"Our first problem was with using suppressive fires against the air defense. According to standard Army procedure, we simply estimated where the enemy air defense might be, based on the terrain and the force's operating pattern. But the Defense Department's lawyers insisted that before we shoot at these locations, they had to be 'observed,' that is, not 'templated.' ... By the lawyers' definition, someone would have to view Serb air defenses through photography or TV within a few hours of the time the artillery was to be fired. This was a requirement derived from the NATO Rules of Engagement that had been approved for the operation, without regard to the kinds of needs we might have for the Apaches.... Before we could shoot our suppression, we would have to have visibility over what was there, updated to the last few hours.... The commander would either have to accept the risk from other untargeted [templated] locations, or call off the planned mission. Surely there had to be a better way. Never had we imposed such a standard on ourselves. There had to be a misunderstanding, I thought." (1)
--General Wesley K. Clark, USA Ret., concerning legal constraints to suppressive fires in support of AH-64 operations in Kosovo
To most of the US Army, the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has little bearing on their pursuits in the profession of arms. Images of genocide, ethnic cleansing, and mass murder, while terrible in their own context, are not the types of crimes to which the men and women of the US armed forces would potentially be a party. Thus, while the US government supports the work of the tribunal as a matter of policy, the findings of the court, beyond the occasional headline, are simply not of interest to US military professionals.
That is a mistake. In fact, when examining current tactical and operational Army doctrine in light of the work of the ICTY, it becomes evident that in some areas, commanders may not have the doctrinal tools or appropriate training mechanisms available to steer clear of potential criminal culpability in future conflicts.
Over the past several years, the Office of the Prosecutor has moved forward in exploring the legal basis of a criminal charge frequently referred to as "unlawful attack." (2) These issues pertain to the legal review of the conduct of military operations that affect the surrounding civilian population (or associated nonmilitary objects). It examines the obligations of military commanders and other combatants under the 1949 Geneva Conventions, the 1977 Additional Protocols, and a broad body of international humanitarian law designed to safeguard civilians and other noncombatants. In select recent cases, these reviews have resulted in the indictment, apprehension, and conviction of operational commanders for violations of these conventions.
It is still premature to postulate how these trials and judgments might affect future US Army tactical and operational commanders, particularly with respect to the conduct of ground operations. However, on the basis of information that is in the public domain, it is clear is that there are increasing expectations by the international community that military commanders be held to stricter standards of accountability with regard to making informed decisions on ground operations and target selection. As such, the jurisprudence coming out of the ICTY is likely to raise the bar for commanders to adequately justify the effects of military operations on the surrounding civilian populations and objects. These future effects will not be limited to only the traditional restrictions defined in US Army Field Manual (FM) 27-10, Laws of Land Warfare, but also will include more recent legal criteria pertaining to the issues of proportionality, "dual-use" infrastructure, terror, and even environmental damage. (3)
In contrast, Army operational and tactical doctrine in the fields of reconnaissance, intelligence, and fire-support remain heavily biased toward the rapid, accurate, and overwhelming application of force or fires on the enemy target or objective, often coupled with the least possible risk to friendly troops and assets. Less clear, particularly at the tactical level, is any similar doctrinal emphasis on a methodology for ensuring that civilians (or other categories of protected objects) are accurately tracked and protected as much as possible throughout a dynamic battlefield environment. (4) Further, little attention seems to be paid in the doctrinal planning process to the identification of potential situations where civilian and enemy military personnel or objects may be in transient proximity, or where objects of potentially hazardous (or long-term adverse) environmental impact to a surrounding civilian population are identified. Such omissions further preclude a systematic and continuing process of preventing inadvertent attacks against noncombatants, or of effectively monitoring the effects of combat operations on the surrounding civilian population.
Ultimately, these doctrinal shortcomings can lead to excessive civilian casualties, unduly restrictive or inflexible Rules of Engagement (ROE) constraints (driven by adverse public or media perceptions), and, in extreme cases, a future tactical or operational commander facing issues of potential criminal culpability under international justice and humanitarian law.
The concept of charging crimes under the mantra of unlawful attack is relatively new in terms of international humanitarian law. In the World War II era, attacks on proscribed objects or facilities were dealt with on a case-by-case basis and were generally limited to small-scale and clearly egregious incidents, such as machine-gunning lifeboats, deliberately attacking a medical facility, or reprisal raids against villages. (5) Trials as to the "unlawfulness" of specific military operations or campaigns were not pursued as a general rule, in part due to fears that military commanders of the victorious Allied powers could themselves be found potentially culpable for similar acts (or tactics) as the accused.
In 1993, in response to widespread allegations of crimes occurring as part of the conflict in Bosnia, the UN Security Council established the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia. (6) In doing so, the international community also created a modern forum for the legal review of unlawful attack (as defined in the Geneva Conventions and the Additional Protocols). This was done, in part, by recognizing such violations as elements of criminal acts charged under Articles 2, 3, or 5 of the Statute of the Tribunal. (7)
As an expansion of the provisions of unlawful attack, the International Criminal Court (ICC) Criminal Statute articulates many of these violations as criminal acts in their own …