On May 2, 2011, United States military forces entered the town of Abbottabad in the Waziristan region of Pakistan under cover of darkness.1 They entered a compound and killed a civilian and his son and shot his wife. In the process they also killed two other men and injured at least one other woman.2 The target, Osama bin Laden, was not a member of a nation’s military, was not sentenced to death by any tribunal, and there is no evidence that at the time of the attack he was an imminent threat to another human.3 He was gunned down at night, in his home, by trained killers from a distant state acting without the permission of the host nation.4
At face value under domestic criminal law, these killers are criminals. They committed acts with the intent to kill bin Laden and these acts resulted in his death and the deaths of others. These acts are qatl-e-amd, or culpable homicide under sections 300 and 301 of the Penal Code of Pakistan and are punishable with death.5 Had these been common thugs, Pakistan would have demanded their extradition from the United States under a bilateral extradition treaty that has been in place since 1942, and that a Pakistani Court adjudicate their guilt or innocence.6 These were not common thugs, however. They were uniformed members of the U.S. military acting under the orders of the President.7 This is not a legal ground to refuse extradition, however. Only if the United States were able to find that the acts of the killers were either not violations of either U.S. or Pakistani law or the killers acted under the protection of a valid legal defense such as a justification or an excuse could the United States refuse extradition under the treaty,8 and obedience to orders is not a affirmative defense to intentional homicide.9 The United States might argue self-defense or defense of others based upon bin Laden’s prior acts of violence and predilection towards similar future acts as their valid defense,10 but this would require an extremely elongated view of these legal concepts and should not succeed.11 Thus, if we limit the discussion to a criminal law paradigm, these individuals who have been hailed as heroes by both the U.S. government and the general populace would be returning to Pakistan to face trial.12 There is potentially a second legal paradigm at play here, however, that of international humanitarian law (IHL).13
For the killing of bin Laden to be a lawful act within IHL, four tests must be met: an armed conflict must exist,14 the killers must be privileged belligerents,15 bin Laden must be a lawful target,16 and the method of engagement must be lawful.17 Two of these tests appear to be met; the killers are members of a state’s uniformed military18 so they can qualify as privileged belligerents, and the method of engagement was direct fire small arms which is ordinarily lawful.19 The other two factors are the subject of debate.
Bin Laden did not fall under any of the typical categories of lawful targets. He was not a uniformed member of a state’s armed forces, nor was he a civilian currently engaged in conducting hostilities.20 The armed conflict is not between states, is not officially declared, and is not confined to any geographic or even temporal region21 so it is also atypical to traditional IHL scenarios. There are multiple arguments for and against the existence of this armed conflict and bin Laden’s targetability by other scholars within this volume,22 as well as countless other sources. This chapter is not an analysis of their merit, but rather a complaint against their necessity. For both legal and moral reasons, the existence or absence of war should not be so nebulous as to be the subject of scholarly debate and the law should have provided a process to determine the targetability of an individual as notorious as Osama bin Laden years in advance of the night of May 2.
To illustrate these points, consider the night-time raid of May 2 from the point of view of the Abbottabad police force. These individuals are charged with keeping the peace in this town and protecting its residents from criminal acts. When they saw armed foreigners drop from helicopters and attack a home and its residents, should they have tried to intervene? Legally, if this is an armed conflict under IHL and they are captured by the U.S. forces after engaging in hostilities, they could be convicted of their hostile acts by a U.S. military tribunal.23 Morally, they have no responsibility to protect foreign combatants like bin Laden. Alternatively, if this is not an armed conflict, they have the legal right and legal and moral responsibility to act to repel the attack and could be subject to adverse action and public shame if they fail to act. Note that, unlike the plethora of legal scholars debating targeted killings, they do not share the luxury of an advanced legal education and time for research and reflection. They must decide instantly and suffer the significant risks of the wrong determination.
In the above scenario, the law, as well as the political and legal communities, has failed the Abbottabad police force. As embodied in the tenets of nullem crimen sine lege and nulla poena sine lege as well as the writings of luminaries such as H.L.A. Hart,24 Joseph Raz,25 Oliver Wendell Holmes26 and many others, the law has a legal and moral responsibility to provide its subjects sufficient advance information for them to make a knowledgeable choice. Some might argue that the lack of fair warning is an unavoidable byproduct of the continued evolution and growing overlap and conflation of criminal law and IHL. I disagree with both the premise and conclusion. The blurring of the lines between domestic law and morality on the one side and the law and morality of war on the other is artificial and based upon a fundamental misunderstanding of the realm of combat. War, which I favor as a much more definitive term than armed conflict, if it is to continue to exist in the human experience, must operate largely outside the realm of domestic criminal law and ordinary morality. Any blurring of the lines should be actively opposed in order to protect both combatants and noncombatants from being placed in the untenable situation of the Abbottabad police.
To accomplish this goal of increased legal clarity, this chapter proposes the following changes to international law:
1. With minor exceptions, privileged belligerency will be limited to the uniformed military, militias and populace (in the event of a levée en masse) of a state that has declared war publicly and officially.
2. States may declare war against other states, non-state organizations, or individuals, provided these declarations comply with Articles 2(4) and 51 of the United Nations Charter.
3. The International Court of Justice has the power to nullify declarations of war.
To prove the need for these revisions, this chapter will first explore the fundamental moral and legal differences between the ordinary human experience and armed combat (section I). Next it will briefly examine the confusing and problematic status quo versus the intended regime of war (section II), and finally it will discuss the specifics of the above proposal, its merits and challenges (section III).
Consider a world where political disputes between states are no longer resolved by war, but a contest of champions. If State A and State B disputed ownership over a tract of land, two champions would meet and fight, and the state with the prevailing champion would win the dispute. These bouts would use the rules of the “Ultimate Fighting Championship” as it began in the early 1990s: no biting, no eye-gouging, no weapons.27 Other then these simple rules, all other methods of weaponless combat are allowed. The bout is resolved when either party is knocked unconscious or surrenders by tapping three times. Serious and/or permanent injuries are not infrequent during these bouts.
What of the morality of these bouts? In theory, only one of the states is just in the dispute, and yet both champions are inflicting harms upon the other. If State A has the just cause, is the champion of State B justified in permanently injuring the champion from State A only to win the bout? Does it change if this same State B champion personally believes that his state is unjust in the dispute? Does Champion B have the natural moral right and/or obligation to refuse to fight?
Jeff McMahan argues that the acts of combatants in furtherance of an unjust cause can never be justified28 and that such combatants have a moral obligation to refuse to fight in an unjust war.29 He steadfastly disputes the moral equality of combatants in war and argues that the morality of combatant acts (jus in bello) is inextricably linked to the morality of the overall conflict (jus ad bellum).30 While he is careful to segregate killing from the other harms committed during war in his pre-preface,31 the arguments within the text itself are not dependent upon this distinction. Therefore, in the above example, Champion B’s acts of harm to Champion A in furtherance of an unjust cause would not be justified and Champion B has a moral obligation to refuse to participate in the contest. I believe this hypothetical clarifies this moral issue facing a soldier in the United States. According to McMahan, this soldier has the moral responsibility to supplant the decision of the collective with his own political views. Although he has been the beneficiary of extensive training and resources, he must refuse to serve as a champion when the match begins, thereby forcing another less qualified individual to face the danger, increasing the probability that his state and people will lose the dispute.
