Friday, July 28, 2006

On the differences between Catholic just war theory and Michael Walzer's just war theory: the criterion of likelihood of success

I am reposting here a discussion in moral theory of the just war, from two years ago, of differences between Catholic just war theory and other versions of the theory, notably that of Michael Walzer in his celebrated Just and Unjust Wars. I have been thinking about these differences in reading the commentary on the Lebanon conflict, particularly that of the Catholic law professor Stephen Bainbridge, here, and also in a Tech Central Station article that I can't at this very moment find. (Let me insert as a footnote, for those of you who go to the link, that I do not at all agree with Ed Morrissey's straight-out rejection of proportionality and, really, the core of just war theory, either.)

One important, although hard to describe, difference lies in the point of view of the moralist. Catholic tradition has a sort of "as though seen by the angels in heaven" standpoint to it - I think of it almost as just war theory as a "managerialist" way of approaching conflict, not exactly neutral, but removed from the parties. There is an important intellectual history to this; one which draws upon the Church as the moral arbiter, at least sometimes, among the squabbling princedoms of Christendom. It also, of course, draws upon the Christian conception of a God who is no respecter of persons. I do not mean by this that the Vatican sees itself, as Joseph Bottum, editor of the Catholic journal First Things, wrote last week in the Weekly Standard, as having a foreign policy agenda, one which happens, at this moment, to be deeply interested in placating and finding common ground with Muslims - although certainly that is true. I mean a deeper, theological commitment to just war theory as a managerial theory whose moral standpoint is, in Thomas Nagel's famous phrase, the "view from nowhere." (If you find I am making no sense here, well, you may be right. Did I say this blog is all first draft?)

Walzer presents an alternative version of theory - in some respects different as to the normative criteria of the just war, but perhaps more importantly different with respect to the 'moral point of view'. Not so very different, in one sense, but very different in another. I discuss it below; the brief point is that Walzer, as he once remarked to me at the end of a conference a couple of years ago, is not presenting a "full" theory of justice and war. That, despite the name of his book. It is, rather, a theory of resistance to aggression. It takes, in subtle and not subtle ways, the point of view of the resistor, not that of God in his heavens. Despite being a theory of rights in war, it is not a Kantian theory. It does not take the wholly objective point of view; it seeks to apply objective moral criteria, but seeks to do so from the viewpoint of a particular actor, those who resist aggression. Nowhere is this distinction more important than in Walzer's insistence - as un-Catholic just war a sentiment as one could make, one distinctly alien, for example, to Professor Bainbridge's moral remove - that all things being equal, a political community is not only entitled to resist aggression, it should do so. That is not a Catholic sentiment, not a Christian sentiment. I don't mean here Christian in the sense of turn the other cheek but, rather, Christian in the sense of the Christian seeking to stand in the moral position of a removed God. And it is that aspect of Walzer's thinking that makes it secular, rather than religious - not the fact that he does not invoke God, but the fact that the moral viewpoint never leaves the planet earth.

As I say below, this element of Walzer's thought - I acknowledge that I am reconstructing Walzer's meta-thought to construct my own position here, and don't want to suggest that he would necessarily agree with the 'moral point of view' point - draws us back to three figures who might not otherwise seem very related - Lincoln, and two Frenchmen, Albert Camus and the poet and contemporary and great friend of Camus', Rene Char. (I have said a lot about Char on this blog - I have more or less taken over his terribly expressive phrase for the moral condition of war - "this time of damned algebra," Char called it in his WWII diary as a Resistance fighter, Leaves of Hypnos.) I won't try to explain the relationship with Char here. But Camus insisted, especially in the closing sections of The Rebel as well as in letters in the collection Resistance, Rebellion, and Death, that our moral task was to find a way to be simultaneously of the earth and yet, in some sense, objective - objective in our judgments and yet committed in our human engagements, including our political ones.

As for Lincoln, well, I refer to the Second Inaugural Address, and the most difficult passage in it, in which Lincoln says in nearly the same breath, let us press on to finish the work we are in - the most sanguinary war this country has yet seen - sure in the right, as God gives us to see the right. Lincoln seems here to be seeking to steer a course between moral relativism and moral absolutism. He concedes neither to the proposition that however we see the right, it is how we see it and anyway it is what God gave us; nor does he concede that we should unthinkingly go forward in war to its bloody conclusion, unreflectively. (I once tried to express this better in a Times Literary Supplement review of books on the Second Inaugural Address - not on SSRN, but available from my law school academic site, here.)

What I mean to say, here, and in the reposted comments below, is that there are versions of just war theory that are subtly different, at the metalevel, from Catholic versions of the theory. Not just the doctrinal collapse of Catholic just war theory in the hands, for example, of American bishops into a form of what George Weigel has aptly called, in his marvelous book Tranquillitas Ordinis, functional pacifism - or what Joseph Bottum describes as the Vatican's foreign policy adventures. But different versions of the theory that take seriously rights, while differing on how much the theory should take into account the moral point of view.

I should add, too, that apart from Walzer, the scholar from whom I have most learned about the just war is James Turner Johnson, who, unlike Walzer, puts just war theory firmly within an intellectual and moral tradition rather than, as Walzer does, making it an essentially ahistorical theory of rights (this sounds peculiar, given that Walzer proceeds by historical cases, but the cases are there for casuistry, not as a source of the intellectual history of the doctrine).

The repost:

Judith in London asks a good question concerning the traditional criteria of the just war. Where, she asks, does the "likelihood of success" criterion come from?

The traditional criteria - they can be stated and parsed in different ways, of course - are (1) just cause (2) just authority (3) just intent (4) just conduct (5) likelihood of success (6) good outweighing evil consequences. You can state these differently and you can add several more, such as the requirement, popular nowadays in some circles, of a "just peace."

As I've stated them here, however, numbers 5 and 6 are consequences-based criteria. That is, they are concerned not with rights as such, but instead with the consequences that might occur even if one is, indeed, exercising one's moral rights. Christian just war theory has traditionally accepted that the criteria of the just war are "mixed" as between those which are about the enforcement and defense of one's rights and the rights of a political community - just cause, for example - and those which are about taking into account ultimate real world consequences. Sometimes the consequentialist criteria are referred to as "prudential," although that has seemed to me to underplay that they are indeed moral criteria, albeit of a different sort.

Likelihood of success matters, on traditional just war theory, because, it is said, if you can predict reliably in advance that your fight is suicidally destined to lose, then you should not engage in the evils that will inevitably result from the fact of fighting alone. The fight might be a just attempt to vindicate your moral and political and legal rights - but if it is obviously doomed from the start, then you should avoid it even at the price of injustice.

Judith asks why Michael Walzer does not give an account of this in Just and Unjust Wars. In part the answer is that the book is not really concerned with accounting for the traditional criteria of the just war at all; it is a narrower theory than that (in a certain sense, and a wider one than just war theory, in another), a theory of resistance to aggression. More importantly, however, Walzer does not accept this traditional Christian constraint on the attempted vindication of rights. Walzer might say that this is because, as a factual matter, apparently lost causes turn out not to be lost after all - who would have thought, for example, that Churchill would come back to win and, for that matter, Europe was quite convinced that the North could never win the civil war and thought it a matter of moral obligation to intervene to end the killing.

But in fact Walzer means something much stronger in moral rights terms - his argument is not factual in principle, but a matter of basic moral principle. He says, at the opening of chapter 4, p. 51:

"The wrong the aggressor commits is to force men and women to risk theirlives for the sake of their rights .... Groups of citizens respond in differentways to that choice, sometimes surrendering, sometimes fighting, depending onthe moral and material conditions of their state and army. But they are always justified in fighting; and in most cases, given that harsh choice, fighting is the preferred moral outcome."

Walzer grants that citizens may decide not to fight, and likelihood of lack of success may be their motivating reason, but he reserves to them the right to fight absolutely and lauds the preference to fight no matter what. Indeed, he goes on to say that it is the "justification and the [moral] preference" for fighting that "account for the most remarkable features of the concept of aggression." (p. 51) (It is hard to believe that Walzer was not thinking in this passage of the failure of the French to fight in the Battle of France.)

Given this kind of language, it seems evident that Walzer does not regard the criterion of likelihood of success - a consequentialist criterion - as having the power to modify how people should act to vindicate rights in the way that the medieval Christian theologians did. Given that Christian theology is not exactly warm to consequentialist arguments much of the time, what might account for the fact that Christian theology accepts it here as against rights-language more than Walzer will allow?

The deepest reason, I believe, has to do with the moral viewpoint from which one views war - the moral place on which one stands to look at war. The Christian fathers, by the nature of their moral place, inevitably see war from the standpoint of God in Heaven, from above, and this "outside" of humanity standpoint makes it much easier for them - altogether curiously, I emphasize - to consider the costs and consequences of war without regard to rights, given that so many innocents in war suffer. It is easy to imagine the angels in heaven simply writing off the right and wrongs of war and instead seeing only the costs of war - calling for an end to the bloodshed as being the most important thing, even if there are indeed rights and wrongs - they, after all, will get sorted out later, in the final judgment of souls. (I am reminded just a little of the great Swiss playwright Friedrich Durrenmatt's 1950s play, An Angel Comes to Babylon.)

Unsurprisingly, this is how Christian theologians of mainstream persuasion tend to see war today - they tend to leave aside the actual reasons for war in order to focus on the costs to innocents and hence rarely find war justified, finding nealry always that it fails that other test of consequences, greater good than evil.

