International Law and Terrorism

By Kellogg, Davida E. | Military Review, September/October 2005 | Go to article overview

International Law and Terrorism

Kellogg, Davida E., Military Review

WE HAVE BEEN operating under the impression that the International Law of Armed Conflict (LOAC) is inimical to our effective prosecution of the war on terrorism.1 But what has come to be called lawfare is a weapon that rightly belongs in the hands of those who abide by the LOAC. I submit that our problem lies not with the LOAC, but with our failure to make our own superior claim to legitimacy over terror warfare. We have also failed to exploit legitimacy's strategic advantages in order to sever terrorist organizations and their sponsor states from the public support on which their success depends. Instead of dealing with the hyper-legalization of warfare with an uncoordinated series of isolated tactical solutions of opportunity, we need to develop a comprehensive, proactive lawfighting doctrine of our own. As its overarching strategy, such a doctrine would

* Publicly unmask terror warfare as inherently, irremediably in contravention of the letter and the spirit of the Geneva Conventions.

* Recognize that lawfare in the hands of those who abide by the LOAC can be a powerful weapon in the Global War on Terrorism.

Internationally, there are at least a dozen ways for politically sophisticated nations to expose the fraudulent notion that right is on the side of those who deliberately target innocent noncombatants while claiming protected civilian status for their murderers. One possibility that comes to mind is to press for a UN resolution declaring that

* Terrorism is inherently, irremediably illegal as a way of war.

* Terrorism directed at particular nationalities, religious communities, or ethnic groups is outright genocide.

I do not expect such a resolution would pass in the current international political climate. Still, win or lose, by bringing its case before the UN, the United States would automatically gain exposure in the national and international media for it.

Another possibility is to spearhead a movement to put real teeth into the LOAC in the form of provisions explicitly outlining sanctions for grave breaches of the Geneva Conventions. Should we be successful, we must be prepared to see members of our own military tried for isolated violations such as those at Abu Ghraib. If we do a proper job of educating our troops to our moral and legal expectations, such incidents will be rare. But our enemies' entire way of war would be on trial before the court of public opinion because no way exists for terrorists to conduct war that does not contravene the LOAC.

The opinions and pronouncements of nongovernmental organizations (NGOs), terrorist sympathizers and apologists, and uninformed reporters with political agendas are not the law, and by our inaction we should not allow them to become new prerogative norms. Stopping this trend is especially important as we creep toward zero tolerance for civilian casualties. We must steer a middle course between utter disregard for the LOAC and uncritical acceptance of a hyper-legalistic approach that would place terrorists in the same legal and moral category as bona fide noncombatants. By definition, terror warfare cannot be waged except by means of deliberate attack on persons and places specially protected under Protocol I of the Geneva Conventions. It is impossible to conduct terror warfare without intentionally committing criminal breaches of the Geneva Conventions.

Two recent cases regarding Iraq show how enemies and nonsympathizers have attempted to turn the law against us. The first involves Giuliana Sgrena, an Italian journalist who was kidnapped by insurgents and then ransomed. Sgrena made a highly emotional claim in European and American media that U.S. troops at a Baghdad checkpoint had opened fire on the vehicle in which she was being transported to the airport following her release. She said U.S. troops fired on her without giving warning with the intention of killing her in retaliation for her political writing. …

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