New fields of battle

10 New fields of battle Support for freedom fighters is self-defense. Ronald Reagan 1 The war on terror is not a figure of speech. It is an inescapable calling of our generation. George W. Bush 2 Through much of history, lawyers have scrambled to adjust the fine points of the law to a crude and violent world. After 1945, the challenges were as severe as any that had ever been faced previously, largely because of important changes in the kinds of wars that commonly afflicted human- kind. Two new kinds of challenge were especially noteworthy. The first was civil conflict, which attained unprecedented prominence, as compared to interstate conflict, in the post-1945 world. In this area, the inheritance of the nineteenth century remained very much in evidence, most notably in the retention of the traditional bias in favour of established governments and against insurgents. Recognition of belligerency and of insurgency were little in evidence, at least on the surface; but it was likely that they were merely sleeping and not dead. Most conspicuous in the way of change was the promotion of one particular category of insurgents from the humble level of rebels to fully fledged belligerents: persons carrying on what came to be called a national liberation struggle. Some regarded this as a welcome extension of just-war ideals. Others saw it as an unwelcome intrusion of ideological considerations into what should be the dispassionate realm of the rules of law. Probably more important, though, was an advance – though not 1 State of the Union Address, 6 Feb. 1985, in 1985 Public Papers of the Presidents 140. 2 Radio address, 20 Mar. 2004, at www.whitehouse.gov/news/releases/2004/03/ 20040319–3.html. 357 so rapid a one as many hoped – in the application of international humani- tarian standards to situations of internal conflict in general. The other major new challenge was a new sort of war – or perhaps of ‘war’. This was against terrorism. Terrorism was not invented after 1945 by any means. It was in this period, however, that it began to become a threat on a global scale. And it was only in 2001, with explosive sudden- ness, that it leaped to the very forefront of world affairs. In the immedi- ate wake of the terrorist attacks of that year on New York City and Washington, D.C., the American government began a systematic pro- gramme of dealing with terrorism by martial means. That is to say, that it deployed the traditional weapons of warfare, rather than of ordinary criminal law, to do battle with this scourge. But questions soon began to arise as to how suitable those weapons of war would prove to be against a foe which, though decidedly deadly, bore little resemblance to a tradi- tional enemy armed force on the field of battle. Throughout the whole of human history, the soldier and the murderer have both played deadly games. Until now, though, they had always been seen to be playing very different deadly games, governed by very different sets of legal rules. Now, for the first time, they were being brought face to face. As a result, the different legal regimes that had traditionally governed them were, perforce, being brought together as well – with results that have only begun to become apparent. From civil war to national liberation One of the most significant expansions of the international law of war in the late twentieth century was into the realm of civil conflicts. 3 This was appropriate, given that, after 1945, a very large proportion of the armed conflict in the world occurred in struggles within rather than between countries. Moreover, there was an increasing view, strongly undergirded by Cold-War considerations, that modern civil wars, much more than those of the past, often had repercussions that extended well beyond the boundaries of the state in question. The Greek civil war of the 1940s was an outstanding early example. Internal conflicts in such countries as the Congo, Yemen, Lebanon, Pakistan, Angola and Afghanistan (to name only a few) likewise involved, or threatened to involve, the interests of major foreign powers whether overtly or covertly. As a result, there was 3 For a general survey of international law relating to civil strife, see Moir, Internal Armed Conflict. 