Tag: rules of war

Why the Geneva Conventions Need a Monitoring and Reporting Mechanism

Someone recently asked me whether, in the wake of the Richard Goldstone’s qualifications of his infamous report, the UN was losing its credibility to issue fact-finding studies on humanitarian law violations.

In my view, no matter how “credibly” a study is conducted, it is vulnerable to such critiques under the existing system – in which all humanitarian law reporting is partial, ad hoc and selective. That’s because unlike other international regimes, the Geneva Conventions comes with no official monitoring body.

At Foreign Affairs, I discuss this at more length and argue that it could and should be changed:

When the conventions were created, they were meant to be self-enforcing: signatories pledged that their own troops would follow the rules and agreed to bear primary responsibility for monitoring and punishing violations. But the treaties establish no independent organization to monitor compliance with the Geneva Conventions in real time, investigate alleged crimes after the fact, or produce even-handed analyses of each actor’s conduct measured against baseline humanitarian standards set by the treaties.

Without an independent monitoring mechanism capable of making informed, systematic, nonpartisan claims about what has happened on the ground, it is all too easy for countries to exploit the gray areas in humanitarian law. Consider drone attacks in Pakistan, which are criticized for having an undue impact on civilians. No independent body is responsible for systematically counting how many civilian casualties they cause. Nor is there any international institution to aggregate other relevant numbers — for example, civilian casualties from non-aerial attacks worldwide — for comparison. Instead, journalists and think tanks produce wildly conflicting estimates, relying on non-comparable sources and talking past one another. The discussion over drone use is thus stalemated, and it is left to the allegedly offending government to determine whether, in its estimation, its actions are justified.

An independent, multilateral monitoring agency tied to the Geneva Conventions could begin to fill this reporting gap. Such an organization would ultimately need to be designed by states through a negotiated consensus, but it is not too hard to envision what it could look like. Its role could be not to judge or condemn but to report; its data, a gold standard for courts, governments, NGOs, and scholars. The agency could be staffed not by lawyers and advocates but forensic specialists, statisticians, social scientists, and criminal investigators. It could include a mechanism for receiving and investigating confidential reports from soldiers who witnessed war law violations, filling a serious gap in the Geneva regime by formalizing war-crimes whistle-blowing. By limiting its mandate to objective reporting and requiring it to conduct rigorous and systematic investigations in every situation that meets a legally defined threshold for armed conflict, states would have less reason to fault the results of its investigations.

Read the whole article here.

[cross-posted at Lawyers, Guns and Money]

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Norms Are What Analysts Make of Them…? And Other Thoughts About Targeting Killings, Sieges, and War Law Development

Professor Michael Gross left a lengthy response at Current Intelligence to my remarks about his characterization of asymmetric war. I’m afraid he seems displeased with me:

Far superior to faint praise, it is still annoying when reviewers pick out controversial arguments but leave the impression that the author did not address them.

Oh dear. It’s true that, in my effort at brevity, I did give short shrift to many of the overarching strengths of the book: its breadth, up-to-date-ness, and unique and timely case studies on non-lethal weapons, assassination, the right to self-defense of national liberation movements and humanitarian intervention among others. But then again, this wasn’t a book review, just a brief response to a specific set of points Gross makes. My other essay referencing his book responds to a different set of equally specific points, and should be read as such. Neither is or is intended to define or respond to the entire book, which is a broad overview of dilemmas states and irregulars face in winning wars against one another. (If you want to read such a review however, here’s one. Professor Gross is also apparently writing an equivalent treatise on the moral dilemmas faced by irregulars, which I eagerly anticipate.)

At any rate, Gross goes on to engage the comments I did make at some length, for which I’m grateful. As one good turn deserves another, let me discuss some of his remarks and also try to clarify where I see the differences in our opinions – which are not so far apart really (we both care about war law and about protecting noncombatants) but which do differ somewhat on analytical, ethical and programmatic grounds.

First, I think a key difference in our thinking which is demonstrated in Gross’ response to my essay hinges on our use of the term “norms.” I tend to follow Jepperson, Katzenstein and Wendt in writing about ethical norms in a descriptive sense, as empirically identifiable “collective understandings about the proper behavior of actors with a specific identity.” I teach my students in Rules of War that analyzing the origins, extent and impact of norms as understood by political actors is very different from doing “normative theory” – that is, drawing on philosophical principles to make arguments about how states should behave.