McMahan’s intent is to develop a political environment where governments face greater resistance to initiating and conducting unjust wars.32 To accomplish this, he applies moral intuitions derived from criminal law to acts of combat in order to defeat the “moral equality of combatants” theory. By defeating this theory, McMahan hopes to convince military members that their violent acts in furtherance of an unjust cause are not justified, and therefore these same soldiers should refuse to participate in unjust wars.33 His goal is laudable, but his method unethically places the moral burden of a collective decision on a minority that has the fewest legal and social protections if they resist that decision.34 Further, he undercuts a critical facet of a successful democracy: civilian control of the military.35 McMahan’s goal of preventing unjust wars is better accomplished by reinforcing rather than weakening the delineation between peace and war. Furthermore, his argument from criminal law (moral) intuitions to acts of combat is flawed; war necessarily has its own moral code that is fundamentally dissimilar.
I see the enemy soldier in the distance. He is busy polishing his boots, probably for an upcoming inspection. His weapon is nowhere to be seen. He is not aware of my presence or even of my individual existence. I could easily leave the area and he would be no real threat to me. Instead, I slowly take aim with my rifle and fire, ending his life.
I knew nothing about the man as an individual. Assume he was an accomplished violinist, devoted husband and loving father of two beautiful young girls, who was forced to set his violin aside and join a military and cause that he personally opposed. Further, he would have immediately surrendered had I given him the opportunity. In ordinary life this man would be protected and revered. In war he was a member of the enemy military so I executed him as quickly as possible.36 This was a status-based death authorized by both the laws and morality of armed conflict.37
In any other legal or moral paradigm, this act would be punishable and/or morally abhorrent.38 Any justification to kill another must normally be rooted in the guilt and/or imminent threat posed by that individual.39 In war, this victim’s innocence and the imminence of the threat he posed were irrelevant. In war this act is not only acceptable, but publicly honored and rewarded (even when the overall cause may be unjust). Simply put, the rules and mores of war are dramatically different to those restricting ordinary life. Even if these differences result in philosophical quandaries, they are necessary to protect both combatants and noncombatants from injustice and even greater barbarity.
One such philosophical quandary is the normative evaluation of combatants in relation to their overall cause. Michael Walzer, in Just and Unjust Wars, affirmed the long-held belief that the justice of the cause of a state party to a conflict, or lack thereof, did not affect the morality of the actions of individual combatants employed by that state.40 In other words, the jus ad bellum determination did not affect the morality of jus in bello actions. As noted above, McMahan attacked this long-held belief, concluding that the combatant activities of a belligerent in an unjust cause could not be considered morally justified or permissible. He shied away from finding these soldiers necessarily culpable, however, and instead found their actions possibly to be a form of excused self-defense.41
Claire Finkelstein has rebutted McMahan’s attack on the moral equality of soldiers, showing the difficulties in applying his one side justified/one side excused paradigm of combatant morality.42 However, Finkelstein shares with McMahan the premise that the same moral principles that apply to actions in a peacetime domestic setting apply to the conduct of soldiers in wartime. Walzer also appears to share McMahan’s belief that the morality of ordinary life is continuous with the morality of combat. Accordingly, Walzer seeks to explain the liability of combatants to deliberate attack in terms of the concepts of express consent (which he labels the Boxing Match Model)43 and coerced consent (labeled the Gladiator Model).44 By attempting to extrapolate ideas about consent to cover combat, Walzer joins forces with McMahan in finding a continuity between the moral principles that govern ordinary life and those that govern combat.
However, an insightful comment by Luis Chiesa has led me to doubt the continuity thesis.45 Chiesa, using the German tripartite approach to criminal liability, argued that belligerent acts are neither justified nor excused, but in fact, fail to meet the substantive elements of the offense. At first blush this view does not appear to have any merit. A battlefield “targeted” death seems to meet the elements of homicide: the intentional killing of another human.46 Yet, this appearance proves to be misleading, because the legal and moral norms of criminal law, the very basis for the elements of the offense, do not turn out to apply to acts of combat. I now elaborate and defend this crucial point.
Finkelstein began her rebuttal of McMahan by stating, “It is tempting to suppose that the moral rules that govern responsibility for acts of war and those that govern ordinary wrongdoing are radically different.”47 I have fallen for this “temptation” and fully support the supposition. The moral and regulatory paradigms for “ordinary wrongdoing” as evidenced by criminal law and those concerning acts of war are so dissimilar in origin and historical practice that it is improper and even immoral to cross-apply the terms and lessons of the former into the latter when evaluating the criminal and moral responsibility of individual combatants.
One fundamental precept of criminal law systems is the sovereign’s monopoly on the use of violence/force to achieve its ends.48 In most situations, the individual must rely upon the state to exercise the necessary force or threat of force to protect her body and her property. It is the state and only the state that has the power to arrest, try and punish the criminal.49 It is the state that can use violence or the threat thereof to tax income or possessions for the public good, seize personal property through models like eminent domain, quarantine individuals for public safety, and even conscript individuals into military service. Even possessing the most benevolent of motives focusing on the public good, the individual is prohibited from using force in a similar manner.50
The paradigm for criminal law is that all non-state use of violence or threat of violence against another human or the possessions of another human is prohibited.51 Criminal law grants back to the individual certain narrow exceptions to this blanket prohibition that are incorporated within the concepts of justification and excuse.52 These concepts include self-defense, necessity and duress.
Under criminal law, self-defense is rooted in the idea of allowing the individual to react to an imminent or ongoing attack in a manner timely enough to prevent the threatened harm.53 Said another way, when time constraints preclude the force of the state from preventing a serious harm, an individual may exercise the necessary (and proportional) force to prevent that harm.54 If the attack is not imminent to the point where state action is precluded, even self-defensive force may not be authorized. If a neighbor attacks you with a knife evincing an unlawful intent to kill or seriously harm, because the ordinary power of the state cannot react quickly enough to eliminate this threat to your person, the imminence of the situation authorizes force normally exercised by the state.55 If, however, the neighbor’s threatened attack is days away, the state will maintain its monopoly and require you to notify its agents (law enforcement) to eliminate the threat. Similarly, necessity may authorize the individual to use force normally reserved to the state in situations where the state is incapable of reacting quickly enough to an amoral danger.56 For example, normally only the state has the authority to take property and use it for the general welfare under concepts such as eminent domain. Necessity, however, may authorize an individual to seize another’s abandoned vehicle and use it to escape an oncoming tsunami. Note that, in both of these situations, the individual is granted temporary authority, either by the state or by individual right, to use the force normally reserved to the state.
Dissimilar to self-defense and necessity, duress does not authorize the temporary use of force normally reserved to the state, but rather allows the individual to avoid culpability for her actions in situations where no force, state or otherwise, would be authorized under the law.57 The quintessential example to show the differences between justified conduct such as self-defense and excused conduct such as duress is Kant’s North Sea Plank. There are two men in the ocean and a wooden plank that is sufficient to keep only one of them from drowning.58 The individual who originally possesses the plank is justified in using force to fend off the other, who is attempting to co-opt the plank for his own survival. Meanwhile, the drowning man, who is plankless, is not justified in stealing the other’s life-sustaining plank to save his own life. If he does use force towards those ends, however, his homicidal act may be excused under the law. The general term of excuse applies to those acts that, although legally prohibited and blameworthy, do not justify criminal punishment.59 The drowning man’s violent acts to seize the plank are visceral and could not be deterred. Subsequent punishment by the state accomplishes nothing.
