#24 Laws of War Brief (Part 1):
What is the Law of Armed Conflict & Customary International Law?
– Dr Regeena Kingsley
‘How the malice of the wicked was reinforced by the weakness of the virtuous.’[1]
– Winston S. Churchill
In previous blogs I have presented case-studies of Multinational Operations (MNOs) in Rwanda, Bosnia and Kosovo, in which participating national forces – bound by government-imposed national caveat constraints – failed to use lethal force at the critical and necessary moments in order to fully uphold or pursue the primary security objectives of their security mission mandates.
In Rwanda in 1994 and Bosnia in 1995, UNAMIR and UNPROFOR national contingent forces failed in their preeminent mandated duty to act in a robust military fashion to protect the lives of thousands of non-combatant civilians, sheltering in UN safe areas under their command, from the hostile intent and hostile ‘lethal force’ actions of Enemy forces towards the local civilian population. In addition, these same national forces also failed to prevent, halt, suppress and punish combatants who committed genocide and crimes against humanity against these non-combatant civilians (see blogs ‘#18 Caveats Endanger & Caveats Kill: National Caveats in UN Operations in Angola, Rwanda & Bosnia-Herzegovina’, ‘#20 Betrayal & Barbarism in Bosnia: The UNPROFOR Operation, National Caveats & Genocide in the Srebrenica UN “Protected Area”’, ‘#21 Srebrenica Aftermath: Serb Guilt & Dutch Liability for the Genocide in the UNPROFOR ‘Safe Area’ in Bosnia’, and ‘#22 Recommended Viewing: The UN, National Caveats & Human Carnage in Rwanda’).
Genocide in Rwanda: In April 1994, 2,000 Tutsi civilians seeking refuge at a UN school compound in Kigali, that was guarded by a unit of armed Belgian UNAMIR forces, were ultimately abandoned by these UN ‘protectors’ and then butchered by hostile and genocidal Hutu militia armed with machetes, who had for days been watching and waiting outside the school gates.[2]
In Kosovo, despite the express aim of the security mission being ‘to establish and maintain a secure environment’ in Kosovo including ‘public safety and order’, two-thirds of the NATO KFOR force was comprised of national contingents restrained by national caveat bans that prohibited them from any participation or engagement whatsoever in ‘direct combat-related functions.’ Furthermore, the majority of KFOR national contingents were also prohibited by their governments from engaging in low-level riot control operations. Among those contingents theoretically permitted by their governments and Rules of Engagement (ROE) to actually conduct these riot control operations, moreover, a substantial number of these national contingents were ill-trained, ill-equipped and ill-prepared to actually conduct riot control in actuality. Not surprisingly, the disconnect and outright contradiction between the KFOR mission mandate and its key security objectives on the one hand, and the restrictive ROE of contributed KFOR national contingents on the other, had direct and serious consequences during the Kosovo Riots of 2004.
During this sudden uprising, violence was unleashed by angry Albanian mobs against the minority Serb population throughout Kosovo Province. The riots were essentially a deliberate attempt to conduct ‘reverse ethnic cleansing’ against the Kosovar Serb population, in direct if belated retaliation for the Serb ethnic cleansing that had been carried out against pro-independence minorities during the previous decade from 1991-1995 in Bosnia and Croatia (see blog ‘#23 Caveat Chaos in Kosovo: Divided Allies & Fettered Forces in NATO’s KFOR Operation during the 2004 “Kosovo Riots”’). During the course of this three-day rampage, the vast majority of KFOR military forces stood aside and took very little action to protect the lives of targeted civilian locals from the rioters, nor to prevent entire villages and city apartment blocks of homes from being set on fire, nor to safeguard significant objects of Serbian cultural heritage and worship from destruction – including ancient churches and even cemeteries – from perverse desecration and destruction during the riots. Indeed, some KFOR military contingents failed to take any action whatsoever during the security emergency – among them two NATO Lead Nations, France and Italy, with significantly large KFOR national contingents in addition to lead command responsibilities over their respective KFOR sectors.
Family homes in Serbian towns and villages in Kosovo Province were set on fire or destroyed by violent Albanian rioters during the Kosovo Riots of 17-19 March 2004.[3]
In sum, the tragic results of government-imposed caveat constraints on national forces within these three international security missions – springing from a crippling unwillingness within government to allow their national military forces to use force when necessary – were the commission by hostile belligerents of war crimes against both civilians and civilian objects within the missions. Namely:
(1) The unimpeded killing of non-combatant civilians in all three international security operations;
(2) The commission of genocide and crimes against humanity against thousands in Rwanda and Bosnia; and
(3) Unchecked ethnic cleansing in Kosovo involving the deliberate destruction or razing of homes in the cities as well as in the countryside (including the burning of entire villages and the forced displacement of their inhabitants), and targeted destruction of sites of great historical import or cultural significance to the local Serb civilian population, including multiple places of worship (one of which, like Notre Dame in Paris, was a UNESCO World Heritage site, dating from the 14th century).
These disasters in Rwanda, Bosnia and Kosovo, involving national military contingents engaging in both UN- and NATO-led multinational security operations over a period of ten years, are more than government, military and humanitarian failures however. The negligence exhibited by many of these national military contingents during these international security campaigns, in neither acting to protect the lives of non-combatant civilians targeted by hostile combatant forces, nor acting in defence of civilian property and places of worship and cultural heritage targeted for destruction by hostile combatant forces, in fact constitute failures to uphold and enforce the very laws of war – now known collectively as the Law of Armed Conflict (LOAC).
[See in particular the LOAC protections provided in Common Article 3 of the Geneva Conventions, in addition to Articles 51, 52, 53 and 75 of Additional Protocol I governing ‘International’ conflict, and Articles 4, 13, 16 and 17 of Additional Protocol II governing ‘Non-International’ conflict.]
The LOAC is comprised of international laws such as the Geneva Conventions, which, once ratified by individual Nation States, proscribe powerful and unequivocal obligations and duties on all individual members of the Nation State’s armed forces during any and every military conflict. Some of these LOAC obligations have been so universally ratified and accepted as customary norms worldwide over the last century, that they have become extremely powerful and are now internationally regarded as binding on all military and non-military combatant forces, in all places, and at all times, during all the stages of conflict that exist on the scale between peace and war.
This blog is a brief overview of the LOAC, Customary International Law, and the challenges posed to both by modern armed conflict today. In the following blog, ‘#25 Laws of War Brief (Part 2): The Protections, Rights & Obligations of Civilian Non-Combatants & Military Combatants under the LOAC ’, I will continue this analysis by presenting what is, to the best of my understanding, the most important, mandatory and need-to-know obligations of the LOAC and CIL on all individual military personnel of national armed forces – of all ranks, all Services, and all nations around the world.
What is the Law of Armed Conflict (LOAC)?
