Tag: laws of war (page 1 of 2)

Civil(ian) Military Integration & The Coming Problem for International Law

In late May, the People’s Republic of China (PRC) released a white paper on China’s Military Strategy. This public release is the first of its kind, and it has received relatively little attention in the broader media.   While much of the strategy is of no big surprise (broad and sweeping claims to reunification of Taiwan with mainland China, China’s rights to territorial integrity, self-defense of “China’s reefs and islands,” a nod to “provocative actions” by some of its “offshore neighbors” (read Japan)), there was one part of the strategy that calls for a little more scrutiny: civil-military integration (CMI).

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What Do International Law and Norms Say About Burning People Alive?

One line of discussion this past week has been whether it makes any kind of moral sense to think that  death by chemical weapon is so much worse than death by “conventional” weapons. Video imagery captured by BBC in the aftermath of another horrific massacre in Syria yesterday throws this into stark relief. At least ten children burned to death and scores others were left with horrifying injuries after a flammable substance was dropped on a school playground yesterday. Continue reading

What We Know, Don’t Know, Can’t Know and Need to Know About the DOD’s Classified Study on Drone Deaths

Reaper drops first precision-guided bomb, protects ground forcesJust before Independence Day, an analyst for a defense research agency stated in a media interview that a classified DoD study shows that drones are likelier to cause civilian harm than attacks from manned fighters. Lawrence Lewis, a researcher for the Center for Naval Analyses, says these findings resulted from a  statistical analysis he conducted using classified data from Afghanistan mid 2010-mid 2011 as part of a project funded by DoD’s Joint Center for Operational Analysis.

If true, this would dramatically shift the discussion about the humanitarian impact and value of armed drones. There are all kinds of human security arguments against drones – they make war likelier, they kill too many civilians, they weaken the rule of law; and all kinds of national security arguments in favor of them – they decapitate terror networks, they prevent attacks, they keep troops out of harm’s way. But there is also a human security argument in favor of drones: that when used lawfully they save foreign civilian lives relative to other kinds of strikes because they are precision weapons.

But if drones are likelier to harm civilians than manned attacks (the explanation is that drone pilots lack the training in humanitarian law and civilian protection that manned pilots have) then that goes out the window.

So, is the finding valid? Continue reading

Obama, Drones, and the Matter of Definitions

Editor’s Note: This is a guest post by Tobias T. Gibson, an associate professor of political science and security studies at Westminster College in Fulton, Mo. 

In the buildup to President Obama’s speech at National Defense University on May 23, the administration suggested that the speech would clarify US policy on the use of drones in targeted killing. Although the president took pains to describe the limitations set forth by his administration, the speech provided little genuine clarity.

The working definitions of three very important words play a key role in undermining the putative “transparency” provided by the speech.  In a key passage, the President states that

Beyond the Afghan theater, we only target al Qaeda and its associated forces. Even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists – our preference is always to detain, interrogate, and prosecute them. America cannot take strikes wherever we choose – our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals – we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set. [emphasis mine]

These three key constraints on the administration may amount to very little in the way of genuine barriers to the use of drone strikes.

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What’s Wrong With This Picture?

 

This graph comes to you from a newly published article on the politics of the drone campaign published this week in International Studies Perspectives. I haven’t yet read the full piece so cannot yet comment on it substantively or theoretically. Nor have I looked closely at the authors’ code-book. However based on the abstract, the analysis appears to rest on the empirical evidence of a newly coded dataset (the latest of many out there presuming to calculate the percentage of civilians – v. non-civilians – killed in drone strikes) to make claims about the justifiability of such attacks – presumably by weighing civilian harms against military effectiveness. My reaction here pertains solely to this graph, and what strikes me is the disjuncture between the authors’ coding of “civilians,” and the actual definition of civilians in the 1977 1st Additional Protocol to the Geneva Conventions.

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Cyber Nerd Blogging: Neuroscience, Conflict and Security

Antoine Bousquet has a fascinating post at Disorder of Things on developments in neuroscience and how they are being used by militaries to 1) enhance their own soldiers and 2) degrade the abilities of their opponents. The post is in response to a report by The Royal Society on Neuroscience, Conflict and Security which outlines these developments, speculates on the future and the ethical implications of these developments.

As Bousquet notes, it’s some pretty hairy stuff:

Yet perhaps the most potentially consequential developments will be found in the area of neural interfacing and its efforts to bring the human nervous system and computing machines under a single informational architecture. The report’s authors note here the benefits that accrue from this research to the disabled in terms of improvements to the range of physical and social interactions available to them through a variety of neurally controlled prosthetic extensions. While this is indeed the case, there is a particular irony to the fact that the war mutilated (which the Afghan and Iraq conflicts have produced in abundance – according to one estimate, over 180,000 US veterans from these conflicts are on disability benefits) have become one of the main testing grounds for technologies that may in the future do much more than restore lost capabilities. Among one of the most striking suggestions is that:

electrode arrays implanted in the nervous system could provide a connection between the nervous system of an able-bodied individual and a specific hardware or software system. Since the human brain can process images, such as targets, much faster than the subject is consciously aware, a neurally interfaced weapons systems could provide significant advantages over other system control methods in terms of speed and accuracy. (p.40)

In other words, human brains may be harnessed within fire control systems to perform cognitive tasks before these even become conscious to them. Aside from the huge ethical and legal issues that it would raise, one cannot but observe that under such a scheme the functional distinction between human operator and machine seems to collapse entirely with the evaporation of any pretense of individual volition.

Noting scientific developments aimed at altering the sensory perception of enemies on the battlefield, Bousquet concludes: “The holy grail of military neuroscience is therefore nothing less than the ability to directly hack into and reprogram a target’s perceptions and beliefs, doing away even with the need for kinetic force. So that when neural warfare does truly arrive, we may not even know it.”

