Tag: laws of war (page 2 of 2)

Posner, Dunlap and Lawfare

Eric Posner had a recent piece in The National Interest on the concept of “lawfare,” in which he appears to define “lawfare” as efforts to undermine powerful states’ foreign policy goals by holding them accountable to international norms (he lumps Wikileaks and Human Rights Watch together as two such entities), then to say that NGO activity in this area isn’t really “lawfare,” (well duh) and then goes on to say (conflating NGO activity with lawfare) that actually, the non-state sector is so powerless that really, states like the US shouldn’t worry too much about all this “lawfare.”

Lawfare is both the efforts of enemy nations, terrorist organizations and their supporters to counter American military superiority by threatening U.S. policy makers and soldiers with prosecution and civil litigation, and the pressure brought to bear by NGOs who take to the media marketplace insisting that international law places sharp limits on military action…. But the very idea of lawfare is perplexing. How can “law”—a set of rules applied by unarmed institutions like courts—stand up to bombs and missiles? The answer is that it cannot. Laws do not enforce themselves. If a weak country cannot coerce a more powerful country through force of arms, then it cannot coerce the other country with law either. The lawfare threat is greatly exaggerated…. NGOs advance interpretations of the law, but their interpretations do not have any legal authority, nor can they make, change or enforce the law. WikiLeaks and other media do not demand legal compliance. All they do is push toward transparency and the curtailment of military operations that generate grisly images. In the end, these are political, public-relations and technological threats, not legal ones.

A number of blogs I respect, including the Lawfare Blog and the International Jurist have been surprisingly uncritical about this piece. Rob had some thoughts on this back when the essay came out. For my part, I’d just like to add three things:

1) It’s inappropriate to equate human rights NGOs like Human Rights Watch, who specialize in interpreting and invoking international human rights and humanitarian law, with Wikileaks, which as I’ve argued before has a slim grasp of what the law actually says or how it may be invoked and is more about promoting an emerging norm of information transparency that is not yet very salient as an international norm (though some say it should be).

2) Posner’s dismissal of NGO influence on the law itself is factually incorrect. NGOs have a hand in creating, monitoring and implementing the laws of war. In fact one of the key purposes of the first Geneva Convention in 1864 was to establish the right of neutral aid workers to assist the wounded on the field – acknowledging the role of non-partisan civilian humanitarians to help implement noncombatants’ right to medical assistance. The ICRC’s role as “humanitarian diplomat” and monitor of POW treatment, enshrined in the Conventions, also demonstrates that non-state humanitarian players are a fundamental part of the Geneva regime.

3) But most perplexing is Posner’s misinterpretation of the concept of lawfare itself, whose conflation with NGO advocacy has always been erroneous at best. Of lawfare Charlie Dunlap, who originally coined the term, defined it simply as “the use of the law as a weapon of war.”

But Dunlap wasn’t saying that prosecuting war criminals is an illegitimate tool of war. He was writing about actors who exploit their enemy’s expected adherence to the law as a tactic of armed conflict, as civilian Khaddafi supporters were reported to have done when they volunteered themselves and their families as human shields.

Nor does Dunlap share the view that the promotion of humanitarian norms as lawfare itself. Quite the reverse. As he writes in a more recent article on the concept:

What does all this mean for commanders in 21st-century conflicts? In the first place, it is imperative that warfighters reject interpretations of lawfare that cast the law as a villain.

A better, more realistic assessment is set forth by attorney Nathanial Burney: “[Lawfare] is often misused by those who claim that there is too much law, and that the application of law to military matters is a bad thing that hamstrings commanders in the field. The fact of the matter is that lawfare is out there; it happens. It is not inherently good or bad. . . . It might be wiser for such critics to take it into account, and use it effectively themselves, rather than wish it didn’t exist.”

Besides the fact that law may sometimes offer ways of bloodlessly achieving operational objectives, it is simply historically untrue that [those] who operate outside of humanitarian norms that the law reflects are more likely to succeed

New Executive Order on Detainees: Guantana-No, but action on the 1977 Additional Protocols (kinda)

Not so much.

Lawfare blog has a post on today’s Executive Order on Guantanamo Bay. (Link to the Obama administration’s fact sheet PDF here). Lawfare tends to be more conservative than most international law blogs, but it’s excellent and an absolute must-read for keeping up-to-date on all things law, national security and the war on terror. (Or as I like to call it, Saturday night!) There’s some good commentary on the refusal of Congress to help fund any progress on Guantanamo and some discussion of the return to military commissions.

More interesting for me is the section at the end of the Fact Sheet titled, “Support for a Strong International Legal Framework”. In it, the administration is basically stating that it is going to push for ratification of the 1977 Additional Protocol II to the 1949 Geneva Conventions and that it formally sees Article 75 of Additional Protocol I as customary international law. (Article 75 lists the “fundamental guarantees” in the Protocol for those “persons in the power of a party to a conflict”.)

The section says:

Because of the vital importance of the rule of law to the effectiveness and legitimacy of our national security policy, the Administration is announcing our support for two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions.
Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict.
Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.
Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

My first quick thoughts on this are that this is a big deal and not a big deal.

