Co-opting Lawfare as a Strategy in the War On Terrorism: The Need for Developing an American Lawfighting Doctrine[1]


Davida Kellogg

University of Maine


“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





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,




            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.




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 Iraq. A Pentagon investigation has since found that Sgrena’s vehicle had approached a well-known checkpoint outside Baghdad at a high rate of speed, ignoring all warnings to stop, and that troops manning the checkpoint had acted in accordance with R.O.E. But it remains uncertain whether Italians will eventually reconcile these findings with conflicting ones of their own magistrates’ investigation of the incident.[3] Meanwhile, the entire pro-U.S.. Berlusconi government hung in the balance.[4]


Also recently, an American deserter named Jeremy Hinzman applied for refugee status in Canada on the grounds that had he returned to duty as a paratrooper he would have been sent to Iraq, where fighting for the Coalition would have necessarily compelled him to commit atrocities, in contravention of the Geneva Conventions. To its credit, the Canadian Immigration and Refugee Board rejected Hinzman’s petition on the basis of Judge Brian Goodman’s findings[5] that he had failed to establish “that if deployed to Iraq he would have engaged in, been associated with, or been complicit in military action condemned by the international community as contrary to basic rules of human conduct.” Judge Goodman ruled further that, although serious violations, notably at the Abu Ghraib Prison, have occurred, Hinzman “has not shown that the US has, either as a matter of deliberate policy or official indifference, required or allowed its combatants to engage in widespread actions in violation of humanitarian law.” That has not stopped six other U.S.. military personnel from making similar applications. And even if the Canadian Board stands fast in its correct judgment, such baseless “hyper-legalistic” claims have perversely taken on a false legitimacy among an uncritical civilian public, the largely unschooled media, and “barracks lawyers” at home and abroad that facilitates Islamic fundamentalist terrorist activities worldwide by contributing to growing U.S. difficulties with military recruiting and retention.


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 Col. (now B.G.) Charles Dunlap applied the term “Lawfare” in his 2001 landmark paper, quoted above.


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 Geneva Conventions on Conventional Vice Terror Warfare


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 Iraq have been of this variety. Grave as they are, they are potentially remediable by the timely and appropriate prosecution and punishment of those involved in or ultimately responsible for crimes against persons protected under the Geneva Conventions, and by the subsequent institution and enforcement of appropriate measures to prevent further abuses in the pursuit of Coalition war aims. Terrorism, on the other hand, is both defined and prohibited as an act or threat of violence directed at civilians with the object of spreading terror among them. Thus terrorist breaches are, by virtue of their defining  tactics and overarching strategy, themselves inherently illegal, and cannot be otherwise. The irremediability of terror warfare resides inextricably in the intrinsic dependence of both the tactics and overarching strategies of terror warfare on methods and means that are specifically prohibited under Part IV of Protocol I. It is therefore logically, as well as operationally, impossible to conduct terror warfare without necessarily committing criminal breaches of the Geneva Conventions. Among the worst of these criminal breaches are those falling under the rubric of 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,"


            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,”




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:



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,




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,




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.




[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 Toronto Canada in Nov, 1-3, 2004


[2]. Col. Charles J. Dunlap Jr., “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts,” 2001


[3]. UPI, “U.S.. Clears Self on Italian Agent’s Death,” The Washington Times, 4/36/05; Ian Fisher, “Bush Phones Italy’s Leader as Ire Lingers Over Killing,” The New York Times, 5/5l05.


[4]. Ian Fisher, “Berlusconi May Be Down, but It’s Too Soon to Count Him Out,” New York Times, 5/2/05.


[5]. Opinion of Judge Brian Goodman for the Canadian Immigration and Refugee Board, Division of Refugee Protection, Mar. 16, 2005, www.irb-


[6]. Richard K. Betts, “Compromised Command,” Foreign Affairs, July/August 2001, 126 (review of Wesley Clark’s Waging Modern War: Bosnia, Kosovo, and the Future of Combat)


[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 Geneva conventions of 1949. The outrages mentioned, and others, are addressed in Protocol 1, Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts  adopted on 8 June 1977. This document will be referred to henceforth in this paper as "Protocol 1", for the sake of brevity. Unless otherwise mentioned, article numbers are those of Protocol 1.


[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 St. Augustine in recognizing that the soldier in the field is not God, and thus neither omniscient not omnipotent. He is, however, human, and expected to act humanely, even in the teeth of combat; that itself is a great deal to ask, especially in the face of an enemy as inhumane as terrorists, but Jus in Bello criteria of the Just War  Tradition to which we subscribe absolutely requires it.


[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 Independence.


[16] This is especially so in cases such as exist in the occupied territories of Israel, where the PLO has assumed the function of a proxy Palestinian state. Hezbollah is heavily funded by Iran and holds seats in parliament in Lebanon where it is based, In such cases where terrorist  organizations operate with the tacit approval if not the covert support of host nations, responsibility for adherence to the Geneva Conventions still devolves upon the sponsor nations, many, if not all of which are signatory to these legal instruments. Those cases in which a terrorist sponsor state is not signatory to the Geneva Conventions  will be discussed later in this paper.


[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.