Getting the Law Right on Carpet Bombing and Civilian Casualties
Sen. Ted Cruz kicked off a minor ruckus when he referenced carpet bombing the Islamic State in his campaign rhetoric. A former deputy judge advocate general of the U.S. Air Force weighs in on the legality and ethics in bombing an enemy who's killing, raping and torturing thousands of civilians. What's legal? Is the moral high ground actually found in the sky?
Officials, politicos and the media can debate what they believe the term “carpet bombing” means, but the American public and the leaders shouldn’t let that distract them from the fact that a more robust air campaign is needed against the Islamic State in Iraq and the Levant (ISIL) in order to keep their genocide from spreading. Nor should it keep them from knowing what the law related to that actually entails.
In this election time period, it’s easy for sound bites and headlines to take the lead and for comments to be used in a way to take the focus off the real challenges. The issue is that ISIL is committing genocide, and the United States can’t stand by and let that happen. Our values won’t let us do that.
But defeating ISIL requires a clear understanding of what kind of force America can legally and ethically bring to bear against them. Accordingly, let’s begin by examining the law related to the carpet bombing kerfuffle that erupted on the campaign trail.
In case you missed it, in early December 2015 Sen. Ted Cruz, in describing what he would do to battle ISIL, didn’t use a formal military or legal term, but rather the vernacular in saying he would “carpet bomb [ISIL] into oblivion.” Many politicos, led by Hillary Clinton, lambasted Cruz, as did supporters in the Fourth Estate.
When pressed by Wolf Blitzer in mid-December as to exactly what he meant, Cruz said:
You would carpet bomb where ISIS is, not a city, but the location of the troops. You use air power directed — and you have embedded special forces to direction [sic] the air power. But the object isn’t to level a city. The object is to kill the ISIS terrorists [emphasis added].
Unfortunately, Lt. Gen. Sean MacFarland, who is now commanding the counter-ISIL campaign for U.S. Central Command (CENTCOM) allowed himself to be roped into the dispute. In an early February media appearance, he responded to a reporter’s question about why the United States did not use “carpet bombing” in Iraq and Syria:
You know, as I mentioned earlier, we are bound by the laws of armed conflict. … And, you know, at the end of the day, it doesn’t only matter whether or not you win, it matters how you win. And we’re the United States of America, and we have a set of guiding principles and those affect the way we as professional soldiers, airmen, sailors, Marines, conduct ourselves on the battlefield.
So indiscriminate bombing, where we don’t care if we’re killing innocents or combatants, is just inconsistent with our values. And it’s what the Russians have been accused of doing in parts of northwest Syria. Right now we have the moral high ground, and I think that’s where we need to stay.
Even though he didn’t specifically mention Cruz’s name, his response predictably earned headlines like “U.S. general blasts Cruz’s carpet bombing as ‘inconsistent with our values.’” In his remarks this uniformed leader chose to define “carpet bombing” differently from: 1) how Cruz used it; 2) how an ordinary dictionary defines it; 3) how the Crimes of War project uses it; and 4) what the Pentagon has conceded about the phrase.
Does the law of armed conflict always bar “carpet bombing” of enemy combatants like ISIL? Specifically, can we lawfully carpet bomb the enemy where they are as Cruz suggests? Would such bombings be consistent with our values?
Let’s start with the ordinary meaning of the term “carpet bomb.” This is an important question because the term is not a formal military or legal phrase. Turning to the Merriam-Webster dictionary can help as it tells us that “carpet-bomb” means “to drop large numbers of bombs so as to cause uniform devastation over [a given area].”
The “given area” portion in the parentheses (which is in the Merriam-Webster dictionary) is rather important because of the context of Cruz’s answer to Blitzer. You see, according to Cruz, the “uniform devastation” should occur “where ISIL is.” In order to help stop the beheadings, the rapes, child crucifixions and killings of thousands, wouldn’t we want to drop “large numbers of bombs” where ISIL is located? That’s exactly what the U.S. military should be trying to do. Unfortunately, but not surprisingly, many observers seem to be missing this basic point.