Walzer, by contrast, is in his moral "location," if I can describe it as such, much more like the great secular moralistes, Albert Camus above all, and Rene Char as well, who refuse to depart, as it were, to the heavens, but remain on earth and locate themselves morally in the struggle between right and wrong, good and evil. In that case, the consequentialist considerations about war, so easily visible from the remoteness of heaven, seem much less important than the nearby, concrete causes of war here on earth.Yet we want it both ways - and this is true of Walzer as it is true of the ancient theologians. The differences are in degree - profound differences of degree - but certainly Walzer will not say that consequences are irrelevant, nor do the ancient theologians write off the discourse of rights which is, after all, the natural language of natural law. Far from it; all hands admit it is a mixed theory, seeking to vindicate plural moral goods.

Welcome Instapunditeers!

My thanks to Glenn Reynolds for the Instalanche (although I value scholarly writing a lot, it is always exciting to welcome more readers in a single day than will ever read all my law review articles for the rest of time).

There was a bad link (my fault) to the proportionality in jus ad bellum and belligerent reprisal post; it is here.

Other posts from this blog you might find relevant on these topics:

Proportionality in jus in bello, here.
Geoffry Corn on proportionality in jus in bello, here.
Who Owns the Rules of War? Here.
Alan Dershowitz on degrees of 'civilianality', here.
Civilian collateral damage and obligations of defenders not to commingle, here.
Walzer and Catholic versions of just war theory and the criterion of likelihood of success, here.

Wednesday, July 26, 2006

Johanna Kalb theorizing international development NGOs

Johanna Kalb, a joint degree student at Yale Law School and Johns Hopkins SAIS, has a new article out in the Texas International Law Journal on theorizing international NGOs in international development work. 41 TXILJ 297 (Spring 2006). I read it on Westlaw; it doesn't seem to have been posted yet to SSRN.

I confess I ran into it when curious about who had cited me and for what. Kalb is dealing with a very important issue of how NGOs fit into the world of international development. I don't agree with everything she says, but the issue is very, very important and this is an important contribution to thinking about it. I strongly recommend it (and hope, for the sake of it getting the wide audience it deserves worldwide, that it be posted to SSRN soon).

Ms. Kalb cites to a piece I wrote in the European Journal of International Law back in 2000 on the Ottawa Convention; that piece is concerned especially with the lack of democratic accountability of international NGOs. David Rieff and I have a more systematic presentation of that argument, actually, in a newer article - chapter in the leading yearbook on international NGOs, Civil Society 2004/5, edited by Mary Kaldor, Helmut Anheier, et al. That chapter is available at SSRN, here. I think it is a cleaner presentation of the thesis in the Ottawa Convention article.

A lot of my professional life away from this blog is actually about international development and development finance. I don't write about it that much here, not because it's not important, but because much of the time I'm busy doing it. One of the few things that I've written about it in a sort of theoretical vein was in 2002, at SSRN, here, on theorizing microcredit. But much of my work in these areas is pretty finance lawyer practical - the organization I work with, on media development, just created and sold the very, very, very first NGO issued derivative financial product, a swap note issued on the Zurich stock exchange a few months ago through Vontobel bank group. You can read about it, here. Unfortunately, it is fairly technical even for law professors who, on this blog, mostly come here for law of war and public international law, not finance. But it is a major milestone in international nonprofit finance, please take my word for it. I should write more in this area, I know.

Anyway, please read Ms. Kalb's article. We need much more thinking and writing in this area, and this article is a strong contribution to that.

Quick note on proportionality jus ad bellum and the law of belligerent reprisal

(Update, July 28, 2007, Friday. Welcome Instapundit readers and thanks to Glenn for the Instalanche! I had been planning on revising this entry but didn't get around to it. But let me make some revisions now ... I will leave the original post at the bottom of all this. My intent is not to go on and on, but to make a basic point about proportionality and the law of belligerent reprisal. It is not intended to be a technical post, with footnotes and long explanations.

(I have posted a longer, legally technical comment on proportionality in jus in bello, proportionality in the conduct of armed conflict, here, as well as a useful comment by Geoffry Corn, here. I have also reposted an article on the history of the laws of war and the difficulties of asymmetric warfare - ie, warfare where the other party does not respect the combatant/noncombatant distinction - that I wrote for the New York Times Magazine at the opening of the Iraq war in 2003, here. And a group letter, issued at the opening of the Iraq war, noting that defenders in armed conflicts have legal obligations to protect civilians, not just attackers, here. I also have posted a variety of things on Hamdan, Common Article Three, if you poke around. And here is a post on the meta-theory of the just war, comparing Walzer and Catholicism's versions of just war theory. But here are some additional and revising comments on proportionality and jus ad bellum:)

The Lebanon conflict has seen much discussion of the concept of proportionality, as a moral concept in the theory of the just war, and as a legal concept. It applies in two separate contexts - one, the conduct of armed parties in war, jus in bello, which I discuss here and, second, the war aims of parties in making the determination to resort to force, jus ad bellum. I briefly and non-technically address a part of the second, jus ad bellum, issue of proportionality in this post.

As a matter of the moral theory of the just war, proportionality applies to the decision by a party to resort to force. The war aims of a party in resorting to force must be, in a broad moral sense, proportionate to the wrong suffered. I stress broad moral sense, because the harm suffered includes not only actual harms suffered in a particular incident of aggression - a rocket attack upon civilian targets or, for that matter, military ones ; kidnapping for hostages; etc. - but the threat posed by the continuing possibility of such action and their escalation. The determination of the extent of a threat, how great it is, and what it takes to eliminate it are traditionally in the hands of a state. Credible threats of unjust aggression are aggression in the theory of the just war as much as actual action, and for obvious moral reasons.

A sovereign state has an obligation to protect its people against credible threats of unjust aggression; and in traditional just war theory, the leaders of a state have the obligation to decide what constitutes a credible threat and how to respond to it. Note that in the Catholic catechism - I am not a Catholic, and understand its discussions of the just war as a species of casuistical moral theory, not transcendental doctrine - the determination of these matters is not given to theologians, bishops, or religious authorities, but instead to leaders who must weigh up the considerations of the common welfare, including its safety. It is the Christian obligation of those leaders to make those determinations, for which, presumably, they must answer to God; their obligation to the just safety of their people is an obligation of Christian love.

Note, too, that the moral obligation of a state to protect its people does not just apply to just, democratic, or "decent" states; it is a more fundamental obligation of sovereignty than even justice or decency. Saudi Arabia, for example, is neither just nor decent, but its rulers have an obligation to protect its people from exterior attack. There are limitations on this, in the form of not merely unjust or wicked states, but states that are, for example, genocidal - but in general, a state need not be virtuous in order to have the obligation and rights of a sovereign to protect its people from outside aggression.

That said, much of the comment on proportionality in Israel's war aims in the Lebanon conflict has been based around the assumption that it must be proportional to the immediate incidents which sparked retaliation - the kidnapping of Israeli soldiers as hostages and the most immediate rocket attacks upon civilians. As noted above as a matter of moral theory, the response to aggression is not predicated upon the triggering incident, but instead upon the threat presented - the evaluation of which lies in the hands of a state and its leadership. Israel is free, as a matter of just war theory, to determine that it will not suffer rocket attacks upon its civilian population into the future and to determine, as a matter of the prudential considerations of military necessity, that now, rather than later, is the time to remove the threat. That determination is a question of proportionality measured against aggression and threat of aggression, not against any particular triggering incident.

There is a separate question of proportionality, jus in bello, of what conduct in war may be used to pursue a war aim to remove the underlying threat. Does it, for example, include attacks upon infrastructure and mingled civilian and military objects. What difference does it make that the enemy has deliberately commingled civilian and military objects? I have (albeit briefly) dealt with those questions on other posts; the issue here is proportionality in jus ad bellum.

There seems to be some confusion as to two separate legal concepts in what constitutes a proportionate response in jus ad bellum. One is simply the matter of going to war with the intention of removing the threat - which a party might reasonably determine requires surrender by the other side, regime change, or other drastic actions. The requirement of proportionality, as noted, is determined by the nature of the threat.

The second legal concept is that of the law of belligerent reprisal. It is a narrow doctrine, with narrow although important application, in which proportionality plays a special role. There are circumstances, long recognized in customary law of jus ad bellum, in which states will make incursions or aggressions of a limited nature against another party. The underlying reality is that the two states do not want fully to commit to war. But the risk of not responding to an armed provocation can be severe - it invites the other party to see weakness and continue to press with provocations. The law of belligerent reprisal allows a party that has been the subject of an armed provocation to retaliate, in order to make clear to the other party that it will defend its sovereignty, but to do so in a way that sends a legal signal that it will not escalate the conflict if the other party does not. It is a form of legal self-help - responding with force, but force that is proportionate to the immediate provocation and intended to close the circle of violence and cut it off with a single tit-for-tat, rather than see it spiral upwards into full conflict. Reprisal in the law of war is retaliation characterized by the intention to right a wrong or respond in kind to a wrong, but to do so in a way that invites the other party back to the legal status quo ante. The key legal elements that convert retaliation into legal reprisal are proportionality - to make clear that the response is proportionate to the immediate offense - and publicity - to make clear to the other side that this is a lawful action as legal reprisal, not merely retaliation in a military sense, a formal move in the law of war intended to return to the status quo. It is intended to stop short of full belligerency, in which the war aims shift, and proportionality is no longer measured by the immediate provocation, but by a state's assessment of the underlying threat.

