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Complex BattlespacesThe Law of Armed Conflict and the Dynamics of Modern Warfare$

Winston S. Williams and Christopher M. Ford

Print publication date: 2019

Print ISBN-13: 9780190915360

Published to Oxford Scholarship Online: December 2018

DOI: 10.1093/oso/9780190915360.001.0001

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Be Careful What You Ask For

Be Careful What You Ask For

The Unintended Consequences of New Restrictions on Fires in Urban Areas

Chapter:
(p.431) 13 Be Careful What You Ask For
Source:
Complex Battlespaces
Author(s):

Geoffrey S. Corn

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190915360.003.0013

Abstract and Keywords

Aleppo, Syria—a city that will join the infamous likes of Nanking, Stalingrad, Manila, Berlin, Hue, Panama City, Mogadishu, Grozny, and Donetsk as one of modern history’s worst urban war zones. Much of the destruction in this city is the result of indirect fires and air-delivered munitions. Indeed, this is the case in Aleppo; the now-infamous “barrel bomb” has become synonymous with indiscriminate Syrian government attacks against rebel-held areas of the city. In response to the humanitarian dangers associated with the use of such weapons in urban and built-up areas, there is a growing trend among international humanitarian law advocates to severely restrict—or even ban outright—the use of fires, high-explosive munitions, and associated weapons systems in built-up civilian population centers. These humanitarian initiatives reveal that for proponents of such restraint, the “problem” of high explosives in populated areas, whether delivered by indirect fire systems or air assets, is critical. The core premise of this chapter is that new restrictions on urban fires may actually exacerbate civilian risk and that fires in support of urban operations are not only operationally essential, but may, when properly employed, actually reduce risk to civilians and civilian property. Accordingly, civilian risk mitigation efforts should continue to focus on enhancing commitment to and compliance with already existing attack precautions and law of armed conflict (LOAC) targeting obligations.

Keywords:   Additional Protocol I, collateral damage, law of armed conflict, military necessity, proportionality, precautions, urban operations

I. Introduction

Aleppo, Syria—a city that will join the infamous likes of Nanking, Stalingrad, Manila, Berlin, Hue, Panama City, Mogadishu, Grozny, and Donetsk as one of modern history’s worst urban war zones. Day in and day out for four and a half years, the world has witnessed the overwhelming human suffering produced by seemingly lawless combat between the Syrian Army—extensively supported by a new generation of Russian air power—and an amalgamation of rebel groups. All the while, the immense destruction produced by the Syrian Civil War’s seemingly indiscriminate employment of combat power in Aleppo has come to epitomize the existing need for a more effective regulation of hostilities in urban areas.

Though the actual causes of the immense destruction associated with urban warfare are myriad and complex, an undeniably key contributor is the use of indirect fires and air-delivered high-explosive munitions.1 Indeed, this is the case in Aleppo, the now-infamous “barrel bomb” has become synonymous with indiscriminate Syrian government attacks against rebel-held areas of the city.2 In response to the humanitarian dangers associated with the use of such weapons in (p.432) urban and built-up areas, there is a growing trend among international humanitarian law advocates to severely restrict—or even ban outright—the use of fires, high-explosive munitions, and associated weapons systems in built-up civilian population centers.3 These humanitarian initiatives reveal that for proponents of such restraint, the “problem” of high explosives in populated areas, whether delivered by indirect fire systems4 or air assets, is critical. As the U.N. Institute for Disarmament Research notes in the first paragraph of a report titled, Protecting Civilians from the Effects of Explosive Weapons: An Analysis of International Legal and Policy Standards:

The use of explosive weapons, such as bombs, rockets, and mortar and artillery shells, in cities, towns[,] and villages and in other populated areas (p.433) has devastating humanitarian consequences. Explosive weapons act mainly through the projection of blast and fragmentation within an area. Their use, in populated areas, causes severe suffering to civilians, both in terms of death and serious injury resulting directly from the explosion, and in terms of damage to property and public infrastructure, which can indirectly affect civilian well-being and survival, sometimes for many years after a conflict has ended. Explosive weapons also leave behind explosive remnants that pose a threat to populations until those remnants are removed.5

Armed belligerent groups recognize that densely populated areas provide the ideal terrain and conditions to advance their tactical and strategic objectives. This realization, combined with the increased urbanization of the planet, will continue to result in an increased propensity for urban warfare and its high-stakes consequences. Given the proven effects of mismanaged explosive weapons in densely populated areas, it is unsurprising that advocates for enhanced and additional legal constraints on the use of high explosives in populated areas consider their proposals not only logical but essential.6

This assessment, and the accordant demand for new legal restrictions on the use of such weaponry, is not nearly as logical as advocates suggest. Setting aside (p.434) the definitional complexities associated with these initiatives,7 they simply fail to comprehend the unintended consequences they will almost certainly produce; consequences that are inherently incompatible with the humanitarian objectives they purport to advance. The unfortunate reality is that restricting high-explosive munitions such as those delivered from indirect fire support assets like artillery, rockets, and mortars, will in no way bring an end to urban warfare and its impact on civilians and civilian property. In fact, it borders on naïve to assume that such restrictions will somehow eliminate the need to confront an enemy embedded in such areas by some other means or methods of warfare. What these proposals fail to comprehend fully is that ultimately it is the enemy situation that will dictate both the necessity of and tactics for engaging in urban warfare; and when belligerent parties deliberately exploit the presence of the civilian population to their advantage, the necessity will only increase.

This chapter will explore the growing rift between the doctrinal role of fires in urban or built-up areas, and the contemporary efforts to restrict such fires and the use of high-explosive ordinance in built-up areas (what will be characterized generally as “urban fires” throughout).8 These efforts not only take the form of proposals for banning or substantially restricting such fires but also a more subtle approach in the form of expanding the civilian risk component of the proportionality equation. This approach relies on an expansive notion of “reverberating” effects to increase the weight accorded to civilian risk in the proportionality balance related to fires in built-up areas. Ultimately, I argue that if civilian risk mitigation is the primary objective, the proposed restrictions are inherently incompatible with that objective. Instead, I suggest that when commanders are (p.435) confronted with enemy personnel and assets commingled with civilians and civilian objects in urban areas, the law encourages preserving the maximum array of lawful attack options and at times may even require the use of fires as an essential tool to balance the dictates of military necessity with the humanitarian imperative of mitigating civilian risk. Accordingly, initiatives to explicitly or implicitly deprive commanders of this option are based on insufficiently informed assumptions. The core premise of this chapter is that new restrictions on urban fires may actually exacerbate civilian risk. Hence, civilian risk mitigation efforts should continue to focus on enhancing commitment to and compliance with already existing attack precautions and law of armed conflict (LOAC) targeting obligations.

II. An Overview of the Proposals for Restricting the Use of Fires in Urban Areas

Before proceeding, it is important to briefly overview the arguments made by advocates for banning or substantially restricting fires in urban areas. Currently, there are two notable positions, to which I will refer to as Proposal One and Proposal Two: Proposal One is that explosive weapons with wide-area effects should not be used in urban areas because of the significant likelihood of indiscriminate effects;9 Proposal Two is that the civilian risk component to the proportionality equation should be expanded to consider the reverberating effects of the use of explosive weapons in urban areas in order to substantially limit situations of permissible use of fires in such areas.10 While both proposals suggest that a restriction on fires is the best approach to reduce civilian risk associated with urban hostilities, that is where the similarities end.

Proposal One, as indicated above, is an instrument-based approach. It is more simply explained in a brief excerpt from an International Network on Explosive Weapons (INEW) pamphlet: “INEW wants to prevent and reduce the harm caused to civilians from explosive weapons. States should look at their existing policies and put in place all necessary measures to avoid killing and injuring civilians with explosive weapons.”11 At first glance this position seems overtly simple or borderline incomplete; but upon further inspection, Proposal One is indeed as broad as the INEW pamphlet language suggests.

The key to Proposal One is the rather expansive approach to defining “explosive weapons.” INEW’s policy pamphlet includes not only missiles, aircraft-delivered bombs, multiple launch rockets, and mortar rounds but also improvised explosive (p.436) devices (IEDs), tank shells, rocket-propelled grenades, hand grenades, and rifle grenades.12 While surely well-intended, this has the effect of producing less reliable figures. For example, INEW claims that 84 percent of all casualties resulting from the use of explosive weapons in a populated area were civilian.13 This is indeed a staggering statistic. However, upon further review, because IEDs are included in that definition, it is relevant to point out that 61 percent of those civilian casualties were the result of IEDs—a weapon employed by primarily non-State actors that disregard and even exploit the existing IHL rules.14

Instead of an outright ban, Proposal Two calls for expanding the attribution of the “weight” allocated to the anticipated risk to civilians and civilian property pursuant to the proportionality assessment of an attack.15 Advocates for this approach point out that the detrimental and in some cases fatal consequences of the use of explosive weapons in urban areas is that such use produces foreseeable “reverberating” effects, which produce harm to civilians and civilian property that often render the use of such weapons indiscriminate and unlawful.16 The obvious examples are those effects on civilian infrastructure and services, often providing essential services and resources that can quickly and exponentially result in compounded civilian injury or death.17

Proposal Two advocates point out that existing LOAC rules, namely, proportionality and the obligation to take all feasible precautions in attack, already require an assessment of the incidental injury and collateral damage that is anticipated to result from an attack on an otherwise lawful military objective using lawful weapons.18 They assert that it is an increasingly accepted notion by advocates, commentators, and State actors that attacking parties must take into account the foreseeable reverberating effects of an attack.19 Where the questions begin to arise, however, is with regard to the scope of this obligation. As is indicated by International Committee of the Red Cross (ICRC) legal advisers, “it has been debated whether there is a causal, temporal or geographical limit to the reverberating effects that need to be considered.”20 Furthermore, “[s]ome commentators . . . have disputed the relevance of reverberating effects on the grounds that there are ‘too many factors that are incapable of assessment at the time the attack.’ ”21

(p.437) Proponents suggest that the answer to these concerns are likely addressed through the illusive threshold of reasonable foreseeability—meaning “that attacking parties must take into account the reverberating effects that would be foreseeable to a reasonable commander, taking into account the information reasonably available at the time of the attack.”22 Arguably, however, this still leaves the concerns unanswered. A brief example provided by the above-referenced ICRC advisers fleshes out this point:

For instance, if a commander is or should be aware that essential civilian infrastructure (for example, hospitals, water and electricity infrastructure) has been partially damaged leading to a disruption of essential services, it is reasonably foreseeable that any future incidental damage to such infrastructure will have a more significant impact on the civilian population, including a higher likelihood of indirect civilian casualties.

