Air University Review, September-October 1982
Major General J. P. Wolfe, Canadian Defence Forces
In general, I consider "Rolling Thunder and the Law of War" an admirable account of how not to fight a war.* On the technical-legal side, W. Hays Parks makes two comments with which I have some difficulty. First, he suggests that the standard for "excessive collateral civilian casualties" is a level of such casualties which shocks the conscience of the world. (p. 17) I concede that it is difficult to assess what the proper standard is, but I suggest that Parks has set the standard much too high.
*W. Hays Parks, "Rolling Thunder and the Law of War," Air University Review, January-February 1982, pp. 2-23.
I also disagree with his statement that "the question of whether a nation has utilized illegal means and methods of warfare generally is measured against an overall campaign of war." (p. 17) This statement implies both that the legality of means and methods can only be determined after the event and that the end justifies the means.
Still, I did find the article very instructive. Parks does, however, observe that "in 1966, of 106,000 sorties over North Vietnam, only 1000 were against the 22 fixed targets authorized for attack by the White House; the balance were devoted to the armed reconnaissance interdiction campaign. . . ." (p. 9) It would be very interesting to know what types of constraints were imposed on these reconnaissance sorties.
Major General Wolfe is the Judge Advocate General, National Defence Headquarters, Ottawa, Ontario.
W. Hays Parks
Major General Wolfe has expressed disagreement with the level I established for determining excessive collateral civilian casualties. I confess that I did not originate the level suggested"shocks the conscience of the world"; it was suggested to me some years ago by a very respected colleague. In my subsequent research of the history of air operations, I have concluded the level established to be correct.
Prior to submitting my article to the Review, I put it before a "murder board" of combat-experienced aviators, targeteers, military historians, and experts in the law of war. I invited each to be merciless in his criticism. While I assume full responsibility for the final product, I received a number of excellent comments which I believe improved the final product. No one disagreed with the standard I established.
I believe the level I have suggested is borne out by history, much of which I discuss in another article, "Conventional Aerial Bombing and the Law of War," in the May 1982 Naval Institute Proceedings. Nevertheless, I realize that reasonable men may differ in their interpretation of the law of war. I would be most happy to entertain any suggestions General Wolfe would care to offer as to what the level of the standard should be--with appropriate historical examples, of course.
This is not an idle intellectual exercise. From 1974 to 1977, the United States and Canada (along with approximately eighty other nations) participated in negotiations in Geneva to update the law of war. General Wolfe was a member of the Canadian delegation. Those negotiations produced a draft treaty that utilizes the standard of "excessive collateral civilian casualties" without defining the level at which the standard should be applied.
Both Canada and the United States are considering ratification of the draft treaty. I believe both nations would do a disservice to the men they send forth on bombing missions if they elect to accept the very vague terms of the draft treaty without defining the level at which "excessive civilian casualties" should be applied. Given the Communist bloc propensity for denial of prisoner-of-war status to "war criminals," as evidenced by the conduct of North Vietnam, this matter cannot be taken lightly. So I welcome General Wolfes thoughts.
General Wolfes second point of disagreement is well taken and is an error in my writing. We are in agreement on the law. The illegality of means may be determined at any time, and the United States was the first nation to commence a review process to ensure that all new weapons conform to our law of war obligations. What I meant to suggest was that determining whether there are "excessive collateral civilian casualties" generally has been measured against an overall campaign or war rather than individual targets. I regret the imprecision of my writing and appreciate General Wolfes careful reading.
With regard to his question of the constraints on armed reconnaissance missions, they were myriad. Attacks on targets in populated areas were prohibited, and the North Vietnamese freely and openly parked their convoys and supply trains in populated areas during daylight hours to take advantage of U.S. restraint. There also were geographic restrictions from time to time, either through overall limitations during particular phases of the campaign (such as few to no sorties north of 20 degrees north latitude during Phases II and III, or specific limitations on armed reconnaissance missions in Route Packages V and VI, the most populous areas of North Vietnam. While no one can say for sure, I have my personal doubts that Secretary McNamaras emphasis on armed reconnaissance caused fewer civilian casualties than would have resulted from implementation of the bombing program recommended by the Joint Chiefs of Staff. I have no doubt that the White House management of Rolling Thunder did cause greater U.S. casualties, not only among those who flew over North Vietnam but also among those who served in South Vietnam.
Editor' note: Subsequent to this exchange of letters, Major General Wolfe and W. Hays Parks agreed to a definition indicating that proportionality was gauged by "casualties so excessive . . . as to be tantamount to the intentional attack of the civilian population, or to the total disregard for the civilian population."
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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