(FindLaw) -- At the core of international humanitarian law -- better known as the laws of war -- is the principle of distinction: the idea that civilians are not legitimate targets of armed force. If, after Bosnia, Kosovo, and a host of other brutal conflicts, that basic principle already seemed distressingly fragile, recent events have called it even more deeply into question.
A defining characteristic of terrorism is, of course, its willingness to target the innocent. That is why, in the wake of September 11, there has been a newly urgent concern about the spread of chemical, biological, and nuclear weapons.
Anthrax, smallpox, botulism, sarin gas and suitcase nuclear devices: the list goes on. These weapons of mass destruction, by their very nature indiscriminate, threaten to wipe out entire populations. They do not simply ignore the distinction between civilians and combatants, they annihilate it.
Bin Laden's arsenal
Fears that terrorists will employ weapons of mass destruction have not, as yet, been confirmed. Only a handful of people have died from anthrax, and there is little indication of who is responsible for their deaths. Osama bin Laden, in an interview last week with a Pakistani journalist, denied any involvement in the killings.
But bin Laden was far less categorical when asked about the possible use of other weapons of mass destruction. "If American used chemical or nuclear weapons against us," he warned, "then we may retort with chemical and nuclear weapons. We have the weapons as a deterrent."
Bush administration officials immediately dismissed the possibility that bin Laden has nuclear weapons, but they did refer to "credible indications" that bin Laden has sought to obtain them. Indeed, bin Laden's strenuous efforts to obtain nuclear material were known of long before the September 11 attacks. In its November 1998 indictment against him, the Justice Department specifically mentioned bin Laden's attempts to procure nuclear components.
On Saturday, during his speech to the U.N. General Assembly, President Bush alluded to nuclear fears, although without mentioning bin Laden by name. Terrorists, he said, are "searching for weapons of mass destruction, the tools to turn their hatred into holocaust. They can be expected to use chemical, biological and nuclear weapons the moment they are capable of doing so."
The same day, U.S. intelligence officials reported that the United States had identified possible chemical weapons sites in Afghanistan. One of the sites, in Derunta, a small village in eastern Afghanistan, is suspected of having already produced cyanide gas.
Mass killings of civilians v. civilian casualties in wartime
Bin Laden's interview with a Pakistani journalist last week gave a glimpse into how he rationalizes the mass killing of civilians. Questioned as to whether killing innocent civilians could be justified under Islamic law, bin Laden responded that it could.
Bin Laden cited killings of Palestinians, Chechens, and other Muslims, claiming that America was guilty of their deaths. Pointedly, he referred to the American democracy, stating that because Congress and the President are popularly elected, "the entire America" is responsible for the government's acts.
U.S. authorities have made it quite clear, in contrast, that their war is not against the Afghan people generally but on the Taliban and al Qaeda in particular. They have tried to underscore this point by making airdrops of food and medicine to the Afghan populace, even at the risk of inadvertently supplying the Taliban.
Yet, as in any war, civilians are being killed. The number of civilian deaths is greatly disputed and, since the Taliban do not permit journalists to work freely in the country, is unlikely to be ascertained for some time. What is already clear, unfortunately, is that not all of the weapons used by the U.S. forces are designed to minimize civilian casualties. Cluster bombs, in particular, are likely to lead to unnecessary and unjustified civilian deaths.
During the first week of the bombing campaign, it is thought that Air Force bombers dropped 50 CBU-87 cluster bombs in some five missions. Since that date, some 300 more cluster bombs are believed to have been used.
Cluster bombs are a far cry from weapons of mass destruction, yet they too tend to be indiscriminate. Since each one is made up of over 200 little "bomblets," they have a wide dispersal pattern and cannot be targeted precisely, and are especially dangerous when used near civilian areas. And because the bomblets have a high initial failure rate, they leave numerous explosive "duds" that pose the same post-conflict problems as antipersonnel landmines.
Choice of weapons
It should be clear that the choice of weapons in an armed conflict is not a morally neutral affair. What weapons are used, to no small extent, determines the impact of the war on the civilian population.
A few commentators have already made grotesque references to waging a "total war" against America's enemies, a war that ignores the basic distinction between civilians and combatants. At least one has even made explicit reference to the use of nuclear bombs, albeit as a retaliatory measure.
Terrorists don't worry about civilian casualties, but a government trying to fight a just war should. In responding to the horrific attacks of September 11, it is important that we keep this principle in mind. Halting the use of cluster bombs would prove just how much our "war on terrorism" differs from their war on us.
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