Tag: humanitarian law (page 1 of 2)

Resistance is Not Futile.

A claim common among opponents of a treaty ban on autonomous weapon systems (AWS) is that treaties banning weapons don’t work – suggesting efforts to arrest the development of AWS are an exercise in futility. Now this claim has been picked up uncritically by the editors at Bloomberg, writing in the derisively titled, “No Really, How Do We Keep Robots From Destroying Humans?”:

“Bans on specific weapons systems — such as military airplanes or submarines — have almost never been effective in the past. Instead, legal prohibitions and ethical norms have arisen that effectively limit their use. So a more promising approach might be to adapt existing international law to govern autonomous technology — for instance, by requiring that such weapons, like all others, can’t be used indiscriminately or cause unnecessary suffering.”

borgThe editors point out a valid distinction between weapons that are banned outright versus more generic questions of how the use of a specific weapon may or may not be lawful (the principles of proportionality and distinction apply to the use of all weapons). But they also make a conceptual and a causal error, and in so doing woefully underestimate the political power of comprehensive treaty bans. Continue reading

War Law, the “Public Conscience” and Autonomous Weapons

In the Guardian this morning, Christof Heyns very neatly articulates  some of the legal arguments with allowing machines the ability to target human beings autonomously – whether they can distinguish civilians and combatants, make qualitative judgments, be held responsible for war crimes. But after going through this back and forth, Heyns then appears to reframe the debate entirely away from the law and into the realm of morality:

The overriding question of principle, however, is whether machines should be permitted to decide whether human beings live or die.

But this “question of principle” is actually a legal argument itself, as Human Rights Watch pointed out last November in its report Losing Humanity (p. 34): that the entire idea of out-sourcing killing decisions to machine is morally offensive, frightening, even repulsive, to many people, regardless of utilitarian arguments to the contrary: Continue reading

Cyber Nerd Blogging: Neuroscience, Conflict and Security

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

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

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

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

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

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

A couple of thoughts:

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

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

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

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

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

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

War Crimes and the Arab Spring. Again.

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

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

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

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

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

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

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

More on Gotovina

Ante Gotovina

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

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

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

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

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

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

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

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

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

Targeting…targeting: What are reasonable expectations?

Blue moon, you targeted me standing alone…

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

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

Charli asks this question given that:

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

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

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

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

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

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

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

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

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

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

Robotic Planes: Harbinger of Robotic Weapons?


LA Times‘ latest article on drones raises the spectre of “robot weapons” in relations to the X-47B, Northrup Grumman’s new drone prototype with the ability to fly solo – part of an ongoing force restructuring as the US military cuts back significantly on human personnel.

While one might well ask whether a robotic plane (i.e. one that can fly autonomously) constitutes a robotic weapon if a human is in the loop for any targeting decisions, what’s notable about this narrative in press coverage is that the increasing autonomy of non-lethal systems is certainly being constructed as a harbinger of a slippery slope to a world of fully autonomous weapons systems (AWS). Anti-AWS campaigner Noel Sharkey is quoted in the article:

“Lethal actions should have a clear chain of accountability,” said Noel Sharkey, a computer scientist and robotics expert. “This is difficult with a robot weapon. The robot cannot be held accountable. So is it the commander who used it? The politician who authorized it? The military’s acquisition process? The manufacturer, for faulty equipment?”

And this is the first press coverage I’ve seen that invokes the evolving position of the ICRC on the topic:

“The deployment of such systems would reflect … a major qualitative change in the conduct of hostilities,” committee President Jakob Kellenberger said at a recent conference. “The capacity to discriminate, as required by [international humanitarian law], will depend entirely on the quality and variety of sensors and programming employed within the system.”

Indeed, ICRC President Jakob Kellenberger‘s keynote address during last year’s ICRC meeting on new weapons technologies in San Remo suggest that legal issues pertaining to autonomous weapons are indeed at least percolating on the organization’s internal agenda now, as opposed to previously. Thinking ahead to norm development in this area – the interest of a key player in the arms control regime signals an emerging trend in that direction – it’s worth having a look at the entire relevant text from that speech by Kellenberger:

Automated weapon systems – robots in common parlance – go a step further than remote-controlled systems. They are not remotely controlled but function in a self-contained and independent manner once deployed. Examples of such systems include automated sentry guns, sensor-fused munitions and certain anti-vehicle landmines. Although deployed by humans, such systems will independently verify or detect a particular type of target object and then fire or detonate. An automated sentry gun, for instance, may fire, or not, following voice verification of a potential intruder based on a password.

