Outlawing war

Posted on September 14, 2017 by Derek Gregory

An vitally important book by Oona Hathaway and Scott Shapiro: The Internationalists: how a radical plan to outlaw war remade the world (Penguin/Simon & Schuster). Hailed by Philippe Sands as ”A clarion call to preserve law and order across our planet”, it is all too timely:

A bold and provocative history of the men who fought to outlaw war and how an often overlooked treaty signed in 1928 was among the most transformative events in modern history.

On a hot summer afternoon in 1928, the leaders of the world assembled in Paris to outlaw war. Within the year, the treaty signed that day, known as the Peace Pact, had been ratified by nearly every state in the world. War, for the first time in history, had become illegal the world over. But the promise of that summer day was fleeting. Within a decade of its signing, each state that had gathered in Paris to renounce war was at war. And in the century that followed, the Peace Pact was dismissed as an act of folly and an unmistakable failure. This book argues that that understanding is inaccurate, and that the Peace Pact ushered in a sustained march toward peace that lasts to this day.

The Internationalists tells the story of the Peace Pact by placing it in the long history of international law from the seventeenth century through the present, tracing this rich history through a fascinating and diverse array of lawyers, politicians and intellectuals—Hugo Grotius, Nishi Amane, Salmon Levinson, James Shotwell, Sumner Welles, Carl Schmitt, Hersch Lauterpacht, and Sayyid Qutb. It tells of a centuries-long struggle of ideas over the role of war in a just world order. It details the brutal world of conflict the Peace Pact helped extinguish, and the subsequent era where tariffs and sanctions take the place of tanks and gunships.

The Internationalists examines with renewed appreciation an international system that has outlawed wars of aggression and brought unprecedented stability to the world map. Accessible and gripping, this book will change the way we view the history of the twentieth century—and how we must work together to protect the global order the internationalists fought to make possible.

You can read an extended essay by Oona, adapted from the book, via the Guardian here:

Today, perhaps more than at any time since 1945, the prohibition on use of force that has been the backbone of the international order for most of the last century is under attack. Indeed, it is in danger of collapsing – and taking the order it upholds down with it….

But international rules regarding the use of force are not a minor feature of the world we live in – and the fact that these rules have often been broken should not obscure how important they remain.

They are at the heart of some of the most beneficial transformations of the past 70 years, from the global decline in interstate conflict and combat deaths to the rising wealth and health that peace has allowed. With these rules at risk, the international community is facing a crisis of extraordinary proportions. Yet few people appreciate how serious and imminent the crisis is. Fewer still understand where these rules came from: a now-almost-forgotten agreement known as the Paris Peace Pact of 1928 that was eventually signed by all the nations of the world and had the immodest goal of outlawing war. In order to appreciate the magnitude of the threat, we must return to a world very different to our own, one in which the rules that we currently take for granted did not exist. The risk we face is reverting to this world, where might was right and war was legal.

You can read Louis Menand‘s extended review at the New Yorker here.

The fulcrum of the book is the Kellogg-Briand Pact (‘the Peace Pact’) of 27 August 1928; I opened my essay on ‘War and Peace’ [DOWNLOADS tab] with this extraordinary attempt to make war illegal, but I confess I knew little enough about it and now I see that my understanding was also spectacularly inadequate. Read this book to find out why, but more importantly to think with the intellectual architect of the Pact, Salmon Levinson:

“The real disease of the world is the legality and availability of war. We should have, not as now, laws of war, but laws against war; just as there are no laws of murder or of poisoning, but laws against them.”

Legal battles

Posted on July 2, 2015 by Derek Gregory

Following up my comments on the Pentagon’s new Law of War Manual, issued last month: commentaries are starting to appear (it’s not surprising these are taking so long: the new version runs to 1200 pages).

Just Security is hosting a forum on the Manual, organised by Eric Jensen and Sean Watts. They are both deeply embedded in the debate: Eric is a Professor at Brigham Young Law School and was formerly Chief of the Army’s International Law Branch and Legal Advisor to US military forces in Iraq and Bosnia, while Sean is a Professor at Creighton University Law School and on the Department of Law faculty at the United States Military Academy at West Point; he is also Senior Fellow at the NATO Cooperative Cyber Defence Centre of Excellence and served in the US Army’s Judge Advocate General’s Corps.

