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New Wars, New Rules? Not So Fast...
JURIST Guest Columnist Laurie Blank
of Emory Law's International Humanitarian Law Clinic says that while the challenges posed by "new wars" are admittedly vast, we should not let those define us and our values. Rather, she suggests, we should use the law to rise to those challenges....
his is a new kind of war, with a new kind of enemy. The old rules of international law are antiquated and no longer apply. So says Judge Janice Brown of the D.C. Circuit Court of Appeals in Al-Bihani v. Obama
. These assertions echo the claims used by the Bush Administration to argue that the Geneva Conventions are “quaint” and “obsolete.”
We are in a new kind of war. Where once nations fought nations, now we fight insurgents, shadowy terrorist groups and other non-state entities. Where we once measured combat by the number of tanks or fighter jets destroyed, now we count roadside bombs and suicide bombers.
But does this new kind of war necessarily demand new rules? Those who say yes point to the fact that the Geneva Conventions entered into force in 1949, only four years after World War II – ancient history in terms of the nature of conflict.
Before we confine the law of war to the dustbin of history, however, let’s just be sure that we don’t really need them. The Geneva Conventions, and the law of war for centuries before that, are based on four key principles: distinction, proportionality, military necessity, and humanity.
The principle of distinction requires all parties in a conflict to distinguish between those who are fighting and those who are not and to target only the former when launching attacks. It also requires those who are fighting to distinguish themselves from innocent civilians. Distinction has a simple but noble purpose – to protect innocent civilians from unnecessary suffering during conflict. It also protects soldiers by helping them understand whether persons they encounter are hostile or innocent.
The principle of proportionality seeks to balance military goals with protection of civilians. It prohibits an attack when the expected civilian casualties will be excessive compared to the anticipated military advantage. In essence, a commander must believe that the stated military goal is reasonable in light of any foreseeable incidental civilian casualties.
Military necessity recognizes that the goal of war is the complete submission of the enemy as quickly as possible and allows any force necessary to the achievement of that goal as long as such force is not forbidden by the law. Destroying enemy capabilities is legitimate, therefore; wanton killing and destruction is not.
Humanity aims to minimize suffering in armed conflict. To that end, the infliction of suffering or destruction not necessary for legitimate military purposes is forbidden. This principle stems from the code of chivalry, itself an early manifestation of the laws of war.
Those who argue that we need new rules for these new wars must consider exactly which of these principles we no longer want or need. Are we so anxious to kill terrorists and jihadists that we are willing to disregard the need to figure out whether our targets are in fact terrorists before we shoot? Perhaps instead we’ll decide we can destroy as many villages as it takes to get that one elusive insurgent.
The uncertainties and complexities of fighting against insurgents and terrorists do indeed increase the challenges in applying and adhering to the laws of war. These same complexities make conflict ever more deadly for innocent civilians and soldiers alike. Throwing out the very rules designed to minimize suffering in conflict hardly seems to be the right choice at a time when that suffering is only increasing.
Instead, let’s focus on making the law work better in unpredictable and difficult circumstances. For example, we need to sharpen our ability to differentiate between friends and foes so that we know who is dangerous and who we must protect. Our enemies may not wear uniforms, but that does not give us the right to shoot innocents in their stead.
We need to examine how to better protect civilians caught up in the zone of combat while still enabling effective military operations. When insurgents seek shelter in local villages, we cannot simply choose between bombing the whole village or letting the insurgents walk free for fear of civilian casualties, but need to develop operational tactics that enable more surgical strikes.
We need to learn more about how insurgents and terrorists operate so we can target their facilities while still protecting civilian buildings and infrastructure. The fact that our enemies make roadside bombs in residential basements and store munitions in mosques or hospitals does not excuse our obligation to distinguish between military and civilian objects. Nor does it make this obligation obsolete. Rather, it means that we must marry a more discerning analysis of when a building becomes a legitimate target with more sophisticated intelligence information.
The key principles of the international law of war are sound and timeless in their purpose – and critical to our ability to carry out effective military operations. Judge Brown seeks to discard the “old wineskins of international law” and “demands new rules be written.” But which of these principles would she give up? The challenges new wars pose are vast, but rather than let them define us and our values, let’s use the law to rise to the challenge.Laurie R. Blank is the Acting Director of Emory Law's International Humanitarian Law Clinic.
|January 12, 2010|
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I sent this out to a few folk -- seems pertinent here:
I notice several errors in opinions in the recent D.C. Cir. Al-Bihani case.
I. In the Brown opinion page 7:
-- Every judicial opinion and opinion of the Att'ys Gen. had recognized that the President and all members of the Executive branch are bound by customary and treaty-based laws of war. See, e.g., Paust, In Their Own Words...., 14 U.C. Davis J. Int'l L. & Pol'y 205, 240-45 (2009), available at http://ssrn.com/abstract=1485703
--U.S. cases, esp. S.Ct. cases recognize that customary international law and treaties of the U.S. are a necessary background for interpretation of U.S. statutes. See, e.g., Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 153-54 (West, American Casebook Series, 3 ed. 2009); and my treatise, International Law as Law of the United States 43-44, 99, 124-25 n.2, 127 (2 ed. 2003) & treaties are to be construed broady to protect rights -- S.
