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by Pooja Gautam

Cite as : (2005) PL February (J) 13


The law of war in the war on terror

To some, it may appear paradoxical, even ridiculous, that the killing of human beings, facilitated increasingly by the development of more effective instruments of death, should be regulated equally increasingly by rules designed to introduce a measure of humaneness into a bloody business. The unthinking may indeed have wondered time and again why it should make any real difference how one soldier should dispose of another soldier—an enemy, who given a chance, would kill him. Yet there are some rules of International Humanitarian Law, which after long practice have been so inculcated in our psyche that they have become fundamental of a just and humane world order.

Just as Hugo Grotius, a 17th century thinker, who is often called the father of international law once said that as soon as you diverge from international law you violate the foundation of future peace and take the path that leads to chaos1 It goes without saying that those words are as relevant now as they were when they were spoken for the first time. Many rightfully blame the United States and her coalition of allies for ignoring the international law in their war against Iraq. Nevertheless, this war has precedents. The protests against these previous wars were less harsh. It is legitimate to ask whether the NATO attacks on Kosovo and Yugoslavia in the spring of 1999 were not the first steps on the path that led to chaos.

Blunder in Baghdad

"An empire founded by war has to maintain itself by war." - Montesquieu

None of us approve of torture. And yet at some deep, subliminal, typically Third World level, we all accept that interrogators often use unsavoury methods to extract information. Yet the worrying thing about the abuse and humiliation depicted in these photographs, about the abuse of Prisoners of War in Iraq, is the sheer pointlessness of cruelty. Especially at this juncture when we see over ninety per cent of the people who were imprisoned at Abu Ghraib being released for lack of any evidence of having committed any crime. There is not a slightest wince of regret on the captors' faces. On the contrary, as a couple of US soldiers casually pose behind a freshly constructed human pyramid of naked living Iraqis on a cell floor, they can be seen openly smiling2

Even the more serious excuses have been appalling. The woman General In-Charge of the prison where the pictures have been taken has accepted that she has a responsibility for what happened but claims that her superiors were aware of what was going on. Other soldiers have argued that they had not been given copies of the Geneva Convention and so, did not know how POWs should be treated—as though you need to read the rule book to realise that it is wrong to put a dog's collar on a prisoner's neck and drag him by a leash. Furthermore, the American New Yorker Magazine dropped a bombshell on Sunday, May 16, 2004 saying the torture was okayed by Rumsfeld3

Here it is imperative to mention that special responsibility rests on the shoulders of the military commanders, who are obliged to do everything possible to prevent breaches of the Third Geneva Convention, relating to the prisoners of war. Such incidents are stark examples of the violation of Additional Protocol I in the area under their command and the Fourth Geneva Convention4

Also, in connection with the judgment of the Nuremberg Court, there has evolved a rule of customary law, which has influenced the domestic legal systems. If it is clear to the subordinate that the order will result in a breach of the law, then he must refuse to obey it. If he nevertheless carries out the order and in so doing commits a breach of international humanitarian law, then he must accept the legal consequences.5 Hence, just like the superior military generals, the soldiers also cannot shun their responsibilities with regard to gross human rights violation of the POW in Iraq.

Furthermore, it has been forcefully asserted by the United Nations General Assembly that where rape is committed on a massive and systematic basis for the purpose of destroying the family and community life of the victims and of "cleansing" the vicinity of all other ethnicities by causing mass flight, and births of a tainted bloodline, it becomes genocidal.6 The omission of rapes from the definition of grave breaches allows the perception that it is only where they reach the systematic and widespread level of crimes against humanity that they are punishable as war crimes. Just as a single illegal act towards a prisoner of war violates the Third Geneva Convention, a single act of rape in armed conflict must be regarded as illegal under the laws of war.

The United States hegemony and the foundation of international law

Now the question in front of us which almost stares at our faces is—is this the new face of colonialism? The UN protectorate in Timor was the first full recolonisation of former colonial territory by the western powers. Twenty years ago that would have been unthinkable. Ironically, the UN in 1990 declared the "International Decade for the Eradication of Colonialism"—yet the decade ended with white rule restored in Timor. Since 2002 it is nominally independent, although still 100% dependant on international aid.