A couple of thoughts:

First, The Royal Society Report is interesting for its inclusion of a relatively decent overview of the applicable law that would apply to such weapons. Ken Anderson at Lawfare disagrees – suggesting that “The legal and ethical issues are of course legion and barely explored.” However, considering the report is relatively brief, the legal and ethical section does proportionally take up a large chunk of it. in addition, the report includes no less than four recommendations for suggesting improvements to the Chemical Weapons Convention and Biological Weapons Convention regimes. Interestingly, they do not suggest any improvements for law of war/IHL as opposed to arms control. I find this surprising to a certain extent. While there are principles that always apply to ALL weaponry (distinction, proportionality and necessity – and, of course, prohibition of unnecessary suffering), I would argue that neuro-non-leathal weapons are a definite grey area. (As The Royal Society report notes, altering someone’s sensory perception has radical implications for notions of responsibility in the prosecution of war crimes.)

Second, Bousquet’s last point is interesting in that it reflects the constant quest over the last century and a half to develop weapons that would end the need for the use of kinetic force. I’m presently reading P.D. Smith’s Doomsday Men a social history of the application of science to warfare and weapons of mass destruction which traces the development and logic behind such weapons that were supposed to be so terrible that they could never be used – or if used, would be so terrible as to inspire an end to warfare. This was the case for chemical/gas weapons and eventually the atomic bomb – the thought behind many of their creators that their mere possession would be enough to stop countries from fighting one another full-stop because the consequences would be so terrible.

As Smith demonstrates in his book, such a theory of non-use of weapons was a frequent theme of the science fiction literature of the time, particularly that of HG Wells:

The United States of America entered World War I under the slogan of ‘the war to end all wars’. Never has idealism been so badly used. From Hollis’ Godfrey’s The Man Who Ended War (1908) to H.G. Wells’s The World Set Free (1914), the idea of fighting a final battle to win universal peace had gripped readers in Europe and America. Wells’s novel even introduced the phrase ‘war that will end war’.
Once again, science played a vital role in these stories. A new figure emerged in pre-war fiction – the saviour scientist, a Promethean genius who uses his scientific knowledge to save his country and banish war forever. It is the ultimate victory for Science and Progress…

As James writes, these works of science fiction promoted the idea that “through revolutionary science and the actions of an idealistic scientist, war could be made a thing of the past.” In some works a terrible war is required to win the peace through science, but it is clear that in the view of many of these pre-War “science romance” novels (which would go on to inspire many of the future atomic scientists working on the nuclear bomb) that super weapons could stop war.

Should we then read neuro-weapons in this light – as part of the constant scientific quest to develop weapons which will end the need to fight?

War Crimes and the Arab Spring. Again.

The direct targeting of actors protected under the laws of war has been one of the most disturbing trends arising out of the Arab Spring. For example, the targeting of medical workers and ambulance drivers was well documented and reported on last year. Additionally, here at the Duck we’ve been following the issue. In recent months Dan Nexon wrote about the targeting of doctors who treated protesters in Bahrain and I’ve bloged about the growing concern of the ICRC who have seen themselves and their workers targeted. Unfortunately, this trend has continued into 2012. In January, the vice-president of the Syrian Red Crescent Abdulrazak Jbeiro was shot and killed in circumstances described as “unclear” – an act that was widely condemned by the the ICRC and officials world wide.

The deaths of Marie Colvin and Remi Ochlik are an example of another neutral actor in wartime that has frequently been targeted – the press. Accredited journalists are protected under the laws of war, specifically the 1949 Geneva Conventions and Additional Protocol I. If they are wounded, sick (GCI 13(4)) or shipwrecked (GCII 13(4)) they are given protections. If they are captured, accredited correspondents are to be given POW status. (GCIII 4A(4)). Additional Protocol I devotes an section to the protection of journalists:

Art 79. Measures or protection for journalists
1. Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1.
2. They shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians, and without prejudice to the right of war correspondents accredited to the armed forces to the status provided for in Article 4 (A) (4) of the Third Convention.
3. They may obtain an identity card similar to the model in Annex II of this Protocol. This card, which shall be issued by the government of the State of which the Journalist is a national or in whose territory he resides or in which the news medium employing him is located, shall attest to his status as a journalist.

(A good and longer summary of the rules may be found here.

It is true that these rules in the 1949 Geneva Conventions and API are for international (and not internal) armed conflict. But as non-combatants the direct targeting of these individuals would also be illegal under any legal framework. Further, it can be argued that directly targeting aid workers and journalists is a clear violation of customary international law for both international and non-international armed conflict.

This is, of course, on top of the relentless shelling, bombing and targeting of civilians by Syrian forces. While the deaths of these journalists once again highlight what is going on, we should not lose sight of the fact that it would seem, at best, thousands of civilians have died in the conflict since last year. The methods employed by the Syrian armed forces come nowhere near the standards by which we measure the conduct of hostilities.
Worse, it is clear that civilians are suffering great deprivations as a result of the uprising and crackdown. This has lead the ICRC to specifically request access to the civilian population in order to deliver food, water, medicine and fuel.

Last year the ICRC launched a campaign about that which impedes the delivery of assistance and aid in areas of hostilities and armed conflict. Certainly, a consequence of the Arab spring has been to highlight how fragile many of these international norms are. I am not going to pretend that I have any amazing solutions to the crisis in Syria – everything seems like a pretty terrible option. But there can be no doubt that we should be standing up for the laws of war and demanding that Syria’s ‘allies’ (Russia and China) place pressure on Syria to respect international law. At a minimum this is the very least we – and they – can do. The right to deliver humanitarian assistance and the protection of aid workers has long been established in international law. And significantly, this includes UN Security Council Resolution 1502 which (having been adopted unanimously) both Russia and China voted for in 2003.

More on Gotovina

Ante Gotovina

Last week I wrote about targeting and mentioned the Gotovina Case. This case has become interesting for those interested in international law and post-conflict justice because of the decision of the court (among other things) effectively states that a 4% error rate in targeting in a complex military operation was tantamount to a war crime.

As I said in the post, the decision prompted several laws of war scholars (many of whom were former JAGs) to have a roundtable at Emory University on the decision and subsequently write up an amicus brief  supported by 12 international law experts from the US, Canada and the UK which was submitted to the appeals chamber at the ICTY. This prompted a response from the prosecution which may be read here.

