Laws of War in a Time of Terror
Matthew Evangelista
What we commonly call the laws of war has two other names, used by professionals in the field: International Humanitarian Law and the Law of Armed Conflict. Which name you use says a lot about how you think about the sources and purpose of law in the international system. The Law of Armed Conflict is the preferred choice of military professionals whose historical reference point is the Lieber Code of 1863, the document commissioned by President Abraham Lincoln to codify the existing military practice so that soldiers of the Union Army would abide by it. Members of humanitarian organizations and many international lawyers prefer the name International Humanitarian Law. They date the modern emergence of this body of law to the efforts of Swiss businessman Henry Dunant, who founded the International Committee of the Red Cross and convened its first meeting in that same year,1863, inspired by the horrors he witnessed at the Battle of Solferino four years earlier. The Committee was initially formed to aid wounded soldiers; it then expanded its scope to include sailors, and later prisoners of war, but as war became increasingly destructive to civilians, the ICRC embraced a broader mandate to extend protections to noncombatants as far as possible. The organization is considered the custodian of the Geneva Conventions and its role is explicitly recognized in the treaties.
As a general rule, we might hypothesize that an emphasis on the military professionals’ understanding of the laws of war will favor military exigencies over the protection of civilians, whereas the humanitarian approach might privilege civilian welfare over optimal military performance. The question I want to pose here is what effect has the “war on terrorism” had on the laws of war, and, in particular: 1) has it shifted the balance of influence between states and nongovernmental actors; and 2) is it likely to erode or enhance the protection and security of civilians?
Trends before September 11th
I would like to start with an observation about the situation before September 11 th. With the end of the Cold War, a number of observers began to argue that something called “global civil society” was emerging to exert influence on the norms that govern international politics, including security policy. The most striking example was the campaign to ban landmines, an effort spearheaded (to use an inappropriately bellicose metaphor) by nongovernmental organizations. In just five years, grassroots and transnational activists convinced a number of states to sponsor a process that resulted in the 1997 Ottawa Mine Ban Treaty to outlaw the production, sale, and deployment of antipersonnel mines. Skeptics of a realist bent would point out that the treaty’s signatories did not include the world’s major producers of landmines, which happened also to be some of the world’s leading military powers: the United States, China, Russia. Absent from the list were also countries in particularly war-prone regions: Syria, Egypt, Israel, Iran, Iraq, Saudi Arabia, India, Pakistan. There are, in turn, two counterarguments to that skeptical view: First, what realist would expect a treaty to come into force in the military sphere despite the opposition of the major states that engage in military operations? But in the period 1999 to 2004, 152 countries had signed the treaty , s ixty-two million stockpiled antipersonnel mines were destroyed, more than 1,100 square kilometers of land was cleared of more than four million antipersonnel mines and nearly one million antivehicle mines, and donors contributed more than $1.35 billion to the demining efforts. Second, despite their opposition, the major powers, with the notable exception of Russia, had by and large abided by the treaty’s provisions, at least until recently. The U.S. has not used such mines since the 1991 Gulf War, has not exported them since 1992, and has not produced them since 1997. Only four governments have conducted new mine-laying operations since early 2003: Russia, Myanmar, Nepal and Georgia, although the United States is poised to join them. As the result of a policy review in February 2004, the United States is likely to violate the ban, by producing new weapons, continuing to stockpile old ones, and by deploying landmines in Iraq. Despite these setbacks, the Ottawa Treaty would appear to be a case where norms shaped practice, rather than one where prevailing practice became codified into law. And it would contradict the realist expectation, described by E.H. Carr, that characterizes international morality and law as “the product of dominant nations or groups of nations.”
A second area where one might argue that nongovernmental organizations have played a role in restraining the use of military power is aerial bombardment. Human Rights Watch, to take one of the most prominent groups active in this sphere, issues regular reports on the military practices of major countries that rely heavily on bombing. The organization has monitored the US wars in Iraq in 1991, Kosovo in 1999, and Afghanistan and Iraq more recently, as well as the decade of Russian military involvement in Chechnya. It regularly reminds the relevant states of their obligations under international humanitarian law and even points out which practices tend to cause the most violations – such as indiscriminate use of ground-launched cluster bombs in heavily populated areas or attacks intended to kill top Iraqi leaders by tracing signals from their satellite telephones. The success rate in the latter case was evidently 0 for 50, with many civilians killed unintentionally. There is some evidence that a few countries have limited their use of cluster bombs in response to such criticism, but the overall impact of nongovernmental organizations on state military practice is still unclear. Human Rights Watch has also issued reports critical of the practices of the weaker side in these conflicts, such as Chechen separatists and Saddam Hussein’s army, especially for the use of so-called human shields, but presumably with even less effect than on the behavior of the major powers.