In sum, I believe the criminal law paradigm concerning the use of violence is one of comprehensive prohibition with limited exceptions60 and I do not believe McMahan or Finkelstein would disagree with this general characterization. Their next assertion is that the common intuitions of substantive criminal law are an appropriate proxy for general morality.61 I do not believe they mean to limit general morality to those common intuitions of criminal law, but rather to use criminal law intuitions to reveal or clarify specific aspects of common morality.62 In other words, unjustified homicide would be a moral wrong irrespective of its prohibition within criminal codes; however, identifying which acts committed under what conditions would constitute an unjustified homicide can be informed by the common intuitions embodied in those codes and in criminal jurisprudence. I agree only so far as this proxy is limited to the general morality of peacetime existence. However, both try to draw a connection between this general morality and the morality of acts of combat.63
I want to further delineate the specific area of our disagreement. Like Finkelstein and McMahan, I agree that the common intuitions of criminal law can and should be used to determine the justice of a war/jus ad bellum.64,65 But I reject the premise that criminal law intuitions can be transposed willy-nilly into the paradigm of jus in bello.
Finkelstein comments that “...many scholars have noted the commonality of intuitions concerning justice across a broad array of peoples and cultures,” and that “there is a common moral sentiment consistently expressed across different approaches in reaction to the central elements of substantive criminal law.”66 I agree that most or all human cultures share certain moral views revealed in their criminal codes, and that those shared views constitute a general morality that can be applied to human conduct. However, I do not limit the search for shared moral principles to an examination of criminal law, as Finkelstein and McMahan have done. I believe that the jus in bello of IHL, which has more global commonality than criminal law,67 is also evidence of and a proxy for general morality.
If the common intuitions of criminal law and IHL are both proxies for general morality, one must either strive to find a congruence between the two, as Finkelstein and McMahan have attempted to do, or concede that the general morality that humanity has developed for combat is intrinsically different and divergent from the general morality they have developed for ordinary life. I believe this divergence exists and I will attempt to prove its existence historically and legally.
A fundamental principle of the laws of war is that of military necessity: the principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war.68 Said another way, a belligerent has the right to do anything and everything to win the war except violate the laws of war.69 Note that no other systems of law are included in this narrow limitation within this blanket authorization. Thus, under the laws of war, a privileged belligerent can potentially violate each and every one of the domestic laws of the enemy state in its sovereign territory in order to achieve victory and yet retain immunity from prosecution (provided that it does not violate the laws of war as well). Not only is this conduct authorized, but it is mandated by the controlling sovereign.70 Unlike other professions, a soldier can be prosecuted for negligently failing to perform his duties, in this case the duty to wage war effectively.71
The blanket authorization/mandate for violence was originally without any form of meaningful legal limitation.72 Long after states had developed criminal prohibitions against murder, rape, theft and pillage, combatants were allowed to engage in all four with impunity.73 What restrictions states did put on their combatants were often limited to amoral issues such as shares of pillaged wealth.74 Originally war approached Clausewitz’s theory of “...absolute and unlimited brutality.”75
Into this moral vacuum, a code of arms/chivalry emerged.76 Although clothed in romantic notions, the essence was an ethical code of conduct for combatants.77 Genteel belligerents had grown to abhor the unrestricted violence of war. Through custom/practice they created restrictions on wartime violence and applied them exclusively to combatants.78
Unlike the criminal law’s presumption that violence is prohibited unless specifically authorized, the laws of war take the reverse approach: all violence is authorized (and potentially mandated) unless specifically prohibited.79 Modern principles of the laws of war that prohibit violence include: the responsibility to discriminate between military and civilian targets;80 the responsibility to limit collateral (non-military) damage in an attack to less than the military advantage gained;81 and to refrain from causing unnecessary physical suffering (for example, using glass fragmentation to inhibit lifesaving procedures).82 Note that every one of these starts with the concept that violence is authorized unless it violates these prohibitions.83
The effect of this reversed approach to violence can best be explored by examining the concept of proportionality. McMahan presents a detailed analysis of proportionality under the laws of war. In it, he discusses the concept of “narrow” proportionality, which primarily concerns harms intentionally done to enemy combatants, and “wide” proportionality, which primarily concerns harms unintentionally done to noncombatants. He then correctly states that the laws of war focus exclusively on the “wide” view of proportionality. However, he follows this with an argument for the application of the narrow view to certain acts of war.84 He proposes an example where 500 conscripted military guards are killed to free 10 innocent civilians and argues that this would be a disproportionate death.85 In this, he completely ignores the precepts of jus in bello. The principle of proportionality under IHL can only be violated by excessive damage to civilians and civilian property.86 Remember that under the laws of war, the default is that violence is permitted unless restricted. Since IHL does not prohibit killing any number of enemy combatants as long as those deaths further the war effort,87 extreme numeric disproportions could result. A lawful combatant could kill 10,000 enemy combatants just to protect a single civilian or soldier or merely to recapture the unit flag if this furthered the war effort. McMahan could counter that these acts violate the concept of military necessity, and at face value, he would be correct. A literal reading of Lieber’s definition of military necessity would require that only acts of violence that are “indispensable” to ultimate victory are authorized.88 Such an interpretation would create an unobtainable standard of proof for almost any act of violence in war. One could never prove that the death of a single given soldier was indispensable to victory. However, Lieber clarified his definition by stating that “Military necessity admits of all direct destruction of life or limb of armed enemies.”89 The concept of military necessity has been legally interpreted to authorize any acts of violence that are not unlawful provided they achieve or further a war aim or provide some military advantage.90
McMahan’s error on proportionality stems from his desire to apply the general morality gleaned from criminal law to jus in bello. Both individuals and the state itself are limited to proportional responses to wrongs and threats of wrong. When an individual is a wrongdoer fleeing from justice, even the state, by and through its police officer, is limited to a proportional use of force against that individual.91 Under criminal law, unless that individual presents a current serious threat that is, “armed and dangerous”—deadly force is prohibited even if he is a proven wrong-doer.92 In contrast, a lawful combatant can shoot the innocent but uniformed violinist while he is polishing his boots and has no weapon in sight.
In addition to necessity and proportionality, substantive criminal law concepts like self-defense and duress also have significantly different meanings and application in the realm of combat and military law. Consider that soldiers can have their individual right of self-defense pulled from them, for the purposes of unit self-defense, by the order of a superior even if they are facing imminent death from an unjust aggressor.93 (Not even duress is a valid defense to a charge of violating a lawful order to withhold fire.) This concept is entirely outside of any aspect of criminal jurisprudence that I am aware of, and would appear to violate human rights law94 if it was not.
The focus of this argument has been on legality rather than the morality of combatant acts, but as in criminal law, the former can be viewed as exemplary of the latter. The common “general intuitions” that are the moral basis of criminal law are a product of interpersonal relations in civilized society.95 They are fundamentally based on the human desire for stability.96 Every civilized society can intuitively see the benefit of having a near total restriction on the use of violence within that community. These same common intuitions give rise to substantive crimes such as homicide and defenses such as justifications and excuses.97 They are part and parcel of any and every civilization going back millennia.98 The existence of shared principles among the vast array of civilian criminal systems has been used to validate some level of objective general morality across humanity.99 If this is an appropriate method and conclusion, the same test applied to the shared principles within the laws of war is evidence of the existence of a separate, and incongruent, moral code for acts of combat.
