WAR HAS always had rules, even if only to protect the dead. In The Iliad, for example, Homer tells us that Achilles' desecration of Hector's corpse angered the gods. Medieval churchmen sought to limit warfare to certain days of the week and evolved an entire just war theology to constrain the use of armed force. By the Age of Reason, international law "publicists" were busily expounding on the subject, and the 20th century opened with a substantial body of law governing both the right to initiate combat (jus ad bellum) and how armed force is applied (jus in bello). These "laws of war" were based both on custom and treaties and were accepted by all of the Great Powers--including the United States. In more recent years, however, fissures have opened between America and Europe over what the laws of war require with respect to when it is permissible to launch an armed attack, how warfare must be waged, and how the relevant legal norms should be enforced. Today, these disagreements are so fundamental that America and its partners in Europe can be said to operate under different legal codes.

The core of this divergence can be traced to efforts--largely initiated during the Vietnam War era--both to leash the dogs of war and make the laws of combat more humane by mimicking the rules governing domestic police activities, in which deadly force is always the last resort and must not be applied in an "excessive" manner. In the process, "humanitarian" concerns were to be elevated above considerations of military necessity and national interest.

These efforts have taken the form of multilateral conventions, such as the 1977 Protocol I Additional to the 1949 Geneva Conventions (Protocol I) or the 1997 Ottawa anti-landmine convention, and of new interpretations of existing treaties (such as the UN Charter), or of customary norms. Although the United States helped to negotiate a number of these treaties, it has steadfastly rejected the most sweeping innovations, favoring instead more traditional jus ad bellum and jus in bello norms. In particular, the United States has clearly asserted that it will use force, where necessary, to defend its interests with or without UN Security Council approval, and has rejected agreements that could be interpreted as contrary to key aspects of U.S. military doctrine.

This reticence is not part of a nefarious American effort to achieve immunity from international law, as critics have sometimes asserted. Unlike many countries, which embrace new international conventions with little intent to comply thereafter, the United States has always taken its obligations seriously--refusing, for example, to ratify treaties it does not plan to implement, whether because of policy or constitutional concerns. What the critics fail to realize is that binding international legal obligations must be based on the consent of the affected states. They cannot be imposed. In eschewing many of the new international legal norms accepted by Europe, the United States has simply acted within its legal rights as an independent sovereign.

Nor does the American refusal to follow Europe's lead in this area stem from any lack of humanitarian zeal. Rather, it can be traced to recognition by the United States that the world remains a dangerous place, and that adoption of a "policing" model for warfare would hamper, if not cripple, America's ability to defend itself--and its allies. Peacetime norms, which guide the conduct of police and security establishments in modern democracies, are far more restrictive than the laws of war because they operate in an environment in which the state has an effective monopoly on the lawful use of force, and in which the damage that any single individual or group can inflict is limited. The laws of war, by contrast, apply in a context in which the state does not have a monopoly on either the lawful right to use force or on the use of the most destructive weapons. War and peace remain different worlds, each with a unique logic and distinct imperatives that require dissimilar rules.

Accepting a "policing" model for warfare would undermine the key tenets of American strategic thinking. For starters, the fundamental American doctrine of "decisive force" would have to go. Any robust use of force is certain to cause some civilian casualties, and, under a model of armed conflict better suited to "managing" problems than winning wars, decisive force would be considered "excessive" and subject to sanction. Similarly, the high value the United States places on force protection would be suspect under these rules. Indeed, one of the principal allegations leveled against the United States is that it has improperly sought to shield its soldiers from the dangers of combat--for example, by operating its aircraft at heights well beyond the range of enemy air defenses, making it difficult in many cases to distinguish between military and civilian targets.

Overall, the importance of this Euro-American doctrinal divergence cannot be overestimated. For the first time in modern history, the principal military powers differ fundamentally over the proper rules governing warfare.

The Legitimate Use of Armed Force

NOWHERE are the divisions between the United States and its European allies deeper or more apparent than on the question of when the use of armed force is legally permissible. In the months prior to the Coalition attack on Iraq, France and Germany insisted that force could be used legitimately only after passage of an additional UN Security Council resolution specifically authorizing it. This interpretation became the European Union mantra. Of course, the Coalition went forward regardless. Yet even such key European members of the Coalition as Britain relied solely upon Security Council resolutions for legal justification.¹ Unlike the United States, it did not also cite the inherent right to use force in self-defense. Indeed, while Europe has increasingly come to consider the UN Security Council to be the primary--if not the sole--source of legitimate authorization for the use of military force, the United States, in its September 2002 National Security Strategy, articulated a policy of strategic "pre-emption" firmly rooted in the traditional. jus ad bellum.