Ct. cases in Paust, Van Dyke & Malone at 274 Note 5; Paust treatise at 88-89, 130, 132, 316, 362, 381.
-- Cong. is bound by the customary laws of war. See 14 U.C. Davis J. at 217-30
-- Cong. has incorporated all of the laws of war as offenses against the laws of the United States in 10 U.S.C. sec. 818 (the same language had been in the 1916 Articles of War that were addressed to this effect in Ex parte Quirin and In re Yamashita -- see,e g. 50 Tex. L. Rev. 6 (1971) and Paust, Van Dyke, Malone at 159-60
--customary laws of war are part of the laws of the United States in any event (see Pres. bound above and Rest. Sec. 111 and Paust, Judicial Power to Determine the Status and Rights of Persons Detained Without Trial, 44 Harv. Int'l L.J. 503, 514-24 (2003), available at http://ssrn.com/abstract=1487770 - the article cited by J. O'Connor in Hamdi
--Congress cannot authorize the Pres. to "exceed those bounds" of the laws of war (see Cong. is bound above)
--Moreover, in order to obviate the operation of treaty-based law, Cong. must express a clear and unequivocal intent to do so (Cook rule, etc.) and there is no such expession of intent in the AUMF or the 2005 DTA and only partial intent re: use of Geneva Conventions as such (not other treaties) in the 2006 MCA. See 2007 Utah L. Rev. 345, 379-80 & n.90 (2007), available at http://ssrn.com/abstract=1485024
--Furhter, even if the last in time rule could apply (can't because of Cook rule) there are exceptions to the rule that are based in S.Ct. cases: (1) the "rights under" treaties exception (guaranteeing the primacy of rights under treaties), and (2) the law of war exception (guarantteing the primacy of the laws of war). See, e.g., Paust, International Law as Law of the United States 99, 104-05, 106-07, 120, passim (2 ed. 2003) -- available thru www.cap-press.com and 2007 Utah L. Rev. 345, 379-80 & ns. 90-92 (2007).
--several of the points above (e.g., Cook rule, exceptions to last in time) are in our Amicus Brief before the U.S. Ct. of Milt. Comm. Rev. in U.S. v. Al Bahlul (23 Sept. 2009).
Is not the premise of the Geneva Convention that both (or all) sides will adhere to its principles? History indicates that when combatants fail to comply, they are “brought to justice” for that failure following the end of the confrontations – a situation that can occur only when the battle is won by adherents to the Convention. Should a transgressor win, presumably there would be no court of justice – or if there were, it would undoubtedly be a sham designed to win only the appearance of fairness.
So then, success is a precondition to the continued viability of the Convention. But how to obtain success when, as now, the enemy uses the principles of the Convention against its adherents? When the enemy uses the underlying purpose of protecting innocents itself as a weapon in combat? When you combine the advantage provided by knowing your opponent’s “playbook” with the stratagem of guerrilla tactics rather than orderly and massive force, there seems little else that can succeed.
You speak of sharpening our ability to differentiate between friend and foe, and certainly a better initial understanding of who to support politically, militarily and strategically so that we don’t find ourselves later changing alliances and fighting our own resources, would serve us well. More sophisticated methods of distinction would perhaps avoid creating an enemy in the first place. But once you have an enemy that is willing to use innocents and the appearance of innocents as a method of hiding combatants, distinction becomes a weapon against us.
It is easy to counsel that we should “marry a more discerning analysis of when a building becomes a legitimate target with more sophisticated intelligence information,” but the hallmark of guerrilla warfare is the shifting scene, movement from behind a tree to a rock, in and out of focus. That building may be a legitimate target for a surgical strike – until a group of innocents is herded into its hallways. Timing becomes the key, and the intelligence of one moment, regardless of how sophisticated, can easily become the error of the next. Therefore, although intelligence is essential, the ability to mount an attack or withdraw in an instant is also imperative.
It is not really true that, given the realities of modern’s weaponry, the complexities of guerrilla war make conflict more deadly for the innocent and soldier alike. Certainly soldiers following conventional pathways are easy victim to hidden roadside bombs, but unlike the days when combatants were lined up in formation and marched into battle against a similar opposition, they are today removed via remote airstrike and even unmanned weaponry. Rather, it is the unofficial soldier, those civilian non-combatants who gather the intelligence, undercover operators who conceal themselves among the enemy, the apparently “innocent” who seek and transmit information. Their lives are at risk to the extent they honor “distinction.” And it is the intelligence they obtain from the enemy’s smokescreen – intelligence extracted by concealing their own motives and blending into the enemy’s environment – that gives the rest of us any hope of continuing to practice “distinction,” “proportionality,” “military necessity” and “humanity” in combat.
We must indeed develop strategies that facilitate the gathering of intelligence wherever it can be found, as well as procedures that enable its swift evaluation, implementation and instantaneous response. Not an easy task when the target is on a distant continent where inscrutable cultural differences make it easy to use our own rules against us.