# TEARING DOWN THE faCade: A CRITICAL LOOK AT THE CURRENT LAW ON TARGETing the will of the enemy AND AIR FORCE DOCTRINE {#tearing-down-the-facade-a-critical-look-at-the-current-law-on-targeting-the-will-of-the-enemy-and-air-force-doctrine .unnumbered}

#  {#section .unnumbered}

# [Major Jeanne M. Meyer]{.smallcaps}[^1] {#major-jeanne-m.-meyer .unnumbered}

#  {#section-1 .unnumbered}

# **I. INTRODUCTION** {#i.-introduction .unnumbered}

#  {#section-2 .unnumbered}

Wars are rarely fought for the pure joy of battle. Rather, as Carl von
Clausewitz noted in the early 19^th^ century, war is most often "a true
political instrument, a continuation of political intercourse, carried
on with other means."[^2] Moreover, "the destruction of the military
forces of the enemy is not now and never has been the objective of war;
it has been merely a means to an end--merely the removal of an obstacle
which lay in the path of overcoming the will to resist."[^3]

For as long as nations have wielded war as a political instrument, men
have also attempted to regulate or limit war.[^4] The most recent
comprehensive efforts to regulate the conduct of war are found in
Protocols I and II to the Geneva Conventions and were completed over
twenty years ago.[^5] Portions of the Protocols codify and reflect basic
principles of the laws of war, such as the principle of distinction and
the prohibition against infliction of unnecessary suffering.[^6] Other
articles, and one in particular, Article 52(2) of Protocol I, may not
necessarily reflect customary international law or state practice. On
its face, Article 52(2) may appear consistent with customary
international law and state practice,[^7] however, the definition of a
military objective in Article 52(2) arguably allows for the imposition
of new limits on targeting inconsistent with prior customary
international law and state practice. The specific language that focuses
on the military aspect of a potential target creates these limitations.
In addition, the international community restrictively interprets the
language of Article 52(2), particularly what constitutes a military
advantage or a contribution to military action.[^8] As a result, some in
the international community are increasingly questioning the legality of
targets previously considered legitimate military objectives.

When interpreted in such a restrictive way, Clausewitz' observations of
war as an extension of politics are disregarded. Previously legitimate
targets, whose destruction provided a psychological or strategic
advantage, potentially fail under current restrictive interpretations of
what contributes to a military effort or provides a military advantage.
These restrictions should concern air power advocates in particular as
they limit some of the most fundamental and powerful applications of air
power during combat. Furthermore, the ultimate result may be that the
drafters, and those who wish to interpret and apply Article 52(2)
restrictively, unwittingly increase the potential human cost of conflict
to both sides.

Using the application of air power as the context, this article will
review the historical background of targeting and regulations relating
thereto to delineate customary international law and state practice. It
will analyze Article 52 in light of customary international law and
state practice. It concludes that, as it is increasingly interpreted and
applied, Article 52 does not accurately reflect customary international
law or current state practice. Attempts to apply Article 52 in such an
overly restrictive manner unnecessarily restrict commanders from
striking legitimate strategic targets and may even increase the loss of
combatant and noncombatant life. An interpretation and application of
Article 52 to reflect the realities of war would better serve both the
warrior and the protected civilian.

II\. Development of International Law Regulating Air Warfare

#  {#section-3 .unnumbered}

Article 52(2) states:

> Attacks shall be limited strictly to military objectives. In so far as
> objectives are concerned, military objectives are limited to those
> objects which by their nature, location, purpose or use make an
> effective contribution to military action and whose total or partial
> destruction, capture or neutralization, in the circumstances ruling at
> the time, offers a definite military advantage.[^9]

As stated in the first sentence, targeting is limited to attacking only
"military objectives." Furthermore, an attack is legitimate only if it
provides a "definite military advantage." In order to fully analyze
Article 52(2)'s definitions of military objective and military
advantage, it is important to understand how, or if, previous
conventional and customary international law defined these terms.[^10]
Thus, the following section addresses the development of targeting under
conventional and customary international law, focusing in particular on
developments concerning the application of air power in combat.[^11]

## **Principles of International Law Regulating Air Warfare**

##  {#section-4 .unnumbered}

The chief of the RAF Bomber Command during World War II, Air Marshal
Arthur Harris, concluded after the war that "\[i\]nternational law can
always be argued pro and con, but in this matter of the use of aircraft
in war there is, it so happens, no international law at all."[^12] While
perhaps not entirely true, Air Marshal Harris' statement concerning the
regulation of air warfare by international law was more true than not.
By the mid-twentieth century, only a few basic principles of the law of
war, in combination with outdated conventional law, regulated the
conduct of air warfare.

### Basic Principles of International Law Regulating Air Warfare

###  {#section-5 .unnumbered}

The most basic principle underlying the law of war has always been that
of discrimination--more commonly known as distinction.[^13] The
principle of distinction requires that an attacker direct his efforts
against only enemy military objects and objectives.[^14] This principle
generally provided civilians and noncombatants with "an absolute moral
immunity from direct, intentional attack,"[^15] and was commonly
referred to as providing noncombatant immunity. However, this immunity
was not consistently accorded. Death of noncombatants was acceptable if
they died as an ancillary to an attack on a lawful target.[^16] Thus, if
the death or injury to civilians was an indirect and unintentional
result of a lawful attack, then the requirement of distinction was
met.[^17]

The natural derivative of distinction is the principle of military
objective.[^18] If one is entitled to target only "lawful" targets, and
incidental injury to noncombatants is acceptable only as an indirect and
unintended consequence of striking a lawful target, then the definition
of what is a lawful target becomes paramount. The somewhat circular
answer to this question is often the response that lawful targets are
all military objectives. As discussed below, several attempts were made
to define what constituted a military objective.[^19] For various
reasons, however, states did not accept these proposed definitions, and
left the determination of what constituted a military objective
primarily to the attacker.[^20]

In addition to the limitations imposed by the principle of distinction
and the requirement of striking only military objectives, classic law of
war also required that attacking the target was a military
necessity.[^21] A Nuremberg tribunal articulated the customary law
principle of military necessity in *United States v. List*:

> 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 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.[^22]

The principle of military necessity then, similar to the principle of
distinction, acknowledges the potential for unavoidable civilian death
and injury ancillary to the conduct of legitimate military operations.
However, the principle of military necessity adds to distinction's
requirement for targeting only a military objective. Military necessity
adds the additional requirement that destroying a particular military
objective will provide some type of advantage in overcoming the enemy.

Thus, several basic principles of customary international law that
governed the use of all force, including air power, existed by the
mid-twentieth century. Attackers were required to distinguish between
military objectives and civilians, targeting only military objectives.
Further, the destruction of a target had to provide some military
advantage to the attacker.

### Conventional International Law Regulating Air Warfare

###  {#section-6 .unnumbered}

The basic principles discussed above were not only considered customary
international law, but also were articulated in several international
legal documents. Dr. Francis Lieber wrote one of the first modern
statements of the law of war.[^23] During the Civil War, President
Lincoln requested that Lieber write a code of law summarizing the
customary practice of nations as it existed at the time.[^24] President
Lincoln then adopted and issued Lieber's code to the Union Army as Union
Army General Order No. 100.[^25] The Lieber Code, as it is commonly
known, contained several articles articulating basic principles of the
law of war. Articles 14 and 15 recognized the principle of military
necessity:

> 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 . . .
> .[^26]

The Lieber Code also formally recognized the principle of distinction in
Article 22:

> Art. 22. Nevertheless, as civilization has advanced during the last
> centuries, 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.[^27]

The principle of distinction, however, was not without exception. Lieber
specifically states that "\[p\]ublic war is a state of armed hostility
between sovereign nations or governments," and therefore "\[t\]he
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."[^28] Lieber therefore reflected in his code
the prevailing belief of the time that while civilians should not be
directly targeted, nevertheless they did not remain immune from injury
during combat.

Five years later, the St. Petersburg Declaration tacitly recognized the
principle of distinction.[^29] Although the purpose of the Declaration
was to prohibit a certain type of bullet, its preamble states "\[t\]hat
the only legitimate object which States should endeavor to accomplish
during war is to weaken the military forces of the enemy."[^30] The
Declaration did not, however, address exactly how one was entitled to
weaken such forces.

At the time of the birth of air power, then, several basic principles of
international law, codified in various documents, regulated the use of
force between states. Upon the arrival of air power and all that its
proponents portended, nations took on the task of drafting law
specifically regulating the use of this new weapon. In August of 1898,
Russia proposed convening an international conference to address issues
of disarmament and weapons regulation.[^31] The conference convened at
The Hague in May of 1899.[^32] One of the items proposed for regulation
was the discharge or launching of weapons from the air.[^33] At the time
of this proposal, "every major army in Europe had for some time been
making an ongoing investment in military aeronautics."[^34]

Although little more than observation from balloons had been done by
this time, nations recognized the future potential for using balloons to
drop explosives.[^35] In response to such uncertainty, the Russians
proposed a permanent ban on the discharge of explosives or projectiles
from balloons.[^36] Initially the commission working on the proposal
voted unanimously to adopt the resolution.[^37] Ultimately, however, the
ban was limited to five years, the final treaty stating that the parties
agreed "to prohibit, for a term of five years, the launching of
projectiles and explosives from balloons, or by other new methods of a
similar nature."[^38] This limited ban effectively allowed nations to
take a wait-and-see attitude regarding possible future uses of air
power. It also shifted the dynamic regarding air power from one of
prohibition to one of regulation. From its inception, air power and its
potential proved too alluring for nations to relinquish completely.

The Second Hague Peace Conference convened in 1907.[^39] Perhaps due to
the rapid advancement of air power in the previous eight years, little
enthusiasm existed for renewing the 1899 prohibition.[^40] Although the
Conference's attempt to regulate air warfare specifically did not go
very far, the Conference did regulate air warfare through conventions
regarding land and sea forces. Article 25 of the 1899 Convention on Land
Warfare was amended to include bombardment from the air. It read: "The
attack or bombardment, *by whatever means,* of towns, villages,
dwellings, or buildings which are undefended is prohibited."[^41]
Article 25, then, essentially replaced the prior prohibition on
discharging explosives from balloons or from other new methods, at least
with regards to undefended targets.

Restrictions set out on naval bombardment in Convention (IX) Concerning
Bombardment by Naval Forces in Time of War[^42] proved to be more
relevant. Article 1 of the Convention applied the prohibition against
land forces bombing undefended places to naval forces as well.[^43]
Article 2, however, went on to enumerate items that were not covered by
Article 1's prohibition. These items included military establishments as
well as industries that provided for the armed forces.[^44] For the
first time, parties recognized that the legitimacy of bombardment was
not necessarily related to whether the object was defended, but instead
to whether it had military significance.[^45] Furthermore, foreshadowing
the Army Air Corps' doctrine during World War II, Article 2 recognized
the legitimacy of striking economic or industrial targets that were key
to the enemy's military effort.

Thus, when World War I broke out seven years later, customary law
prohibiting indiscriminate attack and the applicable portions of The
Hague Peace Conferences of 1899 and 1907 constituted the only existing
regulation of air warfare. After WWI, the international community tried
unsuccessfully to modify the existing law regarding air warfare with the
1923 Hague Rules of Air Warfare.[^46] Although never formally accepted,
the proposed provisions are worth noting for two reasons. First, the
proposed conventional rules regulating combat contradicted prior state
practice and military thinking of the time.[^47] Second, the rules
attempted for the first time, in a roundabout way, to define or limit
what constituted a military objective.[^48] Unfortunately, the proposed
definition did not reflect customary international law or past state
practice. Based at least in part on these failures to reflect current
state practice and customary international law, states' "condemnation of
the rules was virtually unanimous," and they "drifted into obscurity,
adopted by no nation, and completely ignored by most aviation
historians."[^49] The world community strongly rejected attempts to
codify the law of air warfare that contradicted customary international
law. This near unanimous rejection became relevant nearly fifty years
later, as the drafters of Protocol I, attempting to once again regulate
air warfare, drew on language similar to that rejected in the 1923 Hague
Air Rules.[^50]

## **Customary International Law---The Practice of States in Air Warfare**

##  {#section-7 .unnumbered}

Perhaps most relevant to determining international law regarding aerial
bombardment is the practice of nations. How nations actually conduct
bombardment campaigns reflects not only their beliefs of what
international law is and what they are legally obligated to follow, but,
over time, also creates customary international law.[^51] Thus, it is
necessary to look briefly at what nations considered to be lawful
targets during various air campaigns. As target selection is primarily
determined by military doctrine and theory,[^52] consideration of the
air power doctrine followed by nations will also be addressed when
assessing their practice.

### World War I

###  {#section-8 .unnumbered}

Although unsure of all its potential future uses, almost all the major
powers began to experiment with military uses for air power when it was
still in its infancy.[^53] There was, however, little agreement upon the
best use for air power.[^54] As a result, the major powers entered World
War I with little coherent doctrine for using air power.[^55] At the
beginning of the war, air power doctrine and technology were still in
the formative years. The war, ironically, provided a "legitimate" arena
for testing and experimenting with various uses of air power.[^56]
Initially, states used air power rather sparingly, primarily for
reconnaissance and ground troop support.[^57] However, by 1917,
advancements in technology and training, combined with "the failure of
the army campaigns of 1916 and the strategic stalemate on the Western
Front promoted greater interest in long-range bombardment."[^58]
Scrutiny of how the warring parties conducted their bombing campaigns,
particularly their choice of targets, reveals their perceptions of the
international legal constraints in effect at the time.

