Introduction
There is broad agreement in military, political and academic circles that after 9/11 and the launch of the “global war on terror”, the way we think about war has changed, as perhaps has the way many wars are fought. The label “asymmetric war” has often been used to capture a variety of armed conflicts.Footnote 1 Asymmetric wars are clearly not a new reality; small, low-intensity civil wars, and non-State armed groups battling much more powerful enemies, have a long history. Yet, after 9/11 the label of “asymmetric war” has come to represent an influential perspective and has impacted on how we think about wars, potentially even testing international humanitarian law (IHL).
Traditionally, the concept of “asymmetric war” refers to the attempt of a much weaker party to offset an overwhelmingly more powerful enemy by using non-conventional tactics. The use of certain tactics that have been commonly linked to the concept of “asymmetric war”, such as deliberately targeting non-combatants or hiding behind them, has been said to violate the moral and legal principles of distinction between civilians and combatants and to put the weaker party at a moral disadvantage.Footnote 2 These tactics, however, are chosen because they make it difficult for the stronger party to fight effectively while adhering strictly to the rules of IHL. They strategically create a certain balance in conflicts that would otherwise be grossly unequal, allowing for no clear sign of success on either side.Footnote 3
These features of “asymmetric war”, thus understood, have been particularly discussed in relation to post-9/11 US-led interventions in the context of the “global war on terror,” as well as the Israeli–Palestinian conflict. They have had important consequences. Over the past two decades, a significant part of the law and policy debate in both Israel and the United States has focused on the need for better protection from weaker but “existentially threatening” enemies, who are seemingly unfettered by legal and moral constraints. This debate has been marked by questions regarding the relevance of IHL in contemporary warfare – in some cases, by a push towards redefining the combatant/civilian distinction, and in others, by an attempt to reverse accepted norms such as the prohibitions against torture and assassination.
In this piece, we argue that although these developments are to be taken seriously, they have not weakened the normative power of IHL, or made it passé. On the contrary, they have made it more relevant than ever. In the past two decades, the acceptance of IHL, as well as the acceptance of human rights, has been making significant progress both internationally and domestically.Footnote 4 When States attempt to adapt or circumvent international law (as in the case of the “unlawful enemy combatant” theory), or justify violations thereof (as in the case of torture), they act as “norm entrepreneurs”.Footnote 5 It is in this analytical context that we focus on the United States and Israel, as they offer the opportunity to illustrate the dynamics of norm entrepreneurship in the current historical period. Not only do they discount legal and normative stances, but they also propose opposing or modified norms. Yet, in both the case of torture and the unlawful enemy combatant theory, a new “norm internalization” failed to take place. Instead, what took place was an enormous effort to conceal violations and to reframe or justify them when they were exposed, coupled with expressions of remorse. This has in fact served to reaffirm the status of IHL and other international norms. The following sections examine the examples of torture and targeted killings in turn to demonstrate this point.
Torture
In the aftermath of 9/11, the Bush administration attempted to legitimize the practice of torture during interrogation, as well as detention without trial, by using the counter-norm of anti-terrorism.Footnote 6 A shocked and grieving American public accepted the state of emergency, which was presented as a necessary counterterrorism measure. Even some prominent human rights advocates contemplated chipping away at the norm and law against torture, for torture was a “lesser evil”. This was presented as a pragmatic balancing act: “A clear prohibition [against torture] in the name of human dignity comes up against a utilitarian case also grounded in the dignity claim, namely the protection of innocent lives.”Footnote 7
The initial consensus on counterterrorism, shared by US allies, at first lowered the risk of internal and international contestation. The Bush administration showed a remarkable lack of vulnerability to potential moral and political pressure against its violation of both IHL and domestic law. It created its own legal category of “unlawful enemy combatants”, applicable to Al Qaeda members and the Taliban, giving the illusion that they were completely outside the law.Footnote 8 It also crafted its own vocabulary. In the discourse of US defence and political circles, practices such as slamming a detainee's head against the wall or choking him with water until he was nearly drowning – all clear violations of both the Convention against TortureFootnote 9 and the US criminal codeFootnote 10 – were dubbed “enhanced interrogation techniques”Footnote 11 and thus reinterpreted as permissible.