What I didn’t realize, however, was that the Court was deciding that day to reject the amicus. You can read their decision here.

I must admit that going through the Court’s decision does not inspire confidence. That the decision begins with a discussion about the word length is… like something I might write at the END of my comments on a student essay.

Next, in the brief “Discussion” of the merits of the arguments, the court briefly states that it is “not convinced that the applicants’ submissions would assist in determining the issues on appeal”, and invokes procedural rules for submitting evidence. It further states that the amicus brief is problematic because it does not identify the fact that one of the authors, Geoff Corn, was an expert witness for the defence. Given that this later point should have been pretty obvious and they are already lecturing the authors for going over the word limit, you wonder how this should have been done? Or why this is a matter of substance in deciding the merits of the worth of the amicus?

Either way, the Court uses these points to reject the amicus in a brief dismissal that I find wanting. Disappointingly, the amicus has been dismissed on rather procedural and technical grounds. And this is important: if international courts are going to be making controversial decisions suggesting that a 4% error rate is tantamount to a war crime and if they reject advice on this matter because someone didn’t explicitly attach a CV to an amicus that violated the 10% +/- rule, I am concerned. And you have to wonder what kind of message this send to countries thinking about signing up to war crimes courts/trials?

Regarding my post from last week, Geoff Corn responded in the comments to direct readers to his SSRN paper on the matter. I would definitely recommend interested Duck readers to take a look.

Clearly, Gotovina remains a case that should be closely watched. The man himself remains a controversial figure. Being concerned with his trial is not to say he is not guilty of some crimes. However, it is clear that many experts in this area are concerned about logic employed by the ICTY on several important aspects of the case and the future implications of war crimes trials.

I look forward to more reaction from the amicus authors and other scholars on this matter.

Targeting…targeting: What are reasonable expectations?

Blue moon, you targeted me standing alone…

Yesterday Charli wrote a post on whether or not those opposed to the use of drones should use the concept of “atrocity law” instead of “war crimes” or human rights violations.

I wonder if others who generally oppose “targeted killings” think the concept of “atrocity law” might be a more useful way of framing this problem publicly than talking about “war crimes” or “human rights” specifically – concepts that by their nature draw the listener’s attention to a legal regime that only partially bears on the activity in question and invites contrasting legal views drawn from contrasting legal regimes.

Charli asks this question given that:

I think there is significant and mounting evidence of normative opposition to the targeted killings campaign (regardless of arguments some may make about its technical legality under different legal traditions), and according to even the most conservative estimates it meets the other criteria of a significant number victims and large-scale damage. No one can doubt it’s highly orchestrated character.

I’m going to go with “no” on these questions. First, unlike Charli, I’m not certain there is “mounting evidence of normative opposition to the targeted killings campaign” in anything other than the protests of a relatively insular group of legal-academics-activists (Phil Alston et al) who tend to be critical of these kinds of things anyway. In previous posts I have raised doubts about whether or not we can determine if targeted killing is effective, and how some activities have challenged and changed legal framework for the War on Terror. However, if anything, I think there is growing consensus within the Obama administration that the program works, it is effective and I think it is popular.

Additionally, I do not see how invoking the term “atrocity” will get us beyond many of the political problems involved in invoking other terms like “human rights law” or “war crimes”. If anything, “atrocity” seems to be an even less precise, more political term.

However, I think this conversation points to a third, larger issue that Charli is mostly concerned with – civilian death in armed conflict. Or, to put it another way – What expectations may we reasonably seek to place on our states when they carry out military actions? Those who write, research and teach on international law typically anchor their discussions in the legal principles of proportionality, necessity and distinction. However, these are notoriously vague terms. And, as such, when it comes to drones, many argue that these legal principles are being undermined.

In thinking about this question, I’ve been reminded of the recent controversy over the decision of the International Criminal Tribunal of the former Yugoslavia in the Gotovina Case. In it, the Court ruled that a 4% error rate in targeting in a complex military operation was tantamount to a war crime. Four percent.

Was this a reasonably conclusion for the ICTY to make? Are militaries (and the military in question here was not a Western military dealing with high-tech military equipment) really expected to do better than a 96% accuracy rate when it comes to targeting? And if so, on what grounds can we (or the Court) say this is the case? And, bringing this back to Charli’s post, would we benefit from thinking about a 4% error rate in terms of “atrocity”?

There are two very good summaries of the case at Lawfare and IntLawGrrls for more background information on the case. Some concerned former military professionals (many of whom are now professors) – admittedly, another insular group of legal-academics-activists of a very different source – have put together an Amicus Brief for the Gotovina Appeal which is well worth reading.

However, immediate questions of legality aside, I think this raises a larger question as to what we can reasonably expect from military campaigns, especially what levels of accuracy. Are all civilian deaths “atrocity”? Historically, the laws of war have said no – that proportionality may sometimes render it permissible (if no less regrettable). And I believe that all but the most ardent activists would agree with this historically rooted position. But it is clear that our perceptions of reasonable death rates have changed since the Second World War. So the question is what governs our ideas about proportionality and civilian deaths in an age of instant satellite imagery, night vision and precision guided weaponry? Unfortunately, I’m not sure the drone debate has given us any useful answers nor the basis to produce them.

I appreciate that there are important differences here – the military is, in theory, a hierarchical chain of command that is obliged to follow the laws of war. The CIA (who carries out the drone program) are civilians who do not meet these expectations and their status in law is questionable. But status here is not the issue (at least for this blog post and how it relates to Charli’s concerns). Instead, it is whether and at what point civilian deaths may be considered “atrocity”, on what basis we can and should make that decision and whether that language would make any useful or practical difference.

There is no doubt that recent move to a “zero-civilian death” or high expectations of few casualties has been rapid. Certainly it is at least part of the increased legal activity by governments, IGOs and NGOs in the realms of international law and the laws of war. However, I think it is also the result of a false promise that better technology can allow us to have “clean” wars. It is a promise that is made by governments to their populations, but one that has also clearly influenced activists in terms of their expectations – whether they are set in terms of laws, rights or atrocity.