The bombing campaigns of Britain, France, Germany, Italy, and America
all reflect adherence to two, interrelated principles of international
law: (1) the only legitimate targets are military objectives; and (2)
indiscriminate bombing is prohibited.[^59] As far as what was considered
a military objective, it is important to note that the term was regarded
as inclusive of far more than simply the military establishments of the
enemy. Furthermore, the list of objects actually struck during the war
reflected a far wider range than those listed in Article 24(2) of the
1923 Hague Air Rules.[^60] To say that indiscriminate bombing was
prohibited is not to say that it did not occur. Rather,

> \[m\]ilitary objectives were aimed at, but, for a variety of reasons,
> were not always hit and the effect of the attack was too often not
> very different from that which would have resulted from an intention
> to bomb indiscriminately. There was undoubtedly a lack of precision.
> The bombing was largely, to use a nautical expression, "by guess and
> by God." Things other than military were hit on many occasions. There
> was, furthermore, a good deal of doubt about what a military objective
> was.[^61]

Numerous reasons accounted for the less-than-precise bombardments:
bombing from great heights, faulty intelligence, adverse weather,
limited technology, and minimal training and experience.[^62] The
intent, however, was to attack targets that contributed to the enemy's
war fighting effort including those targets that would demoralize the
enemy.[^63]

As discussed above, collateral damage was considered acceptable (if
regrettable) if it was an unintended and indirect consequence of bombing
legitimate targets.[^64] Similarly, the parties in WWI considered
affecting enemy morale, including that of civilians, to be a legitimate,
and perhaps desirable, consequence of aerial bombardment.[^65] The
difference between the wars, however, was that not only did the
collateral effect injure and kill civilians, but also influenced an
intangible--the morale of the population. The effect was indirect, but
it was very much intended.[^66] Such an effect was considered a
legitimate corollary objective to striking a more traditional military
target.[^67] The practice of states, then, remained, at least in
principle, consistent with the basic principles of distinction and
targeting of only military objectives. It rejected, however,
conventional law attempts to provide an exclusive list of military
objectives and the requirement of a purely military advantage. As one
international law scholar summarized, "The law of war is based upon the
practice of nations. In that regard, during World War I, demoralization
of the enemy by means of widespread bombardment was accepted by the
military services as part of the functions of the aviation bombardment
groups, as it was for artillery."[^68]

### The Inter-war Period

###  {#section-9 .unnumbered}

The bloody trench warfare of World War I created a fundamental change in
the nature of warfare. No longer was war a battle between just opposing
armies and navies. War had become total, all encompassing conflict.
Battles were now wars of attrition involving the material resources and
the morale of entire nations.[^69]

The rapid changes in industry, technology and politics added to this
targeting evolution. The industrial revolution fully integrated
civilians into the industrial war-making capability of their
nation.[^70] Technological advances in military equipment allowed
nations to strike far beyond the military forces fighting on the
battlefield, thereby inflicting damage where civilians lived and
worked.[^71] Furthermore, the idea of popular sovereignty replaced many
monarchies, theoretically causing the declaration of war to become an
expression of the will of not simply one man, but of the entire
population.[^72]

State practices in WWI reflected this fundamental change in
targeting.[^73] Enemy forces were no longer the only objective.[^74] In
a total war, a nation's entire war-making and war-supporting effort, to
include the domestic economy and civilian morale, became a legitimate
target.[^75] Air power, strategic bombardment in particular, provided
the most powerful and efficient method by which to reach these targets.

Proponents of air power came to the forefront after WWI, particularly
those who advocated bombardment as the most effective strategic weapon
available.[^76] Strategic bombardment differed from any type of past
warfare in two ways:

> First, it formed part of the grand strategic aim by directly attacking
> the enemy's will to resist, bypassing the surface campaign and
> independent of its immediate objectives. Second, strategic bombardment
> focused on complex target systems chosen not because of any direct or
> necessary relationship with the enemy's forces in the field, but
> because their destruction would undermine the enemy nation's
> willingness and capability to wage war at all.[^77]

Strategic bombardment doctrine thus went beyond targets that provided an
enemy the physical means to wage war---to include targets that affected
his psychological ability to wage war. Different theories existed
regarding what targets, if destroyed, would undermine an enemy's
morale.[^78] The concept of morale as a legitimate target was, however,
universally accepted as one of the advantages provided by air
power.[^79] Air Marshal Hugh Trenchard, commander of the Royal Air
Force, defined military objectives as "any objectives which will
contribute effectively towards the destruction of the enemy's means of
resistance and the lowering of his determination to fight."[^80]
Therefore, during the inter-war years air planners considered morale a
military objective as defined by previous state practice. These military
men accomplished what lawyers had failed to do previously---provide a
viable definition for military objective.

### World War II

###  {#section-10 .unnumbered}

"In the matter of bombing, the second great war started, doctrinally and
legally, more or less where the first had left off, but at a greatly
advanced point, technically and operationally."[^81] The air power
strategy of the Allies focused primarily on strategic bombardment.[^82]
Upon entering the war, the RAF and the Army Air Corps espoused similar
targeting strategies in a cooperative strategy for use against the Axis
called ABC-1.[^83] The twin goals of the RAF and the Army Air Corps were
to destroy both the capability and the willingness of the enemy to
fight.[^84] The RAF, however, perhaps due to the suffering England had
endured from the Luftwaffe, initially was more disposed to considering
Germany's morale as a specific objective.[^85] The Army Air Corps
entered the war with its strategic plan set out in Air War Plans
Division Plan 1 (AWPD-1).[^86] AWPD-1 espoused the doctrine of
unescorted, high-altitude, precision bombardment of an enemy's
industrial centers.[^87] However, the Army Air Corps also considered
morale a legitimate objective.[^88] The Army Air Corps, however,
believed that the best way to destroy morale was indirectly: "Morale was
rejected as a proper objective on its own; the assumption held that the
interruption of the economic system would have a secondary impact on
German morale."[^89]

By 1943, the British and the Americans combined their direct and
indirect approaches to affecting morale.[^90] In January of 1943,
President Franklin D. Roosevelt and Prime Minister Winston Churchill met
at Casablanca to discuss further plans for Allied action against
Germany.[^91] One result of the meeting was a jointly issued document,
commonly referred to as the Casablanca Directive.[^92] The directive
declared the primary objective of the bombers was "the progressive
destruction and dislocation of the German military, industrial and
economic system, and the undermining of the morale of the German people
to the point where their capacity for armed resistance is fatally
weakened."[^93] The subsequent offensive was carried out around the
clock, the RAF employed night area bombing while the Air Corps attempted
daylight precision bombardment.[^94]

Although attainment of distinction was perhaps more difficult than in
the past due to the high levels of commingling of military objectives
with civilian populations, it remained viable during WWII.[^95] The
major parties clearly considered morale a legitimate objective for air
planners.[^96] The argument remains open whether the means chosen by the
parties were effective against morale, or even if the technological
means existed to achieve the parties' goals.[^97] However, the level of
effectiveness of the particular means chosen does not change the fact
that state practice demonstrated that states considered affecting
civilian morale to be a legitimate objective.

## **Post World War II Developments: Protocol I to the Geneva Conventions**

##  {#section-11 .unnumbered}

Although World War II marked the end of total war, it was not the end of
armed conflict. It did, however, provide the catalyst for new attempts
at codifying international law relating to combat. The coming of age of
strategic bombardment in WWII presented a powerful weapon with
far-reaching capabilities. As a result, civilians became more vulnerable
than ever before, "and were inevitably collateral targets, potentially
on a much larger scale than previously."[^98] Thus, unlike pre-war
provisions, the majority of conventions and treaties proposed after WWII
dealt with the protection of noncombatants, rather than regulation of
the means and methods of warfare.[^99]

In the 1950s, the International Committee of the Red Cross (ICRC),
proponents of the Geneva Conventions, expanded its focus, venturing
outside its role as protector of war victims and into the traditional
Hague law of regulating combat. "In particular, members of the ICRC
sought to regulate, if not prohibit, the employment of aerial
bombardment beyond the immediate battlefield."[^100] The ICRC put forth
a number of drafts and proposals, as did the Institute of International
Law and the United Nations.[^101] While the proposals were put forth to
the international community, it is important to note that none of them
were binding. Furthermore, support for the proposals among the major
powers was tepid, at best.[^102] In fact the General Counsel of the
Department of Defense specifically warned against "attempts to limit the
effects of attacks in an unrealistic manner," citing the failed 1923
Hague Rules as such an attempt.[^103]

The ICRC's most ambitious effort began in 1974. Over the course of three
years, The Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts (the
Conference), met in four sessions.[^104] The result of the Conference
was Protocol I and Protocol II to the Geneva Conventions.[^105] Although
the negotiating history and background of the Protocols is
extensive,[^106] only a few points are relevant to this analysis.
Perhaps most surprising is that:

> \[n\]otwithstanding the very clear lesson of the failed 1923 Hague Air
> Rules against international lawyers exercising the lead in negotiating
> a treaty in which they lack subject-matter expertise, many
> delegations---and particularly the Western delegations---were almost
> exclusively comprised of international lawyers.[^107]

The differing agendas of those present at the Conference are also
relevant. Attendance at the Conference was far ranging---all state
parties that had signed the 1949 Geneva Conventions were invited.[^108]
Not surprisingly, views of air power and its potential uses differed
greatly between Western countries, which possessed superior,
technologically advanced air forces, and lesser-developed countries.
Viewing themselves as likely to be on the losing side of any battle
involving air power, the Third World countries were interested primarily
in restricting the use of air power.[^109] The influence of these
countries should be kept in mind when considering whether proposed
restrictive language placed in Article 52(2) truly reflects prior state
practice of customary international law, or rather attempts to restrict
more powerful countries' possible uses of air power.

#  {#section-12 .unnumbered}

# **III. Analysis** {#iii.-analysis .unnumbered}

#  {#section-13 .unnumbered}

As noted above, states considered affecting enemy morale to be a
legitimate consequence of aerial bombardment.[^110] The broad concept of
"enemy morale" parallels the concept of the "remarkable trinity of war."
The trinity consists of the people, the government, and the
military.[^111] In order to win a war, all three must be in
balance.[^112] Similarly, in order to defeat an enemy, one can disrupt
the enemy's balance by attacking some or all components of the enemy's
trinity. In the context of attacking morale, or will, one could
therefore attack the morale of the people, the morale of the leadership,
the morale of the military, or any combination thereof. As evidenced by
past state practice, all three have been attacked with varying degrees
of success.[^113] It is only the recent, restrictive interpretations of
Article 52(2) that attempt to limit state practice, customary
international law, and conventional law--all of which have allowed for
targeting objectives with at least the partial purpose of affecting
enemy morale. Clearly, the targeting of civilians to affect morale
through the intentional killing and injuring of civilians is not
allowed, and has been rejected by states both in practice and
doctrinally.[^114] This Part will explore how affecting the morale and
will of the enemy, including its civilians, through other means has not
been rejected, and, how, until recently, it has been accepted as a
lawful use of air power and how recent restrictive interpretations of
Article 52(2) attempt to unilaterally change that status, regardless of
state practice and customary international law.

A. Article 52(2)

##  {#section-14 .unnumbered}

Protocol I, Chapter III is entitled "Civilian Objects." Article 52 is
the first article of Chapter III, and is entitled "General protection of
civilian objects." Paragraph 2 of Article 52 attempts to do what has not
been done successfully in the past---define a military objective.
Article 52(2) provides essentially two requirements for an object to
qualify as a military objective, or target:[^115] (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.

Unfortunately, this definition increasingly is interpreted in an overly
restrictive manner.[^116] As will be discussed below, current
interpretations and applications of Article 52(2) not only turn a blind
eye to the reality of war, but also run counter to customary
international law, as evidenced by the practice of states both before
and after the signing of the Protocols.[^117] Article 52(2)'s definition
of military objective should be of particular concern to the United
States Air Force because the interpretation of 52(2) can have a
significant effect on the unique capabilities of air power that make it
such a potent weapon.

**B. Current Restrictive Interpretations**

###  {#section-15 .unnumbered}

Before considering the impact of overly restrictive interpretations of
Article 52(2), one must first delineate the substance of such
interpretations. It is interesting to note that the majority of those
redefining the scope of 52(2) are not state actors or militaries, but,
rather, various non-governmental organizations. For example, subsequent
to Operation Allied Force in Kosovo, Human Rights Watch (HRW) issued a
detailed report in which it questioned several of the targets chosen by
NATO during the air campaign.[^118] In particular, HRW found fault with
targeting several bridges and the Serb radio and television
headquarters.[^119]

The HRW report argued that these targets did not meet the definition of
a "military objective" under Article 52(2).[^120] In so doing, HRW
applied an overly restrictive interpretation of the Article. For
example, HRW questioned the destruction of several bridges they stated
were "not major routes of communications."[^121] In response, U.S.
military sources stated "that bridges were often selected for attack for
reasons other than their role in transportation (for example, they were
conduits for communications cables, or because they were symbolic and
psychologically lucrative)."[^122] HRW discounted this argument by
flatly stating, "The destruction of bridges that are not central to
transportation arteries or have a purely psychological importance does
not satisfy the criterion of making an 'effective contribution to
military action' or offering a 'definite military advantage,' the
baseline tests for legitimate military targets codified in Protocol I,
art. 52."[^123]

The report also criticizes the targeting of the Serb Radio and
Television (RTS) headquarters in Belgrade.[^124] HRW questioned the
legitimacy of the target, reasoning that the system "was not being used
to incite violence (akin to \[radio stations\] during the Rwandan
genocide), which might have justified their destruction. At worst, as
far as we know, the Yugoslav government was using them to issue
propaganda supportive of its war effort."[^125] The report goes on to
state:

> In this case, target selection was done more for psychological
> harassment of the civilian population than for direct military effect.
> . . . As a consequence, Human Rights Watch believes that \`While
> stopping such propaganda may serve to demoralize the Yugoslav
> population and undermine the government's political support, *neither
> purpose offers the concrete and direct military advantage necessary to
> make them a legitimate military target.*'[^126]

Amnesty International also published a report on Allied Force,
critiquing the North Atlantic Treaty Organization's (NATO) compliance
with the law of war, particularly Article 52(2).[^127] Amnesty
International also specifically criticized the attack on the RTS
headquarters in Belgrade.[^128] The report noted NATO's justification
for attacking the station: "\[the station\] was a propaganda organ and
that propaganda is direct support for military action,"[^129] but
stated:

> 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 \[station\] cannot be considered a military
> objective. As such, the attack on the \[station\] violated the
> prohibition to attack civilian objects contained in Article 52(1) and
> therefore constitutes a war crime.[^130]

Both reports concluded that NATO, and the United States in particular,
violated the law of war (Article 52(2)), with Amnesty International
ultimately accusing the United States of war crimes.[^131] Based on
these reports, it is not wild speculation to state that as NGOs gain
more influence, their restrictive interpretations of Article 52(2) are
currently being adopted by the international community and potentially
have far-reaching effects.[^132]

**C. The Reality of War**

###  {#section-16 .unnumbered}

The fundamental problem with Article 52(2)'s definition of military
objective is that, similar to previous failed attempts,[^133] it tries
to constrict the use of air power to the specific tactical military
effort at hand.[^134] By restricting targets to those that contribute to
*military* action and provide a *military* advantage, paragraph 2
ignores the reality that a nation's war effort is composed of more than
just military components. Furthermore, defeating an enemy often requires
the attainment of advantages that are not necessarily considered
strictly military.[^135] The goal of war is not simply to defeat the
enemy's military forces. "We don't go to war merely to have a nice
fight; rather, we go to war to attain something of political value to
our organization."[^136]

War is a means to an end, and as Clausewitz noted, "\[t\]he political
object is the goal, war is the means of reaching it, and means can never
be considered in isolation from their purpose."[^137] If the ultimate
purpose of war is political, then the goal is to use combat power to
change the mental state of the opponent---to impose the attacker's will
upon the enemy's will. In order to achieve that, "\[i\]t is a question,
first and last, of persuading minds---the minds of the Government and .
. . of the people of the enemy country."[^138] Defeat of the enemy
forces is but one way to achieve this end. In fact, "the destruction of
the military forces of the enemy is not now and never has been the
objective of war; it has been merely a means to an end--merely the
removal of an obstacle which lay in the path of overcoming the will to
resist."[^139] Air power is the most efficient way to reach beyond the
enemy forces to strike at the will of the enemy. Article 52(2), however,
prohibits attacks that may provide such potential or indeterminate
advantages,[^140] as well as advantages that extend beyond those
associated with the enemy's tactical military effort. State practice
shows, however, that the attainment of indeterminate, non-military
advantages, such as strategic and psychological advantages, can often be
effective in contributing to the defeat of the enemy's will.[^141]

**D. State Practice and Psychological Advantages in War**

###  {#section-17 .unnumbered}

State practice over time indicates a clear acceptance of the use of
force during war to achieve goals concurrent with destruction of
military forces or armament.[^142] Psychological advantages over the
enemy, whether positive or negative, have long been such a parallel goal
of states at war.[^143] As previously discussed, during WWII, the RAF
and Army Air Corps both considered defeating the morale of the enemy
population and leadership to be a legitimate goal that provided an
advantage to the Allies.[^144] The United States Strategic Bombing
Survey reported that by the spring of 1945, sixty-four percent of the
Japanese population stated they had reached a point where they felt
unable to go on with the war.[^145] Of those, "less than one-tenth
attributed the cause to military defeats . . . the largest part
\[attributed the cause\] to air attack."[^146] More recently, Iraqi air
attacks on Iran during the Iraq-Iran War "certainly affected civilian
morale and almost certainly led the Iranian government to agree to an
armistice with Iraq."[^147]

State practice shows that attackers often intend air attacks to
influence the enemy decision-makers. Air planners in Korea specifically
targeted military objectives after dropping leaflets announcing their
intentions.[^148] The intent was to evidence to the population and the
leadership that the United Nations forces controlled the air.[^149]
Furthermore, as truce talks began to stalemate after July of 1951, "air
power became the dominant instrument for exerting leverage on the enemy
to end the war."[^150] Similarly, in Vietnam, President Nixon ordered
massive bombing attacks during Linebacker I and Linebacker II to bring
Hanoi to the bargaining table and force North Vietnam "to abandon its
stalling tactics and to settle the war on the terms it had already
agreed to."[^151]

Furthermore, attacks that are directed at the enemy's military forces
may have as their primary intent a psychological effect, rather than a
destructive effect. In the Gulf War, the Coalition effectively employed
the threat of B-52's to convince Iraqi troops to surrender.[^152] The
Coalition dropped leaflets stating when and where the bombers would
attack, and then attacked precisely as advertised.[^153] The
psychological effect on the Iraqi troops was stunning---most had to
experience such an attack only once to be convinced that surrender was
the best course of conduct.[^154]

Not all air attacks provide an advantage solely by negatively affecting
the enemy's morale. Some also are intended to positively affect friendly
morale. General Jimmy Doolittle's raids over Tokyo in 1942 arguably
provided negligible military value to the American forces. However they
clearly boosted the morale of the American population and forces, which
had previously suffered a series of defeats.[^155] Perhaps just as
importantly, the raids had a significant psychological effect on
Japanese leadership.[^156] Not only did the raids redirect the focus of
Japanese war planning, they also impacted greatly on the Japanese
Imperial General Staff.[^157] For perhaps the first time, the military
staff experienced the reality of their inability to completely defend
their homeland from air power.[^158]

As evidenced above, militaries have not refrained from using air power
to achieve goals other than or concurrent with the destruction of enemy
militaries. Such attacks have been directed at enemy military forces,
enemy civilians, and enemy leadership. Results varied, but each attack
provided some measure of psychological advantage to the attacking force.

**E. State Practice and Strategic Advantages in War**

###  {#section-18 .unnumbered}

Air strikes can also provide strategic advantages, which would rarely
meet a limited interpretation of Article 52(2). Under a restrictive
interpretation of a military objective, the aerial attacks on targets
such as bridges and railroads in the Pas de Calais during the spring of
1944 would not have been permitted because they provided little
immediate military advantage to the Allies. Rather, their goal was to
provide an indeterminate effect in the future---to convince the Germans
that the Allied invasion would occur there, thereby diverting the German
military effort away from Normandy.[^159] The Allied attack on Dresden
poses similar problems. On a tactical level, the attack seemed to
provide minimal military advantage. However, on the strategic level, the
attack potentially offered the advantages of "providing support for the
advance of Soviet forces into eastern Germany, destruction of the lines
of communication at a critical chokepoint in order to prevent German
reinforcement in opposition to the Soviet advance, and possible
hastening of the end of the war."[^160]

Thus, the practice of states over time has been to use air bombardment
to achieve not only immediate tactical military advantages, but also
strategic and psychological advantages over their enemies. The
overriding goal of such attacks is to undermine not only the enemy's
capability to continue the war, but also his will to continue the war.
Furthermore, such attacks can also provide pressure upon the enemy to
accede to the will of the attacker. Until the drafting of Article 52(2),
states understood these uses of air power to be a legitimate use of
force. A restrictive interpretation of the Article, however, requires an
attacker to "fit" a potential target within a limited definition of an
object that contributes to the enemy's military effort or provides a
military advantage to the attacker.

While some of the examples discussed above can easily meet this current
restrictive definition of a legitimate target; as discussed below, many
would argue that not all could.[^161] Commanders are increasingly forced
into word games or mental gymnastics in order to justify target choices
within the restrictive definition of Article 52(2). By doing so,
commanders implicitly attribute binding force of law to the restrictive
definition of Article 52(2), opening the door to future limitations on
the use of air power in the manner discussed above. The better solution
is simply to interpret Article 52(2) consistent with past state practice
and customary international law, thereby openly allowing for destruction
of targets beyond those focused purely on the immediate tactical
military aspect of the conflict.[^162].

**F. Article 52(2) and the United States Air Force**

###  {#section-19 .unnumbered}

Since the inception of air power, advocates recognized that it provided
a new dimension to warfare. The ability to work in the third dimension
allows an attacker to fly over the enemy's fielded forces and directly
attack his willingness and ability to fight the war.[^163] Air power
extends the battlefield significantly. Defeating the protective shield
of enemy forces is no longer a prerequisite to victory. Douhet first
articulated this unique characteristic of air power,[^164] and was soon
followed by Spaight,[^165] Mitchell,[^166] Trenchard,[^167] and the ACTS
war planners.[^168] Today's United States Air Force continues to follow
doctrine that exploits this unique characteristic of air power.

*1. United States Air Force Doctrine*

####  {#section-20 .unnumbered}

Since the signing of Protocol I, Air Force doctrine continues to reflect
the belief that air power is not restricted to striking purely military
targets that provide only a military advantage. Air Force doctrine
documents clearly reflect a continuing belief that war is still politics
by other means. *Air Force Doctrine Document 1: Air Force Basic
Doctrine* sets out several "enduring truths" it uses to describe the
"fundamental nature of war:"

> War is an instrument of national policy. Victory in war is not
> measured by casualties inflicted, battles won or lost, or territory
> occupied, but by whether or not political objectives were achieved.
> More than any other factor, political objectives (one's own and those
> of the enemy) shape the scope and intensity of war. Military
> objectives and operations must support political objectives . . .
>
> War 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.[^169]

AFDD-1 also clearly recognizes that strategic bombardment is a
legitimate means by which to affect the enemy's will:

> \[Strategic\] operations are designed to achieve their objectives
> without first having to necessarily engage the adversary's fielded
> military forces in extended operations at the operational and tactical
> levels of war . . . . Strategic attack objectives often include
> producing effects to demoralize the enemy's leadership, military
> forces, and population, thus affecting an adversary's capability to
> continue the conflict.[^170]

Air Force doctrine clearly recognizes and allows for the attainment of
advantages beyond simple tactical military advantages on the
battlefield. It provides for choosing targets that also affect the
enemy's will and morale, both of their military forces and their
civilian population. Air Force targeting directives acknowledge the same
concepts. The *USAF Intelligence Targeting Guide* acknowledges the
language of Article 52(2), but only as a guide, or a starting point. The
*Guide* states that a target must qualify as a military objective, and
defines military objectives as *including* those objects so defined by
Article 52(2).[^171] It does not, however, consider the Protocol's
definition as exclusive. It focuses instead on the strategic necessity
of the target, rather than its military characteristics: "the key factor
\[in choosing a target\] is whether the object contributes to the
enemy's war fighting or war sustaining capability."[^172] Unlike Article
52(2), this guidance allows for the possibility that a target may not
provide an immediate military advantage per se, but may still contribute
to the enemy's ability to fight.

*2. United States Air Force Practice*

####  {#section-21 .unnumbered}

As discussed above, U.S. Air Force practice has long been to strike at
targets beyond military forces or armament. Some of the examples
discussed would meet the current definition of a military objective
under Article 52(2). For example, bombing troops in Iraq after first
dropping warning leaflets, although meant primarily to have
psychological effects, clearly was an attack authorized by Article
52(2). The troops contributed to Iraq's military effort, and their
destruction or surrender provided an obvious advantage to the coalition
forces.

However, several of the previous examples, if evaluated honestly, would
not comply with current limited interpretations of Article 52(2). Yet
arguably, all are consistent with prior state practice and customary
international law. The allied bombing of bridges and railroads in the
Pas de Calais just prior to the invasion at Normandy clearly provided a
military advantage to the Allies. The Germans were convinced that the
invasion would occur in the Pas de Calais, thereby diverting the Germans
from Normandy.[^173]

Article 52(2)'s two-part test requires[^174] that the target by its
nature, location, purpose or use, make an effective contribution to
military action. Arguably, the railroads and bridges in France did not,
by their current nature, location, purpose or use make such a
contribution. Furthermore, the proposed advantage of their
destruction--diversion of the Germans--was hopeful speculation on the
part of the Allies. Article 52(2), however, requires the military
advantage to be definite. This means "it is not legitimate to launch an
attack which only offers potential or indeterminate advantages."[^175]
Such an unreasonable requirement could prevent legitimate ruses.

The Linebacker II campaign during Vietnam undoubtedly was intended to
affect the psychology of the enemy: "Unlike Linebacker I, the President
aimed the December bombing directly at the North's will. The President
desired a maximum psychological impact on the North Vietnamese to
demonstrate that he would not stand for an indefinite delay in the
negotiations."[^176] Despite this stated intent, however, arguably the
campaign complied with the requirements of Article 52(2) as the objects
struck were traditional military targets, the destruction of which would
provide a military advantage to the Americans.[^177] An honest
evaluation of the campaign, however, indicates that it might not meet
the current restrictive interpretation of Article 52(2).

By the time Linebacker II commenced, the Americans had been bombing
North Vietnam intermittently for almost five years.[^178] While some
targets had previously been off-limits, nevertheless, at Linebacker II's
inception, previous bombardment had reduced substantially the number of
viable targets.[^179] Although leaders stated that the objective of the
bombings was "the deliberate destruction of military targets in North
Vietnam," they also conceded that fewer targets existed after
1968.[^180] While certainly some useful targets still existed, based on
the assessment of American leaders as to the quantity and quality of
targets remaining, it seems difficult to justify the massive amounts of
firepower laid down during Linebacker II.[^181] It is rather hard to
argue that the few remaining targets of Linebacker II were truly
contributing the North's military effort, or that their destruction
provided any real military advantage to the South. Yet, Linebacker II
did accomplish its true intent---to bring North Vietnam quickly back to
the bargaining table. Under a broader interpretation of a military
objective under Article 52(2), consistent with prior state practice,
there would be no question of the legitimacy of Linebacker II. Under
current restrictive interpretations, however, the campaign is open to
question.

Likewise, the recent conflict in Kosovo readily highlights the
application of air power to achieve more than destruction of the enemy's
military capability. Clearly, destruction of the Serbian military forces
was a goal of the NATO coalition.[^182] From inception, however, the
primary goal of the campaign was to influence the behavior of Serbia's
leader, Slobodan Milosevic, and bend his will to that of the
coalition.[^183] In pursuit of these goals, the air campaign took a dual
approach: "destruction of Serb forces and enabling installations in
Kosovo and attack of strategic targets within Serbia itself, which
attacks were intended to diminish the will to resist of both Milosevic
and the Serb population."[^184] Targets included bridges, railroads,
airfields, airplanes, petroleum and oil stocks, power, broadcast
capabilities, and command and control headquarters, at least two of
which were Milosevic's homes.[^185] Each target arguably contributed to
the Serbs' military effort, and the destruction of each would provide a
military advantage to the NATO alliance, thereby falling within the
definition of military objective as required by Article 52(2). However,
as explained above, several NGO's would not consider all these targets
as lawful military objectives.

