{"id":3499,"date":"2012-12-06T15:12:12","date_gmt":"2012-12-06T20:12:12","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=3499"},"modified":"2013-02-15T17:07:12","modified_gmt":"2013-02-15T22:07:12","slug":"the-perilous-position-of-the-laws-of-war","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2012\/12\/the-perilous-position-of-the-laws-of-war\/","title":{"rendered":"The Perilous Position of the Laws of War"},"content":{"rendered":"

By Charles G. Kels*<\/strong><\/p>\n

The body of law governing how the United States wages war is at a crossroads. This code of conduct, forged in combat and honed over centuries<\/a>, has gone from a treasured lodestar for honorable warriors<\/a> to a strategic tool for those seeking to either expand or restrict military freedom of action in counterterrorism operations.<\/p>\n

The contours of the debate are by now well-delineated: U.S. policymakers formerly insisted that the country was engaged in a \u201cGlobal War on Terrorism<\/a>,\u201d and currently insist that it is in \u201carmed conflict with al Qaeda, the Taliban, and associated forces<\/a>.\u201d Regardless of terminology, the use of armed force was authorized by legislation<\/a> \u201cwithout a geographic limitation<\/a>\u201d and relies upon \u201cthe inherent right of national self-defense<\/a>\u201d as a matter of international law. This state of armed conflict provides the legal armature for the United States to undertake both targeting and detention, in accordance with jus in bello<\/em> principles, wherever the enemy finds safe haven and its host nation is either \u201cunable or unwilling<\/a>\u201d to take effective action.<\/p>\n

Critics of U.S. policy<\/a>, from both academia and human rights organizations, contend that America\u2019s capacious view of armed conflict is a cynical attempt to avail itself of the \u201cmore permissive\u201d rules for force applicable in wartime. Certain commentators invoke a \u201clegal geography of war<\/a>,\u201d whereby the relevance of the law of armed conflict (LOAC) is limited to \u201chot battlefields\u201d and \u201czones of conflict<\/a>.\u201d The basis for such critiques is the existence of a threshold for armed conflict<\/a> demarcating a specialized legal regime. (There is also considerable disagreement<\/a> over the extent to which human rights laws continue to apply during armed conflict, a topic that will not be addressed here.)<\/p>\n

This Article argues that the position of both U.S. policymakers and their critics rests on a conceptual misunderstanding of LOAC and its sacred value to the armed forces. Such attempts to leverage LOAC in the service of a political agenda or particular worldview risk undermining the legitimacy of its rules, thereby compromising the best and only time-tested system of protections available in war. What is needed is a renewed understanding of what LOAC is, and is not, along with a reaffirmation of its primacy as a value system undergirding the lawful conduct of hostilities.<\/p>\n

How Did We Get Here?<\/span><\/p>\n

Historically, nations were loath to officially acknowledge the presence of an armed conflict with non-state actors, for fear of legitimating rebels fomenting violence within their borders. Perhaps the best description of this phenomenon remains historian J.G. Randall\u2019s nearly century-old account<\/a> of the Lincoln administration\u2019s dilemma over whether to categorize the secession conflict as \u201ca public war or a mere domestic insurrection.\u201d The status of the Confederates in the eyes of the U.S. government\u2014as either belligerents or criminals\u2014ultimately hinged upon the answer to this question.<\/p>\n

Unsurprisingly, the Union tried to have it both ways, regarding secession as a nullity and its participants as conspirators subject to domestic law as a matter of principle, while conceding belligerent standing as a matter of necessity. Immunity for warlike acts was extended to Confederate troops out of the imperative to prevent retaliation. Of course, this dual approach of effectively treating the rebels as belligerents, without recognizing their belligerency, proved unwieldy for the administration in terms of its diplomacy<\/a> with foreign powers and its position in litigation<\/a>. Yet as Garry Wills takes pains to point out in his Pulitzer Prize-winning book<\/a>, Lincoln himself never wavered in his conviction that the Confederate army was an \u201coutlaw band\u201d and the United States remained a single entity.<\/p>\n

Thus, the U.S. posture after the terrorist attacks of September 11, 2001, broke new ground by unequivocally embracing the terminology and framework of war<\/a> with respect to non-state actors. Moreover, the non-state actors at issue were not internal dissidents, but transnational terrorists operating from the territory of lawless\u2014or potentially complicit\u2014regimes. This invocation of war was not simply a rhetorical flourish, as the United States made clear that it intended to leverage its entire military and national security apparatus to \u201cdisrupt and destroy terrorist organizations of global reach<\/a>.\u201d<\/p>\n

