War is changing from conventional conflicts between nations to ‘small-wars’ as counterterrorism, counterinsurgency, ethnic and religious conflicts (Rochester, 2016, s. 10). The change is from interstate war to new wars involving nonstate actors and armed forces. The modern warfare post challenges to the United Nations (UN) Charter, the Geneva Conventions and other legal documents since they originated during World War II in an interstate war paradigm (Rochester, 2016, s. 5). The terrorist attack on 9/11 were a new type of attack and the United States of America (US) initiated a permanent war with no geographical and temporal boundaries. The declaration on global war on terror left a gab in the legal premise, where the use of peacetime domestic law and traditional wartime international law became inapplicable.
The change of war paradigm and the possible need for a new paradigm will be discussed in this paper. This paper will analyze and discuss some of the legal challenges the new security environment brings to international humanitarian law. More specifically will the term “No-Law Zone” and the thesis about the need for a third legal paradigm from Blum and Heymann be discussed (Blum & Heymann, 2010, s. xiii). The discussion will be divided into the following themes; Targeted killings, Weapons use and Combatants. All three elements are often discussed in the context of international law and public international law and its legal principles in regard to war on terror.
The following questions will be answered:
How can a third legal paradigm support the modern warfare?
How are targeted killings compatible with international humanitarian law?
Is the war on terror a global conflict? Will it ever end?
The next part will analyze and discuss “No-Law Zone” based on the three themes and the above questions. The paper will present the complexity of how different paradigms and definitions can change the interpretations of the legal principles.
Analysis and discussion
Before the discussion on the war on terror and the challenges it gives on the legal questions to the international community, it is important to look at the definition of terror – or the lack hereof. The international community have been reluctant to make a universal and legal binding definition. The reason of this could be that the term is politically, emotionally and legally charged and different definitions make different counterterrorism strategies. A universal agreement would might limit some states fight on terrorism. This paper will include examples from the US and their administration of the war on terror. Therefor is the US’s definition on terrorism highlighted:
“premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents” (Deparment of State, 2005).
In 1997 the UN General Assembly tried to describe a terrorist activity:
“Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them (Assembly, 1997).
The Secretary General and General Assembly have tried to work towards a unified definition so a comprehensive Convention on terrorism could form, but it has not yet succeeded. The importance of an agreed definition is more necessary now than before, because terrorism have evolved from a domestic problem to an international dimension, where it is crossing borders and the criminal violence is beyond ‘ordinary’ and more inclination to warfare (Frowe, 2011, s. 182). A universal definition will support the coordination of international collaboration, based on the accepted rules of warfare. The rules, more specific international law and domestic law is described from Blum and Heymann as inapplicable and irrelevant in the global war on terror which have created the term No-Law Zone. Because no law is applicable in the war against terror the No-Law Zone is formed and Blum and Heymann main thesis is there is need for a third legal paradigm to correspond to the new warfare.
Targeted killings – Warfare vs. Lawfare
Before the discussion of targeted killings and their compatibility to international humanitarian law and public international law, a short description of international humanitarian law will be made.
International humanitarian law also known as jus in bello, addresses the acts in war – how to conduct war. The origin of war, if the war is morally permissible and just, is the rules of jus ad bellum. Jus in bello describes what qualifies a combatant, what a legitimate target is, legitimate tactics and the protection of prisoners of war (POW). It also constitutes the principle of distinction between combatants and non-combatants and furthermore, it describes the principle of necessity and proportionality. The necessity principle states that combatants only can use armed force when necessary and as last resort. The proportionality principle requires combatants to only use the amount of force that is proportionate with the military advantage is to be gained. The three principles are also included in costumery law and aims to minimize suffering in armed conflicts (Rochester, 2016, s. 59). The four aspects and the principles are constituted in the Geneva conventions, which purposes is to uphold respect for human personality and dignity (ICRC, 1949, s. 19).
Targeted killings, mainly drone attacks, creates various challenges in international humanitarian law and public international law. Firstly, is the challenge of the paradigm targeted killings is being carried out in – Is it an act in peacetime where lawfare applies or in wartime where warfare applies? Hereunder also the challenges of states sovereignty when using targeted killings as counterterrorism strategy. Secondly is the discussion on collateral damage of civilians – are the three principles adhered to?
