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Article Excerpt
This Article attempts to identify and clarify what is genuinely new about the "new paradigm" of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions--in both the formal and informal senses of that word--onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse "party" to the conflict both (1) repudiates a predicate axiom of international humanitarian law and (2) exhibits an organizational structure at odds with the one presupposed by the inherited conventions of war.
In particular, modern transnational terrorist networks, unlike most nonstate actors of concern to international humanitarian law in the past (including, for example, francs-tireurs, insurgents, and national liberation movements), characteristically repudiate the conventional, "amoral" conception of noncombatant immunity and the triad of core international humanitarian law principles-necessity, proportionality, and distinction--that follow from it. Furthermore, the diffuse, decentralized structure of modern transnational terrorist networks--in contradistinction to the hierarchical, linear structure of professional state armies and cognate private armies of past eras--makes them ill-suited for compliance with international humanitarian law. It also renders deterrence and negotiation--the principal historical mechanisms by which states neutralized threats from nonstate actors--frequently ineffective. Coupled with the increasing availability of catastrophic weapons on illicit markets, these features vastly complicate efforts to adapt the inherited war convention to contemporary circumstances--a periodic ritual that has followed major wars and crises since the advent of modern international humanitarian law in the nineteenth century.
For these reasons, international humanitarian law must begin to work out the contours of a voluntarist war convention to govern what is likely to be a prolonged state of episodic armed conflict with this particular genre of twenty-first-century nonstate actor. The conventional regimes governing internal and international armed conflicts should be augmented--but not, in my judgment, displaced--by conventions designed for what may be characterized as transnational armed conflict. Several factors, however, counsel Burkean caution and multilateral deliberation before introducing innovations: the continuing vitality of certain instrumentalist rationales for international humanitarian law, its synergy with international human rights law, and the manifest potential for abuse. I therefore conclude that, in the meantime, (1) any proposed modifications should be incremental, transparent, tentative, and subject to revision as the genuine scope of military necessity becomes clear; (2) the burden of persuasion should be on those who urge such modifications; and (3) insofar as existing law does not clearly govern, sound policy rationales generally continue to commend adherence to the inherited conventions of war.
TABLE OF CONTENTS INTRODUCTION I. THE STRUCTURE OF THE INHERITED WAR CONVENTION II. ROTOCOL I REVISITED III. IHL AND THE "NEW" NONSTATE ACTOR A. Noncombatant Immunity B. A Network of Networks IV. PROLOGUE TO VOLUNTARIST WAR CONVENTION CONCLUSION
INTRODUCTION
Until their first contact with Europeans in the 1940s, the Tsembaga, a primitive society of about 200 people comprising one of a score of Maring clans residing in the territory now known as New Guinea, (1) engaged in two stages of warfare. In the first, the "nothing fight," belligerents lined up "within easy bow shot" to fire arrows at one another while protecting them selves by huddling behind large shields. (2) Because "the unfletched arrows of the Maring seldom kill[ed]," neither clan sustained many casualties. (3) Nothing fights at times lasted for four or five days. (4) They operated in practice "to suppress rather than to encourage hostilities," which could otherwise escalate into the far more brutal and protracted "true fight." (5) Nothing fights generally ended "when both sides agree[d] that the number of deaths [wa]s sufficient for the present." (6)
The point of this anthropological anecdote, and countless others that could be told, is to emphasize a fact that is too easily lost in the labyrinth of modern rules and regulations of the law of war: all war is, by definition, a social phenomenon governed by conventions. Strange though it may seem,
What is war and what is not-war is in fact something that people decide .... As both anthropological and historical accounts suggest, they can decide, and in a considerable variety of cultural settings they have decided, that war is limited war--that is, they have built certain notions about who can fight, what tactics are acceptable, when battle has to be broken off, and what prerogatives go with victory into the idea of war itself (7)
The extensive codification and intricacy of the modern law of war tends to obscure its conventional nature. In the lexicon of international law, as well as ordinary speech, a convention often denotes a treaty, (8) And conventions in this formal sense prescribe the bulk of the positive law of war. But a convention also refers generally to a "practice or procedure widely observed in a group, especially to facilitate social intercourse; custom." (9) For its efficacy, authority, and legitimacy, the contemporary law of war relies as much, if not more, on this latter type of convention.
