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The Law of Aerial Bombardment in the 1991 Gulf War

Published online by Cambridge University Press:  27 February 2017

Extract

I shall often go wrong through defect of judgment. When right, I shall often be thought wrong by those whose positions will not command a view of the whole ground. I ask your indulgence for my own errors, which will never be intentional, and your support against the errors of others, who may condemn what they would not if seen in all its parts.

—Thomas Jefferson

On August 2,1990, Iraqi forces invaded and occupied Kuwait, beginning a seven-monthlong series of events that would come to be known as the Persian Gulf war. Perhaps the most thoroughly examined of these events was the thirty-eight-day air campaign, which began on January 17,1991, and marked the beginning of the offensive by the coalition of states arrayed against Iraq, which ended after the latter’s withdrawal from Kuwait. Much has been written about the air campaign and its objectives, its implications for the future use of military force, and the extent to which it conformed to international law. Although this article will focus on the last of these topics, a contextual understanding of the air campaign is essential to a serious consideration of the military necessity and proportionality issues that lie at the heart of the legal analysis.

Type
Research Article
Copyright
Copyright © American Society of International Law 2003

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References

1 As this article goes to press, the second Gulf war has just come to a close. For the sake of historical context, the article does refer to some of the occurrences in that conflict, but its sole focus is on the first Gulf war. All references to coalition forces, their targeting protocols, and the legal standards by which they were measured relate to the first Gulf war and events that occurred in 1990–1991.

2 This article is a revision of a research paper submitted in 1998 at Harvard Law School. The interviews cited were conducted at that time, mainly over the telephone. In all cases they involved at least two sessions, and often three or four to clarify certain points and confirm that the quotes I proposed to use accurately reflected the interviewees’ recollection of the events described. I also had a limited amount of e-mail contact with some of these persons, mainly for the purpose of confirming quotes. My contact with General Horner, however, was limited to several e-mail exchanges.

3 Declaration to Prohibit for the Term of Five Years the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature (Hague IV, l ) July 29,1899, 32 Stat. 1839,1 Bevans 270. By the terms of the declaration, this prohibition only lasted five years.

4 Convention Respecting the Laws and Customs of War on Land, with annex of regulations, Oct. 18,1907,36 Stat. 2277,1 Bevans 631 [hereinafter Hague Convention IV]; Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18,1907, 36 Stat. 2310,1 Bevans 654; Convention Concerning Bombardment by Naval Forces in Time of War, Oct. 18,1907,36 Stat. 2351,1 Bevans 681 [hereinafter Hague Convention IX]; Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 UST 571, 94 LNTS 95; Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9,1948,78 UNTS 277; Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12,1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12,1949, 6UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War.Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva Convention IV]; Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14,1954,249 UNTS 240; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3 [hereinafter Protocol I].

5 Hague Convention TV, supra note 4, regulations, Art. 22.

6 Id., Art. 23(g).

7 Id., Art. 27; Hague Convention IX, supra note 4, Art. 5.

8 Examples include the German bombings of Warsaw, Rotterdam, and Coventry; Japanese raids on Shanghai; American and British raids on Dresden and Hamburg; and American raids on Tokyo. Numerous statements by Goering, Harris, and LeMay substantiate an intent to harm civilians and make clear that if it was not always the direct object of aerial bombardment, it was at least viewed as a beneficial side effect.

9 Geneva Convention fV, supra note 4, Arts. 18–23.

10 Protocol I, supra note 4, Art. 49.

11 Id., Arts. 51, 52, 54.

12 Id., Arts. 56,57. Although Article 56 specifically describes “installations containing dangerous forces” as dikes, dams, and nuclear power plants, objections were made that attacks on biological weapons facilities would also violate Article 56.

13 Id., Art. 58.

14 Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims (Cont’d): Sofaer, Abraham D., The Rationale for the United States Decision, 82 AJIL 784 (1988)CrossRefGoogle Scholar.

15 E.g, U.S. Dep’t of the Air Force, Law of Armed Conflict Training Guide (1993) [hereinafter Loag Guide].

16 Keaney, Thomas A. & Cohen, Eliot A., Gulf War Air Power Survey:Summary Report 29 (1993)Google Scholar [hereinafter Gwaps].

