by Jessica Poarch
In his article published in Harvard Law School’s National Security Journal, Charles Kels argues that the debate surrounding the application of the LOAC to the war against al-Qaeda and targeted killings often crosses the paradigm boundary between jus ad bellum (the law governing the use of force) and jus in bello (the laws in war) to the detriment of LOAC’s fundamental aim, the protection of humanity.
He concludes, “LOAC is apolitical. Adherence to it does not legitimize an unlawful resort to force, just as its violation—unless systematic—does not automatically render one’s cause unjust. The answer for those who object to U.S. targeted killing and indefinite detention is not to apply a peace paradigm that would invalidate LOAC and undercut the belligerent immunity of soldiers, but to direct their arguments to the political leadership regarding the decision to use force in the first place. Attacking LOAC for its perceived leniency and demanding the “pristine purity” of HRL in military operations is actually quite dangerous and counterproductive from a humanitarian perspective, because there remains the distinct possibility that the alternative to LOAC is not HRL but “lawlessness.” While there are certainly examples of armies that have acquitted themselves quite well in law enforcement roles—and while most nations do not subscribe to the strict U.S. delineation between military and police forces—the vast bulk of history indicates that in the context of armed hostilities, LOAC is by far the best case scenario, not the worst.”
In my opinion the article is worth reading. For starters, it provides a good reminder of the fundamental debate surrounding the application of the LOAC to America’s use of force against terrorist organizations. The author spends sometime at the beginning of the article detailing the history of the Geneva Conventions and the types of armed conflicts. He then outlines the current debate and the places where they trip the line between the two paradigms of International Law. Most importantly, however, this article adds an outlook not often noted in the LOAC debates – the importance of LOAC to the military.