Content provided in partnership with

Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

<< Page 1 Continued from page 5. Previous | Next

In accordance with traditional jus in bello norms, the United States considers both Al-Qaeda and the Taliban operatives to be unprivileged combatants and has properly denied them POW status. Unfortunately, this decision has opened a rift with America's European allies, many of which act as if Protocol I applies to the United States, even without its consent. Some in Europe have actually questioned their governments' right to transfer individual Al-Qaeda and Taliban members to the United States, and British units operating in Afghanistan in 2001-02 evidently feared capturing Osama bin Laden, since they might not have been able to turn him over to American forces. Indeed, this problem persists in Iraq, and is magnified by another quandary--the British, because of the combination of domestic legislation, Protocol I strictures and EU obligations, are apparently unable to utilize any form of military tribunals to prosecute and punish either unlawful Iraqi combatants or those lawful Iraqi combatants that have committed war crimes. This situation has greatly complicated the Coalition's ability to deter attacks on its forces in Iraq.

Most Popular Articles in Business: Research and Markets : Tesco Plc - SWOT Framework Analysis; Do Us a Flavor - Ben & Jerry's Issues a Call for Euphoric New Flavors; eBay made easy: ready to start an eBay business? These 5 simple steps will ...; Katrina's lawsuit surge: a legal battle to force insurers to pay for flood ...; Wal-Mart's newest distribution center opened last month near the southwest ...; More »

While the comparatively harsh treatment accorded to unprivileged combatants by the jus in bello may jar "progressive" sensitivities, it does not reflect either a shortage of compassion by the United States or some formalistic American veneration of the old pedantic legal paradigm. Rather, this approach constitutes one of the first major humanitarian advances in the modern laws of war and is therefore, well worth upholding. It was, in fact, the centralization of the right to make war in the state, rather than in powerful aristocrats or self-sustaining condottieri bands, that brought civil peace and order to Europe, marking the transition from a medieval to a modern world. This centralization also fostered the conditions for the establishment of regular, disciplined armies capable of respecting the laws of war, and inclined to do so. At the most fundamental level, the state sanction requirement reflects the distinction--between force used for public ends and violence used for private purposes--that constitutes the moral core of the traditional laws of war. The many governments and NGOs that claim to be committed to the development of "humanitarian" jus in bello norms have in truth accepted the elimination of these critical distinctions between privileged and unprivileged combatants, even though maintaining the difference between public and private uses of violence is essential if war is to retain its moral context, or, as George Weigel notes, be "something that can be used for good or evil, depending on who is using it."

To be sure, many who have promoted a "lawful" status for irregular combatants have done so in an effort to bring them "within the system", in the hope that, once privileged, guerrillas would behave better in their own operations. It has not, unfortunately, worked out that way. Since Protocol I was opened for signature in 1977, there has been a worldwide explosion in the use of terror tactics with ever-increasing ferocity and deliberate attacks on civilians. Indeed, today, the gravest threat to American security comes not from groups that, if privileged, would happily comply with the laws of war, but from entities that simply reject the entire system. Terrorist organizations such as Al-Qaeda and the Taliban have repudiated the whole notion of law in war as something alien to their own theological imperatives. Indeed, things have reached a point where the use of irregular attacks purposefully directed at civilians in the form of suicide bombers has been practically, if not formally, accepted by virtually all of the Arab countries, by much of the Third World and by many in Europe as a legitimate form of Palestinian "resistance." For this reason, continuing to draw sharp legal distinctions between lawful and unlawful forms of combat in an effort to delegitimize and stigmatize unprivileged combatants is an indispensable component of any successful counter-terrorism strategy.

Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

Find Research Guides for:

Find Featured Titles for: Reference

Most Popular Articles in Business

Most Popular Publications in Business