Likewise, in protracted conflicts, it is reasonably foreseeable that the quality of essential services will have degraded, due to inability to ensure proper maintenance of infrastructure. As a result, it may be reasonably foreseeable that the reverberating effects of damage to civilian infrastructure will also have a more significant impact on the civilian population.23

Perhaps in less-time-sensitive situations it is reasonably foreseeable that the impact of additional explosive ordinances in an already impacted area will result in heightened risk or further damage to basic infrastructure such as roads, electrical infrastructure, or water mains. But critics of Proposal Two are not suggesting that this is not reasonably foreseeable, but that such an approach is an expansion of the existing proportionality equation, and that it is not legally obligatory to consider such causally or geographically attenuated effects on the civilian side of the proportionality analysis.

In this regard, it is interesting to consider whether this “reverberating effects” approach creates an inherent and inequitable imbalance between the military objective prong of the proportionality assessment and the civilian risk prong. Considering foreseeable reverberating effects may seem appealing, but it also seems to be a much more expansive notion of “anticipated” effects than the rule permits for the military objective assessment, which is limited to the “concrete and direct” military advantage anticipated.24 It would seem that this “concrete and direct” qualifier to the military advantage anticipated from attack should also apply to the civilian risk anticipated to an attack. If not, commanders would be restricted to considering “direct” advantages from an attack, but then be required to consider the more speculative range of “foreseeable” risk to civilians and civilian (p.438) property. Requiring assessment of “concrete and direct” military advantages and civilian risk anticipated from an attack is consistent with the necessity/humanitarian protection balance inherent in the proportionality rule.

Both of these proposals have obvious humanitarian appeal. However, what is arguably overlooked is the potential that adopting either approach may actually undermine LOAC humanitarian objectives. Certainly, where a commander reasonably anticipates that harm to civilians and civilian property will be excessive in comparison to the anticipated military advantage of an attack, the attack may not be executed.25 Unfortunately, these proposals focus almost exclusively on the civilian risk component of this equation and fail to adequately consider the importance of fires on the military advantage side of the scale. Perhaps even more troubling is the fact that these proposals also fail to consider the very real possibility that banning or restricting fires may actually increase risk to civilians.

III. A Cursory Review of the Complex Challenge of Military Operations in Urban Terrain

Humanitarian actors quite naturally view the possibility of armed conflict in built-up or urban areas in terms of the potential for civilian suffering. However, for military commanders contemplating fighting in urban areas, what U.S. Army doctrine designates as urban operations,26 the risk to civilians is an important but certainly not exclusive consideration when assessing the impact of the urban terrain. Accordingly, a credible discussion of the merits of the urban fires–restriction rift effort must begin with an overview of “urban terrain” through the lens of military operators.

As a general matter, military doctrine assesses terrain, including the urban environment, primarily in terms of its impact on operational planning and execution.27 In other words, terrain is a key consideration when assessing the friendly and enemy situation. Thus, when operations extend to urban areas, the relevant terrain consideration is the nature of the urban or built-up environment. Such terrain presents commanders with unique challenges, not only in terms of the concentration of civilians and civilian property but challenges that transcend the spectrum of operational considerations. These include, inter alia, the increased risk of friendly casualties, the difficulties of movement and maneuver, the complexities of establishing and maintaining lines of communication, and the need for diffused command and control for dispersed forces. Control of urban terrain will also often provide significant tactical and operational advantages, to include proximity to critical resources, and the inherent force-multiplying effect of urban terrain when conducting defensive operations.

(p.439) It should be almost self-evident that urban areas offer important access to resources and lines of communication, as well as significant cover, concealment, and countermobility advantages for a force seeking to hold ground or otherwise impede the movements of an opponent. These defensive attributes of urban terrain also translate into another important advantage: the ability to influence the opponent’s will to conduct or continue operations by inflicting substantial casualties. This is an especially significant advantage when confronting an opponent with a limited friendly casualty tolerance, a limit often linked to the political considerations related to the military operation. These considerations are emphasized in the introduction to the U.S. joint doctrinal guidance on urban operations, Joint Publication 3-06:

Cities have played a strategic role in military campaigns throughout history. Because of their geographic location, concentration of wealth and power, or symbolic value, cities have been closely associated with strategic objectives in most of history’s conflicts. While this basic concept remains true, the city has evolved to become an urban area thus including key infrastructure, critical services, and other military considerations that exist outside the traditional city boundary. Growing urbanization throughout the world raises the possibility of future military operations taking place in urban environments.28

The importance of cities and urban terrain is no new epiphany; the challenges of conducting combat operations in such areas, and the benefits that can be derived from forcing an enemy to engage in close urban combat, are almost self-evident to both professional militaries and other organized belligerent groups. Unfortunately, when the enemy’s center of gravity is located in such areas, such operations cannot be avoided. But wars are not traditionally won by defending (although as will be noted below, when combat is viewed as contributing to the strategic information campaign, a purely defensive strategy may be adequate to achieve this end state). Defense is always a temporary phase of operations, intended to set the conditions for subsequent offensive action—what contemporary U.S. doctrine defines as “decisive operations.”29 Decisive operations seek to achieve the strategic end state of hostilities—defeat of the enemy in depth.30

For the military command engaged in offensive operations—in the modern strategic environment almost always the superior professional military force31—close (p.440) combat in urban or built-up terrain is something to be avoided whenever possible. However, for a conventionally weaker opponent, the prospect of drawing combat operations into urban terrain will often be perceived as a significant advantage. For a tactically inferior force, this operational environment will almost always produce a significant offset of their enemy’s superiority, especially when the inferior force compels the opponent to “close with” its forces burrowed into the urban terrain. This increasingly used tactic serves to reduce the inherent advantages normally associated with technology, fire-power, maneuver, and force structure, advantages the superior conventional force is normally able to leverage too much greater effect outside of the urban operational environment.32

Of course, the advantages of urban terrain for a defending force are not limited to unconventional or non-State organized armed groups. Indeed, history is replete with examples of defending forces using urban or built-up areas to offset the tactical advantages of an opponent.33 However, in the type of armed conflicts that dominate the current operational landscape—conflicts that pit regular State military forces against non-State organized armed groups—it is almost inevitable that the non-State party to the conflict will seek to leverage the urban environment. U.S. forces and other conventional forces have little to no interest in conducting operations in this environment, because rarely will these forces be conducting defensive operations against the non-State enemy.34 The reason for this is clear: urban operations exponentially increase the tactical and humanitarian complexity of operations and will rarely if ever favor the attacker, but almost always favor the defender.35

(p.441) Military doctrine recognizes these realities. What used to be called Military Operations in Urban Terrain (MOUT),36 Fighting in Built Up Areas (FIBUAs), and more recently redesignated as urban operations (UO), is specifically addressed in U.S. doctrine (and that of other armed forces).37 This doctrine acknowledges and explains the inherent defensive advantages provided by built-up areas and the immense challenge of executing decisive operations against an enemy embedded in such areas. As one U.S. Army Field Manual explains:

The city and its inhabitants are interactive parts of the urban battlefield. Either can directly influence the fight and neither can be dismissed as irrelevant. But for the individual soldier and the small infantry unit leader, both the urban terrain and its inhabitants, combatants and non-combatants, are full-fledged role players. . . . But once combat begins, the city—structure and people—will begin to change. For the small unit leader and soldiers, situational awareness is absolutely critical.38

The “structures and people” referenced in the quotation above provide emphasis on the notion that the challenges associated with UO are not merely tactical. Instead, there is another important (and highly relevant, to the topic of this chapter) consideration related to operational planning and execution—the protection of civilians. It is well established that the chaotic and destructive nature of close combat in built-up areas inevitably complicates even the best efforts to mitigate civilian risk.