Within the vast body of International Humanitarian Law (IHL) that exists today, LOAC is the field of law that governs all international relations concerned with armed conflict, and is comprised of all international law relating to the existence and conduct of all armed conflict and military occupation.[4]
It is comprised of:
- International treaties, agreements, pacts, conventions and protocols (including the 1949 Geneva Conventions and their 1977 Additional Protocols);
- International customs or practices that are so consistently repeated in modern warfare that they are accepted by States as binding law, also known as ‘Customary International Law’;
- Common principles of law generally recognised by civilised nations;
- Judicial decisions of international courts; and the
- Writings of highly-qualified legal experts.[5]
The goals of the LOAC are twofold:
(1) To ensure minimum protections are given to the victims of war during armed conflict; and
(2) To reduce human suffering during conflict by safeguarding the fundamental principles of humanity in times of war.
Classification: ‘International’ & ‘Non-International’ Armed Conflict
Once armed conflict breaks out, the exact laws of war and regulations that govern the hostility depends largely on its classification as either an ‘International’ or ‘Non-International’ armed conflict.
International Armed Conflict (IAC)
International armed conflict is defined in Common Article 2 of the Geneva Conventions as:
‘All cases of declared war, or of any other armed conflict, which may arise between two or more of the High Contracting Parties (States), even if the state of war is not recognised by one of them’
and
‘All cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.[6]
International armed conflict is thus defined in the 1949 Geneva Conventions as a conflict occurring between two or more States and to all cases in which partial or total occupation of a State’s sovereign territory occurs. Additional Protocol I to the Geneva Conventions of 1977 adds further to this understanding, outlining further in Article 1(4) that self-determination movements of a native population against another State’s colonial domination, alien occupation or racist regime (discriminating against and/or persecuting one or more ethnic races within the State) may also be considered an ‘International’ armed conflict under International Law, in accordance with the principles enshrined in the UN Charter.[7]
In sum, International armed conflict (IAC) may be regarded as largely inter-State conflict, that is, conflict that takes place between States, which following World War II (WWII) in 1949 was considered the prevailing form of conflict in a State-centered international system.
Non-International Armed Conflict (NIAC)
‘Non-International’ armed conflict, by contrast, is the classification given to all forms of armed conflict that do not conform to, and are hence not ‘covered’ by, the definition of ‘International’ armed conflict provided above. Alluded to briefly in Common Article 3 of the 1949 Geneva Conventions, and then much more fully in Additional Protocol II of 1977, Non-International armed conflict refers to all armed conflict that takes place:
‘In the territory of a High Contracting Party [State] between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.[8]
Internal security emergencies within a State, i.e. disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature, e.g. terrorist attacks, do not comprise ‘armed conflict’ and are therefore not governed by the LOAC on Non-International armed conflict.[9]
In order to be a Non-International armed conflict, either: (1) a minimum level of intensity in the hostilities must be reached, e.g. when the government is obliged to use military armed forces against dissident insurgents, instead of simply the police force; or (2) non-government dissident groups must possess organized armed forces sufficient to render them ‘parties to the conflict’, meaning that they are operating under some kind of command structure and have the capacity to sustain military operations within the State.[10]
Non-International armed conflicts typically involve civil wars in which: (a) the government of a State is using its regular armed forces to fight against one or more identifiable, dissident armed groups operating within the territory of the State; or (b) armed and hostile fighting is taking place between dissident, rival armed groups within a State, that does not involve the government, but nevertheless requires the government to act to restore security and stability to the State.[11]
In sum, Non-International armed conflict (NIAC) largely concerns intra-State conflict – that is, armed conflict that occurs within the territory of a State.
Modern Armed Conflict: IAC, NIAC or ‘Mixed’?
Counter to expectation, it has in fact been Non-International, rather than International, armed conflict that has predominated in theatres of conflict around the world since the end of WWII, and which still continues to represent the majority of armed conflicts today.[12] The Additional Protocols, dealing expressly with the two categories of International (Additional Protocol I) and Non-International (Additional Protocol II) armed conflict, were written in 1977 in order to reflect this reality, and to express international concern that the victims of Non-International armed conflict likewise be afforded basic protections under the LOAC, especially given the great danger posed by armed groups to the lives of ordinary civilians in these ‘high-intensity’ and highly-violent internal conflicts.
The legal classification of an armed conflict as either an International or Non-International armed conflict still determines which laws of war apply in any given conflict today. International armed conflicts are governed by all four Geneva Conventions in addition to Additional Protocol I, while Non-International conflict is governed by Common Article 3 in the four Geneva conventions in addition to Additional Protocol II, but also leans heavily on internationally-accepted customs or norms with regard to basic human conduct, protections and rights in warfare known as Customary International Law.
The complexity of modern conflict today however – with wars increasingly involving features of both International and Non-International conflict at the same time – has presented some challenges to this clear-cut LOAC categorisation of war in recent times (e.g. the Global War on Terrorism involving inter-State warfare in addition to intra-State insurgencies, and the wars that have taken place in both Georgia and Syria), with guidance often having to be provided on a case-by-case basis by the evolving consensus of world opinion on the conflict.
Nevertheless, the complexity of modern war has not signalled an end to the IAC and NIAC LOAC categorisation of armed conflicts. Indeed, the international order continues to be founded on the 1648 Westphalian principles of State sovereignty, sovereign jurisdiction over territorial integrity and the principle of non-intervention, that has survived intact over many centuries despite many crises and upheavals to the system, not least WWI, WWII, the Cold War Superpower confrontation, and even the post-9/11 world. Within this resiliently-enduring Westphalian system, ‘State’ and ‘Non-State’ actors continue to form the basic building blocks of the international system today, and the fundamental parties and actions within a conflict can be identified even within very complex conflicts, meaning that categorisation of wars into ‘International’ and ‘Non-International’ armed conflict can still take place.
In a clinical sense, any armed conflict that does not conform to the IAC definition provided in Common Article 2 of the Geneva Conventions or Article 1 of Additional Protocol I must ipso facto be regarded and treated as a NIAC armed conflict. In cases where there is any doubt as to a conflict’s rightful legal classification, moreover, that war can be designated a ‘mixed’ armed conflict, a designation which activates the full body of the LOAC to the conflict, regardless of classification difficulties, thereby ensuring the protection of war victims in that conflict in accordance with the abiding spirit and goal of the Geneva Conventions.
Consequently, just as in the past, the laws of war that govern armed conflict in the world today – though a little outdated – are still practically workable to confront the problematic conflicts of the twenty-first century, no-matter how complex they are and may yet become.
The Jurisdiction of the LOAC
Under this body of International Humanitarian Law for the conduct of war, known as the LOAC, all laws and conventions on armed conflict that have been ratified by a State are binding on that State’s armed forces and applies in all military situations, whether or not war has been formally declared or recognised.[13]
This means that ratified laws of the LOAC must be applied and adhered to by the nation’s armed forces at all times – during peacetime, during war, and during all the various stages of the war spectrum in-between these conflict poles, ranging from non-kinetic and non-traditional peacekeeping operations, at one end of the spectrum, to overtly kinetic, offensive warfare operations, on the other.
