Revising the Laws of War to Account for Terrorism:
The Case Against Updating the Geneva Conventions, On the Ground That Changes Are Likely Only to Damage Human Rights

With respect to both al Qaeda and Iraq, the Bush Administration claims that U.S. forces have scrupulously observed the laws of war and will continue to do so. Indeed, according to Charles Allen, a senior Department of Defense lawyer I recently interviewed, "The United States has probably the strongest law-of-war program in the world." But assurances like this gloss over the fact that there is, to say the least, a good deal of controversy about how the laws of war (also called "international humanitarian law") apply to armed conflict in today's world.

Many have charged that in its campaign against terrorism, the Administration has not observed, but flouted, the laws of war. And even in more conventional wars, the U.S. military interprets the rules in a way that allows it to take actions - for example, in the kind of targets it chooses to attack - that others consider prohibited by the laws of war.

Whatever your views on the merits of U.S. military policy, there is no doubt that the existing body of international law has gaps and ambiguities that have been exposed - or highlighted - by changes in the nature of war. In turn, those ambiguities have allowed the Bush Administration to define legal terms in any way it sees fit, to its own maximum advantage - treating terrorists as warriors, while denying them the legal rights that enemy soldiers are supposed to enjoy.

The laws of war were codified in the Geneva Conventions of 1949, and the Additional Protocols of 1977. But of course, the world has changed dramatically since then. That leads to a crucial question: Should international humanitarian law be updated to take account of these developments and if so, how?

An Initiative to Re-Evaluate the Geneva Conventions

The question has been much discussed since September 11, and the government of Switzerland - which acts as custodian of the Geneva Conventions - recently launched a public initiative to look into the subject. Last week, this process got underway with an "informal high-level expert meeting" at Harvard University.

The meeting brought together representatives of several countries, the European Union, the International Committee of the Red Cross, and various prominent scholars. Its objective was to set an agenda for further research about the "reaffirmation and development of international humanitarian law."

It is appealing to think that the laws of war could be revised to give them greater precision in relation to contemporary armed conflict. However, there are good reasons for thinking that it will not be easy to frame new rules that can both address the most controversial aspects of modern warfare, and that will be able to gain broad international support. By their nature, the kinds of questions that will come up in any attempt to revise the Geneva Conventions will deeply divide the nations that will weigh in on them.

Moreover, there is a danger that reopening the debate will allow groups to push for other changes in the law, such as allowing the military to attack some civilian targets, that could set back humanitarian values. The question of when, if ever, civilians can legitimately be attacked, and the related question of how much care must be taken to avoid civilian casualties, are likely to be intensely controversial.

International Law Does Not Recognize "War" With an Entity Like Al Qaeda

Broadly speaking, the framework of existing international law envisages two kinds of war: international armed conflicts, between two or more countries, and civil wars, occurring within the territory of a single state.

Thus, the possibility of armed conflict between a state and a transnational organization without a recognized geographical base is never acknowledged - either in the Geneva Conventions, or in the Additional Protocols. (The Conventions do create the category of "unlawful combatants," but do not address the character of a conflict between a force composed entirely of such combatants, and a country or alliance of countries.)

Nevertheless the Bush Administration has unhesitatingly described its campaign against al-Qaeda as a "war." Thus, it claims the laws of war apply: not the provisions of the Geneva Conventions themselves (since they don't cover this kind of conflict) but the underlying principles that inform the Conventions, and are seen as customary law.

Claiming the Laws of War Apply to Al Qaeda Had Led To Bad Consequences

What does that mean, specifically? For one thing, the U.S. claims the right to shoot enemy combatants engaged in active hostilities. That right has in turn, be interpreted by the U.S. to amount to a license for U.S. forces to shoot anyone alleged to be a terrorist, anywhere in the world.

That's a particular problem because terrorists are far less easy to pick out than soldiers, who must (to qualify as such under the Geneva conventions) be recognizable as soldiers by their uniform, flag and so on.