It is therefore unsurprising that military doctrine warns that UO is an especially complex operational task that should be avoided by commanders whenever possible:

Military thinkers and planners have long been aware of the pitfalls of fighting in urban areas. As early as circa 500 B.C., Sun Tzu advised that “the worst policy is to attack cities,” and his advice is echoed in military writings and doctrine to this day. However, despite that sensible advice, wars have been fought in cities repeatedly throughout the centuries, from the sack of Troy to the battles of Fallujah.39

As noted above, for the inferior party to a conflict, the cost–benefit equation of engaging in UO is fundamentally different. These groups understand that the disadvantages the attacker confronts translate into their own defensive (p.442) advantages. In fact, it is becoming an increasingly common reality that LOAC-abiding, professional armed forces face illicit, non-State enemies with no interest in respecting the LOAC.40 Making matters worse, these belligerents often exploit civilian casualties and the destruction of civilian property, using them as the ammunition to feed the belts of their propaganda chain-guns. And, to maintain a constant stock of this informational ammunition, these armed groups not only disregard the risk they impose on civilians, they often seek to exacerbate that risk for strategic information gain.41

Considering the tactical and operational disadvantages that military doctrine recognizes as inherent in UO, the ideal tactic to neutralize the advantages of a superior military opponent is quite clear—make every effort to compel the opponent to engage in UO. Contemporary military campaigns will increasingly find U.S. forces confronting the so-called “hybrid” enemy—an opponent that use a range of capabilities running the spectrum from terrorism to conventional-type military units and tactics.42 These various capabilities will be synchronized and coordinated to achieve maximum effect to offset superior U.S. capabilities, as explained in U.S. Army doctrine: “Threats may be described through a range of four major categories or challenges: traditional, irregular, catastrophic, and disruptive. While helpful in describing threats the Army is likely to face, these categories do not define the nature of an adversary. In fact, adversaries may use any and all of these challenges in combination to achieve the desired effect against (p.443) the United States.”43 This same doctrine emphasizes how these hybrid threats will rely on urban terrain to increase effectiveness.44

Decisive operations in recent conflicts illustrate the complexities of UO and reinforce the wisdom of avoiding decisive operations in urban terrain—Fallujah (I, II, and III), Ramadi, Donetsk, Shuja’iyya (Gaza), Aleppo—and the list goes on.45 These conflicts involve operations that are unlike traditional “maneuver” operations46 against conventional enemies. In the conventional context, commanders are often able to bypass urban areas in order to avoid, or at least minimize UO. In such operations, capturing urban areas is rarely considered central to decisive action against the enemy. In contrast, commanders confronting hybrid enemies embedded in urban terrain rarely have the luxury of bypassing these forces and to avoid the UO confrontation. Instead, decisive operations against these enemies increasingly necessitate closing with their forces in the urban strongpoint, rooting them out, and establishing control over each and every street, block, and building.

This is the reality of contemporary armed conflicts. LOAC-compliant military commanders increasingly face the complicated but unavoidable challenge of conducting decisive combat operations against LOAC-violating hybrid enemies. These enemies seek to neutralize superior combat power and tactical capability by deliberately commingling with the civilian population. In these situations, commanders know that it is impossible to achieve their military objectives without endangering civilians and civilian property. But both the humanitarian and strategic considerations demand that the professional, law-abiding force engage in a disproportionate effort to mitigate this risk, as the enemy will inevitably exploit every civilian casualty as a part of a coordinated strategic information campaign.

IV. Precautionary Obligations and the Importance of Combined Arms

A commander confronted with this challenge must balance two significant considerations related to mission execution: first, the advantages gained by the full employment of combat power to produce a decisive effect against the enemy; (p.444) and second, the obligation to implement all feasible measures to mitigate civilian risk. These two considerations are not inherently incompatible, as some may assume. The nature of contemporary military operations unquestionably validates the premise that the mitigation of civilian risk is itself an important component of mission accomplishment; or, perhaps stated another way, the consequences of indifference to civilian risk will almost always undermine the strategic end state of the mission. In this regard, civilian risk mitigation is increasingly recognized as an important aspect when assessing the military advantage that will result from the employment of combat power. It is therefore unsurprising that the LOAC imposes an overall obligation on all parties to a conflict to “take constant care” to mitigate risk to civilians, and includes positive rules that contribute to an attack decisional process that strikes an effective balance between these two considerations: the precautionary measures enumerated in Article 57 of Additional Protocol I (AP I).47

A. Article 57 Precautionary Measures

AP I’s inclusion of rules regulating the conduct of hostilities during armed conflict was a major step forward in protecting civilians from the adverse consequences of hostilities.48 These rules were intended to ensure the existence of a rational balance between the military necessity of employing combat power and the humanitarian objective of mitigating civilian risk.49 Most of AP I’s rules devoted to regulating the means and methods of warfare are today considered customary in nature and generally applicable to both international armed conflict (IAC) and non-international armed conflict (NIAC).50 One of these rules, enumerated in Article 57, imposes an obligation on an attacking force to consider, and implement where feasible, precautionary measures before launching an attack on an otherwise lawful military target (an individual subject to deliberate attack, or a lawful military objective).51 These precautionary measures are intended to reduce the risk of target-selection errors that result in accidental attacks on civilians and/or civilian property, and reduce the risk of incidental harm to civilians and civilian property, whenever an attack is expected to exposes civilians or civilian (p.445) property to risk.52 Specifically, Article 57 provides that “in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”53 Accordingly, these precautionary measures are especially significant in the context of UO, a point emphasized by the ICRC Commentary to Article 57.

Article 57 indicates that some of these pre-attack precautions “shall” be taken prior to launching an attack. Accordingly, commanders and others who decide upon an attack are presumptively obligated to implement these precautions, subject to limited feasibility qualifiers.54 What does the article indicate commanders “shall” do? The answer turns on the expectation that in many situations, commanders will have more than one option for achieving an intended tactical end state, and when multiple options are viable, the decisive selection criterion must be civilian risk mitigation. Specifically, Article 57 provides that “those who plan or decide upon an attack shall . . . take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.55 Closely related to this “methods and means” option provision is the “choice of targets” precaution, which provides, “[w]hen a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.”56

Taken collectively, these two components of Article 57, which is itself an enumeration of specific measures intended to implement the overarching “constant care” obligation, are quite logical in conception. Rarely will commanders be confronted with a binary choice between a singular course of action for achieving an objective, or foregoing the attack altogether. For example, the U.S. Army doctrine on the military decision-making process—the doctrinal process employed for planning operations and assessing courses of action for presentation for commander selection—presupposes multiple options.57 Even the abbreviated version of this process requires the commander consider at least two courses of action for comparison.58

(p.446) Because civilian risk mitigation is both a legal and doctrinal imperative, consideration must be incorporated into course-of-action development and assessment as part of this decision-making process. In this regard, Article 57 is perfectly aligned with the doctrinal mission-planning process, as it emphasizes the need to consider the civilian risk aspect of various attack options as part of the legal compliance assessment. However, it is important to note that Article 57 does not mandate selection of the “lowest civilian risk” option. Instead, Article 57 simply provides that when all other tactical and operational considerations are equal or substantially similar, civilian risk mitigation becomes the decisive course-of-action selection consideration.59 In other words, when a commander has multiple tactical options for achieving an intended objective, each of which offers the same or similar military advantage, the option that presents the lowest anticipated civilian risk must be selected.

Inherent in Article 57’s “options” approach is the recognition that civilian risk mitigation will often be enhanced in direct relation to the range of attack options available to the commander. Thus, Article 57’s focus is operationally logical: emphasize civilian risk mitigation without degrading tactical effect. This is achieved by requiring commanders integrate civilian protection considerations into their attack option selection process, a process that involves selecting among possible military objectives and possible methods and means of addressing those objectives.60 These two variables—what to attack and how to attack it—may often be intertwined, as the greater the arsenal of weapons, the greater range of potential targets becomes that will enable the commander to achieve a similar military advantage. This is why restricting or prohibiting available attack options may produce an unintended effect of nullifying the efficacy of this precautionary methodology.

This unintended consequence is especially significant in relation to fires in urban or built-up areas. It may be tempting to assume that fires are fungible and that the effects of fires can easily be achieved by use of other methods and means of warfare, most notably ground maneuver operations. This is, however, unrealistic, and disconnected from the doctrinal and tactical relationship between fires and maneuver. Commanders almost never conceive of these tools of tactical action in isolation. Instead, they are vital components in what will ideally be a synchronized use of combat power in what is known as combined arms operations.61 Asking a commander tasked with executing decisive operations against a determined enemy embedded in urban terrain to forgo integration of fires into this combined arms effort will substantially undermine tactical efficacy, provide the enemy a tactical and potentially strategic windfall, and force the commander to compensate for this loss of capability with other options often more dangerous for civilians.

(p.447) B. Fires and Maneuver: The Role of Combined Arms

Commanders entrusted with the responsibility to employ combat power in accordance with the LOAC, to include the obligations imposed by Article 57, utilize both deliberate and time-sensitive decision-making processes to maximize the tactical and operational effects of their resources.62 This “battle command” involves the synchronization and integration of a number of combat functions. In U.S. joint doctrine, these functions are designated as “joint” functions—indicating the range of capabilities the joint warfighting commander utilizes to achieve mission accomplishment.63

It is well beyond the scope of this analysis to address each of these joint functions in depth, or how they are utilized to provide commanders with attack options. It is, however, important to understand that battle command is the process whereby commanders maximize the effects of these joint functions to achieve defined objectives. Two of these joint functions are especially relevant in the UO context: “movement and maneuver” and “fires.”64 These two joint functions are central to what U.S. Army doctrine recognizes as “combined arms” operations—the execution of ground combat operations by employing a combination of arms and capabilities available to commanders.65

Joint Publication 3-0 defines “movement and maneuver,” often simply referred to as “maneuver,” as a function that

[e]ncompasses the disposition of joint forces to conduct operations by securing positional advantages before or during combat operations and by exploiting tactical success to achieve operational and strategic objectives. This function includes moving or deploying forces into an operational area and maneuvering them to operational depths for offensive and defensive purposes.66

An obvious example of movement and maneuver would be moving forces into built-up or urban areas to conduct UO in order to defeat an embedded enemy. As for fires, Joint Publication 3-0 indicates that

[the] use [of] available weapons and other systems to create a specific lethal or nonlethal effect on a target. Joint fires are those delivered during the (p.448) employment of forces from two or more components in coordinated action to produce desired results in support of a common objective. Fires typically produce destructive effects, but various nonlethal ways and means (such as electronic attack [EA]) can be employed with little or no associated physical destruction.67

Joint doctrine enumerates a range of tasks and missions that fall within the scope of the fires function, to include:

  1. (1) Conduct joint targeting. This is the process of selecting and prioritizing targets and matching the appropriate response to them, taking account of command objectives, operational requirements, and capabilities.