All service men and women on military operations worldwide have a personal duty and obligation to act lawfully by obeying the LOAC during their service in the military, no-matter the military situation – in peace or in war, and no-matter the location of deployment – at home or abroad.
The duty to obey the LOAC is so forceful that it demands obedience even to the extent of disobeying national superior orders that are perceived to be manifestly unlawful under the LOAC.
In fact, it is the duty of any serviceman or servicewoman to disobey superior orders, if those orders are manifestly unlawful under LOAC (i.e. clearly illegal under the LOAC to an ordinary person with ordinary common sense).[14]
This is because LOAC constitutes the highest law governing armed conflict in the world today and is the ultimate legal standard internationally for the lawful conduct of war.
Indeed, the sanctity and power of the LOAC holds true universally and applies equally to all military service men and women operating in conflict theatres around the globe in multinational military operations past, present and future. If judges are honest and the compass of justice truly points north in law-abiding nations, to whom members of the armed forces belong, then any individual member of the Armed Forces who disobeyed superior orders that were manifestly illegal under the LOAC, in order to uphold the binding obligations and rights under the LOAC, ought not fail to be exonerated of any crime or wrong-doing during any subsequent civilian or military trial.
To see a table listing the States that have ratified the four 1949 Geneva Conventions and its two 1977 Additional Protocols, click on the following link:
What is Customary International Law (CIL)?
In addition to nationally ratified laws of war (e.g. international treaties, conventions, pacts, agreements and protocols), according to the LOAC, certain obligations and rights apply universally, to all States, and all individuals, at all times due to the binding obligations that exist under Customary International Law (CIL).
Indeed, the legal obligations and rights of CIL apply regardless of:
(1) Whether or not a state of “war” is formally considered to exist;
(2) Whether or not a State or individuals are participating parties or supporting parties to an armed conflict; and lastly,
(3) Whether or not governments of the nations involved have ever ratified particular LOAC treaties.[15]
CIL refers to practices in warfare that are so consistently upheld and adhered to by a majority of States on the world stage that they have become generally regarded as law. States comply with the practice out of a sense of legal obligation to an international norm or custom, rather than solely due to their own legal LOAC obligations or national interests.[16]
CIL is considered binding on all states, regardless of whether or not the practices have been enshrined in international treaties or, if the practice is already within international legislation, whether all or a majority of States, have signed on to them.
However, CIL is founded on general, rather than unanimous, international recognition and agreement. This means that in rare instances where a State has historically consistently objected to a particular practice or custom of conflict, the principle of customary law forbidding that practice is not considered legally binding for that particular State with regard to that specific practice.[17]
Nearly all of the major principles of LOAC as well as associated treaty law are now considered CIL, most notably the following treaties:
(a) The 1907 Hague Conventions IV (along with its annex of Hague Regulations), VII and IX relating to the Laws and Customs of War on Land;
(b) The 1948 Convention on Genocide; and
(c) The four 1949 Geneva Conventions relating to ‘International’ inter-State conflict (but also including ‘Common Article 3’ relating to ‘Non-International’ intra-State conflict in all four conventions), which provide protections to –
(1) Wounded and sick military personnel on land (Geneva Convention I),
(2) Wounded, sick and shipwrecked military personnel at sea (Geneva Convention II),
(3) Military personnel who have become Prisoners of War (Geneva Convention III), and
(4) Civilian persons in time of war (Geneva Convention IV).[18]
‘Common Article 3’ – the article common to all four of the Geneva Conventions of 1949 which alone treats ‘Non-International’ armed conflict – requires that, in addition to humane treatment for all military personnel ‘hors de combat’ or taken ‘Prisoner of War’ in International armed conflicts, all persons not taking an active part in hostilities within a Non-International armed conflict be likewise treated humanely in all circumstances, regardless of race, colour, religion, sex, birth, wealth or any other similar criteria.[19] To give ‘humane’ treatment is to act with consideration, respect and mercy for the basic welfare of other human beings under your power in any given situation.
In essence this means that, according to CIL, States acting as Detaining Powers must provide persons under their power with the most humane (‘human’) treatment that each State is capable of providing, including adequate food and medical care, and that they should not submit those persons under their control to ‘unnecessarily unpleasant’ treatment that States would not like their own military personnel or civilian citizens to undergo themselves if captured, interned or detained by another State or armed group.[20]
The obligations contained in these treaties, outlined above, are so generally accepted and upheld, they are now regarded as legally binding on all States in the world – including States that are not in fact ratifying Parties to the treaties themselves.[21]
‘Common Article 3’: The article common to all four of the Geneva Conventions of 1949, which is also an accepted and established customary norm of CIL, requiring that all persons that are not taking an active part in hostilities within a ‘Non-International’ intra-State armed conflict be treated humanely in all circumstances, regardless of race, colour, religion, sex, birth, wealth or any other similar criteria. To give humane treatment is to give due mercy and regard to the welfare of fellow human beings under your power in any given situation.[22]
Evolving Customs of CIL in Modern Armed Conflict
Few practices and norms of CIL with regard to conflict and the conduct of war have not been codified into LOAC legislation.[23] However, because CIL is based on historical experience and general international consensus with regard to legal obligations, norms and practices during armed conflict, it is continually changing as modern conflict evolves, meaning that the CIL legal obligations of States may change without any formal notification at all.[24] As Derbyshire states:
‘The [New Zealand Defence Force] Manual of Military Law 1929 includes in its section on the Laws of War observations to the effect that there can, in the nature of things, be no finality regarding the law and usages of war. Fresh conventions are constantly under negotiation and in the absence of such agreements States are bound by customary international law which is always evolving…These observations are as applicable today as they were then. LOAC continues to evolve as mankind struggles to advance the principles of humanity in warfare whilst maintaining the needs of international and national security.’[25]
Today evolutions in CIL are taking place in the field of restrictions and limitations imposed on weaponry, in the use of lethal force, and in the field of international criminal law as it relates to Islamist terrorists and jihadist insurgents in the global struggle to combat extremist, Islamo-fascist regional insurgencies and terrorist attacks around the globe.
How to Treat Captured Terrorists (‘Unlawful Combatants’) Operating in Warzones?
Perhaps the most important and pressing evolution of CIL in recent decades concerns the treatment of captured Al Qaeda/Islamist terrorists, and terror-using insurgents (e.g. Taliban militants or jihadist foreign fighters), that were captured by the United States or its allies during the wars associated with the broader ‘Global War on Terrorism’.
Al Qaeda terrorists attack the United States of America: On 11 September 2001 four passenger commercial aircraft were hijacked by Al Qaeda terrorists, in a plot designed and enacted by the central Al Qaeda cell led by Osama bin Laden in Taliban-ruled Afghanistan.
Two of the hijacked planes were each deliberately flown into the tall ‘Twin Towers’ buildings of the World Trade Center business complex located in New York city, the third plane into the U.S. Department of Defense “Pentagon” building in Washington D.C., and the fourth plane – targeting either the Presidential White House or the parliamentary Capitol building also in Washington D.C. – crashed in a field in Pennsylvania after an uprising of its passengers against the Islamist terrorist hijackers.