The United States has signed, but not ratified, the two Additional Protocols. In the 1980s political appointee lawyers, such as Doug Feith (who declared the Protocols to be “law in the service of terror”) worked to undermine efforts to have the US ratify them. (Although, to be fair, this was a position that was supported by the New York Times during this period.) They were successful, and in 1987 President Reagan declared to the Senate that he would not send API to them for ratification, but that he would send (the much more limited) APII through. However, the Protocol has been languishing there ever since.

So in some ways, this can actually be seen as fulfilling an old Reagan administration policy.

However, I think the clear and strong support for Article 75 is important, and will probably be welcomed by many in the international legal community, perhaps at least as a small comfort for the general sense of disappointment that Guantanamo is still around.

Also, while I feel it is a good thing that the administration has formally declared Article 75 to be customary, I think this may be bad news for API advocates overall. The policy is likely a result of the fact that the administration believes that ratification of Additional Protocol I is still a long way off – particularly with Congress’ attitude towards international law, Guantanamo and the war on terror. Additionally, the fact that the administration states (not entirely unreasonably) that it has “significant concerns” over Protocol I (no doubt related to the controversial provisions in Aricles 1(4) and 44(3))  suggests that the overall sentiment towards API has not really changed that much.

Finally, and related to the above point, I would argue that this “fact sheet” seems to confirm a pragmatic Obama policy of trying to work with international law within the constraints imposed by a hostile Congress. While it may not be able to ratify all of the treaties that it (and many in the international legal community) would (probably) like to, it will seek to at least cooperate and work with the international legal institutions and regimes where possible.

QUICK UPDATE – The always interesting and occasionally controversial Ben Wittes gives his take on it here. Short version: Good policy, but too bad that the President and Congress can’t work it out.

QUICK UPDATE 2: (Geeze this is moving quick!) State Department statement on these developments here.

Worst. IHL. Treaty. Evar….

Suspected Mercenaries in Libya

I really do more things than tweeting, but this morning I got up to find that the ICRC had sent out a message that simply stated the title of the Convention of the OAU for the Elimination of Mercenarism in Africa. Libreville, 3rd July 1977 and a link to the treaty.

I can only assume they’re doing it in response to the situation in Libya where it has been alleged that Gaddafi has been using mercenaries (from Chad? Nigeria?They seem to deny it, claim to be ordinary African migrant workers) to back up his regime.

I find this interesting for a few reasons. The ICRC has tweeted the treaty with zero context whatsoever. As if this was a normal thing to tweet out on a Saturday morning in Geneva. But I hear they’re having a bad ski season, so that might explain it.

The other thing is that this treaty is often held up as an example of just how ineffective IHL is at regulating private actors such as mercenaries and private military companies in conflict.

A brief history of the treaty is that it was written in the 1970s when there were concerns that colonial powers and the then-Apartheid government of South Africa – both who were seen as wanting overthrow left-wing/Marxist/anti-colonial governments – were using mercenaries.

Yet you don’t even need a close reading of the treaty to realize what the problem is. According to Article 1:

1. A mercenary is any person who:

a) is specially recruited locally or abroad in order to fight in an armed conflicts;
b) does in fact take a direct part in the hostilities;
c) is motivated to take part in the hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflict material compensation;
d) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflicts;
e) is not a member of the armed forces of a party to the conflict; and
f) is not sent by a state other than a party to the conflict on official mission as a member of the armed forces of the said state.

How could one possibly prove 1(a) and (c) in court? They have to do with motivation which, unless the person was stupid enough to write “HA! HA! Today I am a mercenary and I have been specifically recruited to fight and I am solely motivated by profit! HA! HA!” in their diary, would be something that is easy to challenge in any defence. Certainly if the person said that they were motivated by ideological factors, they would fall outside the definition provided.

As Geoffrey Best is often quoted as saying, “any mercenary who cannot exclude himself from this definition deserves to be shot — and his lawyer with him”.

So while I am sympathetic with the ICRC for reminding one and all about the relevant treaties applicable to the situation, there are some difficulties. I’m actually more concerned that this is fueling an anti-foreigner witch- hunt that seems to be taking place where anyone who is suspected of being a mercenary could be attacked while the situation is so chaotic. Certainly the ICRC could have tried to provide some context?

But even beyond linking to a rather useless IHL treaty, perhaps they might focus on Additional Protocol II (which Libya signed in 1978) or at least its customary provisions. While the application of APII is very rare (and it is a pretty weak Protocol) certainly it’s possible to argue that it’s a point where it is applicable? Or is that to make a normative judgement upon the status of the conflict?

Perhaps the best thing about this situation is to renew discussions about how to regulate private actors in conflict, along the lines of the 2008 Montreux Document.

Strengthening Civilian Protection

My review essay on the protection of civilians is out in Foreign Affairs. I discuss two books – Michael Gross’ Moral Dilemmas of Modern War, and Stephen Rockel and Rick Halpern’s edited volume Collateral Damage. All these authors clearly care deeply about protecting civilians in armed conflicts, and worry in different ways that the existing laws of war are flawed. I have somewhat more faith, particularly in the ability of global civil society organizations to build upon these foundations in order to fill the existing gaps; in fact, as I argue, this process is already underway:

In Moral Dilemmas of Modern War, Michael Gross contends that the current safeguards against civilian casualties are too stringent to address the complexities of today’s wars, barring states from adequately combating irregular forces. Meanwhile, Stephen Rockel and Rick Halpern argue in Inventing Collateral Damage that the current international regulations are too weak, permitting and even enabling states to harm civilians during combat.

