War upends the moral calculus of law. The law is predicated on the maintenance of peace and stability, while warfare arises where legislation fails and transforms otherwise criminal actions, such as murder, into desirable outcomes. As the Roman statesman Cicero commented, “laws are silent amidst the clash of arms.” While lawyers must uphold and apply the law in civilian arenas, there are few if any lawyers on an active battlefield. The law of war is unique in that it is primarily upheld and applied by soldiers who are legally trained only as part of a broader curriculum more concerned with victory and effective lethality. The law of war is thus unusual in how little it relies on lawyers, having not been born in the courtroom but on the battlefield.
II. History and Principles Behind International Rules of War
Humanitarian principles have been deeply implied for centuries, but were never codified into law until the Geneva Convention of 1864. International humanitarian law (IHL) is a young institution and war legislation, the “laws of war,” is one of its most important aspects. International codes are relatively new, but principles designed to restrain the conduct of soldiers have existed for centuries. For example, the Arbre des Batailles (The Tree of Battles), a manuscript written by Honoré Bonet, deals with questions such as “whether a place can be taken by escalade in time of truce” and “whether a Christian King can give safe-conduct to a Saracen King.”2 Homer’s Iliad also reflected a deep concern with decent versus indecent behavior on the battlefield.3 Indigenous societies in pre-colonial Australia were found to have strict laws of proportionality and reciprocity as part of their laws, which predate the Geneva convention by at least 60,000 years.4 Despite its youth, IHL reflects these and other ancient sentiments which seek to structure chaos and restrain violence. Although international thinking is new, the desire for honor among warriors is old as war itself.
The guiding principle behind the law of war is protection: that civilians and those unable to fight due to their wounds or being taken prisoner should be spared. But the details of who or what ought and ought not be attacked fall under both national and international jurisdiction, not always as matters of law. Rules of engagement (ROA), issued by a national military authority, are not the same as laws of war. For example, the directive not to fire unless fired upon has never emerged from international humanitarian law. However, an indirect definition of permitted targets appears in the 1954 Hague Convention, which protects places of cultural heritage and forbids their placement near military targets.5 Determinations of what can be attacked derive from a combination of both national and international sources, with ultimate deference to IHL. The protection of civilians and aid workers is, therefore, a situation in which international law supersedes the nationally-defined ROA. No nation can order the unprovoked slaughter of civilians without being guilty of a war crime. Although a state can issue regulations above and beyond international agreements, IHL holds sacred the notion that no state may invoke its own internal law to disregard international treaties.6 Furthermore, the legal maxim lex specialis derogat legi generali holds that, when two different laws govern the same situation, the law governing the subject more specifically (lex specialis) overrides the law governing only the general matter (lex generalis).7
By its nature, war is chaotic and unrestrained, with a tendency towards entropy and expansion. In warfare, rules are overturned through secret disregard rather than the clear redrafting of legal precepts. International humanitarian law assumes that civilians have a right to life and safety. But the modern battlefield, dominated by the guerilla army, finds no distinction between civilian and insurgent infrastructure. The symmetrical force-on-force conflicts for which modern militaries are designed are no longer likely to occur. Asymmetry has become an unspoken law of war in the age of superpowers, shaking collective faith in honorable warfare. Yet the late 1990s provided a conflict in which the legally deferential war seemed possible. The Kosovo War of 1998 to 1999 appeared to define the pinnacle of ethically palatable warfare, at least from the perspective of the United States and its North American Treaty Organization (NATO) allies. In a rare instance of the principle’s application, Belgium argued for the use of force in Kosovo through the doctrine of humanitarian intervention at the International Court of Justice. Later, in 2005, the United Nations General Assembly unanimously adopted the World Summit Outcome Document, endorsing the responsibility to protect peoples from genocide, ethnic cleansing, and crimes against humanity.8 In a dramatic divergence from history, war became a police action conducted by international forces. Kosovo was a legal war to stop an illegal one. The courtroom was the battlefield, and arguments were made with force and fire.
NATO’s mission to stop Serbian attacks on Albanians defined the Kosovo conflict as a conflict waged in defense of human life. Supported by staggering American air power and smart munitions, the war suggested a futuristic age of civilized combat. Finely tuned machinery gave birth to the next-generation of rationalized weapons, able to strike targets with pinpoint precision and spare civilians. Although ninety percent of Kosovo’s population, 1.5 million people, were displaced by the end of May 1999, American casualties never rose above the single digits, with American casualties mostly occurring outside active combat.9 The surgical strike10 or “targeted kill” appeared as the pinnacle of legally defensible warfare. On television, the conflict seemed commendable in its deference to international law.
