The Laws of War
John Keegan (hat tip: Glenn Reynolds) argues that Bad law is making a Just War so much harder to fight: not always, but sometimes, and argues that the court martial system would provide better justice than civilian law.
The Iraq war, which is both unpopular and in the eyes of many, illegal, has led to the prosecution or threat of prosecution of dozens of British soldiers. The outcome of promised proceedings is unknown but it seems possible that there will be sentences. Some, no doubt, will be justified if, as seems possible, mistreatment of prisoners of war, or civilians caught up in the fighting, is proved. Disquiet over those criminal proceedings lies elsewhere. The disquiet falls under two headings. The first concerns the nature of the fighting in Iraq. The second concerns the effect that using international criminal law has on the morale of the Army.
As to the fighting in Iraq: an insurgency of this sort leads to confusion and misunderstanding. There is no front line, no division between the war zone and civilian areas, no distinction between terrorists and law-abiding citizens.... The only effective agents in a war zone are the combatants themselves, and the innocents have to rely on such people's instincts of decency or fear of punishment for misbehaviour to avert harm to themselves. ...
There was a lot that was wrong with the court martial system, which produced much rough justice. There was, however, also a lot that was right. Under court martial, it is unlikely that officers or soldiers, pleading that their actions should be understood within the military realities of fear, confusion and concern for each other's safety, would be condemned for lack of understanding of such circumstances. Good civil law is likely to make for bad military law. Only a lawyer would argue otherwise.
Some critics might ask if there was ever a bad law or a just war, but not of Saddam or Osama, who might ask in turn if there was ever a just Western law or an bad war against the infidel. The problem I think, lies not in the relative merits of civilian and military law, but the failure of humanitarian law to return to its origins. Its form endures but its object has slipped from under its grasp. Keegan begins his excellent article by recounting how the laws on war evolved.
Roman law was brutal in the extreme, legions fought to win victory with no concern for the fate of the losers. Prisoners were usually killed, unless they were spared to be sold into slavery. In later centuries, the awfulness of Roman war was a little softened. Medieval Christian theologians tried to establish a code of behaviour, which came to be known as the Just War doctrine. It laid down, among other things, that non-combatants, women, children and priests, were not legitimate targets of violence and that the lives of prisoners should be spared. Just War doctrine caught on. During the First World War, there was very little harm done to civilians and the killing of prisoners, though not unknown, was regarded as beyond the bounds of civilised warfare.
There was a subsequent decline. The Second World War was characterised by appalling loss of life among non-combatants and a great deal of deliberate slaughter of prisoners, women, children, and other defenceless beings. As a result, a firm effort was made by the victor nations, principally Britain and the United States, to restate the principle of Just War and to punish transgressors. The worst of them were condemned at the Nuremberg Trials, which laid down that obedience to orders, if illegal, was not a defence.
Keegan might have added that the forms of war, much more than the letter of the law, provided the greatest extent of protection to the noncombatants. The Zone of the Front and the Zone of the Rear during the First World War helped separate civilians from the violence of combat. The subsequent decline in civilian inviolability was due not to a sudden decline in morality during the Second War but to the emergence of fast moving mechanized warfare and bomber forces which destroyed the neat division between Front and Rear. Yet despite the Warsaws, Dresdens and Hiroshimas the distinction between combatant and civilian still remained. Combatants wore uniforms and, by and large, shot mostly at each other. Because humanitarian protection is so dependent on the modalities of combat, what does it mean when British soldiers must fight where "there is no front line, no division between the war zone and civilian areas, no distinction between terrorists and law-abiding citizens"; where "the only effective agents in a war zone are the combatants themselves, and the innocents have to rely on such people's instincts of decency or fear of punishment for misbehaviour to avert harm to themselves"? The answer must certainly go beyond a choice between civilian and military justice.
If the objective function is to minimize the suffering of noncombatants, the first step must surely be to discriminate between the "innocent" and the "guilty", for when distinctions are not made obvious by the wearing of uniforms other methods must be substituted. The main driver of battlefield humanitarianism is good intelligence. A terrorist battlefield sees far less force than the First War -- none of the rolling barrages of the Somme -- but compensates in frightfulness by using civilians as sandbags, and only intelligence and highly accurate targeting systems can focus violence on the combatants and not the civilians. Only through intelligence can there be any hope of achieving the substantive aim of humanitarian war, which is the exclusion of the noncombatant from the violence of battle. Humanitarian law then, should theoretically do everything in its power to enhance this process, just as in the past century, it highlighted the practices most likely to assist civilians given the battlefield modalities of the day. However, humanitarian law in its current form sometimes does the very opposite and hinders this process. A captured terrorist is only obliged to state his name, rank and serial number. Tom Friedman of the New York Times argues that Guantanamo Bay should simply be shut down because it is so contrary to humanitarianism.
I believe the stories emerging from Guantánamo are having a similar toxic effect on us - inflaming sentiments against the U.S. all over the world and providing recruitment energy on the Internet for those who would do us ill. Husain Haqqani, a thoughtful Pakistani scholar now teaching at Boston University, remarked to me: "When people like myself say American values must be emulated and America is a bastion of freedom, we get Guantánamo Bay thrown in our faces. When we talk about the America of Jefferson and Hamilton, people back home say to us: 'That is not the America we are dealing with. We are dealing with the America of imprisonment without trial.' " Guantánamo Bay is becoming the anti-Statue of Liberty.
What Mr. Friedman does not quantify is how many innocent civilians might die from mistaken engagement, friendly fire, bad targeting and what have you, if an alternative means of obtaining intelligence is not found. Would it be greater or less than the hundred or so Jihadis said to have died in US custody? Would it matter to those who regard Gitmo as the anti-Statue of Liberty? This is not an argument for torture: there are more effective ways than hostile interrogation to obtain intelligence including spying, wiretapping, surveillance and tracing through bank accounts. But it is an argument to recast humanitarian law to allow the gathering and application of that intelligence. Much of the historical impact of humanitarian law stemmed directly from the ability to gather and apply intelligence to discriminate between combatants and noncombatants. The devices of open cities, clearly marked ambulances, zones of safe passage, armbands for humanitarian personnel, etc are usages whose practical utility has expired under the deceptions of terrorist warfare, but their intent -- that of marking the limits of licit violence -- is sound. It is a distinction which can be based only on intellgence. Without that, humanitarian law is form without function on the modern terrorist battlefield, "a tale told by an idiot, full of sound and fury, signifying nothing".