H. Shue on advanced militaries targeting civilian infrastructure

The Oxford philosopher and ethicist Henry Shue has just published an extremely important piece of analysis (PDF here, pp. 2-7) that unpacks the timely issue of why it is that first-world militaries that have well-stocked arsenals of Precision-Guided Munitions (PGMs, also known as ‘smart bombs’) are also among those agitating hardest to loosen up the constraints that the laws of war have placed on bombing civilian targets.
This matter has, of course, great relevance both to the practice of the U.S. and the Israeli militaries during their wars of recent years, and to the current Israeli campaigns against what that government calls “lawfare”, that is, the attempt made by many in the international community (but not the U.S. government) to hold Israel to the same standards of international law, including the laws of war, as everyone else.
Shue lays out the basic conundrum he is investigating in these terms:

The militaries with the largest budgets in recent years have greatly increased their stocks of precision-guided munitions (PGMs). Many other things being equal, PGMs are more likely to hit their targets than so-called “dumb” munitions. Accordingly, military powers that use PGMs should find it easier to avoid “collateral” damage—or the destruction of innocents and non-combatants—of the sort usually considered impermissible in “civilized” war. Common sense suggests that as a military power acquires more PGMs it should become more comfortable with rules or norms concerning “collateral damage” developed in connection with “dumb” munitions. Common sense would suggest, in any event, that the acquisition of PGMs would not provide a reason for a military power to push for a looser, more permissive understanding of what counts as a legitimate military objective. So much the worse for common sense, because military theorists especially in the United States have drawn the opposite conclusion, namely, that the more precise the weapon, the looser or more permissive the standard for targeting it should be.
Why, if one has more accurate weapons, would one want greater latitude about what to strike?

He proceeds immediately to presenting the outline of his answer to this question:

The short answer is that PGMs have encouraged the theory that one can have bombing both ways: to put pressure on civilian populations but to kill fewer civilians. The idea of winning wars by putting pressure on civilian populations by indiscriminately bombing them is associated with Giulio Douhet (1869–1930), an Italian general, who advocated “total war.” The availability of PGMs allows a military, at least in theory, to pursue “total war” in the sense of putting pressure on civilian populations without bombing them and their personal property. The precision of these weapons creates the prospect that their use will result in far fewer direct deaths because they can hit the targets most likely to undermine the economy rather than the population itself. What we see is a new technology that one might have expected to make a norm easier to obey—a norm that restricts the range of acceptable targets—providing instead a rationale to expand the range of permissible targets into essential infrastructure. Smart bombs are expected to work better in winning wars while killing fewer people directly.

Actually, that last verb “expected” to work better is quite inaccurate, as he immediately notes. Anyone, whether a U.S. or Israeli targeteer, a blogger, or an armchair analyst who has done any research into the history of strategic bombing and “total war” knows very well that targeting the economy of the enemy in the hope of winning a war speedily is a hopeless venture… as anyone who grew up in the London Blitz or who saw what happened in the Israeli assaults against Lebanon in 2006 or Gaza in 2008 could attest. Smart bombs are not “expected” to work better in winning wars, they are “described by their salesmen and other advocates” as achieving those goals. Big difference.
Well, let’s not spend too much time worrying about that gaping flaw in the argument of advocates of PGMs and strategic bombing. Let’s go to some of the impressive evidence that Shue has amassed, that tracks changes in key documents issued by the U.S. military over recent years that show us how U.S. targeting rules have changed over those years, in the definite direction of being more permissive regarding what can be bombed– at exactly the same time that, as he notes, U.S. acquisitions of PGMs have vastly increased.
One key change Shue identifies is between the 1998 and 2003 version of the U.S. Air Force doctrine document Strategic Attack.
In 1998, he writes, the document

included a key passage that recognized the inability of air power to achieve military results by breaking civilian morale. “Despite attempts to achieve psychological collapse of an adversary through population attack—most notably by the German and British strategic air campaigns of World War II—the ability of airpower to achieve victory through direct psychological impact alone (without resort to WMD) has not been substantiated.” According to this report, prolonged strategic air campaigns against targets chosen to deplete “morale,” on the contrary, may “serve to stiffen national resolve and neutralize the desired psychological impact.”

By 2003, the new version of this same document had completely taken out that caveat.
Along the way, the U.S. Navy (which has its own considerable arsenal of PGMs) had introduced a notable revision of the targeting norms previsouly articulated in the U.S. military’s key doctrinal document defining the laws of war, U.S. Army Field Manual 27-10, The Law of Land Warfare, in effect since 1956.
Shue notes that FM 27-10 stated,

“Military objectives are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization would constitute a definite military advantage to the attacker . . . ”

But in the 1990s, as he writes,

The Naval War College issued The Commander ’s Handbook on the Law of Naval Operations (1995), along with its Annotated Supplement (1999), which affirms a doctrine now familiar in several U.S. military publications. According to this standard, a permissible target includes any target that could “effectively contribute to the enemy’s war-fighting or war-sustaining capability.”

Think about the difference between objects or institutions that make an effective contribution to the enemy’s military action and those that can make an effective contribution to its war-fighting or war-sustaining capability!
This permissiveness regarding targeting evidently spread quickly among all branches of the U.S. military. Shue noted that,

all recent editions of the Army JAG School’s Operational Law Handbook—2006, 2007, and 2008—give the following capaciously liberal account of economic objects that qualify as military objectives: (1) power; (2) industry (war-supporting manufacturing/export/import); (3) transportation. If one can attack export industry, import industry, and other manufacturing that “supports” war, it is difficult to think of much that is left other than the corner convenience store.

