Debates and Dichotomies: Exploring the Presumptions Underlying Contentions About the Geography of Armed Conflict
© T.M.C. Asser Press and the authors 2015
Terry D. Gill, Robin Geiß, Robert Heinsch, Tim McCormack, Christophe Paulussen and Jessica Dorsey (eds.)Yearbook of International Humanitarian Law 2013Yearbook of International Humanitarian Law1610.1007/978-94-6265-038-1_1111. Debates and Dichotomies: Exploring the Presumptions Underlying Contentions About the Geography of Armed Conflict
(1)
International Humanitarian Law Clinic, Emory University School of Law, Atlanta, GA 30322-2770, USA
Abstract
An examination of the growing literature on the topic of the geography of armed conflict suggests that the differences of opinion, between and among academics, policymakers and military lawyers, for example, are nearly intractable. Statements about the propriety of a certain target under the law of armed conflict are often met by pronouncements regarding the role of jus ad bellum in cabining the use of force in the territory of another state or the restrictive parameters of the international human rights/law enforcement regime for addressing individuals who pose a threat or danger to others. Indeed, one might easily conclude that the participants in these debates are simply operating in entirely separate analytical paradigms, leading to interesting and challenging intellectual discussions but not to productive conversations that advance the analysis and move beyond the debate to effective potential resolution of a complicated and multi-layered issue. However, unlike pornography or terrorism, where notwithstanding a myriad of different definitions, “you know it when you see it”, little agreement exists even on whether there is a specific, definable geography of armed conflict at all. To help move beyond this impasse, this article explores the presumptions underlying the ongoing debates regarding the geography of armed conflict, in an effort to untangle the debates and provide new opportunities and venues for discussion—and thus to help advance the development of the law of armed conflict and other relevant bodies of law. These presumptions appear in particular in four dichotomies that inherently help drive the debates but are brushed aside or not taken into consideration: law versus policy; authority versus obligation; territory versus threat; and submission of the collective enemy versus elimination of an individual threat. For each or any of these dichotomies, the lens through which one views the contrasting positions will then have a significant—if not determinative—effect on considerations and conclusions regarding questions of geography and the battlefield. As a result, recognizing these dichotomies and understanding how they impact the current discourse is critical to any effective conversation, whether in the academic or policy arenas.
Keywords
Law of warLaw of armed conflictInternational humanitarian lawBattlefieldArmed conflictGeographyTargeted killingTargeted strikesJus in belloJus ad bellumRules of engagementLaurie R. Blank is Director of the International Humanitarian Law Clinic, Emory University School of Law.
11.1 Introduction
An examination of the growing literature on the topic of the geography of armed conflict suggests that the differences of opinion, between and among academics, policymakers and military lawyers, for example, are nearly intractable. Statements about the propriety of a certain target under the law of armed conflict are often met by pronouncements regarding the role of jus ad bellum in cabining the use of force in the territory of another state or the restrictive parameters of the international human rights/law enforcement regime for addressing individuals who pose a threat or danger to others. Indeed, one might easily conclude that the participants in these debates are simply operating in entirely separate analytical paradigms, leading to interesting and challenging intellectual discussions but not to productive conversations that advance the analysis and move beyond the debate to effective potential resolution of a complicated and multi-layered issue. However, unlike pornography or terrorism, where notwithstanding a myriad of different definitions, “you know it when you see it”, little agreement exists even on whether there is a specific, definable geography of armed conflict at all.
In many cases, what seem to be extensive and vigorous debates about the geography of armed conflict, or the “boundaries of the battlefield”, are in fact debates about entirely different questions that get subsumed within or masked by the au courant topic of geography. Three questions in particular underlie most of the geography debates and, upon closer examination, appear to be the actual issue or issues at the center of the debate: where can force be used; how should conflicts between a state and entities not located wholly within the boundaries of that state be characterized; and how can force be used, that is, what law governs how (not whether or when) a state or other party uses force in pursuit of its goals. These and other issues remain the source of extensive and contentious debate, particularly between the United States and several of its allies in Europe and elsewhere, but talking about them through the lens of a debate on the geography of armed conflict does not contribute to effective resolution or minimization of the existing debate. In effect, when one person talks about geography of conflict with an eye to how one frames the scope of a non-international armed conflict—that is, a characterization of conflict question—and another is focused on whether the involved state can use force across the border in the territory of a neighboring state—that is, a jus ad bellum question—the conversation ultimately is akin to ships passing in the night.