  2. (2) Provide joint fire support. This task includes joint fires that assist joint forces to move, maneuver, and control territory, populations, airspace, and key waters.

    . . .

  1. (4) Interdict enemy capabilities. Interdiction diverts, disrupts, delays, or destroys the enemy’s military surface capabilities before they can be used effectively against friendly forces, or to otherwise achieve their objectives.68

Maneuver and fires are the two primary combined arms capabilities available to a commander compelled to attack enemy targets located in urban or built-up areas. Commanders are expected to carefully synchronize and integrate these assets in the combined arms team in order to achieve the most effective tactical and operational outcomes. A wide range of variables will impact this synchronization and integration. Prominent among these considerations are enemy disposition, capability, and terrain—which in the UO context is the urban environment itself.

As in all contexts, fires in the urban environment will almost always be viewed by the commander as providing a vital—if not essential—contribution to joint operational action. Commanders employ fires to achieve a wide range of effects, and contrary to the common misconception, fires are not always employed to “destroy” a target.69 Instead, commanders use fires, inter alia, to fix enemy positions, disrupt enemy movement, disrupt enemy command and control, interdict enemy activities, cover friendly movement, identify and expose the location of enemy positions, and counter enemy fires.70

Fires may be employed in conjunction with or independently from maneuver operations. In other words, there are times when fires are used to support maneuver and times when fires are used independently from maneuver in order produce a desired effect. Even a novice in military operations can understand (p.449) how both these roles might be considered vital during UO. For example, fires can be used to support ground forces conducting maneuver operations in a built-up area. The range of use in support is both vast and decisive, as fires are often used to suppress enemy movement and countermeasures, fix enemy forces in place, disrupt enemy command and control (C2), and screen friendly movements.

In many situations, commanders will seek to avoid maneuver operations in urban or built-up areas. This is largely done to deny the enemy of the substantial defensive advantages provided by the urban environment addressed above. In such situations, fires may be employed to contribute to defeating an enemy in depth, essentially supporting decisive maneuver operations outside of the built-up area. For example, a commander conducting maneuver operations outside the built-up area may use fires to disrupt enemy C2 and movement to reinforce other areas, to deceive and confuse the enemy as to the true focal point of the attack main effort, or to neutralize enemy fire support assets located in the built-up area.71

Recent operations by the world’s most advanced militaries illustrate the various uses of fires in relation to operations in and around urban and built-up areas. These operations show why commanders consider the availability of fires so essential to the successful execution of their missions. While it may be tempting to interpret the use of fires in places such as Fallujah or Gaza as punitive in nature, this is simply inaccurate. Instead, commanders employ such fires to support maneuver operations, thereby mitigating the substantial tactical advantage afforded to the enemy embedded in the built-up areas and hastening defeat of the enemy.

V. The Faults of the Restriction of Fires Proposals

Proposals calling for a reduction or ban of fires and high explosives in urban environments are nearsighted and do not credibly account for the military-operational consequences that would result from imposing such new rules. In fact, there are three significant flaws with these proposals. First, further restriction is inherently inconsistent with existing LOAC precautionary obligations serving to mitigate civilian risk. Second, restriction ignores the many benefits that combined arms action has on civilian risk mitigation. Lastly, restriction ignores the nature and tactics of non-State belligerents in contemporary armed conflict.

A. Fires Restriction Is Inherently Inconsistent with the Civilian Risk Mitigation Objective

Proposals seeking to further civilian risk mitigation through a restriction or ban on fires are fundamentally flawed. Such a restriction on fires—one of the vital and decisive components of the “combined arms” operations—will often force (p.450) commanders to resort to, or exclusively rely on, block-to-block, house-to-house ground maneuver operations to accomplish tactical objectives. This singularity of attack options is inherently inconsistent with the Article 57 obligation to select the tactical course of action that allows for mission accomplishment with the lowest anticipated civilian risk addressed above.72

As noted earlier, Article 57 mandates that mitigating civilian risk be the decisive consideration when selecting among equal or substantially similar tactical attack options.73 Accordingly, where fires provide a commander the opportunity to achieve tactical objectives in a manner that reduces civilian risk, the use of fires is not only operationally logical but obligatory pursuant to Article 57. This “choice of options” precautionary measure is, especially in the context of UO, among the most important methods for mitigating civilian risk. Obviously, the effectiveness of this risk mitigation method is linked to the availability of multiple attack options.

B. Fires Restriction Ignores the Role of Combined Arms in Mitigating Civilian Risk

Prohibiting, or substantially restricting, fires during UO is an ill-conceived measure premised on a tactically flawed foundation. More problematically, it creates potential contradictions with both military doctrine and fundamental LOAC obligations. The combined effect is that these proposals actually contradict the civilian risk mitigation objective of Article 57: such restrictions will limit a commander’s attack options, and in turn often compel highly dangerous maneuver and close combat operations to compensate for the unavailability of fires as part of the combined arms effort.

As noted above, it is common that military doctrine instructs commanders to avoid or minimize UO. Yet it is becoming increasingly common for commanders leading militarily superior armed forces engaged against opponents using “hybrid” tactics to face situations where UO is unavoidable. Decisive action against these enemies will often demand UO against enemy assets embedded in urban terrain amid the civilian population. Contemporary practice shows that belligerent groups with little to no interest in LOAC compliance and the accordant civilian risk mitigation obligation view densely populated areas as an ideal environment for increasing the effectiveness of their operations. These groups purposefully exploit the urban environment because they know it will offset the capabilities of a militarily superior opponent and constrain the opponent’s use of its capabilities because of the increased complexity of doing so consistent with LOAC obligations.

This increasingly common illicit tactic of deliberate commingling of military assets among civilians in urban and built-up areas exposes another flaw in the (p.451) ban/restriction movement—the very real risk that this will produce a perverse effect: actually increasing the incentive for such illicit armed forces and groups to commingle among civilians, thereby increasing the complexity of maneuver operations and the probability of urban warfare.74 As noted above, it is a virtual axiom of military doctrine that such operations are already among the most dangerous and complex a commander must execute. These inherent complexities and disadvantages are summarized in U.S. joint doctrine, which indicates that

[t]he physical terrain of most urban areas makes the movement of large forces difficult, even in times of peace and stability. In situations of turmoil, the difficulties are magnified. The patterns of streets and structures can be confusing to navigate, tend to break up large formations or canalize them toward city centers, are easily interdicted by fire, and can be easily turned into obstacles and barriers. Conventional avenues of approach in urban areas—highways, wide thoroughfares, railways, and rivers—are easily blocked or interdicted.75

. . .

The urban environment significantly affects the ability of the joint force to maneuver by canalizing, increasing vulnerability, reducing options, and slowing movement. Structures pose obstacles that force movement along streets and block movement between streets, thus canalizing and compartmentalizing units and exposing them to fires. This in turn affects the joint force’s ability to change directions, reposition, reinforce, bypass adversary resistance, and/or maneuver to the flank. Buildings and the urban population provide adversary cover and concealment and increase the vulnerability of the maneuvering forces, whether land or air. The nature of urban terrain slows maneuver, partly because of the barriers and obstacles either already present or created during operations and because of the physical demands of these operations. In addition, the urban defender generally has interior LOCs [lines of communication], allowing defenders to quickly react to maneuver on the part of an attacking force.76

(p.452) Banning or restricting fires will only increase the complexity of such operations, especially maneuver operations. And the enemy knows this. It is unsurprising that tactically inferior enemies historically seek to force UO on their superior opponent. But when that enemy seeks to leverage not only the inherent defensive advantages of the built-up or urban area but also the risk to civilians, the availability of the full range of attack options becomes even more imperative.

Offsetting an enemy’s perceived interest in actually increasing civilian risk is an especially significant when contemplating the merits of the ban/restriction movement. This is because it requires a more credible assessment of whether civilian risk mitigation in the UO context may actually be enhanced by preserving the availability of fires as a tactical option, especially when that option allows commanders to avoid decisive UO maneuver operations. Certainly, from a military operational perspective, it is unlikely many experts would embrace the assumption that restricting attack options, thereby compelling UO maneuver and close combat, substantially mitigates civilian risk.

Of course, preserving the fires option will not always eliminate the need to utilize the maneuver option, but where a limited use of fires will offer that advantage, it may very well reduce the risk to civilians and civilian property. In such cases, as indicated earlier, a ban or significant restriction on this operational course of action is inherently incompatible with Article 57. Indeed, such development in the law of weapons restrictions would frequently force commanders to adopt the course of action that creates increased risk to the civilian population.