Proponents of the European position cite the United Nations Charter, an instrument that does bind the United States and arguably limits the right of self-defense. Certainly some of the UN's "founders" wished to "outlaw" war, and even to require countries to absorb an aggressor's first strike. (This appears to have been, for example, the position of former Minnesota Governor Harold Stassen, a member of the American delegation to the San Francisco conference. Stassen insisted that the Charter's acknowledgement of the "inherent right of individual or collective self-defense" also include the language "if an armed attack occurs.") The Charter as written, however, did not reflect this purpose.

Indeed, the UN Charter never purported to replace the jus ad bellum. In this regard, it does not grant the right of self-defense, but acknowledges it, suggesting the continued viability of pre-Charter customary norms. When the Charter is read as a whole--as it must be--states retain the right to use force so long as they do not threaten the "territorial integrity" or "political independence" of another state, or otherwise act in a manner inconsistent with the United Nation's purposes. Indeed, the veto power--which was the sine qua non of American participation in the UN system--would have been virtually meaningless in this critical area if the Security Council's mere inaction were sufficient to deny legal legitimacy to the anticipatory defensive use of force. (Significantly, this interpretation of the Charter did not originate with the Bush Administration. For example, in a 1962 legal opinion on America's lawful alternatives in the Cuban missile crisis, the Kennedy Justice Department noted that the UN Charter does not "prohibit the taking of unilateral preventive action in self-defense prior to the occurrence of an armed attack.") And, at a time when civilians, rather than combatants, have become the targets of choice for both rogue regimes and international terrorist networks, and when at least some of these groups appear to be beyond deterrence, pre-emptive military action taken in self-defense is far more likely to promote international peace and security than it is to threaten it.

The survival of traditional self-defense norms becomes especially clear when the actual practice of states as well as the Security Council's track record over the past fifty years are examined. From its first years, the Security Council has been torn by divisions among its veto-wielding members and has been singularly ineffective as a guardian of international peace and stability. The hopes that the end of the Cold War would revitalize the Council have not panned out. By contrast, UN member-states have continued to use force unilaterally and with considerable frequency. As Michael J. Glennon, who argues that the UN Charter did intend to limit strictly the use of armed force even for defensive purposes, has correctly observed:

The question--the sole question, in the consent-based international legal system-is whether states have in fact agreed to be bound by the Charter's use-of-force rules. If states had truly intended to make those rules obligatory, they would have made the cost of violation  greater than the perceived benefits. They have not. The Charter's use-of-force rules have been widely and regularly disregarded. Since 1945, two-thirds of the members of the United Nations--126 states out of 189-have fought 291 interstate conflicts in which over 22 million people have been killed.²

This practice cannot be ignored, whether it is interpreted as being consistent with the correct meaning of the original UN Charter or as declaratory of new (or established) international law norms. It is state practice that "makes" international law, either through the development of customary norms or the interpretation and application of treaties. Because states that signed and ratified the UN Charter, particularly those substantially capable of using military force, have continued to consider themselves free to defend their interests by force of arms with or without Security Council approval, the Charter must be interpreted as consistent with that right.

Nevertheless, in spite of this ever-increasing body of state practice supporting the anticipatory use of force, much of Europe (including important NATO allies like Britain, Germany and France) appears dedicated to the proposition that, absent a direct attack on a state's territory, only the Security Council can authorize a legitimate use of force. At the same time, in the wake of September 11, no American president could accept a rule whereby the United States must, in the absence of the Security Council's specific blessing, absorb a first strike.

How War Must Be Fought

EVEN WHERE the United States and its allies agree that initiating military action is appropriate and lawful, they are rapidly growing apart in their understanding of the all-important rules governing the actual conduct of warfare, the jus in bello. Indeed, because European armed forces have moved toward the "policing" model, in stark contrast to American adherence to the traditional laws and customs of war, transatlantic views on how military operations must be conducted are now quite divergent.

