Does law still protect in war? A critical analysis

di Alberto Dal Poz*

siryano

 

Summary

  • Abstract (english)
  • Abstract (italiano)
  • Introduction
  • 1 – Legal background
  • 2 – Means and methods of warfare
  • 3 – Psychological factors
  • 4 – Law and the ‘enemy’
  • 5 – Counterarguments
  • Conclusion
  • Bibliography
  • Legal Texts and Judgements
  • Notes

 

ABSTRACT (english) – International humanitarian law – enshrined in international bodies of law, such as the Geneva Conventions – is the primary instrument to protect civilians during wartime and minimize the negative impact of fighting. However, a vast range of contemporary case suggests the protections offered by this body of law seems highly ineffective to reach its purpose. Through examples drawn from recent international and non-international conflicts, the present article will analyze different factors negatively affecting the protective effect of international humanitarian law, including targeting criteria as well as psychological and cultural aspects. Hence, it appears that in contemporary conflict political decisions concerning the status of “enemy” are determinant in justifying violations of laws of armed conflict and compromising the protection of civilians.

ABSTRACT (italiano) – Il diritto internazionale umanitario, previsto da testi normativi quali le Convenzioni di Ginevra, è il principale strumento di tutela dei civili in caso di conflitto armato e allo scopo di minimizzare gli effetti negativi dei conflitti. Tuttavia, una vasta serie di esempli tratti dai recenti conflitti internazionali e non-internazionali indica che le protezioni offerte dal diritto umanitario sono altamente inefficaci nel raggiungere tali fini. Attraverso esempi tratti da recenti conflitti armati internazionali e non-internazionali, il presente paper analizza alcuni fattori che influiscono negativamente sul rispetto del diritto umanitario internazionali, fra i quali i criteri di selezione dei bersagli (targeting) ed elementi psicologici e culturali. In conclusione, sembra che decisioni politiche relative allo status di “nemico” sono determinanti nel giustificare violazioni del diritto dei conflitti armati e compromettere la protezione dei civili.

 

Introduction

This article analyses the impact of evolving means and methods of warfare on the compliance with law of armed conflict (LOAC; or international humanitarian law, IHL). In particular, it will focus on targeting criteria and of psychological and cultural considerations. Accordingly, it will argue that IHL currently has a limited effect in protecting civilians during armed conflicts, regardless of their international or non-international character.

Scope of law of armed conflict (LOAC)[1] is regulating the conduct of warfare, in order to minimize the negative impacts of war on combatants and civilians. Given their different roles in the conduct of warfare (i.e. direct participation to hostilities or not), protection of combatants and civilians is radically different. In particular, the International Court of Justice stated that protection of the latter is an “intransgressible” principle of international law (ICJ, 1996).

Nevertheless, civilians deaths in armed conflict dramatically increased during the twentieth century, raising to 80% of war-related deaths (Francis, 2004). As Dinstein argues, paradoxically “it may be safer to be a combatant. […] the current disproportion of the civilian/combatant ratio of casualties is totally unacceptable” (2002: 219). Simultaneously, however, warring parties insist on retaining flexibility in conducting military operations (Reeves & Thurnher, 2013).

Despite international efforts dedicated to the purpose of protecting civilians in war, the limited efficacy of international humanitarian law (IHL) in protecting civilians is revealed by the symbolic and unsanctioned use of chemical weapons during the Syrian conflict (UN, 2013), contravening a prohibition long held as inviolable principle of LOAC.

This paper will analyze the limitations of LOAC primarily focusing on means and methods of warfare, showing that limitations of IHL in protecting civilians follow as indirect yet inevitable consequence of conducts adopted by warring parties. The article is structured as follows: firstly, I will illustrate the fundamental legal norms and principles concerning limitations in war; in the second part, I will analyze the impact of contemporary means and methods of warfare in the respect of law of armed conflict, with particular regard to the so-called “Fourth generation” warfare and the evolution of such means and method; in the third part I will analyze psychological and cultural factor and their impact on compliance with humanitarian norms. Thereafter, I will present some preliminary remarks on legal limitations and the “enemy”. Finally, in the latter part, I will assess potential counterarguments, before summarizing the main findings and present some conclusions.

