EDITOR’S NOTE: This article appears in the October 25, 2004, issue of National Review.
After months of changing his position on Iraq, John Kerry has finally chosen a stance. In the first presidential debate, having criticized President Bush for launching “the wrong war, in the wrong place, at the wrong time,” Kerry insisted that he could do a better job fighting terrorism. The senator, at least, seems sure of that; but to the remaining skeptics, there are still questions that need answering. In particular, since America’s ability to prevail on today’s battlefields–whether in the back alleys of Baghdad or the mountains of Afghanistan–depends on the decisive use of force, Kerry’s views on the laws governing U.S. military activity are highly relevant.
Kerry addressed this issue at length in 1971, after his return from Vietnam. Speaking before the Senate, he harshly condemned as “war crimes” several types of American military operations in Vietnam–including aerial bombing, “free-fire zones,” “harassment and interdiction” fire, and search-and-destroy missions. All of these tactics are, in fact, characteristic of the American way of war: i.e., the use of overwhelming force to achieve a prompt and definitive result. And all have been portrayed by anti-American activists as examples of illegal, “indiscriminate” combat methods.
Yet none of these tactics is in fact prohibited under the traditional laws of war. Indeed, as is now well documented, American bombing in Vietnam was far more discriminate than the Allied strategic-bombing campaigns of World War II, and was directed at military targets rather than population centers. Although civilians certainly died, the accepted legal principle of proportionality has always allowed for this possibility, tragic as it may be. Likewise, while opponents of the war (including some returning veterans like Kerry) claimed that free-fire zones were inherently illegal–suggesting that these were areas where anybody, including civilians, could be killed with impunity–the Pentagon defined that term simply as an area where attacks against enemy combatants could be initiated without prior authorization. (Today, many areas of Iraq fit this definition.) Similarly, the Vietnam War’s harassment-and-interdiction fire–designed to disrupt enemy movements and to “shape” a battlefield–and search-and-destroy missions would have been illegal only if they were deliberately aimed at civilians, or civilian objects, that had not already been dragooned into the enemy’s service. (Since U.S. forces in Iraq are facing an enemy that deliberately launches attacks from schools, mosques, and hospitals, and hides among the civilian population, search-and-destroy missions and the use of artillery fire and air strikes against urban areas remain an indispensable part of American tactics.)
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