From the perspective of international law, the assertion of an armed conflict begs the question: which type? When the C.I.A. killed explosives expert Haitham al-Yemeni<\/a> in Pakistan by a drone strike in 2005, the U.N. special rapporteur on extrajudicial, summary, or arbitrary executions (the Special Rapporteur) delivered an allegation letter<\/a> demanding to know, among other things, \u201cwhat rules of international law\u201d the United States viewed as controlling. In its response<\/a>, the Bush administration stated that the United States was \u201cin a continuing state of international armed conflict with al Qa(e)da.\u201d<\/p>\n

This assertion, however, cannot be correct, since Common Article 2<\/a> of the Geneva Conventions applies the provisions governing international<\/em> armed conflict (IAC) to armed conflicts \u201cbetween two or more of the High Contracting Parties.\u201d That is\u2014leaving aside the complex and contentious issue of Additional Protocol I<\/a>\u2019s extension of Common Article 2 coverage to so-called \u201cwars of national liberation\u201d\u2014an IAC requires a state party on both sides of the dispute. This was clearly the case in the United States\u2019 campaigns to defeat and occupy the territory of the de facto governments of Afghanistan and Iraq, but clearly not<\/em> the case with respect to the fight against al Qaeda in general.<\/p>\n

Thus, by process of elimination, we arrived at the doorstep of non-international<\/em> armed conflicts (NIACs). This is hazier and newer terrain for the aforementioned reason that sovereign states have traditionally resisted the reach of international law into their domestic matters. Indeed, a NIAC is defined by Common Article 3<\/a> of the Geneva Conventions solely in the negative, as an \u201carmed conflict not of an international character.\u201d Even Jean Pictet conceded<\/a> that the Conventions\u2019 negotiators \u201cdeliberately refrained from defining the non-international armed conflicts which were the subject of Article 3 . . . .\u201d<\/p>\n

The problem we are left with is that the NIAC model is ill-suited to accommodate the struggle against a transnational terrorist network, because it was never meant for such things. The \u201cmini-Convention<\/a>\u201d of Common Article 3 was intended to rein in the worst excesses of civil wars, and there is a degree to which the whole concept of a global NIAC is oxymoronic<\/a> on its face. \u201cNon-international,\u201d in this view, is synonymous with (or at least inclusive of) \u201cinternal.\u201d<\/p>\n

Nonetheless, the Supreme Court\u2019s Hamdan<\/em><\/a> decision in 2006 was widely interpreted\u2014some say erroneously<\/a>\u2014as deeming the conflict with al Qaeda a NIAC. The Obama administration doubled down on this formulation, asserting in its motion to dismiss<\/a> the suit<\/a> brought by the father of Anwar al-Aulaqi that the Court had \u201crecognized\u201d a NIAC between the United States and al Qaeda in Hamdan<\/em>, and then applying that designation to the conflict. In a recent speech<\/a> at Oxford University, the Pentagon general counsel explicitly cited Hamdan<\/em> for the proposition that the United States is in a NIAC with al Qaeda.<\/p>\n

What is War (i.e., What is Armed Conflict)?<\/span><\/p>\n

Determining the existence of an IAC is relatively straightforward. Pictet\u2019s Commentary<\/em><\/a> on Common Article 2 notes that the term \u201carmed conflict\u201d was deliberately substituted for \u201cwar\u201d so as to head off arguments by states that their hostile acts did not amount to making war. Rather, \u201cany difference arising between two states and leading to the intervention of armed forces\u201d constitutes armed conflict, regardless of \u201chow long the conflict lasts, or how much slaughter takes place.\u201d The decision to divorce the application of the 1949 Conventions from the pronouncements of states was prompted by past experience. In 1937, imperial Japan eschewed a declaration of war<\/a> and classified its invasion of China as an “incident” (and Chinese soldiers as “bandits”) precisely in order to deny the relevance of international legal constraints. A Japanese Army directive explicitly repudiated the Hague regulations on land warfare<\/a> and mandated discontinuation of the term “prisoner of war” to categorize captured Chinese troops.<\/p>\n

