No Comment, Six Questions — April 20, 2010, 2:22 pm

The Law of Armed Conflict: Six Questions for Gary Solis

Cambridge University Press has just issued Gary Solis’s The Law of Armed Conflict, a comprehensive and current treatment of one of the most controversial legal topics. Solis teaches at Georgetown University Law Center, and for six years he directed West Point’s law of war program. He is a retired Marine and was a company commander in Vietnam. I put six questions to him relating to some of the current controversies addressed in his book.

1. Two weeks ago, a videotape was posted by WikiLeaks that showed footage shot from a helicopter in North Baghdad in 2007. The helicopter, responding to reports that an Army armored column had come under attack, fired on a group of civilians, including two Reuters journalists and two children, killing many of them. To what extent did the law of armed conflict provide rules for this incident? Were they violated?

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It is risky to form conclusions of law from videotape of combat operations, because context is critical. In this case, the helicopters involved reportedly were in direct support of a heavily engaged infantry unit located within a few hundred yards of the filmed shooting. The helicopter personnel knew there were numerous armed enemy shooters, without uniforms or other distinguishing sign, at or near the location where they observed a group of individuals including, unknown to them, two Reuters reporters. Upon seeing what they believed to be weapons, the helicopter personnel fired, with tragic results.

There are no rules for such incidents to be found in the Geneva Conventions. Customary law of war does provide guidelines, however. Culpability turns on whether the shooters honestly and reasonably believed their targets presented an immediate threat to themselves – the helicopter unit – or other friendly personnel. The tape’s audio seems to indicate a belief of imminent threat honestly held by the aviators. Was that honest belief reasonable, given the circumstances? That is a question for investigators or a jury. Like reasonableness in any trial, it is often a difficult call. The unprofessional radio traffic does the fliers (and the United States) no honor, but comments as are heard in this video are hardly unique in a combat zone. Nor do such comments determine reasonableness.

Can a van picking up wounded victims be fired upon? If the helicopter personnel reasonably associated the unmarked van with the presumed enemy personnel, yes. An “enemy” vehicle without red cross, red crescent, or white flag receives no special protection, even if wounded personnel are on board.

Based on the circumstances seen on the videotape, and given their context, I believe it unlikely that a neutral and detached investigator would conclude that the helicopter personnel violated the law of armed conflict. Legal guilt does not always accompany innocent death. Judgments made in front of a television set are not as easily formed in a combat zone.

2. Contemporary science fiction gives us stories in which robot armies battle to the death. We’re not quite there yet, but our fighting is becoming increasingly robotic. Among the cutting-edge innovations are unmanned drone aircraft that conduct reconnaissance and deliver lethal payloads. These drones may be under the control of non-military actors, such as the CIA, and the CIA may operate them through contractors sitting in a room in northern Virginia or Nevada. How does the law of armed conflict deal with this new kind of warfare?

Armed service regulations require that every weapon employed by the United States is reviewed for compliance with the law of armed conflict before it is fielded. All major powers conduct similar review programs. Drones have undergone such a review and have been found to be in compliance. Unmanned aerial vehicles, like robotic bomb detectors and remotely controlled vehicles employed in combat zones, have been similarly reviewed and passed by specialists trained in the law of armed conflict and its weapons restrictions.

But lawful weapons can be employed in unlawful ways. A lawful round issued to a soldier, if its tip is scored, may be an unlawful expanding, or dum-dum, bullet. And a lawful weapon, say, a machine gun, employed in combat by a civilian, raises serious issues regarding the civilian shooter.

The law of armed conflict has always sought to restrict military-like violence to the State’s armed forces. Except for the now-rare levée en masse, civilians are prohibited from taking up arms and directly participating in armed conflict. In modern times, civilians who do so are referred to as unprivileged belligerents, aka unlawful combatants. Unprivileged belligerents lose their protected status as civilians and may be targeted and killed. American forces and others have long fought unprivileged belligerents such as Chinese Boxers, Philippine Moros, Somali warlords, Viet Cong fighters, and Taliban and al Qaeda insurgents – all of them civilians who directly participate in hostilities.

Central Intelligence Agency operatives and their civilian contractors who operate drones directly participate in hostilities. Those civilian intelligence specialists who input targeting data, who arm the Predators and Reapers, and who pilot them over Afghanistan and Pakistan’s Tribal Areas are no less unprivileged belligerents than the Taliban and al Qaeda fighters they seek to kill.

In 2009, the International Committee of the Red Cross published guidance on the concept of direct participation in hostilities. The guidance identifies those who routinely and continuously directly engage in combat on behalf of non-state groups as having a “continuing combat function.” Those individuals, the ICRC posits, lose their civilian immunity and may be targeted whenever they may be positively identified. While the ICRC guidance is not law, it suggests that CIA personnel and their civilian contractors in the armed drone program may be targeted, be they located at Pakistan’s Shamsi airfield, Creech Air Force Base in Nevada, or Langley, Virginia.

The targeting of CIA personnel would be no less a loss to the nation than the loss of American servicemen and women who operate military armed drones. But they should be aware of their status in the law of armed conflict. As citizens we in turn might ask if it is absolutely necessary for civilians to be waging our wars.

3. One of the major criticisms of the Bush era was that the law of armed conflict was “quaint” and “obsolete,” and therefore didn’t offer rules that made much sense in the context of conflicts like the “War on Terror.” Do you agree with this critique? Did the Bush team offer any proposals to bring the law of armed conflict up to date?

