Co-opting Lawfare as a Strategy in the War On Terrorism: The Need for
Developing an American Lawfighting Doctrine[1]
Davida Kellogg
“We must
not allow thoughtless, ill-informed, and politically motivated accusations to
trivialize LOAC’s fundamental principles. If it does,
LOAC will lose its credibility with the very people — and the very nation — it
most needs to make certain it is observed and, more importantly, preserved.”[2]
Col.
Charles J. Dunlop Jr., USAF
Abstract
We have been operating under the impression that
International Law of Armed Conflict is inimical to our effective prosecution of
the war on terrorism. But what has come to be called “Lawfare”
is a weapon that rightly belongs in the hands of those who abide by Law of War.
I submit that our problem lies not with LOAC, but with our failure to make our
own superior claim to legitimacy over terror warfare, and to exploit its
strategic advantages in order to sever terrorist organizations and their
sponsor states from the public support on which their success depends. Instead
of dealing with the “hyper-legalization” of warfare with an uncoordinated
series of isolated tactical “solutions of opportunity,” we need to develop a
comprehensive pro-active Law fighting doctrine of our own. Such a doctrine
would have as its overarching strategy:
1.
the public unmasking of terror warfare as inherently and irremediably in
contravention of both the letter and the spirit of the Geneva Conventions,
and
2.
recognition that Lawfare in the hands of those who
abide by LOAC can be a powerful weapon in the War on Terrorism.
On the national scene, probably the most effective
thing we can do is to educate our own civilianry on
the actual content of the Geneva Conventions, and our military and contract
personnel to the absolute necessity of abiding by International Law of War,
even in the face of an enemy that does not.
On the international scene, there are probably at
least a dozen ways for politically sophisticated nations to accomplish the
exposure of the fraudulent notion that right is on the side of those who
deliberately target innocent non-combatants, while claiming protected civilian
status for their murderers. One possibility that comes to mind is to press for
a UN resolution declaring that terrorism is inherently and irremediably illegal
as a way of war, and that when directed at particular nationalities, religious
communities, or ethnic groups is outright genocide. I do not expect that such a
resolution would pass in the current international political climate. Still,
win or lose, by bringing our case before the UN we would automatically gain
national and international exposure in the national and international media for
it. Another possibility is to spearhead a movement to put real teeth into LOAC
in the form of provisions explicitly outlining sanctions for grave breaches of
the Geneva Conventions. Should we be successful, we must be prepared to see
members of our own military tried for isolated violations such as those at Abu Ghraib. If we do a proper job of educating our troops to
our moral and legal expectations of them, such incidents will be very rare. But
our enemies’ entire way of war would be on trial before the court of public
opinion, for there is no way for terrorists to fight that does not contravene
International Law of Armed Conflict.
Introduction
Recently, Italian journalist Giuliana Sgrena made very public
and highly emotional claims in both the European and American media that US
troops at a Baghdad checkpoint had opened fire on the vehicle in which she was
being transported to the airport following her ransom from insurgent kidnappers
without giving warning, and, she further charged, with the express intention of
killing her in retaliation for her political writing. These charges are
unsubstantiated, and considering the hard-line leftist editorial philosophy of
the newspaper she was working for, highly suspect. Nevertheless, protests
sparked among the Italian public by her charges resulted in strong political pressure
for P.M. Berlusconi to withdraw Italian troops serving with the Coalition from
Also recently, an American deserter named Jeremy Hinzman applied for refugee status in
What these two incidents have in common is that they
are both cases in point of how modern terror warfare has set Clausewitz’s most famous insight that war is essentially
the doing of “politics by other means” on its ear by turning the manipulation
of other Peoples’ national and international policy into a form of warfare in
itself. It is a subtly insidious, low tech, but nonetheless disproportionately
effective, form of political warfare to which
Briefly characterized, Lawfare
is a method of warfare in which appeal to International Law of Armed Conflict
is used as a means of realizing political objectives via the influence of public opinion on enemy policy.