Neither the purpose nor effect of the jus in bello was to forbid the robust use of force. Although the laws of war always included a humanitarian element--as early as the 1580s, Spanish publicist Balthazar Ayala noted that the "intentional killing of innocent persons ... is not allowable in war"--they were originally developed to benefit soldiers and were shaped by the imperatives of military necessity. The balance between military necessity and humanitarian considerations was struck using the principles of "distinction" (only combatants and military objectives may be targeted for attack) and "proportionality" (the use of force must balance military necessity against the likely damage to civilians or civilian objects).

The overall result was a set of rules that were accepted as a positive good by all civilized states. These rules can be broadly summarized as follows: (1) only sovereign states have the right to make war; (2) civilians cannot be deliberately attacked; (3) combatants can be attacked either en masse or individually; (4) quarter is to be granted when sought; (5) lawful combatants, when taken prisoner or otherwise incapacitated by wounds, are to be accorded the respect and privileges due prisoners of war (POWs); and (6) while all forms of force can be deployed in combat, certain weapons designed to cause unnecessary suffering are proscribed.

This code was tested to the breaking point during the world wars, but its general outline survived and was incorporated into the four Geneva Conventions of August 12, 1949.³ Like customary jus in bello, the Geneva Conventions neither sought nor purported to interfere with the ability of states to prosecute an armed conflict successfully, and their application did not depend upon the justice of the cause at issue. As explained by the International Committee of the Red Cross (ICRC) in its commentaries on these treaties,

the application of the Convention does not  depend on the character of the conflict. Whether a war is 'just' or 'unjust', whether it is a war of aggression or of defense, the protection and care due to the wounded and sick are in no way affected.

The reasoning behind the practical nature of both customary law and the Geneva Conventions was obvious: a humanitarian "law" that impeded the ability of states to defend their vital interests would, in practice, amount to nothing but a series of pious aspirations. Traditional norms did, therefore, favor established states.

Efforts to change this began after World War II and were dramatically accelerated in the 1960s and 1970s, in part because of hostility to American involvement in Vietnam. They involved an odd alliance of human rights activists, supporters of "national liberation" movements and Third World governments. While all had different agendas, these groups shared one overarching objective: a desire to "reform" traditional jus in bello norms in ways which would benefit "progressive" non-state entities and handicap traditional state-sponsored military establishments.

Their endeavors, culminating in the 1977 Protocol I Additional to the 1949 Geneva Conventions, were directed at two goals in particular. The first was to revise the long-standing rule that only states can create and utilize military establishments that are legally "privileged" to use force, and the related requirement that all legitimate militaries must organize and operate like "regular" armed forces in order to maintain their "privileged" status. The second was to bestow additional protections from "collateral damage" during war on civilian populations, undermining the ability to wage vigorous combat. The clear import of these reforms was that some military establishments were to be held to higher standards than others. Faced with these developments, the United States has registered strong disagreements with its allies (not to mention numerous NGOs) and, while all of Europe's military powers (including Britain, Germany and France) have ratified Protocol I, the United States has not.

Lawful Combatancy

President Reagan stated the main U.S. objection to Protocol I in 1987:

It would give special status to 'wars of national liberation' ... and grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population.

These requirements were that all lawful combatants be sanctioned by a state and meet four minimum criteria: (1) be subject to a responsible chain of command; (2) wear uniforms; (3) carry their arms openly; and (4) conduct their operations in accordance with the laws and customs of war. Groups that did not meet these requirements were considered unprivileged, and their individual members could be severely punished for nothing more than engaging in hostilities. As noted in the British Manual of Military Law, applicable during the world wars:

If persons take up arms and commit hostilities without having satisfied these conditions, they are from the enemy's standpoint guilty of illegitimate acts, and, when captured, are liable to punishment as war criminals [emphasis added].

Unprivileged combatants are also not entitled to the multifarious rights and privileges guaranteed to POWs by the 1949 Geneva Conventions and customary international law.

By contrast, Protocol I, at least arguably, eliminates the requirement of government sanction for lawful combatant status, and the rules requiring uniforms and the open carriage of arms are relaxed. In this regard, under Protocol I, irregular forces need to produce their arms and identifying badges only immediately before launching an attack, and can only be targeted themselves while preparing for an attack or attacking. At all other times, Protocol I requires irregulars to be treated as civilians, who can be arrested, but not targeted. Obviously, these changes bestow a dramatic advantage on the hit-and-run tactics favored by guerrillas, and seriously handicap regular armed forces.