All of the passengers of the four civilian flights were killed, in addition to thousands of civilians of 115 different nationalities who were working in the buildings. In sum, nearly 3,000 people – mostly unarmed civilians living and working in a country at peace – were killed on this terrible day in human history, and a further 6,000 injured as a result of these terrorist attacks on “9/11”.[26]
The Global War on Terrorism (GWOT)
Following the 9/11 terrorist attacks against New York and Washington D.C. in the United States in September 2001, America and its coalition of allies went to war against the Al Qaeda terrorist network that had planned and carried out those attacks, and also those States who either hosted and gave refuge to, or materially supported, the terrorist network’s leaders and members.
A punitive war took place firstly in Afghanistan in 2001 against the Taliban regime hosting and shielding Osama Bin Laden, the leader of the Al Qaeda terrorist network. Subsequently a preventative ‘pre-emptive’ war took place in Iraq against Saddam Hussein’s dictatorship during 2003, which:
(1) had been meeting with senior Al Qaeda terrorist leaders;
(2) was cooperating with and housing Al Qaeda terrorist members at a chemical and biological weapons-testing laboratory situated at an Iraqi base near the Iranian border (including the notorious Al Qaeda terrorist attack-planner, Abu Musab al-Zarqawi); and
(3) was strongly suspected internationally of having stockpiles of illegal biological and chemical Weapons of Mass destruction (WMD), in addition to nuclear material from its nuclear development programme, that, given the regime’s long and proven record of support for terrorism, it was feared Saddam might easily give or sell to Al Qaeda terrorists to enhance and further their attacks in America and around the world (refer to the following endnote for quotes on the consensus in opinion and belief in 2002-2003 on the part of both American CENTCOM military commanders and White House civilian leaders on the necessity of waging the Iraq War against Saddam’s terrorist-supporting and AQ-fraternising regime in the post-9/11 strategic threat landscape).[27]
The worldwide campaign against Al Qaeda and other global terrorist networks along with their State sponsors or protectors, which began in 2001 following the 9/11 terrorist attacks, and continues in various forms against diverse Islamist terrorist entities (including ISIS) and in multiple conflict theatres around the globe to the present day, was termed the ‘Global War on Terrorism’ (GWOT).
Afghanistan and Iraq: Two conflict theatres in the Global War on Terrorism (GWOT).[28]
Terrorists: Non-State, Unlawful Combatants of International Armed Conflict
Between 2001-2006, Al Qaeda terrorists and local/foreign extremist insurgents captured in the territories of Afghanistan or Iraq committing acts of terror or violence against either Allied coalition forces or the new national governments, their forces, or their civilian population, were classed by the United States (U.S.) as non-State and unlawful Enemy combatants of International armed conflicts between States under the LOAC (where ‘unlawful Enemy combatant’ means ‘persons not entitled to combatant immunity’ who have committed acts in violation of the laws and customs of war during an armed conflict).[29]
Under this classification of the LOAC, Taliban and Al Qaeda militants were not entitled to the Prisoner of War (PW) protections given to lawful combatants under Geneva Convention III, nor entitled to any protections from any of the other three Geneva Conventions (regarding lawful combatants that are ‘hors de combat’ on land or at sea, and protections given to civilians), that together govern International Armed Conflict.
This absence of legal entitlement to the LOAC protections afforded to lawful armed combatants was strengthened further by the fact that these Islamist terrorists and insurgents conducted their operations out of uniform, failed to distinguish themselves from the civilian population thereby exposing innocents to harm, deliberately targeted innocent civilians themselves in terrorist attacks, forcibly used civilians as human shields to protect themselves from legitimate military responses provoked by their attacks, and generally showed a marked disdain, contempt and even hatred for the principles, protections and spirit of the laws of war.
In short, as terrorists or terror-using insurgents in conflict theatres – i.e. unlawful perpetrators of war crimes and excessive human suffering rather than victims – these captured ‘unlawful combatants’ had few rights or protections under the LOAC.
Indeed, it seemed to the U.S. government that they were in unchartered LOAC territory – faced with a new class of non-State, unlawful combatant, in a new kind of international war against non-State terrorist militants and their State supporters/protectors, that was neither foreseen nor governed by the laws of war contained in the 1949 Geneva Conventions. Since there was no set treaty or law specifically outlining the obligations due to such detainees under the Geneva Conventions when captured by an opposing force, it appeared the problems arising from this new conflict exigency would be best guided by the customs of modern CIL – notably, humane treatment consistent with the Geneva Conventions, but subject to military necessity: that of preventing additional, unlawful terrorist attacks against American citizens or those of its allies.
The GWOT: International or Non-International?
In 2006, however, there was a whirlwind of international legal controversy with regard to Al Qaeda and Taliban terrorists and terror-using insurgents captured by the United States and its coalition allies in Afghanistan and Iraq, and held as unlawful combatant detainees in Guantanamo prison.
The controversy especially concerned America’s use of CIA/Department of Justice government-approved ‘enhanced interrogation techniques’ to extract information from approximately 33 uncooperative detainees on plans for future terrorist attacks and the members and organisational structure of the Al Qaeda terrorist network. The severest of these interrogation tactics was supervised ‘waterboarding’ – a technique used on 3 of the highest ranking, most knowledgeable and most obstinate Al Qaeda terrorists in American custody (see endnote).[30]
In a landmark case Hamdi v Rumsfeld, the U.S. Supreme Court overturned the U.S. government’s inter-State International LOAC categorisation of the conflicts and ruled instead (with two dissenting judges) that these captured terrorists and insurgents were in fact non-State and unlawful Enemy combatants of intra-State, Non-International armed conflicts, since armed conflict was taking place against a non-State actor, the terrorist network Al Qaeda, in the territory of countries that were party to the Geneva Conventions (e.g. Afghanistan et al.).[31] Paradoxically, the court also ruled simultaneously that these captured terrorists and terror-using insurgents be given a right normally given to civilians taking a direct part in hostilities during International armed conflict in Article 75 of Geneva Convention IV – namely the right to challenge ‘death sentences’ (a ruling later expanded to include the right to challenge basic ‘detention’ in the Boumediene v. Bush case in 2008).[32]
This ruling meant that whereas formerly all captured terrorists and extremist insurgent detainees of the GWOT held by the U.S. had no legal rights and protections under the IAC Geneva Conventions, they were from that moment on guaranteed fundamentally ‘humane’ treatment under the clear NIAC law of Common Article 3 in the 1949 Geneva Conventions (ratified by the U.S. whereas the Additional Protocols are not), which is also CIL.