What does the Department of Defense have to say? Its new June 2015 Law of War (LoW) Manual makes it very plain that it is legal to “make enemy combatants and other military objectives the object of attack.” So, yes, from the LoW Manual’s perspective it appears it is, in fact, lawful to make “the location of [ISIL] troops” the object of attack as Cruz would have it.
Of course, as with any attack, other targeting rules such as proportionality apply (if there were civilians at the location), but Cruz never suggested that such rules would not apply.
How do other experts view “carpet bombing”? The Crimes of War Project — hardly some sort of right-wing mouthpiece, supported as it is by George Soros’ Open Society Institute — gets it right when it categorizes the topic under the aegis of “Carpet or Area Bombing.” I added the italics to emphasize that the common understanding among legal experts and military operators is that “carpet bombing” is conterminous with “area bombing” — a tactic not necessarily unlawfully “indiscriminate” or contrary to our values.
The Crimes of War analysis finds that restrictions on carpet/area bombardment were first codified in the Article 51 of the 1977 Protocol Additional to the Geneva Conventions of 1949 (the United States is not a party this Protocol). In its relevant part, that Protocol condemns not all carpet/area bombing but only:
[A]n attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.
Even under the restrictions of the Protocol, Crimes of War correctly — and sensibly — agrees that “[b]ombarding areas containing solely military targets is permitted.” But what about discrimination? The Manual on International Law Applicable to Air and Missile Warfare produced by Harvard University’s Program on Humanitarian Policy and Conflict Research also points out that the Protocol text “does not deny the possibility that a number of lawful targets, which are not clearly separated and distinct, may be treated as a single lawful target.”
This is why the Department of Defense Law of War Manual “categorically” recognizes certain locations with a collection of lawful targets as lawful military objectives as a whole, including “military bases, such as army, air, and naval bases … whether used for training, billeting, or staging, or offensive or defensive purposes.”
Let’s dig a bit more into MacFarland’s assertion that “indiscriminate bombing, where we don’t care if we’re killing innocents or combatants, is just inconsistent with our values.” Obviously, no one supports random bombings without concern for civilians. Our values — and the law — do seek to protect civilians from any kind of bombing, indiscriminate or otherwise.
But let’s also be careful to avoid confusion about what is legal and moral in attacking combatants. Consider “harassing fires.” The Law of War Manual endorses the legality of these bombardments, which “are delivered on enemy locations for the purpose of disturbing enemy forces’ rest, curtailing their movement, or lowering their morale” [emphasis added].
Such fires can also be deadly, and are not only typically delivered “on enemy locations” by artillery rounds with no internal guidance system, but also are frequently “unobserved” fires (that is, lethal shelling for which the points of impact or burst are not observed). How “discriminate” does anyone think harassing fires really are? Let’s not leave people with the idea that area fires, even if not aimed at individual enemy troops, are necessarily illegal or immoral. War is more complicated than that.
Here’s a caution (and perhaps what MacFarland really meant to convey): It is certainly accurate that there may be few opportunities to appropriately use unguided munitions or, for that matter, carpet/area bombing in Iraq or Syria in places where ISIL embeds itself among civilians. However, that doesn’t mean carpet/area bombing is always illegal or against our values in every situation.
For example, U.S. bombing recently “flattened” an al Shabaab training camp in an operation that reportedly killed 150 fighters, and did so with no reported civilian casualties. Similarly, an earlier bombing of an area where ISIL oil infrastructure was located — again with no reported civilian casualties — was officially described by CENTCOM as so massive it amounted to “a tidal wave that swept across these oil fields.” Such attacks illustrate that even nontraditional enemies will sometimes present opportunities suitable for the application of overwhelming force, and why it is a mistake to overgeneralize or denounce a tactic that could be ideal in a given situation.
Let’s also take a look at what the Law of War Manual says about a little-known aspect of the law of war: reprisals. It defines these extremely rarely employed operations as “acts taken against a party: (1) that would otherwise be unlawful; (2) in order to persuade that party to cease violating the law.”
True, many countries won’t take reprisals against civilians because they are parties to Additional Protocol 1 to the Geneva Conventions, and that Protocol bars them from doing so (although some nations filed formal reservations preserving the right for extreme situations). But the United States isn’t a party to the Protocol, and doesn’t consider the prohibition binding on it. Why? As the Law of War Manual puts it, the United States finds reprisal bans to be “counterproductive [because] they remove a significant deterrent that protects civilians and war victims on all sides of a conflict.”