Anwar al-Awlaki and Targeted Killing: A quick, first, and uneasy reaction

*post written with comments from fellow duck Ben O’Loughlin

The world media is reporting that Anwar al-Awlaki has been killed in Yemen – although details are very sketchy at this point.

It is very clear to me that Awlaki was not a particularly nice person – he advocated some rather terrible things (even before 9/11 supposedly radicalised him). His followers have been certainly linked to terrorism, including the Fort Hood shooting.

However, I must admit that I am somewhat troubled by this turn of events. Earlier this year I suggested that the targeted killing of bin Laden was acceptable under international law. He’s been linked to the financing and organising of terrorist attacks around the world and this was well established before his death.

But I have yet to see any reports that suggest that Awlaki has been tied to any material support for terrorist attacks. I think this changes the legal game substantially. It essentially is suggesting that *we* (whoever that is) are now targeting people for their ideas rather than they are actually doing. Pushed to its logical extreme, a person might unintentionally inspire others to commit violent acts. Should they be eliminated?

I’m no fan of Awlaki and I will certainly not mourn his passing, (really – he seems like a total jerk) but this raises serious questions about the targeted killing program, who is being targeted and why. Presumably, in the case of targeted killing, its important there is evidence BEFORE the killing, rather than a scrabble now to piece together a case, after the fact.

I hope there is evidence that he actually materially supported terrorism.

Edit: Will McCants has linked to an article at Foreign Policy from November 2010 which argues the case for taking out Awlaki. I still have mixed feelings about this. I will feel better if there is a case/dossier of evidence that can be brought forward – and I still maintain that this case should have been made before striking out at him. 

The US Department of Defense Law of War Manual: An Update

They’re updating this.

I have a report in the 2009 (they’re a bit behind…just go with it) Yearbook of International Humanitarian Law on efforts to produce a new service-wide US Department of Defence Law of War Manual. This would replace FM 27-10 and (should it ever see the light of day…just go with it) will be an incredibly important statement of US practice on the laws of war.

I consulted on and observed this project from August-December 2009 and I keep in contact with some of the editors. The description of the Manual (and estimate of delivery) are now outdated, but there is a good description of the process and methodology behind it. I can’t go into any more details than that (there is a crazy on-going process) but it is “an update” for those who are interested. Here’s the abstract:

One of the major legal instruments the US Department of Defense (DoD) will be relying on in terms of planning and carrying out its activities in the near future is a new law of war military manual which is expected to be published sometime in 2011. While on the surface such a document may not seem of critical interest to those interested in security/strategic studies or to humanitarian activists seeking to ban rather than regulate violence, there are important reasons to place a certain amount of emphasis on this DoD product and to expect that it will have a significant impact, especially on issues that are presently widely debated within the humanitarian legal community.

Safeguarding medical workers in hostilities

Yesterday the ICRC released a report on the very scary and depressing trend of attacks on medical workers in situations of armed conflict and civil disturbances:

According to Dr Robin Coupland, who led the research carried out in 16 countries across the globe, millions could be spared if the delivery of health care were more widely respected. “The most shocking finding is that people die in large numbers not because they are direct victims of a roadside bomb or a shooting,” he said. “They die because the ambulance does not get there in time, because health-care personnel are prevented from doing their work, because hospitals are themselves targets of attacks or simply because the environment is too dangerous for effective health care to be delivered.”

This makes for some pretty grim and reading.

Yet the evidence is clear – whether it is the targeting of medical workers in Libya, the targeting of a hospital in Afghanistan by the Taliban, or the unwarranted persecution of doctors in Bahrain. (A problem that Dan Nexon highlighted earlier this year here at the Duck.)  Even the allegation that the CIA found Osama bin Laden using a vaccination program puts medical workers and vaccination teams at risk – a potential disaster for global health.

(Aisde: Most, if not all of these issues, are being followed by Christopher Albon at his excellent blog, Conflict Health. Go read it. Read it now!)

The neutrality of medical staff in all circumstances is a core tenant of the laws of war, and some of its oldest codified principles. There is, quite simply, no excuse for harming someone who is engages in these tasks. This was the genius of the 1864 Geneva Convention:

Article 1. Ambulances and military hospitals shall be recognized as neutral, and as such, protected and respected by the belligerents as long as they accommodate wounded and sick.
Neutrality shall end if the said ambulances or hospitals should be held by a military force.
Art. 2. Hospital and ambulance personnel, including the quarter-master’s staff, the medical, administrative and transport services, and the chaplains, shall have the benefit of the same neutrality when on duty, and while there remain any wounded to be brought in or assisted.

These principles continues today as is clear in the First Geneva Convention of 1949. At the risk of being long-winded:

Art 15. At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.
Art. 19. Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict. Should they fall into the hands of the adverse Party, their personnel shall be free to pursue their duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments and units.
The responsible authorities shall ensure that the said medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.
Art. 20. Hospital ships entitled to the protection of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, shall not be attacked from the land.
Art. 21. The protection to which fixed establishments and mobile medical units of the Medical Service are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.

The idea behind this is that someone who is seriously injured is hors de combat – in other words, out of the fight, and can no pose a military threat. Allowing someone’s wounds to fester or get worse serves no military purpose once they are hors de combat; it only causes what is normally termed unnecessary suffering. (This is the same principle that bans poisoned weapons – there is no need to uselessly aggravate an injury on someone who is seriously wounded.) The individuals who treat these injured combatants (and civilians) of all sides must therefore be protected from attack. This is why they are allowed to wear the Red Cross/Red Crescent/Red Crystal symbols – it identifies them as neutral medical workers and helps to expedite the process of recovery and treatment. (Abusing these symbols, such as using them as a ruse to conduct an armed attack, is a grave breach of the Geneva Conventions.)

Certainly, there is more law I could cite here. But the main point is that the ICRC is absolutely correct to highlight this as a growing problem.

Harold Koh at Opinio Juris: “Killing OBL was Legal.”

Like Robert Haddick, though for different reasons, I was glad to see a State Department spokesperson publicly issue the legal justification for the manner in which the OBL raid was carried out.* Also as a blogger, I was delighted to see the explanation take the form of a much-trumpeted guest post at Opinio Juris.