17 Id.

18 Id. at 30.

19 Id. at 30–31.

20 Interview with Lt. Col. (then Maj.) Harry Heintzelman (Feb. 17, 1998). Heintzelman was a JAG on the CENTAF staff during Internal Look 90. He indicated that many of the targets selected during that exercise found their way into the planning of the air campaign.

21 Kuehl, Daniel T., Thunder and Storm: Strategic Air Operations in the Gulf War, in The Eagle in the Desert 111, 112 (Head, William & Tilford, Earl H. Jr. eds., 1996)Google Scholar.

22 Reynolds, Richard T., Heart of the Storm: The Genesis of the Air Campaign against Iraq 12 (1995)Google Scholar.

23 Id. at 2.

24 GWAPS, supra note 16, at 33.

25 1 Gulf War Air Power Survey: Planning and Command and Control, pt. l, at l05–08 (1993) [hereinafter 1 GWAPS]. General Powell canceled references to the Rapid Response Plan after the Camp David meeting with President Bush on August 4, 1990.

26 Reynolds, supra note 22, at 24–25.

27 U.S. Dep’t of Defense, Conduct of the Persian Gulf War: Final Report to Congress 55–57 (1992) [hereinafter Conduct] .

28 Reynolds, supra note 22, at 121; Kuehl, supra note 21, at 113.

29 GWAPS, supra note 16, at 36.

30 Reynolds, supra note 22, at 26–27. “Checkmate” was the name given to Warden’s planning cell in the Pentagon that helped pick strategic targets and assess the effects of the strategic air campaign as the war progressed.

31 Id. at 30.

32 Kuehl, supra note 21, at 113. These arguments closely parallel those that raged throughout the 1920s and 1930s over the usefulness of armor. Men like Field Marshal Haig and his successors on the Imperial General Staff of the British army insisted that the Napoleonic concept of bringing the enemy to a decisive battle had been borne out by the experience of World War I, and that the physical destruction of the enemy army was the only way victory could be achieved. On the other hand, men like Basil Liddell-Hart argued that rapidly moving armor could cut deep behind enemy lines, paralyzing the command structure and rendering the fighting force itself useless. The British rejected these premises for the use of armor until they were practiced upon them by Generals Guderian and Rommel.

33 Reynolds, supra note 22, at 120–29.

34 Id. at 127–29. One of the last things that Warden said to Horner before he “ceased to exist” at the briefing was that Horner was being “overly pessimistic” about the Iraqi tanks 100 miles from Riyadh. This comment highlights the extent to which Warden believed that airpower and the eighty-four-target Instant Thunder plan could end the war with Iraq by isolating Saddam Hussein.

35 Sibbald, Ray, The Air War, in The Gulf War Assessed 110 (Pimlott, John & Badsey, Stephen eds., 1992).Google Scholar

36 Id. Horner was in fact appointed as JFACC in August 1990.

37 Kuehl, supra note 21, at 113.

38 Reynolds, supra note 22, at 124–29. Horner closed the meeting by remarking,” [T] ell them to come to theater. [Lt. Gen.] Jimmie Adams knows you don’t fight from Washington!” Id. at 129.

39 Id. at 129–30; Kuehl, supra note 21, at 113. These planners received much of their intelligence from the Checkmate group in Washington, who had greater access to national-level resources than the planners in Riyadh.

40 Kuehl, supra note 21, at 121; Interview with Arkin, William M., Formerly of Greenpeace (Feb. 9, 1998)Google Scholar. For a compilation of views on the efficacy of the air campaign, see Winnefeld, James A., Niblack, Preston, & Johnson, Dana J., A League of Airmen: U.S. Air Power in the gulf war 27680 (1994)Google Scholar. Subsequent conflicts seem to support both sides of this debate. Kosovo proves that political objectives can be achieved purely through the use of airpower; Afghanistan illustrates both the capabilities and the limitations of airpower in influencing the outcome of a conflict and in eliminating specifically targeted individuals; and the recent war in Iraq is an example of the air/land battle concept subscribed to by Horner.

41 Interview with Lt. Col. Harry Heintzelman (Feb. 9, 1998). Heintzelman wrote and negotiated the applicable rules of engagement for air forces in theater.

42 Id.; see also Interview with Maj. Ronald M. Reed (Feb. 6, 1998) (who served as the JAG for the B-52 wing stationed in Jiddah, Saudi Arabia, during Desert Storm); Interview with Maj. Jeffrey K. Walker (Feb. 1,1998) (who served as the JAG during Operation Deny Flight in Bosnia).