In the opening salvo, Sean focuses on the Manual‘s identification of three core principles:

“Three interdependent principles – military necessity, humanity, and honor – provide the foundation for other law of war principles, such as proportionality and distinction, and most of the treaty and customary rules of the law of war.”

The implications of this formulation are more far reaching than you might think. Necessity, proportionality and distinction have long been watchwords, but the inclusion – more accurately, Sean suggests, the resurrection – of ‘humanity’ and ‘honor’ is more arresting: in his view, the first extends the protection from ‘unnecessary suffering’ while the second ‘marks an important, if abstract revival of good faith as a legal restraint on military operations’.

Watch that space for more commentaries, inside and outside the armed camp.

Others have already taken a much more critical view of the Manual.

Claire Bernish draws attention to two particularly disturbing elements here. First, like several other commentators, she notes passages that allow journalists to be construed as legitimate targets. While the Manual explains that ‘journalists are civilians’ it also insists there are cases in which journalists may be ‘members of the armed forces […] or unprivileged belligerents.’ Apparently, Claire argues,

‘reporters have joined the ranks of al-Qaeda in this new “unprivileged belligerent” designation, which replaces the Bush-era term, “unlawful combatants.” What future repercussions this categorization could bring are left to the imagination, even though the cited reasoning—the possibility terrorists might impersonate journalists—seems legitimate. This confounding label led a civilian lawyer to say it was “an odd and provocative thing for them to write.”‘

Other commentators, mindful of incidents in which the US military has been accused of targeting independent (non-embedded) journalists, have read this as far more than provocation. Like other claims registered in the Manual, this has implications for other armed forces – and in this particular case, for example, Ken Hanly points out that ‘what is allowed for NATO and the US is surely legitimate for Israel.’

This is not as straightforward as he implies, though. Eric Jensen agrees that

‘[T]he writers had to be aware this manual would also be looked to far beyond the US military, including by other nations who are formulating their own law of war (LOW) policies, allies who are considering US policy for purposes of interoperability during combined military operations, transnational and international organizations such as the International Committee of the Red Cross (ICRC) who look to such manuals when considering the development of customary practice, and even national and international tribunals who adjudicate LOW questions with respect to the criminality of individual actions.

While Eric acknowledges ‘the inevitable use of [the Manual] in the determination of customary practice.’ however, he also argues that the authors of the Manual go out of their way to preclude this possibility: they ‘wanted to be very clear that they did not anticipate they were writing into law the US position on the law of war.’

Second, Claire draws attention to a list of weapons with specific rules on use’ (Section 6.5.1), which includes cluster munitions, herbicides and explosive ordnance, and a following list of other ‘lawful weapons’ (Section 6.5.2) for which ‘there are no law of war rules specifically prohibiting or restricting the following types of weapons by the U.S. armed forces’; the list includes drones and Depleted Uranium munitions. These designations are all perfectly accurate, but Claire’s commentary fastens on the fact that at least two of these weapons have been outlawed by many states. She draws attention to the hideous consequences of DU and cluster bombs, and explains that cluster bombs:

‘are delineated in the manual as having “Specific Rules on Use”— notably, such weapons’ use “may reflect U.S. obligations under international law” [emphasis added]. While this is technically apt, cluster bombs have been banned by the 2008 Convention on Cluster Munitions—which was agreed to by 116 countries around the world. The U.S. stands out in joining infamous human rights violator, Saudi Arabia, in its refusal to sign. These insidious munitions leave unexploded ordnance for months, or even decades, after the originating bomb was dropped. Children are often maimed or killed when they unwittingly mistake them for toys.’

