An everyday exception

It might not be evident at first sight, but we are, in fact, living in the most peaceful era of human history. The battles of decolonization and the two world wars having come to an end already decades ago, the world has entered an unprecedented age of geopolitical stability.

Recent terrorist strikes and counter attacks cause indeed significant human suffering, the number of fatalities caused is nevertheless incomparable to previous carnages. This positive development is in part the result of the encroachment of law into international relations, which is supposed to favor peace and concord through the proliferation and respect of treaties between nations. Legal conferences set up by organizations with universal affiliations, permanent international courts and  arbitration  forums  formalize and tighten  relationships  between  countries.  The underlying rules’ interdependency favors cooperation and dialogue over escalation.

While these tremendous efforts have been put forward to keep statespersons from mobilizing troops, experts have also proposed to expand the general trend of peacetime regulation to times of armed conflict by introducing a unique legal framework to be respected in the now less likely event of a military altercation. This is how in the beginning of the twentieth century, the development and codification of the Hague Regulations and the Geneva Conventions, substantial parts of what is nowadays known as the Laws of War, brought humanity right to the battlefield. The new legal principles, which were followed by several additional protocols, aim to apply to all forms of warfare and to all types of weapons, those of the past, the present and also those of the future. Furthermore, they do not only deal with standards of certain categories of bullets and projectiles as well as with chemical weapons, but also with the lot of the wounded in the field and at sea, the status of prisoners of war and the protection of civilians and victims.

On the one hand, perfidious combat methods and the use of outstandingly cruel weapons were banned, and civilians were put under particular protection. These changes were largely welcomed because ordnance at the time lacked precision, and fights were marked by paramount brutality on whose constraint everyone agreed upon in their own interest. Moreover, armed conflicts at the time took place mainly between countries – and not within – and were therefore well regulable: once the desired gain of territory was recorded, the war came to an end. On the other hand, the warring parties maintained their license to kill so to speak, an instrument which was explained by the very nature of armed conflicts and had already been part of customs between combatants, the goal of an armed conflict was and is to beat the adversary after all. This explicit permission to kill under certain circumstances is admittedly still today unheard-of in other legal fields, but its formal codification allowed the ratification of the Laws of War by all countries on this planet and their recognition by numerous non-State actors.

It needs to be borne in mind that the precious legal architecture thus established is one of the few fields of law where the long lasting efforts of diplomatic conferences and negotiations led to an international consensus, also between powers that had no friendly relations so far, that had been at war with each other in the past or that were going to be so in the future. It might not only have been the conviction to make a small step towards “doing the right thing” from a humanistic perspective which pushed delegations from States with at the time obviously opposing interests such as Americans, Hungarians, Russians and Japanese to adopt such universal principles. Establishing rules on how to treat the adverse party’s civilians and combatants was also perceived as a reasonable price to pay for the protection which the own population could inevitably expect to benefit from during the following armed conflicts. From the start, the initiators’ idea was never to limit the military clout of the warrying parties, but rather to prevent unnecessary suffering in an already hostile environment.

Despite juridification and humanization of combat methods, war has nonetheless remained an affair of death and cruelty. An armed conflict has continued to be been viewed as a case of extremes, and the application of the Laws of War has been strictly limited to actual times of war. Through the simultaneous consolidation of other fields of law, such as the broadening of procedural law, the extension of civil rights and the individualization of protection norms, the gap between our peacetime guaranties and the ruthlessness of wartime has steadily been deepened. Also for this reason, suspension of our protected civil lives has been only tolerated as a strict exception, which was geographically, temporally and personally limited: this means that while regular soldiers in uniform performed the necessary evil on the battlefield, the rest of the population fled or held its breath and remained passive observers, while ever vulnerable to collateral damages such as death or injury. Subsequently, life continued in peace for both sides with one side inevitably submitting to a new form of sovereignty.

The post- 9/11 “War on Terror” catalyzed by the Bush-Administration and its Western allies twisted this centuries-old exegesis of war-regulating treaties. At stake is not any more the scaling up of territorial claims, but rather the repression of insurgents, economic supremacy and exertion of cultural and geopolitical influence. While international terrorism apparently seeks to threaten us arbitrarily and infinitely, the net reaction seems to be the authorization of occidental armed forces to respond on a permanent basis. Thus, not the times of war but the times of peace would have become the exception, if any. A clear transition from peace to war and the other way around would not exist anymore.

The Western governments’ legal advisors know that the exceptional Laws of War have not been developed for their worldwide and permanent application and that their use cannot fulfill our expectations in a satisfying manner. However, since more, longer and wider-spread military action is considered to be a facile panacea, we are submerged by fear-spreading slogans which make us feel surrounded by threats and which make us overlook how our and others’ civil rights are jettisoned. This, in times where we are less likely to die of unnatural causes than ever before; in times where our well-equipped police forces and sharp witted intelligence services do their best job in history. The only goal seems to be securing discretionary Western use of weapons, even at the costs of international agreements that have been toughly negotiated throughout decades on the basis of reciprocity. While the West refers on the one side to its impressive human rights achievements and does not miss an opportunity to impose sanctions on States which lag behind in this regard, it forgets its humanistic progress when dealing with its enemies– enemies that admittedly might hold little regard or concern for humanism themselves.

