The thesis of this paper requires a two-part foundation that will be discussed in Parts Two and Three. Part Two will first address the complexities behind the deceptively simple term “collateral casualties and damage” and the difficult task of ending or reducing occurrences of such harm. Second, pertinent facts about the United States military air operations in Afghanistan will provide context for the ensuing discussion about procedures and decision making. Part Three will then offer a survey of the moral and legal principles and standards that motivate efforts to reduce harm to civilians that results from air strikes.

Collateral Casualties from Air Attack

The range of consequences associated with incidences of undesired death and injury following an air strike can be very broad, ranging from minor wounds to injuries that maim individuals for life, and from the death of a single, innocent person to the loss of dozens of innocent family members and neighbors. On the scale of time, unintended casualties and destruction can result immediately from exploding ordnance—or days, weeks, or years later as the result of buried, autonomous, or malfunctioning weaponry. Some definitions of “collateral casualties” include sickness and starvation that can result from damage to basic infrastructure or interruption of humanitarian aid efforts in the immediate area.[5] The international law of warfare is very clear that civilian persons who are not actively aiding the enemy military forces must not be the objective, or target, of any attack. When such persons are purposefully harmed as the objective of a military operation, these acts are declared war crimes, a category separate and distinct from that of unintended, innocent casualties. Individuals, in addition to states, can be held accountable for these crimes against humanity.[6]

In addition to the personal consequences to those who are inadvertently swept up in the effects of war, civilian deaths and injuries can also have significant effects on the nation that launched the attack and the political objectives it is pursuing.[7] Because of the civilian population’s suffering and the resulting perception of injustice, pre-existing sympathies toward the United States can be lost or hatred deepened within the country or region containing the fighting. When media outlets flash reports of the incident around the region and the world, the local perception of injustice can rapidly expand into broad criticism of, and sometimes result in changes to, the policies and strategies in use by the nation that mounted the attack. Those changes can potentially restrict or even cancel future operations. One senior instructor summarized these indirect effects of civilian casualties during a United States military training session about a previous conflict: “We knew that no single bomb would win the war, but also that one wayward bomb could lose it.”[8]

While the results of unintended civilian casualties can be dire in both the personal and political dimensions, the complete elimination of such incidents is an elusive goal. Even “precise” weapons can land at precisely wrong locations and cause incidents of unintended suffering. Shaw has compiled a list of eight different causes for such tragic outcomes.[9] One of these causes, human error, can result from wrong or insufficient intelligence. The intended target location may be hit, but not the intended target “content.” Human error can also result from mistakes in communication, identification, or dexterity, leading to the launch of a weapon at an incorrect target. Another group of causes, technological failures, can occur in the mechanical or electronic components of weapon systems, causing them to veer off course and miss their target. Such malfunctions were the cause of the two collateral casualty and damage incidents in October[10] and November 2001,[11] according to initial assessments by the United States military.

Unexpected and unnoticed civilian activity in the target’s vicinity can mean that innocent people are caught up in the destruction intended for the military object of the attack. This can more easily occur when military targets are located in or near locations such as “dual use” civil urban infrastructure that also directly supports enemy military activities. Civilians are also placed at risk when their government intentionally attempts to shield its military systems by placing them in neighborhoods or other places where innocent people congregate. In such situations, a decision maker fully expects a small number of civilians to be in or near the target area, but sometimes judges that destroying the target is essential to winning the war rapidly and will save many more lives in the future. This objective then overrides his or her obligation to protect those civilian lives. (The moral and legal issues surrounding such situations will be discussed in the next section of the paper.) Such a wide range of possible causes and the roles of circumstance and errors can seemingly conspire to result in multiple incidences of civilian casualties that seem to defy attempts at their elimination.

It cannot be known with certainty which of these theoretical causes have resulted in incidents of civilian casualties and damage in Afghanistan during the United States air operations since October 2002. This is due in part to the wide variance in unofficial accountings of reported instances of civilian casualties and damage, and the limited official government information available. With OEF still an active military operation at the time of this writing, the United States government has released to the public no overall assessment and little official information concerning the impact of specific air strikes on Afghan civilians. A United States Central Command news release in March 2002 provided the status of ten incidents since the start of OEF that the four-star combatant commander had determined required review. Of these, only two were associated with possible incidents of collateral casualties and damage due to air strikes.[12] The command did conduct an investigation of the Deh Rawod incident described in the opening lines of this paper. The majority of the report is classified, although the command did release an unclassified summary.[13]

With regard to a broad picture of the overall number of unintended civilian deaths in Afghanistan, the Department of Defense has maintained the position that it has no estimated total,[14] and that nearly insurmountable challenges block them from obtaining all the facts needed to generate an estimate.[15] Indeed, there are numerous and significant obstacles to ascertaining the actual harm to civilians resulting from an air strike.[16] Frightened survivors may misperceive or exaggerate facts in their recounting of the incident, injured people may be quickly moved to obtain medical care, and human remains may be rapidly buried, as mentioned in the excerpt from the military report on Deh Rawod in Part One. The immediate location of the attack and the area surrounding it may remain a highly dangerous and chaotic environment for a lengthy period. In addition, local government reports may be tainted by dishonest intent or poor investigation capabilities and techniques.

