Legal and Moral Obligations of a State in War: Just and Unjust! – I

An unjust war of aggression can be fought by just means, and a just war of self-defense can be fought unjustly. Because soldiers fight largely out of a sense of loyalty and accept their particular side’s representations about the justice of its cause, the moral status of individual combatants. It follows that soldiers, regardless of which side they fight for, have equal moral standing to invoke the special rights that apply in wartime. To put it plainly, soldiers in wartime possess “the equal right to kill.” Here’s the first 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 notion of the moral equality of soldiers arises from traditional just war theory’s embrace of a “dualism of our moral perceptions,” under which we distinguish between the justice of recourse to force (jus ad bellum) and the justice of the conduct of war itself (jus in bello). This separation means that an unjust war of aggression can be fought by just means, and a just war of self-defence can be fought unjustly. Because soldiers fight largely out of a sense of loyalty and accept their particular side’s representations about the justice of its cause, the moral status of individual combatants, in the words of Michael Walzer, “is very much the same. . . . They face one another as moral equals.” It follows that soldiers, regardless of which side they fight for, have equal moral standing to invoke the special rights that apply in wartime. To put it plainly, soldiers in wartime possess “the equal right to kill.” 

The international law of armed conflict reflects the principle of the moral equality of soldiers. Under the law, soldiers may claim entitlements to two key clusters of rights. First, soldiers in wartime – at least those participating in an international armed conflict between states – possess the “combatant’s privilege,” or the right to kill and wound enemy soldiers and to destroy enemy military property without criminal liability. As Telford Taylor, who served as the chief prosecutor before the U.S. military tribunals at Nuremberg, explained: “War consists largely of acts that would be criminal if performed in the time of peace….Such conduct is not regarded as criminal if it takes place in the course of a war because the law lays a blanket of immunity over the warriors.” Second, combatants in wartime who fall into the hands of their enemy benefit from certain forms of humane treatment if they cease to take part in hostilities, either because they are sick or injured or because they have surrendered. They may not be killed, tortured, or otherwise subjected to “inhuman treatment.” And they are entitled to what is referred to as “benevolent quarantine,” that is, they are entitled to be treated as prisoners of war, a status that entails an elaborate set of rules regarding their rights and treatment. These rights– the right to kill enemy soldiers and to destroy permissible enemy targets with immunity from criminal liability, together with the right to some basic form of benevolent quarantine–are what I have in mind in this essay in referring to “war rights” of combatants 

Unsurprisingly, the war rights of soldiers come with a corresponding set of liabilities. The corollary of the combatant’s privilege is that a soldier, during wartime, may be targeted and killed at any time, even if he poses no immediate threat to the person targeting him. The corollary of the right of benevolent quarantine is that soldiers may be detained as prisoners of war, without being charged or convicted of any crime, to prevent them from returning to the fight. Prisoners of war may be detained for an indeterminate, even indefinite, period of time, and have a right to be set free only upon a cessation of hostilities. 

Under the law of armed conflict, however, soldiers possess war rights only in the context of international armed conflict: namely, a war between two or more states. The 1949 Geneva Conventions regulating armed conflict and Additional Protocol I of 1977 each apply only in the case of armed conflict between states that are parties to the Conventions. Although Additional Protocol II of 1977 represented a novel, albeit modest, attempt to expand the law of armed conflict in “armed conflicts not of an international character,” that Protocol does not confer “combatant” status on fighters for non-state groups and does not articulate war rights, at least not in the sense used in this essay, for participants in such conflicts. The prevailing view is that international law is largely silent on the status of fighters in asymmetric conflicts, by which I mean conflicts between a state and a non-state group, which lawyers refer to as “non-international armed conflicts” (NIACS). 

