Law Lesson: The Purpose of Rules of Warfare UPDATED

Part of a Continuing Series: One of the things I’ve noticed over the last three or four years of national debate about the War on Terror is that it is oddly common for people to ignore international law—even when it supports their arguments. This has been a pet peeve of mine for a while, simply because I do not like to see anyone leave a good argument lying on the table.

With the hope that you never leave an argument alone simply because it’s about a sticky subject, here are some simple, straightforward, and useful facts about international law that may help you out the next time you’re talking about current events.

Current Event That Prompts Discussion: Enemy combatants in Iraq conduct operations from inside a mosque against U.S. forces, resulting in the death of an American soldier. They also use the mosque as a storage cache for weapons. U.S. forces, fed up with months of attacks from gunmen operating in the mosque, call in a missile strike
after ordering everyone inside to evacuate.

This causes a great deal of agitation among your coworkers. You’re on your way to the restroom when you overhear the following exchange and decide to introduce yourself into the conversation.

See the update at the bottom of the post.

Leftist Commentary: Oh my gosh! I know that they were attacking U.S. soldiers, but there are rules about that kind of thing, y’know. Everyone expects that places of religious worship are protected by the rules of warfare. Not to mention, nothing will make Iraqi dislike for the U.S. greater than attacking a mosque.

Rightist Commentary: Screw your rules of warfare! If our guys get attacked they should fight back, regardless of where the attackers are hiding. Your rules are just getting U.S. soldiers killed. Our guys shouldn’t have waited months to shoot back; they did, and now a soldier is dead. They should have gone in and been done with it after the first attack.

Your Answer: You are both wrong.

I.

You (on the left) need to understand that even traditionally inviolate locations like hospitals and places of worship can become legitimate military targets. There are very few absolute protections under the combatancy rules; the laws of warfare are more practical than that. Always remember that rules and laws are created to serve us, not to create insane situations where people just have to shuffle their feet and say “aw, shucks, that’s a toughy.”

Yes, we often seem to be in situations where our legal ideals conflict with practical reality. Problems arise when laws are too rigidly applied or too rigidly enforced. Good rulemakers and lawmakers know this and design their laws in such a manner as to avoid absurd results. When lawmakers fail in this task, courts often step in to limit the damage.

An obvious domestic law example of this is the Fourth Amendment prohibition on unreasonable searches and seizures. The Founders knew that to simply outlaw searches and seizures would be a step too far in favor or Liberty. It would lead to the absurd situation where the law would textually prohibit law enforcement officers from making arrests. The opposite, unrestrained searches and seizures, would be a step too far in favor of Order. We would have been in a true police state. Either choice would have conflicted with the needs of practical reality.

Where legislatures have failed and laws are textually too rigid, courts have often construed the law to be more limited than the text would indicate. For example, the First Amendment provides a blanket prohibition on legislation “abridging the freedom of speech.” But we all know that such a law, if rigidly enforced, would lead to absurd results like protection for the person who yells “Fire!” in a crowded theatre or who incites a mob to violence. So courts have accepted the practical reality and limited enforcement of an otherwise rigid law.

These same principles of legislative and juridical application of law applied to the centuries-long formulation of the rules of warfare. You won’t find many absurd results mandated by combatancy rules. War, because of its dire nature, is the perfect example of a situation that demands acknowledging the needs of practical reality. Furthermore, because war is so common, these rules have had extensive and literal “field testing.”

To answer your precise contention, yes, places of religious worship are typically protected from a belligerent’s aggression. However, that protection is withdrawn if military necessity requires the attack. That doesn’t mean that a belligerent can simply level the place. Even where protection of civilian targets gives way to military necessity, the belligerent must conduct its operations so as to avoid as many civilian casualties as possible.

The U.S. troops did a good job of complying with this last duty by ordering those inside the mosque to evacuate before calling in their airstrike. It was probably not strictly necessary to wait three months to retaliate, but other considerations may have led to that delay. For example, as you note, U.S. attacks on mosques are probably not all that popular with Iraqis.

II.

And you (on the right) need to realize that combatancy rules are designed to help civilians first. Combatants—lawful or unlawful—receive protections secondary to those provided for civilians.