From two widely different perspectives, the books cast doubt on the value of the existing international regulations presumably designed to mitigate war’s impact on civilians. But a closer look suggests that these authors overstate the tensions between the laws of war and the modern battlefield and underestimate just how well the existing statutes are working. Although the laws of war require strengthening, they constitute a firm foundation on which to better protect civilians.

Entire essay here.

A Quick and No-Doubt Premature Look at WikiLeaks (Iraq Edition)

Just a few initial observations/questions

1. Iraq Body Count is arguing that the documents help provide further information on civilian deaths.  No doubt this will add further impetus for the call for militaries to release information on casualties killed in armed conflict. I wonder, however, if IBC has to walk a fine line here – if they say that the information released provides information on hundreds or thousands of previously unknown incidents, it means that they are effectively saying their own methodology was flawed. On the other hand if they say that it confirms their numbers, then they undermine their own argument for releasing information.[Update: IBC is indeed saying that the documents “contain an estimated 15,000 previously unknown civilian deaths.”]

Still, I think they are trying to straddle the middle based on this account here.  They’re saying that they are predominantly getting more details (ie: names) from the reports. However, in my mind, this still doesn’t answer the more important  question as to whether it’s really a good idea to publish the names of victims on a database a) during the middle of a raging civil war b) located in a Western country, controlled by a technically unaccountable NGO, where the families have no input or control over what is stated. (But a blog post for another day…)

2. The documents seem to be making clear that although Iraqi detainee abuse is something that the world has associated with US troops at Abu Ghraib, it was endemic throughout the country and it was largely carried out by Iraqis against other Iraqis. Many of these incidents were reported but so far it seems that in many cases that no further investigation seems to have been carried out.

This is interesting in that it seems (on the surface at this point) to reflect the same controversy as to the handing over of Afghan detainees by Canadian troops to Afghan jails. If you hand over a detainee, you are responsible for his or her treatment under the Geneva Conventions. If US troops were handing over prisoners to the Iraqis, knew they were being abused and then did not investigate, this could be a serious violation of the laws of war. Particularly if this was systematic.

It will be interesting to see what comes out of this – what was the logic of not investigating further or sooner?  Some of the immediate explanations (not excuses) I can think of are:
  1. Some of these incidents may have been Iraqis captured not by US troops but by other Iraqis and US soldiers were making observations. If this was the case I’m not sure the law is that clear as to who was responsible – I think it would depend at what point during the occupation that this occurred and who had effective control of the country.
  2. These reflect larger problems with handing over prisoners in conflicts like Afghanistan and Iraq which are very much tied up with the problem of trying to hand over sovereignty. Essentially, a military power is trying to force a country to work, and to have an infrastructure (including prisons) as soon as possible. After all, this is what is expected and what the international community was demanding. So taking over prisons is clearly not allowing Iraq to be sovereign, but not acting may have been a violation of the laws of war. Which is it to be? And I’m sure asking the Iraqi insurgents/leaders/prison guards during the insurgency there nicely to stop electrocuting their prisoners was probably not particularly effective.
    This issue of large numbers of detainees located in prisons that do not meet even the most basic international standards in conflicts where Western nations are engaged in an armed conflict (particularly where the state on where it takes place has a de jure sovereignty, but de facto quasi-sovereignty)  has emerged as a major problem over the last decade and should be taken up by international legal scholars and Western states so as to hopefully avoid this problem in the future.

This is just a first take – looking forward to what others have to say.

The Case Against the Case Against Blast Weapons

A (way) while back Charli posted a link to a report by Landmine Action. The short version is that it is calling for a ban on so-called ‘blast-weapons’ as a method of warfare.

From the outset I’m going to admit that it’s simply not easy to defend things that can blow innocent civilians to smithereens. And I don’t intent to defend the weapons themselves as some kind of fabulous invention. I do, however, wish to take on some of the thinking and insertions in the report as I think that 1) the report is problematic; 2) that there may actually be a case for not banning such weapons – possibly even humanitarian ones. Instead, states AND humanitarians should look to regulation as a more effective alternative.

My response ended up being longer than what I thought so I’m going to attempt to do this over the course of a few posts. I feel that this is important because next year (2011) marks the next round of discussions on the Convention on Conventional Weapons where it is likely that proposals to ban such weapons will be discussed. At recent CCW meetings the inability of ‘militarily significant states’ and restriction-inclined states to agree on bans of certain categories of weapons have lead to separate treaty regimes – famously the 1997 Ottawa Landmines Treaty and the Cluster Munitions Treaty. While the CCW does not get a lot of love or recognition, it will be important for government lawyers and humanitarians to think through these issues now.

In the executive summary of the report it is argued that:

Explosive weapons have a high capacity to damage the social and economic infrastructure on which civilian populations rely. The destruction of housing, power supplies, water and sanitation systems, health facilities, schools, markets, roads and transport links, and energy infrastructure present direct humanitarian problems, deplete local and national capacity for production and growth, and necessitate high levels of reconstruction expenditure, diverting scarce resources from investments necessary to achieving developmental targets

Basically – when bombs land, stuff gets blown up. Sometimes it’s hard to rebuild. This is a major thrust of the report – but it’s hardly rocket science. Blowing something up in war has (or should have) that very purpose – to deplete the capacity of the enemy to resist your will. In doing so, a state is likely to target those things which give the enemy the capacity to resist – which may mean blowing things up which may be hard to rebuild.