When analyzing the air campaign in Kosovo, it is interesting that
although this was certainly a military effort on the part of NATO, it
was not necessarily a conflict in the traditional, military v. military,
sense. The Serbs did possess some anti-air weaponry, but after the first
several days, the conflict was not between two military forces. Rather,
the conflict pitted the military force of NATO against the will and
resolve of Milosevic and the Serbian leadership.[^186] In fact, arguably
it was not until the air campaign shifted focus from striking troops and
armament[^187] to strategic targets or centers of gravity[^188] that the
campaign became truly successful.[^189] Viewing the conflict from this
perspective requires a concomitant change in targeting perspective.
Bending the will of Milosevic required more than just destruction of
objects that contributed to the military effort, particularly if
preservation of those objects was not one of his priorities. For
example, some targets were chosen for reasons other than their military
value:

> There were other types of targets that had a high political symbolism,
> which went beyond their actual military value---like the television
> system. We knew that Milosevic used TV as an instrument of command and
> control. He used it to control the population, to inflame the passions
> of ethnic cleansing, and so forth.[^190]

Furthermore, viewed from the perspective of NATO's quickly gained air
supremacy and lack of NATO troops on the ground, destruction of few, if
any, targets could provide a true military advantage to NATO under a
restrictive interpretation of Article 52(2). Yet the destruction of
those targets could, and ultimately did, provide a strategic and
psychological advantage to the coalition, contributing to Milosevic's
capitulation.[^191]

NATO specifically targeted objects intended to affect the morale of the
enemy forces and civilian population.[^192] While the affect on enemy
troop morale arguably is allowed under Article 52(2), current
restrictive interpretations of the Article do not allow for targeting
enemy civilian morale.[^193] If so, then it appears that a majority of
the NATO air campaign against Kosovo, while a key component of the
overall campaign, was illegitimate under some current interpretations of
what constitutes a legitimate military objective. This unusual result is
not only inconsistent with prior state practice, but clearly points out
the difficulty with interpreting Article 52(2) in a restrictive manner.
If the very real possibility exists, as was the case of Kosovo, that
"the Serbian population forced Milosevic to call the war off when the
life of the Serbian population was made very uncomfortable,"[^194] then
removal of that strategic option for overcoming the will of the enemy
may ultimately lead to longer and more destructive wars.

**G. Application of Article 52(2)**

###  {#section-22 .unnumbered}

The stated goal of Article 52(2) was to provide increased protection for
the civilian population.[^195] Ironically, by drafting provisions that
are interpreted contrary to customary international law and state
practice, the ICRC may have achieved the opposite effect.

No one would argue that terror bombing or directly targeting civilians
to cause death or injury is lawful. However, as has been discussed,
affecting enemy morale, including that of civilians, through indirect
means has long been considered a legitimate goal. The question is how
best to achieve that goal. In the past, effectiveness of attempts to use
air power to affect enemy morale was mixed, due in part to limited
technological capability to strike with precision. Ironically, just as
air power began to attain the technological capability to strike targets
with precision, Protocol I reduced its options to do so. As a result,
air planners are placed in an unusual situation. In order to affect what
has customarily been considered a legitimate target, the will of the
enemy (to include civilian morale), the Air Force must first find a
target that can be defined as a legitimate military objective under a
restrictive interpretation of Article 52(2). Often this can cause more
damage to the civilian population than is intended or desired.

This trend can be seen most vividly in the destruction of dual-use
targets. Dual-use targets are most commonly defined as those targets
that are used for both military and civilian purposes, such as power
plants that provide electricity to both civilian institutions as well as
military command and control centers.[^196] Theoretically, destroying or
disabling such targets gives the attacker a dual effect---he cripples
the ability of the enemy forces to function, while simultaneously
affecting the morale of the civilian population.

Two problems arise, however, when targeting dual-use targets. First, the
desired effect may be relatively short-term, but may cause more
long-term damage than desired. For example, the morale of the Iraqi
citizens was clearly a target during the Gulf War.[^197] In order to
achieve that objective, Coalition forces struck dual-use targets such as
power supplies, railroads, and bridges.[^198] The strikes had the
desired temporary effects, but also imposed more serious long-term
effects on the civilian population.[^199] Similarly, in Kosovo, one of
NATO's goals was to influence the Serbian population to pressure their
leadership to end the conflict.[^200] Again, as in the case of the Gulf
War, the means chosen ultimately may have caused more negative long-term
effects than desired.[^201]

The question becomes whether the pressure to justify a target as
dual-use, thereby conforming to the requirements of Article 52(2),
causes the rejection of targets better tailored to achieve the desired
objective. For example, in Kosovo, NATO employed a weapon designed to
knock out Serbian power grids and transformer yards.[^202] NATO aircraft
dropped small dispensers that opened over the power sources, setting
free specially treated wire that intertwined and caused instant short
circuits in the electrical system.[^203] The weapon cut off power to 70
percent of Yugoslavia, yet the effect was only temporary, with most
power returning within a day.[^204] Although temporary, the attack
effectively brought the war home to the Serbian population---without
massive, long-term destruction. Such a short duration of disablement,
however, was unlikely to severely affect the Serbian military effort.
Arguably, a restrictive interpretation of Article 52(2) would not
consider the first strikes to be against legitimate military objectives,
as it is unlikely that disruption of electricity for such a short period
of time truly provided a military advantage to NATO.[^205] These strikes
would therefore be illegal.

Soon thereafter, NATO struck power sources with more force, disabling
them for much longer periods of time.[^206] Because these strikes
offered a definite military advantage to an object that made a
contribution to military action, these strikes would comply with Article
52(2). However, in the long run, the first strikes, rather than the more
destructive later strikes that complied more fully with Article 52(2),
were perhaps not only the more effective strikes in terms of ending the
conflict, but also the more humane strikes.

The second problem with dual-use targeting is that the sole goal of the
attacker may be only to affect the will of the enemy leadership and
population. There may not be any military advantage to striking the
target---at least as military advantage is defined by Article 52(2).
Yet, from the beginning one of the goals in Kosovo was to bend Milosevic
to the will of the NATO coalition. As Lt. Gen. Short stated, "I'd have
gone for the head of the snake on the first night. I'd have turned the
lights out the first night. . . . Milosevic and his cronies would have
waked up the first morning asking what the hell was going on."[^207]

If in fact the goal is not necessarily to destroy an enemy's
war-fighting capability, but rather to modify their willingness to use
that capability. It seems that it would be more efficient to allow
destruction of the targets that would best achieve those objectives.
More importantly, it may also be more humane.[^208] However, such
targets may not always fit into the current restrictive interpretation
of Article 52(2). As a result, attackers may feel pressure to chose a
target that results in more destruction, but can more readily be
justified under a restrictive interpretation.

As a corollary to broadening the interpretation of Article 52(2) to
allow for a military advantage to include affecting the will of the
enemy, consideration should also be given to allowing a more expansive
interpretation of objects that contribute to military action.[^209]
Perhaps the targets best suited to achieving that goal are those
expressly prohibited by Article 52---civilian objects, specifically,
those objects that will affect the citizens'.[^210]

Extending the chain of causation by this step is not as extreme as it
initially sounds. If the destruction of certain civilian property
contributes to the demoralization of the population, thereby leading to
pressure to end the conflict, this result is more humane than protecting
these items at the price of prolonging a bloody conflict.[^211] This
does not mean allowing for the attack of life-sustaining
necessities.[^212] Rather it foresees attacks on property that enjoys no
special protection under current international law, other than the fact
that it is categorized as exclusively civilian property.[^213]
Furthermore, any such attack would still have to comply with the
prohibition against targeting civilian lives as well as military
necessity.

The concept of destroying property, rather than life, is not new. J.M.
Spaight stated in 1947:

> \[airpower's\] purpose is the destroying of your enemy's morale and
> will to resist. That purpose can be achieved by other means than
> mass-slaughter. It can be achieved by methods which international law
> can approve, as it never will approve the destruction of innocent
> lives for such an end. Let your object be to destroy the enemy's
> inanimate rather than his human resources, his wealth and business
> rather than his citizens' lives; to make work, if one may put it so,
> for the builder, the unemployment exchange, the bankruptcy court,
> rather than for the coroner and the undertaker . . . . In brief, I
> will give \[airpower\] *property* to destroy if \[airpower\] will give
> me *life* to save.[^214]

The goal in destroying such property is to influence the population to
bring the war to a quicker, less bloody end. According to General
William T. Sherman, in response to criticism of his treatment of the
Southern population in the Civil War, if the population protests, "I
will answer that war is war, and not popularity seeking. If they want
peace, they and their relatives must stop the war."[^215] It seems
equally logical that air power could have been used to pressure the
silent "Serbian intelligentsia" to influence the Serbian
leadership.[^216] Perhaps the most humane way of achieving that goal
would be to target objects not indispensable to survival, but objects
the destruction of which would have a direct impact on the population.
Such targets might include bank accounts, financial institutions, shops,
entertainment sites, and government buildings.[^217] Destruction of
these targets would likely have a significant impact on the population's
morale, but would not cause the type of long-term suffering and
casualties potentially caused by destruction of dual-use targets. Under
Article 52(2), however, such attacks are prohibited, leaving only those
that provide a direct military advantage, such as dual-use targets, to
be destroyed. Ultimately restricting the targeting of bank accounts,
financial institutions, shops, entertainment sites, and government
buildings and similar objects may prove more destructive in the long
run.

The difficulty with such an approach is, and always has been, the
determination of which targets to strike in order to achieve the goal of
affecting the will of the enemy---both leadership and population. Simply
because this is difficult, however, does not mean that it should be
abandoned or ignored. The future of air power appears to be application
in precise, discrete measures in order to aid in the attainment of
political goals. Rarely, if ever, will it be applied as it was during
World War II, with the stated goal of unconditional surrender of the
enemy. If so, military leadership must attain a better understanding of
the centers of gravity of its potential enemies---and not simply the
military-oriented centers. According to one analyst, "the central
problem is this: If we are going to make it with this kind of precision
airpower in very low volume, akin to acupuncture, we really have to know
where to put the needle. To make the other guy back down, you must
understand his politics, his soul."[^218] Once this capability is
attained, Article 52(2) should not be restrictively interpreted to
prohibit the ability to exploit the unique capabilities of air power to
assist in the quick and humane termination of conflict.

**IV. Conclusion**

#  {#section-23 .unnumbered}

Although attempts to regulate war have occurred for almost as long as
war has existed, the fundamental nature of war has not changed. War is a
means states use to achieve a political aim. The ultimate goal of a
nation at war is to impose its will on the enemy. The advent of air
power provides the most powerful means to achieve this goal because it
operates in the third dimension to bypass the fielded forces and
directly attack the enemy's capability and will to fight.[^219]
Restrictive interpretations of Article 52(2), however, limit this
capability unnecessarily.

Article 52(2) defines legitimate targets as objects that contribute to
military action, or whose destruction provides a military advantage to
the attacker.[^220] Interpreting Article 52(2) restrictively by focusing
solely on the military effort of the enemy, however, is shortsighted and
inconsistent with prior state practice. The type of conflicts prevalent
in the world today center more than ever on the application of force to
bend the will of the enemy. Moreover, destruction of military-oriented
targets is not always the most efficient or humane way in which to
achieve that goal.

The U.S. Air Force in particular has developed precise, long-range
capabilities to strike targets that can affect the will of the
enemy---both military and civilian. As such, U.S. military leadership
must resist the pressure to accept restrictive interpretations of
Article 52(2). To do so ultimately may cause more destruction and
devastation as planners search for targets that will not only achieve
their specific goals, but can also be justified under a restrictive
interpretation of a legitimate military objective. Rather, the United
States should openly assert that it continues to consider bending the
will of the enemy to be a legitimate goal when applying the force of air
power. Furthermore, during times of armed conflict, the United States
should continue to strike targets to achieve that goal, consistent with
the basic principles of the law of war. Such actions do not repudiate
the value or legitimacy of Article 52(2), but instead exercise a valid
interpretation of its language consistent with prior customary
international law and state practice.

[^1]: ^^ *Major Meyer (B.A., Duke University; J.D. Duke University
    School of Law; LL.M., The Army Judge Advocate General School; MA in
    Air Warfare from American Military University) is a Judge Advocate
    with the United States Air Force currently assigned as an
    instructor, International and Operational Law Division, The Army
    Judge Advocate General School, Charlottesville, Virginia. She is a
    member of the Texas State Bar.*

[^2]: [Carl von Clausewitz, On War]{.smallcaps} 87 (Michael Howard &
    Peter Paret eds. and trans., 1976).

[^3]: Lieutenant General Harold L. George, Chief, Bombardment Section,
    Air Corps Tactical School, Lecture to ACTS students, 1932, *quoted
    in* [Haywood S. Hansell, Jr., The Air Plan That Defeated
    Hitler]{.smallcaps} 33 (1972).