43 On the Black Hole, see further note 157 infra.

44 David A. Deptula, Parallel Warfare: What Is It ? Where Did It Come from ? Why Is It Important ? in The Eagle in the Desert, supra note 21, at 127, 138–45.

45 Interview with Brig. Gen. (then Lt. Col.) David A. Deptula (Mar. 11, 1998).

46 Id. Deptula estimated that diis sequence of events occurred on approximately five occasions.

47 Interview with Heintzelman, supra note 20; see also Interview with Deptula, supra note 45.

48 Interview with Walker, supra note 42; see also Interview with Lt. Col. Tony Montgomery (Feb. 6, 1998) (who was the staff judge advocate—effectively the senior JAG officer—involved in Desert Strike, the punitive cruise missile operation against Iraq).

49 LOAC Guide, supra note 15, tab 1, 1.

50 Introduction to id., at 3.

51 U.S. Dep’t of the Air Force, International Law—The Conduct of Armed Conflict and Air Operations 1–5–6 (Pamphlet No. 110–31, 1976) [hereinafter AFP 110–31].

52 LOAC Guide, supra note 15, at 3.

53 Protocol I, supra note 4, Art. 48.

54 AFP 110-31, supra note 51, at 1-6.

55 Interview with Heintzelman, supra note 20.

56 Protocol I, supra note 4, Art. 57(2) (a) (iii).

57 1 GWAPS, supra note 25, pt. 1, at 94. Although planners had taken account of the desire to limit damage to structures of cultural and religious significance from the very start, President Bush’s request for assurances that such structures would not be harmed prompted the creation of the Joint No-Fire Target List. It was drawn up by strike planners with the help of the Department of State and the intelligence agencies, and it included various religious and historical structures, as well as dams and dikes.

58 Interview with Arkin, supra note 40 (pointing out that the Iraqis’ parking of the MiGs near the temple was not as unusual as might first appear because of its location inside the perimeter wire of the base).

59 Conduct, supra note 27, app. O, at 0–14,15.

60 “Lawful military objectives located near protected buildings are not immune from aerial attack by reason of such location . . . .”AFP 110–31, supranote 51, at 5–13.

61 LOAC Guide, supra note 15, at 4.

62 Conduct, supra note 27, app. O, at 0–14,15.

63 Id. at 96–97.

64 GWAPS, supra note 16, at 64–65.

65 Id.

66 Because I will rely on the categories used by the campaign planners themselves, this will necessarily be an imprecise method of classification. For example, the telephone-switching facility at Al Khark was placed in the command, control, and communications target set, while an important telephone exchange in Baghdad was listed in the strategic air defense category. Id. at 55.

67 Id. at 42.

68 Id. at 64.

69 Id. at 64–65.

70 Id. at 65.

71 E-mail from General Charles A. Horner (Mar. 20,1998) (describing the planning after the first two and a half days, and particularly after the first week, as “building [Air Tasking Orders] on the fly” without being able to tailor each day’s sorties to the latest intelligence update, as had been possible during the six-month run-up to the war).

72 Interview with Deptula, supra note 45.

73 GWAPS, supra note 16, at 78–79. After the war, Iraq’s nuclear program was found to be far larger than imagined, employing over twenty thousand people, and much closer to fielding a weapon than had been estimated at the beginning of hostilities.

74 Id. at 78.

75 Id. at 65.

76 AFP 110–31, supra note 51, at 5–11. It should be noted, however, that the United States placed dams and dikes on the Central Command’s Joint No-Fire Target List.

77 Id.

78 Id.

79 Interview with Brig. Gen. David A. Deptula (Mar. 15, 1998).

80 Id.

81 Id.

82 Id.

83 Id.

84 Interview with Heintzelman, supra note 20.

83 “[I] t is especially forbidden . . . g. To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” AFP 110–31, supra note 51, at 5–1–2 (quoting Hague Convention IV, supra note 4, regulations, Art. 23(g)).

86 1 GWAPS, supra note 25, pt. 1, at 189.

87 2 Gulf War Air Power Survey: Operations and Effects and Effectiveness, pt. 2, at 332–37 (1993) [hereinafter 2 GWAPS].

