War, even asymmetric war, is a collective, not an individual, endeavour. Soldiers in such conflicts fight largely out of a sense of loyalty to their side, and they rely heavily on the group’s judgment about the justice of their cause. But not every non-state group that takes up arms should be able to claim war rights. The challenge is to determine in which asymmetric conflicts the moral equivalence of soldiers should be recognised. None of the prevailing just war theory approaches captures the correct standard, particularly if our goal is to identify a morally defensible standard that can be sensibly and realistically administered in practice. Here’s the second and final part of the two-part erudite article by Prof. Ashoka. He examines war, just and unjust, in the light of legal and moral obligations. A Different Truths exclusive.
The principles that underlie the moral equivalence of soldiers in wartime seem to me to be prima facie applicable in non-state conflicts. War, even asymmetric war, is a collective, not an individual, endeavour. Soldiers in such conflicts fight largely out of a sense of loyalty to their side, and they rely heavily on the group’s judgment about the justice of their cause. But not every non-state group that takes up arms should be able to claim war rights. The challenge is to determine in which asymmetric conflicts the moral equivalence of soldiers should be recognised. In my view, none of the prevailing just war theory approaches captures the correct standard, particularly if our goal is to identify a morally defensible standard that can be sensibly and realistically administered in practice. The difficulty with grounding war rights in a principle of legitimate authority is that virtually any non-state group that takes up arms will claim to represent a political community and to have been authorised to fight on its behalf; in the absence of formal governing institutions possessed by states, it will be difficult to evaluate that claim. Similar difficulties arise in linking war rights to the morality of the reasons for having recourse to armed conflict: virtually any warring non-state group will claim, and probably even believe, that it is fighting for a just cause. As for a test based on compliance with the law of war, the record of a non-state armed group is likely to be mixed, at best; there is no clear-cut standard for judging what portion of–or the extent to which–a group must fight in violation of the laws of war before that group collectively forfeits war rights, much less for ascertaining what proportion of that force is, in fact, violating the laws of war.
Administrability matters. Although some argue that it is for the law of war, and not just war theory, to concern itself with compliance and enforceability, a moral framework that effectively delegates to non-state groups themselves the authority to judge whether they possess war rights fails to provide viable criteria for making moral judgments about the real world. Worse, such a framework runs the risk of perversely turning the goal of revisionist just war theorists on its head by encouraging more wars, including more unjust ones. I accordingly side with those who favour moral norms that are “implementable and action-guiding” in the real world.
Judgments about the war rights of non-state groups should therefore not necessarily focus on the motivations and characteristics of the group. Rather, the first test I suggest for whether a non-state group may claim war rights is the (relatively) objective question of whether a state of “armed conflict” exists. International law has a settled set of criteria for deciding whether political violence has risen to the level of non-international “armed conflict,” as opposed to “mere banditry or an unorganised and short-term insurrection.” Violence amounts to armed conflict when it reaches a high level of intensity, when it is protracted, and when the non-state group qualifies as a “party” to armed conflict, meaning that it possesses organised armed forces under a command structure with the capacity to sustain military operations. Perhaps the most significant test is whether the government “is obliged to have recourse to [its] regular military forces,” rather than its police, to counter the security challenge presented by the insurgent group. Application of these criteria will not always be clear-cut, but whether they are met in any given case is a question of fact, not a matter of self-judgment by the non-state party about its motives or character. Nor will the question of whether a state of armed conflict exists be determined by the policy preferences of the state party to the conflict, which might be expected to deny that status to its non-state opponent for fear of conferring an unwelcome form of legitimacy on the group. The facts on the ground, not the pronouncements of the parties, will determine whether a state of armed conflict exists
In applying this test, it is particularly important to look at the conduct as well as the legal claims of the government that is engaged in political violence against a non-state group. Where the government itself claims war rights, that is, the right to kill non-state fighters on the battlefield rather than arresting them and trying them for crimes, or to detain them for the duration of a conflict without charge, this creates a presumption that the opposing force is entitled to claim reciprocal war rights. This reflects the basic assumption of moral equality that undergirds the war convention in the context of interstate wars. In other words, where a government claims to be “at war” with a non-state group–as the Sri Lankan government did when it declared war against the Tamil Tigers or as Turkey has effectively done in launching airstrikes against Turkish PKK fighters –it presumptively triggers the reciprocal application of war rights on the part of the opposing non-state group. Subject to the limitations of the second test set out below, once we have crossed the threshold from an ordinary legal situation into the extraordinary state of armed conflict, both parties to the conflict should have war rights
But crossing the threshold into a state of armed conflict is not itself sufficient to confer war rights on non-state groups. The second test I propose would limit the extension of war rights to non-state groups involved in armed conflicts that take place in a geographic space where the government may not rightfully claim the authority to exercise the state’s ordinary monopoly on the use of force. The test arises from the premise that an essential authority of the state is its monopoly on the legitimate use of force within its territory. From this flows the state’s authority to make its law applicable to violence that takes place in its territory and to criminalize violence that occurs there, including violence directed against the state itself. This explains why the United States retains the right to prosecute members of extremist militias like the Symbionese Liberation Army or the Hutaree Militia in Michigan–even if those groups advocate violent resistance to the United States government–and why Germany retained the right to prosecute members of the Red Army Faction for violent acts against state officials.