Some scholars<\/a> nonetheless assert that even violence \u201cbetween sovereign states\u201d must rise to a certain level before crossing the threshold into armed conflict. The purpose of drawing this distinction is presumably to prevent states from claiming belligerent privileges in mere \u201c\u2018incidents\u2019, \u2018border clashes\u2019 or \u2018skirmishes\u2019<\/a>.\u201d However, this position runs counter to that of the Red Cross (ICRC), which maintains<\/a> that IACs \u201cexist whenever there is resort to armed force between two or more states.\u201d It is generally accepted<\/a> that \u201cthe level of intensity required for a conflict to be subject to the law of international armed conflict is very low.\u201d Hence, most experts appear comfortable<\/a> with the notion that virtually \u201cany fighting between armed forces of states is automatically covered\u201d by the Geneva Conventions.<\/p>\n

The tests for a NIAC, however, \u201care not as categorical<\/a>.\u201d Pictet provided some \u201cconvenient criteria<\/a>,\u201d while noting they were \u201cin no way obligatory<\/a>.\u201d It bears reemphasizing that the concern among the drafters of the Geneva Conventions was not that states would invoke the existence of a NIAC where there was none, but rather that that \u201cany form of anarchy, rebellion, or even plain banditry<\/a>\u201d would provide a basis for the intrusion of international norms into sovereign affairs, thereby undermining state support for the Conventions.<\/p>\n

As such, the attempt several decades later in Additional Protocol II<\/a> (AP II) to elaborate upon Common Article 3<\/a> made sure to provide a stringent threshold for application. The Protocol pertains only to armed conflicts \u201cwhich take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.\u201d Moreover, it does not<\/em> apply to \u201csituations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.\u201d<\/p>\n

On its face, AP II does not define NIACs. Rather, it delineates that subset of NIACs to which AP II applies. Indeed, the scope<\/a> of AP II aims to \u201cdevelop and supplement\u201d Common Article 3, but does not modify \u201cits existing conditions of application.\u201d However, to the extent that many provisions of AP II are widely regarded<\/a> as encapsulating the customary international law on NIACs more generally, that instrument\u2019s criteria for application\u2014in terms of the violence reaching \u201ca certain threshold of confrontation,\u201d but leaving aside AP II\u2019s additional requirement of territorial control\u2014have increasingly been proffered<\/a> as approximating the baseline elements for identifying this type of armed conflict.<\/p>\n

This perspective is buttressed by the work of the International Criminal Tribunal for the former Yugoslavia (ICTY), particularly in its influential 1995 Tadi\u0107<\/em> decision. The appeals chamber<\/a> in Tadi\u0107<\/em>, resolving a jurisdictional challenge, found that an armed conflict exists where there is \u201cprotracted armed violence between governmental authorities and organized armed groups or between such groups within a state.\u201d Two years later, the ICTY trial chamber<\/a> applied and refined that test, hinging the existence of armed conflict on two elements: \u201cthe intensity of the conflict and the organization of the parties to the conflict.\u201d The Rome Statute<\/a> of the International Criminal Court then essentially codified the ICTY\u2019s formulation, referring to \u201cprotracted armed conflict between governmental authorities and organized armed groups or between such groups.\u201d<\/p>\n

Thus was born the current consensus among legal scholars<\/a> and the ICRC<\/a> that a NIAC requires a minimum level of both intensity<\/em> of fighting and organization<\/em> of the parties involved. As the Venice Commission<\/a> of the Council of Europe opined<\/a>, in response to the perceived U.S. overreach in the \u201cwar on terror,\u201d the concept of armed conflict categorically excludes \u201cviolent acts which terrorist networks perpetrate in different places around the globe and the ensuing counter-terrorism measures, even if they are occasionally undertaken by military units.\u201d Similarly, the Special Rapporteur has observed<\/a> that the \u201cloosely linked\u201d network of al Qaeda and its affiliates lacks the degree of cohesion and ability to sustain protracted operations that characterize a \u2018party\u2019 to an armed conflict.<\/p>\n

Dueling Frameworks<\/span><\/p>\n

Both U.S. officials and their detractors agree that the status of the armed conflict is significant because it determines the applicable legal regime. The Obama administration asserts<\/a> its compliance \u201cwith all applicable law, including the laws of war.\u201d It notes<\/a>, quite rightly, that attacking \u201cspecific senior operational leaders\u201d (i.e., targeted killing) can be perfectly legal under LOAC; indeed, un<\/em>targeted killing, in the sense of indiscriminate violence, is precisely what LOAC forbids. Critics of U.S. counterterrorism practices contend<\/a>, with equal certainty, that targeted killings \u201cviolate the right to life\u201d wherever armed conflict does not exist. Moreover, the Special Rapporteur asserts<\/a> that under human rights law (HRL), \u201can intentional, premeditated and deliberate killing by law enforcement officials cannot be legal because, unlike in armed conflict, it is never permissible for killing to be the sole objective of an operation.\u201d<\/p>\n