In this context, targeted killings of terror suspects are presented as a modern and precise method of war that is to be taken advantage of wherever and whenever deemed useful. Yet, this contradicts the temporary and geographic limits of the Laws of War which we created ourselves and which our soldiers rely on, and it also sets us back to times where it used to be some monarch who disposed of his subjects’ and adversaries’ lives and deaths at his sole discretion and without any rule of law whatsoever. Our war against terror does not only make quick work of its enemies, it terrorizes entire areas, even in countries with which the Occident is not officially at war, such as Somalia or Yemen. Drone strikes, which are often used to carry out targeted killings and which do not expose the own military forces to noteworthy dangers, have dramatically increased during the past years. The civilian population in the Middle East and Southwestern Asia, which is unable to flee from our attacks, perceives them as arbitrary. Reports about the increasing number of civilian victims and misrouted operations neither escape the enemy fighters nor the local populations, whereby the latter was otherwise mostly receptive to Western concerns.

For instance, the local Muslim population’s support for the Islamic State corresponds to a vanishingly low  single-digit  percentage  making  the  analysts  of  a  Pew  poll  come  to  the conclusion that “Muslim publics share concerns about extremist groups.” Another survey shows that the rise of the Islamic State is even the number one concern in young Muslims’ lives. Instead of taking advantage of these unexpectedly shared values, we do not fight our enemies hand in hand with the locally affected population. Pew suggests that only about 3-5% of the Arab population approve US drone strikes compared to more than 60% of the Americans. A report published by Stanford and New York Universities says that Pakistani civilians feel “terrorized” by US drone attacks. Terrorized by the land of the free? And yet, the American citizens seem to be in denial: Less than 3 out of 10 consider themselves very concerned that US strikes could lead to retaliation from extremist groups or that they could damage America’s reputation around the world. Just after 9/11, only 7% of the Muslim population told Gallup that they considered the Twin Tower attacks to be justified, an image which changed drastically after the US “War on Terror” was initiated: already in spring 2003, Pew reported that 71% of Pakistanis and 83% of Jordanians viewed the United States “very unfavorably”.

At the same time, even the Taliban established a code of conduct for its fighters stipulating that “[t]he utmost effort should be made to avoid civilian casualties”, whereas one of their former commanders publicly condemned attacks against Afghan civilians and government officials. No other than Osama bin Laden used to underline the need to protect civilians when fighting the adversary armed forces, an opinion that was confirmed by his secret letters which were seized by the US during the Abbottabad raid.

“It is a hard fact that US strikes have resulted in civilian casualties,” former US President Barack Obama admitted, “These deaths will haunt us”, he said – before continuing to order more drone strikes than any of his predecessors. His successor Donald Trump so far even outpaced him with respect to the number of drone strikes he ordered, the first targeted killing attack under his command was carried out in Yemen at the very day of his inauguration. Ultimately, with so much occidental schizophrenia, the last bit of sympathy for us is dissipating. Who would like fight alongside with the Western world or even make peace with it if its rules are applied whenever deemed convenient for our purposes only? With rulers who pretend to wipe out terrorism by pushing a button and without taking into account the fears of about one billion Muslims living in the affected areas?

One hundred fifty years ago, the Battle of Solferino in Italy brought infinite suffering to the involved soldiers, suffering which triggered the creation of the Laws of War. It was one step towards more humanity as well as a sign of progress towards the rule of law and domestication of the military. Powerful countries with technologically advanced military forces that insist on the alleged permanent permission of the use of violence that such rules contain do not leave the impression that they are partners in good faith, in particular when it comes to conflicts where insurgents and civilians are difficult to distinguish from one another. Our weapons must be internationally connected intelligence services as well as first class equipped police forces – trumps which no terror network in this world has at its disposal. Our enemies must be extradited to our courts. After all, it was possible to condemn the mass murderers of the Nazis during a fair trial in Nuremberg. The merciless laws of armed conflict were developed for exceptional and timely limited periods during which the basic rights in times of peace, such as the right to life and physical integrity, almost disappear. The gap between our precious values and our military’s cold and indiscriminate calculation toward terrorists and innocent civilians does not honor our free and democratic society. It damages the credibility of the Occident and makes our world less safe.

Josef Alkatout, Ph.D. is an international criminal attorney and university lecturer in Geneva, Switzerland.  He  recently  published  “The  legality  of  targeted  killings  in  view  of  direct participation in hostilities”.

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