[^4]: These attempts generally fall into two categories: *jus ad bellum*
    and *jus in bello*. The former attempts to regulate when force may
    be used, while the latter regulates the means and methods of force
    nations may resort to once engaged in conflict. William J. Schmidt,
    *The Protection of Victims of International Armed Conflicts:
    Protocol I Additional to the Geneva Conventions*, 24 [A.F. L.
    Rev.]{.smallcaps} 189, 191-92 (1984). Although the development of
    *jus ad bellum* has a rich history, in theory, the concept is
    inapplicable today, as the United Nations' Charter effectively
    outlaws the use of force except in cases of collective security or
    self-defense. [U.N. Charter]{.smallcaps} art. 2, para 4, art. 39,
    and art. 51. The primary focus over the past century has been on
    *jus in bello*, the regulation of the means by which nations fight.
    Within the principle of *jus in bello*, the development of the law
    fell into two categories. The first category, governed by the Geneva
    Conventions, regulates treatment of those individuals out of combat.
    *See* Convention (I) for the Amelioration of the Condition of the
    Wounded and Sick in Armed Forces in the Field, *opened for
    signature* Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, *reprinted
    in* [Dietrich Schindler & Jiri Toman, The Laws of Armed
    Conflicts]{.smallcaps} 373 (3d ed. 1988); Convention (II) for the
    Amelioration of the Condition of Wounded, Sick, and Shipwrecked
    Members of Armed Forces at Sea, *opened for signature* Aug. 12,
    1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, *reprinted in* [Schindler &
    Toman]{.smallcaps}, *supra*, at 401; Convention (III) Relative to
    the Treatment of Prisoners of War, *opened for signature* Aug. 12,
    1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, *reprinted in* [Schindler &
    Toman]{.smallcaps}, *supra*, at 423; and 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, *reprinted
    in* [Schindler & Toman]{.smallcaps}, *supra*, at 495. The second
    category, governed by the law of The Hague, regulates the way in
    which war is fought. *See* Convention (II) with Respect to the Laws
    and Customs of War on Land, *opened for signature* July 29, 1899, 32
    Stat. 1803, *reprinted in* [Schindler & Toman,]{.smallcaps} *supra*,
    at 63; Convention (IV) Respecting the Laws and Customs of War on
    Land, *opened for signature* Oct. 18, 1907, 36 Stat. 2277,
    *reprinted in* [Schindler & Toman]{.smallcaps}, *supra*, at 63.

[^5]: Protocol Additional to the Geneva Conventions of Aug. 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 \[hereinafter Protocol I\]; 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. 48 \[hereinafter
    Protocol II\]. The U.S. has not ratified Protocol I, however it does
    consider most provisions reflective of customary international law
    and has not specifically objected to the language in Article 52.
    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. Int'l L. &
    Pol'y 419, 420 (1987).

[^6]: Protocol I, *supra* note Error: Reference source not found, art.
    48, 51. In its 1996 Advisory Opinion on the Legality of the Threat
    of Use of Nuclear Weapons, the International Court of Justice
    referred to the principles of distinction and unnecessary suffering
    as the two "cardinal principles" of international humanitarian law.
    1996 I.C.J. 226, 257 (July 8).

[^7]: *See infra* text accompanying note Error: Reference source not
    found.

[^8]: *See infra* Part III.B.

[^9]: Protocol I, *supra* note Error: Reference source not found, art.
    52, para. 2.

[^10]: Previous treaties or attempts to codify the law of war are
    important, as "treaties must often be interpreted in light of the
    rules of customary international law or of the nonconsensual
    sources. Like statutes in common law context, treaties often presume
    and rely upon a preexisting set of legal rules." [Malcolm N. Shaw,
    International Law]{.smallcaps} 11 (4^th^ ed. 1977). *See also*
    Vienna Convention on the Law of Treaties, May 23, 1969, art. 31, 8
    I.L.M. 679.

[^11]: For a very thorough history of this area, see W. Hays Parks, *Air
    War and the Law of War*, 32 [A.F. L. Rev.]{.smallcaps} 1, (1990).

[^12]: [Arthur Harris, Bomber Offensive]{.smallcaps} 177 (1947).

[^13]: Parks *supra* note 10, at 4.

[^14]: Michael N. Schmitt, *The Principle of Discrimination in 21st
    Century Warfare*, 2 [Yale H.R. & Dev. L.J.]{.smallcaps} 143, 148-49
    (1999).

[^15]: [James Turner Johnson, Can Modern War Be Just?]{.smallcaps} 27
    (1984). A judge advocate in the Spanish Army of the Netherlands,
    Balthazar de Ayala, noted in 1582 that the "intentional killing of
    innocent persons, for example, women and children, is not allowable
    in war." 2 [Ayala, De Jure et Officio et Disciplina
    Militari]{.smallcaps} 33, 44 (Classics of International Law, ed.
    1912) *quoted in* Burrus M. Carnahan, *The Law of Air Bombardment in
    its Historical Context*, 17 [A.F. L. Rev.]{.smallcaps} 39, 40
    (1975).

[^16]: Parks, *supra* note Error: Reference source not found, at 4. This
    was best evidenced in the methods of siege warfare. One of the
    primary principles of siege warfare was that the defender of the
    city under siege bore the burden of protecting his citizens from
    incidental harm. Any harm occurring as a result of the
    siege---starvation, bombardment, sacking---was considered incidental
    and allowable. *See* *also* Matthew C. Waxman, *Siegecraft and
    Surrender: The Law and Strategy of Cities as Targets*, 39 [Va. J.
    Int'l L.]{.smallcaps} 353 (1999).

[^17]: Spanish theologian Francisco De Vitoria went so far as to state
    that "\[i\]t is occasionally lawful to kill the innocent not by
    mistake, but 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]{.smallcaps} 315 (Anthony
    Pagden & Jeremy Lawrence eds., 1991).

[^18]: Horace B. Robertson, Jr., *The Principle of the Military
    Objective in the Law of Armed Conflict*, *in* 72 [The Law of
    Military Operations]{.smallcaps} 196, 196 (Michael N. Schmitt ed.,
    1998).

[^19]: *See* discussion Part III.C.

[^20]: . *Id.*

[^21]: The concept of military necessity is reflected in Article 52(2)'s
    requirement that destruction of the target provide a "military
    advantage" to the attacker. *See* Protocol I, *supra* note Error:
    Reference source not found, art. 52, para. 2.

[^22]: 11 [Trials of War Criminals Before The Nuremberg Military
    Tribunals]{.smallcaps} 1253-54 (1950).

[^23]: Introductory Note to Francis Lieber, Instructions for the
    Government of Armies of the United States in the Field, originally
    published as U.S. War Department, Adjutant General's Office, General
    Orders No., 100 art. 22 (Apr. 24, 1863) \[hereinafter The Lieber
    Code\], *reprinted in* [Schindler & Toman]{.smallcaps}, *supra* note
    Error: Reference source not found, at 3.

[^24]: *Id*.

[^25]: *Id*.

[^26]: *Id*. art. 14, 15 (emphasis added).

[^27]: *Id*. art. 22.

[^28]: *Id.* at 6-7 (quoting The Lieber Code, *supra* note Error:
    Reference source not found, art. 20, 21).

[^29]: Declaration Renouncing the Use, in Time of War, of Explosive
    Projectiles Under 400 Grammes Weight, Dec. 11, 1868, 138 Consol.
    T.S. 297 (1868-69), *reprinted in* [Schindler & Toman]{.smallcaps},
    *supra* note Error: Reference source not found, at 102.

[^30]: *Id*.

[^31]: [Instructions to the American Delegates to the Hague Peace
    Conferences and Their Official Reports]{.smallcaps} 1-2 (James Scott
    Brown ed., 1916).

[^32]: [The Hague Conventions and Declarations of 1899 and
    1907,]{.smallcaps} vi (James Scott Brown ed., 1918).

[^33]: *Id.* at 220-22.

[^34]: [Lee Kennett, The First Air War 1914-1918,]{.smallcaps} 2 (1991).

[^35]: One Polish scholar warned in 1898 that "\[i\]t appears that we
    are very close to finding ourselves face to face with a danger
    before which the world cannot remain indifferent." *Id.* at 1
    (quoting [I Jean de Bloch, La Guerre]{.smallcaps}, 203 (1898)).

[^36]: [Kennett]{.smallcaps}, *supra* note Error: Reference source not
    found, at 1-2.

[^37]: *Id.*

[^38]: 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, July 29, 1899, 32 Stat. 1839,
    *reprinted in* [Schindler & Toman]{.smallcaps}, *supra* note Error:
    Reference source not found, at 202-03. An Army artillery officer,
    Captain William Crozier, proposed the limited ban, arguing:

    > 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.

    [The Proceedings of the Hague Peace Conferences, The Conference of
    1899,]{.smallcaps} 354 (James Brown Scott ed., 1920). Crozier's
    argument appealed to the delegates' eternal hope that a weapon could
    be found that would make war less bloody and indiscriminate through
    efficiency. [Kennett]{.smallcaps}, *supra* note Error: Reference
    source not found, at 2.

[^39]: The five-year prohibition agreed upon at the conference lapsed in
    1904, but the anticipated follow-on conference did not take place as
    scheduled due to, among other things, the Russo-Japanese War.
    [Kennett]{.smallcaps}, *supra* note Error: Reference source not
    found, at 5.

[^40]: Ultimately, the prohibition was renewed, but instead of setting a
    specific timeframe, the prohibition was to be in effect until the
    Third Hague Peace Conference, anticipated in 1916. Paul A. Goda,
    *The Protection of Civilians from Bombardment by Aircraft: The
    Ineffectiveness of the International Law of War*, 33 [Mil. L.
    Rev.]{.smallcaps} 93, 94 (1966). In reality, the prohibition had
    little significance, as only the United States and Great Britain
    committed themselves to the treaty. As the treaty only bound parties
    at war with each other, it had no effect in either World War I or
    World War II. Parks, *supra* note Error: Reference source not found,
    at 17.

[^41]: Convention (IV) Respecting the Laws and Customs of War on Land,
    Oct. 18, 1907, 36 Stat. 2277, *reprinted in* [Schindler &
    Toman]{.smallcaps}, *supra* note Error: Reference source not found,
    at 83-84 (*emphasis added*).

[^42]: Convention (IX) Concerning Bombardment by Naval Forces in Time of
    War, Oct. 18, 1907, 36 Stat. 2351, *reprinted in* [Schindler &
    Toman]{.smallcaps}, *supra* note Error: Reference source not found,
    at 812.

[^43]: *Id*.

[^44]: *Id.*

[^45]: Parks, *supra* note Error: Reference source not found, at 18.

[^46]: Hague Rules of Air Warfare, drafted Dec. 1922-Feb. 1923
    \[hereinafter Hague Rules\], *reprinted in* [Schindler &
    Toman]{.smallcaps}, *supra* note Error: Reference source not found,
    at 207.

[^47]: Parks, *supra* note Error: Reference source not found, at 31. For
    example, Article 24(3) prohibited bombing an objective listed in
    Article 24(2) if "they cannot be bombarded without the
    indiscriminate bombardment of the civilian population." [Schindler &
    Toman]{.smallcaps}, *supra* note Error: Reference source not found,
    at 210 (quoting the Hague Rules, *supra* note Error: Reference
    source not found, art. 24, para. 3). This proposal directly
    contradicted at least two customary international law principles.
    First, it shifted the burden of avoiding an undefined
    "indiscriminate" attack to the attacker, whereas previously
    collateral damage was simply considered an allowable consequence if
    the damage was unintentional and indirect. Second, Article 24(3)
    shifted the criteria for determination of the legitimacy of an
    attack from the intent of the attacker to the results of an attack.
    Both concepts were unacceptable to the nations in attendance. Parks,
    *supra* note Error: Reference source not found, at 33.

[^48]: Article 24(2) provided an exclusive list of military 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." [Schindler & Toman]{.smallcaps}, *supra* note Error:
    Reference source not found, at 210 (quoting the Hague Rules, *supra*
    note Error: Reference source not found, art. 24, para. 2). The term
    "military objective" itself was left undefined. By providing an
    exclusive list, however, Article 24(2) contradicted customary
    international law and current military thinking. As noted by James
    Spaight, a member of the British delegation to the conference, the
    restrictive list clearly did not reflect the practice of states
    during World War I. During the war, states targeted not only those
    items listed, but also docks, warehouses, blast furnaces, power
    stations, granaries, oil wells, and more. [J.M. Spaight, Air Power
    and War Rights]{.smallcaps} 228 (3d ed. 1947). Furthermore, the
    exclusive list did not allow for the "dynamic nature of targeting,
    as the value of a potential military objective may vary depending
    upon the circumstances ruling at the time." Parks, *supra* note
    Error: Reference source not found, at 33.

[^49]: Parks, *supra* note Error: Reference source not found, at 33, 35.

[^50]: There was one final non-binding attempt to limit air warfare just
    prior to the outbreak of World War II. British Prime Minister
    Neville Chamberlain proposed three basic rules for bombing during a
    debate in the House of Commons on June 21, 1938. Chamberlain stated:

    > I think we may say that there are, at any rate, three rules of
    > international law or three principles of international law which
    > are as applicable to warfare from the air as they are to war at
    > sea or on land. In the first place, it is against international
    > law to bomb civilians as such and to make deliberate attacks upon
    > civilian populations. That is undoubtedly a violation of
    > international law. In the second place, targets which are aimed at
    > from the air must be legitimate military objectives and must be
    > capable of identification. In the third place, reasonable care
    > must be taken in attacking these military objectives so that by
    > carelessness a civilian population in the neighborhood is not
    > bombed.

    382 [Parl. Deb., H.C.]{.smallcaps} 1360 (1938), *quoted in*
    [Spaight]{.smallcaps}, *supra* note Error: Reference source not
    found, at 257. On the first day of WWII, President Franklin
    Roosevelt made a similar appeal, asking

    > every government which may be engaged in hostilities publicly to
    > affirm its determination that its armed forces shall in no event,
    > and under no circumstances, undertake the bombardment from the air
    > of civilian populations or of unfortified cities, upon the
    > understanding that these same rules of warfare will be
    > scrupulously observed by all their opponents.

    Letter of Franklin D. Roosevelt to the governments of Nazi Germany,
    Italy, France, Britain, and Poland (Sept. 1, 1939), *in* [The Impact
    of Airpower: National Security and World Politics]{.smallcaps} 68
    (Eugene M. Emme ed., 1959). Neither statement, however, was binding
    on any country, and in fact, simply reflected a universal acceptance
    of the principle of distinction. The general response of the warring
    nations was to promise to limit bombardment to "strictly military
    objectives." [Spaight]{.smallcaps}, *supra* note Error: Reference
    source not found, at 260. The end result, then, was little, if any
    effect, on actual practice during World War II. Parks, *supra* note
    Error: Reference source not found, at 36-37.