To help move beyond this impasse, this chapter explores the presumptions underlying the ongoing debates regarding the geography of armed conflict, in an effort to untangle the debates and provide new opportunities and venues for discussion—and thus to help advance the development of the law of armed conflict (LOAC) and other relevant bodies of law. These presumptions appear in particular in four dichotomies that inherently help drive the debates but are brushed aside or not taken into consideration: law versus policy; authority versus obligation; territory versus threat; and submission of the collective enemy versus elimination of an individual threat. For each or any of these dichotomies, the lens through which one views the contrasting positions will then have a significant—if not determinative—effect on considerations and conclusions regarding questions of geography and the battlefield. As a result, recognizing these dichotomies and understanding how they affect the current discourse is critical to any effective conversation, whether in the academic or policy arenas. Sections 11.2 through 11.5 of this chapter examine these dichotomies in turn to explore how they distort the overt debate over geography or simply render that debate ineffective. It is also useful to consider how these dichotomies and presumptions overlap and the common themes that flow throughout, such as the frequent conflation of jus ad bellum and jus in bello when discussing the lawfulness of and parameters governing the use of force against non-state entities located outside the boundaries of the state.1
11.2 Law and Policy
Throughout 2011 and 2012, the Obama Administration engaged in a remarkable series of public speeches by top legal advisors and national security advisors that appeared to offer extensive explanation of the international legal principles governing the use of drone strikes against al-Qaeda operatives in various locations around the globe, as well as related counterterrorism measures. In May 2013, the Obama Administration released a fact sheet on U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities,2 which provides information about counterterrorism policy standards and procedures, particularly with regard to the use of force. These extensive efforts to purportedly expound on the international legal parameters for U.S. counterterrorism operations offer—perhaps instead—an excellent example of the dichotomy between and conflation of law and policy.
Policy and strategic considerations are without a doubt an essential component of understanding contemporary military operations and the application of LOAC during armed conflict. However, it is equally important to distinguish between law and policy, and to recognize when one is driving analysis versus the other. LOAC—otherwise known as the law of war or international humanitarian law—governs the conduct of both states and individuals during armed conflict. It seeks to minimize suffering in war by protecting persons not participating in hostilities and by restricting the means and methods of warfare.3 LOAC applies during all situations of armed conflict, with the full panoply of the Geneva Conventions and customary law applicable in international armed conflict (conflicts between two states) and a more limited body of conventional and customary law applicable during non-international armed conflict (conflicts between a state and a non-state armed group or between two or more non-state armed groups). In all circumstances, therefore, LOAC provides the basic framework for all actions, obligations, and privileges; it is, in essence, the outer parameters for all military conduct.
Strategic policy determines the goals of the overall operation and of specific missions and will be based on a range of national security objectives, domestic policy goals or constraints, and the needs of coalition operations or other multilateral considerations. Law and policy come together directly in the rules of engagement (ROE), which are tactical instructions to military forces regarding the parameters for executing their mission. ROE are based on three key components: law, strategy and policy—the legal framework of LOAC, the military needs of strategy and operational goals, and the national command policy of the U.S. The relationship between LOAC and ROE demonstrate the interaction between law and policy during military operations: LOAC forms the basic parameters for the conduct of hostilities and the treatment of persons and objects during armed conflict; ROE operate within that framework to set the rules for the use of force in the circumstances of the particular military mission at hand, the operational imperatives and national command policy.
