Wednesday, January 04, 2006

What Are the "Principles" of the Law of War?

When addressing the treatment of individuals captured or detained in relation to the War on Terror, the Bush administration routinely emphasizes the United States commitment to respect the “principles” of the Geneva Conventions. The most recent example of this came during the recent visit by the Secretary of State Rice to Europe, where she reassured her European counterparts that the United States remains committed to compliance with the “principles” of the Geneva Conventions.

Ironically, this reassurance came during the same visit in which Secretary Rice explained to the German Chancellor why a German citizen had been abducted, transported to Afghanistan, and detained for several months without the consent of the German government and based solely on a mistaken perception of “necessity”. Many critics might consider this a reflection of the consistent divergence between Bush administration statements and practice related to the “principles” of Geneva. However, the more troubling aspect of this example is that it reveals the simple truth that the Bush administration has never defined what it considers “principles” of the Geneva Conventions.

This use of this general concept of “principles” of the law of war without more specific definition is not new in the realm of planning and executing military operations. For the last two decades, the “principles” of the law of war have served as the foundation for Department of Defense law of war policy. According to Department of Defense Directive 5100.77, “The DOD Law of War Program”, the armed forces of the United States are obligated to comply with the “spirit and principles” of the law of war during all military operations, no matter how these operations were characterized as a matter of law. (Click here). This mandate was specifically intended to establish a baseline standard for U.S. forces applicable to military operations that ran the spectrum from non-conflict peacekeeping to high intensity armed conflict. Perhaps more importantly, it also ensured that during any military operation involving armed conflict, U.S. forces would apply the full range of law of war provisions as their “default setting” even in the absence of an official U.S. policy decision on the legal characterization of the conflict.

This policy mandate proved invaluable to U.S. forces during operations conducted in the absence of a timely conflict classification decision (such as Operation Just Cause in Panama) and during non-conflict operations (such as Bosnia). However, the Department of Defense never defined what rules constituted the “principles” of the law of war. Instead, defining the content of this mandate was routinely left to judge advocates providing advice in support of military operations. These officers were taught during their professional education that in so doing, they should interpret this mandate broadly and err on the side of humanitarian spirit of the Geneva Conventions. Accordingly, these officers learned that this umbrella term encompassed, at a minimum, three bedrock principles of the law of war: humanity (as reflected in the provisions of Common Article 3 and Article 75 of Additional Protocol I); distinction (as reflected in the rules related to military objective and precautions in the attack contained in Additional Protocol I); and the historically understood concept of military necessity. This was seen consistent with U.S. interests as it would assist in establishing and preserving the moral legitimacy of the overall U.S. effort.

Although this policy provided a basis for Judge Advocates to press for respect for the humanitarian objectives reflected in the law of war during all military operations, the lack of specific content rendered the mandate essentially malleable. This fact was clearly exposed following 9/11 by the policies, directives, and decisions that began to flow from the highest levels of our government. Perhaps the most prominent example of this development came in the form of the President’s February 7, 2002 memorandum addressing obligations towards Al Qaeda and Taliban detainees. In that memorandum, the President concluded not only that these detainees were not entitled to the protections of the Geneva Conventions, but that even the policy mandate that they be treated humanely was qualified “to the extent appropriate and consistent with military necessity.”

Qualifying the humane treatment obligation contradicts the longstanding understanding of the limited authority provided by military necessity, and therefore reflected a fundamental change in the application of the concept of “principles of the law of war” by the Bush administration. Using military necessity as an “override” provision to justify derogation of protections established by the law of war – particularly humane treatment – was universally condemned following World War II. Accordingly, military necessity justifies only those measures not otherwise prohibited by international law which are indispensable to bring about the prompt submission of an enemy. Ironically, it is this understanding of military necessity that is characterized as a “basic principle” in U.S. Army Field Manual 27-10, The Law of Land Warfare (http://www.afsc.army.mil/gc/files/FM27-10.pdf).

Subsequent decisions by the Bush administration seemed to confirm that the customary understanding of the universally binding nature of the principle of humane treatment had in fact been reassessed. As a result, military commanders and the judge advocates who advised them were left with even more uncertainty as they struggled to apply a “case by case” assessment of what this policy actually required.

This case by case approach to defining the content of the policy of compliance with the “principles” of the law of war raises serious questions as to true meaning of this commitment. Is the contemporary understanding consistent with the traditional “good faith” approach that served as the foundation for countless military decisions in the past? Or, has the concept of “respecting the principles” become a useful sound-bite in the information battle related to U.S. policy. Policy makers undoubtedly covet the flexibility that flows from an undefined general standard. However, the planning and execution of military operations to achieve national security objectives characterized as having the highest magnitude, in a legal environment laced with uncertainties (often caused by these same policy makers), justifies the official enunciation of a baseline list of rules derived from the law of war that fall under the term “principles.” Until this happens, the reality will unfortunately continue to be that the commitment of the United States to the “principles” of the Geneva Conventions and the law of war will mean whatever it needs to mean to achieve any given policy objective.

9 Comments:

Blogger Marty Lederman said...

Professor Corn:

You're absolutely right to focus on this. It was the most important move of all in the Administration's effort to overhaul our longstanding principles about treatment of detainees. In short, although the U.S. had for many years denied that Common Article 3 (and Article 75) applied to certain conflicts as a matter of treaty obligation, we had always committed to the application of CA3's standards as a matter of policy. All that changed on 02/07/02. I've written more about this here:

http://balkin.blogspot.com/2005/07/importance-of-geneva-common-article-3.html

and here:

http://balkin.blogspot.com/2005/11/battle-royale-at-pentagon-david.html

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