The international law of war is known by many names. Some (including me, BTW) prefer the "Laws of International Armed Conflict" (LOIAC) because it's easy to abbreviate and is more specific. Others use the generic phrase "Law of War" because it sounds less technical. However, the most en vogue name is "International Humanitarian Law."

We call the laws of war "Humanitarian Law" because they are designed to facilitate a balance between two opposing ideas: military necessity and humanitarian concerns. In 1868, the St. Petersburg Declaration (an early law of war) declared its purpose to secure "the technical limits at which the necessities of war ought to yield to the requirements of humanity." All that followed, the Hague Conventions, the GenCons, and numerous UN Conventions sought the same thing.

Assuming that war is bad, but sometimes necessary, international law developed a hierarchy of interests. It placed civilian lives in a particularly protected position (next come injured lawful combatants and then lawful combatants; unlawful combatants come last). The idea was to impose restrictions on combatants so that civilians wouldn't be unnecessarily killed. Examples of this kind of restriction on belligerents are prohibitions on bombing of strictly civilian areas, like hospitals or places of worship, or poisoning of water supplies.

Essentially, international law created a system whereby combatants would be allowed to kill each other, but were required to leave everyone else alone as much as possible. This created another problem, however. In order to leave civilians alone, combatants would have to be able to tell the difference between a civilian and an enemy.

That led, eventually, to things like the cumulative conditions I listed in our talk about unlawful combatants. They are designed so that combatants will be able to distinguish combatants from civilians because combatants carry arms openly, wear a uniform with a fixed distinctive emblem, obey a chain of command (so that they can be ordered to surrender when their commanding officers do), and otherwise obey the laws of war.

The problem is that some people will always have no regard for civilian lives. They'll do things like put bomb factories underneath schools, or dress like civilians, or put guns in the temple. As much as possible we should deter that kind of activity. The rules of warfare are designed with that kind of deterrence in mind. By giving unlawful combatants the most minimal protections, the combatancy rules disincentivise conducting war in a manner likely to endanger civilians. But that's not all.

Such gross violations of humanitarian law shouldn't merely be deterred. When we find that they have occurred, the rules of warfare provides that we can punish the violators. Whether you subscribe to the retributivist or expressionist schools of punishment, it should be as simple as saying "GUNS IN THE TEMPLE!" to make it apparent that some things are so base and depraved that they must be punished because they embody such a callous disregard for human life.

We rightly decry cases where U.S. troops kill civilians. What do you think will happen if in every war we ever fight in the future, the enemy dresses like civilians and lives like civilians? The rules of warfare help keep that from happening. Moreover, they provide that our military response to such actions can go further than that for lawful combatants. This is an important consideration when we consider how we want our soldiers to be treated on the battlefield.

And, no, it is not an excuse that they routinely violate the rules of warfare. Two wrongs do not make a right. A domestic analogy would be the idea that even though a criminal has violated the law, the sheriff is still bound by it. Recall that this is probably not the last war we will ever fight. That means keeping armies everywhere from trying things the AQ way.

Update: I may be unable to get the All About International Law post (or any other, for that matter) up on Monday, like I said I would. My computer will not turn on. I push the button and it stares at me. I hold the button down and it stares at me. (And I will personally hunt down and skin the first of you morons to tell me to plug it in or change the battery. Punks.)

Those of you who, like me, depend on your computer for work, school, and leisure can imagine the amount of panic I’m in right now. All of my work is done on the computer these days and like most law students I take in-class notes on it, too. I need to get this sorted out quickly and that may be taking up my time; time which I would otherwise have devoted to posts on international law, for instance.

There have been signs that this type of problem was on the way and I’ve been ignoring them. My bad. I did manage to get it turned on once and move the most crucial documents, including this post, over to my iPod (which has been doing more work as a portable harddrive than as a music player lately). And, no, I can’t just leave it on all the time. I need it to be portable; that’s the point of having a laptop.

Finally, it’s my birthday today. Wish me a good one.

posted by Gabriel Malor at 11:10 AM

| Access Comments