In This Issue ...
Colin Gray examines the character of asymmetric threats and cautions that traditional attempts to define such threats have generally been unproductive. As a consequence, he observes, "A problem with efforts to define an asymmetric threat is that they imply strongly that the universe of threats divides neatly into the symmetric and the asymmetric." Such attempts he adroitly counters are "nonsensical" at best. The author provides eight basic characteristics of asymmetry. He then applies each in the context of terrorism to determine how the United States should react tactically, operationally, and strategically. He cautions American military planners not to become overly focused on asymmetry, thereby ignoring other legitimate threats.
Michael Carlino suggests that as a result of Operation Desert Storm the US military has come to the conclusion that it is no longer necessary to accept heavy casualties to obtain victory. More specifically, the author believes we have translated this increased desire for "casualty avoidance" into a mantra inviting an increase in noncombatant losses. How far should military planners and commanders go to resolve the dichotomy between force protection and noncombatant immunity? Carlino asserts that a combatant's right to life is forfeited when he engages with the enemy. Both have the moral right to kill their foe. However, it is when one considers a noncombatant's right to "immunity" that the relationship between force protection and noncombatant safety becomes problematic. The author draws on the works of Michael Walzer and others to conclude that military and political leaders must abandon their "zero-casualty mentality" and de-emphasize force protection if it means increased risk to noncombatants.
Geoffrey S. Corn and Jan E. Aldykiewicz introduce the first of three articles related to law and war in the 21st century with their treatise suggesting that violators of international law be tried in US military courts. The authors draw on the precedent of the Second World War and Nuremberg to explain the evolution of a doctrine of individual criminal responsibility for violations of the laws of war. They explain that in the past this doctrine was limited to acts committed during state-on-state conflicts; only recently has it been applied to civil wars and internal armed conflicts. The authors review a series of precedent-setting cases under the jurisdiction of the International Criminal Court to determine that recent developments in the law of war make the use of US courts-martial another potential venue for prosecuting individuals who commit war crimes during internal conflicts.
Richard Butler identifies disconnects between current US Army doctrine and the decisions by international tribunals conducting prosecutions under the legal precedent of "unlawful attack." This precedent focuses on military commanders conducting operations that affect the surrounding civilian population. The author postulates that although there have been no prosecutions of US commanders under this doctrine, it is clear that there are increasing expectations by the international community that military commanders be held to a higher standard when making decisions related to ground operations and target selection.
Our final article related to "The Law and War in the 21st Century" is Chris Quillen's disturbing look at the role the Department of Defense can legally play in countering domestic terrorism. Quillen believes that the fundamental limitations placed on the military by the Posse Comitatus Act of 1878 are being eroded by presidential and congressional desires "to do something" in times of danger. The author uses the threat of nuclear terror to highlight that the involvement of the military in traditional law enforcement roles is not only violating the intent of the act, it is weakening the very principles essential to the maintenance of our American constitutional system. …