New Battlefields/Old Laws

New Battlefields/Old Laws: Critical Debates on Asymmetric Warfare

EDITED BY WILLIAM C. BANKS
Copyright Date: 2011
Pages: 320
Stable URL: http://www.jstor.org/stable/10.7312/bank15234
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  • Book Info
    New Battlefields/Old Laws
    Book Description:

    An internationally-recognized authority on constitutional law, national security law, and counterterrorism, William C. Banks believes changing patterns of global conflict are forcing a reexamination of the traditional laws of war. The Hague Rules, the customary laws of war, and the post-1949 law of armed conflict no longer account for nonstate groups waging prolonged campaigns of terrorism -- or even more conventional insurgent attacks.

    Recognizing that many of today's conflicts are low-intensity, asymmetrical wars fought between disparate military forces, Banks's collection analyzes nonstate armed groups and irregular forces (such as terrorist and insurgent groups, paramilitaries, child soldiers, civilians participating in hostilities, and private military firms) and their challenge to international humanitarian law. Both he and his contributors believe gaps in the laws of war leave modern battlefields largely unregulated, and they fear state parties suffer without guidelines for responding to terrorists and their asymmetrical tactics, such as the targeting of civilians. These gaps also embolden weaker, nonstate combatants to exploit forbidden strategies and violate the laws of war.

    Attuned to the contested nature of post-9/11 security and policy, this collection juxtaposes diverse perspectives on existing laws and their application in contemporary conflict. It sets forth a legal definition of new wars, describes the status of new actors, charts the evolution of the twenty-first-century battlefield, and balances humanitarian priorities with military necessity. While the contributors contest each other, they ultimately reestablish the legitimacy of a long-standing legal corpus, and they rehumanize an environment in which the most vulnerable targets, civilian populations, are themselves becoming weapons against conventional power.

    eISBN: 978-0-231-52656-2
    Subjects: Political Science, Law
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Table of Contents

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  1. Front Matter (pp. i-iv)
  2. Table of Contents (pp. v-vi)
  3. Figures and Tables (pp. vii-x)
  4. INTRODUCTION Toward an Adaptive International Humanitarian Law: NEW NORMS FOR NEW BATTLEFIELDS (pp. 1-20)
    WILLIAM C. BANKS

    One of the most troubling implications of modern asymmetric warfare is that a state’s compliance with the jus in bello, the international treaties and other laws that define acceptable behavior for states engaged in armed conflict, may amount to an operational weakness in today’s armed conflicts.² Consider two scenarios. Israeli military forces engage Hezbollah on the border of Lebanon only to find militants have employed human shields—a clear violation of the Fourth Geneva Convention—to undermine attempts of the Israel Defense Forces to dislodge gunmen at rocket launch pads in high-density residential neighborhoods.³ Militants see the resulting civilian casualties...

  5. CRITICAL DEBATE I Threshold Issues in Defining Twenty-first-Century Armed Conflicts
    • ONE Extraterritorial Law Enforcement or Transnational Counterterrorist Military Operations: THE STAKES OF TWO LEGAL MODELS (pp. 23-44)
      GEOFFREY S. CORN

      One of the most challenging issues in combating transnational terrorism has been determining the appropriate legal framework that covers counterterrorist military operations. Because the United States characterized its response to the terror attacks of September 11, 2001 as an “armed conflict,”¹ well-accepted standards for identifying when international humanitarian law (referred to also as the law of armed conflict or the law of war) applies have been thrown into disarray. In the years following, a variety of legal theories have competed to define the proper locus of counterterror military operations within the international legal regime. These include the U.S position that...

    • TWO Preventive Detention of Individuals Engaged in Transnational Hostilities: DO WE NEED A FOURTH PROTOCOL ADDITIONAL TO THE 1949 GENEVA CONVENTIONS? (pp. 45-64)
      GREGORY ROSE

      Contemporary battlefield conditions present new challenges for international law, which does not yet address nonstate entities engaged in transnational paramilitary attacks. The term “transnational” here refers to attacks across national borders by individual persons or private organizations, as compared with the term “international,” which refers to interstate relations governed by public international law.¹ This chapter argues that renewed development of international legal norms is necessary to address transnational armed conflict with nonstate entities, and it tentatively explores the generative role of national laws in developing the basis for new international law. The chapter provides a comparative analysis of laws in...

  6. CRITICAL DEBATE II Status and Liabilities of Nonstate Actors Engaged in Hostilities
    • THREE “Jousting at Windmills”: THE LAWS OF ARMED CONFLICT IN AN AGE OF TERROR—STATE ACTORS AND NONSTATE ELEMENTS (pp. 67-84)
      DAVID M. CRANE and DANIEL REISNER

      As the global community enters the twenty-first century, armed conflict and the consequential results threaten to erode peace and security. For almost a century, the international community has attempted to codify law, custom, and policy in a body of laws, treaties, and conventions referred to as international humanitarian law.² The cornerstone of this attempt to govern action on and off the battlefield was achieved in the course of the late nineteenth and twentieth centuries in the Hague and Geneva Conventions.³ The question today remains whether modern international humanitarian law is viable in light of changing threats posed by terrorists locally,...

