From the Editors
The laws of war, or humanitarian law, are dynamic and read like a rich treatise on lessons learned-always commentary on the regulations of war that should have existed in order to avoid grotesque brutality. Consider that the International Committee of the Red Cross is the progeny of Henri Dunant's reflections on the lack of care for combatants in the Battle of Solferino, which he captured in his Souvenir de Solferino. The Hague Conventions of 1906 and 1907 came on the heels of Russo-Japanese War of 1904-05 while World War II inspired the Geneva Conventions of 1949.
Finally, national liberation wars including those in Vietnam and Korea gave rise to the Additional Protocols of 1977, which govern the laws of war applicable to non-international armed conflict in great detail. The result is a collection of laws that would have been extremely useful had they existed in the past but which are seemingly outdated by the next war—or the wars to which we are currently bearing witness.
Technically speaking, humanitarian law’s weakness is rooted in relentless technological advancement that gives rise to new, and unanticipated, forms of warfare (i.e., biological, atomic, and nuclear weapons; air force). However, with or without technology, the threat to civilians in wartime is always imminent because, like the money launderer or the embezzler whose accumulation of wealth appears legitimate until exposed, the warring belligerent has learned to avoid liability in the pursuit of military dominance.
Well before World War II and the drafting of the Geneva Conventions in 1949, belligerents learned to avoid the application of the laws of war all together by characterizing their armed conflict as a state of conflict short of war. Earliest definitions of war, defined by international law as “a contention between two or more states through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases,” were narrow and did not include civil wars and peacetime reprisals that belligerents did not regard as amounting to war. For example, in the 1931-33 Sino-Japanese Conflict both belligerents denied to being in a state of war to avoid application of Article 16 of to the League of Nations Covenant Accordingly, Common Article 2 of the Geneva Conventions created the notion of “armed conflict” in order reduce the threshold of humanitarian law’s applicability thereby affording greater protection to civilians.
Today the interplay of technological advancement and political expediency, is evident in the futility of laws of war in regard to assymetric military conflict. During armed conflict between a low- and a high-tech adversary, the warring belligerents neither share congruent interests nor similar means and methods of warfare. The high-tech adversary has the advantage of precision weapons, air power, and intelligence gathering capabilities. The low-tech adversary who does not enjoy these technological advances, and whose land becomes the terrain of fighting, seeks to withstand the attack and in doing so, can claim victory. Moreover, U.S. military analysts charge that the low-tech adversaries induce violations of the laws of war by their high-tech counterpart in order to win the battle in moral terms as was done during the Vietnam War. As such, the high-tech adversary who, endowed with technological advancements, bears a greater responsibility to observe the laws of war has three options: 1) to observe the laws of war; 2) to disregard the laws of war; and 3) to avoid its application all together.
In the first instance, the argument is that observation of such laws will afford the low-tech adversary a military advantage and reward their violations of the law and is therefore never a viable option. The second option is what we have observed most recently during Israel's 2006 offensive against Lebanon and its 2009 onslaught of Gaza. In those cases, the high-tech belligerents have disregarded the laws of war and attempted to lay the blame for any said abrogation at the feet of the low-tech adversary, claiming that observance of the law would amount to tying one of its hands behind its back while rewarding the low-tech adversary for “shielding” itself behind its civilians. The third option seeks to evade the application of laws of war all together by employing non-military coercive means in lieu of military confrontation.
These means include a military strategy known as effects-based operations (EBOs). Born out of the ashes of Operation Desert Storm as well as the NATO bombing of the former Yugoslavia and first articulated in a 2001 U.S. Joint Forces Command White Paper, EBOs are coercion campaigns that seek to create desired effects-physical, functional, and/or psychological-that can impact the enemy or compel it to change its behavior. Legitimate targets include bridges, essential food goods, and access to electricity that are all aimed to weaken an adversary’s civilian base’s resolve to support its war effort.
Still, the legality of EBOs is arguable because humanitarian law does not prohibit the murder of civilians but instead considers the loss of life an inevitable product of war and therefore deems collateral damage acceptable. Moreover, in modern assymetric warfare, Western military analysts insist that low-tech adversaries deliberately induce violations of laws of war in order to prevail morally where they cannot prevail in military terms. That is why commentators like Charles J. Dunlap Jr. argue that civilians, otherwise protected by humanitarian law, are themselves legitimate targets when he writes,
We need a new paradigm when using force against societies with malevolent propensities. We must hold at risk the very way of life that sustains their depredations, and we must threaten to destroy their world as they know it if they persist. This means the air weapon should be unleashed against entire new categories of property that current conceptions of [Laws of Armed Conflict] put off-limits.
The logic is that technological asymmetry deems existing laws of war irrelevant not because they did not anticipate technological advancements but rather because not all warring parties have access to them. Accordingly, proponents of EBOs, support the evasion of such law and encourage high-tech adversaries to wield their power to achieve military dominance by non-military means regardless of its impact on civilians. This tactic is best exemplified by the devastating, albeit ineffective, siege on Gaza and the decade long sanctions regime on Iraq.
By centralizing civilians as a target, EBOs have turned humanitarian law on its head--and what was once developed in order to spare harm to civilians is now being avoided in order to target them. In line with the historic development of the laws of war, the increasing significance of EBOs as a tool of armed conflict should trigger the creation of new laws. Alternatively, we may very well bear witness to the abandonment of key advancements in humanitarian law bringing us back full circle to re-learn the most valuable and costly lessons of war.
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