It was considered that this LOAC classification change would not only give more formal legal protection to the captured terrorists and extremist insurgents, but also automatically rule out any further use of enhanced interrogation techniques to extract actionable intelligence from the detainees – no matter how effective or successful they were – which advocates of the classification change deemed ‘inhumane’ and a form of ‘torture’ illegal under CIL (see endnote for a discussion on torture, and refer to American President George W. Bush’s argument provided in endnote #30 above).[33]
Indeed, from that moment onwards, waterboarding and many other of the more ‘aggressive’ enhanced interrogation techniques were no longer sanctioned or used by the CIA program on detainees at Guantanamo.
Al Qaeda terrorists (‘unlawful combatants’ under the LOAC) captured in Afghanistan.[34]
After the Ruling: Ongoing Complications of the Campaign Against Terrorists & their Enablers
Despite the U.S. Supreme Court’s rulings in 2006 and 2008, however, strong arguments can and have still been made that the former inter-State, International armed conflict classification was, and is, the correct and rightful classification for these extremist and indiscriminately violent detainees captured during the GWOT. After all, the State government regimes in Afghanistan and Iraq were indeed both clearly and successfully removed through warfare by a coalition of other States, and while the conflict evolved over time in both theatres to include multiple, non-State, regional insurgencies of extremist fighters waging war against both allied coalition forces and the new government apparatus of these States, the original coalition of States remained heavily involved in the prosecution of these wars towards the original goals of eliminating hostile Al Qaeda and other terrorist networks in these States and preventing any reestablishment of the terrorist networks in these States that would again present a direct threat to America and other freedom-loving, democratic nations around the world.
On the other hand, however, one of the most significant new developments in the GWOT – namely, the international military campaign against ISIS in Iraq and Syria of recent years – was clearly more of a ‘Non-International’ armed conflict in nature, involving as it did a non-State terrorist entity (affiliated with the non-State, terrorist network Al Qaeda) which the States of Iraq and Syria both fought to eliminate from their territory from 2014 onwards with assistance from many other State allies from around the globe, a goal finally achieved successfully in 2017 and early 2019 respectively.
The fact also remains that terrorists operating within conflict zones are, by intent and design, mass-murdering criminals, who conduct illegal activities using prohibited means and methods, and who, by their very nature and purpose, do not themselves respect or adhere to the rules prescribed in Common Article 3, and give no fundamentally ‘humane’ treatment to either military or civilian combatants or non-combatants, either in the course of their fighting or upon capture when held in their power.
While it is true that the criminal behaviour of terrorist unlawful combatants never negates the obligations and duties of ‘lawful combatant’ military personnel to act in an upright manner in their own decisions and actions (the law of ‘Tu Quoque’/’You also’ being no defence for crimes committed against the LOAC), by respecting, adhering to, and upholding the LOAC themselves in their comportment at all times within an armed conflict, the basic lack of reciprocity in the ongoing criminal nature, behaviour and deliberate intent of terrorist and terror-using combatants does continue to challenge and frustrate contemporary thinking on the matter.
Figure 12.5 – Anti-Government Enemy Insurgents: Photos of Taliban & ‘Neo-Taliban’ insurgents operating in Afghanistan between 2010-2014.[35]
According to Pejic, despite the U.S. Supreme Court’s ruling of applying Common Article 3 (NIAC law) and Article 75 (IAC law) to detainees of the GWOT (both articles being fundamental principles of CIL), the reality is that:
‘The two articles do not…provide any guidance on many substantive and procedural legal issues, nor on how to resolve practical questions, that arise in relation to captured “unlawful combatants”.’[36]
Indeed, Pejic asserts that the GWOT is neither IAC nor NIAC in nature, arguing that it ‘may in some situations be an international armed conflict, in other instances a non-international armed conflict, and in still other cases not an armed conflict in the legal sense at all.’[37] As Pejic concludes:
‘Every situation of organized armed violence arising from or in response to terrorism must be examined on a case-by-case basis. The circumstances of each will determine whether it legally and factually meets the qualifying conditions as an armed conflict (international or non-international). No “one size fits all” legal approach to terrorism, particularly as to the judicial nature of the situation and the classification of suspected terrorists, is, or has proved to be, feasible in practice.’[38]
Two slides taken from the “Google TimeLapse” terrorism project, which has tracked and displayed terrorist attacks that occur worldwide each year over a twenty-year period from 1997-2017.[39]
The truth is that modern conflict has become so extremely complex, intractable and ‘mixed’ in current times, displaying simultaneously features of both International and Non-International armed conflict – especially in modern anti-terrorism campaigns waged against Islamist terrorist groups and terror-using insurgencies in the Middle East, Central Asia, Africa and Asia – that it has created ‘grey zones’ with regard to the appropriate LOAC that leave room for diverse legal interpretation between nations and new evolutions in customs of CIL.
The question of how to treat, detain and put on trial these dangerous unlawful combatants, for the war crimes that they are continuing to commit in warzones against both ‘non-combatant’ civilians and ‘lawful combatant’ national military and police forces in the territories of sovereign States around the world, is consequently presenting a difficult legal and political challenge to the international community at present time, and will continue to do so for some time to come – especially as both the threat and commission of these terrorist acts of brutal, savage and indiscriminate mass-murder increase.
The extreme, Islamo-fascist terrorists and insurgents of today do indeed present a new and different brand of non-State and unlawful Enemy combatant in armed conflict in modern times, that was certainly not envisaged in the drafting of the Geneva Conventions in 1949 or the IAC and NIAC Additional Protocols in 1977.
* For more analysis on the issue of “national caveats” and their impact on the effectiveness of multinational military operations conducted in the interest of establishing and maintaining international peace and security, see Dr Regeena Kingsley’s original doctoral research in Defence & Strategic Studies (2014) entitled: “Fighting against Allies: An Examination of “National Caveats” within the NATO-led International Security Assistance Force (ISAF) Campaign in Afghanistan & their Impact on ISAF Operational Effectiveness, 2002-2012”.
Dr Kingsley’s full Thesis and its accompanying volume of Appendices can be viewed and downloaded from Massey University’s official website here: http://mro.massey.ac.nz/xmlui/handle/10179/6984
Endnotes
[1] Winston S. Churchill, Memoirs of the Second World War – An abridgement of the six volumes of ‘The Second World War’, New York: Houghton Mifflin Company, 1959, p. 12.
[2] Modified image taken from P. Gourevitch, ‘After the Genocide’, The New Yorker [Magazine], 18 December 1995, https://www.newyorker.com/magazine/1995/12/18/after-the-genocide, (accessed 14 September 2017).
[3] Modified images taken from ‘Kosovo – As it really is 1999-2003’, Post-War Suffering – Serbian Orthodox Diocese of Raska and Prizren, 2019, http://www.kosovo.net/report.html, (accessed 17 January 2019); ‘March Pogrom – Kosovo 17-19 March 2004’, News from Kosovo – Serbian Orthodox Diocese of Raska and Prizren, http://www.kosovo.net/news_pogrom.html, (17 January 2019); Rupert Colville, ‘Kosovo minorities still need international protection, says UNHCR’, UNHCR The UN Refugee Agency UK, 24 August 2004, https://www.unhcr.org/news/latest/2004/8/412b5f904/kosovo-minorities-still-need-international-protection-says-unhcr.html, (accessed 17 January 2019); and ‘Burning of the Serbian village Svinjare, March 17’, Kosovo.net, 2019, http://www.kosovo.net/pogrom_march/svinjare1/page_01.htm, (accessed 17 January 2019).