Looking back into history, we realise that Clinton administration was as determined when it started its war on Serbia as the Bush administration to force events towards the desired outcome i.e. capitulation or war. The situation in Kosovo in March 1999 did not justify starting a war against Serbia—not even with the support of a UN resolution, and much less without one. While Kosovo still remains a NATO protectorate, which has made Kosovo a cauldron of hatred and violence and a likely base for further instability and warfare7 Unwilling to provide large resources for rebuilding, NATO has no solutions and no evident "exit strategy". There were serious proposals for a post-Taliban UN protectorate in Afghanistan, but the intervening powers control only Kabul. All this re-colonisation was UN-sponsored, as it is in Iraq. And as of now Iraq stands as protectorate of the coalition forces—another example of white rule.

Hence, one is inevitably reminded of the irony of the words once spoken by South Africa's Prime Minister, Jan Christian Smuts, about the League of Nations—"The tents have been struck, the great caravan of humanity is again on the march." A generation later, this mass movement towards the international rule of law still seemed very much in progress when in 1945, the League was replaced with a more robust United Nations8 Earlier this year, however, the hollowness of these words became clear so that the grand attempt to subject the use of force to the rule of law seems to have terribly failed. Unfortunately, the Security Council has fallen victim to geopolitical forces too strong for a legalist institution to withstand.

Plan to secure post-war Iraq: suggestions and recommendations

From the start, the original population of Iraq has no political representation in the interim administration. It includes Iraqi personnel, but all real power rests with the US military, who commands the other troop contingents. That will continue to be the case until they withdraw. On 28-6-2004, the de facto Governor Paul Bremer went home, but he was simply replaced by another de facto Governor, US Ambassador Negroponte. The assemblies which drafted the new Iraqi Constitution after the superficial transfer of power to a new interim Iraqi Government on 28-6-2004 were US-appointed, and the candidates in the elections will be US-approved. If the insurgency gets worse, the US might dump the "sovereign" Allawi Government in favour of a UN-mandated authority, but the UN is not "the Iraqi people" either. Whatever the nominal source of authority, all decisions will indeed be made in the interests of the western powers. That applies especially to "economic development", which will consist entirely of restarting oil flows to the west.

While on the other hand this transfer of power did not erase, or even much ease at first, the most pressing problems confronting that beleaguered country—endemic violence, a shattered State, a non-functioning economy, and a decimated society. The following are a few recommendations which are the need of the hour and the last hope of a better Iraq:

