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# Posted 1:55 PM by Taylor Owen

THE JUSTICE OF JUS IN BELLO: Human Rights Watch has a useful and balanced Q&A on the application of international humanitarian law to the current middle east violence. They answer questions such as whether Article 3 applies to both parties, and discuss the legality of many of the acts we have seen used by both sides – Hezbollah’s bombing of northern Israel, Islaeli bombing the Beirut airport etc. Perhaps most interesting is the question of civilian shields and subsequent casualties:

Can Israel attack neighbourhoods that house Hezbollah leaders or offices? And what are Hezbollah’s obligations regarding the use of civilian areas for military activities?

Where the targeting of a combatant takes place in an urban area, all parties must be aware of their obligations to protect the civilian population, as the bombing of urban areas significantly increases the risks to the civilian population. International humanitarian law obliges all belligerents to avoid harm to civilians or civilian objects.

The defending party – in the case of Beirut, Hezbollah – must take all necessary precautions to protect civilians against the dangers resulting from armed hostilities, and must never use the presence of civilians to shield themselves from attack. That requires positioning its military assets, troops, and commanders as much as possible outside of populated areas. The use of human shields is a war crime.

In calculating the legality of an attack on premises where a Hezbollah combatant is present, Israel must take the risk to civilians into account. It is not relieved from this obligation on the grounds that it considers Hezbollah responsible for having located legitimate military targets within or near populated areas or that Hezbollah may be using the civilian population as a shield. Even in situations of Hezbollah’s illegal location of military targets, or shielding, Israel must refrain from launching any attack that may be expected to cause excessive civilian loss in comparison to the concrete and direct military advantage anticipated. That is, a violation by Hezbollah in this regard does not justify Israeli forces ignoring the civilian consequences of a planned attack. The intentional launch of an attack in an area without regard to the civilian consequences or in the knowledge that the harm to civilians would be disproportionately high compared to any definite military benefit to be achieved would be a serious violation of international humanitarian law and a war crime.

Several months ago I saw Yoram Dinstein speak at St. Anthony’s. As intelligent and seemingly reasonable as he was, I got the same feeling from him as I do from reading such applications of international law to asymmetric conflicts. I know that many feel that international law unduly constrains western soldiers against the conflict tactics of non-state actors. Dinstein’s argument, for example was that Israel does not legally have to give captured combatants POW status. Indeed, perhaps this and other shifts are proportionate and just, but that is another discussion.

Can this same argument be turned around though? These laws were designed for warring states with large traditional armies. Contemporary asymmetric warfare and terrorism grew out of a response to such state forces. Their tactics and strategies are designed to circumvent the traditional technocratic large scale warfare that only states can wage. Setting aside the moral arguments for each side, is the application of international law, developed by states and for states, to these groups just?

For example, state armies argue that is it illegal to hide and fight amongst civilians. Further, they say that the resulting civilian casualties are an acceptable consequence of having to fight such illegal, and amoral, tactics. This, however, is exactly and predictably how weaker sides fight asymmetric urban war. We know this now, as we knew it before the Iraq war and before the strikes against Lebanon. I am not convinced that we can keep claiming that these civilian casualties, which are grossly disproportionate against the weaker side, are legally and morally justifiable under an international legal system that so greatly privileges our style of killing.

Does the application of international humanitarian law to asymmetric warfare give relative carte blanche to traditional armies? Does it matter?

(20) opinions -- Add your opinion

Comments:

"Does the application of international humanitarian law to asymmetric warfare give relative carte blanche to traditional armies? Does it matter?" No, it doesn't give them a carte blanche at all, but I don't think that's what you really meant to say. Applying it consistently to both "traditional" large-scale state-based armies and to guerrilla forces would definitely give the first side a systematic relative advantage. This is not surprising. The principles of "just war" doctrine have always been intended to formalize and regulate warfare as closely as possible, on the assumption that it can't be done away with. As it has emerged, it is INTENDED to favor formal armies and their characteristic war-fighting techniques, and in other ways it has this effect in practice. On the othe hand, if jus in bello constraints are applied exclusively to formal armies and NOT to irregular forces, this has the opposite effect.
"Does it matter." Well, yes, in a lot of complex ways ... which I'm not foolish enough to try to address in a "comments" box.

# posted by

Jeff Weintraub : 2:53 PM

From what you've just said, it seems you greatly privilege the guerrilla who gets to violate the laws of war with impunity while a traditional Western-style army has to give up its lawful advantages.

In other words, your interpretation is perverse because it rewards violating the laws of war by the weaker side.

You also seem to forget that the 'privileging' of the Western style of war has a moral component: it makes states and their leaders and their chain of command responsible for the conduct of their forces and it-- above all-- compels the defeated side to admit defeat and cease hostilities when the continuation of fighting would lead to general anarchy and the widespread killing of non-combatants.

In the current case, you also have to show that the Israelis know in each particular instance that a 'disproportionate' use of force is about to be made, which you cannot show.

In fact, given their technology, the Israelis are trying to be as discriminatory as possible, but when you're trying to kill fighters mixed in with a civilian population, even precision guided weapons will kill civilians and will ocassionally hit misidentified targets.

