What the Laws of War Allow (Madar)

Chase Madar writes at Tomdispatch.com

What the Laws of War Allow
Do the WikiLeaks War Logs Reveal War Crimes — Or the Poverty of International Law?
By Chase Madar

Anyone who would like to witness a vivid example of modern warfare that adheres to the laws of war — that corpus of regulations developed painstakingly over centuries by jurists, humanitarians, and soldiers, a body of rules that is now an essential, institutionalized part of the U.S. armed forces and indeed all modern militaries — should simply click here and watch the video.

Wait a minute: that’s the WikiLeaks “Collateral Murder” video! The gunsight view of an Apache helicopter opening fire from half a mile high on a crowd of Iraqis — a few armed men, but mostly unarmed civilians, including a couple of Reuters employees — as they unsuspectingly walked the streets of a Baghdad suburb one July day in 2007.

Watch, if you can bear it, as the helicopter crew blows people away, killing at least a dozen of them, and taking good care to wipe out the wounded as they try to crawl to safety. (You can also hear the helicopter crew making wisecracks throughout.) When a van comes on the scene to tend to the survivors, the Apache gunship opens fire on it too, killing a few more and wounding two small children.

The slaughter captured in this short film, the most virally sensational of WikiLeaks’ disclosures, was widely condemned as an atrocity worldwide, and many pundits quickly labeled it a “war crime” for good measure.

But was this massacre really a “war crime” — or just plain-old regular war? The question is anything but a word-game. It is, in fact, far from clear that this act, though plainly atrocious and horrific, was a violation of the laws of war. Some have argued that the slaughter, if legal, was therefore justified and, though certainly unfortunate, no big deal. But it is possible to draw a starkly different conclusion: that the “legality” of this act is an indictment of the laws of war as we know them.

The reaction of professional humanitarians to the gun-sight video was muted, to say the least. The big three human rights organizations — Human Rights Watch (HRW), Amnesty International, and Human Rights First — responded not with position papers and furious press releases but with silence. HRW omitted any mention of it in its report on human rights and war crimes in Iraq, published nearly a year after the video’s release. Amnesty also kept mum. Gabor Rona, legal director of Human Rights First, told me there wasn’t enough evidence to ascertain whether the laws of war had been violated, and that his organization had no Freedom of Information Act requests underway to uncover new evidence on the matter.

This collective non-response, it should be stressed, is not because these humanitarian groups, which do much valuable work, are cowardly or “sell-outs.” The reason is: all three human rights groups, like human rights doctrine itself, are primarily concerned with questions of legality. And quite simply, as atrocious as the event was, there was no clear violation of the laws of war to provide a toehold for the professional humanitarians.

The human rights industry is hardly alone in finding the event disturbing but in conformance with the laws of war. As Professor Gary Solis, a leading expert and author of a standard text on those laws, told Scott Horton of Harper’s Magazine, “I believe it unlikely that a neutral and detached investigator would conclude that the helicopter personnel violated the laws of armed conflict. Legal guilt does not always accompany innocent death.” It bears noting that Gary Solis is no neocon ultra. A scholar who has taught at the London School of Economics and Georgetown, he is the author of a standard textbook on the subject, and was an unflinching critic of the Bush-Cheney administration.

War and International “Humanitarian” Law

“International humanitarian law,” or IHL, is the trying-too-hard euphemism for the laws of war. And as it happens, IHL turns out to be less concerned with restraining military violence than licensing it. As applied to America’s recent wars, this body of law turns out to be wonderfully accommodating when it comes to the prerogatives of an occupying army.

Here’s another recent example of a wartime atrocity that is perfectly legal and not a war crime at all. Thanks to WikiLeaks’ Iraq War Logs, we now know about the commonplace torture practices employed by Iraqi jailers and interrogators during our invasion and occupation of that country. We have clear U.S. military documentation of sexual torture, of amputated fingers and limbs, of beatings so severe they regularly resulted in death.