Even before we had a name for Lawfare,
critics of the “hyper-legalism” that pervaded the air war in Kosovo saw it as
an imposition of “the quaint norms of premodern war”[6] that placed unreasonable constraints on all aspects
of modern conventional warfare, to which Rivkin and
Casey[7] warned the U.S. was “particularly vulnerable.” And
in terrorist hands, the most commonly used tactic of Lawfare
has been to barrage the U.S. media, and those of its foreign allies, with
outrageous, often patently absurd accusations of the illegality of Coalition
methods and means in prosecuting the war on terrorism that invoke the sort of
“unrealistic norms,” in particular a wholly unreasonable and manifestly false
“hyper-legalistic” expectation of zero collateral damage, that Rivkin and Casey warned of. For a democratic nation like
the U.S., in which civilian control of the military is a constitutionally
guaranteed right (as well as an onerous obligation of citizenship), such manipulation
of national and international policy through public perception can prove
catastrophic on a grand national scale, undermining our military’s will to
fight and our civilianry’s willingness to support it
in our war against arguably the most immoral and dishonorable enemies we have
ever had.
Since 9/11/01, the civilized nations of the world
have wasted vital time on the defensive, casting about for uncoordinated
tactical “solutions of opportunity” with which to counter the legal accusations
of apologists for terrorism while the number of innocent victims of its often
perfidious tactics mounts daily. Yet, as I shall argue in the remainder of this
paper, we have always had it in our power to denounce and prosecute acts of
terrorism as the grave breaches of the Geneva Conventions they are, and
terrorism itself as an inherently and irremediably immoral and illegal form of
warfare. Instead we have stood by while apologists for terrorism convince our
countrymen and allies that secondary considerations of sovereignty, religion,
ethnicity, and political correctness take precedence over the most fundamental
of human rights of all the innocent citizens the Geneva Conventions are
intended to protect.
I propose that we take a more aggressive strategic
approach, and recognize Lawfare as a powerful
strategic weapon legitimately wielded only by those whose way of war is
commensurate with International Law of Armed Conflict, seize the moral/legal
offensive, and turn Lawfare on terrorist
organizations and sponsor states, whose claims of moral superiority cannot
withstand honest scrutiny. In short, I propose that we cease thinking of
ourselves as helpless in the face of terrorist Lawfare,
and instead of dealing with the
“hyper-legalization” of warfare with a patchwork of reactive tactical
solutions, we develop a comprehensive proactive Lawfighting
doctrine of our own that is consistent with the prerogative norms of existing
International Law of Armed Conflict and Just War Tradition, to which we as a
nation subscribe.
I cannot say at this point what a finished working
Law fighting doctrine would encompass in detail. But in any case, it ought to
have at its heart an overarching strategy of repositioning ourselves and our
allies to fight the war on terrorism from the offensive, rather than from the
untenable defensive position we have allowed ourselves to be maneuvered into.
Key to this repositioning is seizing and occupying the high ground in a newly
emerging sort of Clausewitzian moral/legal terrain,
as well as the traditional military geographic terrain. And key to
accomplishing this new kind of maneuver is the public “outing” of terror
warfare for the unprecedented illegal and immoral assault on human rights it
is. That indictment is more easily made than we seem to appreciate. For, as I
shall demonstrate, even a cursory reading of the relevant legal instruments
readily reveal the utter incompatibility of the motives, methods, and means of
terror warfare with International Law of Armed Conflict and accepted norms of decent
human behavior on which this body of law is based. LOAC itself consists of over
50 instruments.[8] In this paper, I shall concentrate on demonstrating
the inherent and irremediable inconsistencies of terror warfare with provisions
of Additional Protocol I to the Geneva Conventions, to which apologists for
terrorism have so falsely, so hypocritically, but so effectively, appealed.
The
While it is true that the past year has seen the
humiliation and physical abuse of Iraqi POWs by US military police and
contractors, it has also witnessed the parading of body parts of fallen Israeli
soldiers by members of the Palestinian terrorist organization Hamas, the murder
and mutilation of the bodies of American and Coalition military and civilian
contract personnel by Iraqi rebels loyal to Shiite cleric Mukhtadr
al-Sadr, the bombing of Spanish commuter trains by
Islamic terrorists, and other grave breaches of International Law of Armed
Conflict. It would seem at this point that all parties to the current Middle
Eastern Conflict, legal combatants or otherwise, have committed egregious
breaches of international treaty law and customary practice concerning the
humane treatment of persons protected under the Geneva Conventions. While it is
tempting to condemn them all alike, I will not present a simple tu atque[9]
argument for a moral equivalency between conventional war and terror warfare.
To the contrary, inspection of the Geneva Conventions, particularly Additional
Protocol I, reveals a significant moral and corresponding legal difference
between those breaches committed by Coalition troops and those committed by
terrorists, besides an arguable one of degree.[10]
The implication of a moral equivalency between
breaches of the rules of warfare committed in the course of conventional war
and acts of terror warfare is a tactic of Lawfare.