The central challenge with automated systems is to ensure that they are indeed capable of the level of discrimination required by IHL. The capacity to discriminate, as required by IHL, will depend entirely on the quality and variety of sensors and programming employed within the system. Up to now, it is unclear how such systems would differentiate a civilian from a combatant or a wounded or incapacitated combatant from an able combatant. Also, it is not clear how these weapons could assess the incidental loss of civilian lives, injury to civilians or damage to civilian objects, and comply with the principle of proportionality.

An even further step would consist in the deployment of autonomous weapon systems, that is weapon systems that can learn or adapt their functioning in response to changing circumstances. A truly autonomous system would have artificial intelligence that would have to be capable of implementing IHL. While there is considerable interest and funding for research in this area, such systems have not yet been weaponised. Their development represents a monumental programming challenge that may well prove impossible. The deployment of such systems would reflect a paradigm shift and a major qualitative change in the conduct of hostilities. It would also raise a range of fundamental legal, ethical and societal issues which need to be considered before such systems are developed or deployed. A robot could be programmed to behave more ethically and far more cautiously on the battlefield than a human being. But what if it is technically impossible to reliably program an autonomous weapon system so as to ensure that it functions in accordance with IHL under battlefield conditions?

When we discuss these new technologies, let us also look at their possible advantages in contributing to greater protection. Respect for the principles of distinction and proportionality means that certain precautions in attack, provided for in article 57 of Additional Protocol I, must be taken. This includes the obligation of an attacker to take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental civilian casualties and damages. In certain cases cyber operations or the deployment of remote-controlled weapons or robots might cause fewer incidental civilian casualties and less incidental civilian damage compared to the use of conventional weapons. Greater precautions might also be feasible in practice, simply because these weapons are deployed from a safe distance, often with time to choose one’s target carefully and to choose the moment of attack in order to minimise civilian casualties and damage. It may be argued that in such circumstances this rule would require that a commander consider whether he or she can achieve the same military advantage by using such means and methods of warfare, if practicable.

Three initial reactions, more later as I follow this issue for my book-manuscript-in-progress this Spring:

First, a distinction is being drawn in the legal discourse between “automated” and “autonomous” weapons, suggesting to me that the ICRC sees a soft and hard line here, one that is being obscured in the media and popular discourse. How this will play out in an efforts to apply humanitarian law to these new systems will be interesting to see.

Second, Kellenberger acknowledges the counter-claim that autonomous systems might have advantages from a war law perspective (this argument being put forth most famously by Georgia Tech’s Ronald Arkin). This suggests that the ICRC is far from taking a stance on whether or not these weapons should be pre-emptively banned, as some claim, and as blinding lasers were previously. Instead they are still listening and observing. It will be interesting to see how this debate develops among humanitarian law elites.

Third, I’m glad to see Kellenberger focusing on the question of discrimination, but it should be pointed out that the concept of discrimination in IHL is more than simply about whether distinction between civilians and combatants is possible, but also whether a system is controllable by humans once deployed – whether its effects can be limited. Anti-AWS advocates are certainly making the case that they may not be, and existing humanitarian law provides them some legal leverage to develop that argument if they choose – even if it is shown that such weapons are highly discriminate.

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

They’re updating this.

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

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

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

Safeguarding medical workers in hostilities

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

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

This makes for some pretty grim and reading.

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

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

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

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

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

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

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

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

Reciprocity and International Law: A reply to International Jurist

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

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

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


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

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

I agree with this sentiment very much.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Blegging: Did no one complain about the Soviet Use of landmines in Afghanistan from 1979-1989?

I am trying to find examples of humanitarian organizations that spoke out against the use of landmines by the Soviet Union during its invasion of Afghanistan from 1979-1989.

Landmines were big as one of the weapons issues put up for debate in the late 1960s and early 1970s by the UN General Assembly. The first specific legislation against them was Additional Protocol II to the 1980 Convention on Conventional Weapons. (A regulatory treaty as opposed to a banning treaty.)

Even if the original APII was pretty weak (it was amended in 1996 which greatly strengthened it) there is no question that the Soviet Union, who ratified the CCW in 1982, was violating the crap out of it. In particular the “butterfly landmines” it used were particularly horrendous.

