At a time the government of Sri Lanka is facing increasing pressure from the U.S. and other Western interests including some officials in the U.N. system serving these interests, with a hostile media backing these efforts and the opposition in Sri Lanka propping them up waiting to reap the fruits of what seems like an attempt at a wider global conspiracy to install a pro-U.S./ pro-West and pro-LTTE regime change, the review essay published by the Harvard International Review (H/IR) in its Spring edition this year, provides refreshing insights into the situation regarding the "law of war."
It describes how both in its historical perspective and practical setting the law has been downgraded to serve the interests of certain countries.
At the bottom of the H/IR study is Michael N. Schmitt’s article “The Vanishing Law of War - Reflections on Law and War in the 21st Century” published in “Frontiers of Conflict”, Vol. 31 (1). Michael N. Schmitt is the Dean of the George C. Marshall European Center for Security Studies in Germany and had served as a Visiting Professor of International Law at the United States Naval War College during 2007-08.
This scholar’s work commences with quotations from writings in 1952 from Sir Hersch Lauterpacht, then the Whewell Professor of International Law at the University of Cambridge, who opined that “if international law is the vanishing point of law, the law of war is at the vanishing point of international law.” (British Yearbook of International Law).
The Harvard review of Schmitt’s writing pointed out that the renowned scholar Lauterpacht, who later served on the International Court of Justice, was merely echoing Cicero’s famous dictum ‘inter arma leges silent’—in war the law is silent; and that, today, echoes of Luterpacht and Cicero pervade discourse on the law of war. It asks: “Has post-World War II history merely confirmed their dismissive observations”?
The H/IR essay argues that “the prevailing context of warfare has always informed attitudes towards the law of war; it is less the law in the abstract that matters, than the environment in which it is applied”.
Tracing the historical development, Schmitt observes: “The carnage of WW II was still fresh in the minds of those [like Lauterpacht] contemplating the effectiveness of the law of war. Civilian deaths, estimated at nearly 50 million, had outstripped military casualties by a factor of nearly two to one. Particular groups, such as Jews, gypsies, and homosexuals, had been systematically slaughtered in death camps. Prisoners of war had suffered unthinkable conditions despite a 1929 Geneva Convention governing their treatment. Some four million died in captivity. Occupations had resulted in starvation, economic disaster, and widespread destruction of cultural property. The weapons of war, including incendiary and atomic bombs, had proven horrific.”
It traces developments in international war crime followed at Nuremburg and Tokyo and other domestic courts and the frenzied effort to codify the laws of war and human rights law prompted by the conflict. “In 1948, the Universal Declaration of Human Rights and the Genocide Convention were adopted, the latter an extraordinary accomplishment given that the term “genocide” had only been coined in the previous decade. The following year, the International Committee of the Red Cross’ effort to enhance norms applicable in armed conflict bore fruit with finalization of four conventions extending the protection of the sick and wounded on land and at sea, prisoners of war, and civilians(especially during occupation). In 1954, the Hague Cultural Property Convention was adopted”.
“The 1977 Additional Protocol I to the Geneva Conventions remedied the lacuna in laws governing external conflicts. “Its counterpart, Additional Protocol II, was the first treaty expressly drafted to govern internal armed conflicts. The 1980 Convention on Conventional Weapons outlawed or regulated the use of weapons that had non-detectable fragments, anti-personnel land mines, booby-traps, incendiaries, and, eventually, blinding lasers. Subsequent treaties dealt with biological and chemical weapons. Codification of norms on an array of other topics, such as environmental modification, continued throughout the remainder of the century, and the first war crimes tribunals since the war, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, were created through UN Security Council mandate.”
Schmitt observes that despite this extraordinary record of accomplishment, in the 21st century a nagging sense that Lauterpacht was right after all pervades public opinion. The reviewer of his writing asked: “Who has not heard, for instance, of Guantanamo or Abu Ghraib? Who has not seen the tragic images of civilian casualties and destroyed civilian property in Afghanistan, Iraq, Lebanon, Gaza, Congo, Darfur, or East Timor? Many believe that if the law of war has not vanished altogether, it is at least not measuring up to the task at hand. Has it proven nothing more than a hypocritical triumph of form over substance?”
