, the mistake was reasonable, thereby relieving the U.S. of liability

under international law.

119

This view was not widely accepted. Third State

criticism was strong, but a subsequent resolution of the ICAO Council only

reaffirmed the general international law prohibition on the use of force against

civil aircraft.

120

Like the Libyan shootdown of 1973, the lesson to be learned from this

case is less legal than it is factual. One can conclude that the factors relied

upon by the crew of the Vincennes to make the determination that IR 655 was

hostile and had to be destroyed were insufficient to afford sufficient protection

to international civil aviation. The international community would simply

require more positive identification before it would tolerate such shootdowns.

115

Attacks on Foreign Civil Aircraft, supra note 90 at 62.

116

See id. at 62.

117

See Legal Analysis of KAL 007, supra note 94 at 556.

118

See Resolution and Report Concerning the Destruction of Iran Air Airbus on July 3, 1988,

ICAO, 28 I.L.M. 896 at 908 [hereinafter ICAO Report on IR 655].

119

See Iran Air Flight 655, supra note 52 at 260.

120

See ICAO Report on IR 655, supra note 118 at 899.

132-The Air Force Law Review

Brothers to the Rescue Shootdowns – 24 February 1996. The

“Brothers to the Rescue” was a Miami-based Cuban exile group conducting

private search and rescue missions in the Florida Straits looking for Cuban

rafters. In addition to their search and rescue operations, they took up political

protest as part of their flights, conducting up to 1,700 violations of Cuban

airspace. Their operations became increasingly bold. One operation, on 13

January 1996, included an airdrop of Anti-Castro pamphlets over Havana.

121

The Cuban government was most unhappy with these flights, seeing

their purpose as the destabilization the Cuban Government. This displeasure

led Castro to plan a covert operation to disrupt BTTR activities and to lure the

BTTR aircraft out of U.S. airspace for the purpose of shooting them down.

Evidence suggests that they went so far as to have a Cuban Air Force officer

defect to the U.S. to provide Cuba with information on BTTR flights.

122

If indeed this was the plan of the Cubans, it worked. On 24 February

1996, three small Cessna aircraft took off from Opa Laca Airport and flew out

over the Florida Straits. The Cubans scrambled MiG-29s and intercepted and

shot down two of the aircraft 16 & 21 miles off the Cuban shore, well into

international waters. There was no doubt that the Cubans acted deliberately

and intended to target civil aircraft. The recordings of the pilots and ground

control reveal that they indeed knew they were shooting at civil aircraft and

that they were shooting to kill.

123

There had been no warning to the aircraft,

only an earlier warning from the Havana tower not to come south of the 24

Parallel.

124

The U.S. reacted with anger to this shootdown. President Clinton

himself took the opportunity to rebuke Cuba for this action.

These small aircraft were unarmed and clearly so.

Cuban authorities knew that. The planes posed no credible

threat to Cuba’s security. Although the group that operated the

planes had entered Cuban airspace in the past on other flights,

this is no excuse for the attack and provides . . . no legal basis

121

See Joshua Spector, The Cuba Triangle: Sovereign Immunity, Private Diplomacy and State

(In-) Action, Reverberations of the ‘Brothers to the Rescue’ Case, 32 U.

MIAMI INTER-AM L.

REV. 321, 323 (2001) [hereinafter The Cuba Triangle].

122

See id. at 332-33; see also Press Release, Federal Bureau of Investigation, Miami Office,

Federal Grand Jury Indicts Cuban MiG Pilots and a Cuban Air Force General for Murder of

American Nationals in Connection with 1996 Shoot Down of Brothers to the Rescue Planes,

online: Federal Bureau of Investigation Miami Office (Aug. 21, 2003), available at

http://miami.fbi.gov/pressrel/2003/mm082103a.htm [hereinafter FBI Statement on BTTR

Indictments].

123

See Alejandre v. Republic of Cuba, 996 F. Supp 1239, 1244-46 (S.D. Fla. 1997).

124

See The Cuba Triangle, supra note 121 at 325-26.

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under international law for the attack.

125

While the Cubans were not a party to Article 3bis at that time, the U.S.

Secretary of State said that the prohibition against the use of force against civil

aircraft was longstanding and a part of customary international law and did not

rely on Article 3bis.

126

International outcry was strong as well. By a vote of

13-0-2, the UN Security Council condemned the shootdown, stating that it

violated customary international law as contained in Article 3bis and the

Annexes of the Chicago Convention.

127

It is probably true that even the most egregious actions of the BTTR

pilots, the dropping of leaflets over Havana, did not amount to a threat to the

national security of Cuba. This action by the Cubans was more punitive than

preventative. This case is important in determining what level of threat a civil

aircraft has to pose before the international community will accept the use of

force against it in flight. It is clear from this case that the actions of the BTTR

pilots did not meet this level of a threat.

The Shootdown of Drug Aircraft in South America – 1990s to Today.

The shootdown of drug aircraft in South America is different from other

shootdowns as it involves a series of shootdowns and not one isolated incident.

Each shootdown of drug aircraft has one thing in common; there has been no

international outcry in reaction to any such use of force against civil aircraft.

128

Even the shootdown of OB-1408 did not raise concerns internationally, but this

may be because the victims were from the United States, a participant in the

operation. One can take the position that the international community is

unwilling to criticize such operations out of a desire to keep fingers from being

pointed at their own domestic police operations. One could also take it a step

further, saying that State practice may indeed be leading us to the creation of

an internationally recognized exception to the prohibition against the

shootdown of civil aircraft, at least as far as the South American experience

has proven.

It is also interesting to note that this lack of outrage against the shooting

down of domestic civil aircraft is not limited to general aviation. In a 1991

incident in Peru, police shot down a commercial airliner operated by

Aerochasqui Airlines on a regularly scheduled flight, killing 15 people, after it

125

Department of State, U.S. and the UN Respond to Cuban Shootdown of Civilian Aircraft,

President Clinton UN Security Council Presidential Statement, 7 U.S.

DEP’T OF STATE

DISPATCH 101 (1996).

126

See Cuba Elaborates on Sovereignty Violations, XINHUA NEWS AGENCY, Mar. 6, 1996,

LEXIS, News Library.

127

See Security Council Condemns Use of Weapons Against Civil Aircraft; Calls on Cuba to

Comply with International Law, F

EDERAL NEWS SERVICE, July 31, 1996, LEXIS, News

Library.

128

See Fog of Peace, supra note 16 at 219.

134-The Air Force Law Review

was mistaken for an aircraft used by drug traffickers.

129

While the police were

eventually charged with murder, and may have been drunk when the incident

happened, the lack of international outrage is important in the analysis of state

practice.

130

While the practice of States is clouded by Cold War rhetoric, factual

disputes and grossly negligent misjudgments, some conclusions about the

practice of States and customary international law can be drawn. The first

concerns the class of shootdowns that can be classified as “intrusion

shootdowns,” namely the Air France attack, the El Al Shootdown, and the

KAL shootdowns of 1978 and 1983. In each case, while the perpetrators may

or may not have fully understood that they were shooting down civil aircraft,

the reaction of the world community came from the perspective that they did

indeed recognize these aircraft as civil in nature. The international reaction

was overwhelmingly negative in each case. While these cases are very

interesting factually, they are of limited value and largely irrelevant in today’s

world. In international relations, we are mostly beyond the shootdown of civil

aircraft for mere trespass. It can therefore be said that it is never permissible

under international law to shootdown a civil aircraft merely based on where it

is. Simply put, “there is no per se right to use force based upon the mere

violation of territorial airspace . . . .”

131

The BTTR shootdown, a lingering relic of the Cold War, can be seen as

the last nail in the coffin of the intrusion shootdown. Even if a foreign aircraft

is engaging in or has in the past engaged in the misuse of civil aviation

involving a trespass, that in and of itself is insufficient to justify the use of

weapons. An analysis of the threat posed by the aircraft and a proportionate

response to the threat is absolutely required. Another interesting conclusion

that can be drawn from the BTTR shootdown is that general aviation is indeed

included in the protections offered by customary international law. This is

directly contrary to previous assertions that it covered only regularly scheduled

commercial transportation and aircraft with flight plans. All international civil

flights, including general aviation, are protected.

A more difficult area in which one can search for a conclusion is the

situations under which a State may take action against a perceived threat, as

was the case in the Libyan and IR 655 shootdowns. One could conclude that,

because of the negative international reaction to these threats that were

honestly but mistakenly perceived, the international community demands an

“err on the side of caution” standard for determining self-defense. For

129

See Police Shoot Down Commercial Airliner, Killing 17 People, AGENCE FRANCE PRESSE,

July 11, 1991, LEXIS, News Library. The crew was killed by machine gun fire and crashed,

killing the passengers. See Peru Minister Promises to Reform Police After Downing of

Airplane, A

SSOCIATED PRESS, July 14, 1991), LEXIS, News Library.

130

See Five Policemen Charged with Murder in Airplane Crash, AGENCE FRANCE PRESSE,

July 16, 1991, LEXIS, News Library.

131

Aerial Intrusions, supra note 91 at 293.

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example, the perceived threat posed to the Vincennes by IR 655 was simply not

sufficient to justify the shootdown.

132

Such a conclusion is historically true and would probably still be

operative had 9/11 not occurred. After 9/11, we can probably say that the rule

has moved farther toward the “err on the side of shootdown” end of the

spectrum as opposed to the conclusions drawn from the pre-9/11 cases. The

mass movement to implement shootdown policies is evidence of this, and a

true change in worldviews will be tested as soon as the first post-9/11

shootdown takes place, especially if it involves a mistake. How forgiving the

world will be will likely depend on how fresh the memories of 9/11 still are at

that time.

While no one would doubt the propriety of shooting down a civil

aircraft on a suicide mission, the BTTR shootdown has set at least a minimum

level as to what a threat must be. As one author noted, “the core question

raised by this incident is whether the use of civil aircraft for [private] political

purposes intended to destabilize a government is sufficiently threatening to that

government to warrant the use of weapons.”

133

The answer is a resounding no.

Under the current state of international law, any planned shootdown on a civil

aircraft believed to be hostile must at least pose a greater danger than did the

three light aircraft in the BTTR case.

Another sweeping conclusion can be made as to operations that are

purely domestic in nature. So long as a State is acting inside an area of its own

sovereign control against its own registered aircraft, the world community does

not seem willing to pass judgment. Such a standard is probably not limited to

drug aircraft. It is not unknown in the domestic law of States to have internal

laws that allow for the use of force against aircraft that penetrate restricted

zones and do not obey the orders of the authorities.

134

Such actions will likely

be subject only to human rights law.

132

The following were factors used by the U.S.S. Vincennes in determining IR 655 hostile: 1.

The Flight profile, which includes such things as speed range, rate of climb/decent, rate of

turn, and altitude, 2. Electronic emissions from suspect aircraft, 3. Radio communications, 4.

IFF Mode 3 responses. In addition, the following were also factors that were specific to IR

655: 1. IR 655 took off from Bandar Abbas, a joint civilian/military aerodrome, 2. Recent

deployment of Iranian F-14s to Bander Abbas, 3. The possibility of Iranian Air Force being

used in an air support role for the ongoing surface engagements, 4. An unrelated IFF mode 2

response, 5. The inability to correlate IR 655 to a scheduled civil flight, 6. IR 655 had already

labeled an F-14, 7. Incorrect reports that IR 655 had maneuvered into an attack profile, 8. IR

655 was not directly on the centerline of airway A59. See ICAO Report on IR 655, supra note

118 at 913, 923-24.

133

Fog of Peace, supra note 16 at 229.

134

See SOUVERAINETE AERIENNE, supra note 73 at 317, n. 94.

136-The Air Force Law Review

C. Human Rights Law

Law enforcement operations conducted on the ground are

fundamentally different from those conducted against aircraft in flight. While

the police may pull over a vehicle suspected of being involved in a criminal

offense, the opportunity to “pull over” an aircraft is almost completely limited

to the pilot’s willingness to comply. The inability or unwillingness on the part

of a pilot to follow instructions to land may result in the decision to use

weapons in order to force the aircraft to comply or to terminate the flight

altogether. Should a vehicle on the ground fail to follow orders to stop, police

may employ devices to disable the vehicle or may even resort to more forcible

measures, such as shooting out the tires. Only in the most extreme situations

will deadly force be authorized. The use of force against an aircraft in flight is,

in most circumstances, the equivalent of a death sentence for all on board.

Such killings would inevitably raise concerns under human rights law.

1. Human Rights and the Right to Life

The law of human rights is grounded in a multitude of international

agreements, UN Resolutions, and jurisprudence of international criminal

tribunals and state practice. This area of law is concerned with how States

treat persons within their own sovereign control. Violations can come in many

forms, from torture and the depravation of life to the withholding of economic

and civil rights.

The most important right afforded by this area of law is the right to life.

Reference to this right is found time and again in human rights law, including

in the Universal Declaration of Human Rights (UDHR).

135

The UDHR is the

cornerstone of modern human rights law, and although only a General

Assembly resolution, it is widely seen as reflective of customary international

law. The UDHR provides that “[e]veryone has the right to life, liberty and

security of person.”

136

This right is not subject to arbitrary forfeiture, even in

the event of the commission of a serious crime. The UDHR provides that all

persons charged with a crime have “the right to be presumed innocent until

proven guilty according to law in a public trial at which he has had all the

guarantees necessary for his defense.”

137

This customary right is codified in a

number of multilateral treaties.

138

135

G.A. Res. 217A(III), U.N. Doc A/810 at 71 (1948).

136

Id., art. 3.

137

Id., art. 11.

138

The most widely applicable of which is the International Covenant on Civil and Political

Rights, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force Mar. 23, 1976)..

The ICCPR mandates that “[e]very human being has the inherent right to life. This right shall

be protected by law. No one shall be arbitrarily deprived of his life . . . . [The death] penalty

can only be carried out pursuant to a final judgment rendered by a competent court.” Id. at

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States violate international law if they “as a matter of state policy …

practice[], encourage[], or condone[] … the murder or causing the

disappearance of individuals ….”

139

This arbitrary taking of human life is

known as an “extrajudicial killing” when committed by police, military and

security forces. This prohibition is applicable to all States under international

law and would be applicable to shootdown operations conducted under the

ABDP. However, this is not to imply that every killing, even those conducted

in ABDP shootdowns, is a violation of that right. A closer look must be taken

at how the right to life intersects with law enforcement’s duty to enforce the

law.

2. Extrajudicial Killings and Law Enforcement

Interpreting the right to life so as to declare illegal all extrajudicial

killings would fail to take into account situations where the safety of law

enforcement officers and the general public is at risk. It as well fails to

recognize that there are criminals who will simply not allow themselves to be

taken alive just to allow the State the opportunity to afford them the required

due process.

140

But it does raise the question of how one determines the line

between the lawful application of deadly force and the illegal extrajudicial

killing of persons.

141

As a starting point, one notes that the Basic Principles on the Use of

Art. 6. This is an obligation from which there can be no derogation. Additionally, the right to

life is found in other international instruments. The European Convention on Human Rights

provides that Everyone’s right to life shall be protected by law. No one shall be deprived of

his life intentionally save in the execution of a sentence of a court following conviction of a

crime for which this penalty is provided by law. Convention for the Protection of Human

Rights and Fundamental Freedoms, November 1950, 213 U.N.T.S. 222, Eur. T.S. No. 5

(entered into force Sept. 3, 1953) at art. 2(1). A similar provision is found in the American

Convention on Human Rights.

Every person has the right to have his life respected. This right shall be protected by law and,

in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

1144 U.N.T.S. 123, O.A.S.T.S. 1970 No. 36, 9 I.L.M. 673, Nov. 22, 1969 (entered into force

Jul. 18, 1978) at art. 4.

139

AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW (THIRD): THE FOREIGN RELATIONS

LAW OF THE UNITED STATES, VOL. 2 sec. 702 [hereinafter RESTATEMENT ON FOREIGN

RELATIONS].

140

A very interesting argument has been made that even the killing of Uday and Qusay

Hussein in Iraq was an extrajudicial killing. Marjorie Cohn, Human Rights: Casualty of the

War on Terror, 25 SAN DIEGO JUST. J. 317 (2003), LEXIS. This is a very dubious assertion.

Some persons, like the Hussein brothers, are not interested in their day in court.

141

Even the United Nations Principles on the Effective Prevention and Investigation of Extra-

legal, Arbitrary, and Summary Executions, despite being quite extensive in its

recommendations, do not endeavor to formulate an appropriate situation in which force may

and may not be used. ESC Res. 44/162, UN ESC, 1989, Supp. No. 1, UN Doc. E/1989/89

(1989).

138-The Air Force Law Review

Force and Firearms by Law Enforcement Officials, a non-binding UN work,

142

purports to limit the use of deadly force to situations involving the protection

of life. However, there are circumstances under which a killing may take place

in a ;aw enforcement context short of the protection of life. In American

practice, the requirement has been broadened slightly to include the protection

of so-called “critical infrastructure” as well.

143

Even then, it is only authorized

when lesser means have been exhausted and there is no significant increase in

the risk of death or serious bodily harm to others. The Restatement goes a bit

further, making a general exception to the right to life in the prevention of

serious crimes.

144

The fundamental illegality in extrajudicial killings centers on the lack

of due process. The U.S. Government has recognized that the shootdown of

civil aircraft suspected of carrying drugs could violate the U.S. Constitution as

a violation of due process, a concept that is not unlike the same notion under

international law.

145

In international law, the due process standard that is to be

applied before the use of deadly force is authorized is found in the case of

Garcia and Garza v. United States, heard before the U.S.-Mexican Claims

Commission.

146

In April 1919, an infant was killed by an officer with the U.S.

142

UNHCR, 1990, UN Doc. A/CONF.144/28/Rev.1, available at

www.unhchr.ch/html/menu3/b/h_comp43.htm.

143

For example, the GARDEN PLOT Rules of Engagement, in force for the most extreme

U.S. domestic emergency situations, include, in addition to self-defense and the defense of

others, the prevention of crime that involves the imminent danger of death or serious bodily

injury, the prevention of the escape of persons who pose imminent danger of death or serious

bodily injury, and the prevention of the destruction of critical infrastructure as circumstances in

which deadly force may be used. See C

ENTER FOR LAW AND MILITARY OPERATIONS,

OMESTIC OPERATIONAL LAW (DOPLAW) HANDBOOK FOR JUDGE ADVOCATES 71 (2001). It

could also be used in situations to prevent crime, such as the prevention of the theft of “vital”

assets and property inherently dangerous to others. See W.A. Stafford, How to Keep Military

Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE, & the Rules of

Deadly Force, 2000 Army Law. 1, 6 (2000) [hereinafter How to Keep Military Personnel from

Going to Jail]. Most rules on the use of force for U.S. law enforcement agencies only allow

for the use of deadly force to protect life and prevent serious bodily injury, but there do exist

specific rules on when deadly force can be used to prevent crime. See DHS Standards for

Enforcement Activities, 8 C.F.R. 287.8 (2003) (Immigration officers may only use deadly force

to protect from death or serious bodily injury), see also NASA Security Programs; Arrest

Authority and the Use of Force by NASA Security Force Personnel, 14 C.F.R. 1203b.106,

compare to DOE Limited Arrest and Use of Force by Protective Force Officers, 10 C.F.R.

1047.7 (Authorizing the use of deadly force to prevent the theft and sabotage of nuclear

weapons or nuclear explosive devices).

144

“[I]t is a violation of international law for a state to kill an individual other than as lawful

punishment pursuant to conviction in accordance with due process of law, or as necessary

under exigent circumstances, for example by police officials in line of duty in defense of

themselves or of other innocent persons, or to prevent serious crime.” R

ESTATEMENT ON

FOREIGN RELATIONS, supra note 139 at sec. 702 comment f. (emphasis added).

145

See October 1989 Position Paper, supra note 13.

146

Teodoro Garcia and M. A. Garza v. United States (1926), 21 AM. .J. INT’L .L. 581, (U.S.-

Mexican Claims Commission).

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military whose unit was charged with enforcing laws against illegal boarder

crossings and smuggling on the U.S.-Mexican frontier. The officer fired on a

raft, which was loaded with persons making an illegal crossing on the Rio

Grande River, killing the young girl.

147

In determining that international law

did indeed forbid the extrajudicial taking of human life, the tribunal held that

the following criteria were required before the resort to deadly force was legal

under international law:

- An offense must be sufficiently established;

- The importance of preventing or repressing the offense by

force must be in proportion to the danger arising from it;

- The firing should not be undertaken if there are other ways of

preventing or repressing the offense; and,

- There must be sufficient precaution not to create unnecessary

danger, unless it is the intention to hit, wound, or kill.

148

The tribunal noted that the most serious offense of which the occupants

of the raft were suspected of committing was smuggling mescal into the United

States.

149

Had the crime being committed been more serious, deadly force

might have been authorized. Implicit in this due process requirement is the

duty to warn before deadly force is used. Such a warning gives the perpetrator

the chance to choose compliance with the instructions of law enforcement and

submission to the judicial process before facing deadly force. Simply put, the

right to life is limited by “the right to self-defense, acting in defense of others,

the prevention of serious crime involving a grave threat to life or serious

injury, and the use of force to arrest or prevent the escape of persons presenting

such threats.”

150

147

See id. at 582.

148

See id. at 584.

149

See id. In another military border incident decades later, U.S. Marines on a counter-drug

mission on the Mexican border shot and killed a 17-year-old boy. What distinguishes this

from the Garcia and Garza case is that the boy was not summarily shot out of some notion of

crime prevention. He had fired two shots at the marines and had raised his weapon apparently

to fire again when he was killed. Nonetheless, the State of Texas initiated a homicide

investigation against the Marines. See How to Keep Military Personnel from Going to Jail,

supra note 143 at 1.

150

Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in

Contemporary Armed Conflict, 98 A.J.I.L. 1,10 (2004).

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3. Human Rights and the Shootdown of Civil Aircraft

There is little doubt that human rights norms are applicable to the

shootdown of civil aircraft.

151

Due process consists of making some type of

effort to get the individual to surrender and face established criminal justice

and the application of the subsequent judicial procedures for the determination

of guilt and innocence. It therefore follows that ABDP shootdown operations

require some form of due process. The requisite due process in these cases

comes from the proper identification of suspect aircraft and from the use of

appropriate measures to allow suspects to land and surrender before being

subjected to deadly force. So long as the threat posed by drug trafficking is a

serious enough crime and suspects are properly identified and given an

opportunity to submit to justice, ABDP operations would generally fall within

the realm of legitimate law enforcement and would not fall short of recognized

human rights norms. This is not to suggest that the violation of human rights

does not take place in the war on drugs, but it seems that ABDP operations as

put on paper make sufficient efforts, through the requirement of pilots to file

flight plans, the real-time monitoring of flights, and the use of ICAO

Standards, to positively identify suspects. Additionally, sufficient efforts are

required to compel a landing in lieu of a shootdown if the pilot chooses to

comply.

IV. CIRCUMSTANCES IN WHICH INTERNATIONAL LAW COULD

PERMIT THE SHOOTDOWN OF CIVIL AIRCRAFT

It is certain that international law exists in some form prohibiting the

use of force against civil aircraft in flight. However, just as domestic law has

excuses or defenses that prevent otherwise wrongful conduct from being

unlawful in certain circumstances without jeopardizing the validity of the

underlying law, international law allows for similar justifications without

abrogating the underlying legal obligation.

The law of treaties governs the law to be applied in the formation,

performance, and termination of treaties, including the law on determining

when a binding norm of treaty law is no longer in force. It is, however, distinct

from the international law of state responsibility, wherein we find many of the

circumstances that preclude wrongfulness, which are more of a case-by-case

151

For example, in Alejandre v. Republic of Cuba,

a U.S. Federal Judge held that the

destruction of the BTTR aircraft and the resulting deaths of those aboard was an extrajudicial

killing under U.S. law, applying a standard similar to the international standard.

Alejandre, 996

F. Supp at 1242. “The unprovoked firing of deadly rockets at defenseless, unarmed civilian

aircraft undoubtedly comes within the statute’s meaning of ‘extrajudicial killing.’” Id. at 1248.

Although it was an extrajudicial killing under U.S. law, not necessarily under international

law, the judge did refer to it as a violation of basic human rights. Id. at 1242.

The Air Bridge Denial Program - 141

examination of justifications for deviations from international law, including

the law of treaties.

152

It has been asserted that self-defense under Article 51 of the UN

Charter is the only circumstance in which international law would excuse the

shootdown of civil aircraft.

153

However, the simple application of this hard-

line approach to one scenario proves that this cannot be the case. Would

international law not certainly allow for the destruction of an errant aircraft,

such as the one in which golfer Payne Stewart was killed, after it went out of

control, if the impending impact threatened lives on the ground? The answer is

absolutely yes, although such a threat would certainly not be an armed attack.

Since it is certain that there exist other circumstances, short of an armed attack

and the corresponding right of self-defense, in which the shootdown of civil

aircraft would be authorized, it is necessary to closely examine the

circumstances that preclude wrongfulness under international law and to apply

the relevant norms to potential shootdown operations.

Peru and Colombia have found no need to put forth any such

international justification for their ABDP shootdown operations. These

countries have focused solely on sovereignty over national airspace under

Article 1 of the Chicago Convention. These countries see it as an issue of

domestic law only, but this is not the case. While there are certainly domestic

law issues inherent in ABDP shootdowns, such shootdown operations,

especially in the tri-border region of Colombia, Peru, and Brazil, are inherently

international in character.

154

Therefore, one cannot simply call the ABDP a

domestic issue and ignore the search for international justification. While

Colombia, Peru, and, in the near future, Brazil will likely not complain when

their nationally registered aircraft

155

are shot down over one of the other

countries, there will probably be international outrage, along with accusations

of violations of international law, when a mistake like the one in the OB-1408

scenario leads to the accidental shootdown of an aircraft from a country not

152

See Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), 1997.]

I.C.J. Rep. 7, para. 47 [hereinafter Gabcikovo-Nagymaros Case].

153

See Sompong Sucharitkul, Procedure for the Protection of Civil Aircraft in Flight, 16 LOY.

L.A. INT’L & COMP L.J. 513, 516 (1994), Opinion of the Office of Legal Counsel, supra note

18 at 6-7, October 1989 Position Paper, supra note 13.

154

This is certainly the view of the United States. Secretary Rumsfeld, at the restarting of the

Colombian arm of the program, said ABDP is not a single country issue. See Donald H.

Rumsfeld Holds a News Conference with Colombian Minister of Defense Ramirez, FEDERAL

DOCUMENT CLEARING HOUSE, Aug. 19, 2003, LEXIS, News Library. [hereinafter Rumsfeld-

Ramirez News Conference.]

155

The reliance on conducting a shootdown operation based on the registration of an aircraft is

somewhat absurd. Aircraft engaged in drug trafficking might not display any registration, just

as it is common for waterborne smugglers to not fly a flag of registration. See Rachel Canty,

Developing Use of Force Doctrine: A Legal Case Study of the Coast Guard's Airborne Use of

Force, 31 U.

MIAMI INTER-AM. L. REV. 357, 372 (2000) [hereinafter Coast Guard Use of

Force]. In fact, the DoJ has noted that trafficking aircraft often obscure or paint over

registration numbers. See Opinion of the Office of Legal Counsel, supra note 18 at 13, note 12.

142-The Air Force Law Review

involved in ABDP operations or when nationals of another country are

accidentally killed in a shootdown operation.

Countries should not rely on “sovereignty,” nor should we allow the

development of a regional custom justifying such shootdowns. This could lead

to a needless broadening of the law to a degree that may eventually lead the

world to call into question its own condemnation of Cuba in the BTTR

shootdown, which could have just as easily been justified on sovereignty

grounds. International law as it stands is broad enough to allow States to

deviate from compliance with established norms to respond to an armed attack,

to conduct armed conflict, to preserve human life, and to protect the essential

interests of the State.

A. Self-Defense

1. The Inherent Right of Self-Defense

The first legal justification for the shootdown of civil aircraft that

requires examination is also the one with the most international support: self-

defense. The right to respond to an armed attack in self-defense has been

codified in Article 51 of the UN Charter.

Nothing in the present Charter shall impair the inherent

right of individual or collective self-defence if an armed attack

occurs against a Member of the United Nations, until the

Security Council has taken measures necessary to maintain

international peace and security.

156

While its place in the UN Charter scheme on the regulation of armed force is

as an exception to the prohibition on the use of force under Article 2(4), it is

recognized as a circumstance precluding wrongfulness for internationally

wrongful acts under the Draft Rules on State Responsibility as well.

157

The

“inherent right” of self-defense is also part of customary international law, and

it is triggered in all cases by an “armed attack,” which is not definitively

defined in the Charter or in customary international law.

158

One can see that

with an armed attack as the requirement, the bar to trigger self-defense has

been set deliberately high. In determining whether such a standard is met, one

must look at two issues: the affiliation of those carrying out the attack, and the

severity of the attack. The answers to these two issues will determine if there

is indeed an armed attack in a potential shootdown situation.

156

U.N. CHARTER, art. 51.

157

Draft Articles on the Responsibility of States for Internationally Wrongful Acts, U.N.

GAOR, Int'l Law Comm'n, 53d Sess., arts. 4-11, 34-39, U.N. Doc. A/CN.4/L.602/Rev.1

(2001), art. 24(2) [hereinafter Draft Articles].

158

See Nicaragua Case, supra note 88, para. 176.

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When Article 3bis was drafted, the State was seen as the major threat to

international peace and security and as the likely misuser of civil aviation as a

threat against another State. But does the law of self-defense afford the same

right to States when actors commit armed attacks in the name of themselves

and not a State? Such private entities are more likely today than States to be

the perpetrators of such acts using civil aircraft. It is implicit in Article 51 of

the Charter that an armed attack must originate from a State. An armed attack

is a subcategory of aggression that has been recognized as something that

comes from an act of a State and not private actors.

159

It has been noted that

“[t]he United Nations Charter is an agreement among nations and does not

authorize actions against individual persons."

160

This view would lead to the

conclusion that there would have been no right of self-defense available to the

U.S. on 9/11, as there was no attack by a State. This view is certainly not

without support.

The problem with this view of self-defense is that it ignores the danger

posed by private actors, especially when they are “armed” with fuel-laden

aircraft or perhaps even more dangerous devices. There is growing support,

especially after 9/11, for the consideration of such acts of terrorists or other

private actors as “armed attacks,” and thus triggering the inherent right of self-

defense. The Charter’s language does not limit self-defense to armed attacks

committed by States.

161

The concept of an armed attack was left deliberately

open to the interpretation of Member States and UN Organs, and the wording

is broad enough to include the acts of non-State actors as “armed attacks.”

162

Such an interpretation would be consistent with the evolution of world

realities, as non-State actors are an increasing threat today.

163

159

See Giorgio Gaja , In What Sense was There an ‘Armed Attack?’, EUR. J. INT’L L. (2001),

available at www.ejil.org/forum_WTC/ny-gaja.html. This point of view is shared by Judge

Antonio Cassese. He believes that self-defense is only justified by the actions of an aggressor

State and that calling the use of aircraft as weapons by a private group, as happened on 9/11,

an “armed attack” would be a broadening of self-defense. See Antiono Cassese, Terrorism is

Also Disrupting Some Crucial Legal Categories of International Law, 12 E

UR. J. INT’L L. 993,

997 (2001).

160

Steven B. Stokdyk, Airborne Drug Trafficking Deterrence: Can a Shootdown Policy Fly?,

38 UCLA

L. REV. 1287, 1309 (1991) [hereinafter Shootdown Policy].

161

“An interpretation extending the right of self-defense to attacks by non-State actors is …

consistent with both the ordinary meaning of the text [of the Charter] and the purposes of the

United Nations.” Michael N. Schmitt, Bellum Americanum Revisited: U.S. National Security

and the Jus ad Bellum, 176 M

IL. L. REV. 364, 384 (2003) [hereinafter Bellum Americanum

Revisited].

162

See Carsten Stahn, Terrorist Acts as ‘Armed Attack’: The Right to Self-Defense, Article

51(1/2) of the UN Charter, and International Terrorism, 27 F

LETCHER FOR. WORLD AFF. 35,

35-36 (2003) [hereinafter The Right to Self-Defense]. The author bases this accretion on the

reaction to the September 11

attacks. “The first lesson on September 11 is the almost

unanimous recognition in state practice that acts of terrorism carried out by independent

private actors fit within the parameters of Article 51.” Id. at 37.

163

The UN Security Council seems to have agreed. The Security Council referred to the right

to self-defense in Security Council Resolutions 1368 and 1373, made shortly after 9/11, with

144-The Air Force Law Review

While the use of force against terrorists has become more and more

acceptable under a self-defense theory, it will have increasing applicability to

the justification of the shootdown of civil aircraft. Defending against activities

by non-State entities engaged in the violent misuse of civil aviation will be

included in a State’s rights under self-defense. This will take the focus off of

the identity of the attacker and put it on the act itself.

Professor Schmitt has recognized that “[w]hile it has become plain that

non-State actors can be the source of an ‘armed attack’ under the law of self-

defense, the issue of when an individual act of terrorism [or any private violent

act for that matter] will rise to that level is murkier.”

164

Low-level violence

will generally not constitute an armed attack, as it does not rise to the level of a

sufficient scale and effects. Judge Cassese has echoed this, saying that that the

use of force is not authorized against sporadic or minor attacks.

165

For

example, the ICJ has held that mere frontier incidents are not necessarily

armed attacks, nor is the provision of weapons or logistical support to an

armed band,

166

as an attack must be “most grave” in order to trigger the

inherent right of self-defense.

167

Therefore, while self-defense might be

applicable to the acts of terrorists and other private actors as well as States, the

potential for such an attack to justify the shootdown of a civil aircraft seems

limited. Attacks by a single aircraft, especially a general aviation aircraft,

might not rise to a sufficient scale to amount to an armed attack under the test

put forth by the ICJ.

168

Thus, a literal application of the test to measure an

armed attack would require awaiting an attack by a civil aircraft and either

determining its severity before acting, or guessing as to the expected gravity of

the potential attack and conducting shootdown operations accordingly. Such

an application makes self-defense a very unworkable option in a shootdown

scenario.

It also seems that the potential for the use of self-defense as a

justification for the shootdown of civil aircraft is limited by the very acts of the

the full understanding by the world that Osama bin Ladin’s al-Qaeda network was likely

responsible for the attacks. It appears that the world has accepted this self-defense justification

for the war in Afghanistan, aimed not only at the government but also at the non-State actors

that perpetrated 9/11. See Civil Liberties, supra note 55 at 372.

164

Bellum Americanum Revisited, supra note 161 at 387.

165

See Antonio Cassese, The International Community’s ‘Legal’ Response to Terrorism, 38

NT’L. COMP. L.Q. 589, 596 (1989).

166

See Nicaragua Case, supra note 88, para. 195.

167

Case Concerning Oil Platforms (Iran v. U.S.), Merits (Int'l Ct. Justice Nov. 6, 2003), para.

51 [hereinafter Oil Platforms]. This case left open the issue of whether the Iranian missile

attack on the U.S.-flagged tanker Sea Isle City and another U.S.-owned merchant ship, as well

as the firing on U.S. military helicopters was grave enough to be an armed attack. It seemed to

indicate that it was not, but the decision is too clouded with issues of intent and attribution to

determine the court’s measure of the gravity of the attack. Id., para. 64. The court did provide

some guidance when it determined that the mining of a single warship, in this case the U.S.S.

Samuel Roberts, could in itself be an armed attack. Id., para. 72).

168

The events of 9/11 would be the obvious exception.

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aircraft in question. When used by a State or other lawful belligerent entity to

attack, an aircraft will likely immediately lose its civil status, thereby allowing

the use of force against what would become, thought its own actions, a state

aircraft. While the use of force against state aircraft may breach other rules of

international law in some circumstances, it would not violate Article 3bis or

any related provision of international law relating to civil aircraft. The

lingering question stems on the status of the aircraft used by non-state actors;

do their aircraft become “quasi-state” aircraft?

169

2. ABDP Shootdowns as Self-Defense

As the legal position that offers the strongest justification for the use of

weapons against civil aircraft, one can see that it would be desirous for ABDP

countries to classify these operations against drug trafficking as a form of self-

defense, thereby not only justifying the use of force against civil aircraft, but

169

Major General Huang Suey-sheng of the Taiwanese Air Force said prophetically, “In the

wake of the 9-11 tragedy . . . the distinctions between war and non-war and the differences

between military and non-military have become blurred.” MND says Troops Ready for 9-11

Style Attacks, T

AIWAN NEWS GLOBAL NEWS WIRE, Sept. 12, 2002, LEXIS, News Library.

While this observation has been made many times since the start of the “war on terror,” the

general’s statements are interesting in that they came at a time when Taiwan was announcing

its plans to shoot down hostile aircraft. While the phrase “quasi-war” is typically used in U.S.

Constitutional Law in reference to the Presidential powers to conduct the 18

Century “quasi-

war” with France, the term has been creeping into the “war on terror” lexicon. See George P.

Fletcher, On Justice and War: Contradictions in the Proposed Military Tribunals, 25 H

ARV. J.

L. & PUB. POL’Y 635, 651 (2002), Richard J. Kozicki, The Changed World of South Asia:

Afghanistan, Pakistan, and India after September 11, 2 A

SIA PAC. PERSP. 1. 8, (2002),

available at http://www.pacificrim.usfca.edu/research/perspectives. With General Suey-

sheng’s description of the situation involving the terrorist use of civil aircraft as a confusing

distinction between that which is military and that which is civilian, we could easily see the

evolution from the “quasi-war” to the “quasi-state” aircraft. The U.S. used the state aircraft

justification to target terrorists when it intercepted an Egypt Air 737 carrying terrorists that had

hijacked the Achille Lauro in the Mediterranean. See Chicago OPUS 3, supra note 61 at 907-

08.

They simply reclassified the aircraft, which had been in service as a civilian airliner, as a state

aircraft based on its mission, being chartered by the Government of Egypt to ferry a suspected

terrorist out of the country. One author has even gone so far as to use a similar argument for

drug trafficking aircraft. “[A]ircraft involved in illegal narcotics traffic arguably do not fall

within the definition of ‘civil aircraft’ and thus the protections of the Chicago Convention do

not apply to them.” Shootdown Policy, supra note 160 at 1306. This is based on the

paramilitary nature of their activities. See id. A move to classify unfriendly civil aircraft,

particularly those used by terrorists, as state aircraft would certainly give States more

flexibility in how they intercept and apply force to such aircraft. However, one could see such

a move as being quite subject to abuse. Moreover, it could cause harm and uncertainty to the

whole framework on international civil aviation based on the Chicago Convention. It would

be preferable to use the existing framework of prohibitions and defenses to ensure the security

of States rather than to see the phrase “state aircraft” become subject to contortions in order to

meet the needs of States.

146-The Air Force Law Review

also justifying the use of force in general without the consent of other States.

While such a desire is understandable, it is not in keeping with the spirit and

intent of Article 51 of the UN Charter, even under a broad reading.

One author has found that drug trafficking can indeed be tantamount to

an armed attack.

170

In one sense, he is correct, as its effects can be the same as

those of an armed attack. The corrosive nature of the drug lords’ operations

can have devastating impacts on a country. Death, misery, and even the

potential downfall of the government are all consequences of drug activities,

consequences no less than those that a State would face if it were actually

attacked by another State.

Notwithstanding these concerns aver the devastating impact of the drug

trade, the shootdown of civil aircraft involved in drug trafficking is troubling

under a self-defense analysis. The acceptance of such an interpretation would

lead to the potential for the acts of any dangerous criminal organization as well

as many other acts of low-level violence to be classified as an armed attack.

While such a result would probably not be an intended consequence, it would

likely happen. As such, while it would be a good defense in some shootdown

situations, self-defense is a poor fit when looking for international justification

for ABDP shootdowns.

B. Armed Conflict

While a state of armed conflict is not a circumstance precluding

wrongfulness under international law as are the other justifications analyzed in

this section, such a state of armed conflict would allow for the invocation of

more permissible wartime norms, thus relieving States of the strict burdens

under international law prohibiting the shootdown of civil aircraft. The state of

armed conflict is examined here because it is a natural follow-up to an armed

attack and reflects the state of the law that might very well be in effect

subsequent to an armed attack.

The Chicago Convention contains a number of obligations relating to

civil aviation that are, by their very nature, incompatible with a state of armed

conflict. Therefore, the Chicago Convention has provided for States to forgo

some or possibly all of their obligations under Chicago if they invoke Article

89 of the Convention. However, it is of very limited effect.

Article 89, entitled "War and emergency conditions" states:

In case of war, the provisions of this Convention shall not affect

the freedom of action of any of the contracting States affected,

whether as belligerents or as neutrals. The same principle shall

apply in the case of any contracting State which declares a state

170

Shootdown Policy, supra note 160 at 1308.

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of national emergency and notifies the fact to the Council.

171

What the practical effect of a declaration under Article 89 would be is not

clear. Senator Kerry, in the 1994 debates over the ABDP, stated his belief that

an Article 89 would go so far as to relieve a State of all international

wrongfulness relating to a shootdown.

172

This may, however, be an

overstatement. Such a notice would only have the potential to make the

provisions of the Chicago Convention inoperative. It would have no effect on

customary international law or other treaty law. The likely effect of the

emergence of a state of armed conflict is that the requirements of international

obligations relating to the shootdown of civil aircraft would be supplanted by

the laws applicable to armed conflicts. This is consistent with the general rule

of international law, supported by the ICJ in the Nuclear Weapons Case, that

the lex specialis, in this case the law of armed conflict (LOAC), prevails over

more general international obligations. LOAC would still prevent the

shootdown of “civil aircraft” in most circumstances, but it would loosen the

criteria for States wishing to use force against civil aircraft by the application

of LOAC targeting requirements.

With the suspension of appropriate obligations under the Chicago

Convention and customary international law,

173

the corresponding obligations

under LOAC would be dependent on the existence an international or internal

armed conflict under international law.

174

The law of armed conflict includes

171

Chicago Convention, supra note 57, art. 89.

172

140 CONG. REC. 8256 (July 1, 1994) (Statement of Senator John Kerry).

173

The Vienna Convention on the law of Treaties does not affect a State’s right to avoid treaty

obligations in case of armed conflict.

Vienna Convention on the Law of Treaties, May 23,

1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980), art. 73. There is support for a

customary norm suspending treaties incompatible with a state of armed conflict. The test has

been put forth as follows: If there is no specific language in a treaty as to its effect in a state of

armed conflict, we look at “whether the object and purpose of the treaty is or is not compatible

with a state of armed hostilities between the parties.” D

EPARTMENT OF DEFENSE, OFFICE OF

THE

GENERAL COUNSEL, AN ASSESSMENT OF INTERNATIONAL LEGAL ISSUES IN INFORMATION

OPERATIONS 2

ED. 3 (1999). This is particularly difficult in multinational treaties.

174

Different provisions of LOAC apply depending on whether the conflict is an international

or an internal armed conflict. In international armed conflicts, the vast majority, and most

restrictive of the provisions of LOAC apply. See

Geneva Convention for the Amelioration of

the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75

U.N.T.S. 31, Geneva Convention for the Amelioration of the Condition of the Wounded, Sick

and Shipwrecked Members of Armed Forces at Sea, Aug, 12, 1949, 75 U.N.T.S. 85,

Geneva

Convention

Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135,

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12,

1949, 75 U.N.T.S. 287, Protocol Additional to the

Geneva Conventions of 12 August 1949,

and Relating to the Protection of Victims of International Armed Conflicts, Aug. 15, 1977, UN

Doc. A/32/144. [hereinafter Protocol I]. In an internal armed conflict, only a small part of

LOAC applies, most of it reflected by Protocol II to the Geneva Conventions. Protocol

Additional to the

Geneva Conventions of 12 August 1949, and Relating to the Protection of

Victims of Non-International Armed Conflicts, Aug. 15, 1977, UN Doc. A/32/144.

148-The Air Force Law Review

the four Geneva Conventions, which are considered reflective of customary

international law,

the 1977 Protocols, and various other treaties. An extensive

analysis of these provisions is far beyond the scope of this article, but the basic

thrust of this body of law can be distilled into four general principles of law

that reflect much of the vast body of LOAC that would govern the targeting of

aircraft in war.

Under the “principle of necessity,” the selected target must be a

military objective, defined as an object that contributes effectively to the

military action of the enemy and the destruction, capture, or neutralization of

which offers a definite military advantage for the targeting forces. If a civil

aircraft meets this test, it is a potential target as defined under the laws of war

and may be attacked. If it is not, or if there is a doubt as to whether it is a

military object, it may not be attacked.

175

In contrast, objects classified as

“civilian objects,” including civil aircraft not amounting to a military objective,

may not be targeted in armed conflict.

The “principle of distinction,” as used in LOAC, requires States to “at

all times distinguish between the civilian population and combatants and

between civilian objects and military objectives ….”

176

This would of course

include civil aircraft that are not by their nature military objectives. An attack

that is indiscriminate is an illegal attack.

177

States must take steps to ensure

that they are indeed focusing their attacks on a lawful objective.

The “principle of proportionality” also applies in the course of an

otherwise necessary and discriminate attack, when there is a risk of incidental

loss of civilian life or damage to civilian objects, as would be the case in nearly

every shootdown of a civil aircraft.

[T]hose who plan or decide upon an attack shall …

refrain from deciding to launch any attack which may be

expected to cause incidental loss of civilian life, injury to

civilians, damage to civilian objects, or a combination thereof,

which would be excessive in relation to the concrete and direct

military advantage anticipated.

178

If it is determined that the attack poses a risk to civilians or to civilian objects,

a balancing test must be done. One must weigh the probability of death or

destruction to protected persons or places and the extent of that damage against

the military advantage that would be gained. If the planned attack does not

pass the test as articulated above, the attack must not be undertaken. Thus, if a

civil aircraft carrying civilians was also carrying some military material in its

cargo or engaging in some military mission, one must balance the military

176

Protocol I, supra note 174art. 48

177

See id., art. 50(4).

178

Id., arts. 57(2)(a)(iii), 51(5)(b), and 57(2)(b).

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necessity to be gained from its destruction against the loss of civilian life

before using force. This principle would act to prohibit attacks on aircraft

carrying civilians in most circumstances, unless the military advantage to be

gained is substantial.

That principle is balanced by the principle of chivalry, which forbids

dishonorable (treacherous) means, dishonorable expedients, and dishonorable

conduct during armed conflict. This principle prohibits perfidy, which

involves tricking the enemy by treacherously relying on his adherence to the

law of armed conflict in an effort to kill or wound the enemy. It would

therefore be unlawful to hide military objectives behind civilian objects, such

as civil aircraft.

The classification of the South American drug trafficking problem as

part and parcel of an armed conflict is an inviting theory. Such a

characterization would be limited in scope to situations that involve an actual

armed conflict under international law.

179

Under LOAC, the act of

distinguishing between civil and state aircraft would be changed to that of

differentiating between military objectives and non-military objectives.

Viewing drug traffickers as part of the enemy in an armed conflict requires a

factual finding that shows an actual combination of effort between the two.

Such a fusion has already been recognized.

180

In the late 1980s, the FARC

began to tap into drug activities to gain resources to set up their military

operations.

181

“Some terrorist groups have been linked to drug smuggling

primarily to finance their activities. The profits from even one consignment of

narcotics could provide small terror cells with substantial operating capital.”

182

While it is a factual determination, if a State determines that drug traffickers

are part of enemy forces in an armed conflict, they may be shot down without

warning as lawful military objectives.

There is precedent for the shootdown of otherwise civil aircraft acting

179

Such a situation probably exists only in Colombia at this time. In fact, the International

Committee of the Red Cross recognizes the civil war in Colombia as the only major armed

conflict in Latin America. See I

NTERNATIONAL COMMITTEE OF THE RED CROSS, ANNUAL

REPORT 2003 180 (2004), available at

http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/section_annual_report_2003.

180

“The fusion between drug traffickers and illegal armed groups … makes it … no longer

possible to credibly distinguish between the two.” U

NITED STATES SENATE, TRIP REPORT,

SENATE FOREIGN RELATIONS COMMITTEE, MINORITY STAFF DELEGATION TO COLOMBIA, MAY

27-31 1 (2002) [hereinafter 2002 SENATE TRIP REPORT]. President Bush also spoke about these

connections in his National Security Strategy, issued in 2002. “In Colombia, we recognize the

link between terrorist and extremist groups that challenge the security of the state and drug

traffickers’ activities that help finance the operations of such groups.” O

FFICE OF THE

PRESIDENT OF THE UNITED STATES, NATIONAL SECURITY STRATEGY OF THE UNITED STATES

10(2002)

181

See RAND CORPORATION, PROJECT AIR FORCE, 2001 ANNUAL REPORT 75 (2001),

available at

www.rand.org/publications/AR/AR7068.pdf.

182

OFFICE OF THE PRESIDENT OF THE UNITED STATES, NATIONAL SECURITY DECISION DIRECTIVE

NUMBER 221 2 (1986).

150-The Air Force Law Review

in private support of rebel forces in non-international armed conflicts. For

example, in 1983, Nicaragua’s pro-Soviet Sandinista Government shot down a

DC-3 that was ferrying supplies, including munitions, medical supplies and

provisions, to the Contras, a rebel force fighting to overthrow the

Sandinistas.

183

In a similar event, Nicaraguan forces shot down a DC-6

operating on a resupply flight from Swan Island in Honduras with a Colombian

and Nicaraguan crew.

184

There was no international protest resulting from

either incident, despite the fact that the flights were not linked to any State,

were international in character, and were manned, in some cases, by persons of

other than Nicaraguan nationality. In an even more infamous shootdown,

Nicaragua shot down a C-123 flying for the U.S. carrier Southern Air

Transport that was acting on behalf of what was described as “private

benefactors.”

185

The flights were later determined to be part of the Iran-Contra

Affair and connected to unauthorized actions of U.S. and other nationals;

however, the aircraft was civilly registered to Doan Helicopter in the U.S. with

the registration number N4410F.

186

Again, there was no international outrage

over this U.S. registered civil aircraft being shot down. One can certainly

conclude that it was seen as a lawful target based on military necessity under a

LOAC analysis. The shootdown of these flights stands in support of the

proposition that civil aircraft engaging in activities for a belligerent may be

attacked without warning.

However, while seemingly useful in theory, the characterization of drug

trafficking as part of an armed conflict is very unlikely, due to the

reverberations that would invariably result from such a classification. While it

might free up restrictions on Colombian, Peruvian and other forces in the

targeting of rebel aircraft, the corresponding obligations that would arise with

the invocation of LOAC would bind the State far too much. A State would not

be allowed to “cherry pick” provisions of LOAC and disregard others. As the

situation in Colombia is a civil war, if the Colombian forces started treating

drug traffickers as part of the belligerent forces for targeting purposes, Protocol

II to the Geneva Conventions would then apply to all counter-drug activity in

Colombia. The obligations under Protocol II would likely be too restrictive to

lead States to classify drug trafficking as a rebel act, and the States involved

are not likely to do so out of a desire to operate under their own domestic law

as opposed to the international law of armed conflict. While the battle against

183

See State Department Message, Sandinistas Shoot Down a Contra DC-3, (1983), available

at Digital National Security Service (Cable from the U.S. Embassy in Managua to the U.S.

Secretary of State).

184

See Survivor from Contra Plane Interrogated, Search for Others, ASSOCIATED PRESS (Jan.

25, 1988), available at LEXIS, News Library.

185

U.S., Central Intelligence Agency, Testimony before the House Permanent Select

Committee on Intelligence Regarding to the Crash of a C-123 in Nicaragua (1986) 2. The

CIA, while once connected to Southern Air Transport, denied involvement. Id.

186

See Federal Aviation Administration, Fact Sheet on C-123 Shot Down in Nicaragua.

The Air Bridge Denial Program - 151

the FARC and others in Colombia is recognized as a non-international armed

conflict, the fight against drug traffickers is but a law enforcement action with

potential international implications. As such, States’ actions against such

operations are bound only by human rights law, not LOAC.

C. Distress

On 25 October 1999, a Learjet 25 carrying golfer Payne Stewart and

five others lost contact with air traffic controllers and went out of control,

flying aimlessly over the central United States. After drifting for several

hours and being intercepted several times by Air Force and Air National Guard

fighter aircraft, the Learjet ran out of fuel and crashed in rural South Dakota.

187

While all six on board perished, no one on the ground was injured or killed.

This was not the first such scenario.

188

But what if the Payne Stewart aircraft had been projected to crash in,

for example, downtown Des Moines as opposed to a remote field in South

Dakota? Would it be lawful for military interceptors or AAA forces to

terminate such a flight in order to prevent the death of persons on the ground,

even at the cost of the lives of those on board? Under what authority may a

State save lives in a manner that would otherwise violate its international

obligations?

1. The Defense of Distress in International Law

International law recognizes that it may be necessary to deviate from

accepted international norms in order to save lives. The invocation of the

defense of distress allows a deviation from international obligations to save

lives in some circumstances. The defense of distress has been codified in the

Draft Articles on State Responsibility in Article 24.

The wrongfulness of an act of a State not in conformity

with an international obligation of that State is precluded if the

author of the act in question has no other reasonable way, in a

situation of distress, of saving the author's life or the lives of

187

See Doug Mills, Crash Mystery; Jet Carrying Payne Stewart Drifted for Hours, CHICAGO

SUN-TIMES Oct. 26, 1999, at 1.

188

In 1988, an errant Learjet flying from Tennessee to Texas was intercepted by Air Force

fighters after having overflown its destination. It subsequently left U.S. airspace where it

eventually ran out of fuel and crashed into a mountain in Mexico. See ‘Learjet Set’ Shocked by

Crash of Stewart’s Plane: Investigators Don’t Expect the Site to Reveal too Many Clues as to

What Caused the Deaths of the Six on Board, T

HE VANCOUVER SUN, Oct. 27,1999, at A4. In a

similar event, a Vienna to Hamburg flight lost contact with authorities and went out of control,

subsequently being intercepted by RAF fighters over Scotland before it as well ran out of fuel

and crashed in the sea 200 miles off the coast of Iceland. See RAF Chase Over Scotland May

Hold Clue to Stewart Death Flight,” T

HE JOURNAL, Oct. 29, 1999, at 28.

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other persons entrusted to the author's care.

189

The Draft Articles go on to say that the defense of necessity does not apply if

the “situation of distress is due, either alone or in combination with other

factors, to the conduct of the State invoking it; or . . . [if t]he act in question is

likely to create a comparable or greater peril.”

190

Distress as a circumstance precluding international wrongfulness is

recognized as a well-established rule under customary international law. It

was accepted by the tribunal in the Rainbow Warrior Case as a lawful reason

to not comply with international obligations.

191

The tribunal said it applies

when one “acting on behalf of the State knows that if he adopts the conduct

required by the international obligation, he, and the persons entrusted to his

care, will almost inevitably perish.”

192

It should also be noted that the interest

in saving lives as contemplated by this defense is in that which involves an

immediate threat to human life.

193

A speculative or long-term threat would not

suffice.