Precision can be a dangerous illusion. If the ultimate goal of the law is to eliminate war, remote warfare is especially pernicious when it is agreeable. For combatants, the act of killing is not particularly disturbing with the aid of technology and the addition of immense distance. The appearance of precision can become the pretense of constant ethicality. The digitization of the surgical strike is highly attractive to Western leaders, who view the attacks in real-time on a screen from the safety of their office. If the horrors of war are the best reasons to avoid it, sanitizing warfare may actually lead to more of it. Remote-killing removes the reservations of political leaders and encourages a culture of physical and emotional distance. Commanders and their soldiers, sometimes thousands of miles from the battlefield, are willing to kill, but not die, to achieve objectives. This was not an issue in Kosovo, where effects-based tactics, such as cutting electricity and vital communication, yielded impressive results. But Kabul, Afghanistan is not Belgrade, Yugoslavia, and the uniformed soldiers of Slobodan Milošević were not Mujahideen. Kosovo was a relatively modern city, and enemy combatants were fighting a more recognizable war than what would soon emerge in Iraq and Afghanistan. Unlike Kosovo, countries on the receiving end of the smart war against terror are often filled with insurgents more willing to die and less reliant on modern technology. Consequently, they are less vulnerable to the pressure-point effects-based strikes that were so effective in Kosovo. Shutting down a power grid is less effective when no one is using electricity, and cutting lines of radio communication becomes less devastating when no one is on the radio. Crucially, laws designed to ensure the ethical treatment of enemies are less successful when the enemy are not seen as soldiers.
IV. Lawfare: Reactions to Power Disparity
Unable to fight back conventionally, insurgents are compelled to disregard the law and target civilians, the “soft underbelly” of a democracy. In his classic text On War, the great Prussian war philosopher Carl von Clausewitz wrote that it is only logical to aim for the enemy’s schwerpunkt, their “center of gravity,” a point of greatest weakness.11 Civilians in a democracy are exactly that. Conflicts stemming from the war on terror have often pitted a developed nation, willing to spend a lot of money but little blood, against less developed nations with primitive armaments and a surplus of eager blood to shed. The readiness of the insurgent to commit themselves more fully to conflict is discussed in a 1975 essay, titled “Why Big Nations Lose Small Wars,” by Andrew Mack who coined the term “asymmetric warfare.”12 Mack wrote, “[f]or the insurgents, the war is ‘total,’ while for the external power, it is necessarily ‘limited.’”13 Such power disparity highlights the need for better legislation more adapted to asymmetrical conflicts.
In a 2001 essay, Charles J. Dunlap Jr. defined “lawfare” as “the use of law as a weapon of war… the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting” a superior opponent.14 Lawfare against democratic societies undermines legally-bound militaries,15 reversing intention and outcome. It occurs when, for example, we create more violent terrorists by fighting them, or when we erode privacy laws and the moral integrity of our own nation while trying to protect it. It was Mao Zedong who once commented that “countries with legislative bodies simply cannot take a war of attrition, either financially or, over the long run, psychologically.”16 The term “lawfare” has become elastic and nebulous. It is used in various contexts and has no single concrete definition. Within IHL, the term often gestures towards the unique and inherent contradiction between a state of war and the laws which govern peace.
V. Reciprocity and Asymmetry
The principle of reciprocity, fundamental to the law of war, rests on the assumption that ethical conduct by one side will help ensure the same from the other. Yet what incentive do non-governmental organizations like Al Qaeda and the Islamic State of Iraq and Syria have to treat American civilians with dignity, when they themselves have no civilians? As a professor of international law, Robbie Sabel, observed, “[m]odern international humanitarian law has no satisfactory solution to the dilemma posed by a regular army in combat with an irregular force that deliberately targets civilians.”17 It should also be noted that human rights law ignores the principle of reciprocity and assumes a static moral constant: that human dignity is an absolute to be upheld regardless of the other side’s behavior. In tension with this absolutism are laws of armed conflict, which powerfully resist these rigid norms in favor of reciprocity, a principle which cannot function when a party is held to absolute standards. Under the laws of armed conflict, no nation must be prepared to turn the other cheek. Rigid respect for all human life would undermine a nation’s ability to win wars. Consequently, when IHL enters the realm of warfare, it must make special legal considerations, understanding that countries will not accept laws that hinder the likelihood of victory. The 1949 Geneva Convention, for example, permitted violence against civilians, as long as such violence was retaliatory. The British Government’s ratification of Protocol II allowed its military to retain the right to attack civilians if its own were attacked.18 That a nation could legally undertake the killing of civilians demonstrates how the laws of war diverge from the norms of human rights.