But Gross uses the term to both describe norms and to make ethical arguments, often interchangeably. Consider, for example, the following:

Assassination (Chapter 5) was long reviled but took on new life in the 21st century to wage war against militants entrenched among civilians. Initially condemned as extra-judicial execution (by this writer among others), targeted killing has emerged as an effective means to disable non-uniformed combatants while sparing civilians many of the horrors of full-scale battle. Today, the debate turns on improving effectiveness and curtailing collateral harm. Virtually no one questions the morality of fingering combatants for killing. Yet this was the crux of a norm that stood fast since the American Civil War.

It should also be clear then that some practices can never evolve into acceptable norms of military conduct. This is true of disproportionate force, the so called “Dahiya” doctrine named after the Beirut neighborhood that was pulverized in a fruitless attempt to destroy Hezbollah’s command headquarters during the Second Lebanon War.

In the first sentence of the first paragraph, Gross describes the varying extent and strength of the anti-assassination norm and how it changed over time, an argument also made by Ward Thomas. He also argues that the norm has been eroded by current state practice and that this is reflected in the absence of concern over targeted killings. (This latter is an empirical statement and in theory empirically falsifiable, as I’ll show in a moment.)

In the second paragraph though, Gross is making a normative claim (as opposed to a descriptive claim about norms). He is arguing that there are standards that should not be crossed. At least he must be, because it’s certainly not the case that standards can’t be crossed in political reality: in fact many behaviors we today consider immoral were once perfectly acceptable.

This perhaps explains why I have more faith in existing international norms than Gross appears to have. Distinguishing between my own opinion of what they should look like and my understanding of what actors in the world actually think on these matters enables me to avoid my normative preferences with the way the world actually works.

For example, I am fairly certain Gross is empirically wrong about targeted killing. First of all, the fact that it’s considered effective doesn’t mean it’s considered normatively valid. Second, the fact that it is being practiced doesn’t necessarily undermine the anti-assassination norm unless you assume that targeted killing is assassination. (Actually, a far more nuanced argument on targeted kiling is developed by JW Fisher, who distinguished targeted killing from assassination on legal grounds and points out that targeted killing actually squares normatively with the anti-assassination norm, not challenging it, insofar as it is also designed to maintain/restore Westphalian order.) But most importantly, it is certainly not the case that targeted killing is uncontested. In fact it is so enormously controversial that the United Nations Special Rapporteur on Summary Executions has condemned the practice. Human Rights Watch has expressed grave concerns about the lack of transparency with respect to targeting decisions, making it impossible to evaluate the legality of such killings. There is simply no evidence of an international consensus that such actions are lawful. Whether I or Gross believes they should be considered lawful is entirely beside the point in terms of social scientific analysis.

The second way in which Gross and I differ – though only slightly – is on ethical grounds. (I say slightly because we largely agree on the big points: war law matters, the protection of noncombatants is important and trickier than it has to be, norm development is needed, strengthening of humanitarian principles is a good thing, the general neglect of the duties – and rights – of irregulars has been part of the problem.) Still, we are in disagreement about the ethics of specific solutions to these problems. Consider the following statement:

Are indirect participants off the hook or, as I suggest, do they bear some measure of responsibility for war and aggression? And, if liable, what is to be done with them? Here I make a modest suggestion: incapacitation. This means rendering infrastructures inoperable, apprehending civilian participants and restricting their movement through curfew, siege or incarceration. This limits freedom of movement but respects their right to protection from harm during war.

Perhaps so, and some readers may be in closer agreement with Gross than I on this point. But if nothing else an examination of the long-term effects of siege and incarceration on civilians does not necessarily “protect them from harm.” (It may protect them from death by explosives, but not from death by exposure, preventable disease or malnutrition; or from the psychological harms of captivity and separation from loved ones). Moreover this idea skirts the question of how to distinguish “indirect participants” from non-participants, all of whom would presumably be affected by measures such as siege, only pushing the distinction question down one layer of ethical complexity.

But the final and probably most important set of differences between us, which I elaborate here, is that Gross seems to argue that the natural and proper mechanism for “norm development” is mere state practice. The proposal above, for example, is for a change in state military doctrine. The evidence he provides for “norm change” in his book is the fact that certain states, especially the US and Israel, have changed their practices.

I view norm developments as distinct from and often taking place as a reaction to shifting state practice. They are the result of multilateral discussions among states, often the result of a longer period of normative dialogue within the wider global civil society, and you know these developments both by the nature of those conversations and the ways that states account for what they do and respond to what others do.

Ultimately Gross and I are asking the same big question: how can states further shrink the impact of war on civilians without losing wars to irregular fighters who themselves threaten civilian life? And many of the same smaller questions: what should direct participation mean in a transnational war? What is the proper metric for tallying the civilian dead and weighing them against military necessity? What obligations do governments owe the lawful yet innocent victims of war?

