Global Policy Forum

By Dinah Po Kempner

Americans are innovators, and we have invented a new style of war. Now we want new rules as well. This is critical as war with Iraq looms and major world powers convene in closed session at Harvard University to discuss reinterpreting the Geneva Conventions and the laws of war that provide some minimal protection to noncombatants.

Recent American wars have projected overwhelming and advanced technological resources against weak enemies with horrific records of human rights abuse. The central questions are not whether we shall win but whether it will take two weeks or eight months and how many body bags the public will endure before support turns against intervention.

The laws of war, however, evolved in a different context, when more-balanced contests of one state against another in which outcome was uncertain and reciprocity - the expectation that your foe will apply the same standards to you as you to him - held sway. It is no surprise, then, that the planners of US-style war find the standard interpretations of international law a hindrance and an irrelevancy and wish to make exceptions for US purposes. The problem is, everyone likes to claim exceptions, and the holes Americans might punch in the laws of war could wind up demolishing the entire edifice, with catastrophic results.

Some American cultural values that shape the new war paradigm are not universally appreciated, such as efficiency and a fascination with gadgetry. Others, such as a native commitment to human rights and a genuine aversion to causing greater harm to another people than is necessary, are admirable.

These values influence the preference for short wars, fought with overwhelming firepower, that minimize the amount of time that US boots will need to be on the ground. The thinking goes that the longer the war lasts, the more opportunity the enemy will have to adapt, and the more casualties - including civilian casualties - will pile up. Better to swiftly and decisively crush the enemy's will to fight.

This explains the US view that it is acceptable to attack civilian morale in the form of nonmilitary targets whose destruction can undermine public support for war: turning the lights off in Belgrade or Baghdad, targeting the enemy's industrialist supporters, destroying civilian propaganda outlets or symbols of the regime such as monuments or civilian administration. All are off-limits under international law, which limits attacks to targets that make a direct contribution to military action.

The way Americans approach the issue of civilian casualties is different as well. The law forbids attacks where the cost to civilian lives and property will be excessive in relation to the direct and concrete military advantage of achieving a particular target. Americans, and to some degree the British, wish to equate the idea of an ''attack'' with an entire campaign, an overall military objective, or even a political objective such as ''regime change.'' But estimating the acceptable level of civilian death in relation to ultimate victory would swallow up the notion of proportionality entirely. Such logic would justify an enemy carpet-bombing Washington to produce shock and swift capitulation.

Finally, scrupulous adherence to the Geneva Conventions in the treatment of captured enemy combatants seems less compelling when fighting unscrupulous forces. Americans may feel skeptical about giving Taliban prisoners POW status when we doubt they would show us the same consideration.

Why, in the end, do these rules, framed in other times for other battles, still matter? The fact that Switzerland, upon the objection of some states, refused to admit the media or civil society groups to the meeting at Harvard should raise alarm bells.

The bedrock assumptions of the new mode of war are unproven. It has not been shown that short, overwhelming military interventions produce fewer casualties than other sorts of interventions. The military usually does not analyze the civilian after-effects of its choice of targets and methods, leaving it to reporters and humanitarians to measure the actual suffering brought by a given strategy.

But most important is that global leaders lead by example, and the example of exceptionalism destroys all constraints. Civilians the world over would suffer the consequences of military forces that were less adept, less scrupulous, and less responsive to democratic outrage. Those militaries may attack civilian objects, ignore massive civilian loss, and mistreat prisoners, all in the name of expediting their campaigns, no doubt for some cause they deem worthy.

It is ironic that at the moment the United States, by virtue of its military prowess, can most afford to set the highest standard in armed conflict, it is backing away from time-honored laws that impose the constraints of humanity upon slaughter.

Dinah Po Kempner is general counsel at Human Rights Watch.

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