So while I don’t object to anything specifically in the above paragraph, I think it is somewhat missing the point. Such actions are usually legal. This doesn’t, of course, make them nice or particularly friendly to populations which will have to rebuild. However, so long as such actions are proportional and militarily necessary, no violation of the law of war is committed.

But there are some very strange passages in the report in which I do strongly disagree. For example:

At the same time, the use of explosive violence by non-state actors is increasing. This report notes that trend and argues that the state-asserted monopoly on explosive weapons is not being maintained in practice. Furthermore the unacceptability of non-state use of explosive weapons is diminished by the failure of states to enact appropriate categorical controls on the use of these weapons in populated areas, or to attend to the relationships of diminished local accountability that such use articulates.

The argument here is that non-state use is effectively legitimized by state use of weapons. To back up this statement, the Report only cites the man who endorses the report in the introduction. (FYI: That’s John Holmes, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator.)

From an international legal standpoint this argument is flatly and categorically wrong. First, there is the rather obvious point that the legitimacy of your actions depends on who you are as much as what you do in warfare. International law has always made a distinction between state and non-state actors – the former (at least in theory) subject to accountability proceedings, military codes of conduct and, if it all goes wrong, potentially severe penalties. The latter has no means for following/implementing the laws of war, nor any mechanisms for training or enforcement within their ranks. And this is a huge difference that the Executive Summary ignores. The report is effectively comparing an indiscriminate suicide bomb carried out in a market to a weapon used, albeit harshly, that was nevertheless likely subject to legal advice and due diligence.

Secondly, this quote seems to somehow be suggesting that one wrong rights another. It’s clear that the author is speaking on a moral level here – but this is again very much untrue in the laws of war and its a misleading statement at best.

There are other similar and even more globalzationish statements throughout the executive summary. For example, globalisation means that we have to now change the way we think we use weapons (without ever explaining exactly why this is):

A context of globalisation and increased transnational interdependence between peoples and states argues for stronger requirements of local accountability for potential users of explosive weapons, and for increasing the burden of justification, and threshold of acceptability, for explosive weapon use;

Why, exactly? Because more people are watching? Because we can now chat on the internet? Because I can “like” the rebel group that I support on Facebook? There has always been transnational links when it comes to weapons, soldiers mercenaries, etc. This is hardly a new thing and not exactly a powerful argument.

Another paragraph in the executive summary also caught my eye:

There is no doubt that weapon technologies developed over the last 200 years have exponentially increased the capacity of humankind to kill and injure itself. Whilst technology cannot be ‘un-thought’, the same period has also provided some grounds for optimism that identified categories of weapon technology can be rendered less acceptable, and hence less likely to be used, by changes in the social and economic context.

Yes – the invention of chemical, biological and nuclear weapons (not to mention MOABs, napalm, etc) have created the potential for many deaths and significant levels of destruction. However, technology has also rendered precision guidance systems that could not have been imagined even thirty years ago. Whereas in the First Gulf war only 10% of munitions were precision guided, 90% of bombs in the Second Gulf war were PGMs.

By no means does this allow for or guarantee a “clean” war – such as what the Landmine Action advocates seem to be seeking. But to suggest that the progress of weaponry has been in an entirely anti-humanitarian manner is incorrect.

I think this may reflect an overall problem with the kind of thinking in the report – namely that it overlooks (or at least fails to acknowledge) that there are obligations on defenders as well as attackers. Defenders have an obligation to conduct their hostilities away from certain objects – centres of religious worship, hospitals, schools, etc. Their presence legitimately renders an immune target vulnerable. Of course, this is what they want – to cause attackers to hit things which essentially “look bad” and to cause international outrage.
After all, this is what has been at the heart of so much criticism of US bombing campaigns in recent years. (Although this cannot excuse casualties in cases of negligence.)

There are also several related issues to this point that one could highlight. First, “dual use” targets – those things which have both a civilian and military use such as a water tower, railways, some factories, etc. In his account of the war in Kosovo, General Wesley Clark made it clear that this was a major hurdle for the allies to get over. Europeans tend to take a much narrower view as to what constitutes a military target when something may be used for both civilian and military purposes while Americans take a much broader approach.

Second, just how much damage may be done? It usually comes down to the inexact science of ‘proportionality’ of which there are two components. First, there is the proportionality in the jus ad bellum criteria. Is our response proportionate to the overall threat? Second, the proportionality of a specific attack to the necessity of what you are trying to accomplish in a particular strike. There is, quite simply, no objective criterion for making a determination on either front. We might be able to recognize a violation of the principle when it occurs (a daisy cutter in response to a dump truck with an AK-47 would be a slightly absurd example) but even then it would probably have to be argued about in the court of international (and quite possibly domestic) opinion.The report seems to be suggesting that long-term damage is disproportionate, but without any context upon which we can measure proportionality, I would argue that from a legal standpoint this is impossible to know and judge without context.

I’m going to leave it here for now, but will shortly be returning to issues of ‘stigmatizing’ weapons and banning on the basis of intent or effects. Thereafter a post on the problems with weapons bans and the approach taken by some humanitarian organizations.