The term international humanitarian law ("IHL"), in contrast to older appellations such as the law of armed conflict or the law of war, connotes a shift in the emphasis of the modern "war convention." By this, in the singular, I mean not only positive international law but the complete "set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that shape our judgments of military conduct." (10) Broadly speaking, this shift has been from a network of customary law and treaties--enforced by a variety of political dynamics that obtain between the professional armies of nation-states, including reciprocity, reputation, and military discipline within a hierarchical command structure (11)--to an increasing reliance on norms of human dignity and individual rights that IHL shares with and derives in part from international human fights law. (12) Hence, substantial authority suggests that modern IHL now prohibits, for example, reprisals, which were once a lawful means to enforce the laws of war. (13)
Conventions need not be written, still less codified in any legally binding form. (14) But just as a contract generally requires an exchange of promises between two or more parties and a "meeting of the minds,"(15) a convention about the conduct of organized violence generally cannot survive or function very effectively as a unilateral commitment--or so it would seem at first blush. In the context of modern IHL, however, this analogy is too simple and proves misleading, in part for the reason already suggested: informal conventions, which cannot be understood as bilateral or contractual in any straightforward sense, underwrite the formal conventions that prescribe the bulk of the positive law of war. These two meanings of convention, as well as their relationship to the modern war convention, broadly conceived, should inform any effort to adapt the law of war to contemporary technological and geopolitical circumstances--a periodic ritual that has followed major wars and crises since the advent of modern IHL in the nineteenth century.
Since the attacks of September 1 l, 200 l, a fierce debate has raged over whether it is accurate--or prudent (a distinct question)--to treat the global struggle against modern transnational terrorist networks typified by al-Qaeda within the legal rubric of war or, by contrast, whether that struggle must--or should--be treated exclusively within the rubric of criminal law) (16) Yet the distinction between terrorism as crime and terrorism as war is not ultimately qualitative. It is, like the question of war itself, "something people decide."(17) War has no Platonic form. To suggest that as a matter of international law, a terrorist network by definition cannot be a party to an armed conflict in the twenty-first century (18) strikes me as both inaccurate and anachronistic, (19) although it would be equally implausible and ill-advised to (20) begin treating all or even most acts of terrorism within the rubric of war.
That is one reason why the phrase "global war on terrorism" is so unfortunate (21): it crudely lumps together diverse phenomena within a single legal framework, obscures relevant differences, and mistakenly implies that the military instrument should be the primary strategy to address the threats posed by modern transnational terrorist networks typified by al-Qaeda. (22) We will surely lose the global war on terrorism if literal war becomes its strategic centerpiece; transnational cooperation in intelligence, financial controls, law enforcement, diplomacy, and ideological strategies will be indispensable to any ultimate "victory." (23) In the final analysis, however, defining the proper characterization of and response to diverse kinds and degrees of terrorism calls for policy judgments. While the use of force, as well as its conventions, has been abused recently, the military instrument, too, has its place in addressing the threat of transnational terrorism. IHL must acknowledge this reality and adapt to it (24)
On January 25, 2002, Alberto R. Gonzales, then counsel to the president, wrote that "the war against terrorism is a new kind of war"--as distinct from "the traditional clash between nations adhering to the laws of war"--and that "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." (25) The phrase "new paradigm," like the phrase "global war on terrorism," is rhetorically dangerous insofar as it can be abused to justify violations of clear law and to aggrandize political power. (26) It also has troubling antecedents in the history of the law of war, which offer cautionary lessons. (27) During World War II, for example, General Wilhelm Keitel, among other Nazi elites, described the conflict between Germany and the Soviet Union, which Hitler labeled "Bolshevist terrorism," in eerily similar terms: as a new kind of ideological warfare that rendered the 1929 Geneva Convention on the Treatment on Prisoners of War obsolete. (28)
But here, as elsewhere in law, it is vital to differentiate between descriptive and normative claims. The existence of circumstances that may be described as a new paradigm must be distinguished from policy measures adopted in response to it--and certainly from its cynical exploitation as a means to aggrandize power or justify expedient violations of clear law. We may face a new paradigm, but the obsolescence of the inherited war convention does not necessarily follow: whether a new paradigm exists and whether it renders the old one obsolete are analytically distinct questions.
I agree that certain aspects of the global war on terrorism, while hardly without antecedents, can be characterized as a new paradigm if treated within the rubric of armed conflict. (Whether it is prudent or wise to so characterize them is a distinct question.) But what precisely does that mean? What is actually new about the new paradigm of armed conflict? Appreciating how a war waged against a modern transnational terrorist network such as al-Qaeda differs from familiar international and internal paradigms is a prologue--hence the title of this Article--to designing an appropriate, humane, and effective war convention to govern it.