In accordance with traditional jus in bello norms, the United States considers both Al-Qaeda and the Taliban operatives to be unprivileged combatants and has properly denied them POW status. Unfortunately, this decision has opened a rift with America's European allies, many of which act as if Protocol I applies to the United States, even without its consent. Some in Europe have actually questioned their governments' right to transfer individual Al-Qaeda and Taliban members to the United States, and British units operating in Afghanistan in 2001-02 evidently feared capturing Osama bin Laden, since they might not have been able to turn him over to American forces. Indeed, this problem persists in Iraq, and is magnified by another quandary--the British, because of the combination of domestic legislation, Protocol I strictures and EU obligations, are apparently unable to utilize any form of military tribunals to prosecute and punish either unlawful Iraqi combatants or those lawful Iraqi combatants that have committed war crimes. This situation has greatly complicated the Coalition's ability to deter attacks on its forces in Iraq.

While the comparatively harsh treatment accorded to unprivileged combatants by the jus in bello may jar "progressive" sensitivities, it does not reflect either a shortage of compassion by the United States or some formalistic American veneration of the old pedantic legal paradigm. Rather, this approach constitutes one of the first major humanitarian advances in the modern laws of war and is therefore, well worth upholding. It was, in fact, the centralization of the right to make war in the state, rather than in powerful aristocrats or self-sustaining condottieri bands, that brought civil peace and order to Europe, marking the transition from a medieval to a modern world. This centralization also fostered the conditions for the establishment of regular, disciplined armies capable of respecting the laws of war, and inclined to do so. At the most fundamental level, the state sanction requirement reflects the distinction--between force used for public ends and violence used for private purposes--that constitutes the moral core of the traditional laws of war. The many governments and NGOs that claim to be committed to the development of "humanitarian" jus in bello norms have in truth accepted the elimination of these critical distinctions between privileged and unprivileged combatants, even though maintaining the difference between public and private uses of violence is essential if war is to retain its moral context, or, as George Weigel notes, be "something that can be used for good or evil, depending on who is using it."

To be sure, many who have promoted a "lawful" status for irregular combatants have done so in an effort to bring them "within the system", in the hope that, once privileged, guerrillas would behave better in their own operations. It has not, unfortunately, worked out that way. Since Protocol I was opened for signature in 1977, there has been a worldwide explosion in the use of terror tactics with ever-increasing ferocity and deliberate attacks on civilians. Indeed, today, the gravest threat to American security comes not from groups that, if privileged, would happily comply with the laws of war, but from entities that simply reject the entire system. Terrorist organizations such as Al-Qaeda and the Taliban have repudiated the whole notion of law in war as something alien to their own theological imperatives. Indeed, things have reached a point where the use of irregular attacks purposefully directed at civilians in the form of suicide bombers has been practically, if not formally, accepted by virtually all of the Arab countries, by much of the Third World and by many in Europe as a legitimate form of Palestinian "resistance." For this reason, continuing to draw sharp legal distinctions between lawful and unlawful forms of combat in an effort to delegitimize and stigmatize unprivileged combatants is an indispensable component of any successful counter-terrorism strategy.

Collateral Damage

In addition to eroding the limitations on who can resort to armed force, Protocol I also addresses how that force is applied. In planning operations and selecting targets, the armed forces must distinguish between military and civilian objects. This principle of "distinction" is universally accepted and fully endorsed by the United States. The U.S. Army's Field Manual notes that the only valid targets for attack are
 
combatants and 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, offer a definite military advantage.

However, the principle of distinction never imposed a zero civilian casualty requirement. Rather, the only obligation is that the number of civilian casualties that result unintentionally from an attack ("collateral damage") cannot be disproportionate to the importance of the overall military objective to be gained. Together, these principles of distinction and proportionality are intended to limit the amount of collateral damage to noncombatants in war.

Protocol I, however, was designed to impose far more stringent limitations on the acceptable level of collateral damage than did traditional jus in bello norms. Under Article 57 of that document, for example, parties are required to take "constant care ... to spare the civilian population." Moreover, when

a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

These, of course, are prime examples of the effort to graft domestic policing rules onto the laws of war without any regard for their military consequences. Any armed force that invariably selects the object or avenue of attack that presents the least danger to civilians inevitably reveals the precise course of its campaign to the enemy. The element of surprise is thus lost, and the likelihood of defeat is increased. Ironically, in addition to being militarily disadvantageous, such a requirement would be highly counter-productive from a humanitarian perspective as well, in that it could lead in many cases to far more protracted conflicts than a decisive and massive use of force at the very outset of combat. All things being equal, more protracted fighting results in higher non-combatant as well as combatant casualties. As Francis Lieber, who authored the first comprehensive jus in bello code for the U.S. Army in 1863, wrote: "The more vigorously wars are pursued the better for humanity. Sharp wars are brief." Accordingly, the traditional jus in bello norms were not overly prescriptive, allowing military commanders to exercise broad discretion in complying with the requirements of discrimination and proportionality.

