The lack of conformity to the rules of war by one party, regardless of their legitimacy, does not relieve the obligations of States to conduct warfare against such entities in accordance with the laws of war.
All’s fair in love and war. Setting the issue of love aside for another article perhaps, this enigmatic phrase can have two meanings with reference to the conduct of war. Either that there is a ‘fairness’ between belligerents; or conversely, that any means of waging war are ‘fair’. In the first case, ‘fairness’ may be read to mean ‘equality’, at least with regard to the means and methods belligerents may use. In the second; ‘fair’ may be read to mean ‘permitted’. In so far as the first interpretation is concerned, it is fantasy to believe that there has ever been, at any time throughout history, any fairness or equality in the conduct of warfare. Yet the codification of various treaties of International Humanitarian Law , often referred to as the ‘laws of war’, has created rules for the conduct of international hostilities – regardless of whether they are often overlooked, sometimes ignored and seldom upheld – in the hope of establishing at least a notion of ‘fairness’ based on a mutual interest in maintaining mutual obligations.
As if in some grotesque game, the rules ostensibly exist to create some degree of ‘fairness’ such that each participant may have an equal chance of victory – a victory that will only be won through courage, skill, strength, good fortune and other such noble virtues. The rules also establish that treachery and foul play are the vices of the barbaric, the uncivilised, the undisciplined. Such rules have also developed to protect those around whom the storm of war rages – specifically civilians. Thus through the codification of these laws, and their near universal acceptance by States, the latter meaning of the phrase above has largely been subsumed by the doctrine of humanitarianism.
Yet, this apparent civility in the most uncivilised of human endeavours is increasingly only useful in regulating what we might term ‘conventional’ warfare between States. In the contemporary ‘War on Terror’, on the other hand, it would certainly seem that all is far from fair in love and war. The attacks on the United States in September 2001 have become the exemplar of ‘Asymmetric Warfare’ and most strikingly demonstrated the flagrant disregard some groups (Non-State Entities) have for the rules of war.
As all warfare throughout history has been asymmetric to a greater or lesser extent, this ‘new’ ‘Asymmetric Warfare’ (note the capitals to enforce the semantics) has come to be defined as otherwise militarily inferior forces seeking to strike at more powerful adversaries by targeting and exploiting weaknesses of the otherwise superior power, often by resort to ‘unconventional’ and/or morally questionable means. It is the story, or at least the setting, of David’s confrontation with Goliath. Although asymmetric warfare is manifest in many other contemporary forms of conflict such as counter-insurgency, hostage situations, guerrilla warfare, urban warfare and even peace-support operations, we will concentrate for the purposes of this discussion solely on the asymmetry of the ‘War on Terror’.
It should also be noted from the outset, that this paper is exclusively concerned with evaluating the phenomenon of Asymmetric Warfare from the perspective of International Humanitarian Law. Many articles have been written on this subject from the point of view of military strategy, yet this article purposefully avoids such issues. This is primarily because of the need, in examining the legal issues, to appreciate that any asymmetry in warfare can be viewed from the points of view of both the militarily superior, and militarily inferior belligerent. It might therefore be hoped that the principles discussed could (or indeed, should) inform the strategic perspective. Though it may not be popular, or even ‘fair’, to talk of applying humanitarianism equally to States and ‘terrorists’, this exemplifies the point of the article – the necessity of the universal application of humanitarianism is the key to its survival and its respect.
It is obvious to recall that ‘terrorist’ attacks certainly occurred throughout history prior to the flying of civilian airliners into civilian buildings in New York and Washington in September 2001. Likewise, ‘conventional’ conflicts continue to erupt and endure elsewhere in the world alongside, and sometimes nurturing, ‘terrorism’. Yet the ‘War on Terror’ has demonstrated the inadequacies of applying accepted rules of International Humanitarian Law to such an asymmetric conflict. Indeed, many of the rules crafted over centuries and negotiated by diplomats and statesmen are very difficult to apply to ‘Non-State Entities’ such as Al-Qaeda.
In the cases of the most familiar tactics assumed to have been employed by Al-Qaeda in targeting civilians, some tactics may be categorically illegal from the point of view of international law . However, States have either positively consented to be bound by the laws of war, or are nonetheless bound to customary principles. Does this mean that, because one party to the conflict refuses to play fair, that the other may similarly refuse? How can the stronger party adapt its strategies and offensive capabilities to defeat such an asymmetric adversary, yet still be within the rules of the game?
The fundamental problem in applying the ‘laws of war’ in the ‘War on Terror’ is that no ‘Non-State Entity’ has ever consented to be bound by those rules. Following the logic of positivism encapsulated in the principle of pacta sunt servanda , sovereign States are bound only by those principles to which they have consented to be bound. Indeed, the provisions of International Law were not even designed to apply to any entity other than sovereign States. Thus, International Law, by definition, exists only between States. Even customary law cannot bind ‘Non-State Entities’ as it too is a part of the positivist, State-centric system. To assert that some fundamental rules must be adhered to by all, is to attempt to hammer the square peg of reality into the round hole of idealism. The only constraints, therefore on a Non-State Entity’s waging of war are their own ethical and moral scruples which may, alas, be demonstrably lacking.
