precendent is not always helpful to the cause

This is an opportunity for the US to enunciate a legal baseline of state practice in targeting regarded as lawful in particular factual circumstances by its closest allies. And to do so in circumstances that are not Afghanistan after ten years of war, but instead a new situation, with vastly less intelligence and other capabilities than are available today in the Afghanistan conflict. Circumstances, however, in which the targeting, and collateral damage, was regarded by our closest allies and friends as being fully compliant with the laws of war. And a conflict in which the usual outside human rights groups were lobbying for it as humanitarian intervention, and so had far less incentive than usual to try and use the situation to raise the bar on what constitutes lawful targeting.

Kenneth Anderson has a plea that DOD and NATO Should Undertake Libya Targeting Review to Establish State Practice of Lawful Targeting that brings up a number of interesting questions that dig deep into intelligence gathering, target definition, and advances in technology that reduce collateral damage in armed conflict.

The problem is that the use of military force has been a political point of convenience in the post WW-II era. It is a point of convenience because outrage is tempered depending upon who does it. If a study has been done to define exactly what is ‘legal’ and what is not, especially when that definition is based on international behavior and not just U.S. behavior, then a standard for evaluation of action is established. That makes it more difficult to assert that the other party does it wrong while ‘we do it right.’ In many ways, this is like the Congressional authorization to use military force in Iraq. Despite that that document established the authority of the administration in the use of military force, the political opposition did all it could (and still does) to forget that document and pretend it never existed. That allows them to pursue similar behavior yet assert that their behavior is legitimate while accusing the other guy of war crimes.

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