One can think of many situations in the world where the law of belligerent reprisal plays an important role. India and Pakistan, for example, have long engaged in such reprisal exercises. But it is important to understand that proportionality in the law of belligerent reprisal is not measured against the same standard as proportionality where the casus belli is an underlying and much broader threat. Proportionality is measured not against each separate rocket attack, one after another, none individually rising to the level of a response of open war, but against the whole series and the on-going threat they pose. My reading of much of the commentary on proportionality in the debate over Israel and its war aims suggests to me that many are applying a standard of belligerent reprisal proportionality when, in fact, what is at issue is the elimination of the underlying threat.

***Here is my original pre-Instalanche post:

... I really am pressed on some other things, but - proportionality jus ad bellum is perhaps best understood as a species of reprisal - i.e., a retaliatory measure which is proportionate to the original harm committed and limited as a proportionate response because, legally, it is a form of self-help with the purpose of preventing a spiraling response-counterresponse. The legal idea of reprisal, as distinguished from retaliation, is proportionality, which is intended to draw the originally offending party back to the legal status quo. It has, however, only limited applicability in the tradition of jus ad bellum; it is the exception rather than the rule, because in many circumstances, the threat presented by the status quo itself, of which the specific instance of harm is merely representative, is the casus belli. It is not necessarily cured by a response which is merely proportionate to the narrow and specific triggering belligerent act - a provocation across the border, for example. Proportionality in jus ad bellum is a legal concept appropriate not to belligerency in the full sense - in that case, war aims lawfully include bringing the oppposing party to surrender - but to the much narrower situation of uses of force short of full belligerency. Legal scholars who want to focus on the UN Charter as the sole source of legal authority for the use of force - and hence see any armed action by a party as having to be 'proportionate' pending some (typically mythological) intervention by the Security Council - tend to underplay that the Charter does not remove the customary law of self-defense, which does not require a "proportionate" response once belligerency is underway. Proportionality in jus ad bellum is a far narrower legal concept with far narrower application as a matter of the law of belligerent reprisal.

Michael Walzer on just war and the Lebanon conflict

Michael Walzer writes in The New Republic on just war and the Lebanon conflict - addressing both jus ad bellum and jus in bello issues. Here.

Tuesday, July 25, 2006

Anthony Dworkin on Common Article Three, 'regularly constituted courts' , and insurgents

Anthony Dworkin, editor of the indispensable Crimes of War website, here, posted a comment to my previous post (the response to J, post below), on insurgents holding trials of government soldiers in Common Article Three conflicts. It is a very important response, so I am moving it to its own post here.

I don't have time right at this moment to respond fully, but want to say that I agree with a lot of what Anthony says. Specifically, I agree entirely that Common Article Three was not intended to permit insurgents to try and execute government soldiers for fighting the insurgents. This is an area in which there is asymmetry between what governments can do and what insurgents can do. International humanitarian law does not create any disability on the part of a government to try insurgents under its own domestic law for treason, rebellion, insurrection, etc., including domestic law liability for related crimes such as murder and destruction of property. Insurgents, on the other hand, have no such ability under domestic law, and international law does not provide that to them, either.

The question, then, is whether Common Article Three authorizes, or even might be said to require, that insurgent forces hold trials for violations of the laws of war themselves. There are three cases here - trials of your own insurgent forces, trials of government forces by insurgents, and trials of civilians by insurgents - in each case for violations of the laws and customs of war, and particularly those matters listed in Common Article Three itself. The hardest case, which Anthony focuses on, is trial by insurgents of government forces. The easiest case is trial of your own insurgent forces. (We don't talk about it much, but in fact violations by civilians are common, such as pillage and looting.)

I have been assuming that insurgent forces, especially those with long term struggles who are seeking legitimacy with local populations and abroad, will want to enforce discipline about the laws of war by trying obvious violations. It has been relatively common, in my experience anyway, and one reason I didn't question it here was that I've not known the ICRC to object to it. For example, in the Georgia-Abkhazia conflict around 1993 - marked by massive pillage, looting of property, hostage taking, murder and rape by both fighters and the local populations as a part of ethnic cleansing pressures - the Abkhaz insurgent side, partly in order to gain international sympathy, announced that pillage would be tried and punished by Abkhaz insurgent military courts. It did so, in at least one case I recall, trying and executing one of its own fighters (videotaping the execution and distributing it widely on TV apparently as an object lesson).

The local ICRC representative, with whom I discussed the case at length (I was there along with Erika Dailey and David Rieff for Human Rights Watch), objected to the death penalty, but was quite approving of the idea of trials provided they met the Article 75 standard. Indeed, that was the first time I really focused on the detailed requirements of Article 75. I didn't have any impression that the ICRC objected to reasonably fair trials by insurgents, at least among their own people, both fighters and civilians. The Abkhaz declared that they would apply the same standard to Georgian government soldiers and loose militias, but that didn't happen at least while I was monitoring it.

In El Salvador, earlier, in the 1980s, too, I seem to recall - I'm hazy, though, and need to go back to the HRW reports or ask Bob Goldman - had their own system of courts for dealing with at least their own people. Again, I don't recall the ICRC or HRW or others objecting - on the contrary, I understood that if you were the local authority, even though insurgent, you had an obligation to enforce order in the territory you controlled, not in a summary way, but by some means of rough hearings.

Anthony carves out the area that I mention above - relatively stable and long term control of territory by an insurgent group, creating a need and obligation to essentially govern the territory. That was arguably the case in Salvador, not really so much in Abkazia. However, for purposes of the question of 'regularly constituted courts', one thing I want to think about further is whether it matters - are these 'long term control of territory' cases still useful for the larger point I was aiming to make, viz., that what insurgent forces might be able to provide wouldn't satisfy regular government standards, and yet still qualify under Common Article Three? The question is whether the courts that would be provided by insurgents in long term control of territory situations are really governed under Common Article Three, so as to be a relevant example of what might satisfy a party's obligations thereunder. I think they do, but in light of what Anthony has raised, I want to think about it and read some more. Just because they are long term governed by the guerrillas doesn't make the conflict less governed by Common Article Three and its standards - or does it?

I would welcome responses by anyone interested here, as Anthony raises a very important question. (Anthony, am I addressing the question you are actually raising, or have I pushed things in some other direction?) I will collect the most substantive comments and put them up in a separate post, and I'll also attempt to do a little research. If anyone from the ICRC wanted to comment, that would also be very welcome - I don't want to be putting words in the ICRC's mouth, by recalling what its delegates' attitudes seemed to be in various conflicts I had monitored in the past.

(Also, note Anthony's article coming out in 2006 on asymmetric warfare - Anthony, please let me know when the book is out.)

From Anthony Dworkin:


I've been thinking about your point about CA3 and the notion of a "regularly constituted" court since you posted it first a few days ago. I entirely agree that the requirements of Common Article 3 apply equally to all parties to a non-international armed conflict. However I think you are making a further, and I believe unjustified, assumption by suggesting that the states that drafted and signed up to CA3 intended to legitimize trials by rebel or insurgent groups in all or most such conflicts.

The obligation in CA3 not to pass sentences and carry out executions without a proper trial may fall equally on all parties, but that does not necessarily mean that both parties are expected to be able to meet this standard. It would be entirely consistent for the law to set a threshold for legitimate sentence and execution that is unlikely to be met by an insurgent group, outside the specific circumstances where it has acquired stable control over a part of national territory and set up its own regular form of administration (as in the US Civil War or Spanish Civil War for instance).

Outside those circumstances, I don't see any reason to assume that the drafters of CA3 had in mind to carve out an implied authorization for insurgent groups to hold field trials of captured government soldiers and execute them. Most states that signed up to the convention would see such trials as illegitimate and any sentences they imposed would almost certainly be regarded as illegal acts of confinement or murder under the domestic law of the states concerned.

Indeed, the ICRC commentary on CA3 suggests that this particular provision was seen as having relevance primarily to the government side in a non-international conflict: it points out that it is only "summary" justice that it is intended to prohibit, that it does not give immunity to anyone, that the powers of arrest remain unaffected, and that CA3 "leaves intact the right of the State to prosecute, sentence and punish according to the law." To me, all this suggests that this provision was seen as something that had relevance primarily for the State, which would be the only party that could claim the powers of arrest and lawful prosecution under domestic law.

So I believe the best interpretation of this part of CA3 would probably be this: the restriction on passing sentences and carrying out executions without proper trial would mean that judicial proceedings by insurgent groups would generally be unlawful unless they had established something approaching a regular administration, while government trials would only be legitimate if they met the given standards of being regularly constituted and affording judicical guarantees etc...

Just to be clear, I should repeat that this interpretation does nothing to undermine the equal application of the law to both sides which Ken rightly emphasizes. Also, I should point out that it does not endorse in any way the idea that Ken mentioned in his post as a possible response by the human rights community, i.e. that there should be some sort of different standard for the two sides. On the contrary, I believe there is a uniform standard that applies equally to all parties, but that operates with different effect on the different parties because of their different situation.

Re Article 75 of API, this obviously builds on Common Article 3 but doesn't this require an even higher level of due process? It includes a guarantee of "all necessary rights and means of defence" (doesn't that include a right to counsel?) and also includes the right to be tried in one's presence and to examine all witnesses against one. In the plurality opinion in Hamdan, Stevens used API Art. 75 to interpret the meaning of CA3 and concluded that the commissions did not meet the standard of affording recognized judicial guarantees.I can't resist responding to one more general point in Ken's posting, about the role of reciprocity in the laws of war. It seems to me that Common Article 3 can only be understood as a big step away from a reciprocity-based paradigm for the law of armed conflict, since it applies to governments irrespective of whether insurgents commit to its standards either as a formal undertaking or in practice. In this sense it appeals to a different paradigm based on notions of fundamental human dignity, which appears for the first time in the law of armed conflict after World War II and is obviously related to the contemporary rise of the idea of human rights.