Prisoners of America’s Wars (A shameless self-promotion kinda morning…)

My (first) book, Prisoners of America’s Wars: From the Early Republic to Guantanamo is now shipping on Amazon.com (or Amazon.co.uk, Amazon.ca, etc.). Considering that this would be the closest thing to offspring that I have ever produced, I thought that I would post it in the hope that it may be of some interest to some Duck readers. I’ve pasted the abstract below for that very reason:

Prisoners of war have been a significant feature of virtually every conflict that the United States has engaged in since its revolutionary beginnings. Today visitors to Washington DC will frequently see a black POW flag flying high on government buildings or war memorials and monuments in silent memory. This act of fealty towards prisoners reflects a history where they have frequently been a rallying point, source of outrage and problem for both military and political leaders. This is as true for the 2003 Iraq War as it was the American Revolution.

Yet, the story of prisoners in American wars (both enemies taken and soldiers captured) helps to reveal much about the nation itself; how it fights conflicts and its attitudes towards laws of war. A nation born out of an exceptional ideology, the United States has frequently found itself faced with the contradictory imperatives to be both exemplary and secure, resulting in situations that were sometimes ironic and sometimes tragic. At the same point American diplomats might be negotiating a treaty at The Hague, American soldiers might be fighting against a bloody insurrection where it seemed that little to no rules applied. 

The complex relationship between America, prisoners of war and international law is not one entirely based on exemplary culture or carnage, but on a blend of ideology, historical experience and national imperatives that has challenged presidents from Washington through to Obama. By taking a historical approach, this book demonstrates that the challenges America faced regarding international law and the war on terror were not entirely unique or unprecedented, despite the claims made by the Bush administration or its policies, as claimed by its critics.  Rather, to be properly understood, such dilemmas must be contextualized within the long history of those prisoners captured in American wars.

Stephen King, eat your heart out. 

What “New Rules of War?”

I’ve been meaning to comment for awhile on the Mar/April print issue of Foreign Policy , and I finally got around to posting my observations at Current Intelligence. In brief, for an issue devoted to transformations in the way we fight, what struck me is how completely the authors and FP editors overlooked the ways in which the trends described relate to the law of war:

Even John Arquilla’s lead article misleadingly titled “The New Rules of War” gives no thought whatsoever to the actual moral and legal rule-sets governing war: humanitarian law, the law of armed conflict, and the UN charter regime… This is a pity not only because very few military professionals actually think this way, but also because for every single point made in the issue about military doctrine, force structure, civil-military relations or grand strategy, there are important “rules of war” questions that need some serious consideration by thought leaders in the beltway.

For a variety of examples engaging Arquilla, Luttawak and Singer, click here to read the whole thing.

Worst. Treaty. Name. Ever.

I’m trying to finish up a paper on the 1980 Convention on Conventional Weapons (CCW). But that of course it not the treaty’s full name. No – instead it is:

The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects

Has there ever been a treaty with a worse or more awkward name? Apparently there was some issue as to the name during negotiations on weapons in the 1970s. A Canadian Delegate, William J. Fenwick, suggested an alternate name/acronym: “Causes Unnecessary Suffering [or] Has Indiscriminate Effects” or CUSHIE. Another (American) delegate to the CCW talks notes that “His somewhat facetious recommendation did not meet with success.”

The ICTR Statute has probably one of the longest names I’ve ever seen:

Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994

Long – but it doesn’t seem to quite get to the opacity of the full CCW name. If nothing else, the ICTR name is pretty specific.

Can readers suggest a treaty with a worse name? I’m not sure I can give prizes – but I’ll give you glory… via Twitter…. Amongst my 28 followers…

Unlawful Combatants at the CIA

I’ve been thinking this weekend about Gary Solis’ WAPO op-ed of Friday about CIA drone pilots being unlawful combatants – unlike drone pilots serving in the US armed forces who may arguably be violating the laws of war but at least have the right under international law to engage in combat:

In terms of international armed conflict, those CIA agents are, unlike their military counterparts but like the fighters they target, unlawful combatants. No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war. Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities.

Moreover, CIA civilian personnel who repeatedly and directly participate in hostilities may have what recent guidance from the International Committee of the Red Cross terms “a continuous combat function.” That status, the ICRC guidance says, makes them legitimate targets whenever and wherever they may be found, including Langley.

I agree with his first point, but as I’ve explained at more length elsewhere, I think he is misreading the meaning of “continuous combat function.” And in so doing Solis makes a common conceptual error: conflating the lawfulness of combatancy with the legitimacy of targets.

Here’s the relevant part of the ICRC’s interpretative guidance on the issue of distinguishing civilians from combatants (that is, lawful v. unlawful targets) in asymmetric wars:

While members of organized armed groups belonging to a party to the conflict lose protection against direct attack for the duration of their membership (i.e., for as long as they assume a continuous combat function), civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities. This includes any preparations and geographical deployments or withdrawals constituting an integral part of a specific hostile act.

In other words, the concept of “continuous combat function” only applies to members of the armed forces, never to civilians. You can shell a military encampment at night while the GIs are asleep (not participating in hostilities) and it’s not a war crime, because they remain military targets as long as they’re deployed in a conflict zone. However you cannot legitimately target a “civilian” – however guilty s/he may be of participating in hostilities at times – when s/he is not currently doing so. Or at least, so say the existing laws of war.