358 WAR AND THE LAW OF NATIONS increasing doubt as to whether governments should continue to enjoy the privileged status which the law had traditionally accorded them, chiefly in the form of allowing foreign states to provide assistance to them, but not to insurgents. Other developments reinforced these doubts. The human-rights movement, most outstandingly, highlighted the fact that many governments were violators of international law on a large scale. Many felt that, in cases in which the rebels were struggling for the recognition of their fundamental rights, the law should not place them at a legal disadvantage compared to their governments. In the event, international law moved cautiously in this area – but it did move, in two main directions. The first concerned the question of foreign intervention into civil conflicts.Broadlyspeaking,thedirection that it took was not towards allowing greater leeway for foreign intru- sion, but instead – and more modestly – towards providing some welcome clarification as to the effects that foreign intervention would have when it did occur. Second, a larger body of international rules was brought to bear on the regulation of the conduct of civil conflicts. That is to say, that the humanitarian revolution was extended, though only to a modest extent, to civil conflicts in addition to international ones. The greatest step in this regard, at least symbolically, was to extend the full body of international humanitarian law to one particular category of internal conflicts: wars of national liberation (as they were called in everyday parlance). At the same time, though, much of the old law remained in place alongside these new developments. Recognition of belligerency and of insurgency, as inherited from nineteenth-century practice, maintained, it is true, only a shadowy presence after 1945. But it is probable that they continued to exist, and possible that they would find new utility in the twenty-first century. In sum, international law relating to civil conflicts was, like law (and life) generally, a sometimes untidy mix of old and new. The art of foreign intervention After 1945, the traditional bias of international law in favour of govern- ments and against insurgents came increasingly into question. But it proved difficult to arrive at a consensus on whether to change the traditional rules and, if so, in what manner. If governments and insur- gents were to be placed on a par, there were two ways in which this could be brought about. One was to place further restrictions on foreign inter- vention by prohibiting foreign countries from assisting either side – i.e., by NEW FIELDS OF BATTLE 359 mandating a sort of law of neutrality or recognition of belligerency that would be automatically applicable to civil conflicts generally. Within the Institute of International Law, there was support for such a total ban on intervention in internal conflicts. 4 The Institute eventually endorsed this position in 1975, reversing the stance that it had taken in 1900 (which had allowed aid to the government side). 5 Many of its members, however, resisted the change, contending that there was no support in state practice for it. 6 The other way of eliminating the bias in favour of governments was to remove all restrictions on foreign intervention by allowing foreign countries to assist either the insurgents or the government, at their option. Certainly, when Cold-War considerations were at stake, the major powers sometimes showed little hesitation in supporting rebel- lions against governments. The Soviet Union, for example, supported insurgents against the Greek government in the 1940s, and against the South Vietnamese government from 1954 to 1975. In 1954, the United States provided assistance to insurgents in the overthrow of a left-wing government in Guatemala which was thought to be unduly sympathetic to Communism. In the 1970s and 1980s, there was further American backing for rebel forces in Angola, Afghanistan and Nicaragua, with various degrees of openness. In the 1980s, the United States even pro- duced a more or less explicit position, known as the Reagan Doctrine (after President Ronald Reagan), to the effect that assistance to insur- gent groups was permissible if the government that they were fighting against was of a Marxist-Leninist character. 7 There was a distinct whiff of classical just-war thinking in this stance: holding that the rights of parties in an armed conflict were a function of the underlying justice of the cause for which they fought. In addition to Cold-War considerations, the humanitarian revolution provided support for allowing foreign assistance to insurgents, in appro- priate circumstances. Specifically, it was contended by some that it 4 See, for example, remarks of Chaumont, in 56 Annuaire 136–7 (1975); of Mu ¨ nch, ibid.at 138; and of Skybiszewski, ibid. at 143–5. 5 ‘The Principle of Non-intervention in Civil Wars’, ibid . at 544–9. 6 See, for example, remarks of Castre ´ n, ibid. at 134–5; of O’Connell, ibid . at 139–40; and of Rousseau, ibid. at 142–3. 7 On the Reagan Doctrine, see Jeane Kirkpatrick, The Reagan Doctrine and US Foreign Policy (Washington, D.C.: Heritage Foundation, 1985); and Ted Galen Carpenter, US Aid to Anti- Communist Rebels: The ‘Reagan Doctrine’ and Its Pitfalls (Washington, D.C.: Cato Institute, 1986). 360 WAR AND THE LAW OF NATIONS should be lawful for foreign states to assist rebels who fought for the recognition and exercise of legally recognised fundamental human rights. Some went even further and contended that, in situations of gross violations of human rights by governments, foreign states were permitted to intervene directly with armed force to compel a change of policy (usually meaning, at the same time, forcing a change of govern- ment). It has been observed that there was at least some precedent for this doctrine of humanitarian intervention in the nineteenth century. Some lawyers maintained that it continued to be permitted after 1945. 