Advanced Topics in
the Law of War
The Law of War in the 21st Century:
Terrorism and Technology
Agenda
• Terrorism: Law of War vs. Law Enforcement?
– GWOT as armed conflict?
– GWOT as law enforcement?
– GWOT as hybrid?
• Technology
– Can LOAC keep up with Moore’s Law?
The next 10 years will be quite different from the last 10. Bin Laden’s
death is one of those catalytic moments that seize mass attention, as
people sense a turning point of some kind. But what kind? Leaders who
seize the chance can regain precious strategic initiative, to redefine
interests and offer a fresh narrative.
~ Philip Zelikow, FT, yesterday
Law of War v. Law Enforcement
What’s the Right Paradigm?
Enemy Combatant or Criminal?
• Some have argued that had Abdulmutallab been declared an
enemy combatant, the government could have held him
indefinitely without providing him access to an attorney. But
the government’s legal authority to do so is far from clear.”
~ Atty Gen Holder Letter to Sen McConnell, 3 Feb 2010
GWOT as Armed Conflict
“The U.S., its allies, and the civilized world are at war today
against an enemy which, while undeclared, is as well organized
and as ruthless as any that a modern state has confronted . . .”
~ London Times, 12 Sep 01
“Prior to 9/11, many had viewed
terrorism primarily as a crime to
be prosecuted… On 9/11, it was
obvious that the law
enforcement approach to
terrorism had failed.”
“The war would be different from any
America had fought in the past… The
terrorists had made our homefront a
battleground. Putting America on a war
footing was one of the most important
decisions of my presidency.”
“Contrary to the assertion of President Bush, the United States simply cannot be
at war with bin Laden and al Qaeda as such, nor would it be in the overall
interest of the United States for the status of war to apply merely to conflicts
between the United States and al Qaeda.”
~ Jordan Paust, 28 Yale J. Int’l L. 325 (2003)
“The Taliban and al-Qaeda represent a different dimension of crime, a higher,
more dangerous version of crime, a kind of super-crime incorporating some of
the characteristics of warfare. They are criminals who are also enemies.”
~ George Fletcher, The Indefinable Concept of Terrorism (Nov 2006)
“The magnitude of 9/11 and the danger of more terrorist attacks, had driven
home the inadequacy of treating terrorism as a law enforcement matter. . . .
No police force is organized and equipped to stop a campaign of
sophisticated, internationally supported terrorist attacks.”
~ Doug Feith, War and Decision (2008)
Conflict with Al-Qaeda?
Conflict with Al-Qaeda?
• “Pursuant to my authority as
Commander in Chief and Chief
Executive of the United States . . . I
hereby determine . . . that none of the
provisions of Geneva apply to our
conflict with al-Qaeda in Afghanistan or
anywhere else in the world.”
~ Pres Bush, 2002
“Legal Policy for a Twilight War”
• Policy decision: treat GWOT as an
armed conflict
• Implementation of the policy
– Lawyers at the center
– Can vs. should
– Making the policy case better (selling to
allies etc.)
Criticism
• The United States…has adopted a war paradigm in the
expectation that this provides a legal justification for setting
aside criminal law and human rights law safeguards, to be
replaced by the extraordinary powers that are supposedly
conferred under international humanitarian
law…[C]onflating acts of terrorism with acts of war, is
legally flawed and sets a dangerous precedent…Where
terrorist acts trigger or occur during an armed conflict, such
acts may well constitute war crimes, and they are governed
by international humanitarian law…The US’s war paradigm
has created fundamental problems. Among the most
serious is that the US has applied war rules to persons not
involved in situations of armed conflict, and in genuine
situations of warfare, it has distorted, selectively applied
and ignored otherwise binding rules…
~ International Commission of Jurists, Report of the Eminent Jurists Panel on
Terrorism, Counterterrorism, and Human rights, Executive Summary (Geneva, 2009)
GWOT as Law
Enforcement Initiative
“In the days following December 25 – including during a meeting with the
President and other senior members of his national security team on January 5 –
high-level discussions ensued within the Administration in which the possibility of
detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No
agency supported the use of law of war detention for Abdulmutallab, and
no agency has since advised the Department of Justice that an alternative
course of action should have been, or should now be, pursued. . . .”
~ Atty Gen Holder Letter to Sen McConnell, 3 Feb 2010
“[T]he shoe bomber was not a burglar
or bank robber; he was a foot soldier
in al-Qaeda’s war against America. . .