Think of what the alternative is: a full-scale infantry assault preceded and accompanied by artillery and air bombardment. How would that compare in terms of civilian deaths and infrastructure damage?

Or do you really wish to argue that jus in bello requires Western armies simply to cede the battlefield to thugs like Hezbollah?

# posted by

Anonymous : 3:04 PM

It is my understanding that under the Laws of War appropriate force is related to that level of force required to achieve the objective.

This is quite different from the humanitarian definition used now.

# posted by

Anonymous : 3:17 PM

Anonymous, I don't really disagree with you, although this is not really the conversation I was starting. I explicitly said that this line of discussion requires setting aside moral judgements of each side.

"Or do you really wish to argue that jus in bello requires Western armies simply to cede the battlefield to thugs like Hezbollah?"

I most certainly don't. This was not an absolute argument in any sense and could have a wide range of hypothetical ends. I simply think that we have to be reflective in our use of legal justifications for our own killing.

Jeff, I think I did mean to say that, although the addition of 'relative' may not be an appropriate qualifier to 'carte blanche'. Also, I agree that the problems arise out of the consistency of application.

# posted by

Taylor Owen : 3:19 PM

If there were another large-scale non-nuclear holocaust, war does anyone think the provisions against fighting in built-up areas would last beyond the first major offensive? In other words, I don't think it matters. If we ever do get into such a conflict I think such legal niceties will be dropped remarkably quickly. Very few nations under threat are going to hold fast to a law, or interpretation of a law that gives their opponents a significantly unfair advantage and that would threaten their national survival.

I guess Israel would fit that role today.

# posted by

Anonymous : 3:38 PM

Hi,

As everyone has already pointed out, international law, including humanitarian law, envisages state v state conflicts. So trying to apply such legal norms to non-traditional forces, such as Hezbollah, is a bit like trying to fit a round peg into a square hole. Theoretically, both traditional and non-traditional forces are bound, but states are more easily held accountable. Consequently, it appears that according to ‘today’s wisdom’ states are held to a higher standard, regardless of whether one perceives it as fair. As a mere illustration, the Hamdan case signifies that the U.S. must adhere to common Art. 3 of the Geneva Conventions irrespective of whether terrorist groups (e.g., al Qaeda) obey it. So …

Does the application of international humanitarian law to asymmetric warfare give relative carte blanche to traditional armies? No. In fact, it provides groups, like Hezbollah, with a practical (not a legal) advantage, because they will not follow international law whereas states should.

And Does it matter?.

Legally, Yes. Although there is no bright-line, I’m sure there’s one LL.M. student or law professor out there who’s working on it. The issues surrounding international law in its application to non-traditional forces will be increasingly important with respect to the War on Terror even though we still don’t have a working definition for “terrorist”.

Practically, Maybe. These issues matter for states themselves both domestically and among one another. If President Bush must adhere to common Article 3, then that matters domestically. And if a country appears to run afoul of international law (whether or not its true), then that can affect legitimacy and international support (e.g., Iraq).

Finally, there is a problem with assessing action purely through the lens of international law. Simply because something is legal does not make it just. Conversely, simply because something is illegal does not mean that it is ‘unjust’. For example, Israel’s Osirak strike was illegal, but was it just/legit? Arguably, yes.

# posted by

Canadian Tar Heel : 4:34 PM

http://www.opinionjournal.com/extra/?id=110008681

# posted by

Anonymous : 8:28 PM

Wow. An amazing post because it completely misses the difference between us and those who are practicing asymetrical warfare. This is not some gentlemen's duel. We are a force for good and justice and are battling very evil people who mean to destroy our civilization. Not being able to grasp that central fact does not make you nuanced, it makes you obtuse.

# posted by

Anonymous : 8:53 AM

I'm rather tired of this "geneva is quaint" and "how can it apply if not both parites are conventional forces" non-sense, 'cause one of the major change at the last revision in 1949 was the inclusion in the third convention on the treatment of GUERRILLA AND PARTISANS, IE "ASSYMETRICAL WARFARE".
I think that if there is an advantage for unconventional forces, it's because they were fighting the nazis and not the allies...

# posted by

Anonymous : 9:20 AM

Wow. I’ve never seen such an important issue so glibly dismissed by a law of the jungle attitude. Although the War on Terror is no gentleman’s duel, it does not mean that states should and can do whatever. What’s obtuse is to harm the very thing you’re trying to protect – liberal democracy. We can't afford to loose sense of ourselves in the battles with our enemies.

# posted by

Canadian Tar Heel : 9:31 AM

This war differs from other wars, in this particular. We are not fighting armies but a hostile people, and must make old and young, rich and poor, feel the hard hand of war.

-William Tecumseh Sherman

# posted by

Jeff with one 'f' : 1:20 PM

Victor, the Red Cross has the Geneva Conventions at their website. Neither of the words 'guerilla' nor 'partisan' occur in the 3rd or 4th Convention. The word 'uniform' only appears in the context of clothing which should be provided to POWs. Could you point out the article you had in mind?