    • FOUR Direct Participation in Hostilities: A CONCEPT BROAD ENOUGH FOR TODAY’S TARGETING DECISIONS (pp. 85-105)
      ERIC TALBOT JENSEN

      Long before the post-9/11 advent of the war on terror, civilians began to suffer increasing costs, both in lives and property, from the conduct of modern hostilities.¹ In response, the international community has created conventional law designed to protect civilians from the effects of hostilities. These laws provided restraints on how war fighters may use military force when it might be expected to harm civilians. However, scholars and military practitioners have called into question the validity of these rules—particularly as a result of the war on terror—because many of those who engage in hostilities against organized armed forces...

    • FIVE Nonstate Actors in Armed Conflicts: ISSUES OF DISTINCTION AND RECIPROCITY (pp. 106-130)
      DAPHNÉ RICHEMOND-BARAK

      This chapter considers how concepts designed to regulate state-to-state interaction apply to conflicts involving nonstate actors—be they guerilla groups, terrorist organizations, or private military contractors. The “principle of distinction” holds that civilians and combatants are clearly distinguishable protagonists on or near the battlefield. “Reciprocity” in international law refers to the expectation by a belligerent state that other state parties to a conflict will respect similar legal and behavioral norms—nonuse of prohibited weaponry, minimization of collateral damage, and humane treatment of prisoners of war. The focus in this chapter is on reciprocity and distinction because they constitute meta-issues whose...

  7. CRITICAL DEBATE III Changing Twenty-first-Century Battlefields and Armed Forces
    • SIX Children as Direct Participants in Hostilities: NEW CHALLENGES FOR INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL CRIMINAL LAW (pp. 133-149)
      HILLY MOODRICK-EVEN KHEN

      The phenomenon of child terrorists, a subcategory of child soldiers, represents a significant new chapter in the field of contemporary conflict.¹ These nontraditional actors exemplify the challenges that modern battlefields have created for policy makers, lawyers, scholars, and governments. More specifically, they illustrate the complex balance, central to humanitarian law, that must be achieved between military advantage and refraining from harming those not directly participating in hostilities. Children (defined here as minors under the age of fifteen) who are involved in terrorist activities pose a real danger to counterterrorist forces. At the same time, children are used by terrorist groups...

    • SEVEN Private Military Contractors and Changing Norms for the Laws of Armed Conflict (pp. 150-168)
      RENÉE DE NEVERS

      On September 16, 2007, a U.S. State Department security detail consisting of employees of Blackwater U.S.A., a private security company (PSC) working for the Department of State as part of its Worldwide Personal Protective Services (WPPS) contract, was traveling through Nisoor Square in Baghdad when Blackwater guards engaged in a firefight. Seventeen people were killed and more were injured. Although Blackwater spokesmen claimed that its guards responded to an attack by insurgents following a car bomb explosion nearby, Iraqi witnesses insisted, and U.S. and Iraqi investigations confirmed, that Blackwater guards fired without provocation on a slow-moving civilian car that failed...

  8. CRITICAL DEBATE IV Military Necessity and Humanitarian Priorities in International Humanitarian Law:: Productive Tension or Irreconcilable Differences?
    • EIGHT The Principle of Proportionality Under International Humanitarian Law and Operation Cast Lead (pp. 171-189)
      ROBERT P. BARNIDGE JR.

      International law straddles an ever-changing world of theory and practice, and it always has. It has before it the heady task of remaining relevant in the face of both widespread compliance and widespread violation, and in doing so, it must adapt to present predicaments while retaining an integrity that can command compliance. It is one of international law’s great paradoxes, furthermore, that even as it insists that it is “above” politics, it is quintessentially “of” politics. It is, after all, the by-product of the complex machinations of states and other actors jockeying for advantage in a crowded landscape of disparate...

    • NINE Humanizing Irregular Warfare: FRAMING COMPLIANCE FOR NONSTATE ARMED GROUPS AT THE INTERSECTION OF SECURITY AND LEGAL ANALYSES (pp. 190-212)
      CORRI ZOLI

      This chapter combines legal and security analyses to bring the traditional law of war balance between humanitarian and security values back into new paradigms of warfare. The chapter begins by showing how new challenges of regulating nonstate armed groups in armed conflict has eroded the original balance at the core of humanitarian law between states’ national security interests and humanitarian priorities to reduce unnecessary suffering for all victims of conflict.² The chapter then explores how nonstate armed groups, by adopting an asymmetric strategy calculus that treats compliance with the law as a tactical vulnerability, have succeeded in leveraging compliance in...

  9. Notes (pp. 213-286)
  10. Contributor Bios (pp. 287-290)
  11. Index (pp. 291-308)

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