In cases such as the campaigns to ban landmines or limit the use of cluster bombs, human-rights groups are seeking to expand the normative and legal constraints on the use of military power beyond what existing law provides. Sometimes they do so in order to counteract the effect of what Nina Tannenwald has called “permissive” norms. For example, a number of observers have noted that international humanitarian law, while providing constraints on disproportionate damage to civilian life and property during actual combat, is silent on the long-term impact of destruction of so-called dual-use facilities, such as electric grids, transportation networks, sewage and water stations, and the like. They have argued that this lacuna in the law needs to be filled with meaningful prohibitions.
So it is an ambitious agenda, but one for which the end of the Cold War and the elimination of major security threats to the world’s most heavily armed states seemed to provide a window of opportunity. Has September 11 th shut that window?
The Reassertion of State Practice
Let us give the benefit of the doubt to those who would argue that the activity of human-rights organizations has served to constrain states to adhere to norms and laws of warfare, and perhaps even to broaden the scope of those norms to extend further protections to civilian non-combatants. The question is whether the U.S. declaration and conduct of a “war on terrorism” will continue or reverse that trend.
Why does this question arise in the first place? For one thing, a number of observers, close to and within the Bush administration, have argued that things have gone too far. International humanitarian law and the actions of human-rights groups have come to threaten U.S. sovereignty by inhibiting the United States from taken actions essential for its own security. The extreme version of this view holds that the U.S. Constitution permits of no legal restrictions, domestic or international, on the President’s ability to wage war, including the “war on terrorism.” The argument is based on an analysis originally undertaken by John Yoo, the Berkeley law professor who served in the first Bush administration as deputy assistant attorney general. Yoo wrote in January 2002 that “customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution.” In August 2002, the Attorney General’s office went a step further and claimed that even some laws passed by the U.S. Congress are unconstitutional restrictions on the President’s status as commander-in-chief of the armed forces. This matter arose in connection with the detention of prisoners from al Qaeda and the Taliban and the concern that the President might be liable for prosecution if the prisoners were tortured during interrogation, because Congress had passed a law banning torture. As then Assistant Attorney General Jay Bybee wrote to then Attorney General Alberto Gonzales:
Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President…Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.
The starkest version of this view was expressed by John Yoo at a conference at Princeton University in April 2005. I call it the “I’m not saying I’m in favor of torture, but…” view. That is both a direct quotation and a fair reflection of Yoo’s position on the subject. And to paraphrase Peewee Herman, John Yoo, like everybody, has a big “but”: “I’m not saying I’m in favor of torture, but I am saying these are option[s] to think about and these are arguments you would make in trying to figure out what interrogation techniques to [would?] work.” And remember that this is one of the officials who worked very hard to narrow the definition of torture until it became hard to separate from deliberate murder.
At Princeton, Anne Marie Slaughter, the dean of the Woodrow Wilson School, which sponsored the conference, became rather upset at Yoo’s remarks and tried to get him to clarify: “ [I]f I hear you correctly, you are telling me that you would tell your client, the President of the United States, you may order pulling out somebody’s fingernails. You may order having somebody’s family member killed in front of them to extract information. That is Constitutional, you are empowered to do that under the Constitution? Are you really saying that our Constitution allows a President to order that?” And Yoo answered with a question: “Is there any provision that prevents him from doing that?”
So that is the extreme position that state practice should trump both international and domestic law and that the president gets to fight wars however he sees fit and whenever he decides that the country is at war. There are more nuanced, more academic variants on this position, from my Cornell colleague Jeremy Rabkin, for example. For me, one of the most thoughtful proponents of this view is Kenneth Anderson, a law professor at American University who has worked for Human Rights Watch and as legal editor to the Crimes of War project, but who has come to criticize what he considers a disproportionate influence of such organizations in the formulation of the laws of war. He expressed this view in a New York Times Magazine article, entitled “Who Owns the Rules of War?” and in various academic publications. He claims that the laws of war belong to those who fight wars, and that soldiers and civilians both will be more secure if practice guides law, rather than the other way around.