[4] J. Derbyshire (MAJ, New Zealand Defence Force (NZDF)), ‘149.335 Introduction to LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, Centre for Defence Studies, Massey University College of Humanities and Social Sciences, Palmerston North, New Zealand, 2008, p. 5.
[5] Ibid., pp. 5, 9-15.
[6] Common Article 2 to the Geneva Conventions 1949.
[7] Additional Protocol I (API) Article 1(4).
[8] Additional Protocol II (APII) Art 1(1).
[9] APII Art 1(2).
[10] ‘Non-international armed conflict’, ICRC Casebook – How does Law protect in War?, 2019, https://casebook.icrc.org/glossary/non-international-armed-conflict, (accessed 23 April 2019).
[11] ‘The Use of Force in International Law: Types of Armed Conflict’, Open University [Great Britain], 2019, https://www.open.edu/openlearn/society-politics-law/the-use-force-international-law/content-section-2.1.3, (accessed 23 April 2019).
[12] ‘Customary International Humanitarian Law’, The Magazine of the International Red Cross and Red Crescent Movement [Magazine], 2005, p. 2, http://www.redcross.int/EN/mag/magazine2005_2/24-25.htm (accessed 28 August 2008).
[13] Derbyshire, ‘149.335 Introduction to LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, op. cit. pp. 5, 7.
[14] Derbyshire, ‘149.335 Prevention and Punishment of Breaches of LOAC’, in ‘Section Twelve: International Criminal Court and Enforcement’, 149.335 Law of Armed Conflict, ibid., p. 10.
[15] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, p. 2, ‘Section One: Introduction to LOAC and Historical Development’, p. 3, and ‘149.335 Introduction to LOAC’ in ‘Section One: Introduction to LOAC and Historical Development’, p. 7, 149.335 Law of Armed Conflict, ibid.
[16] Derbyshire, ‘149.335 Introduction to LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, ibid., p. 13.
[17] Ibid.
[18] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, p. 6, and ‘149.335 Introduction to LOAC’ in ‘Section One: Introduction to LOAC and Historical Development’, p. 16., 149.335 Law of Armed Conflict, ibid.
[19] Common Article 3 to the Geneva Conventions 1949 (see pp. 35-36 in Geneva Convention I, pp. 61-62 in Geneva Convention II, pp. 81-82 in Geneva Convention III, and pp. 151-152 in Geneva Convention IV, in the following PDF of the Geneva Conventions provided by the International Committee of the Red Cross, accessible here: https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf).
[20] Derbyshire, ‘NZDF LOAC Manual – Chapter 15: Prisoners of War and other persons deprived of their liberty in the course of armed conflict’ in ‘Section Nine: Prisoners of War and Other Persons Deprived of Their Liberty’, pp. 9-87, and ‘Section Ten: Internees, Detainees and Torture’, p. 5, 149.335 Law of Armed Conflict, op. cit.
[21] Derbyshire, 149.335 Introduction to LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, ibid., p. 14.
[22] Common Article 3 to the Geneva Conventions 1949.
[23] Derbyshire, 149.335 Introduction to LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, op. cit., p. 13.
[24] Ibid., p. 14.
[25] Derbyshire, ‘History of LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, ibid., p. 35.
[26] Modified images taken from M.E. Krivdo, ‘CJSOTF-A Combined Joint Special Operations Task Force-Afghanistan – A Short History 2002-2014’, Office of the Command Historian, 2016, https://www.soc.mil/ARSOF_History/articles/v12n2_cjsotf_page_1.html, (accessed 1 May 2019) and J. Satya, The ‘Clearest 9/11’ World Trade Center Footage on the Internet’, DigitalAmple.com, 5 August 2018, https://digitalample.com/the-clearest-9-11-world-trade-center-footage-on-the-internet/, (accessed 1 May 2019).
[27] M. De Long (Lt. Gen.) & N. Lukeman, A General Speaks Out [originally published as ‘Inside CentCom: the unvarnished truth about the wars in Afghanistan and Iraq’], Zenith Press, St. Paul (MN), 2007, p. 68.
With regard to the highly controversial Iraq War, the U.S. Marine Corps former Deputy Commander of U.S. CENTCOM, Lieutenant General (LTGEN) Michael DeLong, stated in 2007 that: ‘Although we wondered about the timing, we never wondered about the rightness of removing Saddam from power. As military professionals, [Tommy] Franks and I spent many hours examining the reasons for attacking Iraq, and asking ourselves if they were sound. Our conclusion was that they were…Given all of this information, and given that the CIA had made a judgement call based on this information, President Bush, in my opinion, would have been negligent not to act’ (DeLong, A General Speaks Out, ibid., pp.66, 69).
General (GEN) Tommy Franks, the U.S. Army former Commander of CENTCOM, has also defended America’s decision to go to war against the Saddam dictatorship in Iraq, stating that: ‘The intelligence, while not precise, was overwhelming. Still is to this day. Intelligence information is much more often imprecise than it is precise…[Included in our intelligence analysis was] WMD from the last Gulf War, the [testimony of Saddam’s defecting] son-in-law who gave information, [and the] monumental reams of intercepted information’ (cited in DeLong, ibid., p. 69).
Robert Gates, the U.S. Secretary of Defense under both the Bush and Obama Administrations from 2006-2011, likewise supported the U.S.-led coalition’s war to remove Saddam Hussein’s regime. Gates states the following in his memoir:
‘None of us doubted in the early 1990s that, just as soon as he could, Saddam would resume the programs he had under way before the [Gulf] war to develop biological, chemical, and nuclear weapons. The intensive inspections program instituted after the [Gulf] war uncovered evidence that the Iraqis had, in fact, been considerably further along in developing nuclear weapons than U.S. intelligence had estimated before the war…As long as the inspections effort continued and the sanctions were strictly enforced, his opportunities to resume the programs for weapons of mass destruction would be very limited. But as the years went by, Saddam became much more aggressive in limiting the reach of the inspectors, and the inspections for all practical purposes ended in 1998. Adherence to the sanctions also gradually weakened as a number of governments – France, Russia, Germany, and China, among others – angled for oil contracts and other business opportunities with the Iraqis. By 2003, most governments and intelligence services had concluded that Saddam had been successful in resuming his weapons programs. That view was reinforced by his boasting and his behavior, intended to persuade his own people – and his neighbors – of that success. The result was unanimous adoption in the fall of 2002 of UN Security Council Resolution 1441, which demanded a full accounting of progress in Iraq’s weapons programs and a rigorous international inspection effort. Serious consequences were threatened for noncompliance. Saddam nonetheless continued to play games with the inspectors and the international community. As Condi Rice would write years later, “The fact is, we invaded Iraq because we believed we had run out of other options. The sanctions were not working, the inspections were unsatisfactory, and we could not get Saddam to leave by other means”…Based on what I read – and my knowledge of Saddam’s behavior in the 1980s and early 1990s – it seemed highly likely to me that he had resumed working on weapons of mass destruction, that the sanctions were largely ineffective, and that the man was a very dangerous megalomaniac. So I supported Bush 43’s decision to invade and bring Saddam down‘ [emphasis added] (R. Gates, Duty – Memoirs of a Secretary At War, New York, Vintage Books, 2014, pp. 27-28).