Even when maneuver operations cannot be avoided, a ban or restriction on fires that is decoupled from operational considerations will complicate the maneuver task. This, in turn, will not only increase the risk to civilians resulting from close combat but will frequently prolong the duration of ground combat operations. These consequences of depriving the commander of the fires option risks substantially exacerbating the ratio of civilian-to-military casualties. In contrast, the availability of fires in support of maneuver will often produce the exact opposite effect. So much is reflected in U.S. joint doctrine, which indicates the importance of combined arms capabilities when conducting maneuver during UO—capabilities that include the effective use of supporting fires:

While all forms of maneuver apply to urban combat, some have greater application than others. The JFC [joint force commander] may use ground, air, maritime, cyberspace, and space-based assets to isolate the urban area. In addition, land forces provide the capability to seize important objectives and DPs [decisive points], to facilitate the removal of civilians, monitor and influence (p.453) behavior, and conduct systematic sweeps of the urban environment. Air assets can be employed to penetrate an area on multiple axes and rapidly project power. In any urban combat maneuver, the best approach is to use the full range of combined arms technology and weaponry available to the joint force, supported by IO [information operations].77

The importance of fires in support of maneuver as part of the combined arms effort is further emphasized in U.S. Army doctrine:

Effective combined arms task organization ensures that forces are task organized with infantry—the essential building block for all organizations conducting UO [urban operations]. Infantry protects mounted elements as the combined arms unit moves and maneuvers through the urban area. (In some urban situations mechanized infantry may not be able to provide dismounted support beyond support to its own vehicles—tanks may require support of additional light infantry). The infantry destroys the enemy in buildings, bunkers, and subsurface areas where they cannot be defeated by mounted forces and prevents infiltration of threat forces back into hard-won urban terrain. Field artillery aids in dismounted and mounted (to include air) maneuver by suppressing known and suspected enemy positions with precision fires. Attack aviation make best use of their standoff capabilities (see later fire support discussion) and aircraft speed to conduct running and diving fires; in UO, hovering fire is generally avoided. Armored elements protect Soldiers from small arms fires and destroy or suppress enemy positions with precise, direct fire. Carefully protected artillery may also be used in this direct fire role. Armored forces and attack helicopters also can facilitate maneuver through shock action that can have a psychological effect, particularly against less well-trained threats. . . .78

This lengthy extract reinforces the basic premise of this chapter: that the complexity of UO necessitates an equally complex synchronization of all assets in the combined arms team, and that fires play an essential role in this synchronization. Use of the entire spectrum of combined arms capabilities may therefore reduce the risk to friendly forces and civilians and accelerate mission accomplishment.

Another potentially troubling consequence of banning or restricting fires in support of UO maneuver is the increased risk of friendly casualties. Commanders responsible for executing UO will always consider force/capacity preservation an important aspect of mission accomplishment. Maintaining momentum and defeating an enemy in depth requires the capacity to not only conduct but sustain operations. Expected casualty and reconstitution rates are critical factors in the mission-planning process. This does not mean that commanders simply “trade off” civilian risk from friendly force risk (what some characterize as prioritizing (p.454) “force protection”).79 However, it does mean that bans or restrictions will be considered arbitrary and illogical when they not only force courses of action that exacerbate civilian risk but also expose friendly forces to casualty risks that could otherwise be mitigated consistently with established LOAC targeting obligations. When every room of every building is a potential enemy strongpoint, as is often the case with unconventional forces using urban terrain to gain a military advantage, every room in every building must be cleared. This door-to-door, building-clearing process involves highly violent and dangerous close combat.80

Nor is this consequence limited to increased risk to friendly forces. While intensity itself is alarming for the troops conducting building-clearing operations, the greater concern is these troops’ severely diminished ability to successfully implement distinction measures. Without the advantages offered by fires, ground forces must resort to grenades and overwhelming small arms firepower when engaging in block-to-block, building-to-building, room-to-room clearing operations. Though this process may have the effect of reduced physical destruction of structures when compared with fires, the accidental and incidental injury inflicted on civilians will substantially increase due to the immense distinction challenges resulting from the compression of target decision-making time and space.

The availability of fires—employed in accordance with existing LOAC obligations—will often reduce these risks. Of course, none of this suggests that fires may be used indiscriminately. Indeed, the same doctrinal sources cited above consistently emphasize the importance of restraint and precision when employing any combat power during UO, which is especially significant in relation to fires as the result of their destructive potential.81 What this does suggest is that a better approach to the UO civilian risk mitigation objective is to focus on how the unique nature of UO impacts implementation of LOAC targeting obligations. For example, U.S. doctrine consistently emphasizes the heightened imperative of precision fires in the operational context and the imperative of restraint to mitigate risk of collateral damage and incidental injury.82

Several examples illustrate the actual humanitarian value of well-regulated fires in UO. Consider a ground assault directed at an enemy objective deep inside urban terrain. Imagine that the commander properly anticipates enemy efforts to disrupt movement and deny access to the objective by using the urban terrain to establish ambush and blocking positions along the movement route. Use of carefully adjusted fires will allow the commander to screen his forces, and suppress (p.455) enemy attacks along the route, without the necessity of clearing all the enemy strongpoints. Without the availability of fires, large numbers of ground forces will be required to engage in house-to-house clearing operations along the route. Furthermore, they must maintain security positions in order to deny the enemy the opportunity to reoccupy the positions after they have been cleared. In the first instance, property destruction may be significant, but the ability to avoid house-to-house and room-to-room clearing operations will substantially reduce the risk of both friendly and civilian casualties.

Next, consider a commander who must conduct an attack on enemy defensive positions outside the urban area against forces commanded and supported from facilities in the urban area. Disrupting C2 and logistics support will be a high priority in order to isolate the defensive positions in support of the main attack effort. Fires provide the commander the opportunity to achieve this tactical effect without resort to maneuver into the urban area. The ground assault alternative will not only be far more destructive, it might not even be feasible based on the commitment of forces to the main effort.

The possible examples of similar situations where fires provide the opportunity to forgo more destructive ground combat in urban terrain are almost endless. When, as in these situations, use of fires as part of the combined arms effort is assessed as less dangerous to civilians, the law should encourage and not discourage such use; indeed, Article 57 arguably already requires such use. The assumption that fires are per se more dangerous to civilians and civilian property is simply inconsistent with military reality. Certainly, there will be situations where use of fires are incompatible with the LOAC. But there will also be situations where fires are employed in a manner that reduces civilian risk. The increased probability of LOAC incompatibility in UO does not, therefore, justify ignoring the operational and civilian risk mitigation advantage fires may at times offer, even in the urban environment.

In sum, while the density of civilians and civilian property during UO are complicating factors, fires are still considered an essential component to effective execution of UO. This essential role is highlighted in U.S. joint doctrine:

In the case of operations involving combat, the JFC can use fires to shape the operational environment and to engage the adversary, but perhaps the most important use of fires is in the isolation of the urban area or points within the urban area. Precision munitions make attacks on specific urban targets much more feasible and effective although their precision does not reduce or mitigate all risk. Operations such as those in Yugoslavia, Kosovo, and Iraq have made significant use of precision fires. Even if the operation is not likely to involve combat, fires are an essential capability in force protection and should be planned. In urban combat, experience has shown that a strong combined arms capability is necessary for success; fires and maneuver are complementary functions that are essential to achieving JFC objectives.83

(p.456) Thus, whether compelled to conduct decisive maneuver operations in a built-up area, or whether conducting a more limited action against targets in a built-up area in support of decisive action elsewhere, removing fires from the commander’s arsenal could necessitate the worst type of alternative—ground maneuver and close combat. forcing that option will undermine the key LOAC precautionary measure of civilian risk mitigation through attack option selection. Instead, focusing on the unique LOAC implementation challenges associated with UO will better advance the interest of civilian risk mitigation.

C. Fires Restriction and the Defenders Obligations

The LOAC obligation to constantly endeavor to mitigate risk to civilians and civilian property is applicable to all parties to a conflict and not exclusively to the attacking force. The LOAC imposes a complementary obligation on both the “attacker” and “defender.” The attacking force must comply with LOAC targeting rules, to include the precautionary measures enumerated in Article 57 addressed above.84 The defending force must endeavor to avoid commingling its military assets with the civilian population in order to avert unnecessary exposure of civilians and civilian property to the risks inherent in the conduct of hostilities.85 This “passive precautions” obligation is not absolute, and the law recognizes that there will be situations where such commingling cannot be avoided.86 However, there is one absolute aspect of this obligation—a party to a conflict may never seek to shield an objective or impede an attack by exploiting the presence of the civilian population.

Addressing the problem of civilian risk during UO by imposing restrictions or a ban on fires will inevitably excuse the defending party from this obligation and incentivize such commingling. The asymmetry inherent in conflicts between conventional State armed forces and hybrid, non-State belligerent groups already routinely manifests itself in efforts by the hybrid enemy to exploit the disparate expectation of LOAC compliance pursuant to which the parties to the armed (p.457) conflict operate. These groups know that no matter how blatant their unlawful exploitation of civilians may be, the more advanced State military force will almost always become the focal point of criticism for civilian suffering produced by hostilities. In other words, these enemies expect that systemic and deliberate violation of their passive precautionary obligation will have little to no impact on the perception of legitimacy for the professional armed forces they confront. Urban and built-up areas with dense civilian populations provide the ideal conditions to facilitate these asymmetric tactics. Enemies know that this environment provides them three potentially enormous advantages, each of which is highlighted by U.S. Army UO doctrine.

