Air University Review, July-August 1982

More Rolling Thunder

As a non-American civilian lawyer, I cannot blame the American government for having considered the Vietnam War a limited war and, consequently, to have chosen not to take advantage of all the options that, as W. Hays Parks so relevantly shows, international law in force at the time placed at its disposal.* For political reasons, considering not only the specific nature of the conflict but also American and international opinions, the United States preferred to stay below the level of conflict the law of war permitted.

*W. Hays Parks, "Rolling Thunder and the Law of War," Air University Review, January-February 1982, pp. 2-23.

From this position adopted by the American government, one issue has resulted that I think should be emphasized: Since the administration did not pretend that the restrictions kept during the air operations against North Vietnam were imposed by international law, this practice cannot be considered as a legally relevant precedent. Although Mr. Parks did not come to this conclusion explicitly, I think that it is implied in his discussion.

Here, then, are some observations concerning specific points expanded in the article:

Page 6, left column, line 6: "lawful targets, such as political offices responsible for the direction of the war, . . ."

The nature of such "offices" as lawful targets, in accordance with the law of war in force at the time, is certain. Even though Additional Protocol I is, in this regard, obscure and silent, I believe that the law has not been changed concerning this point. However, one must be very careful to distinguish between, on one hand, the intrinsic nature of the "military objective," i.e., the definition of lawful target, and, on the other hand, the legality of the attack itself.

• Page 16, left column: The "military necessity" concept is, as Mr. Parks wrote, compatible with the "principle of war of economy of force," but it should not be confused with the latter. This is pointed out clearly in the passage quoted from AFM l10-3l,* which defines, quite correctly, "military necessity as justifying ‘measures of regulated force not forbidden by international law which are indispensable for securing the prompt submission of the enemy, with the least possible expenditures of economic and human resources." (Italics added.) This means that the international law of war can restrict or limit the use of means meeting the requirements of the principle of "economy of force." These restrictions or limitations add to those that result from the principle of economy of force; in any case, they prevail over the latter.

*Air Force Manual 110-31, International Law--The Conduct of Armed Conflict and Air Operations.

• Page 16, right column, first paragraph: In my opinion this definition of lawful targets expresses correctly the status of the law of war in force at the time, i.e., before the development of this law by Additional Protocol I. The latter has, in its definition of military objectives, put aside the idea of the "war effort," Article 52, paragraph 2, substituting for it the "effective contribution to military action."

In the list of items that were considered as military objectives or that could be considered as being military objectives before 1977, Mr. Parks mentioned "b. Industry (war supporting/import/export)." (Italics added.) With respect to this last category of items, I know very well that the thesis of their inclusion as military objectives has been held since the American Civil War by American authors, but this doctrine was not accepted internationally. One cannot transpose to the field of the law of land warfare the rules which are applicable—and which continue to be in force under Protocol I!—with regard to blockade. It is evident that export goods are excluded from the definition of military objectives in Article 52, paragraph 2, of the Protocol.

• Page 17, left column, lines 3-4: ". . . a legitimate target may be attacked wherever it is located." This was without doubt the law in force at the time of the Vietnam War, and Protocol I has maintained this principle. But, as I have already stressed, one should not identify lawful target of attack with lawful attack. In accordance with Article 51, paragraph 5b of Protocol I, the attack of a military target is not permitted, being "considered as indiscriminate," if it

may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

In other words, the targets in question remain in all circumstances military objectives, subject to attack; however, the attacks should be made under lawful conditions. According to Lieutenant Colonel A. P. V. Rogers, U.K. Land Forces: "Even attacks on military objects may be unlawful if the rule of proportionality is violated." (Military Law and Law of War Review, No. 1/2, 1980, Addendum.) This rule should be considered as having already been in force prior to Protocol I.

• Page 19, right column: "Casualties among civilians working in a facility that is a legitimate target cannot prevent attack on that facility; their injury or death as a result of the attack of that target is an occupational hazard and the exclusive responsibility of the defender."

This is undoubtedly right; I would go even further than Mr. Parks: I think that, even under the rules of Protocol I, the "incidental loss of civilian life, injury to civilians" sustained by these people does not constitute loss of human lives among the civilian population, nor does it constitute injuries to civilians that are counted in the assessment of the incidental civilian casualties and damage "which would be excessive in relation to the concrete and direct military advantage anticipated."

• Pages 19-20:

Individuals supporting the war effort by moving military supplies and personnel down lines of communication into South Vietnam or repairing the roads and bridges making up those LOCs were taking a direct part in the hostilities and therefore were subject to attack.

The inclusion of civilians "moving military supplies" to people "taking a direct part in the hostilities," in my opinion, corresponds indeed to the status of the law in force before 1977. But I have strong doubts that this also was applicable to the civilians "repairing the roads and bridges making up those LOCs." (On the other hand, it was of course lawful to attack the work itself being repaired, in spite of the civilian presence.)

• Page 20, left column: "The law of war . . . expects each [party] to act in good faith with respect to the minimization of collateral civilian casualties. To the extent that the defender elects to disregard the law of war, he is responsible for the civilian casualties that flow from his actions."

I agree with the conclusion but not with the premise. The status of the law in this matter, as it was in force at the time of the Vietnam War, has not been modified by Protocol I. According to it, the side that exposes its civilian population to an enemy attack acts in a manner that has to be condemned but does not constitute an unlawful act under the law of war.

It goes without saying—and Mr. Parks is absolutely right—that that side should be responsible for the losses sustained by the civilians thus exposed.

Editor's Note: Translated from the French by Lia May Patterson.

Dr. Henri Meyrowitz is a French lawyer, a specialist in international law.

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.

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