[28] Modified images taken from: N. Shachtman, ‘Afghan Air War Hits 3-Year Low’, WIRED, 16 January 2012, https://www.wired.com/2012/01/afghan-air-war/, (accessed 1 May 2019); ‘Operations and missions: past and present’, North Atlantic Treaty Organization (NATO),25 April 2019, https://www.nato.int/cps/en/natohq/topics_52060.htm, (accessed 1 May 2019); L. Eptako, ‘Then and Now: What Replaced the Toppled Saddam Statue?’, PBS Newshour, 26 August 2010, https://www.pbs.org/newshour/world/saddam-statue, (accessed 1 May 2019); and B. Young, ‘How May Operation Iraqi Freedom [OIF] Campaigns Were There?’, HIRE G.I., 14 July 2018, https://hiregi.com/2018/07/14/how-many-operation-iraqi-freedom-oif-campaigns-were-there/, (accessed 1 May 2019).
[29] J. Pejic, ‘Unlawful/Enemy Combatants: Interpretations and consequences’, forthcoming in M. Schmitt & J. Pejic (eds) International Law and Armed Conflict: Exploring the Faultlines – Essays in honour of Yoram Dinstein, Brill Academic Publishers & Boston Martinus Nijhoff Publishers, Leiden, 2007, p. 7, in Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply?’, 149.335 Law of Armed Conflict, op. cit.
[30] For more information on the CIA’s waterboarding program, the three senior Al Qaeda members that were waterboarded, the actionable intelligence revealed by them, and a few of the terrorist plots stopped worldwide as a result of the enhanced interrogation techniques, see George W. Bush, Decision Points, New York, Crown Publishers, 2010, pp. 168-171.
Former President George W. Bush explains the rationale of his decision to adopt the enhanced interrogation techniques in his presidential memoir of his term from 2000-2008, stating:
‘At my direction, Department of Justice and CIA lawyers conducted a careful legal review. They concluded that the enhanced interrogation program complied with the Constitution and all applicable laws, including those that ban torture. I took a look at the list of techniques. There were two that I felt went too far, even if they were legal [the use of insects and mock strangulation]. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm. I knew that an interrogation program this sensitive and controversial would one day become public. When it did, we would open ourselves up to criticism that America had compromised our moral values.
I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior al Qaeda leaders, I would have had to accept a greater risk that the country would be attacked. In the wake of 9/11, that was a risk I was unwilling to take. My most solemn responsibility as president was to protect the country. I approved the use of the interrogation techniques. The new techniques proved highly effective.
…Of the thousands of terrorists we captured in the years after 9/11, about a hundred were placed into the CIA program. About a third of those were questioned using enhanced techniques. Three were water-boarded. The information the detainees in the CIA program revealed constituted more than half of what the CIA knew about al Qaeda.
Their interrogations helped break up plots to attack American military and diplomatic facilities abroad, Heathrow Airport and Canary Wharf in London, and multiple targets in the United States. Experts in the intelligence community told me that without the CIA program, there would have been another attack on the United States.
‘After we implemented the CIA program, we briefed a small number of lawmakers from both parties on its existence. At the time, some were concerned we weren’t pushing hard enough. But years later, once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics. They charged that Americans had committed unlawful torture. That was not true. I had asked the most senior legal officers in the U.S. government to review the interrogation methods, and they had assured me they did not constitute torture. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong. The CIA interrogation program saved lives. Had we captured more al Qaeda operatives with significant intelligence value, I would have used the program for them as well’ (Bush, Decision Points, ibid., pp. 169-171).
As a direct result of the CIA’s use of the enhanced interrogation techniques on the terrorist detainees at Guantanamo, over the period of 5 years between 2001-2006, the United States is credited with having saved the lives of countless hundreds of innocent, non-combatant, American and foreign citizens from planned Al Qaeda terrorist attacks around the world.
To better illustrate this point, the following comprises a list of the known various terrorist plots and attacks that were prevented or stopped by the U.S. as a result of the CIA’s enhanced interrogation programme during the early 2000s (among many other terrorist plots that remain classified and are therefore unknown to the general public):
(1) the 2002 U.S. West Coast Airliner Plot;
(2) the Arabian Gulf Shipping Plot;
(3) the Straits of Homuz Plot;
(4) the 2003 Pakistan Karachi Plot;
(5) the London Heathrow Airport Plot;
(6) the 2004 United Kingdom (UK) Urban Targets Plot;
(7) the U.S. Tall Buildings Plot; and
(8) the London Canary Wharf Plot.
Furthermore, according to the U.S. Department of Defense, as a direct result of the enhanced interrogation program the CIA was also able to successfully:
- Gain critical insight into the Al Qaeda terrorist network, including its structure, organisation, profiling, recruitment, casing and agenda;
- Open up new leads to terrorists and terrorist plots;
- Provide locational information on Al Qaeda managers and operatives;
- Corroborate much other intelligence;
- Make arrests of active Al Qaeda operatives and cells posing serious threats;
- Identify real names and roles of individuals within Al Qaeda;
- Identify individuals actively seeking chemical, biological and nuclear weapons;
- Expand the U.S. and its partners understanding of Al Qaeda, and other terrorist organisations, including the extent of their operations in the world; and
- Assess the progress that the U.S. and its allies were making against the Al Qaeda terrorist network, and other terrorist groups, by means of the Global War on Terrorism (GWOT).
(Bush, Decision Points, ibid., p. 171; United States Department of Defense (U.S. DoD), ‘Summary of the High Value Terrorist Detainee Program’, Office of the Director of National Intelligence, Washington DC 20511, Military Commission Proceedings at Guantanamo Bay, 2008, http://www.defenselink.mil/home/features/Detainee_Affairs/, (accessed 12 September 2008); U.S. DoD, ‘JTF-GTMO Information on Detainees’, Military Commission Proceedings at Guantanamo Bay, 4 March 2005, http://www.defenselink.mil/home/features/Detainee_Affairs/, (accessed 12 September 2008)).
*For an excellent documentary discussing the CIA’s use of enhanced interrogation techniques on captured terrorists detained at Guantanamo prison, and presenting both sides of the argument from the perspectives of 12 living ex-CIA Directors, see: ‘Spymasters: CIA in the Crosshairs” (Amazon link here: https://www.amazon.com/Spymasters-CIA-Crosshairs-Mandy-Patinkin/dp/B018T4TNHY).