To be sure, the law of armed conflict does have some application to fighters in NIAC and extends both protections and restrictions. Common Article 3 of the 1949 Geneva Conventions (the sole provision of the 1949 Conventions that applies to non-international armed conflict) and Protocol II provide that fighters who have surrendered or are wounded and are no longer taking part in active hostilities are entitled to humane treatment. Protocol II also establishes some limited humanitarian protections for persons “deprived of their liberty for reasons related to the armed conflict,” although it does not extend benevolent quarantine rights to fighters in NIAC. And Protocol II and customary international law impose restrictions on the means and methods of waging a non-international armed conflict that binds both government forces and non-state fighters alike 

But international law does not confer war rights on fighters in non-international armed conflict equivalent to the combatant’s privilege. There is no provision that prohibits a government from prosecuting the non-state side’s fighters for acts that would fall under the combatant’s privilege in an international armed conflict. While the lack of a combatant’s privilege in non-international armed conflict may once have been merely an esoteric point of the law of armed conflict, it has emerged as a significant concern in the post-9/11 world. Since then, the United States has entered into an asymmetric armed conflict with Al Qaeda, the Taliban, and associated forces, a war in the course of which the United States has been unwilling to recognise any war rights on the part of its adversaries. The United States has refused to allow enemy fighters to claim that their violent activities are privileged, even when they engage in traditional, non-terrorist forms of armed combat. Thus, some of those charged by military commissions at Guantánamo Bay has been charged with such offenses as “murder by an unprivileged belligerent,” “attempted murder by an unprivileged belligerent,” or conspiracy to commit “murder by an unprivileged belligerent,” even though the accusations against them describe engagement in, or preparations for, conventional combat with members of U.S. or coalition armed forces. 

Nor does the law of armed conflict confer rights of benevolent quarantine on fighters in non-international armed conflict. Although persons detained during such conflicts are due basic humane treatment, such as the provision of food, water, and health care, they may not invoke the carefully regulated regime of rights and protections that governs the treatment of prisoners of war in international armed conflict. Soon after detainees captured during Operation Enduring Freedom, the post-9/11 use of force led by the United States in Afghanistan, were transferred to the U.S. naval facility at Guantánamo Bay, the United States took the categorical view that no members of Al Qaeda were entitled to prisoner of war status because Al Qaeda is not a state, and its fighters consequently could not claim war rights under the Geneva Conventions. They were held in conditions incompatible with the requirements of the Geneva Convention on Prisoners of War. In addition, captured fighters in a NIAC are subject to criminal prosecution for “offenses related to the armed conflict”; instead of Telford’s “blanket of immunity,” such detainees are provided with only limited procedural protections regarding the independence and impartiality of the courts before which they may be tried.

Thus, in contrast to international armed conflict, in which soldiers face one another as moral equals, in non-international armed conflict international law institutionalises a profound asymmetry between the war rights of state and non-state fighters. For even as states deny rights derived from the law of armed conflict to non-state groups in asymmetric conflicts, they invoke war rights for themselves under that very body of law 

In the course of its post-9/11 armed conflict against Al Qaeda, the Taliban, and associated forces, for example, the United States has exercised many of the extraordinary authorities that are available only during times of war. U.S. forces have claimed and exercised the right–on the basis of the law of war principles–to kill enemy fighters in Afghanistan, Pakistan, Yemen, Somalia, Syria, and Iraq. In addition to targeting, U.S. forces in Afghanistan have routinely detained Taliban fighters; the “laws and customs of war” provided the stated authority to detain such individuals on the battlefield.  

The exercise of war rights by the United States against non-state groups is not solely a post-9/11 phenomenon. The United States has effectively invoked such rights in a variety of other contexts, including the attacks against targets in Sudan and Afghanistan following the 1988 bombings of American embassies in Tanzania and Kenya by Al Qaeda affiliates. The U.S. personnel who killed Al Qaeda members or destroyed property in Afghanistan and Sudan undoubtedly acted on the assumption that they were not murderers, but rather were engaged in behaviour protected by the combatant’s privilege. 

