Tag: geneva conventions

Targeting in Armed Conflict: DPH, CCF, WTF?

Usually when I blog about drones and extrajudicial execution, someone leaves a comment to the effect that terror suspects are “legitimate military targets” under the re-envisioned laws of war. The question of whether they are or aren’t is a bit tricky, but since the number of bloggable stories is vastly outweighing the time I have to post at present, I’ve called in my colleague Betcy Jose to explain. – Charli Carpenter

Guest Post by Betcy Jose, University of Colorado-Denver

Quiz:

You’re a sniper in the armed forces of your country which is in the midst of a civil war. Among the following choices, who could you permissibly target under international law?

A. A hacker who is disrupting vital communications occurring on your military’s computer network during the slower parts of War Games.

B. A rebel fighter who’s fallen asleep during night watch.

C. Child soldiers in the midst of training exercises in preparation for their first experience in combat.

D. The leader of the opposing armed group who is attending the funeral of the second in command.

What’s your answer? Scratching your head in uncertainty? Well, to be fair, it’s a trick question because the answer is all of the above. Let me try to explain how.

Choice A: International humanitarian law (IHL), the body of law which governs the conduct of armed hostilities, requires belligerents to refrain from intentionally targeting civilians. This is the distinction principle which is part of the civilian immunity norm. However, IHL does allow for the targeting of civilians while they directly participate in hostilities (DPH). DPH is how you’re supposed to distinguish between permissible and impermissible civilian targets. DPH includes using weapons, collecting intelligence, and disrupting/damaging critical computer networks. Once civilians lay down their weapon or stop hacking into military networks, they are no longer targetable. So, you can target the hacker while s/he is trying to hack into your military’s computer system, even if s/he did it out of boredom. But s/he regains immunity once the hacking stops.

Choices B, C, and D: The people in these scenarios are also targetable in a non-international armed conflict, but for different reasons from those governing the targeting of the civilian hacker. The people in these scenarios would be targetable because they have a continuous combat function (CCF), and they are not considered civilians.

The ICRC came up with this concept in response to claims by state actors that relying solely on a DPH method of distinction to determine permissible targets advantaged rebel groups. States argued they could only target rebel fighters when they were engaged in DPH. Why was this problematic? Because since rebel fighters are not members of state armed forces, they are civilians. Thus, they regain their immunity once they drop their weapons, only to return to fight state armed forces another day. So the ICRC, which is charged with developing IHL, came up with CCF in the hopes of addressing these state concerns while maintaining the protections offered by the civilian immunity norm. Here’s how it works:

A member of an organized armed conflict has a CCF if that role entails sustained direct participation in hostilities. This definition essentially addresses the concerns raised by state actors. Individuals who possess a CCF are targetable as long as they hold this role in an organized armed group. That’s why the rebel leader can be targeted while attending a funeral even though s/he may not be engaged in hostilities at the moment. Organized armed groups can be those that are aligned with the state as well as those that act against the state. The category doesn’t require a particular position in the armed conflict, just a degree of organization in order to distinguish it from rebellions or insurgencies which IHL does not cover.

Thus, while DPH and CCF may seem like distinct methods of distinguishing between permissible and impermissible targets during a non-international armed conflict, the two are connected. CCF also maintains civilian immunity by requiring states to be selective in their targeting of the opposition. They can target a person who holds a CCF anytime, but they can only target civilians while they DPH.

This is all well and good. But if you’re still scratching your head, join the club. The utility of this category is hotly debated and the Guidance is not universally endorsed by states. Humanitarian actors are concerned that states can manipulate these rules to further their objectives at the expense of civilian populations. Thus, how well these categories advance their intended aim of protecting civilians who have the misfortune of finding themselves in the heat of battle is a question that’s hard to answer.

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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.

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What is the status of CIA drone operatives in international law? (Short answer: I don’t know, but that shouldn’t matter.)