By giving this terrorist the right to
remain silent, we deprived ourselves
of the opportunity to collect vital
intelligence on his plan and his
handlers.” ~ Pres Bush
“Imagine what would have happened if the Obama administration
had been running things immediately following 9/11. After their
"arrest," we would have read KSM and al-Libi their Miranda rights,
provided them legal counsel, sent them to the U.S. for detention,
and granted them all the rights provided a U.S. citizen in criminal
proceedings. If this had happened, the CIA could not have built the
intelligence mosaic that pinpointed bin Laden's location.”
~ John Yoo, Wall Street Journal, Today
“You are not an enemy combatant. You are
a terrorist. You are not a soldier in any war.
You are a terrorist. To give you that
reference, to call you a soldier gives you far
too much stature. Whether it is the officers
of government who do it or your attorney
who does it, or that happens to be your
view, you are a terrorist. And we do not
negotiate with terrorists. We do not sign
documents with terrorists. We hunt them
down one by one and bring them to justice.
So war talk is way out of line in this court.
You are a big fellow. But you are not that
big. You're no warrior. I know warriors. You
are a terrorist. A species of criminal guilty of
multiple attempted murders.”
~Judge William Young, sentencing of
Richard Reid, Jan 2003
GWOT as Hybrid
In each case, my decision as to whether to proceed in federal courts or military
commissions was based on a protocol that the Departments of Justice and
Defense developed and that was announced in July. Because many cases could
be prosecuted in either federal courts or military commissions, that protocol sets
forth a number of factors – including the nature of the offense, the location in
which the offense occurred, the identity of the victims, and the manner in which
the case was investigated – that must be considered. In consultation with the
Secretary of Defense, I looked at all the relevant factors and made case by
case decisions for each detainee. ~ AG Holder, 13 Nov 09
“In my judgment, this new paradigm [the war against terrorism] renders
obsolete Geneva’s strict limitations on questioning of enemy prisoners and
renders quaint some of its provisions requiring that captured enemy be
afforded such things as commissary privileges, scrip, athletic uniforms, and
scientific instruments.” ~ Atty Gen Alberto Gonzalez, Jan 2002
“The war against terrorism ushers in a new paradigm . . . Our nation
recognizes that this new paradigm . . . requires new thinking in the law
of war.”
~ President George Bush, 7 Feb 02
War is a challenge to law, and the law must adjust. It must recognize
that the old wineskins of international law, domestic criminal
procedure, or other prior frameworks are ill-suited to the bitter wine of
this new warfare. We can no longer afford diffidence. This war has
placed us not just at, but already past the leading edge of a new and
frightening paradigm, one that demands new rules be written.
Falling back on the comfort of prior practices supplies only illusory
comfort.
~ Al Bihani v. Obama (D.C. Circ, 2010), Brown, concurring
Criticisms
• “…states neither need, nor should be
allowed, to pick and choose different legal
frameworks concerning the conduct of
hostilities or law enforcement, depending on
which gives them more room to maneuver.”
~ Jelena Pejic, Terrorist Acts and Groups: A Role for International
Law (quoted in Solis, pg 167)
U.S. Military Practice
DODD 2311.01E, 9 May 06
• 4.1. Members of the DoD Components
comply with the law of war during all
armed conflicts, however such
conflicts are characterized, and in all
other military operations.
Concluding Observations
• The “Global War on Terrorism” is not a war in the
traditional sense
• Neither the law of war nor a pure law enforcement
approach is a good legal fit for the state’s response to
modern terrorism
• Policy challenge: developing legal policy for the
“GWOT” that is both effective and legitimate
• Legal challenge: updating international law to
effectively meet the threat of modern terrorism
Technology
Technology is like "magic shoes" on the feet of
mankind, and after the spring has been wound tightly
by commercial interests, people can only dance along
with the shoes, whirling rapidly in time to the beat that
they set. ~ Unrestricted Warfare, Chinese Colonels
TOV
MSSMP
Desert Hawk
Packbot
Global Hawk
Remote Transport System
Wrap-up / Future of the LOW
Future of the Law of War
Global Trends 2025
• We prepared Global Trends 2025:
A Transformed World to
stimulate strategic thinking
about the future by identifying
key trends, the factors that drive
them, where they seem to be
headed, and how they might
interact. The study as a whole is
more a description of the factors
likely to shape events than a
prediction of what will actually
happen.