 

1 – Legal background

Precondition for protecting civilians during an armed conflict is the possibility to distinguish them from combatants. LOAC qualifies this as the customary and intransgressible principle of distinction, enshrined in art. 48 of Additional Protocol I (AP1) to Geneva Conventions (GCs), stating that: “Parties to the conflict shall at all times distinguish between the civilian population and combatant”. Dill (2016) observes that this dichotomy is exhaustive and mutually exclusive, hence no additional category is admissible.

The distinction is based on a priori status, which confers civilians immunity from attack “unless and for such time as they take a direct part in hostilities” (art. 51 AP1), i.e. as long as no “direct causal link” adversely affecting military operations of one party can be established (Solis, 2016: 218). The rule is stated also in art. 4 of Additional Protocol II (AP2) applicable to non-international conflicts. Similar protections cover members of armed forces or organized rebel groups hors de combat (i.e. that no longer take part to the hostilities, e.g. because wounded – art. 41 AP1).

The principle of distinction is corroborated by that of military necessity, which allows destructions “imperatively demanded by the necessities of war” (Rogers, 2012: 9). Nonetheless, its interpretation is hazy.

In an effort to clarify its limits, art. 51 AP1 further enunciates the proportionality principle, prohibiting direct or indiscriminate attacks on civilians: attacks are regarded as indiscriminate if expected to cause “incidental loss of civilian life […] excessive in relation to the concrete and direct military advantage anticipated” (emphasis added). However, the established nexus between civilian losses and expected military advantages implies that “the more important the military objective, the greater the incidental losses” tolerated (Rogers, 2012: 25).

The same principles and issues extend to civilians objects: while according to art. 52 AP1 civilian objects are distinguished from military objectives (Green, 2008: 505) and should not be targeted, due to a “flexible and future-oriented” interpretation of LOAC combatants consider as legitimate targets objects that have merely “a potential of being militarily useful”, such as broadcasting stations, bombed in Serbia during NATO’s 1999 intervention (Bring, 2002: 259- original emphasis).

As consequence, civilian killings and destruction of civilian properties resulting as indirect (“collateral”) outcome of attacks to military objectives are legitimate if proportionate to the expected military advantage (Crawford & Pert, 2015). Hence, despite limitations enshrined in IHL “violence against civilians [can be] used to achieve military advantage” legitimately (Kalyvas, 2005: 100).

 

2 – Means and methods of warfare

Two distinct tendencies demonstrate the decreasing respect and relevance of combatant/non-combatant distinction: firstly, “fourth generation” warfare, and secondly the constant evolution of means and methods of warfare.

Fourth Generation Warfare

Proponents of the Fourth Generation Warfare theory argued that evolutions in warfare were marked by increased dispersion on the battlefield and the fourth generation would include “the whole of the enemy’s society”, with an increased blurring of “distinction between war and peace”, civilian and military (Lind et al., 1989). According to “Fourth Generation” warfare scholars, this occurs in contexts where the “entire society becomes involved in the conflict” (Bassiouni, 2008: 768), causing a blurring of the fundamental combatant/non-combatant distinction. The situation is illustrated by the ongoing Ukrainian Conflict, where several loosely organized militias participated in fighting supporting either side (Reeves & Wallace, 2015).

Some states (notably the US) tried to solve this issue by revising the “unlawful combatants” category (Quénivet, 2010), to create an “intermediate” status between civilians and lawful combatants (i.e. members of armed forces or organized non-state armed groups). In the original interpretation of the Geneva Conventions, the category of unlawful combatants included spies and mercenaries (Rogers, 2012). This revision would allow targeting of persons who, although formally civilians, repeatedly engage in direct participation in hostilities (Dinstein, 2010: 36). Analogously, Islamic scholars broadly interpret the circumstances in which civilians might be attacked according to shari’a (Aly, 2014).

Whilst International Committee of the Red Cross (ICRC) maintains that “immunity from attack is restored each time that the person ends his engagement”, others argue that these circumstances permit their killing, based on a prediction of future behaviour (Dinstein, 2010: 148). Therefore, Kalyvas (2005) claims that resorting to indiscriminate violence is the sole possible response for states, when incapable to identify the adversary.[2]

Further complications arise from the practice of non-state armed groups to demobilise and remobilise combatants for few days, as common in Afghanistan (Giustozzi, 2008). Even admitting that a person’s “continuous affiliation” to an armed group might legitimate his killing (Dinstein, 2010: 149), this practice raises questions about what time interval interrupts such affiliation.