At an abstract level, the principal challenge posed by the asserted new paradigm is that it seems to call for IHL to graft conventions--in both the formal and informal senses---on to an unconventional form of organized violence in circumstances in which one "party" to the conflict repudiates them. I put party in quotation marks because a diffuse, transnational terrorist network, unlike a state or insurgent group, cannot accurately or profitably be conceived as a monolithic party. This characteristically decentralized structure disrupts IHL. Modern transnational terrorist networks use organized violence systematically. But they do not resemble professional state armies---or even past nonstate actors, such as militias, paramilitaries, and insurgent groups--insofar as they lack, among other things, the hierarchical structures of authority, discipline, and organization that characterize the latter. (29) Without these structures, which can enforce the rules of war through education, indoctrination, and a chain of command, it is doubtful that such networks could, even if they wished, attain a general level of compliance with IHL.
Repudiation of the inherited war convention by modern transnational terrorist networks extends not just to particular formal conventions, such as the treaties governing war on land, although it almost surely includes them. (30) More troublingly, it extends to the central informal conventions and social norms that underlie modern IHL: first, that "the only legitimate object ... [of] war is to weaken the military force of the enemy," (31) and second, that noncombatants should be protected from the harms of war to the greatest extent compatible with military necessity. (32) The network structure, as well as the ideological or psychological predispositions of at least some members of modern transnational terrorist networks, also renders them less susceptible than past nonstate actors to the principal control strategies in the arsenals of states: deterrence and negotiation. (33)
For these reasons, the emergence of modem transnational terrorist networks, like previous developments that prompted revisions to the laws of war, (34) will require changes to the inherited war convention. But far more than in the past, adapting the war convention to new circumstances will be a unilateral exercise. By unilateral, I do not mean that it can or should be accomplished by one state. The unilateralism in the interpretation and application of IHL that has characterized the Bush administration's approach to the global war on terrorism is, in my judgment, often misguided and counterproductive. Any effort to revise the inherited war convention should surely be multilateral, for it will benefit from transnational cooperation between like-minded states. Unlike with past war conventions, however, only one of the opposing parties to this war will determine its precepts. It will be unilateral, roughly speaking, in the sense that a party enters into a unilateral contract. That does not mean--any more than for a unilateral contract--that a unilateral war convention is or should be nonbinding; nor does it imply that no benefits accrue to the party that follows the convention. To avoid the unintended and mostly negative connotations of the term unilateral, I will refer instead, perhaps more precisely, to the need for IHL to develop a voluntarist war convention. (35)
Part I of this Article appraises the inherited structure of the law of war and stresses IHL's traditional reliance on interstate political dynamics and status categories. (36) Part II reflects on the lessons of history and emphasizes that, in certain significant respects, the allegedly new paradigm is not so new: many of the debates about the global war on terrorism that rage today were aired previously in the controversy over the merits and demerits of Protocol I. (37) Yet commentators have largely neglected this precedent in arguing about the appropriate military response to post-9/11 geopolitical circumstances. These debates included (1) Protocol I's alleged legitimation of terrorism, (2) its likely effect on the incentives of certain nonstate actors and overall compliance with IHL, and (3) the normative and strategic advisability of conferring lawful combatant status on such actors. These debates have not been resolved so much as obsolesced by time and three decades of experience with Protocol I, but they offer lessons for contemporary efforts to adapt IHL. Part III contrasts the paradigmatic nonstate actors of Protocol I with modern transnational terrorist networks and clarifies two principal features of the latter that complicate efforts to adapt the inherited war convention: their repudiation of the conventional conception of noncombatant immunity and their network structure.
Briefly, I argue that modern transnational terrorist networks with ideologies and structures typified by al-Qaeda cannot readily be integrated into the global war system, created by and for states, or its associated war convention. (38) This is because a sine qua non of the war convention is a particular conception of noncombatant immunity and the triad of IHL principles--necessity, proportionality, and distinction--that follow from it. (39) But noncombatant immunity is not a principle of natural law. Nor, contrary to popular belief, does it follow from the moral innocence of civilians relative to the causes or harms of war. (40) It is neither more nor less than a convention in the informal sense, (41) namely, a practice adopted by certain political communities to govern a particular (violent) form of social intercourse.
