Targeting enemy forces in the war on terror: preserving civilian immunity.

• Author: Rosen, Richard D.

ABSTRACT

Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media)provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it allows terrorist and insurgent groups to gain strategic and tactical advantages through their own noncompliance with the law and their adversaries' observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This Article proposes structural changes to the law governing targeting and attitudinal changes by those who interpret it to ensure that civilians receive adequate security from armed attack.

TABLE OF CONTENTS I. INTRODUCTION II. THE DEVELOPMENT OF CIVILIAN IMMUNITY UNDER THE LAW OF WAR A. The Law Before the Hague Regulations of 1907 B. The Hague Regulations 1. Genesis 2. Key Provisions C. From Hague to Protocol I 1. Geneva Gas Protocol of 1925 2. Hague Air Rules of 1923 3. Geneva Conventions of 1949 4. Hague Convention on the Protection of Cultural Property of 1954 III. ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION OF 1949 A. Genesis and Drafting Process B. Law of Civilian Immunity After Protocol I 1. General 2. Principle of Distinction 3. Principle of Proportionality IV. USING COMPLIANCE WITH THE LAW OF WAR AS A MILITARY TACTIC A. al-Amariyah (al-Firdos Bunker) 1991 B. Jenin 2002 C. Fallujah 2004 D. Israel-Hezbollah Conflict 2006 E. Israeli-Hamas Conflict 2008-2009 V. CONCLUSION: ENHANCING CIVILIANS IMMUNITY UNDER THE LAW OF WAR "Soldiers are made to be killed,' as Napoleon once said; that is why war is hell. But even if we take our standpoint in hell, we can still say that no one else [but soldiers are] made to be killed. This distinction is the basis of the rules of war." (1)

1. INTRODUCTION

   While General Sherman's simple adage that "war is hell" (2) is axiomatic, it is also indisputable that the ravages of war should be reserved for the soldiers who wage it. (3) Those who take no active part in conflict--civilians and as well as combatants who can or will no longer fight--should be spared, to the utmost extent, the horrors of battle. The protection of noncombatants, especially civilians, is the primary purpose of the law of war. (4)

   Few disagree with this fundamental principal. (5) Most nations recognize that while "[b]elligerent armies are entitled to try to win their wars.... they are not entitled to do anything that is or seems to them necessary to win." (6) More problematic is discerning the means by which the principle is realized. Unfortunately, some parties to international armed conflicts, acting with the inadvertent (if not tacit) support of many in the international community--including, at times, the United Nations (UN), non-governmental organizations (NGOs), and the press--have chosen to interpret and implement international humanitarian law in such a manner as to intensify, rather than diminish, the collateral effects of war. (7) The path they have taken is leading to more--not less--civilian casualties. (8)

   Before 1977, rules governing the conduct of military operations predominantly came from customary international law and the relatively specific restrictions contained in the Hague Regulations of 1907. (9) In 1969, the International Committee of the Red Cross (ICRC) initiated an ambitious process to codify and expand the law of war, particularly the law protecting noncombatants during international armed conflicts. (10) After convening two conferences of government experts in 1971 and 1972, the ICRC proposed two draft protocols to the Geneva Conventions, one applying to international armed conflicts and the other dealing with conflicts of a non-international character. (11)

   From 1974 to 1977, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts met in four sessions in Geneva, Switzerland, to consider the ICRC's draft protocols. (12) The Conferences culminated in the approval of the Additional Protocols to the Geneva Conventions of 1949. (13)

   Participants in the Diplomatic Conference included national delegations as well as representatives of several "national liberation movements." (14) Not all conference participants were motivated by a selfless desire to protect civilians from the devastation wrought by war. Many delegations, particularly those from so-called third world nations and with assistance from the Soviet bloc, fiercely advocated for the development of targeting restrictions that would negate the military superiority of Western nations, most notably the United States and Israel. (15) They were successful. (16) Protocol I shifts responsibility for protecting civilians from the effects of combat from the defending force--which has control over the civilian population--to the attacker, (17) thereby creating perverse incentives for nations with less-developed armed forces to use civilians to shield their military operations. The Protocol also virtually eliminates the requirement that combatants distinguish themselves from the civilian population, (18) thus degrading an essential element of civilian immunity--the ability to discriminate between combatants and civilians.