8 State practice in this area was highly equivocal (to put it mildly); but there were several cases of intervention which had at least a substantial human-rights component, even if other interests were present as well. Examples included the Indian intervention in Pakistan in 1971–2, in the face of large-scale abuses of human rights in East Bengal – an operation that led to the creation of the new state of Bangladesh. In 1979, Tanzania overthrew the notoriously brutal regime of Idi Amin in neighbouring Uganda. The best example of a humanitarian intervention to protect a civilian population against repression by its own government occurred in 1999, when a coalition of Western powers – in a manner distinctly reminiscent of the Concert of Europe actions in the nineteenth century – mounted an aerial-warfare campaign against the Federal Republic of Yugoslavia, to force it to halt atrocities in the province of Kosovo. 9 Judicial bodies, however, declined to endorse any of these proposed changes. Most notably, the World Court, in its judgment in the case of Nicaragua v. United States in 1986, expressly reiterated the principle that intervention in civil strife was allowable at the request of the govern- ment. 10 Atthesametime,theCourtheldtheretobenogeneral right of intervention on behalf of insurgent groups in foreign states. 11 The Reagan Doctrine in particular was effectively (if only implicitly) rejected. ‘The Court cannot contemplate’, it pronounced, ‘the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular 8 For the view that humanitarian intervention was permissible, see Richard B. Lillich, ‘Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives’, in J. N. Moore (ed.), Law and Civil War, at 229–51; and Fonteyne, ‘Customary Doctrine’. For a defence of humanitarian intervention rooted in philosophi- cal ideas distinctly reminiscent of natural-law thought, see Teso ´ n, Humanitarian Intervention. 9 On this incident, see Franck, Recourse to Force, at 163–70. 10 Nicaragua v. USA, para. 246. 11 Ibid ., paras. 206–9. NEW FIELDS OF BATTLE 361 ideology or political system’. 12 Atthesametime,theCourtcarefully declined to provide any encouragement to supporters of humanitarian intervention, although it held back from making a definitive general pronouncement on the question. 13 The question of the lawfulness of humanitarian intervention therefore remained tantalisingly unresolved by the early twenty-first century, with every prospect of continuing to be well-nigh the most controversial issue in the whole of international law. 14 If international courts, then, declined to support any loosening of the traditional ban on intervention on behalf of insurgents, they at least provided some welcome clarification on the legal effects that such an intervention would have when it did occur. In particular, some import- ant light was shed after 1945 on the question of whether, or under what conditions, the involvement of a foreign state would transform an erstwhile civil conflict into an international one. In practical terms, the importance of the question was that, if a conflict became an inter- national one, then the full range of international humanitarian law would apply to it. The most important concrete effect was that rebels would then become entitled to treatment as prisoners of war rather than as ordinary criminals, at least during the course of the hostilities. On this question, it became established after 1945 that there were, in effect, three gradations of foreign involvement, each with its own dis- tinctive set of legal consequences. The lowest level was one in which the foreign state’s role in the struggle was performed, so to speak, from off- stage, i.e., in which the foreign country played the part of, say, a supplier of weapons or other services to the rebels. The middle gradation was a situation in which the foreign state actually participated in the struggle, but only as a kind of auxiliary or ally of the insurgent forces. The third and highest level was one in which the foreign state not only participated in the conflict but actually played the dominant part in it, so that the insurgents were, in effect, reduced to being auxiliaries of the intervening country. At the first level, a struggle is wholly internal. The middle level is a dual situation, with a civil and an international struggle raging 12 Ibid ., para. 263. 13 Ibid ., paras. 257–6 2. 14 The literature on the subject of humanitarian intervention is forbiddingly large and even more forbiddingly repetitious. For a cogent justification of the practice, see Teso ´ n, Humanitarian Intervention. In opposition, see Chesterman, Just War. For an excellent recent picture of the debate from various standpoints, see J. L. Holzgrefe and Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003). 