The US Air Force decision to base F-16 and F-35 jets at a civilian airport in a heavily populated area in Vermont violates multiple principles of long-established international humanitarian law codified in the 1,236-page US Department of Defense (DoD) “Law of War Manual.”
The DoD first published its Manual in 2015, a time of growing recognition that the wanton killing and injuring of civilians in Iraq and the torturing of prisoners at Abu Ghraib was illegal, immoral, unjust and counterproductive. Updated twice since that first publication, the December 2016 version of the DoD Manual states that, “The protection of civilians against the harmful effects of hostilities is one of the main purposes of the law of war.”
So far, however, that acknowledgement has not developed sufficiently to end the gratuitous F-16 operations that harm civilians and their property in the Chamberlin School neighborhood of South Burlington, Vermont, in violation of principles in the DoD Manual. Nor are there any plans to cancel the basing of the even more harmful F-35 jets in that neighborhood.
The willful exposure of Vermonters to harm from extreme noise and crash risks, the positioning of high-value weapons intermingled with civilians, and the use of civilian residents and the civilian airport as human shields each violate long-established law-of-war principles.
As noted in the Manual, using civilians or civilian property to “to shield, favor, or impede military operations” by the adversary is prohibited. A party to a conflict may not use civilians or civilian property to attempt to make its own military facilities, equipment, personnel or operations immune from, or shielded from, attack by its adversary. This rule reflects article 28 of the Senate-ratified Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Noteworthy also is that under the treaty that established the International Criminal Court, such use of civilians is a war crime.
No Exception for Military Forces in Vermont
The US is currently participating in bombing Iraq, Afghanistan, Syria, Yemen, Pakistan, Libya and Somalia. The DoD Manual makes clear that no exception to its rules is available merely because military forces and equipment are located far away from current scenes of fighting. It states that its “law of war rules reflect standards that must be adhered to in all circumstances.” It notes that “DoD practice also has been to adhere to certain standards in the law of war, even in situations that do not constitute ‘war’ or ‘armed conflict.’”
The DoD Manual provides the reasoning. Military forces remote from ongoing combat may nevertheless be “legally” attacked:
Attacks on military objectives in the enemy rear or diversionary attacks away from the current theaters or zones of active military operations are lawful. The law of war does not require that attacks on enemy military personnel or objectives be conducted near ongoing fighting, in a theater of active military operations, or in a theater of active armed conflict. There are many examples of lawful attacks taking place far from where the fighting was previously taking place.
Vermont is part of the “enemy rear” for countries and armed forces against whom the US is now at war. So, the Burlington International Airport is a “legitimate” target because of the presence of F-16 or F-35 jets and the bombs and missiles they are designed to carry. The Manual states, “in general, attacks may be conducted against military objectives wherever located, outside neutral territory. Attacks, however, may not be conducted in special zones established by agreement between the belligerents, such as hospital, safety, or neutralized zones.” Thus, with these special-zone exceptions, the US military would consider the US military equipment or military forces stationed in 172 countries and territories to be legitimate targets of attack by enemies in the currently active wars or by potential enemies created by the US president’s threats of wars against Iran, North Korea, Venezuela, China and Russia.
In fact, the Vermont-based F-16 jets and their Vermont Air National Guard pilots and commanders are themselves legitimate targets of attack for another reason: These jets and pilots are not bystanders to the currently active wars. The Vermont Air Guard squadron most recently returned from the latest of several deployments heavily bombing portions of Iraq and Syria in 2017.
For all these reasons, the law-of-war protections for civilians described in the DoD Manual apply everywhere, including in Vermont.
Five Principles Define the Laws of War
The DoD Manual defines five fundamental principles. The US Air Force issued its own “Basic Principles of the Law of War and Their Targeting Implications,” last updated in 2017, that describes the same five principles.
“Military necessity” is “the principle that justifies the use of all measures needed to defeat the enemy as quickly and efficiently as possible that are not prohibited by the [other principles of the] law of war.” Military necessity is meant to justify the violence and destruction used against enemy military forces. It also codifies such alternative means as propaganda and spying.
The Air Force did not claim military necessity for basing the F-35 in the Chamberlin School neighborhood. Its consideration of six potential Air Force Base and Air Guard Station (AGS) locations — that each currently house F-15 or F-16 fighters — for “beddown” of the F-35 showed the opposite. The 2013 Air Force F-35 Operational Basing Environmental Impact Statement (EIS) concluded that Hill Air Force Base in Utah and McEntire Joint National Guard Base (JNGB) in South Carolina were “environmentally preferred” choices over and above the Burlington Vermont Air Guard Station.
While the Air Force EIS showed large increases in the land area, population, households and number of schools, hospitals and churches that would be hit by extreme F-35 noise at the Burlington AGS in the Chamberlin School neighborhood, the EIS showed very large decreases in all the noise categories in communities surrounding Hill Air Force Base, Jacksonville AGS in Florida, as well as McEntire JNGB and Shaw Air Force Base in South Carolina. While Burlington showed only a 2 percent improvement, Hill, McEntire and Shaw showed from 21 percent to 71 percent improvements for crash danger as measured by the change in the number of fighter aircraft airfield operations. Of the six choices, the most harm to civilians was to communities surrounding the Burlington Air Guard Station.
The admitted existence of the militarily satisfactory — and “environmentally preferred” — alternate choices negates military necessity.
