by Jessica Poarch Hernandez
The OUPBlog recently posted a piece by Sascha-Dominik Bachmann entitled Drone Killings. Adapted from an article published in the Journal of Conflict and Security Law, this post argues that the use of drone technology “has direct implications for the morality of armed conflict and combat” because it puts too much distance between the shooter and the target. He then goes on to argue that the U.S. Government should reevaluate its use of Drone Technology and concern itself more with the broad issue of collateral damage.
Read the post here.
by Jessica Poarch
Last July the ICRC ruled that Syria was in a civil war bringing the conflict under the LOAC.* On 13 May, IRIN, a humanitarian news source sponsored by the UN, published two stories looking at how the Syrian rebels view the Laws of War. The first story, “Syrian rebels on IHL: In their own words,” is a collection of statements by different sections of the rebel fighters on their views on the rules applicable to the conflict. The statements are a telling collection of varying views that clearly exhibit the lack of uniformity in leadership and mission of the rebel fighters. The opinions range from that of a former Colonel of the Syrian Army now commanding a unit of the Free Syrian Army who has been educated on the principles of LOAC and feels that respecting the law is what separates the rebels from the Syrian government to a member of an Islamist group who only subscribes to the Shariah and fain no respect for international laws such as the LOAC.
The second story, “Sometimes you cannot apply the rules – Syrian rebels and IHL” is an analysis of the statements made by the rebels in the larger context of the rules governing the rebel fighters. This article uses the statements of the fighters regarding their views of the LOAC to show which sources of IHL rules they (the rebels) respect–International Law, in some cases, but mostly Islamic law. The article then goes on to explain the systemic issues faced by the rebel leaders in getting their troops to adhere to the rules.
The general conclusion that can be gleaned from these two articles is that there is no clear, agreed upon set of rules being followed by the rebel forces. Although there are groups who are attempting to educate fighters on the Laws of War, the lack of unified leadership is making the success of the process slow.
* For more detail see my July 18, 2012 post, HERE.
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.
by Jessica Poarch
Have you ever wondered how to tell when a riot or internal dispute becomes a non-international armed conflict falling under the regulation of Common Article 3 of the Geneva Conventions? If the answer is yes, I highly recommend reading “Losing the Forest for the Trees: Syria, Law and the Imperatives of Conflict Recognition” by Laurie R. Blank & Geoffrey S. Corn. This article can be found on Professor Corns’ SSRN page to which the title above is hyper-linked.
In the Article, while arguing for a new approach to Conflict Classification, the authors provide detailed analysis on the history, purpose, and current test used to classify conflicts as well as an explanation as to why proper classifications of conflict are vital to the future of the LOAC.
by Jessica Poarch
Today the Economist reported that: “August was certainly the bloodiest month so far [in the Syrian Conflict]: as many as 4,000 may have died, 3,000 of them civilians and rebels, the rest soldiers or pro-regime militiamen. The death toll now often tops 250 a day. The opposition reckons that 23,000-plus Syrians have been killed since protests began in March last year; the UN, more conservatively, puts the toll at 17,000.” (Read the rest of the article here).
The persistent and growing bloodshed raise questions about whether or not the International Community is doing enough to support the rebel force or to bring an end to the conflict. In the same article sighted above, the Economist notes that foreign governments are not ready for direct intervention into this Conflict, but should they be? For additional information on the debate check out this mornings Daine Rehm Show entitled “The Deepening Conflict In Syria“.
For me, as a student of LOAC, this is a reminder that there is no international police force to impose the LOAC rules on nations and people at war; a reminder that, as Gary Solis wrote in his book*, “At the best of times, LOAC is never more then imperfectly observed, and at the worst of times is very poorly, observed indeed. In fact, one must admit that LOAC really does not work well at all. However, … we should perhaps not so much complain that the law of war does not work well, as marvel that it works at all.”
[*] Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, p 8.
by Jessica Poarch
As discussed in my 18 July 2012 post, the ICRC ruled that the conflict in Syria is a Civil War and therefore the LOAC/ IHL applies.
If you would like more detail about what this means check out this Q & A page posted by Human Right Watch.