Meanwhile, the U.S. also claims the right to detain enemy captives until the end of hostilities. The problem with this, of course, is that where the "war on terrorism" is concerned, there seems to be no end in sight. Moreover, the Administration has arrogated the definition of who counts as an enemy solely to itself - including many people picked up far from any battlefield, who are being held incommunicado with no chance to assert their innocence before an independent judge.

The U.S. also claims to have shouldered the obligation not to harm enemy fighters once they have been detained, or to punish them without due process. But it resists the argument that either Taliban or al Qaeda detainees qualify for the status of prisoners of war.

The strangeness of the U.S. position, under current international law, thus is plain. It claims that the United States is at war with al Qaeda, giving U.S. soldiers the freedom to attack al Qaeda fighters anywhere it finds them. Yet it claims that al Qaeda members are as a collective group and by definition "unlawful combatants," with no right to use force against members of the U.S. military.

Granted, al Qaeda is a horrific organization. But these legal positions still seem extreme and unconvincing.

Can These Problems With the Law of War Be Solved? Not Easily.

That leads to the key question: What, then, should be done?

One solution would be to reaffirm the traditional legal framework, restricting the notion of "armed conflict" to cases clearly acknowledged in the written law. That would mean that the U.S.'s campaign against al Qaeda is not a war, but the pursuit of a group of international criminals. Accordingly, the U.S. would be limited, in fighting al Qaeda, to the tools of its (and its allies') law-enforcement structure.

War could occur, and the laws of war would only be triggered, when the U.S. took military action against a state, such as Afghanistan under the Taliban, that was harbouring terrorists. This type of country-versus-country conflict would count as an international war, and the laws of war would thus apply.

Of course, the U.S. would never subscribe to these positions, believing that al-Qaeda presents too serious a threat to the United States to be treated this way. And this argument cannot be completely dismissed.

The scale and scope of the September 11 attacks, and the international nature of its organization, put al Qaeda on a different level from terrorist groups of the past. It is reasonable to think that if al Qaeda managed to obtain a biological or chemical weapon, or a radioactive "dirty bomb" it could launch an attack that would dwarf September 11 in the havoc and destruction it caused.

A Possible Revision of the Geneva Conventions

That may lead one to think that the law should be revised precisely to take account of organizations that, like al Qaeda, operate in a netherworld between crime and war. One option would be to go the whole hog, and categorize the campaign against al Qaeda as a new kind of armed conflict. That would have the advantage of setting clear standards that are now absent: rules governing when terrorists can be targeted, what counts as a battlefield in a war against terrorists, or when such a conflict should be said to end.

However, any new treaty to cover transnational wars against non-state organizations like al Qaeda would run up against a very tricky problem: whether terrorist fighters should be given the status of legitimate soldiers.

The U.S., and many other countries would certainly balk at the idea. Treating al Qaeda members as soldiers would give them soldiers' rights, and make their operation seem more legitimate. They could no longer be prosecuted for attacks directed at U.S. military targets, such as the Pentagon, though attacks on non-military targets would still count as war crimes. Al Qaeda fighters detained during the course of the war would be entitled to the full privileges of prisoner of war status.

That option seems unrealistic and unappealing. The alternative would be to formulate new rules for wars against terrorists that preserved the idea - now pushed by the United States - that they are "unlawful combatants." This would effectively put into formal law the unbalanced regime that the Bush administration has proclaimed. States would be able to target terrorists as enemy fighters (at least under certain specified circumstances), or detain them without the benefit of prisoner of war status until the end of the conflict. Terrorists would not have the right to use force - even against military targets - and could be prosecuted for shooting opposing soldiers.

As discussed before, such a legal framework seems lop-sided, even in the case of terrorists for whom few would feel sympathy. But a bigger objection to the idea of a new convention along these lines lies in the difficulty of defining the terrorists to whom it would apply.