Despite our modern ideas about a separation between civilians and soldiers in international law (and then complain about the breakdown of the legal distinction in counterinsurgency conflict or situations like Pakistan), civilians have almost always accompanied military forces into the field. These include journalists, clergy (not within the armed forces of an army) and “camp followers” which may have included cooks, tailors, menders, prostitutes, etc.

That these individuals were there and an essential part of the operations of the armed forces, was accepted. Yet, because they were not formally “enlisted” they were considered as civilians and not subject to direct attack so long as they did not take a direct part in hostilities.
This doesn’t render the principle of distinction irrelevant of course. It’s still one of the key principles upon which the law of war rests. However, it does suggest that we sometimes forget that the line has not always been crystal clear between combatants and civilians.
Yet, a major recent difference has been the increasing technological dependence of the armed forces in their military missions. This has resulted in civilians working on computer and weapons systems, possibly crossing certain lines in terms of distinction and participating in a conflict in a direct way.
Efforts trying to regulate civilian participation have not been particularly successful. As is relatively well known, efforts to regulate private military firms (PMFs) have been less than satisfactory (and even the US government who employs them has trouble exercising jurisdiction over their behaviour). The Montreux guidelines are just that – guidelines – and without any enforcement mechanism.
However, the CIA drone issue is different from that of PMFs. The CIA is a state-sanctioned institution. It’s armed and uses force against other actors. So what does it mean for their status under their international law? Are they directly participating in hostilities? Is their participation allowed?


Other important “guidance” here comes from the (controversial) ICRC study on the direct participation in hostilities. This document has been, is and will be subject to a lot of scrutiny (and it will be interesting to see, exactly, which states consider it authoritative. I’m thinking not many…). However, for our purposes here, a lot of the criticism (typically directed to ‘insurgent’-like actors and a supposed ‘revolving door of protection’) does not really apply.


Actually, the position taken with regards to private military firms and civilian employees would seem consistent with what the United States has typically put forward:

III Private contractors and employees of a party to an armed conflict who are civilians (see above I and II) are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Their activities or location may, however, expose them to an increased risk of incidental death or injury even if they do not take a direct part in hostilities.

The fifth point of the study, (V Constitutive elements of direct participation in hostilities) is more controversial as some might deem the criteria as far too narrow for the purpose of modern fighting. (ie: On just one point, the United States would likely argue that someone who did financing for a terrorist organization was ‘fair game’). While this might provoke more controversy for their targets, for our purposes, the DPH guidelines suit the CIA Drone pilots rather well.

In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:
i. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
ii. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
iii. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

Regardless of whether or not the threshold is too high or narrow, there is no question that what the CIA drone pilots are doing falls into this category.


Therefore, I would argue the two most important legal issues here are:

1. Is there participation in hostilities legal?
2. Are they subject to attack?

The first question is more difficult to answer than the second. I would argue that the default position regarding civilians accompanying armed forces is that their presence may be authorized by a state/military force (because of the increasing essential tasks that they perform). In this sense, I would argue that their presence is legal if they are authorized by a state and armed forces AND they carry out their operations in line with the laws of war. This implies that all actors should receive instructions and training in the laws of war.

Key to this framework – and I think this is rather obvious from what is stated above – is that although civilians may accompany the armed forces and assist them in a variety of ways, they remain civilians – not combatants or non-combatants (which, in US military parlance are considered to be chaplains and medical personnel). However, they are different from “regular” civilians in that their functions in relation to combat render them targetable.

If we take the case of a contracted computer specialist who accompanies a unit to a forward operating base, I would suggest: 1) His presence is legal. 2) His activities may constitute direct participation in hostilities 3) He may be subject to attack. 4) He, like the rest of the armed forces, must carry out his activities in line with the laws of war.

I think it is clear that for policy reasons the military should do its best to ensure that his participation does not constitute combat functions – although where one draws the line in this day and age is almost impossible to tell.

Article 4(A) of the Third Geneva Convention also makes it clear that should these authorized individuals be captured in an international armed conflict that they are to be given POW status. States/armed forces must therefore provide such civilians with appropriate identification cards.
However, again the CIA case is difficult because it poses several direct challenges to this scenario.

