William C. Banks - New Battlefields Old Laws: Critical Debates on Asymmetric Warfare

NEW BATTLEFIELDS/OLD LAWS

COLUMBIA STUDIES IN TERRORISM AND IRREGULAR WARFARE

Columbia Studies in Terrorism and Irregular Warfare

BRUCE HOFFMAN, SERIES EDITOR

This series seeks to fill a conspicuous gap in the burgeoning literature on terrorism, guerrilla warfare, and insurgency. The series adheres to the highest standards of scholarship and discourse and publishes books that elucidate the strategy, operations, means, motivations, and effects posed by terrorist, guerrilla, and insurgent organizations and movements. It thereby provides a solid and increasingly expanding foundation of knowledge on these subjects for students, established scholars, and informed reading audiences alike.

Ami Pedahzur, The Israeli Secret Services and the Struggle Against Terrorism

Ami Pedahzur and Arie Perliger, Jewish Terrorism in Israel

Lorenzo Vidino, The New Muslim Brotherhood in the West

Erica Chenoweth and Maria J. Stephan, Why Civil Resistance Works: The Strategic Logic of Nonviolent Resistance

EDITED BY WILLIAM C. BANKS

NEW BATTLEFIELDS

OLD LAWS

CRITICAL DEBATES ON ASYMMETRIC WAR FARE

COLUMBIA UNIVERSITY PRESS NEW YORK

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Copyright 2011 Columbia University Press

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E-ISBN 978-0-231-52656-2

Library of Congress Cataloging-in-Publication Data

New battlefields, old laws : critical debates on asymmetric warfare / edited by William C. Banks.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-231-15234-1 (cloth : alk. paper) ISBN 978-0-231-15235-8 (pbk. : alk. paper) ISBN 978-0-231-52656-2 (ebook)

1. Humanitarian law. 2. TerrorismPreventionLaw and legislation. 3. Asymmetric warfare. I. Banks, William C.

KZ6471.N49 2011

341.67DC23

2011018867

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Modern war is no longer characterized by uniformed armies on a large plain, with civilians tucked away safely far behind the front-lines. Rather, military operations are now conducted in the contemporary operational environment, which assumes 360-degree operations against asymmetric opponents who strike at known weaknesses, including a nations compliance with the law of war.

One of the most troubling implications of modern asymmetric warfare is that a states compliance with the jus in bello, the international treaties and other laws that define acceptable behavior for states engaged in armed conflict, may amount to an operational weakness in todays armed conflicts. The defending states forces are thus faced with a dilemma: If they abide by the laws of armed conflict and curtail the attack to minimize civilian casualties, state forces compromise the military objective and leave their own civilians vulnerable. If they choose not to scale back an assault or do not realize that shielding is occurring, as when an adversary hides the practice in anticipating that such a misstep has political capital, the choice to proceed disregards the prohibition against targeting civilians, making a state appear derelict in its obligations under the law. In either case, the laws and customs of war have become a politicized weapon in asymmetric strategy. States that are committed to protecting civilians in the chaos of war face an operational and moral dilemma while they act to insulate state legitimacy in the eyes of their own populations and the world.

A second scenario demonstrates how asymmetric strategies have begun to challenge international humanitarian normson the battlefield and beyond. Well-intentioned international advocacy organizations have spent considerable time offering positive incentives to entice nonstate fighters to follow humanitarian law, such as by allowing some rights protections for their fighters in return for partial compliance with the all-or-nothing proposition of the laws of war. According to some, however, the wrong area of compliance has been relaxednamely, the fixed distinctive symbol requirements of combatant status in Articles 43 and 44 of Protocol I to the Geneva Conventions. Without this standard, insurgents have no incentive to mark themselves off from the civilian population. The insignia rule is central to the principle of distinction and the very reason that combatants garner special privileges, because by differentiating themselves they make themselves available as targets. The incentives also wrongly presume common cultural objectives in war, namely, that soldiers do not want to die, that they are involved in traditional battlefield objectives and not religious or identity-defining experiences that convey submission to a divine authority or absolute faith by spilling ones (or an infidels) blood.

Whether the parties to an asymmetric conflict are specialists in humanitarian law, or those least inclined to comport with secular law, both sets of participants are entangled in now prevalent challenges facing international humanitarian law. Existing laws are not well suited to take into account these asymmetries. New circumstances require a fresh look at established core humanitarian law principles of distinction, proportionality, military necessity, and prevention of unnecessary suffering.

This volume synthesizes several critical insights from an interdisciplinary initiative at Syracuse Universitys Institute for National Security and Counterterrorism (INSCT), a research institute jointly sponsored by the Maxwell School of Citizenship and Public Affairs and the College of Law at Syracuse University, in partnership with the International Institute for Counter-Terrorism (ICT) at the Interdisciplinary Center (IDC) in Herzliya, Israel. The fruits of this dialogue have been encapsulated in our title, New Battlefields/Old Laws: Critical Debates on Asymmetric Warfare. Our book addresses from an interdisciplinary legal and policy perspective the challenges posed to humanitarian law as weaker, nonstate combatants use forbidden tactics to offset their military disadvantage, and as irregular warfare becomes a common means for weaker parties to achieve political goals that they could not accomplish through established channels. Beginning with the premise that most of todays conflicts are low-intensity, asymmetric wars between militarily disparate forces, this volume focuses on the role of nonstate groups in many of the worlds conflicts, how these conflicts increasingly involve irregular participants (paramilitaries, child soldiers, civilians participating in the hostilities, and private military firms), and the implications of these phenomena for international humanitarian law. This volume debates what many have taken to be a foregone conclusionthat existing laws adequately govern current military conflicts. Our contributing authors believe that some regulations should be updated, revised slightly, or changed altogether (Corn, Crane, and Reisner), or that existing laws should be deployed differently or enlarged in their scope and application (Rose, Jensen). Still other contributors have given careful attention to how old laws are in the process of undergoing change under new conditions (Richemond-Barak, Moodrick Even-Khen, Barnidge, and Zoli).