Nor is the United States by any means the only country to claim wartime rights against non-state groups without recognising reciprocal rights on the part of the adversary. Illustrative contemporary cases include Turkey’s use of force against Kurdistan Workers’ Party (PKK) fighters in Turkey and Syria, Ukraine’s treatment of separatist forces in Eastern Ukraine, the Colombian government’s refusal to accord prisoner of war status to FARE (Revolutionary Armed Forced of Colombia) fighters during Colombia’s civil war, and Israel’s conflict with Hamas in the Gaza Strip     

The failure of the law of armed conflict to recognise the moral equality of soldiers in the context of asymmetric conflicts is particularly striking given that non-international armed conflicts are much more prevalent than wars between states, and have been increasing as a proportion of wars since the end of World War II.  While it may not be surprising that states do not find it in their interest to accord war rights to the non-state groups that take up arms against them, the increasing prevalence of asymmetric warfare calls on us to examine if non-state groups should have war rights, as a matter of just war theory. 

What do the philosophers say about the war rights of non-state groups? Despite the prevalence of non-international armed conflict, much of just war writing does not explicitly address asymmetric conflicts and whether the rules that apply in such wars comport with or differ from those that pertain in wars between states. Some more recent work does address the subject but presents quite fragmented views. Still, other theorists who begin from a cosmopolitan perspective, like Cécile Fabre, reject the notion that the rights of individuals, including their rights during wartime, derive from their membership in a group of any kind, be it a state or non-state group. For cosmopolitans, the question of whether the war rights of non-state fighters differ from those of members of the armed forces of a state is, accordingly, a non-sequitur. 

Among those just war theorists who have considered whether, and under what circumstances, non-state armed groups should be able to claim war rights, several approaches have emerged. One line of thought seeks to update the requirement from traditional just war theory that war, in order to be justified, must be authorized by a “legitimate authority,” which in early writings on the topic was understood to be limited to the sovereign. This strand of just war theory affirms the relevance of the “legitimate authority” requirement, but rejects its state-centric provenance and revises it to recognize entities other than states that might qualify. Adherents to this view will ask whether a “community” or “political society” exists that is entitled to seek self-governance, and which in turn may claim the right to have recourse to political violence. Assuming a group qualifies as a political community, a closely related question is whether those who have taken up arms genuinely represent that community, or are merely taking up violence in its name. Under this “consent principle,” a warring group will satisfy the legitimate authority requirement only if it has been authorized to wage war “by those on whose behalf the war is fought.” Some theorists add prudential considerations, such as whether the non-state armed group has reasonable prospects of success; others note that even though states may not be the only entities that can be legitimate authorities, in practice they are more likely to satisfy the requirement than non-state groups.

A second approach tends to link a non-state group’s entitlement to wage war to the character, and sometimes even the justice, of its cause for waging war. The first line of demarcation is to extend war rights only to non-state groups acting on the basis of political motivations, as opposed to other violent groups (like organised crime groups). A second proposed limitation is to deny the entitlement to wage war to groups (whether they are states or non-state groups) that cannot “pass basic moral tests”: an organisation that is “sufficiently evil . . . cannot represent a political community; its members can act only in their private capacity.” Revisionist theorists generally adopt this perspective and accord war rights only to those whose ad bellum cause for war is just; unjust combatants cannot claim war rights regardless of whether the entity for which they are fighting is a state or a non-state group. And the cosmopolitans are explicit: the question of whether a group may claim war rights depends on whether its rights are being violated, and not the characteristics of the group; indeed, some cosmopolitans argue that even individuals may claim the right to wage war in certain circumstances 

A third position–one espoused more by lawyers than just war theorists–links entitlement to war rights to the means a non-state group uses to wage war. Under this view, even if a fighting force is representative of a political community, and even if it is fighting for a just cause, the group’s eligibility for war rights depends on whether it complies with jus in bello principles. More precisely, adherents of this view believe that warring groups that might otherwise have a just entitlement to war rights forfeit those rights if they violate the laws of armed conflict; for example, if they intentionally target civilians, or if they fail to distinguish themselves from the civilian population. A related position is that armed groups may not claim war rights if they do not meet the standards the law of war uses to define who qualifies as a member of the armed forces of a state: namely, operating under a responsible command; having a fixed distinctive sign recognisable at a distance; carrying arms openly; and conducting operations in accordance with the laws and customs of war.

(To be continued)
Prof. Ashoka Jahnavi Prasad

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