class: center, middle, inverse, title-slide # Dirty Wars ## The Shock of the Old ### Jack McDonald --- class: inverse # Pre lecture Discussion .question[ Is political coercion possible in contemporary conflicts without implicitly threatening civilians? ] ??? --- class: inverse # Lecture Outline Last week we talked about what gets considered as violence in war (war nexus) This week, we'll look at the relationship between the regulation of warfare and harm to individual persons Key to this is understanding how international law now legitimates some forms of violence, while delegitimising others Many forms of irregular warfare are prima-facie unlawful, yet from an insurgent's perspective, necessary How states and insurgents navigate the dilemmas posed by regulating non-conventional warfare helps us to understand the key problems of identification and status in war ??? This lecture examines the continued use of raids, sieges, starvation, and slaughter in contemporary warfare. In this session we will examine attacks upon infrastructure as a means of warfare and its continuing relevance for contemporary conflict. The lecture will focus upon the conflicts in Iraq and Syria to examine the degree to which modern-day attacks upon civilian infrastructure differ from those of the past. Discussion Questions: Is coercion possible without implicitly threatening civilians? How does focusing upon infrastructure change our view of destruction in war? Readings: Howe, Cymene, Jessica Lockrem, Hannah Appel, Edward Hackett, Dominic Boyer, Randal Hall, Matthew Schneider-Mayerson, et al. “Paradoxical Infrastructures: Ruins, Retrofit, and Risk.” Science, Technology, & Human Values 41, no. 3 (May (2016)): 547–65. Thomas, Claire. “Civilian Starvation: A Just Tactic of War?”, Journal of Military Ethics 4, no. 2 ((2005)): 108-118. Power, Susan. “Siege Warfare in Syria: Prosecuting the Starvation of Civilians,” Amsterdam Law Forum 8, no. 2 ((2016)): 1-22. asd --- # Recap! | Interaction | Description | |:-----------:|:------------| | Cooperation | Strategic or tactical cooperation in war. E.g. Local peace agreements, mutual limitation of conflict boundaries/scope | | Competition | Competitive action between agents in the context of a wider social system. E.g. Economic or diplomatic competition | | Coercion | Threats of force, or limited uses of force, anything that goes beyond "peaceful" competition. E.g. Sanctions, limited strikes | | Conflict | Organised use of military force within singular/dyadic/systemic boundaries. E.g. IHL-abiding armed conflict | | Carnage | Organised use of military force that intentionally breaks the rules. E.g. direct attacks upon civilians, strategic war crimes | ??? --- class: inverse # Part 1: Observations About Regulating Warfare ??? --- # Example: Why Take Prisoners? -- 1. Prisoner? What does that mean? -- 1. Oh look, a ready-made labour force! -- 1. Someone is going to pay me money to get you back -- 1. If I don't keep you safe, your friends will kill my captured friends in equal measure -- 1. If we murder you, then people might not accept us as rulers -- 1. I am worried what God might say on the flipside -- 1. It is against the rules of war to kill POWs -- 1. You are a human being with the right to life ??? --- # The World We Live In .pull-left[ .medium[ 1899/1907 Hague Convention 1949 Geneva Conventions - I. Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field - II. Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea - III. Treatment of Prisoners of War - IV. Protection of Civilian Persons in Time of War 1977 Additional Protocols - I: International Armed Conflicts - II: Non-International Armed Conflicts ] ] .pull-right[ .medium[ IHRL: 1948 UDHR, 1966 conventions, ECHR and regional conventions So: - War is now illegal but sanctions are legal - Starvation is now illegal, but sieges are still legal > We have heard that half a million children have died. I mean, that's more children than died in Hiroshima. And, you know, is the price worth it? > I think this is a very hard choice, but the price — we think the price is worth it. Madeleine Albright ] ] ??? --- # LOAC: "The Game is Rigged" .left-33[ ![FARC Guerrillas](../img/3/farc.jpeg) ![ISIS Killers](../img/3/execute.jpg) ] .right-33[ > the modern conception of war as a contest between moral and legal equals has only been possible to uphold as a consequence of the constant exclusion and othering of all subjects thought _not_ to be morally or legally equal. Jens Bartelson, _War in International Thought_ > A perfect example would be dirty boxing; the reason you can't grab a guy