But where Gross’ answer is to propose specific doctrinal recipes for warring governments, my answer is simply: states need to develop an enforceable consensus on what the answers should be through multilateral dialogue and participation of global civil society organizations (not unilateral re-interpretation of the norms).

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“Courageous Restraint” Medal

NATO is considering a medal for soldiers who display “courageous restraint” in their use of lethal force to save civilian lives. According to CNN,

“Although no decisions have been made on the award itself, the idea is consistent with our strategic approach,” Sholtis said. “Our young men and women display remarkable courage every day, including situations where they refrain from using lethal force, even at risk to themselves, in order to prevent possible harm to civilians. In some situations our forces face in Afghanistan, that restraint is an act of discipline and courage not much different than those combat actions that merit awards for valor.”

The idea is controversial among some conservatives who believe it will send confusing signals to the troops and embolden insurgents. It is also unclear how a medal for a non-event/inaction would be judged. However, given the increasing frequency of tragic incidents in which occupying forces have opened fire on civilians in Afghanistan, the medal seems to be an attempt to incentivize a more a cautious and “population-centric” approach. The ultimate aim, of course, is to minimize the restment toward foreign forces that builds after each tragic incident (and may in some cases lead to shifting support toward the insurgents).

While I do not think this particular idea is practical, the thinking behind the concept is laudable as it recognizes the heroism and personal risks taken by many soldiers on a daily basis. A “population centric” counter-insurgency strategy naturally requires shifting risks borne by the civilian population to professional soldiers.

Those who argue that soldiers should not have to bear additional personal risks are essentially in denial about the nature of the occupation and insurgency. The official counter-insurgency policy recognizes that there are limits to the use of lethal force. Beyond a particular threshold the use of deadly force, particularly if it results in the loss of innocent lives, hinders the long term success of the occupation and saps the already anemic popular legitimacy of the Karzai regime. (I am not arguing that NATO’s counter-insurgency strategy will work, but the unrestrained use of force is unlikely to pacify this population if recent incidents are a reliable guide).

I think most will agree that it is as courageous to show restraint and save innocent lives as it is to fight with valor and kill armed combattants. As there are punishments for the abuse of lethal force, there should also be rewards for restraint. The issue is how to reward that risk taking in a way that does not create confusion about the rules of engagement or embolden the enemy. I don’t have a solution, but I commend NATO for trying to come up with a way to recognize alternative forms of heroism and to address this incentive oversight.

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An Interesting New Case of Global Norm Entrepreneurship

A DC-based NGO is promulgating a novel idea: that states should compensate civilians that they legally harm during combat operations.

The Campaign for Innocent Victims in Conflict(CIVIC) has launched a “You Harm You Help” campaign. Having succeeded in convincing the US Government to create a trust fund for victims of collateral damage in Afghanistan and Iraq, the organization is now trying to figure out how to turn this practice into a global norm.

The idea is important because the existing laws of war don’t require governments to compensate war victims.Governments are often required to pay reparations for war crimes, but hitting civilians by accident is perfectly lawful. And a right to humanitarian assistance is widely recognized for all civilians, but the architecture for it constitutes little more than organized charity.

CIVIC wants to make compensation for deaths and maimings an obligation of warring governments, rather than a charity act by random donors and NGOs. And because the focus is on the outcome not the intention, CIVIC argues states should pay up whether they mean to hit civilians or not.

“In the past century, we’ve seen marked improvements in how we treat each other. Nations have made legally binding commitments to respect women’s and children’s rights, to abolish torture, and protect free expression. Through the Geneva Conventions and treaties banning weapons like landmines, nations have also promised to protect civilians when they go to war. But no treaty, custom or norm requires nations to help those they fail to protect. No matter how many civilians are killed in a war, no matter how many are left homeless, no matter how much property is destroyed, those who do the damage have no legal duty to help.

We hear time after time “war is war” – the standard explanation for overlooking harm to innocent people. It’s time for a change.”

I see CIVIC as a fascinating example of norm entrepreneurship. Fascinating in particular for my new book on advocacy campaigns because CIVIC hasn’t got very far yet, unlike most of the norm entrepreneurs identified in the advocacy networks literature who got attention because their campaigns succeeded.

What remains to be seen is whether CIVIC will become a failed campaign – whether its issue will fizzle, die or end up coopted by others’ issue agendas, or whether we are witnessing the first stages in a future global norm. Stay tuned.

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