The current impasse reflects the difference in perspective between LOAC and HRL. Taking for granted a backdrop of institutionalized killing, LOAC focuses pragmatically on \u201calleviating as much as possible the calamities of war<\/a>.\u201d Belligerents are subject to lethal attack at any time and place<\/a>, and even the death of innocents (i.e., collateral damage) is permissible<\/a> so long as proper precautions are taken and the anticipated toll is not \u201cexcessive\u201d in relation to the military advantage sought.<\/p>\n

On the other hand, HRL operates as the international law of peace<\/a>, undergirding domestic law with protections for the individual. Pursuant to the law enforcement paradigm, the use of lethal force against an offender is not the first, but the last resort, to be exercised only \u201cwhen strictly unavoidable in order to protect life<\/a>.\u201d The distinction between LOAC and HRL has been aptly summarized<\/a> as \u201cthe difference between \u2018kill or capture\u2019 and \u2018capture or kill.\u2019\u201d While there are limited circumstances in which law enforcement officers enjoy greater freedom of action than soldiers\u2014e.g., in the use of riot control agents<\/a> to quell domestic disturbances, which is prohibited as a method of warfare\u2014military force is generally understood to permit more liberal use of firepower.<\/p>\n

The upshot of all this is that when assessing the legality of U.S. counterterrorism policy\u2014particularly with respect to targeting, but to detention as well\u2014well-meaning and learned people are applying different rubrics and thus \u201ctalking past each other altogether<\/a>.\u201d If the ability to kill without warning and detain without trial rests on the primacy of LOAC, which in turn rests on the presence of armed conflict, then the basis for common dialogue breaks down early in the debate.<\/p>\n

Human rights advocates insist that war \u201ctakes two to tango<\/a>,\u201d such that reliance upon its norms requires the presence of clearly definable, robust parties engaged in intense hostilities. They worry<\/a> that the \u201cover-application\u201d of LOAC is an invitation to \u201cwar-creep,\u201d whereby \u201cthe more relaxed rules of targeting\u201d available in armed conflict will supplant \u201cthe more stringent \u2018imminence\u2019 standard<\/a>\u201d of law enforcement. Indeed, a world in which the rules for everyday life were provided by LOAC would be neither pleasant nor safe to live in; it would be a warzone. U.S. assurances<\/a> that it does not intend to apply LOAC \u201ceverywhere in the world,\u201d but only in places where governments are \u201cunable or unwilling\u201d to counter the terrorist threat themselves, are of little comfort to the international community.<\/p>\n

At the same time, requiring the United States to apply an arrest-first, shoot-last approach to hunting terrorists in remote regions would neutralize its technological edge and blunt its ability to practice highly precise drone warfare. A sniper who is told he can only fire his rifle as a last resort could be forgiven for retorting, \u201cWhat you\u2019re really saying is I can\u2019t use force at all.\u201d The strictures of LOAC do \u201cnot require a \u2018fair fight,\u2019\u201d only that combatants \u201cfight fairly.\u201d<\/a> Understandably, the United States is determined not to \u201cdeprive ourselves of any tool in our fight against al Qaeda<\/a>,\u201d which includes the ability to pick apart enemy operatives at long range. Soldiers\u2019 lives matter too. Although they go in harm\u2019s way, their safety cannot be risked gratuitously when the target is already in their crosshairs.<\/p>\n

Furthermore, given that effective law enforcement requires control on the ground\u2014and that capturing al Qaeda operatives in fortified locations could very well involve fighting our way in and out of contested areas\u2014there is a real argument to be made that targeted killing saves lives on all sides. This is presumably what President Obama meant when he said of al Qaeda in Pakistan<\/a>, \u201cFor us to be able to get them in another way would involve probably a lot more intrusive military actions than the one we\u2019re already engaging in.\u201d<\/p>\n

Far from fading away, this fundamental legal dispute between the U.S. and the human rights community is likely to ratchet up as we withdraw from Afghanistan and al Qaeda becomes further decentralized. The \u201cfacade<\/a>\u201d of a hot battlefield with a recognizable enemy will become harder to sustain as a legal basis for counterterrorism operations, even as those operations continue unabated or even expand. As such, some enterprising thinkers have sought new paradigms to break through the morass.<\/p>\n