On torture, the Bush administration did not just turn a deaf ear to criticism; it built a legal defence of it. As Kathryn Sikkink argues, this “actively undermined the prescriptive status of the norm, … a fact that profoundly influenced US behavior as well as behavior in other countries”.Footnote 12 A series of legal memos, many of them written by Deputy Assistant Attorney General John Yoo, created the “golden shield” requested by the CIA to protect the administration from potential prosecution for war crimes. These memos rejected the application of the Geneva Conventions to detainees from the war in Afghanistan by re-labelling them as enemy combatants,Footnote 13 provided a new definition of torture to help US interrogators avoid prosecution,Footnote 14 and explicitly justified the very aggressive techniques approved by Secretary of Defence Donald Rumsfeld.Footnote 15
Yet, a powerful criticism was mounted by scholars,Footnote 16 international organizationsFootnote 17 and domestic human rights groups,Footnote 18 the media,Footnote 19 local legislatures,Footnote 20 members of the Supreme Court, and individuals within the very institutions that formulated and often secretly implemented the Bush administration's illegal policies. Some of these individuals and groups managed to bring these policies to light and if not end them, at least curb their excesses.Footnote 21 The Supreme Court ruled that the Geneva Conventions applied to Al Qaeda, and that habeas corpus applied to Guantanamo's detainees.Footnote 22 The 2014 report on the CIA's interrogation and detention programme, authored by the US Senate Select Committee on Intelligence,Footnote 23 further exposed the extent of the use of torture, causing domestic and international outrage. The report discovered that the torture programme was “amateurish”;Footnote 24 that the CIA probably knew it was practicing torture,Footnote 25 despite denial; and that it misrepresented the extent to which torture practices had been effectiveFootnote 26 in providing useful information, with the consequence that even the justification based on the “lesser evil” argument began to crumble.Footnote 27 That torture still remains an issue of contention is confirmed by the strong challenge to the conclusion of the Senate study expressed both in the Republican minority opinion and the comment drafted by the CIA.Footnote 28
Torture and rendition have been publicly discussed and criticized, and effectively abandoned since 2008.Footnote 29 From fairly different perspectives and reaching different conclusions, Jack Goldsmith and Kathryn Sikkink largely agree that the reverse in the original practice started under the Bush administration was at least in part due to pressure from elements within the administration (both Bush's and, later, Obama's). These elements had internalized the norm against torture and considered it an unacceptable practice.Footnote 30 At the time of writing, the official position of the Obama administration with regard to torture is very clear:
[A]ll U.S. personnel are legally prohibited under international and domestic law from engaging in torture or cruel, inhuman, or degrading treatment or punishment at all times, and in all places. There are no gaps, either in the legal prohibitions against these acts by U.S. personnel, or in the United States' commitment to the values enshrined in the Convention, and the United States pledges to continue working with our partners in the international community toward the achievement of the Convention's ultimate objective: a world without torture.Footnote 31
Yet, the Obama administration has thus far decided not to prosecute anyone who either approved or practiced torture back in 2008, and has given no signs of changing this attitude in light of the 2014 Senate Study on the CIA's detention and interrogation programmes. President Obama is facing direct criticism for this choice, which fails to satisfy the obligations that the United States has under Article 7 of the Convention against Torture. The United Nations (UN) High Commissioner for Human Rights, as well as the Special Rapporteur on counterterrorism and human rights, have demanded accountability for such egregious violations.Footnote 32
These democratic dynamics of domestic questioning by a divided public and international pressure by human rights advocates and other principled actors have provided strong counter-forces to the United States in its effort to claim a “state of exception”, or in its desire to position its actions “at the limit between politics and the law”.Footnote 33
Targeted killings