(Self-promotion: I have an essay on this subject, titled "The Laws of War in the Age of Asymmetric Conflict" forthcoming in The Barbarization of Warfare ed. George Kassimeris, NYU Press (US) and Hurst Publishers (UK) 2006.)

Monday, July 24, 2006

J's comments on my discussion of Hamdan

A reader, J (whom I take to be a professor, but I haven't used his name as he didn't post this as a comment, but sent it as an email to me), sends the following comment below. My thanks, it is very thoughtful and a useful contribution. I wanted to comment just on one small bit of it. J says, "of course the ICRC would agree with your interpretation, as the principle of equality of obligations and rights is also fundamental to non-international armed conflict."

J is referring to my comment that I did not want to assume that the ICRC would be committed to the view that the duties imposed by IHL, in this case Common Article Three, would be identical as upon every party to the conflict (including, of course, state parties and non-state actors). I think that is right - I certainly hope that is right.

However, although I think the following is plainly wrong, it is not beyond my imagining that the ICRC - or perhaps an organization more creative with its lawyering, such as Human Rights Watch - might argue that although an obligation imposed under Common Article Three is identical for each party, the actual carrying out of that obligation depends upon the level of resources in fact available for each party. A party with greater resources must carry out the "same" obligation to a greater extent than a party with fewer resources.

Thus, for example, the language of Common Article Three speaks, as Hamdan purported to interpret (albeit not with a lot of expertise), of a "regularly constituted court." I pointed out that no one on the Court, majority or dissent, seemed aware that the obligations of Common Article Three apply with equal force to non-state actors who are parties to the conflict as well as to states-party to the Geneva Convention - this was regarded by many as the greatest achievement of Common Article Three, and the Court's seeming unawareness of this ... well, never mind. If, however, they apply equally to states and non state actors, it is clear - and Protocol I's Article 75 makes this crystal clear - that non state actors will not be able to hold "regularly constituted courts" that look very much like those of an organized state. Even a long term guerrilla force such as Columbia's FARC, let alone less long term and organized guerrilla forces, would not be able to hold criminal trials in anything like the way that many people seem to be understanding the requirements of "regularly constituted courts" as Hamdan seems to imagine.

If, however, one understands Common Article Three's requirements as the drafters did, and as Article 75 does, to be a much, much less rigorous standard than a US style criminal trial, even a US style court martial - a standard that even an irregular guerrilla force under responsible command could organize, even though it lacked, for example, counsel (and note, for example, that Article 75 does not require counsel) - then the Bush administration has far greater room under international law (I leave aside Hamdan on domestic law requirements) to shape the trial proceedings in ways that depart from standard US court martial procedures. From an international law standpoint, it need only comply with Article 75, which, although the US has not ratified Protocol I and I hope never does, is acknowledged properly by the US to be binding customary law.

I do not suppose the ICRC, Human Rights Watch, Human Rights First, Amnesty International, or many other human rights monitors would be happy with such an outcome. The easiest way to proceed as lawyers is to argue that although the standard in the abstract is the same for each party, in actual fact it means different things depending on what resources you can bring to bear. Hence what a state actually has to provide is greater than what a guerrilla force has to provide in the way of a "regularly constituted court."

As I say, I think this way of proceeding is not just unsustainable under the language of the Conventions, it also provides a very bad incentive structure that, as almost always with the interpretations of IHL given by human rights organizations, reduces the element of reciprocity between parties to a conflict that in fact underpin the commitment to IHL. But it is fully the way I expect to see human rights organizations argue, one of these days. I hope not the ICRC. But the ICRC tends to go along with what other organizations have said as legal interpretation, once enough soft-law venues have weighed in to give it what looks like, to an outside observer anyway, plausible cover. It's not a good practice, but it does seem to be a tendency of the ICRC more or less since the landmines campaign.

But my thanks to J for a stimulating email, especially since, as he says, he rarely agrees with the views on this blog.

From reader J:

I just read your blog on Hamdan, and would like to share the following comments, for what they are worth. [Quite a lot, actually.]

Of course the ICRC would agree with your interpretation, as the principle of equality of obligations and rights is also fundamental to non-international armed conflict. The problem arises at human rights law, but that's a whole other issue of debate.

The problem with Hamdan is that the Court gives no explanation as to why Common Article 3 should apply at all--If you look at the Commentaries to CA3, as well as the 2003 ICRC Report on IHL and Contemporary Armed Conflicts, you will see that the ICRC (correctly) would not apply CA3 to the vague concept of war on terror, as a cell based terrorist group does not have the command structure to be capable (notice the distinction here from 'willing') to impliment IHL, among other reasons. eg. threshold of conflict.

The only way IHL should apply to Guantanamo detainees is on a case by case basis to those (like Taliban fighters) who should be afforded PoW status as per GCIII, or others detained during the international armed conflict between US and Afghanistan who should be protected (if meeting nationality requirements) under GCIV--of course they can be prosecuted for taking part in hostilities.

I've read some of your blogs and don't often agree with you, but I do think you at least show an understanding of IHl, which is way more than most of the US commentators I read, including lawyers--so that is one area where we agree.

Stendhal's Red and the Black in the 2003 Burton Raffel translation

As I have done every year or at most every other year since I was, well, fourteen, I have been rereading Stendhal's The Red and the Black. This year, however, I am using the new translation by Burton Raffel, which came out in 2003 from The Modern Library. I like it. I nostalgically prefer my old Montague translation, but that's because I grew up with it. This translation is much more accessible, I suspect, for the contemporary reader and, by expert reviews, more faithful to Stendhal's characteristically blunt prose. The introductory essay by Diane Johnson is outstanding.

And the cover photo, while not exactly faithful to the book, must certainly excite undergraduates - it certainly excited me. I had no idea my beloved Mathilde de la Mole did such an impressive abs workout! Julian - what a lucky guy! Or as the epigraph to Chapter 11, A Young Girl's Imperial Dominion puts it (with a highly unlikely attribution to Merimee): I admire her beauty, but I'm afraid of her mind.

(Note: Stendhal often put epigraphs attributed to wildly improbable sources at the heads of his chapters, including this one:)

"A ridiculous, moving memory: the first drawing room in which, at eighteen, one appeared, alone and without any support! A woman's glance was enough to intimidate me. The more I wanted to please, the more awkward I became. I argued for all the silliest ideas: either I jabbered senselessly, or I felt that every man who looked at me seriously was my enemy. But just the same, buried by my shyness in frightful misery, how fine a fine day could be!"

Attributed to ... Kant(!).

Geoffry Corn comments on proportionality in jus in bello

(Welcome instapundit readers! The original instapundit link which was bad (my fault) is here, on proportionality jus ad bellum.)

Geoffry Corn, former chief of the Army JAG Corps Law of War Branch and now a professor at South Texas College of Law and, perhaps most importantly, an alum guest blogger at Opinio Juris, was kind enough to send a comment on my earlier blog post on proportionality. It is characteristically thoughtful and expert and sufficiently important to put up as a separate post:

This is Geoff Corn from South Texas. As a retired JAG Officer and former Chief of the Army JAG Corps Law of War Branch I wanted to let you know that I thought your post in response to some of the commentary on the "rule of proportionality" was both timely and essential. I could not agree more with you regarding your comments related to mixing up the ad bellum and in bello concepts.

What really strikes me as surprising is the general failure to cite the precise language of AP I. I can tell you from experience that Judge Advocates here and in other militaries are taught to focus on that language, and the use of the term "excessive." No where to my knowledge does Article 51, which most would regard as the most comprehensive effort to "codify" the principle, use the term "disproportionate."

Military commanders are advised that this is not an insignificant word choice. The term excessive seems to suggest a different balance in the jus in bello than that applied to the jus ad bellum.

I am also surprised that the link between this principle and the express prohibition against indiscriminate attacks has not been better explained in some of these commentaries. JAGs are taught a fairly straight forward equation: Indiscriminate attacks are illegal. The fall into two categories: intentionally indiscriminate (targeting a non-military objective or employing a method or means that cannot be controlled), and "implicitly" indiscriminate: targeting a lawful military objective with the expectation that the collateral damage or incidental injury will be excessive in relation to the concrete and direct military advantage anticipated.

You are dead on target (no pun) with regard to your comments about differing interpretations of these terms. I have personally studied with IDF lawyers, and I have no doubt they know the law, and are advising compliance. It is these differing perspectives that will no doubt be exposed as underlying the decisions being made.

Saturday, July 22, 2006

Alan Dershowitz on degrees of 'civilianality'

(Welcome instapundit readers! The original post mentioned by instapundit had a bad link (my fault) - it can be found here, on proportionality and jus ad bellum.)

Alan Dershowitz writes in the Los Angeles Times here on the need to establish degrees of being a civilian in war and terrorism, with differing degrees implying different degrees of either participation and/or culpability, and hence different degrees of protection. I reserve judgment on this proposal and am still thinking about it.