As suggested above, legal questions surrounding the participation of civilians revolve around civilians accompanying the military into the theatre of operations. The CIA case is different – many, if not most, of the operations seem to be coming from abroad or within the United States. Are the civilians therefore within the theatre of operations? And does distance render this ‘arithmetic’ irrelevant?

An important question here is whether or not the CIA operations can be considered as supporting military operations? The CIA program seems to operate at arms length from the DoD/Air Force Program – although how near or far is almost impossible to say. It may be that the CIA and US government considers the Agency to be part of the broader effort in the abstract “War on Terror” and therefore, yes, they are supporting military operations. They may also see themselves as working within a “self-defence” scenario whereby they are responding to the threat of terrorism posed by radical extremists in Pakistan.

Others, however, may see this as problematic because, legally, the conflict in Pakistan must be considered separately – not as an international armed conflict, but as an internal armed conflict and subject to a different set of international rules.

I think questions as to the status of the legality of the conflict in Pakistan are jus ad bellum issues and I will ignore them for the purpose of this post. I am also going to work from the assumption that a drone attack is an “armed attack” for the purpose of the laws of war and that this makes it the appropriate law to apply when considering the CIA operations.

I would therefore apply the following argument regarding the CIA drone pilots:

1. They are civilians.
2. Their activities constitute direct participation in hostilities in a law of war context.
3. They may be subject to attack, regardless of their location. The same may be said for a civilian who provides logistical support for military operations at the Pentagon. Of course, the same may not be said of a civilian who works at the Pentagon Best Buy (and yes there is one) who is supporting the staff who work at DoD, but is not directly participating in hostilities. This individual may be at risk because he/she works at a military target, but is not targetable. He/she must be taken into a proportionality consideration when a strike is being considered or planned.)
4. Their armed attacks must be carried out in line with the laws of war.

But what about their legality?

There is no question that the CIA is not part of the armed forces of the United States. Typically referred to as “other government agency” in military documents, one typically struggles to see them named within the DoD literature.

Yet international law stipulates that armed forces are not necessarily the only groups which may participate on the battlefield. For example, in a situation of a “mass uprising” (levée en masse), civilians may participate in an armed attack with immunity. Similarly guerrilla/partisan movements which follow certain rules have been recognized by the law of armed conflict since 1949.

However, none of these categories work particularly well. The CIA operatives do not meet the standards of these categories and nor were these categories ever really intended to apply to state actors. Ultimately, the Agency represents not “the” armed forces of the United States but “an” armed force of the United States. And this is essentially the main difficulty with regards to their legal classification.

Therefore, I simply can’t help but conclude that the CIA program is operating in a legal grey area – there is just not enough law or examples to render a crystal clear verdict on the status of the CIA operatives. The state-sanctioning of the activity means that they are not simply rogue individuals who are operating like some kind of armed group (unless you want to consider it a state-sanctioned armed group – in which case I don’t know how you would distinguish this from the armed forces). There are differences and developments here which international law has not yet had a chance to catch up with.

Practically, however, this should not make an operational difference. As I have suggested above, I think regardless of who is carrying out the attacks, they must be done in accordance with the laws of war. This is the really important key factor – at least for me. Not who is carrying out the attacks, but whether they are actually done in accordance with the applicable law.

It seems to me that there is no doubt that the individuals who are carrying out these activities are directly participating in activities and are targetable. Additionally, their civilian status does not relieve them of law of war obligations.

To me it would seem that the legality of the participation becomes really important if someone wanted to arrest and charge the CIA pilots for their missions. Practically speaking, I find this highly unlikely.

However, there is a more important issue of accountability here – what happens in a case of gross negligence? Or A clear violation of the laws of war? Who is responsible? I think this is where there is more room to be concerned. And how this will play out remains to be seen.

I’m curious as to what other international legal-politicos out there think of this. Am I missing something? Law simply does not have all of the answers – at the end of the day, I think it will be more helpful if the CIA program is going to have to be judged on its effectiveness vs the amount of damage it does and this will likely be done on political and moral grounds.