As to reprisal attacks on enemy civilian populations, the United States does not take it off the table. A footnote in the Manual (fn. 221, at p. 1098) records the explanation of the U.S. position given by Judge Abraham Sofaer, then legal advisor to the U.S. State Department, in 1987. Here’s what Judge Sofaer had to say:
Historically, reciprocity has been the major sanction underlying the laws of war. If article 51 [of Protocol I] were to come into force for the United States, an enemy could deliberately carry out attacks against friendly civilian populations, and the United States would be legally forbidden to reply in kind. As a practical matter, the United States might, for political or humanitarian reasons, decide in a particular case not to carry out retaliatory or reprisal attacks involving unfriendly civilian populations. To formally renounce even the option of such attacks, however, removes a significant deterrent that presently protects civilians and other war victims on all sides of a conflict [emphasis added].
In other words, in the U.S. military’s view, the United States retains the right to “reply in kind” against an enemy civilian population if that enemy carries out attacks against our civilian population (or that of our allies). Having in place what Judge Sofaer describes as “a significant deterrent that presently protects civilians and other war victims on all sides of a conflict” is very definitely not against our values.
The point is that as a general proposition, it is a gross oversimplification and wrong to suggest that carpet/area bombing is ipso facto contrary to the law or our values. In my view, we have to do everything we can to deter enemy attacks on civilians, and the U.S. policies on area bombing — and reprisals — are tools of doing just that.
Currently, I don’t believe the facts as to the situation in Iraq and Syria meet other legal limits on the use of reprisals. But, to be clear, simply because all the predicates for a lawful reprisal are not currently in place with respect to ISIL’s crimes (and especially given the captive nature of most of the civilian population), that doesn’t mean they could never be met in another circumstance. And, again, carpet/area bombing as part of a robust airpower campaign could be lawful in certain select situations as previously described.
Let’s also think some more about MacFarland’s claim to have the moral high ground. Yes, CENTCOM has conducted thousands of airstrikes over more than a year and a half with relatively few civilian deaths. But what retired Air Force Lt. Gen. David Deptula calls a “desert drizzle” of a too-restrictive approach to the use of airpower carries with it separate moral questions.
According to Deptula, the “desert drizzle” strategy has “left civilian populations to suffer sectarian butchery by the [Islamic State].” If an air campaign more constrained than the law would allow permits ISIL to wreak further havoc on helpless civilians than would have been killed in otherwise lawful air attacks, do we really have the moral high ground? Or have we shifted the moral hazard to those helpless civilians simply so we can say we limited collateral damage more than we needed to do? Former Air Combat Command chief retired Gen. Mike Loh was even more graphic, saying that the way the administration has conducted the air war violates the “just war principle of winning quickly with a high probability [of] success.”
If the Russians have indiscriminately bombed civilians as CENTCOM suggests, then I think CENTCOM ought to release the supporting evidence. Still, it is undeniable that their airstrikes have, as the U.S. intelligence community acknowledged, “changed the ‘calculus completely’ in Syria.” Although we may oppose Russia’s involvement in Syria for many very good reasons, the “changed calculus” their air operations produced nevertheless resulted in a ceasefire that the United States was happy to back and help broker. However fragile that ceasefire may be, it is the first real ray of hope for Syrians who have suffered more than a quarter of a million deaths and more than 12 million displaced persons in nearly five years of brutal civil war.
Can the United States claim any similar success with its air campaign, which has gone on far longer than that of Russia’s? Maybe it is time, as our civilian leaders seem to want, for military leaders to cease criticizing others and focus on thinking imaginatively as to how the air weapon might be used more effectively, in full compliance with the law of war.
Of course, military leaders do need to stand — publicly — for the rule of law and American values. At the same time, however, they need to fully understand the law, which is far more complex than so many suppose.
The former deputy judge advocate general of the U.S. Air Force, Dunlap now leads the Center on Law, Ethics and National Security at Duke Law. Disclosure: A registered independent, he has not publicly endorsed any candidate.
Photo credit: Senior Airman Corey Hook, U.S. Air Force