The idea of revising the combatant/noncombatant line is not in fact so new and has many permutations. As the concept of "total war," the mobilization of the whole nation-state, grew in the 20th century, for example, many proposed that the traditional distinction between combatant and non-combatant - taking (or not taking) active part in hostilities - no longer meant very much and hence everything and everyone was a target. That is not what Dershowitz is proposing - far from it, he is aiming to refine the distinction between participant and non-participant to make it more than just an on/off switch. The total war concept essentially said the switch was 'on' for everyone, all the time.

There were also many discussions about particular categories of civilian workers - such as those who worked in munitions factories - could they be targetted as such. In the end, the uneasy resolution of that debate, for most anyway, was that they could not be targetted as such, but the plants where they worked could be targetted as legitimate objectives, which often amounted to the same thing.

I doubt very much - as Dershowitz doubts - that in the positive law could come to grips with what he calls the "retail" distinctions of guilt and innocence of the criminal law, or the retial distinctions that would be necessary to define degrees of combatancy. There is some movement that direction in Protocol I, for example, and how some have interpreted it - you might be a part time combatant, for example, working your fields as a peasant by day and going out to fight by night, or one week a month - the ICRC and others take the view that under Protocol I, you are only liable to attack as a combatant when you are actually fighting - I find the concept very strange, especially the suggestion made to me by one human rights lawyer recently that the US Predator strike in Yemen against a vehicle full of al Qaeda operatives was illegal because they were not at that moment involved in actual combat.

On the other hand, the failure of, for example, the media in Lebanon to take account of the fact that the rocket launchers are deliberately sited in civilian zones, in sympathizers' homes, and that perhaps that had something to do with the fact that the five year old was killed is an enormous problem. The general sense of the media and commentators that the obligations to protect civilians lie entirely on the attackers, as I discuss in an earlier post, is as problematic in the current conflict as it was in the Iraq war.

I have suggested, in any case, a somewhat analogous move concerning the interrogation of detainees. My view is that how harshly you can interrogate a detainee is partly a function of what you know or don't know about him. If you know that you are interrogating Zarqawi, in my view you are permitted more severity than interrogating someone about whom you have no reason to think he is not merely the hapless shepherd. That seems to me common sense, mostly. It, too, is a concept of degrees - although I stress, only analogous to what Dershowitz is proposing, not directly the same moral argument.

Also, I should emphasize that in full blown version of Dershowitz' argument would have to address as quite separate issues degrees of lawful participation in war, and degrees of innocence and guilt in participation in terrorism or war crimes. Both share the idea of degrees, but they are two quite different moral and legal situations. Dershowitz runs them together somewhat in this article and others.

'Civilian Casualty'? It Depends
Those who supports terrorists are not entirely innocent.

By Alan Dershowitz

ALAN DERSHOWITZ is a professor of law at Harvard. He is the author, most recently, of "Preemption: A Knife that Cuts Both Ways."

Los Angeles Times
Saturday, July 22, 2006

THE NEWS IS filled these days with reports of civilian casualties, comparative civilian body counts and criticism of Israel, along with Hezbollah, for causing the deaths, injuries and "collective punishment" of civilians. But just who is a "civilian" in the age of terrorism, when militants don't wear uniforms, don't belong to regular armies and easily blend into civilian populations?

We need a new vocabulary to reflect the realities of modern warfare. A new phrase should be introduced into the reporting and analysis of current events in the Middle East: "the continuum of civilianality." Though cumbersome, this concept aptly captures the reality and nuance of warfare today and provides a more fair way to describe those who are killed, wounded and punished.

There is a vast difference — both moral and legal — between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets. Both are technically civilians, but the former is far more innocent than the latter. There is also a difference between a civilian who merely favors or even votes for a terrorist group and one who provides financial or other material support for terrorism.

Finally, there is a difference between civilians who are held hostage against their will by terrorists who use them as involuntary human shields, and civilians who voluntarily place themselves in harm's way in order to protect terrorists from enemy fire. These differences and others are conflated within the increasingly meaningless word "civilian" — a word that carried great significance when uniformed armies fought other uniformed armies on battlefields far from civilian population centers. Today this same word equates the truly innocent with guilty accessories to terrorism.

The domestic law of crime, in virtually every nation, reflects this continuum of culpability. For example, in the infamous Fall River rape case (fictionalized in the film "The Accused"), there were several categories of morally and legally complicit individuals: those who actually raped the woman; those who held her down; those who blocked her escape route; those who cheered and encouraged the rapists; and those who could have called the police but did not.

No rational person would suggest that any of these people were entirely free of moral guilt, although reasonable people might disagree about the legal guilt of those in the last two categories. Their accountability for rape is surely a matter of degree, as is the accountability for terrorism of those who work with the terrorists.

It will, of course, be difficult for international law — and for the media — to draw the lines of subtle distinction routinely drawn by domestic criminal law. This is because domestic law operates on a retail basis — one person and one case at a time. International law and media reporting about terrorism tend to operate on more of a wholesale basis — with body counts, civilian neighborhoods and claims of collective punishment.

But the recognition that "civilianality" is often a matter of degree, rather than a bright line, should still inform the assessment of casualty figures in wars involving terrorists, paramilitary groups and others who fight without uniforms — or help those who fight without uniforms.

Turning specifically to the current fighting between Israel and Hezbollah and Hamas, the line between Israeli soldiers and civilians is relatively clear. Hezbollah missiles and Hamas rockets target and hit Israeli restaurants, apartment buildings and schools. They are loaded with anti-personnel ball-bearings designed specifically to maximize civilian casualties.

Hezbollah and Hamas militants, on the other hand, are difficult to distinguish from those "civilians" who recruit, finance, harbor and facilitate their terrorism. Nor can women and children always be counted as civilians, as some organizations do. Terrorists increasingly use women and teenagers to play important roles in their attacks.

The Israeli army has given well-publicized notice to civilians to leave those areas of southern Lebanon that have been turned into war zones. Those who voluntarily remain behind have become complicit. Some — those who cannot leave on their own — should be counted among the innocent victims.

If the media were to adopt this "continuum," it would be informative to learn how many of the "civilian casualties" fall closer to the line of complicity and how many fall closer to the line of innocence.

Every civilian death is a tragedy, but some are more tragic than others.

Friday, July 21, 2006

Who Owns the Rules of War? Reposting an essay from the New York Times Magazine, 2003

(Welcome Instapunditeers - the original Instapundit link was bad (my fault) and can be found here, on proportionality and jus ad bellum.)

The April 24, 2003 New York Times Magazine, at the opening of the Iraq war, carried an essay by me on the rules of war - where they come from, what they mean today, what they mean in a time of "asymmetric warfare," and who should have control over the development and direction and meaning of the laws of war. Even for people who don't very much like the argument of the essay, it is a pretty good summary of the history of the laws of war and some basic principles of just war theory. It attracted a fair bit of attention, from specialists anyway, in places like the JAG and the military academies, and some but not a lot of attention from academics. It wasn't much liked by NGOs, for reasons that become clear at the end of the essay. At this moment of another "asymmetric war," this time in Lebanon, I thought to repost the entire text, which is available from SSRN, here, or the Crimes of War archive, here.

(I should add, too, that of course practically everyone likes to dump on the NYT. Still, consider that it was the venue that was willing to run the final section of this article, which is a sweeping attack on liberal internationalism, global governance, and NGOs. The NYT does sometimes run opinion that is almost point for point contrary to its editorial page views.)

April 24, 2003

Who Owns the Rules of War?

By Kenneth Anderson
The New York Times Magazine

During the euphoria of the opening air campaign against Baghdad, commentary was filled with triumphal rhetoric about hitting ''legitimate military objectives'' while causing little or even no loss of civilian life. Not long afterward, the air war was pounding more than symbols of the regime, and the ground war had become a real war. Scarcely a speech, briefing or interview was being given that failed to mention the laws of war. The Iraqi regime, for its part, was broadcasting denunciations of American airstrikes replete with images of corpses and wounded civilians in hospitals; the United States responded that Iraq had systematically situated military targets and equipment in the midst of civilian areas. The sheer frequency of these references on all sides belied the ancient maxim inter arma silent leges -- in time of war law is silent.

People throughout the world obviously care about what is called jus in bello, law governing conduct during war. This is so even if they differ about jus ad bellum, law governing not the conduct of war but rather the resort to force itself. But even while there is agreement on the need for fundamental rules governing the conduct of war, there is profound disagreement over who has authority to declare, interpret and enforce those rules, as well as who -- and what developments in the so-called art of war -- will shape them now and into the future. In short, who ''owns'' the law of war?

The Roots of the Modern Law of War

Although most of the world's religious and ethical traditions, if they admit the moral possibility of war at all, say something about what conduct is permitted in war, modern law of war descended historically as a tenet of traditional Christian just-war theory. The practical expression of such law, however, began with the founding of the International Committee of the Red Cross in 1863. The moving force behind the establishment of the Red Cross was Henri Dunant, a Genevan who witnessed and later wrote a widely read account of the Battle of Solferino in the 1859 war between Austria and France. Dunant, together with inhabitants of a village near the battlefield, went about the appalling task of trying to tend to the thousands of wounded who had simply been left to die.

Without bandages, stretchers, doctors or medicines, and above all without significant interest in the wounded by their governments, there was little to be done except offer water and prayer. In the aftermath, the Red Cross, organized to do what had not been done at Solferino, became the world's first secular international nongovernmental organization, the ur-N.G.O. One of its goals was self-contradictory and even ludicrous on its face -- to bring humanity to the battlefield -- but its idealism was expressive of a sweeping call for reform among the middle classes in late-19th-century Europe and America, where an indigenous humanitarian movement for the care of soldiers had taken root during the Civil War.