2. Distress and the Shootdown of Civil Aircraft

If indeed a situation ever presented itself where a foreign civil airliner

poses a threat to persons on the ground, for whatever reason (catastrophic

mechanical failure, crew incapacitation, deliberate misuse) the defense of

distress could be invoked as a justification for destroying the aircraft, even

though it would involve killing all on board. This is even more significant in a

9/11-type scenario. There is no need to determine the nationality of an aircraft

before shooting it down, nor would there be a need or to engage in some

calculation as to whether an attack will be of a certain gravity or will be

committed by the right entity in order to invoke self-defense. All that is

189

Draft Articles, supra note 157.

190

Id., art. 24(2).

191

See Case concerning the difference between New Zealand and France concerning the

interpretation or application of two agreements concluded on July 9, 1986 between the two

States and which related to the problems arising from the Rainbow Warrior Affair, 20 R.I.A.A.

217, 253 (1990) [Rainbow Warrior Case]. The Rainbow Warrior Case resulted from the

sinking of the Rainbow Warrior, while docked in a New Zealand port, by agents of the French

Ministry for External Affairs. The agents were convicted in a New Zealand court and were

sentenced to 10 years confinement. A subsequent international agreement between France and

New Zealand called for them to be confined in French custody on the French island of Hao for

not less than 3 years. A year later, the French evacuated one of the agents to France for urgent

medical treatment that was not available on Hao. New Zealand claimed that France had

breached its international duties under their agreement. See also Commentaries to the Draft

Articles on Responsibility of States for internationally Wrongful Acts 191 (2001) [hereinafter

State Responsibility Commentaries], available at

http://www.un.org/law/ilc/texts/State_responsibility/responsibility_commentaries(e).pdf.

192

Rainbow Warrior Case, supra note 191 at 254.

193

See State Responsibility Commentaries, supra note 191 at 189.

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needed in order to authorize a shootdown on the grounds of the defense of

distress is an immediate threat to human life.

It is important to note the balancing of interests requirement contained

in the use of distress. “Distress can only preclude wrongfulness where the

interests sought to be protected . . . clearly outweigh the other interests at stake

in the circumstances.”

194

Thus, the use of this defense would probably not be

appropriate to justify the shootdown of an aircraft that is likely to crash far

from populated areas, as did the Payne Stewart aircraft, nor would it justify the

shootdown of an airliner carrying hundreds of persons in order to save the lives

of a few on the ground.

195

However, when the threat is immediate enough, the

defense of distress is more important in this area of law than even the law of

self-defense.

The application of distress as a justification for ABDP shootdowns is

troublesome. There is no doubt that stopping the flow of drugs saves lives.

One U.S. general compared the drug trade to WMDs, noting that drugs were

responsible for over 19,000 American deaths annually.

196

The saving of human

lives in general terms has been put forward as a potential justification for the

shootdown of drug trafficking aircraft. However, the saving of lives by the

shootdown of an aircraft carrying drugs is quite likely too speculative and long

term in nature, thus rendering the defense inoperative for ABDP operations.

The identity of those to be saved is completely unknown. While one would not

be required to identify specific persons to be saved in a potential Payne

Stewart-like scenario, one can at least identify citizens of a specific area that

will potentially be saved from the crash of a derelict aircraft. In a drug

trafficking situation, the destination of the drugs cannot even be narrowed

down to a particular continent, and it is not certain that these drugs will result

in any deaths. As the defense is not to be applied liberally, it would appear to

be inapplicable to ABDP operations.

D. State of Necessity

It goes without saying that a State has a vital interest in defending itself

from armed attack, a right enshrined in Article 51 of the UN Charter. But what

about the protection of other vital interests in situations short of an armed

attack? The deviation from international norms, including the prohibition on

194

Id. at 194.

195

One could certainly make an argument that in a situation such as 9/11, the lives of those on

board, while not yet terminated, are all but lost and should not factor into the balancing test. In

a situation where the aircraft is merely having flight control problems and it is not certain that

all on board will be lost, as was the case in the crash of United Flight 232 in Sioux City, Iowa

in 1989, then the lives on board should be factored into the analysis.

196

See Posture Statement of General James T. Hill, United States Army, Commander, United

States Southern Command Before the 108

Congress house Armed Services Committee (2003),

available at http://www.globalsecurity.org/military/library/congress/2004_hr/040401-hill.pdf

[hereinafter Posture Statement of General Hill].

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shooting down civil aircraft, to safeguard essential State interests may be

allowed if it is done in a state of necessity. The doctrine of necessity dates

back centuries

197

but fell into disfavor in the 20

Century, being linked to the

pre-WWI unilateral right to wage war out of necessity. It has since reemerged

in a more benign form, becoming, on a case-by-case basis, an excuse for a

failure to comply with international obligations.

1. The State of Necessity in International Law

As codified in the Draft Articles on State Responsibility, the

requirements for a state of necessity are worded in the negative:

Necessity may not be invoked by a State as a ground for

precluding the wrongfulness of an act not in conformity with an

international obligation of that State unless the act:

(a) Is the only way for the State to safeguard an essential

interest against a grave and imminent peril; and

(b) Does not seriously impair an essential interest of the State or

States towards which the obligation exists, or of the

international community as a whole.

198

In the Gabcikovo-Nagymaros Case, the ICJ took occasion to pass

judgment on the validity of the defense of necessity as provided in the Draft

Articles in a case of non-compliance by Hungary of treaty obligations with

Slovakia concerning the construction and operation of the Gabcíkovo-

Nagymaros system of locks on the Danube River. The ICJ held that the

defense of necessity does indeed exist in customary international law.

199

The

court recognized that by invoking a state of necessity, or presumably any other

circumstance precluding wrongfulness, a State implies that, absent a state of

necessity, its conduct would be wrongful.

200

A State does not argue that the

international obligation no longer exists, merely that the violation is excused in

that situation. In the Gabcikovo-Nagymaros Case, the court denied the

application of the defense under the facts of the case, mainly because the

imminent peril, the threat to the environment, proffered by Hungary remained

uncertain.

201

197

See JOHN TAYLOR MURCHISON, THE CONTIGUOUS AIR SPACE ZONE IN INTERNATIONAL LAW

60 (1955).

198

Draft Articles of State Responsibility, supra note 157, art. 25.

199

See Gabcikovo-Nagymaros Case, supra note 152, para. 51.

200

See id., para. 48.

201

Gabcikovo-Nagymaros Case, supra note 152, para. 55. While the Gabcikovo-Nagymaros

Case has little to do factually with the use of force against civil aircraft, a recent case out of the

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2. Elements of Necessity

Mindful of the danger posed by the potential use of necessity, the

burden is placed on the State claiming such a circumstance to make out the

appropriate elements. The first requirement is that the deviation from

international standards must be the only way to protect an essential interest.

What is an essential interest? “It has been invoked to protect a wide variety of

interests, including safeguarding the environment, preserving the very

existence of the State and its people in time of public emergency and ensuring

the safety of a civilian population.”

202

Also, the defense has been invoked in

several instances to justify the use of force against another State in the post-

Charter era.

203

Additionally, Tanzania, Jordan and Macedonia have all

eschewed obligations under the Refugee Convention by closing their borders

to would-be refugees under a state of necessity defense in order to protect their

International Tribunal for the Law of the Sea (ITLOS) does bear some factual resemblance to

the issue at hand. In the case of the M/V “Saiga,” a St. Vincent-registered ship was attacked

by Guinean patrol boats in the outer fringes of the Guinean exclusive economic zone (EEZ),

resulting in the wounding of two crewmen, the arrest of the ship, and the detention of

crewmembers. The M/V Saiga, 38 I.L.M. 1323, 1335 (Int’l Trib. L. Sea 1999). When St.

Vincent sought relief at the ITLOS, Guinea pleaded necessity, justifying its need to extend its

customs laws into its EEZ to prevent the Saiga from “offshore bunkering” (refueling

operations conducted from a ship off shore), which it perceived as a threat to its vital interests.

See id. While accepting necessity as a circumstance that could preclude international

wrongfulness, the court held that Guinea was not acting under a state of necessity and had no

excuse not to comply with UNCLOS. There was no evidence that the “bunkering” by the

Saiga was placing the essential interests of Guinea in grave and imminent peril. See id. at

1335.

202

State Responsibility Commentaries, supra note 191 at 202.

203

Belgium used the defense to justify its 1960 intervention in the Congo, as well as in the

Coalition intervention in post-war Northern Iraq to protect the Kurds in 1991. See Andreas

Laursen, The Use of Force and (the State of) Necessity, 37 VAND. J. TRANSNAT’L L. 485, 514-

15 (2004) [hereinafter State of Necessity]. More recently, Belgium invoked the defense to

justify the use of force against Kosovo as part of Operation Allied Force in 1999 to protect

Kosovar Albanians from Genocide. See id. at 514-518. Under a recent ICJ decision, it is

questionable whether the claim of essential interests could ever be used, in the absence of an

armed attack, to justify a violation of Article 2(4) of the UN Charter. See Oil Platforms, supra

note 167 para. 40. It has also been determined to be appropriate for use in several more minor

uses of armed force. For example, the British bombed an abandoned Liberian-flagged vessel,

the Torrey Canyon, outside British waters to prevent the spilling of oil. See State

Responsibility Commentaries, supra note 191 at 199. In another case involving the use of

force against a ship at sea, the French Navy sank the Ammersee, a civilian cargo vessel that

was 25 miles off the French coast, after the ship, loaded with 200 tons of dynamite, caught fire

in a storm and was abandoned by the crew. When the owners sought compensation in a

French court, the court held that there had been no violation of international law because of the

“grave and imminent danger” posed by the ship, and of the fact that “no other measure would

have been sufficient to remove the danger.” See State of Necessity, supra note 203 at 495-96,

quoting Nochfolger Navigation Company Ltd. And Others, 89 I

NT’L L. REP. 3, 3-5 (1987).

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countries from the devastating effect of the massive influx of refugees.

204

has also been used to justify the assumption of jurisdiction over persons of

other States in circumstances involved a threat to the security of the State, such

as counterfeiting currency and plotting against the rulers. Almost anything that

is “self-destructive” to the State can be held to be an essential interest. While

an essential interest must be of an exceptional nature,

205

it need not be linked

with the very survival of the State.

206

It can involve lesser interests, as

determined by the circumstances of the case.

207

Of course these lesser interests

would not justify the avoidance of every international obligation, especially

certain critical ones. As will be seen in the last requirement, the essential

interest must be subject to a balancing test in relation to the obligation that is

breached.

Not only must the State be protecting an essential interest, but the

danger posed to that interest must be a grave and imminent peril. There are no

specifics as to what “grave and imminent peril” means. “The peril has to be

objectively established and not merely apprehended as possible.”

208

This does

not mean that the actual consequence must be at the imminent doorstep of a

State.

209

This test put forth by the court seems to allow for some degree of

preemption on the part of the State in invoking necessity. However, the threat

must be identifiable, even if remote in time.

As a final element in the invocation of the defense, the breach of the

international obligation must not involve an impairment of the essential

interests of other States or the international community as a whole. This

element creates a balancing test under which the interest sought to be protected

“must outweigh all other considerations, not merely from the point of view of

the acting State but on a reasonable assessment of the competing interests

….”

210

While it is up to the State making out the defense to establish that the

balancing test weighs in its favor, it must be noted that the ICJ has recognized

that the individual State putting forth the defense will not be the sole judge of

204

See Roman Boed, State of Necessity as a Justification for Internationally Wrongful

Conduct, 3 Y

ALE H.R. & DEV. L.J. 1, 4 (2000) [hereinafter State of Necessity].

205

State of Necessity”, supra note 204 at 15.

206

See Gabcikovo-Nagymaros Case, supra note 152, para. 53. “Although a link between

preservation of a State’s very existence and the plea of necessity as an excuse for

noncompliance with an international obligation of the State has been intimated in several

cases, the predominant trend . . . is to expand the notion of necessity to cover ‘essential

interests’ other than threats to a State’s very existence.” State of Necessity, supra note 204 at

10.

207

Interests at the lesser end of the spectrum have included the protection of the fur seal

population, which led the Russians to unilaterally halt fur sealing on the high seas. See State

Responsibility Commentaries, supra note 191 at 197. Canada used it in a similar situation to

prevent the extinction of fish off the Grand Banks, even boarding a Spanish fishing ship on the

high seas to enforce the ban. See id. at 200.

208

Id. at 202.

209

Gabcikovo-Nagymaros Case, supra note 152, para. 54.

210

State Responsibility Commentaries, supra note 191 at 204.

The Air Bridge Denial Program - 157

whether the element has been met.

3. The Shootdown of Civil Aircraft in a State of Necessity

The idea of using a state of necessity defense to justify the shootdown

of drug trafficking aircraft in South America has not been advanced before, but

the basic idea behind it is not new. During the debates on the 1994 ABDP

immunity amendment, Senator Sam Nunn stated that there was to be found in

international law a “national security” exception that would justify the

shootdowns.

211

The protection of national security would seem to be the

precise type of essential interest that a State could protect from a grave and

imminent peril, as envisioned under the defense. The use of necessity could

very well be applicable as a justification for ABDP-style shootdown operations

under certain circumstances.

It has been observed that “Rome succumbed [partially] to . . . a death of

a thousand cuts from various barbarian groups.”

212

Such is the situation in

Colombia and Peru with the drug traffickers. While each cut inflicted by these

groups might not be, in and of itself, enough to justify self-defense under

Article 51, the cumulative effect has disastrous implications for the State. The

defense of necessity operates to allow States the right to protect their essential

interests without requiring that the underlying international obligation to be

violated be rendered null and void. While some would argue that such an

invocation of necessity would weaken the international system, it could, in

reality, strengthen it, serving as a natural pressure release for States when they

cannot comply with international obligations because of great risk to

themselves, yet have no desire to do away with the entire legal framework. It

is therefore necessary to apply the elements of necessity to the facts of ABDP

shootdowns to determine if this defense is available in these cases.

First and foremost, we must determine whether there is an essential

interest that is threatened by a grave and imminent peril. The protection of

internal order and security can be an essential interest protected under a claim

of necessity, and the maintenance of internal security is certainly one interest

that is threatened by the activities of the drug trade. Evidence of this fact is

abundant. Simply put, drugs are the mother’s milk of terrorism and insurgency

in South America. All insurgent groups in Colombia depend on drugs,

213

and

Colombian drug lords have what has been characterized as a “stranglehold on

211

See CONG. REC. S8222 (July 1, 1994).

212

Joseph Nye, The New Rome Meets the New Barbarians, THE ECONOMIST, Mar. 23, 2002, at

25.

213

See DEPARTMENT OF STATE, INTERNATIONAL NARCOTICS CONTROL STRATEGY REPORT II-

3 (2002), available at http://www.state.gov/g/inl/rls/nrcrpt/2002/pdf/ [hereinafter INCSP

2002].

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the power of Colombia’s government.”

214

The drug trade finances corruption

and lawlessness in numerous remote growing regions.

215

These threats spread beyond Colombia into the whole Andean Region.

“The narcoterrorist organizations operating primarily out of Colombia are

spreading their reach throughout the region, wreaking havoc, and destabilizing

legitimate governments.”

216

One example is Peru. The Anti-Peruvian SL is

supported by drug operations.

217

Despite being beaten back during President

Fujimori’s rule, the SL has recently reemerged, mainly due to the funding

provided by the drug trade.

218

The threat to these States’ essential interest of

maintaining internal order posed by drug trafficking goes beyond drugs. The

air bridge used by drug trafficking aircraft is the same as that used by weapons

traffickers, whose actions stoke the fires of civil war.

219

In addition, the

suppliers of drugs threaten the populations of these countries through crimes

such as kidnappings, murder and other illicit activities throughout South

America.

220

Much of the drug trafficking in South America is linked to

international terrorism, including Islamic terrorists in South America’s tri-

border region.

221

Other countries feel the effects as well. Caribbean

governments have compared the drug problem to that of military repression.

222

Beyond national security issues, damage to the environment is also a

notable consequence of drug trafficking activities. “Narcotraffickers are by far

the biggest source of environmental damage in Colombia.”

223

In their attacks

on oil pipelines, drug-fueled terrorists have spilled oil in amounts reaching 12

times that spilled by the Exxon Valdez,

224

and they are responsible for 2.4

million hectares of rain forest destruction.

225

Simply put, the effects of drug trafficking on the States of this region

are an attack on the legitimate sovereign governments themselves.

226

The

cumulative effect of the damage being done by drug traffickers appears to be

the exact type of situation that requires a State to deviate from international

law in order to protect its essential interests. The threat posed by drug

214

CarrieLyn Donigan Guymon, International Legal Mechanisms for Combating

Transnational Organized Crime: The Need for a Multilateral Convention, 18 B

ERKELEY J.

INT’L L. 53 at 59 (2000) [hereinafter Transnational Organized Crime].

215

See DETERRENCE EFFECTS, supra note 7 at 5.

216

Posture Statement of General Hill, supra note 196 at 5-6.

217

See DETERRENCE EFFECTS, supra note 7 at II-7.

218

See Posture Statement of General Hill, supra note 196 at 8. Before its first demise, the SL

used drugs to finance a war that killed 30,000 people. See INCSP

2002, supra note 213 at II-4.

219

See Posture Statement of General Hill, supra note 196 at 9.

220

See Posture Statement of General Hill, supra note 196 at 7.

221

See Hale E. Sheppard, U.S. Actions to Freeze Assets of Terrorism: Manifest and Latent

Implications for Latin America, 17 A

M. U. INT’L L. REV. 625 at 630-31(2002).

222

See Coast Guard Use of Force, supra note 155 at 363.

223

2002 SENATE TRIP REPORT, supra note 180 at 3.

224

See Posture Statement of General Hill, supra note 196 at 8.

225

See 2002 SENATE TRIP REPORT, supra note 180 at 3.

226

See Transnational Organized Crime, supra note 214 at 64.

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trafficking goes far beyond the ICJ’s requirements regarding the establishment

of the threat. The threat to the national security of these countries is real and

present, and the legitimate governments in this region are under assault.

While a strong case can be made that drug trafficking is, across the

board, a grave and imminent peril to the essential interests in maintaining

internal security of these South American countries, a much more limited case

can be made that the shootdown of trafficking aircraft is the only way to

protect that interest. As was noted by an American Coast Guard officer,

deadly force is rarely required in the interdiction of drug traffickers.

227

We can

establish that the shootdown of civil aircraft trafficking in drugs is certainly

one way to put a halt to drug trafficking activities and to protect the vital

interests of a State.

228

But while shootdowns are one way to halt the drug trade,

are they, as is required under the defense of necessity, the only way?

229

There are lesser available means of dealing with drug traffickers other

than the resort to using weapons against aircraft in flight. One of these

includes forcing the aircraft to land, although this is dependent on the pilot’s

willingness to comply. Another option could be the use of specially trained

counter-drug forces to conduct raids at their points of embarkation and

arrival.

230

However, such lesser means have not proven effective in Colombian

and Peru. “With enough time and resources, there are risks that traffickers will

find ways around static blockades or the initial tactical plans being

executed.”

231

In addition to the ability of the traffickers to find ways around

the lesser means, the lack of effective control over territory is a major factor

227

See Michael T. Cunningham, The Military’s Involvement in Law Enforcement: The Threat

is Not What You Think, 26 Seattle U.L. Rev. 699, 715 (2003).

228

“Illegal flights by general aviation aircraft are the lifeline of the traffickers operations.

They move narcotics and related contraband, such as chemicals, currency, and weapons … as

they ferry logistical supplies to production sites and staging areas.” Presidential Justification

Memo, supra note 26 at 1. Shootdown operations are closely followed by traffickers, and

these operations have a dramatic effect on their actions. Even a short stand down in the ABDP

in November 1995 caused an immediate increase in drug flights. See D

ETERRENCE EFFECTS,

supra note 7 at IV-44.

229

An example of using lesser means than using force against an aircraft is seen in the French

response to the use of aircraft in a string of jailbreaks. To thwart attempted breakouts using

helicopters, the French officials simply installed mesh coverings over jails where the most

dangerous prisoners were held. See France Announces Measures to Prevent Prison Escapes,

ASSOCIATED PRESS WORLDSTREAM, Oct. 18 2001, LEXIS, News Library. This plan

ultimately met with failure as criminals began cutting through the meshing and a second string

of prison escapes was soon underway. See Chopper Key to Jailbreak, NATIONWIDE NEWS PTY

LIMITED, MX, Apr. 15, 2003, at 8, LEXIS, News Library.

230

In Mexico, with the use of U.S.-provided helicopters, such assault forces do indeed conduct

raids on suspected drug trafficking bases, and Mexico conducts no shootdown operations. See

ENERAL ACCOUNTING OFFICE, REVISED DRUG INTERDICTION APPROACH IS NEEDED IN

MEXICO 19 (1993).

231

DETERRENCE EFFECTS, supra note 7 at 49.

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that hampers the use of lesser means of controlling drug flights.

232

In South

America, Coca production purposefully clusters in areas that have poor

infrastructure with the intention of avoiding governmental authorities.

233

This

lack of control over certain critical territory that is closely linked with the drug

lords is the key point as to why shootdown operations may indeed be the only

way to stop the flow of drugs out of these countries. Raids are almost out of

the question. The drug traffickers can land and off-load their drug cargo in 10

minutes.

234

Even if raids were logistically possible, it would be suicide for a

government to send small raiding parties into rebel-controlled areas to attack a

clandestine airfield or production site.

The unique facts of the drug trade in South America make for a strong

argument that the use of shootdown operations is indeed the only way for

governmental forces to control the effects of the drug trade. However, as the

facts are unique to this area, this analysis should not be extended to other areas

in the world in which drugs are a problem without a close examination of the

facts to determine whether the shootdown of aircraft is the only way to deal

with the problem.

In the balancing of interests, the available facts seem to weigh in favor

of allowing countries to engage in shootdown operations under a claim of

necessity, at least as far the Andean example shows. In this situation, the

obvious interest of both individual States and the world as a whole is the safety

of international civil aviation. The implementation of a “free-fire zone” over

Colombia or Peru would threaten international civil aviation to such a degree

that other States would find it intolerable, regardless of the threat posed to

these countries by drug trafficking. The degree to which Colombia and Peru

can control the threat to the safety of international civil aviation will determine

the amount of support that their policies receive from other States.

The threat to international civil aviation comes when countries

engaging in shootdown operations are unable to adequately protect all

international flights from being accidentally shot down. In addition to the

steps that are needed to ensure the proper identification of target aircraft in

order to keep the operation in compliance with human rights norms, several

steps can be taken to ensure that other States are aware of the threat and can

take action to protect their flights that might enter countries engaged in ABDP

shootdowns. First, as is already a part of ABDP operations, countries

engaging in a shootdown campaign should limit the operations to specific

232

See INCSP 2002, supra note 213 at II-4. “[T]he Government of Peru lacks the resources to

control all of its airspace and to respond when trafficker aircraft land at remote locations

outside the effective control of the government. Accordingly, drug smuggling aircraft

flagrantly defy Peru’s sovereignty, penetrating its boarders at will and flying freely through the

country.” Presidential Justification Memo, supra note 26 at 1.

233

See DETERRENCE EFFECTS, supra note 7 at ES-2.

234

See Colombia Angered by U.S. Action; End of Data-Sharing Seen as harming Drug War,

ALLAS MORNING NEWS, May 28, 1994, at 1A.

The Air Bridge Denial Program - 161

zones of high drug trafficking activity, as opposed to extending them to the

entire country. For example, not every foreign flight in Peru is under the threat

of shootdown as soon as it crosses the boarder into Peru. Only aircraft flying

in a specifically designated and publicly declared Air Defense Identification

Zone (ADIZ) without a flight plan are targeted.

235

Countries could also issue

notices to airmen (NOTAMs) or use an Article 89 declaration to properly warn

foreigners that such an operation is underway and that all foreign aircraft

should stay clear or be prepared to engage in specifically issued governmental

directives to avoid being targeted. States should also be sure to limit

shootdown operations to general aviation type aircraft. Larger aircraft, such as

727s, have been used to ferry drugs;

236

however, such larger aircraft, with their

need for longer runways and more ground equipment, are more easily tracked

to a known ground destination, making shootdown operations less necessary.

As most foreign aircraft will be larger commercial-style aircraft and not

general aviation, this will help prevent the accidental shootdown of a foreign

civil aircraft. The shootdown of commercial aircraft would likely never meet

the balancing test required under necessity and any shootdown of such an

aircraft would almost certainly have to rely on self-defense or distress in times

of peace.

Strangely enough, the shootdown of drug trafficking aircraft might

even make civil air transportation safer. After all, the main goal of the whole

program is not to shoot down aircraft, but rather to make sure that the aircraft

do not fly at all.

237

These shootdown operations have proven to cause drug

traffickers to move to truck and boat transport, thus keeping drug trafficking

aircraft out of the sky. Keeping unmarked, unregistered, and uninspected

aircraft, along with their potentially unlicensed and untrained pilots, out of the

sky can only make aviation safer. A large number of shootdowns would not be

needed to achieve this goal. It has been noted that “[d]eterrence amplifies the

effect of a modest number of interdictions by discouraging the great majority

of air trafficker pilots from flying; thus, a relatively low level of air interdiction

can virtually deny traffickers this essential mode of transport.”

238

Studies have

shown that a 3% interdiction rate will deter 80% of all traffic.

239

The shootdown of civil aircraft, while potentially being a threat to

international civil aviation, can also be seen as an attempt by these countries to

fulfill their international duties. If a State has knowledge that its territory is

235

See STATE DEPARTMENT PERU REPORT, supra note 7.

236

See Coast Guard and Maritime Transportation Drugs and Addiction, FEDERAL DOCUMENT

CLEARING HOUSE, Aug. 1995, LEXIS, News Library (Lee P. Brown, Director ONDCP,

Testimony before House Committee on Transportation and Infrastructure Subcommittee on

Coast Guard and Maritime Transportation).

237

See DETERRENCE EFFECTS, supra note 7 at 17.

238

Id. at ES-3.

239

See id. at 20. In the same study, interviews with trafficker pilots who had been caught

revealed that a 10% chance of being caught would deter almost all of them from flying. Id. at

21.

162-The Air Force Law Review

being used for acts that are hostile to other countries, international law requires

that the State take some action to put a stop to such acts.

240

The drug

trafficking emanating from the Andean Region is certainly a threat, not only to

those countries but also the United States. Over a decade ago, the White

House realized that “the operation of internationally criminal narcotics

syndicates is a national security threat requiring an extraordinary and

coordinated response by civilian and military agencies . . . .”

241

Even a small

number of flights can have a huge impact. Sixty flights a month can carry 80%

of the coca needed to supply the U.S.

242

This is also a problem that effects the

world. There have been a number of UN and ICAO initiatives to stop the flow

of drugs by air.

243

Thus, these shootdown operations, while protecting the host

States, are also protecting the rest of the world from the adverse effects of the

flow of drugs out of these countries. This is another factor that helps to place

the balance of interests in favor of a limited shootdown operation in South

America under a necessity analysis, and that provides a potential legal

justification for ABDP shootdowns using a necessity defense.

V. OTHER ISSUES RELATING TO ABDP OPERATIONS

In using State security as an excuse for the shootdown of civil

aircraft under international law we must not be too hasty to lower the bar for

all shootdown operations. International law does not evolve in a vacuum, and

other States are likely to see the ABDP as an opportunity to loosen the legal

requirements as well if they too desire to shoot down civil aircraft, for

whatever reason. This warning was sounded in the U.S. Senate in 1994:

[B]y creating a national security exception to the international

prohibition on the use of force against civil aircraft, the United

States will open the door for other countries to do the same. We

should not forget that in 1983 the Soviets justified the shooting

down of Korean Airlines Flight 007 on national security

grounds . . . .

244

The expansion of ABDP-style operations could take two forms. One

could involve the shootdown of drug trafficking aircraft in other parts of the

world, outside the Andean Region, as drugs are also a national security threat

240

See Justin S. C. Mellor, Missing the Boat: The Legal and Practical Problems of the

Prevention of Maritime Terrorism, 18 A

M. U. INT’L L. REV. 341, 373 (2002).

241

Statement by the White House Press Secretary, Nov. 3, 1999, available at

http://www.fas.org/irp/offdocs/pdd14.htm.

242

See DETERRENCE EFFECTS, supra note 7 at ES-2.

243

See generally, R.I.R. Abeyratne, International Initiatives at Controlling the Illicit

Transportation of Narcotic Drugs by Air, 63 J.

AIR L. & COM. 289 (1997).

244

140 CONG. REC. 12785 (Sept 12, 1994) (Statement of Sen. Kassebaum).

The Air Bridge Denial Program - 163

in other parts of the world. For example, heroin has financed the Taliban,

245

and terrorists in Asia.

246

Even the organization that could be said to be the

greatest threat to the free world, al-Qaeda, has used heroin to finance its

operations.

247

Many of these terrorist organizations are large enough to control

some territory. This has possible implications in the war on terror; because the

United States has placed a priority on disrupting terrorist financing, any of

these areas could see an implementation of an ABDP-style operation as part of

counter-terrorist operations.

In a second morphing of ABDP-style operations, shootdown operations

could be authorized to target aircraft carrying other contraband that is seen as a

threat to national security. For example, diamonds serve the same function as

drugs in some areas, fueling conflicts and funding belligerents in such African

countries as Sierra Leone and Angola,

248

and they have also been reported to

have financed al-Qaeda.

249

Could a similar plan be implemented against

diamond trafficking aircraft?

Weapons trafficking could also be the target. Secretary of Defense

Rumsfeld has already indicated a belief that the ABDP will include weapons as

well as drugs.

250

The U.S. has examined the possibility of conducting

interdiction operations to stop WMD, which could include some form of aerial

blockade in certain places.

251

In fact, the Bush Administration recently

announced the creation of the Proliferation Security Initiative (PSI). The PSI

is a multilateral effort to interdict WMDs through the search of ships and

planes that might contain illegal weapons and missile technologies.

252

One of

the actions to which PSI States have committed is to “require suspicious

aircraft in their airspace to land for inspection.”

253

If such a landing cannot be

compelled, is the destruction of the aircraft in flight on the table?

While we can see that the international support of ABDP shootdowns

may result in the potential spread of shootdown operations to other areas, we

must in each instance remember to apply international law as put forth here to

the analysis. Some might meet the criteria and be permissible, and some might

not. For example, while drugs might be a serious problem in other parts of the

245

See INCSP 2002, supra note 213 at II-3.

246

See GENERAL ACCOUNTING OFFICE, TERRORIST FINANCING: U.S. AGENCIES SHOULD

SYSTEMICALLY ASSESS TERRORISTS’ USE OF ALTERNATE FINANCING MECHANISMS 11(2003).

247

See id.

248

See CONGRESSIONAL RESEARCH SERVICE, DIAMONDS AND CONFLICT: BACKGROUND,

POLICY, AND LEGISLATION 2 (2003).

249

See id. at 7.

250

“We understand these interdiction flights would not only fight drugs but also will be

extended to illegal weapons.” Rumsfeld-Ramirez News Conference, supra note 154.

251

See CONGRESSIONAL RESEARCH SERVICE, WEAPONS OF MASS DESTRUCTION

COUNTERPROLIFERATION: LEGAL ISSUES FOR SHIPS AND AIRCRAFT 25 (2003).

252

See generally Sean D. Murphy, ed., Contemporary Practice of the United States Relating

to International Law, 98 A

M. J. INT’L .L. 355.

253

Id.

164-The Air Force Law Review

world, those places might offer better access to ground interdiction than do

Colombia and Peru, thus allowing for other possibilities, short of the

shootdown of civil aircraft. One must not circumvent the analysis and declare

planned operations illegal merely because the shootdown of civil aircraft is

involved, or declare similar operations legal simply because the shootdown of

civil aircraft is permissible in ABDP operations. Each situation must be

evaluated in terms of the facts at hand.

Beyond the potential unintended expansion of civil aircraft

shootdowns, one must also be mindful of the hidden danger for ABDP

operations that is to be found at the intersection of international and domestic

law. The Montreal Convention

254

was drafted to create what would amount to

universal jurisdiction over persons engaging in a number of unlawful acts

involving civil aviation, including the destruction of aircraft. While the treaty

creates no new laws, it obligates States to enact a domestic system that will

allow for jurisdiction over persons guilty of such offenses, wherever

committed, and enact a “prosecute or extradite” policy. This was implemented

in U.S. law as the Air Sabotage Act of 1984,

255

enacted partly in response to

the KAL 007 shootdown.

While international law lacks teeth, especially when dealing with

individual perpetrators, domestic law does not. Domestic law was recently

applied in a shootdown case. In August 2003, Brigadier General Ruben

Martinez Puente, the head of Cuba’s Air Force, and two MiG-29 pilots were

indicted in a U.S. District Court on charges of murder, conspiracy, and

destruction of aircraft.

256

Many wanted Castro indicted as well. The use of

domestic law against perpetrators of aerial incidents is not new.

257

A former Clinton advisor on Cuba called the indictments of the Cuban

pilots politically motivated.

258

While this may or may not be true, it certainly

leads one to question the possibility of a State indicting pilots, or others aiding

pilots, who shoot down civil aircraft in another country. If it is possible for the

U.S. to do it in the BTTR case, it is possible for another State to do it in the

case of ABDP shootdowns, should a State be displeased enough with the

operations to engage in such an act. In the implementation of shootdown

254

Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil

Aviation, Sept. 23, 1971, 24 UST 564, 974 UNTS 177.

255

See Marian Nash Leich, Four Bills Proposed By President Reagan to Counter Terrorism,

78 A

M .J. INT’L L. 915, 920 (1984).

256

See Cuban Airmen Indicted on Charges of murder, conspiracy, and destruction of aircraft,

HE WASHINGTON POST, Aug. 22, 2003, at A03, LEXIS, News Library. See also, FBI

Statement on BTTR Indictments, supra, note 122.

257

Some years ago, China used its domestic law against aerial intrusion and threats against

national security to convict four U.S. Air Force officers whose aircraft had strayed into

Chinese airspace. They were sentenced to deportation and their aircraft was confiscated. See

Oliver J. Lissitzyn, Judicial Decisions, 50 Am .J. Int’l L. 431, 442 (1956).

258

See U.S. Indicts Three Cubans in ’96 Shootdown, FORT LAUDERDALE SUN-SENTINEL, Aug.

22, 2003, at 1A, LEXIS, News Library.

The Air Bridge Denial Program - 165

operations, one must keep an eye on the foreign domestic law that is or may be

implemented under the Montreal Convention.

VI. CONCLUSION

Two things are needed in the law when it comes to the shootdown of

civil aircraft. The first is the need to protect civil aircraft in flight. It would be

nice, in a perfect world, to flatly prohibit such uses of force and be done with

the issue; however, a policy of employing an across-the-board prohibition on

the use of force against civilian aircraft is doomed to fail, even if it allows for

shootdowns in self-defense. Any time a line such as self-defense is drawn,

hostile forces will seek a way to circumvent it, which would negate the second

requirement, the need to allow States a measure of action to protect their

essential interests. This would necessitate either moving the line or doing

away with the norm altogether. Such is the beauty of using the defenses

offered by international law to justify an otherwise solid rule that weapons will

not be used against civil aviation in flight. It permits the norm to stay intact

while allowing for a case-by-case analysis of possible exceptions to the rule.

The use of the defenses outlined above would allow that norm to stay intact

and to meet the security needs of States. In particular, the use of the defense of

necessity is by far the strongest argument to be made for the international

legality of ABDP shootdowns, without a corresponding lessening of the

protections accorded to international civil aviation. For their own protection

and for the protection of countries around the world, international law should

recognize the legality of ABDP shootdowns conducted in the Andean Region.

166-The Air Force Law Review

DOING BUSINESS WITH THE DEVIL: THE

CHALLENGES OF PROSECUTING

CORPORATE OFFICIALS WHOSE BUSINESS

TRANSACTIONS FACILITATE WAR CRIMES

AND CRIMES AGAINST HUMANITY

KYLE REX JACOBSON*

If you want to indict industrialists who helped to rearm Germany,

you will have to indict your own too. The Opel Werke, for

instance, who did nothing but war production, were owned by your

General Motors.—No, that is no way to go about it. You cannot

indict industrialists.

—Hjalmer Horace Greeley Schacht, major war

crimes defendant at the International

Military Tribunal at Nuremberg

I. INTRODUCTION

When the chief prosecutor of the International Criminal Court (ICC), Luis

Moreno Ocampo, signaled that persons involved in the trade of “blood diamonds”

may be subject to charges of complicity in war crimes and genocide,

at least one

reader of the ABA Journal cried foul: “Doesn't the ICC have any sense of the

foundations of criminal law: a legitimate definition of the proscribed act, mens

rea, and conscious and deliberate action? The sort of arbitrary, unlimited liability

nonsense espoused by prosecutor Luis

Ocampo is sufficient to reject the ICC and

* Major Kyle R. Jacobson (B.S., Texas A&M University, J.D., Georgetown University Law

Center, LL.M., International and Comparative Law, The George Washington University) is

presently assigned as the Staff Judge Advocate, 470th Air Base Squadron, Geilenkirchen NATO

Air Base, Federal Republic of Germany. This article was submitted in partial completion of the

requirements of the Master of Laws program at the The George Washington University.

G.M. GILBERT, NUREMBERG DIARY 430 (1947). Before his acquittal, Schacht “was being

interrogated for information on the German industrialists to be indicted in the next [war crimes]

trial,” and made this comment to Dr. Gilbert afterwards. Id. Dr. Gilbert had incredible access to

Schacht and the other major war crimes defendants in his role as the prison psychologist in the

Nuremberg detention facility. Id. at 3.

James Podgers, Corporations in Line of Fire, A.B.A. J., Jan. 2004, at 13, 13. The article

reported that Mr. Ocampo suggested that “[i]f, for instance, companies that are engaged in trade of

natural resources from the Congo feed money into rebel forces or the government that allows them

to continue the fighting, then it is possible that officials of those companies be prosecuted.” Id.

Challenges of Prosecuting Corporate Officials-167

its jurisdiction out of hand.”

Mr. Ocampo’s statements have been a bit more

guarded than the summary in the ABA Journal: “If they received diamonds and

knew that the people delivering them were getting them because of genocide then

they could well be part of the crime.”

But the dilemma remains: at what point should a corporate official be held

liable for facilitation of the four core international crimes—war crimes, crimes

against humanity, genocide or wars of aggression

—when his or her central

motive is to make a profit? And should that determination also account for the

great harm that can be caused by the amoral decision making of corporations?

James F. Blackstock, ICC Prosecutor Goes Too Far, A.B.A. J., Mar. 2004, at 10, 10 (letter to the

editor).

BBC News, Firms Face “Blood Diamond” Probe (Sept. 23, 2003), available at

http://news.bbc.co.uk/go/pr/-/1/hi/business/3133108.stm.

These four types of crimes are ones that are generally considered proper subjects of international

criminal tribunals. See, e.g., the Rome Statute of the International Criminal Court, July 17, 1998,

art. 5, U.N. Doc. A/CONF.1839/9. The laws captured by the terms, “law of war” and “law of

armed conflict,” the violations of which are considered war crimes, are often considered to fall

within the rubric of “international humanitarian law.” See, e.g., Theodor Meron, The

Humanization of Humanitarian Law, 94 A

M. J. INTL. L. 239, 239 (2000); Louise Doswald-Beck

and Sylvain Vité

, International Humanitarian Law and Human Rights Law, INT’L REV. OF THE

RED CROSS, Apr. 1993, at 94, 94. Crimes against humanity, while potentially occurring during an

armed conflict, need no nexus with armed conflict. Id. at 253, 263-64. Although genocide is an

international crime that has special significance, it nonetheless falls within the rubric of a crime

against humanity. See, e.g., Ronald C. Slye, Apartheid as a

Crime against Humanity: A

Submission to the South African Truth and Reconciliation Commission, 20 M

ICH. J. INT'L L. 267,

296-97 (1999). The title to this article thus is intended to include genocide as subject matter as

well.

While the four crimes listed are the ones that are subject to adjudication by tribunals, they are

certainly not the only international crimes. There are other universal crimes, like piracy, that

ordinarily have no connection to armed conflict. One manageable—but still not fully satisfying—

term that has been used to describe these four types of crimes is “core crimes.” See John F.

Murphy, Civil Liability for the Commission of International Crimes as an Alternative to Criminal

Prosecution, 12 H

ARV. HUM. RTS. J. 1 (1999). For the sake of simplicity, terms like “core

international crimes,” “serious international crimes” and “tribunal crimes” will be used throughout

this article.

Professor Beth Stephens has explained the consequences of the profit motive:

Profit-maximization, if not the only goal of all business activity, is certainly

central to the endeavor. And the pursuit of profit is, by definition, an amoral

goal—not necessarily immoral, but rather morally neutral. An individual or

business will achieve the highest level of profit by weighing all decisions

according to a self-serving economic scale. Large corporations magnify the

consequences of the amoral profit motive. Multiple layers of control and

ownership insulate individuals from a sense of responsibility for corporate

actions. The enormous power of multinational corporations enables them to

inflict greater harms, while their economic and political clout renders them

difficult to regulate.

Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20

BERKELEY J. INTL. L. 45, 46 (2002).

168-The Air Force Law Review

If one doesn’t ordinarily think of businessmen and businesswomen as war

criminals, such a prosecution is not without precedent. Even though concerns

about corporate involvement in wars and in international crimes are not new,

history shows that prosecution is difficult when the acts forming the basis of the

charges are the corporation’s everyday acts of commerce with persons who also

commit core international crimes. Part of the hesitance to prosecute people for

just “doing business” is the difficulty that “aggressive pursuit of accomplices . . .

may reach so far into the realm of ordinary and ‘legitimate’ commercial activity.”

Although prosecution is feasible when corporate officials supply a means or

instrumentality while knowing it will be used to commit a crime, it is far more

difficult to criminalize the conduct of a corporate official whose business

transactions provide criminals with funds or multipurpose goods. Both to deter

facilitation of crimes and to provide proper notice of criminality, this paper

proposes that future prosecutions be based on a decision regarding, or notice of,

criminality given by the United Nations Security Council or other authoritative

international body, rather than at the initiation of the ICC prosecutor

II. HISTORICAL PRECEDENTS—POST-WORLD WAR II CASES

In order to understand how successful modern prosecutions against

corporate officials might be, it is best to first look at the circumstances under

which business or corporate officials

were convicted in the past. It is also helpful

to understand the general principles of accessory liability as determined by

international tribunals.

A. The Trial of Major German War Criminals before the

International Military Tribunal at Nürnberg

It is hard to overstate the significance of the strengthening of international

humanitarian law that resulted from the charter and judgment of the International

Military Tribunal.

There was a general failure to bring war criminals to justice

See George Wald, Corporate Responsibility for War Crimes, 15 N.Y. REV. OF BOOKS, July 2,

1970, at 4 (suggesting that Dow Chemical Corporation should be prosecuted for supplying napalm

to U.S. forces fighting in the Vietnam conflict).

William A. Schabas, Enforcing International Humanitarian Law: Catching the Accomplices,

NT’L REV. OF THE RED CROSS, June 2001, at 439, 451.

In this article at least, there is no distinction between the terms “corporations” and “businesses”

when discussing officials of those organizations.

This is the German spelling for the name of this German city, but it has also been spelled

“Nuernberg” and “Nuremberg” in post-World War II legal documents. A similar change in

spelling can be seen in Hermann Göring’s last name.

The International Military Tribunal presided over only one, albeit lengthy, proceeding: the case

of the United States et al. v. Göring et al. Afterwards, the prosecution of war criminals was

conducted under Control Council Law No. 10. See T

ELFORD TAYLOR, FINAL REPORT TO THE

SECRETARY OF THE ARMY ON THE NUERNBERG WAR CRIMES TRIALS UNDER CONTROL COUNCIL

Challenges of Prosecuting Corporate Officials-169

following World War I,

and even when war criminals were tried, their criminal

liability was somewhat dependent on, and hampered by, domestic law.

The

charter of the tribunal, which set out the composition, jurisdiction, principles and

powers of the tribunal,

was heralded as a statement of international law almost

by acclamation. Although it was initially an agreement of only four states—the

United States, the U.S.S.R., the United Kingdom and France,

nineteen additional

states joined the agreement later in 1945,

and the principles of the charter and

the judgments of the tribunal were affirmed as customary international law by the

United Nations General Assembly in 1946.

As noted by the International

Criminal Tribunal for the Former Yugoslavia (ICTY),

crimes against humanity

were officially recognized for the first time in the Nürnberg Charter.

Individual

criminal responsibility for crimes against humanity was likewise recognized for

the first time.

Thus, in many ways, the charter and judgment of the International

Military Tribunal at Nürnberg set the standard for future prosecutions of persons

LAW NO. 10 at 250. The Control Council was comprised of the commanders-in-chief of the four

powers occupying Germany—the United States, the U.S.S.R., the United Kingdom and France.

See Statement on Control of Machinery in Germany, June 5, 1945, Instruments of the Initial

Occupation and Control of Germany, U.S.

DEPT. OF STATE, BULLETIN, June 10, 1945, at 1054.

See, e.g., SHELDON GLUECK, WAR CRIMINALS: THEIR PROSECUTION & PUNISHMENT 19-36

(1944); M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to

Establish a Permanent International Criminal Court,10

HARV. HUM. RTS. J. 11, 20 (1997).

ROBERT K. WOETZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 35-36 (1960).

Agreement for the Prosecution and Punishment of the Major War Criminals of the European

Axis, Aug. 8, 1945, annex, 59 Stat. 1544, 82 U.N.T.S. 279. The charter can also be found at 1

RIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 10

(1947).

Id.

Id., 82 U.N.T.S. at 280 n.1.

Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg

Tribunal

G.A. Res. 95(I), U.N. GAOR, 1st Sess., 2d part, at 188, U.N. Doc. A/236 (1946).

The formal, lengthy name of this tribunal is the International Tribunal for the Prosecution of

Persons Responsible for Serious Violations of International Humanitarian Law Committed in the

Territory of the Former Yugoslavia since 1991, UN Doc. S/25704, annex (1993). The opinions of

this tribunal may be accessed at

http://www.un.org/icty/cases/jugemindex-e.htm.

Prosecutor v. Tadić, Opinion and Judgment, Case No. IT-94-1-T, May 7, 1997, para. 618 (citing

NTONIO CASSESE, VIOLENCE AND LAW IN THE MODERN AGE 109 (1988)). Under Article 6(c) of

the Nürnberg Charter, crimes against humanity were defined as

murder, extermination, enslavement, deportation, and other inhumane acts

committed against any civilian population, before or during the war; or

persecution on political, racial or religious grounds in execution of or in

connection with any crime within the jurisdiction of the Tribunal, whether or not

in violation of domestic law of the country where perpetrated.

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis,

Aug. 8, 1945, annex, art. 6(c), 59 Stat. 1544, 82 U.N.T.S. 279. This category allowed prosecution

for acts committed against stateless victims and victims who were nationals of the Axis powers

(German Jews, for example) that might not have otherwise been possible under the laws of war.

Tadić, Opinion and Judgment, para. 619.

Tadić, Opinion and Judgment, para. 618 (discussing effect of Article 6(c) of the Nürnberg

Charter).

170-The Air Force Law Review

responsible for core international crimes and are the “basic documents” of

prosecutions for war crimes, crimes against peace, and crimes against humanity,

particularly the latter.

The prosecutors charged the major German war criminals under four

multi-faceted counts.

Count One, entitled “Common Plan or Conspiracy”,

charged all of the defendants with being “leaders, organizers, instigators, or

accomplices in the formation or execution of a common plan or conspiracy to

commit, or which involved the commission of, Crimes against Peace, War

Crimes, and Crimes against Humanity.”

This count charged the Nazi Party as

being the “central core of the common plan or conspiracy,”

the central aim of

which was to wage aggressive war to acquire lebensraum (“living space”) for the

German “master race.”

In the course and in furtherance of the plan, the Nazi

conspirators were charged with using “organizations of German business as

instruments of economic mobilization for war” and they, “in particular the

industrialists among them, embarked upon a huge re-armament program.”

Count Two charged the defendants with crimes against peace by their

participation “in the planning, preparation, initiation, and waging of wars of

aggression.”

Count Three charged the defendants with war crimes in that they

murdered and mistreated civilians in occupied territory or on the high seas,

forced civilians in occupied territories to unwillingly migrate for the purpose of

slave labor and other purposes,

murdered and mistreated prisoners of war,

took

and killed civilian hostages,

plundered public and private property,

imposed

collective punishment on the civilian populations in occupied territories,

destroyed cities, towns and villages without having any military necessity for

doing so,

and forced civilians to labor beyond the requirements needed to sustain

The prosecutors charged the major German war criminals both individually and as members of

various organizations, including the Reich Cabinet, the Leadership Corps of the Nazi Party, the

Gestapo and die Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei (the “SS”). 1

RIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT’L MIL. TRIB. 27-28 (1947). So, from the

beginning of the case, criminal liability based on associations and assistance to others was at issue.

Id. at 29.

Id. at 30.

Id. at 30-31.

Id. at 35. They were also charged with committing war crimes and crimes against humanity in

furtherance of their plan and conspiracy, id. at 41, but the International Military Tribunal

“disregarded” this part of Count One because the tribunal’s charter only defined conspiracy as a

crime when its aim was the waging of aggressive war. Id at 226.

Id. at 42.

Id. at 43. The words, “murder and ill-treatment” fail to fully convey the inhumanity the civilians

suffered at the hands of the Nazi-led German government. The indictment includes some detail,

detail that fills almost eight full pages of text. See id. at 43-50.

Id. at 51-52.

Id. at 52-54.

Id. at 54-55.

Id. at 55-60.

Id. at 60-61.

Id. at 61-62.

Challenges of Prosecuting Corporate Officials-171

the basic needs of occupation and to also labor for the German war effort.

Count

Four charged the defendants with crimes against humanity in that they murdered,

persecuted, exterminated, enslaved, deported and committed other inhumane acts

against the civilian populations of Germany and of the occupied territories,

particularly against the Jewish population.

Chief among the defendants was Hermann Göring. As noted in Appendix

A to the indictment, Göring held a number of leadership positions in Nazi

Germany, including generalship in the SS, Trustee of the Four-Year Plan (to

prepare the German economy for war), Commander-in-Chief of the German Air

Force, membership in the Secret Cabinet Council, and Successor Designate to

Adolf Hitler.

There were initially twenty-four defendants, and the ones whose

cases dealt with criminal liability for their assistance to the commission of crimes

will be of greatest significance in examining the issue of criminal liability for

corporate officials whose dealings facilitate the commission of war crimes and

crimes against humanity.

The International Military Tribunal rejected the prosecution’s position

“that any significant participation in the affairs of the Nazi Party or Government

is evidence of a participation [sic] in a conspiracy that is in itself criminal,”

concluding that “conspiracy must be clearly outlined in its criminal purpose. It

must not be too far removed from the time of decision and action.”

Only those

participants in a “concrete plan” could be held criminally liable.

The judgment

of the International Military Tribunal set out what levels of participation would

result in criminal liability.

Among the participants in the concrete plan were Göring and others who

were privy to one or more of the secret meetings at which Hitler disclosed his

plans for aggression.

One who did not attend and was nevertheless still

convicted was Rudolf Hess. Hess was convicted of participating in the common

plan to wage aggressive wars because as “Hitler’s closest personal confidant,” he

“must have been informed of Hitler’s aggressive plans when they came into

existence.”

For the International Military Tribunal, this conclusion was

confirmed by Hess’ concrete actions in support of Hitler’s plans of wars of

aggression.

Alfred Rosenberg, who held a number of high-level Nazi Party

Id. at 62. The defendants were also charged with forcing civilians in occupied territory to swear

allegiance to a hostile power and with the “Germanization” of occupied territories. Id. at 63-64

Id. at 65-67.

Id. at 68.

Id. at 226.

These meetings were held in November 1937, May 1939, August 1939 and November 1939. Id.

at 188.

The meeting in November 1937 was attended by three of the defendants: Göring, Erich

Raeder and Constantin von Neurath. Id. at 190. The meeting in November 1937 was attended by

three of the defendants: Göring, Erich Raeder and Wilhelm Keitel. Id. at 200.

Id. at 284.

Id. at 283-84.

172-The Air Force Law Review

posts and was Reich Minister for the Eastern Occupied Territories,

was

convicted as well despite his non-attendance. His conviction was due instead to

his involvement in laying the groundwork for the invasion of Norway and his

involvement in pre-invasion preparations for the occupation of the U.S.S.R. and

other eastern countries.

Alfred Jodl was also not present at the four secret

meetings, but his diary and other documentary evidence showed his prior

knowledge and assistance in planning wars of aggression.

Another person not present at one of the four secret meetings was Joachim

von Ribbentrop, who was involved heavily in Germany’s foreign affairs,

including holding the posts of Ambassador Extraordinary and Reich Minister for

Foreign Affairs.

Nonetheless his involvement in the preparation for wars of

aggression was clear, even to the point of suggesting wars of aggression to

Germany’s east.

The International Military Tribunal saw his diplomatic

maneuverings to be conducted in clear knowledge of Hitler’s ultimate plans.

was, for example, notified in advance of the invasions of Norway, Denmark,

Belgium, Luxemburg and the Netherlands and prepared the official justifications

for the attacks.

The tribunal found inadequate evidence as to a number of other

defendants. A number of these acquittals involved defendants who did not attend

the early secret planning conferences at which Hitler announced his plans for wars

of aggression. These included Ernst Kaltenbrunner and Franz von Papen, who

had both been heavily involved in the taking of Austria (an aggressive act not

deemed a “war” by the tribunal) but not in any other conquest,

and the “avid

Nazi” Wilhelm Frick,

who was a general in the SS and held a number of

positions overseeing occupied territories

but who only aided the aggression after

it began.

Similarly, the vicious anti-Semite Julius Streicher may have been “a

staunch Nazi and supporter of Hitler’s main policies[, but] there [wa]s no

evidence to show he was ever within Hitler’s main circle of advisers” or that he

was “closely connected with the formulation of the policies which led to war.”

Id. at 70.

Id. at 294-95.

Id. at 322-23.

Id. at 69.

Id. at 285-86.

Id.

Id. at 286.

Id. at 291, 327.

Id. at 299. The tribunal found that “Frick was only concerned with domestic administration

within the Reich.” Id. The tribunal specifically noted that there was “no evidence that he was

ever within Hitler’s inner circle of advisers” and that “[h]e was never present . . . at any of the

important conferences when Hitler explained his decisions to his leaders.” Id. at 302.

Id. at 65-67.

Id. at 299-300.

Id. at 302.

Challenges of Prosecuting Corporate Officials-173

Walter Funk was Reich Minister of Economics, President of the

Reichsbank, and economic advisor to Hitler, and he also held press and

propaganda posts.

He was also acquitted of being part of the common plan to

wage aggressive war because he “was not one of the leading figures in originating

the Nazi plans for aggressive war.”

Yet, Funk was found guilty of planning and

waging war due to his participation in the economic preparations for war “after

the Nazi plans to wage aggressive war had been clearly defined.”

The tribunal

particularly described how Funk participated heavily in the economic planning for

the attack on the U.S.S.R.

In essence, he was convicted for joining in once the

plan for aggressive war was more widely revealed.

Admiral Karl Dönitz was Commander-in-Chief of the Germany Navy and

had been an advisor to Hitler.

He was found guilty of waging an aggressive war,

but he too was acquitted of participating in the common plan or conspiracy.

