Theory of the drone 3: Killing grounds

Posted on July 29, 2013 by Derek Gregory

This is the third in a series of posts on Grégoire Chamayou‘s Théorie du drone, in which I provide a detailed summary of his argument, links to some of his key sources, and reflections drawn from my soon-to-be-completed The everywhere war (and I promise to return to it as soon as I’ve finished this marathon).

5: Pattern of life analysis

Chamayou begins with the so-called ‘Terror Tuesdays‘ when President Obama regularly approves the ‘kill list’ (or disposition matrix) that authorises ‘personality strikes’ against named individuals: ‘the drones take care of the rest’.

But Chamayou immediately acknowledges that most strikes are ‘signature strikes‘ against individuals whose names are unknown but for whom a ‘pattern of life analysis‘ has supposedly detected persistent anomalies in normal rhythms of activity, which are read as signs (‘signatures’) of imminent threat. I’ve described this as a militarized rhthmanalysis, even a weaponized time-geography, in ‘From a view to a kill’ (DOWNLOADS tab), and Chamayou also notes the conjunction of human geography and social analysis to produce a forensic mapping whose politico-epistemological status is far from secure.

The principal limitation – and the grave danger – lies in mistaking form for substance. Image-streams are too imprecise and monotonic to allow for fine-grained interpretation, Chamayou argues, and supplementing them by equally distant measures, like telephone contacts, often compounds the problem. Hence Gareth Porter‘s objection, which both Chamayou and I fasten upon:

‘The phone numbers and call histories from those phones go into the database which is used to “map the networks.” But the link analysis methodology employed by intelligence analysis is incapable of qualitative distinctions among relationships depicted on their maps of links among “nodes.” It operates exclusively on quantitative data – in this case, the number of phone calls to or visits made to an existing JPEL target or to other numbers in touch with that target. The inevitable result is that more numbers of phones held by civilian noncombatants show up on the charts of insurgent networks. If the phone records show multiple links to numbers already on the “kill/capture” list, the individual is likely to be added to the list.’

This is exactly what happened in the Takhar attack in Afghanistan on 2 September 2010 that I’ve discussed elsewhere, relying on the fine investigative work of Kate Clark, and Chamayou draws attention to it too. The general assumption, as Kate was told by one officer, seems to be that ‘”If we decide he’s a bad person, the people with him are also bad.”

These necro-methodologies raise two questions that Chamayou doesn’t address here.

The first, as Porter notes, is that ‘guilt by association’ is ‘clearly at odds with the criteria used in [international] humanitarian law to distinguish between combatants and civilians.’ You can find a much more detailed assessment of the legality of signature strikes (and what he calls their ‘evidential adequacy’) in Kevin Jon Heller‘s fine essay, ”One hell of a killing machine”: Signature strikes and international law’ [Journal of international criminal justice 11 (2013) 89-119; I discussed a pre-publication version here].

The geo-legal ramifications of these attacks reach far beyond the killing grounds. Earlier this month in the High Court in London one man who lost five relatives in the air strike in Takhar (as you can see on the slide above, on an election convoy) challenged the legality of the alleged involvement of Britain’s Serious and Organised Crimes Agency (SOCA) in drawing up the kill-list, the Joint Prioritized Effects List, used by the military to authorise the attack: more here, here and here. (It was the presence of names on the list that triggered the faulty network analysis).

The second is the imaginary conjured up by the very idea of a ‘pattern of life’ analysis. I’ve written before about the way in which the screen on which the full-motion video feeds from the Predators and Reapers are displayed interpellates those who watch what is happening on the ground from thousands of miles away, and I’ve emphasised that this isn’t a purely optical affair: that it is an embodied, techno-culturally mediated process that involves a series of structured dispositions to view the other as Other (and often dangerous Other). But these dispositions also reside in what we might think of as a grammar of execution. To see what I mean, here is Micah Zenko:

‘Recently, I spoke to a military official with extensive and wide-ranging experience in the special operations world, and who has had direct exposure to the targeted killing program. To emphasize how easy targeted killings by special operations forces or drones has become, this official flicked his hand back over and over, stating: “It really is like swatting flies. We can do it forever easily and you feel nothing. But how often do you really think about killing a fly?”’