In some cases, a non-state group’s security challenge to the state may be so serious that the state can no longer rely on its ordinary police forces and must have recourse to its security forces to suppress violence, as in the case of pervasive violence by organized crime groups in Mexico. While violence in such a case may cross the threshold of armed conflict, it does not necessarily mean that the threatened state may no longer rightfully assert its monopoly on the legitimate use of force. Rather, it is only when a group waging war against a state can plausibly claim that it has supplanted the state’s functions in exercising the legitimate monopoly of violence that the state forfeits its exclusive right to resort to force. But the loss of a capacity to suppress violence does not itself signify the loss of a right to suppress violence. Instead of examining solely the non-state group’s motivations, the justness of its cause, or its representative character, this test for the acquisition of war rights focuses on the extent to which the group exercises governance functions. Fighters for non-state groups that have not plausibly asserted a right to govern and to exercise a monopoly of force in part of a state’s territory need not be accorded war rights. They are challengers to the state’s legitimate monopoly on the use of force and may appropriately be prosecuted for murder if they kill members of the state’s security forces.
These tests seek to balance the war rights of non-state groups with legitimate state concerns about losing the ability to exercise the law enforcement sanction to control political violence. Efforts to extend the law of war to asymmetric conflicts have traditionally confronted concerns that doing so would undermine the state’s domestic authority. The authoritative commentary to the 1949 Geneva Conventions seeks to assuage these concerns by reassuring states that Common Article 3, the only article applicable to non-international armed conflicts, “does not limit in any way the Government’s right to suppress a rebellion by all the means–including arms–provided by its own laws; nor does it in any way affect that Government’s right to prosecute, try and sentence its adversaries, according to its own laws.”
The supposition underlying the law of war is that a non-state group should not be able to claim war rights–which derive from international law–against the state it is fighting where the state’s domestic law still applies. In certain contexts, however, we should depart from the presumption that a state faced with violence retains its monopoly on the use of force and its entitlement to rely on its domestic law to deny war rights to non-state armed groups. That is why the second test of when a non-state group acquires war rights asks whether that group operates in a realm where the opposing state’s purported right to the monopoly on the use of force does not apply; that is, whether the state is engaged in armed conflict in an “other-governed space.” Two such other-governed spaces are particularly salient
First, when a group exercises sufficient control over territory within a state, the presumption of the state’s monopoly of control ceases to be justifiable. A useful guideline in this regard is the threshold for application of Additional Protocol II to the 1977 Geneva Conventions, which is triggered when dissident armed forces “exercise such control over a part of [a state’s] territory as to enable them to carry out sustained and concerted military operations”–although Protocol II does not afford war rights to such dissident forces. This standard echoes the test under the old law of neutrality for determining when a non-state group acquired the rights of belligerents: “Among the tests [for recognizing belligerent rights], are the existence of a de facto political organization of the insurgents, sufficient in character, population, and resources to constitute it, if left to itself, a State among nations, reasonably capable of discharging the duties of a State.” Where a non-state group exercises “de facto authority over persons within a determinate territory,” the state waging war against that group lacks not only the capacity but also the right, to claim a monopoly on the use of force in the zone of war. Linking a non-state group’s war rights to its governing functions derives not only from the opposing government’s loss of a legitimate basis for applying its domestic criminal law, but from a separate moral foundation: it comports with just war approaches that confer war rights on groups that represent and have the consent of the political communities on behalf of which they are fighting. If armed conflict takes place between two armed groups, neither of which may claim the right to rely on its domestic authority to govern the other, the fighters for the warring factions should be treated as moral equals, and each should be entitled to claim war rights.