Meanwhile, also at Just Security but seemingly not part of the Forum, Adil Ahmad Haque has attacked the Manual‘s discussion of ‘human shields’:

The Defense Department apparently thinks that it may lawfully kill an unlimited number of civilians forced to serve as involuntary human shields in order to achieve even a trivial military advantage. According to the DOD’s recently released Law of War Manual, harm to human shields, no matter how extensive, cannot render an attack unlawfully disproportionate. The Manual draws no distinction between civilians who voluntarily choose to serve as human shields and civilians who are involuntarily forced to serve as human shields. The Manual draws no distinction between civilians who actively shield combatants carrying out an attack and civilians who passively shield military objectives from attack. Finally, the Manual draws no distinction between civilians whose presence creates potential physical obstacles to military operations and civilians whose presence creates potential legal obstacles to military operations. According to the Manual, all of these count for nothing in determining proportionality under international law.

If true, this would dramatically qualify the discussion of ‘humanity’ and ‘honor’ above; but, not surprisingly, Charles Dunlap will have none of it. He objects not only to Adil’s reading of the Manual, but also the logic that lies behind his criticism:

Killing those who do the vast majority of the killing of civilians can save lives. It really can be that simple.

Experience shows that well-meaning efforts to curb the use of force can have disastrous effects on civilians. Think about the restrictions on airstrikes imposed by Gen. Stanley McChrystal in Afghanistan in mid-2009. The result? By the time he was fired a year later in June 2010, civilian casualties had jumped a heart-rending 31% entirely because of increased killings by anti-government forces. (In addition, casualties among friendly troops hit an all-time high in 2010.)

[The unclassified section of McChrystal’s Tactical Directive (above) is here]

When Gen. David Petraeus took command in mid-2010, he took a different, more aggressive approach. While still scrupulously adhering to the law of war, he clarified the rules of engagement in a way that produced a tripling of the number of airstrikes. The result? The increase in civilian casualties was cut in half to 15% by the end of 2010. Under Petraeus’ more permissive interpretation of the use of force against the Taliban and other anti-government forces, the increase the following year was cut almost in half again to 8% (and losses of friendly troops fell 20%). To reiterate, although counterintuitive to some critics, restricting force by law or policy can actually jeopardize the lives of the civilians everyone wants to protect.

Michael O’Hanlon at the Brookings Institue makes exactly the same argument about the Manual here (scroll down), but Dunlap’s sense is much sharper: the Manual, he says, ‘is designed to win wars in a lawful way that fully internalizes, as it says itself on several occasions, the “realties of war.”’ This is immensely important because in effect it acknowledges that neither the Manual nor the laws of war are above the fray. If the Manual ‘is designed to win wars in a lawful way’ that is precisely because law is in the army’s baggage train, fully incorporated into the juridification of later modern war. Law is at once a powerful weapon and a moving target.

Asymmetric law

Posted on May 4, 2015 by Derek Gregory

Breaking the Silence has just published a major report into the Israeli military’s tactics during its most recent offensive against Gaza and its people, so-called ‘Operation Protective Edge’ (see my posts here, here, here and here).

Based on interviews with 65 IDF soldiers, the report includes Background, Testimonies (‘This is how we fought in Gaza‘), and a media gallery.

Writing in today’s Guardian, Peter Beaumont reports:

Describing the rules that meant life and death in Gaza during the 50-day war – a conflict in which 2,200 Palestinians were killed – the interviews shed light for the first time not only on what individual soldiers were told but on the doctrine informing the operation.

Despite the insistence of Israeli leaders that it took all necessary precautions to protect civilians, the interviews provide a very different picture. They suggest that an overarching priority was the minimisation of Israeli military casualties even at the risk of Palestinian civilians being harmed….

Post-conflict briefings to soldiers suggest that the high death toll and destruction were treated as “achievements” by officers who judged the attrition would keep Gaza “quiet for five years”.

The tone, according to one sergeant, was set before the ground offensive into Gaza that began on 17 July last year in pre-combat briefings that preceded the entry of six reinforced brigades into Gaza.

“[It] took place during training at Tze’elim, before entering Gaza, with the commander of the armoured battalion to which we were assigned,” recalled a sergeant, one of dozens of Israeli soldiers who have described how the war was fought last summer in the coastal strip.