Since 2000, in the aftermath of the Second Intifada, Israel has fully acknowledged the routine use of targeted killings of suspected terroristsFootnote 34 – a practice that has been facilitated by the availability of unmanned aerial vehicles (better known as drones), weapons that allow great accuracy and no risk for their operators. The United States has been using the same means in the post-9/11 period to hunt Al Qaeda and other suspected terrorists, although these missions are conducted by the CIA in a covert manner and have become public mostly through leaks to the media.Footnote 35 Initiated by President Bush, targeted killings have escalated during the Obama administration, according to a close observer of counterterrorism policies, perhaps in an effort to compensate for the abandonment of practices such as torture and rendition.Footnote 36
Despite public approvalFootnote 37 in both Israel and the United States for the use of drones, the practice of targeted killing is the object of considerable criticism, including questions about its precision and challenges to its legality, which we discuss below. It is important to notice here that despite its association to the norm-breaking practice of assassination,Footnote 38 targeted killing is, instead, often presented as a positive evolution from (indiscriminate) bombing; as if the technological precision in striking a legitimate target also included the normative and legal distinction that helps to protect non-combatants.Footnote 39
Since World War II, be it because of concerns with reputation or legitimacy, or the aversion to the huge devastation caused by bombing both at home and internationally, the United States has focused on decreasing the number of civilian casualties during bombing (collateral damage) by paying more attention to proportionality and improving military technology.Footnote 40 The high point of this goal was the 1999 US-led NATO military intervention in Kosovo and Serbia. On that occasion, legal advisers played an unprecedented role in reviewing military targets and ensuring the protection of civilians, even though no particular innovation in the law had required this level of reviewing.Footnote 41 It was the real-time media scrutiny of the war, or what was then known as the “CNN Factor”, that made “distant suffering”Footnote 42 observable and awakened a universal moral repugnance to killing of civilians not only by ethnic cleansers, but also by their NATO rescuers.Footnote 43
Military lawyers, known as JAGs (members of the Judge Advocate General's Corps), are an increasingly strong presence in all branches of the US Army. They advise on the fundamental IHL principles – proportionality, distinction and precautions in attack – in a time of great technological precision.Footnote 44 Yet, despite the strong focus on accuracy and legality that experts provide, progress in the technology of bombing creates new moral and political hazards. For example, conducting a safer, remote war in which the vaunted “surgical precision” is partly illusory might make assassinations more frequent and less concerned with the principles of distinction and proportionality. The key questions that absorb legal and ethical debates on targeted killing are how accurate the killing really is and who is targeted.
The first question, or the possibility that despite precision, civilian casualties might be much greater than expected and/or publicly known, is a concern of human rights groups as well as the military, who object on consequentialist grounds.Footnote 45 As the Obama administration has admitted to small or no collateral damage, but without divulging any figures,Footnote 46 reports by the New American Foundation and estimates from the London-based Bureau of Investigative Journalism indicate that the ratio of civilian to militant casualties oscillates from 12% to 26%.Footnote 47 Besides the moral outrage over the high number of civilian victims, there is a growing awareness among critics that civilian deaths have become a new recruitment tool for terrorist groups and generate hostility among the affected populations.Footnote 48
The second question, or who is targeted, catalyzes the debate on extrajudicial killings, and this is related to a legal debate on whether the applicable law is IHL or human rights law.Footnote 49 In the context of war, killing a combatant is lawful, but if the law of war does not apply, killing a criminal is lawful only when there are no other means (e.g. arrest) to stop an imminent threat of death or serious injury. Further, as the distinction between civilians and combatants becomes increasingly blurred, the identification of a lawful target itself is subject to disagreement.
