Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare
Laurie R. Blank
Emory University School of Law
Amos N. Guiora
University of Utah - S.J. Quinney College of Law
Harvard National Security Journal, Vol. 1, 2010
Emory Public Law Research Paper No. 09-79
Emory Law and Economics Research Paper No. 09-51
Current strategy in Afghanistan starkly illustrates the extraordinary challenges new warfare poses for commanders on the ground. U.S. forces fight the Taliban and al-Qaeda in Afghanistan, but must do so while above all protecting Afghan civilians from both enemy attacks and the effects of U.S. counterinsurgency operations – a difficult and complicated task.
As new warfare became a prevalent – and now predominant – form of conflict, the law did not adapt appropriately to the complicated scenarios new warfare presented. The international community continued to focus on traditional visions of combatants and civilians, notwithstanding the disconnect between that framework and the reality on the ground in new warfare. Most criticisms of the law argued that the law could no longer apply, when, in fact, such critiques simply did not examine how it could apply in a more agile way. Agility means that the law can adapt to changing circumstances and meet the needs of policymakers and commanders on the ground alike; that the law must allow room for new ways of thinking that uphold the law’s goals and principles precisely when they are under fire. To maximize that agility, we operationalize the law with a new framework and guidelines for commanders.
In traditional state vs. state conflict, applying the legal obligations of distinction and proportionality through on-the-ground guidelines was relatively simple; in new warfare, it is immensely complicated. The law of armed conflict does not presently provide commanders with the tools they need to fulfill their mission while simultaneously protecting their soldiers and innocent civilians alike. We re-categorize and re-define persons in the zone of combat to enable commanders to distinguish between innocent civilians and legitimate targets, and separate the latter group into several sub-categories: members of organized armed groups, permanent targets, recurring targets, transitory targets, and legitimate subjects of detention. Using these new categories, we provide commanders with effective tools to distinguish among persons in the zone of combat. Commanders can then determine who (and how) to target, who to detain and who to protect – the only way to meet the twin goals of mission success and protection of innocents.
Number of Pages in PDF File: 41
Keywords: law of armed conflict, international humanitarian law, Geneva Conventions, innocent civilians, legitimate target, direct participation in hostilities, commanders, asymmetric warfare, distinction, proportionality, Afghanistan
Date posted: November 17, 2009 ; Last revised: February 6, 2013