No, the Law of War does not always require the use of precision munitions – and that’s a good thing for the US

In a front page story (22 Feb.) carrying the headline “U.S. Slams Russia’s ‘dumb’ bombs” the Washington Times reports that the “U.S. military says [Russia’s] bombers still drop mostly gravity “dumb” bombs as the West accuses Moscow of indiscriminately killing rebels and civilians alike around strategic cities such as Aleppo.”

The obvious initial question: is it illegal, per se, to use of ‘dumb’ bombs?  Not according to the U.S.’s new Law of War Manual.  To the contrary, the Manual (para 5.11.3) says there would “be few, if any, instances in which the use of a particular weapon system, such as precision-guided munitions…would be the only legally permissible weapon.” (Italics added).

Later, in para 14.9.2 the Manual reiterates:

It must be emphasized, however, that the selection of the appropriate weapon for conducting an aerial bombardment remains primarily a military judgment rather than a legal one. In particular, there is no law of war requirement to use precision-guided weapons when non-precision-guided weapons may be used in compliance with the law of war.

In short, as the Manual indicates, it is rather well-settled that there is no legal requirement to use precision munitions (which the Pentagon defines as a “guided weapon intended to destroy a point target and minimize collateral damage.”)

This is a good thing for the U.S. for a number of reasons.  In the first place, even with the languid pace of US air operations against ISIS, reports have surfaced that the U.S. is running out of precision-guided bombs.  This is something to consider because in a future conflict against a far more dangerous major power it is quite likely that non-precision munitions will need to used, and perhaps in large numbers as inventories of costly ‘smart’ bombs could become rapidly exhausted.

Let’s not forget that in 2011 during the relatively modest air campaign against a third-rate power – Libya – NATO itself ran short of precision weapons.  Think about it: a 28-nation coalition of rather wealthy, developed countries runs short of smart bombs fighting not a resurgent Russia or crazed North Korea with its million-man army, but Libya.

Secondly, the main weapon of a key U.S. aircraft – the A-10 – in today’s fight against ISIS is its “20-foot-long, 2.5-ton, seven-barrel Gatling gun that can fire more than 1,100 rounds of 30-mm. bullets” – none of those 1,100 rounds is a precision munition.    Actually, when you think about it, the vast majority of munitions used in war are not precision munitions as the Pentagon would define them, that is, they don’t guide themselves.  Think of all the bullets, hand grenades, and most artillery and even many rocket systems that are in the U.S’s inventory as well as those of virtually every country in the world that cannot guide themselves.

The aiming of most general purpose, non-precision munitions is done by the attacker, often aided by different kinds of technology on the launch platform.  In the case of a rifle, it is the shooter using a gun sight; in the case of the A-10 and its fearsome Gatling gun, it is targeted by the pilot aided by on-board systems.  There is nothing illegal about this process.  Indeed, you can have “precision attack” without precision munitions.

The Washington Times reports that the Russians “contend that gravity bombs, guided by computerized systems, can be just an accurate as those directed by a GPS system, a laser or TV optics.”  I’m not so sure that those systems can always be “as accurate” but that is not the same thing as saying that they are, ipso facto, unlawfully inaccurate.  The aircraft of many nations – including the US – routinely rely upon onboard targeting systems to give accuracy to munitions that don’t have their own internal guidance technology.

Of course, using any sort of munition to indiscriminately attack civilians is a very serious offense against the law of war, and this seems to be what the US is alleging about the Russian air campaign.  Maybe so, but make your own judgment: according to a recent (13 Feb.) BBC report, a human rights group claims that 1,015 civilians have been killed by Russian airstrikes.  In addition, ABC News has previously reported (20 Jan) that the Russians said they have flown “5,700 sorties striking 10,000 targets” – claims that have not been rebutted and, given the tenor of news reports about the ferocity of the Russian aerial “onslaught,” the figures are likely to be much higher today.

So considering those numbers (and assuming their accuracy) here’s the question:  Does one civilian casualty for every five or six sorties, or one civilian casualty for every ten targets attacked, sound like an indiscriminate bombing campaign to you?  Of course, every civilian death is a tragedy, and  – yes – there can still be instances of indiscriminate attacks even with those numbers.  Moreover, there are real legal constraints in targeting areas where there are concentrations of civilians.  Nevertheless, wouldn’t it be helpful if the US released more information in support of its charges?  Serious charges deserve serious supporting data and evidence.

What about attacks against enemy forces?  How “discriminate” do they need to be?  Here’s what the Manual says:

5.6 DISCRIMINATION IN CONDUCTING ATTACKS Under the principle of distinction, combatants may make enemy combatants and other military objectives the object of attack, but may not make the civilian population and other protected persons and objects the object of attack.

5.6.1 Persons, Objects, and Locations That Are Not Protected From Being Made the Object of Attack. Combatants may make enemy combatants and other military objectives the object of attack.

This means that that the concept of “discrimination” is a restraint designed to protect civilians, not enemy combatants.  Put another way, it isn’t meant to require some kind of discrimination among lawful enemy combatants.  Thus, for example, if an area is composed exclusively of enemy combatants it may be made the object of attack (e.g., an enemy military base).  To be clear, with respect to areas like cities, you cannot lawfully make the whole city a target, even if there are substantial numbers of enemy fighters embedded in it. (I’ll go into more detail about this in a future post as the nuances of area attacks can be complex).

Still, when making serious criminal allegation, the specifics matter.  In another troubling example of getting the law wrong, the New York Times, in decrying Russian airstrikes, apparently thinks that “cluster munitions and unguided bombs” are “banned” weapons.  As we have seen, “unguided” bombs are not themselves “banned” weapons; the bomb need not “guide” itself if there is some other targeting process in place that allows conformance with the law of war.

Cluster munitions are banned only for parties to the Convention on Cluster Munitions, a treaty to which, incidentally, the US, Russia, and Syria are not parties.  The US as a matter of policy and normal targeting law, does restrict their use, but the fact remains that they are legal for non-party members, and in certain circumstances can actually be the preferred weapon in terms of civilian avoiding civilian casualties.

All of this is a reminder that the law of war, and especially jus in bello, is nonpartisan and non-ideological.  This means that even if we loathe an enemy’s politics or war aims, it is still possible that they are waging war in compliance with the law.  Yes, we absolutely should allege war crimes when appropriate, but we should not do so simply because we believe the belligerent’s cause is unjust. This is an extremely important foundational principle of the law of war.  As Adam Roberts puts it:

The ‘equal application’ principle is that in international armed conflicts, the laws of war apply equally to all who are entitled to participate directly in hostilities, irrespective of the justice of their causes….It is the strongest practical basis that exists, or is likely to exist, for maintaining certain elements of moderation in war.

The rival proposition – that the rights and obligations of combatants under the laws of war should apply in a fundamentally unequal manner, depending on which side is deemed to be the more justified – is unsound in conception, impossible to implement effectively and dangerous in its effects.

Italics added.