The

tribunal observed that Admiral Dönitz “was a line officer performing strictly

tactical duties,” and it found that “[h]e was not present at the important

conferences when plans for aggressive wars were announced, and there is no

evidence he was informed about the decisions reached there.”

Hans Fritzsche,

who held significant press and propaganda posts,

also never “achieved sufficient

stature to attend the planning conferences which led to aggressive war . . . [n]or is

there any showing that he was informed of the decisions taken at these

conferences.”

Martin Bormann was also acquitted of participation in the

common plan or conspiracy to wage aggressive wars because he did not attend the

meetings and because knowledge of the plans could not “be conclusively inferred

from the positions he held,”

which included being chief of staff to Hitler’s

deputy when the plans were formed.

Allied prosecutors did attempt to hold corporate interests accountable, but

the major industrialist defendant, Gustav Krupp von Bohlen und Halbach, was

never tried due to the onset of dementia.

Gustav Krupp was president of the

Id. at 74.

Id. at 305.

Id. at 304-05.

Id. at 305.

Id. at 78. Admiral Dönitz also held a variety of other positions in the German navy, with

emphasis on U-boats, and was the actual successor to Hitler as the head of the German

government following Hitler’s death. Id.

Id. at 310, 315.

Id. at 310.

Id. at 79.

Id. at 337.

Id. at 339.

Id. at 338. The tribunal did note that most of Bormann’s power developed later. Id. Similarly,

the tribunal noted that Albert Speer did not hold his positions as Reich Minister for Armaments

and Munitions and other posts important to German armament early enough to infer knowledge of

Hitler’s plans. Id. at 330-31.

See 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL

143 (1947) (Order of the Tribunal Granting Postponement of Proceedings against Gustav Krupp

174-The Air Force Law Review

Reich Union of German Industry and head of the Group for Mining and

Production of Iron and Metals under the Reich Ministry of Economics.

He led

efforts to coordinate industrial reorganization to complement Hitler’s political

aims, reorganization that was essential to German rearmament and preparedness

for war.

As the International Military Tribunal noted, “In this reorganization of

the economic life for military purposes, the Nazi Government found the German

armament industry quite willing to cooperate, and to play its part in the

rearmament program.”

Hjalmer Schacht was in a similar position to Gustav Krupp and other

industrialists

subsequently prosecuted for supporting the Nazi regime because he

too provided economic support to the Nazi government; he was in a sense the first

“corporate” war crimes defendant.

During rearmament, Schacht was Minister of

Economics, President of the Reichsbank, and Plenipotentiary General for the War

Economy.

He “was seen as the genius behind the Nazi economic miracle . . .

and a major player in Germany’s rearmament.”

Schacht was believed by the

prosecution to be individually responsible because he was a supporter of Hitler

and a member of Hitler’s cabinet during a number of early events in the war,

including the Anschluss and the capture of the Sudetenland.

The prosecutor

leading the case against Schacht summarized the case against Schacht by noting,

“Certainly in this setting Schacht did not proceed in ignorance of the fact that he

was assisting Hitler and Germany along the road to armed aggression.”

Perhaps fortunate for his later prospects as a defendant before the

International Military Tribunal, Schacht had resigned from two of his positions,

was sacked by Hitler from the third long before the war was over, and was

imprisoned for almost the entire last year of the war in various concentration

von Bohlen); see also DONALD BLOXHAM, GENOCIDE ON TRIAL: WAR CRIMES TRIALS AND THE

FORMATION OF HOLOCAUST HISTORY AND MEMORY 23 (2001). Gustav Krupp’s son, Alfred, was

ultimately tried in a later proceeding. See United States v. Krupp (hereinafter The Krupp Case), in

9 T

RIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL

COUNCIL LAW NO. 10 [hereinafter TRIALS OF WAR CRIMINALS] (1948).

1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT’L MIL. TRIB. at 75.

Id. at 183-84.

Id. at 183.

The trials of industrialists referenced are United States v. Krauch (hereinafter The Farben Case),

in 7-8 T

RIALS OF WAR CRIMINALS (1948), The Krupp Case, in 9 TRIALS OF WAR CRIMINALS

(1948), and United States v. Flick [hereinafter The Flick Case], in 6 TRIALS OF WAR CRIMINALS

(1947). These trials are discussed in more detail infra section II-B.

In the view of Major A. Poltorak, an officer on the Soviet delegation to the International

Military Tribunal, Schacht’s “fate . . . was watched with the closest attention by business circles in

Germany and abroad. The world of big business was by no means inclined to sacrifice Hjalmar

Schacht to Themis in Nuremberg.” A.

POLTORAK, THE NUREMBERG EPILOGUE 376 (David

Skvirsky trans., 1971).

1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT’L MIL. TRIB.307 (1947).

DONALD BLOXHAM, GENOCIDE ON TRIAL: WAR CRIMES TRIALS AND THE FORMATION OF

HOLOCAUST HISTORY AND MEMORY 22 (2001).

5 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT’L MIL. TRIB.141 (1947).

Id.

Challenges of Prosecuting Corporate Officials-175

camps.

Schacht was charged with participating in the German wars of

aggression and with conspiracy, but he was acquitted because the prosecution

failed to prove the key “inference that Schacht did in fact know of the Nazi

aggressive plans” to wage war.

The tribunal specifically refused to find criminal

liability based on his economic activities, and it rejected the argument that

Schacht could have figured out the plans, despite not having specific notice of

them, due to the information he had at his disposal.

The tribunal specifically

considered the argument that, “Schacht, with his intimate knowledge of German

finance, was in a peculiarly good position to understand the true significance of

Hitler’s frantic rearmament, and to realize that the economic policy adopted was

consistent only with war as its object.”

The tribunal clearly recognized Schacht’s contribution to rearmament, but

the language the tribunal used showed that his activities could have easily been

conducted in ignorance of Hitler’s plans: “He made detailed plans for industrial

mobilization and the coordination of the Army with industry in the event of

war.”

The tribunal found that Schacht may have carried out plans for the

rearmament of Germany but that the evidence did not prove he did so in

preparation to wage aggressive war.

As the tribunal put it, “rearmament of itself

is not criminal under the Charter.”

Re-emphasizing the need for notice and

knowledge, the tribunal stated that Schacht “was clearly not one of the inner circle

around Hitler, which was most closely involved with this common plan.”

The International Military Tribunal did not set out much in the way of

firm criteria in its decision making, but some principles can be gleaned from the

judgment. The International Military Tribunal cautioned that all subsequent

tribunal cases should be conducted “in accordance with well-settled legal

principles, one of the most important of which is that criminal guilt is personal,

and that mass punishments should be avoided.”

It distinguished between a

person with mere membership in a criminal organization, which is an insufficient

basis to convict that person, and members of that organization who committed the

2 DREXEL A. SPRECHER, INSIDE THE NUREMBERG TRIAL: A PROSECUTOR’S COMPREHENSIVE

ACCOUNT 936-37 (1999).

1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT’L MIL. TRIB. 310 (1947). Telford

Taylor, who assisted Justice Robert Jackson in the prosecution of the major German war

criminals, observed that Schacht “escaped by the skin of his teeth.” T

ELFORD TAYLOR, THE

ANATOMY OF THE NUREMBERG TRIALS 592 (1992). Schacht was later tried and convicted by the

German Spruchkammer (denazification court), but his conviction was later overturned. Id. at 612-

13.

1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT’L MIL. TRIB. 309 (1947).

Id. The Soviet member of the tribunal, in his dissent, considered the scale and nature of

rearmament to be key evidence that should have left Schacht convicted. Id. at 344-45

(Nikitchenko, IMT memb., dissenting).

Id. at 307 (emphasis added).

Id. at 308-09.

Id. at 309.

Id. at 310.

Id. at 256.

176-The Air Force Law Review

criminal acts or who had knowledge of them, a basis upon which they could be

convicted.

When later reviewing the acquittals rendered by the International Military

Tribunal, the U.S. military tribunal hearing the Farben Case observed, “From the

foregoing it appears that the [International Military Tribunal] approached a

finding of guilty of any defendant under the charges of participation in a common

plan or conspiracy or planning and waging an aggressive war with great

caution.”

The Farben tribunal addressed the knowledge element in depth,

noting that what Hitler said in public “differed widely” from the disclosures he

made during four secret meetings, during “which Hitler disclosed his plans for

aggressive war.”

The Farben tribunal concluded that the International Military

Tribunal only convicted those, “like Hess, [who was] in such close relationship

with Hitler that he must have been informed of Hitler’s aggressive plans and took

action to carry them out, or attended at least one of the four meetings at which

Hitler disclosed his plans for aggressive war.”

Thus, in the view of the Farben

tribunal, the basic precedent of the judgment of the International Military Tribunal

was that “personal guilt” was dependent upon “personal knowledge” and

“motives determined from the situation as it appeared, or should have appeared, to

them at the time.”

In large part, the Farben tribunal concluded, personal

knowledge was the sole basis for conviction because “[t]here was no [] common

knowledge in Germany that would apprise any of the defendants of the existence

of Hitler’s plans or ultimate purpose.”

B. Prosecutions of Corporate Officials before Post-World War II Tribunals

1. Prosecutions of German Corporate Officials

The industrialists from the Krupp, Farben and Flick concerns were

prosecuted as war criminals due to their symbiotic relationship with Adolf Hitler

and the Nazi Party—they were inextricably intertwined with Hitler, his rise to

power, and the illegal conduct of Germany in World War II. The relationship

began early on in Hitler’s rise, in February 1933, when representatives of Krupp

and Farben met with Hitler and Hermann Göring at Göring’s home; it was there

that Hitler outlined how he would support private enterprise if brought to power,

Id. at 256.

The Farben case, 8 TRIALS OF WAR CRIMINALS 1102.

Id.

Id. at 1107-08. The Flick tribunal also applied the requirement of proof of personal guilt before

conviction, as well as other principles of “Anglo-American criminal law”—proof beyond a

reasonable doubt, the prosecution’s bearing the burden of proof, the presumption of innocence,

and the requirement that a fact-finder, if choosing between two reasonable inferences, “one of

guilt and the other of innocence,” must draw the inference that leads to acquittal. The Flick Case,

6 TRIALS OF WAR CRIMINALS 1189.

The Farben case, 8 TRIALS OF WAR CRIMINALS 1113.

Challenges of Prosecuting Corporate Officials-177

and it was there that he secured industrialist support.

From that point on, the

prosecution argued, “Industry organized to support Hitler’s political programs,

including rearmament and territorial aggrandizement.”

Although they were in

large part convicted of war crimes and crimes against humanity to one degree or

another, these industrialists benefited from significant clemency after their trials.

“Alfred Krupp even found himself in possession of his properties again, which the

American court had earlier confiscated.”

a. The Farben Case

In the Farben Case,

twenty-four officials of the Farben firm were

prosecuted before United States Military Tribunal VI in Nürnberg, Germany.

The crimes they were charged with

included planning, preparing, initiating, and waging wars of

aggression and invasions of other countries . . . ; deportation to

slave labor of members of the civilian population of the invaded

countries and the enslavement, mistreatment, terrorization, torture,

and murder of millions of persons . . . ; plunder and spoliation of

public and private property in the invaded countries pursuant to

deliberate plans and policies, intended not only to strengthen

Germany in launching its invasions and aggressive wars and secure

the permanent economic domination by Germany of the Continent

of Europe, but also to expand the private empire of the defendants .

. . .

The prosecution alleged an alliance between Farben and Adolf Hitler and

his Nazi party, in which Farben, inter alia, “synchronized” its industrial activities

with the military plans of the German High Command and participated in the

rearmament of Germany and in the creation and equipping of the Nazi military for

wars of aggression.

The defendants as a group were charged with five counts of

war crimes:

Count One planning, preparation, initiation and waging of wars of

aggression and invasions of other countries;

The Farben Case, 7 TRIALS OF WAR CRIMINALS 17.

Id. at 18.

FRANK M. BUSCHER, THE U.S. WAR CRIMES TRIAL PROGRAM IN GERMANY, 1946-55 63 (1989).

Id.

The Farben Case, 7-8 TRIALS OF WAR CRIMINALS.

The Farben Case, 7 TRIALS OF WAR CRIMINALS 11-14.

Id. at 11.

Id. at 15-28.

Id. at 14.

178-The Air Force Law Review

Count Two plunder and spoliation of public and private property;

Count Three slavery and mass murder;

100

Count Four membership in Die Schutzstaffeln der

Nationalsozialistischen Deutschen Arbeiterpartei (the

“SS”), which was declared to be a criminal organization by

the International Military Tribunal;

101

and

Count Five participation in a common plan or conspiracy to commit

war crimes and crimes against humanity.

102

The tribunal considered Counts One (crimes against peace) and Five

(conspiracy) together, considering the judgment of the International Military

Tribunal as its main precedent.

103

As to crimes against peace, the tribunal used

personal knowledge as its key decisional factor in determining whether the

defendants participated in the planning or preparation of aggressive wars:

“[P]articipation in the rearmament of Germany was not a crime on the part of any

of the defendants in this case, unless that rearmament was carried out, or

participated in, with knowledge that it was part of a plan or was intended to be

used in waging aggressive war.”

104

For each Farben defendant, the tribunal

examined the position and activities for Farben and any positions they held in the

German government “and their authority, responsibility, and activities

thereunder.”

105

This approach led to generally favorable results for the Farben

defendants.

The primary defendant in the Farben Case was Carl Krauch.

106

Although

Krauch held a fairly high-level government position in assisting Göring in the

chemical production aspect of German rearmament,

107

the tribunal found

insufficient evidence that Krauch planned or prepared aggressive wars, finding

that Krauch was not within the “closely guarded circle” privy to Hitler’s plans for

Id. at 39-40.

100

Id. at 50.

101

Id. at 59. This article will not discuss this count in the text because the purported criminal

liability sprang from personal, rather than corporate, associations. Personal knowledge again

played a key role, though, in disposing of Count Four. Using the tribunal case of United States v.

Pohl, where Tribunal II required personal knowledge of or involvement in criminal activities of

the SS as a prerequisite for conviction, see 5 T

RIALS OF WAR CRIMINALS at 1018, and other

similar tribunal precedents, the Farben tribunal acquitted four Farben defendants whose

involvement in the SS was honorary or, at worst, peripheral.

102

The Farben Case, 7 TRIALS OF WAR CRIMINALS 59.

103

The Farben Case, 8 TRIALS OF WAR CRIMINALS 1098. The tribunal did limit the scope of that

precedent somewhat with the language used: “That well-considered judgment is basic and

persuasive precedent as to all matters determined therein.” Id. (emphasis added).

104

Id. at 1112-13.

105

Id. at 1108.

106

Id. at 1108.

107

Id. at 1109-10.

Challenges of Prosecuting Corporate Officials-179

aggressive wars.

108

The tribunal found that the other Farben defendants were also

not involved in planning or preparing for aggressive war because they were

“further removed from the scene of Nazi governmental activity than was

Krauch.”

109

Because the Farben officials did not participate in the secret planning

by Hitler and his inner circle, the tribunal also acquitted the defendants of the

conspiracy charge under Count Five.

Although Krauch and the other defendants knew that Germany was

rearming and indeed participated in the rearmament,

110

“[e]ven people in high

places were kept in ignorance and were not permitted to disclose to each other

their individual activities in behalf of the Reich.”

111

The tribunal did add, “If we

were trying military experts, and it was shown that they had knowledge of the

extent of rearmament,” they could conclude “that the magnitude of the

rearmament effort was such to convey” knowledge “that what they did in aid of

rearmament was preparing for aggressive war.”

112

As to one defendant, the

tribunal commented that “his support of the war,” which included approving

cooperation between German army officials and Farben, “did not exceed that of

the normal, substantial German citizen and businessman.”

113

When the tribunal faced the issue whether the Farben officials committed

the crime of waging wars of aggression, the tribunal saw the precise issue to be

resolved:

In this case, we are faced with the problem of determining the guilt

or innocence with respect to the waging of aggressive war on the

part of men of industry who were not makers of policy but who

supported their government during its period of rearmament and

who continued to serve that government in the waging of war, the

108

Id. at 1110.

109

Id. at 1117. The tribunal also considered the substantial financial contributions made to the

Nazi party as potential evidence of Farben officials being privy to Hitler’s plan to wage aggressive

war. The tribunal opined that what were voluntary contributions during German rearmament

became “exactions” after “Hitler’s power grew and the Nazi party became more arrogant.” Id. at

1119.

110

The tribunal found that a number of the Farben defendants “participated in the rearmament of

Germany by contributing to her economic strength and the production of certain basic materials of

great importance to the war.” Id. at 1123.

111

Id. at 1112.

112

Id. at 1113.

113

Id. at 1120. This particular defendant, Georg Von Schnitlzer, had made a statement that Farben

officials “and all heavy industries well knew that Hitler had decided to invade Poland if Poland

would not accept his demands,” but the tribunal believed that his statements to interrogators had

“questionable evidentiary value” because of his repeated changes and “corrections” to his earlier

statements. The tribunal believed that this admission and others reflected Von Schnitlzer’s

“eagerness to tell his interrogators what he thought they wanted to know and hear.” Id.

180-The Air Force Law Review

initiation of which has been established as an act of aggression . . .

114

The tribunal decided this issue in the context of an important legal principle that

the crime of waging a war of aggression could not “apply to any and all persons

who aided, supported, or contributed to the carrying on of an aggressive war” in

light of the declaration of the International Military Tribunal that “mass

punishments should be avoided.”

115

The tribunal observed that, “[o]f necessity, the great majority of the

population of Germany supported the waging of war in some degree. They

contributed to Germany’s power to resist, as well as to attack.”

116

The

International Military Tribunal had determined that the leaders of Germany bore

criminal responsibility for leading their country into an aggressive war, but the

Farben tribunal was “unable to find, once we have passed below those who have

led a country into a war of aggression, a rational mark dividing the guilty from the

innocent.”

117

The Farben tribunal adopted what they viewed as the only rational

mark they could find, which was also the mark that limited criminal responsibility

the most:

We leave the mark where we find it, well satisfied that individuals

who plan and lead a nation into and in an aggressive war should be

held guilty of crimes against peace, but not those who merely

follow the leaders and whose participations, like those of Speer,

“were in aid of the war effort in the same way that other productive

enterprises aid in the waging of war.”

118

From this judgment of acquittal in the Farben Case, a legal principle emerges that

individuals—including corporations and their officials—cannot be held criminally

liable for crimes against peace (planning, preparing for or waging an aggressive

war) if they “merely follow the leaders” of their country, however despicable

those leaders might be. However, a different outcome would result from charges

arising from Count 2, the plunder and spoliation of property.

119

114

Id. at 1125.

115

Id. at 1124 (quoting—without citation—the International Military Tribunal). See 1 TRIAL OF

THE

MAJOR WAR CRIMINALS BEFORE THE INT’L MIL. TRIB. 256 (1947).

116

The Farben case, 8 TRIALS OF WAR CRIMINALS 1125.

117

Id. at 1126.

118

Id. at 1126-27 (quoting United States et al. v. Göring et al., 1 TRIAL OF THE MAJOR WAR

CRIMINALS BEFORE THE INT’L MIL. TRIB. 330 (1947)).

119

The tribunal followed the precedent of the Flick Case and ruled that, although these offenses

were charged as both war crimes and crimes against humanity, if the offense was wholly one

against property, it could not constitute a crime against humanity. The Farben case, 8 T

RIALS OF

WAR CRIMINALS 1129-30 (citing The Flick Case, 6 TRIALS OF WAR CRIMINALS 1215-16). The

Farben tribunal also held that offenses against property in Austria and the Sudetenland were not

war crimes because there was no actual state of war during the Anschluss and the acquisition of

Challenges of Prosecuting Corporate Officials-181

Farben officials were not so fortunate in the tribunal’s consideration of

Count Two. The Farben tribunal used the 1907 Hague Regulations

120

as a guide

in determining what property offenses constitute war crimes:

[T]he Hague Regulations are broadly aimed at preserving the

inviolability of property rights to both public and private property

during military occupancy. They admit of exceptions of

expropriation, use, and requisition, all of which are subject to well-

defined limitations . . . . Where private individuals, including

juristic persons, proceed to exploit the military occupancy by

acquiring private property against the will and consent of the

former owner, such action, not being expressly justified by any

applicable provision of the Hague Regulations, is in violation of

international law. The payment of a price or other adequate

consideration does not, under such circumstances, relieve the act of

its unlawful character. Similarly where a private individual or

juristic person becomes a party to unlawful confiscation of public

or private property by planning and executing a well-defined

design to acquire such property permanently, acquisition under

such circumstances subsequent to the confiscation constitutes

conduct in violation of the Hague Regulations.

121

The Farben tribunal found that commercial agreements during military

occupation may be found to be involuntary, but that involuntariness must be

proven by more than the existence of the occupation itself; there must be proof of

illegal pressure applied during the transaction, and that illegal pressure must affect

the resulting transaction.

122

The Farben defendants argued that they could not be held liable because

they were following the direction, or acting on the approval, of the German

government.

123

The Farben tribunal quickly dismissed this argument, holding that

“[i]t is beyond the authority of any nation to authorize its citizens to commit acts

in contravention of international penal law.”

124

The defendants also argued that

their actions were taken to fulfill the occupying power’s obligation under the

Hague regulations to “restore an orderly economy in the occupied territory.” The

the Sudetenland even if the lack of war was due to an incapacity to resist an aggressor state. The

Farben case, 8 T

RIALS OF WAR CRIMINALS 1130.

120

Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat.

2277, 205 Consol. T.S. 277.

121

The Farben case, 8 TRIALS OF WAR CRIMINALS 1132-33.

122

Id. at 1135-36.

123

Id. at 1137.

124

Id. at 1137-38.

182-The Air Force Law Review

tribunal also rejected this argument, finding that Farben acted to enrich itself “as

part of a general plan to dominate the industries involved.”

125

The Farben tribunal reviewed the findings of the International Military

Tribunal, which had determined that “the territories occupied by Germany ‘were

exploited for the German war effort in the most ruthless way, without

consideration of the local economy, and in consequence of a deliberate design and

policy.’”

126

The Farben tribunal found that Farben and its officials were in the

thick of this exploitation. In some cases, Farben took permanent title to property

already illegally confiscated by the German government, and in others, Farben

permanently acquired “substantial or controlling interests in property contrary to

the wishes of the owners.”

127

The tribunal found that their actions as private

individuals were in essence no different than the illegal plundering and pillaging

of German government officials and included a “studied design” to take property

in order to build Farben a “chemical empire through the medium of the military

occupancy at the expense of the former owners.”

128

The tribunal then held those

individuals who knowingly participated in any act of plunder or spoliation

individually responsible.

129

The tribunal explained that individual criminal liability could only be

predicated on “evidence [that] clearly establishes some positive conduct on [a

defendant’s] part which constitutes ordering, approving, authorizing or joining in

the execution of a policy or act which is criminal in character.”

130

To be

convicted, the corporate official that authorized an illegal action had to know

“those essential elements of the authorized act which give it its criminal character.

With regard to transactions apparently legal in form, this means positive

knowledge that the owner is being deprived of his property against his will during

military occupancy.”

131

In determining individual responsibility, the tribunal looked at the

positions held in the company when the crimes were committed. The Farben

defendants had differing responsibilities within the firm. Some were members of

the company’s aufsichtsrat, an entity much like a supervisory board of directors

not involved in day-to-day administration;

132

others were members of the

vorstand, a group whose members actually managed the company.

133

These

vorstand members in turn managed different specific activities of the company.

134

125

Id. at 1141.

126

Id. at 1139 (quoting United States et al. v. Göring et al., 1 TRIAL OF THE MAJOR WAR

CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 329 (1947)).

127

The Farben case, 8 TRIALS OF WAR CRIMINALS 1140.

128

Id.

129

Id. at 1141.

130

Id. at 1157.

131

Id.

132

Id. at 1086, 1154.

133

Id. at 1086-87.

134

Id. at 1087.

Challenges of Prosecuting Corporate Officials-183

For example, each major Farben unit was usually personally supervised by an

individual member of the vorstand.

135

Significantly, the Farben tribunal did not impute knowledge to individual

officers due to the actions of the company as a whole. For example, the tribunal

observed that defendant Hermann Schmitz, as chairman of the vorstand, had

responsibilities and opportunities for knowledge “far beyond those” of an

ordinary member of the vorstand.

136

Yet, due to the dispersed power structure of

the company, he apparently did not know the details, including any coercion, of

certain acquisitions the company made—those made in Poland, Russia and

Alsace-Lorraine. Indeed, the minutes and reports of the meetings he presided

over or attended did not reveal anything incriminating. Although he could have

concluded that Farben made illegal acquisitions, the tribunal concluded that he

could have also inferred from the information before him “that the acquisitions

might have been effected in a legal manner.”

137

Yet, the tribunal ultimately found

Schmitz guilty under Count Two as to a different acquisition. Schmitz was shown

to be aware of pressure tactics being used by Farben to acquire a French company

and “was in a position to influence policy and effectively to alter the course of

events.”

138

The tribunal found that his knowledge and power together constituted

his approval of this acquisition.

139

A third count of slavery and mass murder was also before the tribunal.

The Farben tribunal continued to critically examine the personal responsibility of

the defendants under Count Three. The prosecution charged the defendants with

involvement in the government’s slave-labor program, with supplying poison gas

that was used to kill inmates at concentration camps, with supplying

pharmaceutical drugs for medical experimentation on slave laborers, and with the

illegal and inhumane practices committed at the Farben plant at Auschwitz.

140

With regard to the poison gas, the tribunal found no guilt because the gas was

actually supplied by a company organized as a joint venture with two other

companies; no one outside the management of the joint venture company clearly

knew the grim purpose for which the gas was supplied.

141

As to the medical

experiments, the tribunal found that although there was illegal Nazi

experimentation, there was no evidence that Farben officials, at the onset of their

supply activities, suspected any unlawful experimentation; there was, however,

evidence that when they clearly did suspect it, Farben stopped supplying the

drugs.

142

135

Id.

136

Id. at 1154-55.

137

Id. at 1155.

138

Id.

139

Id.

140

Id. at 1167-68.

141

Id. at 1168-69. The gas also had been used as an insecticide. Id. at 1168.

142

Id. at 1171-72.

184-The Air Force Law Review

As to Farben’s participation in the slave-labor program, the defendants

pled a defense of necessity, arguing that they were bound by the strict labor

regulations of the German government, the violation of which included “[h]eavy

penalties, including commitment to concentration camps and even death.”

143

The

Farben tribunal reviewed other war crimes cases that had also involved asserted

defenses of necessity.

144

From these cases, the Farben tribunal concluded that

a law or governmental decree will not justify the defense of

necessity unless, in its operation, it is of a character to deprive the

one to whom it is directed of a moral choice as to his course of

action. It follows that the defense of necessity is not available

where the party seeking to invoke it was, himself, responsible for

the existence of execution of such order or decree, or where his

participation went beyond the requirements thereof, or was the

result of his own initiative.

145

Utilizing this rule, the Farben tribunal found little support for the asserted defense

of necessity. The tribunal found that Farben officials had “considerable freedom

and opportunity for initiative,” which they used to decide upon their plant location

at Auschwitz (they had factored in the availability of concentration-camp labor),

to decide to acquire interests in two mines (that could not have been operated

successfully without slave labor), and to decide to procure and use forced laborers

and concentration camp inmates.

146

Not only did the tribunal find that the use of

slave labor constituted war crimes and crimes against humanity, but it also found

the treatment of the concentration-camp inmates at the Farben plant aggravated

their already miserable condition.

147

Officials that held positions responsible for

production and construction—the Farben efforts that benefited from slave labor—

were convicted as a result.

148

Yet once again, knowledge was not imputed throughout the company or

even throughout divisions of the company. For example, defendant Fritz ter Meer

was chairman of Farben’s technical committee and was heavily involved in the

labor at the Auschwitz plant,

149

but other members of the technical committee, as a

group of individual plant leaders, were not privy to the conditions at other plants,

particularly those at Auschwitz, where Farben’s crimes occurred.

150

At the end of

143

Id. at 1174.

144

Id. at 1174-79.

145

Id. at 1179.

146

Id. at 1186-87.

147

Id. at 1187.

148

Defendant Krauch was also convicted of enslavement, but it resulted from his governmental

rather than from any role he held with Farben at the time. Id. at 1187-89.

149

Id. at 1190-92.

150

Id. at 1192-93.

Challenges of Prosecuting Corporate Officials-185

the case, the tribunal fully acquitted ten defendants and sentenced the remainder

to terms of confinement ranging from one and one-half years to eleven years.

151

b. The Krupp Case

In the Krupp Case, twelve officials from the Krupp firm were prosecuted

before United States Military Tribunal IIIA in Nürnberg.

152

Like the Farben

defendants, they were charged with participating in wars of aggression, in

enslavement, in plunder and spoliation of property, and in a common plan or

conspiracy to commit crimes against peace.

153

The Krupp tribunal granted a

defense motion for a judgment of acquittal as to Counts One and Four, which

charged conspiracy and participating in wars of aggression.

154

The tribunal

therefore was ultimately concerned with Krupp’s use of forced labor and

appropriation of foreign property.

The lead defendant was Alfried Krupp, the “sole owner, proprietor, [and]

active and directing head” of the company,

155

the commercial purpose of which

was the production of metals, particularly steel and iron, the mining or other

acquisition of the raw materials for these metals, and the processing of these

metals into war materials, including ships and tanks.

156

Similar to the Farben

company, the Krupp company was governed principally by the vorstand, and

individual members of the Krupp vorstand were personally involved in one or

more subsidiaries.

157

The Krupp vorstand, however, coordinated closely on the

firm’s major undertakings.

158

As to the count of plunder and spoliation, there was particularly damning

evidence against Alfried Krupp, detailing how he and other industrialists began

planning to take private property as soon as they finished listening to a May 1940

radio broadcast describing how the German army had firmly occupied Holland:

At the conclusion of the broadcast the four men talked excitedly

and with great intensity. They pointed their fingers to certain

places on the map indicating villages and factories. One said,

“This one is yours, that one is yours, that one we will have

151

Id. at 1206-09.

152

The Krupp Case, 9 TRIALS OF WAR CRIMINALS 4.

153

Id. at 1329.

154

Id.

155

Id. at 8. Initially, Alfried Krupp’s father and the previous head of the company, Gustav Krupp,

was to be included as one of the defendants at the major war criminals trial before the

International Military Tribunal, but he was advanced in age and suffered from dementia, which

made him ineligible for trial. Donald Bloxham, Genocide on Trial: War Crimes Trials and the

Formation of Holocaust History and Memory 23 (2001).

156

The Krupp Case, 9 TRIALS OF WAR CRIMINALS 1332-33.

157

Id. at 1336.

158

Id. at 1337.

186-The Air Force Law Review

arrested, he has two factories.” They resembled, as the witness

Ruemann put it, “vultures gathered around their booty.”

159

Similarly, six months before the entry of the United States into the war, Krupp

officials also discussed plans to obtain interests in American companies should

the German government confiscate them in retaliation for future U.S. involvement

in the war.

160

This sort of behavior at the outset of the war gave great insight to

Alfried Krupp’s motives and intentions throughout the war, insight specifically

used by the Krupp tribunal.

161

The Krupp firm turned the above division-of-spoils discussion into reality

in France; it took advantage of German occupation and the German confiscation

of Jewish properties to seize machinery and to take control of a number of

factories and other properties.

162

The Krupp firm also participated in the

systematic removal of machinery and materials from the Netherlands when it

appeared the Allies would regain control of that country.

163

There was also

evidence that Krupp officials used the German military to exert pressure on

owners who did not wish to sell to Krupp.

164

There was a great deal of evidence

of personal involvement in these activities by Alfried Krupp and certain other

Krupp officials, and they were thus convicted under Count Two.

The circumstances that were insufficient to establish individual criminal

responsibility gives one a better idea of where the tribunal set the bar on

criminality. Defendants Max Ihn, Karl Pfirsch, Friedrich von Buelow, and

Heinrich Korschan were acquitted on Count Two even though Pfirsch, Ihn and

Korschan were deputy members of the Krupp vorstand.

165

In May 1941, Pfirsch,

Korschan and other Krupp officials received a circular from one of the convicted

officials, Loeser, asking that they keep him apprised of any information that

would be essential to the acquisition of other plants in France.

166

Pfirsch and

Korschan were also provided with information on the company’s credits, which

included one item describing “booty machines.”

167

Although the Krupp tribunal

simply stated there was insufficient evidence against these men,

168

the evidence

failed to show that these men had any critical information on Krupp’s illegal

activities and, as deputy members of the vorstand, apparently no substantial

powers to stop it.

With respect to the count of enslavement, the tribunal had no doubt that

the Krupp firm participated extensively in the German forced labor program. In

159

Id. at 1347-48.

160

Id. at 1372-73.

161

Id. at 1348.

162

Id. at 1348-64.

163

Id. at 1364.

164

Id. at 1370.

165

Id. at 1337.

166

Id. at 1352.

167

Id. at 1371.

168

Id. at 1373.

Challenges of Prosecuting Corporate Officials-187

August 1943, 2412 prisoners of war (in violation of the 1907 Hague Regulations)

and 11,557 foreign workers were forced to produce war materials at the firm’s

main plant at Essen.

169

There was significant evidence that Krupp managers were

explicitly aware of the illegality of this arrangement,

170

and a number were aware

of the deplorable treatment of prisoners, particularly Russian prisoners.

171

As to

the foreign workers, even those who were “free” workers were subject to harsh

and punitive conditions of employment.

172

Workers from Eastern Europe were

“subject to obligatory service for an unlimited period” and were treated the same

inhumane way the company treated prisoners of war.

173

Krupp was not simply following governmental direction in these matters.

Krupp officials specifically sought concentration camp labor,

174

Russian prisoners

of war,

175

and conscripted foreign workers

176

for the company’s production

efforts.

177

Krupp sought increased numbers of impressed foreign workers

178

and

not only maintained penal camps for foreign workers but created a new camp just

for Krupp workers.

179

Krupp imposed horrid conditions; not only did Krupp

condone beatings of workers, the company supplied the “[w]eapons with which

the workers were beaten.”

180

The tribunal found all but one defendant, Pfirsch, guilty under Count

Three. The tribunal adopted American law on individual liability of corporate

officials for acts by their company or by other corporate officials.

181

The Krupp

tribunal thus used a rule of criminal liability for (1) acts personally done, (2) acts

done by others but by one’s permission or at one’s direction, and (3) acts done

where one knows of the crime and has authority over the matter.

182

This is

169

Id. at 1374-75.

170

Id. at 1378-79. There was an improbable attempt at legal justification of the prisoner

arrangement by Krupp officials at one point when they posited that there would be no violation if

the prisoners could not clearly discern that the equipment would become part of a weapon. Id. at

1375.

171

Id. at 1380-89. The only concern that Krupp officials seemed to have was that the inadequate

food given to prisoners adversely affected Krupp productivity. Id.

172

Id. at 1396-98. Once again, Krupp officials only became concerned at the conditions suffered

by these workers when it affected their ability to “recruit” more of these workers. Id. at 1397-98.

173

Id. at 1405.

174

Id. at 1412-26, 1441-42.

175

Id. at 1439.

176

Id. at 1440-41.

177

The defendants also sought cover by a plea of necessity, but the tribunal dismissed that

argument noting that the defense evidence at best portrayed the belief of the defendants that they

were obligated by a sense of duty rather than by necessity. Id. at 1443.

178

Id. at 1404.

179

Id. at 1399. This was no benign “company town.” The camp was to be used primarily for

disciplinary purposes, but the workers would labor at Krupp plants if properly “educated.” Id. at

1399-1400.

180

Id. at 1409.

181

Id. at 1448 (citing 19 C.J.S. 2D at 363-64 (1940)).

182

The Krupp Case, 9 TRIALS OF WAR CRIMINALS 1448 (quoting 19 C.J.S. 2D at 363-64 (1940)).

The quoted language in the tribunal’s opinion is somewhat oblique on the third point: “He is liable

188-The Air Force Law Review

consistent with the formulation of the Farben tribunal that established criminal

liability for “ordering, approving, authorizing or joining in the execution of a

policy or act which is criminal in character.”

183

c. The Flick Case

In the Flick Case, Friedrich Flick and five other officials of the Flick

concern were tried before Military Tribunal IV at Nürnberg, Germany.

184

The

principle charges of war crimes and crimes against humanity against them were:

Count One (all defendants): Forced deportation, enslavement, use of

prisoners of war for war production.

185

Count Two (all defendants): Plunder and spoliation of property in

occupied territories.

186

Count Three (defendants Flick, Otto Steinbrinck & Konrad Kaletsch): The

“Aryanization,” or illegal acquisition, of Jewish properties.

187

Count Four (defendants Flick & Steinbrinck): Complicity in murders and

other crimes by the Nazi party and other Nazi organizations.

188

As to the use of forced or slave labor, the tribunal found that the slave-

labor program was run wholly by the German government and that the Flick

officials could not object to its mandates, including the use of the labor in Flick

plants.

189

Moreover, the tribunal found that the government set production quotas

for industrial plants, and the failure to meet these quotas would have resulted in

penalties, including losing control of the Flick plants and perhaps tenure in a

concentration camp for Flick officials.

190

The tribunal observed that the criminal

combinations that were generally present in Germany between industry and the

slave-labor program “did not prevail in the plants and establishments of the

defendants.”

191

The tribunal acquitted four defendants because of this “mere” compliance

with the German government’s mandate. Even though acting pursuant to

government orders was specifically disallowed as a defense to criminal liability

under Control Council Law No. 10, the tribunal distinguished the defense of

where his scienter or authority is established, or where he is the actual present or efficient actor.”

9 T

RIALS OF WAR CRIMINALS 1448.

183

The Farben case, 8 TRIALS OF WAR CRIMINALS 1157.

184

The Flick Case, 6 TRIALS OF WAR CRIMINALS 28.

185

Id. at 13.

186

Id. at 17.

187

Id. at 21.

188

Id. at 23.

189

Id. at 1196-97. “This was the only way workers could be procured.” Id. at 1197.

190

Id. at 1197.

191

Id. at 1199.

Challenges of Prosecuting Corporate Officials-189

necessity and also reasoned that corporate officials are not like military men who

might claim the defense of superior orders.

192

The one exception to the success of

this duress claim was certain activity by defendant Bernhard Weiss, who with the

knowledge and approval of Friedrich Flick, sought an increase in one production

quota (which would necessitate more forced labor) and specifically sought

Russian prisoners of war to meet the increased quota.

193

Both were convicted on

Count One, Weiss for going beyond the government mandate and Flick for his

knowledge and approval of Weiss’ initiative.

194

As to Count Two, Flick himself was found guilty of one instance of

exploiting a seized factory in an occupied territory, but the remaining defendants

were acquitted. The facts did not support any other plunder or spoliation because

Flick officials generally did nothing to take advantage of the occupation of

territories; they simply entered into business arrangements as they did in

peacetime. Those crimes that occurred in occupied territories grew from actions

of the government generally and not from Flick officials.

195

In the case of the

seized factory for which Flick was convicted, the other defendants had no

decisional authority in the matter.

196

None of the defendants were convicted under Count Three (charging

crimes against humanity), despite their “taking advantage of the . . . Aryanization

program by seeking and using State economic pressure to obtain from the owners,

not all of whom were Jewish, the four properties in question.”

197

The Flick

concern, for example, was able to take title to the Petschek coal mines after the

German government expropriated them and put them in trust for sale; the tribunal

reasoned that the crime of expropriation had already been completed by the time

Flick became involved

198

even if they received stolen property, whether or not it

was considered “stolen” under the German law of the Nazi era. Moreover, the

tribunal reasoned, even if the Flick concern had gained property through the

misery of others, crimes against humanity were traditionally considered crimes

against people and not their property.

199

As to their membership in the SS, both Flick and Steinbrinck were not

only members of the SS but were also members of an industrialist group that

became known as the Himmler Circle of Friends after the head of the SS,

Heinrich Himmler.

200

Both Flick and Steinbrinck made substantial contributions

to the Himmler Circle beginning in 1936, “[w]hen the criminal nature of the SS

was not generally known.”

201

“Flick suggested in his testimony that he regarded

192

Id. at 1200-01.

193

Id. at 1198.

194

Id. at 1202.

195

Id. at 1209-12.

196

Id. at 1206, 1212.

197

Id. at 1212.

198

Id.

199

Id. at 1213-16.

200

Id. at 1216-20.

201

Id. at 1219-20.

190-The Air Force Law Review

membership in the Circle as in the nature of insurance,” and the tribunal

recognized that it might be dangerous for Flick and Steinbrinck to terminate their

contributions after the SS’s criminal activities became known.

202

Nonetheless, the

tribunal convicted both men for giving Himmler a “blank check” that he could use

to maintain his criminal organization.

203

For all of their crimes, Flick was

sentenced to seven years’ confinement, Steinbrinck to five and Weiss to two and

one-half.

204

d. Commissioner v. Roechling

Hermann Roechling and four other leading officials of his family firm,

Roechling Enterprises, were tried for war crimes before a military tribunal in the

French Zone of Occupation in Germany.

205

The trial was premised on a similar

principle as that of the Farben Case: German wars of aggression and war crimes

“could not have been rendered possible, except with the conscious assistance of

certain great German industrialists and financiers.”

206

All five defendants were

also accused of plunder and spoliation and for using forced labor, and Hermann

Roechling himself was also tried for participation in the preparation and planning

of wars of aggression.

207

By his own admission, Roechling was at several secret

conferences with Hermann Göring in 1936 and 1937 where long-term national

plans were discussed, but he denied being privy to any discussion of wars of

aggression, merely to discussions on German rearmament and economic

development, the purposes of which were not necessarily the same as those for the

waging of aggressive war.

208

Roechling was also credited with proposing the use

of poor-grade iron ore found in Germany (when proper iron ore could not be

obtained from abroad) to support mass production of German armaments.

209

trial, the tribunal found no evidence to show Roechling knew of the eventual wars

of aggression and acquitted him of preparing for wars of aggression, but the

tribunal convicted him for contributing to their continuance.

210

The tribunal

pointed out that Roechling “stepped out of his role of industrialist, demanded and

202

Id. at 1220-21.

203

Id. at 1221.

204

Id. at 1223.

205

Commissioner v. Roechling, Indictment, in 14 TRIALS OF WAR CRIMINALS 1061, 1061.

206

Commissioner v. Roechling et al., Indictment, in 14 TRIALS OF WAR CRIMINALS 1061, 1061-62.

207

Id. at 1072-74.

208

Commissioner v. Roechling, Judgment of the General Tribunal of Military Government for the

French Zone of Occupation in Germany, June 30, 1948, in 14 T

RIALS OF WAR CRIMINALS at 1075,

1077.

209

Roechling, Indictment, in 14 TRIALS OF WAR CRIMINALS 1061, 1065; see also Roechling,

Judgment of the General Tribunal of Military Government, in 14 T

RIALS OF WAR CRIMINALS at

1075, 1077.

210

Id. at 1078-79.

Challenges of Prosecuting Corporate Officials-191

accepted high administrative positions in order to develop German ferrous [iron]

production.”

211

For the other counts against him, the Roechling tribunal relied on

Roechling’s administrative role in the German government, in which he

endeavored to maximize steel production.

212

To do this, he plundered plants in

occupied territory and exploited them to “produce for the German war effort,”

213

for which the tribunal convicted him.

214

The tribunal also recounted how

Roechling “lavished advice on the Nazi government in order to utilize the

inhabitants of occupied countries for the war effort of the Reich.” and specifically

requested certain categories of workers in occupied territories that he believed

would aid production.

215

Given his conduct in requesting laborers who would be

mistreated, mistreatment to which he was at best indifferent, the tribunal

convicted him of crimes by using forced labor.

216

As to the defendant Ernst Roechling, Hermann Roechling’s cousin, he was

acquitted largely due to his limited duties as a company liaison in Paris, even if he

was a company official involved “mainly in the control and supervision of iron

and steel plants and enterprises in the occupied countries.

217

Hermann

Roechling’s son-in-law, Hans Lothar von Gemmingen-Hornberg, did not fare as

well; he was convicted of war crimes and crimes against humanity because, as

plant manager, he knew of the horrid conditions in the plant and failed to use his

power to alleviate the conditions of the workers.

218

His subordinate, Wilhelm

Rodenhauser, was also convicted as he was “especially in charge of labor” and

also failed to alleviate the conditions of the laborers despite his power to do so.

219

Under the French tribunal system, an appeal was allowed.

220

On appeal,

the Superior Military Government Court of the French Occupation Zone in

Germany held that Roechling’s involvement in rearmament and in supporting the

211

Id. at 1078 (emphasis added).

212

Id. at 1080.

213

Id. at 1080-81.

214

Id. at 1085.

215

Id. He specifically requested Russian youths of about sixteen years of age “for labor in the iron

industry” and specifically requested Belgian males aged eighteen to twenty-five, stating, “If a

large number of young Belgians are in our hands in close formations, they will also serve as

hostages for the good conduct of their parents.” Id.

216

Id. at 1086-89.

217

Id. at 1089-91. Another defendant, Albert Maier, was also acquitted because he never “stepped

out of his functions as financial director” and was not privy to the facts leading to the charges. Id.

at 1093.

218

Id. at 1092.

219

Id. at 1093-95. On appeal, they were also found to have approved of the deportation of

workers. Commissioner v. Roechling, Judgment of the Superior Military Government Court of the

French Occupation Zone in Germany, Jan. 25, 1949, in 14 T

RIALS OF WAR CRIMINALS at 1097,

1134.

220

ANNUAL DIGEST AND REPORTS OF PUBLIC INTERNATIONAL LAW CASES 404 and n.2 (H.

Lauterpacht ed., 1948).

192-The Air Force Law Review

war efforts (once they began) did not amount to participation in the waging of

wars.

221

The court made this determination because Roechling

—in spite of his participation in certain conferences with Goering,

in spite of his determination to get the principle of the utilization of

low-grade ores accepted, in spite of his letter to Hitler of June

1940, in spite of his program for the Germinization of the annexed

provinces, in spite of his appointment as “General

Plenipotentiary,” “Reich Plenipotentiary,” and president of the

Reich Association Iron, in which capacity he gave a lecture in

Knuttange in order to explain his authoritative power, . . . in spite

of numerous other actions, which are besides evaluated as

component parts of war crimes—remains outside the boundary

which “has been fixed very high by the” International Military

Tribunal.

222

Hermann Roechling’s other convictions were essentially upheld, but his

cousin’s earlier acquittal was reversed on appeal. The appellate court found that

he played an important role “in the enslavement of French industry and in its

systemic spoliation.”

223

The court specifically noted how Ernst obtained a large

sum from the occupied French government to cover operating deficits in certain

enterprises and how he surveyed French companies to see how they could be

exploited.

224

Hermann Roechling’s sentence on appeal included ten years’

confinement and confiscation of his entire property, and the other defendants

received lesser punishments, all of which included confinement.

225

e. The Zyklon B Case

226

The Zyklon B Case contains perhaps the clearest example of criminal

facilitation seen in any of the prosecutions of corporate officials. Dr. Bruno

Tesch, the owner of a firm that supplied Zyklon B gas and other products, and

two of his employees, Karl Weinbacher and Joachim Drosihn, were charged with

a war crime for supplying “poison gas used for the extermination of allied

nationals in concentration camps, well knowing that the said gas was to be so

221

Roechling, Judgment of the Superior Military Government Court, in 14 TRIALS OF WAR

CRIMINALS at 1097, 1108-09. This French Zone appellate court was international in its

composition. See id. at 1097.

222

Id. at 1109-10.

223

Id. at 1119.

224

Id. at 1119-24.

225

Id. at 1142.

226

Trial of Bruno Tesch and Two Others (The Zyklon B Case), Brit. Mil. Ct. Hamburg 1946, in

NITED NATIONS WAR CRIMES COMMISSION, 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93

(1947).

Challenges of Prosecuting Corporate Officials-193

used.”

227

Although Zyklon B was manufactured and shipped by another company,

Tesch’s firm was the exclusive agent for the supply of the gas east of the Elbe

River and thus arranged for the shipments, which included “vast quantities to the

largest concentration camps in Germany east of the Elbe.”

228

The key issue in the case was whether the defendants knew the criminal

purpose for which the camp officials used the Zyklon B. Several officials in

Tesch’s firm presented evidence that Tesch did in fact know how the gas was

used. They described how Tesch revealed his knowledge in statements both made

in his travel reports and made to them in conversations with Tesch. One witness

reported he saw one of Tesch’s travel reports that recounted how Tesch himself

had refined the idea of using gas to kill Jews and how “[h]e undertook to train the

SS men in this new method of killing human beings.”

229

There was no such

smoking gun with which to convict Weinbacher, but he held the role of

“procurist” in the firm, which essentially made him the alter ego of the head of the

firm, and as such, he could conclude any business as if he were the head of the

firm.

230

The prosecutor argued that due to Weinbacher’s position within the firm,

he must have known everything that Tesch knew, particularly so because he ran

the firm for 200 days of the year and had to be familiar with all of the firm’s

efforts, including those recounted in Tesch’s travel reports.

231

The prosecutor also

argued that due to the large quantities of Zyklon B used by the concentration

camps, particularly Auschwitz (it was the firm’s second biggest customer for

1942 and 1943), neither could have failed to know the purposes behind such large

shipments.

232

The third defendant, Drosihn, was admitted by the prosecution to be on the

technical, rather than the sales or management, side of the firm,

233

and Drosihn

testified that he spent about half the year traveling to resolve technical issues.

234

He admitted to have inspected the proper workings of the delousing chambers at

two camps, but he had never been to Auschwitz.

235

He also testified that he had

reported to Tesch that he had seen inhumane treatment at the camps.

236

The judge

advocate assisting the tribunal asked the tribunal to evaluate Drosihn’s

“subordinate position in the firm, and asked whether there was any evidence that

he was in a position either to influence the transfer of gas to Auschwitz or to

prevent it. If he were not in such a position, no knowledge of the use to which the

227

Id. at 93-94.

228

Id. at 94.

229

Id. at 95.

230

Id.

231

Id. at 101.

232

Id.

233

Id.

234

Id. at 98.

235

Id.

236

Id.

194-The Air Force Law Review

gas was being put could make him guilty.”

237

The tribunal appeared to agree that

he had no ability to influence the matter and acquitted Drosihn.

Tesch and Weinbacher, however, were convicted and sentenced to death

by hanging.

238

The judge advocate advised the tribunal that, to convict, they had

to be sure that the defendants knew that the gas would be used for killing human

beings when they supplied it.

239

The judge advocate also discussed what amounts

to a “deliberate avoidance” or “conscious avoidance” instruction:

240

To my mind, although it is entirely a question for you, the real

strength of the Prosecution in this case rests rather upon the

general proposition that, when you reali[z]e what kind of a man

Dr. Tesch was, it inevitably follows that he must have known

every little thing about his business. The Prosecution ask[s] you to

say that the accused and his second-in-command Weinbacher, both

competent business men, were sensitive about admitting that they

knew at the relevant time of the size of the deliveries of poison gas

to Auschwitz. The Prosecution then ask[s]: “Why is it that these

competent business men are so sensitive about these particular

deliveries? Is it because they themselves knew that such large

deliveries could not possibly be going there for the purpose of

delousing clothing or for the purpose of disinfecting buildings?”

241

Although the tribunal did not state the grounds upon which its decision rested,

there was no out-of-court admission by Weinbacher as to his knowledge, and the

decision would thus appear to rest on the inference that a competent business

person in a leadership position will know the context behind the major efforts of

his business. Indeed, it is only logical that a person selling a product will try to

assess the needs of his or her customer in order to increase sales. Thus, tribunals

will impute knowledge to certain corporate officials if the officials ordinarily

must have knowledge of that type to effectively carry out his or her duties.

237

Id. at 102.

238

Id.

239

Id. at 101.

240

“A conscious avoidance instruction permits a jury to find that a defendant had culpable

knowledge of a fact when the evidence shows that the defendant intentionally avoided confirming

the fact.” United States v. Ferrini, 219 F.3d 145, 154 (2d Cir. 2000) (citing United States v.

Adeniji, 31 F.3d 58, 62 (2d Cir. 1994)), see also United States v. Brown, 50 M.J. 262 (1999)

(“deliberate avoidance” instruction).

241

The Zyklon B Case, Brit. Mil. Ct. Hamburg 1946, in UNITED NATIONS WAR CRIMES

COMMISSION, 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93, 101 (1947).

Challenges of Prosecuting Corporate Officials-195

2. Prosecutions of Japanese War Criminals

a. Economic and Financial Leaders Tried before the International Military

Tribunal for the Far East

There were two prominent financial leaders who were defendants before

the International Military Tribunal for the Far East: Hoshino Naoki and Kaya

Okinori.

242

Both were convicted of the same five counts, although each had been

charged with other crimes.

243

Both were convicted of conspiring to wage and

indeed of aiding in the waging of various wars of aggression against China, the

United States, the British Commonwealth, and the Netherlands.

244

Both were

sentenced to prison for life,

245

but both were paroled in 1955.

246

Hoshino served in several important posts, particularly financial posts, in

Japanese occupied Manchuria (Manchukuo). “In these positions he was able to

exercise a profound influence upon the economy of Manchukuo and did exert that

influence towards Japanese domination of the commercial and industrial

development of that country.”

247

Further, he was “[i]n effect, if not in name, . . . a

functionary of [the Japanese] Army whose economic policy was directed to

making the resources of Manchujuo serve the warlike purposes of Japan.”

248

His

later cabinet roles also allowed him to join in planning for and waging aggressive

wars.

249

Kaya was twice Finance Minister and twice was an advisor to the Finance

Ministry; he also held posts in the Manchurian Affairs Bureau, on the Asia

Development Committee and as President of the North China Development

Company.

250

“In these positions he took part in the formulation of aggressive

policies of Japan and in the financial, economic and industrial preparation of

Japan for the execution of those policies.”

251

More specifically, “he was actively

engaged in the preparation for and the carrying out of aggressive wars in China

and against the Western Powers,” and thus played an active role in the conspiracy

242

See United States v. Araki, R. at 48414, Int’l Mil. Trib. Far East (1948), reprinted in 101 THE

TOKYO MAJOR WAR CRIMES TRIAL: THE JUDGMENT, SEPARATE OPINIONS, PROCEEDINGS IN

CHAMBERS, APPEALS AND REVIEWS OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR

EAST (R. John Pritchard ed., 1998) [hereinafter TOKYO MAJOR WAR CRIMES TRIAL].

243

These were Counts 1, 27, 29, 31 and 32. Id., R. at 49793-95 (Hoshino) and 49801-02 (Kaya),

reprinted in 103

TOKYO MAJOR WAR CRIMES TRIAL.

244

Id., R. at 49793-95 (Hoshino) and 49801-02 (Kaya), reprinted in 103 TOKYO MAJOR WAR

CRIMES TRIAL. For the indictment, see id., R. at 33, 51-52, reprinted in 2 TOKYO MAJOR WAR

CRIMES TRIAL.

245

Id., R. at 49855-58, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.

246

ARNOLD C. BRACKMAN, THE OTHER NUREMBERG 407-08 (1987).

247

Araki, R. at 49793, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.

248

Id., R. at 49793, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.