Surely standing by and taking careful notes while the Iraqi people you have supposedly liberated from tyranny are getting tortured, sometimes to death, is a violation of the laws of war. After all, in 2005 General Peter Pace, then Chairman of the Joint Chiefs of Staff, publicly contradicted his boss Secretary of Defense Donald Rumsfeld by commenting into a live mike that it is “absolutely the responsibility of every American soldier to stop torture whenever and wherever they see it.” (A young private working in Army Intelligence named Bradley Manning, learning that a group of Iraqi civilians handing out pamphlets alleging government corruption had been detained by the Iraqi federal police, raised his concern with his commanding officer about their possible torture. He was reportedly told him to shut up and get back to work helping the authorities find more detainees.)

As it turned out, General Pace’s exhortation was at odds with both official policy and law: Fragmentary Order 242, issued by Donald Rumsfeld’s Pentagon, made it official policy for occupying U.S. troops not to interfere with ongoing Iraqi torture. And this, according to some experts, is no violation of the laws of war either. Prolix on the limits imposed on the acts of non-state fighters who are not part of modern armies, the Geneva Conventions are remarkably reticent on the duties of occupying armies.

As Gary Solis pointed out to me, Common Article 1 of the Fourth Geneva Convention assigns only a vague obligation to “ensure respect” for prisoners handed over to a third party. On the ground in either Iraq or Afghanistan, this string of words would prove a less-than-meaningful constraint.

Part of the problem is that the laws of war that aspire to restrain deadly force are often weakly enforced and routinely violated. Ethan McCord, the American soldier who saved the two wounded children from that van in the helicopter video, remembers one set of instructions he received from his battalion commander: “Anytime your convoy gets hit by an IED, I want 360 degree rotational fire. You kill every [expletive] in the street!” (“That order,” David Glazier, a jurist at the National Institute for Military Justice, told me, “is absolutely a war crime.”) In other words, the rules of engagement that are supposed to constrain occupying troops in places like Afghanistan and Iraq are, according to many scholars and investigators, often belittled and ignored.

Legalized Atrocity

The real problem with the laws of war, however, is not what they fail to restrain but what they authorize. The primary function of International Humanitarian Law is to legalize remarkable levels of “good” military violence that regularly kill and injure non-combatants. IHL highlights a handful of key principles: the distinction between combatant and civilian, the obligation to use force only for military necessity, and the duty to jeopardize civilians only in proportion to the military value of a target.

Even when these principles are applied conscientiously — and often they aren’t — they still allow for remarkable levels of civilian carnage, which the Pentagon has long primly (and conveniently) referred to as “collateral damage,” as if it were a sad sideline in the prosecution of war. And yet civilian deaths in modern war regularly are the central aspect of those wars, both statistically and in other ways. Far from being universally proscribed, the killing of high numbers of civilians in a battle zone is often considered absolutely legal under those laws. In the pungent phrase of Professor David Kennedy of Harvard Law School, “We should be clear — this bold new vocabulary beats ploughshares into swords as often as the reverse.”

The relative weakness of the laws of war when it comes to preventing atrocities is not simply some recent debasement perpetrated by neoconservative Visigoths. Privileging the combatant and his (it’s usually “his”) prerogatives has been the historical bone marrow of those laws. In the Vietnam War, for instance, the declaration of significant parts of the South Vietnamese countryside as “free-fire zones,” and the “carpet bombing” of rural areas by B-52s carrying massive payloads were also done under cover of the laws of war.

IHL has certainly changed in some respects. A century ago, the discourse around the laws of war was far more candid than today. Jurists once regularly referred to “non-uniformed unprivileged combatants” simply as “savages” and the consensus view in mainstream scholarly journals of international law was that a modern army could do whatever it wanted to such obstreperous, lawless people (especially, of course, in what was still then the colonial world). On the whole, the history of IHL is a long record of codifying the privileges of the powerful against lesser threats like civilians and colonial subjects resisting invasion.