Nevertheless, Europe embraced Protocol I based on the document's avowed humanitarian aspirations, and this has already materially affected NATO operations. At the beginning of the 1999 NATO air campaign against Slobodan Milosevic's Yugoslavia, NATO evidently resolved to meet the requirements of Protocol I (even though not all of its members were bound by that instrument). Consequently, its targeting decisions were driven by a desire to avoid civilian casualties, resulting in a widely criticized "command by committee" approach. According to a recent assessment, targets were divided into three groups, with any NATO government able to veto a move from one target set to another. These groupings included "Phase I" targets that were "indisputably military", such as troop concentrations; "Phase II" targets involving dual civilian and military use objects, such as power stations, refineries and bridges; and "Phase III" targets--those locations "associated with Serb repression." Clearly, the last category would be the least defensible under Protocol I, since attacking them would not have contributed directly to military victory. The rules, under which NATO launched military operations in large part to protect the Kosovo Albanians from "ethnic cleansing" but was unable to apply adequate firepower to halt this conduct immediately, produced perverse results in both the military and humanitarian sphere.

Similarly, Coalition forces fighting in Iraq, partially because of political considerations and partially because of British concerns, adopted exceptionally restrained rules of engagement. For example, the U.S. rules required that any attacks that carried the risk of more than thirty civilian casualties had to be approved at the highest command level, up to and including the Secretary of Defense. Of course, there are real and immediate costs associated with rules of engagement designed primarily to avoid collateral damage. Fortunately, to date these costs have been occluded by U.S. military superiority and mostly assumed the form of lost opportunities.

In Afghanistan, for example, Taliban leader Mullah Omar appears to have been one beneficiary of these stringent rules, as he reportedly made good his escape when U.S. forces were denied timely permission to attack his convoy. According to one Washington Post report, such considerations have prevented operators of the armed Predator drones from opening fire on terrorist targets at least 15 times. Similarly, numerous U.S. special operations have been altered or canceled altogether because of concern for excessive collateral damage. If this policy continues, it will certainly prolong the war on terror, and the problem would become much more acute if these stringent but discretionary rules of engagement are transformed into new legal requirements, which would brook no deviation, no matter how compelling the military need.

However, even with these elaborate safeguards in place, the United States and its allies have been accused of "war crimes" in all their recent military engagements. Such complaints about the NATO air war against Yugoslavia were actually considered by the prosecutor of the International Criminal Tribunal for the former Yugoslavia, and there is little doubt that Protocol I's provisions regarding civilian casualties are also the basis of recent claims that U.S. forces committed "war crimes" in Afghanistan and Iraq. Similarly, in its assessment of the April 2002 Israeli incursion into Jenin, Amnesty International concluded that the Israeli Defense Forces (IDF) had applied a "disproportionate use of force" because they inflicted roughly thirty civilian casualties. This criticism was all the more ironic because the IDF resorted to house-to-house combat, refusing to use stand-off weapons and artillery out of a concern for civilian casualties, and lost over thirty of its own soldiers as a result. An even more fundamental problem was that Amnesty failed to analyze seriously the IDF's military imperatives, without which it could not, by definition, perform any proportionality analysis. Instead Amnesty was content to assert that war crimes were committed merely because some civilians died in combat. Under this Manichean standard, any use of force whatsoever would necessarily be deemed illegal under Protocol I.

Over-Regulating War

The zero collateral damage problem aside, the new jus in bello norms, reflected in Protocol I and embellished by various academic commentators, have become overly proscriptive and prescriptive. What used to be a few simple normative principles, to be considered by well-trained soldiers when making battlefield decisions, have become something akin to a complex regulatory code to be applied by lawyers on a case-by-case basis, with the full benefit of hindsight. Many of Protocol I's key provisions are phrased in terms like doing "everything feasible", or taking "all feasible precautions", or acting "to the maximum extent feasible." Such terminology defies objective definition, making it all but impossible to assess compliance at the time any particular action is taken. Open-ended legal proscriptions are bad enough in the context of human endeavors in peacetime; they are particularly pernicious in the confusing and confused context of combat, where human judgment is stressed to the utmost and the fog of war reigns. The treaty thus leaves all military forces in combat of any kind open to allegations that they have violated its requirements, for no vigorous combat action could ever comply with Protocol I's strictures. In fact, the only certain way to comply with the treaty is simply to avoid armed conflict altogether.