Some of these questions have also been debated in the courts; in fact, the term “lawfare” is nowhere more relevant than in the litigation on targeted killings.Footnote 50 In the United States, the American Civil Liberties Union (ACLU) has played a major role in challenging the administration's policies. It has focused on the legality of targeting US citizens abroad and on a strategy of Freedom of Information Act (FOIA) requests, searching for more transparency.Footnote 51 While most of this litigation has been dismissed thanks to the US government's insistence on secrecy for national security reasons, it has brought to light the administration's legal rationale for targeted killings.Footnote 52
The Israeli Supreme Court has engaged more directly with the legality of targeted killings. It has concluded that the practice is not unlawful, but needs justification and proportionality,Footnote 53 and has addressed the thorny question: if the target has a shifting identity as an occasional participant in terrorist activities, is he a combatant or a civilian? The Court has rejected the idea that there is a third category beside civilians and combatants, namely the individuals who can be lawfully killed as members of a terrorist group but who do not enjoy protection as combatants. It has concluded that “as far as existing law goes, the data before us are not sufficient to recognize this third category”,Footnote 54 and that “an unlawful combatant is not a combatant, rather a ‘civilian’”. However, he is a civilian who is not protected from attack “as long as he is taking a direct part in the hostilities”.Footnote 55
Why is this important? “Booted normativists”, as Ariel Colonomos dubbed the ethicist who developed an ethics of war for the Israel Defense Forces,Footnote 56 have attempted to reinterpret the civilian/combatant distinction, which is the bedrock of IHL. Although they acknowledge working in the context of the conflict between Israel and various Palestinian organizations and individuals,Footnote 57 they suggest that their proposed new distinctions, conceptions and norms introduced “for the case of fighting terror, can and should be adapted for the case of ordinary international armed conflicts”Footnote 58 – that is, they “are intended to be universal”.Footnote 59 These individuals propose a detailed classification of participation in conflict, with nine categories of direct participation, from bearing weapons or explosives to making the general operational decisions, and five categories of indirect participation, including funding terrorism and praising suicide bombers.Footnote 60 Michael Walzer dismisses such categories as neither necessary nor useful.Footnote 61 More importantly, he objects to the claim that “when the state does not have effective control of the vicinity, it does not have to shoulder responsibility for the fact that the persons who are involved in terror operate in the vicinity of persons who are not”.Footnote 62
The Israeli Supreme Court is clear about the status of a civilian who has directly participated in combat: if he previously took “a direct part in hostilities once, or sporadically, but [has since] detached himself from them (entirely, or for a long period), he is not to be harmed”.Footnote 63 The same individual loses his civilian protection, the Court continues, if engaged in the “revolving door” phenomenon, alternating periods of activities with periods of rest. Between these two possibilities, there are the “gray” cases, which require careful examination of “each and every case”. The guidelines for such examination are precise: good and verified information on the identity of the target is needed; the burden of proof of this information rests on the army; a civilian taking direct part in hostility cannot be attacked if less harmful means can be employed; if an attack could not be avoided, it should be thoroughly and independently investigated afterwards; and any collateral damage “must withstand the proportionality test”.Footnote 64 This Court opinion also states that “customary international law has not yet crystallized”Footnote 65 on the definition of the direct participation of a civilian in combat. Yet, an interpretive guidance by the International Committee of the Red Cross (ICRC) provides a functional approach to what is permissible under the harsh conditions of war: “civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities”.Footnote 66
The debate on distinction and proportionality on targeted killings confirms the existence of disagreement, but also the salience of IHL. A recent report by Ben Emmerson, the UN Special Rapporteur on counterterrorism and human rights, has concluded that both the United States and Israel must make a greater effort to comply with IHL and human rights law when using drones.Footnote 67 Specifically, he calls upon States to investigate any plausible indication of civilian casualties and to be more transparent and accountable in the use of such practices. More fundamentally, Emmerson's report asks for better clarification of the thorny legal issues raised by the use of drones such as a definition of self-defence and prevention, as well as the “global war on terror” and the notion of direct participation in hostilities.Footnote 68 These and other points are made in the common letter sent to the UN Human Rights Council by an array of major human rights groups, which testifies to the increasing international pressure on the issue.Footnote 69
Moral disengagement and morality shifting
The brief review presented above on the issues of torture and targeted killings clearly suggests that in spite of attempts to do so by norm entrepreneurs, there is no need and little support for relaxing IHL to fit the “new” reality of wars. States, particularly those engaged in asymmetric conflicts as described above, will continue to try to push the boundaries of IHL. From our perspective, and to the extent that such attempts are made through the courts and legislative bodies, they are not inherently problematic. They foster debate on these complicated issues and contribute to reaffirming existing norms and the rule of law.