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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.

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Is the jury out on universal jurisdiction?*

The two different countries I call home (Canada and the UK) have recently had to deal with universal jurisdiction in relation to war crimes.

First, as I’ve written about here, it has come to light that Canadian officials likely knew that Afghans captured by Canadian forces and subsequently transferred to Afghan prisons were being tortured. Failure to react to such allegations and relevations is a crime under the Third Geneva Convention Relative to Prisoners of War. Yet, what is interesting about this particular issue is that the Geneva Convention is quite clear that it is the government (as opposed to the military) is responsible for the violation of the law.

Yet the Canadian government has so-far refused to open up an investigation into the allegations (made by a Canadian diplomat, Mr. Colvin who served in Kabul and now does so in Washington). Instead, the issue is being handled by the Military Police Complaints Commission. The question is whether or not this is sufficient for the International Criminal Court – of which Canada is a party – who could potentially begin an investigation if they felt that the actions of Canada were insufficient. That the ICC prosecutor, Luis Moreno Ocampo has previously indicated this year that he willing to open up investigations into Western governments, does seem to leave the Canadian government in a potentially vulnerable position.

Second, a judge in the UK recently issued an arrest warrant for the former Israeli Foreign Minister Tzipi Livni for war crimes at the request of Palestinian plaintiffs. The allegations made against Livni were that she was responsible for war crimes committed during the Israeli offensive in Gaza last year. The warrant was revoked when it was announced by a very angry Israeli government that Livni would no longer be visiting the UK for her scheduled meeting with UK government officials. Additionally, the warrant was the cause of significant embarrassment for the UK government whose role in the Middle East peace process is now in some doubt (particularly as Israeli officials will now not be particularly likely to visit the UK). But the Court which issued the warrant has the right to do so at its own discretion. As war crimes have universal jurisdiction, the court felt that it was free to act.

For advocates, of universal justice, the implications of both of these cases are clear: it is about promoting the rule of law and addressing grievances so that real peace can be built. More simply, it’s the idea that justice should not stop at a national border. Officials, whether they are the Canadian Minister of Defence, the President of Sudan or the former Israeli Foreign Minister should all be susceptible to indictment.

And clearly, for the governments of these countries, it is about pragmatism. International legal arrangements which effectively damage diplomacy, or the ability of officials to do their job, is of benefit to no one.

But in reality, such concerns may also extend to the international legal institutions themselves. Although Ocampo may be a fan of universal jurisdiction, this may be tempered by a degree of realism. As the ICC and the US government under the Obama Administration are slowly working towards a new understanding (if not an entirely improved relationship), any attempt to prosecute Canadian officials may actually scare away the American government even further from the ICC – particularly given its skittishness about “activist” lawyers, politicized cases under the banner of universal jurisdiction.

To some extent it comes down to the old (clichéd?) question of “Order vs Justice” in International Relations – whether we should let justice be done though the heavens fall, or whether order without justice can really be considered any order at all. Perhaps more simply, it is at what cost international institutions (or even domestic ones) are willing to demonstrate their power – even perhaps at the risk of losing it. If they do act, they may be limited by politics; but if they don’t, they already have been.

*See what I did there? That’s the kind of skill you learn in a quality grad school.

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Petraeus Doesn’t Take the Bait

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Laws of War and First Person Shooters

Cleitus the Black has an amusing post up at Elected Swineherd about parents who ask their children to honor the Geneva Conventions while playing violent video games such as Call of Duty. According to MSNBC:

“Evan Spencer wanted to play ‘Call of Duty: World at War.’ So he asked his dad. Hugh Spencer wasn’t initially thrilled about the idea of his son playing the World War II-based game. “I’ve never really enjoyed first-person shooter games,” he confesses. “They’re just not my favorite aesthetic.” But the elder Spencer agreed to his son’s request, on one condition: Evan would have to read all four treaties from the Geneva Conventions first. And then, agree to play by those rules.”

