|
Article Excerpt
[This commentary explores the pressures placed on the jus ad bellum, governing the resort to force by states, and the jus in bello, norms addressing how force may be applied during hostilities, by 21st century conflict. As to the former, the rise of transnational terrorism forced a sea change in the way states perceive and apply this sparse body of law. In particular, the jus ad bellum has proven flexible and responsive in the face of non-state actors mounting attacks of unprecedented scale and scope. By contrast, the increasing prevalence of asymmetrical warfare, especially that characterised by the technological supremacy of one of the parties to a conflict, has resulted in the weaker side adopting tactics that fly in the face of an inflexible j us in bello (international humanitarian law). Parties facing such tactics understandably begin to view it as a one-sided constraint. Exacerbating this dynamic is the 'bully syndrome ', a tendency by the media, non-governmental organisations and others to hold, sometimes unintentionally, the technologically advantaged side to higher standards. Ultimately, there is a danger that states will begin to view application of the jus in bello as dependent on an opponent's relative compliance with jus ad bellum norms, thereby breaking down the impenetrable wall between the two bodies of law that has preserved them for the past century. Such views must be resisted.]
CONTENTS I Transnational Terrorism and the Jus ad Bellum II Asymmetry and the Jus in Bello III The 'Bully Syndrome' IV Collapse of the Wall? V Conclusion: To the Barricades
Twenty-first century conflict is subjecting international law to ever-growing pressure. Unless this pressure is somehow relieved, or the law fortified, the legal regimes governing armed conflict risk losing much of their prescriptive influence over states and armed forces. Some commentators claim the pressure has already caused the normative superstructure to collapse, while others assert that it remains largely unshaken. (1) As is usually the case, the truth lies between the two extremes.
The international law regarding the use of force can be subdivided into the jus ad bellum and the jus in bello. The jus ad bellum addresses when states may employ force as an instrument of their national policy. It treats war as a clash between states acting to safeguard their rights and enforce their obligations. For instance, the jus ad bellum governs such topics as self-defence, United Nations Security Council mandates to act forcefully, and humanitarian intervention. Reduced to basics, the jus ad bellum delineates when states may turn to their armed forces in their international relations.
By contrast, the jus in bello sets norms for the conduct of military operations during armed conflict, including the protection of civilians, civilian objects and other protected entities. It humanises war by speaking to such issues as who and what may be targeted, how targeting may be executed, the weapons that may be used, how prisoners of war and other detainees must be treated, and the rights and obligations of occupying forces. Also labelled international humanitarian law, the law of war, or the law of armed conflict, the jus in hello governs how military operations may take place.
Whereas the jus ad bellum serves the interests of states qua states, the jus in bello safeguards the well-being of individuals (usually civilians), their property, and those who are hors de combat. (2) However, the fact that international law depends on the assent of states--either through a treaty regime or in the form of the state practice from which customary international law emerges--tempers this humanising dynamic. Simply put, states will reject prescriptive norms that excessively fetter their discretion during hostilities. As a result, jus in bello norms reflect a delicate balance between humanitarian concerns and military necessity. As noted in the St Petersburg Declaration, they fix 'the technical limits at which the necessities of war ought to yield to the requirements of humanity'. (3)
It has long been accepted as holy gospel among international lawyers that these bodies of law do not intersect. (4) In other words, the jus in bello applies equally to belligerents, whether they be jus ad bellum aggressors or victims. The preamble to the 1977 Additional Protocol I to the 1949 Geneva Conventions (5) codifies this distinction:
the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict ... (6)
The existence of a seemingly impenetrable wall between these two distinct entities derives from both humanitarianism and practicality. As to the former, the jus in bello seeks to protect those who lack specific culpability in the decision to conduct war in violation of the jus ad bellum--the civilians and common soldiers who are at the mercy of their nation's political and military decision-makers. It recognises that war is merely a Clausewitzian continuation of politics by other means, (7) and thereby seeks to limit violence to that which is necessary to achieve the ends sought, whether they are legitimate in jus ad bellum terms or not. The distinction is equally practical. Although an aggressor and victim necessarily exist in theory, both sides usually claim that the other is the malfeasant. Thus, if the jus in bello applied only to safeguard the interests of the 'just' state, it would seldom be applied, since each side would paint the other as 'unjust'.
