A defining feature of Russia’s war against Ukraine has been the bombardment of cities such as Mariupol, Kharkiv, and Odessa with artillery, rockets, missiles and air dropped bombs. According to the OSCE and groups such as Human Rights Watch, Russia has attacked hospitals, schools, apartment buildings, markets and churches. Outraged by this destruction, the United States has accused Russian forces of war crimes. In a March 23 statement backing up this accusation, Secretary of State Blinken noted “numerous credible reports of indiscriminate attacks” by Russian forces and likened Russia’s tactics in Ukraine to those it used in Grozny and Aleppo. Most recently, before the U.N. Security Council on April 27, U.S. Ambassador-at-Large for Global Criminal Justice, Beth Van Schaack criticized Russia for “deliberate and indiscriminate attacks against civilians and elements of the civilian infrastructure.”
Given recent U.S. government condemnations of indiscriminate attacks, it is worth examining what the United States means by this term as well as longstanding U.S. government views on the status of indiscriminate attacks under the law of war. This article also highlights an apparent disconnect between the views of the U.S. government as a whole and the Department of Defense’s Law of War Manual regarding indiscriminate attacks.
Indiscriminate Attacks Under Additional Protocol I
The Additional Protocols of the Geneva Conventions supplement the Conventions of 1949 and codify rules governing the conduct of hostilities. Article 51(4) of Additional Protocol I, applicable in international armed conflict, provides that:
Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
Subparagraph (a) therefore bars the indiscriminate use of a weapon which could in principle be directed against a military objective. It is this prohibition which is the focus of the essay. The paradigmatic example of such an attack is Iraq’s launching of SCUD missiles against Israel in the 1991 Gulf War (discussed below). Although these ballistic missiles were capable of being directed against military objectives, Iraq blindly fired them towards Israeli cities. Recent U.S. denunciations of indiscriminate attacks by Russian forces in Ukraine have focused on this type of law of war violation.
Further fleshing out the prohibition, Article 51(5) of Additional Protocol I supplies illustrative, non-exhaustive examples of indiscriminate attacks.
Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
The United States is not a party to Additional Protocol I. Although the United States signed the Protocol, the Reagan administration decided not to proceed with seeking Senate advice and consent to ratification of the treaty, for reasons unrelated to Article 51. A 1985 review of Additional Protocol I by the Joint Chiefs of Staff identified a number of provision that were in its view at the time objectionable. With respect to Article 51(4) and 51(5), however, the Joint Staff noted these paragraphs were “acceptable” though an understanding to the treaty was necessary to clarify that harassing and interdicting fires should not be considered indiscriminate.
U.S. Views on the Prohibition of Indiscriminate Attacks under Customary International Law
While not bound by Article 51(4) of Additional Protocol I as a matter of treaty law, the United States has nonetheless taken the position that the prohibition on indiscriminate attacks reflected in this provision is binding as a matter of customary international law. Notably, the United States has recognized this customary prohibition to apply in both international and non-international armed conflicts.
In a 1994 written statement to the International Court of Justice, the United States identified a number of “principles of the law of armed conflict that would apply to the use of nuclear weapons as well as to other means and methods of warfare.” These principles are reflected in provisions of the Additional Protocol I, including the prohibitions making civilians the object of attack (codified in Article 51(2)) and the prohibition on attacks causing excessive harm to civilians (Article 51(5)(b)). Further, the United States cited Article 51(4) of Additional Protocol I, and noted that “[i]t is unlawful to conduct any indiscriminate attack, including those employing weapons that are not or cannot be directed at a military objective.” As the United States is not a party to Additional Protocol I, these principles could only be applicable to the United States as a matter of customary international law.
The United States also made clear that it regards the prohibition on indiscriminate attacks to be customary in nature when it transmitted the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons (Amended Landmines Protocol) to Congress. That treaty expanded the scope of the original Protocol II to impose regulations on the use of landmines not only in international armed conflicts, but also in non-international armed conflicts. Article 3(8) of the Amended Landmines Protocol defines indiscriminate use generally in line with Article 51(4) of Additional Protocol I:
(a) which is not on, or directed against, a military objective. In case of doubt as to whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to an effective contribution to military action, it shall presumed not to be so used;
(b) which employs a method or means of delivery which cannot directed at a specific military objective; or
(c) which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
In the President’s transmittal package for the treaty submitted to the Senate with the request for advice and consent, the Clinton administration explained the substance of the agreement as well as the executive branch’s views and interpretation. The executive branch observed that the prohibition on indiscriminate attacks reflected in Article 3(8) of the Amended Landmines Protocol was “already a feature of customary international law that is applicable to all weapons.” Given that the original treaty was amended to apply to both international and non-international armed conflicts, the implication is that the corresponding rule of customary international law has a similar scope.
U.S. Views on the Criminal Prohibition of Indiscriminate Attacks
The United States has both acknowledged that customary international law prohibits attacks not directed at a specific military objective and taken the position that such attacks are war crimes. Whereas a law of war violation implicates a state’s international obligations, a war crime constitutes a serious violation of the law of war entailing individual criminal responsibility.