Says Cleitus:

“This kid’s parents think they’re being responsible; in fact, they’re merely showcasing their ignorance. Despite the minor fact that the majority of the Geneva Conventions did not exist in World War II… it’s quite impossible to break any Geneva Conventions in the game: characters have no chance to torture, execute prisoners, or launch attacks against civilian populations, although they get to witness those acts in graphic cinematic sequences.

The scoundrel’s only possible chance to tread a fine line is to fire a finishing shot into an already mortally wounded opponent; and this would probably be justified by the fact that many of those opponents will planning to make a “last stand” attack where they draw a pistol and blaze away until they run out of ammunition, or until they get shot again.

Gory and realistic though this game is, it’s hardly an educational training ground for learning the nuances of International Humanitarian Law. What it really represents is an opportunity for out-of-shape American youth to exercise their bloodlust without endangering themselves. If young Evan Spencer really wants to learn something about war, there’s plenty of hot-spots in the world where another teenage meat-puppet could make themselves useful as a bullet sponge.”

Spot on analysis of the gap between intention and reality with respect to this particular instance, but but I think the bigger question is: why don’t gaming companies build rulesets into first-person shooters that force players to acknowledge, consider and choose whether to break or follow basic just war rules?

Some quasi answers that lead to more questions:

1) The absence of a corporate social responsibility movement for the gaming industry. But how do we explain this? Beats me.

2) The fact that the International Committee of the Red Cross is not behind the idea – in fact it once sued a Canadian gaming company for incorporating the red cross symbol into the game. Again, why? Ostensibly concerns over the use of the emblem. But given that the ICRC’s mandate includes disseminating humanitarian law through everything from films to circus skits in the Sudan, this strikes me as another great mystery of our times – one might even say international law run amuck.

Still, one could build an ethics incentive structure into first person shooters without using the emblem, and one could even imagine pressing political reasons to do so. Enhancing US combat personnel’s law of war training while deployed in the field would seem like such a reason, since US national security presumably now depends on rebuilding failed states abroad. One marvels therefore that the US military, while aiming to succeed at “military operations other than war” still allows its off-duty combat personnel to rest and relax with games that simulate, at best, situations of high intensity conflict. We are not only missing a chance to use first person shooters to disseminate and train in the rules of war, but probably training soldiers in precisely the opposite skills.

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Tortured Rhetoric

President Obama said a lot of important things tonight, but he also regurgitated a disturbing Bushism or two.*

One of these is the term “America does not torture.”

Stated in this particular way, an indisputible statement of principle is conflated with and therefore masquerades as an empirical “fact,” one which is blatantly untrue. This trope was one of the Bush Administration’s many brilliant inventions, and was designed as a public relations counter-response to growing acknowledgement that US military and intelligence personnel not only had tortured detainees, but had in fact been ordered to do so.

In the context of some other disturbing continuities between Bush Administration policies and Obama’s policy so far, this worries me. It should also worry Obama’s advisors: these kinds of rhetorical not to mention policy non-changes are precisely the type of behavior that will undermine Obama’s effort to reengage the international community in the wake of Bush-era unilateralism. Why? Because these particular issues are so closely emotionally associated with Bush-era unilateralism. If there is any sense in Obama’s decision to retain a policy of extraordinary rendition (and I can’t see any), there is certainly no sense in the decision to draw attention and umbrage to it by failing to at least change the rhetoric.

One of the most interesting conversations I had at ISA was about the Geneva Conventions. I had suggested in The National Interest last year that the Bush Administration and the human rights community work together toward an Additional Protocol to clarify the law, and my colleague asked whether I thought this advice still applied after the transition.

I would say it is even more relevant now. The Bush White House flaunted multilateral institutions like the torture regime because Bush’s policy was to flout multilateralism. Obama can’t continue that course – simply reinterpreting and then violating the law – while claiming to embrace multilateralism. But what he could do is lead a multilateral effort to clarify the law. An effort framed in good faith by a skillful and (as yet) largely untarnished leader like Obama could unite both the human rights community and those concerned about how to apply the laws in an era of asymmetric warfare. It could resolve some of the interpretive problems as a community. Obama should shift course and lead this movement before the opportunity is squandered as the US once again instead becomes its target.