Moreover, urbanisation and increased strategic importance of cities imply that warfare is constantly more directed against or carried out within urban spaces, escalating the number of civilian killings indirectly resulting from air-strikes and ground operations (Graham, 2010). This is revealed by the 2015 US bombing of a MSF hospital in a densely populated area in Afghanistan (Reuters, 2016) as well as by the Somali Civil War, where targeting was undertaken completely ignoring any civilian/combatants distinction: according to De Waal, during the Battle of Mogadishu “soldiers adopted the maxim of ‘to whom it may concern’ for targeting their shells” (De Waal, 2015: 119). Similar conducts have recently been reported in the Ukrainian conflict (ICC, 2016).

These examples clearly indicate that several factors negatively affect an effective combatant/non-combatant distinction in contemporary “Fourth Generation” conflicts, severely compromising the ability of IHL to minimize civilian losses. In fact, as argued by “Fourth generation” warfare theorists, civilians become entirely part of the conflict.

Evolution of means and methods of warfare

Warring parties continuously evolve their methods of warfare by extending potential objectives for destruction. This is confirmed by several examples from targeting dual-use infrastructures serving primarily civilians. Such infrastructures might include electric grids, as happened in Iraq in 1991 (Graham, 2010: 279ff), or water installations, targeted during the conflict in Somalia (Alasow, 2010). This practice represents a violation of art. 14 AP2, prohibiting destruction of “objects indispensable” for survival of civilians.

Additionally, military doctrine evolved to justify destruction of non-military objects with so-called “war sustaining capability”, including media or political institutions (Sassoli, 2003: 6 – emphasis added) and “economic targets that indirectly but effectively support and sustain the enemy’s war fighting capability” (Dinstein, 2010: 95). Similarly, in contemporary “cyber warfare” disruption in IT-systems causes interruption of services necessary for civilian life (Crawford & Pert, 2015).

Even disregarding the problems of urban combat highlighted above, such transformations void the provisions of art. 58 AP1, requiring states to “avoid locating military objectives within or near densely populated areas”.

Moreover, given complexity and interconnectedness of urban systems, destructing their material and cyber-infrastructures causes long-lasting detrimental impacts on civilians, enduring well beyond the end of the conflict. This has been defined by Graham as “bomb now, die later” effect (2010: 279). The situation is clearly exemplified by the first Iraqi conflict, where:

at war’s end, Iraq had a mere 4 per cent of the pre-war electricity supply. Four months later, only 20-25 per cent of the pre-war level had been attained… [by 1999] availability of drinkable water had fallen to 50 per cent of 1990 levels (Graham 2010: 281-282)

Furthermore, constant strategic and technical innovations render existing provisions of LOAC obsolete -especially given time required to negotiate amended ones. As illustrated by the use of unmanned autonomous weapons systems, such innovations even reached a level compromising the human role in warfare. Obsolescence of preventive measures foreseen in GCs (i.e. protecting powers) and the circumstance that civilians cannot retaliate aggravate the problem.

 

3 – Psychological factors

Three psychological and emotional phenomena contribute in diminishing the protective effect of IHL: firstly, technology and bureaucracy; secondly, emotional and psychological factors; finally, the assumption that combatants share a common set of norms and values.

Technology and bureaucracy

With regard to the first factor, Francis (2004) emphasizes how modern technology and bureaucratic processes contribute to diminish individual responsibility in combat, hence the deterrent effect of LOAC and ultimately its respect by combatants. By increasingly parceling responsibility, distancing and detaching combatants from consequences of their actions (both physically and psychologically) (Kennedy, 2006: 169), technology and bureaucracy enhance a sense of unaccountability and lower thresholds for using lethal violence.

Moreover, Sparrow (2007) claims that decision-making currently relies on IT-systems processing large volume of data, which humans have to trust, limiting their accountability. Not only nowadays the enormous quantity of data available requires decision-making regarding targeting selection to be processed through algorithms; but also unmanned weapons systems are becoming increasingly autonomous in “search for, detect, identify, attack and destroy” potential objectives to the point that decisions of attacking might be transferred to artificial-intelligence (Graham, 2010: 64, 172ff).