Most of the available reports of instances of undesired civilian casualties and damage in OEF have come from non-governmental organizations and media sources. The United States government has not corroborated these reports, which provide varying perspectives on the suffering of innocents in the course of this war. Some of these reports have been compiled by non-governmental researchers, using varying criteria for determining the trustworthiness of the information they were able to find. They have produced estimates of 1,300[17] to 2,700[18] civilian deaths resulting from both ground and air operations during the first three months of OEF, the most intense period of military air attacks, and do not include injuries or property damage. However, these estimates are of arguable validity. Separating fact from fiction can be very difficult and requires judgments by the compilers as to the likely veracity of each report.[19] As Herold warns: “Counting is not value-free.”[20] The task becomes even harder as distance and time separates the estimator from the incident.

Nevertheless, several media sources have generated estimates. The Boston Globe estimated in February 2002 that one thousand Afghan civilians had died as a result of air strikes up to that time.[21] The New York Times reported in July 2002 that up to four hundred civilians had died, based on the newspaper’s six-month review. This review included visits to eleven sites representing the principal locations that Afghans and human rights groups claimed were the sites of collateral deaths of civilians.[22] The claims from Afghanistan of collateral casualties and damage continue: a provincial governor’s office reported the death of seventeen civilians, including women and children, on February 12, 2003.[23] Another tragic accident occurred on April 9, 2003 when a bomb missed its intended target and landed on a house, killing eleven civilians.[24] Some reports such as these can be based, at least in part, on rumor or deception, but their overall effect is sobering because, where they are factual, they point to incidents of personal tragedy affecting innocent lives.

Air Operations in Operation Enduring Freedom

The objectives regarding the protection of civilians during the war in Afghanistan were clearly stated from the outset. On the first day of air strikes, Secretary of Defense Donald Rumsfeld emphasized that United States military forces intended to attack only military targets.[25] This objective and the corollary intent of minimizing loss of civilian lives was reiterated by President George W. Bush in his remarks to the United Nations General Assembly the following month.[26] This clear emphasis was complemented by the internal reputation that the United States Central Command already possessed within the military for paying particular attention to avoiding civilian casualties and damage.[27]

In many ways, the air forces of the United States were better prepared in OEF than in any previous conflict to minimize collateral casualties and damage during their air attacks. Technological advances and new systems gave them more precise tools. The widespread and much heralded use of the Joint Defense Attack Munition (JDAM), initially unveiled during Operation Allied Force, the air war over Serbia, brought satellite-enhanced accuracy to the battlefield in a new way as these weapons penetrated smoke and clouds without loss of precision.[28] The Department of Defense reports that 50 percent[29] of the 21,000 bombs[30] dropped during OEF through March 2002 were JDAMs or other precision munitions. This was a marked increase from the previous record of 29 percent during the air war over Serbia, itself a three-fold increase over the 1991 Gulf War.[31]

Partnered with the advantages of precision munitions were advances in intelligence, communications, and command and control. Unmanned aerial vehicles gave bird’s-eye views of target areas and instantaneously sent these pictures back over satellite links to command centers and aircrews in their aircraft[32]—this “sensor-to-shooter” capability has been long awaited for the advantage it offers to crews in target recognition and situational awareness. The main command center for the air war was known as the Combined Air Operations Center. From there each attack was planned and directed. This command center concept had matured since its first appearance during the 1991 Persian Gulf War. By 2001, the center was far more capable of planning more precise strikes in advance, integrating incoming intelligence and reconnaissance information with ongoing air operations, and reacting swiftly and accurately to fleeting targets.[33] In Afghanistan these improved capabilities were tested against both conventional forces and terrorist fighters in a conflict that differed in significant ways from a textbook battle against a traditional foe. Because of the surprise achieved by the terrorist attacks on September 11, 2001, OEF target development did not begin until days and weeks before the initial strikes. During initial fighting in Afghanistan, air forces would not be teamed with conventional infantry or armored forces, but with special operations teams working alongside indigenous fighters. Within one week of the start of the air war, the air forces had attacked most of the available, fixed targets.[34] This meant that most air strikes after that point were “on call,” their crews often taking off without knowing their exact targets. Those targets were then relayed to them in the air, based on developments on the ground and reports from friendly ground forces or detections by intelligence sources. This meant that the desired timeline between notification and “bombs on target” was sometimes very short, a condition created by both the shadowy nature of the al-Qaeda and Taliban leadership and the power of new command, control, and intelligence capabilities. These conditions could only make the goal of striking only military targets an even more challenging objective.

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