*I mean, how it within his perogative or power to “not allow people to plot against America”? What does that mean as a basis for one’s foreign policy?

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(Soft) Power Politics

Lots went on in international criminal justice this past week.

A few thoughts about three big news stories and a smaller one are below the fold.

1) Omar Bashir was indicted by the International Criminal Court. I was less surprised by the fact that a sitting head of state might be charged than that the list of charges actually included genocide. Not because the facts on the ground don’t suggest they should, but because of the nature of the crime and the nature of the court.

a) Genocide is an “intent” crime – to convict you have to prove not just that atrocities occurred, but that they were carried out with the specific intent to destroy a national, ethnic, racial or religious group. Historically, it’s been much easier to convict people for war crimes and crimes against humanity than for genocide, because few nefarious leaders are careless enough to leave a paper trail. Bashir, for example, has been a master of plausible deniability.

b) As a new institution still struggling for credibility within international society, the ICC has an explicit policy of going after only the most clear-cut cases, cases that it is likely to win. (Unlike its “activist” predecessors, the ICTY and ICTR, whose judges often made history with their interpretations of international law.)

But, perhaps this is a move calculated to make sure that some of the charges can in the end be dismissed. I predict the genocide charges won’t stand, for the same reason that the UN couldn’t condone a finding of genocide in its 2005 report on Darfur; but that crimes against humanity will. Then, the court can give the impression that it is evenhanded and apolitical.

2) Radovan Karadzic, former President of the Bosnian Serb breakaway republic in the former Yugslavia, was captured. I had little but kudos to say about it last Tuesday, but have followed a rather disturbing trend since whereby commentators and journalists refer to Karadzic as a “war criminal.” (I’m guilty myself, having cited Robert Farley’s blog post entitled “Genocidal Maniac captured.“) But the whole notion of international criminal law as rule of law is that a man like Karadzic is only a war crimes suspect until he is tried and found guilty. (At present, therefore, we must keep in mind that he is only an alleged genocidal maniac.)

3) The trial of Salih Hamdan, bin Laden’s former driver, will go forward at Guantanamo Bay after Hamdan’s attorney exhausted efforts to have it dismissed. The trial has been touted in the press as the first “US war crimes trial” since Nuremberg, though it’s really nothing of the sort.

a) The defense will argue that Hamdan was at worst a low-ranking al-Qaeda employee; and that much of the evidence against him was either coerced or provided willingly to military investigators on the hunt for bin Laden: Hamdan was not told that he was incriminating himself when he cooperated with the government.

b) The USG will argue that a terrorist is a terrorist, sexual humiliation isn’t degrading so evidence gained this way is admissible, and Miranda rights don’t apply to non-US citizens anyway so Hamdan’s cooperation with the USG doesn’t erase his crimes.

Leaving aside the question of whether a civilian who drives a car for the “enemy” has committed a “war crime,” one wonders about the implications for HUMINT operations if the USG develops a reputation for taking this stand. Which defectors from al-Qaeda or any other entity will provide us with actionable intelligence if we thank them by putting them on trial? Here is a clear case where following international rules is also in our concrete interest, a point continually lost on the Bush Administration. Good coverage of the Hamdan case over at SCOTUSblog.

4) Finally, John McCain told Wolf Blitzer that he could imagine bin Laden being prosecuted in an international court. If he means the International Criminal Court, the attacks of 9/11 couldn’t be prosecuted there: only crimes committed by al-Qaeda after July 2002 would fall within the court’s mandate. But more interesting is what this statement tells us about the likelihood of the US joining the ICC after the next election. Kevin Jon Heller writes about this and Obama’s position on the ICC at Opinio Juris.