[^51]: Customary international law is created upon the concurrence of
    two events: (1) a general and consistent practice of states; and (2)
    a sense of obligation on the part of the states to follow that
    practice. [Restatement (Third) of the Foreign Relations Law of the
    United States]{.smallcaps} § 102(2) (1987).

[^52]: [Jason B. Barlow, Strategic Paralysis: An Airpower Theory for the
    Present]{.smallcaps} 25 (1994); *see also* Phillip S. Meilinger,
    *Air Strategy: Targeting for Effect,* XIII [Aerospace Power
    J.]{.smallcaps} 48, 56 (Winter 1999) ("One must realize, however,
    that the choice of strategy will have a significant effect on the
    targets selected for air attack. . . . Our policy goals and the
    nature of the war will determine the most effective air strategy to
    employ.").

[^53]: *See* [Kennett]{.smallcaps}, *supra* note Error: Reference source
    not found, at 1-22.

[^54]: *See Id*.

[^55]: For a discussion of how various countries incorporated air power
    into their military prior to WWI, see *id*.

[^56]: Richard J. Overy, *Strategic Bombardment Before 1939: Doctrine,
    Planning, and Operations*, *in* [Case Studies in Strategic
    Bombardment]{.smallcaps} 11, 13 (R. Cargill Hall ed., 1998).

[^57]: *Id.* at 13-14.

[^58]: *Id.* at 15.

[^59]: [Spaight]{.smallcaps}, *supra* note Error: Reference source not
    found, at 228-29. For a full discussion of the air warfare practice
    of states during WWI, see *id.* at 220-43; *see generally*
    [Kennett]{.smallcaps}, *supra* note Error: Reference source not
    found.

[^60]: Targets included iron, steel, chemical, and engine factories,
    docks, oil refineries and storage areas, power, water and gas
    stations, and granaries. [Spaight,]{.smallcaps} *supra* note Error:
    Reference source not found, at 228; Overy, *supra* note Error:
    Reference source not found, at 19.

[^61]: [Spaight]{.smallcaps}, *supra* note Error: Reference source not
    found, at 228.

[^62]: *Id.* at 233-36.

[^63]: Attacks were not limited to bombardment of enemy forces, but also
    included German attacks on the Channel ports and French attacks on
    the Badische Analin und Soda Fabrik, rumored to be the production
    source for German chlorine gas, as well as German dirigible hangers.
    Both sides also made attempts to attack the others' leadership, as
    the Allies attempted to attack Kaiser Wilhelm, the German Crown
    Prince, and Prince Rupprecht of Bavaria, while the Germans tried
    more than once to catch Tsar Nicholas with their bombers.
    [Kennett]{.smallcaps}, *supra* note Error: Reference source not
    found, at 49-50.

[^64]: *See* *supra* text accompanying notes 12-16.

[^65]: [Kennett]{.smallcaps}, *supra* note Error: Reference source not
    found, at 44-5. Kennett notes that prior to World War I, military
    strategists discussed the morale of the population to be a specific
    objective for strategic bombers. *Id.* For example, a French airman
    stated that while an air attack on Paris might do little in the way
    of material damage, it would have an immense psychological impact on
    Parisians; while an American aviator noted that a minor air attack
    against New York would be devastating to the population. *Id.* Such
    a result was considered desirable, as although it would kill and
    injure civilians, in the long run it would shorten the war as the
    same civilians would quickly sue for peace. *Id*. *See also* Overy,
    *supra* note Error: Reference source not found, at 14.

[^66]: Parks notes that not only was collateral damage accepted as an
    inevitable result of bombardment, but also "an equally long-standing
    principle was that collateral damage, as a result either of general
    bombardment or inaccurate bombardment, \[was\] a way in which the
    morale of an enemy nation could be affected, legally." Parks,
    *supra* note Error: Reference source not found, at 51.

[^67]: In the summer of 1917, the Germans launched a bombing campaign
    against England "partly in hopes that it would create a morale
    crisis and weaken England's willingness to prolong the conflict."
    Overy, *supra* note Error: Reference source not found, at 17. The
    targets were military and military industries, but in addition to
    destruction of the targets, the Germans hoped to collapse British
    morale. The British responded with a plan to attack military targets
    and "densely populated industrial centers" in order to destroy the
    morale of the Germans. *Id.* at 20-21.

[^68]: [M.W. Royse, La Protection Des Populations Civiles Contre Les
    Bombardments]{.smallcaps} 73-74 (1930), *quoted in* Parks, *supra*
    note Error: Reference source not found, at 41.

[^69]: Overy, *supra* note Error: Reference source not found, at 12.
    *See also* [Johnson]{.smallcaps}, *supra* note Error: Reference
    source not found, at 129-30. Johnson notes that "beginning with the
    French Revolution the entire nation was cast as simultaneously the
    cause for which to fight, the source of volunteer or conscript
    manpower, and the base of support for the military effort." *Id.*

[^70]: [Johnson]{.smallcaps}, *supra* note Error: Reference source not
    found, at 130.

[^71]: *See, e.g.,* [Robert Frank Futrell, Ideas, Concepts, Doctrine:
    Basic Thinking in the United States Air Force]{.smallcaps} 1907-1960
    75-76 (1989); John F. Shiner, *From Air Service to Air Corps: The
    Era of Billy Mitchell*, in [Winged Shield, Winged Sword: A History
    of the USAF]{.smallcaps} 71, 75 (1997).

[^72]: Oji Umozurike, *Protection of the Victims of Armed Conflicts:
    Civilian Population*, *in* [International Dimensions of Humanitarian
    Law]{.smallcaps} 187, 187 (United Nations Educational, Scientific
    and Cultural Organization ed., 1988).

[^73]: *See* discussion *infra* Part II.B.3.

[^74]: *Id*.

[^75]: Overy, *supra* note Error: Reference source not found, at 26.

[^76]: [Futrell,]{.smallcaps} *supra* note Error: Reference source not
    found, at 78-82.

[^77]: *Id.* at 11.

[^78]: The Italian air power theorist, Giulio Douhet, proposed the most
    extreme view. Douhet argued that the quickest way to end a total war
    was to attack the population directly. He believed that "war is won
    by crushing the resistance of the enemy; and this can be done more
    easily, faster, and more economically, and with less bloodshed by
    directly attacking that resistance at its weakest point." [Giulio
    Douhet, The Command of the Air]{.smallcaps} 196 (Dino Ferrari
    trans., 1942). In Douhet's view, the population was the weakest
    point. *Id*. Thus he advocated destroying morale by directly
    destroying the population.

[^79]: Overy, *supra* note Error: Reference source not found, at 26.

[^80]: IV [C. Webster & N. Frankland, The Strategic Air Offensive
    Against Germany 1939-45]{.smallcaps}, 74 (1961). During this time,
    only two air forces, the Royal Air Force and the Army Air Corps,
    made systematic operational plans for strategic air offensives.
    Others concentrated on tactical air power or delayed planning.
    Overy, *supra* note Error: Reference source not found, at 65. As the
    RAF and the Army Air Corps were the primary strategic planners
    before the war, it seems particularly important to consider their
    understanding of what constituted a legitimate military objective.

[^81]: [Spaight]{.smallcaps}, *supra* note Error: Reference source not
    found, at 259.

[^82]: Bernard C. Nalty, *The Army Air Forces in Desperate Battle,
    1941-1942,* in [Winged Shield, Winged Sword: A History of the
    USAF]{.smallcaps} 201, 222-24 (1997).

[^83]: Stephen L. McFarland & Wesley Phillips Newton, *The American
    Strategic Air Offensive Against Germany in World War II, in* [Case
    Studies in Strategic Bombardment]{.smallcaps} 183, 184 (R. Cargill
    Hall ed., 1998).

[^84]: *Id.* at 224-26.

[^85]: W.A. Jacobs, *The British Strategic Air Offensive Against Germany
    in World War II, in* [Case Studies in Strategic
    Bombardment]{.smallcaps} 91, 118 (R. Cargill Hall ed., 1998)

    > While mass bombing attacks on civilian morale were much discussed
    > after World War I within and beyond the RAF, none of the \[war
    > plans\] drafted before World War II singled out morale as a
    > target. Moreover, none of the first three Air Ministry directives
    > issued to Bomber Command in early 1940 even mentioned the civilian
    > population or morale in any way.

    *Id*. It was not until after the Luftwaffe bombing raids on London
    began in the fall of 1940 that Air Ministry directives addressed
    morale. At that time, the directives paired "traditional selective
    economic targets with a secondary emphasis on civilian morale."
    *Id.* at 119.

[^86]: For a full discussion of the development of AWPD-1, see
    [Hansell]{.smallcaps}, *supra* note Error: Reference source not
    found, at 33.

[^87]: AWPD-1 was written by a small number of influential airmen, all
    of whom had ties to the Army's Air Corps Tactical School (ACTS). The
    ACTS was the focal point for development of strategic doctrine prior
    to World War II. Therefore, not surprisingly, AWPD-1 reflected the
    ACTS view advocating direct attacks on the enemy's economic
    structure for the dual purposes of reducing the capability and
    willingness of the enemy to continue the war. [Barlow]{.smallcaps},
    *supra* note Error: Reference source not found, at 47; *see also*
    Peter R. Faber, *Interwar US Army Aviation and the Air Corps
    Tactical School: Incubators of American Airpower, in* [The Paths of
    Heaven: The Evolution of Airpower Theory]{.smallcaps} 183, 211-21
    (1997).

[^88]: Under the sub-heading of "Possible Lines of Action," AWPD-1
    included "undermining of German morale by air attack" as a potential
    line of action for an air offensive. [Hansell]{.smallcaps}, *supra*
    note 2, at 299 (extract of AWPD-1).

[^89]: Overy, *supra* note Error: Reference source not found, at 71.

[^90]: [Edward C. Holland, III, Fighting with a conscience: The Effects
    of an American Sense of Morality on the Evolution of Strategic
    Bombing Campaigns]{.smallcaps} 16 (1992).

[^91]: [Richard D. Davis, Carl A. Spaatz and the Air War in
    Europe]{.smallcaps} 155 (1993).

[^92]: *Id.* at 589.

[^93]: [Webster & Frankland,]{.smallcaps} *supra* note Error: Reference
    source not found, at app. 8, pt. 28.

[^94]: This division of work reflected not only the differing
    technological capabilities between the Allies, but also their
    interpretation of the Directive. The RAF focused on the portion
    concerning morale. They did not, however, interpret this to allow
    random killing of large numbers of people. However, "it did entail
    depriving them of their homes, heat, light, water, urban
    transportation, and perhaps food. Homeless and hungry workers, they
    reasoned, do not produce munitions and, like soldiers who are
    wounded, are a greater impediment to the state at war than dead
    ones." [Hansell]{.smallcaps}, *supra* note Error: Reference source
    not found, at 169. The American forces, however, concentrated on the
    portion regarding destruction of the industrial and economic system
    as the key to a "fatal weakening." However, "the differences between
    British and American airmen were not as deep as might appear on the
    surface. . . . The debate was over method, and was related more to
    operational equipment and capability and survivability than to the
    need for 'fatal weakening' per se." *Id.* at 169-70.

[^95]: Parks, *supra* note Error: Reference source not found, at 52.

[^96]: *See infra* Part II.B.3. *But see* Judith Gail Gardam,
    *Proportionality and Force in International Law*, 87 [Am. J. Int'l
    L.]{.smallcaps} 391, 401 (1993) (States agreeing at a minimum, "that
    the deliberate targeting of the civilian population for the purpose
    of terrorization was unlawful.").

[^97]: *See generally* [Stephen T. Hosmer, Psychological Effects of U.S.
    Air Operations in Four Wars 1941-1991: Lessons for U.S.
    Commanders]{.smallcaps} (1996) (discussing the psychological effects
    of bombardment on both enemy civilians and enemy combatants); [The
    United States Strategic Bombing Surveys (European War, Pacific
    War)]{.smallcaps} (reprint 1987) \[hereinafter [USSBS]{.smallcaps}\]
    (reprint of the summary reports of the strategic bombing surveys
    conducted at the close of World War II); Martin L. Fracker,
    *Psychological Effects of Aerial Bombardment*, VI [Airpower J.
    56]{.smallcaps} (Fall 1992) (arguing that the effects of aerial
    bombardment on civilian morale primarily depend on the expectation
    of the population).

[^98]: Gardam, *supra* note Error: Reference source not found, at 400.
    While Gardam's statement is accurate in that it reflects a "new"
    means by which militaries can inflict massive damage on civilians,
    by no means is airpower the only, or even predominant, means by
    which civilians have been killed. During World War II, only 1.5 to 2
    million of the approximately 40 million civilian deaths were
    attributable to strategic bombardment. [Williamson Murray & Allan R.
    Millett, A War to be Won: Fighting the Second World War]{.smallcaps}
    554-55 (2000). Further, the horrific casualties in some of the most
    recent conflicts, Rwanda, Sierra Leone, Angola, East Timor, and
    Kosovo, resulted almost exclusively from conflict on the ground.
    *See* [Gerard Prunier, The Rwanda Crisis: History of a Genocide
    255-57, 261-65 (1995) (]{.smallcaps}estimating approximately 800,000
    killed, the majority by the use of guns or machetes); Human Rights
    Watch, *Government Human Rights Commissions in Africa: Sierra
    Leone*, *at*
    http://hrw.org/reports/2001/africa/sierraleone/sierraleone.html
    (last visited Nov. 5, 2001) (noting that the rebels accounted for
    vast numbers of civilian murders, rapes, executions, and limb
    amputations); Amnesty International, *1999 Annual Report on the
    Republic of Sierra Leone, at*
    http://www.amnesty.org/ailib/aireport/ar99/afr51.htm (last visited
    Nov. 5, 2001) (cataloging the thousands of civilians killed or
    abused by rebel forces); Amnesty International, *1999 Annual Report
    on the Republic of Angola, at* http://www.amnesty.org/ailib/aireport

    /ar99/afr12.htm (last visited Nov. 5, 2001) (noting the deaths and
    disappearances of hundreds of civilians at the hands of both
    government and rebel forces); Hansjorg Strohmeyer, *Collapse and
    Reconstruction of a Judicial System: The United Nations Missions in
    Kosovo and East Timor*, 95 [Am. J. Int'l L.]{.smallcaps} 46, 46 nn.
    1-2, 50 (2001) (discussing the massive ethnic cleansing conducted
    against civilians by local armed forces in both Kosovo and East
    Timor).