88 Interview with Deptula, supra note 79.

89 Id.

90 GWAPS, supra note 16, at 86.

91 Interview with Deptula, supra note 79.

92 Id.

93 GWAPS, supra note 16, at 87.

94 Id. at 86. After the war, United Nations observers commented on the fact that it was impossible to distinguish the decoys from the mobile launchers beyond twenty-five yards.

95 Interview with Heintzelman, supra note 20.

96 Id.

97 2 GWAPS, supra note 87, pt. 2, at 271.

98 1 GWAPS, supra note 25, pt. 1, at 189.

99 Id. at 97.

100 U.S. Dep’t of the Air Force, Commander’s Handbook on the Law of Armed Conflict 2–1 (Pamphlet No. 110–34, 1980) [hereinafter Commander’s Handbook].

101 Id.

102 Conduct, supra note 27, at 96.

103 2 GWAPS, supra note 87, pt. 2, at 275–76.

104 Interview with Deptula, supra note 45.

105 GWAPS, supra note 16, at 45. For the provision in question, see Exec. Order No. 12,333, §2.11, 46 Fed. Reg. 59,941,59,952 (1981).

106 2 GWAPS, supra note 87, pt. 2, at 277.

107 Sibbald, supra note 35, at 111. Part of the reason for the dismissal was that at the time of the statement (September 1990), we were still negotiating with Saddam on a peaceful resolution of the crisis, and statements such as this were politically embarrassing. Deptula also conveyed the sense that political rivalries may well have played a part in this dismissal.

108 Interview with Deptula, supra note 45. That Saddam may have been aware he was a target did not change the purpose of the L set, which was principally just to keep him and other Iraqi leaders on the run.

109 GWAPS, supra note 16, at 65.

110 Interview with Deptula, supra note 45; see also Rick Atkinson, Crusade: The Untold Story of the Persian Gulf War 276 (1993).

111 Middle East Watch, Needless Deaths in the Gulf War 128–29 (1991).

112 Damage Control—and Real Damage, N.Y. Times, Feb. 14, 1990, at A26 (editorial).

113 2 GWAPS, supra note 87, pt. 1, at 220–21.

114 Interview with Deptula, supra note 45.

115 2 GWAPS, supra note 87, pt. 1, at 244.

116 Interview with Heintzelman, supra note 20.

117 2 GWAPS supra note 87, pt. 1, at 245; see also text at notes 57–62 supra (discussing the temple at Ur).

118 2 GWAPS, supra note 87, pt. 1, at 245.

119 Id. at 246. William Arkin suggested that these attacks were really called off because it was feared that, if the bombs missed their targets, it would give the Iraqis a psychological boost. Interview with Arkin, supra note 40. Neither Brigadier General Deptula nor General Horner alluded to such fears in their exchanges with me.

120 2 GWAPS, supra note 87, pt. 1, at 245. Also, Deptula echoed these sentiments during the interview supra note 45.

121 2 GWAPS, supra note 87, pt. 1, at 246. Also, General Horner indicated in an e-mail, supra note 71, that he was under the impression that the attack on Saddam’s statue was called off because it violated international law, and not for political reasons.

122 Interview with Deptula, supra note 45. The concept of parallel warfare, described briefly in the text at note 43 supra, emphasizes effects over destruction. Therefore, several of these facilities were not targeted with enough force to destroy them but, rather, merely to turn them off.

123 2 GWAPS, supra note 87, pt. 2, at 285–86.

124 1 id., supra note 25, pt. 1, at 217.

125 2 id., supra note 87, pt. 2, at 288–89. Naturally, the Iraqis have not been forthcoming about describing the effectiveness of the attacks on their command, control, and communications system. Without access to Iraqi wartime records of the difficulties imposed by the CCC and L set attacks, there is no way to assess their true impact. This is an area that may be assessed more accurately in the aftermath of the second Gulf war if Iraq’s military records become available to the coalition.

126 Id., pt. 2, at 280. Well over 80% of the L set attacks and over 40% of the CCC attacks were made with PGMs (either F-117s or F - l l l s with laser-guided bombs) or Tomahawk or air-launched cruise missiles.

127 Defense Department. Special Briefing with Secretary of Defense Dick Cheney, General Colin Powell, Chairman, Joint Chiefs of Staff, Pete Williams, Fed. News Serv., Jan. 23, 1991, available in LEXIS, Legis Library, FedNews File.