It observed further: “There is equally an impression that the law of war is ill-suited to meet the demands of new forms of warfare, particularly transnational terrorism, in which it is ignored as a matter of course by one side to the conflict. Recall the infamous 2002 memo from Alberto Gonzales, then White House Counsel, to President Bush labeling provisions of the revered Geneva Conventions “quaint” and “obsolete,” it requests. “For proponents of this view, the answer is not more law, but less,” it says. “They accordingly herald the refusal of the United States to become a party to the 1977 Additional Protocols, the Statute of the International Criminal Court, the Ottawa Treaty on anti-personnel land mines, and the Dublin Convention on cluster munitions.” [That is because the provisions of the Additional Protocol would have impeded U.S’s intervention globally in the guise of meeting the situation in countries which it suspects of developing WMDs, e.g. Iraq; and conducting or supporting acts of international terrorism, e.g., al Qaeda or Taliban; and that she would become answerable had she acceded to them]..
As the review summarised, “Thus, the law of war is under attack today, on the one hand by those who claim it fails to protect the innocent, and on the other by those who allege it impedes the need to meet new threats. This debate reflects the inherent tension evident in the law of war since at least the 1868 St. Petersburg Declaration, which “fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity.” In other words, military necessity and humanitarian considerations exist in equipoise. States, which are formally the sole source of international law, will only countenance law that leaves them free to act effectively on the battlefield. Yet, by the same token it remains in their interest to protect their citizens from the deleterious effects of conflict.”
“The law of war seeks balance between these opposed imperatives. A paradigmatic example is the principle of proportionality, which prohibits attacks expected to cause incidental injury to civilians and collateral damage to civilian objects that is ‘excessive’ relative to the ‘concrete and direct military advantage’ anticipated to result. When this balance is thrown askew by either change in the nature of warfare or emergent humanitarian concerns, the law of war necessarily evolves. The 21st century is witnessing both dynamics, in particular as the consequence of two related phenomena—asymmetrical and counterinsurgency warfare.”
Asymmetrical Warfare
The H/IR review then goes to discuss Asymmetrical Warfare. This refers to hostilities in which one side is dramatically superior to the other. Today, this could arise from advancement in technology. Many examples like U.S./ West superiority in the war in Iraq are quoted. “Combined with weaponry of greater range, speed, maneuverability, accuracy and survivability than that of their opponents, such assets allowed American forces to control the pace and flow of combat, so much so that Iraqi efforts to resist became futile. In the face of such overwhelming superiority, the Iraqi military quickly melted away into the civilian population, launching an insurgency that continues today. Operations against the Taliban by the US-led coalition in 2001, by Israel against Hezbollah in Lebanon during 2006, and by Israel against Hamas in Gaza during 2008 have similarly demonstrated the benefits of advanced technology when fighting a lesser-equipped foe.
“Armed forces are ‘learning organizations’ which adapt to the realities of war”, the paper observes.. Hence, for example, the advent of aerial bombing led to the emergence of air-to-air combat, and the employment of surface-to-air missiles motivated the development of weapon systems designed to home in on the energy emitted by the missiles. Asymmetry has, analogously, led to the use of tactics and weapons suited for countering technological advantage. For instance, Iraqi insurgents quickly turned to the use of improvised explosive devices (IEDs) as a means of neutralizing US mobility and firepower without exposing themselves to the risks of confronting the Americans head-on.
Terrorist / Insurgent Response
The review poses the question: “But what sets contemporary responses to asymmetry apart is their relationship to the law of war. Unable to engage the enemy directly, insurgents have adopted tactics and strategies that either skirt the law, or violate it outright. In other words, departure from accepted norms is being employed to provide insurgents their own asymmetrical edge, on e capable of neutralizing the technological asymmetrical advantage enjoyed by their enemies.
It observes, that more nefariously, “they have adopted tactics that unambiguously breach existing law. For instance, perfidy, the feigning of protected status in order to kill or injure the enemy, has become commonplace. Other devices include the use of vehicles marked with the Red Crescent emblem/Red Cross equivalent), to enable insurgents to get close enough to attack their targets, while suicide bombers feign civilian status in order to intermingle with their victims without being detected. The Red Crescent logo being used unlawfully on vehicles transporting fighters and arms, as well as on military facilities. In light of the ineffectiveness of their defensive weaponry against high-tech systems, insurgents have also resorted to human shielding as a means of “defending” military objectives and forces. Simply put, insurgents have discovered that they can turn the law on its head by exploiting law of war norms in order to achieve military advantage over an opponent committed to complying with them
Direct attacks on Civilians by Terrorists/ Insurgents
The review observes: “Most concerning have been intentional attacks against civilians, a violation of the principle of distinction between civilians and combatants, one of the two labeled “cardinal” by the International Court of Justice. Realizing that they cannot prevail against a well-defended and well-armed adversary, terrorists, insurgents and other armed groups are focusing on a new center of gravity– the civilian population. By raising the stakes, such attacks have proven effective in turning enemy, friendly and neutral populations and governments against the conflict in question, while emboldening fighters who might otherwise suffer a sense of futility.