In the debates about the potential geographic boundaries of armed conflict, law and policy are intertwined nearly irrevocably, making any clear delineation of the reasoning behind any particular argument difficult to identify. Indeed, seemingly lost amidst the political discourse and policy debates is the fact that “armed conflict” is a legal term of art, one introduced to avoid the political manipulations enabled by the earlier use of the word “war”,4 while “battlefield” is an operational euphemism for the place where armed hostilities are taking place and does not even appear as a defined term in military doctrine.5 And yet “armed conflict” and “battlefield” have become linked and have even begun to morph into a legal conception of the “battlefield” that is not based in LOAC, which does not explicitly provide specific geographic parameters for armed conflict.
Distinguishing between law and policy—and, in the same manner, between law and rhetoric—is therefore essential to understanding how the debate about the geography of armed conflict has developed and is developing. Historically, there has not necessarily been a direct match between the concept of the legal parameters for action during conflict and the actual location of fighting. Oppenheim’s classic treatise explains that the “region of war”, or the area where belligerents are permitted to prepare and execute hostilities, is distinct from the “theater of war”, the location where hostilities are actually taking place.6 This notion—that the area where combat is actually occurring is not necessarily co-extensive with the area where there is authority to engage in combat—has been both lost and, more interestingly, seemingly reversed in some ways in recent years. As Oppenheim’s explanation evinces, parties to a conflict might not engage in hostilities in all places where they could do so in accordance with international law. Strategic and operational choices about where to engage enemy forces must comport with and stay within the boundaries of international law, but do not have to extend out to the full parameters allowable under the law. In the context of international armed conflict, this framework remains the governing paradigm under LOAC: an international armed conflict takes place wherever the forces of the belligerent parties meet, which can be anywhere—including the high seas and possibly outer space—except the territory of neutral parties. The law of neutrality thus defines the relationship between states engaged in an international armed conflict and states not participating and, in traditional conflicts, provides the boundaries for the conduct of hostilities.7
Non-international armed conflicts—most notably many contemporary conflicts pitting states against terrorist groups—significantly challenge traditional frameworks for understanding the parameters of the zone of combat. Simply superimposing the approach applicable in international armed conflict onto conflicts with terrorist groups does not provide any means for creating geographically-driven conceptions of the battlefield. Indeed, although the law of neutrality’s fundamental principles and goals are clear, it traditionally applies only in international armed conflict, when the primary protagonists are states. Even if one were to attempt to use the belligerency-neutrality framework as an analogy, traditional conceptions of belligerency and neutrality do not effectively address the complex spatial and temporal nature of terrorist attacks and states’ responses, leaving open fundamental questions about where the conflict with terrorist groups does and can take place. Thus,
[a]lthough it is uncontested that [LOAC] applies to the conduct of ‘battlefield hostilities’ between the parties to an armed conflict, the territorial parameters of the battlefield and the range of actions that fall within the remit of hostilities are neither defined in conventional [LOAC] nor beyond debate.8
For example, an important preliminary question is whether there can even be one overarching conflict between a state and a transnational armed group, or whether such hostilities are instead better understood as a series of localized conflicts between or among state actors and discrete groups that may or may not be linked in some way by ideology, operational methodology, or other connections.9 Uncertainty about the geographic scope of armed conflict involving transnational armed groups leads to a variety of analytical and implementation challenges with regard to LOAC, human rights law, jus ad bellum, and other relevant legal regimes.10 At a minimum, the hard-to-define parameters of an ongoing armed conflict with terrorist groups raise serious concerns about which areas—and how many areas—are being subsumed within an area of armed conflict and the authority to use lethal force as a first resort. As more and more areas are viewed as part of the “zone of combat”, more innocent civilians will face the consequences of hostilities, whether those are unintended death, injury, or property damage.