249

Id., R. at 49793-94, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.

250

Id., R. at 49801, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.

251

Id., R. at 49801, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.

196-The Air Force Law Review

to wage aggressive war.

252

The judgment of the tribunal revealed that the guilt of

these men was derived from their role as government officials rather than from

any of their personal or corporate commercial activities, but their convictions

nonetheless serve as a reminder that war—and war crimes—are dependent in part

upon economic support.

b. In re Awochi

Washio Awochi was tried by the Netherlands Temporary Court-Martial at

Batavia for forcing Dutch women into prostitution during the Japanese occupation

of Batavia.

253

After the Japanese occupied the Dutch East Indies, Awochi began

operating the Sakura Club, which consisted of a restaurant, bar and brothel, all of

which was exclusively reserved for Japanese civilians.

254

Awochi initially

recruited women to be staff at the restaurant or bar without revealing his brothel

operation. Then, once they were hired, he gave them a choice: work as a

prostitute in his brothel or be turned over to the Japanese police for imprisonment,

deportation or beatings.

255

Awochi argued that his mistress, Lies Beerhorst, actually ran the brothel

and issued the threats that forced these women into prostitution.

256

The court-

martial found that Awochi’s financial interest and profits were too great, and his

relationship with Beerhorst too close, for him to be unaware of the compelled

nature of the prostitution.

257

Despite Awochi’s additional argument that he was

compelled to conduct this business at the order of the Japanese government, the

court-martial found Awochi guilty of the war crime of “enforced prostitution” and

sentenced him to ten years’ imprisonment.

258

Awochi is another example of a

business person, like many of the industrialists in Germany, who took illegal

advantage of military occupation to make a greater profit and thus committed a

crime.

3. The Acquittal of Karl Rasche in the Ministries Case

259

In the Ministries Case, twenty-one defendants, including three Reich

ministers, were tried for crimes alleged to have occurred as a result, principally, of

their authority as officials of the Reich government.

260

Of what is particular

252

Id., R. at 49801-02, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.

253

In re Awochi, Neth. Temp. Ct. Martial Batavia 1946, in UNITED NATIONS WAR CRIMES

COMMISSION, 13 LAW REPORTS OF TRIALS OF WAR CRIMINALS 122 (1949).

254

Id. at 122.

255

Id. at 122-23.

256

Id. at 123, 125.

257

Id. at 125.

258

Id. at 123.

259

United States v. von Weizsaecker (hereinafter The Ministries Case), in 12-14 TRIALS OF WAR

CRIMINALS (1949).

260

Id., 12 TRIALS OF WAR CRIMINALS at 1.

Challenges of Prosecuting Corporate Officials-197

concern to a discussion of prosecution of corporate officials is the judgment of

U.S. Military Tribunal IV regarding defendant Karl Rasche. Rasche was a

member of the vorstand of Dresdner Bank, an official in a number of other banks

and firms, an officer in the SS, a member of the Nazi party, and a member of the

Himmler Circle of Friends.

261

The tribunal characterized Rasche as “a banker by profession,” whose

main activities were that of an executive officer of Dresdner Bank.

262

The tribunal

noted that the bank was involved in financing Nazi activities in which crimes

occurred: “The evidence clearly establishes that Dresdner Bank loaned very large

sums of money to various SS enterprises which employed large numbers of

inmates of concentration camps, and also to Reich enterprises and agencies

engaged in the so-called resettlement program.”

263

As part of this charge (Count

Five), Rasche also funneled large contributions from Dresdner Bank to the

Himmler Circle of Friends.

264

The tribunal declined to find Rasche criminally

responsible for the donations to the Himmler Circle of Friends as there was no

evidence “that Rasche knew any part of the fund to which the bank made

contributions was intended to be or was ever used by Himmler for unlawful

purposes.”

265

Although the tribunal found the bank loans made by Dresdner bank to be a

closer case, the tribunal also acquitted

266

Rasche of aiding crimes through his

approval of Dresdner Bank loans, reasoning—in essence—that a business

transaction does not convert the businessman into a partner of a criminal

enterprise:

The defendant is a banker and businessman of long

experience and is possessed of a keen and active mind. Bankers do

not approve or make loans in the number and amount made by

Dresdner Bank without ascertaining, having, or obtaining

information or knowledge as to the purpose for which the loan is

sought, and how it is to be used. It is inconceivable to us that the

defendant did not possess that knowledge, and we find that he did.

The real question is, is it a crime to make a loan, knowing

or having reason to believe that the borrower will use the funds in

financing enterprises which are employed in using labor in

violation of either national or international law? Does he stand in

261

Id., 12 TRIALS OF WAR CRIMINALS at 18.

262

Id., 12 TRIALS OF WAR CRIMINALS at 621.

263

Id., 14 TRIALS OF WAR CRIMINALS at 621.

264

Id., 14 TRIALS OF WAR CRIMINALS at 621-22.

265

Id., 14 TRIALS OF WAR CRIMINALS at 622.

266

Rasche was, however, found guilty of spoliation of property and of membership in a criminal

organization, the SS, while knowing of its criminal activities. Id., 14 T

RIALS OF WAR CRIMINALS

at 784, 863.

198-The Air Force Law Review

any different position than one who sells supplies or raw materials

to a builder building a house, knowing that the structure will be

used for an unlawful purpose? A bank sells money or credit in the

same manner as the merchandiser of any other commodity. It does

not become a partner in enterprise, and the interest charged is

merely the gross profit which the bank realizes from the

transaction, out of which it must deduct its business costs, and

from which it hopes to realize a net profit. Loans or sale of

commodities may well be condemned from a moral standpoint and

reflect no credit on the part of the lender or seller in either case,

but the transaction can hardly be said to be a crime.

267

Rasche was also acquitted of financing the use of slave labor and the

illegal use of prisoners of war for labor (Count Seven) on a number of grounds,

including inadequate proof as to knowledge of the criminal activities that were

funded, but the tribunal again emphasized the reasoning that they did in his

acquittal under Count Five: “We cannot go so far as to enunciate the proposition

that the official of a loaning bank is chargeable with the illegal operations alleged

to have resulted from the loans or which may have been contemplated by the

borrower.”

268

Because of this reasoning that makes the arms-length business transaction

a safe harbor for a corporate official, the prosecution of Rasche in the Ministries

Case may be one of the more important precedents to consider in future

prosecutions of corporate officials for violations of international humanitarian

law. Can Mr. Ocampo’s statement, that purchasers of blood diamonds, knowing

that their payments will be used to finance a group that commits genocide, may be

prosecuted, be correct in light of the judgment of Rasche in the Ministries Case?

Does the crime of complicity in genocide, as it stands today, differ enough from

Rasche’s prosecution for his financial support (through Dresdner Bank) of SS and

Reich efforts to “Aryanize” occupied territories, to deport maltreat civilians in

occupied territories, and to persecute Jews and other “undesirables”?

269

III. MAKING GENOCIDE A CRIME

In 1948, the world community established the crime of genocide with the

Convention on the Prevention and Punishment of the Crime of Genocide (the

Genocide Convention).

270

Under the convention, genocide consists of killings and

other acts “committed with intent to destroy, in whole or in part, a national,

267

Id., 14 TRIALS OF WAR CRIMINALS at 622 (emphasis added).

268

Id., 14 TRIALS OF WAR CRIMINALS at 854.

269

See id., 12 TRIALS OF WAR CRIMINALS 49 (Count Five of the indictment).

270

Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78

U.N.T.S. 277.

Challenges of Prosecuting Corporate Officials-199

ethnical, racial or religious group.”

271

The Genocide Convention specifically

allows prosecution of the designated crimes in both domestic and international

courts.

272

Naturally, genocide itself is punishable as a crime, but the Genocide

Convention also separately lists the crimes of conspiracy to commit genocide,

incitement to commit genocide, attempted genocide, and complicity in

genocide.

273

As William Schabas points out, “[c]omplicity is sometimes described as

secondary participation, but when applied to genocide, there is nothing

‘secondary’ about it. The ‘accomplice’ is often the real villain, and the ‘principal

offender’ a small cog in the machine.”

274

However, complicity is not an offense

additional to aiding, abetting, assisting or whatever other term of facilitation one

chooses to use. For example, when the United Kingdom incorporated the

Genocide Convention into its domestic law, it did not include a separate provision

on complicity in genocide because of the redundancy of such a provision with the

existing UK law on aiding and abetting.

275

IV. MODERN PROSECUTIONS OF PERSONS COMPLICIT

IN GENOCIDE, IN WAR CRIMES AND IN CRIMES AGAINST

HUMANITY: CASES ARISING BEFORE THE INTERNATIONAL

CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND FOR

RWANDA

There have been only a few opportunities since World War II for any

international tribunals to develop the law concerning war crimes and crimes

against humanity. The two principal tribunals that have developed that law are

the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the

International Criminal Tribunal for Rwanda (ICTR). Although the conflicts in

Yugoslavia and in Rwanda were not generally considered to be conflicts between

states, the international community saw to it that the crimes that occurred during

these “internal” conflicts would be prosecuted. Accordingly, in Prosecutor v.

Tadić, the ICTY Appeals Chamber ruled that certain crimes arising in internal

armed conflicts are crimes under international law, allowing for jurisdiction by

the tribunal.

276

When ICTR was created, the rule announced in Tadić was made

part of ICTR’s charter.

277

Although neither tribunal has heard a case of an

271

Id., art. II, 78 U.N.T.S. at 280.

272

Id., art. VI, 78 U.N.T.S. at 280, 282.

273

Id., art. III, 78 U.N.T.S. at 280.

274

WILLIAM A. SCHABAS, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES 286 (2000).

275

Id. at 287 (citing 777 PARL. DEB., H.C. (5th ser.) (1969) 480-509).

276

Prosecutor v. Tadić, Decision on the Def. Motion for Interlocutory Appeal on Jurisdiction,

Case No. IT-94-1-AR72, 2 Oct. 1995, paras.102-03, 127, 141.

277

International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and

Other Serious Violations of International Humanitarian Law Committed in the Territory of

Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed

in the Territory of Neighboring States, between 1 January 1994 and 31 December 1994, S.C. Res.

200-The Air Force Law Review

industrialist, financier or corporate official, their decisions on individual

responsibility for assistance rendered to persons engaged in criminal activity are

important analogies in the analysis of how corporate officials may become

criminally liable for their business transactions.

A. Prosecutor v. Tadić

Duško Tadić was a leading member of the Serb Democratic Party and a

soldier in Serb paramilitary forces.

278

He was ultimately convicted of, among

other things, participating in killings “committed during an armed conflict as part

of widespread or systematic attack on a civilian population.”

279

His case was one

of the first cases decided by either of the ad hoc tribunals. As part of a wide-

ranging judgment, the trial chamber in Tadić examined the “Parameters of

Individual Responsibility” that may allow a person to be held criminally

responsible for rendering assistance in the planning, preparation or execution of a

crime against humanity.

280

The Trial Chamber turned to “the Nürnberg war

crimes trials, which resulted in several convictions for complicitous conduct,” and

distilled the criteria those tribunals used to determine guilt. In what amounted to

a restatement of post-World War II tribunal law, the Tadić trial chamber

concluded that before an individual could be convicted, the prosecution must

prove intent,

281

direct contribution to the commission of the crime,

282

and sufficient

individual participation.

283

With regard to intent, the Tadić Trial Chamber’s review of the post-World

War II cases revealed that intent can be shown when a person renders assistance

to a person in committing a crime while knowing specifically that the crime will

be committed.

284

These post-World War II cases also showed that knowledge can

be presumed or inferred from certain circumstances, such as killings in a

concentration camp where the accused is employed in any capacity due to the

systematic and widespread nature of the killing, making such knowledge

955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, art. 1, at 3, UN Doc. S/INF/50 (1994)

[hereinafter ICTR Statute]. The tribunal was created at the request of the Rwandan government.

Id. at 2.

278

Prosecutor v Tadić , Case No. IT-94-1-T, T. Ch. II, Sentencing Judgment, 14 July 1997, slip

op. at 23.

279

Prosecutor v. Tadić, Appeals Judgment, Case No. IT-94-1-A, July 15, 1999, para. 233. He was

also responsible for cruel and inhumane treatment detainees who were at camps or in the process

of being forcibly transferred from their homes; this treatment included beatings and one

particularly gruesome sexual mutilation. Tadić Sentencing Judgment, slip op. at 8, 14, 16, 19-20.

A number of these victims ultimately died. Id. He was also convicted of taking part in the

persecution of Muslims, which included killings and forced transfers. Id. at 21.

280

Id., paras. 670-87.

281

Id., paras. 675-77.

282

Id., paras. 678-80.

283

Id., paras. 681-87.

284

Id., para. 675.

Challenges of Prosecuting Corporate Officials-201

unavoidable.

285

The Tadić Trial Chamber also concluded that criminal liability is

not dependent upon a prior agreement to render assistance in a crime; the person

assisting need only know that his or her acts were done in furtherance of the

shared criminal activity.

286

The Tadić Trial Chamber also found in post-World War II cases a

requirement for “a deliberate act if an accused is to be held criminally culpable[,]

and this deliberate act must directly affect the commission of the crime itself.”

287

Although physical presence without direct contribution to the crime is insufficient

for criminal liability, direct contribution without physical presence during the

commission of the crime, on the other hand, can allow for criminal liability.

288

The Trial Chamber in Tadić used the Zyklon B Case as an example of direct

contribution without physical presence: the prosecutor had argued that because

the suppliers “put the means of committing the crime of extermination in the

hands of concentration camp officials,” knowing “‘that the gas was to be used for

the purpose of killing human beings,’” the suppliers themselves were war

criminals.

289

Since two of the Zyklon B suppliers had been found guilty after a

court finding that the act of supplying the gas was done with the knowledge of its

intended purpose, the trial chamber in Tadić reasoned that the military “court

necessarily must have made the determination that without the supply of gas the

exterminations would not have occurred in that manner, and therefore that the

actions of the accused directly assisted in the commission of the illegal act of

mass extermination.”

290

The Tadić Trial Chamber then turned to the tricky question of what extent

of participation is required for criminal liability. A review of post-World War II

cases revealed several examples of sufficient participation: (1) providing

information that enables the commission of a crime is sufficient participation;

291

(2) preventing interference in a joint criminal enterprise is sufficient

participation;

292

and (3) failure to intervene and prevent a crime when empowered

to do so is sufficient participation.

293

The Trial Chamber then went on to

announce its findings on the state of the law:

285

Id., paras. 675-76.

286

Id., para. 677.

287

Id., para. 678.

288

Id., para. 679.

289

Id., para. 680 (citing and quoting The Zyklon B Case, 1 L. Rep. Trials War Crim. 93, 93 (Brit.

Mil. Ct. 1946)).

290

Tadić Opinion and Judgment, para. 680 (citing The Zyklon B Case, 1 L. Rep. Trials War Crim.

93, 93 (Brit. Mil. Ct. 1946)).

291

Tadić Opinion and Judgment, paras. 684 (citing the case of Karl Hocker in Vol. II, War Crimes

Reports 418-19) & 687 (citing the case of France v. Becker et al., 7 L. Rep. Trials War Crim. 67,

70 (Fr. Perm. Mil. Trib.)).

292

Tadić, Opinion and Judgment, para. 685 (citing Trial of Sandrock et al., 1 L. Rep. Trials War

Crim. 35, 43 (Brit. Mil. Ct. 1947)).

293

Tadić Opinion and Judgment, para. 686 (citing United States v. Goebell et al., Case no. 12-489,

Report, Survey of the Trials of War Crimes Held at Dachau, Germany, 2-3 (Sep. 15, 1948)).

202-The Air Force Law Review

The Trial Chamber finds that aiding and abetting includes all acts

of assistance by words or acts that lend encouragement or support,

as long as the requisite intent is present. Under this theory,

presence alone is not sufficient if it is ignorant or unwilling

presence. However, if the presence can be shown or inferred . . . to

be knowing and to have a direct and substantial effect of the

commission of the illegal act, then it is sufficient.

. . . However, actual physical presence when the crime is

committed is not necessary; . . . an accused can be considered to

have participated in the commission of a crime . . . if he is found to

be “concerned with the killing.” However, the acts of the accused

must be direct and substantial.

In sum, the accused will be found criminally culpable for any

conduct where it is determined that he knowingly participated in

the commission of an offence that violates international

humanitarian law and his participation directly and substantially

affected the commission of that offence through supporting the

actual commission before, during, or after the incident. He will

also be responsible for all that naturally results from the

commission of the act in question.

294

As an example of this reasoning, the trial chamber examined evidence that a

Muslim prisoner, who had been severely beaten, was thrown into a room by

Tadić, who stated, “You will remember, Sivac, that you cannot touch a Serb or

say anything to a Serb.”

295

Even though there was no direct evidence that Tadić

had physically beat the man, his act of throwing the man and his verbal parting

shot, which occurred after the beating, was found to directly and substantially

assist the common purpose of the group of Serbs to beat this prisoner severely.

296

Upon Tadić’s appeal, the appeals chamber explained further, while

distinguishing aiding and abetting from criminal liability arising from a joint

criminal enterprise:

(i) The aider and abettor is always an accessory to a crime

perpetrated by another person, the principal.

(ii) In the case of aiding and abetting no proof is required of the

existence of a common concerted plan, let alone of the pre-

294

Tadić Opinion and Judgment, paras. 689, 691-92.

295

Id., para. 735.

296

Id., paras. 735 & 738. Tadić’s act was considered both a war crime because the victim was a

prisoner and a crime against humanity because it occurred as part of a systematic attack on a

civilian population. Id., paras. 734 & 737.

Challenges of Prosecuting Corporate Officials-203

existence of such a plan. No plan or agreement is required: indeed,

the principal may not even know about the accomplice’s

contribution.

(iii) The aider and abettor carries out acts specifically directed to

assist, encourage or lend moral support to the perpetration of a

certain specific crime (murder, extermination, rape, torture, wanton

destruction of civilian property, etc.), and this support has a

substantial effect upon the perpetration of the crime. By contrast,

in the case of acting in pursuance of a common purpose or design,

it is sufficient for the participant to perform acts that in some way

are directed to the furthering of the common plan or purpose.

(iv) In the case of aiding and abetting, the requisite mental element

is knowledge that the acts performed by the aider and abettor assist

the commission of a specific crime by the principal. By contrast,

in the case of common purpose or design more is required (i.e.,

either intent to perpetrate the crime or intent to pursue the common

criminal design plus foresight that those crimes outside the

criminal common purpose were likely to be committed), as stated

above.

297

In its explanation, the Appeals Chamber supported the Trial Chamber’s

conclusion that the prosecution must prove, in an aiding or abetting prosecution,

that the accused’s actions had a direct and substantial effect on the commission of

the offense.

B. Prosecutor v. Akayesu

Jean-Paul Akayesu was convicted by the ICTR Trial Chamber of various

crimes against humanity—murder, rape, extermination, torture and other

inhumane acts—and of genocide.

298

The Akayesu judgment was an early

judgment rendered by ICTR, and this decision—like Tadić—included a wide-

ranging review of basic law of the tribunal. Although the trial chamber ultimately

acquitted Akayesu of complicity in genocide because it found the prosecution had

established the underlying crime of genocide (he could not be both the perpetrator

and accomplice to the same offense),

299

the discussion in the ruling gave some

guidance on how one can be found guilty for facilitating a crime. For example,

the Akayesu judgment cited with approval one key determination of the Tadić

judgment, that aiding and abetting requires intent, knowledge and a direct and

substantial contribution to the commission of an offense.

300

297

Prosecutor v. Tadić, Appeals Judgment, Case No. IT-94-1-A, July 15, 1999, para. 229.

298

Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, Sept. 2, 1998, § 8 (verdict).

299

Id., paras. 700 & 734.

300

Id., paras. 477 & 548.

204-The Air Force Law Review

Although it is somewhat unclear since Akayesu actually ordered some

attacks,

301

the trial chamber seemed to find that he was also complicit in genocide

by not exercising his authority to stop the killings of Tutsis: “Indeed, the Chamber

holds that the fact that Akayesu, as a local authority, failed to oppose such killings

and serious bodily or mental harm constituted a form of tacit encouragement,

which was compounded by being present to such criminal acts.”

302

This is similar

to the criminal liability imposed in the Industrialist Cases upon corporate officers

who, while having authority to intervene, fail to stop a crime being committed by

the corporation.

Along the way, the Akayesu trial chamber did state its opinion on what

constitutes the crime of complicity in genocide. The trial chamber first held that

one could not be complicit in genocide unless in fact genocide did occur.

303

The

trial chamber also concluded that an accused need not share the specific intent to

commit genocide as long as “he knowingly aided or abetted or instigated one or

more persons in the commission of genocide, while knowing that such a person or

persons were committing genocide. . . .”

304

In other words, an accomplice may

not even wish the crime to occur, but he is still willing to provide the aid to the

principal offender for another reason, such as profit.

305

The tribunal also discussed the forms that the crime of complicity can

take. It noted that “three forms of accomplice participation are recognized in

301

Id., para. 704.

302

Id., para. 705 As to Akayesu’s authority, the trial chamber found that

Akayesu, in his capacity as bourgmestre, was responsible for maintaining law

and public order in the commune of Taba and that he had effective authority

over the communal police. Moreover, as “leader” of Taba commune, of which

he was one of the most prominent figures, the inhabitants respected him and

followed his orders. Akayesu himself admitted before the Chamber that he had

the power to assemble the population and that they obeyed his instructions.

Id., para. 704.

303

Id., para. 530. The tribunal determined this after reviewing what it means to be complicit in a

crime: “[T]he conduct of the accomplice emerges as a crime when the crime has been

consummated by the principal perpetrator. The accomplice has not committed an autonomous

crime, but has merely facilitated the criminal enterprise committed by another.” Id., para. 528.

Certain U.S. jurisdictions do punish “attempted complicity.” See Robert Weisberg, The Model

Penal Code Revisited: Reappraising Complicity, 4 B

UFF. CRIM. L. REV. 217, 234 (2000).

304

Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, (Sept. 2, 1998), para. 545.

305

Diane Maria Amann, Capital Punishment: Corporate Criminal Liability for Gross Violations

of Human Rights, 24 H

ASTINGS INT’L & COMP. L. REV. 327, 328 (2001). Although she favors

imposing criminal liability on corporations in certain circumstances, Professor Amann is troubled

by this standard of criminal liability:

It is essential that the standards of knowledge and intent to which corporate

defendants are held satisfy strict penal standards. Criminal conviction for what

approaches a crime of association ought to be avoided. The Akayesu complicity

standard may have value in civil litigation against corporations, but in the

criminal context that standard invites doubt about the fairness of conviction even

of an individual sentient being. These concerns increase in the context of a

collective, artificially intelligent being.

Id. at 336.

Challenges of Prosecuting Corporate Officials-205

most criminal Civil Law systems: complicity by instigation, complicity by aiding

and abetting, and complicity by procuring means.”

306

The tribunal saw little

difference in common law systems, which punished “aiding and abetting” and

“counseling and procuring.”

307

The tribunal described these forms of complicity

simply:

Complicity by aiding or abetting implies a positive action which

excludes, in principle, complicity by failure to act or omission.

Procuring means is a very common form of complicity. It covers

those persons who procured weapons, instruments or any other

means to be used in the commission of an offence, with the full

knowledge that they would be used for such purposes.

308

What seems to be clear is that “any other means” would include items that are

directly useful in committing genocide, like weapons or like Zyklon B gas. What

is far from certain is whether “any other means” includes items—like money—

that are indirectly useful for committing genocide.

C. Further Development on the Nature of Intent Required to be

Proven for Aiding and Abetting

Radoslav Brdjanin was tried before ICTY, charged with the crime of

genocide based on joint criminal enterprise liability, specifically the “third

category of joint criminal enterprise liability,” which concerns “criminal liability

of an accused for crimes which fall outside of an agreed upon criminal enterprise,

but which crimes are nonetheless natural and foreseeable consequences of that

agreed upon criminal enterprise.”

309

The Trial Chamber determined that the

specific intent required for a conviction of genocide could not be “reconciled with

the mens rea required for a conviction pursuant to the third category of [joint

criminal enterprise],”

310

which “requires that the Prosecution prove only

awareness on the part of the accused that genocide was a foreseeable consequence

of the commission of a separately agreed upon crime.”

311

The appeals chamber in Brdjanin reversed the trial chamber, agreeing that

the prosecution need only prove “that accused entered into a joint criminal

enterprise to commit a different crime with the awareness that the commission of

that agreed-upon crime made it reasonably foreseeable to him that the crime

306

Akayesu Judgment, para. 533.

307

Id., para. 535.

308

Id., para. 536.

309

Prosecutor v. Brdjanin, Decision on Interlocutory Appeal, Case No. IT-99-36-A, Mar. 19,

2004, para. 1.

310

Id., para. 3.

311

Id., para. 2.

206-The Air Force Law Review

charged would be committed by other members of the joint criminal enterprise,

and it was committed.”

312

The appeals chamber elaborated further:

For example, an accused who enters into a joint criminal

enterprise to commit the crime of forcible transfer shares the intent

of the direct perpetrators to commit that crime. However, if the

Prosecution can establish that the direct perpetrator in fact

committed a different crime, and that the accused was aware that

the different crime was a natural and foreseeable consequence of

the agreement to forcibly transfer, then the accused can be

convicted of that different offence. Where that different crime is

the crime of genocide, the Prosecution will be required to establish

that it was reasonably foreseeable to the accused that an act

specified in Article 4(2) would be committed and that it would be

committed with genocidal intent.

. . .

This is the approach that the Appeals Chamber has taken

with respect to aiding and abetting the crime of persecution. An

accused will be held criminally responsible as an aider and abettor

of the crime of persecution where, the accused is aware of the

criminal act, and that the criminal act was committed with

discriminatory intent on the part of the principal perpetrator, and

that with that knowledge the accused made a substantial

contribution to the commission of that crime by the principal

perpetrator.

313

Judge Shahabuddeen wrote a concurring opinion to emphasize that the

prosecution still needed to prove an accused’s specific intent to commit another

crime and to prove that the accused had full awareness that genocide was a

foreseeable result of the other crime intended:

In Tadic, the Appeals Chamber did use the word “aware” but its

judgment shows that it was speaking of more than awareness. It

was referring to a case in which the accused, when committing the

original crime, was able to “predict” that a further crime could be

committed by his colleagues as the “natural and foreseeable

consequence of the effecting of [the] common purpose” of the

parties—and not the consequence of “negligence”—and that he

nevertheless “willingly” took the “risk” of that further crime being

committed. In effect, for the purposes of determining a no-case

[motion for judgment of acquittal] submission . . ., the accused in

312

Id., para. 5.

313

Id., paras. 6 & 8 (emphasis added).

Challenges of Prosecuting Corporate Officials-207

this case knew that genocide could be committed; any uncertainty

in his mind went to the question whether it would in fact be

committed, not to acceptance by him of it (if and when it was

committed) as something which he could “predict” as the “natural

and foreseeable consequence” of the activities of the joint criminal

enterprise to which he was a willing party. In that important sense

and for the purposes of determining such a submission, he

contributed to the commission of the genocide even though it did

not form part of the joint criminal enterprise. Putting it another

way, his intent to commit the original crime included the specific

intent to commit genocide also if and when genocide should be

committed.

314

Although the decision in Brdjanin explains the mens rea required for joint

criminal enterprise well, it is not particularly instructive for aiding and abetting as

there are key differences in the mens rea. As the Appeals Chamber explained in

Prosecutor v. Vasiljevic:

Participation in a joint criminal enterprise is a form of

“commission” under Article 7(1) of the Statute. The participant

therein is liable as a co-perpetrator of the crime(s). Aiding and

abetting the commission of a crime is usually considered to incur a

lesser degree of individual criminal responsibility than committing

a crime. In the context of a crime committed by several co-

perpetrators in a joint criminal enterprise, the aider and abettor is

always an accessory to these co-perpetrators, although the co-

perpetrators may not even know of the aider and abettor’s

contribution. Differences exist in relation to the actus reus as well

as to the mens rea requirements between both forms of individual

criminal responsibility:

(i) The aider and abettor carries out acts specifically directed to

assist, encourage or lend moral support to the perpetration of a

certain specific crime (murder, extermination, rape, torture, wanton

destruction of civilian property, etc.), and this support has a

substantial effect upon the perpetration of the crime. By contrast,

it is sufficient for a participant in a joint criminal enterprise to

perform acts that in some way are directed to the furtherance of the

common design.

(ii) In the case of aiding and abetting, the requisite mental

element is knowledge that the acts performed by the aider and

314

Id., para. 7 (separate op. of Judge Shahabuddeen) (emphasis in original).

208-The Air Force Law Review

abettor assist the commission of the specific crime of the principal.

By contrast, in the case of participation in a joint criminal

enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent

to pursue a common purpose.

315

The Appeals Chamber in Vasiljevic found that there was insufficient

evidence that Vasiljevic shared an intent to commit genocide,

316

but the court

concluded that he was nevertheless guilty of aiding and abetting murder.

317

The

Appeals Chamber was faced with a rather clear-cut set of facts with which to find

support that Vasiljevic criminally facilitated murder:

The Appeals Chamber has already found that the Appellant knew

that the seven Muslim men were to be killed; that he walked armed

with the group from the place where they had parked the cars to

the Drina River; that he pointed his gun at the seven Muslim men;

and that he stood behind the Muslim men with his gun together

with the other three offenders shortly before the shooting started.

The Appeals Chamber believes that the only reasonable inference

available on the totality of evidence is that the Appellant knew that

his acts would assist the commission of the murders. The Appeals

Chamber finds that in preventing the men from escaping on the

way to the river bank and during the shooting, the Appellant’s

actions had a “substantial effect upon the perpetration of the

crime.”

318

Thus, this is an example of assistance that comprises “substantial effect” in an

aiding and abetting case. Even if Vasiljevic played a supporting role, his

containment of the victims was a direct contribution to the crime.

In Prosecutor v. Krstić, the Appeals Chamber again distinguished between

joint criminal enterprise and aiding and abetting. Radislav Krstić was an officer

in the Bosnian Serb Army, the VRS,

319

and he assumed command of the Drina

Corps of the VRS in July 1995.

320

Krstić was sentenced to forty-six years’

confinement by the ICTY Trial Chamber, which had convicted him of genocide,

murder, persecution through murders, cruel and inhumane treatment, and other

war crimes and crimes against humanity.

321

One of Krstić’s convictions was

315

Prosecutor v. Vasiljevic, Appeals Judgment, Case No. IT-98-32-A, Feb. 23, 2004, para. 102.

316

Id., para. 131.

317

Id., para. 136.

318

Id., para. 135 (citing Tadic Appeals Judgement, para. 229).

319

Prosecutor v. Krstić, Appeals Judgment, Case No. IT-98-33-A, Apr. 19, 2004, para. 3.

320

Id., para. 45.

321

Id., para. 3.

Challenges of Prosecuting Corporate Officials-209

based on the conclusion of the Trial Chamber that Krstić was part of a joint

criminal enterprise to commit genocide.

322

The Appeals Chamber had set aside some findings of the trial chamber

that pointed to direct participation by Krstić in a joint criminal enterprise to

commit genocide and to specific intent on his part to commit genocide.

323

The

Appeals Chamber summed up the now changed case against him, noting that even

without the direct participation, the “evidence can establish . . . Krstić was aware

of the intent to commit genocide on the part of some members of the VRS Main

Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps

personnel and resources to facilitate those killings.”

324

Therefore, the Appeals

Chamber did not uphold Krstić’s conviction for taking part in a joint criminal

enterprise but instead found him guilty of aiding and abetting genocide.

325

One final example of aiding and abetting comes from an ICTR case.

Prosecutor v. Rutaganda, decided by the ICTR trial chamber in 1999, contains a

classic example of aiding by providing the means or instrumentality to commit an

offense. The evidence showed that Rutaganda thrice supplied guns for killing

Tutsis. On the first occasion, he distributed both guns and machetes he had

brought in his pick-up truck and noted that “there was a lot of dirt that needed to

be cleaned up.”

326

The trial chamber determined that Rutaganda aided the killing

of and the causing of serious bodily harm to various Tutsis.

327

V. COMPARISON OF THE LAW DEVELOPED BY POST-WORLD WAR

II TRIBUNALS AND THE LAW OF THE AD HOC U.N. TRIBUNALS

There are a number of important legal principles that were established or

reiterated in the post-World War II tribunals. A critical principle that was

established was that civilians (including corporate officials) could be held

individually responsible for war crimes and crimes against humanity. These

tribunals also established a number of principles regarding individual

responsibility, particularly as to business officials.

First, personal guilt was generally dependent upon personal knowledge.

The tribunals refused to impute knowledge of criminal activity to all officials of a

company. A person must have actual knowledge of another’s crime to be held

guilty for assisting that crime; having the facts with which to deduce that a crime

is being or will be committed is not enough. For example, Hjalmer Schacht

avoided criminal liability for Hitler’s wars of aggression, even though he held a

significant government post, because he wasn’t privy to Hitler’s plans. On the

322

Id., para. 79.

323

Id., paras. 80-134.

324

Id., para. 134.

325

Id., para. 143.

326

Prosecutor v. Rutaganda, Judgment and Sentence, Case No. ICTR-96-3-T, Dec. 6, 1999, para.

385.

327

Id., para. 386.

210-The Air Force Law Review

other hand, in certain concentration camps, knowledge of crimes was unavoidable

for all who ran the camp, even the lowest-level guard because the abuses were

widespread, open and notorious. Similarly, in the Zyklon B case, the tribunal held

that a competent business official in a key leadership post will have knowledge of

the activities under his direction.

The Zyklon B case also reveals a second important principle—that a

business official cannot escape liability for selling a multi-use product if that

official had personal knowledge of the criminal purpose for which that multi-use

product was used. The other side of that principle is that no matter how much one

assisted a criminal, one cannot be liable without knowledge if that assistance

could have been used for non-criminal purposes. For example, Schacht’s efforts

were central to rearmament (he helped provide the instrumentality of the wars of

aggression), but in pre-war Germany, arms were dual-use products—they could

be used both for aggression and for national defense.

A third principle is that a corporation is not liable for merely operating in a

criminal system it finds itself in. If a corporation has no freedom of decision

about a government policy (i.e., they are penalized for not adhering to its

mandates), and if they have taken no steps to expand on the criminal mandates of

that policy, then the corporate officials may escape liability. The Farben case

examined this idea in light of the crime of spoliation, determining that a company

could not be convicted for apparently legal business transactions absent some

positive knowledge that the other party to the transaction was concluding it

against his will.

However, there are many instances of business officials going beyond

mere participation in the system by taking advantage of and participating in

ongoing crimes to commit crimes of their own. Awochi, for example, used the

coercive power of Japanese occupation to force women into prosecution at his

brothel. This individual responsibility also included acts that directly facilitated

the criminal conduct of others. Similarly, Tesch and Weinbacher didn’t kill the

inmates at the concentration camps, but they knowingly made those crimes more

“efficient” by supplying Zyklon B gas.

Because the current ad hoc tribunals, ICTY and ICTR, have not faced a

corporate or business case, a comparison can only be made as to the general

principles of individual responsibility that those tribunals have examined. The

most important principle (at least for purposes of this paper) that both tribunals

recognize is the requirement for direct and substantial assistance to sustain a

conviction for aiding and abetting. There are other important points as well, such

as the Tadić trial chamber’s determination that a person can be held criminally

liable for aiding and abetting by providing direct and substantial assistance after

the crime has been committed. Like Tadić, who assisted a beating after the fact

by throwing a prisoner back into his room and implying the prisoner’s beating

was punishment for talking to or touching a Serb, a corporate official could assist

after the fact as well if a business transaction constituted direct and substantial

assistance. The tribunals have also clarified the mens rea required for aiding and

Challenges of Prosecuting Corporate Officials-211

abetting; it is an intent to aid another while knowing that the aid will assist the

other person in the commission of a crime or while intending that the crime itself

be committed.

VI. THE LAW APPLICABLE TO THE INTERNATIONAL

CRIMINAL COURT (ICC)

The Rome Statute of the International Criminal Court

328

is the extent of the

law for the ICC since the ICC is still in its infancy and is without any court

decisions to elaborate on the Rome Statute. Moreover, the law of the ICC is

essentially static as no amendments may be made to the statute until seven years

after its entry into force (July 1, 2002).

329

What the statute reveals is that the ICC

is a permanent court with its own legal personality, and the jurisdiction of the ICC

is complementary to domestic criminal jurisdiction.

330

The ICC may exercise jurisdiction if a state party or the U.N. Security

Council refers a case to it or if the ICC prosecutor initiates the case.

331

However,

the ICC can only exercise jurisdiction over crimes committed in the territory of,

or by a national of, one of the states parties to the Rome Statute, but those

limitations do not apply to cases referred to the ICC by the Security Council.

332

The ICC also cannot try a case if a state that has domestic jurisdiction is

exercising, or has exercised, that jurisdiction to investigate and to consider

prosecuting the case.

333

The ICC has jurisdiction over only four classes of crimes: genocide, war

crimes, crimes against humanity and the crime of aggression.

334

Unlike previous

international criminal tribunals,

335

the ICC does provide a mechanism for the court

to determine appropriate levels of reparations and to order persons convicted by

328

Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.1839/9,

“as corrected by the process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8

May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002.”

See content at http://www.un.org/law/icc/statute/romefra.htm (last visited March 28, 2005).

329

Id., art. 121.

330

Id., arts. 1, 3.

331

Id., art. 13.

332

Id., art. 12(2). For potential limits on this worldwide jurisdiction, see Kenneth S. Gallant,

Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts, 48

ILL. L. REV. 763, 820-41 (2003).

333

Rome Statute of the International Criminal Court, July 17, 1998, art. 17, U.N. Doc.

A/CONF.1839/9. There is an exception allowing the admissibility of the case if the state

exercising domestic jurisdiction is genuinely unable or unwilling to carry out the investigation or

prosecution. Id., art. 17(1). Although the inability exception has clear application to a failed or

failing state, the complete manner in which the unwillingness exception will be applied is unclear

even if the Rome Statute does provide some guidance in Article 17(2).

334

Id., art. 5.

335

Liesbeth Zegveld, Remedies for Victims of Violations of International Humanitarian Law,

NT’L REV. OF THE RED CROSS, Sep. 2003, at 497, 523. Both the ICTY and ICTR statutes allow

those tribunals to determine and order restitution of property only. Id.

212-The Air Force Law Review

the court to pay reparations to victims as a means of restitution, compensation or

rehabilitation.

336

The ICC operates under an agreed-upon set of general principles of

criminal law that are generally the same as used by ICTY and ICTR. One of

these is nullum crimen sine lege, which directs that no one may be held criminally

responsible under the Rome Statute “unless the conduct in question constitutes, at

the time it takes place, a crime within the jurisdiction of the Court.”

337

Further, for

purposes of the ICC, it is criminal conduct for a person, “[f]or the purpose of

facilitating the commission of [a crime within the jurisdiction of the Rome

Statute], aids, abets or otherwise assists in its commission or its attempted

commission, including providing the means for its commission.”

338

As to the

mens rea required to commit an offense, one must have both knowledge and

intent.

339

One has knowledge when one is aware “that a circumstance exists or a

consequence will occur in the ordinary course of events.”

340

For the offense of

aiding, abetting or assisting another crime, intent is present when the “person

means to cause that consequence or is aware that it will occur in the ordinary

course of events.”

341

Thus, in some circumstances knowledge subsumes intent—

where one assists while aware that criminal conduct will occur in the ordinary

course of events. This is similar to ICTY and ICTR decisions, with the caveat

that ICTY and ICTR clarify the need for direct and substantial assistance.

Professor William A. Schabas has pointed out that the statute creating the

ICC (the “Rome Statute”) does not specifically mention any degree of aiding or

abetting required for conviction like the requirement in Tadić that participation

must be direct and substantial.

342

Schabas also points out the absence of such a

requirement may actually imply that there is no such requirement: “The absence

of words like “substantially” in the Statute, and the failure to follow the

International Law Commission draft, may imply that the Diplomatic Conference

meant to reject the higher threshold of the recent case law of the Hague.”

343

The

counter argument to Schabas’ point is that neither the ICTR statute (in Article 6)

336

Rome Statute of the International Criminal Court, July 17, 1998, art. 75(1)-(2), U.N. Doc.

A/CONF.1839/9.

337

Id., art. 22(1).

338

Id., art. 25(3)(c). The Statute of the Iraqi Special Tribunal created by the U.S.-led Coalition

Provisional Authority has essentially identical language regarding individual criminal

responsibility. A person tried by the tribunal may be found criminally responsible if he or she,

“[f]or the purpose of facilitating the commission of []a crime, aids, abets, or otherwise assists in its

commission or its attempted commission, including providing the means for its commission.”

Coalition Provisional Authority, the Statute of the Iraqi Special Tribunal, Dec. 10, 2003, 43 I.L.M.

231, 242 (2004).

339

Rome Statute of the International Criminal Court, July 17, 1998, art. 30(1), U.N. Doc.

A/CONF.1839/9.

340

Id., art. 30(3).

341

Id., art. 30(2)(b).

342

William A. Schabas, Enforcing International Humanitarian Law: Catching the Accomplices,

NT’L REV. OF THE RED CROSS, June 2001, at 439, 448.

343

Id.

Challenges of Prosecuting Corporate Officials-213

nor the ICTY statute (in Article 7) includes language requiring direct and

substantial assistance, yet those tribunals adopted it nonetheless.

VII. OTHER MEANS OF DETERRING COMMERCE WITH

PERPETRATORS OF WAR CRIMES AND CRIMES AGAINST

HUMANITY

A. Domestic Enforcement Mechanisms

1. Civil Liability Schemes

Criminal prosecution is certainly not the only way to try to deter

corporations from facilitating violations of international humanitarian law.

Victims of human rights violations may also try to hold corporations civilly

accountable for their facilitation of crimes. What is beneficial about this method

of deterrence is that the victims are highly motivated to hold corporations

accountable. As Professor Craig Forcese points out, criminal prosecutions are

dependent upon the impetus of a government—or a collection of governments—

while civil actions against a corporation can provide a personal, individual

remedy for victims of crimes in which that corporation may be complicit.

344

It is

very beneficial in certain circumstances for victims to be able to vindicate their

rights without waiting on a politically unwilling or unable government, but in

certain cases, like genocide, civil actions cannot speak for every victim.

In the United States, the Alien Tort Claims Act (ATCA)

345

provides U.S.

district courts with original jurisdiction over “any civil action by an alien for a tort

only, committed in violation of the law of nations or by a treaty of the United

States.”

346

In Filartiga v. Pena-Irala,

347

the U.S. Court of Appeals for the Second

Circuit held that ATCA opens “the federal courts for adjudication of the rights

already recognized by international law,”

348

at least as to “well-established,

universally recognized norms of international law.

349

Two of the more recent

ATCA cases that followed the Second Circuit’s decision in Filartiga are

Sinaltrainal v. Coca-Cola

350

and Doe I v. Unocal

351

Both cases allege that these

344

Craig Forcese, Deterring “Militarized Commerce”: The Prospect of Liability for “Privatized”

Human Rights Abuses, 31 O

TTAWA L. REV. 171, 201 (2000). See also Liesbeth Zegveld,

Remedies for Victims of Violations of International Humanitarian Law, I

NT’L REV. OF THE RED

CROSS, Sep. 2003, at 497, 523.

345

It is also known as the Alien Tort Statute. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, No.

03-339, slip op. at 1, 2004 U.S. LEXIS 4763 (June 29, 2004).

346

28 U.S.C. § 1350 (2004).

347

630 F.2d 876 (2d Cir. 1980).

348

Id. at 887.

349

Id. at 888.

350

256 F. Supp. 2d 1345 (S.D. Fla. 2003).

351

110 F. Supp. 2d 1294 (C.D. Cal 2002). This case was vacated in hearing en banc 395 F.3d 978

(9th Cir. 2003).

214-The Air Force Law Review

corporations’ overseas operations benefited from human rights abuses committed

in Columbia (as to Coca-Cola) and in Burma (as to Unocal). In Doe I v. Unocal,

the district court held, in granting Unocal’s motion for summary judgment, that

Unocal could only be held liable for active participation of the human rights

abuses in its host country, not for its mere knowledge and acceptance of the

benefits of forced labor.

352

The Sinaltrainal court followed this reasoning in

granting summary judgment for Coca-Cola as well.

353

Thus, these courts reflect a

hesitancy similar to that of the tribunals following World War II, a hesitancy to

hold a corporation or its officials liable unless they took special advantage of, or

increase, the abuses in order to increase profits. Yet, the civil liability mechanism

is nonetheless there—in a limited fashion—to deter the more egregious cases

where corporations are actively engaged in human rights abuses.

The limits of ATCA were further explained by the U.S. Supreme Court in

Sosa v. Alvarez-Machain.

354

The Supreme Court held “that at the time of

enactment the jurisdiction enabled federal courts to hear claims in a very limited

category defined by the law of nations and recognized at common law.”

355

Similarly, in the Supreme Court’s view, “courts should require any claim based

on the present-day law of nations to rest on a norm of international character

accepted by the civilized world and defined with a specificity comparable to the

features of the 18th-century paradigms we have recognized.”

356

The Court did

hold out the possibility that federal courts can discern newly developed norms of

international law, the violation of which may be the basis for a suit under

ATCA,

357

but noted that it would be best for Congress to provide guidance on

jurisdiction and that Congress could, if it chooses, to limit further bases for suit at

any time.

358

However, whatever remains of the promise of Filartiga and its progeny,

“ATCA plaintiffs face a long haul from filing a claim to actually collecting on a

judgment.

359

Even if ATCA plaintiffs successfully complete that long haul, they

may never see any money as experience has shown that collection is difficult.

360

However, this failing may be irrelevant to the plaintiff who seeks to hold another

responsible for human rights violations.

361

352

110 F. Supp. 2d at 1310.

353

256 F. Supp. 2d at 1355.

354

124 S. Ct. 2739 (2004).

355

Id. at 2754 .

356

Id. at 2762.

357

Id. at 2764 (“[J]udicial power should be exercised on the understanding that the door is still ajar

subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.”).

358

Id. at 2765

359

Marisa Anne Pagnattaro, Enforcing International Labor Standards: The Potential of the Alien

Tort Claims Act, 37 V

AND. J. TRANSNAT’L L. 203, 261 (2004).

360

Ralph G. Steinhardt, International Humanitarian Law in the Courts of the United States:

Yamashita, FIlartgia, and 9-11, 36 G

EO. WASH. INT’L L. REV. 1, 25 (2004).

361

Id.

Challenges of Prosecuting Corporate Officials-215

The difficulty in civil suits litigated in U.S. courts is not unique. Most

private claims—worldwide—have failed, with the grounds for failure falling into

three primary categories: “individual claims were precluded by a peace

agreement; sovereign immunity; or the non-self-executing nature of the right to

reparations under international law.”

362

Professor Beth Stevens argues that, while

there has been some success in the United States in lawsuits alleging human rights

abuses abroad, only international regulation and enforcement can regulate

corporations that are themselves international in character.

363

2. Regulatory and Statutory Prohibitions in the United States

Although there may be a number of schemes elsewhere in the world that

may be worthy of study, the United States’ efforts at using its domestic law to

combat human rights violations may be the most important. Because the United

States is a world economic and military superpower,

364

its efforts are most

especially worthy of study because those efforts have the potential for the greatest

world impact. Although the latter-day efforts of the United States are more

comprehensive, the United States has for a long time used trade bans and other

economic tools to advance foreign policy goals. For example, in United States v.

Curtiss-Wright Corporation, the United States Supreme Court upheld a

corporation’s conviction for trading with Bolivia, one of the belligerents in the

war in the Chaco region of South America; this trading was made criminal by the

President using power delegated by Congress to impose such a ban on trade if he

believed the imposition of the ban would “contribute to the reestablishment of

peace.”

365

This sort of Presidential power has since become more structured and

is now a standing power under International Emergency Economic Powers Act.

362

Emanuela-Chiara Gillard, Reparations for Violations of International Humanitarian Law,

NT’L REV. OF THE RED CROSS, June 2001, at 529, 537.

363

Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20

ERKELEY J. INT’L L. 45, 90 (2002).

364

The Central Intelligence Agency World Fact Book describes the United States as the world’s

“leading industrial power” with an economy that is “the largest and most technologically

powerful” in the world. U.S. Central Intelligence Agency, The World Factbook 2004, Country

Profile: The United States, available at http://www.cia.gov/cia/publications/factbook/geos/us.html

(last visited March 27, 2005). The United States also holds a seat on the U.N. Security Council,

see U.N.

CHARTER art. 23, and is seen, with its powerful economy and formidable military forces

as the world’s strongest power, no longer just a superpower but now a “hyperpower.” Michael

Mandelbaum, The Inadequacy of American Power, F

OREIGN AFF., Sept.-Oct. 2002, at 61, 61.

365

299 U.S. 304, 312 (1936) Questioned: validity questioned by citing references.

216-The Air Force Law Review

a. International Emergency Economic Powers Act (IEEPA)

366

Under IEEPA, Congress provided the President with the authority to

impose certain economic sanctions

367

when the President declares a national

emergency due to “any unusual and extraordinary [foreign] threat . . . to the

national security, foreign policy, or economy of the United States.”

368

The

sanctions the President may impose include the regulation or ban of “transactions

in foreign exchange,” “transfers of credit,” and “the importing or exporting of

currency or securities.”

369

The President may further impose restrictions on U.S.

property “in which any foreign country or a national thereof has any interest.”

370

Anyone violating restrictions imposed pursuant to IEEPA may be fined up to

$10,000, and anyone who willfully violates IEEPA restrictions is subject to

criminal prosecution and a maximum of ten years’ imprisonment and a fine of not

more than $50,000.

371

Significantly, IEEPA specifies that corporate officers,

directors and agents who knowingly participate in an IEEPA violation may be

punished for the acts of their corporations.

372

Although various Presidents have used IEEPA in the past to counter

significant security threats such as terrorism and nuclear proliferation,

373

IEEPA

has been used to attempt to influence certain human rights violations to the extent

that they affect the foreign policy of the United States (as IEEPA requires). Past

efforts include the blocking of property controlled by persons “undermin[ing]

Zimbabwe’s democratic processes or institutions,”

374

blocking the property of the

Burmese government and prohibiting certain commercial transactions with

Burma,

375

and blocking Sudanese government property and prohibiting most

transactions with Sudan.

376

In certain cases, U.S. efforts under IEEPA are bolstered by additional

Congressional legislation. For example, Congress passed the Sudan Peace Act in

2002, which mandated Presidential action if the Sudanese was not moving

366

50 U.S.C. §§ 1701-1707 (2004).

367

50 U.S.C. § 1702 (2004).

368

50 U.S.C. § 1701 (2004).

369

50 U.S.C. § 1702(a)(1)(A) (2004).

370

50 U.S.C. § 1702(a)(1)(B) (2004). When the United States has been attacked or is engaged in

armed hostilities, the President also has the power to confiscate certain property. 50 U.S.C. §

1702(a)(1)(C) (2004).

371

50 U.S.C. § 1705 (2004).

372

50 U.S.C. § 1705(b) (2004).

373

See, e.g., Exec. Order No. 13159, 65 Fed. Reg. 39,279 (June 21, 2000) (blocking property of

the government of the Russian Federation relating to the disposition of highly enriched uranium

extracted from nuclear weapons).

374

See Exec. Order No. 13288, 68 Fed. Reg. 11,457 (Mar. 6, 2003).

375

Exec. Order No. 13310, 68 Fed. Reg. 44,853 (July 28, 2003). This included a ban on all

Burmese imports. Id., §3.

376

Exec. Order No. 13067, 62 Fed. Reg. 59,989 (Nov. 3, 1997).

Challenges of Prosecuting Corporate Officials-217

towards a peaceful resolution to the civil war.

377

The Sudan Peace Act included a

Congressional finding that the government of Sudan had committed genocide and

a finding that the Sudan government would use sales of oil to finance continued

military action to regain control of Sudanese territory, the same military action

that led to genocide.

378

Congress also passed the Burmese Freedom and

Democracy Act of 2003, which recounted the ethnic cleansing and other human

rights abuses of the Burmese military government and banned all trade that would

support the military regime in Burma.

379

Thus, in these circumstances, Congress

allowed or created criminal sanctions for what would otherwise be ordinary

corporate trade.

This redoubling of efforts also occurred with respect of the former

Yugoslavia in 1992 and 1993, as the bloodshed occurred in the former

Yugoslavia, the President exercised his powers under IEEPA to impose sanctions

on Yugoslavia and on Serbia and Montenegro individually.

380

Then, Congress

passed an act imposing further sanctions against Serbia and Montenegro in

November 1993.

381

IEEPA has also been used to combat the trade in “blood diamonds” (or

“conflict diamonds”) from Africa. In July 2000, the U.N. Security Council called

for a ban on uncertified rough diamonds, asking states parties to take “necessary

measures to prohibit the direct or indirect import of all rough diamonds from

Sierra Leone to their territory.”

382

The resolution of the Security Council also

called for a scheme by which non-contraband diamonds certified by the

government of Sierra Leone would be exempt from the ban.

383

The Kimberley

Process Certification Scheme was thus created to stop the trade in conflict

diamonds and to ensure consumers that the diamonds that they purchase have not

contributed to violent conflict and human rights abuses in their countries of

origin.

384

By itself, it is a “voluntary system of industry self-regulation.”

385

However non-binding it may be, the Kimberley Process Certification Scheme was

welcomed and strongly supported by the U.N. Security Council, which

encouraged all member states to participate in the process.

386

377

Pub. L. No. 107-245, 116 Stat. 1504, § 6 (2002).

378

Id., § 2. Congress further directed the Secretary of State to collect information on war crimes,

genocide, and other violations of international humanitarian law. Id., §11.

379

Pub. L. No. 108-61, 117 Stat. 864, §§ 2-3 (2003).

380

See Exec. Order No. 12808, 57 Fed. Reg. 23,299 (May 30, 1992), and Exec. Order No. 12,810,

57 Fed. Reg. 24,347 (June 5, 1992).

381

Pub. L. No. 103-160, §1511, 107 Stat. 1839 (1993).

382

S.C. Res. 1306, U.N. SCOR, 55th Sess., 4168th mtg. at 2, U.N. Doc. S/RES/1306 (2000).

383

Id.

384

Alan Cowell, 40 Nations in Accord on “Conflict Diamonds,” N.Y. TIMES, Nov. 6, 2002, at A6;

see also www.kimberleyprocess.com. There have been recent assertions that the Kimberley

Process is ineffective. Nicol Degli Innocenti, Retailers Face Flak Over “

Blood Diamonds,” FIN.

TIMES, Mar. 30, 2004, at 1.

385

U.N. GAOR, 57th Sess., Agenda Item 27, annex 2, at 6, U.N. Doc. A/57/489.

386

S.C. Res. 1459, U.N. SCOR, 58th Sess., 4694th mtg. at 2, U.N. Doc. S/RES/1459 (2003).

218-The Air Force Law Review

In January 2001, the President banned trade in rough diamonds from

Sierra Leone, citing concerns that trade in rough diamonds was “fueling the

conflict in Sierra Leone.”

387

The ban did not apply to rough diamonds cleared by

the United Nations-sanctioned Kimberley Process Certification Scheme.