Slightly disappointed, however, at the content of the post, posted earlier today.

To begin with, Harold Koh focuses solely on jus in bello concerns, although important legal questions were about whether it was legal to conduct the raid on Pakistani soil. I can imagine a number of ways you could argue that case, any of which would have been fascinating from a norm development perspective, so I’m disappointed the State Department is so opaque on this.

Koh also spends over half the post simply pasting in his comments on drone warfare last year – interesting since drones weren’t even used for this operation. It makes some sense, however, given that the real issue with drones isn’t the drones – it’s targeted killings.

The most interesting part of the argument, however, and what we should watch for commentary on in the next few days, is Koh’s comments on the law of surrender – addressing the conditions under which bin Laden would have been captured instead of killed. Here is what he writes:

Consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender [my emphasis]. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

Now, I do not understand the law of surrender perfectly, and when I went to look it up I had a hard time identifying the appropriate clauses, though I’ll update this post as soon as I hear back from people trained in the nuances of Hague and Geneva law. (Help, Stephanie?) But in my non-lawyer’s understanding the requirement to accept surrender if it is requested is not contingent on any contextual understanding of whether in the judgment of belligerents the circumstances render it ‘feasible’.**

Milbloggers who have commented on the bin Laden raid echo this understanding – here for example is Ghosthawk:

Look, in war, if someone is attempting to surrender, you have a legal and moral obligation to accept that surrender.

Ken Anderson, on the other hand, who is actually a lawyer, tells us at Volokh Conspiracy that Koh’s articulation is entirely consistent with both treaty law and the UCMJ:

This is the international law standard in the laws of war for surrender, and it is the standard applied in operational law by US JAG in operations in Afghanistan on a regular basis — in conventional operations as well as special operations. I had some fears that, in order to present what was apparently a marvelously clean operation in terms of targeting and collateral damage in its most favorable light, the administration might be tempted to raise the bar on the law of surrender. It is an act in the law of war that is much more fraught and difficult in many circumstances than it might appear. But the Legal Adviser has stated the law as it is, and as it is operationally applied by US forces on a regular basis.

Unfortunately Ken doesn’t point us to the specific provisions in his post, so that we can interpret them for ourselves. I hope to get you more on this as my own understanding improves, and I can’t wait to use this as a case study in Rules of War next year.

The open thread on Koh’s remarks is here.

*(More on the latest details of the raid here. Kavetching about the coverage of raid details here.)

**To be absolutely clear, I am not claiming that bin Laden tried to surrender, or that Seals were required to offer him that option if he didn’t ask for it. I’m saying that hypothetically if he had asked for it, I am unfamiliar with conditions under which it would have been legal for troops to then kill him anyway due to it being “infeasible” to accept his surrender.

Reciprocity and International Law: A reply to International Jurist

On Wednesday, Xavier Rauscher at International Jurist posted his response to the hullabaloo over international law and the death of bin Laden. I’ve said my piece on it here and I’m getting tired of the issue, but Rauscher’s post is interesting because he tries to look at the “big picture” – noting that the manner in which bin Laden was killed has thrown more fuel on the fire over the “war on terror” vs “law enforcement” debate.

He also notes the commentary surrounding the fact that the debate over the issue seems to highlight the fact that within international politics we now seem to have two incompatible understandings of what international law is. Rauscher quotes American University Law Professor Ken Anderson who blogged at The Volokh Conspiracy on this point:

…what we call international law has been fragmenting for some time now into different “communities of interpretation and authority” as I somewhere called it. (…) Those communities have moved sufficiently far apart that they no longer share a common basis for authoritative interpretations of international law.


While disagreeing with the “conservative” tone, Rauscher responds:

It is important that the doctrinal debate on applicable international law does not lose touch with existing State Practice and more specifically States’ security concerns, lest international law becomes less relevant and hence loses its already relatively weak authority. While I am not arguing that international lawyers need to cave in systematically when confronted with a powerful State’s slightest whim, we must be always careful to address the security needs of States and offer credible and effective solutions to such issues. In the great scheme of things, international law should always be presented as a toolbox of solutions, not problems that may be negatively perceived not only by the States, but public opinion as well.

I agree with this sentiment very much.

However, I do have one major concern about the argument that Rauscher seeks to put forward:

The reason for the urgency is something that people like Kenneth Anderson completely miss in their discourse: that international law, and the international system as a whole, is founded on a fundamental principle that is reciprocity. To claim the right to invade “rogue States” for murky security reasons, to indefinitely detain “enemy combatants” in a never-ending conflict, or to send drones to kill terrorist suspects all over the world is one thing when you are the United States and believe you are a force for good – but it’s a whole other thing when other States, with perhaps less honorable goals, build their own policies on such dangerous precedents to the disadvantage of international peace and security.

There is a danger lying here in invoking reciprocity and I think the implications of it may take Rauscher to a place he may not want to go. Effectively, the principle reciprocity is what neo-conservatives in the United States have put forward as the reason to deny Guantanamo detainees any rights whatsoever. They don’t play by Geneva’s rules (or any rules, really), therefore they don’t have the right to expect treatment by the rules in turn. For example, as Alykhan Velshi and Howard Anglin have argued:

The Geneva Conventions are by no means anachronistic; they remain the proper legal framework for waging a conventional war against a regularly constituted army. But applying the strict letter of the Geneva Conventions to Islamist militants is like applying the Queensbury Rules to a donnybrook. When terrorists have shown no interest in abiding by the Geneva Conventions, it is naïve to think that we can shame them into doing so by treating them as though they have. The best way for the United States to honor the Geneva Conventions is to enforce the principle of reciprocity and deny Geneva protections to those who scorn them.

There are many other sources one could point to hear as well.

