TRUMP ABOUT TO COMMIT INFAMY IN THE HISTORY OF MODERN WARFARE

 Iranian power plants and other critical civilian infrastructure are protected from attacks by the law of war the United States helped craft after World War II. Such an object can lose its protection only if it is used for military purposes by the enemy and its destruction “offers a definite military advantage.” Even then, such an object can be attacked only if, after a case-by-case rigorous analysis, the “concrete and direct military advantage anticipated” outweighs the civilian suffering that is expected to result. (Geneva Convention Additional Protocol I art.52, art.57; DOD Law of War Manual, § 5.6, § 5.12).

Despite those well-settled legal parameters, President Trump has repeatedly threatened to obliterate such infrastructure without regard to the law’s high demands. His comments are blatant expressions that he is willing to turn the United States into a rogue State like Iran and Russia, one that rejects the fundamental legal restraints that protect innocent non-combatants like children, and the Iranian civilian population itself. 

Threats to bomb Iran “back to the Stone Ages”” and to show “no quarter, no mercy” are plainly illegal.   

Such threats undermine U.S. legitimacy and global standing, as they demonstrate a rejection of binding international agreements and core commitments to the laws of war. An operation that followed through on Trump’s rhetoric would be one of infamy in the history of modern warfare. 

The public record of intent to commit war crimes puts soldiers at risk of later liability. In any future war crimes or U.C.M.J. investigation—for which there may be no statute of limitations—their actions will be judged based on the reasonably available information at the time of the strikes.    

The U.S. military trains to fight with precision and lethality according to the law of war – precision meaning attacking only lawful military objectives while doing our utmost to protect innocent civilians caught up in the fight. The legal hurdle to convert a civilian object such as a power plant into a lawful military objective is a high one because the United States and its allies vigorously rejected “total war” after the massive suffering endured by millions during World War II.  What President Trump threatens is exactly that, from a civilian targeting perspective – total war against Iran, a complete rejection of the legal limits the United States has incorporated into the law governing U.S. military operations for both pragmatic and moral reasons.

The Heart of Targeting 

Given the scope of Trump’s rhetoric, it appears difficult to steer clear of war crimes.  To be sure, civilian structures like power plants, roads, bridges, and even water desalination plants can be targeted under particular circumstances.  For example, bridges are frequently engaged during ground operations as a means of denying the enemy access to key terrain or supply routes, and a water treatment plant being used as a fighting position is easily targetable in self-defense.  But this is only true when the impact on civilians has been carefully considered and expected not to be excessive compared to the concrete and direct military advantage anticipated from the strike.  

Indeed, the harm induced by striking a power plant is specifically envisioned by the Department of Defense Law of War Manual.  For example, if the destruction of a power plant would be expected to cause the loss of civilian life or injury to civilians very soon after the attack due to the loss of power at a connected hospital, then such harm should be considered in assessing whether an attack is expected to cause excessive harm.  And as a case in point, the International Criminal Court is investigating Russia for war crimes regarding their intentional targeting of the Ukrainian civilian electrical grid during wintertime that plunged thousands of Ukrainians into life-threatening cold conditions, thereby causing unnecessary civilian suffering that was not outweighed by claims of military advantage.

The United States has traditionally served as a leader in developing an entire methodology for determining the collateral effects of munitions on various types of targets (“Collateral Damage Estimation” or “CDE”).  The United States maintains a database of facilities on a “No Strike List,” or “NSL,” which divides civilian structures in two protected categories.  Notably, nuclear power plants appear on the higher of those categories on the NSL, while nearly all other civilian structures—including electric-generating power plants—are recognized to hold standard no-strike protections.  The methodology also calculates a noncombatant civilian casualty cut-off value (“NCV”), which serves as a guide to proportionality for certain effects which might yield civilian casualties.  Cold and clinical as it may sound, employing CDE methodology and considering NCVs are a perfect example of how the United States has operationalized the concept of proportionality and distinction directly into its conduct of war.   

Diminishing Civilian Morale Is Not A Military Advantage 

In light of the president’s comments, it is important to highlight that the DOD Law of War Manual’s note on targeting civilian infrastructure states: “Diminishing the morale of the civilian population and their support for the war effort does not provide a definite military advantage. However, attacks that are otherwise lawful are not rendered unlawful if they happen to result in diminished civilian morale.”  DOD Law of War Manuals, § 5.6.  Such “morale bombing” has been rejected for many decades; it had gained support during World War II only to be roundly rejected by Additional Protocol I to the Geneva Conventions and customary international law.  The idea of using civilian pain in order to effectuate political goals would rightly stoke criticisms that the United States’s use of military force against civilian targets equates to acts of sheer terrorism. (See Additional Protocol I art. 51 (2) (“Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”) (emphasis added); DOD Law of War Manual, § 5.2.2 (“Measures of intimidation or terrorism against the civilian population are prohibited, including acts or threats of violence, the primary purpose of which is to spread terror among the civilian population.”) (emphasis added).

By all accounts then, the law of war prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population.” It is difficult to read President Trump’s egregious threats of great destruction as anything but intending to spread terror, making it even more incumbent on U.S. military professionals to ensure strikes are limited in their impact on the Iranian people. To be sure, as stated above, individual components of Iranian civilian infrastructure may indeed constitute lawful military targets under specific circumstances in which they contribute to the enemy’s military action and their destruction would provide a definite military advantage. That said, the damning public rhetoric surrounding these planned strikes against all power plants in an undifferentiated manner casts the legitimacy and legality of such an operation in serious doubt, to say the least.  American military professionals must remind their chain of command that the United States is not like Iran or Russia: The United States is great because it adheres to the law of war and emerges victorious because of such adherence, not in spite of it. That might be said of all sorts of operations. Surely, here, the mass devastation on a civilian population makes where to draw the line excruciatingly clear.