In correctly pointing out that there are unlawful combatants on both sides in the war on terror, Solis is implicitly suggesting that this makes those combatants – on both sides of the war – legitimate targets, a position that justifies military drone attacks on civilian terror suspects per se, rather than just when they’re engaged in hostilities. Not true.

UPDATED: A student of mine writing a humanitarian law dissertation pointed out an error in the earlier version of the post (now modified): civilians remain civilians (as opposed to combatants) even when they directly participate in hostilities.

Is there a legal obligation to report war casualties?

This year at ISA a theme which seemed to crop up again and again (at least among the laws of war crowd – we’re small but mighty) was the idea that “we” (international society, academia, NGOs, I guess) need more information on civilian casualties, particularly those caused by air strikes in Pakistan and Afghanistan. There was a real sense of frustration that the US was not more forthcoming on casualties, who was being targeted and who died.

Certainly, arguments were provided that there was a moral duty to provide such information. Although democracies may fight very deadly wars, constituencies within them want and demand to know exactly who we are fighting and why and with what means.

But is there a legal obligation to do so? The idea that the US (the CIA specifically) is fighting a shadowy war in Pakistan using unmanned aerial vehicles (UAVs) has lead to allegations of civilian atrocities and war crimes. No one seems to be able to provide an accurate count. (And I struggle to find a reliable one on the internet.)

But must the US actually provide information as to who it has targeted and who has died under the laws of war?

I can find no straightforward obligation in the laws of war which states that governments must report casualties in an armed conflict. They must report all prisoners taken (GC III, Art 70, 122) and their deaths (GC III Arts 120, 122). But the laws governing the death of civilians and combatants (legal and unlawful) in operations is much less clear. Most civilian protections are from the Hague Conventions (which did not envision Predator UAV strikes, although the idea of Aerial Warfare was not entirely foreign) and Additional Protocol I (which, of course the US has signed, but not ratified.)

While, Governments are required to take precautions in attack, operate in a proportional manner and to make efforts to avoid disproportionate damage, there is little in which to enforce or hold states accountable because there is no requirement to provide information.

Does this requirement to be proportional and discriminate then implicitly oblige states to provide information to demonstrate that they have been acting in accordance with the laws of war?

This was the argument of Philip Alston, United Nations special rapporteur on extrajudicial, summary or arbitrary executions and NYU Professor and … who has argued with Hina Shamsi:

Used without fanfare in remote and inaccessible areas, they are invisible to all but their potential victims. The military advantages are obvious, but so too are the potential rule-of-law problems. Unless governments voluntarily disclose information, human rights monitors and independent journalists are unable to verify claims that there are limited or no civilian casualties, let alone to weigh them against credible reports that hundreds of innocents have died…

Accountability is an independent requirement of international law. When complete secrecy prevails, it is negated. Secrecy also provides incentives to push the margins in problematic ways.

Yet Alston does not cite any specific legal obligation other than to invoke these principles that are, it is fair to say, less than straightforward and do not provide any specific guidance. Indeed, later on in the article, it seems that the real “beef” that Alston has is the dehumanized process employed by a generation reared on Call of Duty.

Equally discomfiting is the “PlayStation mentality” that surrounds drone killings. Young military personnel raised on a diet of video games now kill real people remotely using joysticks.

Morally, Alston may have a point, but I am not convinced that he has legally demonstrated his case. Things that are “discomforting” are not necessarily illegal.

It is fair to say that the US position is that no such obligation exists. In searching for an answer to this question, I contacted a lawyer friend at DoD in a position to know about these things. The response I received made it was clear that they do not believe that they are under any such obligation for several reasons.

First, reporting on friendly casualties may provide too much intelligence to enemies on the effects of their actions. (ie: that they are being effective).

Secondly, reporting on enemy casualties is not without moral risks. The US was criticised (and “rightfully so”, my friend added) for excessive reporting of enemy casualties in Vietnam. The policy of “body count” was used to demonstrate that the US was winning the war but lead to rather more tragic consequences. This was the position taken by General Tommy Franks in Afghanistan when he told reporters “We don’t do body count.” Franks was not saying that the US military didn’t care – but rather that he did not want to repeat the same mistakes that had been made in Vietnam.

Finally, on civilians, there seems to be the problem of knowledge. That while an attacker can (and must) make an estimate as to how many civilians might be killed in its proportionality calculation. However, there is simply no way to confirm reliably the number of deaths or to know whether any casualties were “directly participating in hostilities” (Which, the US tends to regard very differently from the ICRC these days.) Whether this problematizes the fact that they were targeted in the first place is up to the reader to decide.

So any reporting on casualties is not being done under any belief that there is a legal obligation to do so.

I’m sure the advocates for more information did not exactly have “body count” in mind when they demand more information and accountability. But this does raise an interesting point – that casualty reporting may also be used for other, more sinister purposes.

Am I missing something here? Can anyone point to an item of law which suggests that there is an obligation to do so?

I would like to stress that I am not conflating legality and morality here. The trick about the laws of war is that it lets you do a lot of really nasty things to a lot of people legally – let’s not kid ourselves. But if there is a claim that there is a legal obligation to provide information, I’ve yet to see it.