First, because close combat in this terrain is highly dangerous—indeed understood as one of the most casualty-prone tactical environments—the enemy will seek to draw superior forces into these areas to offset tactical advantage and inflict unusually high casualties on their military superior opponent. While such operations may not be sustainable for the weaker enemy, punctuating an overall unsuccessful campaign with periods of what seems much more like “peer-to-peer” combat will be viewed as a strategy to weaken the opponent’s political resolve to continue hostilities.87

Second, forcing the militarily superior opponent to conduct decisive operations in the urban environment will provide the inferior force with substantial tactical advantages. These advantages are not limited to the cover, concealment, and enhanced maneuver and sustainment capabilities that come from defending an urban or built-up areas. For these enemies, the primary tactical advantage is derived from what they recognize is the restraint on the use of combat power resulting from efforts by the law-abiding opponent to comply with LOAC civilian risk mitigation obligations. This is an unfortunate and deadly confluence of advantages that illicit enemies derive from maximizing the use of urban terrain to their advantage, but a confluence that cannot be ignored. For these illicit enemies, urban areas and the civilians who populate them are not seen as the object of risk (p.458) mitigation efforts, but instead as a “force multiplier” that must be exploited to maximum benefit. Or, as U.S. doctrine explains:

From the threat standpoint, the populace is similar to key terrain: the side that manages it best has an advantage . . . Threat forces . . . will take advantage of the restraining effect of international law and the Army’s ethical values to enhance their mobility in proximity to friendly positions. Knowing the Army’s reluctance to cause noncombatant casualties and collateral damage, threats may operate in areas containing civilians and essential facilities to restrict the Army’s use of massed or nonprecision [sic] firepower. . . .88

Third, these enemies will increasingly perceive the exploitation of civilian risk as not only a tactical force multiplier but a potential strategic windfall. If, and when, their superior opponents commit to decisive action in the urban environment, it is likely that the operational outcome will favor the superior force. However, tactical or operational loss will be leveraged by the illicit enemy to gain a strategic information advantage. These enemies know that images of civilian suffering produce a profound impact on the perception of legitimacy and that considerations of legal responsibility for civilian suffering rarely influence these perceptions.89 Again, this exploitation of civilian casualties to achieve strategic information advantage is noted in U.S. doctrine:

Threat forces will try and win the information war as much as they will directly oppose Army UO. Threat urban campaigns need not be tactical military successes. They need only weaken legitimacy and make the opposition’s campaign appear unpalatable to domestic, U.S, and world support. As a critical part of a threat’s overall information operations, they will use the ever-present media to tell their story. . . .90

Negating these advantages requires a carefully synchronized and managed use of combined arms capabilities. Fires must, as in all situations, be utilized in accordance with the existing LOAC rules, which is essential to mitigate the risk of civilian harm and unnecessary damage or destruction to civilian property and critical infrastructure. When properly understood, and applied, these rules will ensure an effective and fair balance between the military interests associated with conducting operations in built-up or urban areas and the humanitarian imperative of mitigating civilian risk. Removing this capability from the combined arms effort will, in contrast, not only substantially contradict interests of military (p.459) necessity, but will also provide the enemy with the type of unjustified windfall discussed above.

The risks associated with the imposition of new limits or restrictions on fires in urban or built-up areas are therefore profound. Ultimately, because close combat in urban and built-up areas is becoming increasingly unavoidable due to the nature of enemies that seem to dominate the contemporary threat spectrum, fires must remain an integral component of the combined arms operations, even—indeed perhaps especially—in the urban environment:

Close combat is required in all offensive and defensive UO. This core capability must also be present and visible in urban stability operations and may be required in urban civil support operations. Close combat in any urban operation is resource intensive, requires properly trained and equipped forces, and has the potential for high casualties. However, the ability to decisively close with and destroy enemy forces in a combined arms team remains essential.91

Forcing the use of ground combat maneuver in urban or built-up areas without the support of fires will significantly increase the risk of all the negative consequences to friendly forces that are transformed into advantages by the asymmetric enemy. Close combat clearing operations are casualty-intense, precisely because the nature of the operations negates the tactical, informational, and material advantages of friendly forces. As indicated above, the confined and time-compressed nature of such engagements inevitably exposes civilians to substantial risks of being subject to mistaken attack at worst, or to be victims of incidental injury at best. This risk is exacerbated when the enemy seeks to exploit the civilian presence for cover, for concealment, or as human shields. This results in greater tactical risk for friendly forces, which in turn increases friendly casualty levels. And, no matter how tactically successful the operations, the inevitable civilian injury and property destruction resulting from such close combat is exploited by the asymmetric enemy for information advantage.

Fires will not necessarily eliminate these negative aspects of UO, but they may frequently mitigate them. As U.S. Army doctrine indicates, concentrating the effects of the combined arms effort to include the effects of fires is an essential tenet of urban operations:

In UO, the attacking force creates a major advantage by concentrating effects of combat power at the point and time of its choosing. The area and its compartmented effects naturally disperse and dissipate combat capability. Often commanders must position considerable amounts of stay-behind forces to protect hard-fought gains. The environment also hinders repositioning forces rapidly. Such effects can work equally against defending and attacking forces. However, in a well-prepared defense, the defender often has the advantage of interior lines. The defender can reinforce or reposition forces more (p.460) quickly using covered and concealed routs (such as, sewers, tunnels, or prepared holes made in walls). Successful UO need synchronized air and ground maneuver with overwhelming effects from fires at decisive points on the urban battlefield.92

It would be invalid to dismiss the risk to civilians and civilian property simply by blaming the noncompliant opponent for the creation of that risk; the LOAC clearly forecloses this approach to the difficult problem of fighting asymmetric enemies.93 Nonetheless, asymmetric strategy and tactics based on exploitation of both civilians’ and an opponents’ unilateral commitment to LOAC compliance should not be incentivized. This necessitates preserving the ability of law-abiding forces to employ combat power consistent with the well-established LOAC targeting rules. Denying the law-abiding force with the ability to utilize all the tools in the combined arms arsenal will often provide a defensive tactical and overall strategic windfall to the asymmetric enemy. That enemy will then have an even greater incentive to maximize its exploitation of civilians to gain these advantages.

VI. Conclusion

No commander covets the idea of engaging in UO. Military theorists dating back to Sun Tzu have admonished commanders to avoid such operations whenever possible.94 But as the saying goes, “the enemy gets a vote”; and that “vote” often forces commanders into this difficult operational terrain. Military doctrine addresses both the risks and necessity of engaging in UO and guides commanders confronted with this challenge. As noted throughout this chapter, this doctrine accounts for the inherent risks of UO, including the risk associated with enemies who deliberately utilize the urban terrain and civilian population to impede friendly operations and advance their strategic information objectives. Central to the doctrinal methodology for successful UO is the ability to leverage combined arms capabilities, including the often-decisive advantages provided by fires.

Instead of pressing for a ban or substantial restriction on fires, those interested in mitigating civilian risk associated with UO should focus their efforts (p.461) on emphasizing good faith implementation of LOAC targeting obligations. The problem is not fires in the abstract, it is the indiscriminate and improper use of fires. Emphasizing the constant obligation to carefully measure use of fires in all circumstances, but especially during UO, will ultimately advance the interests of both mission accomplishment and civilian risk mitigation. It will also avoid the perverse effect of functionally eliminating the defenders’ obligation to refrain from exacerbating civilian risk through commingling tactics. This is the current approach of U.S. UO doctrine, and for good reason.95 Preserving the ability to employ fires across the full range of operational situations ensures fires are utilized consistently with legal and operational considerations; instead of arbitrary limits disconnected from military and humanitarian considerations, employment is dictated by the range of considerations, included within the scope of the military mnemonic METT-T-C (mission, enemy, troops available, time, terrain, civilian considerations). Ultimately, what current practice reflects is the reality that because such decisions are always situationally unique, conclusive bans or restrictions are inconsistent with the very nature of military operations.

Concerns over the humanitarian dangers associated with UO may explain the effort to ban or substantially restrict fires in urban and built-up areas; however, these concerns do not “pay their way.” The restriction/ban approach is ultimately shortsighted, for it would deprive commanders of tactical and operational options that they would otherwise be obligated to use pursuant to Article 57’s risk mitigation selection rule. Instead, the interests of both the armed forces and the civilian population will be further advanced by emphasizing strict compliance with well-established LOAC targeting obligations whenever employing fires in FIBUA. When fires will reduce the risk to civilians without compromising mission accomplishment, commanders should not only be permitted to consider such use, they should be required to adopt this course of action. On the other hand, denying commanders this option will ultimately exacerbate civilian risk and incentivize illicit enemy tactics designed to exploit the urban terrain and the civilian population. (p.462)

Notes:

(*) Geoffrey Corn, LTC, USA, (ret.), is the Vinson & Elkins Professor of Law at South Texas College of Law Houston, and formerly Special Assistant for Law of War Matters and Chief of the Law of War Branch, Office of the Judge Advocate General, U.S. Army; Chief of International Law for U.S. Army Europe; Professor of International and National Security Law at the U.S. Army Judge Advocate General’s School.

(1.) See generally JOINT CHIEFS OF STAFF, JOINT PUB. 3-06, JOINT URBAN Operations I-1 (Nov. 20, 2013) [hereinafter JP 3-06].

(2.) See Ian Pannell, Syria conflict: Barrel-bombed Aleppo “living in fear,” BBC, Apr. 28, 2015, http://www.bbc.com/news/world-middle-east-27180006 (discussing the use of “barrel bombs” in Aleppo).

(3.) The International Network on Explosive Weapons (INEW) is a network of nongovernmental organizations advocating for States to completely terminate the use of explosive weapons with “wide area” effects in populated areas. See, e.g., INEW, A COMMITMENT TO ACT: PROTECTING CIVILIANS FROM THE USE OF EXPLOSIVE WEAPONS IN POPULATED AREAS 4 (2015), available at http://www.inew.org/site/wp-content/uploads/2015/09/INEW-commitment-to-act-Sep-15.pdf [hereinafter INEW PAMPHLET]. Restrictions and bans of this sort are not an exclusive proposal of INEW. See Stephen Goose & Ole Solvang, Deadly cargo: explosive weapons in populated areas, HUMAN RIGHTS WATCH (Dec. 30, 2014, 8:33 AM EST), https://www.hrw.org/news/2014/12/30/deadly-cargo-explosive-weapons-populated-areas. Additionally, both the U.N. Secretary-General and the presidents of the ICRC have called for national military and security forces to avoid using explosives with wide-area effects in populated areas.