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Geneva 1.5 (Or, So You Want to Bridge the Theory/Policy Divide)

After rejections from two other policy journals and ten days of wrangling with the editors, my first policy-article on the rules of war has just appeared in The National Interest. In a nutshell:

“The arguments of the Bush administration when it comes to torture, prisoner-of-war status and extraordinary rendition have been met with outrage by the international community, constitutional scholars and human-rights organizations like Amnesty International, which has referred to Guantánamo Bay as the ‘gulag of our times.’ But the polarization of these two camps obscures the broad middle ground that exists between them.

The contemporary problem—for both governments and transnational rights advocates—is that neither sovereignty nor battle space is what it used to be. The solution is neither to blindly promote adherence to the letter of the law nor to continue to willfully flout its spirit. Instead, both the U.S. government and members of the transnational human-rights network should seek to update and clarify these rules through an international conference that would lead toward a new additional protocol to the Geneva Conventions.”

The title, “Geneva 2.0” is a bit of a misnomer, however, since I’m calling for an Additional Protocol, not a whole new convention. As such we are talking AP 5.0 (or perhaps, Geneva 1.5?), because the Geneva Conventions have already been addended four times previously. Nonetheless this title, the outcome of a last minute negotiation with the TNI editor, is far superior (in my admittedly humorless opinion) to her earlier suggestion: “Can Geneva Get Her Groove Back?” (My original title, “Reviving Geneva,” was apparently too stale and geeky to attract the attention of TNI’s readership.)

Though it’s pleasing to have broken into the foreign policy press (if only because I now have a shred of cred when I preach to my students about policy-relevant social science) I am left with mixed feelings. Translating serious research into something appropriate for a beltway journal turned out to be like knitting socks with fishline. Of course, I knew a bit in the abstract about the challenges of “bridging the theory/policy divide” from reading Steve Smith and Stephen Walt and listening to Joseph Nye ruminate at ISA. But that didn’t prepare me at all for the nuts and bolts of it.

Besides not getting to pick a title, here are some other things I now know to expect, should I ever try this again:

No Footnotes Required… or Allowed. As a social scientist, this really gave me pause. Particularly when crafting a fairly outside the box argument that is sure to attract criticism, how could I not cite my sources as backup for my claims? Fortunately for readers of the Duck, those with inquiring minds can access the fully-cited version of the article here.

Don’t Bother Acknowledging Your Priors. In scholarly journals one rarely takes sole credit for a piece, since it usually evolves from conversations, peer feedback and the intellectual legacy of earlier scholarship. Policy journals don’t waste space acknowledging such niceties. But since the article evolved largely from teaching my course “Rules of War” for the past four years at University of Pittsburgh’s Graduate School of Public and International Affairs, it would hardly be appropriate to publish my insights without mentioning the contributions of my many students who refined, reshaped and challenged my thinking, particularly those who remain in touch with me. These include Jeff Smith, Roy Nickerson, Rebecca Wall, Betcy Jose-Thota, Justin Reed, Vanja Lundell, Ben Rubin, Andrew Blake, Chris Farnsworth, Irene Tzinis, Hans Brun, and Thomas Helms.

Editorial License is Par for the Course. I was completely unprepared for the loss of autonomy over one’s work you experience when you attempt to publish inside the beltway. Editors of academic journals offer iterated feed-back, declining to publish until the author produces a text in accordance with their guidelines, and they copy-edit the final draft for typos. Editors of policy journals take the original manuscript and rewrite/restructure/interpolate it to suit their own ideas, then put your byline on it. And, they believe they are doing you a favor by taking on the job of the “heavy lifting” the manuscript from misbegotten draft to publishable masterpiece.

Don’t Expect Time to Reflect. After all the above changes are introduced, the author may be offered as much as 24 hours to “approve” the changes. Compare this to the standard several weeks to review proofs or months to make revisions offered by academic journals. You’d better not be in the field doing interviews with your six-year-old in tow when a policy journal decides they want to “fast-track” your piece into the next issue. Or, prepare to subsist on Vivarin for several days. (One wonders how many aspiring policy-writers steeped in academic norms just give up at this stage – someone should study the clash of expectations as an impediment to bridging the theory/policy gap.)