However, until the series of reports by the UN Human Rights Committee from 1985-1990, I cannot find any evidence that humanitarian organization spoke out about the landmine issue until the 1990s. I have a couple of guesses as to why this would be the case (one being the fact that the ICRC was kicked out of Afghanistan in 1980, allowed to resume limited operations in 1987 but then kicked out again until the end of the war. This would obviously make it hard to monitor the situation.)

Yet, while speaking out about the sue of these weapons, the Human Rights Committee report does not invoke the 1980 CCW?  Did no one else speak up about the treaty (or landlines, or incendiary weapons, etc)?

Edit: There seems to be a certain amount of news coverage of the weapons issue in Afghanistan, but the NGO response still seems underwhelming. MSF held a press conference in 1982, but it isn’t until around 1988 that we start to see NGOs (like the ICRC) really highlighting the problem in the press.) Additionally, it seems that in 1986 a UN official actually tried to cut out some of the criticism in the Human Rights Committee report – allegations of the use of chemical weapons, for example – that made the Soviets look really bad.

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

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

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

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

According to Article 1 of the treaty:

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

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

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

Article 4 states:

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

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

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

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

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

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

More blogfare on lawfare

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

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

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

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

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

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

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

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

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

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

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

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.

On Why There is No International Law Against Using Very Large Rocks in Battle

I have a new article in the journal International Organization entitled “Vetting the Advocacy Agenda.” It tries to explain why some issues get noticed by transnational campaigners and others don’t, using weapons advocacy as a focal point of study. Key argument: it matters which organizations take up the issue; the global agenda is as much a function of structural relations within advocacy networks as of relationships between advocacy groups and states. You’ll need an institutional subscription to access the article online, or you can read the proofs version here. Abstract below.

While a number of significant campaigns since the early 1990s have resulted in bans of particular weapons, at least as many equivalent systems have gone unscrutinized and uncondemned by transnational campaigners. How can this variation be explained? Focusing on the issue area of arms control advocacy, this article argues that an important influence on the advocacy agenda within transnational networks is the decision-making process not of norm entrepreneurs nor of states but of highly connected organizations within a given network. The argument is illustrated through a comparison between existing norms against landmines and blinding laser weapons, and the absence of serious current consideration of such norms against depleted uranium and autonomous weapons. Thus, the process of organizational issue selection within nongovernmental organizations and international organizations most central to particular advocacy networks, rather than the existence of transnational networks around an issue per se, should be a closer focus of attention for scholars interested in norm creation in world politics.

I’ll have some findings on that latter written up in book form in the next year or so, Gods willing.(This of course means the larger project is still in progress, so feedback on this short early version quite welcome.)

Actually, We Don’t Know How Many Civilians Are Dying in Drone Strikes.

Peter Bergen and Katherine Tiedemann at the New America Foundation are keeping one of the most useful datasets on drone strike fatalities that I know of. They’ve been tallying reports of strikes since 2004. They limit their data to those reported by:

“news organizations with deep and aggressive reporting capabilities in Pakistan (the New York Times, Washington Post, and Wall Street Journal), accounts by major news services and networks (the Associated Press, Reuters, Agence France-Presse, CNN, and the BBC), and reports in the leading English-language newspapers in Pakistan (the Daily Times, Dawn, the Express Tribune, and the News), as well as those from Geo TV, the largest independent Pakistani television network.”

This gives them a systematic, if conservative, estimate of total fatalities. They then gather, archive and code the data in a transparent and replicable way – unlike other estimates of drone strikes that don’t provide evidence of how they derive their statistics. Bergen and Tiedemann’s results gives us a descriptive picture of how drone strikes have increased over time and changed by location and impact. Their website includes a set of helpful visualizations:

While I find the effort impressive and have sometimes cited Bergen and Tiedemann’s data as decent mid-range estimates of drone-strike fatalities, I am developing some reservations about the coding methods being used and the inferences being made after looking more closely at their dataset. In particular, Bergen and Tiedemann’s estimates of the ratio between civilian to militant deaths by strikes bears closer examination.

1) It’s important to emphasize that these estimates, most recently outlined in a Foreign Policy article entitled “There Were More Drone Strikes — and Far Fewer Civilians Killed”, do not actually measure of the ratio of civilian to militant deaths. They measure the ratio of reported civilian to reported militant deaths. This is a very important distinction that seems to have been lost on Bergen and Tiedeman, who claim in their recent Foreign Policy piece “even as the number of reported strikes has skyrocketed, the percentage of non-militants killed by the attacks has plummeted.” It is more accurate to say that the percentage of non-militants reported killed by the attacks has plummeted.