Hence, of course, ‘Bugsplat’ [according to Rolling Stone, ‘the military slang for a man killed by a drone strike is “bug splat,” since viewing the body through a grainy-green video image gives the sense of an insect being crushed’], and a host of other predatory terms (see also here) that distinguish between this mere (bare) life and what Judith Butler calls ‘a life that qualifies for recognition’.

But the same result is achieved through the nominally neutral, technical-scientific vocabulary deployed in these strikes. Joseph Pugliese captures the grammar of execution with acute insight in another fine essay, ‘Prosthetics of law and the anomic violence of drones’, [Griffith Law Review 20 (4) (2011) 931-961; you can also find it in his excellent new book State violence and the execution of law]:

‘The term ‘heat signature’ works to reduce the targeted human body to an anonymous heat-emitting entity that merely radiates signs of life. This clinical process of reducing human subjects to purely biological categories of radiant life is further elaborated by the US military’s use of the term ‘pattern of life’…

‘The military term ‘pattern of life’ is inscribed with two intertwined systems of scientific conceptuality: algorithmic and biological. The human subject detected by drone’s surveillance cameras is, in the first scientific schema, transmuted algorithmically into a patterned sequence of numerals: the digital code of ones and zeros. Converted into digital data coded as a ‘pattern of life’, the targeted human subject is reduced to an anonymous simulacrum that flickers across the screen and that can effectively be liquidated into a ‘pattern of death’ with the swivel of a joystick. Viewed through the scientific gaze of clinical biology, ‘pattern of life’ connects the drone’s scanning technologies to the discourse of an instrumentalist science, its constitutive gaze of objectifying detachment and its production of exterminatory violence. Patterns of life are what are discovered and analysed in the Petri dish of the laboratory…

‘Analogically, the human subjects targeted as suspect yet anonymous ‘patterns of life’ by the drones become equivalent to forms of pathogenic life. The operators of the drones’ exterminatory attacks must, in effect, be seen to conduct a type of scientific ethnic cleansing of pathogenic ‘life forms’. In the words of one US military officer: “Our major role is to sanitize the battlefield.”’

Later modern war more generally works through relays of biological-medical metaphors – equally obviously in counterinsurgency, as I’ve described in “Seeing Red” and other essays (DOWNLOADS tab), where the collective enemy becomes a ‘cancer’ that can only be removed by a therapeutic ‘killing to make live’ (including ‘surgical strikes’) – and Colleen Bell has provided an illuminating series of reflections in ‘Hybrid warfare and its metaphors’ [in Humanity 3 (2) (2012) 225-247] and ‘War and the allegory of medical intervention’ [International Political Sociology 6 (3) (2012) 325-8].

This immunitary logic is clearly bio-political, and its speech-acts just as plainly performative, and Pugliese draws the vital conclusion:

‘As mere patterns of pathogenic life, these targeted human subjects effectively are reduced to what Giorgio Agamben would term ‘a kind of absolute biopolitical substance’ that can killed with no concern about the possibility of juridical accountability: they are ‘bare life’ that can be killed with absolute impunity. Anonymous ‘patterns of life’ signify in contradistinction to legally named persons; they exemplify the ‘ontological hygiene’ legislated by US government policy in order to secure the reproduction of the ‘principle of scarcity with respect to agency and personhood’.

‘Situated in this Agambenian context of the extermination of human life with absolute impunity, the Predator drones must be seen as instantiating mobile ‘zones of exception’…’

Which artfully brings me to Chamayou’s next chapter…

6: Kill-box

Chamayou notes that the ‘war on terror’ loosed the dogs of war from their traditional boundaries in time and in space: at once ‘permanent war’ and, as he notes, ‘everywhere war’.