Iraq’s conduct during the 1991 Gulf War prompted the Defense Department to articulate its views on the criminality of indiscriminate attacks. In a 1992 congressionally mandated report on the law of armed conflict and the Gulf War, the Pentagon catalogued what it characterized as “widespread and premeditated” Iraqi war crimes. The report, subsequently reproduced in the Department of States’ Digest of U.S. Practice in International Law, notably, identifies among these Iraqi war crime “indiscriminate attacks in the launching of Scud missiles against cities rather than specific military objectives, in violation of customary international law.”
The United States reiterated this position before the United Nations later that same year.
Along with the Kingdom of Jordan, the United States submitted a joint memorandum to the Chair of the United Nation’s Sixth Committee regarding the law of war and the protection of the environment. This carefully lawyered memorandum distinguished between different types of legal obligations regarding the conduct of hostilities: on the one hand, rules binding generally under international law, including rules reflected in the provisions of Additional Protocol I; and on the other hand, rules applicable only to parties to Additional Protocol I as a matter of treaty law. Under the former category, generally applicable rules, the joint memorandum explained that violations of the prohibition on indiscriminate attacks amounted to war crimes.
It is a war crime to employ acts of violence not directed at specific military objectives, to employ a method or means of combat which cannot be directed at a specific military objective, or to employ a means or method of combat the effects of which cannot be limited as required by the law of armed conflict.
The Strange Silence of DoD’s Law of War Manual
In contrast to repeated statements by the United States that attacks not directed at specific military objectives are not only prohibited by the law of war, but criminal, DoD’s Law of War Manual does not explicitly address the issue. The manual fails to cite prior U.S. views on the prohibition or even just to Article 51(4)(a) of Additional Protocol I.
These omissions regarding Article 51(4)(a) are striking because the manual does refer to other distinct prohibitions on indiscriminate attacks. For example, the manual notes the prohibition on the indiscriminate use of landmines imposed by Article 3(8) of the Amended Landmines Protocol (section 6.12.5.2), yet does not mention the executive branch informed Congress this prohibition was customary and applicable to all weapons. The manual repeatedly refers to the separate prohibition on inherently indiscriminate weapons—weapons than cannot be directed at a specific military objective—including in a section of that title (section 6.7). The manual’s other references to “indiscriminate attacks” pertain to attacks causing excessive civilian harm as reflected Article 51(5)(b) of Additional Protocol I (section 5.12).
It may be possible to infer a prohibition on attacks not directed at specific military objectives from other sections of manual taken together, including: 5.4 (the rules on conducting assaults, bombardments, and other attacks); 5.10 (proportionality in conducting attacks); 5.11 (feasible precautions); and 5.12 (prohibition on attacks expected to cause excessive incidental harm). But the manual itself does not explicitly articulate such a customary rule.
The lacuna in the Law of War Manual may be partly a function of its authorship. This lengthy, 1200+ page treatise was issued under the signature of the Pentagon’s general counsel and is explicitly subject to the caveat that “the views in this manual do not necessarily reflect the views of … the U.S. Government as a whole.” Thus the manual should, at most, be understood to represent the views of the Pentagon’s Office of General Counsel and not as with the other examples cited above, the legal position of the U.S. Government or executive branch writ large.
But even this does not fully capture the discord. The Department of Defense (in the Persian Gulf War report to Congress) adopted positions supporting the rule, presumably so did the Department as part of the interagency process that resulted in the U.S. government’s prior stated positions at different points in time (i.e. statement to the ICJ, memo to the United Nations.) Further, notwithstanding the manual’s silence regarding the rule reflected in Article 51(4)(a), individual branches of the military currently explicitly recognize the prohibition on indiscriminate attacks. The Commanders Handbook on the Law of Naval Operations, both before and after the issuance the DoD Law of War Manual, included a description of the law war that closely tracks Article 51(4) of Additional Protocol I. The 2022 version, for example, states:
The principle of distinction, combined with the principle of military necessity, prohibits indiscriminate attacks, specifically:
1. Attacks that are not directed at a specific military objective (e.g., Iraqi SCUD-missile attacks on Israeli and Saudi cities during the Persian Gulf War)
2. Attacks that employ a method or means of combat that cannot be directed at a specific military objective (e.g., declaring an entire city a single military objective and attacking it by bombardment when there are several distinct military objectives throughout the city that could be targeted separately)
3. Attacks that employ a method or means of combat, the effects of which cannot be limited as required by the law of armed conflict (e.g., use of chemical or biological weapons).– 2022 Commanders Handbook on the Law of Naval Operations, at 5-5
For comparison, see similar language in the 2017 Commanders Handbook on the Law of Naval Operations, at 5.3. and the 2007 Commanders Handbook on the Law of Naval Operations, at 5.3.2.
Conclusion
Whatever the reason, the manual’s silence regarding the prohibition on attacks not directed at specific military objectives is perplexing and risks muddling the signals that the U.S. government sends about the imperative of protecting civilians in armed conflict. For at least three decades, the U.S. government has recognized that such indiscriminate attacks are both illegal and criminal. The executive branch has expressed this view before Congress, the International Court of Justice, and the United Nations. The Department of Defense’s Law of War Manual should reflect and express the same.