As Joanne Mariner discussed in an earlier column for this site, the term "terrorist" is extraordinarily hard to define, for the cliche that one man's terrorist is another's freedom fighter has some truth in it. States could use such a convention as a charter for assassinating or detaining members of rebel groups with a genuine political grievance - or even opposition movements.

Why Revisions Could Be Extremely Harmful to Terrorist Suspects

Even if a solution could be found to this problem (for instance, by giving the United Nations Security Council the power to determine when a terrorist threat is genuine and rises to the level of a war) another huge problem remains. By their nature, terrorists are difficult to distinguish from civilians, and the effort to make this distinction would often take place in fraught or warlike circumstances.

Who is a terrorist fighter, and who is an ordinary civilian? This crucial question would often be hard to answer, and would be answered by fiat, or by a bullet. Look, for instances, at the U.S. government's insistence on protecting its ability to decide unilaterally that even U.S. citizens such as Yaser Hamdi and Jose Padilla are not civilians.

The result would be a massive increase in the vulnerability of civilians during fighting. That would cut against the bedrock principles of international humanitarian law, the protection of people who are not involved in hostilities. States have little incentive to defend that principle when the civilians at issue are a small set of individuals suspected of terrorism. Humanitarian law should not make it easier for them to ignore it.

The Case for Not Updating The Geneva Conventions

For all these reasons, it is not clear that there is anything to be gained in the idea of updating the Geneva Conventions for the age of terrorism. Indeed, such an update may actually be harmful.

So what constructive steps are available to remedy current abuses? Here are a few measures the international community should pressure the U.S. to take: It should clarify and limit its rules of engagement against suspected terrorists. It should either release those being detained, or present evidence to a judge to establish that they are active members of al-Qaeda. In addition, it should give a clearer definition of how it will determine that hostilities have ended.

The Question of Which Targets Are Legitimate

Finally, it is worth mentioning another area in which the Geneva Conventions are sometimes said to be ambiguous or outdated: the question of what targets can lawfully be attacked.

Under principles set out in the first Additional Protocol, it is only legitimate to attack targets that "make an effective contribution to military action" and whose destruction or capture "offers a definite military advantage". (The United States has not signed Additional Protocol I, but acknowledges this rule, and much of the rest of the protocol, as binding customary law.)

But what do these criteria mean in practice? It has been the subject of debate.

Consider wars such as NATO's 1999 attack on Serbia, or the prospective war in Iraq, which are directed overwhelmingly against an individual head of state or a particular regime. The aim of these conflicts is to undermine a political leader (as in the case of Saddam Hussein), or force a leader to comply with certain requirements (as with the Serbian President Slobodan Milosevic over Kosovo)? Traditional objectives of war have been very different: They have focused on repelling aggression or recovering land, for instance.

U.S. officials have argued that these new wars of "compellance" or "regime change" call for a more flexible understanding of what constitutes a military target. In the war against Serbia, NATO attacked objects like power grids, government ministries, and a television studio. Such targets might have a peripheral connection to military activity, but are more obviously part of the apparatus of domestic political and social order. Were they, or were they not, legitimate military targets?

Some military planners say they should be deemed just that, for attacking these objects may undermine a regime's hold over its subjects, or the popular support it enjoys. They would like to codify this new interpretation into any revised version of the laws of war. One conservative international lawyer who took this view recently asked me: "Why should we think it is more acceptable to wipe out a company of conscript soldiers than to destroy a monument to Saddam Hussein?"

But there are a couple of powerful objections to this argument. On a practical level, evidence from Serbia, Iraq and elsewhere suggests that attacks designed to demoralise the population most often have the effect of prompting it to rally around its government. More importantly, on the level of principle, it opens the door to military action that will increase civilian suffering. Bombing of civilian areas or infrastructure that serves civilian needs inevitably leads to civilian deaths.

Thus, in this area, too, the game of change may not be worth the candle. Instead, participants in the Swiss government's initiative should concentrate on reaffirming or strengthening existing protections in the law. Above all, they should avoid new formulations that could weaken them. This is one area where change is not always good.