[^99]: *See, e.g.,* Geneva Conventions, *supra* note Error: Reference
    source not found.

[^100]: Parks, *supra* note Error: Reference source not found, at 64.

[^101]: *See Draft Rules for the Limitation of the Dangers Incurred by
    the Civilian Population in Time of War,* ICRC (1956), *reprinted in*
    [Schindler & Toman]{.smallcaps}, *supra* note Error: Reference
    source not found, at 251; *Protection of Civilian Populations
    Against the Dangers of Indiscriminate Warfare*, ICRC Res. XXVIII
    (1965), *reprinted in* [Schindler & Toman]{.smallcaps}, *supra* note
    Error: Reference source not found, at 259; *Human Rights in Armed
    Conflict*, Int'l Conf. on Human Rights Res. XXIII (May 12, 1968),
    *reprinted in* [Schindler & Toman]{.smallcaps}, *supra* note Error:
    Reference source not found, at 261; *Respect for Human Rights in
    Armed Conflicts*, G.A. Res. 2444, U.N. GAOR, 23^rd^ Sess., Supp. No.
    18, at 50-51, U.N. Doc. A/7218 (1969), *reprinted in* [Schindler &
    Toman]{.smallcaps}, *supra* note Error: Reference source not found,
    at 263; *The Distinction Between Military Objectives and
    Non-Military Objects in General and Particularly the Problems
    Associated with Weapons of Mass Destruction*, Inst. of Int'l Law
    Res. (Sept. 9, 1969), *reprinted in* [Schindler &
    Toman]{.smallcaps}, *supra* note Error: Reference source not found,
    at 265; *Basic Principles for the Protection of Civilian Populations
    in Armed Conflicts*, G.A. Res. 2675, U.N. GAOR, 25^th^ Sess., Supp.
    No. 28, at 76, U.N. Doc. A/8028 (1971), *reprinted in* [Schindler &
    Toman]{.smallcaps}, *supra* note Error: Reference source not found,
    at 267.

[^102]: Parks, *supra* note Error: Reference source not found, at 66.

[^103]: Letter from General Counsel, Department of Defense, to Senator
    Edward M. Kennedy (Sept. 22, 1972) *in* Arthur W. Rovine,
    *Contemporary Practice of the United States Relating to
    International Law*, 67 [Am. J. Int'l. L.]{.smallcaps} 122, 123
    (1973).

[^104]: [International Committee of the Red Cross, Commentary on the
    Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
    August 1949]{.smallcaps} xxxii-xxxiii (Yves Sandoz et al. eds.,
    1987) \[hereinafter [ICRC Commentary]{.smallcaps}\].

[^105]: Protocol I, *supra* note Error: Reference source not found,
    Protocol II, *supra* note Error: Reference source not found.

[^106]: *See generally* [ICRC Commentary,]{.smallcaps} *supra* note
    Error: Reference source not found; W. Hays Parks, *The 1977
    Protocols to the Geneva Conventions of 1949*, [Naval War C.
    Rev.]{.smallcaps} 17-27 (Fall 1978).

[^107]: Parks, *supra* note Error: Reference source not found, at 76.
    With regard to the employment of air power, "there was no delegate
    at the Diplomatic Conference who had dropped a bomb in anger in the
    quarter century preceding the conference," to include the United
    States delegation. *Id*. at 78, n.261. Considering the quantum leaps
    in air power technology and doctrine since the end of World War II,
    it seems particularly negligent to attempt to regulate the use of
    air power without the input of those familiar with its use and
    capabilities. In theory, this deficiency could have been addressed
    by ensuring that draft proposals received military review and input
    before acceptance. In reality, however, this was not the case. It
    was not until 1981, four years after the United States signed the
    Protocols, that a full military review of the provisions took place.
    *Id.* at 91. As Parks notes, although the United States delegation
    often assumed their interpretation of the effect of various
    provisions was correct, in fact, "the U.S. delegation made numerous
    decisions regarding provisions in Protocol I and Protocol II without
    an appreciation of their potential implications, and without
    consultation with the military services." *Id.* at n.259.

[^108]: For a list of attendees, see [Schindler & Toman]{.smallcaps},
    *supra* note Error: Reference source not found, at 700-03.

[^109]: As the senior U.S. representative to the Conference of
    Government Experts, Ambassador George H. Aldrich noted:

    > 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. Department 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, Geneva]{.smallcaps}, May 3-Jun 2, 1972, 54 (1972). Things
    had not changed much since the Hague Convention of 1899, where the
    Russians hoped for a slow in the growth of land armaments primarily
    because they realized its artillery was quickly becoming inferior to
    that of the Germans and Australians. Additionally, those present who
    lagged behind in submarine capabilities attempted to limit the
    future uses of submarines. [Kennett]{.smallcaps}, *supra* note
    Error: Reference source not found, at 1.

[^110]: *See* discussion *supra* Part II.B.3.

[^111]: [Harry G. Summers, Jr., On Strategy: A Critical Analysis of the
    Vietnam War]{.smallcaps} 5 (1982). Colonel Summers derives his
    trinity from Clausewitz' *On War.* Clausewitz' trinity is made up of
    three forces: (1) primordial violence, hatred, and enmity; (2)
    forces not the product of human thought or intent, such as friction;
    and (3) war's subordination to reason as an instrument of policy.
    [Clausewitz]{.smallcaps}, *supra* note Error: Reference source not
    found, at 89. Clausewitz then links these three forces with, in
    order, the people, the military, and the government. *Id.* From
    this, many have inaccurately cited the people, the military, and the
    government as Clausewitz' "remarkable trinity." Edward Villacres &
    Christopher Bassford, *Reclaiming the Clausewitzian Trinity*,
    [Parameters]{.smallcaps} 9, 11 (Autumn 1995).

[^112]: [Summers]{.smallcaps}, *supra* note Error: Reference source not
    found, at 5-6; [Clausewitz]{.smallcaps}, *supra* note Error:
    Reference source not found, at 89.

[^113]: *See* discussion *infra* Part III.A.3-4.

[^114]: *See* discussion *supra* Part II.B.3.

[^115]: The Commentary makes clear that "objective" is defined as "the
    point aimed at;" in other words, the target. [ICRC
    Commentary]{.smallcaps}, *supra* note Error: Reference source not
    found, at 634. It was not intended to encompass "the general
    objective (in the sense of aim or purpose) of a military operation."
    *Id*.

[^116]: *See* discussion *infra* Part III.B.

[^117]: Article 52(2) is not the only provision that is a reversal of
    customary international law. *See* Parks, *supra* note Error:
    Reference source not found, at 94-101, 173 (comparing prior
    customary international law to the Protocol provisions regarding
    reprisals, prisoner of war status, and the principle of
    proportionality).

[^118]: Human Rights Watch, Vol. 12, No 1. *Civilian Deaths in the NATO
    Air Campaign* (Feb. 2000), *available at*
    http://www.hrw.org/reports/2000/nato/index.htm (on file with the Air
    Force Law Review) \[hereinafter HRW Report\].

[^119]: *Id*.

[^120]: *Id.*

[^121]: *Id.*

[^122]: *Id.*

[^123]: *Id.*

[^124]: *Id.*

[^125]: *Id.*

[^126]: *Id.* (emphasis added).

[^127]: 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),
    *available at* http://www.web.amnesty.org/ai.nsf/index/EUR700182000
    (on file with the Air Force Law Review).

[^128]: *Id.* at 38.

[^129]: *Id.* at 39.

[^130]: *Id.*

[^131]: *Id*.; HRW Report, *supra* note Error: Reference source not
    found.

[^132]: One could argue that the simple existence of such "extreme" or
    "fringe" interpretations by these organizations has little or no
    real effect on the international community. However, no less than
    the Office of the Prosecutor of the International Criminal Tribunal
    for Yugoslavia considered the reports of both organizations, as well
    as the organizations' calls for indictments of NATO political and
    military figures, when determining if the Court should indict such
    figures. International Criminal Tribunal for Yugoslavia, *Final
    Report to the Prosecutor by the Committee Established to Review the
    NATO Bombing Campaign Against the Federal Republic of Yugoslavia*,
    para. 6 (June 13, 2000), *reprinted in* 39 ILM 1257, 1258 (2000)
    \[hereinafter *Final Report to ICTY*\].

[^133]: Note the similarity of Article 52(2)'s language with that
    contained in Article 24(1) of the 1923 Hague Air Rules: "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." [Schindler & Toman]{.smallcaps}, *supra* note Error:
    Reference source not found, at 210 (quoting the Hague Rules, *supra*
    note Error: Reference source not found, art. 24, para. 1).

[^134]: War, however, is fought at a strategic level, with strategic
    targets. Limitation of Article 52(2) to tactical targets purposely
    ignores this reality. *See* [Final Report on the Conduct of the Gulf
    War]{.smallcaps} 613 (1992) (stating that "military advantage is not
    restricted to tactical gains, but is linked to the full context of
    war strategy").

[^135]: "Military" is normally defined as "of, for, or pertaining to the
    armed forces," or "of, for, or pertaining to war." *See* [Random
    House Webster's Unabridged Dictionary]{.smallcaps} 1220 (2d ed.
    1998).

[^136]: John A. Warden, III, *The Enemy as a System,* 1 [Airpower
    J.]{.smallcaps} 40, 43 (Spring 1995).

[^137]: [Clausewitz]{.smallcaps}, *supra* note Error: Reference source
    not found, at 87.

[^138]: [Spaight]{.smallcaps}, *supra* note Error: Reference source not
    found, at 2.

[^139]: Lieutenant General Harold L. George, Chief, Bombardment Section,
    Air Corps Tactical School, Lecture to ACTS students, 1932, *quoted
    in* [Hansell]{.smallcaps}, *supra* note Error: Reference source not
    found, at 33.

[^140]: *See* [ICRC Commentary]{.smallcaps}, *supra* note Error:
    Reference source not found, at 636.

[^141]: In fact, means short of force are often used against countries
    to pressure them to modify their behavior. The UN Charter
    specifically sanctions the use of these measures, such as economic
    embargoes and diplomatic pressures, when determined appropriate by
    the Security Council. [U.N. Charter]{.smallcaps} art. 41. These
    measures are specifically intended to bend a country's will to that
    of another country or group of countries.

[^142]: See discussion *supra* Part II.B.3.

[^143]: *Id*.

[^144]: *Id.*

[^145]: [USSBS,]{.smallcaps} *supra* note Error: Reference source not
    found, at 95. Arguably such effects ultimately result in little or
    no gain when imposed upon populations of totalitarian states.
    Nonetheless, it is still instructive to note that such degeneration
    of morale through air power is possible.

[^146]: *Id.*

[^147]: Warden, *supra* note Error: Reference source not found, at 8.

[^148]: [Robert F. Futrell, The United States Air Force in Korea
    1950-1953,]{.smallcaps} 516 (1983).

[^149]: *Id.* at 521.

[^150]: [Hosmer]{.smallcaps}, *supra* note Error: Reference source not
    found, at 17-18; *see also* [Robert Frank Futrell, Ideas, Concepts,
    Doctrine: Basic Thinking in the United States Air Force
    1907-1960,]{.smallcaps} 340-45 (1989).

[^151]: [Hosmer]{.smallcaps}, *supra* note Error: Reference source not
    found, at 39. Interestingly, the North Vietnamese were also able to
    attack and affect the morale of the United States population, albeit
    in a more indirect way. "As the North Vietnamese showed, it is
    entirely possible to create conditions that lead the civilian
    population of the enemy to call on its government to change the
    state's policies. The North Vietnamese accomplished their aims by
    raising American military casualty levels higher than the American
    people would tolerate." Warden, *supra* note Error: Reference source
    not found, at 8.

[^152]: [Richard P. Hallion, Storm Over Iraq: Air Power and the Gulf
    War]{.smallcaps} 218-19 (1992) (giving several examples of the
    B-52s' effect on the Iraqi surrender).

[^153]: *Id*.

[^154]: As the Coalition had hoped, some did not even have to experience
    an attack before surrendering. One troop commander stated that he
    had surrendered because of the B-52 attacks. When told that his
    position had never been attacked by B-52's, he replied "That is
    true, but I saw one that *had* been attacked." *Id.* at 218.

[^155]: Meilinger, *supra* note Error: Reference source not found, at
    11.

[^156]: *See* [United States Strategic Bombing Survey, Japanese Air
    Power]{.smallcaps} 10 (July 1946).

[^157]: *Id*.

[^158]: [Ronald H. Spector, Eagle Against the Sun: The American War With
    Japan]{.smallcaps} 155 (1985); [John Keegan, The Second World
    War]{.smallcaps} 271 (1989).

[^159]: W. Hays Parks, *Conventional Aerial Bombing and the Law of War,
    in* [Proceedings, Naval Review]{.smallcaps} 98, 114 (1982).

[^160]: Parks, *supra* note Error: Reference source not found, at
    176-77. Whether one agrees that firebombing was the best way to
    achieve Allied ends is a question not addressed here.

[^161]: Such a statement is not an extreme view, in light of the stance
    already taken by an eminent international lawyer. Professor Hamilton
    DeSaussure argues, based on Article 52(2)'s requirement of a
    military advantage, that the Linebacker II bombing during Vietnam
    was an illegal operation. Hamilton DeSaussure & Robert Glasser,
    *Methods and Means of Warfare: Air Warfare---Christmas 1972, in*
    [Law and Responsibility in Warfare: The Vietnam
    Experience]{.smallcaps} 119-39 (Peter D. Trooboff ed., 1975).
    DeSaussure states: "any destruction that is not primarily and
    predominantly designed to weaken the enemy military is unlawful.
    When its foremost purpose is to coerce an immediate political
    settlement, it is illegal per se, even though military objects are
    targeted." *Id.* at 139.