He notes the very disturbing way that the 2007 edition of Joint [i.e. inter-service] Publication 3-60, Joint Targeting, disposes of the issue of dual effect (his italics in what follows, as previously):

“Civilian populations and civilian/protected objects, as a rule, may not be intentionally targeted, although there are exceptions to this rule. Civilian objects consist of all civilian property and activities other than those used to support or sustain the adversary’s war-fighting capability. Acts of violence solely intended to spread terror among the civilian population are prohibited.”

The 2007 version of the Air Force’s Strategic Attack document (PDF here) presented an even more explicitly stated version of this same approach:

“Strikes against dual-use assets like electrical power, in addition to having system-wide denial effects [i.e. effects on war-fighting or war-sustaining capability ~HC], may prove effective in coercing regimes in which popular unrest is an issue.”

So yes, terrorizing civilian populations by destroying their economy and their infrastructure was by then described as not only okay but also a desirable outcome.
Shue writes,

At least some in the U.S. military believe that it is within the bounds of “civilized” war to terrorize civilians indirectly, not directly, by using precision-guided weapons. The reason is that PGMs are limited in the amount of killing they do directly – they can get at infrastructure without killing a great many people immediately. [Note that qualifier, “immediately”– then think of how many hundreds of thousands of Iraqis have died since 2003 because of the destruction of their country’s previously impressive modern infrastructure. ~HC] One does not kill civilians with “dumb” munitions, as in World War II and the Korean War; instead, one makes them miserable with PGMs that destroy their infrastructure. Strategic Attack (2007) explains the logic with astounding explicitness: “SA [Strategic attack] of valid military objectives can have the coercive effect of creating unrest among an enemy population and/or weakening the enemy’s infrastructure. These mechanisms are aimed at impacting the enemy’s popular will or perception. In the past, these mechanisms have involved directly targeting civilian populations to increase disaffection and pressure the adversary leadership to accept the demands of the coercer. However, the legality and morality of directly attacking an enemy’s civilian populace is against international law concerning the conduct of war. The US remains committed to these laws and principles that support them. Additionally, historical evidence suggests that strategies directed against an enemy’s population seldom succeed. Now, however, with the advent of precision weaponry, the US is capable of carefully regulating the destructive effects of SA [strategic attack] thereby minimizing collateral damage. This capability enables the US to use these coercive mechanisms in a way that complies with the laws of armed conflict.”

Well those last two sentences, right there, constitute the smoking gun, if you will: the place where Shue discovered the the direct relationship between the U.S. military’s development of PGMs and its desire to loosen previous restraints on the targeting of infrastructure.
Shue writes,

In order to inflict enough punishment on civilians to make a military difference it seems to be thought that the more of the social infrastructure one can destroy, the better. For that purpose one wants as much of the social infrastructure as possible to count as a military objective. So one needs to loosen up the norm currently embodied in international law so that one can target infrastructure well beyond what would now be considered under generally shared interpretations of international law to count as military objectives. At the same time, with the use of PGMs, one can argue that one seeks to spare the lives of civilians. Making the law more permissive and making the munitions more precise go hand-in-hand because the aims now include not only denial but punishment indirectly achieved without morally horrific loss of life.

I would just amend that last phrase to read “without the moral horror of large-scale and directly inflicted loss of life.” because of course– as noted regarding Iraq, above– the destruction of a country’s basic infrastructure can cause very large-scale loss of life and the serious impairment of the lives of those who do not die, over a period of many months and years after that destruction was wrought. Those deaths and impairments should, in my view, occasion just as much “moral horror” as deaths inflicted in the instant of the bombing, or whatever. But because they are slow and often take place far from anything that might be recognizeable as a “battlefield”, they often go woefully under-reported and are not as likely as immediate deaths to spark much “moral horror” in the society of the country perpetrating the destruction.
Regarding human casualties in Iraq, there was an interesting discussion in 2005-06 or so about the relative “accuracy” or “usefulness” of the Lancet‘s “epidemiological” approach to counting the casualties of U.S. (and to a lesser extent, other) military operations against or in the country, and the approach used by the “Iraqi Body Count”, which has counted only those deaths documentedly attributable to the effects of direct political/military violence– as opposed to deaths caused by the breakdown of safe-water systems, etc…
Shue’s final ethical analysis of the connection he has identified between ownership of PGMs and efforts to relax constraints on targeting civilian objects is as follows:

The normative problem is that once “the enemy’s popular will,” meaning civilian morale, becomes a military objective, much of the purpose of distinguishing military objectives from civilian objects has been defeated. The purpose of separating civilian objects from military objectives is to shelter civilian life to some degree from the fighting, to allow some vestiges of normal civil society to continue through the war and be available at the other end of the conflict for the combatants, victorious or defeated, to come home to and make a life again. But even if civilians themselves may not be targeted, targeting the “popular will” means adding to the deprivations and misery of civilians as much as one can in hope that “popular unrest” will speed the end of the war. But one of the unchallenged principles of legal interpretation is that any interpretation of a law that blocks the fulfilment of the purpose of the law is a mistaken interpretation. So any interpretation of the distinction between military objective and civilian object that permits the unrestrained creation of civilian misery in the vain hope of civilian disaffection is a patently mistaken interpretation and ought to be removed from U.S. military manuals.

One might add to this the fact that the U.S. has an obligation under international, contracted by virtue of its adherence to the Geneva Conventions, the Hague Conventions, and all other major instruments of the international laws of war, to ensure that its own domestic laws (including the doctrinal documents of its military) are completely consonant with the requirements of international law. I certainly hope that all the other states that are parties to these conventions– and the International Committee of the Red Cross, which is charged with monitoring the compliance of all states parties– have informed themselves fully regarding these changes in U.S. targeting doctrine, and are taking action to bring the U.S. into compliance with its international obligations.