362 WAR AND THE LAW OF NATIONS alongside one another. At the third level, the conflict is wholly international. The archetypal illustration of the first and lowest-level category of foreign involvement would be a situation in which a foreign country provided financial assistance to an insurgent force in another state. This would be an unlawful act, to be sure. Specifically, it would constitute unlawful intervention by the assisting state in the internal affairs of the strife-torn country. But this comparatively minor form of assistance would not amount to a use of force contrary to the UN Charter. 15 Nor would it alter the character of the conflict, which would remain an internal rather than an international one. The rebels could be treated by their government as ordinary criminals, unless they had effective control of part of the territory, in which case the rules on recognition of insurgency would apply and would entitle them to prisoner-of-war treatment (at least during the continuance of the hostilities). Against the foreign country, the government would have a legal claim for unlawful intervention. It could obtain damages for any injury that it suffered; or, if no tribunal had jurisdiction over the matter, it could take some kind of non-forcible reprisal (such as economic measures) against the intervening state. The second level of foreign involvement was most vividly illustrated by the civil strife in Nicaragua in the 1980s. The United States’s assist- ance to the insurgents (known as the ‘contras’) went well beyond the provision of financing – extending to the supply of arms on a large scale, as well as of intelligence information. It also provided training for the insurgents in bases located in the neighbouring country of Honduras, from which the contras would launch attacks into Nicaragua. American forces did not, however, participate in those actual operations. In its action against the United States in the World Court, Nicaragua contended that the American involvement was so substantial as to transform the conflict into an international rather than a civil one. The contras, it maintained, were mere hirelings of the United States. The World Court rejected that argument, holding instead that the conflict fell into the middle category of the three just set out: a sort of hybrid situation in which a civil and an international conflict were in progress side by side. 16 The international component of the struggle consisted of a use of force by the United States against Nicaragua, in violation of the general ban in international law against the use of 15 Nicaragua v. USA, para. 228. 16 Ibid ., para. 219. NEW FIELDS OF BATTLE 363 force. 17 To that situation, the full body of international humanitarian law would apply. The internal component of the struggle consisted of the operations mounted by the contras themselves. 18 To that conflict, the domestic law of Nicaragua applied. (As the contras controlled no territory in the country, no question of recognition of insurgency arose here.) The United States and the contras, in other words, constituted separate forces in alliance with one another, fighting separate conflicts. At the third level of foreign involvement, the foreign state’s role was so great as to swallow up that of the insurgents altogether. This would occur, as the World Court established in the Nicaragua v. United States case, when the foreign power exerted ‘effective control’ over the rebel forces which it supported. 19 The point was most strikingly illustrated in the Bosnian civil strife of 1992–5. The legal status of that conflict became a key issue in the trial of a defendant before the International Criminal Tribunal for the Former Yugoslavia in 1997. The person was accused of violating various provisions of the Geneva Conventions which were applicable only to international conflicts, but not to civil ones. The trial panel ruled that, in its initial phases, the conflict was an inter- national one by virtue of the controlling role played by the forces of a foreign state, the Federal Republic of Yugoslavia (FRY), in support of insurgent ethnic Serb groups. It also held, however, that the character of thestrugglechangedonaparticulardate(19May1992)whentheFRY government announced its withdrawal from the conflict. From that point onward, the trial court held, the conflict became a civil one, to which the full body of Geneva Convention law was no longer applicable. 20 On appeal, however, this key holding was reversed; and the conflict held to be an international one throughout its duration, even after 19 May 1992. 