Some breaches of the Geneva Conventions,
however, arise as the result of the illicit execution of a legally permissible
act, while other breaches occur because the commission of war crimes is intrinsic to the prosecution of a
particular way of war. Detention of enemy combatants as POWs, for instance, is
permissible; mistreating them while in legal detention is not. The Coalition
breaches that apparently took place at the Abu Ghraib
prison in
Perfidy
Legally, perfidy is defined as "acts inviting
the confidence of an adversary to lead him to believe that he is entitled to,
or is obliged to accord, protection under the rules of international law
applicable in armed conflict, with intent to betray that confidence." Such
acts seek to take advantage of the opposing force's intent to respect Protocol
I provisions for the protection of innocents in time of war in order to gain
some tactical advantage. Examples include engaging in combat while feigning
non-combatant status, using non-combatants as shields, using ambulances to
carry troops or ammunition, and siting command posts
or weapons systems in or near specially protected places such as houses of
worship, shrines, hospitals, schools, etc., all of which terrorist fighters
have done.
Not all war crimes fall under the heading of
perfidy. For instance, directly attacking non-combatants openly, while clearly
a war crime, does not constitute perfidy. But the Geneva Conventions place
perfidious acts in a class by themselves of especially egregious war crimes
because they cynically abuse those provisions that make it permissible to incur
collateral casualties or damage so long as certain Just War criteria are
fulfilled.[11]
The perfidious use of the mosque, the
shrine, the school house, the ambulance, the hospital, etc. turns these
protected places (and inevitably the protected persons, voluntarily or
involuntarily housed within their precincts) into legally permissible targets.
In this way, a perfidious act of war performs an illegal end run around the
foundational moral principle of the Geneva Conventions — the protection of
innocent noncombatants.
In terrorist hands, Lawfare
has routinely placed the blame for the casualties of their perfidious acts at
the feet of Coalition forces. It is instructive to note that the Geneva
Conventions, however, recognize that collateral damage to protected persons or
places as a result of acts of perfidy is entirely
the responsibility of the perpetrator, and not of his opponent who has struck
what has become as a result of those perfidious actions, a legitimate military
target.
Resort to perfidy is especially pernicious for yet
another reason — it makes it emotionally easier for an otherwise scrupulous
opponent to justify indiscriminately or disproportionately striking a
perfidious enemy's own noncombatants, hospitals, schools, churches, etc. in
future engagements. This, I believe, is the genesis of much of our own abuses
of prisoners suspected of committing acts of terrorism, etc.
Making the
Moral and Legal Case Against Terror Warfare
The argument that terror warfare is inherently and
irremediably illegal, most especially because of its use of perfidious and
other methods and means to deliberately target noncombatants, is also a deeply
moral one, proceeding in a straight line of reasoning from Just War theory to
International Law of Armed Conflict as follows:
1. International Law of Armed Conflict is
specifically intended to encode and enact the moral principles embodied by Just
War Tradition. Under Just War criteria, it is not enough that war be undertaken
for just cause; it must be justly fought as well. Consequently, to be legal
under International Law of Armed Conflict, war must be fought in accordance
with "established custom, the principles of humanity, and the dictates of
public conscience." These principles and dictates are embodied in the very
first Article of Protocol I.
2. Protocol I makes it unequivocally clear that, of
the above mentioned principles of humanity, the guiding spirit overarching
International Law of Armed Conflict is concern that "innocents"[12]
be spared from intentional infliction
of at least the cruelest depredations of war, insofar as it is possible to do
so. Contrary to terrorist apologetics, no statute exists in International Law
of War, which recognizes the Thomist principle of
double effect, to the effect that no
civilians may be harmed under any circumstances.
3. Wording to the effect that the "provisions
of this Protocol must be fully applied in all circumstances to all persons who
are protected by these instruments" would appear to give precedence to
concern for the welfare of noncombatants even
over respect for "the sovereignty, territorial integrity or political
independence of States [or of peoples aspiring to statehood] ... without any
adverse distinction based on the nature or origin of the armed conflict or on
the causes espoused by or attributed to the Parties to the conflicts."[13]
This order of precedence has legal significance, as it effectively invalidates
so-called "root causes" arguments as exculpatory justifications for
terrorism. It is extremely important to grasp this, as the “root causes” of
Middle Eastern terrorism are at bottom religious in nature,[14]
and in this country minority religions are treated as a “sacred cow,” not to be
criticized. But when religiously inspired warfare is deliberately directed
against innocent noncombatants in contravention of both the laws of civilized
nations and most recognized religions, then it is certainly possible to deny both
the legitimacy and the morality of such warfare. The fact that such abomination
is wrapped in the cloak of religion only makes terrorism more egregious.