But for Chamayou it is more accurate to speak of the world turned into a ‘hunting ground’ rather than a battlefield, and this matters because two different geographies (his term) are involved. War is defined by combat, he explains, hunting by pursuit. Combat happens where opposing forces engage, but hunting tracks the prey, so that the place of military violence is no longer defined by a delimited space (‘the battlefield’) but by the presence of the enemy-prey who carries with him, as it were, his own mobile halo of a zone of personal hostilities.

To escape, the quarry must make itself undetectable or inaccessible – and the ability to do so depends not only on physical geography (terrain) but also on political and legal geography. For this reason, Chamayou argues, the US has rendered contingent the sovereignty of Pakistan because it (for the most part unwillingly) provides sanctuary to those fleeing across the border from Afghanistan. In such circumstances, what becomes crucial for the hunter is not the military occupation of territory but the ability to control trans-border spaces from a distance through the instantiation of what Eyal Weizman called the politics of verticality that has since captured the attention of Stuart Elden [“Secure the volume: vertical geopolitics and the depth of power”, Political Geography 34 (2013) 35-51], Steve Graham [“Vertical geopolitics: Baghdad and after”, Antipode 36 (1) (2004) 12-23] and others. For this to work, as Weizman shows in the case of occupied Palestine, air power is indispensable.

Chamayou suggests that the US has refined this capacity – in effect, finely calibrated the time and space of the hunt – through the concept of the kill-box. I’m not so sure about this; the lineage of the ‘kill-box’ goes back to the USAF’s ‘target boxes’ [target boxes around An Loc in Vietnam in 1972 are shown below] – and two or three specified ‘boxes’ or ‘Restricted Operating Zones‘ were used to define the Predato’s’ ‘hunting grounds’ over North and South Waziristan that were tacitly endorsed by the Pakistan state.

The concept of the ‘kill box’ was formalised as a joint operations doctrine in the 1990s as part of the established targeting cycle: what Henry Nash famously described in another context as ‘the bureaucratization of homicide’. Nash worked for the USAF Air Targets Division in the 1950s and 60s, identifying targets in the USSR for nuclear attack by US Strategic Air Command, but I doubt that Chamayou would dissent from using either the verb or the noun to describe the contemporary, non-nuclear kill-chain. (In a later post I’ll explain how this technical division of labour feeds in to what Chamayou castigates as a ‘setting aside’, a dispersal of responsibility, which functions to separate an action from its consequences: this is aggravated by the remote-split operations in which drones are embedded, and is central to Chamayou’s critique). Here is how the relevant military manuals incorporated the development of the kill box into the targeting cycle in 2009 (ATO = Air Tasking Order):

You can find more on kill-boxes and their operationalisation here.

Chamayou doesn’t track the development of the concept, but since then the ‘kill-box’ has been supplanted or at least supplemented by the ‘Joint Fires Area’ as a way of continuing to co-ordinate the deployment of lethal force and allowing targets to be engaged without additional communication. Within the grid of the JFA (shown below, taken from an essay by Major James Mullin on ‘redefining the kill box’) permission to fire in specified cells is established in advance; areas are defined, targeting intervals stipulated, and the time-space cells can be opened and closed as operations proceed.

It is this capacity that Chamayou seizes upon: within the kill box targets can be engaged at will, so that the kill box, he writes, ‘is an autonomous zone of temporary killing’ (cf. the ‘free fire/specified fires zone’ in Vietnam: see my discussion of Fred Kaplan‘s recent essay, ‘The world as a free-fire zone‘).

Chamayou implies that the schema has been further refined in contemporary counterinsurgency and counter-terrorism operations: the fact that the kill-box and its successor allow for dynamic targeting across a series of scales is crucial, he says, because its improvisational, temporary nature permits targeting to be extended beyond a declared zone of conflict. The scale of the JFA telescopes down from the cell shown on the right of the figure below through the quadrant in the centre to the micro-scale ‘keypad’ (sic) on the right.

