Readers of Special Providence know that I’ve written about four schools of American thinking about world affairs; from the perspective of the most widespread of them, the Jacksonians, what Israel is doing in Gaza makes perfect sense....I respect Dr. Mead, who is quoted here regularly, but this argument is half-baked. It's true that in Jackson's time America had no use for rules of war that would have rendered in incapable of fighting back successfully. It's likewise true that those same laws, now, are just another weapon to which you might lay a hand: they are the rules that allow you to treat unlawful combatants to a quick hanging or a trip to GitMo, because their lack of uniforms and discipline does not privilege them.
Americans as a people have never much believed in fighting by “the rules.” The Minutemen who fought the British regulars at Lexington and Concord in 1776 thought that there was nothing stupider in the world than to stand in even ranks and brightly colored uniforms waiting to shoot and be shot like gentlemen. They hid behind stone walls and trees, wearing clothes that blended in with their surroundings, and took potshots at the British wherever they could. George Washington saved the Revolution by a surprise attack on British forces the night before Christmas; far from being ashamed of an attack no European general of the day would have countenanced, Americans turned a painting of the attack (“Washington Crossing the Delaware”) into a patriotic icon. In America, war is not a sport....
The whole jus in bello argument sails right over the heads of most Americans. The proportionality concept never went over that big here. Many Americans are instinctive Clausewitzians; Clausewitz argued that efforts to make war less cruel end up making it worse, and a lot of Americans agree.
From this perspective, the kind of tit-for-tat limited warfare that the doctrine of proportionality would require is a recipe for unending war: for decades of random air strikes, bombs and other raids.
It's not that we don't get the rules. It's certainly not that they go 'over our heads.' It's all about war not being a sport. When we take to fighting, we mean to win.
And we do take seriously the women and children. Clausewitz's formula isn't against them, it's in their favor. Air strikes are one of the worst ways to wage a war, even especially a war of this type. Ask the Haqqani how kind our drones have been to their women. I have heard it said that the ideal weapon for this sort of war is a knife, followed by a rifle. Poison and silenced pistols are good too.
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One of the criteria for jus in bello (fighting nice as opposed to jus ad bellum which is about whether it is just ) is proportionality. If the other guy comes at you with a stick, you can’t pull a knife. If he’s got a knife, you can’t pull a gun. If he burned your barn, you can’t nuke his capital. Your use of force must be proportionate to the cause and to the danger...
That's not what the term "proportionality" means in Law of War. You might think so based on the word, but you'd be wrong. "Proportionality" in jus in bello means this: that the damage to civilians and civilians property must not be "out of proportion" to the military advantage to be gained. You can't artillery-strike a city just to catch a few privates who are on leave there; but if the enemy's got his fighting force in there, the situation changes. (This is why "human shields" are propaganda tactics but are not legally effective.)
So, if the enemy is firing at you with rifles, you can call in airstrikes or artillery fire to kill them; and if they're charging you with spears, you can wipe them out with whatever weapons seems best to you.
(Even in civilian self-defense law the rule - "proportionate force" is not quite the way he makes out. You can't use deadly force to defend against non-deadly force, and what constitutes which is very fuzzy 'round the edges. The idea that you could not defend against a knife attack using a gun, even in civilian self-defense, is 100% USDA-approved grade A prime BS. But if you were far enough away to make a safe retreat, you might have to do that...very, very different concept.)
Also - and I am as always highly subject to correction - I never heard that British tactics of the period were some kind of "rule" designed to make the fights fair (like the more stilted kind of duel). Rather, I think they were simply effective ways of maneuvering the troops and bringing a lot of musket firepower to bear. Troops with faster rates of fire didn't slow down to let the enemy take turns...and naval tactics for sure didn't have anything against attacking from the weather gauge, or "crossing the T" to hammer an enemy ship that could barely shoot back. I think he's got his military history as distorted as his international law.
btw, there's a bit of current news highly apropos to your point about Clausewitz. Last Friday the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia overturned the conviction of a Croatian general that overlapped with these ideas...there's a good article in the Spring edition of the Military Law Review (which you can get in PDF from the Library of Congress website) by a former Judge Advocate General of the Army on the subject...the main problem (and basis for the reversal) is that the trial chamber had decided that any artillery round that landed more than 200 meters from any legitimate military target was instead purposefully being fired at civilians. (The case involved artillery fire on cities.)
