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C H A P T E R 1 3 Bugsplat US Standing Rules of Engagement, International Humanitarian Law, Military Necessity, and Noncombatant Immunity Neta C. Crawford War is thus an act of force to compel our enemy to do our will. . . . Attached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it [emphasis added]. On War, Carl von Clausewitz These ROEs [rules of engagement] might sound fine to academics gathering at some esoteric seminar on how to avoid civilian casualties in a war zone. But they do absolutely nothing to protect our combat troops who have to respond in an instant to a life-or-death situation. ‘‘Untie Military Hands,’’ James A. Lyons Jr. THE JUS IN BELLO GUIDELINES of the just war tradition—discrimination and proportionality —infuse international humanitarian law and the contemporary US understanding of ethical conduct in war. There is nothing new in that: The rhetoric of the US military since the middle of the nineteenth century has reflected both the just war tradition’s articulation of the justice of going to war and its articulation of limits on conduct in war. The US operational and legal rhetoric—as articulated in US rules of engagement and military law—also reflect and amplify the long-standing tensions within the just war tradition between the normative values of military necessity and noncombatant immunity. Specifically, there is a tension between the consequentialist logic of military necessity and a deontological prohibition on harming noncombatants . Consequentialist reasoning, which is exemplified in the just war notion of proportionality and in the US military’s interpretation of the notion of ‘‘military necessity,’’ dominates the rhetoric and shapes the practice of US war-making. The 231 232 Neta C. Crawford result is that many civilian deaths may be both anticipated and forgiven, a phenomenon I have elsewhere described as ‘‘systemic collateral damage.’’1 Both just war theory and a particular interpretation of international law have become the dominant organizational frame of the US military with respect to noncombatant immunity and civilian protection. The concept of ‘‘organizational frames,’’ a term coined by the sociologist Lynn Eden, points to how certain beliefs become the taken for granted, the ‘‘organizational ‘common sense’’’ that structures subsequent understanding and practices.2 The just war framework is institutionalized in US rules of engagement, and the technical procedures of US targeting and operations. The lacunae in just war theory and international law concern the balance between the norms of military necessity, force protection, and noncombatant immunity: The consequentialist frame of military necessity often overrides noncombatant immunity. The weaknesses of the just war framework, as reproduced in international law, are thus reified in US war-making practices. So Clausewitz is wrong on the one hand—law does make a difference in the conduct of war. But Clausewitz is right on the other hand, that difference in conduct may have a minimal effect on the consequences of war on noncombatants. Moreover, the fact that just war theory and the humanitarian laws of war are institutionalized in US law and conduct suggests that moral responsibility for foreseeable noncombatant killing rests with both individual actors and collective agents. AUTHORITY The questions of authority in war—what it is and who has it—are highlighted in the practices of military targeting. In other words, one might think that issues of authority are primarily about who is legitimately able, and by what criteria, to consider jus ad bellum criteria and to authorize the use of force—to make decisions about the justice of the cause, whether military force is necessary, whether and when last resort has been reached, and so on. But authority is also at stake in decisions about the use of military force once war has begun. Whose advice about the conduct of war shall be listened to as authoritative in deliberations about proportionality and discrimination? What criteria are legitimate in these decisions? In the United States at least, it has gradually become the norm that deliberations about and supervision of the conduct of war are almost entirely under the purview of the military. Within the military, deliberations about the ethics of conduct have also become centralized and compartmentalized. Authorizations for the use of force, when there are questions of discrimination or proportionality, are often passed through the legitimating authority of military lawyers, who rely on both international law as a source of authoritative guidance and technical expertise. The...

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