In Europe, the same spirit of reform touched governments and royal courts, as a series of diplomatic conferences set about codifying the centuries-long tradition of ''laws and customs of war.'' The most important result was the 1907 Hague Convention, which in 56 short articles covers vast legal terrain on the conduct of warfare -- including surrender and flags of truce, obligations to wear uniforms, treatment of prisoners of war, sieges and bombardments, protection of cultural property, prohibitions against pillage and terms of occupation.
Its general rules are still applicable, at least in principle, today. Indeed, most of the matters that coalition forces raise as violations of the laws of war by Iraqi forces -- perfidious surrender, fighting out of uniform or mistreatment of P.O.W.'s -- can be found somewhere in the Hague regulations.

Optimism was swept away a few years later, however, by the guns of August. During World War I, in which mustard gas, aerial warfare, tanks and, above all, the machine gun, were introduced, old rules were clearly no longer enough, and existing humanitarian organizations were simply unable to cope with suffering on a scale never before seen. Following the Great War, there was a resurgence of interest in the fields of jus ad bellum and jus in bello. The Red Cross built on its earlier work in fostering treaties for sick and wounded soldiers and moved directly into promoting humanitarianism in war through legal rules, convening meetings between states that eventually resulted in the Geneva Conventions of 1929. These conventions, along with the 1907 Hague Convention, were the primary codified laws of war in effect when World War II broke out. In addition, states negotiated the 1925 Geneva Protocol prohibiting gas weapons -- a ban that held with few exceptions, even during World War II, for 60 years, until Saddam Hussein broke it in the Iran-Iraq war and again in his genocidal 1988 Anfal campaign against the Kurds.

World War II and its Aftermath

World War II brought its own violations, partly owing to the new technology of air war against civilians. The carpet-bombing of Dresden, for instance, inevitably swept civilians in with soldiers as targets. The conclusion of World War II brought about two signal developments in the laws of war. The first was the holding of criminal trials by the victors of those deemed to be chiefly responsible for the war. We tend to think of the Nuremberg trials as war-crimes trials, but in fact Nuremberg was principally about trying German leaders for the crime of aggressive war, for making war itself, crimes of jus ad bellum, rather than for the manner of its conduct. The chief American prosecutor, Robert Jackson, was content to leave what he regarded as the legally less-cutting-edge matters, the war's atrocities, to prosecutors from other countries.
Jackson's seeming triumph at Nuremberg, however -- establishing that international judges could try and convict a nation's leaders for the crime of aggression -- did not survive the establishment of the United Nations and the Security Council. The matter of determining aggression and maintaining international peace was stripped from international jurists and thrust into the hands of the permanent members of the Security Council, victors of World War II.

Of course, the Security Council, far from maintaining peace and security, has served as little more than a talking shop for nearly all of its history. The willingness of one of the permanent five members to brush off the Security Council when its core national interests are threatened -- as the United States and Britain just did with respect to Iraq -- is a norm of the Security Council, not a departure from it. Every permanent member has such interests, which are not necessarily even questions of national security but are frequently matters of ambition or even sentimental attachment. They include Tibet and Taiwan for the Chinese; Chechnya and, in 1999, Serbia for the Russians; and Francophone Africa for the French.

The enduring law established at Nuremberg has thus turned out not to be the ''crime of aggression'' but a reaffirmation of war crimes as traditionally understood -- with two important innovations made necessary by the Nazi death camps: genocide and crimes against humanity. Nuremberg also had serious gaps. Most significant, it failed to address the terror bombing of civilians and the deliberate consuming of whole cities (Dresden, Tokyo) by fire -- the most enthusiastic practitioners of the latter being the Allies.

The failure to prosecute the Allies for firebombing cities is one of the strongest arguments today for why war-crimes tribunals should not be conducted by the victors. Many regard this argument as so clinching, in fact, that the mere charge of ''victor's justice'' is enough to end debate. Yet it is far from obvious to me that ''impartial,'' uninvolved parties automatically carry greater moral authority than victors. Would it have been morally better, for example, for the victors of World War II, who had paid the price in blood, to have handed justice over to those countries that had remained neutral and refused to become involved? What matters far more than the supposedly virtuous impartiality that comes from neutrality is the quality of justice served in each case.

The Geneva Conventions of 1949

Another development in the laws of war following World War II was the four Geneva Conventions of 1949 -- the first covering wounded or sick soldiers; the second, shipwrecked sailors; the third, prisoners of war; and the fourth, civilians and occupation. The Geneva Conventions also introduced, for the first time in the canonical laws-of-war treaties, individual criminal liability and mandatory ''universal jurisdiction'' -- the ability (indeed, the obligation) of any and every state to try individuals (or turn them over to a state that would) whenever there was evidence of ''grave breaches'' of the Geneva Conventions.

The question of who is qualified to assert jurisdiction and then judge cases of war crimes is vital to determining who owns the laws of war. Universal jurisdiction says, in effect, lots of people own the laws -- but it leaves open the possibility of widely differing interpretations. A case in point is the continuing argument over whether the detainees at Guantanamo are indeed bona fide P.O.W.'s being mistreated under the Third Geneva Convention, as Amnesty International argues; or whether the Taliban among them are P.O.W.'s but some members of Al Qaeda are not, as Human Rights Watch says; or whether none of them are P.O.W.'s at all, as the Bush administration insists. Related to this is the question of whether detainees can be determined not to be P.O.W.'s by any means other than individual hearings. Many human rights advocates simply assume that the determination of whether a detainee is a P.O.W. must be reached by an individual hearing. This is a reading of the treaty with which even many conservatives agree. (Indeed, it is the reading presumed in 1997 United States military regulations that long precede Sept. 11.) But while it is surely the best interpretation of the Third Geneva Convention, it is not necessarily the way a literal reader would interpret phrases in Article 5's language like ''competent tribunal'' and ''should any doubt arise.'' It is (barely, but literally) available to the Bush administration to maintain that a) no doubt arises as to the status of the prisoners at Guantanamo and that b) the determination of whether any doubt has arisen does not necessarily require a hearing by a ''competent tribunal'' but merely a finding by the secretary of defense or the president.

This apparently esoteric legal issue, seemingly nothing but sheer technicality, is important. Why? It is not because it prevents someone from being charged with war crimes -- anyone can be charged with war crimes -- but because those determined not to be bona fide P.O.W.'s have far fewer procedural rights at trial. Bona fide P.O.W.'s (even those charged with war crimes) must be given the same legal protections at trial that an American soldier, accused of the same crime, would be given (and these are considerable), whereas an ''unprivileged combatant'' receives only minimal due process protections. The issue is about to arise again, this time in connection with Iraq's fedayeen militia fighters, who wear no uniforms and therefore might not qualify as bona fide P.O.W.'s, some of whom may be transferred shortly to Guantanamo.
This dispute points, in addition, to an unsettling feature about the struggle over who ''owns'' the law of war. The various constituencies that believe it belongs to them -- in this case, the United States government on the one side and human rights organizations on the other -- feel little obligation to acknowledge frankly the arguments made against their legal interpretations.

Fundamental Principles – and Moral Calculation

Despite these struggles over authority to interpret the 1949 Geneva Conventions, they are accepted universally as binding law on the treatment of people under a particular status -- soldier, sailor, P.O.W., civilian. The fundamental moral and legal principles are plain. First, noncombatants may never be made the object or target of attack, nor may noncombatants ever be used by defenders to shield legitimate military objectives from attack. Second, military operations, whether by attackers or defenders, must be undertaken with care to distinguish between noncombatants and combatants. Moreover, military officials must refrain from operations likely to produce collateral civilian damage that is excessive relative to the military advantages. So, for example, if the Iraqi Republican Guard has based itself in a crowded Baghdad neighborhood -- and even if it has done so illegally, by refusing to order or even allow civilians to evacuate, in order to use civilians as a shield -- the United States must still weigh the military advantages of attacking against the probable cost of civilian deaths and injuries.

The first principle is categorical, admitting of no exceptions. It leads in turn to a cluster of specific, categorical requirements aimed at ensuring that noncombatants or soldiers who are no longer in combat, like P.O.W.'s, are not attacked -- for example, requirements that combatants wear uniforms or other identifying marks and carry weapons openly. Although some of these categorical obligations have ambiguities -- what qualifies as a uniform? -- and although evidence, interpretation and intent might complicate matters, in principle they are either adhered to or not.

The second principle -- refraining from causing excessive collateral civilian damage -- involves, by contrast, a weighing of costs and benefits and, making things still more difficult, those costs and benefits as they might accrue in the future. Every day, every night, Air Force lawyers and planners must consider possible targets and weigh what they think the military value might be, in the future course of war, against the best intelligence data on how many civilians might be killed or injured, or how much civilian property destroyed. It is a thankless game of guesswork. By their nature, such judgments involve factual evaluations and guesses that cannot be legally challenged, unless something approximating willful, intentional gross negligence can be shown. Gross negligence has to consist of more than a lot of collateral damage, including gruesome civilian death and injury, that might be the result simply of a cruise missile aimed in good faith but gone astray. Legal culpability cannot be determined simply by looking at the level of damage and the death and injury caused. There is no moral equivalence between stray missiles aimed in good faith, using the best technology available, and deliberate violation of the categorical rules of war, like using human shields, shelling civilians to prevent them from fleeing Basra and rape or summary execution of prisoners. There can be no element of judgment, or weighing of costs and benefits, in deciding whether or not to target civilians or take them hostage; it is always wrong.