128 2 GWAPS, supra note 87, pt. 2, at 161.

129 Id. at 172.

130 GWAPS, supra note 16, at 48–51. “Iraqi ground forces” were eventually defined as the tanks, armored personnel carriers, and artillery of the Republican Guard and Iraqi army in the Kuwaiti theater of operations.

131 2 id., supra note 87, pt. 2, at 189–91. This sharp reduction in capacity is somewhat misleading. The actual flow of supplies was approximately forty thousand metric tons per day at the beginning of the air campaign. This total was reduced to approximately seventeen thousand tons per day by the beginning of the ground offensive, about twenty-eight thousand tons per day less than the combat supply requirement.

132 Id. at 198. There were isolated effects; some battalion- and even brigade-level units surrendered as a direct result of inadequate supplies.

133 Id. at 189–90. The destruction of the bridges along the Baghdad-Al Basra rail line cut the principal means used by the Iraqis to transport armor and self-propelled artillery to the Kuwaiti theater. See also Conduct, supra note 27, at 613. Baghdad bridges were destroyed to cut the fiber optic lines that facilitated communication with the Iraqi army in Kuwait.

134 Middle East Watch, supra note 111, at 111–25. Without saying as much, Middle East Watch comes to this conclusion. For obvious reasons, it is highly critical of any bridge attack that resulted in civilian casualties, and implies that such attacks were largely due to the targeting guidance given the pilots, and the “fact” that precision munitions were seldom used against bridges. Part IV infra will explain why these critiques are misguided and factually inaccurate.

135 2 GWAPS, supra note 87, pt. 2, at 295.

136 Id. at 296.

137 Id. at 310–11. The planners also hoped that restricting the flow of POL supplies would hamper the use of emergency generators, which would be required when the power grid shut down.

138 Id. at 293.

139 Id. at 311. The Iraqi use of Kuwaiti refineries and POL supplies led to a limited number of strikes on Kuwaiti facilities.

140 Id. at 311.

141 Id. at 310.

142 Both Deptula, supra note 45, and Heintzelman, supra note 20, emphasized that the attacks on the oil production system were designed to inflict short-term damage only.

143 2 GWAPS, supra note 87, pt. 2, at 308.

144 Id. at 295.

145 Id. One of the indicators of a modern electrical system is the use of a relatively low percentage of installed capacity. The European and U.S. standard is up to 70% of installed capacity. The other major feature that established the Iraqi system as a “modern” one was the relative infrequency of service interruptions or brownouts.

146 Id. at 292–93. The U.S. military held a variety of views on the efficacy of the E set. Colonel Warden and his Checkmate planners felt that the interruption of telecommunications was critical. After interviewing Arab officers in the coalition, Gen. Buster C. Glosson decided that the morale factor was critical, while Lieutenant Colonel Deptula’s main objective was to get Iraq on the less reliable backup power, which might be rendered even less reliable when the O set strikes reduced the supply of fuel necessary to run the generators.

147 Id. at 292. The Defense Intelligence Agency’s still-classified “Special Analysis: Degradation of the Iraqi Electric Power Network” indicated that the Iraqi nuclear, biological, and chemical production and storage facilities required large amounts of energy for the creation of nuclear weapons and the refrigeration of biological and chemical weapons.

148 Interview with Heintzelman, supra note 41; text at notes 249–50 infra (oti the secondary targeting of the Hartha plant in Basra).

149 2 GWAPS, supranote 87, pt. 2, at 296–97. The Iraqi integrated air defense system (a KARI system purchased from the French) was a fairly sophisticated network of air defense radars, fighters, surface-to-air missiles, and antiaircraft artillery. Because its effectiveness relied upon the integration of these systems, the interruption of electrical power at a critical moment, and the difficulties associated with using backup generators, caused great problems for the computer-based network.

150 Id. at 297. About sixty of the ninety-five strikes in the first two days were carried out by Tomahawks and F-l 17s.

151 Id. at 302.

152 Id. at 298.

153 GWAPS, supra note 16, at 65.

154 1 id., supra note 25, pt. 2, at 41; see note 36 supra.