Cdntarheel - Could you point out what contemplated military action is worse than anything we've done in previous wars, explain why we have become so delicate we risk 'losing ourselves' when we hadn't in firebombing Dresden, or explain why we haven't already lost whatever ephemeral essence of liberal democracy you're so keen to protect?

# posted by

Anonymous : 1:44 PM

Hi Mr. bgates,

I’m not arguing that we’ve already ‘lost ourselves’ in some previous war/battle, so much as I am issuing a warning, which I do not think should be taken lightly. Moreover, I don’t find core values of liberal democracy such as the Rule of Law ephemeral. Although international law is hardly similar to our domestic laws, much less black and white, it is a body of norms of which the U.S. ironically happens to be the greatest creator after WWII. What’s important, in my opinion, is not some line, which we do not cross, so much as it is the soft law aspect embedded in such dialogue. It goes more to the notion that we can identify what to do and not to do. This has an important moral quality to it, but also qualities of transparency and stability among others.

In the end, is it not dubious to forsake what makes us different from our enemies? For example, although our enemies could care less about the Geneva Conventions and torturing our men and women, we still do not torture suspects. Even the Israeli High Court agrees with this. Similarly, we should not target innocent civilians as Hezbollah does. This is important if for only two reasons (although there may be more). First, the moral reason – the moment we begin doing as they do, what is there to differentiate us from them? Second, the practical reason – once it becomes this line is blurred, how can we address the political (not military) aspects of the War on Terror? Sheer power and coercion?

What’s my point? We may be able to push the line as needed, but once we loose sight of it, then we’re really in trouble.

# posted by

Canadian Tar Heel : 2:27 PM

First, the moral reason – the moment we begin doing as they do, what is there to differentiate us from them?

Womens' rights, free expression, religious liberty, representative government, due process, to name the frst five that come to mind. Your question implies that beside some finite number of warmaking practices, we are morally indistinguishable from our enemies. We are not, and it obtuse to think we are.

Of course, the original poster wanted to ignore moral differences in order to discuss whether terrorist organizations are different from us chiefly in in terms of 'style', so maybe my whole argument is misplaced.

# posted by

Anonymous : 3:09 PM

Mr. bgates,

I’m afraid that I don’t understand your point. You appropriately understood my rhetorical question to refer to warmaking practices, which is the context of the paragraph and indeed the entire debate. So, I’m a bit bewildered why there would be any tendency to take my remarks out of that context – i.e., womens' rights, free expression, religious liberty, representative government, due process, etc. In other words, if the scope of the discussion is about war, and my remarks are about moral distinctions and liberal democracy in that respect, then why should I address issues that are completely beside the point?

# posted by

Canadian Tar Heel : 3:52 PM

CORRECTION: Please excuse my haste. I should have left out due process in my last comment.

# posted by

Canadian Tar Heel : 3:55 PM

cdntarheel, you implied that the only thing that distinguishes us from our enemies is the way we fight wars. That if we fought wars as they do, we would be indistinguishable from them. That is absurd.

I am not suggesting we should embrace the tactics of 2006 Hezbollah, or even 1945 USAAF. But we could do either and be distinguishable from and far superior to our enemies.

# posted by

Anonymous : 5:35 PM

bgates,

I fail to see how I implied that the only thing that distinguishes us from our enemies is the way we fight wars. I wonder if you simply read more into it, because you seem to believe that a particular sentence embedded in my paragraph has a different context than all those around it. With that said, this little back-n-forth on this issue seems to only distract from the original post. Wouldn’t you agree?

From your remarks, I wonder if you’re getting at something different. Please correct me if I’m wrong. Are you saying that all our other moral qualities off the battlefield (such as women’s rights, free speech, etc.) are enough to offset our behaviour, no matter what it might be, with respect to war?

# posted by

Canadian Tar Heel : 6:21 PM

"Anonymous" has it exactly right. The primary responsibility for civilian casualties falls on the side which chooses to place itself among civilians (and which initiated the conflict). If the other side is supposed to be constrained, then the guerrilla is rewarded for immoral actions. Hezbollah understands this perfectly; that is why they have locate their facilities among and often inside or under civilian homes.

Israel is being condemned for the resulting civilian casualties despite all their efforts to avoid them. Is there the slightest chance of Sheik Nasrullah and his thugs being brought to justice for their deliberate, criminal actions in causing these casualties?

# posted by

Rich Rostrom : 7:41 PM

?! "I am not convinced that we can keep claiming that these civilian casualties, which are grossly disproportionate against the weaker side, are legally and morally justifiable under an international legal system that so greatly privileges our style of killing."

Israelis have radars that detect rockets and warns it's population of incoming rockets and has such have less casualities should they be turned off?

Are you also saying that for an Israeli or any other country is moral to wait to have ten thousands of caualities of their own to terminate a problem?

So btw how a tiny country of 5 millions can defend from a country of 50 millions with that logic?

I think your opinion is abject because transforms war in nothing more than a snapshot contability game and you are an hypocrite because you blame "our rules" judgement but you have no problems to use an even more of our recent rules "proportionality" and recent western morals to say we are imoral.

lucklucky

# posted by

Anonymous : 7:22 PM