388

The

President then expanded the ban to rough diamonds from Liberia, citing the

Liberian government’s complicity in the illegal diamond trade from Sierra

Leone.

389

Similar to earlier responses to human rights crises abroad, again

Congress bolstered the effects of IEEPA, this time by passing the Clean Diamond

Trade Act in 2003.

390

b. Clean Diamond Trade Act

Under the Clean Diamond Trade Act, Congress instructed the President to

ban “the importation into, or exportation from, the United States of any rough

diamond, from whatever source, that has not been controlled through the

Kimberley Process Certification Scheme,” while allowing the President to waive

the ban if he determines a waiver is in U.S. national interests.

391

When Congress

passed the Clean Diamond Trade Act, it made a number of findings. Among

them was that

Funds derived from the sale of rough diamonds are being used by

rebels and state actors to finance military activities, overthrow

legitimate governments, subvert international efforts to promote

peace and stability, and commit horrifying atrocities against

unarmed civilians. During the past decade, more than 6,500,000

people from Sierra Leone, Angola, and the Democratic Republic of

the Congo have been driven from their homes by wars waged in

large part for control of diamond mining areas.

392

In July 2003, President George W. Bush signed an executive order that

implemented the Clean Diamond Trade Act and strengthened previous

presidential bans (under IEEPA) on rough diamonds from Sierra Leone and

Liberia.

393

The President, in the July 2003 executive order, banned trade,

attempted trade, and conspiracy to trade in rough diamonds that had not been

cleared through the Kimberley Process Certification Scheme.

394

387

Exec. Order 13194, 66 Fed. Reg. 7389 (Jan. 18, 2001).

388

Id., § 2.

389

Exec. Order 13213, 66 Fed. Reg. 28,829 (May 22, 2001).

390

19 U.S.C. §§ 3901-13 (2004).

391

19 U.S.C. § 3903 (2004).

392

19 U.S.C. § 3901 (2004).

393

Exec. Order No. 1,312, 68 Fed. Reg. 45,151 (July 29, 2003) (citing Exec. Order 13194, 66 Fed.

Reg. 7389

(Jan. 18, 2001) and Exec. Order 13213, 66 Fed. Reg. 28,829 (May 22, 2001)).

394

Exec. Order No. 13312, 68 Fed. Reg. 45,151 (July 29, 2003).

Challenges of Prosecuting Corporate Officials-219

3. Evaluating the Success of Domestic Enforcement Schemes

Because international humanitarian law is seen as a part of public

international law, which applies to states rather than individuals, individuals often

cannot take advantage of international law as private litigants in domestic

courts.

395

As a whole, states have eschewed applying international law in

domestic courts, even if there is some promise in U.S. and Dutch courts.

396

Further, there is uneven enforcement among states and perhaps no enforcement in

failed states.

397

Professor Stephens argues that “[m]ultinational corporations have

long outgrown the legal structures that govern them, reaching a level of

transnationality and economic power that exceeds domestic law’s ability to

impose basic human rights norms.”

398

She notes that “host state enforcement has

seemingly clear advantages, because it permits local control over local events,”

but that those advantages may be uneven or inconsistent, even in the United

States, and that they disappear “if the host government is complicit in the human

rights abuses.”

399

Thus, with the lack of fully effective domestic schemes, it is

important to consider what international schemes can help counter violations of

international humanitarian law.

B. International Enforcement Mechanisms

Certain international fora, such as claims commissions, have been

successful in providing compensation for violations of international humanitarian

law.

400

However, because these fora are usually created by treaty and don’t

explicitly concern themselves with violations of international humanitarian law,

401

they fail to show widespread promise as they are haphazard at righting wrongs

and are generally only in existence due to the impetus of the states involved.

Although there is some criticism of international mechanisms,

402

there are some

advantages. The ad hoc tribunals for Rwanda and the former Yugoslavia, for

395

See Zegveld, supra note 335, at 507.

396

Id. at 512.

397

By definition, law and order holds no sway in failed states. See Daniel Thürer, The "Failed

State" and International Law, I

NT’L REV. OF THE RED CROSS, Dec. 1999, at 731, 731.

398

Stephens, supra note 363, at 54. She notes, “General Motors, for example, is larger than the

national economies of all but seven countries.” Id. at 57.

399

Id. at 82-85.

400

Gillard, supra note 362, at 539.

401

Id. at 539-40. The United Nations Compensation Commission, which handles compensation

claims resulting from the Iraqi invasion of Kuwait, is an example of a body not created by treaty

but rather by the U.N. Security Council. Id. at 540-41.

402

See M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to

Establish a Permanent International Criminal Court, 10

HARV. HUM. RTS. J. 11, 60 (1997)

(arguing that ad hoc tribunals raise questions of fairness and of victors’ vengeance and that ad hoc

tribunals “generally do not provide equal treatment to individuals in similar circumstances who

commit similar violations”).

220-The Air Force Law Review

example, have the support of the U.N. Security Council and states parties in the

investigation and prosecution of cases.

403

Because of this political and financial

support, they have the potential for great success, at least within their respective

bailiwicks.

1. The Special Court for Sierra Leone

The Special Court for Sierra Leone was created in a process that differed

from that of ICTY and ICTR. The U.N. Security Council requested that the U.N.

Secretary-General negotiate with the government of Sierra Leone to create a court

to prosecute crimes against humanity, war crimes, “other serious violations of

international law,” and violations of “relevant Sierra Leonean law.”

404

This showed a marked divergence from the approach taken in

establishing the ICTY and ICTR, where the governments of the

territorial States were not involved in the tribunals’ creation, and where

the Statutes were drafted by the UN Secretariat and adopted by the

Security Council. The manner of the Special Court’s creation is directly

related to its funding. There was no political support for setting up

another, very expensive, international criminal tribunal,

and the Court

could be established only with the full support and cooperation of Sierra

Leone, which, in any event, wanted a mixed tribunal with national and

international components. It is thus a sui generis Special Court, not so

much because this was necessarily the best or most effective approach to

take in the particular circumstances of Sierra Leone, but because it was

the only politically acceptable option.

405

Even if the Special Court for Sierra Leone is not the most effective approach, it is

a circumstance where the international community may be appreciative for having

something rather than nothing. The bigger concern may be in deterring future

conduct.

2. The Role of the U.N. Security Council

The only international body that has the sort of authority needed to put the

world on notice of a group’s or government’s criminality is the U.N. Security

Council. Even if the world is not wholeheartedly behind its every move, it is a

deliberative body that no one party can control. With its five permanent veto-

wielding members, consensus is difficult in some respects, but that has its

advantages and disadvantages. It may be unable at times to act to stop crimes

403

E.g., ICTR Statute, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, art. 28, at 14,

UN Doc. S/INF/50 (1994).

404

S.C. Res. 1315, U.N. SCOR, 55th Sess., 4186th mtg. at 2 (2000).

405

Avril McDonald, Sierra Leone’s Shoestring Special Court, INT’L REV. OF THE RED CROSS,

Mar. 2002, at 121, 124.

Challenges of Prosecuting Corporate Officials-221

against humanity, and it may seem to move slow and deliberately. But that

slowness will also avoid wrongfully labeling a state or group as criminal.

There is criticism of the Security Council concerning its limited

representation and its occasional ineffectiveness. As to effectiveness, it appears

better at some tasks than others and is not usually effective when involved in

places where conditions have deteriorated so much that U.N. peacekeepers are

given early authority to use force.

406

Concerning the politics of the Security

Council, one commentator observed, “I am concerned about the selectivity

involved in a system where the establishment of a tribunal for a given conflict

situation depends on whether consensus to apply chapter VII of the UN Charter

can be obtained.”

407

Yet, the Security Council does have the authority to

intervene, even in internal armed conflicts, to prevent further humanitarian

crises,

408

and thus it has power to effect change even if it has trouble at times

wielding it.

With Rwanda and the former Yugoslavia, the collective security system

was unable to effectively stop many atrocities. This may be in part due to the

difficulty of getting the Security Council involved in an enforcement action under

Chapter VII or with providing a peacekeeping force substantial enough to prevent

mass atrocities.

409

With another lesser form of action at its disposal—making it a

crime to trade in certain items or with certain groups or countries—the Security

Council may not be as paralyzed when faced with ongoing mass atrocities.

410

Consensus may actually be easier to come by since a determination that trade is

facilitating crime does not require funds or troops.

Because the Security Council can create ad hoc courts and because it can

refer cases to the ICC, it stands in an unequaled position from which to effect

change. Arguably, the purchase of blood diamonds cannot be made a basis for

ICC prosecution until the Rome Statute is amended, which is something that the

statute itself doesn’t allow for the first seven years. On the one hand, aiding and

abetting is already a proper basis for prosecution, and the determination of the

Security Council would merely put corporations on notice of someone else’s

406

Erik Suy, Is the United Nations Security Council Still Relevant? And Was it Ever?, 12 TUL. J.

INT’L & COMP. L. 7, 22 (2004).

407

Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT’L L. 554,

555 (1995).

408

Alex G. Peterson, Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed

Conflict, 171 M

IL. L. REV. 1, 61-62 (2002) (citing U.N. Charter art. 39).

409

Joseph Keeler has observed “six basic factors that delayed and weakened the U.N.’s

intervention” in the genocides in Rwanda and Bosnia. They include the “personal interests of the

members of the Security Council”; “disinterest of the members of the Security Council”; “aversion

to intervene in internal matters of a sovereign state”; “belief that the groups were reciprocating

deeply engrained hatred or prior genocidal acts”; “desire to end the conflict peacefully as a

‘neutral’ intermediary”; and “inadequate funding.” Joseph A. Keeler, Genocide: Prevention

through Nonmilitary Measures, 171 M

IL. L. REV. 135, 172-76 (2002).

410

Keeler has proposed a system to identify genocide early and prevent before it transforms from

small-scale to large-scale genocide. He proposes modifying the Genocide Convention by creating

an “early warning system.” Id. at 179.

222-The Air Force Law Review

criminality. Thus, instead of referring a particular case to the ICC under Article

13 of the Rome Statute, the Security Council would give notice of a class of cases

it might refer to the ICC or to an ad hoc tribunal.

But on the other hand, one can argue that aiding or abetting by purchasing

is not a crime, even with the notice of criminality given by the Security Council.

If so, once the initial seven-year period has passed, the Rome Statute could be

amended to allow prosecutions for facilitation of crimes when the Security

Council has determined that trading with a person or entity provides them the

means to commit crimes. Such a change to the Rome Statute would only affect

the states parties to that statute, however.

Yet, it is nonetheless possible that the U.N. Security Council could effect

worldwide change. Professor Kenneth Gallant argues that the United Nations,

acting through its Security Council, has the authority to prescribe international

criminal law.

411

The Security Council, he argues, has done so when it created the

Rwandan and Yugoslav tribunals and set out the crimes over which they have

jurisdiction.

412

The basis for the Security Council’s power in this regard comes

from its duty to achieve international peace and security under Chapter VII, a

power that is, however, limited by the need to “choose substantive international

criminal law from a source with international law legitimacy.”

413

Professor Gallant sees further power to prescribe in the Rome Statute

since “the referral scheme of the ICC Statute regularizes the exercise of the

Security Council’s jurisdiction to prescribe that a certain court shall have

jurisdiction to adjudicate cases arising from a given situation.”

414

He also argues

that the ICC has prescriptive authority, at least as limited to the states parties to

the Rome Statute, not to define new crimes but to elaborate on the crimes set out

by the states parties.

415

Professor Gallant argues that his assertions arise “from

traditional notions of jurisdiction in international law” because these international

organizations were created under traditional sources of international law—treaties

and customary—created agreement or by practice of the various states, states that

also connect “the prescribing authority and those individuals for whom acts are

proscribed.”

416

Professor Gallant also notes that the Security Council has since “burst the

bonds it appeared to impose on itself in creating the ad hoc tribunals.”

417

Whereas

those tribunals were created to adjudicate cases based on existing international

law, the Security Council has since mandated that states ensure that their domestic

411

Kenneth S. Gallant, Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International

Criminal Courts, 48 V

ILL. L. REV. 763, 783-84 (2003).

412

Id. at 784.

413

Id. As noted earlier, this power of the Security Council is global. See Rome Statute of the

International Criminal Court, July 17, 1998, arts. 12 & 13, U.N. Doc. A/CONF.1839/9.

414

Gallant, supra note 411, at 790.

415

Id. at 790-91.

416

Id. at 791-92.

417

Id. at 793-94 (citing S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., UN Doc.

S/RES/1373 (2001)).

Challenges of Prosecuting Corporate Officials-223

law criminally punishes terrorism and willful funding of terrorism. Even if the

Security Council did not require states to punish terrorism in a uniform manner,

“the Security Council acted as though it does have legislative authority to create

criminal law, if the creation of that law would lead to restoration of international

peace and security.”

418

Professor Lois Felding has similarly concluded that “not

only are Security Council decisions binding as to the current meaning of ‘threats

to peace, breaches of peace, and acts of aggression,’ but they also affect how to

determine certain matters within the domestic jurisdiction of the state.

419

The

mandate on states to ban terrorism and funding of terrorism is but one example.

The Security Council’s decision “that all States shall take the necessary measures

to prohibit the direct or indirect import of all rough diamonds from Sierra Leone

to their territory” is another.

420

418

Id. at 794.

419

Lois Felding, Taking a Closer Look at Threats to Peace: The Power of the Security Council to

Address Humanitarian Crises, 73 U. DET. MERCY. L. REV. 551, 559-60 (1996).

420

See S.C. Res. 1306, U.N. SCOR, 55th Sess., 4168th mtg. at 2, U.N. Doc. S/RES/1306 (2000)

(emphasis added). Resolution 1373, which is the resolution concerning terrorism that Professor

Gallant cited, uses similar language and has rather detailed dictates:

[The Security Council] Decides that all States shall:

(a) Prevent and suppress the financing of terrorist acts;

(b) Criminalize the wilful [sic] provision or collection, by any means, directly or

indirectly, of funds by their nationals or in their territories with the intention that

the funds should be used, or in the knowledge that they are to be used, in order

to carry out terrorist acts;

of persons who commit, or attempt to commit, terrorist acts or participate in or

facilitate the commission of terrorist acts; of entities owned or controlled

directly or indirectly by such persons; and of persons and entities acting on

behalf of, or at the direction of such persons and entities, including funds

derived or generated from property owned or controlled directly or indirectly by

such persons and associated persons and entities;

(d) Prohibit their nationals or any persons and entities within their territories

from making any funds, financial assets or economic resources or financial or

other related services available, directly or indirectly, for the benefit of persons

who commit or attempt to commit or facilitate or participate in the commission

of terrorist acts, of entities owned or controlled, directly or indirectly, by such

persons and of persons and entities acting on behalf of or at the direction of such

persons;

2. Decides also that all States shall:

(a) Refrain from providing any form of support, active or passive, to entities or

persons involved in terrorist acts, including by suppressing recruitment of

members of terrorist groups and eliminating the supply of weapons to terrorists;

(b) Take the necessary steps to prevent the commission of terrorist acts,

including by provision of early warning to other States by exchange of

information;

acts, or provide safe havens;

224-The Air Force Law Review

C. International and Domestic Enforcement Mechanisms Working Together

Given the limitations of both domestic and international enforcement

mechanisms, it certainly makes sense to use both in a complementary fashion.

Neither is fully effective, and both can help deter facilitation of crimes in their

own way. Yet, international efforts are widespread and have more potential for

being effective. International criminal prosecution is just one method to deter

potential corporate facilitation of crimes. How effective is it?

VIII. THE KNOWLEDGE REQUIREMENT AND THE NEED FOR

NOTICE

In order for any law to have a deterrent effect, the persons at whom it is

aimed must know its general proscriptions. Corporate officials will not stop

doing what they have previously viewed as legitimate business transactions unless

they know the transactions are prohibited. They may believe it is the job of the

political process to determine what acts are criminal and who they cannot trade

with. In other words, they may ask, “Who are we to judge? After all, isn’t one

person’s terrorist another person’s freedom fighter?” Because all persons, natural

or corporate, rely on the political process to make the determination of who is

“bad”, criminal prosecution should rest only on clearly-defined prohibitions.

421

Examples of laws making certain types of ordinary transactions illegal can

be found in the United States. As Professor Steven Ratner has pointed out, there

are laws such as the U.S. Racketeer Influenced and Corrupt Organizations (RICO)

(d) Prevent those who finance, plan, facilitate or commit terrorist acts from

using their respective territories for those purposes against other States or their

citizens;

(e) Ensure that any person who participates in the financing, planning,

preparation or perpetration of terrorist acts or in supporting terrorist acts is

brought to justice and ensure that, in addition to any other measures against

them, such terrorist acts are established as serious criminal offences in domestic

laws and regulations and that the punishment duly reflects the seriousness of

such terrorist acts;

(f) Afford one another the greatest measure of assistance in connection with

criminal investigations or criminal proceedings relating to the financing or

support of terrorist acts, including assistance in obtaining evidence in their

possession necessary for the proceedings;

(g) Prevent the movement of terrorists or terrorist groups by effective border

controls and controls on issuance of identity papers and travel documents, and

through measures for preventing counterfeiting, forgery or fraudulent use of

identity papers and travel documents;

S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., UN Doc. S/RES/1373 (2001) (emphasis in

original).

421

Or, as the U.S. Supreme Court has observed, “We should not derive criminal outlawry from

some ambiguous implication.”

United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-

222 (1952).

Challenges of Prosecuting Corporate Officials-225

Act that criminalize financing of criminal enterprises.

422

There are also other U.S.

laws regulating monetary transactions focusing on specific types of money

transactions.

423

However, those are specific statutory provisions (derived from the

political process) rather than general principles of criminal law.

Professor Robert Weisberg has explained that the drafters of the Model

Penal Code rejected a mens rea for complicity that seems much like the ICTY and

ICTR formulations: one could be found complicit if one substantially facilitated a

crime, knowing that another person was committing or would be committing that

crime.

424

Instead, the Model Penal Code requires that a person have “the purpose

or promoting or facilitating the commission of the offense.”

425

One of the reasons

given by the drafters was that the reach of the law could reach unintended actors,

such as “lessors of property or vendors of multi-purpose goods.”

426

Weisberg

cites People v. Beeman, a 1984 California Supreme Court case that required that

an aider or abettor act with the intent to facilitate or encourage the commission of

the crime, as an example of a case that follows the Model Penal Code approach.

427

But Weisberg argues that the Model Penal Code formulation has “not kept up

with . . . the most notable . . . developments concerning complicity law.”

428

For an

example of a different approach, he cites New York statutes on criminal

facilitation, which criminalize providing “means or opportunity for the

commission” of a crime when one “believ[es] it probable that he is rendering aid .

. . to a person who intends to commit a crime.”

429

Yet, even that statute will not

allow a conviction if the state relies on the actual perpetrator of the offense for

proof absent corroboration “by such other evidence as tends to connect the

defendant with such facilitation.”

430

Professor Schabas notes that “knowledge that the person or persons being

assisted by the accomplice are actually committing international crimes is a sine

qua non for criminal liability” and that knowledge may be particularly hard to

prove in a domestic criminal court because the criminal probably is not

committing crimes in an open, notorious or widespread fashion.

431

For Schabas,

however, this difficulty should not present itself as often in prosecutions under

422

Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111

ALE L. J. 443, 529 (2001) (citing a portion of the RICO statute, 18 U.S.C. § 1961-62).

423

E.g., 18 U.S.C. § 1957 (2004) (prohibiting engaging in monetary transactions in property

derived from specified unlawful activity) and § 2314 (2004) (prohibiting the transfer of stolen

money).

424

Robert Weisberg, The Model Penal Code Revisited: Reappraising Complicity, 4 BUFF. CRIM.

L. REV. 217, 237-38 (2000).

425

Id. at 233 (citing Model Penal Code § 2.06(3)).

426

Id. at 238.

427

Id. at 241-43 (discussing People v. Beeman, 674 P.2d 1318 (Cal. 1984)).

428

Id. at 236.

429

Id. at 262-64 (citing N.Y. Penal Law §§115.00, 115.01, 115.05, 115.08 (McKinney 1998)).

430

Id. at 264 n.107 (2000) (citing N.Y. Penal Law §115.15 (McKinney 1998)).

431

William A. Schabas, Enforcing International Humanitarian Law: Catching the Accomplices,

Int’l Rev. of the Red Cross, June 2001, at 439, 450.

226-The Air Force Law Review

international humanitarian law because “establishing knowledge of the end use

should generally be less difficult because of the scale and nature of the

assistance.”

For Schabas, notice can be provided by “intense publicity about war

crimes and other atrocities,” whether by the media, by organs of the United

Nations or by various international non-governmental organizations (NGOs).

432

Professor Ratner makes a similar point with regard to blood diamonds: “The

notoriety of the RUF’s [Revolutionary United Front’s] atrocities—especially

amputations of the limbs of innocent civilians—suggests, as a prima facie matter,

that the diamond companies that knew they were trading with the RUF also knew

of their abuses.”

433

He goes on to comment on the potential for criminal liability

for diamond purchases: “As to whether purchasing of diamonds constitutes

material assistance to the group rising to the level of aiding and abetting, one can

lean in favor of a positive answer as it seems that the RUF depended heavily upon

the diamonds as a source of income.”

434

The problem with this solution is that the media is often wrong

435

or can be

played for effect by one political side or another. Even the most serious

assertions by top leaders in a government can be wrong.

436

Beyond that, there is

also the problem of the slippery slope. Some may believe the Israeli

government—due to their treatment of the Palestinians—is akin to the RUF. One

can easily imagine the global defense contractors that would be seen then as

criminal facilitators potentially open to prosecution. This proposal begs many

questions. What level of notoriety is sufficient? How heavily must a criminal

depend upon income supplied by the facilitator for the facilitator to be criminally

liable? More importantly, who makes these determinations? Hopefully they are

not made by a court post hoc. NGOs are not seen as authoritative either not only

due to their lack of power (of the official sort) but also because they are perceived

as having an agenda. The one NGO that has considerable status, influence, and

the “right of initiative” to investigate human rights abuses is the International

Committee of the Red Cross (ICRC).

437

Yet, even the ICRC does not speak for

432

Id. at 450-51.

433

Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111

ALE L. J. 443, 528 (2001).

434

Id. at 529.

435

See, e.g., David Bianculli, Rush to Judgment; Media Focus on Bomb Suspect is a Crime, FT.

WORTH STAR TELEGRAM, Aug. 2, 1996, at 12 (discussing the media labeling of Richard Jewell as

the likely Olympic Park bomber).

436

See, e.g., Warren P. Strobel, Powell Admits Weapons In Doubt; Stance Less Defiant Than

White House’s, C

HARLOTTE OBSERVER, Jan. 25, 2004, at 1A (“U.S. Secretary of State Colin

Powell

acknowledged Saturday that former Iraqi President Saddam Hussein might not have had

the massive

weapons stockpiles the Bush administration used to justify a war against him.”).

437

Alex G. Peterson, Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed

Conflict, 171 M

IL. L. REV. 1, 63 (2002) (citing Herman Salinas Burgos, The Application of

International Humanitarian Law as Compared to Human Rights Law in Situations Qualified as

Internal Armed Conflict, Internal Disturbances and Tensions, or Public Emergency, with Special

Challenges of Prosecuting Corporate Officials-227

the international community or for states in an area where traditional notions of

sovereignty come into play.

IX. POTENTIAL FOR POSITIVE IMPACT: CAN THE THREAT OF

CRIMINAL PROSECUTIONS OF CORPORATE OFFICIALS CURTAIL

VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW?

Preventing corporate facilitation of human rights abuses and crimes not

only is a morally worthy cause but also is a matter of need. As Professor Ratner

points out, “Corporations are powerful global actors that some states lack the

resources or will to control.”

438

Thus, where corporations do business with

persons committing serious international crimes, the threat of prosecution can be

another arrow in the quiver of deterrence. Yet, that deterrence may not be

effective in every situation.

During the Rwandan genocide in 1994, at the very least hundreds of

thousands of people were killed, mainly ethnic Tutsis at the hands of the Hutu

government.

439

The genocide began when the Rwandan president’s plane was

shot down and core members of his “pseudo-party” began a countercoup that

included the launch of “a planned, coordinated, directed, controlled attack” to

commit genocide.

440

Eventually larger segments of the Hutu population joined in

the genocide, leading outside observers to seek to understand

why the population

participated.

441

Theories as to why genocide occurred in Rwanda generally blame

poverty, competition for scarce land, and a successful propaganda campaign by

the leaders of the genocide that preached fear of the rebel movement and that sent

the message, “kill or be killed.”

442

In light of such a situation, where financing

seemed to have very little impact on a genocide “horrific even by the standards of

a century repeatedly marred by mass political and ethnic slaughters,”

443

deterring

corporate officials may have made absolutely no difference in outcomes.

The case of Rwanda does reveal another important characteristic of

humanitarian crises—the hesitance of the international community to intervene

militarily. During the Rwandan crisis, there was an apparent desire to avoid calls

to military action by not publicly concluding that genocide was in progress:

[L]egal experts in the U.S. government were asked, in the words of

a former State Department lawyer, “to perform legal gymnastics to

Reference to War Crimes and Political Crimes, in IMPLEMENTATION OF INTERNATIONAL

HUMANITARIAN LAW 15 (Frits Kalshoven & Yves Sandoz eds., 1989)).

438

Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111

ALE L. J. 443, 461 (2001).

439

Bruce D. Jones, PEACEMAKING IN RWANDA: THE DYNAMICS OF FAILURE 1, 38 (2001).

440

Id. at 26, 32, 37-39.

441

Id. at 39.

442

Id. at 39-41.

443

Id. at 1.

228-The Air Force Law Review

avoid calling this genocide.” And as Rwandan Hutus slaughtered

hundreds of thousands of Tutsis, the Clinton administration

instructed its spokespeople not to describe what was happening as

genocide lest this “inflame public calls for action,” according to

the New York Times. Instead, the State Department and National

Security Council reportedly drafted guidelines instructing

government spokespeople to say that “acts of genocide may have

occurred” in Rwanda.

444

Thus, prosecuting corporate officials will not save the world or

substantially aid in preventing certain episodes of widespread international

crimes. If world leaders want to avoid labeling a humanitarian crisis as certain

genocide to avoid calls for military action, they may carry over into a decision

whether or not to identify areas of corporate facilitation. If the genocide is still

developing, identifying the facilitation is one of many measures short of military

intervention that the U.N. Security Council may use. Yet, if genocide can only be

stopped by a military intervention the Security Council is unwilling politically to

authorize, the members may want to once again avoid using the term “genocide”

in any way, including the identification of corporate facilitation.

However, in situations such as those involving blood diamonds or other

natural resources at the hands of serious criminals, cutting off the flow of funds

and materiel can have a significant impact. The U.N. Security Council has indeed

tried to make that impact by deciding that all states should ban trade in non-

certified rough diamonds. It is that kind of high-profile act that can be used to

effectively change the outlook of corporate officials. Corporate officials can then

see that what may seem like an ordinary, amoral, and non-criminal business

transaction is actually a method by which criminals obtain the means to commit

further atrocities.

Absent prohibitions on its use, money is perfectly fungible, and unlike

Zyklon B, it has many, many uses. Money that a warlord or criminal receives

could theoretically go to building a school as easily as to weapons and killing.

Does a corporation’s profit motive necessarily displace the intent to commit a

crime against humanity? No, a businessperson may intend to commit a crime or

join in a conspiracy to commit a crime in order to make the desired profit.

445

That

444

Diane F. Orentlicher, Genocide, in CRIMES OF WAR: WHAT THE PUBLIC SHOULD KNOW 153,

153 (Roy Gutman & David Rieff eds., 1999). This is not to say that there was no international

effort at preventing bloodshed in Rwanda. Before the genocide occurred, “there was a meaningful

effort under way long prior to the genocide to mitigate and contain the Rwandan civil war. These

efforts were not designed specifically to prevent genocide, but they were designed to prevent an

escalation of the crisis and to lay the groundwork for peace.” Bruce D. Jones, P

EACEMAKING IN

RWANDA: THE DYNAMICS OF FAILURE 2-3 (2001).

445

One commentator makes this point well in the context of the crimes in the former Yugoslavia:

I believe that it is a mistake to treat the [Genocide] convention’s use of the term

intent as though it were synonymous with motive. That Serb perpetrators of

ethnic cleansing may have slaughtered Muslims so that they could obtain control

Challenges of Prosecuting Corporate Officials-229

case is an easy call; that person can and should be prosecuted. The harder case is

the businessperson who is deliberately blind to the impact of his or her dealings.

It is true that domestic enforcement mechanisms can also prevent a corporate

official from avoiding the unpleasant knowledge that corporate money or

multipurpose goods are regularly converted into the means by which another

commits genocide, war crimes or crimes against humanity. But, only

international mechanisms can truly have the reach to have an adverse effect on the

transnational criminals of the world.

X. CONCLUSION

Due to the problem of “cascading complicity” inherent in business

transactions and due to the problems inherent in proving knowledge on the part of

a corporate official whose business transactions have benefited a criminal, the

U.N. Security Council should put corporate officials on notice that certain persons

or governments are presumed to be committing war crimes and crimes against

humanity and that any transactions with them will constitute a criminal violation

of international humanitarian law. This alerting of business entities is simply a

way to let these entities know that the funds or multipurpose goods they may

supply will be transformed into the means or instrumentalities for others to

commit crimes. This limited form of prescriptive authority is clearly within the

powers of the Security Council. Even if alerting corporate officials to behavior

that will be considered criminal complicity cannot by itself prevent genocide and

other serious international crimes, such a notice scheme can held deter those who

may have otherwise assisted and allow for easier post hoc prosecution.

At the end of the day, Mr. Ocampo’s statement that diamond buyers can

be prosecuted is correct, albeit in a limited fashion. Buyers of rough diamonds

could now be prosecuted in U.S. courts under the Clean Diamond Trade Act, and

they could be prosecuted in other states that have similar domestic laws. As to

Mr. Ocampo’s ICC, assuming the prerequisites to jurisdiction and admissibility

are satisfied, the buyers could be prosecuted if part of a conspiracy or joint

criminal enterprise if they intended the genocide so that they could receive the

diamonds at a lower price. However, the international prosecution of the “mere”

diamond buyer is not allowed; such a prosecution would violate the principle of

nullum crimen sine lege, a core principal in all international tribunals and one of

the principles set out in the Rome Statute.

446

To get there, the U.N. Security

Council must first decide that rough diamond purchases represent a de facto

facilitation of the crimes committed by the sellers to obtain them. It remains to be

over territory does not negate their intent to destroy Muslims “as such” in order

to achieve their ultimate goal.

Diane F. Orentlicher, Genocide, in C

RIMES OF WAR: WHAT THE PUBLIC SHOULD KNOW 153, 156

(Roy Gutman & David Rieff eds., 1999) (italics in original).

446

Rome Statute of the International Criminal Court, July 17, 1998, art. 22(1), U.N. Doc.

A/CONF.1839/9.

230-The Air Force Law Review

seen whether the Security Council will be willing to take that additional step to

contain the financing of persons committing genocide in Africa.

Challenges of Prosecuting Corporate Officials-231

STATE MILITIAS AND THE UNITED

STATES:

CHANGED RESPONSIBILITES FOR A NEW

ERA

OHN F. ROMANO∗

INTRODUCTION

The Constitution of the United States was established, in part, to

“insure domestic Tranquility, provide for the common defence, promote the

general Welfare, and secure the Blessings of Liberty to ourselves and our

Posterity.”

Written over two hundred years ago, the Constitution seeks to

achieve these goals in ways that frequently reflect the times of a bygone era.

Perhaps no other aspect of this document and the plan of government it

established is more indicative of the unique time period in which it was drafted

than those provisions that concern themselves with state militias and the

presence of a standing army.

Although these provisions generated a great

deal of debate at the time,

the rationale behind them is largely meaningless to

modern Americans.

In fact, as will be discussed in this article, the present-

∗

Mr. Romano (B.A. Fordham University, J.D. St John’s University) is a law clerk to the

Honorable John E. Sprizzo, S.D.N.Y. With many thanks to Professor Thomas F. Shea, whose

love of the Constitution is an inspiration to all he teaches.

U.S. CONST. pmbl.

As discussed infra, the Militia Clauses of the Constitution are found in Article I, section 8.

The provisions relating to the armed forces are similarly located in that section.

It could be argued that slavery is an issue which more accurately reflects the unique time

period in which the Constitution was drafted. Although this argument has merits, it is hard to

disregard the plethora of scholarly writings at the time which dealt in large part with the ideals

of representative government in contradistinction to absolutism and military rule. See, e.g.,

OHN LOCKE, SECOND TREATISE OF GOVERNMENT (C.B. Macpherson ed., Hackett 1980)

(1690); J

EAN-JACQUES ROUSSEAU, On the Social Contract, in THE BASIC POLITICAL WRITINGS

(Donald A. Cress trans., Hackett 1987) (1754); ADAM SMITH, THE WEALTH OF NATIONS

(Edwin Cannan 2004 .ed., Bantam 2003) (1776).

As discussed infra in Part I.B., the writers of “The Federalist Papers” deal extensively with

the subject, often advancing arguments and rebutting criticisms that many modern readers

would find unthinkable. See, e.g., T

HE FEDERALIST NO. 46 (James Madison) (engaging in

mathematical calculations to show that a standing army created by the federal government

could not possibly succeed at oppressing the people of the various states).

See Robert J. Spitzer, The Second Amendment “Right to Bear Arms” and United States v.

Emerson, 77 S

T. JOHN’S L. REV. 1, 15 (2003) (arguing that the Second and Third

Amendments, which deal with militias and standing armies, respectively, have become

obsolete due to changes in society); Frederick Bernays Wiener, The Militia Clause of the

Constitution, 54 H

ARV. L. REV. 181, 186 (1940) (stating that “the fears of the ratifiers were not

State Militias and the United Sates-233

day organization and responsibilities of the National Guard, the modern

equivalent of a state militia, directly contravene the principles and rationales of

the framers.

Part I of this article will discuss the various provisions in the

Constitution and other documents of the United States dealing with state

militias. It will also discuss the arguments made by the framers espousing the

constitutional theory behind these provisions, as well as the history and

contemporaneous thoughts regarding these institutions. Part II will explore the

evolution of the militia in American history and analyze this evolution in light

of the constitutional underpinnings of its existence. This article will conclude

that state militias, while serving an integral purpose in modern American

society, no longer fulfill their purpose as originally planned in the

Constitution.

II.

STATE MILITIAS AND THE CONSTITUTION

Militias, Armies, and the Texts of United States Documents

The Constitution makes mention of militias in two separate

provisions—one relating to the powers of Congress and the other to the powers

of the President. In the former, in what are known as the militia clauses,

the

Constitution details the specific powers of Congress and the limitations on that

power as regards state militias. Article I, section 8, clause 15 states that

Congress shall have the power “[t]o provide for calling forth the militia to

execute the laws of the Union, suppress insurrections, and repel invasions.”

Article I, section 8, clause 16 provides that Congress shall have the power of

“organizing, arming, and disciplining the Militia, and for governing such Part

of them as may be employed in the Service of the United States, reserving to

the States respectively, the Appointment of the Officers, and the Authority of

training the Militia according to the discipline prescribed by Congress.”

order to better understand these limitations, they must be contrasted with

Congress’s power as regards the Army, which is stated in Article I, section 8,

well-founded” given that the Third Amendment has never been invoked, yet noting that this

shows “the prevalence of views then entertained”).

See, e.g., Spitzer, supra note 4, at 15 (remarking that the National Guard is primarily under

the control of the federal government).

See Wiener, supra note 4, at 181 n.1 (discussing the term that should be used for these

provisions).

U.S. CONST. art. I, § 8, cl. 15. In addition to these three reasons for calling forth the militia,

courts have stated that Article IV, section 4 also states a valid reason for calling forth the

militia. See Laird v. Tatum, 408 U.S. 1, 3 n.2 (1972) (indicating that 10 U.S.C. § 331, which

allows calling forth the militia upon the request of a state legislature or executive, is based on

the guarantee provided for in Article IV, section 4 of the Constitution).

U.S. CONST. art. I, § 8, cl. 16.

234-The Air Force Law Review

clause 12. That provision simply states, “To raise and support Armies, but no

Appropriation of Money to that Use shall be for a longer Term than two

Years.”

While the latter limitation does serve to limit Congress’s ability to

fund a large standing army, unlike as in the militia clauses there is no

limitation on Congress’s ability to use that army.

The second mention of the militia occurs in Article II, which details the

powers of the President. Section 2 states that “[t]he President shall be

Commander in chief of the Army and Navy of the United States, and of the

militia of the several States, when called into the actual Service of the United

States.”

Militias are also explicitly mentioned in the Second Amendment to the

Constitution. That amendment states, “A well-regulated Militia, being

necessary to the security of a free State, the right of the people to keep and

bear Arms, shall not be infringed.”

U.S. CONST. art. I, § 8, cl. 12.

See Perpich v. Dep’t of Defense, 496 U.S. 334, 348–50 (1990) (pointing out that the

limitations of the militia clause do not apply to armies and similarly do not apply to militias

when federalized).

U.S. CONST. art II, § 2. The original provision recommended by the Committee of Detail at

the constitutional convention left off the clause “when called into the actual service of the

United States.” This addition was recommended by Roger Sherman and approved by the

convention. See S

IDNEY M. MILKIS & MICHAEL NELSON, THE AMERICAN PRESIDENCY:

ORIGINS AND DEVELOPMENT 42 (3d ed. 1999).

Note that this was an important check on military power, since it would at all times be under

the administration of civilians. See Strom Thurmond, The Military Officer and the

Constitution, 1988 A

RMY LAW. 4, 6 (crediting civilian control of the military for the lack of

military problems in this country); see also S

MITH, supra note 2, at 898–99 (stating that

standing armies should not be feared when they are placed in the hands of those with the

greatest interest in preserving civil authority).

U.S. CONST. amend. II. The right to bear arms is an issue unto itself, and thus outside the

scope of this article. Needless to say, much debate has taken place over whether that right

inheres in “the people” or whether it is inextricably linked to service in the militia. The

Supreme Court has expended little ink on this subject. In Presser v. Illinois, 116 U.S. 252

(1886), the Court determined that the amendment applies only against actions of Congress,

and not the states. Id. at 265. The Court thus held that an Illinois statute forbidding

unauthorized men to parade with arms did not violate the Second Amendment. Id. at 264–65.

In United States v. Miller, 307 U.S. 174 (1939), the Court held that the National Firearms Act

did not violate the Second Amendment because the prohibited weapons, sawed-off shotguns,

had no relationship to the preservation of a well-regulated militia. Id. at 178. Although these

cases are far from clear, one commentator has stated, “All of the Court’s decisions make clear

that the Second Amendment is invoked only in connection with citizen service in a

government organized and regulated militia.” Spitzer, supra note 4, at 13. Recently, however,

a 5th Circuit panel questioned this “collective rights” model of the Amendment and espoused

an “individualist” model, which would protect the right to bear arms independent of service in

the militia. See United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). See generally

Michael Busch, Comment, Is the Second Amendment an Individual or a Collective Right:

United States v. Emerson’s Revolutionary Interpretation of the Right to Bear Arms, 77 S

JOHN’S L. REV. 345 (2003).

State Militias and the United Sates-235

Integral to understanding the constitutional role of state militias is a

comprehension of how other military issues are treated in the Constitution and

other state papers. For example, although the Constitution allows Congress to

raise an army, the earlier Articles of Confederation relied on the states to

provide all land forces.

Similarly, the Declaration of Independence lists

several military issues as grievances against the King. It states that he “has

kept among us, in time of peace, standing armies, without the consent of our

legislatures,” and that he has “affected to render the military independent of,

and superior to, the civil power.”

These criticisms of military use and power

can also be seen in the Bill of Rights. The Third Amendment prohibits the

quartering of soldiers

and the Fifth Amendment explicitly places the rule of

civil law above military might.

Although these provisions quite clearly

indicate the mindset of the framers, a look at the arguments in the Federalist

Papers further elucidates the theories at work.

B. The Constitutional Theory—“The Federalist Papers”

The authors of the Federalist Papers discuss militias and standing

armies in several of the papers. These papers espouse two main arguments

regarding these institutions and the requirement that both be present in the

Constitution.

The first argument is that standing armies pose a threat to

liberty, and that militias will serve as a bulwark to this threat. The second,

somewhat contradictory argument,

is that militias are ineffectual and cannot

be relied upon to furnish for the common defense.

1. The Militia is Necessary to Curb the Need for, and the Power of, the

Standing Army

Those papers that espouse the first argument above generally begin by

pointing out that some sort of military will be required to defend the nation.

For example, in Federalist 8, Alexander Hamilton states that “[s]afety from

ARTICLES OF CONFEDERATION art. IX. That article provided that each state would supply

forces “in proportion to the number of white inhabitants” in that state. In addition, Article VI

required each state to “always keep up a well-regulated and disciplined militia, sufficiently

armed and accoutred.” A

RTICLES OF CONFEDERATION art. VI.

THE DECLARATION OF INDEPENDENCE paras. 13–14 (U.S. 1776).

The Third Amendment states, “No Soldier shall, in time of peace be quartered in any house,

without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law .

. . .” U.S.

CONST. amend. III.

In relevant part, the Fifth Amendment provides, “[N]or shall any person . . . be deprived of

life, liberty, or property, without due process of law.” U.S.

CONST. amend. V.

See Perpich v. Dep’t of Defense, 496 U.S. 334, 340 (1990) (discussing the two arguments);

Wiener, supra note 4, at 184–85.

See Wiener, supra note 4, at 184 (stating that the meshing of these institutions was a

compromise).

236-The Air Force Law Review

external danger is the most powerful director of national conduct.”

Federalist 24, Hamilton argues that “savage tribes” as well as the British and

Spanish pose threats that must be protected against.

It is even conceded that

force will sometimes be needed simply to govern. Likely referring to Shays’

Rebellion,

Hamilton writes in Federalist 28 that “the idea of governing at all

times by the simple force of law . . . has no place but in the reveries of those

political doctors, whose sagacity disdains the admonitions of experimental

instruction.”

After establishing this, these papers argue that it would be unwise to

create a large standing army. In Federalist 8, Hamilton describes standing

armies as having “a tendency to destroy [a nation’s] civil and political

rights.”

The authors of the Federalist Papers conclude, however, that this is

not a legitimate fear under the Constitution.

Because the Constitution

provides for state militias, they argue, there will never be a need for a large

standing army. In Federalist 26, Hamilton writes that a large army will not be

needed because of “the aid to be derived from the militia, which ought always

to be counted upon, as a valuable and powerful auxiliary.”

In Federalist 29 and 46, Hamilton and James Madison, respectively,

also argue that a standing army need not be feared because the militia itself

could be used to defend the people from any oppression that the army might

inflict. Hamilton writes, “[I]f circumstances should at any time oblige the

government to form an army of any magnitude, that army can never be

formidable to the liberties of the people, while there is a large body of citizens

little if at all inferior to them in discipline and the use of arms, who stand ready

to defend their own rights and those of their fellow citizens.”

Madison is

even more forceful in his comments. In Federalist 46, he argues that any

standing army created by the federal government would be opposed by a “half

THE FEDERALIST NO. 8, at 45 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

THE FEDERALIST NO. 19, at 156–57 (Alexander Hamilton).

Shays’ Rebellion was led by a former Continental Army officer who was dissatisfied with

debts, taxes, and the threat of land seizures. Shays led a group of farmers in a revolt against

the government of Massachusetts in September 1786. The rebellion was not quashed until

January 1787. See M

ICHAEL D. DOUBLER, I AM THE GUARD: A HISTORY OF THE ARMY

NATIONAL GUARD, 1636-2000, at 65 (2001),

http://www.arng.army.mil/guard_docs/presentations/guardhistorybook.pdf.

THE FEDERALIST NO. 28, at 176 (Alexander Hamilton).

THE FEDERALIST NO. 8, at 45 (Alexander Hamilton).

See THE FEDERALIST NO. 26, at 170 (Alexander Hamilton).

Id. at 170–71; see also THE FEDERALIST NO. 29, at 182 (Alexander Hamilton) (noting that

the militia will curb the need for a standing army). But see T

HE FEDERALIST NO. 25, at 162

(Alexander Hamilton) (stating that the militia is ineffectual).

THE FEDERALIST NO. 29, at 184 (Alexander Hamilton). But see THE FEDERALIST NO. 25

(Alexander Hamilton) (stating that the militia is ineffectual); SMITH, supra note 2, at 890 (“A

militia, however, in whatever manner it may be either disciplined or exercised, must always be

much inferior to a well-disciplined and well-exercised standing army.”).

State Militias and the United Sates-237

a million [] citizens with arms in their hands” which would “form[] a barrier

against the enterprises of ambition more insurmountable than any which a

simple government of any form can admit of.”

Although the prospect of state militias protecting the freedom of the

people from the standing army of the United States might sound incredible and

completely unnecessary to the modern reader, a look at the history and

prevailing notions at the time of the framing reveal this to be a major

concern.

Fear of standing armies can be traced to ancient times. Julius

Caesar, upon crossing the river Rubicon with his army, broke an ancient law

which forbade armies from crossing that barrier and entering Italy.

After the

Roman Empire was established, standing armies which protected the borders

from invasions became anathema to the rule of the emperor, and thus these

armies were separated into small groups so as to disperse their power.

more modern times, all Englishmen would be aware of the English Civil War

that had occurred in the mid-1600’s. After King Charles I raised an army and

unsuccessfully stormed Parliament, war broke out. Eventually Oliver

Cromwell seized the military power, purged Parliament of dissenters, and

named himself “Lord Protector.”

After Cromwell’s death, an army simply

marched on London and installed Charles II as King of England.

The

problem of standing armies in England would not be resolved until 1689, when

William and Mary peacefully gained control of England and agreed not to raise

a standing army without the consent of Parliament.

THE FEDERALIST NO. 46, at 321–22 (James Madison).

See Ex Parte Milligan, 71 U.S. 2, 120 (1866) (“The history of the world had taught [the

framers] that what was done in the past might be attempted in the future.”).

See SMITH, supra note 2, at 898 (remarking that Caesar and his army destroyed the Roman

Republic by their actions); S

UETONIUS, THE TWELVE CAESARS 23–24 (Robert Graves trans.,

Penguin Books 1957). Caesar is said to have reached the Rubicon and declared to his troops,

“We may still draw back but, once across that little bridge, we shall have to fight it out.” Id. at

23. After seeing an apparition cross the river, Caesar exclaimed, “Let us accept this as a sign

from the Gods, and follow where they beckon, in vengeance on our double-dealing enemies.

The die is cast.” Id. at 23–24.

See SMITH, supra note 2, at 895–96 (explaining that either Diocletian or Constantine

dispersed these armies so as to avoid further trouble). Interestingly enough, Smith goes on to

declare that this action, in effect, made these troops into militias because they formed small

enclaves and became citizens. The result was that they later proved too ineffective to repel

invasions. See id.

See LYNN HUNT ET AL., THE CHALLENGE OF THE WEST 578–81 (1995); Nathan Canestaro,

Homeland Defense: Another Nail in the Coffin for Posse Comitatus, 12 W

ASH. U. J.L. &

POL’Y 99, 103 (2003) (giving a brief history of the English Civil War and noting that

Cromwell instituted a “military tyranny” which caused enhanced fear of standing armies by

the people); see also T

HE FEDERALIST NO. 21, at 131 (Alexander Hamilton) (posing the

question of what Shays’ Rebellion could have resulted in had it been led by Caesar or

Cromwell); S

MITH, supra note 2, at 898.

HUNT ET AL., supra note 31, at 581.

See id. at 600; see also Anthony Gallia, Comment, “Your Weapons, You Will Not Need

Them,” 33 A

KRON L. REV. 131, 146–47 (1999) (stating that the English Bill of Rights of 1689

238-The Air Force Law Review

This concern also found itself into the political philosophy of the time.

In his Second Treatise of Government, John Locke writes extensively about the

need for a government that relies on the “consent of the governed” and which

has declared laws and rules that are known by, and applicable to, all persons.

This form of government is contrasted with tyranny, which Locke defines as

“the exercise of power beyond right, which no body can have a right to.”

Thus Locke argues that a government which exceeds its bounds may be rightly

opposed by the people.

Similarly, in his On the Social Contract, Jean-

Jacques Rousseau identifies the same problem with a government that exceeds

its powers. For Rousseau, the people form a social contract which advances

the “general will.”

When the government no longer administers the state in

accordance with this will, then the state is deemed dissolved and the

government nothing more than an unlawful tyrant.

Given this prevailing

political philosophy and the history of might exercised by standing armies, it is

not surprising that the framers as well as all “[m]en of republican principles

[were] jealous of a standing army as dangerous to liberty.”

2. The Militia is an Ineffective Body and Thus a Standing Army is Required

Although the framers feared a standing army, they did think it was

necessary to provide for one in the Constitution. The reason for this is evident

from Federalist 25. In that paper, Alexander Hamilton makes clear that state

militias alone would not be sufficient to provide for the common defense of the

nation.

Hamilton writes of the suggestion that the militia would be sufficient

for such a purpose, that “[t]his doctrine in substance had like to have lost us

our independence. It cost millions to the United States, that might have been

saved. The facts, which from our own experience forbid a reliance of this

kind, are too recent to permit us to be dupes of such a suggestion.”

Hamilton

concludes that a “regular and disciplined army” can only be successfully

opposed “by a force of the same kind.”

also contained the right to bear arms, in order for the people to protect themselves from

oppression).

LOCKE, supra note 2, at 70–76.

Id. at 101.

Id. at 103 (“[W]hosoever in authority exceeds the power given him by the law, and makes

use of the force he has under his command . . . and, acting without authority, may be opposed,

as any other man, who by force invades the right of another.”).

ROUSSEAU, supra note 2, at 154–55.

Id. at 193.

SMITH, supra note 2, at 898; see also Ex Parte Milligan, 71 U.S. 2, 125 (1866) (declaring

that the framers knew that “unlimited power, wherever lodged at such a time, was especially

hazardous to freemen”).

THE FEDERALIST NO. 25 (Alexander Hamilton).

Id. at 161–62 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

Id. at 162.

State Militias and the United Sates-239

Just as their fear of standing armies, the framers’ lack of confidence in

state militias was grounded in history and theory. Although the militia “by

their valour on numerous occasions, erected eternal monuments to their

fame”

during the American Revolution, it was generally realized afterwards

that it was not a force that could compete with the regular British army.

fact, early in the war effort, George Washington informed Congress that “ ‘[t]o

place any dependence upon Militia, is, assuredly, resting upon a broken staff.’

”

Thus, the Continental Congress created the Continental Army in 1775, and

this force handled most of the war effort.

In his Wealth of Nations, Adam Smith emphasized the inferiority of

militias as compared to trained standing armies.

Smith studied the history of

military encounters and concluded that it bears testimony to the “irresistible

Id. There are numerous tributes to the efforts of the militiamen during the early years of

war. An obelisk erected in the memory of those killed in the Battle of Lexington proclaims,

“On the morning of the ever memorable/ Nineteenth of April, An. Dom. 1775. The Die was

cast!!!!! The Blood of these Martyrs, In the cause of God & their Country/ Was the Cement of

the Union of these States, then/ Colonies; & gave the spring to the spirit, Firmness and

resolution of their Fellow Citizens.” A

LLEN FRENCH, HISTORIC CONCORD & THE LEXINGTON

FIGHT 7 (2d ed. 1992) (1942). Perhaps one of the most famous explications of the courage and

bravery of the militiamen is found in Henry Wadsworth Longfellow’s poem, “Paul Revere’s

Ride.” The penultimate verse states:

You know the rest. In the books you have read,

How the British Regulars fired and fled,—

How the farmers gave them ball for ball,

From behind each fence and farmyard wall,

Chasing the redcoats down the lane,

Then crossing the fields to emerge again

Under the trees at the turn of the road,

And only pausing to fire and load.

ENRY WADSWORTH LONGFELLOW, Paul Revere’s Ride, in SELECTED POEMS 60 (1992).

See DOUBLER, supra note 21, at 46 (“[T]he militia proved incapable of prevailing in battle

alone against British Regulars and usually failed to provide sustained combat power during

independent, extended operations.”).

Wiener, supra note 4, at 183 (quoting Letter, Washington to the President of Congress, Sept.

24, 1776, in 6 T

HE WRITINGS OF GEORGE WASHINGTON 106, 110 (1932)). Washington went

on to state, “ ‘If I was called upon to declare upon oath . . . whether the Militia have been most

serviceable or hurtful upon the whole; I should subscribe to the latter.’ ” Id. (quoting Letter,

Washington to the President of Congress, Sept. 24, 1776, in 6

THE WRITINGS OF GEORGE

WASHINGTON 106, 112 (1932)). It does appear, however, that Washington later became

supportive of state militias as a meaningful force for the defense of the nation. See id.; see

also John W. Vessey, Foreword to D

OUBLER, supra note 21, at 6–7 (indicating that after the

war Washington proposed a five-point plan for the national defense which included a well-

organized militia).

See DOUBLER, supra note 21, at 50.

Using his economic theory of division of labor, Smith predicted that as society became more

advanced, militias would become increasingly obsolete. As will be discussed infra, his

prediction and rationale are highly applicable to the evolution of the military in the United

States.

240-The Air Force Law Review

superiority which a well-regulated standing army has over a militia.”

noted that the Roman army routed those nations that depended upon militias,

and that in the later years of the Empire, when militias took hold, it could not

defend itself from the barbarous nations surrounding it.

Thus, Smith

believed that the only proper way to provide for the common defense would be

to have a standing army which was placed under the control of civilian

authority.

Thus, these two prevailing opinions, that standing armies are

dangerous, but also that they are necessary, shaped the Constitution and

resulted in the creation of both a standing army and state militias.

III.

THE EVOLUTION OF STATE MILITIAS IN THE UNITED

STATES

An understanding of the evolution of state militias, and military power

generally, in the United States is best undertaken by examining how the above

two arguments regarding state militias played out after the ratification of the

Constitution.

A. The Prescience of Federalist 25—Militias Prove Ineffectual

The very first action relating to militias was the Militia Act of 1792.

The act formed the militia, which was essentially all men between the ages of

eighteen and forty-five.

In accordance with its constitutional powers and its

fear of military use domestically, Congress also passed laws authorizing

presidential use of the state militias to execute federal laws, suppress

insurrections, and repel invasions.

This power was soon exercised by

President Washington. After western Pennsylvanian farmers ejected the

federal marshal and threatened to disturb all federal authority in the region,

President Washington called forth the militia and personally led them to the

site of the insurrection. Upon their arrival the rebels dispersed and the

Whiskey Rebellion was quashed.

SMITH, supra note 2, at 892.

See id. at 895–96.

See id. at 898–99.

1 Stat. 264 (1792).

See Wiener, supra note 4, at 187.

See id. These laws still exist and are codified at 10 U.S.C. §§ 331–334. The distaste for

military use domestically and the concurrent preference for the use of militias, or posses

comitatus, seems to have been derived from English history. The “Mansfield Doctrine” stated

that uniformed soldiers acting as civilians in a posse could do what the actual military should

not do—enforce the laws. See Canestaro, supra note 31, at 104–05. In fact, one of the

colonists’ biggest complaints was the use of the British military, instead of a posse, to put

down the insurrection that became the Boston Massacre in 1770. See id. at 106–07.