The principles of the laws of war arose from customary practice on the battlefield. The existence of customary international law (CIL) is shown by the general practice of states and the opinion that these practices are required by legal obligation.100 This “legal obligation” however, does not stem from a positive source but is historically the product of natural law. . .or morality.101 In other words, the laws of war are the products of the commonly held moral beliefs of combatants. (Note that the genesis of the laws of war was in the minds of combatants, not sovereigns. Even the famous Lieber Code was the product of a committee consisting of a combat veteran (Lieber) and active duty general officers). CIL remains a viable progenitor of new legal, and arguably moral, obligations for jus in bello under current international law.102 Further, just as IHL was primarily a creation by those linked to combat rather than traditional statute-making entities, the most recent comprehensive compilation by the International Committee of the Red Cross (ICRC) continues to use a vast array of military sources to identify current CIL.103
There are two possible reactions from moral philosophers like McMahan and Finkelstein, given this dissonance and incongruence between the common intuitions embodied in criminal law and those reflected in jus in bello. Such philosophers can either accept parallel yet incongruent codes of morality due to diametrically opposed historical developments, or they can seek to reinterpret moral and legal concepts developed over centuries to eliminate the incongruence. McMahan has adapted the latter approach, hence his erroneous reinterpretation on proportionality under jus in bello, discussed above. Rather than pursue this path, I will take up McMahan’s challenge and justify the existence of an alternate incongruent moral code through the concept of privileged belligerency.
Under CIL and IHL, a lawful combatant cannot be punished for any acts of combat committed in accordance with the laws of war.104 This means that if a lawful military combatant should kill the poor innocent violinist father/enemy soldier, be immediately captured by the dead man’s friends, family and countrymen, and confess to the killing, the combatant remains immune from any type of punishment. Certainly, the combatant could be held as a prisoner of war and treated humanely,105 but he must be released immediately upon the cessation of hostilities106. . .even if that is the following day. The reverse is, of course, also true. Should the violinist have killed a U.S. soldier and been captured by U.S. forces, he could brag about the act for the rest of his life with absolute impunity.
Unlike any theory of consent, the current source of privileged immunity does not stem from an individual soldier, group of soldiers, or even any given state. As black letter CIL and IHL, privileged belligerency is the gift of the entire world. Humanity, acting en masse, has created, recognized and enforced a rule that makes the killing of one lawful combatant by another lawful combatant a legally protected act. Unlike the death row inmate, there is no higher authority to which the combatant can appeal this sentence. Should a uniformed member of the military refuse to serve or immediately surrender for fear of death, she is labeled craven and subject to punishment by the state for which she was tasked to fight.107 Simply put, her life is no longer protected. In the sense similar to that of a criminal from the middle ages, she is declared outside the protections of the law, or “outlaw”108. . .a lawful target for any enemy soldier that may happen upon her, whether she is sleeping or engaged in battle and regardless of her absolute moral and legal innocence or guilt. It is in this narrow paradigm, totally unique in the human experience, that the incongruent morality of combat exists.
In lawful combat, due to privileged belligerence, a state’s domestic laws do not protect its soldiers. This absence of protection makes any application of criminal law intuitions difficult if not impossible, since all depend on the continuing presence and power of some type of sovereign. Reconsider self-defense under criminal law. If an individual is attacked by an unlawful aggressor, he can respond if and only if the attack is imminent, his response is necessary to prevent the harm and the level of his response is appropriate to the threatened harm.109 As noted above, a finding of each of these three elements is necessarily linked to the continuing power of the law to intercede and eliminate the threat. In lawful combat, since the world has eliminated the ability of the law to protect the combatant, it also eliminates the need for him to limit the force he uses against enemy combatants; hence the absence of imminence, “narrow” proportionality, or even necessity110 as precursors and limitations to the use of deadly force. The wealth of criminal jurisprudence developing the concept of self-defense is rooted in these elements;111 if you eliminate the elements’ applicability to combat, you also eliminate the application of the corresponding “intuitions” upon which McMahan’s arguments depend. In the above case, the law has declared the violin player and his attacking enemy as equals. Note that this privilege is silent as to the justice of their respective causes. Lawful combatants from both the just and unjust sides of a conflict share equal access to the benefits of privileged belligerency.
The unique morality of combat and war goes beyond the protections of privileged belligerency. For example, if we apply the common intuitions of criminal law to a murder committed abroad, the morality of the act is not altered. Let’s assume an American travels to Germany where he witnesses a violent crime. The German police seize him and refuse to allow him to go free, holding him indefinitely as a material witness. He does not want to miss a sporting event scheduled the following week, so he kills his prison guard and successfully escapes back to the United States and attends the event. Even though the act occurred outside the jurisdiction of the United States, Americans would share the common intuitions of criminal law with the Germans and believe his act to be reprehensible and properly subject to punishment. Compare that to the following example:
Private Smith is a combatant for State A, which does not have a just cause in the conflict. Private Smith engages in combat and kills soldiers from State B in the sovereign territory of State B. When Private Smith is subsequently captured by State B, the concept of privileged belligerency prevents his prosecution for murder, even though he engaged in the intentional killing of a citizen soldier of State B on that state’s sovereign territory. Next, Private Smith, while a prisoner of war, kills his military prison guard and escapes back to the forces of State A. Since Smith was a prisoner, he was legally hors de combat and not eligible for privileged belligerency.112 Thus, legally, he committed the punishable crime of homicide in State B without justification or excuse.
Theoretically, if the general morality applicable to criminal law applied equally to times of conflict, once peace is restored State A would extradite Private Smith to State B for prosecution just as the American sports fan from above would be extradited back to Germany. However, this is neither required by IHL nor the common practice of states. Instead, Private Smith has historically been not only protected from punishment, but even rewarded for his “heroic” escape. If the common morality of criminal law applies to this situation, the entire world would abhor this immoral act of murder, rather than ignore and/or reward it. A different general intuition is at play here that goes beyond the mere legal realm of privileged belligerency.
In his criticisms of the doctrine of the moral equality of combatants,113 McMahan fails to appreciate adequately the unique role and status of the active duty military. As noted above, the world has declared combatants outside the protections of criminal law when targeted by an enemy lawful combatant. This is not the only stick the law has pulled from the soldier’s bundle of human rights, however. Soldiers have knowingly surrendered many more as part of their enlistment contract and oath. Among other things, they lose: the Constitutional right to trial by jury;114 the right to quit their job for the duration of the contract or beyond;115 the right to collectively bargain in labor negotiations or strike; the right to publicly criticize superiors;116 and the right to disobey any lawful command from their superiors,117 even if they believe that command to be illogical, unreasonable, or even unjust.118 Said a different way, by taking the oath of enlistment, they agree to subordinate their personal judgment to that of the collective, as expressed by the orders of those appointed over them, for the duration of their service.
This obedience to orders has been labeled the “cardinal virtue” and the “backbone”119 of the profession of arms and its importance cannot be overstated. Under modern military leadership philosophy, the strength of a military unit is dependent upon its ability to place accomplishment of the mission over any self-interest, both individually and collectively. Soldiers are trained to operate at a level of interdependence, trust and teamwork that is the envy of every other occupation. At the core root of this interdependence, trust and teamwork is each soldier’s dedication to performance of duty.
Just as there is a polar opposition in the approach to violence found in criminal law and jus in bello, soldiers and civilians have virtually opposite approaches to duty. Paraphrasing many a civilian, “The only things I must do are die and pay taxes.” For the civilian, duty is ordinarily correlated with benefit; that is, if I want benefit X, I must be willing to assume duty Y. Inversely, if a civilian does not want or gain benefit X, he can avoid duty Y. Even when a civilian decides to enlist, the act of enlistment is an assumption of duty in exchange for a perceived benefit. From his enlistment, the soldier gains valuable training, benefits, pay, and possibly the respect of the general populace.120 The state and its constituents gain an individual who agrees to subordinate much of his judgment and will to the collective. (This soldier is not a Nazi robot, however, and the presence of orders does not exonerate him from the moral or legal responsibility for his acts. Jus in bello and military law holds soldiers accountable for any acts that are “manifestly unlawful,” even if pursuant to orders. Both jus in bello and military law not only provide the soldier the ability to refuse such an order with impunity, but often require him to do so.)121
Once the civilian becomes a soldier, however, duty is no longer a cost—benefit analysis, but a raison d’etre. . .an end in and of itself. Performance of duty, as defined by the orders of superiors, is the default and only in rare circumstance (manifestly unlawful) can it legally or morally be refused or avoided.122 Unlike a civilian, a soldier is expected to continue performing his duty even after there is no longer any personal benefit.123 Inversely, a civilian who stops receiving the benefit of performing a duty is expected to stop performing it. Civilians have the luxury and right to question nearly all authority in their lives, where soldiers have only a radically circumscribed right to question.