The only thought that comes to my mind is that the strikes in Pakistan do not amount to an “armed conflict” and therefore a human rights framework (which has much stronger accountability mechanisms) applies rather than the laws of war… but I think this needs to be the subject of a different post…

On Norm-Building as a Vocation

On the last day of class in “Rules of War,” I ask my students what kinds of things are needed to strengthen the regime governing the conduct of war. They come up with all kinds of nifty ideas, and then I ask them what they’ll personally do to move the world in that direction. For awhile they struggle to come up with anything more concrete than “raise awareness,” but after awhile they will say things like, “run for office,” or “join the State Department,” or “go to work for Doctors Without Borders.”

They rarely say they’ll join the military and work from within to uphold the spirit of the Geneva Conventions. This year, I asked my students if any of them would consider this. A few raised their hands, but most shook their heads, almost in disbelief. I asked why. Someone said, “Because the culture of the military pushes you in the opposite direction.”

It was an interesting moment for me as an educator, to realize how many of my students had taken this message away from class, when in fact military culture can and does push in either direction, depending on the nature of the policy, the circumstances and in particular, the leadership. And when in fact the relevant question to ask is whether other institutional cultures in US foreign policy are really more Geneva-friendly than the military. I have my doubts, but I had failed somehow to cultivate those in my students.

Maybe it was all the atrocity literature we’d read, the Milgram and Stanford prison studies, and the detailed case material on Abu Ghraib that made them so certain that if you want to protect innocent people, the military – or any institution that teaches obedience first and foremost – is the wrong place to be. Maybe my error was in not balancing the story of Lieutenant William Calley out sufficiently with the story of Warrant Officer Hugh Thompson, the helicoper pilot who put himself between Calley’s men and the civilians of My Lai. Perhaps in dwelling too much on the surveys from Iraq showing that more than a third of US troops think torture is sometimes OK, I missed the important comparison, which is what percentage of the US civilian masses, or policymakers, answer the same way on such surveys. Turns out that for the general public, at least, it’s around the same – 38%, according to a 2006 Gallup poll.

Or maybe it was the absence of active-duty military personnel in this particular class. (This was an important shift from the normal distribution of students I would teach at University of Pittsburgh, which in the past included an Army Chaplain whose policy paper argued for incorporated laws-of-war training into first-person-shooter games to prime enlistees to respect civilians in urban areas, and Roy Nickerson, whose blog posts from Iraq regularly include notes like the following:

“It’s the children that make me feel it: hope. Not some hope related to grand government programs, campaign promises, or lofty world peace solutions, but a next-day type of hope. A hope that maybe these kids will come closer to a reliable sewer system, sanitation, clean water, and consistent electricity. The hope that maybe life for them gets a little bit better tomorrow.”)

At any rate, I thought about that student from this year’s class, at once ready to join the State Department and forego military service, when I read this news story about the UN response to piracy off the Horn of Africa. The Security Council has authorized governments to use “all necessary means” to stamp out piracy on Somalia’s coast, essentially sanctioning the use of ground forces against pirate strongholds. It’s interesting to note that the US State Department pushed for this very approach, but the Pentagon is more cautious. Why? Because of the potential for collateral damage:

“The commander of the U.S. Navy’s 5th Fleet expressed doubt last week about the wisdom of staging ground attacks on Somali pirates. Vice Adm. Bill Gortney told reporters it is difficult to identify pirates and said the potential for killing innocent civilians “cannot be overestimated.”

While US military personnel do not think as one, I think this anecdote suggests an important line of inquiry for teachers and students of international security norms: which institutional cultures in the US (and in other countries) are actually most and least predisposed to restraint in the use of political violence, and what does this mean for generating compliance with the rules of war? It’s an interesting academic question, but also one with a direct bearing on the tactical decisions of our human-security minded youth as they make decisions about where to best leverage their own professional capital in pursuit of their values.

Pirates and Sovereigns

This post began as a response to the comments on Peter’s recent post on pirates, but they got to be so long, and required hyperlinks, I decided to start a new thread.

In his comment to that post, T. Greer asks what the pirates who hijacked the oiltanker Sirius Star were thinking, since they can’t deal with the logistics involved in selling the cargo and were certainly likely to provoke the great powers (further) by targeting such a prize.

Somali pirates want two things, as far as I can tell:

1) Money, which is why their strategies have been based on ransom demands – they don’t care about docking in port and selling cargo, they care about getting shipowners and their insurance companies to buy back their property and their crewpersons’ lives. This also explains (I think) why the hijackers of the Faina continue to negotiate at sea with the Ukrainian shipowners, rather than identifying buyers of the ships’ military cargo within Somalia (for which there is a market aplenty). Ransom is now Somalia’s fastest-growing industry and is contributing to an economic boom there, which is one reason why marrying daughters off to pirates has recently become an coveted indicator of upward mobility among villages within coastal Somalia.

2) Domestic Legitimation (which is why they tend to avoid killing hostages if possible and why they are seizing larger and riskier targets). The longer they keep the world powers at bay, the more powerful they seem and the more credible their claims to be “protecting” the Somali coast from rampant global capitalism and illegal fishing/dumping by other nations, which was destroying the local fishing industry (many of the pirates are former fishers out of work) and polluting the coastline. This legitimation helps them maintain their credibility and social power among land-based Somalis, which reinforces their economic gains.