The distinction of targeted killings in either peacetime or wartime is important. This distinction is key to the interpretation of international humanitarian law and also public international law in regarding to targeted killings. For example, the US declaration of war against terror after 9/11 made a clear distinction and favored the paradigm of war. This warfare-paradigm made it permissible for the US to kill people without trial, which is only allowed in limited circumstances – such as self-defense. The right to self-defense is defined in The UN Charter Article 51 as the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN (Nations, 1945, s. Art. 51). If a person poses immediate imminent threat to security the claim to self-defense can be made under the UN charter. In wartime a government may use deadly force against a combatant and an enemy can be killed not because they are guilty, but because they can be potentially dangerous to a state. A challenge to the right to self-defense is how a state define immediate and imminent threat – when is a terrorist showing the immediate and imminent threat? How much intelligence and information on a person or group is enough before a state can claim they act in self-defense? On the other side if a state takes the peacetime-paradigm or lawfare-model it should use domestic criminal law to punish the terrorist. In this paradigm terrorism would be a crime and not an act of war. Instead of killing the illegal fighters on the battlefield they should be captured and tried in court as illegal fighters. Targeted killings would not be legal in the view of peacetime-paradigm since a government are not allowed to bomb its population and not to mention other states population. Here it would be necessary to use all means to catch the terrorist and put forth a fair trial. The government should use law enforcement to capture the person that holds a threat to national security. This paradigm holds more restrictions than the warfare-paradigm in regards of targeted killings and the current law. The term No-Law Zone is appropriate for this vacuum between the two paradigms, which claims that a new third legal paradigm with reviewed legal standpoints is necessary.
The US has nearly in twenty years fought terrorism around the world with targeted killings and armed forces. The global war on terrorism have created broad interpretations of Article 51 in the UN Charter and it have made the US do targeted killings in other states with and without the states acceptence. The US have used the argument ‘right to self-defense’ when crossing the borders to Pakistan and doing numerous targeted killings without the acceptence of the government. This aggression could easily be stated as a violation of Pakistan’s sovereignty. The UN is based on the principle of the sovereign equality, which means that the state has political and territory authority (Nations, 1945, s. Art.2). Another state is strictly prohibited from doing operations in the territory of another state without acceptence from the government. This leads the US targeted killings tactic to breach international law. The US disagree against this accusation and distress its inherent right to self-defense, the pre-emptive use of force on the war against terrorism and that the war is global and therefor there are no geographical boundaries.
As described at the beginning of this part, another challenge about the use of targeted killings is the collateral damage it causes. Is it common that a terrorist surround himself with innocent bystanders, and becomes collateral damage in a strike. The drone does not distinguish between non-combatants and terrorists. The distinction principle in jus in bello says that attacks must be limited to military objectives and prohibits loss of civilian life. The Bush and Obama administration have both claimed that their authorized targeted killings are in line with the three principles in international humanitarian law. The argument for using targeted killings is that the civilian casualties is at a minimum since the attacks is carefully planned to only hit the terrorist. To view this challenge through the warfare-paradigm the collateral damage to civilians is legitimate and a consequence of war – however, only if the proportionate principle in jus in bello is respected. In the lawfare-paradigm the law enforcement must hold fire if any danger to civilians can occur. The paradigms create two different versions to interpret the use of targeted killings in regard to collateral damage and again the war on terror becomes a No-Law Zone.
Weapons use – The inequity in war of terror
This part will focus on weapons use in regard to terrorism and non-international armed conflict and include jus in bello and other relevant international law. It will start with a short presentation of the history of weapon prohibition.
The first Declaration to outlaw specific weapons, Dumdum bullets, during war was in 1868 (St. Petersburg Declaration). Then came prohibition of anti-personnel mines, booby-traps, laser weapons, chemical and biological weapons (Fleck, 2008, s. 137-160). Customary law is a fundamental aspect when dealing with weapons use during war. For example, is the use of nuclear weapons not explicit prohibited but there is numerous multilateral and bilateral treaties, to prohibit the proliferation of nuclear weapons. Customary law is a factor in delimiting states of using nuclear weapons in war, because of the mass destruction it contains. The deterrence of mutual destruction keeps states from using the weapon against each other, which is important for the uphold of international peace and security (Fleck, 2008, s. 169).
In the IncendiariesProtocol in Article 2 the protection of civilians and civilian object is stated. It says that deliberate attacks on civilians and civilians’ objects, particularly terrorizing attacks, are prohibited (Fleck, 2008, s. 158). This aspect is something that terrorist does not regard – they deliberately injure civilians to create fear. The inequity in the war on terror is high between the parties involved, when it comes to technology capabilities, weapons and the compliance with the laws of war. Terrorist do not follow jus in bello and often acts in direct contradictory direction. This also regarding weapon use – they use bombs, landmines, IED’s and are often not carrying their arms openly. Even though the playing field is uneven states should uphold international humanitarian law regarding weapon use. If the US had refrained from calling terror ‘war’ and continued to address the problem as a crime it would have to operate within domestic law and the No-Law Zone would not have existed. The targeted killings would not have escalated as much, and the counterterrorism strategy needed to involve more domestic tactics. The domestic law could have evolved into the third legal paradigm and have tried to accommodate additions to the domestic law and national security.
Combatants – A new terminology
As previously mentioned, the modern warfare has evolved from interstate war to intrastate hereunder civil war and non-international armed conflicts. This change in warfare have also changed the way the international community interpret the term combatants.
International humanitarian law constitutes a clear distinction between combatants and non-combatants. To qualify as a combatant the following must be present:
Be part of a hierarchical group, such that there is a chain of command.