The duty of the soldier is analogous to that of keeping the proverbial finger in the dyke holding back the destructive flood from destroying the community.124 McMahan argues that a soldier’s subordination of individual judgment to the collective should only occur if the soldier believes that there are sufficient safeguards within the collective decision-making process as to justify the reliance on the result.125 I agree. However, the time to verify those safeguards is prior to agreeing to be the one with your finger in the dyke. As the only individuals capable of protecting the community from armed attack, soldiers necessarily waive the right to refuse the will of the collective on decisions of jus ad bellum. The duty of a soldier is itself a moral obligation that preempts McMahan’s duty to refuse the collective will of the democratic state when the state makes a decision to resort to war. At its core, the duty of the soldier protects the continued existence of the state,126 and it is the soldier’s moral belief in the overall justice of the state that morally permits him to subordinate his will to its collective decisions.127 The morality of the soldier, both in and out of combat, is inextricably linked to the performance of duty. This duty requires a combatant soldier to serve as both righteous avenger and tangible representation of the might of the state, as well as the community’s designated target for the might of the enemy hordes. The over-simplified corollary to the flippant civilians’ saying about death and taxes is the equally flippant soldiers’ axiom of “Ours is not to question why, ours is but to do and die.”
In sum, the state demands, morally and legally, the complete loyalty and (nearly) unquestioning obedience of its soldiers, all the while waiving its right to legally (and morally) protect their lives. These soldiers are forced into the realm of combat where violence is not only authorized and accepted, but mandated. In that realm, the desire for stability and order that drives a civilized community to create a criminal law that embodies the moral norms of peaceful life has little relevance. Combat is entirely unique in the human experience and it possesses its own moral code, incongruent with the general intuitions of ordinary morality.
In a boxing match, competitors are permitted to do violent acts to another human. This permission is based, both morally and legally, upon the concept that the participants have consented to the violence.128 It is tempting to compare this boxing match to combat, as Walzer and McMahan have done.129 Physiologically they may be similar events, but normatively and legally they do not correlate. In the boxing match, the entire event operates under the brooding omnipresence of the sovereign. It is the sovereign that often determines the extent of the violence of the fight rather than the limit of the fighters’ consent.130 It is the power of the sovereign that allows the spectators to observe this compartmentalized violence without fear of it extending beyond the ring. Further, both competitors and spectators know that every act in the ring still falls under legal supervision. This universality, or the concept that every act is either permitted or forbidden by law, is an essential characteristic of any state’s legal system.131 As Joseph H. Beale notes, “A hiatus or vacuum in the law would mean anarchy.”132 This “hiatus or vacuum” is the status quo in the realm of targeted killing.
The current realm of targeted killing is analogous to a boxing match where there is no set time, ring, or referee and only one of the competitors is dressed for the competition. A man wearing boxing shorts and gloves walks into a home or restaurant where a man known to be an auto mechanic is sitting down to dinner with friends or family. The boxer walks up and pummels the man to death in front of everyone. When the police arrive and capture this boxer, he claims that it is part of the match and so he is not subject to punishment for his acts. The police release him and he blithely walks away and starts looking for another “competitor” to pummel. Friends, family, and observers of the victim may be given no evidence that the deceased was a boxer, or that there was ever going to be a boxing match at all. They are left with the impression that the attacking boxer can bring about arbitrary death with impunity.
U.S. military forces engaging in targeted killings are the equivalent of this boxer. Although they wear a uniform, they do not limit their attacks to a combat zone where the significance of this uniform is understood.133 They select targets based on information that may never be shared. They attack without warning and sometimes in traditional areas of privacy and safety, such as homes.134 If captured by civilian law enforcement, they could claim immunity thanks to privileged belligerency. Theoretically, the same crowd could see the same soldiers one month later, this time killing their neighbor who they believe was a simple barber, and again walking away without trial or punishment by the government empowered to protect its populace.
U.S. soldiers are not subject to the jurisdiction of the International Criminal Court (ICC),135 and because of the status of the United States as a permanent member of the Security Council with veto power,136 they need not fear an ad hoc tribunal.137 As a member of the U.S. military, I see how we enjoy extensive flexibility in combating an elusive enemy that does not follow the rules. As a lawyer and world citizen, I see the same thing as friends of the auto mechanic and Professor Beale: anarchy.
The other side of the argument is that the U.S. military is forced into this role by criminal non-state actors who wish to enjoy any and all benefits they might receive under domestic or international law without subjecting their own actions to its limitations. The United States would see the appropriate boxing analogy as one in which the other competitor refuses to enter the ring or even submit his name as a competitor. He hides in the middle of a residential neighborhood and avoids any and all personal confrontations with the U.S. boxer. Instead, he recruits adolescent males, women and children to conduct suicidal attacks against the boxer (or even the boxer’s friends and family) with weapons and methods prohibited by the rules of the match. These criminals act with an even greater level of impunity because the host state has the power and moral imperative to capture and prosecute them but elects to look the other way for political or ideological reasons.138
Both the populace and governments of the locales where the strikes occur and the military personnel who conduct the strikes139 have legitimate complaints about the status quo. So too do the U.S. voters disenfranchised by the absence of a public debate before starting a war and the marginalized international community of states held impotent by the U.S. veto power. Not only is the status quo unacceptable from all of these perspectives, it is an extreme deviation from the intended moral and legal paradigm of war detailed by IHL.
IHL is neither a “gentlemen’s code”140 nor a malleable political instrument; rather, it is a legal code intended to have a relatively narrow application.141 It is the culmination of over 150 years of work by military professionals, legal scholars and national leaders.142 Its tenets are not meant to be selectively applied, but to serve as a moral and legal guide to states, combatants, and noncombatants concerning the initiation and conduct of organized hostilities.143 Importantly, while it may operate contemporaneously with domestic and international criminal law systems, it is not intended to work as a subset but as a standalone comprehensive legal system with subject matter jurisdiction over the legal “gap” created by armed conflict.144 This lex specialis145 identifies the specific characteristics of a “proper” war.
(a) Wars should be declared
The Third Hague Convention of 1907 (Hague III) states:
The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.146
This is not merely a positive requirement provided for by Hague III, but a necessary axiom to the philosophy behind one of the fundamental principles of IHL: distinction. Distinction requires states to distinguish between the civilian and military populations of the enemy and to provide a means (for example, the wearing of military uniforms) for an enemy to distinguish between its own military and civilians.147 When viewed in conjunction with the IHL principle of proportionality, which requires combatants to limit collateral damage to civilians and civilian property,148 the underlying philosophy is revealed to be that the violence of war should be contained to the military combatants of the warring parties. This is further supported by the IHL proscriptions against the military use of certain property and locations149 and the responsibility to safeguard noncombatants in a combat zone, including captured enemy soldiers.150 Returning to the boxing analogy, the overarching philosophy of IHL is to limit violence (as much as possible) to the designated boxers. Fighting should be kept in the ring (away from the civilian onlookers) and the methods of engagement should limit the risk of injury to members of the crowd. As noted in section I above, to protect the majority of its populace, the state has selected the fighters to serve as the designated targets of any enemy strikes and in order to support this discriminatory practice, it grants immunity to enemy combatants who comply. Thus, privileged belligerency is also a critical cog in the paradigm of distinction.