  • Accountability: The first priority of the coalition forces should be to restore the faith and the goodwill of the common Iraqi. Therefore the US should firstly carry out investigations of all cases where there are allegations or sufficient reasons to suspect that use of lethal force by occupation troops may have led to wrongful death or injury to Iraqi civilians. As it happened in the case of former Yugoslavia and Rwanda (and in slightly different forms in Cambodia and East Timor), where a UN Security Council resolution authorised the Secretary-General to establish an international commission of some half-dozen experts, Iraqi and international in composition, with a mandate to establish an independent national central repository to receive documentary, forensic, and other forms of evidence. Also, the Iraqis should establish a truth and justice mechanism to deal with lower-grade perpetrators and to establish a historical record so as to provide a vetting mechanism to remove past abusers from government posts on the basis of individual accountability.
  • "Loose federation": The Coalition Provisional Authority (CPA) has been proceeding on a false premise, "namely, the idea of Iraq as a unified country populated by people who think of themselves primarily as Iraqis". The more practical option, in my opinion is a "loose federation" that allows each of Iraq's main groups—the Shiites, Kurds, and Sunnis—to maintain their separate identity and yet rebuild the Iraq nation.
  • Stop bombing: The air-bombing campaigns in civilian areas like Falluja are killing innocent civilians, destroying innocent people's homes, and are a violation of the Geneva Convention Accords, which makes the occupying forces legally responsible for the safety of the civilians.
  • Police doctrine: Often the trigger-happy coalition forces end up shooting an innocent civilian. Here it needs to be forcefully asserted that the Iraqis have a right to know how they can avoid walking into their "death traps". Proper signs in Arabic and public service campaigns should be used to make them aware how they are expected to behave at checkpoints or during raids on their homes. Apart from that, it is our responsibility to train our soldiers according to police doctrine rather than military doctrine. In other words, they should apply limited force and not an overwhelming one, to reach a decisive victory. Stress should be laid on upholding the rights of the individual and on resolving incidents with the minimum use of force.
  • Iraqi security forces: The silent majority of Iraqis increasingly side with the insurgents, who are viewed as part of the Iraqi nation, waging resistance against the foreign occupiers. However nasty their tactics, the insurgents are viewed as the "us" in this new battle to expunge the occupiers. However noble and rational the goals of the coalition be, US and British personnel are perceived as the alien "them". The bottom line is this: however incompetent and untrained Iraqi security forces currently are, they can defuse the insurgency more effectively than the coalition forces, however competent and trained they may be.
  • Prisoners to be handed over to the Iraqi Government: If the US Government recognises the interim Iraqi Government as truly sovereign, they must turn over all Iraqi citizens to the local Iraqi police. By holding Iraqi citizens, the US military is in violation of the Geneva Convention Accords, and is in violation of Iraqi sovereignty. The Iraqi authorities should be allowed to run the neighbourhoods without intrusion of the US troops as the US presence only invites attacks. No solution to Iraq's security problem will be successful if it is not done by Iraqis.
  • Mandate of the people: Postponing elections for several years would be problematic in Iraq. As the appointed interim government of Prime Minister Ayad Allawi itself has acknowledged, that its government lacks a genuine mandate from the people. The real lesson is not that elections are best delayed, but that an environment propitious to holding them must be fostered as early as possible. And if elections are to be delayed, the people must be assured that all parties are working in good faith towards establishing a fair, democratic system.
  • Stop Using Sectarian Identification: The temporary leadership (until elections) should be based on ability, competence, and popular acceptance, not purely on sectarian or ethnic background (Shiite, Sunni, Arab, Kurdish, etc.). At any rate, in any real democracy, politicians are not picked solely based on their sectarian identity, or because they are perceived to be from a majority, or the largest denomination.
  • Role played by local constituencies: Reconstruction is most likely to succeed when all key local constituencies have agreed on how to share power. Elections, security-sector reforms, institution-building, and the deployment of foreign forces are not ends in themselves, but elements of an overall political strategy to enable war-ravaged States to live in peace with themselves and their neighbours. And for that peace to be self-sustaining, the reconstruction process cannot be predetermined by generic templates and arbitrary time-frames; it must be shaped by the aspirations and deliberations of the men and women who will live with the results.
  • Infrastructure: Unlike the contrary opinion of the 1990s when the holding of elections in war-torn countries was seen as a harbinger of their recovery and democratisation, the trend these days seems to have changed. The rush to hold free elections or to liberalise economies often glosses over fundamental problems that must be addressed before peace can become self-sustaining. (As the "winner-take-all" elections that were conducted in Angola in 1992, before the disarmament and demobilisation process had advanced, exposed the parties' unwillingness to accept any result other than victory and at the same time some were surprised when Jonas Savimbi, the late Angolan rebel leader rejected his defeat at the polls and plunged the country back into war.) The importance of properly sequencing State-building should be emphasised, starting by strengthening the institutions of security and law and order: the army, the police, and the judiciary. Without such necessary steps, a minority of powerful actors can hijack the election process of a troubled State and thwart the will of the majority. Also it had been emphasised by an official from the US "Institute of Peace" when he briefed the Defence Policy Board, an influential advisory panel, on a $628 million proposal, developed by the institute and based on peacekeeping experiences in Kosovo. It called for bringing 6000 civilian police officers and 200 lawyers, judges, court administrators and corrections officers in Iraq as soon as the fighting stopped. Therefore the need of this hour is to build up a strong infrastructure for Iraq before democracy can be established.
