Conduct Of War:
Choice Need Not be Between
Old Rules or No Rules at All

Sir, You report that the sorry legal situation of prisoners in Guantanamo Bay may require changes to the Geneva Convention ("Perpetual limbo", December 4). But the recent transatlantic spat over the terrorist suspects is only the latest example of the inadequacy of existing laws of war in the era of new threats such as terrorism. What is needed is not a piecemeal change but rather a new set of rules governing the use of force; one that takes into account phenomena such as failed states and international terrorism. It must allow for effective action against new threats while preserving the overall legal architecture and averting a collapse of international norms on war.

In 1999, all 19 Nato allies violated the provision of the United Nations Charter requiring a Security Council resolution to launch a war for reasons other than self-defence (that count includes many countries now holding the US to the letter of the law). Nato bypassed the Security Council and launched an attack unprovoked and thus unjustified in the eyes of current international law on a sovereign country. There may well be a moral imperative to act to end future crises such as the one in Kosovo and, unfortunately, also more occasions to do so. And again, as in Kosovo, the UN may be unable to act. Three years since Nato's air war in Yugoslavia, there has been no discussion of changes to either the language of the UN Charter or to the process of securing a UN resolution, which would make it possible for the UN to act. Such reforms would no doubt be a massively difficult and controversial undertaking. But would not a painful reform still be preferable to eliminating the UN Security Council from the business of regulating war, which, if the US attacks Iraq, will become the reality?

And, speaking of Iraq, the US plans for a pre-emptive attack inspired gasps of shock and protest in Europe. But are there more reliable alternatives? Are existing non-proliferation regimes tight enough to keep weapons of mass destruction out of the hands of the people who flew airplanes into the World Trade Centre? And does conventional or even nuclear deterrence work against people perfectly willing to sacrifice their lives, and those of thousands of innocents? If and when Washington adopts the doctrine of pre-emption, in theory or even more likely in practice, the US will find itself completely outside the boundaries of existing international law. Again, the debate in Europe fell into the same pattern of focusing on the legality of US actions under the UN Charter, rather than debating the merits of Washington's policy and the changes to the international law that it might necessitate.

The time has come to stop fudging the laws, eroding them bit by bit, and to start a serious debate on whether changes are needed to the body of international law on the conduct of war. The international institutions and legal provisions created during the cold war may well be unsuited for the current era. The choice, however, need not be one between old rules and no rules, which are essentially the platforms adopted by Europe and the US respectively. The most remarkable thing about the recent clashes between the two is the absence of creative solutions, or the will to seek any.

 

Tomas Valasek Director, Center for Defense Information tvalasek@cdi.org

Standard Version

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