Protocol I's potential to benefit practitioners of "asymmetric" warfare, not to mention downright criminals, has not gone unnoticed. Both Palestinian militants and Saddam Hussein's Iraq have deliberately placed their own civilians in harm's way in the hope that Israeli or U.S. forces accidentally kill them. (This is particularly the case since Protocol I has also been interpreted to require a higher standard for attacking targets protected by "human shields" than traditional jus in bello norms.) For Hussein, efforts to cause civilian casualties formed part of a systematic strategy, wherein schools, hospitals and mosques, as well as protected symbols like the Red Cross and Red Crescent, were employed for military advantages. Hence, international legal norms that were designed to protect civilians are now serving as an incentive for tyrants and terrorists to endanger their lives. One commentator fittingly called such tactics "lawfare."

Targets and Weapons

Strategic targeting, which traditionally has been a very technical military area, has become another controversial legal subject. This is so despite the facts that targeting is ever more precise, and that the growing ability of U.S. forces to discriminate even among legitimate military objectives, targeting enemy leaders such as Saddam Hussein and Osama bin Laden, is a development that has favorable humanitarian as well as operational consequences. Attacking the chain of command in ways that, at best, produce decapitation and the total collapse of enemy resistance and, at worst, disorient the foe, dramatically shortens the duration of hostilities and saves numerous civilian and combatant lives. Unfortunately, this growing personalization of warfare, where it becomes possible in ways unseen since the advent of modern mechanized warfare to target not just enemy combatants, but specific officers, combined with the growing transatlantic doctrinal divergence, has prompted undue protestations.

Consider Israel's policy of the "targeted killing" of Palestinian militant leaders or American Predator drone strikes on individual Al-Qaeda members, or the recent U.S. Operations in Iraq in which Uday and Qusay Hussein were killed, all of which have been incorrectly characterized as illegal "assassinations." The Swedish foreign minister actually accused American forces of "summary executions" after a successful Predator attack on an Al-Qaeda convoy in Yemen. In fact, under the laws of war, enemy combatants, whether lawful or unlawful, may be targeted both on and off the battlefield. Their surrender must be accepted if offered, but there is no obligation to attempt an "arrest", which is a domestic policing norm, rather than an obligation under the laws of war. Such allegations, however, highlight how far Europe has moved from the United States.

There has also been a debate about the propriety of attacking targets such as state-controlled radio and TV stations broadcasting pro-government propaganda. Destroying these facilities can impact the morale of a rogue regime and loosen its stranglehold on the society at large. Such attacks are entirely appropriate under traditional jus in bello norms. Yet many Europeans criticized these tactics when they were used in both the Kosovo campaign and in Operation Iraqi Freedom. This condemnation ignores the essentially Clausewitzean framework of any armed conflict, in which the fastest and the least casualty-intensive way to win is to attack the enemy's will.⁴

Another disagreement between the United States and its allies involves a new form of expansive arms control. Traditionally, only a few weapons--those causing severe and unnecessary suffering--were banned from warfare. Beginning in the late 19th century, for instance, exploding or "dum-dum" bullets were forbidden since they caused far more terrible wounds than necessary to render a soldier hors de combat. The same logic was applied to the use of poison gas after World War I and biological weapons in the post-World War II period. In contrast, numerous negotiations are taking place today to ban whole categories of existing weapons systems and to stifle the development of new ones. For example, most of the United States' NATO allies have signed and are moving towards ratification of the 1997 Ottawa anti-landmine Convention. From the American perspective, however, landmines when deployed properly represent an essential part of its defensive posture in Korea and have a proven ability to perform such critical military tasks as "airfield denial" or blockading WMD-related facilities with minimal collateral damage. It is ill-trained Third World militaries, which have not paid the slightest heed to jus in bello strictures (and which are unlikely to be swayed by the Ottawa Convention) which have misused landmines and caused such large numbers of casualties among civilians. Meanwhile, the fact that the Convention exempted certain dual-use mines used by the European militaries made the whole enterprise appear hypocritical as well.