Even though the laws of war have usually been one more weapon of the strong against the weak, a great deal of their particular brand of legalism has seeped into antiwar discourse. One of the key talking points for many arguing against the invasion of Iraq was that it was illegal — and that was certainly true. But was the failure to procure a permission slip from the United Nations really the main problem with this calamitous act of violence? Would U.N. authorization really have redeemed any of it? There is also a growing faith that war can be domesticated under a relatively new rubric, “humanitarian intervention,” which purports to apply military violence in precise and therapeutic dosages, all strictly governed by international humanitarian law.

Here is where the WikiLeaks disclosures were so revealing. They remind us, once again, that the humanitarian dream of “clean warfare” — military violence that is smoothly regulated by laws that spare civilians — is usually a sick joke. We need to wean ourselves from the false comfort that the law is always on the side of civilians. We need to scrap our tendency to assume that international law is inherently virtuous, and that anything that shocks our conscience — that helicopter video or widespread torture in Iraq under the noses of U.S. soldiers — must be a violation of this system, rather than its logical and predictable consequence.

Let’s be clear: what killed the civilians walking the streets of Baghdad that day in 2007 was not “war crimes,” but war. And that holds for so many thousands of other Afghan and Iraqi civilians killed by drone strikes, air strikes, night raids, convoys, and nervous checkpoint guards as well.

Regulatory Capture

Who, after all, writes the laws of war? Just as the regulations that govern the pharmaceutical and airline industries are often gamed by large corporations with their phalanxes of lobbyists, the laws of war are also vulnerable to “regulatory capture” by the great powers under their supposed rule. Keep in mind, for instance, that the Pentagon employs 10,000 lawyers and that its junior partner in foreign policy making, the State Department, has a few hundred more. Should we be surprised if in-house lawyers can sort out “legal” ways not to let those laws of war get in the way of the global ambitions of a superpower?

It’s only fair that the last words on the laws of war go to Private Bradley Manning, now sitting in a prison cell in Ft. Leavenworth, Kansas, awaiting court-martial for allegedly passing troves of classified material to WikiLeaks, documents that offer the unvarnished truth about the Afghan War, the Iraq War, and Guantánamo. They are taken from the instant-message chatlogs he wrote under the handle of “bradass87” to the informant who turned him in. The young private saw very clearly what so many professors and generals take pains to deny: that the primary function of the laws of war is not to restrain violence, but to justify it, often with the greatest lawyerly ingenuity.

(02:27:47 PM) bradass87: i mean, we’re better in some respects… we’re much more subtle… use a lot more words and legal techniques to legitimize everything…

(02:28:19 PM) bradass87: but just because something is more subtle, doesn’t make it right

Chase Madar, a TomDispatch regular and author of a new book, The Passion of Bradley Manning (OR Books), is a lawyer in New York. To listen to Timothy MacBain’s latest two-part Tomcast audio interview in which Madar discusses the Manning case and his new book, click here for part 1 and here for part 2, or download it to your iPod here. Madar tweets @ChMadar https://twitter.com/#!/chmadar.

Follow TomDispatch on Twitter @TomDispatch and join us on Facebook.

Copyright 2012 Chase Madar

Mirrored from Tomdispatch.com

6 Responses

  1. I tend to think of that incident as a war crime. The most obvious clue is that the perpetrators are the military, and the victims civilians. It is the use of deadly force by a military unit against noncombatants, most of which are unarmed.

    The civilians are _mostly_ unarmed; a couple or so are toting AK-47s, and the pilot said one was carrying an RPG. However, considering the situation in Iraq at the time, the persons with the AK-47s could have simply been the equivalent of bodyguards. And the RPG sighting was far from certain; the pilot saw someone peeking around the corner, and he seemed to be carrying something longish.