This is more than a grid, though; the JFA is, in effect, a performative space that authorises, schedules and triggers lethal action. Chamayou: ‘Temporary micro-cubes of lethal exception can be opened anywhere in the world, according to the contingencies of the moment, once an individual who qualifies as a legitimate target has been located.’ Thus, even as the target becomes ever more individuated – so precisely specified that air strikes no longer take the form of the area bombing of cities in World War II or the carpet bombing of the rainforest of Vietnam – the hunting ground becomes, by virtue of the nature of the pursuit and the remote technology that activates the strike, global.

The system I’ve described here is one adopted by the US military, and how far its procedures are used by other agencies outside established conflict zones is unknown to me and doubtless to Chamayou too. Are these micro-cells used to specify individual compounds or rooms, as Chamayou suggests in a thought-experiment? For him, however, it’s the imperative logic that matters, and here Kaplan’s tag-line (above) can provide the key explanatory exhibit: ‘to kill a particular person anywhere on the planet.’ The doubled process of time-space calibration and individuation is what allows late modern war to become the everywhere (but, contra Kaplan, not the anywhere, because specified) war.

On the one side, then, a principle of what Chamayou calls precision or specification: ‘The zone of armed conflict, fragmented into micro-scale kill boxes, reduces itself in the ideal-typical case to the single body of the enemy-prey: the body as the field of battle.’ Yet on the other side, a principle of globalisation or homogenisation: ‘Because we can target our quarry with precision, the military and the CIA say in effect, we can strike them wherever we see fit, even outside a war zone.’

This paradoxical articulation has sparked fierce debates among legal scholars – Chamayou cites Kenneth Anderson, Michael Lewis, and Mary Ellen O’Connell – over whether the ‘zone of armed conflict’ should be geo-centred (as in the conventional battlefield) or target-centred (‘attached to the body of the enemy-prey’). Jurists are thus in the front line of the battle over the extension of the hunting ground, he writes, and ‘applied ontology’ is the ground on which they fight. I’ll have more to say about this on my own account in a later post.

The whites of our eyes

Posted on October 10, 2012 by Derek Gregory

I’ve been re-reading Keith Feldman‘s essay on ‘Empire’s verticality’ (Comparative American Studies 9 [4] 2011 325-41), which raises a series of incisive questions about what he calls ‘racialization from above’ in the Afghanistan-Pakistan borderlands. Keith was working on this while I was working on ‘From a view to a kill’ (see DOWNLOADS tab), and we exchanged ideas en route, but Keith’s essay provides a different and invaluable perspective. He begins with the famous Situation Room photograph by Pete Scott in which Obama and his senior advisors gaze at a live-feed from Abbotabad on 1 May 2011: since ‘the target of imperial retribution remains just outside the visual field’ – we see no images of the raid – Keith notes that ‘we are drawn to witness the witnessing of Bin Laden’s assassination.’ He focuses on the visual identification of a Muslim Other that is supposed to be precise and yet always remains blurred.

The scopic regime of late modern war is placed under even greater pressure when ‘signature strikes’ are conducted – when the target is not a named individual but a ‘person of interest’ whose ‘pattern of life’ has roused the suspicions of the distant watchers – and this has even more serious implications for civilian casualties.

There’s a short post from Kevin Jon Heller at Opinio Juris that addresses the issue by juxtaposing two quotations. The first is from a report in the New York Times on 29 May 2012 by Jo Becker and Scott Shane on ‘Obama’s Secret “Kill List”…’ and the CIA-controlled Predator strikes in Pakistan:

“… Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent. Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.”