   Protocol I reaches beyond potential conflicts between military powers and less-developed nations. It also purports to establish a targeting regime applicable to the international war on terror, (19) and it encourages members of insurgent and terrorist organizations to blend into the civilian population and to conduct their military operations from civilian communities. Thus, Protocol I places the burden of avoiding civilian casualties on those responding militarily to insurgent and terrorist groups. (20)

   Because of Protocol I's basic flaws, some states, particularly those with militaries that actually engage in combat (e.g., the United States and Israel), (21) have refused to ratify the treaty. (22) Traditionally, a state that is not a party to a treaty is not bound by it; express consent is usually required to bind a state to a treaty. (23) Some in the international community, however, have sought "to circumvent" the express consent requirement by asserting that the restrictions contained in Protocol I constitute customary international law, which is binding on nonparty states. (24) While beliefs about what the law ought to be (lex ferenda) rather than what it actually is (lex lata) may be dismissed as wishful thinking, (25) such beliefs do have ramifications.

   With the establishment of the International Criminal Court, soldiers are subject to war crimes prosecution for violations of customary international law (26) whether or not their nations are parties to Protocol I. (27) Equally troubling is the fact that many in the international community--including the UN, NGOs, and the media--focus reflexively, and nearly exclusively, on their perceptions of the legality of the conduct of Western nations (i.e., the United States and Israel). (28)

   In the early 1960s, comedian Bill Cosby performed a routine called "Toss of the Coin" in which he imagined what would happen if a referee tossed a coin at the commencement of every war, with the winner of the toss deciding the rules under which the conflict would be fought. (29) The coin toss would be similar to the coin toss conducted before a football game, in which the winner of the toss decides whether it will kick-off or receive, or whether it will defend a particular goal to begin the game. (30) One example Cosby uses is a coin toss at the beginning of the American Revolutionary War. The British lose the toss and the Americans set the rules of the war; during the war, the Americans "will wear any color clothes that they want to; shoot from behind the rocks, the trees, and everywhere; and [the British] must wear red and march in a straight line." (31)

   Protocol I and its application by the international community place Western nations (particularly the United States and Israel) fighting insurgent and terrorist organizations (e.g., al-Qaeda, Hezbollah, Hamas) (32) on the losing side of the coin toss. The insurgents and terrorists set the rules of the conflict. Namely, the insurgents and terrorists will dress any way they want and conduct their military operations from civilian population centers, while their enemies must either surrender; or--in the course of shooting back--kill or wound civilians and destroy civilians' objects, thereby incurring the opprobrium of the international community; or attack with ground forces and suffer considerable combat losses, thereby losing vital domestic support. (33)

   In short, Protocol I provides a powerful incentive for insurgents and terrorist organizations to rely on their enemies' observance of the law of war. It creates a "win-win-win" situation for such groups: either their adversaries avoid striking them altogether out of fear of causing civilian casualties (win); or they attack them, cause civilian casualties, and suffer international condemnation (win); or they forego air power and artillery and attack using ground troops, thereby incurring much greater casualties and the loss of their public's support for the conflict (win).

   Admittedly, democracies must often fight wars "with one hand tied behind [their] back[s]," (34) and they must recognize that adherence to the law of war is not based upon strict reciprocity. (35) Nevertheless, the current law governing targeting is fundamentally defective. It affords parties to international armed conflicts strategic (36) and tactical (37) advantages from the combination of their own noncompliance with the law of war and their adversaries' observance of the law. Nations should not be placed at a strategic or tactical disadvantage for following international humanitarian law or for their enemies'...