If the goal is to contain the violence of war to the military combatants of the warring states, it rationally follows that these same warring parties must be clearly identified. The millennia-old manner in which this identification has occurred is by a declaration of war. This declaration provides warning not just to the civilians and military of the warring parties, but to the citizens and military of all neutral states and parties. A declaration of war provides humanity legal notice that a state is invoking the rules and morals of IHL. It notifies observers that lex specialis now governs the conduct of its military, rather than the rules and mores of domestic criminal law. It is the bell announcing that the boxing match has begun.
Whether the result of the Kellogg-Briand Pact151 or the U.N. Charter,152 after the armed conflicts at the beginning of the twentieth century the community of states officially decided that wars must be avoided. No longer could states seek to advance their political, financial or ideological goals through the use of mass violence or threat thereof. The Charter contains the current legal prohibition in Article 2.4.153 There are only two exceptions to this blanket prohibition against war. The first is action by the U.N, itself. For example, Article 42 of the Charter authorizes the Security Council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”154 U.N. Resolution 678, which authorized the use of force in the First Gulf War, is the quintessential example of the Security Council “declaring” war to restore international peace and security.155 The second exception to the Article 2.4 prohibition against war is Article 51, which recognizes the “inherent right of individual and collective self-defense”156 in response to an “armed attack.”157
The only entity authorized to enforce violations of Article 2.4 is the Security Council, which contains five members with veto power.158 The obvious objection to this arrangement is that one of these five members could be the aggressing state, such as is alleged in the U.S. targeted killing activities.
Simultaneously issued with the Third Hague Convention requiring wars to be declared159 and the Fourth Hague Convention detailing the law and customs of land warfare,160 the international community issued detailed wartime responsibilities regarding neutral states in the Fifth Hague Convention. It prevents warring states from using neutral territory to move troops or munitions or to recruit.161 It requires neutral states to enforce these provisions and to intern any combatants who enter their territory for the duration of the conflict.162
This treaty evinces a clear intent to contain the violence of war and makes this the responsibility of not just the warring parties and their combatants, but also the entire world community.
In addition to identifying the warring parties by declaration, IHL requires that all combatants distinguish themselves from noncombatants.163 This provides three types of legal notice: (1) it notifies the opposing party of whom the government has designated to serve as a target; (2) it notifies neutral parties and noncombatants which individuals or locations may be the subject of a violent attack so these noncombatants can segregate themselves for safety; and (3) it notifies civilian law enforcement of which individual’s violent acts they are not required (or possibly not allowed) to prevent. One dilemma in this area of distinction is that, unlike other prohibited activities under IHL, failure to properly distinguish oneself is not a punishable violation of IHL (unless perfidious).164 Instead, IHL simply pulls back the immunity a combatant would have received from privileged belligerency.165 Therefore, if a person engages in combat without properly identifying herself as a combatant (for example, by wearing a uniform), the enemy state regains the authority to prosecute her for any acts of violence she committed against their military.166 This is a critical legal wrinkle in the IHL analysis of modern asymmetric warfare. Al Qaeda members who attack U.S. soldiers violate the laws of the host state and the laws of the United States, not IHL, which leads to the final characteristic of a proper war.
In a prescient editorial in the Washington Post on October 6, 2001, George Fletcher opined that the United States needed to decide whether it was pursuing a war or criminal prosecutions following the attacks or 9/11.167 Fletcher segregated war from justice by stating that justice is “...about restoring moral order,” whereas war is “...about securing survival.”168 Justice is concerned with the punishment of individual culprits; in war, the individual is merely an incidental cog of a whole. Fletcher makes the point that war is potentially more merciful than justice, since actions against enemy combatants cease with the hostilities, whereas justice would still scream for a reckoning.169
As noted above, the axioms of criminal law are useful in determining the merits of a state’s jus ad bellum decision even though they have no role in jus in bello determinations. In deciding Fletcher’s quandary of war or justice, the state acts and is evaluated as a single entity composed of many organs. Under the U.N. Charter, the sole authorization for state-initiated war is an armed attack against an organ of that state.170 If that state has a reasonable belief that it must use force to prevent or eliminate this external threat of violence, then it is morally and legally authorized to use that violence, even if that reasonable belief is incorrect or if the actual intent of the “attacker” is benevolent.171 In self-defense, the enemy presenting the threat is also treated as a single entity, allowing the state to use force against organs of the enemy that had no role in the attack.172 (Perhaps a helpful illustration would be when an attacker swings a fist at someone; he could kick at his leg in a defensive response. Likewise if 20 Al Qaeda combatants are attacking the U.S. Capitol Building, the self-defensive response could be a U.S. airstrike against a base in Afghanistan where they were trained.) The standard of proof is low (reasonable belief) because the threatened harm to the entity or its organs is immediate and severe. The force is being used to prevent further harm to self (or others), not to exact punishment or vengeance on the attacker.173
In contrast, when pursuing justice, the enemy as a whole is irrelevant. The state is focused on the conduct of the individual. The goal is not the elimination of a threat, but rather to make a definitive moral statement about a single individual’s conduct.174 Any use of force is incidental to this purpose and limited. The state has the much higher standard of actually proving an individual’s wrongful conduct beyond a reasonable doubt.175 It must also provide the defendant with the appropriate levels of due process while doing so,176 since, in pursuing justice, the state has the liberty of time and the absence of a physical imperative.
The due process gauntlet of justice makes the flexibility and instant gratification of a violent war an attractive alternative. However, this sacrifices much of the moral high ground that is part and parcel of obtaining a criminal conviction. As Fletcher points out, war is not a righteous pursuit, but merely an admission about the failure of politics.177 A “proper” war is focused on victory, the elimination of the threat, and the resumption of peace. . .not the public humiliation of the individual enemy. In fact, as we have learned from the conflicts in Africa, victory in war sometimes requires that justice be sacrificed.178
A quick review of the status quo will show that arguably none of the characteristics of a “proper” war are present in the targeted killing paradigm. No war has been declared, it is debatable if many of the killings retain a viable self-defense justification, the conflict is not geographically contained, the combatants do not distinguish themselves from noncombatants, and the prolonged imprisonment and continuing prosecutions seem to imply that moral justice, rather than simple victory, is the goal. The challenge is to craft a solution that will transform the status quo into a “proper” war.
There is some level of convergence between McMahan’s stated desire to create a moral disincentive to participation in unjust wars179 and the legal community’s struggle with the idiosyncrasies of asymmetric warfare. Both struggle because they attempt to find commonality between ordinary morality and criminal justice on the one hand and the unique morality and laws of combat on the other. They differ, however, in method. McMahan seeks a new type of clarity, whereas legal commentators seem to accept obfuscation.180 McMahan, in extrapolating the moral intuitions of civilian life to the battlefield, is trying to create a clear moral benchmark, even if it may only be entirely viewed in hindsight. Legal scholars, in an attempt to prevent politicians from applying the moral permissiveness of war to situations calling for the more tempered civilian criminal justice, appear to revel in the valley of uncertainty that exists between two different legal paradigms. On that part of the debate, I side with McMahan. Clarity is required. . .but not the new reinterpreted clarity McMahan proposes, which unjustly places the moral and legal responsibility of a collective decision on a minority with reduced rights to challenge the sovereign, but the original clarity proposed and designed by the laws of war.
