Wednesday, July 30, 2008

When is a War a War?

One of the first things you learn about the Geneva Conventions is that they only apply in situations of armed conflict. The problem is that "armed conflict" isn't really defined in treaty law, and this is one of the reasons that some have proposed updating or clarifying the rules of war to take account of new types of war.

On this point, it will be important to keep an eye on the Salim Hamdan trial in Guantanamo, Cuba and third parties' reactions to it. Hamdan's prosecution as a "war criminal" will depend on the prosecution arguing al-Qaeda and the US were engaged in an armed conflict during the period of his active involvement with bin Laden. Human Rights First reports on opposing views presented at Hamdan's trial:. The prosecution argues that the laws of war applied as soon as al-Qaeda declared war on the United States, as early as 1996, therefore Hamdan's work with al-Qaeda prior to 9/11 constitutes war crimes:

"On Monday, the prosecution debuted “The al Qaeda Plan” – a made-to-order compilation of al Qaeda propaganda videos found on the Internet and narrated by the government’s counterterrorism expert, Evan Kohlmann. The movie was made, among other reasons, in order to prove the government’s theory of when the armed conflict with al Qaeda began. The seven-part, ninety-minute video, which the government apparently plans to use in many Guantánamo prosecutions, narrates the story of the Afghan jihad against the Soviets (although it excludes any reference to U.S. support of the jihad against the Soviets), bin Laden’s activities in Afghanistan and Sudan, the USS Cole bombing, the Kenya Embassy bombings, and the September 11 attacks."
The defense argues that the start of an "armed conflict" depends on the response by a government - in short, that the Geneva Conventions would apply only after the US declared war on al-Qaeda in return, on September 12, 2001.
"Hostile acts, including terrorist attacks that take place in a non-international armed conflict (i.e., a conflict not involving two or more nations), do not automatically trigger application of the laws of war. Defense expert Geoffrey Corn, a retired Army judge advocate, former Pentagon law of war expert and now a law professor, testified that, under the laws of war, one of the critical factors that determine whether an armed conflict has begun is the response by a government to a particular attack... Corn testified that the United States’ reaction in September-October 2001 to the 9/11 attacks triggered the application of a law of war framework, and the United States thus was in armed conflict at that point with the Taliban and al Qaeda in Afghanistan."
Both these lines of argument are a distraction, I think, since they suggest that a) the "war on terror" is definitely an armed conflict, we just don't know when it started (but this is actually a topic of debate among international lawyers); and that b) if an armed conflict is occuring, Hamdan must be a war criminal. Not at all clear to me if this makes sense - Hitler's driver wasn't prosecuted at Nuremberg, he was called as a witness.

The real irony is that a government who has spent years trying to pretend the laws of war don't apply to this conflict is now trying to use them against its enemies. Perhaps the real goal is to confuse people entirely about what the laws of war are.


mark said...

Hi D.

A "state of armed conflict" has not previously, to my knowledge, required formal declaration by a state in order to exist under international law. A good thing because most wars these days are never formally declared or involve non-state actors.

The defense argument is very clever (if ahistorical) and good for their client but is to my mind an exceedingly bad idea as a legal standard. It would amount to a "free first shot" doctrine. The incentive then is to make your sneak attack an overwhelming one- say, with nuclear weapons.

Not sure we want to encourage that behavior. :)

Diodotus said...

They're not arguing that a formal declaration is necessary, but rather a military response (as opposed to a law enforcement response). It does beg the question of whether a first strike that would violate the laws of war if a war were already happening would still be a war crime if, subsequently, the state that's hit first doesn't actually fight back.

But, I think the concept of crimes against humanity (which applies even in the absence of armed conflict) would cover that one.

mark said...

"But, I think the concept of crimes against humanity (which applies even in the absence of armed conflict) would cover that one."

Cold comfort for those on the receiving end, yes?

I think the argument will get bounced if the judges have a grain of sense. The war starts when the triggers are pulled, not when the guys being shot at fire back. Using the defense's logic, our declaration of war began American participation in WWII, not Pearl Harbor, and Poland, not the Third Reich, is responsible for starting WWII.

Bush & co. screwed the pooch on war crimes trials. I'd have simply tried al Qaida members for fighting out of uniform and for targeting civilians, hanged the ringleaders, imprisoned the middle-management types and paroled the semi-literate Pushtun tribesmen to go home to be shepherds or whatnot.

Diodotus said...

Mark, I'm not sure... I think that your example proves the opposite point. Japan effectively engaged in hostilities against the US, but we weren't at war until we decided to go to war to defend ourselves. Technically speaking. But this is not a question of "who started it." It's just a question of whether the laws of war apply.

I'm not saying you're wrong; there's no conventional wisdom here, actually, which is what makes these legal arguments so interesting. But conceptually, I'm not so unconvinced by the defense's case. For there to be an "armed conflict" it would seem that two sides would need to be engaging in it. To some extent, war is what states make of it.

Diodotus said...
This comment has been removed by the author.
Cleitus the Black said...

What a great idea. Try and hang people for fighting out of uniform and targeting civilians.

Let us invoke the precedent of the Restoration, when the body of Oliver Cromwell was disenterred, hung in chains, and beheaded.

We can apply this punishment to all known French partisans who fought (out of uniform, those scoundrels!) against their nattily-attired invaders in World War II - with a bit of luck, we may even find a few ancient, living specimens who can dance the Newgate jig for their crimes.

And we can apply the same treatment to the bodies of Truman and Churchill for their air wars of terror against civilian population centers, and subsequent use of WMD - again, not against the fleets and armies of their opponents, but against civilians.

As for your semi-literate Pushtun tribesmen, last time I checked, they were giving the latest imperial invader in the region the same run for its money that they've previously given the empires of Alexander, Queen Victoria, and the Supreme Soviet.

Not bad for shepherds and whatnot.

"; urchinTracker();