4. If any doubt remains, Article 35, dealing with
methods and means of warfare states outright that: "in any armed conflict,
the right of the parties to the conflict to choose methods or means of warfare is
not unlimited."
5. Furthermore, Protocol I, "which supplements
the Geneva Conventions ... for the protection of war victims, shall apply in
all situations ... including armed
conflicts in which peoples are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of their right of
self-determination..." Since peoples fighting against colonial domination[15]
etc. may not be recognized nations in their own right, the quibbling argument
that terrorist organizations are exempt from the restraints placed on the
behavior of parties to a conflict by Protocol I on the grounds of their
statelessness would appear to be immaterial.[16]
6. To the end of ensuring the safety and welfare of
protected persons, Protocol I requires, among other things, that all parties to
armed conflicts:
a.
"do everything feasible to verify that the objectives to be attacked are
neither civilians nor civilian objects and are not subject to special
protections but are military objectives,"
and
b.
"take all feasible precautions in the choice of means and methods of
attack with a view to avoiding, and in any event, to minimizing, incidental loss
of civilian life, injury to civilians and damage to civilian objects.”[17]
7. These are positive legal obligations incumbent on
all warring parties proceeding from the Protocol I obligation of
"combatants to distinguish themselves from the civilian population while
they are engaged in an attack," or at the very least to carry their arms
openly, "in order to promote the protection of the civilian population
from the effects of hostilities."
8. Because acts of perfidy fly in the face of
efforts to identify and safeguard protected persons under the provisions of
Protocol I, they constitute "methods of warfare of a nature to cause
superfluous injury or unnecessary suffering" to protected persons. Resort
to perfidy is therefore especially prohibited under Protocol I provisions
dealing with Methods and Means of Warfare.
9. Because specifically prohibited acts which target
civilians directly (or indirectly through perfidy), constitute the very tactics
that define terror warfare, any resort to this style of warfare is inherently
in contravention of International Law of Armed Conflict in general and Protocol
I of the Geneva Conventions in particular, and thus not only illegal but, by
its most fundamental defining characteristics, irremediably so.
10. Parties to armed conflicts engaged in
conventional warfare which have experienced even such "system[wide]
failures" as apparently occurred in the Abu Ghraib
prison can remediate their situation vis-a-vis International Law of War by the prosecution of
those responsible, however high up the chain of command, and the institution of
proper operating procedure. But there is nothing that terrorists can do to
legitimize themselves short of abandoning their preferred style of warfare.
Legal Responsibility for Acts of
Terrorism
If the Geneva Conventions and Additional Protocol I
are acknowledged as the pertinent provisions of accepted International Law of
Armed Conflict[18]
then terror warfare is always and
irremediably illegal. Resort to what has euphemistically been described
as this morally as well as operationally “asymmetrical” form of warfare, which
is literally defined by a strategy of both open and perfidious attack
deliberately directed against specially protected persons and places, willfully
and cynically contravenes both the spirit and the letter of this entire body of
international law.
In particular, Article 85 of Protocol I states
outright that such characteristic acts of terror warfare as "making the
civilian population or individual civilians the object of attack," and
"the perfidious use ... of the distinctive emblem of the Red Cross [etc.]
... or of other protective signs ... when committed willfully ... shall be
regarded as grave breaches." This is significant as, under Article 85,
"grave breaches of these instruments shall be regarded as war
crimes." Not only that, but under Article 86, both the High Contracting
Parties as well as all Parties to the conflict are required "to repress
grave breaches, and to take all measures necessary to suppress all other breaches,
of the Conventions or of [Additional Protocol I], which result from a failure
to act when under a duty to do so." Arguments from religion, politics, or
frustration with the prevailing socioeconomic-economic situation — the
so-called "root causes" arguments — for terrorism, that do not even
acknowledge the possibility of appeal to Law of Nations, are neither honest nor
exculpatory.
Articles 85 and 86 restate and reinforce Article 80,
which states that "The High Contracting Parties and the Parties to the
conflict:
1. “shall without delay take all necessary measures
for the execution of their obligations under the Conventions and this Protocol,
2. “shall give orders and instructions to ensure
observance of the Conventions and this Protocol,”
and
3. “shall supervise their execution.”