The Proposal Clause 1: With minor exceptions, privileged belligerency will be limited to the uniformed military, militias and populace (in the event of a levée en masse) of a State that has declared war publicly and officially.
Article 43 of Additional Protocol I to the Geneva Conventions states that combatants, or members of a “Party’s”181 armed forces or similar organization, have the “...right to participate in hostilities.”182 The right is unique in that it only exists in relation to the power of a foreign government.183 If a combatant is captured by the enemy, it is this right, linked to the combatant’s “prisoner of war” status, which prevents that enemy from punishing the combatant for his prior hostile acts. This is the concept this chapter has referred to as privileged belligerency. Under current interpretation, privileged belligerency applies to prior acts of combat if: there is a declared war or international armed conflict,184 the individual qualifies for combatant status;185 and the individual’s acts were within the constraints of the laws of war.186
Pictet’s commentary to the Geneva Conventions notes that the inclusion of the undefined nebulous term of “armed conflict” was intended to ensure that states could not avoid their responsibilities under the Conventions by simply labeling the conflict something other than war.187 Although this purpose of broadening the application of states’ affirmative responsibilities is laudable, its method is regrettable in the era of asymmetric warfare. The current conundrum of targeted killing is the byproduct of this flaw. In a modern world where the restriction of Article 2.4 of the U.N. Charter is intended to eliminate a state’s aggressive acts, this “armed conflict” ambiguity allows a state to selectively claim the right to engage in hostilities in a foreign territory without meaningful legal challenge. Pictet viewed a world where states wanted to avoid the application of the Conventions because of the plethora of obligations they entail; however, when the state can commit its hostilities without any forces on the ground, many of these obligations are irrelevant. The United States does not have to concern itself with the wounded and sick,188 prisoners of war,189 or affirmative responsibilities to protect civilian populations190 and cultural property191 when its only presence is a drone thousands of feet in the air, or a raid that has all military personnel out of the region in a matter of minutes.192 In the modern world, the United States has only incentives to invoke IHL. Specifically, IHL allows combatants to kill without warning193 and to detain enemy combatants indefinitely.194
In keeping with the purpose of broad application of the humanitarian protections within the Conventions, the application of all state responsibilities should continue to apply in any “armed conflict.” The rights, however, should be treated differently. Specifically the right to engage in hostilities or, as Colonel Maxwell has effectively explained elsewhere in this volume,195 the right to engage in status-based killing, destruction or detention should require definitive legal notice to the entire world. It should require a declaration of war.
The consequences of when to allow individuals to engage in status-based killing and destruction with impunity are too severe to rely on the vagaries of a factual determination. In granting privileged belligerency to a foreign combatant, a state is sacrificing a sovereign right to use the power of the law to protect the people and property within its jurisdiction. Since privileged belligerency is recognized as customary international law,196 states may even be forced to surrender these sovereign rights involuntarily.197 The international community, writ large, which mandates this sacrifice, has the responsibility to clearly define when it occurs. The various opinions on the meaning of “armed conflict” within this volume198 show that the community has utterly failed in this responsibility. Worse yet, these determinations may occur post hoc. The famous International Criminal Tribunal for the Former Yugoslavia (ICTY) Tadic case included the phrase “protracted armed violence”199 in its definition of armed conflict. This would mean that the initial hostilities could not be determined to be an “armed conflict” until after one is able to verify that they have continued long enough to be “protracted.” Consider the soldier who, under orders, kills an enemy soldier in the opening hostilities and is then captured. He must hope for subsequent fighting. If the violence becomes “protracted,” he receives immunity for the original killing. If it does not, he can be charged with murder. This is both legally and morally abhorrent.
A legal declaration, publicly filed before an international body in accordance with some agreed upon process, provides definitive notice that a state is claiming the right to engage in hostilities. Now the soldier, above, knows that his hostile acts are legally authorized and he is protected from subsequent prosecution by the enemy.200 Civilians are on notice that any further association with military targets places them at risk of being collateral damage to a lawful attack. Neutral countries are on notice of their responsibilities to prevent the belligerents from operating within their borders.201 Conversely, under this requirement, the absence of a declaration provides the Abbottabad police force legal certainty that a foreign attack against any of the town’s residents is under their jurisdiction and probably criminal behavior. This also supports an informed democracy since, if a state’s military forces engage in hostilities without a declaration, the citizens of that state know that these acts are not protected or authorized by international law. There must be an emergency exception that would cover events like an unexpected invasion, but this exception would last only long enough to give the defending state a reasonable time to declare war.202 Also, any actions in accordance with a U.N. Security Council Resolution authorizing force would not require the supporting states to file a declaration since the resolution itself provides the necessary notice.
One aspect of the first prong of this proposal is that only a state can declare war and thus only a state’s forces can ever obtain privileged belligerency. This appears to contradict Article 6 of Additional Protocol 2, which calls for the authorities in power to grant amnesty to persons who participated in the conflict.203 This granting of amnesty to insurgents or former government forces, however, is not the equivalent of combatant immunity. Under amnesty, the state elects to waive its right to prosecute for the general social welfare;204 under privileged belligerency, the state is legally precluded from prosecuting the lawful combatant. Further, a grant of amnesty would provide immunity for all criminal offenses, including a loyalty offense like treason.205 Privileged immunity covers only the hostile acts committed as part of an armed conflict. A U.S. citizen who joined the Nazi forces in the Second World War may have obtained privileged belligerency, but he could still be tried for treason if captured.
Both the Fourth Hague Convention and Third Geneva Convention identify combatants by their relation to a given state, country, or territory.206 They do not include the modern “non-state actor” such as Al Qaeda, even if Al Qaeda were to comply with the requirements: chain of command, distinctive uniforms, carrying arms openly, and conducting operations in accordance with the laws of war.207 Thus, the forces of Al Qaeda could never obtain the belligerent rights possessed by their state-sponsored opponents unless they also obtained overt state sponsorship.208 Though overtly “unfair,” forcing a state, rather than a group of non-state actors, to make the public decision to declare war allows the international community greater ability to exert pressure to prevent this decision. Note that this has no effect on Al Qaeda members’ right to humane treatment under human rights law or IHL,209 but only restricts their ability to gain legal protection for hostile acts.
Privileged belligerent status does not provide protection for acts that violate the laws of war.210 The prohibitions and obligations of privileged belligerents under the laws of war include: limiting attacks to lawful targets,211 avoiding causing unnecessary suffering,212 ensuring that any collateral damage is proportional to the military advantage gained,213 and providing protection and humane treatment to civilians and noncombatants under their control.214 If a combatant violates the laws of war, he is subject to prosecution by the enemy, his own state and even neutral states.215 In the asymmetric war paradigm, attacking civilian/unlawful targets is problematic.
In asymmetric war, the non-state actor, having no possibility of obtaining privileged belligerency, has no incentive to distinguish himself from the civilian population even if and when he engages in hostilities. This largely defeats the entire IHL concept of distinction, or keeping the combatants and the combat away from civilians. In reaction to this reality, the international community needs to change its concept of a war declaration.
The Proposal Clause 2: States may declare war against other states, non-state organizations, or individuals provided these declarations comply with Article 2(4) and Article 51 of the United Nations Charter.