~ DNI / National Intel Council
Wrap-up / Future of the LOW
Global Trends 2025
Executive Summary
• Key Trends:
– “Unrecognizable” international system in 2025
– Rise of non-state actors
• Terrorist and criminal networks
• Specific-issue NGOs
• Proliferation of political identities
– Rise of BRIC (Brazil, Russia, India, China)
• “State Capitalism” model
– American power loss relative to others (but still
most powerful)
HANDOUT 2025 GLOBAL LANDSCAPE
Wrap-up / Future of the LOW
Global Trends 2025
Chapter 5: Growing Potential for Conflict
• Key Trends:
– Potential for conflict (intra and inter-state) greater
than last forecast
– Global war on terror will continue
• Risk Areas: Afghanistan, Pakistan, Yemen, Nigeria, Palestine
• Al-Qaeda terror wave may wane, however
–
–
–
–
Shrinking arc of instability
Nuclear Iran and consequent arms race?
Unified Korea likely by 2025
“MENA”: Strong economics but high risk of turmoil
• “Two-tier Muslim world”?
– Maritime insecurity and piracy
Wrap-up / Future of the LOW
Global Trends 2025
Chapter 5: Growing Potential for Conflict
• Key Trends:
– The Changing Character of Conflict (p. 72)
• Increasing importance of information
– Precision weaponry, ISR capabilities, enhanced C2, AI /
robotics
• Evolution of irregular warfare capabilities
– Improved assymmetrical warfare by “have-nots”
• Prominence of non-military aspects of warfare
– Cyber, economic, resource, psychological, lawfare etc.
• Expansion and escalation of conflicts beyond
the traditional battlefield
– World becoming smaller; lines becoming less clear
Wrap-up / Future of the LOW
Global Trends 2025
• “. . . those states most susceptible to
conflict are in a great arc of instability
stretching from Sub-Saharan Africa
through North Africa, into the Middle
East, the Balkans, the Caucasus, and
South and Central Asia, and parts of
Southeast Asia.” ~ pg 61
Wrap-up / Future of the LOW
TM Barnett and “the non-integrating gap”
Wrap-up / Future of the LOW
Global Trends 2025
• “[W]e cannot rule out a 19th centurylike scenario of arms races, territorial
expansion, and military rivalries.”
~ Executive Summary
Wrap-up / Future of the LOW
Kaplan: New Balance of Power
• Kaplan observed that this is the world
that is being created while the U.S. is
focused on messy counterinsurgencies
in Iraq and Afghanistan, even if new
powers are quietly rising up. The total
result of the Iraq War, to him, is that it
has fast-forwarded the arrival of the
Asian century. . . . Asian militaries are
becoming real civilian-military
postindustrial complexes.
Wrap-up / Future of the LOW
Kaplan: New Balance of Power
• If Afghanistan has taught that it might not be wise to
go it alone, notwithstanding the quick initial results
one can achieve that way, Kaplan said; and if Iraq has
shown the U.S. the crude, low-tech end of asymmetry
with IEDs and other devices, then the Chinese
competition is going to show the U.S. the very
sophisticated, subtle, high-tech end of asymmetry in
the naval and other realms. The Chinese are not
competing with the U.S. across the board; they are
concentrating on three things: (1) submarines, (2)
missiles that can hit moving targets at sea, and (3) the
ability to knock out satellites in space, all of which put
together constitute an asymmetric threat against the
U.S. navy.
Wrap-up / Future of the LOW
Kaplan: New Balance of Power
• The last war, the one in which we’re presently
engaged, is never a good indicator of wars of
the future, Kaplan said. The 1870 FrancoPrussian War gave no indication of what World
War I would be like, Korea gave no indication
of what Vietnam would be like, WWII gave no
indication of Korea, and Gulf War I gave no
indication of the current Iraq War. So the U.S.
may master the arts of land-based
counterinsurgency just as that recedes over
the horizon and is irrelevant for future
challenges and conflicts.
Wrap-up / Future of the LOW
Predictions?
• BY 2025, WILL WE HAVE:
–
–
–
–
–
–
–
–
–
Unified Korea?
Palestinian State / Mideast Peace?
Nuclear Iran?
Nuclear weapon detonated in a major city?
Major cyber attack?
UN Security Council Reform?
New primary energy source?
Significant US presence in Iraq / Afghanistan?
Overhaul of the Law of War?
Wrap-up / Future of the LOW
Concluding Observation
“[I]f international law is, in some
ways, at the vanishing point of law,
the law of war is, perhaps even
more conspicuously, at the
vanishing point of international
law.”
~Sir Hersh Lauterpacht