In recollection, the 1990s were a relatively peaceful period of American history, with the only armed conflicts in direct service to foreign peoples in need of protection. The wars of the 2000s attempted and failed to continue a legacy in which American armed forces were the world’s beneficent policemen and the act of killing was undertaken in pursuit of humanitarian aims. In halting ethnic cleansing in Kosovo, these aims were fulfilled. For those on the ground, the situation in the western Balkans was horrendous, but Americans slept peacefully. For servicepeople, Kosovo seemed like a war without horror. Even psychological harms like Post-Traumatic Stress Disorder could be reduced or phased away completely with proper funding and technology. The armed forces of Western nations appeared as noble instruments of law who were not so much killing soldiers as executing criminals.
Military actions following the terrorist attacks on September 11, 2001 demonstrated the frailty of the dream. Warfare could never be sterile. The civilized, legally deferential war could not persist into the twenty-first century, and its existence was, perhaps, a mirage. Conflicts in Iraq and Afghanistan reminded the American public that the realities of warfare had changed little in the last thousand years. As the seminal war theorist Carl von Clausewitz observed, war’s character changes but its nature remains the same.19 Body bags and flag-draped coffins replaced the immense distance and physical detachment of Kosovo’s surgical strikes. Modern warfare, it was plain to see, would continue to result in massive civilian casualties and the killing of aid workers. Even modern warfare, conducted by the best-funded military on earth, would result in the destruction of hospitals and mass displacement of noncombatants, spawning enormous refugee migrations. Even modern warfare conducted by a highly developed country involved the torture and sadistic abuse of prisoners,20 effectively creating dozens of new terrorists for every one interred or killed.21
VI. Proportionality and Collateral Damage
Two years after ISIS seized the city of Mosul, Iraq, an attempt to retake the city saw American ground forces employing artillery,22 accruing substantial collateral damage in a city filled with civilians. Similar to drones, modern artillery is highly accurate in theory, but both artillery and drones have proven less precise in practice than in theory. Estimates of civilian casualties from drone strikes range from thirty to ninety-eight percent.23 Artillery may not fare much better. According to former U.S. Marine Corps intelligence officer Scott Ritter, “even if the artillery fire is accurate, there’s a lot of death and destruction being dealt out over a significant span of territory.”24 Ritter describes the second battle for Raqqa in 2017 as relying on artillery which “operated in a virtual free-fire zone.”25 A detailed report by Amnesty International declared at least 1,600 civilians killed in Raqqa, sharply contrasting the Department of Defense figure of 159.26 The United States military, according to Ritter, “violated both the Principle of Distinction, in that it failed to adequately distinguish between military and civilian targets, and the Principle of Proportionality, in that it allowed disproportional military force to be applied in situations without verifying that there was, indeed, a force and threat deserving of the level of force being used.”27
VII. Weapons, Legal Distinctions, and Methods to Skirt the Law
Weapons, the hardware of war, might seem a subject far afield from the laws, or software, of warfare. However, IHL impacts the type of weapons produced by developed nations, and laws are drafted and redrafted in specific response to emerging weapons. Chemical and biological agents, mines, and cluster munitions are notoriously indiscriminate in their destruction. The use of such weapons has been restricted or forbidden by many countries, but not all. A nation can simply decline to recognize a rule of war. The United States, for example, is one of thirty-two countries, including China and Russia, that have refused to sign the Mine Ban Treaty.28 Because new technology can be developed and modified faster than laws restraining their use, the challenge of legislating war is frequently the impossible challenge of advancing legislation as fast as technology advances itself. World War I, for example, coincided with a revolutionary level of industry, allowing for the production of weapons on a scale never before seen. Laws ultimately failed to restrain the unprecedented industrial carnage of the twentieth century because the speed of technology surpasses the speed of law. By the time laws adapted, the development of nuclear weapons once again changed the calculus. Today, robotic, hypersonic, and space-based weapons continue to change the battlefield faster than the legal expert can keep up.29