In recognition of these concerns, multiple international symposiums and expert meetings have been held on this issue under the auspices of the ICRC and United Nations. See ICRC, EXPLOSIVE WEAPONS IN POPULATED AREAS: HUMANITARIAN, LEGAL, TECHNICAL AND MILITARY ASPECTS 2–7 (2015), available at https://www.icrc.org/en/publication/4244-explosive-weapons-populated-areas-expert-meeting, for a report on a 2015 expert meeting hosted by the ICRC in Switzerland. Also see ICRC, 32ND INT’L CONF. OF THE RED CROSS AND RED CRESCENT: INT’L HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICTS 48–53 (2015) [hereinafter 2015 INT’L CONF. RED CROSS/CRESCENT], for a report of the 32nd International Conference of the Red Cross and Red Crescent, where the topic was extensively discussed. The efforts to address explosives in populated areas also extends to States. The government of Austria and the U.N. Office for the Coordination of Human Affairs (OCHA) jointly convened an expert meeting in Vienna on September 21–22, 2015, aimed at discussing the matter of explosive weapons in populated areas. See Fran Josef Kuglitsch, Ambassador, Austria, Statement at the 2016 UNGA First Committee Debate on Conventional Weapons (Oct. 20, 2016) (transcript on file with author and the Permanent Mission of Austria to the United Nations). The basic agreement deriving from the Vienna meeting was that a political instrument is needed to prevent humanitarian harm from explosive weapons in populated areas. Ray Acheson, Political action to end the use of explosive weapons in populated areas, PEACE IN PROGRESS (Feb. 2016), http://www.icip-perlapau.cat/numero26/pdf-eng/Per-la-Pau-n26-ac-1.pdf (discussing the expert meeting in some detail).

(4.) Common indirect fire systems include cannons, rocket artillery, and mortars.

(5.) Maya Brehm, Protecting Civilians from the Effects of Explosive Weapons: An Analysis of Int’l Legal and Policy Standards, UNIDIR/2012/8, x (2012), http://unidir.org/files/publications/pdfs/protecting-civilians-from-the-effects-of-explosive-weapons-en-293.pdf.

(6.) See INEW PAMPHLET, supra note 3, at 2–6. INEW states in their pamphlet that “data indicate [sic] that approximately 90% of those killed and injured when explosive weapons are used in populated areas are civilians” and that

[w]eapons that can be expected to spread explosive effects across a wide area are not acceptable for use in places where civilians or civilian objects are concentrated. The [ICRC] has said that, “due to the significant likelihood of indiscriminate effects and despite the absence of an express legal prohibition for specific types of weapons, the ICRC considers that explosive weapons with a wide impact area should be avoided in densely populated areas.” A political commitment should set a standard against which military practice can be assessed.

Id. at 5, 7.

However, the ICRC has been somewhat inconsistent on its position regarding the use of explosives in populated areas. In 2011, the asserted that “due to the significant likelihood of indiscriminate effects and despite the absence of an express legal prohibition for specific types of weapons . . . explosive weapons with a wide impact area should be avoided in densely populated areas.” ICRC, 31ST INT’L CONF. OF THE RED CROSS AND RED CRESCENT: INT’L HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICTS 42 (2011) (emphasis added). However, in that same report, the ICRC stated that “not all use[s] of explosive weapons in a densely populated area [are] indiscriminate by definition.” Id. at 41. But then in 2015, the ICRC again addressed this issue, noting that

the . . . view that explosive weapons with a wide impact area should not be used in densely populated areas due to the significant likelihood of indiscriminate effects, meaning that their use against military objectives located in populated areas is likely to fall foul of the IHL rules prohibiting indiscriminate and disproportionate attacks.

2015 INT’L CONF. RED CROSS/CRESCENT, supra note 3, at 49 (emphasis added). The ICRC then relaxed its opinion in a June 2016 publication, stating:

[e]vidence arising from the recent use of explosive weapons in populated areas raises serious questions regarding how those using such weapons are interpreting and applying IHL rules. Given the foreseeable effects of explosive weapons, an attacking party’s ability to comply with IHL insofar as populated areas are concerned depends on its choice of means and methods of warfare. It must respect IHL in all circumstances, even if alternative, more discriminate weapons or tactics are not available to it.

ICRC, FACT SHEET: EXPLOSIVE WEAPONS IN POPULATED AREAS 2 (2016), https://www.icrc.org/en/document/explosive-weapons-populated-areas-factsheet. Taking the ICRC’s variances as an example, it is quite clear that the proposals to address the use of explosives in populated areas are both muddled and vast.

(7.) The more notable of these is defining what qualifies as an “urban” or “built-up” area, and what weapons qualify as “high explosives.”

(8.) This chapter and its discussion of the larger, doctrinal function of “fires” by implication includes the narrower terms of explosives of “wide area” effects and “high explosives,” which are seen commonly in contemporary debate.

(9.) See generally INEW PAMPHLET, supra note 3.

(10.) See generally Isabel Robinson & Ellen Nohle, War in cities: The “reverberating effects” of explosive weapons, ICRC (Mar. 2, 2017), https://medium.com/law-and-policy/war-in-cities-the-reverberating-effects-of-explosive-weapons-5b46cea83ce8.

(11.) INEW PAMPHLET, supra note 3, at 4.

(12.) Id. at 7.

(13.) Id. at 8.

(14.) Id.

(15.) See generally Robinson & Nohle, supra note 10.

(16.) Id.

(17.) Id.

(18.) Id.

(19.) Id.

(20.) Id.

(21.) See id.

(22.) Id.

(23.) Id.

(24.) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts art. 57, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I].

(25.) Id.

(26.) See U.S. DEP’T OF ARMY, FM 3-06, URBAN OPERATIONS (Oct. 2006) [hereinafter FM 3-06]; see generally United Kingdom Ministry of Defence, Army Field Manual Vol. 4, Part 5, Fighting in Built Up Areas (1983).

(27.) FM 3-06, supra note 26, at ¶ 2-2.

(28.) JP 3-06, supra note 1, I-1.

(29.) See FM 3-06, supra note 26, at ¶¶ 7-13 to 7-19 (discussing decisive operations).

(30.) Id. ¶ 7-15.

(31.) For example, military operations in Mosul highlight the challenges professional military forces face in urban terrain. See Missy Ryan & Mustafa Salim, U.S.-backed Iraqi forces face risky urban warfare in battle against Islamic State, WASH. POST, Feb. 8, 2015, https://www.washingtonpost.com/world/national-security/in-battle-against-islamic-state-iraqi-cities-loom--and-are-treacherous/2015/02/08/0439cf3e-ad76-11e4-abe8-e1ef60ca26de_story.html?noredirect=on&utm_term=.272f67e2bef8; Sergei Karazy & Maher Chmaytelli, Iraqi forces battle toward heart of Mosul’s Old City, REUTERS, June 23, 2017, https://www.reuters.com/article/us-mideast-crisis-iraq-mosul/iraqi-forces-battle-toward-heart-of-mosuls-old-city-idUSKBN19E1IL.

(32.) See infra notes 37–40 and accompanying text.

(33.) Id.

(34.) Although as will be noted below, when combat is viewed as contributing to the strategic information campaign, a purely defensive strategy may be adequate to achieve the overall goal of influencing public opinion.

(35.) For example, JP 3-06 indicates that

[u]rban areas present a complex environment for military operations. This complexity is derived from numerous factors such as location, history, economic development, climate, available building materials, the natural terrain on which they are built, the cultures of their inhabitants, and many other factors. These factors also contribute to urban areas varying in size (both infrastructure density and area covered), population density, interconnectedness, and dependence on other urban centers. This complexity makes every urban environment unique. There are many ways to frame an understanding of the factors influencing the urban environment, one of which is to view the urban environment as an urban triad consisting of complex man-made physical terrain, a population of significant size and density and varying sociocultural groupings, and an infrastructure.

See JP 3-06, supra note 1, at vii.

(36.) See generally U.S. Marine Corps, MCWP 3.35.3, Military Operations on Urbanized Terrain (MOUT) (Apr. 26, 1998).

(37.) See generally FM 3-06, supra note 26, ¶ 1-1.

(38.) Center for Army Lessons Learned, Small Unit Leader’s Guide to Urban Operations: Tactics, Techniques and Procedures, CALL NEWSLETTER (May 2003).

(39.) Id. I-3.

(40.) Jakob Kellenberger, Foreword to International Committee of the Red Cross, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW, at 7 (2009) (stating “[un]fortunately, there seems to be little reason to believe that the current trend towards increased civilian participation in hostilities will weaken over time.”).

(41.) See JINSA-commissioned Gaza Conflict Task Force, 2014 Gaza War Assessment: The New Face of Conflict, 18 (2015). For example, Hamas employed such tactics during the 2014 Gaza War with Israel.

Hamas cannot achieve outright victory against a militarily superior opponent like Israel; at the same time, because it is incapable of accepting Israel’s legitimacy, it also cannot abandon the conflict. Therefore it has found a way to redefine inevitable battlefield losses as strategic victories. Its reckless tactics and disregard for civilian lives increase collateral damage during eruptions of hostilities with Israel. In turn, Hamas translates these civilian casualties into propaganda to undermine Israel’s international standing. This approach—death by a thousand casualties—depends on regular and prolonged bouts of armed conflict to fuel Hamas’s narrative. For Hamas, it would seem, each outbreak of war with Israel is just one battle in the larger ideological and informational conflict.