One such suggestion is \u201cnaked\u201d self-defense<\/a>, the idea that the resort to self-defense under Article 51 of the U.N. Charter<\/a> can sometimes comprise its own regime governing the use of force. This theory purports to take support from State Department legal adviser Harold Koh\u2019s remark<\/a> that states may be \u201cengaged in an armed conflict or<\/em> in legitimate self-defense,\u201d as if the latter represents a stand-alone category of conflict. It postulates<\/a> that the exercise of self-defense is not \u201cnecessarily undertaken through\u201d either LOAC or HRL, but is regulated instead by the jus ad bellum<\/em> principles of necessity and proportionality. This, however, is the very problem with \u201cnaked\u201d self-defense as a viable theory. It mixes ad bellum<\/em> and in bello<\/em> concepts<\/a> in direct contravention of the foundational principle of LOAC; namely, that the \u201cjustice\u201d of one\u2019s cause has no bearing on the rules for conduct in hostilities. This \u201cposture of startling moral modesty<\/a>\u201d lies at the heart of LOAC as a coherent legal regime, enabling the extension of belligerent immunity to all parties who are authorized to fight, irrespective<\/a> of whether they are considered subjugators or liberators.<\/p>\n

Another suggestion is the creation of a new category of \u201ctransnational armed conflicts<\/a>,\u201d alongside IACs and NIACs, to account for the reality of global terrorist networks. The underlying objective of this novel categorization is not to require a new set of rules applicable to such conflicts, but rather to trigger LOAC across the board<\/a> in \u201cextraterritorial armed conflicts between states and non-state belligerents\u201d that do not clearly exhibit the Tadi\u0107<\/em> indicators. This idea would undoubtedly do much to solve the \u2018square peg in a round hole\u2019 problem of contorting NIACs beyond recognition. In so doing, it could theoretically provide a basis for the application of LOAC in situations that are ill-suited to pure law enforcement, but difficult to categorize as an armed conflict under current nomenclature. For the time being, however, it is not a recognized category under international law.<\/p>\n

Reclaiming LOAC<\/span><\/p>\n

Thus, we find ourselves in the current predicament, with the \u201cpro-LOAC\u201d and \u201cpro-HRL\u201d forces locked in a counterproductive and seemingly irreconcilable contest for ideological supremacy, attempting to carve out maximal space for their preferred legal paradigm. As international law experts argue among themselves about the existence of a NIAC and the application of LOAC, what has been lost in the shuffle is the real meaning of jus in bello<\/em> principles to those who live by them.<\/p>\n

Whereas policymakers and theorists view LOAC as a gateway to mete out violence \u201cthat would be utterly unthinkable in peacetime<\/a>,\u201d the military teaches and internalizes it as a code of honor in combat. In this sense, all the discussion of applicable \u201cregimes\u201d and \u201cparadigms\u201d reveals a larger misconception: LOAC does not enable hostilities, but acts as the prism through which they are lawfully conducted. The laws of war provide \u201crules of conduct by warriors for warriors<\/a>,\u201d informing a moral code that enables warfighters to differentiate \u201clegal acts of killing and destruction from criminal acts of killing and destruction<\/a>.\u201d To the extent that politicians and their critics treat LOAC as something malleable that can be used to either expand or restrict the scale of counterterrorism operations, they undermine a system that\u2014until the relatively recent advent of HRL<\/a>\u2014embodied the epitome of protection for civilians and restriction of bloodletting under international law.<\/p>\n

The armed forces value \u201cclear, bright line rules<\/a>\u201d precisely because the business they are engaged in is so fraught with moral and physical peril. This is why judge advocates (JAGs) subscribe to a mentality of staying well within legal bounds and not even getting close to the proverbial line, as was reflected in the fierce detention debates<\/a> with their civilian counterparts during the Bush administration. The military paradigm is an eighteen year-old private far from home and under unthinkable pressure, not a seasoned interrogator who can take liberties with the rules and still know where to stop.<\/p>\n

The Department of Defense (DOD) states clearly and unequivocally that it complies with LOAC in all \u201cmilitary operations<\/a>,\u201d regardless of classification. This was never intended to lower the standards of conduct for DOD personnel, but rather to moor U.S. policy to time-tested law and provide a baseline upon which the rules of engagement can be built and further refined. Indeed, the DOD used to employ a term, since discontinued<\/a>, that captures the essence of the ongoing conundrum: \u201cmilitary operations other than war\u201d (MOOTW). While there was a definite recognition<\/a> that MOOTWs oftentimes did not rise to the level of armed conflict, the DOD nonetheless made a policy determination<\/a> to comply with LOAC universally. Given the sensitive political nature of many MOOTWs, especially those conducted with international partners, the rules of engagement could be considerably more restrictive. But that was a function of strategy, not legal obligation.<\/p>\n

