July|August 2003




AS THE U.S.S. ABRAHAM LINCOLN STEAMED HOME from the war in Iraq, President Bush lauded the crew for their part in waging a precise and humane war. "With new tactics and precision weapons," the president declared from the carrier's deck, "we can achieve military objectives without directing violence against civilians. No device of man can remove the tragedy from war, yet it is a great advance when the guilty have far more to fear from war than the innocent."

Without mentioning the "law of war"—the well-worn collection of treaties and protocols designed to restrain fighting forces—Bush drew on one of its central principles: the preeminent value of the lives of civilians. But the president skipped over an uncomfortable moral question embedded within the law: What about soldiers who are forced to fight for an evil regime? What if many of the enemy troops are not among "the guilty"?

Historians have traced the law of war to chivalric codes followed by knights and to efforts by the medieval Catholic Church to protect pilgrims and clergy from marauding warriors. In the mid-19th century, with the bloody Crimean War and then the American Civil War as a backdrop, diplomats began writing rules that were supposed to make warfare more humane. The major European powers were the leading drafters, though the newly powerful Japanese were invited as well. "We show ourselves at least your equals in scientific butchery, and at once we are admitted to your council tables as civilized men," one of the Japanese diplomats wryly observed. The resulting Hague Conventions of 1899 and 1907 governed the treatment of prisoners of war, the procedures for surrender, and the rights and duties of neutral states. They also sought to impose limits on weaponry and targets.

As the codes were put to the test in combat, some restrictions were sheared away. The detritus seems almost quaint: The Hague Convention forbade the "launching of projectiles and explosives from balloons," a ban that quickly became irrelevant as balloons gave way to bombers. The increasing lethality of weaponry made illusory many of the law's protections. During World War I, nothing in the new rules prevented massive bloodletting as soldiers charged from trenches into machine-gun fire.

But if the law of war has done little to curtail the damage that fighting forces inflict on each other, it has achieved some success in placing noncombatants out of harm's way. The 1868 St. Petersburg Declaration, signed by the major European powers at the time, stated that "the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy." Despite the violence done to civilian populations during World War II, the principle, at least, has endured. It was reaffirmed in the influential 1977 protocol to the Geneva Conventions. Minimizing civilian casualties has assumed even greater importance since the end of the cold war, with the United States and its allies increasingly linking the use of force to the goal of protecting human rights. It would be a strange war of liberation that inflicted heavy losses on the people to be freed.

In Iraq, the U.S. military took seriously its promises to civilians by conducting one of the most precise bombing campaigns in history. The bombs unleashed on Saddam's bunkers were designed to leave surrounding areas largely unscathed. For most of the war, Baghdad residents had water and electricity, because the American strikes avoided civilian infrastructure. To avoid a bloody urban clash with loyalist forces that would have endangered civilians, British troops laid siege to Basra gently and patiently, targeting military units while letting humanitarian aid and civilians flow in and out of the city. These tactics were also a way for the coalition to improve its public standing in a country about to come under its control.

The coalition's claims to unprecedented precision invited close scrutiny, and U.S. officials faced tough questions when the Iraqi government reported (perhaps inaccurately) that American missiles had slammed into two marketplaces. Before he disappeared, Iraq's information minister, Mohammed Saeed al-Sahaf, claimed that coalition forces had killed 1,200 civilians. It's a good guess that independent estimates will be significantly lower. In the less ambitious first gulf war, by contrast, estimates of Iraqi civilian deaths range from 2,000 to 13,000.

EVEN AS IT INCREASES ATTENTION TO CIVILIAN SUFFERING, however, the legal principle of noncombatant immunity can deaden sympathy for enemy combatants. The moral intuition that lies behind protecting civilians is that fighting with your opponent's military is legitimate in a way that fighting with its citizenry is not. Because they have taken up arms, enemy combatants are, in the jargon of the battlefield, "good kills." In his classic Just and Unjust Wars, the political philosopher Michael Walzer described the transformation that occurs when a civilian becomes a soldier: "He has been made into a dangerous man." Walzer concluded, "For that reason he finds himself endangered."

But how dangerous were Iraq's soldiers? Journalists reported that they were mowed down by the hundreds as they impotently clutched their Kalashnikovs and drove in dump trucks toward nearly impregnable American tanks. One Iraqi soldier told a reporter that he and his fellow soldiers were instructed to scatter and lie face down on the ground as U.S. jets screamed overhead. "It wasn't a war," one Iraqi general said, "It was suicide."

Estimates of Iraqi military deaths are hard to come by, but it may turn out that close to 10,000 Iraqi soldiers died in the war, compared to just over 100 coalition soldiers killed in combat. The numbers demonstrate that American military technology is rendering enemy combatants less and less dangerous.

To further blur the moral distinction between combatant and civilian, many of the Iraqi dead were conscripts who fought under threat. Lopping off the ears of draft-dodgers seems to have been a favorite Saddam tactic. The U.S. fought to end a horrific regime against an army partially made up of the regime's victims.

American military strategy tried to take that awkward reality into account. The premise of the massive leaflet drops months before the war was that the bulk of the Iraqi army did not want to fight and would surrender if it could do so safely. In an effort to end the conflict almost before it began, the United States opened hostilities with a "decapitation strike" directed at Saddam Hussein and his sons, instead of carpet-bombing Iraqi military positions. The coalition used its technological superiority to home in on the Baathist supporters of Saddam Hussein who bore the most responsibility for the regime's policies, in a way that wouldn't have even been possible a decade ago.

Under the law of war, however, this kind of top-down fighting poses difficulties. A "classic" war, fought against enemy foot soldiers, is probably on firmer legal ground than a war directed against the officials and infrastructure of an authoritarian regime. The law would likely see as civilians the Baath Party members who were not in uniform or acting as paramilitary soldiers. And according to Amnesty International, the law also shelters mass media outlets, even if they spin propaganda for a repressive regime. Adding to the complexity, targeting regime officials meant more strikes on cities and towns, which put innocent civilians at risk. Yet if these tactics shortened the war by stripping Saddam of his tools of social control—and so saved the lives of large numbers of ill-equipped and largely conscripted soldiers—they were arguably justified.

At the same time, it's not clear how the law of war could recognize the moral claim of these coerced conscripts, however compelling. The law must be agnostic about the motivations of the parties to be effective. It can treat targets only as lawful or unlawful, not as guilty or innocent. Viewed through the leveling lens of the law, an Iraqi television facility is equivalent to the offices of The New York Times. A civilian, however implicated in brutality, has to remain off limits—while a conscript fighting for Saddam with a gun to his head is fair game.

Even if it has perverse implications, the law of war in the aggregate minimizes suffering in many cases. Cementing into law a preference for top-down decapitation would be a mistake. Precision warfare of the kind witnessed in Iraq is new, and it is currently available just to the United States. If other less advanced militaries were to try to decapitate enemy governments, they might end up bombing cities indiscriminately. But when the world's most technologically advanced military is battling a criminal regime, the simplest fight legally may not be the best fight morally.