The American resort to the warpath since September 11 2001 has made the laws governing warfare a subject of intense scrutiny and debate. Will the ‘war’ against terror and the doctrine of preemption change
those rules – and to whose advantage?

The laws on the conduct of war, a topic usually confined to arcane military journals, have marched into the public spotlight. This prominence is because of US military intervention in response to terrorism and weapons of mass destruction. In the early days of the Iraq war, Human Rights Watch, a non-governmental monitor of adherence to these laws, was swamped with hundreds of press calls; many focused on allied compliance. This was all the more remarkable given Iraq’s well-known record of deploying chemical weapons, torturing prisoners of war, and ruthlessly slaughtering civilians.

What has led to scepticism about American intentions with regard to the well-established precepts of international humanitarian law? There is an increasing divergence between American and European understanding of these rules, and a suspicion that the Americans, indeed, would prefer to be exempt when convenient. To understand the growing rift, it is necessary to look at changing assumptions about war.

American war, American taste

The US has evolved a style of warfare that to some extent reflects American tastes: high-tech, efficient, and with a high sense of virtue. In recent interventions, it marshalled overwhelming force and aimed to keep its timetable for combat as short as possible, to avert domestic resistance, keep casualties low, and deny the enemy time to adapt tactics. Victory was not in question, only whether it would come in days or weeks – hence the domestic American ‘shock and awe’ when Iraq did not instantly collapse and cheering crowds took some time to materialise.

Several other ideas are conditioning American attitudes. One is the perception that the enemy is invariably a rogue, that is, without any intention of following civilized standards of conduct, and it is dangerous to be too scrupulous. Another is the administration’s belief that critics of military practices lack moral force as they are bystanders, unwilling to credit the US as the only power able and willing to intervene against terrorism and weapons of mass destruction.

This is a different backdrop from the context in which the laws of war evolved. They are a remarkable pact crafted by military leaders and humanitarians to limit the methods and means of war and thereby human suffering. If the outcome and duration of war are assumed to be often unpredictable, reciprocity – the expectation that your enemies will treat your forces and your population as you treat theirs – is an important encouragement to respect for the rules. The Geneva Conventions and their protocols lean towards universal application and away from notions of just war – the rules apply to all international armed conflicts, whether declared wars or not, and equally to aggressor and defender.

The current doctrine of ‘effects-based operations’ has refocused American military strategy from battlefield operations to end results, including the political objectives of war. Some favoured means to these ends include precision attacks against the enemy’s sources of political support, psychological warfare, special forces, and combined strategies designed to overwhelm the enemy’s ability to resist.

The core tenet of international humanitarian law – the distinction between combatants and non-combatants – does not fit smoothly into this doctrine. Civilians are among the sources of political support for any government. The US has directed attacks against economic backers of enemy leaders, and insisted that civilian morale is a legitimate target in war, by attacking broadcasting stations that appear to serve no military function other that purveying propaganda to the population.

International humanitarian law strictly prohibits attacks against civilians and civilian infrastructure. The problem is not that such attacks cannot produce military advantage – they well may provoke internal
rebellion – but that once this taboo is breached, there is no limit to the harm that may be inflicted on civilians to sap the will to fight. Why not deploy nuclear weapons to wrap things up swiftly? While no country has used this rationale vis-à-vis Iraq, it is disturbing that scenarios for nuclear deployment found their way into the Pentagon’s 2002 Nuclear Posture Review, and that American and British leaders stated that nuclear weapons might be used against Iraq should there be a chemical or biological attack.

Awareness that the US may have to foot the bill for restoring civilian infrastructure may have averted the destruction of arguably military targets where enormous civilian suffering would result, such as Iraq’s electrical grid. On the other hand, faith in the accuracy of precision weapons may be encouraging strategists to expand the target list increasingly into residential areas, where collateral civilian death is predictable.