In the context of conflict between a state and a transnational armed group, such as the conflict between the United States and al Qaeda over the past decade, both the geographic contours of that conflict and the nature of the interaction between law and policy are quite different. Indeed, in the face of the complex and heretofore unresolved question of whether and how LOAC sets geographic boundaries to a non-international armed conflict, policy and rhetoric have often seemed to stretch beyond—or even operate somewhat out of concert with—the law. At first, for example, the rhetoric of a “war on terror” used for most of the 2000–2010 decade in the United States seemed to lead directly to a conclusion that the world is a global battlefield—that wherever a terrorist operative is found is part of the zone of combat.11 The policy goal was to disable al Qaeda wherever it, or its operatives, were found, which then drove how the law was interpreted and communicated. The presentation of a global war or global battlefield thus eliminated the need to consider or debate where the conflict was taking place, because it was taking place everywhere.
Another consequence was the conflation of law and policy—the policy of “taking the fight” to al Qaeda wherever it could be found quickly translated into a legal conception of a global armed conflict, one that had never been considered before. This conflation of law and policy rears its head regularly in debates over the geography of armed conflict; the debate often seems to be between a formalized legal interpretation (non-international armed conflicts are limited to the territory of the High Contracting Party in which they are occurring) and a policy-driven approach (allowing an enemy operative to “get out of the game” simply by crossing a border is highly illogical and strategically unsound). In essence, until the two sides of this debate begin to converse on the same level, rather than on two different wavelengths of law and policy without recognizing the difference, the debate will continue to go round and round with little effective contribution to the development of the law or policy.
The contrast between this view of the battlefield with respect to targeting and the U.S. characterization of geography with respect to detention is particularly telling. In contrast to the assertion of an extensive “battlefield” for the purposes of targeting al Qaeda and other terrorist operatives in a wide variety of locales around the world, the United States has taken a much more narrow view of the “battlefield” in cases stemming from detention at Guantanamo Bay, Bagram and other detention facilities. U.S. courts have consistently referred to the United States as “outside a zone of combat”,12 “distant from a zone of combat”,13 or not within any “active [or formal] theater of war”,14 even while recognizing the novel geographic nature of the conflict. In Al Maqaleh v. Gates, for example, both the D.C. District Court and the Court of Appeals for the D.C. Circuit distinguished between Afghanistan, “a theater of active military combat”,15 and other areas outside Afghanistan (including the United States), which are described as “far removed from any battlefield”.16 This contrast demonstrates the challenge of mixing law and policy rhetoric—although terms such as “battlefield” or “combat zone” are descriptive and not legal, as noted above, they have taken on a legal context in many situations. Although the contrast between the U.S. assertion in the targeting arena and its characterizations in the detention context demonstrates that these conceptions of geography are policy-driven and case-specific, they nonetheless have spawned an extensive conversation and debate about the geographic boundaries of armed conflict—without the initial step of first examining whether there is even a legal issue regarding the geography of armed conflict.
Other examples of policy masquerading as law followed as well, such as the characterization of detention at Guantanamo as “law of war detention”, or the application of LOAC targeting principles to the use of force in self-defense. With both of these examples, policy decisions were characterized as law and legal analysis, continuing to muddy the parameters of any conversation about the geography or boundaries of conflict. As I have written elsewhere, the so-called “law of war detention” at Guantanamo Bay does not necessary comport with the conception of detention under the law of war, making the legal label a misnomer.17 Nonetheless, labeling the detention of an individual as “law of war detention” suggests that such person was captured in the course of an armed conflict, thus extending the armed conflict to wherever that person was captured.
