More Fun With The International Laws Of Warfare

Clearly, I didn’t offend enough people with yesterday’s post on drone strikes, but you can’t say I didn’t try. And I’m nothing if not persistent, so here I go again.

Without belaboring the point, in yesterday’s post I explained why I object to the “war on terror” (I hate that phrase so much I’ll only write it in quotation marks, grammar and style be damned), in that it isn’t a proper war at all. Consequently, the real reason to object to drone strikes and “kill lists” is that we’re doing things that we might legally be able to do in a proper war, but can’t legally do if the war itself exists outside the recognized laws of warfare.

Turn-about being fair play and all that, it’s also worth noting that our enemy or enemies in the so-called “war on terror” (see?) operate entirely outside the laws of warfare, and that’s not an insignificant thing.

Of course, the first problem is trying to define who the enemy actually is. The simple answer is al Qaeda, of course, but I certainly don’t have a handle on what that organization is, who its members are, whom it’s affiliated with, and so forth. The Council on Foreign Relations has a handy guide to al Qaeda which provides the definition most of us are familiar with:

Al-Qaeda, Arabic for “the Base,” is an international terrorist network founded by Osama bin Laden in the late 1980s. It seeks to rid Muslim countries of what it sees as the profane influence of the West and replace their governments with fundamentalist Islamic regimes. After al-Qaeda’s September 11, 2001, attacks, the United States launched a war in Afghanistan to destroy al-Qaeda’s bases there and overthrow the Taliban, the country’s Muslim fundamentalist rulers who harbored bin Laden and his followers. Like his predecessor George W. Bush, President Barack Obama has committed U.S. strategy to destroying al-Qaeda’s safe haven in the Afghanistan-Pakistan region, and limiting the group's ability to strike U.S. targets.

Simple enough, I suppose, but note that CFR uses the term “network,” suggesting that the organization isn’t really a single organization at all but a group of interconnected individuals and groups who are sympathetic to one another’s goals and work, at least at times, in concert with one another. In fact, the CFR identifies at least ten other organizations al Qaeda is “connected with,” ranging from groups in North Africa (Egypt and Libya, in particular) to Central Asia (Uzbekistan, Kashmir) to the Middle East proper (Iraq, Iran, Yemen) to Southeast Asia (Malaysia, Philippines, Indonesia).

Needless to say, who is or isn’t a part of, or somehow connected with, al Qaeda is less than clear, but however you define the group (or groups), one thing is clear: Collectively, they are a paramilitary organization that utterly disregards the laws of warfare. Which is a fancy way of saying: They’re war criminals.

First and foremost, al Qaeda and its affiliates are war criminals because they frequently, if not exclusively, target civilians: The September 11 attacks, of course, targeted civilians, as did the 2002 attack in Bali, carried out by al Qaeda affiliate Jemaah Islamiah; the Madrid train bombings in 2004; the July 7, 2005 bombings in London; and literally hundreds of attacks in Iraq and Afghanistan alleged to have been carried out by AQI and/or by al Qaeda itself.

That list is woefully incomplete, but the pattern is clear: Civilians are the primary targets of al Qaeda and its affiliates. And its equally clear that targeting civilians is and has been, for at least the last 150 years or so, strictly prohibited by the international laws of warfare. For example, the Instructions for the Government of Armies of the United States in the Field, also called the Lieber Code, adopted by Pres. Abraham Lincoln on April 24, 1863, explicitly provided:

[A]s civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.

As the International Committee of Red Cross explains, the significance of the Lieber Code extended well beyond the United States and our Civil War:

Although they were binding only on the forces of the United States, they correspond to a great extend to the laws and customs of war existing at that time. The “Lieber Instructions” strongly influenced the further codification of the laws of war and the adoption of similar regulations by other states. They formed the origin of the project of an international convention on the laws of war presented to the Brussels Conference in 1874 and stimulated the adoption of the Hague Conventions on land warfare of 1899 and 1907.

In the modern era, the Fourth Geneva Convention, adopted August 12, 1949, contains detailed rules and regulations for the protection of civilian populations, and Additional Protocol I, adopted June 8, 1977, explicitly provides:

The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

Obviously, al Qaeda itself is not a signatory to the Geneva Conventions, but they have been ratified by a total of 194 countries, making the Conventions by far the most coherent, generally accepted body of war-related laws on the planet. It is indisputable, therefore, that al Qaeda’s repeated, intentional targeting of civilians violates all known international laws of warfare.

Moreover, al Qaeda often violates the laws of warfare wherever it operates, even if it’s not attacking civilians. That’s because the laws of warfare have long recognized that military organizations have to be identifiable as such whenever they engage in military operations. Again, this principle goes back at least to the 19th Century when the Institute of International Law adopted the Laws of War on Land, known as the “Oxford Manual,” in 1880. For example, Article 2 of the Oxford Manual specifically states that members of a nation’s armed forces “must have a uniform, or a fixed distinctive emblem recognizable at a distance,” and must “carry arms openly.” Again, the International Committee of the Red Cross explains:

From its origins, the military uniform, which came into general use with the appearance of large national armies in the 17th century, had a primary function of identification. The belonging to a particular armed force distinguished the soldiers from their enemies. The military uniform had and has other complementary functions such as promoting obedience, comradeship and a display of strength. International humanitarian law introduced to this identification element another dimension, namely the distinction between combatants and civilians. Combatants, when engaged in military operations, have to distinguish themselves from the civilian population to protect it from the effects of hostilities and to restrict warfare to military objectives.

Al Qaeda and its operatives very often disregard the long-standing convention – law, actually – that to engage in military operations you must wear an identifiable uniform or operate under a distinctive military emblem, and that’s kind of a big deal. The purpose of the military uniform/emblem requirement is, in large measure, to protect civilians. Hiding among the civilian populations of Afghanistan, Pakistan, and Yemen, dressed not in military uniforms but in the same manner of dress as the local population, al Qaeda and its paramilitary soldiers know full well that they are largely indistinguishable from civilians.

And that further complicates our drone strikes, already, in my view, suspect under the laws of warfare, because al Qaeda and its affiliates know that they are being targeted by us – ostensibly, at any rate, in response to their attacks on innocent civilians here and abroad – so they know they’re putting the civilians around them in harm’s way. 

None of this is meant to, nor can it, excuse the mistakes the United States makes in this so-called “war on terror.” But if we’re going to be critical of the United States and of the Obama Administration for the conduct of this war, let’s not allow our mistakes to excuse theirs.

[Photo credit: AlJazeera.com]