The second comes from Richard Falk‘s ‘Law and responsibility in warfare: the Vietnam experience’, where he quotes the man who ordered the My Lai massacre, Lt William Caley:

“If those people weren’t all VC [Viet Cong] then prove it to me. Show me that someone helped us and fought the VC. Show me that someone wanted us: one example only! I didn’t see any… Our task force commander’s staff said it’s a VC area and everyone there was a VC or a VC sympathizer. And that’s because he just isn’t young enough or old enough to do anything but sympathize.”

Heller doesn’t use the phrase, for obvious reasons, but this is another Catch-22…

But there’s another Vietnam parallel that I think is even more striking. In Lines of descent (DOWNLOADS tab) I described the creation of ‘free bomb zones’ or ‘free fire zones’ in South Vietnam.

In August 1965 [General] Westmoreland was authorized to order strikes in five free bomb zones that were ‘configured to exclude populated areas except those in accepted VC [Viet Cong] bases’. Within these zones the designation of target boxes dispensed with precise co-ordinates and detailed intelligence altogether, so that they became black boxes in every sense of the phrase, and approval was given in advance ‘for execution when appropriate’. Westmoreland was perfectly clear that ‘anybody who remained had to be considered an enemy combatant’ and so strikes could proceed ‘without fear of civilian casualties’.

With this in mind, here is a section that never made it in to the final version of ‘Lines of descent’, concerning the principle of distinction (the legal requirement to discriminate between combatants and non-combatants). My Lai makes an appearance here too, as a crucial moment after which the Pentagon agreed to provide military operations with a legal armature. And yet, as I tried to show in both my essays, incorporating lawyers into the kill-chain provides less protection for civilians than may at first appear: the balance between concrete military advantage and ‘collateral damage’ is still calibrated on the military’s own scales. I’m not saying that nothing has changed since Vietnam – the lines of descent are complex and tangled – but, as the final paragraph below shows, there are none the less disturbing parallels. ‘Blind bombing’ may well belong to the past, superseded by near real-time, high-resolution full-motion video feeds from Predators and Reapers, and yet – to return to Feldman – in scanning these images we continue to privilege the whites of our own eyes.

Distinction and the air war in Vietnam

The difficulty of distinguishing between ground troops, enemy forces and non-combatants was exacerbated by the use of air power in a non-linear battlespace, the ‘war without fronts’, because ‘the absence of clearly discernible bomb lines created a fluid environment in which it was not always possible to distinguish friendly from enemy forces.’ From the air, Schlight continued, ‘all soldiers looked alike and guerrillas were indistinguishable from non-combatants.’ ^{^[1]} He insists that there was an acute sensitivity to ‘accidental loss of life’. In Westmoreland’s (public) view, ‘one mishap, one innocent civilian killed, one civilian wounded or one dwelling needlessly destroyed, is one too many’, and this supposedly translated into ‘stringent’ rules of engagement. In particular, strikes on hamlets and villages required political clearance from Vietnamese authorities at least at a provincial level, they had to be directed by a Forward Air Controller or radar to minimize civilian casualties, and warnings had to be issued if the attacks were not in conjunction with ground forces; if this were impossible, the ground commander could designate the target, and in ‘specified strike zones’ (whose designation was held to ‘constitute prior political clearance’) pilots ‘could use their own judgement in hitting targets.’ [2] In this, more or less official view, air strikes still killed civilians but every effort was made to minimize the loss of innocent lives.