155 1 GWAPS, supra note 25, pt. 2, at 48. In dealing with such potentially volatile allies as the French, Horner agreed with their commander’s insistence that “only French aircraft fly over [French] forces,” while continuing to allocate French aircraft where they would be most valuable to the coalition. Similarly, when Horner disagreed with the Royal Air Force’s low-level tactics, he suggested the formation of a multinational tactics board rather than ordering the low-level flights halted. The British ceased using low-level tactics shortly thereafter. Id.

156 Mat 71.

157 Id. at 169. Initially, the Black Hole, so named for its secrecy and isolation from the rest of the Tactical Air Control Center, ran parallel to the CENTAF planning staff.

158 Id.

159 Id. at 187.

160 E-mail from Horner, supra note 71; see also 1 GWAPS, supra note 25, pt. 2, at 207–08. Although Horner wanted to take advantage of the long lead time before the war began, he specifically cut off planning for the air war beyond the third day, and refused to allow prewar production of the third day’s ATO. This approach reflected his view that conventional warfare is a matter of “action/reaction a lot, and you have got to be able to capitalize on mistakes the enemy makes.” Id. at 208 (quoting Interview with General Horner (Mar. 4, 1992)).

161 1 GWAPS, supra note 25, pt. 2, at 233–34.

162 The War in Iraq by the Numbers, AP, Apr. 10, 2003, available in WL Allnewsplus; Garamone, Jim, Coalition Bringing All Powers to Bear on Iraq, Am. Forces Press Serv., Mar. 31, 2003 Google Scholar; Garamone, Jim, Coalition Aircraft Mew More Than 1,500 Sorties overlraq. Am. Forces Press Serv., Mar. 25, 2003,Google Scholar both available at <http://wwv.defenselink.mil/news/Mar2003/>.

163 1 GWAPS, supra note 25, pt. 2, at 208–12. An example of these changes occurred on January 30, when large numbers of sorties were diverted to attack the two Iraqi divisions being marshaled for a follow-on attack on Al-Khafji. The intense pounding from the air broke up the Iraqi forces and ended their chance of supporting the Iraqi forces already in Al-Khafji. Id. at 237–40.

164 Id. at 209. For Horner’s use of the term “chaos war,” see id. at 208 and p. 508 infra. Horner had anticipated these problems, but felt that they needed to be worked through as soon as possible. See note 160 supra.

165 1 GWAPS, supra note 25, pt. 2, at 230–31.

166 Id. at 216–18.

167 Id. at 233–34.

168 Id. at 230–31. The F–117, F–111, and F-15E communities all expressed concern about these changes, and indicated that they reduced both effectiveness and safety. It has not been documented that such changes caused excessive collateral damage, probably because aircrews who could not positively identify their targets were instructed to bring their bombs back. See text at notes 199–200 infra.

169 See text at note 44 supra.

170 U.S. Dep’t of the Air Force, an Introduction to Air Force Targeting 21 (Pamphlet No. 200–17, 1989) (describing the job of a targeting officer as “determining the quantity of a specific weapon required to achieve a specified level of damage to a given target”).

171 Interview with Deptula, supra note 45.

172 Briefing by Deptula, David A., Reflections on Desert Storm: The Air Campaign Planning Process (Apr. 9, 1996)Google Scholar [hereinafter Deptula Briefing].

173 Id.

174 Interview with Heintzelman, supra note 20.

175 Id. This systems knowledge was not something that Heintzelman, or any JAG, would have acquired through formal instruction. He developed an appreciation for the capabilities and limitations of the systems that were being employed because it would make him a more effective JAG officer. During my interviews with other JAG officers, I found this degree of professionalism to be typical of the way they viewed their responsibilities.

176 2 GWAPS, supra note 87, pt. 2, at 270.

177 Id. at 285–86.

178 Id.

179 Interview with Heintzelman, supra note 20.

180 Id. Any such calculation must be qualified, of course, because the weapons were not 100% accurate. The proportionality analysis took these probabilities into account on the basis of the circular error probable (CEP) of the specific weapon and delivery system. The CEP of a weapon indicates that 50% of that type of ordnance will fall within that radius of the aim point. In the case of unguided munitions, the CEP would be in the area of fifty to one hundred feet, depending on the aircraft delivering the weapon. In the case of PGMs, the CEP was five feet.

181 Interview with Heintzelman, supra note 20.

182 Id.

183 Deptula Briefing, supra note 172.

184 This was the sort of information that we received on a daily basis from the ATO throughout Desert Shield. During Desert Storm, all of the administrative information continued to be supplied in addition to the target and munitions information described above.