Second, the presumption that a state is entitled to exercise a monopoly over the use of force on its territory, and may consequently make its law applicable to violence that occurs there, should not apply in transnational armed conflicts between states and non-state groups that take place outside the state’s territory. The war the United States today is waging against Al Qaeda, the Taliban, and associated forces entail the use of armed force against non-state groups located not only in Afghanistan and Iraq, where the United States operates with the consent of the territorial state, but also in Pakistan, Somalia, Yemen, and Syria. In at least some of these settings, the United States asserts that it is exercising self-defense rights under the international law because the territorial government “is unwilling or unable to prevent the use of its territory for such attacks.” The United States is using force in such contexts in an other-governed space; in such a setting, concerns that according to war rights to a non-state group would improperly displace the warring state’s monopoly on the legitimate use of force do not apply.
Thus, where political violence has crossed the threshold of armed conflict, and in circumstances where the state’s ordinary right to exercise its monopoly on the legitimate use of force does not apply, a state invoking war rights may not claim the right to regulate violence by non-state groups under its domestic law. In such circumstances, as in armed conflict between states, the state’s regular domestic authority ceases to apply, and fighters for the non-state groups should be entitled to war rights.
The tests I propose for conferring war rights on non-state groups do not address the concern raised by some theorists, international lawyers, and military personnel that non-state groups should not be entitled to claim war rights if their members do not conduct their military operations in accordance with the laws of war. Soldiers, in particular, might object that even if the goal of extending the principle of reciprocity to asymmetric armed conflicts is morally defensible, war rights should not be conferred on those who do not fight according to fundamental law of war principles that reciprocally bind soldiers: namely, that soldiers must distinguish themselves from the civilian population, must direct their operations only at military targets, and may not launch attacks that cause disproportionate harm to civilians.
These are valid concerns. But conferring war rights on a non-state group in another governed space during times of armed conflict does not alter the duties that bind the non-state fighters. Acts that violate the laws of war, including the intentional targeting of civilians or using civilians as shields, would not be privileged, even if the group whose fighters commit such acts is otherwise entitled to war rights with respect to operations that comply with jus in bello rules. Recognising rights under the law of war for non-state groups does not entitle such groups to kill the very non-combatants the law of war is meant to protect. Fighters who target civilians violate the international humanitarian law and are subject to prosecution as war criminals. Similarly, members of a non-state armed group who do not distinguish themselves from civilians and carry their arms openly forfeit their war rights, and may be prosecuted as unprivileged belligerents
As such, those who carry out what might properly be described as acts of terrorism–the intentional killing of civilians for political purposes–would not be entitled to invoke war rights even if such rights are extended to the non-state group to which they belong. But the mere fact that a non-state group has engaged in armed conflict against a government–which officials in many governments reflexively label as terrorism, without regard to the means of warfare employed by the non-state group– should not deprive a group waging war in another-governed space from the reciprocal entitlement to war rights. Similarly, the fact that some, or even many, of the members of an organised armed group, do not distinguish themselves from the civilian population, or may engage in prohibited means of waging war, does not mean that the group as a whole forfeits its war rights–just as the fact that members of state armed forces sometimes violate jus in bello rules, sometimes extensively, does not mean that the country’s armed forces, in their entirety, lose their war rights. Rather, we treat those who have intentionally targeted civilians or committed other grave violations of the law of armed conflict as war criminals. The same approach should apply to non-state armed groups if some of their members violate the rules governing the conduct of war. But those members of such a group who do comply with jus in bello rules should retain the combatant’s privilege and the right to benevolent quarantine.
©Prof. Ashoka Jahnavi Prasad
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