Others see it differently. For some, it was a technical matter. When van Creveld writes of ‘the American airmen’s near-complete inability to distinguish between combatants and noncombatants’, he is simply echoing McNamara’s own post-war admission that it ‘proved difficult to distinguish combatants from noncombatants’ and that Westmoreland’s heavy reliance on bombing ‘produced more and more civilian casualties’: for both men this was an inherent limitation of air power in counterinsurgency. [3] It was inevitably compounded by the electronic battlefield, as Senator McGovern noted: ‘If ground troops sometimes will not, and usually cannot, distinguish between enemy and innocent in a guerrilla war, we know that aerial bombardment never can. The sensor which detects body heat, the aircraft thousands of feet in the air, the computer complex many miles distant, are completely neutral and indiscriminate.’ [4] For others, as McGovern’s first clause implies, the lack of discrimination was too often a considered decision. The rules of engagement were elastic (in practice Vietnamese political clearance was readily obtained) and riddled with exceptions (there were many cases where clearance could be dispensed with altogether, including military necessity and specified strike zones). Clodfelter points out that this was in marked contrast to the bombing of North Vietnam where ‘detailed restrictions [were] placed on bombing targets’ because there the American political calculus included civilian casualties. This was not only true of the Johnson administration’s micro-management of Rolling Thunder; when President Nixon resumed the bombing of North Vietnam in 1972 he loosened the previous restrictions and returned operational control of these Linebacker campaigns to the military, but even his terror bombing of targets around the capital was circumscribed. ‘I want the people of Hanoi to hear the bombs,’ he instructed Strategic Air Command, ‘but minimize damage to the civilian population.’ In South Vietnam, however, where there were few restrictions or political restraints, Clodfelter concludes that ‘indiscriminate bombing contributed significantly to an estimated 1.16 million South Vietnamese civilian casualties during the war.’ [5] The vital point is that many, perhaps even most of these injuries and deaths were not accidental, often not even incidental – the ‘collateral damage’ that international law accepts may result from attacking military targets – but the victims of deliberate and indiscriminate attack.

Discrimination has two meanings, one strategic and the other legal. For Kalyvas, violence against civilians is a central feature of insurgency and counterinsurgency, where historically both sides often targeted civilians to force them to comply, but it can be discriminate – directed against specific targets – or indiscriminate, based on collective attributes like place of residence. [6] Kocher, Pepinsky and Kalyvas argue that bombing in South Vietnam was indiscriminate because it was typically directed at areas, boxes or zones: ‘it could not target individual VC supporters while sparing government supporters or the uncommitted, even when intelligence was good’. They concede that this was, in part, a technical matter – target identification was often hit-or-miss and until Paveway laser-guided bombs were used in the Linebacker campaigns the delivery of ordnance was ‘inherently inaccurate’ – but in many cases they suggest that exposing civilian populations to aerial violence was a tactical choice. One leaflet drop warned people that ‘when the plane returns to sow death, you will have no more time to choose’, and many commanders welcomed the bombing of civilians: when he was asked if he was worried by the civilian casualties caused by bombing and shelling, Westmoreland himself airily replied, ‘Yes, but it does deprives the enemy of population, doesn’t it?’ [7] This is perhaps unsurprising; bombing had been an established method of colonial ‘air control’ much earlier in the century. It turned out to be as counterproductive in Vietnam as it had been in Mesopotamia and the North West Frontier. Targeting collectives means that individuals ‘cannot avoid being victimized simply by refusing to participate in the insurgency’, and bombing the South clearly increased Viet Cong control in the affected areas. [8]