Perverse Effects of Humanitarian Norms
One consequence of publicity and criticism from human-rights organizations is that the United States has tried to bring a humanitarian dimension into its military operations. We can debate the reasons. Clearly there is a public-relations angle. This was perhaps most apparent in the subsidiary justifications for the war against Afghanistan, launched in the wake of the September 11 th attacks. The United Nations Security Council, the North Atlantic Treaty Organization, and other international bodies, were satisfied that the war was legally justified on grounds of self-defense. Yet, for some reason the Bush administration chose to portray the war as serving humanitarian goals, including, as First Lady Laura Bush was recruited to emphasize, the liberation of Afghan women. But public relations is only part of the story. Economic reconstruction is key to the success of today’s interventions, whether by NATO in former Yugoslavia, the U.S. in Afghanistan and Iraq, or Russia in Chechnya. So in Iraq (and as Dave Barry says, I’m not making this up), the U.S. Army’s First Cavalry Division has launched “Operation Adam Smith,” which President Bush described as “setting up local chambers of commerce, providing Iraqi entrepreneurs with small business loans, and teaching them important skills like accounting, marketing and writing business plans.” It is ironic that at the same time as we see traditional military support functions undertaken by private corporations, these kinds of civilians tasks are performed by soldiers. Worse than ironic, though, I would argue it is quite dangerous for the soldiers -- and for the civilians who are trying to engage in reconstruction without choosing sides politically. By eroding the barrier between combatant and noncombatant, the U.S. policy puts everyone at greater risk, even if the blame for the deaths rests primarily with those who carry out the attacks without discriminating between humanitarian workers and members of the occupying army.
The Power of Public Opinion
In the standard models depicting the promotion and spread of norms of international behavior, public opinion figures prominently. Public opinion surely can play a role in extending protections to civilians in our current wars, but to mobilize public pressure requires access to information. In this age of embedded journalists and television war as pyrotechnic entertainment, it is hard to imagine U.S. citizens calling the administration to task on questions of excess civilian casualties or torture and abuse of prisoners. Studies of public opinion on U.S. foreign policy suggest that the media cover an issue only when the party in opposition in Washington raises it and thereby makes it newsworthy. Criticism from the Democratic Party on the conduct of the Iraq war and the “war on terrorism” has generally been half-hearted, and on torture nonexistent. Moreover, officials in the White House are masters at media manipulation. According the White House spin if Newsweek retracts its story about interrogators at Guantánamo dumping a Qu’uran down the toilet, that means we forget about similar, and far worse, abuses, no matter how well-documented (much as Dan Rather’s admission of relying on forged documents of George W. Bush’s military service somehow made the President a model soldier, and John Kerry a traitorous coward).
There is an argument already in the literature that nongovernmental organizations have remained effective in promoting the rule of law, despite the “war on terrorism.” For example, Catherine Powell, a law professor at Fordham University, has argued that “transnational norm entrepreneurs” have helped to temper some of the policies that emerged in the immediate aftermath of September 11 th attacks, such as the denial of right of habeus corpus to people arrested in the United States and considerable disregard for the Geneva Conventions. Even if such transnational groups have had a moderating effect on U.S. policy, there is still a very strong view in and around the Bush administration that the President’s hands should not be tied in any way in the “war on terrorism,” but other people’s hands can be tied -- and much worse. If the people at the top do not provide some guidance and training to those below, many of the basic provisions of humanitarian law will be undermined.
A recent investigative report by the New York Times on the situation in Afghanistan made this point clearly. It focused attention on, among others, Carolyn Wood, an army lieutenant (now captain) in her early thirties who commanded the 525th Military Intelligence Brigade at Fort Bragg, North Carolina. Her unit of 13 soldiers joined six Arabic-speaking reservists from the Utah National Guard to become part of Company A of the 519th Military Intelligence Battalion. Stationed at Bagram airforce base in Afghanistan, the unit’s soldiers were “counterintelligence specialists with no background in interrogation. Only two of the soldiers had ever questioned actual prisoners.”