And yet. The reality remains for many that this moral distinction is sophistry. How can it not be, when we see every day on television and in the newspapers (especially non-American ones) so much death and injury to civilians? To speak of ''aiming'' at one thing while simultaneously foreseeing that, in a sizable percentage of cases, you would ''accidentally'' hit another -- if this is what ''rules'' of war consist of, then they are no more than artificial salves on the consciences of combatants.

Moreover, it does seem to millions of people worldwide that there is indeed a moral equivalence between the tactics of the Americans -- hitting targets from the air and pleading collateral damage as a defense against responsibility -- and the tactics of the Iraqis, who, lacking other means to attack, use their own civilians as a material and moral resource, no matter what laws of war it might violate. This was the attitude, it should be said, held by Churchill, who intended a scorched-earth defense of Britain (including the use of poison gas) without much regard for the lives of British civilians, should the invader ever arrive.

There is, I think, only one way to evaluate these conflicting claims. The idea of ''acceptable'' collateral damage is firmly embedded in Western legal and moral thought, but in fact it is the product of a far more particular Christian strand of moral thought than many of us, accustomed to the tradition, readily admit. The ''doctrine of the double-effect,'' turning on a supposed moral difference between intended and unintended but foreseeable consequences, is not morally obvious. It can be defended, however, as a moral doctrine if we consider the alternatives. To deny the distinction means that you either accept that virtual non-violence is the only tenable position or that you are indifferent to the lives of civilians, since you are guilty of anything that happens anyway -- and in that case, anything becomes a target. The justification for the principle of the double-effect is that it appears to be the only principled way of steering between a pacifism that few of us, in real life, would accept, and a brutal realism that denies the moral necessity of even trying to distinguish between combatants and non-combatants.

Even if you accept the principle of this distinction, however, it must be with a knowledge that it is a compromise affair. It therefore puts a great moral burden on those who fight to find better ways to separate civilians from fighters and to improve the ability, through technology or other means, to aim and hit solely military targets. And if war is, as the poet Rene Char wrote, ''this time of damned algebra,'' a matter of endless calculation and recalculation of effects, then the law of war must take that into account. It consists on the one hand of both categorical demands and prohibitions, and on the other of calculations of cost and benefit, civilian loss and military advantage -- and these calculations are always in flux.

New Treaties and New Debates

The attempt to address these complexities and make law of them was undertaken by United Nations negotiations in the 1970's. The 1977 Additional Protocol I grew out of these negotiations. Although now ratified by some 160 nations with varying ''reservations'' (statements as to certain treaty articles a country does not accept as binding), the United States has never ratified it (nor, it should be noted, has Iraq). Yet without accepting the treaty as such, United States officials over the past 20 years have indicated that the United States accepts various parts of the treaty without accepting the whole. It remains a disappointment and a puzzle that the Department of Defense has never been willing to state publicly and definitively which parts it accepts and which parts it does not and why.

But the American problems with Protocol I generally fall into three main categories. First, certain provisions are unacceptably political in nature. Jus in bello has always insisted on exactly the same treatment for all sides in combat, the same rules whether for the Allies or for the Germans, communists or capitalists. Protocol I, however, grants combatants rights, including the vital right to be treated as a P.O.W., on the basis of certain motives for fighting, referring specifically to those who fight against ''racist regimes'' (as in South Africa under apartheid) or ''alien occupation'' (as in Israel).

Second, certain provisions appear to the United States to restrict methods and means of warfare that it believes are legitimate. For example, Protocol I contains no exceptions in its rules for nuclear weapons, while at the same time it categorically prohibits reprisals against civilians, including the use of nuclear weapons in reprisal for a nuclear attack, which is the basis for nuclear deterrence.

The third category of America's objections concerns rules in Protocol I that are aimed at accommodating guerrillas and irregular fighters, as during the Vietnam War or in Iraq. Unquestionably, these rules make life legally easier for irregular fighters, and some would see this as making the rules of war more ''fair.'' Yet the rules also create new risks for civilians. For example, the protocol grants legal combatant status even to guerrillas who conceal themselves and their weapons among the civilian population, as long as the fighters reveal themselves to the adversary ''preceding the launching of an attack'' -- which is to say, often shortly before attacking from among the civilians who will, inevitably, be caught in the crossfire. It is unfortunate for Saddam's irregulars that Iraq and the United States have not ratified the protocol, as it would have provided legal protection for many of those fighters' attacks, if surely not the civilians providing them with cover.

In addition, sections of Protocol I, while dealing with indiscriminate attacks -- military operations that fail to distinguish between combatants and noncombatants -- in detail, mention the obligations of defenders far more briefly. This is despite the fact that the level of collateral damage incurred in military operations is often determined by where the defender chooses to locate its military assets.

And so Amnesty International released a report last year on the actions of the Israeli Defense Forces in Jenin that signally failed even to mention the legal obligations of the Palestinian forces toward their own civilians. Human Rights Watch also issued an entire report on Jenin that raised only in a few sentences the fact that Palestinian fighters had situated themselves among civilians. (To Human Rights Watch's credit, and perhaps in response to criticism, it has begun taking careful note of the obligations of forces on the defensive as well as those of attackers.) And the International Red Cross, in a message from its president at the commencement of the Iraq war, called in general terms upon parties to observe the laws of war but dwelt mainly upon attackers, the United States and Britain, neglecting to say anything specific of the Iraqi defenders. But the inescapable fact is that the structure of Protocol I practically invites such neglect.

The Laws of War Reconsidered

The fact remains that every war is a petri dish for the next round of the laws of war. And while the war in Iraq is principally about well-established legal principles, and their violation, it, too, will end with a reconsideration of the laws dictating how war should be waged.

For the past 20 years, the center of gravity in establishing, interpreting and shaping the law of war has gradually shifted away from the military establishments of leading states and their ''state practice.'' It has even shifted away from the International Red Cross (invested by the Geneva Conventions with special authority) and toward more activist and publicly aggressive N.G.O.'s -- including the ad hoc coalitions that produced the Ottawa Treaty, banning land mines, and the new International Criminal Court. These N.G.O.'s are indispensable in advancing the cause of humanitarianism in war. But the pendulum shift toward them has gone further than is useful, and the ownership of the laws of war needs to give much greater weight to the state practices of leading countries. This does not mean that state practice is all that matters, nor does it mean that all state practice matters -- Iraq, after all, is a state, and it is fighting, too -- but it does mean that the state practice of democratic sovereigns that actually fight wars should be ascendant in shaping the law. And this includes raising the standards of the laws of war to reflect, for example, advances in technology and precision weapons, standards that should become the norm for leading militaries, first for NATO and then beyond.

N.G.O.'s are also wedded far too much to a procedural preference for the international over the national. But that agenda increasingly amounts to internationalism for its own sake, and its specific purpose is to constrain American sovereignty. It thus promotes, embedded in an agenda of human rights and the laws of war, the ceding of sovereignty, even democratic sovereignty, as the most virtuous act that a state can perform on behalf of its citizens. This agenda of privileging internationalism, unfortunately, is even sometimes allowed to override obvious steps backward in the laws of war, like privileging guerrilla combatants over the civilians in their midst. For this reason, one consequence of the Iraq war for the future of the laws of war will have to be an understanding that the solicitude of Protocol I for irregular fighters hiding among civilians is wrong and that the United States was right to have rejected it.

More broadly in recent years, the N.G.O.'s have been promoting an ever more utopian law of war, in keeping with absolutist human rights ideology. In practice, alas, this utopianism is aimed only at one side in conflicts -- the side that in fact tries to obey the law. And so a second consequence of the war in Iraq for the future of the law of war will have to be a halt to raising the standards ever higher for protecting the civilian population when that burden effectively falls only on attacking forces, unreciprocated. The status quo has the effect of rewarding defending forces for recognizing that war crimes against their own civilians are the best strategy against a powerful but scrupulous enemy. It risks in the end creating a law of war that assumes, for all practical purposes, that the burden is all on one side, the side with the more advanced technology and the less desperate military. After the last cruise missile has been launched and the last irregular fighter silenced, we will look back on the war that was wrought. What we will find is that the meaning of ''asymmetric'' warfare is not what we thought. The issue is not so much disparities in technology. Instead, a form of warfare has re-emerged that tacitly assumes, indeed permits, that the weaker side must fight by using systematic violations of the law and its method. This is unsustainable as a basis for the law of war. Reciprocity matters.

Kenneth Anderson is a law professor at American University and a research fellow at the Hoover Institution, Stanford University. He was legal editor of the book ''Crimes of War: What the Public Should Know.''

This article first appeared in a slightly different form in the New York Times Magazine on Sunday April 13, 2003.

Civilian collateral damage and the law of war obligations of defenders not to commingle civilian and military objects

(Welcome Instapunditeers! The original instapundit post had a bad link (my fault) - it is here, on proportionality and jus ad bellum.)

Along with the discussion of proportionality in jus in bello in my earlier post, I wanted also to address the question of commingling civilian and military objects. At the beginning of the Iraq war, a group of professors and other law of war experts issued a public letter urging attention to the fact that defenders, as well as attackers, have obligations to protect civilians under the laws of war. The letter intentionally did not provide a doctrinal, citation based analysis, on account of the fact that although all the signers shared the final end point, they reached it in some cases by very different legal routes that precluded a definitive legal statement. In any case, Anthony Dworkin at the Crimes of War website posted it, and I reproduce it from the archive below.