Part of the issue here is that the role of reciprocity in enforcing the law of armed conflict is not clear. The ICRC categorically rejects the idea that it plays a role in the enforcement of the laws of war (citing the first two common articles to the Geneva Conventions). However, whether or how this take on reciprocity applies to the full spectrum of war law is unclear. Keeping with Rausher’s point about state practice, I think it is fair to say that no state will constantly agree to suffer such grievances forever. As Yoram Dinstein maintains in his book on the law of armed conflict, expecting a state to do nothing in a cases involving a blatant and persistent violation of the laws of war is not reasonable and that the laws of war should not be based “on the unreasonable expectation that, when struck in contravention of LOIAC, the aggrieved State would turn the other cheek to its opponent. This sounds more like an exercise in theology than in the law of war.” (p.26)

I find myself agreeing with Dinstein,that there is still a basis for reciprocity or reprisals in the enforcement of law. However, at the same time, I would say that international law is pretty categorical on the prohibition of reciprocity against individual victims. One needs only look at Common Article 1 of the 1949 Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

So we need to be cautious when we invoke reciprocity, particularly as it relates to the War on Terror. But despite the lack of a precise agreement over the concept, arguing that the fundamental basis of international law is reciprocity full-stop, particularly when it comes to the laws of war, is potentially very flawed. It may be fairer to say that “what goes around comes around”, or warn of the danger of precedent, but the way that Rauscher states it is probably not legally correct (although I stress that he is the actual lawyer and I am the fake one). Worse, it’s an argument that has been used to justify many of the things that Rauscher is warning against.

The bin Laden Killing and Assassination Explained in 4 Paragraphs Not By Me

At the risk of beating a dead terrorist horse, I want to cite W. Hays Parks (former Special Advisor to the Office of Legal Counsel on Law of War Issues at DoD, JAG and possible stand in for Clint Eastwood in that Grand Torino movie) on the Osama bin Laden assassination/murder/killing debate that has kind of been driving me nuts.

In a response letter in the Washington Post, Parks writes:

The May 2 lead story by Scott Wilson and Craig Whitlock on the death of Osama bin Laden was well written and reported. But on the continuation, the story referred to the deadly attack as an “assassination.” It was not.
Executive Order 12333 prohibits but does not define assassination. In 1988, as a civilian attorney in the Office of the Judge Advocate General of the Army, I researched the issue to define assassination. I coordinated my draft opinion with the judge advocates general of the Navy and Air Force; the general counsel of the Defense Department; the general counsel of the Central Intelligence Agency; and the legal adviser of the State Department. In 1989, the Army’s judge advocate general signed an unclassified memorandum defining assassination to provide clarity to the prohibition. It was provided to the House and Senate intelligence oversight committees and was published in the State Department’s volume of significant international law documents.
Assassination is murder committed for political purposes. The killing of enemy military personnel in time of armed conflict is not assassination.
Nor is it assassination to attack the leadership of armed non-state actors such as Osama bin Laden who have been and remain engaged in planning and executing armed attacks against a sovereign state. Because bin Laden was a lawful target, the attack was neither murder nor assassination.

I think this pretty much sums it up for me. Well that and this line from Roger Cohen:

If there is greater fatuity than second-guessing the split-second decisions of commandos confronted by gunfire, knowing the compound may be wired to explode, and hunting a serial mass murderer unwilling to surrender, then I am unaware of it. Let post-modern, pacifist Germans agonize, and whoever else wishes to writhe on a pin. The rest of us can be satisfied.

Me, and my fake-lawyer self could not care any less about this issue, unless it somehow involved the Royal Wedding.

A Beast in the Heart of Certain Small Units


Excellent in-depth discussion of the Stryker Brigade in the New York Times. What’s great about this piece is that the author goes into considerable depth to understand the structural context behind the so-called “Kill Team”‘s campaign of recreational murder against civilians, and resist the seductive and typical “bad apple” story.

That said, I think this piece over-determines the impact of simply being in a conflict zone and under-emphasizes the significance of unit structure and culture. It’s true that the longer a war drags on the greater the likelihood of some units ‘going rogue’ in this way. It’s also true that certain field conditions – boredom, isolation, loss of one’s comrades – increase the likelihood of atrocity. But within that context, some units commit atrocities and others don’t. A number of studies, including this one from Sierra Leone, this analysis of rape warfare, and another study on IDF units that I can’t yet cite because it’s not yet published, demonstrate that it is variation in the composition and disciplinary culture of small units themselves that account for variation in atrocity. Large-unit commanders may have little control over what small units are doing, but they have considerable control over the composition and disciplinary culture of those units.

For my part, I’m more interested the following aspects of this story, which come later in the piece or are not discussed at all:

a) Bad Apples At the Top. The role played by brigade commander Colonel Harry Tunnel, who handpicked the socio-pathic Gibbs to lead the group, and created a climate of disregard for McChrystal’s pro-civilian-protection rules after arriving in Afghanistan. The Army Times had a report on this issue back in 2009. Tunnel has been given a slap on the wrist by the military.

b) The Social Dynamics of Leadership Turnover in Small Units. Curious to know more from scholars or readers with military experience about what it does to an isolated unit out in the field when their leader is replaced by a newcomer who they neither know, like or trust. I have no idea if there’s any relationship between this situation and that leader’s propensity toward a certain kind of leadership style (both to engender unit cohesion with him at the top and to protect himself again fragging), but I know that Sgt Wuterich had also recently taken command of a pre-existing unit just prior to the Haditha massacre (not that the two incidents or unit commanders are otherwise very similar), and I wonder if this is a variable that has been considered or studied at all.

c) The Military Whistle-blowing System. Recruits are trained to disobey unlawful orders, prevent them from being carried out, and report them up the chain of command. As far as I understand it (please correct me or add to this) points of contact would include their military chaplain, the Provost-Marshall, or the Inspector General. But it’s quite unclear to me how someone like Private Andrew Holmes would be in a position to contact any of these individuals from a remote outpost, and to do so without tremendous risk to himself. Specialist Adam Winfield contacted his father by FB chat and spilled his guts, clearly wishing to throw light onto the issue and stop the atrocities. His father correctly contacted a variety of sources, but was told to have his son direct his complaints through the chain of command. Since this would clearly have put his life at risk, Christopher Winfield instructed him to go along for now for his own safety and promised to continue pressuring the authorities. Ultimately Winfield “went along” to the extent of shooting a civilian himself and is now (rightly) on trial for murder (as military law required him to turn his gun on Gibbs instead and he chose to commit a crime).