Conversely, a military operation that does not meet the principle of necessity — particularly if the operation would injure or kill a civilian or damage civilian property — is illegal. The DoD Manual states that, “Humanity forbids the infliction of suffering, injury, or destruction not actually necessary for the accomplishment of legitimate military purpose.” Because the basing in the densely populated Chamberlin School neighborhood is not necessary and inflicts suffering and injury while lowering property values and potentially inflicts property destruction, the basing is illegal and forbidden under the military’s own rules of necessity and humanity.
The Manual states that the principle of “distinction seeks to separate the armed forces and the civilian population.” It is “this separation of the armed forces and the civilian population [that] has greatly mitigated the evils of war.” Thus, locating weapons or military forces immediately adjacent or intermingled with civilians is forbidden by distinction.
The Manual expressly states that “military commanders should avoid placing military objectives in densely populated areas.” It also states, “distinction enjoins the party controlling the population to use its best efforts to distinguish or separate its military forces and war-making activities from members of the civilian population to the maximum extent feasible.”
The Manual recognizes that distinction is not an absolute: Distinction requires only that feasible measures be taken to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects. The DoD Manual states that “feasible precautions are those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”
The basing still fails even under this limitation. While feasibility in locations at the battle front may limit choices, in locations far removed from active combat, like Vermont, the circumstances permit military commanders to do much more to implement precautions, separate armed forces from civilians, and eliminate risks of harm to civilians and their property. Feasible precautions in Vermont include locating inherently dangerous weapons, like the F-16 and F-35, remote from civilians and their property.
Thus, even if locating the F-16 or F-35 intermingled with civilians was somehow found to satisfy military necessity and humanity, which it does not, it would nevertheless be forbidden by distinction.
Honor and Human Shielding
Distinction also specifically forbids placing military equipment or military forces in a location where civilians will serve as human shields. The DoD Manual states, “Parties to a conflict must refrain from the misuse of civilians and other protected persons and objects to shield their own military objectives.” It also states that “misusing protected persons and objects to shield military objectives also offends [the principle of] honor because it constitutes a breach of trust with the enemy and thus undermines respect for the law of war.”
A stealth and first-strike nuclear bomb delivery vehicle, like the F-35 fighter/bomber, would be a prime target for enemies of the US government or those the US president threatens. The planned basing of the F-35 inherently turns the jets, the runway and the airport as a whole into a “legitimate” – and extremely high-value – military target for US adversaries in present or future US wars. Basing such weapons amid an otherwise civilian facility in the most densely populated area of Vermont is a perfect example of such illegal shielding.
The principle of distinction, along with the principle of “proportionality,” forbids initiating a military operation, and requires that an attack be cancelled or suspended if it becomes apparent that the objective is not a military one or if the attack may be expected to cause incidental loss of civilian life or injury that is excessive in relation to the concrete and direct military advantage anticipated.
But the Manual emphasizes that even “incidental” or “collateral” harm to civilians or their property is forbidden when “necessity” for the military action is absent. Allowances under proportionality can only be considered legal if the military operation is necessary. But even if, for the moment, proportionality could be considered, there is no concrete and direct military advantage anticipated from basing in Vermont as compared with the established alternative locations remote from civilians.
As the Air Force cannot show necessity for basing its F-35 jets in the Chamberlin School neighborhood when airports remote from civilians are available, and as the basing in the Chamberlin School neighborhood violates necessity, humanity, distinction, proportionality and honor, even “incidental” or “collateral” harm to civilians or their property is strictly forbidden.
Uniform Code of Military Justice and Nuremberg Principles
Military personnel have a duty under the Uniform Code of Military Justice (UCMJ) to “obey any lawful general order or regulation.” Under the UCMJ, military personnel are not required to obey unlawful orders, particularly orders to harm civilians.
A retired Air Force colonel has been leading a campaign in opposition to the unlawful planned F-35 basing in the Chamberlin School neighborhood that included large public events, lawsuits and ballot items. In May, she and a retired Vermont Air Guard officer filed complaints with military inspectors general, citing Vermont Guard commanders for actions to promote the F-35 basing that violated military regulations.
However, action by active-duty members is also needed. As operation of the F-16 and F-35 jets in the Chamberlin School neighborhood violates the law described in the DoD Manual, in view of the harm to civilians, in view of the Vermont Air Guard’s own mission to “protect the citizens of Vermont” and in view of the Nuremberg Principles, active duty air personnel may increasingly recognize that they are duty-bound to refuse to service or operate those jets in that location. In view of the referendum vote in Burlington and the votes of three city councils to cancel F-35 basing, they will not only be protecting learning, health and safety, they will be protecting democracy itself.
If the Air Force chooses to proceed with the F-35 basing in the Chamberlin School neighborhood in 2019, the military and political leaders responsible must be investigated and held accountable, like anyone else who acts to harm large numbers of children and adults in violation of the law. The culture of impunity for military and political leaders must stop now. With such grave injuries and injustices imposed on thousands of Vermonters, as admitted by the US Air Force, any elected leader who, in a staggering act of treachery to the trust given by the voters, joins in pressuring the Air Force to violate the military law and the international humanitarian law that protects civilians must be fully investigated and prosecuted. Moreover, if the investigation shows that corruption underlies their acts, it must be exposed, uprooted and prosecuted so it never happens again.