Acknowledging that this is data on news reporting more than data on actual deaths puts the data in a different light. For example, the declining trend in ‘civilian deaths’ could mean fewer civilians are in fact being killed. Or it could mean a shift in how reporters are interpreting ‘civilian’ or ‘militant’ over this time period – a period in which the very concept of the “civilian” is being degraded in popular, media and diplomatic discourse both by evolving events and by the notion, among other things, that a person loses their civilian status simply by being suspected of militancy against their government.

2) But let us set aside for a moment the question of whether (and which part of) war law (and therefore the civilian/combatant distinction) really applies to US airpower inside Pakistan. And let’s assume that it is legitimate to treat “suspected militant” as synonymous with “combatant” and “non-suspect” as synonymous with “civilian.” I still worry that Bergen and Tiedemann are overestimating militant deaths in these reports. One of the reasons for this is probably inevitable given their method: they rely on what mainstream reporters say, and reporters rely on information from the governments doing the killing. But another reason is completely within their control: by using “militant” rather than “civilian” as the default code when the actual status of the deceased, according to the reports, is “unknown” or contested.

For example, Bergen and Tiedemann record a December 31, 2009 attack in which CNN reported 2 were killed, 3 injured, and it was unclear whether any of the dead or injured were militants; and in which AFP reported 3 militants were killed and that “the identity of the militants is not known yet”; This event was coded in the Bergen/Teidemann dataset as “Al-Qaeda/Taliban killed: 2-5; Others killed; unknown.”

At a minimum, it would seem to me, this event should have been coded as 2-5 deaths “status unknown” rather than counting as either definitely militants or definitely civilians. In fact, however, it would be more consistent with humanitarian law, from which the civilian/combatant distinction is derived, to record any deaths in which the status of the deceased are unknown as civilians. (Article 50(1) of the 1st Additional Protocol to the Geneva Conventions states that “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”)

I would be interested to know how the Bergen/Tiedemann ratio of “civilians”/(non-militant suspects) to “combatants”(militant suspects) would change if their coding were replicated with either of these two minor yet significant changes introduced. (In the case of the Jamestown Foundation study released earlier this year the latter approach would have made an enormous difference in their findings even with males over 13 excluded, jumping the civilian hit rate from 5% to 27%.)

3) All this only goes to show how impoverished our understanding of the civilian impacts of different weapons will remain until some independent verification mechanism is established for tallying and reporting the dead in today’s wars. Important efforts are underway to fill this critical gap in the Geneva regime and should be supported by advocates of human rights and humanitarian accountability.

[cross-posted at Lawyers, Guns and Money]

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. 

Smart Bombing War Criminals While Avoiding Civilians

Despite what is sometimes argued, fighting wars is not a crime. But it is against the law for weapons-bearers to target large areas indiscriminately without regard for potential collateral damage. Instead, they are required to carefully choose only legitimate military targets.

In my view, the same standard could be applied to whistle-blowing advocacy groups: organizations like Wikileaks should engage in precision targeting of legitimate military foul-ups, rather than indiscriminate bombshells aimed at the entire military-industrial complex; and most importantly, they should aim to minimize collateral damage.

At Foreign Policy, I argue if Wikileaks were to follow such standards in disseminating future information, it could go far to regain its credibility as a champion of rather than threat to human security:

Criticisms aside, WikiLeaks adds real value to the international regime governing the behavior of soldiers in wartime by promoting precisely the sort of accountability that the Geneva Conventions require but military culture tends to discourage.

Imagine if WikiLeaks specialized only in receiving and publicizing reports of specific war crimes submitted by troops in the field. Instead of dumping 90,000 documents into the public domain and letting the chips fall where they may, the organization would serve as a conduit through which to reveal specific events that militaries might otherwise be tempted to cover up. Such a mechanism would ensure that specific war crimes allegations were made public and properly investigated without undue risk to whistle-blowers. That access point of information would encourage governments to take a stronger lead in investigating and punishing transgressions in the first place — a requirement under treaty law — potentially deterring future atrocities.

In short, the value of whistle-blowing should not be discounted – as Marc Thiessen has done – simply because it can do harm when done irresponsibly. Indeed a more targeted whistle-blowing architecture of the type Wikileaks has pioneered could be an indispensable element of 21st century security sector reform.

Read the entire thing here.

[cross-posted at Current Intelligence]

Older posts

© 2019 Duck of Minerva

Theme by Anders NorenUp ↑