None of this justifies piracy, of course, but just my two cents from following the complexities of it a bit over the past three years. Best to think of them not just as theives but as political players in the region.

In this sense, there are genuine parallels with eighteenth and nineteenth century maritime piracy. Janice Thomson’s landmark study of the relationship between piracy, privateering and state-building early in the Westphalian system situates earlier pirate bands as alternate forms of non-territorialized governance aimed partly at resisting the emerging European state system’s reliance on property rights and ability to discipline labor. It’s no surprise to me that as state system loses its grip on markets, its role as container of political identity, and even its monopoly on the use of legitimate force, piracy has reemerged not only as a practice (this has been going on for least 20 years) but now also as a political discourse.

Aside from how to solve the immediate problem, the constitutive and legal questions here abound. If political players they are, rather than mere brigands, then what political rulesets should guide diplomacy with these people in order to both bring about a useful causal outcome (the protection of shipping lanes, the reconstruction of a country), while contributing constructively to reconstituting international law / institutions to account for the exercise of political violence by non-state actors through asymmetrical means?

I don’t know. But that’s one frame for understanding the kinds of discussions that are needed here – they are not so different from the discussions, such as those taking place at Complex Terrain Lab, about how to reconceptualize the state-centric law of armed conflict to account for / bring into the fold non-state actors. Only difference is, most of that discussion has taken place regarding the law of land warfare only, rather than maritime war law, as Ken Anderson pointed out recently: all should read his complete Opinio Juris post on the matter.

Robot Soldiers v. Autonomous Weapons: Why It Matters

I have a post up right now at Complex Terrain Lab about developments in the area of autonomous weaponry as a response to asymmetric security environments. While fully autonomous weapons are some distance away, a number of researchers and bloggers argue that these trends in military technology have significant moral implications for implementing the laws of war.

In particular, such writers question whether machines can be designed to make ethical targeting decisions; how responsibility for mistakes is to be allocated and punished; and whether the ability to wage war without risking soldiers’ lives will remove incentives at peaceful conflict resolution.

On one side are those who oppose any weapons whose targeting systems don’t include a man (or woman) “in the loop” and indeed call for a global code of conduct regarding such weapons: it was even reported earlier this year that autonomous weapons could be the next target of transnational advocacy networks on the basis of their ethical implications.

On the other side of the debate are roboticists like those at Georgia’s Mobile Robot Lab who argue that machines can one day be superior to human soldiers at complying with the rules of war. After all, they will never panic, succomb to “scenario-fullfillment bias” or act out of hatred or revenge.

Earlier this year,Kenneth Anderson took this debate to a level of greater nuance by asking, at Opinio Juris, how one might program a “robot soldier” to mimic the ideal human soldier. He asks not whether it is likely that a robot could improve upon a human soldiers’ ethical performance in war but rather:

Is the ideal autonomous battlefield robot one that makes decisions as the ideal ethical soldier would? Is that the right model in the first place? What the robot question poses by implication, however, is what, if any, is the value of either robots or human soldiers set against the lives of civilians. This question arises from a simple point – a robot is a machine, and does not have the moral worth of a human being, including a human soldier or a civilian, at least not unless and until we finally move into Asimov-territory. Should a robot attach any value to itself, to its own self preservation, at the cost of civilian collateral damage? How much, and does that differ from the value that a human soldier has?

I won’t respond directly to Anderson’s point about military necessity, with which I agree, or with his broader questions about asymmetric warfare, which are covered at CTLab. Instead, I want to highlight some implications for potential norm development in this area of framing these weapons as analogous to soldiers. As I see it, a precautionary principle against autonomous weapons, if indeed one is warranted, depends quite a great deal on whether we accept the construction of autonomous weapons as “robot soldiers” or whether they remain conceptualized as merely a category of “weapon.”

This difference is crucial because the status of soldiers in international law is quite different from the status of weapons. Article 36 of Additional Protocol 1 requires states to “determine whether a new weapon or method of warfare is compatible with international law” – that is, with the principles of discrimination and proportionality. If a weapon cannot by its very nature discriminate between civilians and combatants, or if its effects cannot be controlled after it is deployed, it does not meet the criteria for new weapons under international law. Adopting this perspective would put the burden of proof on designers of such weapons and gives norm entrepreneurs like Noel Sharkey or Robert Sparrow a framework they can use to argue that such robots could not likely make the kind of difficult judgments necessary in asymmetric warfare to follow existing international law.

But if robots are ever imagined to be analogous to soldiers, then the requirements would be different. Soldiers must only endeavor to discriminate between civilians and combatants and use weapons capable of discriminating. They need not actually do so perfectly, and in fact it is common to argue nowadays that it is almost impossible to do so in many conflict environments. In such cases, the principles of military necessity and proportionality trade off against discrimination. And the fact that soldiers cannot necessarily be “controlled” once they’re deployed doesn’t mitigate against their use, as is the case with uncontrollable weapons like earlier generations of anti-personnel landmines. In such a framework, the argument that robots might sometimes make mistakes doesn’t mean their development itself would necessarily be unethical. All designers would then most likely need to demonstrate is that they are likelier to improve upon human ability.

In other words, framing matters.

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