The operative verb form in all three of these
injunctions is "shall" (and not "may"), signifying a
positive legal duty to take timely and substantive action to prevent or curtail
the grievous harm deliberately done to innocents by resort to the tactics that
define terror warfare. This duty is, in the wording of Protocol 1, incumbent
upon all High Contracting Parties and all Parties to a conflict, without
specification that they be either internationally recognized states or
officially sponsored state actors. Therefore, the legal argument may be made
that, contrary to popular belief, terrorist organizations which may recruit and
operate across national borders with varying degrees of passive or active
cooperation-operation of a number of states, are not exempted on the grounds of
their lack of national status or official state responsibility taken for them.
Neither, it may be further argued, are those states which covertly sponsor or
tolerate such organizations exempted from the Article 86 responsibility for war
crimes committed by terrorist organizations that act effectively as their
subordinates "if [those sponsor states] knew, or had information which
should have enabled them to conclude in the circumstances at the time, that
[these organizations were] committing or [were] going to commit such a breach,
and if they did not take all feasible measures within their power to prevent or
suppress the breach.”[19]
Article 87 specifically sets out the duties that
High Contracting Parties and all Parties to a conflict shall require of their
military commanders with regard to war crimes and criminals. In so doing, it
implicates those states and organizations as the ultimately responsible
Parties. But even if it did not, it seems to me that the international legal
principle of Respondeat Superior would shift the responsibility
to prevent or suppress the commission of war crimes by terrorist organizations
up an obscured but existing chain of command to states which seek to hide their
responsibility for such crimes behind a facade of feigned helplessness,
especially when they could at any time prior to the commission of those acts
have appealed to the UN for aid up to and including military intervention.
The Case of Non-Signatories
Left unspecified, however, is whether the provisions
of Protocol 1 are to be understood as truly universally binding on all warring
parties or only upon those states, and their “subordinates,” acceding to the
Geneva Conventions. The question also arises as to how this situation is to be
reconciled with the pre-existing Vienna Convention on Law of Treaties of 1969,
the relevant provision of which states that no two states may make a treaty
that binds a third without its consent. Although it may be argued that this
provision was meant to protect a nation's citizenry from undue foreign
influence, exempting non-signatories from the Geneva Conventions would appear
to place reasons of state above the welfare of those innocent victims of war
given precedence in the Geneva Conventions.[20]
The effect of this apparent conflict between the two
Conventions is to leave an unintended loophole in international treaty law
through which terrorist organizations and their sponsor states may slip by the
simple means of non-accession. Unless Protocol I may be read as taking
precedence over the Vienna Conventions with regard to terror warfare, the
protections afforded innocents under the Geneva Conventions may be effectively
negated by those whose political religious, or socioeconomic purposes are
served by a strategy of deliberate indiscriminate attack on noncombatants. No
other reading makes moral sense.
Legal Recourse Against Terrorist
Acts of War
In the Geneva Conventions, the civilized nations of
the world have forged a powerful instrument for the protection of innocent
victims of war. Yet, considering the (literally) deadly seriousness of the
purpose for which it was forged, it is unfortunate in the extreme for the
victims of terror warfare that there is an apparent disconnect between the
potential power of the instrument itself and its application that has rendered
it virtually ineffective.
This disconnect may be attributed in large part to
two counter-productive factors:
1.
Article 90, for instance, provides at length for the establishment of
international fact-finding commissions to “enquire into any facts alleged to be
a grave breach as defined in Protocol 1.” But, although the composition and
administration of these commissions are set out in excruciating detail, consequences
to parties eventually found to be guilty of breaches and grave breaches are
left unspecified,[21]
with the exception of possible financial liability covered in one sentence of
Article 91. And although time frames are specified for the establishment of
these commissions, no such limits are specified for the cessation of violations
of the Conventions before steps up to and including military intervention are
taken to keep peace while the commission proceeds with discovery and
deliberation.
2.
This deficiency is further exacerbated by the unwillingness of U.N. officials
to approve the actions necessary to prevent or suppress violations that is
called for in these instruments. Although Part 1 of Article 88 specifies that
“the High Contracting Parties shall afford one another the greatest measure of
assistance in connection with criminal proceedings brought in respect of grave
breaches of the Convention or of this Protocol “ and Article 89 calls for
action “jointly or individually, in cooperation-operation with the U.N.” [which
may, among other things, deploy peacekeeping troops] there has been a notable
lack of will among High Contracting Parties in general, and Security Council
members under the current Secretary General in particular, to condemn grave breaches
of the Conventions stemming from resort to the sort of inhumane and perfidious
methods employed in terror warfare, and to intervene on behalf of the victims
of these illegal tactics. This reluctance to enforce LOAC against terrorist
organizations and sponsor states may be traced in large part to deference of
governments to the popular opinion of their constituents, whose notions
concerning the provisions of the Geneva Conventions may be fanciful, to say the
least.