These technological and bureaucratic processes hence clearly decrease the personal perceptibility of the violent consequences of individual actions, particularly in warfare, thereby increasing the risk of excessive or unrestrained and unaccountable use of force.

Psychological and emotional factors

Secondly, emotional and psychological conditions in war cause combatants to live in a constant state of “hyper-aggression or fear”, which causes a “mental blurring of distinctions between combatants and civilians” (Francis, 2004: 90) and renders extremely difficult for combatants to adhere to combat rules, which require a minimum of rational discernment. Indeed, as argued by Taussig (2004), violent behaviour normally qualified as “aberrant” (Bassiouni, 2008: 781) can result exciting and pleasant for perpetrators. This is clearly exemplified and demonstrated by treatment of Iraqi prisoners in the infamous Abu Ghraib prison (ICC, 2016).

This state of hyper-aggression and fear is fueled by urban fighting: due to restricted space and time all humans are “increasingly rendered as real or potential fighters, terrorists or insurgents, legitimate targets” (Graham, 2010: 16), significantly reducing combatants’ ability to distinguish civilians from people engaging in hostilities. This context thus increases perceptions of constant threat and overreaction in self-defence. Moreover, this sense of hyper-aggression and fear is fueled by innovative means and methods of warfare, such as the use of drones, especially if they disregard existing conventional rules. As consequence, not only every person but also every unmanned device can represent a threat. The practice of ISIS’s of using unmanned devices to drop grenades over targets in Mosul (The Guardian, 2017) illustrates the problem.

Shared values?

Finally, IHL relies on the assumption that combatants share common values or could achieve common understandings of illegitimate conducts. Nevertheless, past and contemporary experiences alike demonstrate this is rarely the case. Although historical research indicates that most civilizations shared the need for rules limiting legitimate actions in combat (Solis, 2016; Munir, 2011), a dehumanizing attitude has also always been part of war-making and is still common in contemporary conflicts.

As the behaviour of US soldiers in World War II, performing mutilations on Japanese and collecting skulls as war trophies (Zoja, 2011), or more recently by RUF rebels in Sierra Leone (Marks, 2017), such attitude this dehumanizing attitude has been constantly present in modern conflicts. Moreover, as clearly illustrated by World War I propaganda, this attitude can effectively be supported by institutions and diffused among civilians and military in order to support military operations.

Criminal jurisdictions acknowledged such cultural differences, too, stating that “is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases” (ICTY, 2000: para 50).

Indeed, “barbaric practices that flout even the most elementary dictates of humanity” have been committed in recent civil conflicts by states as non-state actors alike: in Chechnya, Afghanistan, Sudan and Congo (Murphy, 2002: 255), by Boko-Haram (ICC, 2016) or by LRA fighters in Uganda, and by ISIS with its “inhumane” beheading practice in Syria (Friis, 2015) or by US troops in Iraq.

From this perspective, declarations of military commanders to bomb countries like Serbia or Iraq “back to the Stone Age” (Graham, 2010: 273) reveal more than strategic calculations. Similarly, according to McCants (2015), despite Koranic prescriptions forbidding attacks on civilians, strategy books available to ISIS fighters argue that such limitations can be ignored, justifying indiscriminate attacks.

Hence, while atrocities performed in civil wars, such as mutilations in Uganda or Sierra Leone, communicate a desire of self-assertion (Keen, 2002), they also represent willingness to dehumanize adversaries (Kennedy, 2006), not recognizing them as entitled to rights and dignity (Agamben, 2000). Torturing or humiliating prisoners, treating them as “dogs” as happened in Guantanamo (GIL, 2002), is perhaps the best example of this.

Furthermore, as outed above, both intensity of fighting (particularly in constrained spaces and times) and protracted conflicts exacerbates violations of LOAC. This suggests that processes of dehumanization increase exponentially during conflict, which thus becomes extremely difficult to control (Morrow, 2007). Again, the decade-long war in Somalia, where a highly homogeneous society came to commit extreme atrocities, breaking international and customary laws, demonstrates this (Alasow, 2010). As consequence of these processes, Marks (2017) argues that solely the most aggressive fighters are likely to be in the frontline, resulting in increased violence against civilians.