21 The Appeal Tribunal concluded that the FRY continued to exercise effective control over the insurgent groups even after its purported withdrawal. That supposed withdrawal actually amounted, 17 Ibid ., para. 228. The situat ion is best described as a use of force rather than as an armed conflict, since Nicaragua did not respond militarily to the American measures. Technically, the United States was held to have infringed a customary-law prohibition against the use of force. The Court lacked the power to consider the question of a violation of Article 2(4) of the UN Charter as such. 18 Ibid ., paras. 92–116. 19 Ibid ., paras. 105–16. 20 Prosecutor v. Tadic ´ (Merits), Int’l Criminal Tribunal for the Former Yugoslavia (Trial Panel), 7 May 1997, 36 ILM 908 (1997), paras. 582–607. 21 Prosecutor v. Tadic ´ (Merits), Int’l Criminal Tribunal for the Former Yugoslavia (Appeal Panel), 15 July 1999, 38 ILM 1518 (1999), paras. 83–162. 364 WAR AND THE LAW OF NATIONS in the Tribunal’s judgment, to nothing more than ‘a superficial restruc- turing’ of forces, with the FRY continuing to exercise ‘overall control’ of the insurgents’ military effort by ‘organising, coordinating or planning the military actions’ of the ethnic Serb forces in Bosnia. 22 As a result, the insurgent forces and the regular FRY military were, in reality, not ‘separate armies in any genuine sense’, but instead were functioning as a single force under the command of the Yugoslavian military in Belgrade, for the furthering of the political and military objectives of the FRY. 23 The practical effect of this decision was that the full body of rules of international humanitarian law applied throughout the Bosnian conflict of 1992–5. 24 That is to say, that the full body of humanitarian law applied not only to clashes between Bosnian government and FRY forces, but also to engagements between government forces and ‘insur- gents’ of the same nationality. The effect, therefore, is that this third and highest level of civil conflict is not, strictly speaking, a civil conflict at all. It is a fully international struggle. The so-called ‘rebels’ are therefore, legally speaking, not true insurgents at all, but rather auxiliaries of the foreign state, who happen to possess the nationality of the country against which they are fighting. A couple of final points should be noted about these three categories of civil strife (or rather, as just explained, two levels of civil strife plus one of international conflict containing an internal sub-component within it). First of all, the boundaries between these three levels of conflict were not, as of the early twenty-first century, marked out in very great detail. Consider, for instance, the boundary between the lower and middle levels. It was clear (from the World Court’s decision in the Nicaragua v. United States case) that the provision of financing to rebels by a foreign state would not amount to a use of force, but only to the lesser offence of unlawful intervention. 25 It remained unclear, though, just how much assistance was required from the foreign state to the insurgents to transform the foreign country from a mere intervener (at the lower level) into an ally of the rebels (at the middle level). Similarly, at the boundary between the middle and upper levels, it was clear that the general test to be applied was whether the foreign state had effective control of the conduct of the hostilities. But there remained much room for clarification as to what ‘effective control’ actually entailed in specific situations. 22 Ibid ., paras. 137, 154. 23 Ibid ., paras. 151–62. 24 See generally Gray, ‘Bosnia and Herzogovina’. 25 Nicaragua v. USA, para. 228. NEW FIELDS OF BATTLE 365 The humanitarian revolution at home Although, as observed above, international courts declined to put insur- gent groups on a par with governments with respect to foreign inter- vention, some steps nonetheless were taken to put them on something approaching an equal footing in terms of the conducting of the hostil- ities themselves. This was a fruit of the humanitarian revolution. It will be recalled that the essence of international humanitarian law was the proposition that the fundamental purpose of the laws of war was the relief of human suffering. On this assumption, there naturally seemed to be little justification for treating civil conflicts differently from interstate ones. This logic was articulated in 1996 by the International Criminal Tribunal for the Former Yugoslavia: [I]n the area of armed conflict [the tribunal maintained] the distinction betweeninterstatewarsandcivilwarsislosingitsvalueasfarashuman beings are concerned. Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence erupted ‘only’ within the territory of a sovereign State? If international law . must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight. 26 This humanitarian logic had been at work since the late nineteenth century. As early as 1872, the International Committee of the Red Cross became involved in the Carlist War in Spain. In 1875, it decided to provide humanitarian services in a rebellion of Christian peoples against Ottoman rule in Bosnia, Herzogovina and Bulgaria. 27 By 1914, the International Committee had become involved in some nineteen civil conflicts. 