“One might assume that such unlawful acts would generate universal condemnation. Not so. In part, this is due to an unusual byproduct of asymmetry, the “bully syndrome.” The bully syndrome can result from a flawed perception that the technological advantage has become so striking that the fight is no longer “fair”—Operation Desert Storm lasted three weeks; NATO’s air campaign against Yugoslavia took 78 days; Coalition forces took control of Afghanistan in less than three months; the conventional phase of the Iraq conflict lasted three and a half weeks; the Israeli incursion into Lebanon against Hezbollah ended in 38 days; and recent operations against Hamas in Gaza were one month long. Fights this short cannot possibly be fair, or so it seems.
The contrasting situation is the admission that the Afghan guerillas too could use the “bully syndrome” in their own way and more and more U.S. and British soldiers could return home in body-bags, as President Karazi observed.
Under-dog syndrome
“As in any “unfair fight,” there is a propensity to root for the underdog. That has certainly been true in modern asymmetrical conflicts, Hamas-Israel being only the most recent example of the phenomenon. The pervasive presence of a globalized media on the battlefield complicates matters, for the very forces enjoying the technological advantage are the ones most likely to grant the media access to their operations; their fishbowl is therefore more transparent than that of their adversaries. Finally, non-governmental organizations tend to concentrate attention on the advanced militaries. To some extent this is because of accessibility. But it also derives from an understandable desire to concentrate resources where they are likely to do the most good. Focusing on Taliban, Al Qaeda, Hezbollah or Hamas misdeeds is unlikely to do much good; drawing attention to US or Israeli actions might well lead to changes in practice.
“So the dynamic of asymmetry is paradoxical, and, from a legal perspective, somewhat perverse. The disadvantaged side ignores the law because it cannot triumph in a conflict played by the conventional rules of the game. In turn, the advantaged side sees law as a one-way street; for them, the conflict is no longer a “fair fight,” at least in the context of the law of war”.
[If that is the Western expert analysis, why not concede that the Sri Lankan government too is entitled, in its own way, to look at its own war against local terrorism? Yes, it did in the case the government handling the JVP insurrection in which far more combatants and co-laterals were massacred within two to three years than in the war against Tamil Tiger terrorism which spread over three decades. The West looked the other way on that occasion; the signal being to finish that off quickly].
Counterinsurgency
“Counterinsurgent warfare is closely related to asymmetry; by definition, the insurgent is usually the disadvantaged party. It is now universally understood that counterinsurgencies are unlikely to be won on the battlefield alone. As noted in US Army and Marine Corps doctrine, irregular warfare is “about winning a war of ideas and perception. Its battles are fought amongst the people and its outcomes are determined by the perceptions and support of the people. ”
“What this means is that the restrictions imposed on counterinsurgency operations typically surpass those found in the law of war. For instance, whereas the proportionality principle prohibits “excessive” harm to the civilian population, counterinsurgency doctrine views any such harm as counterproductive, lest it turn the population against counterinsurgent forces. Accordingly, the US Counterinsurgency Manual cautions that “[a]n operation that kills five insurgents is counterproductive if collateral damage leads to the recruitment of fifty more insurgents.”
“Such concerns have been “operationalized” in the current rules of engagement and other directives governing US military operations in Afghanistan and Iraq. Examples abound. When Operation Enduring Freedom began, no forces were “declared hostile,” a typical practice at the commencement of hostilities. The law of war allows the direct targeting of enemy forces, regardless of what they are doing or where they are located (absent excessive harm to civilians); the mechanism for implementing this standard is to declare enemy forces hostile, which allows them to be engaged on sight. As a matter of law, those who are not members of armed groups, but somehow directly contribute to the hostilities (e.g., by providing tactical intelligence), can also be attacked “for such time as” they so participate.
Relevance to Sri Lanka
How far the above discussion on the situation on the law of wars has been applied to the war against LTTE terrorism in Sri Lanka needs reflection. There have been allegations made against government forces from time to time as much as allegations were made by the LTTE and its Tamil supporters against the Indian Peace Keeping Forces; [the latter did not attract international attention]; but it is the last phase of the war this year to which greater focus has been attached.