Nor were the rules of engagement very clear. The platoon had the standard interrogations guide, Army Field Manual 34-52, and an order from the secretary of defense, Donald H. Rumsfeld, to treat prisoners "humanely," and when possible, in accordance with the Geneva Conventions. But with President Bush's final determination in February 2002 that the Conventions did not apply to the conflict with Al Qaeda and that Taliban fighters would not be accorded the rights of prisoners of war, the interrogators believed they "could deviate slightly from the rules," said one of the Utah reservists, Sgt. James A. Leahy. "There was the Geneva Conventions for enemy prisoners of war, but nothing for terrorists," Sergeant Leahy told Army investigators. And the detainees, senior intelligence officers said, were to be considered terrorists until proved otherwise.
The consequence of the poor training and supervision was widespread abuse of prisoners, including two who were beaten to death under Captain Wood’s watch in Afghanistan. Transferred to Iraq, she applied many of the same techniques to prisoners at Abu Ghraib. But the ultimate responsibility rests at higher levels. Indeed, the Bush administration’s decision to conflate al Qaeda terrorism with the war in Iraq insured that Iraqi insurgents, not to mention the hapless civilians caught up in counterinsurgency sweeps, would be at great risk of abuse. Yet there has been little public outcry to slow the erosion of the norms against torture as they come under assault from current U.S. practice.
Implications of Current Practice
If current U.S. practice comes to shape the norms and laws that govern warfare, as some argue it should, what would be the implications for the international system and for ordinary people? One concern is that certain U.S. practices create precedents that will redound to everyone’s disadvantage. Henry Shue has made this argument particularly in regard to torture:
We have no guarantee that a precedent of refraining from torture will be followed by others, but we can be sure that a precedent of engaging in torture will be followed. "If the world's superpower, with all its high technology weapons, cannot defend itself without using torture, how can incomparably weaker and poorer groups like us manage without torturing captured fighters who might provide valuable life-saving information?" Torture seems to be the ultimate in efficiency, the shortcut to end all shortcuts. It is difficult enough to resist when you would be the exception if you gave in. When you would simply be following the leader, the precedent is irresistible.
One can already observe the impact of the U.S. precedent of embracing a preventive-war doctrine (even if disguised under the misleading name of “preemptive war”) both in its official pronouncements and in practice in Iraq. Russian President Vladimir Putin, for example, has declared that his country has the right to attack neighboring states such as Georgia or Ukraine, if it finds that they are harboring terrorists who might pose a threat to the Russian Federation. Finally there is the worrying precedent that the U.S. seems to be setting in dealing with charges of abuse and torture of detainees around the world: prosecuting the small fry and letting off the hook the senior military and political leaders who formulated the policies that contributed to the crimes. If its government and military establishment do not abide by the rule of law, the United States will find it very difficult to make the case that other countries should do so.
Let me close on a slightly more hopeful note by returning to the theme with which I began, the divergence in understanding of the laws of war between military professionals and human-rights activists and lawyers. Consider something Kenneth Anderson wrote in 1998. He seemed to be in the process of moving from a position close to the human-rights community to one that resembles more the views of thoughtful military lawyers and officers. So you’ll see that he still uses the term “international humanitarian law,” although his remarks nevertheless reflect the distinction I have highlighted:
International humanitarian law seeks to create a culture, indeed a cult, of war, one most peculiar in the history of culture, because it is transnational and not located in a specific geography, grounded instead in the sense of a shared profession, among men-at-arms, and, in war-time, only too frequently contrary to immediate human interest….[I]n the end, the culture relevant to respect for international humanitarian law is not the culture of legality and the cult of lawyers, but instead it is the culture of the professional honour of soldiers and what they are willing or not willing to do on the battlefield.
Or, he might add, if he were writing after 9-11, what they are willing or not willing to do in prisons and concentration camps. The bright spot in the otherwise dark picture I’ve sketched is the role that some military officers and soldiers have played in resisting the degradation of their profession that comes with the Bush administration’s arrogant dismissal of the value of the laws of war. The military lawyers who raised concerns with the American Bar Association, the Pentagon officials who leaked the “torture memos” to the press, the whistle-blowers at Abu Ghraib and elsewhere were acting in defense of their professional honor, as Anderson describes it.