Towards a Just War Warfighting
Doctrine
This paper is intended as an argument for a
comprehensive American Law fighting Doctrine, not a working outline.
Nevertheless, my recommendation is that, whatever else its eventual drafters
include, they should develop strategic plans for public education, and both
what may be thought of as political and legal maneuver:
Education
The indictment against terror warfare, which by definition cannot even be waged
except by means of deliberate attack on persons and places specially protected
under Protocol I of the Geneva Conventions, is so easily demonstrated and so
tight that only widespread ignorance of LOAC can account for the current
efficacy of terrorist Lawfare. The good news is that
the near incontestability of the legal case against terrorism makes terrorist
apologetics for their activities fatally vulnerable to even a rudimentary
knowledge of International Law of War. Therefore, any comprehensive U.S. Law fighting
doctrine must contain a plan to inform our own and our allies’
1. civilianry,
2. military and civilian contract personnel,
and
3. media
as to the actual content of the relevant
international legal instruments, most especially the Geneva Conventions and
Additional Protocols to it.
Ideally, basic concepts of Just War Theory and their
expression in International Law of War should be introduced to American public
school students at the High School, or even Middle School level, before they
reach voting age.[22]
My purpose in proposing these additions to secondary school curricula is most
certainly not to advocate the
propagandizing of our public schools children. But the plain fact is that,
among forms of government, democracy is the most active and makes the greatest
demands of its constituents. Our
constitutional right (and responsibility) to exercise civilian control of the
military requires an especially well-educated citizenry capable of making
reasoned, rather than knee-jerk emotional decisions concerning our own national
and international defense policies. The forming of such citizens — and not, as we have rather selfishly come
to believe, their personal social betterment — is the primary purpose
envisioned by our founding fathers for public education in our society. And it
is not unreasonable to expect public secondary schools and state universities
to provide the relevant facts and foster the critical thinking skills citizens
of this nation require to exercise control over the single most powerful
military in human history. This is especially pressing in a post-1960s intellectual
atmosphere of uncritical cultural relativism that has left our People so
susceptible to terrorist rhetoric.
More pressing is the need to ramp-up ethical and
legal instruction for our military and civilian contract personnel. For it is
the almost daily accusation that they have committed some delict
of the Geneva Conventions that has provided a patently dishonorable enemy with
the moral and legal ammunition to wage Lawfare
against us.
Military ethics instruction should extend laterally
across all Services and all Branches within the Services, most especially to
Military Intelligence and Police which have been the focus of so many of the
recent accusations against our troops. In particular, M.I. must re-evaluate the
relative strategic value of extracting information from prisoners by
questionable means vice denying the
legal/moral advantage to terrorist apologists in the highly politicized form of
warfare in which, whether they like it or not, this nation is engaged. Military
ethics and law of war instruction must also extend vertically from the Joint
Chiefs down to the lowliest recruit. For Lawfare
purposes, perhaps the most important link in the chain of command are the
non-commissioned and junior officers as both teachers and models to their
enlisted soldiers, who constitute the majority of military personnel accused of
breaches of the Geneva Conventions. They, in turn, must be backed-up
unequivocally by the seamless uniform policy of their superior officers that
American troops will fight according to the provisions of International Law of
Armed Conflict and the norms of decent human behavior. I am not arguing for
adoption of an unrealistic zero tolerance policy that would only conduce to
cover-ups of inevitable failures, as it did in Vietnam. Rather, I am calling
for dealing with those failures ourselves in a predictable honest, transparent,
and timely manner well before they are turned into political I.E.D.s in the hands of our terrorist enemies.
Since they wear U.S. military uniforms and may even
act in certain military capacities, we must further insist that no civilian
contractors be allowed in the field without having received the same ethics
training as our military personnel. Since they too are in a position to damage
our strategic interests by thoughtlessly committing acts in contravention of
the Geneva Conventions, all contracts, especially with civilian companies
supplying non-military personnel to work in close contact with prisoners or
enemy civilians, should be made contingent on this training, which should be
provided by the military in order ensure uniformity.