[^162]: Such an interpretation would still, of course, have to comply
    with basic principles of the law of war, such as the principles of
    distinction and proportionality, and the prohibition against
    unnecessary suffering.

[^163]: Overy, *supra* note Error: Reference source not found, at 11.

[^164]: [Douhet,]{.smallcaps} *supra* note Error: Reference source not
    found, at 179.

[^165]: [Spaight]{.smallcaps}, *supra* note Error: Reference source not
    found, at 3.

[^166]: Mark A. Clodfelter, *Molding Airpower Convictions: Development
    and Legacy of William Mitchell's Strategic Thought, in* [The Paths
    of Heaven: The Evolution of Airpower Theory]{.smallcaps} 79, 96
    (Phillip S. Meilinger ed., 1997).

[^167]: Phillip S. Meilinger, *Trenchard, Slessor, and Royal Air Force
    Doctrine before World War II, in* [The Paths of Heaven: The
    Evolution of Airpower Theory]{.smallcaps} 41, 41-42 (Phillip S.
    Meilinger ed., 1997).

[^168]: Faber, *supra* note Error: Reference source not found, at 215.

[^169]: [Air Force Doctrine Document I: Air Force Basic Doctrine
    \[AFDD-1\]]{.smallcaps} 6-7 (1997) (emphasis added).

[^170]: *Id.* at 51.

[^171]: [U.S. Dep't of Air Force Pam.]{.smallcaps} 14-210, [USAF
    Intelligence Targeting Guide]{.smallcaps}, para. 1.7.1 (1 Feb. 98).

[^172]: *Id.*

[^173]: *See* text accompanying note Error: Reference source not found.

[^174]: The commentary states:

    > The definition \[of a military objective\] comprises two elements:
    >
    > a\) the nature, location, purpose or use which makes an effective
    > contribution to military action;
    >
    > b\) the total or partial destruction, capture or neutralization
    > which in the circumstances ruling at the time offers a definite
    > military advantage.
    >
    > Whenever these two elements are simultaneously present, there is a
    > military objective in the sense of the Protocol.

    [ICRC Commentary]{.smallcaps}, *supra* note Error: Reference source
    not found, at 635.

[^175]: *Id.* at 636.

[^176]: [Mark Clodfelter, The Limits of Airpower: The American Bombing
    of North Vietnam]{.smallcaps} 182 (1989).

[^177]: Targets included rail yards, storage areas, power plants,
    communication centers, and airfields. *Id.* at 184.

[^178]: *Id.* at 172.

[^179]: Some have gone so far as to argue that almost "every major
    military target and installation that could directly weaken the
    enemy forces in the South had been destroyed well before December
    1972." DeSaussure & Glasser, *supra* note Error: Reference source
    not found, at 129. This argument not only ignores the existence of
    numerous previously off-limit advantageous targets, but also assumes
    that a target once struck could never again become a valid target.

[^180]: *Id.* at 121, *quoting* General Earl Wheeler, then Chairman of
    the Joint Chiefs of Staff and Secretary of Defense Robert McNamara;
    *see also* [Clodfelter]{.smallcaps}, *supra* note Error: Reference
    source not found, at 189 ("Haiphong's absence from the strike list
    was symptomatic of a new problem for the Air Force planners: a lack
    of suitable targets.").

[^181]: B-52s alone dropped 15,237 tons of bombs during Linebacker II.
    Navy and Air Force fighters combined to drop roughly another 5,000
    tons. [Clodfelter,]{.smallcaps} *supra* note Error: Reference source
    not found, at 194.

[^182]: It must be kept in mind, however, that one of the main reasons
    for the destruction of the military was not necessarily to destroy
    the military per se, but to remove the Serbian capability to
    continue ethnic cleansing in the region. Interview by PBS with U.S.
    Army General Wesley Clark, Supreme Allied Commander, NATO, (Feb. 2,
    2000) *at* http://www.pbs.org

    /wgbh/pages/frontline/shows/kosovo/interviews/clark.html (visited
    Apr. 16, 2001) (on file with the Air Force Law Review) \[hereinafter
    Clark Interview\] ("\[i\]t was very important militarily \[to bomb
    the Serb ground forces as\] these forces were the agents and the
    support of the ethnic cleansing."). Additionally, strikes at Serbian
    troops prevented them from mounting an effective offensive against
    the Kosovo Liberation Army. James A. Kitfield, *Another Look at the
    Air War That Was,* 82 [Air Force Mag. 4]{.smallcaps} (Oct. 1999),
    *available at* http://www.afa.org/magazine/1099eaker.html (on file
    with the Air Force Law Review); *see also* Clark Interview ("It was
    clear that \[Milosevic\] was going to use his military forces \[to
    finish off the KLA\]. Therefore, they quite properly became one of
    the focuses of the campaign.") Finally, if and when NATO ground
    troops were to be deployed, any prior reduction of Serbian troops in
    Kosovo would have been welcomed by NATO planners.

[^183]: General Klaus Naumann, Chairman of the North Atlantic Treaty
    Organization's Military Committee, stated that the military option
    was intended "to go after those targets which really hit the
    opponent and force him to accept our will." Interview by PBS with
    Gen. Klaus Naumann, Chairman, NATO Military Committee (Feb. 22,
    2000) *available at*
    http://www.pbs.org/wgbh/pages/frontline/shows/kosovo/interviews/naumann.html
    (visited Apr. 16, 2001) (on file with the Air Force Law Review).
    NATO goals demanded that Serbia: "(1) halt the ethnic-cleansing
    campaign against ethnic Albanian Kosovars, (2) pull Serb troops and
    police from Kosovo, (3) permit deployment in Kosovo of a NATO-led
    peacekeeping force, (4) allow the expelled Kosovars to return to
    their homes, and (5) resume participation in efforts to reach a
    political solution in Kosovo." John A. Tirpak, *Victory in Kosovo*,
    82 [Air Force Mag.]{.smallcaps} 2 (July 1999), *available at*
    http://www.afa.org/magazine/watch/0799watch.html (on file with the
    Air Force Law Review).

[^184]: Tirpak, *supra* note Error: Reference source not found, at 5.

[^185]: Clark Interview, *supra* note Error: Reference source not found.

[^186]: Similar to the Linebacker II campaign in Vietnam, a primary goal
    of the air campaign was to bring Milosevic back into negotiations
    with the NATO countries: "The lights are going out, the bridges are
    coming down, and the military headquarters are going to be blown up.
    And we're going to go after that target set until it's destroyed. We
    think that'll bring Milosevic to the table." Interview by PBS with
    Lt. Gen. Michael C. Short, Joint Forces Air Component Commander,
    NATO (Feb. 22, 2000), *available at* http://www.pbs.org/wgbh/pages

    /frontline/shows/kosovo/interviews/short.html (visited Apr. 16,
    2001) (on file with the Air Force Law Review) \[hereinafter Short
    Interview\].

[^187]: From the beginning, U.S. Air Force leaders considered striking
    Milosevic's 3^rd^ Army to be a waste of time and assets. Lt. Gen.
    Michael C. Short, NATO's Joint Force Air Component Commander stated
    that he never felt the Serbian Army was a center of gravity. Short
    did not think that Milosevic considered his own Army important:
    "Body bags coming home from Kosovo didn't bother \[Milosevic\], and
    it didn't bother the \[Yugoslav\] leadership elite." Dana Priest,
    *The Commander's War: The Battle Inside Headquarters*, [Wash.
    Post]{.smallcaps}, Sept. 21, 1999, A1.

[^188]: *See* [AFDD-1,]{.smallcaps} *supra* note Error: Reference source
    not found, at 79 (defining centers of gravity as "those
    characteristics, capabilities, or localities from which a military
    force derives its freedom of action, physical strength, or will to
    fight.").

[^189]: "\[M\]ost analysts agree that the Air Force's campaign against
    bridges, buildings, refineries, and other fixed targets---once NATO
    approved them---was an enormous success." Richard J. Newman, *The
    Bombs that Failed in Kosovo*, [U.S. News & World Rep. 28,
    30]{.smallcaps} (Sept. 20, 1999).

[^190]: Clark Interview, *supra* note Error: Reference source not found.

[^191]: Kitfield, *supra* note Error: Reference source not found, at
    4-5.

[^192]: Lt. Gen. Short clearly suggested that NATO's intent was to
    affect Serb civilians:

    > There can be no doubt in your mind that with the power down as the
    > result of a hard kill and refrigerator not running and no water in
    > your house and the public transportation system in Belgrade not
    > running and no street lights, that the war was brought home, not
    > just to the ruling elite, but to the average Serb on the street.

    Interview by Steve Inskeep with Lt. Gen. Michael C. Short, NATO
    Joint Forces Air Component Commander, *NPR's Morning Edition*
    (National Public Radio broadcast, Sept. 15, 1999) (on file with
    author).

[^193]: *See supra* Part III.A.1.

[^194]: Edward N. Luttwak, senior fellow at the Center for Strategic and
    International Studies, *quoted in* Kitfield, *supra* note Error:
    Reference source not found, at 4.

[^195]: [ICRC Commentary,]{.smallcaps} *supra* note Error: Reference
    source not found, at xxxiv.

[^196]: *See* [U.S. Dep't of Air Force Pam. 14-210, USAF Intelligence
    Targeting Guide,]{.smallcaps} para. A4.2.2 (1 Feb. 98). Other
    targets include fuel depots, transportation systems, communication
    systems.

[^197]: [Edward C. Mann, III, Thunder and Lightning: Desert Storm and
    the Airpower Debates]{.smallcaps} 44 (1995); [Thomas A. Keaney &
    Eliot A. Cohen, Revolution in Warfare? Air Power in the Persian
    Gulf]{.smallcaps} 36 (1995).

[^198]: [Keaney & Eliot]{.smallcaps}, *supra* note Error: Reference
    source not found, at 34-36. Destruction of the targets provided
    military advantages to the Coalition, but it was clear that planners
    also envisioned and considered the effect on civilian morale and
    will to fight. *Id.*

[^199]: Charles J. Dunlap, Jr., *Technology: Recomplicating Moral Life
    for the Nation's Defenders, in* XXIX [Parameters]{.smallcaps} 24,
    30-31 (1999); Gardam, *supra* note Error: Reference source not
    found, at n.13.

[^200]: *See* *supra* text accompanying notes Error: Reference source
    not found-Error: Reference source not found.

[^201]: For example, the short-term military advantage of destroying
    bridges over the Danube has caused other long-term effects. *See*
    e.g. *Romania Loses \$100M Over Danube*, [AP
    Worldstream]{.smallcaps}, Mar. 19 2000, available in Lexis-Nexis
    library AP file (reporting that Romania has lost over \$100 million
    in shipping revenue due to rubble blocking the Danube after NATO
    bombing of Danube bridges) (on file with the Air Force Law Review).

[^202]: Dana Priest, *The Commander's War: Bombing by Committee*, [Wash.
    Post]{.smallcaps}, Sept. 20, 1999, at A1.

[^203]: *Id.* at A10.

[^204]: *Id.*

[^205]: Others would argue that even short-term disruption of power can
    provide a military advantage such as temporary safe air corridors.

[^206]: *Id.*

[^207]: Dana Priest, *Air Chief Faults Kosovo Strategy*, [Wash.
    Post]{.smallcaps}, Oct. 22, 1999, at A14.

[^208]: Including striking those targets that the independent group
    Human Rights Watch considered violations of Article 52(2), the group
    estimated that only between 488 and 527 civilian deaths occurred as
    a result of NATO bombing in Kosovo. *See* HRW Report, *supra* note
    Error: Reference source not found. While any civilian death is
    tragic, relative to the amount of air munitions released (23,614
    munitions by NATO's estimate) civilian casualties were extremely
    low. *Final Report to ICTY, supra* note Error: Reference source not
    found, at para. 54.

[^209]: Charles J. Dunlap, Jr., *The End of Innocence: Rethinking
    Noncombatancy in the Post-Kosovo Era,* [Strategic
    Review]{.smallcaps} 9, 17 (Summer 2000).

[^210]: *Id*. at 11-16. Examples include banks, financial institutions,
    and factories and stores that produce and sell luxury products. Id.
    at 14.

[^211]: *Id*. at 13-14 and 16.

[^212]: *Id*. at 15. Article 54, Protocol I already prohibits the
    targeting of objects "indispensable" to civilian survival, such as
    food and water, when the intent is to deny them to civilians.
    Protocol I, *supra* note Error: Reference source not found, art. 54.

[^213]: Dunlap *supra* note Error: Reference source not found.

[^214]: [Spaight]{.smallcaps}, *supra* note Error: Reference source not
    found, at 17-18.

[^215]: [William T. Sherman, Memoirs]{.smallcaps} 585 (1990).

[^216]: Dunlap *supra* note Error: Reference source not found, at 14-15.

[^217]: *Id.* at 14.

[^218]: Edward N. Luttwak, senior fellow at the Center for Strategic and
    International Studies, *quoted in* Kitfield, *supra* note Error:
    Reference source not found, at 4.

[^219]: Air power is uniquely capable of directly and immediately
    affecting the enemy's will:

    > when the decision is made to use force, then \[air power\]
    > need\[s\] to go in with overwhelming force, quite frankly,
    > extraordinary violence that the speed of it, the lethality of it,
    > the weight of it has to make an incredible impression on the
    > adversary, to such a degree that he is stunned and shocked and his
    > people are immediately asking, \`Why in the world are we doing
    > this? If this is just the first night, then what in the world is
    > the rest of it going to be like? How long can we endure it, and
    > more importantly, why are we having to endure it? Let's ask our
    > leaders why this is happening.

    Short Interview, *supra* note Error: Reference source not found.

[^220]: *See* Protocol I, *supra* note Error: Reference source not
    found, art. 52, para. 2.