This contribution honouring the 10th anniversary of the Australian Red Cross Chair, held by my friend and colleague Professor Timothy McCormack, explores how evolutionary, perhaps even revolutionary, transformations in the nature of warfare are influencing both the jus ad bellum and the jus in bello. The analysis conceives of law as dynamic and reactive, constantly responding to the changing context in which it applies. As conflict evolves, so too must the law governing it.
The process of normative adjustment transpires in a number of ways. Occasionally, law anticipates changes in warfare through the adoption of pre-emptive treaties. An early and abortive example was the attempt to prohibit aerial bombing through a Declaration adopted during the 1899 First Hague Peace Conference. (8) The 1995 Protocol on Blinding Laser Weapons serves as the most recent example of law addressing a means of warfare in advance of its general fielding on the battlefield. (9)
Much more common is a post factum normative reaction to shifts in the nature of conflict. This occurs when warfare reveals fault lines in the law that the international community agrees need to be addressed. Indeed, in 1863 Geneva merchant Henri Dunant co-founded the International Committee of the Red Cross ('ICRC'), which sponsored the first international humanitarian law treaty the following year, after observing the carnage of the Battle of Solferino in 1859. (10) The Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949 serves as the paradigmatic example of reactive law. Today, it seems hard to imagine that no treaty specifically designed to protect the civilian population was adopted until after World War II. But although civilian populations had suffered in prior conflicts, the scale and scope of civilian suffering during the conflagration dwarfed that of prior conflicts. Nearly 47 million civilians died during the conflict, twice the military losses; hence, there was international consensus on the need for new law. (11)
On the other hand, treaty law may fall into desuetude when a change in the nature of conflict renders it ill-fitting in contemporary warfare. Former White House Counsel Alberto Gonzales drew precisely this conclusion in his iniquitous 2002 memo to President Bush seeking rejection of Secretary of State Colin Powell's request for reconsideration of the decision not to apply Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949 to captured al Qaeda and Taliban prisoners. (12)
As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949]. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes, such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (ie, advances of monthly pay), athletic uniforms, and scientific instruments. (13)
The leaked memo created an international brouhaha, an understandable reaction to characterising interrogation restrictions as 'obsolete'. However, Gonzales' point was not entirely off-base. To some extent, certain provisions are out of step with modern realities of detention. Article 60, for instance, provides that captured soldiers shall receive eight Swiss francs (AS 13) monthly unless 'unduly high compared with the pay of the Detaining Power's armed forces or would, for any reason, seriously embarrass the Detaining Power'. (14) The memo reflected the reality that calls for the demise of a norm naturally surface when it no longer neatly fits the context of warfare.
International law most commonly responds to conflict through state practice. Practice constitutes an 'operational code' that may belie a previously accepted interpretation, or even the plain text, of a treaty provision. (15) Whatever the law might be on paper, it is the way states implement it that matters in international intercourse. One such 'reinterpretation' through state practice deals with the applicability of the law of self-defence to transnational terrorism, a subject explored below. In addition, state practice that has become 'general' and which evidences opinio juris sive necessitatis can cause previously established customary norms to evolve and new customary norms to materialise. (16)
This commentary explores how modern conflict has, and might further, impel the law governing the use of force to react in one of the aforementioned ways. With regard to the jus ad bellum, the major contemporary 'stressor' on the law is undoubtedly the phenomenon of transnational terrorism. The events of September 11 took terrorism to an unprecedented height of lethality, thereby shocking the international nervous system into embracing a new perspective on such events, one moving beyond the traditional law enforcement paradigm. As to the jus in bello, asymmetry appears to have placed the greatest stress on the relevant norms. Classically, states viewed international humanitarian law norms as neutral--in theory, they constrain and protect the belligerents equally. Asymmetry throws off this balance, for in an asymmetrical fight norms may augur in favour of one of the belligerents.
The impact of these two forces on the law has perniciously drawn the strict divide between the jus ad bellum and jus in bello into question. A collapse of the void between them would represent the most significant change in the law governing the use of force in well over a century.