 

5 – Law and the ‘enemy’

In Clausewitz’s model “wars were limited by the political objectives of the opponents” (Kissinger, quoted in Kennedy, 2006: 59). However, as illustrated by the preceding examples, when annihilation of opponents becomes the “political objective”, or reasons of “military necessity” and state survival prevail, such limitations lose effectiveness.

Using the Greek concept of “stasis” Agamben describes the current situation. Civil war, he notes, assimilates brother and enemy:

the killing of what is most intimate is indistinguishable from the killing of what is most foreign. […] stasis […] confuses what pertains to the oikos with what is particular to the polis (2015: 14-15)

In such circumstances, objective essential to LOAC statuses fade and conventional social structures are destroyed (Schmitt, 2007). Hence, echoing Schmitt (2007), it appears that in contemporary conflict only a subjective friend/enemy decision remains. Consequently, this distinction needs (or accepts) no limitations in the conduct of fight.

This demonstrates that even if norms exist, combatants can easily disregard or manipulate them. Thus, war appears to be a “state of exception” (Agamben, 2005) from the application of normative restraints.

 

6 – Counterarguments

In order to strengthen civilian protection, two solutions have been proposed: firstly, since 2011 the Swiss Confederation and ICRC undertook consultations with states to reinforce observance of IHL. However, the process has not yet resulted in any instrument to overcome the acknowledged lacunae (RCRC, 2015).  Secondly, with regard to means and methods of warfare, Bring (2002: 271) suggests reviewing the concept of military objectives, narrowing it exclusively to objects actually making an effective military contribution. While such amendment could increase accountability and compliance, it seems unlikely that it could have an impact on dehumanizing effects of technology, bureaucracy, and psychological factors identified above.

Moreover, both options suffer major limitations: states still oppose amending formulation or enforcement of existing norms and renouncing the advantages offered by the present flexibility (Reeves & Thurnher, 2013). Additionally, since they are not engaged in negotiations, non-state actors  could profess their disregard of such instruments.

It has even been suggested that IHL principles are adaptable to evolved conditions of warfare. Yet, transforming detailed norms into standards impairs their applicability, to the extent that principles of proportionality, self-defence or military necessity are “routinely invoked to refer to a zone of discretion rather than limitation”, thus used to justify potential war crimes (Kennedy, 2006: 106- original emphasis). Indeed, as demonstrated by Marks (2017) with regard to RUF rebel leaders in Sierra Leone, warring parties constantly manipulate norms to allow and excuse violent conduct in conflict. Lastly, limited relevance of IHL is suggested by ICRC’s praxis of relying on diplomatic approaches in order to reach victims, where LOAC is merely a “vague background”. Indeed, Forsythe argues, “even without IHL the ICRC would continue to carry out most of what is doing” (2005: 243).

The most relevant argument supporting efficacy of IHL in protecting civilians is probably the existence of implementation mechanisms: the Geneva Conventions require warring parties to disseminate knowledge of LOAC and provide commanders with legal counsel prior to attacks (art. 82, 83 AP1). Nonetheless, conduct of hostilities by non-state actors reveals that they are rarely aware of the provisions of the Geneva Conventions or deliberately disregard them. This is corroborated by declarations of Somali warlord Atto, who argued that that his “followers did not necessarily adhere to the Geneva Conventions” and “respected their own traditions” (quoted in Alasow, 2010: 210). Frequent demobilisation and remobilisation further prevents effective dissemination of IHL among militiamen.

Moreover, states have a duty to prosecute whoever commits grave breaches of LOAC (art. 49 GC1), and since the 1990s, a consistent body of international criminal law was implemented, notably through UN ad hoc Tribunals for Rwanda and ex-Yugoslavia. This development culminated with the creation of the International Criminal Court, prosecuting grave beaches of the Geneva Conventions (art. 8 ICC Statute). These institutions can contribute to punish IHL violations. Nonetheless, their contribution to protecting civilians remains limited: as stated by Greenwood (2002), international criminal tribunals had little or no effect on the conduct of military actions; or in limiting the commission of atrocities by non-state actors. Indeed, constant violations of laws of armed conflict have been reported even decades after the establishment of such criminal jurisdiction, as in the Central African Republic where “widespread and systematic attacks” against civilians were committed by sekela and anti-balaka militias (ICC, 2014).