Similarly, efforts are underway to ban, or to interpret existing legal standards to criminalize, weapons such as cluster munitions and depleted uranium projectiles, as well as to block the development of new military technologies like lasers or unmanned robotic systems, and strategies including attacks on electronic information nodes. Ironically, many of these technologies have the potential to reduce the amount of collateral damage in war--a major goal of Protocol I--or have already done so when used in combat. Yet the use of both cluster bombs and depleted uranium projectiles were among the allegations of wrongdoing considered by the prosecutor for the International Tribunal for Yugoslavia after the 1999 Kosovo campaign. The prosecutor's office correctly concluded that there was no current "consensus" that the use of these weapons violates the laws of armed conflict but conceded that such a consensus could develop in the future. This inherent tension among different doctrinal imperatives, and the disconnect between the broad goals being sought and the specific rigid command-and-control mandates being imposed, is similar to those found in areas of domestic regulation and reflect the "policing" model to which our allies have increasingly subscribed.

Enforcement

THE UNITED States and its allies are also deeply divided over the proper mechanisms for enforcing the laws of war. Traditionally, these rules were interpreted and applied by each individual state, in accordance with its own constitutional and judicial processes. This "domestic" approach has much to recommend. To begin with, it has allowed an interplay between enforcement actions and compliance-fostering institution-building and training. (The latter measures are indispensable if future violations are to be avoided and compliance culture enhanced.) Moreover, a number of key jus in bello issues necessarily require the inherently subjective process of balancing military necessity and humanitarian goals, and the outcome depends very much on who does the balancing. This point was candidly acknowledged in the report issued by the Hague tribunal's prosecutor, after investigating NATO's Kosovo operation:

It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to non-combatants-it is unlikely that [even] military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases.

Such balancing can be accomplished well only in the context of a particular body politic and preferably by institutions, such as courts martial, with a substantial degree of specialized military expertise.

Unfortunately, there has been a distinct tendency on the part of many of our European allies and NGOs to denigrate domestic jus in bello enforcement mechanisms in general and military institutions in particular and exalt the virtues of international legal institutions. The Nurenberg trials, convened to punish the defeated Nazi leadership at the end of World War II, are usually cited as the first important departure from the primacy of the norm of domestic enforcement institutions. They are also described as having established an international or "universal" jurisdiction. The truth of the matter, however, is that the International Military Tribunal (IMT) that judged Hitler's surviving lieutenants never claimed such vast authority. Rather, it relied on the right of the Allies, as established by the Third Reich's formal unconditional surrender, to legislate for a conquered Germany.

It was not until the 1990s that genuinely international criminal courts were established in the form of the United Nations ad hoc tribunals for the Former Yugoslavia and Rwanda. These institutions were based on binding UN Security Council resolutions. Both dealt with exceptional circumstances--a near Hobbesian-level breakdown in law and order in several states--and were strictly limited in their jurisdictional reach.

Unfortunately, the International Criminal Court (ICC), established in 2001, goes much further. It is a permanent court with jurisdiction over dozens of individual offenses. In principle, the ICC can only take action in a particular case if the relevant states have failed to investigate and prosecute the matter. But the application of this principle of "complementarity" is entirely within the court's own discretion. If it concludes that allegations have not been properly handled on the national level, the ICC can then prosecute and punish the accused military or civilian officials, regardless of their official status.

Although the United States was involved in drafting the 1998 Rome Statute, it ultimately refused to ratify the document. For Europe, however, the Rome Statute has become a litmus test. All of the European Union's members have ratified the treaty, as must any state now seeking EU membership. Moreover, the EU has become so determined to impose the ICC on the United States that EU applicants have been said to endanger their chances to join merely by signing agreements with the United States to ensure that U.S. citizens will not be surrendered to the court absent its consent--even though such agreements are clearly provided for in Article 98 of the Rome Statute. There is little doubt that if the court actually attempts to investigate or prosecute American citizens, it will deliver a body blow to the transatlantic relationship.

However, even if the ICC does not target Americans, its existence will still affect NATO's operations. Although U.S. citizens are not legally subject to the ICC, the citizens of Great Britain, France, Germany and the other NATO allies are. In planning and executing military operations, these states all must consider the likely reaction of the ICC's current prosecutor and judges. How much confidence they will, in practice, put in the principle of complementarity remains to be seen. However, it already is clear that many of the ICC's proponents have jettisoned this principle, assuming that the court will, in reality, be the primary enforcement mechanism for the substantive rules incorporated into the Rome Statute.