The rapid development of new weapons skirts the law of war by virtue of its own speed. Another way around the law is to simply deny the enemy the status of soldiers. Torture, for example, is legally excused when captured terrorists are not considered prisoners of war. The legal distinction of terrorists as unlawful belligerents, rather than unlawful combatants, has dire implications for the future of IHL.30 In United States v. Irek Ilgiz Hamidullin (2018), the Fourth Circuit’s opinion stated that, despite the court’s familiarity with the law of war, the application of such law “has been limited to conventional warfare.”31 Hamidullin was the first detained insurgent to be transferred directly from Bagram Prison directly to the United States.32 Hamidullin, according to the court opinion, “explores the outer perimeter of the concept of enemy combatants” and “[c]entral to the analysis is the question of what constitutes an armed force on the battlefield of Afghanistan.”33 W. Hays Parks, a retired Marine Colonel, testified as an expert on the law of war, highlighting Article 2 of the Geneva Convention to disqualify Hamidullin from prisoner of war protection.34 The Taliban, according to Parks, failed to satisfy any of Article 2’s criteria.35 Parks pointed out that the Taliban is not a state.36 Secondly, Parks claimed that the United States was invited to Afghanistan by the Karzai government, so the United States was not an occupying power.37 Finally, Parks pointed out the Taliban themselves have never upheld the Geneva Convention.38 Hamidullin was subsequently sentenced to life in prison, although there is no evidence he was ever tortured.39
As William C. Banks observed,“[i]f there was a ‘war on the rule of law’ after 9/11, it was waged primarily by the Executive Branch, not the courts.”40 The term “unlawful combatant” refers to soldiers who act outside the bounds of international humanitarian law, but this distinction also frees the legally-bound party to set aside the same laws their enemy has disregarded. “Lawfare,” then, involves erosion of the democratic legal infrastructure, jeopardizing its position of moral superiority.41 Although public policy is intended to be enacted and funded by the legislative branch, the executive branch often wields the authority to ignore what the legislative can only suggest. The area of humanitarian legislation limiting warfare is one of the most poorly implemented areas of any type of law. The increasing privatization of security, the movement of war from the public and transparency towards the realm of the unreported and unrecorded, further confounds legislation efforts.
VIII. A Hippo Rolls a Pea
The first session of the Ninety-Fourth Congress, “Hearings Before the Select Committee to Study Governmental Operations,” was convened to review the “illegal possession of deadly biological poisons… retained by the CIA for 5 years after their destruction was ordered by the President… and 5 years after the United States entered into a solemn international commitment not to maintain stocks of these poisons.”42 At the session’s conclusion, the chairman referenced H.G. Welles’ description of the novelist Henry James, “a hippopotamus rolling a pea.”43 This analogy is apt for the paradoxical task of legislating war. Law is inherently concerned with consistency and clarity, while war is clouded and chaotic. Law is precise and finely detailed, while war is often imprecise and foggy. The rough hippopotamus of war must roll the delicate pea of law. To assist the hippo are five principles and prohibitions, made effective precisely because they are so basic that even the roughest beast can roll them. These principles and prohibitions are immediately comprehensible by the layman, and are designed such that their adherence will never stand in the way of achieving victory and the requirements of self-defense.
First is “the principle of distinction,” which provides that parties to a conflict must discriminate between combatants and non-combatants, between military and civilian infrastructure.44 Second is the prohibition on attacking persons hors de combat (outside the fight), those who are defenseless, possibly because of wounds or surrender.45 Third is the prohibition on unnecessary suffering: the law against causing more harm than a military objective necessitates.46 Fourth is the principle of proportionality which limits the type and amount of force used in proportion to its objective.47 Fifth is the principle of necessity, which restricts actions to only those measures needed to achieve a legitimate military purpose.48
Military necessity is diametrically opposed to humanitarian principles. The purpose of IHL, then, is to compromise between military and humanitarian conditions in such a way that both can be addressed without destroying the other.49 It is legal, for example, to attack and kill combatants in their sleep, when they put down their weapons, while their back is turned, or when they leave the battlefield to go home. Even civilians who participate in a conflict can be killed legally, even without shedding their status as a civilian. The laws of war are not the rules of sport and are not intended to make the venture fair for both sides. It is the prohibition on unnecessary suffering, which has infused itself into all the other principles of legally-deferential warfare, which forms the core of war law.
To enable the hippo to roll the proverbial pea, the laws of war must be made as accessible and clear as possible. Ultimately, the task of legislating war requires lawmakers who, as professor Gene Youngblood wrote, can recognize “that chaos is order on another level” and “set about to find the rules of structuring by which nature has achieved it.”50 Although Youngblood had no legal training and was describing neither law nor warfare, his words ring true in the context of this analysis. The laws of war must recognize that chaos is order on another level, and must set about to establish rules of structure that follow the same principles in which such chaos naturally operates.
- B.A. Candidate for Journalism, Fordham College Lincoln Center, Class of 2022.
- Honoré Bonet, Arbre Des Batailles, 1425 (1387).