However it is shameful that the structural context in which he was embedded incentivized this behavior, which he clearly knew was wrong, rather than disobedience and whistle-blowing. The military does a fine job at protecting its troops from enemy harm through training and force protection measures. Shouldn’t they also be protected from retribution by their own units for disobeying manifestly unlawful orders? There is something wrong with putting such a burden of just conduct on troops in situations where their own life is at risk, without keeping in place a system by which they can do the right thing at a reasonably small risk to themselves. I think he US military needs to seriously reconsider the mechanisms in place for enlisted personnel to report unlawful activity anonymously; and if it won’t perhaps the NGO sector should step in.

[cross-posted at Lawyers, Guns and Money]

Shabby Sheik: Gaddafi’s ‘fashion’ and cultural property

As much as the proposal to put Mummar Gaddafi’s outfits up for display at the Costume Institute of New York should be true in a fully just world, I would imagine that it isn’t.

Alas, the West shall be deprived of “four decades of Colonel Gaddafi’s superior dress sense”. And we are weaker for it.

However, this did get me thinking. Could Libya make a plausible case that Gaddafi’s outfits (which have been out-Gaga-ing Lady Gaga since well before she was born this way) are in fact ‘cultural property’ under the 1954 Hague Cultural Property Convention?

According to Article 1 of the treaty:

For the purposes of the present Convention, the term “cultural property” shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

And how could you argue that this isn’t a “work of art”?

If a plausible argument can be made there are some serious targeting implications for NATO. (Provided, of course, the Libyans first mark off where the outfits are with the appropriate sign.)

Article 4 states:

1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.
2. The obligations mentioned in paragraph I of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.
3. The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall, refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.
4. They shall refrain from any act directed by way of reprisals against cultural property.
5. No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3.

You know, everything that didn’t happen in Iraq.

Of course there is also “immunity from seizure,capture and prize” – so none of the European military advisors on the ground will not suddenly be wearing lots and lots and lots of gold braid.

Oh – and even if the Libyan conflict is not of an international character (Certainly the NATO campaign is, but the civil war might not be!) there are still fundamental guarantees under Article 19:

1. In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property.
2. The parties to the Conflict shall endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
3. The United Nations Educational, Scientific and Cultural Organization may offer its services to the parties to the conflict.
4. The application of the preceding provisions shall not affect the legal status of the parties to the conflict.

For the sake of humanity, will no one think of the Paco Rabanne sunglasses?

What/When/Where is “War”?

I learned quite a few new things about military law and the rules of war at the Cornell Bombing Workshop I attended last weekend (political scientists who study war law often do when sitting down with actual military practitioners and international law professionals). A short round-up of additional insights will follow, but this one merits a slightly longer post: the International Law Association has released an expanded report on the definition of armed conflict that, if it is picked up on in war law jurisprudence, may change how we think about the legality of things like targeted killings or asymmetric battlespace.

To provide context, a question my Rules of War students often ask me is, given the importance of the concept of “armed conflict” in triggering the applicability of the various Geneva Conventions, what is states’ general understanding of when an armed conflict exists? The basic answer, drawn from the ICRC commentary on the provision, is that if military force is involved, it’s an armed conflict. The Tadic decision at the ICTY further clarifies the conditions constituting “non-international” armed conflict, namely that armed violence must be “protracted” and non-state armed groups must be “organized.” But beyond that there’s not a written consensus on what the term means – certainly not one codified in treaty law – which is usually how I leave it with my students, because it helps them see how gray the law can be, and also why the applicability of various parts of humanitarian law in the “war” on terror has been so contestable.

However, a recent report issued by the International Law Association’s Committee on the Use of Force has affirmed the Tadic understanding of “armed conflict” by emphasizing “organized armed groups engaged in fighting of some intensity” but also drew on a century of historical practice and jurisprudence to make some claims about what constitutes differing degrees of “intensity,” “organization” or “protraction.”

Most interesting however is the claim on p. 32 that:

“states rarely recognize armed conflict beyond the zone of intense fighting.”

This argument, coupled with the report’s criteria of “intensity,” would provide some interesting insights into the applicability of an armed conflict legal frame (rather than a law enforcement frame) to those individuals not presently “engaged in hostilities” nor positioned “in a zone of intense fighting” but deemed by US officials (in the ICRC’s parlance) to occupy “continuous combat function.”

An example given at the workshop, for instance, is whether the Taliban (if it could) would have the right to target a civilian CIA drone pilot in Langley on her way home to dinner with her family from the compound in which she had recently launched remote missiles against targets in Pakistan. Precedent established by the US would probably suggest yes (assuming collateral damage were minimized and requirements of necessity were met), at least insofar as an equivalent civilian participant in armed hostilities in Pakistan would constitute a legitimate target even when not directly participating due to the ‘continuous combat function’. (I am not myself arguing this formulation is correct; I am drawing out the normative implications of the argument made by the USG on targeted killings.) However the ILA understanding would say no: conditions of armed conflict are not occurring in Langley VA simply because the geographic location is being used to make targeting decisions, therefore the law of armed conflict wouldn’t apply.

I’m not sure what I make of this implication (or if I even understand it correctly – Stephanie will no doubt let me know if I don’t) but I thought it interesting enough to share and have readers discuss.

[cross-posted at Lawyers, Guns and Money]

More blogfare on lawfare

In my Friday post I forgot to give a shout out to Ben Wittes and the Lawfare Blog who have been writing about this since last fall. In particular, they had an excellent series of posts on the concept (but way of a discussion of the Rule of Law in by Brigadier General Mark Martins (in Centcom and apparently in Afghanistan) on the concept here, here and especially here. (He offers his own interpretation of “lawfare as COIN”). It’s a very interesting discussion and highly relevant for those interested in these issues. (Although late to the party, I do mean to write my own response to this – although he lawfare blog has that too.)

However, I’m here because my mortal enemy Charli Carpenter has an excellent post in an ongoing discussion of lawfare. Rather than more speculating over the meaning of “lawfare”, she resorted to asymmetric tactics and just went and asked Charles Dunlap, originator of the term. (While I’m inclined to believe that this was a distinctly unfair advantage, unlike war, all is fair in love and blogging.)