One of the primary allegations seem to arise from the theory of use of “excessive” force. That theory was suddenly picked up f The West looked the other way on that occasion, the signal being to finish it off quickly.
rom the archives where it had been lying in limbo after the U.S. and her allies applied “excessive” force in Iraq in the first war as well as the second war which were fought within a space of a decade in which the Iraqi forces were outnumbered all round, especially in technology.
The use of the theory to the situation in the Vanni emerged after its proponents in the U.S. and the West because suddenly they found their belief of the invincibility of the LTTE, a theory that the Norwegians first spread (Eric Solheim particularly) and the West began to accept, started tottering in the face of the Sri Lankan armed forces shattering the very foundation of that theory through the effective use of manpower and use of higher technology. The belief in the invincibility of the LTTE was based not necessarily because of the type of guerilla and urban warfare that the LTTE had proved it was capable of, but because the West was aware of the modern weaponry that the LTTE had amassed and techniques like underwater demolition which the Norwegians helped to perfect.
With the defeat of the LTTE in the field, disappeared also the myth that the LTTE alone represented the Tamils of Sri Lanka, an idea which the West had accepted, and, therefore, pressurized the government to commence negotiations on the eve of LTTE’s defeat.
The fact that the LTTE ignored the law of war because it could not triumph in a conflict played by the conventional rules of the game, came to be ignored by the so called Western international community except for occasional cosmetic condemnation, and the focus remained entirely on government forces. Numerous examples could be quoted. For example, there was the massacre by the LTTE of 600 unarmed Policemen in the East who had surrendered on orders from the President who, no doubt, expected a safe conduct for them. There were those attacks on civilians at Kebitigollewa several times, the Anuradhapura massacre and the attack on DaladaMaligawa, on the mosques in the East and many others.
The LTTE too used nefarious tactics that “unambiguously breached existing law”. For instance, it used vehicles marked with Red Cross logo and those of other INGOs and NGOs to get close enough to attack targets, and transport fighters and arms; used their heavy equipment to construct bunkers and obstacles; while suicide bombers moved as civilians in order to intermingle with their victims without being detected. They used human shields as a means of “defending” military objectives and forces in a much bigger way than known to have existed anywhere else. Simply put, the LTTE discovered that they could turn the law on its head by exploiting law of war norms in order to achieve military advantage over an opponent committed to complying with them. The world remained silent over these actions.
So “the dynamic of asymmetry is paradoxical, and, from a legal perspective, somewhat perverse”, as the critic observed.
Applying the observation in the H/H essay that “the prevailing context of warfare has always informed attitudes towards the law of war; it is less the law in the abstract that matters than the environment in which it is applied,” it is a price that a small nation like Sri Lanka has to pay for “insubordination” to the “empire-makers,” the bigger powers like the U.S.
On deeper analysis, what matters is not really, the war against terrorism that little Sri Lanka fought with her own resources despite all obstacles placed before her - which could in itself be a deep cause of embarrassment to the U.S. and her NATO allies fighting in Afghanistan which war has reached a stalemate like the former Soviet Union’s engagement there; and earlier in Iraq, which country’s situation is still unsettled - but that as a result of the U.S.’s non-supportive role in Sri Lanka in stemming LTTE terrorism, like the banning of the supply of arms and pushing for negotiations at a time when the LTTE’s back was broken, countries which the U.S. considers her opponents have got closer to Sri Lanka. In other words, it is the added advantage to China in her penetration to the Indian Ocean through her support to the Sri Lankan government’s war against terrorism provided which is at stake.
This is the reason why the construction of the Hambantota port which the Chinese are financing and building has attracted so much attention in U.S. Naval and strategic circles. The ban on LTTE was incidental. There was no alternative but to ad it to the list. So were the few prosecutions in the U.S. on arms related issues. For all intents and purposes, LTTE organizations continued to thrive and engage in fund collection. Now the U.S. administration is meeting and consulting them in the guise of meeting the Diaspora! Could that be the visible answer to Sri Lanka’s growing relations with China, Russia, Iran and Libya?
The success of Sri Lanka in militarily defeating terrorism so close to the theatre U.S./NATO war against Taliban//al-Qaeda led terrorism, also plays a part in the equation. A charge of war crimes proffered against Sri Lanka could help hide U.S./NATO war atrocities like use of ‘Excessive” force backed by higher technology as much as the approaching stalemate in Afghanistan, if not failure, which the former U.S. security advisor Zbgniew Brzezinski predicted recently.
- Asian Tribune -
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