See MILKIS & NELSON, supra note 11, at 79–81 (describing the Whiskey Rebellion, which

State Militias and the United Sates-241

Following this success, however, the militia, as an institution, displayed

its limitations and weaknesses. When called upon to assist with the War of

1812, the militia proved a spectacular failure.

In some states, the governor

steadfastly refused to provide the militia that the president had requested.

those instances where it did report, the militia frequently performed poorly.

New York militiamen refused to battle the British in Canada, arguing that such

behavior could not possibly be required to “repel invasions.”

In those battles

which it did join, the militia distinguished itself as excelling in speedy

retreats.

All-in-all, the War of 1812 seemed to confirm Hamilton’s belief

that the militia could not possibly stand as the nation’s sole line of defense.

Following the war, the constitutional limitations placed on the militia

continued to limit its use. The Mexican War, being fought on foreign soil, had

no constitutional place for state militias.

The Civil War witnessed militia

contributions, but the overall impact of state militias was small, due primarily

to eighteenth-century congressional legislation limiting service to just three

months.

The result was that the state militias became neglected and in a

matter of years had become close to obsolete. It was not until the twentieth

century, when President Theodore Roosevelt asked for an overhaul, that

anything was done to improve the militia system.

B. The Evolution of Militias and the Erosion of the State/Federal

Distinction

With the ineffectiveness of the militia becoming readily apparent, the

took place in 1794); Wiener, supra note 4, at 188 (noting that the president used his powers

under the recently-enacted statutes to quash the rebellion).

See DOUBLER, supra note 21, at 79 (“The War of 1812 revealed glaring inadequacies in the

militia system and raised serious questions regarding the responsibilities the federal

government and the States shared for the common defense.”); see also Selective Draft Law

Cases, 245 U.S. 366, 384–85 (1918) (explaining that Congress turned to its army powers when

the militia failed to fulfill its war needs).

See DOUBLER, supra note 21, at 79 (noting that the governors of the New England states did

not support the war effort and thus questioned the constitutionality of calling forth the militia

in this situation); Wiener, supra note 4, at 188.

Wiener, supra note 4, at 189; see also DOUBLER, supra note 21, at 80 (“On as many as half

a dozen occasions, Ohio and New York militia units refused to cross into Canada to attack

British positions.”).

DOUBLER, supra note 21, at 80–81 (detailing what became known as the “Bladensburg

Races,” which led to the burning of Washington D.C. by the British).

See Wiener, supra note 4, at 190. But see DOUBLER, supra note 21, at 92–93 (pointing out

that many militiamen joined volunteer corps that were formed for the war).

See Wiener, supra note 4, at 190–91.

See Perpich v. Dep’t of Defense, 496 U.S. 334, 341 (1990). Before President Roosevelt’s

entreaty, the militia was still governed by eighteenth-century laws and requirements. A male

between the ages of 18 and 45 in the year 1901 was expected, under the law, to furnish himself

with “a good musket,” and “a sufficient bayonet.” See Wiener, supra note 4, at 194.

242-The Air Force Law Review

federal government moved to strengthen the militia so as to provide for a

useful force for the common defense of the nation. In 1903, Congress passed

the Dick Act.

The Dick Act provided for an organized militia, the National

Guard, which would be equipped and trained with the use of federal funds.

By 1908, this increased support and funding had transformed an unorganized

militia into a supported, organized state militia system of 105,000

militiamen.

The National Defense Act of 1916 followed shortly thereafter. This act

allowed for the “federalization” of the National Guard.

In effect, the act

provided that the National Guard could be called into federal service, at which

point guardsmen would be part of the army, and not the state militia.

This

change in characterization had tremendous implications. As noted earlier in

Part I.A., the militia clause of the Constitution limits the uses of the militia by

the federal government. The use of the army, under the army clause, is not so

limited. Thus, when federalized, the National Guard is no longer subject to the

restrictions of the militia clause and may be used in the same way as the

standing army.

Federalization also impacts the standing of the militia under an 1878

act of Congress—the Posse Comitatus Act.

That act, as amended, makes it a

crime to authorize the use of the “Army or the Air Force as a posse comitatus

or otherwise to execute the laws.”

When federalized, the militia is deemed a

part of the Army, and thus the act would apply to prohibit its use in enforcing

the laws.

The act, however, under its own terms, does not apply “in cases

and under circumstances expressly authorized by the Constitution or Act of

Congress.”

Thus, the act has been deemed not to be violated when the army,

32 Stat. 775 (1903).

See Perpich, 496 U.S. at 343; United States ex rel. Gillett v. Dern, 74 F.2d 485, 486 (D.C.

Cir. 1934); Wiener, supra note 4, at 193–97.

See Wiener, supra note 4, at 197.

See Perpich, 496 U.S. at 343.

See id.; see also 10 U.S.C. § 12406 (giving the power to the president to call Guard

members into federal service).

See Perpich, 496 U.S. at 348–50 (explaining that since the army clause does not limit the

federal government, the federalization of the National Guard subjects it to duty on the same

terms as the Army); Wiener, supra note 4, at 200 (indicating that federalization thus means

that guardsmen can serve abroad).

18 U.S.C. § 1385.

Id.; see also Gilbert v. United States, 165 F.3d 470, 472 (6th Cir. 1999) (“The Act reflects a

concern, which antedates the Revolution, about the dangers to individual freedom and liberty

posed by use of a standing army to keep civil peace.”).

See Canestaro, supra note 31, at 126. When not under federal control, the members of the

National Guard are not covered by the act. See Gilbert, 165 F.3d at 472–73 (concluding that

guardsman was under state control and thus his use in this arrest did not violate the act);

United States v. Hutchings, 127 F.3d 1255, 1257–58 (10th Cir. 1997) (determining that

guardsmen were not under federal control and thus did not violate the act).

18 U.S.C. § 1385. There are numerous examples of such laws. See 10 U.S.C. §§ 331–334

State Militias and the United Sates-243

including the federalized national guard, have been used to put down

insurrections and to enforce federal laws in times of rebellion.

In fact, these

bases were used to authorize the use of federal troops and the national guard in

desegregating the schools of Little Rock, Arkansas in 1957.

1933 amendments to the National Defense Act established two distinct

organizations—the National Guard of the various States, and the National

Guard of the United States.

Upon enlisting, guardsmen are members of both,

and pledge allegiance to both the state and the federal government. Later

amendments and cases have established that the National Guard may be

federalized at any time and that guardsmen may be sent anywhere in the

world.

C. Federal Power versus State Power—The Proper Role of Militias

As discussed above in Part I.B.1., the theory behind the necessity for

state militias was that they could provide a necessary bulwark against the

power of a standing army. With the increasing federalization of the National

Guard, however, one must question what the proper role of the Guard is in a

changing society.

A starting point to this analysis must be an examination of the state’s

(allowing the use of the National Guard and the military to put down rebellions, enforce

federal laws, and guarantee application of constitutional rights); 10 U.S.C. §§ 371–382

(allowing military involvement in certain aspects of the war on drugs and the war on terror).

See, e.g., 41 Op. Att’y Gen. 313, 329–30 (1957) (stating that the act does not apply because

10 U.S.C. §§ 332–333 allow for the use of military forces to put down rebellions which

interfere with the enforcement of United States laws); 16 Op. Att’y Gen. 162, 163–64 (1878)

(explaining the steps that the president would have to take to use troops to quash resistance to

internal revenue collection in Arkansas).

See Exec. Order No. 10,730, 22 Fed. Reg. 7628 (Sept. 24, 1957) (calling for use of troops in

Arkansas because persons there have “wilfully obstructed the enforcement of orders of the

United States District Court for the Eastern District of Arkansas”); 41 Op. Att’y Gen. 313,

327–30 (1957); see also 28 Fed. Reg. 5707 (June 11, 1963) (ordering the obstruction of justice

in Alabama to end, and relying on 10 U.S.C. §§ 332–334 for this power). See generally

OUBLER, supra note 21, at 213–14 (discussing the National Guard’s role in desegregation).

See Perpich v. Dep’t of Defense, 496 U.S. 334, 345 (1990). The Court explained that the

creation of two organizations was necessitated by the aftermath of World War I. After having

been federalized, guardsmen were not restored to state service, thus destroying the

membership of state militias. The 1933 amendments rectified this problem by creating

simultaneous enlistment and membership in two organizations. See id. at 345–46.

See id. at 346–54. Perpich dealt with the Montgomery Amendment to the National Defense

Authorization Act. The amendment eliminated gubernatorial consent as a prerequisite for

federalization of the National Guard. The consent requirement was originally added in 1952

when the state of national emergency requirement was eliminated. The unanimous Court held

that in the sphere of military affairs there is “supremacy of federal power.” Id. at 351. The

militia clause in no way restrains the power of Congress over armies and the national defense,

and thus the federal government may federalize the National Guard when it desires and use it

how and where it desires. Id. at 348–50.

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power over its militia. It is long-settled law that the governor of each state has

almost unbridled power over its militia.

In Martin v. Mott, the Court dealt

with the question of who decides when the militia is required for service.

Since in this case the President had called out the militia, the Court determined

that he was the “sole and exclusive judge” of the necessity for their services.

Later courts have applied this principle to governors in their decisions to use

the militia.

If governors have this power, and the original theory behind state

militias was that they would curb excessive federal power, then the inevitable

question is whether states can use their militias against what they view as

intrusive and unauthorized federal power.

The Court dealt with this issue in Sterling v. Constantin.

In that case,

the governor of Texas called out the National Guard to enforce a regulation

limiting oil production from specific oil fields. This action was undertaken

despite a federal court injunction that prohibited the governor from enforcing

the regulation.

The Court held that the governor’s actions were improper.

While recognizing that the governor’s decision about when to use the militia is

“conclusive,”

the Court found that such use would only be proper if done to

uphold the rule of law, rather than to “nullify it.”

Thus, the distinction made

by the Court is that the governor’s decision to use the militia is beyond review,

Sterling v. Constantin, 287 U.S. 378, 399–400 (1932); Moyer v. Peabody, 212 U.S. 78, 83

(1908); Luther v. Borden, 48 U.S. 1, 45–46 (7 How.) (1849); cf. Martin v. Mott, 25 U.S. 19,

29–30 (1827).

25 U.S. 19, 29–30 (1827).

Id. at 32. The Court stated, “[I]n many instances, the evidence upon which the President

might decide that there is imminent danger of invasion . . . might reveal important secrets of

state, which the public interest, and even safety, might imperiously demand to be kept in

concealment.” Id. at 31.

See Sterling, 287 U.S. at 399 (stating that governor’s decision as to need for National Guard

“is conclusive”); Morgan v. Rhodes, 456 F.2d 608, 610–11 (6th Cir. 1972) (refusing to

second-guess the decision of the governor to use the militia at Kent State), rev’d on other

grounds sub nom., Gilligan v. Morgan, 413 U.S. 1 (1973); cf. United States ex rel. Gillett v.

Dern, 74 F.2d 485, 487 (D.C. Cir. 1934) (explaining that when not in federal service, the

Guard is within the exclusive province of the state); People ex rel. Leo v. Hill, 126 N.Y. 497,

503–04 (1891) (finding that the governor’s power to disband portions of the militia is

plenary).

This question seems dependent on what political actor is in charge of the militia at the time. A

somewhat related issue was raised and dealt with following the death of four students at Kent

State University in 1970. The Court in that case determined that the training of the National

Guard had been vested in Congress, and thus it would be inappropriate for the judiciary to

become involved. Gilligan v. Morgan, 413 U.S. 1, 6–10 (1973) (deeming the issue a non-

justiciable political question).

287 U.S. 378 (1932).

Id. at 387–88.

Id. at 399 (“His decision to that effect is conclusive.”).

Id. at 402–04. The Court stated that if the governor could simply disregard federal court

rulings, then “fiat of a state Governor, and not the Constitution of the United States, would be

the supreme law of the land.” Id. at 397.

State Militias and the United Sates-245

but only when used in furtherance of the rule of law. It cannot be used to

undermine legitimate federal action.

The most striking examples of the above occurred during the school

desegregation battles in the South. In 1957, Arkansas governor Orville Faubus

stationed the state National Guard at high schools in Little Rock to prevent the

integration of the schools that was ordered by the United States District Court

for the Eastern District of Arkansas.

Relying on Attorney General

Brownell’s advice that the federal government could step in to enforce the

federal court ruling,

President Eisenhower federalized the Arkansas National

Guard and used federal troops to enforce the ruling and to implement

integration.

Similarly, in 1963, the National Guard was caught between

opposing forces. Alabama governor George Wallace used his state’s National

Guard to turn away black students from the University of Alabama at

Tuscaloosa, despite a federal court-ordered integration plan.

In response,

President Kennedy ordered the federalization of the Alabama National

Guard.

Several days later, federal officials, supported by the National Guard,

confronted Governor Wallace at the door of the University of Alabama and

enforced the federal court’s order of integration.

Cf. U.S. CONST. art. VI (“This Constitution, and the Laws of the United States which shall

be made in Pursuance thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law of the Land.”).

See 41 Op. Att’y Gen. 313, 315–17 (1957); DOUBLER, supra note 21, at 213.

41 Op. Att’y Gen. 313, 324–27 (relying on 10 U.S.C. §§ 332–333, which authorized the

president to use the military to enforce federal laws where the states are unable or unwilling to

do so).

Exec. Order No. 10,730, 22 Fed. Reg. 7628 (Sept. 24, 1957); 41 Op. Att’y Gen. 313, 329;

OUBLER, supra note 21, at 214 (“Presented with orders straight from the federal commander

in chief, the Arkansas National Guard responded by disregarding further directions from

Governor Faubus. Angered by Eisenhower’s move, Faubus referred to his own Arkansas

National Guard as ‘occupation troops.’ ”).

The President acted under the powers granted in 10 U.S.C. §§ 332–333. The former

authorizes action when “rebellion against the authority of the United States make[s] it

impracticable to enforce the laws of the United States in any State by the ordinary course of

judicial proceedings.” 41 Op. Att’y Gen. 313, 327. The latter is to be used when insurrection

causes a situation where a class of people are “deprived of a right, privilege, immunity, or

protection named in the Constitution and secured by law . . . .” Id.; see also In re Debs, 158

U.S. 564, 582 (1895) (“If the emergency arises, the army of the Nation, and all its militia, are

at the service of the Nation to compel obedience to its laws.”); 41 Op. Att’y Gen. 313, 332

(“When a local and State Government is unable or unwilling to meet [the threat of mob rule],

the Federal Government is not impotent.”).

See DOUBLER, supra note 21, at 214 (stating that the students, who were escorted by

Department of Justice officials, were turned away personally by Governor Wallace).

See id.

See id. at 215 (indicating that the governor made a short statement vowing to continue to

work against integration, and then stepped aside and allowed the students to enter); see also

Alabama v. United States, 373 U.S. 545, 545 (1963) (refusing to find any basis for damages

by the state for the actions of the federal government in stationing troops in preparation of

246-The Air Force Law Review

The situation that the above examples illustrate, while revealing a

supremacy of the federal government as against the states, was considered by

the framers and wholeheartedly endorsed. In Federalist 16, Hamilton writes

about just such a problem and concludes that the people and the federal

government would be authorized to stop “illegal usurpation[s] of authority.”

This, it seems, is the distinction. Illegal usurpations of power will not be

tolerated by either the states or the federal government—and the militia will be

available to ensure this.

IV.

CONCLUSION

The militia of today is far different than that envisioned by the framers

of the Constitution.

Although it is at least nominally a state body, the

National Guard is more properly viewed as an extension of the Army. Capable

of being federalized at any time, and of serving anywhere, the National Guard

plays an integral role in the country’s national defense needs, both

domestically and abroad.

Because of this relationship with the federal

government, the National Guard no longer seems like the bulwark against that

government which it was originally designed to play. In fact, the recent

history of the Guard has seen its use in the hands of the federal government

against the lawlessness of state governments. Thus, for now, the constitutional

underpinnings of the state militias seem obsolete—the worries of the framers

seem unimportant. In an age of increasing security measures and fears about

government intrusion, however, it remains to be seen whether the framers were

more prescient than we now believe.

action under 10 U.S.C. § 333).

THE FEDERALIST NO. 16, at 104 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

See supra notes 34–39.

For a wonderful discussion of the natural progression from a militia-based force to a

professional military force, see book five, chapter one of the Wealth of Nations. Smith gives

two reasons for this development. The first is that advances in society make war more about

skill than strength. The second is that as society grows, the goods and services offered by

citizens become more essential, and thus citizens cannot simply leave their professions when

militia service calls. He writes, “[I]t is necessary that [military service] should become the

sole or principal occupation of a particular class of citizens, and the division of labour is as

necessary for the improvement of this, as of every other art.” S

MITH, supra note 2, at 886–87.

It is hard to argue that this is not what happened in the United States.

See generally The Army National Guard: At Home . . . Overseas . . . America’s 911

(indicating that the Army National Guard composes 34% of the Army force structure and that

guardsmen are currently deployed around the globe), http://www.arng.army.mil.

See generally Canestaro, supra note 31 (discussing homeland security and the increasing

presence of the military in the United States).

State Militias and the United Sates-247

FIVE QUESTIONS ABOUT THE MILITARY

JUSTICE SYSTEM

F. “SPARKY” GIERKE*

I. INTRODUCTION

Between my service on the North Dakota Supreme Court and the Court

of Appeals for the Armed Forces, I have now been an appellate judge for more

than two decades. One thing appellate judges certainly know how to do is ask

questions. I hope to stimulate thought about the military justice system by

posing five fundamental questions:

First, is it time for a comprehensive reevaluation of the military justice

system?

Second, how can technology improve the military justice system?

Third, should the structure of the military trial judiciary be changed?

Fourth, how can the services best develop judge advocates to become

military justice professionals?

Fifth, how will international concerns affect our military justice

system?

II. QUESTION ONE: SYSTEMIC REEXAMINATION

In a speech that he delivered in 2000, Major General William A.

Moorman, who was then the Judge Advocate General of the Air Force,

addressed change in the military justice system.

He noted that the “central

question” was whether the Uniform Code of Military Justice (U.C.M.J.)

needed to be changed.

General Moorman responded, “There can be only one

answer. Of course it needs to be changed!”

He explained, “For 50 years, the

U.C.M.J. and the Manual for Courts-Martial which implements it, have been

anything but static documents. The real questions are: ‘If change is inevitable,

what changes should be made? Why should change occur? And, when should

* Chief Judge, United States Court of Appeals for the Armed Forces. This article is the edited

text based on a speech Chief Judge Gierke delivered to the Federal Bar Association’s

Pentagon Chapter on October 21, 2004, at the Court of Appeals for the Armed Forces in

Washington, D.C. The author is grateful to Captain Kevin Barry, USCG (Ret.), whose selfless

dedication and contribution to military justice have been extraordinary, for his encouragement

to publish these remarks.

Major General William A. Moorman, Fifty Years of Military Justice: Does the Uniform Code

of Military Justice Need to be Changed?, 48 A.F.

L. REV. 185 (2000).

10 U.S.C. §§ 801-941 (2000).

Moorman, supra, note 1, at 185.

Id.

Five Questions About the Military Justice System-249

changes be made?’”

General Moorman then urged caution in adopting

changes to the military justice system, emphasizing the importance of ensuring

that reforms do not interfere with ensuring good order and discipline in our

military forces.

Since enacting the current military justice system in 1950,

Congress

revisited and revised the system in 1968

and 1983.

The 1968 revisions were

particularly substantial, including changing the old “law officer” position to the

office of military judge, authorizing judge-alone courts-martial, and

fundamentally reforming the special court-martial to require, in almost all

instances, a lawyer to serve as the defense counsel and a military judge to

preside.

Those of us who were judge advocates before the Military Justice Act

of 1968 grew to accept the thought of soldiers being confined for six months as

the result of a special court-martial with no lawyers in the courtroom. It was

part of the system that we learned about at Judge Advocate General (JAG)

School. Now, of course, we look back in disbelief. Are there aspects of our

current system that will seem just as anachronistic when we look back at it in

2040 (if I’m lucky enough to still be analyzing the system when I am 97)?

Congress reviewed the system again in 1983.

The results were

revisions that “streamline[d]” the post-trial review process

and extended the

Supreme Court’s certiorari jurisdiction to include decisions of what was then

called the United States Court of Military Appeals.

Now that more than twenty years have passed since the last major

revision of the system, is it an appropriate time to determine how it is working?

The military justice system is currently undergoing a period of great strain and

scrutiny. This has affected both the established court-martial system and

military commissions

--an entirely distinct process from the court-martial

system with which our Court deals. Article 21 of the U.C.M.J.

recognizes

military commissions’ jurisdiction to operate independently of the court-

Id.

Id. at 187-88.

Uniform Code of Military Justice, Pub. L. No. 81-506, 64 Stat. 107 (1950).

Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335.

Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393.

See S. REP. NO. 90-1601 (1968), reprinted in 1968 U.S.C.C.A.N. 4501, 4501-02.

Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1394.

H.R. REP. NO. 98-549, at 13 (1983), reprinted in 1983 U.S.C.C.A.N. 2177, 2178.

Military Justice Act of 1983, Pub. L. No. 98-209, § 10(a)(1), 97 Stat. 1394 (codified as

amended at 28 U.S.C. § 1259 (2000)).

“[I]n the exercise of power conferred upon it by Article I, § 8, Cl. 10 of the Constitution to

‘define and punish . . . Offences against the Law of Nations. . . ,’” Congress has recognized

military commissions “as an appropriate tribunal for the trial and punishment of offenses

against the law of war.” In re Yamashita, 327 U.S. 1, 7 (1946).

10 U.S.C. § 821 (2000).

250-The Air Force Law Review

martial system. It is important for the public to appreciate the distinction

between these two systems.

Can the military justice system withstand the current enhanced public

scrutiny? Of course it can. Could our system be improved? Of course it can,

no human product is perfect.

Since Congress’ last substantial review of the military justice system in

1983,

the face of America’s military has changed. One particularly important

development has been the civilianization of many military functions. This

includes logistic support on the battlefield,

and even the Navy’s replacement

of sailors on some ships with “civilian mariners.”

Should these civilians accompanying U.S. forces be subject to court-

martial jurisdiction? A 1970 decision by the Court of Military Appeals is an

impediment to doing so.

Under Article 2(a)(10) of the U.C.M.J., “persons

serving with or accompanying an armed force in the field” are subject to court-

martial jurisdiction “[i]n time of war.”

That time of war requirement is

constitutionally significant, because the Supreme Court has held that civilians

may not be subjected to court-martial jurisdiction in peacetime.

Raymond Averette was a civilian who supervised a motor pool on

behalf of a government contractor in the Saigon area in 1968.

He was tried

by a general court-martial for conspiring with several soldiers to steal 36,000

See Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393.

See generally Major Brian H. Brady, Notice Provisions for United States Citizen Contractor

Employees Serving with the Armed Forces of the United States in the Field: Time to Reflect

Their Assimilated Status in Government Contracts?, 147 MIL. L. REV. 1 (1995); Major

Michael E. Guillory, Civilianizing the Force: Is the United States Crossing the Rubicon?, 51

A.F. L. REV. 111 (2001); Major Lisa L. Turner and Major Lynn G. Norton, Civilians at the Tip

of the Spear, 51 A.F. L.

REV. 1, 30-31 (2001) (discussing the various views of the different

branches of the military regarding the risk to civilians who deploy with service members).

See, e.g., James W. Crawley, Flagship Embarks on Dual-Purpose Journey; The Coronado

Gets Into Shape for Challenging Future, S

AN DIEGO UNION TRIBUNE, March 6, 2004, at B-1.

United States v. Avarette, 40 C.M.R. 891, 892 (Army C.M.R. 1969), rev’d, 19 U.S.C.M.A.

363, 41 C.M.R. 363 (C.M.A. 1970).

U.C.M.J., 10 U.S.C. § 802(a)(10) (2000).

See McElroy v. United States ex rel. Guagliardo, decided and reported with Wilson v.

Bohlender, 361 U.S. 281 (1960) (enlarging the holding in Grisham to prohibit court-martial

jurisdiction over civilian employees committing noncapital offenses); Grisham v. Hagan, 361

U.S. 278 (1960) (finding civilian employees committing capital offenses not subject to military

jurisdiction); Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (extending the

holding in Reid to prohibit military jurisdiction over civilian dependents in time of peace,

regardless of whether the offense committed was capital or noncapital); Reid v. Covert, 354

U.S. 1 (1957) (holding that civilian dependents accompanying troops overseas during

peacetime cannot be tried by court-martial for capital offenses); United States ex rel. Toth v.

Quarles, 350 U.S. 11 (1955) (holding civilians, including former service members, cannot be

subject to court-martial and are entitled to the safeguards afforded those tried in Article III

courts).

Averette, 40 C.M.R. at 892.

Five Questions About the Military Justice System-251

batteries from an Army warehouse and for carrying out that plan.

He was

convicted and received a sentence that included a year of confinement.

After

the Army Court of Military Review affirmed his conviction, the Court of

Military Appeals reversed.

Over the dissent of Chief Judge Quinn, Judges

Darden and Ferguson held that “for a civilian to be triable by court-martial in

‘time of war,’ Article 2 . . . means a war formally declared by Congress.”

That definition, however, is at odds with the definition of “time of war” for

purposes of the Manual for Courts-Martial. R.C.M. 103 defines “time of war”

as “a period of war declared by Congress or the factual determination by the

President that the existence of hostilities warrants a finding that a ‘time of war’

exists.”

In practice, the Averette decision exempts civilians from court-martial

jurisdiction, since congressional declarations of war

have become a thing of

the past.

Throughout its history, the United States has fought only five

declared wars -- none since Congress adopted the U.C.M.J. in 1950.

Should

Congress change Article 2?

When we think about reexamination of the military justice system, we

must keep in mind that, every year, the system is reviewed by the Joint

Services Committee,

which reports to the Code Committee.

That review

serves as a sort of annual physical exam. But, every so often, we get a more

comprehensive physical including blood work and an EKG. Is it time for the

military justice system to receive a comprehensive examination?

In 2001, one of my predecessors as Chief Judge of the Court of

Appeals for the Armed Forces--Walter T. Cox III--led a blue-ribbon panel that

examined the military justice system.

Among other fundamental issues, the

Id. at 893.

Id., 19 U.S.C.M.A. at 363, 41 C.M.R. at 363.

Id., 19 U.S.C.M.A. at 366, 41 C.M.R. at 366.

Id., 19 U.S.C.M.A. at 365, 41 C.M.R. at 365.

Rule for Courts-Martial 103(19), Manual for Courts-Martial, United States (2002 ed.)

[hereinafter R.C.M.].

See U.S. CONST. art. I, § 8, cl. 11 (“The Congress shall have Power . . . [t]o declare War”).

See Malvina Halberstam, The U.S. Right to Use Force in Response to the Attacks on the

Pentagon and the World Trade Center, 11 C

ARDOZO J. INT’L & COMP. L. 851, 867 (2004)

(“Today, formal

declarations of war are as much an anachronism as ‘Letters of Marque and

Reprisal’ . . . .”).

These were the War of 1812, the Mexican-American War, the Spanish-American War,

World War I, and World War II. Guillory, supra note 17, at 139 n.171 (quoting B

RIEN

HALLETT, THE LOST ART OF DECLARING WAR 169 (1998)).

Review of the Manual for Courts-Martial, 32 C.F.R. pt. 152 (2004).

Article 146, U.C.M.J., 10 U.S.C. § 946 (2000).

See THE HONORABLE WALTER T. COX III, ET AL., REPORT OF THE COMMISSION ON THE 50

NNIVERSARY OF THE UNIFORM CODE OF MILITARY JUSTICE (2001), at

http://www.nimj.com/documents/cox_comm_report.pdf,

reprinted with commentary and

without Appendices at Kevin J. Barry, A Face Lift (And Much More) for an Aging Beauty: The

Cox Commission Recommendations to Rejuvenate the Uniform Code of Military Justice, 2002

REV. MICH. ST. U.-DETROIT C.L. 57, 88-124.

252-The Air Force Law Review

Cox Commission examined the roles of the convening authority and the

military judge, and offered proposals to shift some responsibilities from the

former to the latter.

In our decision last term in United States v. Dowty, our

court referred to the Cox Commission’s recommendations to change the

convening authority’s role in selecting court-martial members.

At the

September 2004 Code Committee meeting, the Army revealed that it is

seriously scrutinizing the manner by which court-martial members are

selected. The Army is also considering whether the U.C.M.J.’s sexual offense

articles should be amended to parallel the federal sexual assault statute.

Congress recently directed a similar review.

Perhaps a fundamental

reexamination of the military justice system has already begun.

III. QUESTION TWO: USE OF TECHNOLOGY

I am astounded by how technology has changed the battlefield since I

was a young captain presiding over special courts-martial in Vietnam.

Technology has also helped us in the military justice system. For example, we

use computerized legal research to quickly discover the law that applies to the

cases we are litigating or deciding—and counsel even use on-line legal

research services to track down witnesses.

Computers have also helped us

more easily write motions, briefs, and opinions.

In May 2003, the Court of Appeals for the Armed Forces launched a

pilot program to allow electronic filing of motions for first enlargement of

time.

The program proved to be a huge success. In August of this year, we

expanded e-filing to include counsel’s notices of appearance and motions to

withdraw in addition to motions for enlargement of time to respond to court

orders.

E-filing will, no doubt, continue to expand and will almost certainly

come to include all submissions to our court.

But many other technological innovations seem possible. For example,

why in the 21

Century do we continue to print out massive records of trial,

Id. at 6-8.

United States v. Dowty, 60 M.J. 163, 175-76 (C.A.A.F. 2004), reconsideration denied, 60

M.J. 375 (C.A.A.F. 2004).

National Defense Authorization Act for Fiscal Year 2005, H.R. REP. NO. 108-491, Title V,

Subtitle H, § 571, at 324 (2004).

See U.S. Army Legal Services Agency, Litigation Division Note: Dead Men Tell No Tales,

and Neither Do Missing Ones: Finding the Witness, A

RMY LAW., March 1999, at 41.

See Rule Change, In re Electronic Filing, 58 M.J. 282 (C.A.A.F. 2003).

See Rules Changes, In re Electronic Filing, 60 M.J. 308 (C.A.A.F. 2004).

See generally Richard B. Hoffman & Barry Mahoney, Managing Caseflow in State

Intermediate Appellate Courts: What Mechanisms, Practices, and Procedures Can Work to

Reduce Delay?, 35 I

ND. L. REV. 467, 493-94 (2002) (discussing advantages of electronic filing

of briefs and records); Maria Perez Crist, The E-Brief: Legal Writing for an Online World, 33

N.M.L.

REV. 49 (2003) (discussing courts’ movement toward electronic briefs and strategies

for effective electronic written advocacy).

Five Questions About the Military Justice System-253

make four hard copies on a photocopier, bind them with metal two-hole prong

fasteners, and mail the original and two copies to Washington, D.C.?

Wouldn’t it be much faster, much cheaper, much less labor-intensive, and

much more user-friendly to prepare an electronic copy – including electronic

files depicting the trial exhibits – and e-mail it to the appellate courts and

appellate counsel? Or perhaps the system should require only one hard-copy

original record supplemented by electronic copies. Civil litigators who take

depositions typically receive not only a hard copy of the transcript with a

complete word index, but also an electronic copy that allows the lawyer to do a

computer word search to quickly locate particular portions of the transcript.

Why don’t military appellate judges and appellate counsel have this capability?

Have we sufficiently used video teleconferencing and other remote

means of communication to achieve efficiency without sacrificing justice?

contemplated this area of change before I saw this year’s Joint Services

Committee proposals for Manual for Courts-Martial amendments that were

published in the Federal Register on September 15, 2004.

So I was

particularly gratified to see that the Joint Services Committee has already been

thinking about the use of remote testimony as well as telecommunications

technology that could facilitate Article 39(a) sessions when the parties are in

different locations.

Finally, do we have a process for identifying technological innovations

and integrating them into the military justice system? The Navy JAG Corps’

motto is “A Better Practice.”

How can we use technology to achieve a better

practice?

IV. QUESTION THREE: STRUCTURE OF THE TRIAL JUDICIARY

The military trial judiciary is close to my heart because one of the

formative experiences of my life was serving as a special court-martial judge

in Vietnam from December 1969 to December 1970. The position of military

See R.C.M. 1103(g)(1) (requiring four copies of verbatim records); R.C.M. 1111 (requiring

that the original and two copies of the record of trial be forwarded to the Judge Advocate

General if the approved sentence includes death; dismissal of an officer, cadet, or midshipman;

a punitive discharge; or confinement for one year or more and the accused has not waived

appellate review). Of course, in the Army, records are mailed to Arlington, Virginia rather

than Washington, D.C. itself.

See generally Michael R. Arkfeld, The Wired Lawyer: Choosing—and Using—Digital

Depositions, A

Z. ATT’Y, March 2001, at 9.

See generally Major Edward J. O'Brien, Are Courts-Martial Ready for Prime Time?

Televised Testimony and Other Developments in the Law of Confrontation, A

RMY LAW., May

2000, at 63.

See 69 Fed. Reg. 55,600, 55,601-02 (Sept. 15, 2004).

See Navy Judge Advocate General’s Corps, . . . A Better Practice, at

http://www.jag.navy.mil/html/BetterPracticepage .htm (last visited Mar. 15, 2005).

254-The Air Force Law Review

judge was brand new back then.

For general courts-martial, the military

judge was a substantial evolution from the old position of “law officer.”

For

special courts-martial, the military judge was not an evolution, but an entirely

new species. Before the Military Justice Act of 1968, special courts-martial

were presided over by the senior member, who was usually not a lawyer and

who usually had no assistance from a lawyer.

Is it time to consider further developments? Courts-martial are not

standing courts, but rather ephemeral tribunals that come into existence with a

convening order and referral, then disappear upon authentication.

While

already bearing the costs of a standing court infrastructure,

the military

justice system does not receive some of the advantages standing courts would

offer. For example, because courts-martial no longer exist after authentication,

we cannot have a trial-level post-conviction hearing process like that in place

in the federal and state criminal justice systems.

Because there is no trial-

level court to which an appellant can return to litigate collateral issues like

ineffective assistance of counsel and Brady violations,

we have been forced

to cobble together a system replete with competing affidavits, application of

the Ginn

framework,

and DuBay

hearings.

Would a post-conviction

procedure similar to that established by 28 U.S.C. § 2255

for federal civilian

prisoners be preferable?

See S. REP. NO. 90-1601 (1968), reprinted in 1968 U.S.C.C.A.N. 4501, 4501-02.

See id.

Before the Military Justice Act of 1968, “[i]n special courts-martial, no law officer was

appointed. The president of the court, the senior member and usually a person without any

legal training, assumed the duties of the law officer, including instructing the court.” Colonel

James A. Young III, The Accomplice in American Military Law, 45 A.F. L. R

EV. 59, 76 n.100

(1998). “As part of the Military Justice Act of 1968, the military judge replaced the law

officer in general courts and was required to preside over any special court-martial which

could adjudge a bad-conduct discharge.” Id.

R.C.M. 201(b); R.C.M. 504(a), (b); see also Major Walter M. Hudson, Two Senior Judges

Look Back and Look Ahead: An Interview with Senior Judge Robinson O. Everett and Senior

Judge Walter T. Cox, III, 165 MIL. L. REV. 42, 81 (2000) (discussing the absence of standing

courts-martial); OTJAG Standards of Conduct Office, Professional Responsibility Notes,

RMY LAW., Dec. 1994, at 54, 57 n.27 (same). See generally Jackson v. Taylor, 353 U.S.

569, 579 (1957) (“A court-martial has neither continuity nor situs and often sits to hear only a

single case. Because of the nature of military service, the members of a court-martial may be

scattered throughout the world within a short time after a trial is concluded.”).

See generally Hudson, supra note 49, at 69-76, 81-85, 89-90.

See generally id. at 96-97.

See Brady v. Maryland, 373 U.S. 83 (1963).

See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).

See generally Major Jan E. Aldykiewicz, Recent Developments in Post-Trial: Failure to

Demand Speedy Post-Trial Processing Equals Waiver of Collazo Relief for “Unreasonable”

Post-Trial Delay, ARMY LAW., July 2004, at 134, 156-57.

United States v. DuBay, 37 C.M.R. 411, 17 U.S.C.M.A. 147 (C.M.A. 1967).

See generally Captain Susan S. Gibson, Conducting Courts-Martial Rehearings, ARMY

LAW., Dec. 1991, at 9.

28 U.S.C. § 2255 (2000).

Five Questions About the Military Justice System-255

Should some of the functions currently vested in convening authorities

or trial counsel be transferred to a standing court-martial system? For

example, in civilian criminal justice systems, the clerk of court typically issues

subpoenas, which are equally available to defense counsel and prosecutors.

Would that be more sensible than requiring one litigator to go to his or her

opposing counsel to seek a subpoena?

Also, in civilian criminal justice

systems, defense counsel seeking funds for expert assistance or other litigation

support typically make that request to the court, which has its own budget to

provide such funding.

Would a standing court-martial system have a

dedicated source of funding for defense support? Would that be preferable to

draining command Operation and Maintenance funds to provide defense

support?

Should the convening authority be removed from the process of

assessing the necessity of providing assistance to the defense?

Is it unfair to

require the defense to disclose its trial strategy to the government to seek

litigation support funds, while the trial counsel bears no similar requirement to

reveal his or her trial strategy to the defense?

Should the military justice

system instead follow the federal model – as it does in so many other areas

–

by permitting the defense to appear before the judge in an ex parte hearing to

try to establish the necessity of funding for an expert witness or other litigation

support?

Would establishing a standing court-martial system also provide

opportunities to further enhance military judicial independence? Do we need a

separate judicial career track? In 1994, Professor Frederic Lederer and now-

See FED. R. CIV. PRO. 45(a)(3).

See R.C.M. 703(e)(2)(C).

See 18 U.S.C. § 3006A(e) (2000); see also Ake v. Oklahoma, 470 U.S. 68 (1985) (holding

that, when a defendant demonstrates that sanity at the time of the offense is to be a significant

factor at trial, Fourteenth Amendment due process requires the state to provide assistance of a

competent psychiatrist for the defendant, if the defendant cannot otherwise afford such

assistance).

See generally Lieutenant W.G. “Scotch” Perdue, Weighing the Scales of Discipline: A

Perspective on the Naval Commanding Officer’s Prosecutorial Discretion, 46 N

AVAL L. REV.

69, 97-100 (1999); Major David D. Velloney, Balancing the Scales of Justice: Expanding

Access to Mitigation Specialists in Military Death Penalty Cases, 170 M

IL. L. REV. 1, 38-40

(2001).

See R.C.M. 703(d).

See generally Major Mary M. Foreman, Military Capital Litigation: Meeting the Heightened

Standards of United States v. Curtis, 174 M

IL. L. REV. 1, 31-33, 37 (2002); Major Will A.

Gunn, Supplementing the Defense Team: A Primer on Requesting and Obtaining Expert

Assistance, 39 A.F. L. REV. 143, 144-50 (1996). But see United States v. Garries, 22 M.J. 288,

290-91 (C.M.A. 1986) (holding that defense request for funds to obtain independent

investigator was properly denied because defendant did not make adequate showing of

necessity for the investigator).

Article 36(a), U.C.M.J., 10 U.S.C. § 836(a) (2000).

See 18 U.S.C. § 3006A(e) (2000); see also Weeks v. Angelone, 176 F.3d 249, 261-62 (4th

Cir. 1999), aff’d, 528 U.S. 225 (2000); Lawson v. Dixon, 3 F.3d 743, 751 (4th Cir. 1993), cert.

denied, 510 U.S. 1171 (1994).

256-The Air Force Law Review

Lieutenant Commander Barbara H. Zeliff, proposed a detailed judicial career

path that promoted steady development and institutional independence.

What has happened to that proposal over the last decade? Should we take a

fresh look at that plan?

The article proposed the creation of a permanent trial judiciary.

Permanent trial judges would be promoted to O-6, be allowed to continue in

office until they had completed 30 years of commissioned service, and retire as

O-6s.

At least two-thirds of the judges on each of the Courts of Criminal

Appeals would be selected from the permanent trial judiciary.

They would

serve in the grade of O-6, except each service’s chief judge, who would serve

as an O-7.

All Court of Criminal Appeals judges who served at least three

years would retire as O-7s.

Does the article’s proposal strike the correct balance between trial and

appellate judges? Should each service have a chief judge of the trial judiciary

who serves in the rank of O-7? Should members of the trial judiciary who

serve in that capacity for a certain amount of time also be retired as O-7s? Do

the services currently regard the position of chief judge of the trial judiciary as

one of the pinnacles of service as a military lawyer?

Again, I was gratified to learn at the Code Committee meeting that the

Army is already considering the structure of the trial judiciary as well. The

Army is studying possible revisions to ensure that a military judge is given

jurisdiction to act on charges from the moment they are preferred or when

pretrial confinement commences rather than only upon referral of charges.

V. QUESTION FOUR: DEVELOPMENT OF MILITARY JUSTICE

PROFESSIONALS

As important as process is to the military justice system, the most

important ingredient is the people who operate it. The best-designed legal

system in the world would be a disaster in practice if it is staffed by ineffective

counsel. The worst-designed system just might work if it is staffed by talented

people who are trying to do the right thing. Obviously, our goal should be a

well-designed system staffed by exceptional attorneys.

Congress recently directed the military services to consider “the

desirability and feasibility of consolidating the separate Army, Navy, and Air

Force courses of basic instruction for judge advocates into a single course to be

Fredric I. Lederer & Barbara S. Hundley, Needed: An Independent Military Judiciary – A

Proposal to Amend the Uniform Code of Military Justice, 3 W

M. & MARY BILL RTS. J. 629

(1994).

Id. at 675-76.

Id.

Id. at 676.

Id.

Five Questions About the Military Justice System-257

conducted at a single location.”

What is the right answer to that question?

Would combining the basic lawyer courses result in the consolidation of the

Army’s Judge Advocate General’s Legal Center and School, the Naval Justice

School, and the Air Force JAG School? I hold all three schools in extremely

high regard. If the schools were combined, how would two of them be chosen

for elimination?

Another major concern that has been raised – and partially addressed –

relates to something that happens even before a military lawyer attends the

JAG School’s basic course: the crushing burden of college and law school

debt.

Can highly-marketable young men and women be expected to come

into the military when a major portion of their take-home pay will be

swallowed by their student loan payments?

Congress and the military

services have taken some steps to address this concern through continuation

pay programs.

Is it enough? Military service is not right for everyone. But

military service should never be foreclosed because potential judge advocates

bear too great a financial burden as a result of providing themselves with the

very education necessary to become a military lawyer.

Military justice affects the lives of the accused and the lives of the

accused’s victims. Military justice is vital to maintaining discipline. The

people who make the military justice system work must be developed and

receive support commensurate with the system’s importance.

How do we grow military justice practitioners? I recently compared

the number of courts-martial in fiscal years 1970 and 2003.

I was not

surprised to see that the Army tried 665 special courts-martial in fiscal year

2003. But I was surprised to rediscover that the Army tried more than 41,000

Bob Stump National Defense Authorization Act for Fiscal Year for Fiscal Year 2003, Pub.L.

No. 107-314, § 582, 116 Stat. 2458, 2561 (2002).

See generally Mark Hansen, And Debt’s All, Folks: To New Lawyers Paying Off Student

Loans, “Budget” is Not a Bad Word, A.B.A. J., June 1999, at 24, 24; Bruce W. Neckers, The

Lifetime Costs of a Legal Education, 81 M

ICH. B. J., March 2002, at 10.

See generally Vince Crawley, School Loans Force Skilled Personnel Away from the

Military; Pentagon Proposal Would Help Services Retain Scarce Specialty Officers, N

AVY

TIMES, June 10, 2002, at 6 (indicating that in 2002, Army lawyers averaged $70,760 in student

loans with monthly payments of $970, while Navy lawyers averaged $64,000 in student loans

with monthly payments of $675); Robert A. Stein, In Support of Our Military: Standing

Committee on Armed Forces Law Works to Maintain the Military Justice System, A.B.A. J.,

June 2002, at 73 (“At a time when the

military truly needs the best and the brightest, it is

increasingly difficult to recruit and retain high-quality

lawyers. Those leaving school with an

average student loan debt of $80,000 often cannot afford to choose military service, given the

substantial gap between private sector salaries and those of junior judge advocates.”).

See generally Major Mary E. Harney, et al., Contract and Fiscal Law Developments of

1999: The Year in Review: Appendix A: Department of Defense Legislation for Fiscal Year

2000, A

RMY LAW., Jan. 2000, at 119, 136.

See H. F. “Sparky” Gierke, Message from the Mall, FED. LAW., Oct. 2004, at 30, 34.

258-The Air Force Law Review

special courts-martial in fiscal year 1970.

Back then, judge advocates

quickly learned the trial advocacy ropes because we were in court almost every

day. That is no longer the case. What can the system do to substitute for the

experience judge advocates gained trying those cases – and the mentoring that

was available from senior military lawyers who had tried hundreds or

thousands of courts-martial?

VI. QUESTION FIVE: GLOBALIZATION

The world is watching our military justice system.

What does the

system tell the world about our fundamental American values? The global war

on terror is a very real battle against enemies dedicated to attempting to destroy

our nation, but it is also a battle of ideas. What ideas does our military justice

system communicate to those who watch it? What messages are we sending?

Military justice practitioners at every level must keep those questions in mind.

Both the military commission system – which, as presently constituted, is

entirely independent of the court-martial system – and the court-martial system

with which our Court deals will be under an international microscope for at

least the next several years.

Internationalization in the military justice arena is controversial.

Concerns about national sovereignty arise for the military as a whole over

issues like command and control in multinational operations.

They also arise

for the military justice system in particular, such as in the debate over the

Rome Statute.

International pressures will likely increasingly influence the

United States’ military justice system. For example, will the United States

See Annual Report of the U.S. Court of Military Appeals and the Judge Advocates General

of the Armed Forces and the General Counsel of the Department of Transportation for the

Period Jan. 1, 1970 to Dec. 31, 1970, at 17.

See generally Eugene R. Fidell, A World-Wide Perspective on Change in Military Justice,

48 A.F. L. Rev. 195 (2000).

See, e.g., Anthony J. Rice, Command and Control: The Essence of Coaltion Warfare, 27

ARAMETERS 152 (1997) (“The most contentious aspect of coalition operations is command

and control. This sensitivity reflects the participants’ concern over who will command their

forces and what authority that commander will have. The converse is equally significant to

military and political leaders in each nation contributing forces to a coalition: the degree of

day-to-day control national authorities will have over the employment of their own forces.”).

Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9

(1998)

(Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the

Establishment of an International Criminal Court, July 17, 1998), reprinted in 37 I.L.M. 999

(1998) [hereinafter Rome Statute]. See generally Lieutenant Colonel Bruce D. Landrum, The

Globalization of Justice: The Rome Statute of the International Criminal Court, A

RMY LAW.,

Sept. 2002, at 1.

Five Questions About the Military Justice System-259

change aspects of its military justice system to better position itself regarding

the Rome Statute’s complementarity principle?

How will our European allies resolve tensions between their

commitments to us in the NATO Status of Forces Agreement and their

obligations under the European Convention on Human Rights?

Will this

tension produce diplomatic pressures that lead us to change aspects of our

military justice system?

Will we look to other countries, particularly those from the common

law tradition, to discover best practices and bring them into our military justice

system? In a famous dissenting opinion, Justice Brandeis wrote, “It is one of

the happy incidents of the federal system that a single courageous State may, if

its citizens choose, serve as a laboratory; and try novel social and economic

experiments without risk to the rest of the country.”

Will we – and should

we – come to see other nations’ military justice systems as laboratories testing

alternative procedures that we can then adopt if the experiment proves

successful? Or is the United States’ military justice system so different from

all the others that our allies’ experiences are simply irrelevant?

VII. CONCLUSION

I previously mentioned General Moorman’s speech in which he

discussed change in the military justice system.

The questions I have asked

in this article are posed in the same spirit as General Moorman’s questions.

They are designed to stimulate thinking about – to borrow an old Army

recruiting slogan – making the military justice system all it can be.

These

questions are not motivated by any agenda – other than to start a dialogue

about some of the fundamental issues facing our military justice system today.

By discussing these issues, we may discover paths to an even better military

justice system.

See Rome Statute, supra note 80, art. 1. See generally Lieutenant Colonel Michael A.

Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome

Statute of the International Criminal Court, 167 M

IL. L. REV. 20 (2001).

See generally Major Mark R. Ruppert, Criminal Jurisdiction Over Environmental Offenses

Committed Overseas: How to Maximize and When to Say “No”, 40 A.F.

L. REV. 1, 12-13

(1996).

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

See supra notes 1 and 4-7 and accompanying text.

For an interesting discussion of Army recruiting slogans, see Major General Kenneth D.

Gray, The Eighth Annual Hugh J. Clausen Lecture on Leadership, 175 MIL. L. REV. 385,

396-97 (2003).

260-The Air Force Law Review

STATE PROPERTY TAX IMPLICATIONS

FOR MILITARY PRIVATIZED FAMILY

HOUSING PROGRAM

PHILIP D. MORRISON*

I. INTRODUCTION

The Military Housing Privatization Initiative (MHPI) is a recent

Department of Defense and Congressional initiative to leverage private sector

financing and construction methods in order to build adequate military-family

housing. Originally passed in 1996, the initiative was designed to quickly

provide military families with badly needed family housing. Military-family

housing was not meeting current standards because many of the units were

built over 30 years ago using outdated building materials and design

standards.

The private sector had been deemed a necessary partner to assist in

making up the shortfall. The reasons were simple. The private sector has the

ability to attract private capital and complete projects faster than using

traditional military construction methods.

Under the new privatization

(MHPI) concept, the federal government asks private developers to submit

proposals to build military-family housing. After a successful bidder is

chosen, the federal government leases land to a developer under a long-term

ground lease. In return, the private developers renovate or construct new

housing units on the leased land. The developers then receive payments

through monthly allotments made directly from the tenant’s paycheck. In most

cases, the projects span 50 years. This new initiative has created a complex tax

problem because of the federal nature of the housing developments and the

myriad of state and local taxing authorities affected by new construction.

Local taxing authorities appear poised to take advantage of the projects and the

property tax revenues.

The purpose of this paper is to explore the problems and issues

regarding local and state taxation of the military’s new housing privatization

* Mr. Philip D. Morrison (B.A. with Honors in the Liberal Arts, The Ohio State University;

M.A., Webster University; J.D. Whittier College—School of Law) is an attorney-advisor

assigned to the Real Estate and Privatization Division, Directorate of Environmental and Real

Estate Law, Air Force Material Command Law Office, Wright-Patterson AFB, Ohio. He is a

member of the Ohio Bar.

Military Housing Privatization Initiative: Hearings Before the Subcomm. on Military

Installations and Facilities of the House Comm. on National Security, 102

Cong. (1996)

[hereinafter 1996 Hearings] (statement of Robert E. Bayer, Deputy Assistant Secretary of

Defense, Installations).

1996 Hearings, supra note 1.

State Property Tax Implications -261

program. The paper will not focus on the income tax issues. Rather, the

discussions will focus on the property tax and ad valorem taxes assessed on

these new military housing projects. This paper will explore the competing

interests at stake. On the one hand, the MHPI is designed to meet the deficit of

military-family housing and the immediate need of military families in a cost

effective manner. On the other hand, local taxing authorities are increasingly

reliant on property tax revenues to meet fiscal demands. A “battle royale” is in

the making. If recent cases are any guidance, states and municipalities appear

to be ignoring issues of constitutional and federal law in order to satisfy their

insatiable urge to obtain local revenues. As the reader will see, at stake in a

typically large housing project is between $1-2 million dollars per year in

property and ad valorem taxes on an average MHPI project. Numerous

projects have taken place or will take place across the United States involving

over 100,000 military-family units.

This paper will address the housing privatization initiative, the

complex nature of the projects, how projects can claim tax exemption, and how

state and local authorities will try to tax new MHPI developments. In Part II of

this paper, the history of the MHPI will be discussed. This will also involve a

look at the basics of commercial property taxation. In Part III, there will be a

discussion of the four types of federal jurisdictions on federal installations.

This discussion will explore whether a state taxing authority can reach the new

housing developments. The new developments may involve one, two, or more

of these jurisdictional areas and will directly affect the tax law that will apply.

In Part IV, state property taxation on federal installations will be explored with

a look at recent state case law. Developers who are taxed on projects in federal

enclaves pay higher expenses. As will be discussed below, state taxation of

privatized housing will have a direct impact on profitability of the private

developers and a significant impact on reinvestment into the projects. Finally,

Part V will conclude with some specific recommendations for housing

privatization in order to increase project viability and reinvestment.

II. BACKGROUND OF MILITARY HOUSING

PRIVATIZATION INITIATIVE (MHPI)

A. Legislative History

The Military Housing Privatization Initiative (hereinafter MHPI)

gave the Department of Defense (DoD) special legislative authority designed

to replace unsafe and dilapidated family housing.

The MHPI is designed to

make up for a vast shortage and awful state of military-family housing in the

early Nineties. The military housing problem became readily apparent soon

Captain Stacie A. Remy Vest, Military Housing Privatization Initiative: A Guidance

Document for Wading Through the Legal Morass, 53 A.F.L. R

EV. 1 (2002).

262-The Air Force Law Review

after the first Gulf War as outdated and “cookie-cutter” military housing of the

1940’s and 1950’s had reached the end of its useful life.

Prior military housing initiatives utilizing the private sector had just

not worked effectively.

Wherry Act military housing was begun under the

authority of the National Housing Act of 1949 (a.k.a. the Wherry Military

Housing Act of 1949),

and was effectively terminated in 1955 over

congressional concerns about developer windfalls. Capehart Housing, named

for Senator Homer Capehart of Indiana, a WWI veteran, involved military-

family housing using private financing like MHPI, but the projects were turned

over to the government upon completion. Capehart Housing units were larger

than Wherry Housing units, and therefore were preferred by military tenants.

DoD made a mortgage payment and in return the tenants forfeited their

monthly housing allowance or BAH. Approximately 115,000 Capehart units

were constructed.

Following Capehart, 801/802 Housing was the next

military housing initiative.

This program involved lease and rental guarantees

to private developers in exchange for military housing. These projects were

eventually costly and were discouraged.

The Department of Defense currently owns, operates, and maintains an

inventory of about 300,000 family housing units. Almost 200,000 units or

two-thirds were considered unsafe and in immediate need of demolition or

major renovation.

Many of the housing units were constructed during World

War II (or just after) and were only designed to last a few years. The problem

was severe enough that many feared that service members would leave the

military due to the lack of adequate housing.

In addition, many older units

had environmental problems such as lead-based paint, asbestos, and could not

meet current building codes. Roofs leaked, plumbing was inadequate, and

families struggled to live comfortably. The Department of Defense could not

meet the need to improve the housing situation fast enough. Housing

privatization seemed to be one alternative to get adequate housing built 3-4

times faster than other military construction methods (i.e. where the military

directly contracts for the construction of the units on base and owns them upon

completion).