185 Interview with Maj. Dan Rogers (Apr. 7, 1998).

186 This account is based on my personal experience as a squadron schedules officer while in a navy air wing. The scheduling procedures were similar to those used by the air force.

187 Interview with Reed, supra note 42; see also Interview with Maj. Dan Rogers (Feb. 9, 1998). Rogers was Assigned to the F–117 contingent during Desert Storm.

188 Interviews with Reed, supra note 42, Rogers, supra note 187, and Walker, supra note 42.

189 Interview with Maj. Dave Wesley (Jan. 21,1998). Wesley teaches the Operations Law Course at the Air Force JAG School located at Maxwell Air Force Base, Alabama. Every new JAG officer takes this course as part of his or her training.

190 Interview with Rogers, supra note 185. These services include drafting wills, divorce counseling, and legal advice on tax matters.

191 Interview with Reed, supra note 42. These included dealing with traffic accidents between U.S. service members and the local population, as well as liaison between the wing commander and the local populace. The stationing of B–52s at Jiddah, the gateway to Mecca, was an extremely sensitive local issue. The decision to put B-52s in Jiddah was probably related to their longer range, but it also meant that air activity in that area was lower than at bases where other types of aircraft were stationed.

192 Interviews with Majors Reed, supra note 42, and Rogers, supra note 187. The responsibility for checking the wing/squadron schedule against the ATO would reside with the wing/squadron operations officer, a senior major or lieutenant commander in the navy.

193 Interviews with Reed, supra note 42, and Rogers, supra note 187.

194 Interview with Rogers, supra note 185.

195 Id.

196 Interviews with Rogers, supra notes 185, 187. Because he was assigned to the F-l 17 squadron, Rogers dealt with some questions concerning collateral damage resulting from the use of precision weapons in proximity to civilian areas.

197 See text at note 55 supra.

198 Interview with Reed, supra note 42.

199 [Air Force Lt. Col.] Humphries, John G., Operations Law and the Rules of Engagement in Operations Desert Shield and Desert Storm, Airpower J., Fall 1992, at 25, 37 Google Scholar, available at <http://www.airpower.maxwell.af.mil/airchronicles/apj/hump.html>; see note 168 supra. The “fragged” target is the primary assigned target for that mission.

200 Id. Although none of the JAGs that I interviewed could confirm this specific figure, they all stated that it was not uncommon for aircraft to return with undelivered ordnance.

201 Interview with Rogers, supra note 185.

202 See text at notes 115–19 supra.

203 E-mail from Horner, supra note 71.

204 Interviews with Heintzelman, supra note 41, Reed, supra note 42, Rogers, supra note 187, and Walker, supra note 42.

205 Interview with Arkin, supra note 40. Reportedly, there was one instance in which the personality conflict between the JAG and his senior officer was so intense mat the senior officer did not bring the JAG officer with him to theater.

206 See, e.g., Middle East Watch, supra note 111; see also Normand, Roger & Jochnick, Chris af, The Legitimation of Violence: A Critical Analysis of the Gulf War, 35 Harv. Int’l L J. 387 (1994)Google Scholar; Arkin, William M., Baghdad: The Urban Sanctuary in Desert Storm? at <http://www.fas.org/man/dod-101/ops/docs/apj-spr97–arkin.html> (visited June 17, 2003)+(visited+June+17,+2003)>Google Scholar.

207 See sources cited in note 206 supra.

208 Normand & Jochnick, supra note 206, at 387–95.

209 Id.

210 Middle East Watch, supra note 111, at 137–44.

211 Interview with Arkin, supra note 40 (largely tracking his article, supra note 206).

212 Normand & Jochnick, supra note 206, at 396.

213 Id. at 395 n.34.

214 Middle East Watch, supra note 111, at 137–40.

215 Id. at 140–43.

216 Interview with Arkin, supra note 40.

217 Id.

218 Interviews with Deptula, supra note 45, and Heintzelman, supra note 20; E-mail from Horner, supra note 71.

219 Atkinson, supra note 110, at 275.

220 Id. at 275–76. The Central Intelligence Agency believed that the bunker had been used for command and control during the Iran-Iraq war as well.