I TRANSNATIONAL TERRORISM AND THE JUS AD BELLUM
The most fundamental fight of a state is to defend itself from attack. (17) Article 51 of the Charter of the United Nations codifies this customary international law norm:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
It is the sine qua non facet of the jus ad bellum.
Until recently, mainstream international law viewed the right as based in inter-state relations. Self-defence allowed one state to protect itself against armed attack by another. Violence directed by non-state actors against the state, its citizens or their property fell within the purview of criminal law. (18) Indeed, when states responded militarily against terrorists located outside their borders, criticism often followed. Consider Operation El Dorado Canyon, the 1986 US air strikes against Libyan-based terrorist targets in response to the bombing of a Berlin discotheque frequented by US military personnel. The UN General Assembly 'condemned' the operation as 'a violation of the Charter of the United Nations and international law', a view echoed by Secretary-General Javier Perez de Cueller. (19) Far from an exercise of the right of self-defence pursuant to art 51, most of the international community deemed the operation a violation of art 2(4)'s prohibition on 'the threat or use of force against the territorial integrity or political independence of any state'. In the then prevailing normative paradigm, terrorist attacks constituted criminal acts, not 'armed attacks'. That paradigm would change radically in 2001.
To be lawful, defensive responses to armed attacks have traditionally had to comport with three criteria: necessity, proportionality and immediacy. The International Court of Justice has repeatedly recognised the first two as customary. (20) The third derives directly from the 19th century Caroline incident and the ensuing exchange of diplomatic notes between the US and the United Kingdom. (21)
Necessity requires that there be no viable option other than force to deter or defeat an imminent armed attack. Proportionality, by contrast, limits the degree of defensive force employed to that reasonably required to foil an anticipated armed attack or defeat an ongoing one. Thus, necessity mandates the consideration of non-forceful measures as alternatives to forceful ones, whereas proportionality requires a reasonable relationship between the defensive measures actually used and those objectively required to defend against the armed attack.
An additional self-defence criterion is immediacy. Since an armed attack that is underway obviously merits a response, the criterion bears only on either anticipatory or ex post facto defensive actions. In the past, immediacy referred to temporal proximity to the anticipated armed attack, as reflected in the Caroline standard of an attack that is 'instant, overwhelming, leaving no moment for deliberation'. (22) Such an approach made sense vis-a-vis classic warfare because it maximised the opportunity for diplomacy and other non-forceful measures to avert war. In a similar vein, immediacy precluded a defensive response that occurred long after an armed attack, for the hiatus since the last military action signalled an opportunity to turn back to diplomacy and other non-forceful options.
The locus of defensive action under traditional notions of self-defence was typically one's own territory, that of the state conducting the attack, or the high seas. Since states carried out armed attacks, the occasion to launch defensive operations into a third state's territory seldom presented itself, unless the third state opened the door, for instance, by allowing its territory to be used as a base of operations.
Even state sponsorship of an attack often did not merit an armed response against the sponsor. The law imposed an extremely high standard for treating a third state as having conducted an armed attack carried out by a group other than its armed forces. In 1986, the ICJ articulated this standard in its Nicaragua judgment:
the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. But the Court does not believe that the concept of 'armed attack' includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States. (23)
Essentially, the Court recognised two requirements for state sponsorship to constitute an 'armed attack': that the forces conducting the operation are acting as agents of the state against whom the defensive action is launched; and that it be sufficiently grave.
The four attacks mounted by al Qaeda on September 11 2001 dramatically changed the context within which this well-settled law operated. Although the attacks were carried out by a non-state actor, it was difficult to fathom how a law enforcement response alone could suffice. The number of civilian deaths approximated the military losses during the 7 December 1941 Japanese attack on Pearl Harbor, etched in the US collective conscious as 'a date which will live in infamy'. (24) The culprits operated from Afghanistan, then ruled by the Taliban, a government recognised by only three states. (25) Further, the Taliban had ignored repeated Security Council demands to eradicate the al Qaeda presence. (26) It would have been absurd to expect Taliban assistance in conducting law enforcement operations to bring the terrorists to trial. Finally, future attacks were a near certainty. Al Qaeda had struck at the US before (although never on US soil) (27) and Osama bin Laden had called 'on every Muslim who believes in God and wishes to be rewarded to comply with God's order to kill Americans'. (28) More...
|