Now, since it just so happens that I’m sitting next to Charlie Dunlap at this bombing workshop, so I’ve had time to ask him directly about where he sits in all this and what he meant by the term. He tells me he agrees that the term has generally been misused and over-conflated. But his own understanding of lawfare is a little broader than the one I’ve put forward at the Duck, though significantly narrower than Stephanie’s or Eric Posner’s. In short whereas I read Stephanie as arguing that “lawfare” should refer to all efforts to hold states’ accountable to the law, Dunlap refers to the ways in which law is used as a weapon in war by belligerents.
However I was wrong in thinking that he primarily refers to the near-perfidious use of the law by insurgents who, for example, are known to surround themselves with civilians simply because they know it makes ISAF troops less likely to target them. Dunlap also considers it “lawfare” when law-abiding states use their own adherence to the law to their own advantage – when ISAF, for example, advertises its civilian protection policies to win hearts and minds. So it’s a belligerent-focused concept, not necessarily one that focuses only on perversions of the law. This is quite distinct however, from the argument that “lawfare” is being waged by non-belligerents (NGO advocates and such) by definition when they call states to question for violating war law.

If you have any interest at all in this topic, I highly suggest that you read it.

In my defence, I just want to make clear that my points in my original post were:

  • Everyone uses the term differently and it’s being used to describe entirely different phenomenon.
  • I’m therefore not sure how useful the concept is. Maybe it just refers to the political battles over the law which have always existed, but intensified after the Cold War.

So I don’t/didn’t think lawfare should just refer to all efforts to hold states’ accountable. I definitely do not agree with Posner’s position. It’s not just academics criticizing states to score political points, but it’s also states using the law to score their political points. I basically saw it as a point scoring exercise by everyone.

But I would concede that this is, perhaps too large of a definition.

Dunlap’s comments on his use of the term – as a way to get states to take IHL seriously (which until the mid-1980s was taking a bit of a beating in the wake of Vietnam) – meshes pretty well with my research on attempts of US military lawyers to do just that.

So, given the above discussions and further thought, I guess I will forward my own modified, particular, super basic and no-doubt flawed interpretation of lawfare as “the use of law as a tool as relates to the conduct of military operations”. This would be the use of law to achieve an aim, whether it is to sharpen the sword, blunt it (or just getting your superiors to take you seriously.)

How’s that? (Seriously – I’ve really enjoyed the feedback on this.) Unfortunately, I don’t have Dunlap to ask – but, um, my Dad thought that sounded good. So there!

How fares “lawfare”?

There has been so much going on with the international law front, it’s kind of hard to know where to begin. In sum:

Oy. No shortage of things to blog about. So let’s go meta, shall we? (With the hope that they’ll be a chance to return to some of these in the next couple of days.)

International law is still hot. It’s the old and new black. We’re getting our law on. I-Law is in the hizz-ay.

In short, based on the above list, it’s clear that law is being used to justify the use of force, to criticize the use of force, to question the use of force and to help us think about the use of force in general.

I make this (somewhat obvious point) in thinking about Charli’s post earlier this week about “Lawfare” where she takes to task Eric Posner’s editorial on the concept. I liked the post, but I think “lawfare” is a far more complicated phenominon than what her argument suggests (although I think Charli was more interested in talking about Posner’s argument than exploring what “lawfare” actually is.)

There seems to be general consensus that the term was created by Charles Dunlap who described it as “the use of law as a weapon of war”. Yet, beyond this, there seems to be little agreement as to what this implications of this means – except everyone seems to use the concept derisvely. Some, like Posner use the term to mean the use of law by NGOs to try and restrict military operations by powerful (particularly Western) states. Some, like David Kennedy suggest it is the manipulative use of law by states to justify violence.

Alana Tiemessen has usefully pointed out the different meanings of the term that were pointed out by the participants at a conference on the term at Case Western University last year:

Despite the speakers frequent lamentations that after much discussion we still don’t know what lawfare is, it origins and conceptual boundaries are as clear as any contested concept can be in the study of law and politics.

For most, the concept of lawfare came to the fore with Charles Dunlap’s initial definition (2001) of lawfare as “the use of law as a weapon of war.” He subsequently expanded the definition to be “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.” Empirically, lawfare has since been applied as an accusation with respect to the detainees in Guatanamo, the Goldstone Report, tactics in the War on Terror, and yes, to question the legitimacy of international criminal tribunals.

With so many different ways to understand the concept – I wonder if “lawfare” is really just a trendy way of describing the politics of international law? And if so, is it really that useful?

I think an argument for “lawfare” being useful could be based on it being understood as a phenomenon: although international law has always been political, the way that non-state actors engaged with it changed in the 1990s (with the classic case being the 1997 Ottawa Landmines Treaty.) And since the 1990s there has been a flourishing of international humanitarian/human rights organizations which monitor international law in armed conflict. International law is being discussed in ways that it never has been before – whether its is because of the media (which makes watching and reporting alleged violations easier), the internet (which makes it easier to research and find) or changing expectations in populations (which demand that wars fought by democracies are fought in ways that reflect democratic values.) So should lawfare refer to this of hyper-discussion and awareness?

The problem with this (at the risk of having set up a straw-man) is that international law, particularly the laws of war, have always been political. Not even the participation of non-state actors is particularly new. ICRC aside, in the 1970s national self-liberation movements (such as the Palestinian Liberation Organization and the African National Congress) demanded and sometimes recieved the right to participate in IHL conferences (such as the Geneva Diplomatic Conferences which wrote the Additional Protocols). And both the United States and Soviet Union (and their client-states) were willing to use international law to score their political points (such as North Vietnam insisting that downed US navy pilots were “war criminals” rather than prisoners of war.)

It’s obvious that discussions and heated debates on international law related to armed conflict will not be vanishing anytime soon, especially as states continue to feel obligated to justifiy their actions in terms of international law and NGOs continue to push for more and more restrictions on weapons. Whether or not we choose call it “lawfare” (however defined) will make little difference.

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