Some estimates placed the timeframe to fix the housing

Donald Else, CRS Report to Congress--Military Housing Privatization Initiative: Background

and Issues 1 (Congressional Research Service 2001).

Else, supra note 5, at 3-4.

Pub. L. No. 81-221, 63 Stat. 570.

Else, supra note 5, at 3-4.

Military Construction Authorization Act of 1984, Pub. L. No. 98-115, § 801, 97 Stat. 757

(1983) (codified as amended at 10 U.S.C. § 2828 (2003)).

Else, supra note 5, at 4.

Military Housing Privatization Initiative: Hearings Before the Subcomm. On Military

Installations and Facilities of the House Comm. On Armed Services, 105

Cong. (1999)

(statement of Mr. Randall Yim, Acting Deputy Under Secretary of Defense, Installations).

1996 Hearings, supra note 1.

Vest, supra note 4, at 2.

State Property Tax Implications -263

problems using traditional legislative authority (i.e. military construction) from

30-40 years.

Inadequate housing gave many military families reason to leave

after their service commitments were up. Retention was a deep concern on the

minds of Congress and Pentagon leadership.

Military Housing Privatization

was a new tool designed to make up for the shortfall in housing and leverage

the private sector in a new way. This paper will now focus on a discussion of

the features of this new legislative initiative.

B. The Military Housing Privatization Initiative Features

Congress responded to the problem by passing a bold and innovative

alternative to military construction. The National Defense Authorization Act

of 1996

was enacted with a goal of remedying this military housing shortfall.

It permits faster construction of more military-family housing while meeting

current market standards.

It was designed to create a body of special

legislative authority for the Services to enter into agreements with private

companies to renovate or construct houses on military reservations.

It was

not designed to replace military construction of family housing altogether.

Rather, it was another tool to leverage private sector resources when the

conditions were right.

The new MHPI contains a number of features. It includes the ability to

lease federal land to private companies.

It also allows the military to enter

into joint ventures and even share in ownership of project companies.

Special

accounts are established to channel the project funds and authority to direct

military tenants to pay developers by allotments.

The military department

can also enter into direct loans and loan guarantees in order to assists in

financing private developers.

Currently, the Department of Defense has awarded 40 military family

housing privatization projects. These projects include the construction and/or

renovation of 80,000 units. Over 40 housing projects are in solicitation.

The

1996 Hearings, supra note 1, at 2.

Housing and Utilities Privatization, Statement Before the House Armed Services Comm.,

106

Cong. (2000) (statement of Honorable Mahlon Apgar IV, Assistant Secretary of the

Army, Installations and Environment).

Pub. L. No. 104-106, 110 Stat. 186 (codified at 10 U.S.C. §§ 2871-2885 (2003)).

1996 Hearings, supra note 1, at 3.

See Vest, supra note 4, at 8-9.

10 U.S.C. § 2878.

10 U.S.C. § 2875.

10 U.S.C. § 2882.

10 U.S.C. § 2873.

Office of Undersecretary of Defense (Installations and Environment), DoD Military Housing

Privatization – Housing Projects, at http://www.acq.osd.mil/housing/projsumm.htm (last

visited Jan. 21, 2005).

264-The Air Force Law Review

Air Force, for example, has scheduled 26,500 units to be completed by 2005,

and more projects are scheduled for completion in the next few years.

The

Army and Navy have numerous projects ongoing as well.

Legislative

authority for the housing program was extended between 1996 and 2004,

until permanent authority for the program was provided in the National

Defense Authorization Act for Fiscal Year 2005.

Before looking at the tax law, one must first look at the specifics of the

housing projects in order to get an understating of the nature of the projects.

The housing privatization projects are awarded through a competitive process.

The Army, Navy and Air Force structure their competitive bidding processes

slightly differently.

Construction typically begins after the real estate closing.

Bidders are national construction firms or joint venture operations. After

competitively bidding for a project, a developer is awarded the military project.

The housing projects are projected to save the federal government hundreds of

millions of dollars over the life of the Program because the new initiative

involves no new military appropriations.

For example, military members

receive a monthly housing allowance called Basic Allowance for Housing

(BAH). This amount varies by rank, length of service, location or duty

assignment of the military member. Members stationed in high cost-of-living

areas such as Hawaii and Washington D.C. metropolitan area receive more

money than members stationed in rural areas of the country. After a military

member moves into a privatized housing unit, his or her housing allowance

would be directed into a special lockbox account and the proceeds would be

used to repay the developer and finance the new housing project. This would

act as rent for the units. Special lockbox accounts are created to manage the

cash flow. Under MHPI, Congress does not theoretically have to appropriate

new monies for military construction because the projects are primarily funded

through existing appropriated monies using the military member’s BAH.

stated previously, this method is designed to replace and rehabilitate over

HQ AFCEE, Design and Construction Directorate, Housing Privatization Division (HQ

AFCEE/DCP), United States Air Force Housing Privatization), at

http://www.afcee.brooks.af.mil/dc/dcp/news (last visited Jan. 21, 2005).

HQ AFCEE, Design and Construction Directorate, Housing Privatization Division (HQ

AFCEE/DCP), United States Air Force Housing Privatization), at

http://www.afcee.brooks.af.mil/dc/dcp/news (last visited Jan. 21, 2005).

Office of Undersecretary of Defense (Installations and Environment), DoD Military Housing

Privatization – Housing Projects), at http://www.acq.osd.mil/housing/projsumm.htm (last

visited Jan. 21, 2005).

See Else, supra note 5, at 7.

Pub. L. No. 108-375, 118 Stat. 1811 (codified at 10 U.S.C. §§ 2871-2884 (2004)).

Vest, supra note 4, at 10-18.

See 1996 Hearings, supra note 1.

See 10 U.S.C. § 2883a.

State Property Tax Implications -265

200,000 housing units several times faster than traditional methods and helps

leverage existing appropriated funds to assist in financing new housing units.

Unlike traditional military construction projects, ownership of the

privatized units is vested in the private developer—not the government. The

developers build, own and manage the housing units. The military tenants

provide an income stream for debt financing repayments through assignment

of their BAH to the lockbox account. The developer companies incur

financing for the projects.

This is vastly different from traditional military

construction. Under traditional military construction, the federal government

pays a builder directly and owns all the houses, equipment, and eventual

management of the new units.

Under the MHPI, title to the housing units

vests in private developers upon closing. The improvements are placed on 50-

year leaseholds. The United States retains a reversionary interest at the

expiration of the ground lease.

C. Financial Implications for State and Local Communities

The shift from federal military housing units to private ownership is not

going unnoticed by local and state communities. Many projects range from

$50 to $265 million dollars in housing market value.

For example, one of the

first MHPI projects was located at Fort Carson, Colorado. The Fort Carson

project involved construction of over 840 new single family and multifamily

units, and the revitalization of over 1824 units totaling $228.6 million dollars.

Construction of several hundred new housing units around a military

base can be financially significant for a local community. Construction sub-

contractors are hired and jobs are created. Building supplies are ordered and

local businesses can add to their payrolls. Sales tax revenues are generated due

to local purchasing of materials and supplies. As we will later see, the

potential tax revenues of such a development to the local and state authorities

are tremendous.

Vest, supra note 4, at 5

See 10 U.S.C. §§ 2871-2884.

Vest, supra note 4, at 6.

See 10 U.S.C. §§ 2871-2884.

Office of Undersecretary of Defense (Installations and Environment), DoD Military Housing

Privatization – Housing Projects), at http://www.acq.osd.mil/housing/projsumm.htm (last

visited Feb. 25, 2005).

Office of Undersecretary of Defense (Installations and Environment), DoD Military Housing

Privatization – Housing Projects), at http://www.acq.osd.mil/housing/projsumm.htm (last

visited Feb. 25, 2005).

266-The Air Force Law Review

D. Calculation of Real Property Taxes—The Basics

Property taxes are a creature of state law. For the most part, state

constitutional and legislative requirements have historically used the fair

market value of real property. This value is estimated and administratively

determined as the base for imposing tax liability. Typically, the fair market

value of the property is taken into account and only a percentage of that value

is actually taxed. The relevant percentage is called the “assessment ratio.”

Depending upon the locality, commercial properties are assessed in three

different ways: income approach, replacement cost approach, or sales

comparison approach. Once a value is established, this value is multiplied by

the applicable tax rate. This yields the “taxable value” for a given commercial

or housing complex. Real property tax rates vary with the taxing jurisdiction.

The result is the property tax. Each state administratively determines its own

method for determining the value of a particular property and will vary from

state to state.

Commercial property appraisals are not static. Re-appraisals to account

for property value increases are also set by State statute or handled

administratively. The method used by a state must be fair and not unfairly

discriminate against taxpayers.

The process of state and local taxation is

handled differently depending on the particular state. There is no uniformity.

All 50 states and the District of Columbia have their own set of tax laws.

Some states even allow subsidiary governmental units such as municipalities,

townships, and special taxing authorities the ability to authorize, assess and

collect their own taxes.

These may be carried out by special levies or voter-

approved bonds.

An examination of what a typical multi-family housing project might

pay in property taxes per year is instructive. Although an over-simplification,

the assumptions are based upon a hypothetical housing project involving

1,000-1,200 homes and using a hypothetical tax rate for a state. The sample

calculation below does not take into account any applicable exemptions or

abatements. The tax rates are merely illustrative and will vary by jurisdiction.

Local levy and applicable tax rates will vary depending upon the location of

the project. A hypothetical $150 million dollar commercial housing project

would yield the following:

Mildred Wigfall Robinson, Difficulties in Achieving State and Local Fiscal Policy At The

Intersection of Direct Democracy and Republicanism: The Property Tax as a Case in Point, 35

U. MICH. J.L. REFORM 511, 523 (2002).

Samuel J. McKim III, Is Michigan’s Ad Valorem Property Tax Becoming Obsolete, 77 U.

ET. MERCY L. REV. 655 (2000).

McKim, supra note 39, at 669

Kathryn L. Moore, State and Local Taxation: When Will Congress Intervene?, 23 J. LEGIS

171 (1997).

State Property Tax Implications -267

EXHIBIT

--$150 million project x 4.0 % tax rate = 6 million taxable value

--$ 6 million tax value x 425 mills* (.425 levy) = $ 2.55m annual property tax

_________________________

Total: $2.55 million per year * Amount may vary by local taxing authority

E. Importance of Property Tax Revenue to Local Governments

The $2.5 million annual revenue in this example is illustrative of the

types of annual property tax revenue at stake in a typical MHPI project. Some

larger projects may even involve higher property appraisals and annual

property taxes. If a project is constructed in a federal enclave, those savings

can provide additional revenue for the developer and reinvestment back into

the project. The reason is that tax savings increase net profits to the developer.

Based upon the special lockbox account structure, net profits (after debt

repayment and project expenses) are generally paid to the developer and a

percentage is put back into a “reinvestment account.” This reinvestment

account, as will be discussed later, can create a better quality of life for

military families.

However, the payment of property taxes is an incredibly important

source of revenue for local communities. Although total state revenue from

property taxes collections has declined from 35% to 18% since 1948, property

tax revenues still remain the primary source of revenue, which can be

controlled by local governments.

Some states, primarily New England states,

place a heavy reliance on property tax revenue. This is their primary source of

general revenue. Property tax revenues in Maine, for example, comprise

almost 50% of state revenue.

Property tax revenue comprises a higher

percentage of local government revenue. Property taxes make up about 75%

of local government revenues based upon the national average.

Frank S. Alexander, Tax Liens, Tax Sales, and Due Process, 75 IND. L. J. 747, 754-755

(2000).

Kirk G. Siegel, Weighing the Costs and Benefits of Local Property Tax Exemption: Non-

Profit Organization Land Conservation, 49 M

E. L. REV. 399, 421 (1997).

Siegel, supra note 43, at 424-425.

See Use of Real Property Facilities, Air Force Instruction 32-9002, ¶ A1.9 (1993).

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III. LOCATION…LOCATION…LOCATION: WHAT LAW WILL

APPLY—FEDERAL OR STATE?

The location of the projects has enormous implications for a particular

MHPI project as will become readily apparent. Location of a housing project

within a federal installation (and, in some instances, where on the installation)

may determine whether a particular project is exempt from State or County

property taxes. The law reserved in a particular area of a base may vary

greatly depending upon the type of legislative jurisdiction. The applicable

legislative jurisdiction (e.g. exclusively federal, concurrent, proprietary, or

partial) has a direct bearing on whether state tax law will apply to a housing

project and whether the developer will incur property taxes.

The legislative jurisdiction of a federal reservation or military

installation is divided into four broad categories: proprietary, partial,

concurrent, and exclusively federal.

Mere ownership of lands by the federal

government within a state does not create areas of federal jurisdiction.

The

lands remain part of the territory of the state despite federal ownership or title

in real property.

The key facts to look at in any housing project is when the

State entered the original Union and when the military installation was

originally created. Legislative jurisdiction determines which law applies—

federal or state. This will in turn determine which tax law applies, if any at all.

A. Establishing Jurisdiction on a Military Reservation

The key to finding out whether a state tax law will reach a privatized

housing project is to first look at how legislative jurisdiction was established

on a military reservation. This is important to understanding whether state tax

law will apply. Legislative jurisdiction is a cornerstone of any tax exemption

case when dealing with federal enclaves. This is more a real property question

than a tax question. Nevertheless, the two concepts are necessarily

intertwined.

Legislative jurisdiction on military installations (e.g. proprietary,

concurrent, partial and exclusively federal) is established in two primary ways.

First, a state can cede the property to the United States.

Often times, the state

in question will reserve certain rights such as the right to effect civil process

service or criminal process service on the lands ceded to the Unites States. The

federal government must consent to the acquisition or acceptance of

jurisdiction and file notice of acceptance with the Governor of the State.

This

process usually results from direct negotiations with the particular State. The

See Surplus Trading Co. v. Cook, 281 U.S. 647 (1930).

Id. at 650.

40 U.S.C. § 3112 (2002).

40 U.S.C. § 3112.

State Property Tax Implications -269

process is memorialized through written correspondence and proper documents

executed by the appropriate state and federal officials.

There is a

presumption that the United States has not accepted exclusively federal

jurisdiction over a military base until the Government files a notice of

acceptance with the Governor of the State.

States can even cede jurisdiction

piecemeal. For example, Hanscom AFB, Massachusetts, is a federal enclave

created primarily after World War II. The entire base was in exclusive federal

legislative jurisdiction, except for a small portion of the base. This small

portion of the base comprised about 34 acres of the base and was deemed

concurrent legislative jurisdiction. In 1985, the Massachusetts legislature

passed a bill (and signed by the Governor) ceding legislative jurisdiction of the

remaining 34 acres to the Federal Government. The special legislation

contained the legal description of the property, metes and bounds, and special

language ceding jurisdiction to the Unites States.

There is a second way the Federal Government could acquire title.

Aside from states ceding lands to the Federal Government, the Federal

Government could have simply acquired the original title to lands prior to

statehood. In these cases, the United States would have exclusive legislative

jurisdiction. One might find this scenario in a number of western states where

the Federal Government acquired original ownership and then subsequently

granted title to settlers and others around a military reservation.

B. Types of Federal Legislative Jurisdictions

There are four types of legislative jurisdictions on military installations.

These jurisdictional or legislative areas are proprietary jurisdiction, partial

state/federal jurisdiction, concurrent jurisdiction, and exclusively federal

jurisdiction.

Federal installations may involve a mix of one, two, or all four

jurisdictional zones on a particular military base. There is no uniformity

among federal lands due to the elimination of the requirement that all federal

lands have exclusive legislative jurisdiction in 1939.

The focus of this paper will be tax exemption as it applies to the

various areas of jurisdiction, but primarily exclusively federal jurisdiction.

40 U.S.C. § 3112. See, e.g., Visicon, Inc. v. Tracy, 83 Ohio St. 3d 211 (Ohio 1998)

(discussing the correspondence relating to establishing jurisdiction over the hotel).

40 U.S.C. § 3112(c).

1985 Mass. Acts 456.

For the sake of brevity, condemnation procedures are being omitted from this discussion.

Condemnation is another procedure for the United States to obtain title. However, it is

normally used to acquire lands from private entities and not from a State. Regardless of how

the federal lands are acquired, however, the United States must affirmatively accept exclusive

federal jurisdiction over the lands acquired for exclusively federal jurisdiction to be created.

See, 40 U.S.C. § 3112(c).

See Use of Real Property Facilities, Air Force Instruction 32-9002, ¶ A1.9 (1993).

See 39 Op. Att’y Gen. 285 (1939).

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This is the clearest case in which a proposed development will likely have tax-

exempt status.

However, privatized housing developments on military bases

where jurisdictional zones are mixed can also enjoy tax-exempt status.

Developments may become tax-exempt by simply steering the housing

development to these exclusively federal areas, or by carefully analyzing the

legislative reservations made by the State when the property was originally

ceded to the United States. A closer examination of this concept warrants

further analysis.

From a historical perspective, an area of exclusive federal legislative

jurisdiction or “federal enclave” has its roots in the U.S. Constitution.

As the

term implies, this type of jurisdiction gives the federal government sole

authority to legislate. The area of exclusive jurisdiction can prevent many state

laws from applying on a federal installation.

The Constitution states

explicitly that the United States has the power to do the following:

To exercise exclusive Legislation in all Cases whatsoever, over

such district (not exceeding ten miles square) as may, by

cession of particular States, and acceptance by Congress,

become the seat of the government of the United States, and to

exercise like authority over all places purchased by the consent

of the Legislature of State in which the same shall be, for the

erection of forts, magazines, arsenals, dockyards, and other

needful buildings . . . .

Article I, Section 8, Clause 17, of the U.S. Constitution (emphasis added).

Exclusive legislation is synonymous with the term “exclusive jurisdiction.”

The burden of proving jurisdiction often rests with a State.

In some

cases, a State may have elected to reserve some authority (for instance,

authority to serve civil and criminal process on the property).

If the state

failed to reserve such authority, it is deemed waived.

States cannot reacquire

jurisdiction once land is ceded to the United States.

This is why it is

important to carefully examine the cession letters or special legislative bills

enacted by the State at the time a military base was created. The exact

language of those documents will control what legislative jurisdictions apply

This assumes the areas of exclusive federal jurisdiction are suitable for development (i.e.

undeveloped land, environmentally clean, not presently being used for active missions, etc.).

U.S. CONST. art. I, § 8, cl. 17.

See Consolidated Milk Producers v. Parker, 123 P.2d 440 (Cal. 1942). See also Miller v.

Hickory School Board, 178 P.2d 214 (Kan. 1947); State v. Mack, 47 P. 763 (Nev. 1897);

People v. Mitchell, 395 N.Y.S.2d 340 (N.Y. Sup. Ct. 1977).

Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930).

State v. Rodriguez, 302 S.E.2d 666 (S.C. 1983).

Humble Pipe Line Co. v. Waggonner, 376 U.S. 369 (1964).

Id.

United States v. Heard, 270 F. Supp. 198 (W.D. Mo. 1967).

State Property Tax Implications -271

on a military base or whether the State established any legislative prerogatives

when it ceded jurisdiction to the United States. On occasion, states have

reserved the right to tax during the cessation of exclusive federal jurisdiction to

the federal government.

Prior to 1940, the Federal Government had to acquire exclusively

federal legislative authority over all federal lands since federal law stated that

no federal funds could be expended on an installation unless jurisdiction was

exclusively federal.

This requirement had been the rule since 1841.

However, this requirement was changed in 1940.

The repeal of this

requirement had a profound impact on the states. The states could now retain

through negotiations with the Federal Government certain legislative

prerogatives on federal installations that they deemed important.

Tenders of

state land to the Federal Government resulted in numerous reservations of state

legislative prerogatives. If the United States acquiesced, these areas then

contained a mix of state and federal law.

There are three other types of legislative jurisdictions on federal lands.

Concurrent legislative jurisdiction applies in those instances where the State

has reserved to itself the right to exercises all of the same authority

concurrently with the United States. As the name suggests, areas of concurrent

jurisdiction are a hybrid of state and federal authority where state and federal

law apply concurrently. Legislative authority is shared. If a state ceded

jurisdiction to the United States, some (or all) legislative powers may have

been reserved by the state at that time.

In the event of conflict of state and

federal law in areas of concurrent jurisdiction, federal law would prevail under

the Supremacy Clause of the Constitution.

The original grant letters (or state

special legislation ceding jurisdiction) between the state and federal authorities

will help determine whether local authorities may tax private developments on

military bases.

Partial legislative jurisdiction applies to those instances where the

Federal Government has legislative authority over an area ceded by the State.

However, the State concerned has reserved to itself the right to exercise other

authority over the federal lands. This reservation of authority is more than the

right to civil or criminal service and may include the right to tax private

property.

The State cession bills and notice of acceptance by the Federal

Government will contain the key reservations made by the State. These

See, e.g., Kansas City v. Querry, 511 S.W.2d 790 (Mo. 1974).

40 U.S.C. § 355 (1940) (current version at 40 U.S.C. § 3112 (2002)).

39 Op. Att’y Gen. 285 (1939).

40 U.S.C. § 355 (current version at 40 U.S.C. § 3112).

Letter to file from Lt Col Roberts Wells, Office of Staff Judge Advocate, Headquarters, Air

Force Cambridge Research Center, Hanscom AFB, MA, November, 1959.

Air Force Judge Advocate General School, The Military Commander and the Law 319 – 320

ed. 2002)

U.S. CONST. art. VI, cl. 2.

Air Force Judge Advocate General School, supra note 69.

272-The Air Force Law Review

historical documents will be important to deciding whether a particular

privatized housing development is taxable by the State or not.

Finally, proprietary jurisdiction on military bases gives the United

States no special privilege. This term applies to those instances where the

Federal Government has acquired title to an area in a State but has not acquired

any of the State’s legislative authority. The State has full authority to tax a

proposed housing development in areas of proprietary jurisdiction. The federal

government only maintains immunity and supremacy for inherently

governmental functions. Housing developments constructed by private

companies are not inherently governmental functions. The only federal laws

that apply to proprietary jurisdictional bases are those that do not rely upon

federal jurisdiction (espionage, bank robbery, tax fraud, counterfeiting, etc.).

Unlike areas of exclusively federal jurisdiction, no exemption from state

property tax law would apply to these areas where privatized housing is

located.

With an overview of the types of jurisdiction on a military base, it is

necessary to now turn to a discussion of what federal law may apply to a

housing development in an exclusively federal legislative jurisdiction. Even

though private entities may appear to operate exclusively under federal law and

appear to be tax-exempt, sometimes Congress will grant a State the right to tax

certain activities regardless of the fact that the entity is operating in a federal

enclave.

IV. STATUTORY AND CASE AUTHORITY TO TAX PRIVATE

DEVELOPMENT IN FEDERAL ENCLAVES

A. Federal Authority for the Housing Project: Congressional Consent to

Taxation

The location of private housing units does not end the legal inquiry.

On the contrary, it just begins. Assuming private housing units under the

MHPI are constructed in federal enclaves or areas of exclusive jurisdiction, the

next step is to see whether Congress intended for State and local tax laws to

reach the proposed military development even though it is located in a federal

enclave. Generally speaking, some federal programs authorizing activities or

operations on federal installations expressly authorize local taxation. An

example is leasing of non-excess federal property under 10 U.S.C. § 2667

which will be discussed below. It is well settled that the States cannot tax the

federal government or the lands owned by the Federal Government.

But this

immunity raises questions as to whether private entities operating on military

Air Force Judge Advocate General School, supra note 69.

McCullough v. Maryland, United States v. New Mexico, 455 U.S. 720 (1982); 17 U.S. (4

Wheat.) 316 (1819).

State Property Tax Implications -273

installations can enjoy this same immunity. In the era of public-private

partnerships, the bright-line has faded considerably. A careful look at the

federal statute authorizing non-federal entities’ activities on the base will

generally provide the answer as to whether or not a state may tax the private

entity.

As a general rule, a State may acquire the right to tax private interests

within a federal enclave only if Congress consents.

The U.S. Supreme Court

has recognized a State’s authority to exercise jurisdiction to levy taxes only

when Congress permits.

Historical military housing programs, such as the

National Housing Act of 1949 (a.k.a. the Wherry Military Housing Act of

1949),

permitted the taxation of lessee interests in areas of federal enclaves in

which military construction is carried out according to those federal housing

programs.

Other military housing programs that involve the federal leasing

of property contain unambiguous Congressional grants of authority to tax. The

special leasing authority under 10 U.S.C. § 2667(e) is one example mentioned

previously. Under this special leasing authority, Congress expressly

authorized states the power to tax private interests in leased property where the

federal government is leasing under-utilized property, even though the project

is located in a federal enclave.

Another example is the special legislation to

develop the former Brooks Air Force Base in San Antonio, Texas.

This

authority was termed the “Brooks Air Force Base Development Project.”

Congress granted permission to tax private entities in federal enclaves.

B. MHPI: No Express Congressional Intent for Local Taxation

Congress does not appear to have granted states permission to tax

private housing units in these projects pursuant to the legislative authority

under the MHPI. Generally speaking, if the federal statute authorizing military

construction or other activity allows for local taxation, then developers have no

See, e.g., Surplus Trading Co. v. Cook, 281 U.S. 647 (1930) (Arkansas personal property

tax on blankets located on the Army’s Camp Pike were exempt in areas of exclusive federal

jurisdiction). See also Evans v. Cornman, 398 U.S. 419 (1970); S.R.A. Inc. v. Minnesota, 327

U.S. 558 (1946).

See Buck Act, Pub. L. No. 76-819, 54 Stat. 1059 (1940) (current version at 4 U.S.C. §§ 104-

110(2005)) (this Act permits state sales tax, use tax and income taxes in federal enclaves).

See, e.g., Humble Pipe Line Co. v. Waggonner, 376 U.S. 369 (1964).

Pub. L. No. 81-221, 63 Stat. 570.

See, e.g., Offutt Housing Company. v. Sarpy 351 U.S. 253 (1956); Spokane County v. Air

Base Housing, Inc. 304 F.2d 494 (9

Cir. 1962) (illustrative Wherry Act military housing

cases).

10 U.S.C. § 2667(e) (2003).

Military Construction Appropriations Act of 2001, Pub. L. No. 106-246, § 136, 114 Stat.

511 (2000).

Id. § 136(d)(4)(A).

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tax-exempt status for their projects.

This is clear. As previously discussed,

the MHPI is a relatively new legislative authority and somewhat different from

other traditional military construction programs. Local taxing authorities

appear aggressively ready to challenge the tax-exempt status of privatized

housing in search of scarce revenue. There are several reasons.

Local taxing authorities have a long history of challenging tax-exempt

status in federal enclaves.

In most cases, states that broadly define taxable

property, including leasehold interests, may feel emboldened and have more of

an incentive to aggressively pursue sources of tax revenue.

The fact is that

the more property a State can tax then the more income it will receive. Real

and personal property can have a myriad of manifestations from intangible

interests to long-term leaseholds. States typically define the property subject

to ad valorem or real property taxes in their state laws or administrative

codes.

Despite favorable state law, the ultimate success of a local taxing

authority will depend on Congressional grant of authority under the military

program for the state to tax in a federal enclave. Although no state has yet

challenged the tax-exempt status of privatized housing in federal enclaves, the

following case is illustrative of how states have challenged military family

housing tax-exempt status in the past.

C. Ben Lomond Housing Project: A Case Study

Municipalities are successful in reaching private property on federal

leaseholds when there is Congressional authority. The Ben Lomond case is one

example. This case illustrates where Congress appears to have consented to

taxation of military housing units (a.k.a. “801 Housing”) in federal enclaves.

The Alaska Supreme Court had to creatively combine the interpretation of two

federal statutes that made up the 801 Housing authorities (one authorizing

taxation, the other not) in order to rule that Congress must have intended for

the developments to be subject to state taxation. In this case, the Air Force

entered into a long-term lease with a private developer, Ben Lomond, Inc., at

Eielson Air Force Base. The consideration for the federal lease was $1. In

See, e.g., Chalet Navy Properties v. Town of Groton, 23 Conn. L. Rptr. 39 (Conn. Super. Ct.

1998).

See Footnote 95 for examples of numerous state tax cases related to military installations.

See, e.g., FLA. STAT. ANN. §§ 6.04, 196.199 (West 2003); NEB. REV. STAT. § 77-103(5)

(2003).

See, e.g., NEB. ADMIN. CODE, Title 316, ch. 24, § 029.04 (2004).

Ben Lomond, Inc. v Fairbanks North Star Borough Board of Equalization, 760 P.2d 508

(Alaska 1988).

State Property Tax Implications -275

return for constructing 300 family housing units at Eielson Air Force base, Ben

Lomond, Inc. would receive annual rental income of approximately $3.5

million. The lease was for 23 years and involved approximately 57 acres of

land. The Supreme Court of Alaska found that the government was leasing the

land to Ben Lomond, Inc. (developer) in accordance with 10 U.S.C. § 2667

and 10 U.S.C. § 2828.

The court reasoned that these broad authorities, read

in conjunction with specific language from 10 U.S.C. § 2667(e), permitted

state taxation of private interests as part of military property development --

even though the housing project was in an area of exclusive federal jurisdiction

-- since there was nothing in § 2828 that indicated the funds used and the lease

executed under § 2667 would be exempt from taxes. In relying on Offutt

, the

Alaska Supreme Court held that Congress has consented to the taxation of the

developer’s interest in the real property and improvements.

However, states cannot rely on the Ben Lomond case as good case

law to support their ability to tax the new privatized housing developments in

federal enclaves. There are two reasons.

First, the MHPI and 801 Housing programs are carried out under

separate legislative authorities. In Ben Lomond, the 801 Housing was

authorized under military leasing authority for non-excess federal property (10

USC § 2667). This military leasing authority is separate and distinct authority

from the 1996 MHPI authority (10 USC §§ 2871-2885 ).

The key feature of

the 1996 MHPI is that it was an alternative housing initiative passed by

Congress to compliment existing military construction programs. MHPI gives

the military departments new powers to use in filling the overwhelming need

for adequate military family housing. MHPI created the new ability for the

Department of Defense to assist the developers in financing the housing

projects through direct or guaranteed federal loans.

As part of their

proposals, developers can request government financing in order to assist in

the construction of the housing units. Given the size of the projects, these

Military Construction Authorization Act of 1984, Pub. L. No. 98-115, § 801, 97 Stat. 757

(1983).

Ben Lomond, Inc., 760 P.2d at 513.

Many state and local taxing authorities may overlook this critical fact. For example, in a

recent Nebraska Department of Property Assessment and Taxation opinion dated July 15,

2003, the State of Nebraska advised Sarpy County officials that newly privatized housing on

Offutt Air Force Base would be subject to state taxation. The opinion relied on NEB, REV.

STAT. §§ 77-103, 77-1374 (2002), which define leased privatized housing property as property

properly subject to state taxation. The opinion heavily relied on two cases in rendering its

opinion-- Ben Lomond, 760 P.2d at 508, and Offutt Housing Company v. County of Sarpy,

351 U.S. 253 (1956). Nebraska officials concluded that in these older cases, Congress did

authorize state taxation of military housing involving private developers under the Military

Leasing Act of 1947 or the National Housing Act of 1949 (a.k.a. the Wherry Military Housing

Act of 1949), and, therefore, Nebraska may tax the newly privatized housing. However,

Nebraska officials failed to address the glaring issue that Congress did not authorize states to

tax privatized housing under the new Military Housing Privatization Initiative of 1996.

10 U.S.C. § 2873 (2004).

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loans are often in the millions of dollars.

Unlike historical military

construction programs, MHPI allows the military departments to take up to

one-third limited ownership interest in the private developer.

In fact, MHPI

was created and codified in its own subchapter of Title 10. No court could

reasonably interpret MHPI with other military leasing authority such as the

Ben Lomond court did in interpreting 10 U.S.C. § 2667.

Second, Congress did not intend the MHPI statute to be construed in

conjunction with other military leasing authorities. Rather, it was intended by

Congress, as the heading of the housing privatization initiative subchapter

suggests, as an “Alternative Authority for Acquisition and Improvement of

Military Housing”--a totally separate and distinct chapter within Title 10. For

example, the MHPI states unambiguously that MHPI leaseholds shall not be

subject to 10 USC § 2667.

This fact alone helps distinguish MHPI from the

facts as stated in the Alaska Ben Lomond case. The analysis in this case relied

upon the federal leasing authority pursuant to 10 USC § 2667. Congress made

it clear that the MHPI was not to be read in conjunction with Section 2667. As

such, without express Congressional approval, states cannot reasonably rely on

past cases like the Alaska case of Ben Lomond in support of their position.

Because of the money at stake, states are not likely to give up easily.

D. Impact on Local Taxing Authorities

Because of the tremendous local tax revenue at stake, states have

historically challenged private developers claimed tax exemptions in federal

enclaves or areas of exclusively federal jurisdiction. Litigation usually begins

with a tax appeal by the housing developer. The tax appeal cases originate

when the developer applies for tax-exempt status to the local county board of

equalization (or other taxing authority) and tax exemption is denied.

Typically, most jurisdictions allow unfavorable local tax board opinions to be

appealed directly to the court of original jurisdiction.

Given the states success in the past challenging tax-exempt status for

developers under other military housing programs, states may feel emboldened

by their prior success in challenging tax-exempt status for developers under the

MHPI. Although no state has challenged the tax-exempt status under the 1996

MHPI to date, there have been numerous other tax appeal cases filed by states

The following are some sample privatization projects: Camp Pendleton Marine Corps Base,

California: 712 units and $83 million project cost; San Diego Naval Complex, California:

3,302 units and $ 421.5 million project cost; Kirtland AFB, New Mexico: 1,078 units and

$150.6 million project cost; Dyess AFB, Texas: 402 units and $35.3 million project cost.

Source: Office of Undersecretary of Defense (Installations and Environment), DoD Military

Housing Privatization – Housing Projects, at http://www.acq.osd.mil/housing/projsumm.htm

(last visited March 25, 2005).

10 U.S.C. § 2875 (2004)

10 U.S.C. § 2878(d) (1) (2004).

See, e.g., Visicon, Inc. v. Tracy, 83 Ohio St. 3d 211 (Ohio 1998).

State Property Tax Implications -277

under former statutes involving prior military housing projects constructed on

federally leased land, such as the National Housing Act of 1949 (a.k.a. the

Wherry Military Housing Act of 1949), whereby the courts expressly granted

the states the right to tax the housing developments.

However, the 1996

MHPI contains no express authority for states to tax in areas of federal

enclaves. Absent this express authority, states will have a difficult time

proving their cases.

E. Federal Enclaves are Generally Tax-Exempt Absent Congressional

Authority

Case law may give an advantage to private developers seeking tax

exemption for their projects. There are several recent cases that support the

conclusion that MHPI housing units in federal enclaves will be ruled tax-

exempt.

One important case involves a case that originated at Barksdale Air

Force Base, Louisiana.

In that case, a unanimous U.S. Supreme Court ruled

that a private oil and gas lease of federal property does not permit the state to

tax in areas of exclusive federal jurisdiction. The case involved the lease by

Humble Pipe Line Company of areas of Barksdale Air Force Base in

Louisiana. The county attempted to apply an ad valorem tax on the company’s

oil-drilling equipment and pipelines owned, used and kept on base by the

See, e.g., Ft. Dix Apartments Corp. v. Borough of Wrightstown, 225 F.2d 473 (3d Cir.1955)

(National Housing Act of 1949 (a.k.a. Wherry Military Housing Act of 1949) case--leasehold

interests in United States land leased for construction of housing near military facility taxable

under local real estate tax statute); Quintard Terrace Apartments, Inc. v. State, 111 So. 2d 602

(Ala. 1959) (National Housing Act of 1949 (a.k.a. Wherry Military Housing Act of 1949 case).

North Carolina corporation liable for franchise tax for doing business in state although all land

on which it did business located on military base: "We see no difference between a tax on the

real estate of a corporation and the right to consider the lessee's value of the housing units in

determining the amount of capital employed by this foreign corporation in the State...");

Brookley Manor, Inc. v. State, 90 So. 2d 161 (Ala. 1956) (National Housing Act of 1949

(a.k.a. Wherry Military Housing Act of 1949) case--buildings constructed on land leased from

Air Force subject to ad valorem tax); Gay v. Jemison, 52 So.2d 137 (Fla. 1951) (National

Housing Act of 1949 (a.k.a. Wherry Military Housing Act of 1949) case. Court upheld state

revenue tax levied on materials to be used in constructing military housing project); Meade

Heights, Inc. v. State Tax Comm'n, 95 A.2d 280 (Md. 1953) (National Housing Act of 1949

(a.k.a. Wherry Military Housing Act of 1949) case--leasehold interest in buildings on U.S.

Army base taxable under real estate tax statute); State v. Personnel Housing, Inc., 300 S.W.2d

506 (Mo. 1957)(National Housing Act of 1949 (a.k.a. Wherry Military Housing Act of 1949)

case--interest of private corporation in military housing on land leased from United States

subject to local taxation); Bragg Investment Co. v. Cumberland County, 96 S.E.2d 341 (N.C.

1957) (National Housing Act of 1949 (a.k.a. Wherry Military Housing Act of 1949) case--

leasehold rights in land on military reservation are chattel real, therefore subject to ad valorem

tax as statutorily defined "intangible personal property").

Humble Pipe Line Co. v. Waggonner, 376 U.S. 369 (1964).

278-The Air Force Law Review

company. The base permitted the developer to make use of the property for

nominal consideration.

This is similar to long-term leases under the MHPI in

that the ground leases are provided to the successful bidders for nominal

consideration. The unanimous Supreme Court held that Article I, Section 8,

clause 17 of the U.S. Constitution empowers Congress to exercise exclusive

legislative authority over all areas of exclusive federal jurisdiction and

therefore the ad valorem tax on the private interests of a company were tax

exempt.

Citing several cases, the Court reasoned exclusive jurisdiction was

not lost for a lease of property for commercial purposes, nor for conveyance of

a railroad right-of-way across a military reservation.

The Court stated that a

contract clause in Humble’s lease, stating that the company will pay all taxes

when due and levied by the State, had no relevance.

100

Other recent state cases have reached similar results. In 1998, the

Ohio Supreme Court ruled on whether a commercial hotel and conference

center at Wright-Patterson AFB, Ohio, could be taxed by Greene County.

101

The 250-room hotel was constructed for primarily military visitors and was in

an area of exclusive federal jurisdiction. The developer, Visicon, Inc., filed a

claim for tax exemption under state law.

102

Visicon, Inc. lost and their appeal

eventually went to the Ohio Supreme Court. The Court held, citing Humble

Pipe Line and Surplus Trading, that the developer’s interests were tax exempt

because they were located in a federal enclave and the lessee’s interest leased

by the United States to the developer was the underlying land. Even though

the lease was executed pursuant to 10 U.S.C. § 2667, in which Congress

permitted taxation, the Court found that Ohio’s statutory definition of taxable

real property did not include leaseholds.

103

State courts recognize the inherent

limitation of State taxing authorities to tax in areas of federal enclaves even

when federal lands are leased to private developers.

Ohio was not the only state. A recent Navy military housing case in

Connecticut is another case.

104

This case involved private construction on

federally leased land pursuant to 10 USC § 2809. This statute, similar to

MHPI, gives the military the ability to enter into long-term contracts for

services with the private sector for construction, management, and operation of

a facility on a military base.

105

The Navy project involved construction of

housing units under the terms of a 32-year ground lease. The lease contained a

provision that the private developer would pay all state and local taxes. The

Id. at 374.

Id. at 372 – 373. See United States v. Unzeuta, 281 U.S. 138 (1930); Arlington Hotel v.

Fant, 278 U.S. 439 (1929).

100

Humble Pipe Line Co., 376 U.S. at 375.

101

Visicon, Inc. v. Tracy, 83 Ohio St. 3d 211 (Ohio 1998).

102

Id. at 212. See OHIO REV. CODE ANN. § 5709.08 (West 2003).

103

Visicon, Inc., 83 Ohio St. 3d at 216.

104

Chalet Navy Properties v. Town of Groton, 23 Conn. L. Rptr. 39 (Conn. Super. Ct. 1998).

105

10 U.S.C. § 2809 (2003).

State Property Tax Implications -279

Court held that the lease to Chalet was executed pursuant to 10 USC § 2809

which contained no express Congressional grant of authority for state or local

taxation. Therefore, there was no express authority for Connecticut to tax the

newly built Bachelor Officer Quarters (BOQ) located in the federal enclave.

106

It is interesting to note that the town had to reimburse Chalet Navy Properties

for the taxes it had paid for the previous 5-6 years. The State argued

unsuccessfully that the 1-year statute of limitations was a bar to refunds

beyond one year. The Court found that the statute of limitations was a creature

of Connecticut law and, therefore, did not apply to areas of exclusive federal

jurisdiction. The Town was ordered to reimburse Chalet for taxes previously

paid.

107

VI. Conclusion and Recommendation

Although the privatization developer has responsibility for paying its

own taxes, the military departments have an interest in directly or indirectly

promoting the tax-exempt status of private developers. There are two primary

reasons.

First, the tax savings to the developer will help assure developer

profit and reduce the risk of bankruptcy. Since the housing units will be filled

with military members and their families, a more profitable housing

development will ensure buildings are properly maintained and housing units

are serviced properly over the 50-year term of the project. The assumption is

that a struggling developer may be compelled to cut corners on management of

the project or necessary maintenance. A housing project in bankruptcy could

mean uncertainty for military tenants as well as enormous litigation costs to the

government. Reduced tax expenses and increase in net profits ensures

management of the housing project is the best it can be. In other words,

profitability assures a viable and sustaining housing project. Because many

developers are borrowing federal money to finance these projects, bankruptcy

could mean only a portion of the federal loan gets repaid.

As discussed previously, most of the military housing projects

involve some form of direct or indirect government financing by the military

departments.

108

These federal loans can be in the millions of dollars and

payable over decades. A privatized housing development, which is tax-

exempt, will theoretically have more income to cover debt service. In many

instances, this would include debt service on military loans since many of the

privatized military housing developments are now incorporating federal loans

into their projects. In many of the projects to date, the military departments are

loaning huge sums of money and taking back mortgages on the federally

106

Chalet Navy Properties, 23 Conn. L. Rptr. at 43.

107

Id. at 45.

108

10 U.S.C. §§ 2873, 2875 (2003).

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leased land as security for these military loans. A loan default by a developer

could cost the Federal Government millions of dollars in interest income over

the life of a project. If a private developer can reduce his overall tax

expenditures, this may mean more money to pay other permanent creditors

such as the United States. However, tax-exempt status and the 1- 2 million

dollars in potential annual revenue savings serves to reduce this credit risk to

the United States in making these types of federal loans. The chances of debt-

repayment are necessarily increased if a developer can reduce overall business

expenses—including property taxes. It also may encourage more companies to

bid on future projects because of increased profit potential. By making the

projects more viable, the military departments reduce the risk of MHPI

obtaining the same fate as Wherry/Capehart Housing programs and the

801/802 Housing Programs. As mentioned previously, these programs

involved some degree of private sector development and have been allowed to

expire or were discontinued because they were too costly to implement.

109

A second reason the Federal Government should take an active role

in promoting tax-exempt status for private developers is the positive impact it

will have on the quality of life improvements for the military families. An

example will help illustrate this point. The military presently uses a complex

“Lockbox” account to channel various payments for the housing project. An

independent, third party oversees the account and directs payments to cash

reserves, loan payments, insurance premiums, and other accounts. As it is

presently structured, any surplus profit is directed toward a “Reinvestment

Account.” These monies can be split with the company and are also used for

quality of life improvements for the military families. Quality of life

improvements might involve constructing a day-care facility, building

recreation facilities, family playgrounds, or adding significant improvements to

the housing units. All of these help ease the strain on the military family in an

era of lengthy deployments and the realities of the domestic and international

war on terrorism.

How can the developers or military departments promote tax-exempt

development of privatized housing under the MHPI? This should include

education and training in tax law at information sessions with prospective

companies. These information sessions or “industry forums” are held prior to

project announcements. They are a chance for companies to learn about the

specifics of an upcoming project.

In addition, the federal government should actively locate housing

projects in areas of exclusive jurisdiction if geographic terrain and other factors

permit. Some military bases may have a mix of proprietary, partial,

concurrent, and exclusively federal legislative jurisdictional areas. If practical,

military leaders should opt to locate proposed projects in exclusively federal

109

Else, supra note 5, at 3- 4.

State Property Tax Implications -281

legislative jurisdictions whenever possible. Private developers and military

leaders should also closely examine documents ceding jurisdiction to the

United States. As mentioned previously, many of these documents could

contain reservations by the State to tax private entities within a federal enclave.

Moreover, contract documents should clearly contain clauses indicating

that the military is reserving exclusive federal jurisdiction, including the 50-

year ground leases. Another recommendation is to consider intervening in the

developer’s tax appeals if necessary. Intervention when economic justifications

warrant has been used in the past.

110

Despite the potential lost revenue to the states, the success of the MHPI

housing program depends on promoting tax-exempt projects whenever and

wherever possible.

110

See, e.g., United States v. Allegheny County, Pa., 322 U.S. 174 (1944), overruled on other

grounds by United States v. City of Detroit, 355 U.S. 466 (1958).

282-The Air Force Law Review

WHAT HAPPENED TO THE FEDERAL

ACQUISITION STREAMLINING ACT’S

PROTEST RESTRICTIONS ON TASK AND

DELIVERY ORDERS?

RECENT DEVELOPMENTS IN PROTESTS

(AND PROTESTS DISGUISED AS

CONTRACT DISPUTES) RELATED TO THE

ISSUANCE OF TASK AND DELIVERY

ORDERS AND PROPOSALS TO IMPROVE

AN IMPAIRED SYSTEM

MAJOR SEAN A. SABIN*

I. INTRODUCTION

The Federal Acquisition Streamlining Act (“FASA” or “the Act”)

expressly prohibits most indefinite-delivery, indefinite-quantity (“IDIQ”) task

or delivery order protests, stating, “A protest is not authorized in connection

with the issuance or proposed issuance of a task or delivery order except for a

protest on the ground that the order increases the scope, period, or maximum

value of the contract under which the order is issued.”

Instead of permitting a

contractor to protest its failure to be selected for a task or delivery order, FASA

provides for an agency ombudsman to hear issues ordinarily addressed in a

protest.

FASA seems clear in its restrictions of protests of task and delivery

order decisions and its mandate that contractor concerns regarding the issuance

of task or delivery order contracts be addressed to an agency’s ombudsman. In

the last few years, however, FASA’s restrictions on task and delivery order

protests have been somewhat undermined by a series of administrative and

judicial opinions. In light of these recent opinions, this paper will examine

FASA, its incorporation into the Federal Acquisition Regulation (“FAR”),

* Major Sean A. Sabin (B.S., Vanderbilt University; M.B.A., Owen Graduate School of

Management, Vanderbilt University; J.D. with honors, University of Memphis School of Law;

LL.M. Government Procurement Law, The George Washington University Law School)

currently serves as the Deputy Staff Judge Advocate, 88th Air Base Wing, Wright-Patterson

Air Force Base, Ohio. He is a member of the Tennessee State Bar.

41 U.S.C. § 253j(d) (2005).

Federal Acquisition Streamlining Acts-283

important judicial and administrative opinions pertaining to IDIQ contracts

both prior to and after FASA’s enactment (including opinions that appear to

expand the limited grounds under which a protest may be filed as defined by

FASA), and Section 803 of the National Defense Authorization Act for Fiscal

Year 2002, which expanded the competition requirements for task order

contracts within the Department of Defense (“DoD”).

The paper will then address Congressional action that needs to occur in

response to these recent opinions to better define the scope of FASA’s protest

restrictions. It also will advocate that Congress remove the requirement that an

IDIQ contract must include the procedures that an agency will follow to ensure

IDIQ contractors are given a fair opportunity to compete. While such a

requirement was well intended, it has resulted in contractors alleging that the

procedures were not followed and submitting multi-million dollar claims

against the government under the Contract Disputes Act (“CDA”). Congress

could not have envisioned such actions occurring when it defined the

parameters of multiple-award IDIQ contracts via FASA. The paper will urge

the Federal Acquisition Regulatory Council (“FAR Council”) to take

immediate action – even before any Congressional action on the matter – to

prevent future large CDA claims by adding a FAR clause that addresses fair

opportunity procedures. Finally, this paper will advocate that Congress

strengthen and better define the role of the task and delivery order ombudsman

position.

II. TASK AND DELIVERY ORDER CONTRACTS PRIOR TO FASA

A. The State of the Law Prior to 1994

Before addressing FASA and the impact it has had on IDIQ contracts, it

is important to review cases that preceded its enactment and the state of the

law prior to 1994 with regard to IDIQ contracts. In Torncello v. United

States,

the Court of Claims established the legal characteristics of IDIQ

contracts – they must state a minimum quantity amount to be purchased over a

set period of time, each contractor is guaranteed that the stated minimum

amount will be purchased, and the minimum amount must be more than a

nominal amount in order to satisfy the requirement of consideration in the

contract.

These legal characteristics formed the cornerstone of what was

required in an IDIQ contract and what duties the government owes an IDIQ

contractor, and they have continued to serve that function to the present time.

231 Ct. Cl. 20, 681 F.2d 756 (1982).

Id. at 28.

See 48 C.F.R. § 16.504(a) (2005).

284-The Air Force Law Review

In Northeast Air Group, Inc.,

the General Accounting Office

(“GAO”)

established a very narrow basis upon which a contractor could

protest a multiple-award contract order decision – when the item being

procured is materially different from the type of items contemplated by the

contract:

We generally will not consider protests against an

agency’s decision to modify a contract since

modifications involve contract administration, which is

the responsibility of the contracting agency, not our

Office . . . .

We will review, however, an allegation that a

modification exceeds the scope of the existing contract

and therefore should be the subject of a new procurement

. . . .

In determining whether a modification is beyond the

scope of the contract, we look to whether the contract as

modified is materially different from the contract for

which the competition was held.

Thus, a standard was established that so long as an order did not fall outside

the scope of those generally contemplated by the multiple-award contract at

issue, a protest of a task or delivery order selection decision will not be heard.

B. The Need for Legislative Action

Since there was no statutory or regulatory guidance to regulate

permissible behavior prior to FASA’s enactment in 1994, all guidance on

multiple-award contracts was judicially created or resulted from GAO

opinions. As a result, the use of multiple-award contracts was not prevalent

since agencies preferred the relative safety of large, single award IDIQ

contracts.

They provided agencies the efficiency of not having to compete

Comp. Gen. B-228210, Jan. 14, 1988, 88-1 CPD ¶ 33.

In July 2004, the General Accounting Office became the General Accountability Office. The

name change did not impact any of the functions performed by the office, nor did it impact the

use of “GAO,” the acronym commonly used to identify the office.

Id. at 6-7 (citations omitted).

See Office of Federal Procurement Policy, Office of Management and Budget, Executive

Office of the President, Best Practices For Multiple Award Task And Delivery Order

Contracting, Ch. 2, Background (July 1997) available at

http://www.arnet.gov/Library/OFPP/BestPractices/BestPMAT.html (last modified Feb. 19,

1999).

Federal Acquisition Streamlining Acts-285

every contracting action necessary to meet their requirements while avoiding

the unknown legal challenges of using multiple-award IDIQ contracts.

Without regulatory guidance, an agency simply was not assured that when it

awarded an order under a multiple-award IDIQ contract, it was not going to be

subjected to protests similar to those found in regular contract procurements.

This uncertainty and the risk of not gaining any efficiency despite a significant

investment of time and resources served as a disincentive for the use of

multiple-award contracts. However, while a single award IDIQ contract

eliminated the possibility of a protest, since only one contractor was involved,

it made “. . . it difficult for the government to secure the same price reductions

and contractor performance improvements that would occur if the contractor

was competing against other qualified contractors throughout the contract.”

From this desire to ensure that the government receives the best price

possible through an efficient multiple-award IDIQ system, came the push to

enact FASA. As the United States District Court for the District of Columbia

stated in Corel Corp. v. United States, Congress passed FASA with the intent

of “. . . streamlin[ing] and simplify[ing] federal acquisition procedures.”

III. THE FEDERAL STREAMLINING ACT OF 1994

A. Congressional Intent

In 1994, Congress passed the Federal Acquisition Streamlining Act,

and it was signed into law.

As stated in the Senate Report from the

Committee on Governmental Affairs (“Report”), the purpose of FASA was to

“. . . revise and streamline the acquisition laws of the Federal government in

order to reduce paperwork burdens, facilitate the acquisition of commercial

products, enhance the use of simplified procedures for small purchases, clarify

protest procedures, eliminate unnecessary statutory impediments to efficient

and expeditious acquisition, achieve uniformity in the acquisition practices of

federal agencies, and increase the efficiency and effectiveness of the laws

governing the manner in which the government obtains goods and services.”

Id.

165 F. Supp. 2d 12, 20 (D.D.C. 2001) (citing S. REP. NO. 103-259 (1994), reprinted in 1994

U.S.C.C.A.N. 2598, 2598).

Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, 108 Stat. 3243 (codified

in scattered sections of 10 U.S.C. and 41 U.S.C.). The sections of the Act discussed in this

paper can be found at Pub. L. No. 103-355, §§ 1004 and 1054, 108 Stat. 3243, 3252-53 and

3261-65 (codified at 10 U.S.C. 2304a-04d and 41 U.S.C. 253h-53k). While FASA’s IDIQ

provisions are codified at 10 U.S.C. 2304a-04d and at 41 U.S.C. 253h-53k, the sections in the

two United States Code titles are identical. For simplicity, this paper only cites the provisions

found under title 41, but the same provisions can also be found under title 10.

S. REP. NO. 103-258, at 1-2 (1994), reprinted in 1994 U.S.C.C.A.N. 2561, 2562.

286-The Air Force Law Review

Clearly, it was intended to simplify and streamline certain aspects of

government acquisition.

Multiple-award task and delivery order contracts were one such area

that FASA hoped to reform by making that form of procurement simple,

straightforward, and more efficient. In furtherance of this goal, the Report

stated, “The Committee intends that all federal agencies should move to the

use of multiple task order contracts, in lieu of single task order contracts,

wherever it is practical to do so.”

In addition, the Report described the

changes FASA was implementing in the area of task and delivery order

contracts in the following manner:

The new provisions added to the procurement code by

sections 1004 and 1054 of the bill are intended to given

[sic] agencies broad discretion in establishing procedures

for the evaluation and award of individual task orders

under multiple award contracts. They do not establish any

specific time frames or procedural requirements for the

issuance of task orders, other than that there be a specific

statement of work and that all contractors under multiple

award contracts be afforded a reasonable opportunity to

be considered in the award of each task order (with

narrow exceptions). Accordingly, contracting officials

will have wide latitude and will not be constrained by

CICA [Competition In Contracting Act] requirements in

defining the nature of the procedures that will be used in

selecting the contractor to perform a particular task

order. When contracting officials award task orders they

will have broad discretion as to the circumstances and

ways for considering factors such as past performance,

quality of deliverables, cost control, as well as price or

cost. In some cases, all that may be necessary is an oral

discussion with each of the contractors, followed by the

contracting officers [sic] decision. As far as the concept of

multiple award contracts is concerned, the Administrator

of OFPP [Office of Federal Procurement Policy] has

assured the Committee that incentives would be created to

encourage the use of such contracts and competition for

orders under them where practicable.