March 19, 2003

A Public Call for International Attention toLegal Obligations of Defending Forces as Well as Attacking Forces to Protect Civilians in Armed Conflict

As hostilities with the regime in Iraq appear on the verge of commencing the undersigned call upon concerned parties, including the Security Council and its members, the Secretary General of the United Nations, the government of the United States and its armed forces, the government of Iraq and its armed forces, other likely belligerents and their armed forces, and the International Committee of the Red Cross and other human rights monitoring organizations, publicly to affirm the legal obligations of defending military forces, as well as attackers, to take measures to protect civilians and minimize collateral damage during combat operations. These measures include prohibitions against the willful co-location and commingling of military targets among civilians and civilian objects for the purpose of rendering legitimate military objectives “off-limits” to attacking forces for fear of causing collateral damage. They further include prohibitions against the use of human shields or hostages, whether voluntary or involuntary, and whether by attackers or defenders, in order to protect military objectives.

Both attacking and defending military forces have independent and non-derogable legal obligations toward civilians in the course of combat operations. Their respective obligations merit equal emphasis in media reporting and commentary as well as in monitoring by human rights organizations and other concerned individuals, non-governmental organizations, and governments and international institutions. Reporting on instances of collateral damage must properly ask not only whether attacking forces took due precautions for the protection of noncombatants but also whether defending forces likewise took due precautions for civilian protection or, instead, whether defending forces explicitly or implicitly relied on the proximity of civilians to shield their forces from attack in violation of the laws of war. In accordance with settled standards of international humanitarian law and the laws of war, obligations of defenders to protect civilians are no less important or less obligatory than those of attackers.

These obligations are not nullified by the relative strategic or tactical advantages or disadvantages possessed by attacking forces or defending forces in any particular circumstances. Sheltering defending forces among the civilian population for the purpose of making them immune from attack for fear of collateral damage is contrary to the laws of war and cannot be justified by the contention, asserted explicitly or allowed implicitly, that defenders seemingly might have no means to defend themselves except by hiding and dispersing themselves among noncombatants. Such sheltering among the civilian population (including sheltering by the use of human shields, voluntary or involuntary) for the purpose of rendering one’s forces immune from attack is a violation of the laws of war.

Perhaps the apparent emphasis on the obligations of attackers and relative lack of emphasis on the obligations of defenders in both the Afghanistan conflict and possible Iraq conflict has been for the reason that the United States and allied parties are the attackers in the Iraq conflict, and their combat policies are more readily influenced by international public debate than those of Iraq. It might also be partly that the relatively disorganized nature of the Taleban and Al-Qaeda forces in the Afghanistan conflict seemingly made pointless any public calls for attention to the obligations of defenders. Nevertheless, defending military forces, like attacking forces, and whether Iraqi or US or anyone else, have non-derogable obligations under the laws of war. Generally speaking, the laws of war apply with equal rigor to all parties, and bind equally all military forces, whether large or small, well-equipped or not, advanced or inferior in quality or training.

In the case of a possible Iraq conflict, Iraqi forces are highly organized and, at least at the outset of hostilities, under tight command and control – a modern army. If the world is not gradually to slide to a position in which it is tacitly accepted that the obligation to take precautions to protect civilians falls fundamentally upon the attacker, or upon the technologically more advanced party, or upon the militarily less desperate party, rather than being an obligation of every party, then international opinion must insist upon compliance and accountability by each party, whether attackers or defenders, in taking due precautions with respect to civilians. This emphasis on the need for strict compliance by all parties is of utmost importance, both in minimizing collateral damage in future conflicts and in buttressing the long-term viability of the entire armed conflict-related body of law. Any effort to accept or justify the proposition that the laws of war’s strictures bind some parties more than others, or that non-compliance by some parties is somehow excusable or justifiable, would irredeemably erode the laws of war.

Although both attacking and defending forces have legal obligations to take precautions on behalf of civilians, the actions of defending forces create in the first place the conditions in which collateral damage is more or less likely to occur. Defending forces create these conditions through such decisions as whether to use hostages or human shields in order to attempt to shield military targets from attack, whether to locate military forces within civilian zones in order to deter attackers through fear of causing collateral damage among civilians, or whether to locate civilian installations, such as schools or mosques, next to military installations. The likelihood and extent of possible collateral damage by attackers is established in the first instance by decisions of defenders over how and where to deploy military assets that are themselves legitimate military objectives. These decisions by defenders are as much within the reach of international laws of armed conflict as the decisions of attacking military forces over how, when and where to attack.

Parties to the possible conflict, international bodies, and international human rights monitors should call upon both attackers and defenders to uphold their obligations to protect civilians in the course of combat operations and note that violations by either attackers or defenders can constitute a war crime. Media, commentators, and human rights monitors should scrupulously inquire into the observance of due care for the protection of civilians by both attackers and defenders, and not merely one or the other. All these parties should be aware, and endeavor to make the public aware that, in the event of conflict, the presence of well-meaning but illegally deployed voluntary human shields – European or American peace activists, for example, but also Iraqi civilians – at the site of a legitimate military objective might well result in deaths that simultaneously constitute legal collateral damage on the part of the attacker and a war crime on the part of the defender for having illegally permitted human shields. Moreover, death or injury to human shields, whether Iraqi or non-Iraqi, who voluntarily take up positions at the site of legitimate military objectives does not constitute “civilian” collateral damage, because those voluntary human shields have assumed the risk of combat and, to that extent, have compromised their noncombatant immunity.

The reality is that in the case of actual conflict the number of genuinely voluntary human shields, whether Iraqis or non-Iraqis, will be nominal. Far more important is attention to the millions of ordinary Iraqis who (as noted in the US Defense Department briefing of February 26, 2003) appear to have had numerous military targets illegally located among them or who have had civilian objects such as schools or mosques built adjacent to military installations, and who for that reason face increased risk of death and serious injury – even if attacking forces take proper and legally required precautions in launching attacks. The international public should understand that the willful co-location of military objectives among the civilian population or willful co-location of civilian installations such as schools or mosques next to legitimate military targets, for the purpose of immunizing those military objectives against attack by threatening collateral damage, in effect treats Iraqi civilians as though they were involuntary human shields – hostages to illegal actions of the Iraqi military. Defenders’ violations of their obligations under international laws of war, while not relieving attackers of their obligations, will in fact tend to make collateral damage from even legally permitted attacks more likely and more extensive. (At the same time, however, it should be noted that there remains at least the theoretical possibility under the laws of armed conflict that both sides might scrupulously observe their obligations to civilians and yet tragic collateral damage still occur. Not all collateral damage is necessarily the result of a failure to take proper precautions by either attackers or defenders.)

It should further be made clear that just as attacking forces and their members will be held to account for criminal violations of the laws of war, defending military forces and their members likewise will be held personally criminally accountable after any conflict, in a US court martial or other appropriate legal forum for trying war crimes, for any use of human shields or hostages, voluntary or involuntary, or for willful commingling or co-location of military targets among civilians or civilian objects. To that end, the undersigned welcome statements by US Secretary of Defense Donald Rumsfeld and Chairman of the Joint Chiefs of Staff General Richard B. Myers on February 19, 2003 that, in an Iraq conflict, the United States would treat the use of human shields or hostages, voluntary or involuntary, to protect military targets as a war crime, and that taking precautions for the protection of civilians is an obligation incumbent on defending as well as attacking armed forces. The undersigned likewise welcome statements by the US Department of Defense reiterating the US commitment to take proper and legally required precautions to avoid civilian casualties and minimize civilian collateral damage. The undersigned further welcome the willingness of the US government publicly to state, in advance of a conflict, its views of international law on this vital subject so that they are both known to all parties and available for open discussion.

The intentional commingling of Iraqi military forces among the civilian population of Baghdad or other population centers for the purpose of threatening mass civilian casualties and deterring attacking forces properly fearful of collateral damage – the spectre of urban warfare deliberately staged by defending Iraqi forces to create casualties among their own civilians – would constitute a horrific crime of war.

Signed (affiliation noted for identification purposes only):

Kenneth Anderson
Professor of Law, Washington College of Law, American University
Research Fellow, Hoover Institution, Stanford University
(202) 274-4212
(Principal drafter and contact person)

William C. Bradford
Assistant Professor of Law
University of Indiana Law School

Lee A. Casey
Baker & Hofstedtler
Formerly attorney in the Reagan and Bush Sr. administrations

Samuel Estreicher
Professor of Law
New York University Law School

Douglas Kmiec
Dean and Professor of Law
Catholic University Law School

Jerome Marcus
Berger & Montague
Formerly of the State Department Office of the Legal Advisor

Madeline Morris
Professor of Law
Duke University Law School

Jeremy A. Rabkin
Professor, Department of Government
Cornell University

David Rieff
Co-editor, Crimes of War and Author, A Bed for the Night: Humanitarianism in Crisis

David B. Rivkin, Jr.
Baker & Hofstedtler
Formerly attorney in the Reagan and Bush Sr. administrations

Abraham D. Sofaer
Research Fellow, Hoover Institution, Stanford University
Formerly Legal Advisor to the State Department

Don Wallace, Jr.
Professor of Law
Georgetown University Law Center

Paul Williams
Professor, Washington College of Law and School of International Service
American University

Edwin D. Williamson
Sullivan & Cromwell
Formerly Legal Advisor to the State Department