Of course, there is no doubt that LOAC is an \u201cexceptional\u201d body of law meant to govern a specific activity\u2014the conduct of hostilities\u2014as opposed to the \u201claw of ordinary life<\/a>.\u201d But the strategic standoff between the \u201cpro-LOAC\u201d and \u201cpro-HRL\u201d forces over the freedom of action available in counterterrorism operations is fundamentally at odds with the more holistic view of LOAC adopted by the armed forces. Soldiers, including the uniformed lawyers who advise them, are less concerned with \u201cthresholds\u201d for application and which specific treaty provisions apply in different scenarios, than with a set of guiding principles (necessity, distinction, proportionality<\/a>) that differentiate righteous warriors from common killers. That is, the U.S. armed forces subscribe to the conviction that a military properly \u201ctrained to comply with the law of war will do so, however a particular operation may be characterized.\u201d<\/a><\/p>\n

This, I believe, is why the tenuous alignment between JAGs and human rights lawyers is now beginning to fray. Both made common cause in their objections to the Bush administration\u2019s detention policies. For JAGs, though, the problem was not that the administration invoked LOAC, but that it did so selectively, in order to strengthen its hand without acknowledging the corresponding obligations. This is what Hamdan<\/em><\/a> stands for: not necessarily that the fight against al Qaeda is a NIAC, but that with belligerent rights come belligerent responsibilities. The human rights community, as it turns out, was not primarily concerned with the perceived violations of LOAC, but with the application of LOAC altogether.<\/p>\n

The real nub of the current critique of U.S. policy, therefore, is that the Bush administration\u2019s war on terror and the Obama administration\u2019s war on al Qaeda and affiliates constitute a distinction without a difference. The latter may be less rhetorically inflammatory, but it is equally amorphous in application, enabling the United States to pursue non-state actors under an armed conflict paradigm. This criticism may have merit, but it is really about the use of force altogether, not the parameters that define how force is applied. It is, in other words, an ad bellum<\/em> argument cloaked in the language of in bello<\/em>.<\/p>\n

LOAC is apolitical. Adherence to it does not legitimize an unlawful resort to force, just as its violation\u2014unless systematic\u2014does not automatically render one\u2019s cause unjust. The answer for those who object to U.S. targeted killing and indefinite detention is not to apply a peace paradigm that would invalidate LOAC and undercut the belligerent immunity of soldiers, but to direct their arguments to the political leadership regarding the decision to use force in the first place. Attacking LOAC for its perceived leniency and demanding the \u201cpristine purity<\/a>\u201d of HRL in military operations is actually quite dangerous and counterproductive from a humanitarian perspective, because there remains the distinct possibility that the alternative to LOAC is not HRL but \u201clawlessness<\/a>.\u201d While there are certainly examples of armies that have acquitted themselves quite well in law enforcement roles\u2014and while most nations do not subscribe to the strict U.S. delineation<\/a> between military and police forces\u2014the vast bulk of history indicates that in the context of armed hostilities, LOAC is by far the best case scenario, not the worst.<\/p>\n

Transnational terrorist networks pose unique security problems, among them the need to apply preexisting legal rubrics to an enemy who is dedicated to undermining and abusing them. Vital to meeting this challenge\u2014of \u201cbuilding a durable framework for the struggle against al Qaeda that [draws] upon our deeply held values and traditions<\/a>\u201d\u2014is to refrain from treating the deeply-ingrained tenets of honorable warfare as a mere mechanism for projecting force. The laws of war are much more than \u201clawyerly license<\/a>\u201d to kill and detain, subject to varying levels of application depending upon political outlook. They remain a bulwark against indiscriminate carnage, steeped in history and tried in battle.<\/p>\n

 <\/p>\n

*Charles G. Kels is an attorney for the Department of Homeland Security and a major in the Air Force Reserve. Opinions expressed in this Article are those of the author alone and do not necessarily reflect those of the Departments of Homeland Security, Air Force, or Defense.<\/strong><\/p>\n

Photo courtesy of\u00a0Judge Advocate General’s Legal Center and School.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Major Charles G. Kels argues that the current standoff over legal regimes applicable to counterterrorism operations misconstrues the law of armed conflict and risks undermining its moral force. 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