What Constitutes
A Legitimate Target?
By Faisal Bodi
19 November, 2004
Aljazeera
More than 50 years after the Geneva Conventions
were drawn up to define the boundaries of warfare arguments are still
raging as to what constitutes a legitimate target.
And nowhere have
the divisions been more acutely exposed than in the continuing "war
on terror" where near daily atrocities have injected fresh urgency
into the search for a consensus.
"There is agreement
that the person who puts the bomb cartridge in the launcher is a combatant,"
said Professor Louise Doswald-Beck, an authority on the law of armed
conflicts who is participating in ongoing consultations on the subject
headed by the International Committee of the Red Cross.
"But there
is a division of views on the status of the person who delivers the
cartridge to the military. And there is a general feeling that a person
who manufactures the cartridge is not taking direct part in hostilities."
With no agreement,
the middle ground has proved ripe for exploitation.
In 2003, Pakistan
arrested Taliban press spokesman Mulla Abd al-Salam Zaeef and handed
him over to US custody. He is now in the Guantanamo Bay detention facility
as an "enemy combatant" even though it was never suggested
he performed a combat role.
Mulla Zaeef is just
one example. Increasingly many jobs that were once performed by soldiers
are being farmed out to the private sector with the result that more
civilians are now supporting armed forces in roles such as drivers,
engineers and translators.
This is a huge grey area in the Geneva Conventions, which deems combatants
as simply those taking part in "direct hostilities". There
is little agreement on the definition.
Humanitarian groups such as the ICRC are fighting for a tight meaning
against the widening tendencies of state practice.
"Even if civilians
(eg contractors) are increasingly 'helping' the armies, it would depend
what tasks they fulfil to determine whether their task can be considered
a direct participation to the hostilities or not and consequently, whether
they are considered protected as civilians or not," said spokeswoman
Antonella Notari.
"The ICRC is
convinced that it is a slippery slope to engage in if one starts to
widen the definition of direct participation."
States, meanwhile,
have maintained that direct participation not only includes activities
involving the delivery of violence, but also acts aimed at protecting
personnel, infrastructure or material, and includes some supporting
civilian tasks.
Like other recent conflicts, the "war on terror" has strained
legal and moral boundaries set for belligerents after the second world
war by the Geneva Conventions, a function partly of the changed nature
of war.
In the days when
major wars were fought by armies squaring up on battlefields, as in
the first world war, the proportion of civilian to combatant deaths
stood at one to one.
By the second world
war it had reached 1:10, a ratio which has remained at least as high
in the current Iraq war and, according to the most recent independent
study, may be many times higher.
In the second world
war, both the Allies and the Axis powers defended blitzes on each other's
cities on the grounds that weapons manufacturing and ancillary industries
were sited there.
Today, similar justifications
are used for strikes by Israeli and US forces on targets in urban areas.
They accuse Iraqi and Palestinian resistance fighters of using the relative
sanctuary of civilian centres to offset some of their disadvantage in
technology and equipment.
For human rights groups this widening of the target represents a direct
challenge to a key article of the Geneva Conventions.
"The principle
of proportionality says that it is illegal to initiate an attack if
the damage to civilians is excessive in relation to the military advantage
gained," explained Yehezkel Leim of the Israeli human rights organisation
B'tselem.
"In theory,
it is defined clearly but in practice it is difficult to find a clear-cut
way of applying it," added Leim whose organisation has petitioned
Israel's High Court of Justice to rule whether the Israeli army should
open investigations into all cases where Palestinians have been killed
outside combat.
The requirement
is clear enough but the trouble is that its interpretation is usually
a matter for armed forces in the field and ethical determinations can
only occur after the "collateral damage" has been done.
According to cameraman Kevin Sites, who filmed the shooting of an unarmed
and incapacitated Iraqi in a Falluja mosque during the latest US onslaught
on the city, marines were "operating with liberal rules of engagement".
Describing the US
operation, Sites wrote on his blog site:
"'Everything
to the west is weapons free,' radios Staff Sgt. Sam Mortimer of Seattle,
Washington. Weapons Free means the marines can shoot whatever they see
- it's all considered hostile."
The consequences
of this type of non-compliance with international norms can be dramatic.
In the holy land the apparent failure to make a clean distinction between
combatant and civilian has led to a downward ethical spiral.
In response to what
they consider attacks against their civilian infrastructure and civilians,
Palestinian resistance groups justify their gruesome reprisals by arguing
that they too should not be expected to respect ethical differences.
Worryingly, it is practice, not international law, that appears to have
the upper hand, a fact underscored by the emergence of the classification
"enemy combatant" to describe irregular fighters.
Mulla Zaeef is one
of hundreds of people still detained by the US as "enemy combatants",
even though the category is not recognised by international law, according
to Professor Francoise Hampson, another top legal expert based in the
UK.
"The US is
trying to have it both ways. It's saying because they aren't combatants
we don't have to treat them legally as combatants and because they're
not real civilians we don't need to treat them as civilians," she
told Aljazeera.
Under international
law, accepting that people are civilians grants them immunity from attack.
Conversely seeing them as belligerents confers upon them certain rights
including POW status if captured.
By denying either
status, countries including the US - the same stance has long been taken
by Israel in its conflict with the Palestinian resistance groups - are
effectively sidestepping international law and unilaterally drawing
up new conventions.
"Enemy combatant is unknown to international law. It is an invented
term," according to Hampson. "And the thing about inventing
terms is that you can make them mean pretty much what you like."
Their divergent
path is taking the US and Israel further away from the international
community. Efforts to establish a permanent international tribunal at
which individuals can be held accountable for violating the sanctity
of innocents have been undermined by the refusal of both countries to
sign up.
The US and Israel both justify their opposition on the grounds that
opting in will subject their citizens to vexatious litigation but critics
say it is a cynical ploy to prevent their citizens from ever being hauled
up to face the music for infractions.
To further frustrate
the work of the court, Washington is signing bilateral "immunity
agreements" with states to exempt US nationals from the jurisdiction
of the International Criminal Court.
Human Rights Watch
has criticised the strategy saying it will lead to "a two-tiered
rule of law for the most serious international crimes: one that applies
to US nationals; another that applies to the rest of the world's citizens".
Ultimately, according
to critics, including Barbara Olshansky of the New York-based Centre
for Constitutional Rights, the stance may also be endangering US citizens
by giving its enemies an excuse to do likewise.
"What people
in the United States haven't realised is that if we don't comply with
them [the Geneva Conventions], no other country is required to comply
with them, looking at our example," Olshansky said. "That
places our own soldiers at risk whenever they are fighting abroad."