The traditional rule of proportionality, under which an attack is unlawful if the expected damage to civilian life and property would be excessive in relation to the direct and concrete military advantage to be gained, is also challenged in the new war paradigm. America, and to some degree Britain, wish to equate the idea of an ‘attack’ not with an attack on a specific target but with an entire campaign, an overall military objective, or even a political objective such as regime change. Some may find this rational in the context of
one-week wars. But most support the traditional view because estimating the acceptable level of civilian death only in relation to indeterminate and ultimate victory would allow horrifically disproportionate casualties along the way.

Above the law

There are some areas where the unilateral spin the US gave the law looked like a drift away from law itself. While it was quick to denounce the use of human shields by Iraq as a war crime, Washington announced that it would not consider volunteers for this dubious mission as civilians whose presence might deter attacks. Likewise, the US lost enormous credibility to speak in defence of prisoner of war rights when it decided to deny even the right to independent judicial determination of that status to the Taliban and Al Qaeda prisoners it transported to Guantanamo Bay.

The US return to its past practice of using tribunals, rather than politicians, to determine the prisoner of war status of captured Iraqis was no doubt a relief to the British, the International Committee of the Red Cross, and many in the Pentagon.

When US Defense Secretary Donald Rumsfeld rightly condemned Iraq’s practice of torturing prisoners of war or broadcasting their interrogation, the public was immediately reminded that Washington had failed to prevent the broadcast of footage of Iraqi prisoners, and had never responded to reports that it countenanced torture of those detained in Afghanistan and Pakistan, either at the Bagram base or at the hands of allies.

President George Bush’s putative ‘war’ against terrorism contributed to an idiosyncratic view of the law. Apparently Washington sees no end to the war on Al Qaeda and similar groups, justifying global military strikes and endless detention of combatants. At the same time, it shows little taste for the law’s demands on an occupying force, as shown by its reluctance to commit the resources necessary to actually ensure security and accountability throughout Afghanistan, and its scant preparation for similar tasks in Iraq.

Some believe that the old rules, framed for old wars, need revision or at least reinterpretation. In January, the Swiss government, as a new UN member seeking to assert its historic interest in international humanitarian law, convened meeting of states and experts on contested areas of this law with a view towards their ‘development’, a term many took to mean ‘weakening’. Protests from European governments, and US reluctance to expose itself to criticism, ultimately produced a low-key conference that skirted the most controversial views. But the question lingers: can international humanitarian law thrive when the world’s greatest power acts as though exempt from standard understandings of these laws?

In hindsight, the war in Iraq looks less novel, with drawn-out engagements, guerilla tactics and difficult conditions of occupation. Many bedrock assumptions of the ‘new’ style of war remain unproven. Would a military intervention so overwhelming as to trigger the immediate collapse of the government actually produce fewer casualties? Does the availability of precision weapons guarantee fewer civilian deaths, or that more bombs are dropped in more situations? While it does try to forecast collateral damage, the US military seldom analyses afterwards the actual suffering caused by its actions, leaving that to reporters and humanitarians.

The most cogent argument against the dilution of standards is that global leaders lead by example, and the example of exceptionalism undermines the rule of law. Wider adoption of American attitudes towards international humanitarian law would spell disaster for civilians the world over, in wars between forces less technically adept and less responsive to democratic outrage. It is not hard to imagine other troops claiming they are justified in attacking civilians, ignoring massive civilian loss and abusing prisoners – all in the name of some worthy goal, no doubt.

Washington complains it is unfairly held to a higher standard of conduct as the sole superpower. Yet popular expectations shape the laws of war, as the nineteenth century Russian diplomat Fyodor Martens recognised in his famous clause that has been incorporated into many treaties. The law, he wrote, includes principles derived from the laws of humanity and the requirements of public conscience.’ Why then should America, at the height of its prowess, when it can most afford to set the highest standard of military conduct, edge away from time-honoured principles that impose constraints of humanity upon slaughter?