New Wars, New Rules? Not So Fast...

JURIST Guest Columnist Laurie Blank of Emory Law's International Humanitarian Law Clinic says that while the challenges posed by "new wars" are admittedly vast, we should not let those define us and our values. Rather, she suggests, we should use the law to rise to those challenges....



This is a new kind of war, with a new kind of enemy. The old rules of international law are antiquated and no longer apply. So says Judge Janice Brown of the D.C. Circuit Court of Appeals in Al-Bihani v. Obama. These assertions echo the claims used by the Bush Administration to argue that the Geneva Conventions are "quaint" and "obsolete."

We are in a new kind of war. Where once nations fought nations, now we fight insurgents, shadowy terrorist groups and other non-state entities. Where we once measured combat by the number of tanks or fighter jets destroyed, now we count roadside bombs and suicide bombers.

But does this new kind of war necessarily demand new rules? Those who say yes point to the fact that the Geneva Conventions entered into force in 1949, only four years after World War II — ancient history in terms of the nature of conflict.

Before we confine the law of war to the dustbin of history, however, let's just be sure that we don't really need them. The Geneva Conventions, and the law of war for centuries before that, are based on four key principles: distinction, proportionality, military necessity, and humanity.

The principle of distinction requires all parties in a conflict to distinguish between those who are fighting and those who are not and to target only the former when launching attacks. It also requires those who are fighting to distinguish themselves from innocent civilians. Distinction has a simple but noble purpose — to protect innocent civilians from unnecessary suffering during conflict. It also protects soldiers by helping them understand whether persons they encounter are hostile or innocent.

The principle of proportionality seeks to balance military goals with protection of civilians. It prohibits an attack when the expected civilian casualties will be excessive compared to the anticipated military advantage. In essence, a commander must believe that the stated military goal is reasonable in light of any foreseeable incidental civilian casualties.

Military necessity recognizes that the goal of war is the complete submission of the enemy as quickly as possible and allows any force necessary to the achievement of that goal as long as such force is not forbidden by the law. Destroying enemy capabilities is legitimate, therefore; wanton killing and destruction is not.

Humanity aims to minimize suffering in armed conflict. To that end, the infliction of suffering or destruction not necessary for legitimate military purposes is forbidden. This principle stems from the code of chivalry, itself an early manifestation of the laws of war.

Those who argue that we need new rules for these new wars must consider exactly which of these principles we no longer want or need. Are we so anxious to kill terrorists and jihadists that we are willing to disregard the need to figure out whether our targets are in fact terrorists before we shoot? Perhaps instead we'll decide we can destroy as many villages as it takes to get that one elusive insurgent.

The uncertainties and complexities of fighting against insurgents and terrorists do indeed increase the challenges in applying and adhering to the laws of war. These same complexities make conflict ever more deadly for innocent civilians and soldiers alike. Throwing out the very rules designed to minimize suffering in conflict hardly seems to be the right choice at a time when that suffering is only increasing.

Instead, let's focus on making the law work better in unpredictable and difficult circumstances. For example, we need to sharpen our ability to differentiate between friends and foes so that we know who is dangerous and who we must protect. Our enemies may not wear uniforms, but that does not give us the right to shoot innocents in their stead.

We need to examine how to better protect civilians caught up in the zone of combat while still enabling effective military operations. When insurgents seek shelter in local villages, we cannot simply choose between bombing the whole village or letting the insurgents walk free for fear of civilian casualties, but need to develop operational tactics that enable more surgical strikes.

We need to learn more about how insurgents and terrorists operate so we can target their facilities while still protecting civilian buildings and infrastructure. The fact that our enemies make roadside bombs in residential basements and store munitions in mosques or hospitals does not excuse our obligation to distinguish between military and civilian objects. Nor does it make this obligation obsolete. Rather, it means that we must marry a more discerning analysis of when a building becomes a legitimate target with more sophisticated intelligence information.

The key principles of the international law of war are sound and timeless in their purpose — and critical to our ability to carry out effective military operations. Judge Brown seeks to discard the "old wineskins of international law" and "demands new rules be written." But which of these principles would she give up? The challenges new wars pose are vast, but rather than let them define us and our values, let's use the law to rise to the challenge.


Laurie R. Blank is the Acting Director of Emory Law's International Humanitarian Law Clinic.
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