28 But doubts remained on the subject. In 1912, the International Committee of the Red Cross considered the general ques- tion of involvement in civil wars, but was unable to reach any firm position. The key step was taken in 1921, when a conference of the International Committee laid down the principle that the Red Cross 26 Prosecutor v. Tadic ´ (Jurisdiction), Int’l Criminal Tribunal for the Former Yugoslavia, 2 Oct. 1995, 35 ILM 32 (1996), para. 97. 27 Moorehead, Dunant’s Dream, at 125–6. 28 Ibid . at 231. 366 WAR AND THE LAW OF NATIONS [...]... duration of the conflict, purely on the basis of membership in the enemy armed force, with no need for any showing of personal wrongdoing Legal NEW FIELDS OF BATTLE 391 safeguards for prisoners of war find their source in the Geneva Convention on Prisoners of War of 1949, rather than in the general law of international human rights This Convention grants a number of valuable legal privileges to prisoners of. .. ‘emergent rules of international law’ This would be an ambitious and significant development – but it belongs to the realm of the future, rather than of history Striking terror One of the most dramatic challenges to international law in the post1945 era was the emergence of new kinds of enemy – and, in their wake, of new kinds of war Modern terrorism in particular presented the spectre of criminality... above for details NEW FIELDS OF BATTLE 369 most notably of civilians In addition, the Protocol made no provision for one of the most essential elements of the old state of insurgency – the recognition of the legal validity of ‘governmental’ measures adopted by insurgents in areas that they effectively controlled It seems likely, although firm authority is lacking, that recognition of insurgency continued... For a more sceptical view of the action as self-defence, see Charney, ‘Use of Force’ NEW FIELDS OF BATTLE 389 the attacks, there appeared to be little reason to deny that the right of selfdefence could be exercised against privately organised bands of criminals as well as against aggressor states (It may be recalled, in this connection, that the Caroline affair, that font of official doctrine on self-defence... declined to become parties to the Protocol With the attaining of majority rule and independence by Zimbabwe in 1979–80 and Namibia in 1990, followed in the later 1990s by the ending of apartheid in South Africa, the NEW FIELDS OF BATTLE 375 principal fields of action of this provision of the Protocol lost their relevance.56 Nevertheless, this provision of Protocol I remains in force; and it is not impossible... the basis of the material strength of the insurgents but instead by virtue of the nature of the cause for which they fought In the manner of the law concerning the Muslim bughat, the fact of fighting for a certain doctrine brought in its train certain valuable legal privileges It has sometimes been contended that Protocol I of 1977 had the effect of conferring a legal imprimatur onto wars of national... NEW FIELDS OF BATTLE 379 the saboteur In the civilian world, much the same attitude is present There may be a certain bemused tolerance of duelling, or even a nobility attached to it; but the murderous skulker in the alley is loathed by all The death of the French Revolutionary leader Jean Paul Marat at the hands of an assassin in 1793 may be taken as a convenient starting point for this new kind of. .. heads of state and government, as well as police of cials who were particularly disliked Victims included the presidents of France and the United States, the king of Italy and the empress of Austria The targets of anarchist terror also included persons from humbler walks of life, selected effectively at random, as in the case of bombs placed in public ´ places such as cafes Anarchism was a set of political... commercial airliners and crashed three of them into buildings in New York and Washington, killing over 2,500 people This newest form of terrorist activity combined the key features of all its various depraved predecessors – the ruthlessness of the medieval ´corcheur, the organisation of the pirate band, the secrecy of the backe alley murderer and the quasi-religious fanaticism of the anarchist Up against this... a new category of just war In a certain sense, this may be conceded As just pointed out, special legal privileges were being accorded to a privileged category of insurgents on the basis of the justice of their cause This was certainly in the spirit of the just-war outlook At the same time, though, it should be appreciated that Protocol I did not purport to create any new category of justifiable use of . from assisting either side – i.e., by NEW FIELDS OF BATTLE 359 mandating a sort of law of neutrality or recognition of belligerency that would be automatically. ‘The Global Menace of Local Strife’, Economist, 24 May 2003, at 23. NEW FIELDS OF BATTLE 367 ‘such control over part of [the] territory [of the state] as