Neither should civilian media personnel be embedded
with any military unit in the field without first having received instruction
in, or demonstrated knowledge of, what the Geneva Conventions actually do, and
do not, say. In the deadly aftermath of unsubstantiated accusations that U.S.
interrogators had behaved disrespectfully towards the Koran irresponsibly
published in Newsweek Magazine, it is not unreasonable to expect that ladies
and gentlemen of the press charged with reporting on the conduct of our wars
have the necessary knowledge to do so responsibly. Neither is it unreasonable
to expect them to make the effort to convey and this information concerning Law
of War to their readers, listeners, and viewers — including full coverage of
terrorist transgressions of the Geneva Conventions — so that they can make
their own well-grounded decisions concerning the prosecution of the war on
terrorism in which we now find ourselves. This is not a call for censorship or
any other kind of interference with their freedom of the press, but a matter of
professional competence.
Lastly, we are not in this War on Terrorism alone,
but fight alongside Coalition forces from a variety of other nations. The
behavior of troops from any one of these nations has political consequences for
every nation in the Coalition, including our own. It is therefore imperative
that we communicate, in the strongest terms, our expectations to our allies and
reach an understanding with them that their troops will fight in accordance
with LOAC.
Political
and Legal Maneuver
The Geneva Conventions are rendered less than
optimally effective as legal instruments for the protection of innocents from
the depredations of terrorism by vague or contradictory counterproductive
wording regarding responsibility and consequences for commission of grave
breaches of their provisions. Provisions that bind signatories to the humane
treatment of innocents without placing the same onus on non-signatories,[23]
apparently contradict wording in preceding provisions to the effect that all
Parties to a conflict are obligated to conform to the letter of these
instruments. This situation:
1. works contrary to the Just War spirit motivating
the entire body of International Law of Armed Conflict,
2. undermines its ability to achieve its high moral
purpose,
and
3. serves to protect the perpetrators of grave human
rights violations at the mortal expense of their victims, since it could cynically
but effectively be argued that terrorist organizations have by the simple means
of refusing to accede to the Geneva Conventions effectively placed themselves
outside the reach of international law. A Law of the Sea so constrained would
effectively legalize piracy.[24]
There is in International Law the understanding that
existing conventions may sometimes have to give way to new peremptory norms, or
laws that are absolutely binding and not open to further debate. Among them
might be the reasonable expectation that grave breaches of the provisions of
LOAC be universally condemned by the civilized nations of the World, and
appropriately sanctioned. The key to the enforcement of new peremptory norms is
that they must achieve widespread acceptance. We must, however, not forget that
the peremptory norms with which we wish to compel compliance are those of
established LOAC, and only
established LOAC. The opinions and pronouncements of NGOs, terrorist
organizations, and uninformed reporters with political agendas are not the law,
and should not be allowed through our inaction to come to constitute new
peremptory norms. This is especially important with regard to the creeping
trend towards an unrealistic and unreasonable zero tolerance for civilian
casualties. The trick will be to steer the middle course between utter
disregard for international law of war and uncritical acceptance of an
“hyper-legalistic” approach to the
Geneva Conventions that would place terrorists and other ununiformed
combatants in the same legal and moral category as bona fide noncombatants. But I believe that we can turn law of war
on our terrorist enemies without incapacitating our own military.
NOTES:
[1].
Portions of this paper constituting the legal argument against the perfidious
nature of terror warfare (Davida Kellogg and Maj. Michel Reid, Canadian Land Forces,
“Terror Warfare, Perfidy, and the Geneva Conventions”) were presented at the
IUS meeting in
[2]. Col. Charles J. Dunlap Jr., “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts,” 2001 www.Duke.edu/~pfeaver/dunlap.pdf.
[3].
UPI, “U.S.. Clears Self on Italian Agent’s Death,” The Washington Times, 4/36/05; Ian Fisher, “Bush Phones
[4].
Ian Fisher, “Berlusconi May Be Down, but It’s Too Soon to Count Him Out,”
[5]. Opinion of
Judge Brian Goodman for the Canadian Immigration and Refugee Board, Division of
Refugee Protection, Mar. 16, 2005, www.irb- cisr.gc.ca/en/decisions/Hinzman/Hinzman_e.pdf.
[6].
Richard K. Betts, “Compromised Command,” Foreign
Affairs, July/August 2001, 126 (review of Wesley Clark’s Waging Modern War:
[7]. David B. Rivkin Jr. and Lee A. Casey. “The Rocky Shoals of International Law,” The National Interest, Winter 2000/01, 35.