Several factors explain the current limitations of international criminal instruments. Firstly, access to justice remains limited for civilians and judicial remedies intervene only ex post, hence offer no preventative protection, except a hypothetical deterrence effect (Evans, 2012). Secondly, tribunals never prosecuted combatants of the winning party or are constrained by political considerations: despite breaching IHL between 1994-1997 during the conflicts in Rwanda and Congo (Zorbas, 2004), RPF combatants faced no accountability before ICTR.[3] Similarly, notwithstanding reports of LOAC violations by states in Uganda (Thuo Gathii, 2007) and Congo (HRW, 2016), exclusively non-state actors were prosecuted before the ICC. Moreover, to reach a guilty judgement, evidence of mens rea (criminal intention) shall be provided (Bring, 2002). As consequence, most violations fall outside the scope of such institution, as NATO bombardments of Belgrade (Murphy, 2002). Finally, by reducing or eliminating human role in warfare, technology and bureaucratization void individual responsibility and deterrence (Kennedy, 2006).

Finally, it might be argued that public condemnation by the global audience constitutes adequate external control, especially given the monitoring system offered by new media. However, this creates a mere “burden of justification” (Kennedy, 2006: 123), which can easily eluded by the ability of the “military-industrial-media-entertainment” complex (Der Derian, 2001) and military “strategic communications” to manipulate reporting of facts, “win the narrative” and obtain legitimacy for military actions (Davies, 2009). This frequently result in claims of conducting “humanitarian” interventions, as Russia claimed regarding Ukraine (Geest, 2015) or as illustrated by the target-killing of alleged al-Qaeda leader in Iraq, Al Zarqawi (Davies, 2009).[4]

 

Conclusion

Through references to contemporary means and methods of warfare, in particular regarding targeting selection, urban combat, and new technologies; as well as to psychological and bureaucratic factors, this article demonstrated that international humanitarian law has at the present day limited usefulness in protecting civilians. This is confirmed by a vast number of examples in contemporary conflicts, ranging from NATO intervention in Serbia; civil wars in Somalia, Sierra Leone and Ukraine; and practices of non-state actors like ISIS or US soldiers in Iraq.

Given the absence of effective enforcement mechanisms, the most relevant factor for compliance with LOAC remains reciprocity -as threat of retaliation-, which forces warring parties to internalize costs of their violations (Morrow 2007).

Yet, civilians cannot pursue this tactic: while IHL claims for them a “sacralized” status, by failing to provide adequate protection it reduces civilians to the status of “bare life” (Agamben, 1998), whose killings remain tacitly permitted, similar to a sacrificial victim.

Hence, it appears that, as Clausewitz argued, constraints on the conduct of hostilities are merely “self-imposed” (2007: 44), consequently they can be transgressed when deemed imperative weighting humanity and military necessity: war appears the ultimate moment of sovereign (absolute) political decision, to the point of suspending legal restrictions.

 

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Legal Texts and Judgements

 

Notes

[1] The terms law of armed conflict (LOAC) and international humanitarian law (IHL) will be used interchangeably.

[2] It is worth noting, however, that this strategy might be far from being effective: as Giustozzi argues, indiscriminate violence is often costly and has significative delegitimizing effects, hence rulers prefer “taming” it -i.e. increasing its targeting, particularly through institution-building (such as police) (Giustozzi, 2011).

[3] However, the author acknowledges that recent preliminary investigations carried out by the ICC concerning crimes allegedly perpetrated by US military forces in Afghanistan, however problematic, might represent a shift in this trend.

[4] As clearly reported by Davies (2009), al-Zarqawi resulted having no links with al-Qaeda.

 

*Sull’autore

Alberto Dal Poz è avvocato e MSc in Violence, Conflict and Development (SOAS, University of London). In precedenza, ha conseguito la Laurea Specialistica in Giurisprudenza presso l’Università di Trento, focalizzandosi sulla giustizia di transizione e il diritto penale internazionale. Ha lavorato in qualità di intern presso  l’Extraordinary Chambers in the Courts of Cambodia e l’International Criminal Tribunal for Rwanda.

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