Wear a distinctive emblem that is visible from distance.
Bear arms openly.
Conduct their operations in accordance with the laws and customs of war (ICRC, 1949, s. 39).
The reason for distinguishing combatants from non-combatants is that only combatants are legitimate targets in war – killing non-combatants is a war crime. A non-combatant is a civilian, an innocent person that have nothing to do with the war.
The new warfare such as terrorism causes a new terminology to emerge. It is not only combatant vs. non-combatant but also terms like unlawful combatant, illegal fighters and ‘civilians taking direct part in hostilities’ (Blum & Heymann, 2010, s. 80). One of the reasons why these distinctions of a combatant have emerged is to bend the legal rules of protection. The US have especially used this lack of protection of its captives and named the captured Al Qaeda fighters as “unlawful combatants”. This gave them no entitlement to POW protection, and the US jailed them for an indefinite period at Guantanamo Bay where the interrogations techniques have been associated with torture. These coercions methods are a violation of the Common Article 3 of the Geneva Conventions. This Article explains the protection rights of people in conflicts in non-international character (ICRC, 1949, s. 35). The US have claimed war on terror but is not defining the terrorist as lawful combatants and are using a definition that are diminishing the terrorist humanitarian rights. Another reason for the new terminology could be the lack of a universal definition of terrorism as mentioned in the beginning of the paper. The US definition on terrorism have not formulated any specifics about who the terrorist can be, besides subnational groups or clandestine agents. The definition-lack leaves a gap for the states to make their own definition of terrorism and this includes their own interpretation of which combatant a terrorist is.
Is a terrorist a lawful combatant? Looking at the qualifications of a combatant then a terrorist can meet some of the criteria. Terror organization such as Al Qaeda and Islamic State are very well-organized and hierarchically constructed with a clear chain of command. These terror groups also have a distinction and sometimes were a “uniform”. But on the other hand, terrorist notoriously try to blend in amongst non-combatant and also hides their arms – such as suicide bombs etc. But the most obvious disqualification of the criteria’s is that they fail to meet jus in bello by targeting civilians and use human as shields. Article 44.2 in Additional Protocols of the Geneva Conventions states that:
“While all combatants are obliged to comply with the rules of international law applicable in armed conflicts, violations of these rules shall not deprive a combatant of his right to be a combatant, or if he falls into the power of an adverse Party, of his right to be a prisoner of war” (ICRC, 2010 , s. 37).
This could mean that terrorist could keep their combatant status even when they break jus in bello. Again, provides the international humanitarian law a No-Law Zone because the legislation is contradicting itself and it is up the states to interpret the law in favour of their political gain.
Conclusion – A third legal paradigm
This paper has analysed and discussed new warfare and some of the challenges it contains in regard to international humanitarian law and public international law. A third legal paradigm should be developed to support the modern warfare in a way the current law cannot. The current law has to be modified to accommodate additions between domestic law and international law. The third legal paradigm should take into account that peacetime and wartime create different legal challenges. The legal paradigm should include the special context of terrorism and fit the complexity of the new type of combatants and the global battlefield. The paradigm also needs to create respect for national sovereignty, human dignity and regulate the use of weapons. It should also state something about the duration of the war on terror – The ongoing war from the US and its allies, has been going on for almost twenty years with no geographical and temporal boundaries. Hopefully could the third legal paradigm subtract the No-Law Zone term and create a more unified legal front between the states with more political equality and transparency.
Reference
Assembly, U. G. (16. Januar 1997). UNdocs/A/RES/51/210. Hentet fra UNdocs: https://undocs.org/en/A/RES/51/210
Blum, G., & Heymann, P. b. (2010). Laws, Outlaws and Terrorists. London: The MIT Press - Cambridge.
Deparment of State. (2005). Annual country reports on terrorism. Hentet fra Legal Information Institute: https://www.law.cornell.edu/uscode/text/22/2656f
Fleck, D. (2008). The Handbook of International Humanitarian Law. Oxford: Oxford University.
Frowe, H. (2011). The ethics of war and peace - An introduction. New York: Routledge.
Heymann, G. B. (2010). Laws, Outlaws and Terrorists. London: The MIT Press - Cambridge.
ICRC. (1949). The Geneva Conventions of 12 august 1949. Geneva: International Commitee of Red Cross.
ICRC. (2010 ). PROTOCOLS ADDITIONAL to the Geneva Conventions. Geneva: International Commitee of Red Cross.
Murphy, G. (28. March 2016). Why and How to End the War on Terror. Hentet fra PeaceAction: https://www.peaceaction.org/2016/03/28/why-and-how-to-end-the-war-on-terror/
Nations, U. (26. june 1945). UN CHARTER. Hentet fra UNITED NATIONS: https://www.un.org/en/sections/un-charter/chapter-vii/index.html
Rochester, J. M. (2016). The New Warfare. New York: Routledge.