With regard to the use of force in self-defense, the seemingly principled claim that the United States will follow the LOAC principles of distinction, proportionality and precautions in targeting individuals in self-defense also uses law to erode legal distinctions—between armed conflict (where LOAC applies) and not armed conflict, (where LOAC does not apply)—and to conflate law and policy. In effect, “the legal logic through which the battlespace is extended beyond the declared zone of combat in Afghanistan [or other areas of conflict] is itself infinitely extendible”.18 LOAC does not apply to a use of force outside of an armed conflict, by definition, because there is no armed conflict. Pronouncing that LOAC targeting principles apply—particularly when presented in a positive light—therefore extends armed conflict rules to situations that are not armed conflict and thus appears to extend the spatial arena of the armed conflict as a result as well. The same problem of a debate on two separate wavelengths appears here as a result: one may contest the U.S. authority to use force in self-defense against an individual or group posing a threat or launching attacks; another counters by asserting that the U.S. is using force in compliance with LOAC’s targeting principles and therefore the use of force is legal. The latter argument does not actually answer the former, but it has been offered a sufficient number of times that it has begun to change the discourse by conflating legal regimes and essentially morphing the conversation into one about boundaries and geography rather than authority, legal parameters and obligation.
11.3 Authority versus Obligation
LOAC is a law of both authority and obligation. This duality is manifested primarily in the delicate balance between military necessity and humanity that lies at the heart of LOAC.19 Military necessity “justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible”.20 Accordingly, military necessity provides the normative basis for employing those measures necessary to bring an enemy to submission, including the application of deadly combat power. Military necessity is therefore a principle of authority: the authority to use force to accomplish strategic and national security goals.21 The principle of humanity—also referred to as the principle of unnecessary suffering—aims to minimize suffering in armed conflict. To that end, the infliction of suffering or destruction not necessary for legitimate military purposes is forbidden. The principle of humanity thus provides an essential counterbalance to the authority to employ measures to defeat an enemy in armed conflict. In practice, humanity serves as the foundation for two critical limits on the authority to inflict suffering in the context of armed conflict: the prohibition against subjecting an opponent to superfluous injury or unnecessary suffering; and the obligation to ensure the humane treatment of any person (even a captured enemy) who is no longer or never was actively participating in armed hostilities.22
Effective application of and adherence to LOAC demands attention to both the authority and the obligation aspects of the law. LOAC authorizes the use of lethal force as first resort against enemy persons and objects within the parameters of the armed conflict.23 It also provides, based on treaty provisions and the fundamental principle of military necessity, for the detention of enemy fighters and civilians posing imperative security risks.24 Along with these authorities, however, come obligations—such as the obligation to use force in accordance with the principles of distinction and proportionality,25 the obligation to protect civilians and those no longer fighting from the ravages of war to the extent possible, and the obligation to treat all persons humanely. Thus, while a soldier may lawfully target an enemy soldier during armed conflict, that same soldier must protect that same enemy individual once he or she is hors de combat due to wounds, sickness or detention. A state has the authority to detain enemy personnel without charge until the end of the hostilities, but it has a corresponding obligation to ensure that such detained personnel are held far from active hostilities and provided with appropriate food, shelter and medical care, among other obligations.26
When these two components of authority and obligation fall out of sync, significant shortcomings in LOAC’s effectiveness are evident. A prime—and recent—example was the Bush Administration’s assertion of the authority inherent in LOAC to target and detain enemy operatives while denying any commensurate obligation from LOAC with regard to the nature and conditions of that detention. Seeking to use the authority LOAC grants without also assuming the obligations LOAC mandates created a fundamental imbalance in the application of the law and the protection of persons and had an equally detrimental effect on the perception of the U.S. as acting extra-legally in its conflict with al Qaeda and pursuit of other counterterrorism objectives.27
The current debates about the geographic parameters of a conflict between a state and a transnational terrorist group are revisiting this disconnect between the authority and obligation prongs of LOAC. Almost without exception, every discussion or official speech about the boundaries of conflict focuses on where the U.S. (or another state, potentially) can or cannot use force against enemy operatives. That is, the debate is driven entirely by questions regarding the authority LOAC provides to use deadly combat power against a member of the opposing force: when, where and under what circumstances can force be used, and against whom (i.e., which persons fall into the category of the enemy force). This single-minded focus holds true not only for those who assert broad parameters for a transnational non-international armed conflict, but also—interestingly—for those who argue that the geographic parameters of conflict must be narrowly conceived. Everyone, it seems, from the Obama Administration28 to the United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions,29