around the collar of his neck and start punching with your free hand in a boxing match is because it's so effective that they had to make it illegal. Chael Sonnen, _Technique Talk_ ] ??? Here's what you want to do, in any (combat) sport: you want to find out what's illegal, and whatever is illegal is what you want to do in MMA. A perfect example would be dirty boxing; the reason you can't grab a guy around the collar of his neck and start punching with your free hand in a boxing match is because it's so effective that they had to make it illegal. --- # Effective Indiscriminate Warfare .pull-left[ .pic80[ ![Syria Siege Map, 2015](../img/2020/syria2015.jpg) ![Syria Siege Map, 2016](../img/2020/syria2016.jpg) ] ] .pull-right[ .pic80[ ![Syria Siege Map, 2017](../img/2020/syria2017.jpg) ![Syria Siege Map, 2018](../img/2020/syria2018.jpg) ] ] ??? --- # Indiscriminate Warfare: Coercion, Control, and Bargaining .pull-left[ Killing the "old" way: - Raids and indiscriminate violence - Sieges - Slaughter - Starvation - Infrastructure Destruction Direct attacks upon civilian populations, and breaking IHL, can have both strategic and tactical utility In civil wars, control via force gives rise to bargaining opportunities through mutual vulnerability ] -- .pull-right[ .medium[ **Dilemmas of Modern Siege** - The way to defeat a defended urban area without direct assault is to prevent the defenders from acquiring food and water - Diversion of humanitarian aid - Possibility of civilian exit - It is very difficult, if not impossible, to attack an urban area to regain control without killing lots of civilians - Human shields and civilian casualties - Precaution and incentives to move to urban areas - The easiest way to coerce a population is via infrastructure destruction - Elecricity supply, bakeries, medical facilities, markets ] ] ??? --- class: inverse # Small Group Discussion .pull-left[ .medium[ > In his widely known _Just and Unjust Wars_, he describes a supreme emergency as being defined by two conditions: the _nature_ of the looming danger and its _imminence_. Both conditions must be fulfilled for a supreme emergency to be present: the danger must be imminent, and, in addition, ‘of an unusual and horrifying kind’ (Walzer 2000, p. 253). In a less often-quoted essay entitled ‘Emergency Ethics’, he states that ‘[a] supreme emergency exists when our deepest values and our collective survival are in imminent danger’ (Walzer 2004, p. 33). Per Sandin, _Supreme Emergencies Without the Bad Guys_ ] ] .pull-right[ Walzer used "supreme emergency" to justify area bombing of cities in WW2 .large[ Is it possible to have a definition of "supreme emergency" that doesn't permit things like intentional starvation or indiscriminate warfare on civilian populations? ] ] ??? --- class: inverse # Part 2: Applying LOAC ??? --- # Four Problems & Five Ws .left-60[ - The applicability problem - Which set of rules apply to a given conflict? - The interpretation problem - How should rules produce (or remove) actionable constraints on conflict? - The identification problem - To what extent can institutions and individuals ensure the correct identification of permissible targets? - The decision problem - Who, or what, makes the key decisions? ] .right-60[ ![From Dr Strangelove](../img/3/problems.png) ] ??? --- # IHL and IHRL .pull-left[ .medium[ **Incompatibilities** - Ontological incompatibility - "Combatants" don't exist in IHRL - Epistemic incompatibility - Differing standards of knowledge, processes of forming knowledge - Temporal incompatibility - IHL/LOAC applies in armed conflicts, only - Normative incompatibility - IHL indifferent to _jus ad bellum_, IHRL can't be - Conflicts: Right to life, detention, fair trial... ] ] .pull-right[ .medium[ **Interactions** - _Lex specialis_ (ICJ approach) - Where two bodies of law apply, the more specialised body of law takes precedence - Co-application (Human Rights Committee approach) - Both bodies of law apply at the same time - "Belt and suspenders": Body of law that provides the most protection takes precedence - Problem of resolving conflicts of law ] ] ??? /// --- # Status-Based Killing and Civilian Protection Loss .pull-left[ **Combatants** All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel. **Civilians** - IAC: Not in the armed forces, or participant in a _levée en masse_ - NIAC: Problem - state armed forces, civilians, and members of organised armed groups are not necessarily mutually exclusive in law ] .pull-right[ > Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. .small[API 1977, Article 51(3)] - Threshold of