    From a physical point of view, even if all of the civilians were carrying AK-47, these short-range, inaccurate weapon in the hands of non-trained personnel were absolutely of no threat to the Apache and/ or to the crew. The helicopter was out of range of the AK-47s (based on the time lag between the helicopter’s cannon firing, and the rounds arriving), and it is built to withstand 23mm cannon rounds. Even at point blank range, an AK-47 bullet would have the effect of peas bouncing off of an armored Humvee.

    From a psychological point of view, though I am not a psychologist or psychiatrist, it seems the pilot & co-pilot were just finding excuses to fire the helicopter’s cannon. As the wounded man was crawling, one said repeatedly for the wounded man to just grab a gun. The intent clearly being if his hand falls on a weapon, then technically he was armed and presented a clear and present danger, and thus can be “taken out.” This despite the facts that the man was near death and in no condition to fire, and that the AK-47 presented no danger whatsoever to the heavily armored attack helicopter flying out of range of small arms fire.

    Indeed, hearing the radio talk it seemed as if the Americans’ goal was to shoot someone, anyone. The excuse they used was the AK-47s and the shadow of a glimpse of what they said to be RPG. When the Van came, we heard some more search for excuses so that they can pull the trigger.

    When the Americans heard that a child had been wounded, they cursed, as if that would result in bad publicity for their actions. Then they further justified it by saying it was the Iraqi’s fault for bringing a child to a firefight.

    However, there was a child in the background apparent in some angles of the video. Alternatively, there might have been a child in the van that stopped to help the wounded man.

    The Americans then exclaimed proudly at how their round went perfectly through the center of the van’s windshield.

    This was like shooting fish in a barrel, with the exception that the “fishes” were live human being. The civilians presented absolutely no danger whatsoever to the helicopter. The Americans seemed to know that on some level of awareness, and thus their attempts to justify their action.

    It was, at least to me, clearly an act of war crimes.

    • But the point of the article is that the Apache incident very well may _not_ be a war crime in the _legal_ sense. That legally, such an act could be justified. Not to criticize you, but your response misses the point of the article – that our own sense of justice is often different from what is _legally_ considered so. And that it is lawyers and trained experts who determine what is legal, and that this can be problematic since those in power can simply hire said experts to create the laws they want.

  2. It must be pointed out that waging aggressive war itself constitutes a war crime — and the primary accusation against the Nazi leadership at Nuremberg. By that standard, nearly the entire US political class could be tried for Iraq at least.

  3. If you want to know whether something was an atrocity or not, simply engage in the following thought experiment: imagine if an Iraqi helicopter had indiscriminately opened fire on some Americans walking in the street, and made sure to kill the wounded as well as the occupants of a emergency crew sent to help the wounded. Would there be the same silence?

  4. The very word “law” in this context is the sickest kind of deceit.

    There is no “law” — maybe a few normative statements of discouragement of certain kinds of semi-universally abhorrent acts (if they are done to “your” tribe, that is, as opposed to “the enemy,” against whom anything goes. And there’s any number of apologists or outright denialists to certify that this “atrocity” or that one is just either the Fog (or Pink Mist) of War, or guess what, “Those rules do not apply to us on accounta first, we got SOVEREIGNTY, second, we SAY so, and third, whatchagonnadoaboutit?”

    The only folks that get hailed up before the court of world opinion are a few more universally (sort of) detested individuals. The rest is convenient pretense, occasionally usable as makeweight for critiques of the actions of others, or excuses for doing what the ruler wants to do anyway — like “pre-emptive war,” and now what looks like “pre-revenge” and similar sick speciousisms.

    There’s no right unless there’s a remedy, no “law” unless there’s some enforcement mechanism. And to the folks who have parsed the video, link to youtube.com, go spend some time on Youtube where so many grim “patriots” are just yukking up this and other images of Americans doing it, “lighting up” batches of “hajjis” and “terrorists” and “insurgents” and all the convenient other labels that bear zilch relation to what sure seems apparently to be “atrocities” on unsuspecting civilians in far too many of the little night-vision or full color helmet-cam clips.

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