  • Restoration of the essential services: Water, electricity, sewage, telephone service, and other essential services must be repaired quickly. According to the Power Ministry, completely repairing that sector will require almost 4 years of construction and work as of yet has not commenced. In addition hospitals need not only paint jobs, but new beds and sheets, more state-of-the-art equipment, and better organised importation of medicines for complex illnesses needs to be provided. Pharmaceutical plants need to be restarted and re-equipped in order to satisfy the needs of the people.
  • Establish temporary employment: The majority of the Iraqi people were employed by the former government in the Socialist Welfare State. The dismantling of the Defence Ministry, government-owned factories, and other governmental agencies has caused people and families to face an uncertain future. Although the goal of making the economy a free market economy is a good idea, it must be a transitional transformation. Time is needed to allow the private sector to grow and people will appreciate working in the private sector more than the government.
  • Stop or modify the US military's paid "Tips" program: The US military's paid "Tips" program is one which pays money to anyone who submits any information without verification. An overwhelming majority of Iraqis are wrongly arrested and later released after being detained on such false information, which is sold to the US military for money. The US military needs to verify any information before acting on and ruining people's lives, and make those submitting such information accountable.
  • Transparent and consistent media policy: Host populations develop exceedingly high expectations of the benefits that foreign administration will bring them only to be disappointed when their problems are not solved overnight. Disenchantment quickly ensues, followed by unrest, which sometimes prompts international administrators to respond with overly controlling, perhaps even draconian methods. The mission's costs or casualties begin to mount, and supporting countries find it increasingly difficult to persuade their people to incur them. As a result, transitional administrations often lose local consent or foreign backing before delivering the freedom and prosperity they promised. Therefore, it is important for the policing nations to make the masses aware of the ground realities. This may also involve reduced expectations from not just the Army but at decision-maker, governmental institutions, media, and public levels. Thus an open, transparent and consistent media policy should remain the topmost priority.
  • Historical, geopolitical, and socioeconomic background varies: The UN has been in the business of peacekeeping since 1948. During the Cold War, UN missions were mostly restricted to placing lightly armed observers between warring States to monitor compliance with ceasefire agreements. Since the fall of the Soviet Union, however, more UN operations have been set up to implement comprehensive settlements to resolve civil wars and rebuild political systems, sometimes from scratch: from complex peace operations in Cambodia, El Salvador, Mozambique, and Namibia in the early 1990s to the even more complex administration of collapsed territories, such as Kosovo and East Timor in the late 1990s. Yet, it has to be kept in mind that what worked in East Timor, an island with a largely homogeneous population, would probably not have worked in Afghanistan, a far more vast, populated, and fractured State, and what works in Afghanistan may not work in Iraq. The specifics of these conflicts—their scale as well as their historical, geopolitical, and socioeconomic roots—should inform how peace is brokered and maintained.
  • The morale of a soldier: It is certainly not an easy task to broker peace in a war ravaged nation. As it has been already mentioned, there are no set mathematical formulas. The winning, under such circumstances, would be restrained: a silent victory, after much perseverance and endurance. Yet, the soldier peacekeeper would still need all that cheering and gaiety of victory normally reserved for a victory after a bloody war. All declarations of decorations, awards, and medals should be given immediately on return to the homeland, not months later. The Army, the government, the elites, the statesmen, and the media must educate the common man to honour a peacekeeper on his return to his home and motherland with the same explosive effervescing gaiety as he does to a war hero.

This will then consolidate the moral and innate values of peacekeeping in the minds of millions and in doing so let the entire humanity learn and demonstrate that it honours peace, a notch higher than war.

--- + IIIrd Year, National Law Institute University, Bhopal. Return to Text
1 Leslie C. Green, Essays on Modern Law of War, 2nd Edn., Transnational Publishers, Inc Ardeselry, New York. Return to Text
2 Hindustan Times, "Those Iraqi POW Photos", Lucknow, 9th May 2004. Return to Text
3 Ibid. Return to Text
4 Hans-Peter Gasser, "International Humanitarian Law: An Introduction", The International Red Cross and Red Crescent Movement, 1993. Return to Text
5 L. Oppenheim, International Law: A Treatise (Disputes, War and Neutrality), Vol. 2, 7th Edn., Logmass Green and Co., London. Return to Text
6 as on October 2004 Return to Text
7 Norman D. Palmer. Howard C. Perkins, International Relations: The World Community in Transition, 3rd Revised Edn., A.I.T.B.S. Publishers & Distributors, Delhi (2002). Return to Text
8 Geog Schwarzenberger, A Manual of International Law, 5th Edn., Universal Law Publishing Co. Pvt. Ltd., Delhi (2000). Return to Text

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