[31] [Hamdan v. Rumsfeld, 2006] see S.C. Welsh, ‘Terrorism Detainees: Geneva Convention Common Article 3’, Centre for Defense Information Law Project, 2006, p.1, www.cdi.org, (accessed 16 January 2007) and L. Greenhouse, ‘Supreme Court Blocks Guantánamo Tribunals’, New York Times, 29 June 2006, https://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html, (accessed 23 April 2019).
[32] Derbyshire, ‘Section Ten: Internees, Detainees and Torture’, 149.335 Law of Armed Conflict, op. cit., p. 2; [Boumediene v. Bush, 2008] A. Shapiro, ‘Supreme Court Backs Rights for Terrorist Detainees’, National Public Radio NPR, 12 June 2008, https://www.npr.org/templates/story/story.php?storyId=91425261, (accessed 23 April 2019).
[33] Under the 1949 Geneva Conventions it is prohibited to torture non-combatant civilians, ‘hors de combat’ wounded, sick or PW military personnel, or other lawful combatants during an armed conflict. Modern CIL goes further than this, however, and contends that it is illegal to torture any person for any purpose or in any circumstances, or to subject any person to cruel or inhumane treatment for any purpose or in any circumstances, during any armed conflict (see in particular the 1987 UN Convention against Torture and the 2002 Rome Statute of the International Criminal Court – ratified by many, but not all, nations).
Torture has been defined in the Rome Statute as: ‘The intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions’ (Article 7(2)(e) available to view here: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf).
However, while this is a clear and generally accepted definition of ‘torture’, there is still no agreed international agreement on what specific acts actually constitute this ‘torture’, and there is additionally no internationally accepted definition of ‘humane’ vs ‘inhumane’ treatment. Adding to this confusion is the fact that this definition of torture provided above does not include pain or suffering arising only from, inherent in, or incidental to ‘lawful sanctions’ (where the meaning of ‘lawful sanctions’ remains vague and unclear) (Derbyshire, ‘Section Ten: Internees, Detainees and Torture’, 149.335 Law of Armed Conflict, op. cit., p. 4-5).
The lack of global consensus on these important definitions has meant that, while on the one hand most nations on the world stage absolutely oppose and condemn torture and inhumane treatment of any persons involved in an armed conflict, on the other hand, these nations hold diverse interpretations, understandings and positions on these terms and what they mean in reality and in practice during armed conflict.
This variation in interpretation is especially apparent with respect to, or in contrast to, practices of lawful interrogation in response to national security threats or during national security emergencies where the State is seeking to fulfil its primary responsibility and duty to protect the lives of its citizens. For under the LOAC, Detaining Powers are clearly permitted to question detainees in order to ‘ascertain their identity and status’ and to ‘obtain information of military value’, and are generally allowed to use skilful interrogation to induce detainees to provide intelligence of worth (‘NZDF LOAC Manual – Chapter 15: Prisoners of War and other persons deprived of their liberty in the course of armed conflict’, in ‘Section Nine: Prisoners of War and Other Persons Deprived of Their Liberty’, 149.335 Law of Armed Conflict, ibid., p. 36).
The LOAC also permits the handcuffing or physical restraining of persons for the purpose of interrogating them, as well as isolation methods, so long as these are temporary measures used only when strictly necessary militarily (Ibid., p. 35).
Adding to these legal rights, Article 75(3) of API states, moreover, that Detaining Powers are obligated to release detainees only when ‘the circumstances justifying the arrest, detention or internment have ceased.’ This is a principle supported by CIL which also allows that detainees may be held in detention against their will if there is a good reason to do so, and as long as reason requires (API Art 75(3) and ICRC Customary IHL Rule 99, in ‘NZDF LOAC Manual, ibid., pp. 83 and 128). However, CIL also asserts simultaneously that persons held in custody who are either unable or unlikely to take part in hostilities upon their release from custody – by reason of illness, or gravely diminished mental or physical health – should be released and directly repatriated as soon as possible (ICRC Customary IHL Rule 99, in ‘NZDF LOAC Manual – Chapter 15’, ibid., pp. 80-81).
During the early 2000s the Bush Administration sincerely believed and asserted, with full support and confirmation from the Pentagon, the Department of Justice and the CIA, that the U.S. government was in fact giving fundamentally ‘humane’ treatment to the terrorist detainees at Guantanamo prison according to the laws of war, by making no adverse distinction based on race, colour, religion, gender, birth, wealth or other criteria, and by providing for all the detainees’ physical, spiritual and medical needs (food, water, shelter, clothing, freedom of worship, and medical treatment). Indeed, according to the Administration, even the enhanced interrogation techniques – including waterboarding – were lawful under both the Constitution and U.S. law, did not constitute ‘torture’, and were not in themselves ‘inhumane.’
Prior to 2006, the full list of some 17 enhanced interrogation techniques (‘lawful sanctions’) to be used on the terrorist detainees at Guantanamo – only in situations of military necessity – had been studied under the light of the U.S. Constitution and American LOAC obligations, and then approved and legally authorized by the U.S. Congress, meaning that the interrogation procedures were in fact being used lawfully by interrogators at Guantanamo.
As a result of this ambiguity under the LOAC surrounding lawful ‘interrogation techniques’ versus true, unlawful ‘torture’, intense and controversial debate about these matters raged between 2006-2008, and continue to the present day. In particular, heated controversy surrounds knowledgeable terrorists or terror-using insurgents captured operating in warzones, who are by definition not only ‘unlawful combatants’ under the laws of war but also ‘war criminals’ guilty of committing indiscriminate acts of terror and mass-murder, and who possess extensive knowledge of terrorist members, organisation, and plots for future attacks that – if obtained – might save the lives of countless other human beings, including many innocent civilians.
Indeed, inevitably, the whole issue comes down to one single question: is it disproportionate and wrong – or proportional and right? – to inflict lawful pain and suffering on a law-breaking person, who has planned, acted and desired to inflict unlawful pain, suffering and death on innocent multitudes of people (men, women and children), in order to prevent acts of terrorism and thereby save the lives and limbs of countless, law-abiding citizens?
This question remains an extremely serious and crucial conundrum in the modern era of warfare and terrorism today.
[34] Modified image taken from M. Petrou, ‘The decline of al-Qaeda’, Maclean’s, 9 September 2011, https://www.macleans.ca/news/world/the-decline-of-al-qaeda/, (accessed 1 May 2019).
[35] Modified images taken from the International Herald Tribune, www.iht.com, and ABC News, www.abc.news, (accessed 14 January 2011).
[36] Pejic, ‘Unlawful/Enemy Combatants: Interpretations and consequences’, op. cit., p. 4.
[37] Ibid., p. 8.
[38] Ibid., p. 10.
[39] C. Weller, ‘Startling maps show every terrorist attack worldwide over the last 20 years’, Business Insider, 1 November 2017, https://www.businessinsider.com/global-terrorist-attacks-past-20-years-in-maps-2017-5?r=US&IR=T, (accessed 1 May 2019).