What we see as highly problematic and potentially very damaging is the political and social discourse about armed conflict, because of the consequences it has on the image of the enemy. In 2004, former CIA contractor David Passaro was charged, and later convicted, for the death of Abdul Wali, an Afghan who had been arrested on suspicion of involvement in an attack on a US base. Accounts by witnesses revealed that Passarro used torture and hit Wali repeatedly, causing his death. Passarro himself admits to some of the techniques he used during his interrogation of Wali. Importantly for our concerns here, this is how he justified his actions:
After 9/11, President Bush got on national television, and said, not only are we going to go after the terrorists, but we're going to go after those that harbor the terrorists, and we will do so under any or with any means necessary. In other words, all the rules and regulations no longer applied.Footnote 70
Needless to say, Passarro's interpretation of President Bush's words is at best anecdotal evidence of the influence that political discourse can have on the men and women who end up dealing with suspects and prisoners and making decisions on who to kill as well as the cost of targeted killings in terms of civilian deaths. A host of evidence from the social sciences, however, tells us that words matter when it comes to discussing a conflict and depicting an enemy. Those involved in torture do not call it torture.Footnote 71 They call it “enhanced interrogation techniques”, a euphemism that has its own acronym, “EITs”. The death of civilians in drone attacks becomes acceptable “collateral damage”. Psychologists call such renaming “euphemistic labelling” and consider it a moral disengagement strategy: a psychological process that helps people construe a version of reality in which their own actions are not reprehensible.Footnote 72
Next to such explicit strategies, other psychological mechanisms exist that are more subtle. Dehumanization and demonization of the enemy are a case in point.Footnote 73 Primo Levi, a survivor of Nazi concentration camps, observes that the degradation imposed on the prisoners was not a matter of cruelty, but a necessary process: for those operating the gas chambers not to be overwhelmed by distress, victims had to be reduced to subhuman objects beforehand.Footnote 74 Dehumanization facilitates violence, and in turn, violence enhances the dehumanization of the victim. Research shows that when people are reminded of atrocities committed by their own fellow countrymen, either 200 years prior or in current times, they defend against the threat to their psychological equanimity by depicting the victim group as a whole in a dehumanized manner.Footnote 75 Americans who read about the torture and killing of detainees in an Iraqi prison will dehumanize Iraqis more, and will perceive the suffering inflicted on the family of those tortured and killed as lesser, when they read that the perpetrators were US soldiers as opposed to Iraqi or Australian soldiers. Research also shows that the use of these moral disengagement strategies results in lessened demands for both retributive and restorative justice.Footnote 76
Evidence stemming from social psychological studies such as these goes even further. When we have to make a decision about, say, whether or not to torture or kill a person, or the acceptable degree of civilian deaths, we rely on the law, of course, but also on a sense of what is right and wrong, on our understanding of what is morally appropriate. Morality, however, is best understood in the plural. Theorizing and research in the social sciences reveals at least four different systems or foundations of morality, which applied to the same specific event would result in very different decisions, all allegedly defensible as moral. The best-developed model of morality in psychological theory is Haidt's social intuitionist model, in which four moral foundations are identified: harm, fairness, loyalty and authority.Footnote 77 Of direct relevance for our purposes here, experiments tested whether being confronted with scenarios of IHL violations carried out by one's in-group (e.g. US soldiers for American participants), as opposed to an out-group (e.g. Australian soldiers), leads to a shift in the accessibility of these morality principles.Footnote 78 When violations of IHL were carried out by in-group members, the principles of harm and fairness receded to the background of the participants' minds, and were thus less likely to be used to judge the morality of the events. On the contrary, the principles of loyalty and authority became more accessible, and were thus more likely to guide participants' interpretation of the events.Footnote 79 Practically, this means that when we ponder the morality of an action taking place either in the past or in the future, our decision depends upon the moral principle at work; individuals will use the principles that are more likely to lead to an outcome that allows them to maintain psychological equanimity.Footnote 80 As an example, when deciding whether or not to torture a prisoner, if the harm/fairness principle is very salient/accessible in the potential torturer's mind, it is likely that the torture will not happen. If, on the contrary, the situation is all about in-group loyalty and/or authority, or purity (in cases where the prisoner belongs to a despised group that has been the target of denigration and is considered the “cancer” of the society), then torture will seem like the moral thing to do – especially if it is purported as a means to save one's fellow in-group members.