IN THE PAST, jus in bello norms reflected a proper balance of humanitarian and military imperatives as well as the consent of sovereign states. They also were predicated upon the principle of reciprocity, enforced by national institutions, and backed up by the availability of reprisals to punish and deter noncompliance. Today, a combination of legal, ethical and political imperatives have rendered ever more elaborate laws of war both inflexible and liable to enforcement by increasingly politicized international institutions.

Legal restraints are also becoming increasingly one-sided, and primarily affect the United States and those few of our allies that continue to take warfare seriously. Plainly said, we now have virtually four different sets of legal norms governing the use of armed force: the traditional strictures, subscribed to by the United States and some of its allies; the policing model, embraced primarily by the Europeans and Canadians; the more permissive norms, which eschew many of the post-World War II developments, embraced by Russia, China, India and a few others; and the "anything goes" approach, with the particular emphasis on the deliberate attacks on civilians practiced by the rogue states and terrorist organizations like Al-Qaeda, Hamas and Hizballah.

Given this overall context, it is all the more regrettable that the fundamental differences between the United States and its allies--over when military force may be lawfully used, how it must be applied properly and who should enforce the norms--show no signs of abatement. These have already led to misunderstandings, tension and outright anger on both sides of the Atlantic and have proven to be highly counterproductive. Franco-German insistence that UN authorization was necessary before military action could be taken against Iraq did not forestall the attack on Saddam Hussein, but it nearly wrecked the Security Council. Similarly, assertions that the ICC can investigate, prosecute and punish Americans, whether the U.S. government has ratified the treaty or not, have not led the United States to accept the court's authority. Rather, they have prompted a determined and increasingly successful U.S. effort to obtain from dozens of countries Article 98 agreements guaranteeing that Americans will not be surrendered to the ICC. Efforts to secure overly stringent rules of engagement and other unrealistic jus in bello norms have strained alliance cohesion and impaired the military effectiveness of coalition warfare.

Continuing to pretend that these are just minor problems or occasional disputes that can be papered over or resolved through adroit diplomacy is counter-productive. It is imperative to grasp the nature of the problems we face and their full implications. This is particularly true because so much of the European challenge to the American way of war is couched in legal and ethical terms.

The continued perpetuation of legal and moral confusion could eventually erode the American public's consensus supporting any future use of force, and threaten U.S. security and national interests. Hence, it is necessary to make reaffirmation of the traditional laws of war, rules that appropriately balance humanitarian imperatives and the demands of military necessity, an American priority. Ideally, a vigorous U.S. effort to reestablish the traditional jus in bello and jus ad bellum, and restore the role of sovereign states in both developing the substantive norms and upholding them, would bear fruit.

Alternatively, the United States and its allies can simply acknowledge that, because of the policy choices they have made in accordance with differing principles, they are now subject to different international law norms. While Americans cannot expect Europeans to ignore the commitments they have made, Europeans cannot expect the United States to comply with rules it has not accepted. This does not mean that joint action and operations are impossible, but it does mean that the range of areas in which U.S. and allied forces can act together has narrowed. The result must inevitably be more American "unilateralism", louder choruses of European opposition, and the steady deterioration of a once-ideologically consistent alliance. Yet, even this would be preferable to an American embrace of the policing model of warfare, which would impair our ability to prevail in combat. At a time when our way of life is again besieged by violent and unscrupulous adversaries, such a turn of events borders on the suicidal.

¹ "Parliamentary Answer on the Legal Bails for the Use of Force Against Iraq", March 17, 2003.

²"Preempting Terrorism: The Case for Anticipatory Self-Defense", The Weekly Standard, January 28, 2002.

³The Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; the Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; the Geneva Convention III Relative to the Treatment of Prisoners of War; and the Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War. These have been ratified by virtually every state, including the United States.

⁴General Charles Dunlap (USAF) argues that targeting "dual-use" facilities in addition to securing purely battlefield-related benefits also makes additional policy sense as it maximizes the psychological impact on the pro-regime strata of the population and can hasten the erosion of support for the regime and thus shorten the conflict. This phenomenon was critical to the speedy conclusion of the Kosovo conflict.

David B. Rivkin, Jr. & Lee A. Casey are partners in the Washington, DC office of Baker & Hostetler LLP and write frequently on international law and defense issues. They served in the Reagan and Bush, Sr. administrations. Rivkin is a visiting fellow at the Nixon Center.

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