221 Interview with Deptula, supra note 45.

222 Id.

223 Atkinson, supra note 110, at 276–77.

224 Id. at 277.

225 Interview with Deptula, supra note 45.

226 AFP 110–31, supra note 51, at 5–13.

227 Humphries, supra note 199, at 36.

228 Interview with Deptula, supra note 45.

229 1 GWAPS, supra note 25, pt. 1, at 91; see also Interview with Deptula, supra note 45; E-mail from Horner, supra note 71.

230 Middle East Watch, supra note 111, at 137–40.

231 1 GWAPS, supra note 25, pt. 2, at 256.

232 Id. at 255–58. The lack of timely bomb damage assessment plagued the air campaign from the outset.

233 See the discussion of ATO changes in text at notes 164–68 supra.

234 2 GWAPS, supra note 87, pt. 2, at 302.

235 Id. at 304. To a certain extent, “turning the lights out in Baghdad” was thought to be a positive step in letting the Iraqi people know that even on the first day of the war Saddam Hussein could not protect them and their way of life from the coalition.

236 Id. at 304–05.

237 Normand & Jochnick, supra note 206, at 401–02.

238 Middle East Watch, supra note 111, at 186–92.

239 Id. at 177–80.

240 Normand & Jochnick, supra note 206, at 403–05.

241 Id. at 406–07. Normand and Jochnick state that the Iraqi electrical system was generating only thirty-five hundred megawatts of power (37% of prewar capacity) in September 1991. Id. at 404 n.66. Assuming that this number is accurate, it should be pointed out that it represents 68% of highest daily consumption recorded during 1990. This is not to say that a 30% reduction in available electricity does not represent a hardship for the Iraqi people, but when over 70% of average daily electrical needs can be met, the reason for the hardship might well be found in Saddam’s distribution policies (party first, military second, etc.).

242 Middle East Watch, supra note 111, at 190–91. Although GWAPS was published two years after Needless Deaths and provided some explanations for the targeting of electricity, the Middle East Watch (now Human Rights Watch) commentators maintained the position on the eve of the second Gulf war that electrical power production should not be targeted. They acknowledged that the attacks on electricity during the Kosovo campaign achieved the desired military effect without the long-term incapacitation of electrical generation, but they still believed that electricity should not be targeted in the second Gulf war.

243 Normand & Jochnick, supra note 206, at 407.

244 2 GWAPS, supra note 87, pt. 2, at 291. It should be pointed out that Warden and other planners were well aware of the generalized effects on German industry of the electrical attacks in World War II. However, this does not mean that they were equally aware of the civilian effects of the attacks, or that they felt the civilian effects were likely to be similar in a more modern society.

245 See note 241 supra.

246 2 GWAPS, supra note 87, pt. 2, at 293.

247 E-mail from Brig. Gen. David A. Deptula (Apr. 10, 1998).

248 2 GWAPS, supra note 87, pt. 2, at 293 n.55.

249 Normand & Jochnick, supra note 206, at 403.

250 2 GWAPS, supra note 87, pt. 2, at 298.

251 Interview with Arkin, supra note 40.

252 Id.

253 Id.

254 Interviews with Heintzelman, supra note 41, and Deptula, supra note 45.

255 2 GWAPS, supra note 87, pt. 2, at 304. It is unclear whether the loss of water was explicit in the report he received.

256 E-mail from Gen. Charles A. Horner (Mar. 29, 1998).

257 Id.

258 Introduction to LOAC GUIDE, supra note 15, at 4.

259 E-mail from Horner, supra note 256.

260 Commander’s Handbook, supra note 100, at 2–1.

261 Interview with Prof. David Kennedy (May 1998). Professor Kennedy of Harvard Law School spent several days on the USS Independence in April 1998. Among his observations of the feelings concerning a possible strike against Iraq was this ambivalence about the efficacy of L, C, and CCC target attacks.

262 Interview with Montgomery, supra note 48.

263 Id.

264 Interview with Wesley, supra note 189.

265 Interview with Rogers, supra note 187.

266 Id.

267 Id.

268 Air Force Judge Advocate General School, Memorandum for Operations Law Course and Readiness Training Program [Syllabus] (May 6, 2002). On JAGs’ multitasking during Desert Storm, see text at notes 187–91 supra.

269 Interview with Walker, supra note 42.

270 Carl von Clausewitz, On War 101 (Howard, Michael & Paret, Peter trans. & eds., 1976)Google Scholar.

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