The experts cited by the article point out that one reason this rule is so terrible - is that it strongly encourages belligerents to put their facilities just a little over 200 meters from civilian targets - in the hopes of paralyzing the other side's artillery - thus putting more civilians in danger than would be without the rule, even though the intent was to make things easier on the civilians. (Succinctly summarized here.)
I think you're right about the purpose of the British formation being to mass musket fire. It was actually quite revolutionary when, as late as WWI, the American Expeditionary Force attempted to train soldiers to individually target their rifles. The 3rd Infantry Division was one of the experimental units, and did very well with it on the Marne.
Still, I don't think Dr. Mead is wrong to suggest that the British responded to the American tactics as though they were violations of some sort of rule. Here in the South, especially, the war was conducted very brutally on both sides -- the British were quite inclined to summarily execute any American partisans.
Regarding proportionality, your take as a military lawyer conforms to my understanding from philosophy. But there is another test to this particular aspect of jus in bello -- he's really talking specifically about the "Doctrine of Double Effect" here -- which Americans tend to be very good on, which is that attacks must be discriminate.
If an attack may harm civilians as well as legitimate targets, the test for whether your tactic is discriminate is to ask: "If, by Fate or miracle, the noncombatants were not harmed, would I be satisfied with the outcome?" If the answer is yes, you have designed a discriminate attack.
If not, it means that killing the noncombatants is actually either the end of your action, or the means to the end. If you really wanted to kill the Haqqani leader's wife or child as a way of sending a message, for example, you'd not be satisfied if the wife or child miraculously escaped.
Americans -- even Jacksonian ones -- tend to be very solid on this point.
Much has been made of the "hiding behind rocks and trees while the British fought in the open." And most of it is bunk. The British themselves had troops that fought behind rocks and trees. They were called "skirmishers". And they were never taken all that seriously by line troops. Because when confronted by a unit of regular infantry, skirmishers could either flee or die. The massed firepower and shock of a bayonet charge would annihilate any unit of skirmishers, and routinely did. The few times when colonials used such tactics and it worked in their favor were in heavily wooded terrain where a regiment could not maneuver (see Lexington and Concord). Most every other time, we (the colonials that is) lost. And badly. The few times we DID beat the British in open battle was using conventional "stand in the open and shoot" tactics. Like the battle of the Cowpens, or Saratoga.
The "violations of rule" that the British objected to was not the use of skirmishers, but the intentional targeting of officers by snipers. Yes, officers were routinely killed in combat, it was a dangerous profession, even for generals. But to actively attempt to kill officers in order to destroy the command and control of units was seen by European generals as not just ungentlemanly, but actively dangerous. If officers were killed and the enlisted left to their own devices, it was believed, they would rape and pillage their way across the countryside. So it was a convention of European warfare that special effort was not made to kill officers. But the colonials needed every advantage they could lay their hands on, and targeted officers almost as a matter of course.
I think you're right about the purpose of the British formation being to mass musket fire. It was actually quite revolutionary when, as late as WWI, the American Expeditionary Force attempted to train soldiers to individually target their rifles. The 3rd Infantry Division was one of the experimental units, and did very well with it on the Marne.
The British orders were always "Ready. Present. Fire!" Because you did not aim your musket, you presented it towards the enemy. We were the first to use "Ready. Aim. Fire!" Von Steuben thought the American habit of aiming firearms was counterproductive and dangerous.
Thus, Wellington's remark before Waterloo that "it is not the business of commanders to fire upon one another"...
Discrimination and proportionality are closely related for sure - under one doctrine you're supposed to attack in ways that distinguish combatants from noncombatants (so that you're not targeting civilians intentionally or recklessly); in the other, if you know you're going to kill noncombatants, you're supposed to discriminate [i]enough[/i] that you're not killing "too many" civilians for your legitimate military objective.
Mead's idea that "you have to limit your attack to something proportional to what the enemy is doing" (e.g., no guns against knives) is flat wrong no matter which doctrine you relate it to. It's what you get when someone knows the doctrine is [i]called[/i] "proportionality" but hasn't studied what it means in this context. His reading makes grammatical sense; it's just wrong.
Discrimination also means not placing your troops in such a way as to invite attack on civilian areas. Deploying your artillery next to a hospital or mosque is just as much a violation of discrimination as an indiscriminate attack on a civilian area.
Normally I find Mead to be quite good, but here he doesn't seem to have done even basic research. It seems a more accurate statement would be that Americans generally support Israel because they actually have a better grasp of what 'proportionality' and 'discrimination' in warfare mean than most Europeans do.
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