To say that noncombatant immunity does not follow logically from the moral innocence of civilians is not to say that it lacks a moral purpose. To the contrary, a paramount rationale for the convention of noncombatant immunity is that it reduces the aggregate human suffering and destruction caused by war. But whatever its rationale, transnational terrorist networks typified by al-Qaeda characteristically reject this particular convention of war. The statements of Osama bin Laden and his deputies, for example, suggest that they view noncombatant immunity as a defeasible principle that can and should be discarded in circumstances where the enemy, in their perception, bears moral guilt for the grievances that constitute their casus belli. (42) This kind of moral conception of noncombatant immunity is directly at odds with the conventional, "amoral" conception of noncombatant immunity at work in the war convention. It also conflicts with the axiom that insists on the analytic independence of judgments of jus ad bellum, the law governing resort to war, and jus in bello, the law governing the conduct of hostilities. (43)
Repudiation of the conventional conception of noncombatant immunity might not be such an intractable problem for IHL were it not for the increasing availability of catastrophic weapons to nonstate actors and two other conspicuous characteristics of modem transnational terrorist networks. First, unlike the state-sponsored terrorist groups that predominated in the twentieth century, modem transnational terrorist networks cannot easily be deterred. (44) Among other obstacles, they lack a readily ascertainable "return address," (45) as the botched strikes in retaliation for the 1998 U.S. embassy bombings attest. (46) Second, again unlike state-sponsored terrorism, because of their diffuse network structure and ideological views, modem terrorist networks cannot readily be neutralized by negotiation. I do not mean to suggest that negotiation and deterrence, broadly conceived, will not work and should be abandoned in the global war on terrorism: my point is only that the conventional manifestations of those strategies will be inadequate relative to some of the most threatening terrorist networks that we confront today.
International law must therefore begin to work out a voluntarist war convention to govern what is likely to be a prolonged state of episodic armed conflict with a particular genre of twenty-first-century nonstate actors: transnational terrorist networks typified by al-Qaeda. Al-Qaeda is the paradigm, but not the sole manifestation, of a modem transnational terrorist network: similar networks will likely continue to evolve and threaten world public order. (47) Several factors, however, counsel Burkean caution and multilateral deliberation before introducing innovations: the continuing vitality of certain instrumentalist rationales for the inherited conventions of IHL, IHL's contemporary foundation in and synergy with shared norms of human dignity and international human rights law, and the manifest potential for abuse. I therefore conclude that, in the meantime, (1) any proposed modifications to IHL should be incremental, transparent, tentative, and subject to revision as the genuine scope of military necessity becomes clear; (2) the burden of persuasion should be on those who urge such modifications; and (3) insofar as existing law does not clearly govern, strong policy rationales nonetheless generally commend adherence to the core of the inherited war convention. Its central precepts should be preserved, though for reasons partially distinct from their pedigree and rooted far less in a bilateral view of reciprocity.
I. THE STRUCTURE OF THE INHERITED WAR CONVENTION
Throughout history and across cultures, conventions of war have evolved from and reflected some admixture of three principal rationales (48): (1) military prudence, that is, issues of strategy, including an appreciation of the value of internal discipline and reciprocity; (2) virtue ethics, that is, culturally specific conceptions of the warrior's honor; (49) and (3) humanism, that is, some conception of human dignity. (50) With the rise of the modern state, chivalry and noblesse oblige, which together animated the bulk of the medieval jus in bello, (51) gradually gave way to conventions operationalized largely by the political dynamics between states. This is not to suggest that humanitarian sensibilities played no role in the development of the laws of war. Grotius devoted the third book of his magisterial De Jure Belli ac Pacis to the concept of temperamenta belli, moderation in war, (52) and the rhetoric of modern IHL pervades the preambles to most of the treaties that established the early laws of war. (53) But law of war conventions of the late nineteenth and early twentieth centuries unquestionably relied on interstate political dynamics and incentive structures that obtained between the professional armies of states--and, by necessary implication, on a strict, hierarchical system of internal discipline that states were to indoctrinate and enforce within their armies. (54)
Article I of the Hague Conventions of both 1899 and 1907, Respecting the Laws and Customs of War on Land, requires states parties to "issue instructions to their armed land forces which shall be in conformity with the ... present Convention," and Article II provides that the regulations set forth only bind the states parties in wars between them. (55) Furthermore, the Hague Conventions apply only to certain nationals of the states parties, (56) namely, lawful combatants--a category first defined by criteria enumerated in the 1874 Declaration of Brussels. (57) The Brussels criteria appear, verbatim or substantially unchanged, in the 1899 and 1907 Hague Conventions and in the 1929 Geneva Convention Relative to the Treatment of Prisoners of War. (58) Yet "[t]he distinction between combatant and noncombatant," which the Brussels criteria enable and operationalize, "is not an ancient one in the history of war, for until the Middle Ages it was the conception of war to treat all inhabitants of the states at war, including women and children, as actual enemies, subject to being slaughtered." (59)
By the late 1940s, according to the Nuremberg Tribunal, the regulations established by the 1907 Hague Convention had become custom, rendering obsolete the "general participation" clause contained in Article II. (60) This development, however, did not presage any dramatic movement away from reliance for the enforcement of IHL on reciprocity, (61) the political dynamics between states, and the structural features of their professional armies. The Third Geneva Convention of 1949 retains the Brussels criteria substantially unchanged. To qualify as a prisoner of war ("POW"), and by implication a lawful...
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