Most soldiers in regular armed forces know that targeting non-combatants, raping women, and destroying churches, mosques or other safe havens are criminal acts. They learn this in training, but they also know it well before becoming soldiers. Those who violate these norms do so because they undergo a process of radicalization and essentialization of the enemy: “they” are all combatants, wild and subhuman creatures (“irreconciliables”, in the terms of the US manual of counter-insurgency);Footnote 81 women of the enemy population become a threat to individual and collective safety; religious sites/safe havens become shields of the enemy. The law still applies to non-combatants, women and religious and safe sites, but these are re-labelled and re-categorized in an attempt to exempt them from the protection of the law. The research discussed above shows how these mechanisms often operate automatically and unconsciously. In many cases, however, they are purposely utilized in order to prepare public opinion for, and to justify, violations of IHL.
Conclusion
Scholars and practitioners widely acknowledge that over the last couple of decades, the nature of conflict has changed, and especially since 9/11 and the advent of “asymmetric wars”. There is, however, disagreement with regard to the implications that this evolution has or should have for IHL. Is IHL obsolete?
In this article, we focused on a series of specific practices by “norm entrepreneurs” that have attempted to challenge or redefine some of the pillars of IHL, such as the ban against torture and the distinction and protection of civilians. While it is certainly true that these States have attempted to make a case for the necessity and even the legality of torture programmes and targeted killings, it is our opinion that, by and large, they have failed. Various actors in the international community, from States to international organizations and NGOs, have condemned these practices as immoral and opened questions about their legality. A strong critique and demands for accountability have come from domestic actors including the media, legislative bodies and significant parts of the population.
IHL and other bodies of international law are not simply legal obligations that States have committed to, and that make those States accountable. First, their strength and reach are propelled by an emerging synthesis of the laws of war, human rights and international justice – what legal scholar Ruti Teitel calls “humanity law”.Footnote 82 Second, they have the power to influence behaviour by prompting public debates, providing mobilizing agendas for civil society actors and individuals, and suggesting monitoring activities.Footnote 83 This is why, when States in which the rule of law is prevalent violate IHL with apparent impunity, they never or rarely manage, for all their power, to remain unchallenged. They cannot insulate themselves from the aspiration and pressure of the many domestic and international actors, and, perhaps most importantly, of their own citizenry, because they want to maintain legitimacy in the broader international political and legal order. Whether they follow a “logic of appropriateness”, which presumes the influence of norms in suggesting patterns of appropriate behaviour, or are merely sensitive to concerns for their “reputation”, the outcome is the same.
IHL and other bodies of international law, which operate in a complex moral and political environment, stand as normative “guardians” against processes of moral disengagement that make torture and the acceptance of civilian deaths more palatable. Teitel writes:
What the waging of the “war on terror” has made abundantly clear is that humanity law need not run out – that, indeed, there is no category of persons on the globe that is not covered or protected. Indeed, by turning to the overlapping regimes, coverage can be ensured.Footnote 84
It is the law that provides crucial support in the struggle to define the humanity of the enemy, because when the enemy is not only dehumanized but also demonized,Footnote 85 and the conflict is framed in terms of loyalty, authority or purity, violations of IHL can become moral imperatives. Upholding IHL is not separable from monitoring types of political discourse and social climates that lead to processes of moral disengagement and demonization of the enemy.
All in all, we contend that IHL is as widely supported as it was a few decades ago, if not more so. And the reason is that while at times it may appear so, IHL is not just the complex creation of sophisticated jurists who have little knowledge of the reality of conflict. Rather, it is the embodiment of widely shared principles of morality and ethics, and as such it should and does keep its ground, irrespective of momentary lapses in judgement and opportunistic thinking.