Though the ‘War on Terror’ would seem to be an international (or even ‘global’) conflict, this is only in terms of the geographical theatre, not the strict legal definition. In some cases, indeed, it may take the form of a non-international or ‘internal’ armed conflict. How, therefore, can international law possibly be applied to ‘Non-State Entities’, and why do we expect them to be bound? Although the laws of armed conflict themselves suggest that they must be adhered to by both States and individuals , there is no actual reason, in reality, why they should be observed by those who have not consented to be bound.
It may also be prudent to note, at this juncture, that Osama Bin Laden effectively declared war on the United States and its allies in 1996, as well as stating the objectives and targets of Al Qaeda’s campaign. Although Bin Laden’s declaration of war is legally facile and ineffectual based on the logic that only States are empowered to declare war and peace, nobody would deny Al-Qaeda’s ability and determination to wage its war. No matter our acceptance of or ambiguity towards the notion of a ‘War on Terror’, it is a reality – the relatives of victims of the New York, Washington, Bali, Riyadh and Madrid attacks, together with the people of Afghanistan and those held without trial or charge in Guantanamo Bay (and in the UK) will testify to that.
So the reality of the conflict is certainly undeniable, and increasingly inescapable. Surely we must, therefore, have some rules to govern how the conflict is conducted, if only from the perspective of Goliath. In this respect, it must be recalled that the laws governing the right to resort to force (the jus ad bellum) and the laws governing the conduct of conflict (the jus in bello) are, and must always be, mutually exclusive. Whatever the circumstances of the former, this should have no bearing on the latter, fundamental provisions of which must be applied by States in all circumstances. The asymmetrical tactics of the weaker belligerent, ‘David’, will obviously be very different to those of the more powerful, ‘Goliath’. Maybe the analogy of David and Goliath should be dispensed with here as I would not want to judge the morality of either party, and not least because, of course, in this conflict, we are rather hoping that Goliath might win.
A fundamental principle in ensuring the adherence of States to humanitarian law is reciprocity. In ‘conventional’ international conflicts, illegal acts committed by one State may permit another State to resort to reprisals in an attempt to coerce cessation of the illegal tactics by the offending party. Yet the scope to which parties to a conflict can resort to reprisals has been severely restricted due to the principle of humanitarianism. An ‘eye for an eye’ is certainly not an acceptable maxim in modern warfare. Neither should it therefore be in the ‘War on Terror’.
Nobody is suggesting that the coalition fighting the ‘War on Terror’ should target civilian areas in Afghanistan (or ‘State-sponsors of terrorism’?) as a reprisal for the attack on the World Trade Centre . However, such examples as the assertion that combatants apprehended in the ‘War on Terror’ are not ‘combatants’ in the sense of the definitions and legal privileges provided by the laws of war, demonstrates a concerning shift towards creating an ad hoc legal regime covering the ‘War on Terror’. Indeed, as far as the situation in Guantanamo Bay is concerned, it appears that a legal regime of any sort is lacking. What is clear in law is the fact that the failure of Non-State Entities to adhere to, or even to flagrantly ignore, these rules does not relieve States of their obligations to behave in a civilised manner. Rather, it must be hoped that States will use their own asymmetric advantages, yet remain within the rules, in defeating their adversaries.
In summary, both the methods employed by ‘terrorists’, as well as by States have proven to be particularly problematic for scholars of International Humanitarian Law in providing a legal conceptualisation for this type of ‘Asymmetric Warfare’. It appears that the increasing ‘asymmetry’ of contemporary warfare, exemplified by the ‘War on Terror’, has highlighted a discordance in attempting to apply International Humanitarian Law to this type of conflict. Specifically, it is not clear that Non-State Entities are obligated to adhere to the international laws of armed conflict as are States. This should not be wholly surprising as there is no reason why quasi-anarchic groups lacking all of the trappings of Statehood should be assumed to be part of the ‘international community’.
Yet the lack of conformity to the rules of war by one party, regardless of their legitimacy, does not relieve the obligations of States to conduct warfare against such entities in accordance with the laws of war. In waging such a war, both at the conceptual and operational levels, fundamental principles can be distilled from the numerous articles and provisions of statutory and customary law to provide essential principles of protection, distinction and proportionality applicable in all circumstances. Though possibly anachronistic, these rules are preferable to no rules at all – even if they are only adhered to by one side of a conflict. For States to assert that all means of warfare would be fair in such conflicts is a retrogressive step towards the uncivilised barbarity of the terrorists themselves.
Owen Gibbons, RUSI