[8]. The Law of
Armed Conflict is a body of some 52 documents, treaties, conventions,
declarations, etc. that includes the four
[9] Literally, a counter-charge leveled at one’s accuser that “you, too” have behaved in a similarly reprehensible manner.
[10] Protocol I delineates a clear hierarchy of gravity among various specified breaches to its provisions. Specifically, Part 2 of Protocol I lists murder, torture, and mutilation ahead of outrages upon personal dignity as “acts which shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents.” And Article 85 of Protocol 1 lists those breaches which are so grave as to be considered war crimes. These are essentially the sort of deliberate attacks against protected persons and against civilian personnel and sites that constitute precisely the methods and means that are characteristic of terror warfare.
[11] These criteria include good faith efforts to avoid or at least minimize damage to protected persons and places, and ensuring that collateral damage be kept proportional to the expected tactical gain etc.
[12] Those not actively engaged in combat, including but not limited to civilians, medical personnel and chaplains, and those rendered hors de combat by virtue of having been wounded or taken prisoner of war.
[13] Again,
this is not to give the impression that no
strike is permissible if there is any
risk of collateral casualties, as some anti-war and/or pro-terrorist activists
maintain. To the contrary, while the Geneva Conventions hold the deliberate
targeting of noncombatants — the defining strategy of terror warfare — as
unjustifiable under any pretext, inadvertent and unintended (collateral)
casualties are permissible under article 57, though limited by certain Just War
criteria mentioned above. In this, the framers of LOAC have followed
[14] . “China-America The Great Game: Interview with LT Gen Liu Yazhou of the Air Force of the People’s ‘Liberation Army,” Heartland: Eurasian Review of Geopolitics 1.2005, Gruppo Editoriale L’Espresso/Cassan Press HK.
[15] As
was the case for the American colonists during their own War for
[16] This
is especially so in cases such as exist in the occupied territories of
[17] Consider the extraordinary efforts made by Coalition forces fighting in Najaf to spare the Iman Ali mosque in contrast with the desecration wrought by rebel Shiite cleric Muhktadr al-Sadr's Mahdi Army, which turned this venerable Shi'a holy site into a command post for its irregular military activities and has buried caches of weapons in Moslem cemeteries.
[18] The misconstructions, opinions, and pronouncements of terrorist propagandists, anti-American leftists, cultural relativists, barracks lawyers, and NGOs that, however well-intentioned, have placed an unrealistic and unreasonable expectation of zero collateral damage on conventional fighters (but not on terrorists) are not recognized international law.
[19] In “Legitimate Use of Military Force Against State-Sponsored International Terrorism” (Air U. Press, Maxwell AB, 1989, p.95.), LTC Richard Erickson makes the point that “there is in international law the concept of state responsibility, that is, the duty that one state owes to another state and to the community of nations, Suppression of international terrorism is part of that duty. When states fail in their responsibility, either through inaction or through active sponsorship or support of terrorism, they commit a delict, or international wrong. The injured state is entitled to economic compensation and, in certain instances, to use military force to correct the wrong,”
[20] What is at issue here is the relative position of state sovereignty vice protection of innocent persons in the context of international law of war. Both are legal goods. But, in any moral contest between the rights of the state and human rights, especially those to life and limb, we are compelled to argue strenuously from an ethical point of view that human rights must take precedence. Logically, too, we must argue from the premise that states are formed for the protection of Peoples, and a state that guards its sovereignty over the lives and welfare of its citizens is little more than a hollow legal construct, if that much.
[21] Though measures up to and including just war are suggested by, among other things, reference to the resources of the UN, which can call for and field international peacekeeping forces from its member nations.
[22] An informal poll I took of students on my university campus revealed that few (mostly ROTC cadets and political science majors) had any inkling that they had civilian control of the military, or of what that meant for them.
[23] Notably those concerning denunciation, i.e. a nation’s right to renounce its accession to the Geneva Conventions.
[24] Piracy itself is prohibited by virtue of the fact that Law of the Sea essentially restates customary law, against which piracy has been a long-standing offense. Terror warfare, at least on the current international scale, is relatively new on the scene. It is worth noting, however, that the 1988 Rome Convention on Suspension of Unlawful Acts Against Maritime Navigation extends the principles of this Convention to fixed platforms on the continental shelf, effectively extending the area of jurisdiction of laws concerning piracy inland.