Know Your Bottom Line. The only leverage you have in the end is to decline publication if you don’t like what the editor has done with your piece. As academics, we’re unaccustomed to dealing with that tradeoff, but it’s clear to me that aspiring policy writers must develop the skill to make ethical judgments about the content and language we associate with our byline. (I could live with “Geneva 2.0” but the other title was just too frivolous for a piece on something as grave as war crimes.)

Who knew it would be so tricky? Those with experience, of course, who are no doubt chortling at my cluelessness. (Also, the patient beltway editors who have the thankless task of tutoring us sheltered eggheads in their own rules and norms). Well, if the academy aims to bridge the theory/policy divide better, we should help budding political scientists cultivate this experience earlier in their careers. Perhaps instead of yet another methods seminar, we need policy-writing courses for our doctoral students that would help them develop their own skill-sets / strategies / codes of conduct before they throw their hat, haplessly, into the ring.

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Think Harder, Professor Ratner

Steven Ratner has written a “Think Again” piece on the Geneva Conventions in the new issue of Foreign Policy. (This explains why FP rejected my proposal for a Think Again piece on the same topic about three months ago.)

Ratner’s list of assumptions that should be rethought include:

“The Geneva Conventions are Obsolete”
“The Geneva Conventions Don’t Apply to Al-Qaeda”
“The Geneva Conventions Turn Soldiers Into War Criminals”
“The Geneva Conventions Prevent the Interrogations of Terrorists”
“The Geneva Conventions Ban Asassinations”
“The Geneva Conventions Require Closing Guantanamo”
“No Nation Flouts the Geneva Conventions More than the US”

A couple of other questionable assumptions mentioned in my original proposal might be added to Ratner’s list:

1) “The Geneva Conventions reflect international consensus on how to weigh humanitarian concerns against national security interests.” Not really. International consensus is now far more progressive than the original treaties. Part of why the Bush Administration gets away with so much is that a huge gap exists between current norms and the outdated letter of the law.

2) “The Geneva Conventions represent timeless principles.” No. Treaties are historical constructs that can be and are often amended as needed. Serious gaps in the law are widely acknowledged: the lack of accountability for private security forces and non-state belligerents, the ambiguity about detainee status determinations, among others. My view: these should be addressed through the negotiation of a new Additional Protocol.

Ratner also reifies some rather unsubstantiated assumptions himself. Let me focus on one: the argument that the US should comply with Geneva because if we don’t we undermine the conventions themselves:

“It is enormously important that the US reaffirms its commitment to the conventions, for the sake of the country’s reputation and that of the conventions… in losing sight of the crucial protections of the conventions, the US invites a world of war in which laws disappear.”

I’ve heard this a few times before, but I’m not sure I buy it. The argument is that US noncompliance with Geneva will affect the rest of the international community’s shared understanding of the rules and norms.

But isn’t it possible that US exceptionalism stands an equal chance of galvanizing pro-Geneva sentiment instead? Certainly this was the case with the International Criminal Court. The US opposes the Rome Treaty and has used several mechanisms including domestic legislation and bilateral treaties to make attempt to undermine the court. Yet in some ways this has only seemed to strengthen the rest of the world’s commitment to the ICC, and it’s the legitimacy of the US in matters of humanitarian affairs that has been undermined. Similarly, 80+ countries are moving ahead with a ban on cluster munitions, shrugging their shoulders at the US which isn’t interested.

I think that arguments that US behavior risks undermining regime norms, which are principled rules shared by the entire international community, reflects a certain arrogance. We never assumed that Milosevic’s use of concentration camps “undermined the POW rules,” only that it represented a violation of those rules to be condemned and punished. In fact, the international response reaffirmed the rules, just as international condemnation of US practice is now doing.

Of course you might argue that the US has disproportionate influence on regime norms because of its soft power. But I would suppose it’s US soft power that is being undermined here, not international norms.

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