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.

Cosmetic Surgery for the War Powers Act?

The report of the National War Powers Commission, co-chaired by former Secretaries of State Baker and Christopher, has been released. The premise of the report is that America must "describe a constructive and practical way in which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in significant armed conflict."

The report further declares that "...the War Powers Resolution of 1973 does not provide a solution because it is at least in part unconstitutional and in any event has not worked as intended."

Baker and Christopher's solution is a "War Powers Consultation Act", requiring the President to consult with Congress before the country engages in "significant armed conflict", which is defined as combat operations lasting, or expected to last more than one week.

But how well would the proposed act limit the ability of a rogue Administration from waging war without Congressional oversight - from the well-known cases of Iraq and Afghanistan, to the arguably more successful (but nearly unheard of) Operation Enduring Freedom - Philippines that has resulted in 15 American deaths and is bound to elicit comparisons with the early days of U.S. "advisors" in Vietnam.

Certain activities, including the defense of U.S. embassies, are specifically excluded - however, the further exclusion of "covert operations" and "reprisals against terrorist groups" gives some fairly broad loopholes to those who might wish to engage in prolonged combat operations without Congressional scrutiny.

Worth reading in its entirety, and food for thought.