Hardly. The Geneva Conventions are akin to the fine suit your father purchased years ago. By now it’s a bit tight around the middle and ever so binding at the shoulders, but it is still a fine suit, with a lot of use left in it.

As in any domestic legal code, there are occasional outmoded or anachronistic Geneva Convention provisions. In objecting to the Articles relating to POW interrogation and treatment, however, White House Counsel Gonzales exhibited his ignorance of military law and history, and those Articles remain part of the protections that Geneva mandates. (The commissaries, uniforms, scrip, and scientific instruments he specifically mentioned are, largely, allowed by Geneva, rather than required.)

Finally, the law of armed conflict is commonly revised and updated. The two 1977 Additional Protocols, for example. Although not ratified by the United States, we recognize sixty-five percent of Additional Protocol I as customary law which binds us, despite non-ratification. The 1980 Certain Conventional Weapons Convention, with its five optional protocols, have altered the practice of warfare, as have the 1997 Ottawa Convention on anti-personnel land mines and the 2008 Dublin Convention on Cluster Munitions. Although the United States has ratified few of these provisions, we are inexorably drawn into their ambits by international practice.

4. The Bush Administration attempted to justify deviations from traditional detentions policy both at Guantánamo and in Iraq by references to the doctrine of military necessity. Was their use of this term in any way different from that of prior U.S. governments?

Yes, it was different. Military necessity goes undefined in the 1949 Geneva Conventions and the 1977 Additional Protocols. It is the military principle that justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy. In other words, if it isn’t unlawful, it is permitted. It is an elastic concept but not infinitely so. Military necessity is not a defense for acts forbidden by customary or codified laws of armed conflict, and, too often, military necessity is invoked when military convenience is closer to the truth.

In past U.S. conflicts involving insurgent or revolutionary groups, such as the U.S.-Philippine War (1899-1902), the Vietnam War (1965-73), and the Panamanian Incursion (1989), we afforded captured enemy fighters POW-like status; although not officially POWs they were treated as POWs in virtually all respects.

Not so in the so-called war on terrorism. Early in the conflict the last administration argued that granting prisoners POW-like status would interfere with efforts to interrogate them, thus hampering efforts to thwart future attacks. Instead, Secretary of Defense Rumsfeld directed that detainees be treated humanely and “to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions. Chillingly, commanders were given discretion to decide whether and when Geneva requirements would be applied to prisoners. But a nation’s Geneva Convention obligations are not a matter of individual discretion, nor a we-will-if-you-will proposition. They are international obligations ratified by the United States Senate; they are what Article 6 of the constitution calls “the law of the land.” Our observance of our Geneva obligations is not about the enemy, but about us, as a nation. Our initial detainee policy was a deviation from past U.S. policy, and was contrary to our international obligations under the Geneva Conventions. The invocation of “military necessity” was a political smokescreen.

5. Congress codified “material support” as a war crime in 2009; prosecutors have charged “material support” in some of the military commission prosecutions. Is “material support” a crime recognized under the law of armed conflict?

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In my opinion, it is not, has never been, and should not in the future be considered a war crime. Until a 2008 Guantánamo military commission convicted Salim Hamdan of material support for terrorism, no American tribunal had ever prosecuted such a charge.

It is not mentioned in 1907 Hague Regulation IV, in any U.S. field manual, in the Statute of the International Criminal Court, the Statutes of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, or the Special Court for Sierra Leone. The U.N. Special Rapporteur on human rights concludes that it is not an offense under the laws of war, and the Congressional Research Service finds the charge is not supported by historical precedent. No multilateral treaty on terrorism requires ratifying states to enact such a war crime.

War crimes cannot simply be made up, as this one was by Congress in the 2009 Military Commissions Act. Custom and historical precedent are required to give a war crime legitimacy. “Material support for terrorism” lacks any of these indicia.

If Congress wishes to criminalize material support for terrorism under domestic criminal law, as it did in 1993, it has the power to do so, and prosecutions in domestic courts may follow. But as the U.N. War Crimes Commission says, the laws and customs of war are “rules of international law with which belligerents have customarily, or by special conventions, agreed to comply in case of war.” Although there are other definitions of “war crime,” material support of terrorism meets no element of the U.N.’s definition. In my view, prosecutions based on such a charge only add to the disrepute of American military commissions.

6. Do you expect to see the law of armed conflict change to more closely address conflicts involving nonstate actors, like terrorist groups?

Yes, such changes seem inevitable. The Geneva Conventions remain vital and viable in the “war on terrorism,” but in the foreseeable future conflicts will likely continue to be between states and non-state actors. Such conflicts are not directly addressed in the 1949 Geneva Conventions. Considering specific issues of non-international armed conflict, and new weapons and tactics that currently vex combatants and commentators alike, will make battlefield options less subject to individual national interpretation. For example, what armed response if any is appropriate to cross-border terrorist attacks? Will white phosphorus munitions be banned? Can there be international agreement on the lawfulness of targeting civilian communication facilities? What is the status of captured members of armed opposition groups? Should depleted uranium munitions be prohibited?

It is far from assured that Geneva will lead such changes. The “Ottawa process” that recently produced effective international bans on antipersonnel land mines and cluster munitions may be the future model. That process involves like-minded NGOs banding together to create single-issue treaties to be joined by any interested state, thereby avoiding parliamentary and diplomatic logjams too often seen in Geneva-based negotiations. The Ottawa process also subverts the objections of militarily powerful Western nations that may have reason to cling to the jus in bello status quo. We are likely to see its more frequent use.

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