Discrimination also carries a legal charge, but it has a complicated history. After the Second World War there was an attempt to incorporate ‘protection of civilian persons in times of war’ into the Geneva Conventions, but these largely failed to address the vulnerability of civilian populations to military violence in general and to air strikes in particular. [9] In 1956 the International Committee of the Red Cross produced a series of Draft Rules that prohibited direct attacks on the civilian population and, in particular, attacks ‘without distinction’ on areas where military targets were close to the civilian population. This was an express attempt to outlaw area bombing, and it met with forceful opposition. In 1965 the ICRC reaffirmed the prohibition on direct attacks against the civilian population, and insisted on discrimination between those taking part in hostilities and civilians who should ‘be spared as much as possible’, and in December 1968 these basic principles were endorsed in UN Resolution 2444 on Respect for Human Rights in Armed Conflicts. In 1972 the Pentagon confirmed that it regarded these principles as declaratory of customary international law but added two riders. The United States insisted that it was permissible to attack military targets even if there were a risk of collateral damage, and in such cases the responsibility for distinguishing military objectives from civilian devolved upon ‘the party controlling the population.’ [10] These were expedient qualifications in the (arc) light of South Vietnam, where insurgents swam in the sea of the population. In fact MACV’s legal advisor blamed the suffering of Vietnamese civilians on the law itself, which he claimed was ‘inadequate to protect victims in wars of insurgency and counterinsurgency’ because it drew on ‘examples from World War II which simply did not fit in Vietnam’ where ‘the hazy line between civilian and combatant became even vaguer’. [11] Another judge advocate said much the same: In Vietnam ‘the battlefield was anywhere and everywhere, with no identifiable front lines and no safe area. This meant that innocent civilians could not easily avoid the war or its suffering.’ He was silent about the responsibility of those conducting the war to avoid innocent civilians – justice, like much of the bombing, was blind – and limited his discussion to compensation payments where ‘loss or damage was caused by reckless or wanton conduct by U.S. forces.’ [12] Not surprisingly, what is now called operational law remained strikingly undeveloped. Judge advocates at MACV were not consulted about air operations; one judge advocate attended meetings at Seventh Air Force headquarters, but these reviewed the previous week’s operations and ‘no one consulted him about future operations, the lawfulness of striking selected targets, or compliance with the rules of engagement’; tactical air control centers had no place for judge advocates who ‘had almost no contact with the people who planned or executed air operations’, and provided neither briefings nor advice on the laws of war or the rules of engagement. The single exception was a judge advocate based at the US Embassy in Thailand who scrutinized some target lists in North Vietnam. [13]

In fact, it was only after the publicity surrounding the My Lai massacre, in November 1974, that the Pentagon directed the armed services to implement a program to prevent violations of the Law of War; only then did the US military begin to incorporate legal oversight into its operations. [14] Most legal scrutiny of the air war in Vietnam was after the event – hence the essays by Hays Parks on Rolling Thunder and Linebacker that conclude that both were fully consistent with (in the case of Rolling Thunder even unduly sensitive to) international law – and, no less significantly, did not address the conduct of the air war in the South. [15] The crucial issue there is the distinction between civilians and combatants, and here Richard Falk, while granting that the law of armed conflict was inadequate and needed revision, none the less insisted that, in its promulgation of ‘free bomb zones’, in B-52 ‘pattern raids’, and much else, the US violated customary international law routinely and serially: ‘the overall American conduct of the war involve[d] a refusal to differentiate between combatants and noncombatants and between military and nonmilitary targets.’ [16]

[1] John Schlight, The war in South Vietnam: The years of the offensive, 1965-1968 (Office of Air Force History, 1969) War, p. 258. A bombline is ‘an imaginary line arranged, if possible, to follow well-defined geographical features, prescribed by the troop commander and coordinated with the Air Force commander, forward of which air forces are free to attack targets without danger or reference to the ground forces; behind this line all attacks must be coordinated with the appropriate troop commander’: John Pearse, ‘Air power in the kill-box: Fire support co-ordination and airspace deconfliction in the future non-linear battlespace’, Thesis, School of Advanced Air and Space Studies, Maxwell Air Force Base, 2003: p. 22.

[2] Schlight, War, pp. 258-9.

[3] Martin van Creveld, The age of airpower (New York: Public Affairs, 2011) p. 199; Robert McNamara, In retrospect: the tragedy and lessons of Vietnam (New York: Vintage, 1995) p. 243.

[4] McGovern’s speech was delivered on 14 December 1971 and is excerpted in ‘Automated warfare’ (January 1972) p.2, Folder 01, Box 02, Douglas Pike Collection: Unit 03 – Technology, The Vietnam Center and Archive, Texas Tech University.