When administration officials argued that al Qaeda and Taliban prisoners were entitled to no protections under the Geneva Conventions, they pointed out, plausibly, that U.S. soldiers captured by those organizations would be unlikely to receive such protections. Therefore the expectation of reciprocity that undergirds much of international law would be absent. When presented with such arguments, many military lawyers and officers respond with something to the effect of “but we don’t want our American soldiers to be mistreated if they are taken prisoner.” Do they fail to understand the argument about reciprocity? I doubt it. I think they have become so thoroughly socialized to the norm of humane treatment of prisoners that they are unwilling to abandon it just because a gang of terrorists refuses to respect it. My sense is that they have a more profound understanding of how norms work than their political superiors do. They understand that the occasional exception, if properly stigmatized, can actually serve to bolster the norm, whereas if the exception becomes the rule, all bets are off. I don’t share Anderson’s confidence that the culture of military honor will be enough to prevent our descent into barbarism, in the absence of responsible, moral leadership, but I do find some hope in the common decency of the soldiers and officers who have resisted the Bush administration’s efforts to make “worst practice” the basis of future international law.
* Prepared for conference, “Beyond Terror,” Watson Institute, Brown University, 3-4 June 2005
International Campaign to Ban Landmines, Landmine Monitor Factsheet, “Status of Implementation of the 1997 Mine Ban Treaty,” 21 June 2004, http://www.icbl.org/lm/factsheets/pdf/implementation_status_june_2004.pdf.
Landmine Monitor Report 2004, http://www.icbl.org/lm/2004/.
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http://hrw.org/english/docs/2004/12/03/global10236.htm; Human Rights Watch, “U.S.: New Landmines for Iraq Raise Fears of Civilian Risk,” February 2005, http://hrw.org/english/docs/2005/02/28/usint10214.htm.
E.H. Carr, The Twenty Years’ Crisis, 1919-1939 (New York: Harper, 1964 [1946]), p. 79.
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Human Rights Watch, “Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan,” December 2002, http://hrw.org/reports/2002/us-afghanistan/; and ” Off Target: The Conduct of the War and Civilian Casualties in Iraq,” December 2003, http://www.hrw.org/reports/2003/usa1203/.
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Human Rights Watch, “Chechen Fighters Endanger Civilian Lives: ‘Shielding’ Violates Laws of War,” 13 January 2000, http://www.hrw.org/press/2000/01/chech0114.htm; “Human Shields in Iraq Put Obligations on U.S.,” 20 February 2003, http://hrw.org/press/2003/02/iraq0220.htm; “Iraqi Landmines Found in Mosque, Condemned as Violation of International Law,” 2 April 2003, http://www.hrw.org/press/2003/04/iraq040203.htm.
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Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Re: Standards of Conduct for Interrogation under 18 U.S.C. § 2340-2340A, 1 August 2002, reprinted in Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (New York: New York Review of Books, 2004), pp. 115-166, at p. 149.
Panel on “Resecuring the Homeland: Is the Patriot Act the Right Solution for Homeland Security?” Princeton University, 8 April 2005, pp. 32-33 of transcript available at http://www.wws.princeton.edu/pcpia/transcripts/patriotact.pdf. Yoo also elaborated a bit more on his views of the prerogatives of Congress: “I don’t think Congress has the power to use the criminal laws to prohibit torture ordered by the Commander in Chief who also happens to be the Chief Prosecutor, by the way, for ordering torture, on the battlefield, as a tactic, in an ongoing war. And then I said the Congress has a lot of other tools. They can cut off funding, they can change military structure, they have a lot of things they could do, but I said what they couldn’t do is [enact] a criminal law,” p. 21. He was explaining how he thought Jane Mayer had misquoted him in an article in New Yorker.
Jeremy A. Rabkin , Law without Nations? : Why Constitutional Government Requires Sovereign States ( Princeton, NJ: Princeton University Press, 2005).
Kenneth Anderson, "Who Owns the Rules of War?" New York Times Magazine, 13 April 2003, pp. 38ff; "The Role of the United States Military Lawyer in Projecting a Vision of the Laws of War," Chicago Journal of International Law, vol. 4, no. 2 (Fall 2003), pp. 445-64.
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Catherine Powell, “The Role of Transnational Norm Entrepreneurs in the U.S. ‘War on Terrorism,’” Theoretical Inquiries in Law, vol. 5 (January 2004), pp. 48-80.
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