Id.; see also State of Israel, THE 2014 GAZA CONFLICT 7 JULY–26 AUG. 2014: FACTUAL AND LEGAL ASPECTS 150–52 (2015), available at http://mfa.gov.il/ProtectiveEdge/Documents/2014GazaConflictFullReport.pdf (discussing the specific complexities of urban warfare during the 2014 Gaza conflict).

(42.) For more information on hybrid enemies, see Chapter 6, which discusses hybrid adversaries.

(43.) See U.S. Dep’t of Army, FM 7-0, TRAINING FOR FULL SPECTRUM OPERATIONS 1–4 (Dec. 2000).

(44.) Id. at ¶ 1-9 (noting that “[t]he enemy will seek to interdict U.S. forces attempting to enter any crisis area. If U.S. forces successfully gain entry, the enemy will seek engagement in complex terrain and urban environments as a way of offsetting U.S. advantages.”).

(45.) See JP 3-06, supra note 1, III-12-13 (“In the past, dealing with complexity was the writ of generals and admirals, usually performed by strategic leaders down to the commander of a theater of operations in charge of a campaign. Today, commanders at much lower levels must master these skills. . . . Colonel MacFarland was ordered from Tal Afar in northern Iraq to Ramadi in the west. ‘I was given very broad guidance . . . [f]ix Ramadi, but don’t destroy it. Don’t do a Fallujah.’ ”).

(46.) See id. IV-24 for a more detailed discussion of “movement and maneuver,” which is also discussed more thoroughly in later sections of this chapter.

(47.) See Additional Protocol I, supra note 24, art. 57.

(48.) Jean S. Pictet ET AL., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 xxix–xxxv (Int’l Comm. of the Red Cross, 1987), [hereinafter AP Commentary].

(49.) See id.

(50.) See Jean-Marie Henckaerts & Louise Doswald-Beck, CUSTOMARY INT’L HUMANITARIAN LAW 56–58 (2009); U.S. Dep’t of Defense, LAW OF WAR MANUAL 19.20 (June 2015, updated Dec. 2016) (offering a detailed discussion on Additional Protocol I, the provisions which are recognized through other treaties of U.S. practice, as well as those that are not recognized by the United States).

(51.) See Additional Protocol I, supra note 24, art. 57.

(52.) The Commentary to the two Additional Protocols even suggest that “the precautions prescribed . . . will be of greatest importance in urban areas because such areas are most densely populated.” AP Commentary, supra note 48, ¶ 2190.

(53.) Additional Protocol I, supra note 24, art. 57(1).

(54.) See Geoffrey S. Corn & James A. Schoettler, Jr., Targeting and Civilian Risk Mitigation: The Essential Role of Precautionary Measures, 223 MIL. L. REV. 785, 810 (2015).

(55.) Id. art. 57(2)(a)(ii).

(56.) Id. art. 57(3).

(57.) See U.S. Dep’t of Army, TACTICS, TECHNIQUES, & PROCEDURES 5-0.1, COMMANDER AND STAFF OFFICER GUIDE ch. 4 (Sept. 2011) [hereinafter ATTP 5-0.1]; U.S. DEP’T OF ARMY, DOCTRINE PUB. 3-0, UNIFIED LAND OPERATIONS ¶ 38 (Oct. 2011).

(58.) See ATTP 5-0.1, supra note 57, ¶ 4-12-13.

(59.) See Additional Protocol I, supra note 24, art. 57(3).

(60.) Id. art. 57(2)(a)(ii), 57(3).

(61.) FM 3-06, supra note 26, ¶ 4-23-4-27.

(62.) Geoffrey S. Corn & Gary P. Corn, The Law of Operational Targeting: Viewing the LOAC through an Operational Lens, 47 TEX. INT’L L.J. 337, 342–45 (2012).

(63.) According to U.S. doctrine:

Joint functions are related capabilities and activities grouped together to help JFCs [joint force commanders] integrate, synchronize, and direct joint operations. Functions that are common to joint operations at all levels of war fall into six basic groups—C2 [command and control], intelligence, fires, movement and maneuver, protection, and sustainment.

See Joint Chiefs of Staff, JOINT PUB. 3-0, JOINT OPERATIONS III-1-2 (Aug. 11, 2011) [hereinafter JP 3-0].

(64.) See id. III-22-35.

(65.) FM 3-06, supra note 26, ¶ 4-23-27.

(66.) JP 3-0, supra note 63, at xv.

(67.) Id. III-22.

(68.) Id.

(69.) See JP 3-06, supra note 1, IV-17.

(70.) JP 3-0, supra note 63, III-22-23.

(71.) See Prosecutor v. Gotovina, Case No. IT-06-90-A, Appeals Judgment, ¶ 74-84 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 2012).

(72.) See Additional Protocol I, supra note 24, art. 57(2)(a)(ii).

(73.) Id. art. 57(3).

(74.) The term “commingling” is used to denote deliberate efforts by an enemy to locate its military assets among the civilian population.

(75.) JP 3-06, supra note 1, IV-24.

(76.) Id. IV-26. To further emphasize the challenges of maneuver and close combat operations during FIBUA, Joint Publication 3-06 lists a range of consequences resulting from the nature of urban terrain:

  • () Reduced advantages of the technologically superior force;

  • () Ground operations becoming man-power intensive;

  • () Ground operations become decentralized;

  • () Operations are time consuming;

  • () The necessity to conduct operations pursuant to restrictive rules of engagement;

  • () Degraded weapons value due to restrictions on employment and effects;

  • () Overall advantage for defenders;

  • () Unique intelligence and information challenges;

  • () The challenge of preserving critical infrastructure while conducting decisive combat operations;

  • () The need to simultaneously conduct decisive (combat) and stability operations in close proximity; and

  • () Large ratio of civilian to military casualties.

See id. I-5-6.

(77.) Id. (emphasis added).

(78.) FM 3-06, supra note 26, ¶ 4-23.

(79.) See Geoffrey S. Corn, War, Law, and the Oft Overlooked Value of Process as a Precautionary Measure, 42 PEPP. L. REV. 419, 463 (2015).

(80.) The 2004 military operations in Fallujah provide an example of the violence associated with urban clearing operations. See, e.g., Dan Lamothe, Remembering the Iraq War’s bloodiest battle, 10 years later, WASH. POST, Nov. 4, 2014, https://www.washingtonpost.com/news/checkpoint/wp/2014/11/04/remembering-the-iraq-wars-bloodiest-battle-10-years-later/?utm_term=.9aeab3153446.

(81.) See FM 3-06, supra note 26, at ¶ 6-34.

(82.) Id. at ¶ 4-35.

(83.) JP 3-06, supra note 1, IV-15 (emphasis added).

(84.) See Additional Protocol I, supra note 24, art. 57.

(85.) See id. art. 58. Article 58 provides the following:

The Parties to the conflict shall, to the maximum extent feasible:

  1. (a)) Without prejudice to Article 49 of the Fourth Convention, endeavor to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;

  2. (b)) Avoid locating military objectives within or near densely populated areas;

  3. (c)) Take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.

Id. (emphasis added).

(86.) Id. (specifically, note the “to the maximum extent feasible” qualification of Article 58); Corn & Schoettler, Jr., supra note 54, at 810.

(87.) U.S. joint operational doctrine highlights this relationship between UO and an enemy’s strategic objective of weakening political resolve:

Threat forces may gain an advantage against superior friendly forces by capitalizing on perceived weakness of many Western nations: the inability to endure continuous losses or casualties for other than vital national interests or losses for which they are psychologically unprepared. A secondary U.S. interest may equate to national survival on the part of a threat. Therefore, the threat (particularly with fanatical leadership) may willingly sacrifice excessive amounts of money, equipment, and people (soldiers and civilians) to achieve victory. Threats may attempt to weaken U.S. resolve and national will to sustain the deployment or conflict by inflicting highly visible, embarrassing, and if possible, large losses on Army forces, even at the cost of similar losses themselves. Many threat forces will use UO to inflict mass casualties and destroy premier Army weapon and information systems. The physical characteristics of the urban environment support these ambush techniques. Light infantry or insurgents with readily obtainable hand-held antiarmor weapons can effectively attack armored vehicles and helicopters, no matter how sophisticated, in urban areas

FM 3-06, supra note 26, ¶ 3-14.

(88.) Id. at 3-21.

(89.) See generally Geoffrey S. Corn, Targeting, Distinction, and the Long War: Guarding against Conflation of Cause and Responsibility, 46 ISR. Y.B. HUM. RTS. 135–70 (2016).

(90.) FM 3-06, supra note 26, at ¶ 3-26.

(91.) Id. at ¶ 6-30 (emphasis added).

(92.) Id. ¶ 7-5 (emphasis added).

(93.) Additional Protocol I, supra note 24, art. 51.

(94.) SUN TZU, THE ART OF WAR 19 (James Trapp trans., Chartwell Books 2012). For example, one translation of Sun Tzu’s renown text states the following:

[T]he lowest form [of warfare] is to besiege his cities. The time involved is too costly: it takes up to three months to construct the various moveable shelters, transports and other siege engines; it takes another three months to raise earthworks against the walls. If the general loses patience and sends his men swarming like ants around the city, it will cost him a third of his army with no result. These are the disastrous pitfalls of a siege.

Id.

(95.) See FM 3-06, supra note 26, ¶ 4-30-42.