[5] Mark Clodfelter, ‘A strategy based on faith: the enduring appeal of progressive American airpower’, Joint Forces Quarterly 49 (2008) 24-31, 150-160: 31. Clodfelter’s figure includes those wounded and killed 1965-1974, and is derived from estimates presented in Guenter Lewy, America in Vietnam (New York: Oxford University Press, 1978) p. 446. These estimates are probably conservative, and Lewy is much more reluctant to attribute these totals to ‘allied bombing’, but he does accept that the ‘lavish use of [US] firepower’ caused ‘a large number of civilian casualties’ in the South (p. 230). Despite the restrictions US bombing also caused casualties in the North: Lewy estimates around 65,000 civilians were killed, and other estimates run into the hundreds of thousands.

[6] Stathis Kalyvas, The logic of violence in civil wars (Cambridge: Cambridge University Press, 2006) p. 142 and passim.

[7] Matthew Kocher, Thomas Pepinsky and Stathis Kalyvas, ‘Aerial bombing and counterinsurgency in the Vietnam War’, American Journal of Political Science 55 (2011) 201-18: 205; Westmoreland’s remark was made in summer 1966 and is cited in David Halberstam, The best and the brightest (New York: Ballantine, 1969) p. 550, who adds: ‘The American command was aware of it was doing, and sanctioned it… MACV knew about it, it didn’t want to know too much, it would look the other way if possible, but it knew it was all going on out there.’

[8] Kocher, Pepinsky and Kalyvas, ‘Aerial bombing’, 203, 215. A 1968 RAND survey found that bombing increased support for the Viet Cong, but it was never released: Robert Smith, ‘Report compiled in 68 says excessive Allied bombing in South Vietnam stirred hostility to regime’, New York Times, 22 January 1970.

[9] ‘The most conspicuous sufferers from bombing, Germany and Japan, were unable to put their case, while the bombing specialists, the USA and the UK, had every reason for preventing the case being out’: Geoffrey Best, War and law since 1945 (Oxford: Clarendon Press, 1994) p. 115.

[10] Hays Parks, ‘Air war’, 65-71.

[11] MG George Prugh, Law at war, Vietnam 1964-1973 (Washington DC: Department of the Army, 1975) p. 89. He also conceded that there was no effective mechanism to enforce compliance.

[12] Frederic Borch, Judge Advocates in Vietnam: Army Lawyers in Southeast Asia, 1959-1975 (Combat Studies Institute, 2003) p. 92.

[13] LTC Terrie Gent, ‘The role of Judge Advocates in a Joint Air Operations Center’, Air Power Journal, Spring 1999

[14] My Lai was the scene of a massacre of hundreds of civilians by US troops on 16 March 1968; it was not widely reported until November 1969, and the subsequent courts-martial were not completed until March 1971. The problem was much wider and more pervasive than this focus suggests, however, and Greiner, War without fronts, p. 18, writes of an ‘endemic contempt’ for international law on the part of the US. Dunlap identifies a ‘revolution in military legal affairs’, after Vietnam, beginning in 1989 with the involvement of judge advocates in planning US military operations in Panama and becoming much more visible during the first Gulf War: Charles Dunlap. ‘The revolution in military legal affairs: Air Force legal professionals in 21^st century conflicts’, Air Force Law Review 51 (2001) 293-309. Consistent with his later preoccupation with ‘lawfare’, he places particular emphasis not on advances in military technology, however, but on changes in communications technology that worked to enable media organizations to bring ‘the raw images of war’ to publics around the world ‘before leaders can censor or shape it’ (p. 294).

[15] W. Hays Parks, ‘Rolling Thunder and the law of war’, Air University Review, January-February 1982 athttp://www.airpower.maxwell.af.mil/airchronicles/aureview/1982/jan-feb/parks.html; ‘Linebacker and the law of war’, Air University Review January-February 1983 at http://www.airpower.maxwell.af.mil/airchronicles/aureview/1983/jan-feb/parks.html.

[16] Richard Falk, ‘Son My: war crimes and individual responsibility’, University of Toledo Law Review 21 (1971) 21-41:23.