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

You can find an impassioned, detailed commentary on the report by Neve Gordon – who provides vital context, not least about the asymmetric ethics pursued by supposedly ‘the most ethical army in the world’ – over at the London Review of Books here, and a shorter commentary by Kevin Jon Heller at Opinio Juris here. Kevin notes:

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

The legal and ethical framework pursued by the Israeli military – and ‘pursued’ is the mot (in)juste, since its approach to international law and ethics is one of aggressive intervention – is in full view at a conference to be held in Jerusalem this week: ‘Towards a New Law of War‘.

‘The goal of the law of war conference,’ say the organisers, ‘is to influence the direction of legal discourse concerning issues critical to Israel and her ability to defend herself. The law of war is mainly unwritten and develops on the basis of state practice.’

You can find the full program here, dominated by speakers from Israel and the US, but notice in particular the session on ‘Proportionality: Crossing the line on civilian casualties‘:

As this makes clear, and as Ben White reports in the Middle East Monitor, law has become the target (see also my post here):

After ‘Operation Cast Lead’, Daniel Reisner, former head of the international law division (ILD) in the Military Advocate General’s Office, was frank about how he hoped things would progress.

If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries….International law progresses through violations.

Similarly, in a “moral evaluation” of the 2008/’09 Gaza massacre, Asa Kasher, author of the IDF’s ‘Code of Ethics’, expressed his hope that “our doctrine” will ultimately “be incorporated into customary international law.” How?

The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law.

Now Israel’s strategy becomes clearer… Israel’s assault on the laws of war takes aim at the core, guiding principles in IHL – precaution, distinction, and proportionality – in order to strip them of their intended purpose: the protection of civilians during armed conflict. If successful, the victims of this assault will be in the Occupied West Bank and Gaza Strip, Lebanon – and in occupations and war zones around the world.

Scorched Earth

Posted on December 23, 2014 by Derek Gregory

In ‘The Natures of War’ (DOWNLOADS tab) I didn’t have space to address the legal dimensions of militarized natures, but Bronwyn Leebaw provides a helpful review in ‘Scorched Earth: Environmental War Crimes and International Justice‘ in the latest issue of Perspectives on Politics (12 [4] (2014) 770-788. From the abstract:

Environmental devastation is not only a byproduct of war, but has also been a military strategy since ancient times. How have the norms and laws of war addressed the damage that war inflicts on the environment? How should “environmental war crimes” be defined and addressed? I address these questions by critically examining the way that distinctions between legitimate and illegitimate wartime environmental destruction have been drawn in debates on just war theory and the laws of war. I identify four distinctive formulations for framing the wartime significance of nature that appear in such debates and analyze how each is associated with distinctive claims regarding what constitutes “humaneness” in times of war: nature as property; nature as combatant; nature as Pandora’s Box; and nature as victim.

In the text she elaborates on those four formulations like this:

First, in early debates and documents, as well as contemporary interpretations of humanitarian law, a prominent approach to analyzing wartime destruction of nature has been to evaluate it in relation to claims regarding property protections in times of war. Humaneness, in this formulation, has been defined in relationship to dominion, ownership, discipline, and control, as defined against “wanton” or undisciplined actions. Second, in debates that influenced provisions of humanitarian law regarding chemical and biological weapons, nature has also been framed as a combatant. In this context, humaneness is associated with the use of technically superior weapons and the close identification of human agency with scientific mastery in response to anthropomorphized “enemies” in nature. Third, provisions of humanitarian law that aim to define and address the crime of ecocide emerged in response to the massive herbicidal campaign carried out by the US in Vietnam. Debates on the crime of ecocide were not only influenced by an ecological view of nature and humanity as interdependent, but also by a new formulation that positioned nature as a kind of Pandora’s Box, filled with creative and destructive forces that humanity has the power to unleash, yet not control. Finally, with the rise of international justice institutions, the expansion of the environmental movement as well as the human rights movement, nature has also been framed as a victim, or potential victim, of war crimes. In this formulation, humaneness and human agency are defined in relation to the criminal justice binary of guilt and innocence.

The last three all appear, in various forms, in ‘The Natures of War’, though – as I’ve tried to show, and as others know far better than me – questions of ‘human-ness’ are far from straightforward.