S. REP. NO. 103-258, at 15 (1994), reprinted in 1994 U.S.C.C.A.N. 2561, 2576.

S. REP. NO. 103-258, at 16 (1994), reprinted in 1994 U.S.C.C.A.N. 2561, 2576 (emphasis

added).

Federal Acquisition Streamlining Acts-287

Thus, Congress intended that IDIQ contracts be free from the requirements

applicable to general procurements with regard to procedures to be followed,

and, as a result, that contractors be very limited in their ability to protest task

and delivery order decisionmaking.

B. The Act’s Language

FASA defines task order and delivery order contracts as contracts for

services or property that do not procure or specify a firm quantity of services

or property (other than a minimum or maximum quantity) and that provide for

the issuance of orders for the performance of tasks or delivery of property

during the period of the contract.

It states a task or delivery order contract

solicitation must include the period of the contract, the maximum quantity or

dollar value of the services or property to be procured under the contract, and a

reasonable description of the general scope, nature, complexity, and purposes

of the services or property to be procured under the contract.

It also directs

the FAR to “. . . establish a preference for awarding, to the maximum extent

practicable, multiple task or delivery order contracts for the same or similar

services or property . . .” when implementing the subsection’s provisions.

Further, it states, “The scope, period, or maximum value of the contract may be

increased only by modification of the contract.”

After tackling the above issues, FASA next addresses the fact the

government does not have to engage in the normal notice requirements

applicable to contract solicitations before awarding an order under a task or

delivery order contract.

Specifically, FASA states that the standard contract

solicitation notice is “. . . not required for issuance of a task or delivery order

under a task or delivery order contract . . . .”

It next removes normal

procurement competition requirements and replaces them with the “fair

opportunity” requirement.

This requirement states that all multiple award

task and delivery order contractors will be provided a fair opportunity to be

considered for all orders in excess of $2,500, unless the order involves unusual

urgency, can only be fulfilled by one contractor, is a logical follow-on to an

See Corel Corp. v. United States, 165 F. Supp. 2d 12, 20 (D.D.C. 2001) (Congress realized

that the CICA’s “open competition requirements often had the unintended effect of bogging

down the federal procurement process in innumerable bid protests filed by the losing bidder

who almost invariably claimed that the agency’s award of a contract to a competitor was not

made on a fully competitive basis.” (citing S. REP. NO. 103-259 (1994), reprinted in 1994

U.S.C.C.A.N. 2598, 2604).

41 U.S.C. § 253k(1) (2005).

41 U.S.C. § 253h(b) (2005).

41 U.S.C. § 253h(d)(3)(A) (2005).

41 U.S.C. § 253h(e) (2005).

41 U.S.C. § 253j(a) (2005).

Id. The standard contract solicitation notice is found at 41 U.S.C. § 416 (2005).

41 U.S.C. § 253j(b) (2005).

288-The Air Force Law Review

order already issued on a competitive basis, or is necessary to satisfy the

underlying contract’s guaranteed minimum.

The requirement also includes

the seemingly innocuous mandate that procedures incorporating the fair

opportunity requirement be put in task and delivery order contracts.

As is

discussed below in Section V, this directive has become particularly important

with regard to contract dispute actions arising under the CDA.

Next, FASA

requires that task and delivery orders “. . . include a statement of work that

clearly specifies all tasks to be performed or property to be delivered under the

order.”

The critical portions of FASA are stated in its next two paragraphs. As

stated in the Introduction, the Act prohibits a protest in connection with the

issuance or proposed issuance of a task or delivery order unless the protest is

based on an allegation that the order increases the scope, period, or maximum

value of the contract under which the order is issued.

In lieu of a protest

vehicle for contractors, the Act mandates that every executive agency that

awards multiple task or delivery order contracts appoint or designate a task and

delivery order ombudsman who is responsible for reviewing contractor

complaints and ensuring that all contractors are afforded a fair opportunity to

be considered for all task and delivery orders other than those FASA exempts

from the fair opportunity requirement.

In addition, the Act requires that the

ombudsman position be filled by “. . . a senior agency official who is

independent of the contracting officer for the contracts and may be the

executive agency’s competition advocate.”

In general, FASA is fairly straightforward with regard to task and

delivery order contracts, but it does not directly address whether it is applicable

Id. 41 U.S.C. § 253j(b) states that when multiple task and delivery order contracts are

awarded, “. . . all contractors awarded such contracts shall be provided a fair opportunity to be

considered, pursuant to procedures set forth in the contracts, for each task or delivery order in

excess of $2,500 that is to be issued under any of the contracts unless--

(1) the executive agency's need for the services or property ordered is of such unusual

urgency that providing such opportunity to all such contractors would result in unacceptable

delays in fulfilling that need;

(2) only one such contractor is capable of providing the services or property required at the

level of quality required because the services or property ordered are unique or highly

specialized;

(3) the task or delivery order should be issued on a sole-source basis in the interest of

economy and efficiency because it is a logical follow-on to a task or delivery order already

issued on a competitive basis; or

(4) it is necessary to place the order with a particular contractor in order to satisfy a

minimum guarantee. 41 U.S.C. § 253j(b) (2005).

Id.

Contract Disputes Act of 1978, 41 U.S.C. §§ 601-13 (2005).

41 U.S.C. § 253j(c) (2005).

41 U.S.C. § 253j(d) (2005).

41 U.S.C. § 253j(e) (2005).

Id.

Federal Acquisition Streamlining Acts-289

to the General Services Administration (“GSA”) Federal Supply Schedule

(“FSS”) contracts. However, the Court of Federal Claims has determined that

FASA is inapplicable to GSA FSS contracts because: (1) the Act does not

“limit or expand” the authority of the GSA “. . . to enter into schedule, multiple

award, or task or delivery order contracts under any other provision of law;”

and (2) the last paragraph of 41 U.S.C. § 253j – the section that prohibits most

IDIQ protests – states that the section applies to IDIQ contracts entered into

under section 41 USC § 253h.

The Court interpreted this somewhat

confusing language to mean that FASA’s provisions do not apply to GSA FSS

contracts because the Act’s provisions do not limit or expand GSA’s authority

to enter into contracts.

IV. FEDERAL ACQUISITION REGULATION SUBPART 16.5 –

INDEFINITE-DELIVERY CONTRACTS

The FAR incorporates FASA’s requirements into Subpart 16.5, which

is entitled “Indefinite-Delivery Contracts.”

In addition, this subpart includes

directives that were not created by statute, but were developed by the FAR

Council.

The first area addressed by the subpart is its far-reaching scope – it

prescribes the policies and procedures for making awards of indefinite-delivery

(“ID”) contracts – and its establishment of a preference for the making of

multiple-award IDIQ contracts.

Its broad scope, however, does not include

GSA FSS contracts, as it removes such contracts from the requirements

applicable to other ID contracts by stating, “. . . GSA regulations and the

coverage for the Federal Supply Schedule program . . . take precedence over

41 U.S.C. §§ 253h(g) and 253j(f) (2005) (emphasis added).

See discussion of Labat-Anderson, Inc. v. United States, 50 Fed. Cl. 99, 105 (2001), at pp.

16-18 infra. In addition, the discussion accompanying the final rule incorporating FASA into

the FAR apparently uses this language from the Act to come to the conclusion that FASA “. . .

specifically exempted GSA’s Federal Supply Schedule program.” Federal Acquisition

Regulation; Task and Delivery Orders, 61 Fed. Reg. 39,201-03, 39,202 (Jul. 26, 1996); see

discussion of the scope of FAR Subpart 16.5 vis-à-vis indefinite delivery contracts, at Section

IV infra.

48 C.F.R. § 16.5 (2004).

The FAR Council was established pursuant to the Office of Federal Procurement Policy

Reauthorization Act. This Act gives statutory authority to the Procurement Executives at the

Department of Defense, General Services Administration and National Aeronautics and Space

Administration to issue and revise the FAR.

48 C.F.R. § 16.500(a) (2004). At § 16.504(c), the FAR expounds on the preference for

making multiple award IDIQ contracts: “[T]he contracting officer must, to the maximum

extent practicable, give preference to making multiple awards of indefinite-quantity contracts

under a single solicitation for the same or similar supplies or services to two or more sources.”

48 C.F.R. § 16.504(c) (2004).

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this subpart.”

Thus, correctly or incorrectly, the FAR clarifies the confusing

language of FASA by stating in a straightforward manner that the Act does not

apply to GSA FSS contracts.

The next important paragraphs of the subpart state FASA’s definition

of task and delivery order contracts, and subdivide ID contracts into three

types: definite-quantity, requirements, and indefinite-quantity.

Although the

FAR does not say this directly, since task and delivery order contracts involve

orders of an indefinite quantity, definite-quantity contracts are not task and

delivery order contracts because they involve the “. . . delivery of a definite

quantity of specific supplies or services for a fixed period . . . .”

Indefinite-

quantity or IDIQ contracts, on the other hand, provide for the delivery of an

indefinite quantity of supplies or services during a fixed period of time with a

stated non-nominal, minimum quantity to be ordered and a stated maximum

quantity that the contractor must be prepared to furnish.

The subpart states that an IDIQ solicitation and contract must “[s]tate

the procedures that the Government will use in issuing orders, including the

ordering media, and, if multiple awards may be made, state the procedures and

selection criteria that the Government will use to provide awardees a fair

opportunity to be considered for each order . . . .”

This incorporates FASA’s

requirement that fair opportunity procedures be included in task and delivery

order contracts and adds the requirement that these procedures also be put in

solicitations for such contracts.

Finally, if an IDIQ contract is awarded to

multiple contractors, the subpart requires that the solicitation provide the name

and contact information of the task and delivery order ombudsman.

The subpart next addresses protests and the required competition that

must occur before a task or delivery order is issued. The scope of permissible

protest actions is that which FASA mandates: unless an order increases the

scope, period, or maximum value of an IDIQ contract, a protest in connection

with the issuance or proposed issuance of an order under a task or delivery

order contract is prohibited.

In addition, it describes the IDIQ competition

requirement using language similar to that found in the FASA Senate Report.

Specifically, it states that the contracting officer may use “streamlined

48 C.F.R. § 16.500(c) (2004). In its entirety, the paragraph states, “Nothing in this subpart

restricts the authority of the General Services Administration (GSA) to enter into schedule,

multiple award, or task or delivery order contracts under any other provision of law.

Therefore, GSA regulations and the coverage for the Federal Supply Schedule program in

subpart 8.4 and part 38 take precedence over this subpart.” Id.

48 C.F.R. §§ 16.501-1 and 16.501-2 (2004).

48 C.F.R. § 16.502(a) (2004) (emphasis added); see discussion of Teledyne-Commodore,

L.L.C. – Recon

., Comp. Gen. B-278408.4, Nov. 23, 1998, 98-2 CPD ¶ 121, at pp. 20-22 infra.

48 C.F.R. § 16.504(a) (2004).

48 C.F.R. § 16.504(a)(4)(iv) (2004).

See 41 U.S.C. § 253j(b) (2005).

48 C.F.R. § 16.504(a)(4)(v) (2004).

48 C.F.R. § 16.505(a)(8) (2004).

Federal Acquisition Streamlining Acts-291

procedures,” should keep submission requirements to a minimum, and may

exercise “broad discretion” in developing procedures for awarding orders.

does not even require the contracting officer to contact each IDIQ contractor

before selecting an order awardee “. . . if the contracting officer has

information available to ensure that each awardee is provided a fair

opportunity to be considered for each order,” nor does it require formal

evaluation plans or scoring of offers.

The subpart does not leave order decisions completely to the discretion

of contracting officers, however. The contracting officer is required to: (1)

develop placement procedures that will provide each awardee a fair

opportunity to be considered for each order; (2) avoid any method that would

not result in fair consideration being given to all awardees prior to placing each

order; (3) tailor the procedures to each acquisition; (4) include the procedures

in the solicitation and the contract; (5) consider price or cost under each order

as one of the factors in the selection decision; and, (6) document in the contract

file the rationale for placement and price of each order, including the basis for

award and the rationale for any tradeoffs among cost or price and non-cost

considerations in making the award decision.

In addition, the subpart states

the contracting officer should consider the following when developing award

procedures: (1) past performance on earlier orders under the contract; (2)

potential impact on other orders placed with the contractor; (3) minimum order

requirements; (4) the amount of time contractors need to make informed

business decisions on whether to respond to potential orders; and, (5) whether

to use outreach efforts to promote exchanges of information, such as seeking

comments from contractors on draft statements of work or using a multi-

phased approach.

Lastly, the subpart quotes essentially verbatim FASA’s

exception to the fair opportunity process.

It adds the requirement that if an

exception to the fair opportunity process is used, the rationale for its use must

be documented in the contract file.

The subpart does not expand at all on the role of the task and delivery

order ombudsman, providing no further guidance on the position beyond that

which FASA provides.

In addition, while it lists solicitation provisions and

48 C.F.R. § 16.505(b)(1)(ii) (2004).

Id.; 48 C.F.R. § 16.505(b)(1)(iii)(B) (2004).

48 C.F.R. § 16.505(b)(1)-(4) (2004).

48 C.F.R. § 16.505(b)(1)(iii) (2004).

See note 24 supra and accompanying text.

48 C.F.R. § 16.505(b)(4) (2004).

48 C.F.R. § 16.505(b)(5) (2004). In the absence of FAR elaboration on the role of the task

and delivery order ombudsman, some agencies have attempted to define the ombudsman’s

responsibilities. However, such guidance often provides little insight. For example, while the

Air Force’s supplement to the FAR, the Air Force Federal Acquisition Regulation Supplement

(“AFFARS”), states that the “. . . ombudsman is responsible for reviewing complaints from

multiple award contractors and ensuring that all of the contractors are afforded a fair

opportunity to be considered for task and delivery orders in excess of $2,500,” it effectively

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contract clauses that must be included in task and delivery order contracts, fair

consideration procedures are not among those listed.

Thus, contracting

officers must draft the fair opportunity procedures that are required in

solicitations and contracts in accordance with § 16.505(b)(1)(ii)(D), but they

are not given any guidance on how these procedures should read.

While this

may further the subpart’s goal of giving contracting officers broad discretion, it

most likely leads to confusion among contracting officers as to how specific

the procedures should be. For example, if a contracting officer develops very

specific procedures to decrease confusion among the parties as to how the

process will work, he or she will increase the risk of a contract dispute arising

if a contractor believes any of the enumerated steps were not followed.

V. JUDICIAL AND ADMINISTRATIVE INTERPRETATIONS OF

FASA

In accordance with FASA, judicial and administrative hearings have

permitted protests that contest the scope, period of time, or maximum value of

a contract underlying a task or delivery order.

For example, in Makro

Janitorial Services, Inc.,

the GAO sustained a protest that a task order for

housekeeping services improperly exceeded the scope of a contract for

preventive maintenance and inventory, repairs, and facility survey activities.

The GAO based its decision on its finding that a modification to the original

contract that addressed services covered by the protested task order was

outside the scope of the original contract and that the resulting task order was

likewise outside the scope of the task order contract.

prevents the ombudsman from taking any significant action by prohibiting the ombudsman

from either preventing the issuance of a pending order or disturbing an existing order.

AFFARS § 5352.216-9000(d) (2004).

See 48 C.F.R. § 16.506 (2004).

As with the role of ombudsman, some agencies have attempted to address the FAR’s lack of

guidance by writing fair opportunity to compete procedures that must be incorporated into

their multiple award task and delivery order solicitations and contracts. For example, the Air

Force has stipulated procedures that must be followed before a task or delivery order is

awarded. See AFFARS §§ 5316.506 and 5352.216-9000 (2004). Once again, however, such

guidance often provides contracting officers with insufficient information. For example, the

Air Force leaves it to the contracting officer to determine the “technical and/or managerial

approach” and “other factors” that will be used to ensure contractors are given a fair

opportunity to compete. AFFARS § 5352.216-9000, ALTERNATE II (2004).

See discussion of task and delivery order CDA action at pp. 27-33 infra.

See discussion of the fact 41 U.S.C. § 253j(d) expressly limits IDIQ protests to these three

areas, at pp. 8-9 supra.

Comp. Gen. B-282690, Aug. 18, 1999, 99-2 CPD ¶ 39.

Id. at 5. See Floro & Associates, Comp. Gen. B-285451.3; B-285451.4, Oct. 25, 2000, 2000

CPD ¶ 172, which stated a task order is beyond the scope of the original contract if there is a

material difference between the task order and the contract. Evidence of such a material

difference is found by: reviewing circumstances surrounding the procurement; examining any

Federal Acquisition Streamlining Acts-293

There have been a number of cases, however, that have expanded

jurisdiction beyond the three areas enumerated by FASA. Below is a

discussion of cases in which contractors were granted jurisdiction to contest

the issuance or proposed issuance of orders under multiple-award IDIQ

contracts, even though the bases of the actions were not one of the three

permissible protest grounds.

A. The General Services Administration Federal Supply Schedule

Program

The first case to expand protest jurisdictional boundaries beyond those

enumerated by FASA was Severn Companies, Inc.,

which involved a protest

of the decision to terminate for convenience a delivery order issued to the

contractor against the agency’s GSA FSS contract. In Severn Companies, Inc.,

the agency issued a request for pricing among FSS contractors for a specific

computer storage device.

The agency received four responses to the request

that it considered acceptable, and ultimately selected Severn Companies to

fulfill its need.

One of the four acceptable contractors not selected protested

the agency’s decision to the GAO, claiming Severn Companies’ response was

technically unacceptable.

In response to this protest, the agency terminated

for convenience its order with Severn Companies because it decided that the

specifications for the order were ambiguous.

After Severn Companies

protested the agency’s decision to terminate for convenience, the agency

argued that FASA prohibited the GAO from exercising jurisdiction to hear the

protest of the FSS delivery order.

The GAO rejected the agency’s argument,

stating there was no evidence that FASA was intended to preclude protests

with respect to the placement of orders against GSA FSS contracts.

It also

stated that the legislative history of the Act indicates that it was “. . . intended

to encourage the use of multiple award order contracts, rather than single

changes in type of work, performance period, and costs between the contract as awarded and

as modified by the task order; and, considering whether the original contract solicitation

adequately advised offerors of the potential for the type of task order issued. Id. at 4. The

overall inquiry should focus on whether potential offerors reasonably could have anticipated

the task order. Id. See also Computers Universal, Inc., Comp. Gen. B-293548, Apr. 9, 2004,

2004 CPD ¶ 78 (if services to be provided under a task order are of the type that potential

offerors reasonably could have anticipated would be covered by the underlying contract, the

task order will fall within the scope of the contract).

Comp. Gen. B-275717.2, Apr. 28, 1997, 97-1 CPD ¶ 181.

Id. at 1-2.

Id. at 3.

Id.

Id. at 4 n.1.

Id.

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award order contracts.”

Without citing any provision in the Act or its

legislative history, it reasoned that since the FSS already afforded users a

choice of multiple contractors, no such encouragement was required with

respect to the FSS.

It supported this argument by pointing out that FASA’s

protest restrictions are listed only in FAR subpart 16.5 and that subpart “. . .

treats FSS contracts as separate from other indefinite delivery contracts.”

In Labat-Anderson, Inc. v. United States,

the Court of Federal Claims

accepted protest jurisdiction on a similar issue, but used a different rationale in

making the decision to grant jurisdiction. Labat-Anderson, Inc

. came to the

Court of Federal Claims after the GAO denied the petitioner’s protest of its

failure to be selected for a blanket purchase agreement (“BPA”) in which the

agency limited quotation submissions to FSS contractors.

At the GAO, the

government’s motion that the GAO did not have jurisdiction to hear the protest

under FASA was denied based on the GAO’s holding in Severn Companies,

Inc.

When the government moved for dismissal of the case for lack of

jurisdiction at the Court of Federal Claims, its motion again was denied, but

the court did not base its decision on FASA’s legislative history as the GAO

primarily had “. . . because [the legislative history] does not shed meaningful

light on the scope of the task order protest bar.”

Instead, since the protest

concerned the issuance of a BPA under FAR Part 8, which addresses FSS

purchases, and not the issuance of a task order under FAR Part 16, FASA’s

prohibition was found to be inapplicable.

In Labat-Anderson, Inc., the court distinguished FSS BPA contracts

from all other multiple-award IDIQ contracts in the following manner:

While the plain language of the statutory

provision clearly bars task order protests, the

critical point here is that the award at issue in

this case constitutes far more than the mere

issuance of a task order against an already-

existing GSA FSS or multiple-award contract.

Because [the plaintiff] is challenging the award

of a FAR Part 8 BPA and not the issuance of a

task order under FAR Part 16, [the intervenor’s]

argument that the FASA task order protest

Id.

50 Fed. Cl. 99 (2001).

Id. at 102.

See Labat-Anderson, Inc., Comp. Gen. B-287081; B-287081.2; B-287081.3, Apr. 16, 2001,

2001 CPD ¶ 79.

Labat-Anderson, Inc., 50 Fed. Cl. at 105.

Id. at 104.

Federal Acquisition Streamlining Acts-295

exemption, 41 U.S.C. § 253j(d), strips the Court

of jurisdiction in this case is rejected.

This strongly implies that an award decision made against an already-existing

IDIQ contract, including a GSA FSS contract so long as the award is not a

FAR Part 8 BPA, cannot be protested unless the protest concerns one of

FASA’s three enumerated areas. After making this implication, however, the

court states, “. . . the language and regulatory history of FAR Part 16 support

the interpretation that the task order restriction was not intended to apply to

FSS procurements.”

The court then quotes the language from FAR §

16.500(c) that states the FAR’s FSS provisions – FAR part 38 and subpart 8.4

– take precedence over subpart 16.5.

By citing the FAR’s interpretation of

FASA regarding GSA FSS contracts, the court removes the possibility of

FASA’s protest prohibition applying to any GSA FSS contracts. While this

resolves the issue of the relationship between GSA FSS contracts and FASA’s

prohibition, it leaves open the question of why the court stated, “. . . the award

at issue in this case constitutes far more than the mere issuance of a task order

against an already-existing GSA FSS . . . contract.”

By later citing the

subpart 16.5’s FSS language, the court effectively removed the applicability of

FASA’s protest restrictions from any GSA FSS task or delivery order, thereby

making the court’s distinction between the case’s BPA and other FSS contracts

meaningless.

B. Protests at the General Accounting Office of a “Downselection”

In 1998, the GAO issued its opinion in Electro-Voice, Inc.,

in which it

held that FASA’s restrictions on IDIQ protests do not apply when a

“downselection” has occurred.

The GAO defined a “downselection” as the

placement of an order under a multiple-award IDIQ contract that causes the

elimination of one or more of the non-selected contractors from consideration

for future delivery orders.

In Electro-Voice, Inc., the agency awarded two

contractors IDIQ contracts for the production of a military helmet that

contained a communications system.

The contract’s request for proposal

(“RFP”) informed both contractors that the agency intended to use the IDIQ

contract to order four product demonstration models for testing in a

Id.

Id. at 105.

See note 36 supra and accompanying text.

Id. at 104.

Comp. Gen. B-278319; B-278319.2, Jan. 15, 1998, 98-1 CPD ¶ 23.

See also Global Communications Solutions, Inc., Comp. Gen. B-291113, Nov. 15, 2002,

2002 CPD ¶ 194.

Electro-Voice, Inc., 98-1 CPD ¶ 23 at 9-10.

Id. at 2-3.

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“downselection” process.

The agency would then test these models to

determine which contractor provided the best value, and the agency would then

order its helmet requirements from that contractor using the IDIQ contract.

The non-selected contractor would not be awarded future orders off the IDIQ

contract.

The non-selected contractor filed a protest contesting the agency’s

decision that the selected contractor’s helmet provided the best value.

When

the agency contested the protest on the jurisdictional basis that FASA prohibits

such a delivery award protest, the GAO denied the agency’s argument “. . .

because there is no evidence that the provision is intended to preclude protests

of downselection decisions.”

Citing the Act’s legislative history, the GAO

stated that FASA was intended to “. . . promote an ongoing competitive

environment in which each awardee was fairly considered for each order

issued.”

It then referenced its opinion in Severn Companies, Inc., as standing

for the proposition that FASA’s “. . . protest restriction does not apply where

the nature of the protested order contract is not that which could have been

contemplated.”

Based on these findings, the GAO held that FASA’s protest

restrictions were inapplicable to the case.

In Electro-Voice, Inc., the GAO appears to strain to avoid FASA’s

express language that a delivery order protest that is not based on the order

increasing the scope, period, or maximum value of the underlying IDIQ

contract is not authorized. Instead of addressing FASA’s protest restrictions,

the GAO focuses on the fact that there is no evidence that the Act was intended

to preclude downselection decisions. This reverse analysis, in which the

burden is on the agency to prove FASA’s restrictions apply to a particular

issuance or proposed issuance of a task or delivery order, is troublesome in

light of the Act’s language – it clearly states a protest is not authorized unless

one of the three exceptions apply. In addition, the opinion highlights the

difference in interpretations of the scope of FASA’s protest prohibitions

between the Court of Federal Claims, which rejected the use of legislative

history to determine the span of FASA’s protest bar in Labat-Anderson, Inc.,

and the GAO.

In Teledyne-Commodore, L.L.C. -- Recon.,

the GAO expanded the

scope of the downselection theory. In Teledyne-Commodore, L.L.C. -- Recon.,

the agency awarded multiple-award contracts to seven contractors for the

Id. at 3.

Id.

Id. at 3-8.

Id. at 8.

Id.

Comp. Gen. B-278408.4, Nov. 23, 1998, 98-2 CPD ¶ 121.

Federal Acquisition Streamlining Acts-297

demilitarization and disposal of chemical weapons.

In accordance with the

RFP, the agency then awarded all seven contractors “task orders” to prepare a

data gap resolution work plan.

After evaluating the first “task orders” using

evaluation criteria from the RFP, the agency awarded six contractors, including

the protestor, a second “task order” to prepare a demonstration work plan.

Again using RFP evaluation criteria, the agency next awarded a third “task

order” to two of the six contractors to perform demonstration testing on a cost-

plus-fixed-fee basis.

The protestor was not selected for the third task order,

which was the last task order the agency anticipated awarding using the

underlying contract.

In spite of the fact it called the three sets of contracts “task orders”

throughout the opinion, the GAO held that FASA’s task order protest

restriction was inapplicable.

In part, it based this decision on the fact the

“task orders” did not come from a FASA “task order contract” because the

agency was procuring a definite quantity of services as opposed to an

indefinite quantity.

Based on FASA’s definition of a task order contract as

one that does not specify a firm quantity of services, and the admission of the

agency’s contracting officer that the RFP called for exactly three phases, this

basis for GAO’s opinion seems correct.

It points out, however, an area in

which the FAR can be improved since currently not all task orders come from

task order contracts, some come from definite-quantity contracts. This is

extremely confusing and unnecessary. Subpart 16.5 should define a term other

than task or delivery order to describe an order made under a definite-quantity

contract.

The troubling aspect of the Teledyne-Commodore, L.L.C. -- Recon.

opinion is the fact GAO had “[a]nother reason” for its holding – the underlying

contract was used to conduct what amounted to a competitive source

selection.

Unfortunately, the opinion never directs the agency to the section

of FASA that states the Act’s protest restrictions do not apply when an “. . .

agency is essentially conducting a single source selection . . ..”

Thus, while Electro-Voice, Inc. and Teledyne-Commodore, L.L.C. –

Recon. made it clear that FASA’s restrictions do not apply when a

downselection decision has occurred or when a multiple-award contract has

Id. at 2.

Id. at 3-4.

Id.

Id. at 4.

Id. at 7-11.

The GAO explained this by stating, “. . . once the technology demonstration phase is

completed under [the third task order], there are no recurring needs contemplated under the

contract.” Id.

Id. at 9 n.1.

Id. at 10-11.

Id. at 10.

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been used to engage in a competitive source selection, neither case addressed

whether protesting contractors have any requirement to seek redress from the

ombudsman in light of FASA. In fact, the GAO in these cases did not discuss

the role of the task and delivery order ombudsman at all.

C. Protests at the General Accounting Office of Solicitation

Terms of the Underlying IDIQ Contracts

The GAO has carved another exception to FASA’s protest restrictions

by holding the restrictions do not apply when, in the GAO’s opinion, the

protestor is challenging whether the solicitation for an underlying IDIQ

contract was handled properly, even if the underlying IDIQ contract was

awarded years before the protest. The GAO first adopted this theory in Ocuto

Blacktop & Paving Co., Inc.

In Ocuto Blacktop & Paving Co., Inc., the

contractor protested the award of a task order alleging that the award was made

without regard to a statutory preference to contract with businesses located

near military installations scheduled to be closed.

100

The IDIQ contract

underlying the task order had been awarded over a year prior to the task order

being awarded for the work in question.

101

According to the agency, the

solicitation for that IDIQ contract had been mailed to the protestor prior to it

being awarded, but the protestor did not submit a response to the

solicitation.

102

The GAO denied the agency’s argument that FASA barred it from

exercising jurisdiction over the protest by stating that, while it recognized the

protestor’s challenge on its face focused on the task order in dispute, the

protestor was actually “. . . mounting a challenge to the terms of the underlying

solicitation, not – as the [agency] argues – a challenge to a delivery order . .

..”

103

Citing 4 C.F.R. 21.2(a)(1), the agency next argued that if the protest was

“in essence” a protest of the underlying IDIQ solicitation as the GAO believed,

it had not been filed in a timely manner since “. . . a protest based upon alleged

improprieties in a solicitation which are apparent prior to the time set for

receipt of initial proposals must be filed before the time set for receipt of such

proposals.”

104

The GAO rejected this argument as well, holding that the

agency’s solicitation did not give sufficient notice to potential offerors that

projects involving a potential statutory preference for local businesses were

Comp. Gen. B-284165, Mar. 1, 2000, 2000 CPD ¶ 32. See also N&N Travel & Tours, Inc.,

et al., Comp. Gen. B-285164.2, B-285164.3, Aug. 31, 2000, 2000 CPD ¶ 146.

100

Id. at 1.

101

Id. at 4.

102

Id.

103

Id. at 3 (although the GAO used the term “delivery order,” it apparently meant “task

order”).

104

Id. at 4.

Federal Acquisition Streamlining Acts-299

within the solicitation’s reach.

105

The GAO based this conclusion on the fact

the listed programs identified in the solicitation did not “. . . explicitly include

remediation work associated with the closure or realignment of military

installations under the base closure laws.”

106

In LBM, Inc.,

107

the GAO expounded on this theory of granting protest

jurisdiction through reverting back to the terms of the underlying solicitation.

In LBM, Inc., the contractor protested the fact that upon expiration of a

contract for motor pool services at Fort Polk, Louisiana, the United States

Army was not going to continue setting aside the motor pool services

requirement exclusively for small businesses, but instead was going to issue a

contract for the services using a task order from an existing IDIQ contract.

108

The scope of work of the existing IDIQ contract, called LOGJAMSS,

encompassed logistical functions for Army facilities within a region that

included Fort Polk.

109

In 1998 and 1999, the Army had awarded nine contracts

under LOGJAMMS, including two contracts with small businesses and two

contracts with disadvantaged businesses.

110

On May 31, 2002, the Army

solicited the IDIQ contractors for proposals to perform motor pool services at

Fort Polk with a June 26, 2002, closing date for receipt of proposals.

111

Upon

discovering this fact, LBM, Inc., filed a protest alleging that the Army must

continue to set aside the motor pool services requirement at Fort Polk

exclusively for small businesses.

112

The GAO rejected the Army’s argument that FASA prohibited the task

order protest, stating the contractor was not protesting the proposed issuance of

a task order for the motor pool services, but instead was protesting the fact the

work was no longer being set aside exclusively for small businesses.

113

The

GAO held that it was “. . . a challenge to the terms of the underlying

LOGJAMSS solicitation . . .” and thus was within its bid protest jurisdiction.

114

The GAO explained its position in the following manner:

In our view, the limitation on our bid protest jurisdiction

was not intended to, and does not, preclude protests that

timely challenge the transfer and inclusion of work in

ID/IQ contracts without complying with applicable laws

or regulations, but was to preclude protests in connection

105

Id.

106

Id. (emphasis added).

107

Comp. Gen. B-290682, Sep. 18, 2002, 2002 CPD ¶ 157.

108

Id. at 1-3.

109

Id. at 2.

110

Id.

111

Id. at 3.

112

Id. at 4.

113

Id.

114

Id.

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with the actual or proposed issuance of an individual task

or delivery orders [sic] under those contracts. This view

is consistent with the legislative history to this particular

section, which was enacted in the Federal Acquisition

Streamlining Act of 1994 (FASA), Pub. L. No. 103-355,

108 Stat. 3243, 3253. Specifically, the Joint Explanatory

Statement of the Committee of Conference states:

In addition, the conference agreement would

provide general authorization for the use of task

and delivery order contracts to acquire goods and

services other than advisory and assistance

services. The conferees note that this provision

is intended as a codification of existing authority

to use such contractual vehicles. All otherwise

applicable provisions of law would remain

applicable to such acquisitions, except to the

extent specifically provided in this section.

H.R. C

ONF. REP. NO. 103-712, at 181 (1994). The

requirements of the Small Business Act and its

implementing regulations, including the predecessor

regulation to FAR § 19.502-2(b), were applicable to

acquisitions prior to the enactment of FASA, and nothing

in that statute authorizes the transfer of acquisitions to

ID/IQ contracts in violation of those laws and

regulations.

115

The GAO next addressed the timeliness issue of a contractor being able

to protest a solicitation that had been issued years earlier by stating, “. . . the

increasing use of ID/IQ contracts with very broad and often vague statements

of work may place an unreasonable burden upon potential offerors, who may

be required to guess as to whether particular work, for which they are

interested in competing, will be acquired under a particular ID/IQ contract.”

116

The GAO felt that the burden was particularly problematic for small

businesses.

117

Based on these findings, the GAO concluded “. . . LBM could

not reasonably be aware, and required to protest, at the time the LOGJAMMS

contracts were being competed . . . that the broad and nonspecific scope of

work in the LOGJAMSS solicitation could be improperly used as a vehicle for

the agency to perform the motor pool services at Fort Polk without first taking

115

Id. at 4-5.

116

Id. at 5.

117

Id.

Federal Acquisition Streamlining Acts-301

the steps legally required regarding a possible further acquisition of that work

under a small business set-aside.”

118

Citing 4 C.F.R. § 21.2(a)(1), the GAO

found the protest to be timely because it was filed at the GAO within 10 days

of the contractor learning of the basis of its protest.

119

The GAO appears to be setting a dangerous precedent by permitting a

contractor to protest an IDIQ solicitation years after the issuance of the

solicitation. In these two particular cases, the GAO assisted a local business

and a small business by granting them jurisdiction, but the holdings are not

limited to such contractors. Using the GAO’s theory, a contractor not a party

to an IDIQ contract that is unhappy with the way a task or delivery order is

issued under that contract can protest the order alleging that it was not

reasonably aware at the time of the IDIQ solicitation that the contract could be

used to procure a supply or service in a manner that it believes violates a

regulation. In addition, in light of the fact four of the nine IDIQ contractors in

LBM, Inc., were small or disadvantaged businesses, the GAO does not

adequately explain why LBM, Inc., had an unreasonable burden placed on it as

a result of the LOGJAMSS contract. Even a small business should be aware

that an IDIQ contract for regional logistics work will potentially cover motor

pool services at a military base within that region.

In its development of this theory, the GAO again uses legislative intent

to overcome the plain language of FASA’s protest restrictions. This is

concerning in light of the Court of Federal Claims’ finding that the Act’s

legislative history shed no meaningful light on the scope of the task order

protest bar.

120

Also, the GAO again fails to comment at all on whether there is

any requirement for a contractor to file a complaint with an agency’s task and

delivery order ombudsman when it believes it has been treated unfairly.

D. Task and Delivery Order Dispute Actions under the Contract Disputes

Act

Two recent cases at the Boards of Contract Appeals (“BCA”) have

permitted IDIQ contractors to bring CDA actions against the government

based on a theory that the government did not follow the IDIQ contracts’ fair

opportunity procedures, procedures that FASA requires be inserted in all IDIQ

contracts.

121

118

Id. at 5-6.

119

Id. at 6-7.

120

See discussion of Labat-Anderson, Inc. v. United States, 50 Fed. Cl. 99, 105 (2001), at pp.

16-18 supra.

121

The CDA provides the primary statutory guidance for rendering a judgment upon any claim

founded on an express contract with the United States. 28 U.S.C. § 1491(a) (2005); 41 U.S.C.

§ 602(a) (2005).

302-The Air Force Law Review

In Burke Court Reporting Co.,

122

the Department of Justice entered into

a multiple-award IDIQ contract with two contractors to provide court reporting

and deposition services.

123

The solicitation for the IDIQ contract informed

bidders “. . . that the determination as to who will receive a purchase order

‘will be made on the basis of what is in the best interest of the Government,

taking into account factors such as availability and suitability of contractor

resources, quality of contractor past performance and prices.’”

124

Although

awarded an amount in excess of the guaranteed minimum, the petitioner

contractor received only a small fraction of the total work and filed a certified

claim against the government for breach of contract.

125

In contesting the claim, the government did not raise the issue that the

claim was essentially a protest of the issuance of task orders in violation of

FASA, nor did the board address this issue. Instead, the government argued

that since the contractor had received orders in excess of the guaranteed

minimum set forth in the contract, the terms of the contract had been met.

126

The board rejected the government’s argument and found that it had

jurisdiction to determine whether the government had violated its implied

obligation to act in good faith during contract performance based on the

allegation the contracting officer ignored factors that the contract required to

be considered before a task order was issued.

127

The board held that the

government “. . . chose to insert a provision informing bidders . . .” of the fair

opportunity procedures, apparently unaware that the FAR requires that such

procedures be placed in the solicitation.

128

In Community Consulting Int’l,

129

the multiple-award task order

contract at issue was for technical services associated with sustainable urban

management. It included a clause entitled “FAIR OPPORTUNITY TO BE

CONSIDERED” that listed, “[p]ursuant to FAR 16.505,” the fair opportunity

procedures that the government would use when awarding task orders.

130

Thus, the government followed the directive of 48 C.F.R. § 16.504(a)(4)(iv)

and put the required procedures in the contract. The IDIQ contract was

awarded to six contractors, and the petitioner contractor received task orders

aggregating to more than $1.7 million during the contract’s first 18 months,

slightly less than 5% of the total value of all task orders issued.

131

Based on its

allegation that it was only given the opportunity to bid on 26 of the first 51 task

122

97-2 B.C.A. (CCH) ¶ 29,323, 1997 DOT BCA LEXIS 11 (1997).

123

B.C.A., 1997 LEXIS at *1-*2.

124

B.C.A., 1997 LEXIS at *10-*11 (quoting Solicitation No. JOUSA-96-R-0001).

125

B.C.A., 1997 LEXIS at *6-*7.

126

B.C.A., 1997 LEXIS at *10-*13.

127

B.C.A., 1997 LEXIS at *10-*13.

128

B.C.A., 1997 LEXIS at *11 (emphasis added). See discussion of 48 C.F.R. §

16.504(a)(4)(iv) (2002), at p. 11 supra.

129

A.S.B.C.A. No. 53489, 02-2 BCA ¶ 31,940 at 1 (2002).

130

Id. at 3-4.

131

Id. at 6.

Federal Acquisition Streamlining Acts-303

orders awarded, the contractor filed a CDA claim, alleging the government

breached its duty to provide it a fair opportunity to compete and that, as a

result, it should have been awarded more task orders.

132

The contractor further

asserted that for the term of the IDIQ contract, it should be awarded

approximately 25% of the contract’s estimated total of $110 million in task

orders, or $27.5 million in task orders.

133

The board in Community Consulting Int’l first rejected the

government’s argument that FASA prohibited a CDA claim for an alleged

breach of a contractual duty to provide a fair opportunity to compete for task

orders by stating, “. . . respondent does not cite to any provision of FASA, and

we know of none, in which Congress explicitly carved out multiple-award, task

order contracts as an exception to our Contract Disputes Act jurisdiction.”

134

Instead, the board found that the alleged breach was “. . . rooted squarely in the

contractual promise . . .” found at the fair opportunity clause.

135

The board

also rejected the government’s argument that the agency’s task and delivery

order ombudsman provided the contractor its exclusive remedy.

136

It based

this finding, in part, on the portion of the Act’s legislative history that states

that otherwise applicable provisions of law remain applicable, except to the

extent specifically provided for by FASA.

137

The board also rejected the

government’s argument that it had met its contractual obligations to the

contractor by ordering “34 times the $50,000 minimum” of the IDIQ

contract.

138

It held that “[w]hile the minimum quantity represents the extent of

the Government’s purchasing obligation, . . . it does not constitute the outer

limit of all of the Government’s legal obligations under an indefinite quantity

contract.”

139

In neither of these cases did the boards scrutinize the facts to determine

whether the contractors had filed task order protests. Since a protest cannot be

filed at a BCA, to determine whether these actions were protests the boards

should have looked at the statutory definitions for the term as it is used at the

GAO and the Court of Federal Claims. For actions filed at the GAO, a protest

is defined as “. . . a written objection by an interested party to . . . [a]

solicitation or other request by a Federal agency for offers for a contract for the

procurement of property or services . . .” or “. . . [a]n award or proposed award

of such a contract.”

140

For actions filed at the Court of Federal Claims, a

protest is defined as “. . . an action by an interested party objecting to a . . .

132

Id. at 6-9.

133

Id. at 7.

134

Id. at 10.

135

Id. at 9.

136

Id. at 10.

137

Id. (citing H.R. CONF. REP. NO. 103-712, reprinted in 1994 U.S.C.C.A.N. 2607, 2611).

138

Id. at 13.

139

Id.

140

31 U.S.C. § 3551(1)(A)-(C) (2005).

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proposed award or the award of a contract . . ..”

141

For post-award protests,

the Court of Federal Claims has adopted the GAO’s definition of interested

party – “. . . ‘an actual or prospective bidder or offerror [sic] whose direct

economic interest would be affected by the award of the contract or by a

failure to award the contract.’”

142

The claims filed by both contractors are

actions that meet these definitions of protests – they are objecting to the award

of task orders to other contractors. Likewise, both contractors are interested

parties – they assert in their claims that their direct economic interests have

been affected by the government’s failure to award them the task orders.

The board in Community Consulting Int’l got around FASA’s protest

restrictions by couching the action in terms of a contract dispute arising from

the government’s failure to give the contractor a fair opportunity to compete

for all task orders as required by the IDIQ contract. However, a contract

cannot give to a contractor what Congress has expressly taken away – the

ability to protest the award of a task order.

143

As the Court of Appeals for the

Federal Circuit stated in Coastal Corp., et al. v. United States, “[j]urisdiction .

. . cannot be conferred by waiver or acquiescence” on the part of the

government.

144

Neither board addressed the fact that contracting officers are required

by statute and regulation to put fair opportunity procedures in all multiple-

award IDIQ contracts. Based on these decisions, an agency potentially will be

punished if it follows this mandate when awarding an IDIQ contract because it

subjects itself to the possibility of a future CDA claim based on an allegation

that the procedures were not followed during the award of an order; whereas

another agency, which ignores the requirement, does not face such a risk.

While not discussed in Burke Court Reporting Co., the board in

Community Consulting Int’l addressed the issue of the task and delivery order

ombudsman. It found that the ombudsman forum is not the exclusive place of

remedy for an IDIQ contractor. By granting jurisdiction, however, the board

undermined FASA’s stated purposes of encouraging efficient contracting

through the use of IDIQ contracts and giving wide latitude to contracting

officers. Based on these holdings, the BCAs may be deluged in the coming

years with lawsuits from contractors unhappy they were not selected for task or

delivery orders. The resulting unbridled ability to file lawsuits will leave the

IDIQ contracting system less efficient than standard contract solicitations and

the bid protest system in place for such contracts because IDIQ contractors will

141

28 U.S.C. § 1491(b)(1) (2002).

142

Cincom Systems, Inc. v. United States, 37 Fed. Cl. 663, 669 (1997) (quoting 31 U.S.C. §

3551(2)).

143

See RESTATEMENT (SECOND) OF CONTRACTS § 179(a) (1981) (“A public policy against the

enforcement of promises or other terms may be derived by the court from (a) legislation

relevant to such a policy . . . .”).

144

713 F.2d 728, 730 (Fed. Cir. 1983).

Federal Acquisition Streamlining Acts-305

have jurisdiction available to them to have any complaint heard regarding the

awarding of task or delivery orders.

145

Another concern that arises from these board opinions is their rejection

of the government’s argument that it had met its contractual obligations to the

contractors by ordering the IDIQ contracts’ guaranteed minimums. In Travel

Centre v. Barram,

146

the Court of Appeals for the Federal Circuit held that

once the government purchases from a contractor the minimum guaranteed

under the IDIQ contract, it has met its legal obligations under the contract.

147

Accordingly, an IDIQ contract “. . . requires the government to order only a

stated minimum quantity of supplies or services[,] . . . [and] once the

government has purchased the minimum quantity stated in an IDIQ contract

from the contractor, it is free to purchase additional supplies or services from

any other source it chooses.”

148

The court concluded in Travel Centre that an

IDIQ contractor cannot have a “. . . reasonable expectation that any of the

government’s needs beyond the minimum contract price . . .” will be satisfied

under the contract.

149

Finally, the potential for sizable monetary damages being awarded

makes it likely that numerous future actions similar to these two BCA cases

will occur. For example, in Community Consulting Int’l, the contractor’s

damages claim centered on its allegation that if the terms of the IDIQ contract

had been enforced throughout the term of the contract, it would have received

a total of about $27.5 million in task orders. Thus, the amount of damages

sought in claims such as these easily can easily reach multi-million dollar

levels. Of even greater concern is the fact that calculating damages in cases

like these is almost impossible. Even if it is established that a contract requires

the government to give every IDIQ contractor a fair opportunity to compete for

every task order and that requirement is breached, the contractor’s damages

should not be the profits it estimates it would have received if it had been

awarded the contract. First, if the contractor had been fairly considered for the

task order, that does not mean the contractor would have been selected for

145

48 C.F.R. §§ 33.101-06 (2005) provides guidance on how a bid protest is to be legally

addressed when a contract solicitation has occurred. No such guidance exists on how to

address an IDIQ contractor that protests its failure to be selected for a task order.

146

236 F.3d 1316 (Fed. Cir. 2001).

147

Id. at 1319. See also Mason v. United States, 222 Ct. Cl. 436, 443 n.5 (1980) (“. . . the

buyer is required to purchase at least this minimum amount [of an IDIQ contract], but this is

the extent of his legal obligation. He can purchase more if he chooses to but is under no

obligation to do so.”); Varilease Tech. Group, Inc. v. United States, 289 F.3d 795, 799 (Fed.

Cir. 2002) (“[a]n ID/IQ contract . . . does not oblige the buyer to purchase more from the

seller than a stated minimum quantity . . . .”); J. Cooper & Assocs, Inc. v. United States, 53

Fed. Cl. 8 (2002). While none of these cases involve multiple-award IDIQ contracts, the

opinions do not make a distinction between multiple and single award IDIQ contracts nor do

they imply that the holdings apply only to single-award IDIQ contracts.

148

Id.

149

Id.

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award of the task order. Second, anticipatory profits cannot be calculated with

any accuracy on a contract for which a contractor, at most, has done nothing

more than prepare a proposal. As the court stated in Hi-Shear Tech. Corp. v.

United States, the government does not have to award damages that are remote

and consequential.

150

It seems highly unlikely that a contractor could prove

damages in these type cases with “. . . sufficient certainty so that the

determination of the amount of damage would not be pure speculation.”

151

VI. RECENT CONGRESSIONAL ACTION ON TASK AND

DELIVERY ORDERS – SECTION 803 OF THE NATIONAL DEFENSE

AUTHORIZATION ACT FOR FISCAL YEAR 2002

In an attempt to improve the IDIQ contract procurement process

through more competition, Section 803 of the National Defense Authorization

Act for Fiscal Year 2002

152

requires the DoD to ensure that any purchase of a

service in excess of $100,000 made under a multiple-award contract be made

on a competitive basis unless: (1) a contracting officer prepares a written

justification that states one of FASA’s four exceptions to the fair opportunity

to be considered requirement applies; or, (2) a statute expressly authorizes or

requires that the purchase be made from a specified source.

153

It also requires

that before the DoD purchases such a service: (1) all contractors offering such

services under the multiple-award contract, or at least “as many contractors as

practicable,” must have been provided a fair notice of the intent to make the

purchase (including a description of the work to be performed and the basis on

which the selection will be made); (2) all contractors responding to the notice

must have been given a fair opportunity to make an offer; and, (3) all offers

must have been fairly considered.

154

The requirements of Section 803 have been promulgated in the Defense

Federal Acquisition Regulation Supplement (“DFARS”). In addition to the

above requirements, DFARS states that the contracting officer: (1) should

keep contractor submission requirements to a minimum; (2) may use

streamlined procedures, including oral presentations; (3) shall consider price or

cost under each order as one of the factors in the selection decision; and, (4)

150

53 Fed. Cl. 420, 436 (2002).

151

G & H Mach. Co. v. United States, 16 Cl. Ct. 568, 571 (1989).

152

Pub. L. No. 107-107, 115 Stat. 1012, 1178-80 (2001). This section of the National Defense

Authorization Act for Fiscal Year 2002 is entitled “Competition Requirement for Purchase of

Services Pursuant to Multiple Award Contracts.”

153

Id. at § 803(b)(1)(A). See note 24 supra for the exact language of FASA’s four exceptions.

154

Id. at § 803(b)(2)-(3). If the contracting officer did not provide notice to all contractors

offering such services but instead only provided notice to “as many contractors as practicable,”

the purchase will not be authorized unless: (1) offers were received from at least three

qualified contractors; or (2) a DoD contracting officer made a written determination that,

despite reasonable efforts, he or she could not identify any other qualified contractors. Id. at §

803(b)(4).

Federal Acquisition Streamlining Acts-307

should consider past performance on earlier orders under the contract,

including quality, timeliness, and cost control.

155

While the efforts of Congress to improve the fairness of the IDIQ

contracting system are admirable, the provisions of this section do not do

anything to clarify the scope of FASA’s protest restrictions or the role of the

task and delivery order ombudsman. In addition, the section only applies to

the procurement of services by the DoD. Thus, non-DoD agencies need not

abide by its provisions, and its provisions do not apply to supply procurement

actions done by the DoD using multiple-award delivery order contracts. Quite

simply, Congress must do much more to define how competition should occur

and how contractor complaints should be addressed when multiple-award IDIQ

contracts are used.

VII. RECOMMENDATIONS TO IMPROVE MULTIPLE-AWARD

TASK AND DELIVERY CONTRACTING

In light of the areas discussed in this paper, Congress must take action

to better define the scope of FASA. While the goals of the Act as expressed in

the legislative history are commendable, recent judicial and administrative

actions have addressed issues that the statutory language of FASA does not

adequately cover. For example, it is not entirely clear that the scope of the Act

was not meant to include GSA FSS contracts. Of even more importance is

whether the Act truly meant to exclude “downselection” decisions from its

restrictions. Also, Congress needs to determine to what extent, if any, FASA

was meant to limit a contractor from contesting the issuance or proposed

issuance of task or delivery orders by protesting the solicitation of the

underlying IDIQ contract.

Congress also needs to remove the requirement that an IDIQ contract’s

fair opportunity procedures be placed in the contract. The potential for a

plethora of CDA actions resulting from this requirement could eventually drive

agencies to stop awarding multiple-award IDIQ contracts. No agency will

want to risk paying millions of dollars in damages if a contractor is able to

establish a breach of contract just for the sake of using task and delivery order

contracting. If Congress does not tackle this issue by either removing the

requirement that fair opportunity procedures be put in IDIQ contracts or by

stating that such claims do not fall under CDA jurisdiction, FASA may end up

causing the reverse of what it was intended to accomplish – the use of

multiple-award IDIQ contracts may decrease.

If Congress does not address the CDA issue, or even if it eventually

does take such action, the FAR Council should act immediately in response to

the recent BCA cases discussed above. It should draft a clause, using as

simple and uncomplicated language as possible, that lists the procedures that

155

48 C.F.R. § 216.505-70(d) (2005).

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will be followed to ensure all IDIQ contractors are afforded a fair opportunity

to compete for orders. This clause can be adapted for individual situations by

contracting officers, but it at least will give contracting officers a place to start

as they struggle with the requirement of putting such procedures in the

contract. If this proposal is implemented, consistency among contracts should

reduce the potential for an excessive number of CDA claims being filed by

contractors alleging that fair opportunity procedures were not followed.

The clause also should state that the government is only liable for costs,

if any, incurred as a result of the government’s failure to follow fair

opportunity procedures. The clause should make it clear that contractors will

not get profits on these costs or any anticipatory profits. It also should state

that costs are limited to those incurred by a contractor in preparation of a task

or delivery order proposal that was not fairly considered by the government as

specified by the fair opportunity procedures incorporated into the underlying

IDIQ contract. Such a clause would eliminate the possibility of large damages

for anticipatory profits based on a breach of contract theory and reduce the

possibility of the fair opportunity procedures having “the unintended effect of

bogging down the federal procurement process.”

156

Finally, it is imperative that Congress better define what role the task

and delivery order ombudsman is supposed to play when a contractor makes a

complaint involving the award of a task or delivery order. If the position is

going to make any impact on streamlining the procurement system, there

should be a requirement that, at the very least, a task or delivery order

complaint involving a matter other than an allegation that the order increases

the scope, period or maximum value of the underlying IDIQ contract must first

be brought to the attention of the ombudsman for potential action before an

administrative or judicial review of the allegation can take place. Without such

a requirement, the ombudsman position does not seem to serve a purpose

because contractors appear to be ignoring that potential source of relief.

The ombudsman also should be given statutory authority to take action

when a task or delivery order has been handled in an improper manner.

Congress should set up a framework that gives the ombudsman: (1) the

necessary independence to make such a decision; (2) the authority to prevent

an agency from issuing a task or delivery order that violates statutory or

regulatory guidance; and, (3) if an improper order has already been issued, the

authority to terminate for convenience the award, thereby forcing the agency to

reprocure the good or service following proper procedures.

VII. CONCLUSION

156

See note 16 supra and accompanying text.

Federal Acquisition Streamlining Acts-309

FASA hoped to “transform [the] outmoded system of regulating defense-

dependent industries . . . .”

157

It accomplished that goal to a certain extent by

strongly encouraging the use of multiple-award IDIQ contracts. Recent

judicial and administrative opinions have cast doubt on the scope of the Act,

however, and Congress must take action to clarify issues raised in the opinions.

Without clarifying action, contracting officers may return to their former

reluctance to use multiple-award IDIQ contracts because of uncertainty as to

the ramifications of their use. Without Congressional action, contracting

officers may come to prefer the relative safety and inefficiency of single-award

IDIQ contracts over the use of multiple-award IDIQ contracts due to their

unwillingness to subject their agencies to the risks of incurring long protest

delays and large damages awards resulting from CDA claims.

157

S. REP. NO. 103-259, at 6 (1994), reprinted in 1994 U.S.C.C.A.N. 2598, 2602.

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