harm, direct causation, and belligerent nexus - "Continuous combatant function" - "Revolving door" protection - Distinction between direct participation and contribution to the war effort ] ??? --- class: inverse # Small Group Discussion .left-column[ Do any of these people: - Automatically lose civilian protection - Never lose civilian protection What are the hardest cases for you to judge, and why? ] .right-column[ .medium[ - Civilians responsible for supplying precursor chemicals and components required to construct IEDs - Civilians in and around a location where IEDs are known to be constructed - A civilian that makes IEDs - When they are making them - When they are "off the clock" - A civilian that transports persons known to be members of an IED network - A civilian that allows their property to be used to store IEDs - A civilian that plants IEDS - When they are actively planting one - When they are "off the clock" - A civilian holding a mobile phone - where an imminent IED attack is suspected - who does not immediately respond to a command to drop the phone ] ] ??? --- class: inverse # Part 3: Permissible Killing ??? --- # Targeting/ROE .left-33[ ![ROE diagram taken from Corn & Corn](../img/2020/roe.png) ![UK Legal diagram](../img/2020/modla.png) ] .right-33[ .medium[ > Despite these and numerous other historical examples of soldiers applying ROE, the actual term "rules of engagement" was not used in the United States until 1958 by the military's Joint Chiefs of Staff (JCS). Geoffrey S. Corn and Lieutenant Colonel Gary P. Corn, _The Law of Operational Targeting_ > - Rules of engagement (when and where, and in what circumstances). > - Targeting directive (who and with what). > - Target engagement authorities, national asset approval authority, casualty threshold authorities. Ministry of Defence, _JDP 3-46: Legal Support to Joint Operations_ ] ] ??? --- # Necessity, Objectives, and Advantage > In splintered gardens that once grew green, on rubble where a graceful tower had stood, U.S. Marines advance under fire. Here was a paradox of war: the only way Hué could be won was by destroying it. Life Magazine, _The Battle that Regained and Ruined Hué_ > The LOAC vision of the law begins with armed conflict. It assigns military necessity and the imperatives of war-making primary, axiomatic status. > > ...IHL offers a civilian’s-eye view of war, and gives ground grudgingly to claims of military necessity. Where legal restrictions operate in the margins of military necessity under the LOAC vision, IHL strains to relegate war to the margins of peacetime rights. David Luban, _Military Necessity and the Cultures of Military Law_ ??? --- # Distinction, Classification, and DPH .left-66[ > We know that in modern warfare we are not clashing with just a few armed bands, but rather with an organization installed within the population—an organization that constitutes the combat machine of the enemy, of which the bands are but one element. > > To win, we have to destroy this entire organization. Roger Trinquier, _Modern Warfare: A French View of Counterinsurgency_ ] .right-66[ ![Modern Warfare Cover](../img/2020/trinquier.jpg) ] ??? --- # Mis-Identification .pull-left[ ![Collateral Murder shot](../img/9/cm.png) ] .pull-right[ Two pathways to lawful killing: - Positive identification - Self-defence How do you judge hostile intent in a warzone? Communication: How do you check a person's identity? (Checkpoints, etc) ] ??? --- # Proportionality, Subjectivity, and Collateral Damage .left-column[ ![Baitullah Mehsud](../img/11/mehsud.png) ![Rorschach Test](../img/11/rorschach.jpg) ![Arclight](../img/11/precision.png) ] .right-column[ > Killing civilians is accepted on some level. It is planned, and it is excused when it is thought to be militarily necessary and not excessive. Further, the operation must be proportionate; the good of the military operation must outweigh the negative consequences of the operation. Neta C. Crawford, _Accountability for Killing_ > After the dust cloud dissipated, all that remained of Mehsud was a detached torso. Eleven others died: his wife, his father-in-law, his mother-in-law, a lieutenant, and seven bodyguards. Jane Mayer, _The Predator Drone War_ ] ??? --- # Direct and Systemic Harm .pull-left[ ![Syria Health Facility damage](../img/2021/syria-health-facilities.jpg) .small[World Bank, _The Toll of War_] ] .pull-right[ Infrastructure damage causes long term harm on a civilian population Rebuilding is difficult due to rubbelisation of urban areas How do you balance immediate priorities versus harms measured in decades? ] ???