Declarations of war have traditionally been limited to one state against another.216 If we are going to require states to declare war publicly before obtaining belligerency rights for their militaries, this concept will need to be expanded. The United States, for example, should be permitted to declare war against the non-state actor, Al Qaeda. An organization like Al Qaeda fighting an asymmetric conflict with a world superpower, understands the strategic and tactical necessity that it not be linked to a given state or geographic region. By globally decentralizing its organization and forces, it marginalizes most of the combat capability of the U.S. military. Tanks, howitzers and ships simply cannot be moved around the world quickly enough to counter small Al Qaeda strike forces.217 Given that Al Qaeda will not link itself to a state or region, the United States will need to declare war against the group itself. If we limited declarations of war to only identifiable groups, however, the non-state actor group would simply avoid giving itself a name, or, as it does now, attempt to operate without a traceable organization. For this instance, a state needs the capability to declare war against specific individuals.
It is this last instance, a declaration of war against an individual, that will cause significant discomfort to the legal community. Critics will argue that a state will surreptitiously use a declaration of war to kill an individual for political benefit or to avoid providing that individual with the due process rights within the criminal process. How is this different from a state simply ordering executions and assassinations extrajudicially and arbitrarily?
The Proposal Clause 3: The International Court of Justice has the power to nullify declarations of war.
Perhaps the greatest threat to international peace, security and stability over time is not the actions of non-state actors like Al Qaeda, but a loss of confidence in the U.N. This organization was formed to prevent all war,218 not to prevent all but five nations using war to achieve their political goals. By refusing to join the International Criminal Court, withdrawing from the compulsory jurisdiction of the International Court of Justice,219 and retaining its veto power in the Security Council, the United States has protected an enforcement gap that permits its military to act with near impunity. Even if we assume the 2003 invasion of Iraq and every targeted killing to be both morally and legally justified, the absence of forum to challenge these conclusions creates a dangerous perception of arbitrary power.220 Also, it creates a dangerous precedent. China could conduct targeted killings of Taiwanese or Tibetans using legal arguments very similar to U.S. justifications for targeted killings. Currently there is no venue empowered to effectively challenge the actions of the permanent members, and so they appear to operate above the law.
Compare the 1990 Iraqi invasion of Kuwait to the 2008 South Ossetia war. One day after Saddam Hussein sent forces into Kuwait claiming that the state did not possess independent sovereignty, the Security Council condemned the invasion,221 and it subsequently authorized the First Gulf War. Three years after the 2008 conflict between Russia and Georgia, the Security Council has yet to issue any statement or take action on the issue. When the United States attempted to complain about Russia recognizing the independence of the two Georgian republics that gave rise to the conflict, the Russian delegate alleged that the U.S. was unjustified in its 2003 invasion of Iraq.222 The Security Council does not appear to serve as even a moral check on the use of military power by its permanent members.
Giving the International Court of Justice power to nullify declarations of war would provide a needed legal and moral venue to evaluate a state’s claims of self-defense, even if it has no direct authority or capability to end a conflict. Currently the Court has the power to rule on disputes between the states, but it must depend on the Security Council to enforce its rulings.223 Under this proposal, the Court will not need Security Council support, since it is the states, themselves, that will enforce its rulings by prosecuting captured combatants no longer entitled to privileged belligerency. The nullification will need to be prospective rather than retroactive, lest it create an ex post facto criminal violation. Once the Court nullifies the declaration, the declaring state should be given a reasonable time to notify its forces and withdraw from the zone of conflict and any combatants that engage in hostilities after that time will not have privileged belligerency. The tangible effect of this power will be minimal, since it will only concern the criminal prosecutions of military personnel who engaged in combat and were captured after the ruling. The moral effect, however, would be more significant.
Declarations of war against groups or individuals could be challenged by states where any of those individuals is located, since it is their sovereignty that is sacrificed under privileged belligerency. Declarations of war against an individual would have the twofold purpose of identifying that individual as a continuing threat against the declaring state and that the individual is a lawful target. The declaration should be treated as a rebuttable presumption that both are true. If the individual wants to contest her status as either a threat to the declaring state or her status as a lawful target, she can simply turn herself in to any neutral state. That state can intern her pursuant to its responsibilities as a neutral party under the Fifth Hague Convention. The state can then challenge the declaration of war before the International Court of Justice. If the declaration is set aside, the individual could be released. Some might complain that this forces individuals accused of criminal offenses to surrender to authorities to prevent their summary execution. This should be viewed as a benefit, rather than an injustice. The proper adjudication of allegations is the goal of any legal system and I know of no right, moral or legal, to remain a fugitive.
The Obama Administration authorized the targeted killing of an American citizen, Muslim cleric Anwar al-Awlaki in 2010.225 It has done the de facto equivalent of declaring war against this individual under this proposal, but importantly, not the legal equivalent. Al-Awlaki’s father attempted to challenge this determination in the U.S. court system, but his suit was dismissed for lack of standing and political question.226 (Al-Awlaki is allegedly currently being hidden among his familial tribe in Yemen.) However, he may be living in an urban residence in a different country, as bin Laden was when most reports had him living in the wilds of either Afghanistan or Pakistan. Assume that al-Awlaki is located in a large home in the small town of Caracas, Venezuela, possibly with the awareness and tacit protection of anti-American Venezuelan President Hugo Chavez. Under the status quo, his life and the lives of many of those around him, including innocent police officers in Caracas, may soon be ended in a raid similar to that on bin Laden.
If the United States, under this proposal, filed a public declaration of war against al-Awlaki, multiple facets would change from the status quo. First, the U.S. Constitution has a clear delineation of power as to who can “declare war.”227 The wording of this proposal intentionally mirrors the Constitutional language so that there can be no ambiguity in the eyes of Congress or the American public as to what is being decided.228 The Administration would have to present the evidence justifying the declaration as an action in self-defense to an armed attack under Article 51 of the U.N. Charter.229 This type of public declaration would receive world-wide coverage, so individuals living near al-Awlaki, including the local police, would have a greater opportunity to avoid being collateral damage. Venezuela would have the legal responsibility to seize al-Awlaki as a belligerent on its territory and intern him. The Venezuelan government would have the legal capability to challenge the declaration of war before the International Court of Justice. If the Court nullified the declaration, al-Awlaki could be released, and any further U.S. attack on him would subject those attackers to prosecution under Venezuelan law. If the Court upheld the declaration, Awlaki would remain interned until he elected to end the war by surrendering or agreeing to whatever terms he negotiated with the United States. A “proper” war has the goal of survival, not justice or vengeance, so if al-Awlaki is neutralized as a physical threat to the United States, this is a victory.
War is a horrible event, possibly the worst, in the human experience. All humans should work toward making it obsolete and extinct. Until that time, however, it remains subject to a unique moral paradigm that is incongruent with all other aspects of civilized life. Rather than attempting to morally or legally blur the distinction between war, on the one hand, and criminal justice on the other, we should try to reinforce the separation. A system that requires a formal declaration of war to invoke the legal and moral concept of privileged belligerency is a simple way to accomplish this. This declaration will support the IHL goal of distinction between combatants and noncombatants for belligerents. It will also safeguard innocent bystanders by allowing them increased opportunity to avoid association with civilians who are engaging in hostilities and are thus lawful targets. It will clarify the role and responsibilities of states where civilian belligerents reside. Belligerent states are given the moral and legal authority to publicly require other states to defend their neutrality by seizing all combatants in their territory or those other states legally invite violations of their sovereignty. For the citizens of liberal democracies, the decision to go to war will regain the seriousness it deserves. Making this declaration challengeable before the International Court of Justice will provide a necessary check on the power of the five permanent members of the Security Council, and weaker states are given a real power to voice their objections and regain the moral and legal authority to prosecute violations of their sovereignty. War becomes clearly severed from civilized life; by forcing a war to be a “proper” war, a concept for which humanity has evolved a strong distaste, perhaps it will occur less often.