- Homer, The Iliad, 1810 (726 B.C.).
- The History of Australian Aborigines, Dreamtime (Oct. 23, 2018), dreamtime.net.au/indigenous/timeline/.
- Robbie Sabel, The Legality of Reciprocity in the War against Terrorism, 43 Case Western Reserve J. of Int’l Law 473, 473, 481 (2010).
- Ben Tippett, The Laws of War, 21 (2021).
- Heike Krieger, ed. The Kosovo Conflict and International Law: An Analytical Documentation 1974-1999, 90 (2001).
- Surgical Strike Definition, Merriam Webster, https://www.merriam-webster.com/dictionary/surgical%20strike.
- Eliot A. Cohen, Reviewed Work: Selected Military Writings of Mao Tse-Tung, 76 Foreign Affairs 219, 219 (1997).
- Charles J. Dunlap, Jr., Lawfare Amid Warfare, The Washington Times (Aug. 3, 2007), https://www.washingtontimes.com/news/2007/aug/03/lawfare-amid-warfare/.
- Sabel, supra note 5, at 480.
- Cohen, supra note 10, at 219.
- Sabel, supra note 5, at 473.
- U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (2004).
- Carl von Clausewitz, On War (1832).
- The Center for Public Integrity, Abu Ghraib Prison Scandal, The Center for Public Integrity (Dec. 10, 2008), publicintegrity.org/politics/abu-ghraib-prison-scandal-2/.
- Stanley McChrystal, My Share of the Task, 172 (2013) (McChrystal, who served as commander of all North American Treaty Organization forces in Afghanistan from 2009-2010 wrote in his memoirs, “[i]n my experience, we found that nearly every first-time jihadist claimed Abu Ghraib had first jolted him into action.”).
- Kevin Knodell et al., How U.S. Artillery in Iraq Regained Its Status as ‘King of Battle,’ Coffee or Die Magazine, (Aug. 25, 2020), coffeeordie.com/artillery-iraq/.
- Heather Cox Richardson, Drone Strikes and Civilian Casualties, Public Seminar (Sept. 21, 2021), publicseminar.org/essays/drone-strike-civilians-tragic/.
- Scott Ritter, To Understand How the US Military Killed so Many Civilians in Syria, We Must Look at Its Tactics, RT International (Nov. 18, 2021), www.rt.com/op-ed/540548-baghuz-syria-airstrike-us-civilians/.
- Amnesty International, Syria: Unprecedented Investigation Reveals US-Led Coalition Killed More Than 1,600 Civilians in Raqqa ‘Death Trap,’ Amnesty International (Apr. 25, 2019), www.amnesty.org/en/latest/press-release/2019/04/syria-unprecedented-investigation-reveals-us-led-coalition-killed-more-than-1600-civilians-in-raqqa-death-trap/.
- Anti-Personnel Landmines Convention, United Nations, www.un.org/disarmament/anti-personnel-landmines-convention/.
- Jeremy A. Rabkin & John Yoo, Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War (2017).
- Michael H. Hoffman, Terrorists Are Unlawful Belligerents, Not Unlawful Combatants: A Distinction with Implications for the Future of International Humanitarian Law, 34 Case W. Res. J. Int’l L. 227, 229 (2002).
- United States v. Irek Ilgiz Hamidullin, 114 F. Supp. 3d 365, 368 (E.D. Va. 2015).
- Amnesty International, Amnesty International Report 2014/15 – United States of America, Amnesty International (Feb. 25, 2015), www.refworld.org/docid/54f07d7c15.html.
- Hamidullin, 114 F. Supp. at 368.
- William C. Banks, The Role of the Courts in Time of War, 71 Wash. & Lee L. Rev. Online 169, 170 (2014).
- Orde F. Kittrie, Welcome: Queen’s University Law Journal, Welcome | Queen’s University Law Journal, Queen’s Law Journal (2016).
- Hearings Before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 9th Cong. (Oct. 2, 1975), www.intelligence.senate.gov/publications/reports?destination=sites%2Fdefault%2Ffiles%2Fdocuments%2Freport%E2%80%94volume5.pdf.
- Rule 1. The Principle of Distinction Between Civilians and Combatants, IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule1.
- Rule 47. Attacks Against Persons Hors de Combat, IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule47.
- Rule 70. Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering, IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule70.
- Practice Relating to Rule 14: Proportionality in Attack, IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule14/.
- Military Necessity, How Does Law Protect in War?, https://casebook.icrc.org/glossary/military-necessity.
- Gene Youngblood, Expanded Cinema (15th ed. 2020).