Last updated: July 14, 2019
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The Need for Legal Encirclement in Modern Warfare

Introduction

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The war in Iraq is a clear case of the evolving nature of war, and the importance of clear regulations governing combat.  Coalition forces in Iraq are fighting a new kind of enemy that does not fit the traditional description of an opponent, and who are not following the traditional rules of engagement.  Military personnel have been concerned that modern warfare cannot be won when both sides are not adhering to the same rules.  However, due to the uncertain nature of the enemy, and the evolving goals of the mission and the military force itself, it is more important than ever to adhere to clear guidelines for the protection of both non combatants and the soldiers alike.

Laws Governing War

Discussion about modern day warfare can never be divorced from the events of WWII.  Following the atrocities of the Holocaust, for the first time soldiers were held accountable for their actions and prosecuted for crimes committed under order against people they were at war against.  The Nuremburg trials of 1945 and 1946 resulted in the execution of 12 Nazi leaders, and the Tokyo trial in 1948 executed 7 Japanese commanders for their involvement in the Nanjing, China massacre (Kafala, 2003).  The recent claim by Admiral Lord Boyce that the military faces “legal encirclement” making difficult for soldiers to do their job properly without fear of recrimination (House of Commons, 2003) is only a reflection of the effectiveness of multilateral agreements on regulating warfare.

The first attempt at universal standards of warfare occurred at the 1864 Geneva Convention that established standards of care for wounded soldiers, but subsequent conventions established treatment for prisoners of war (3) and civilians under enemy control (4).  Chief among these standards were humane treatment of non combatants including prisoners, prohibitions against murder, mutilation, taking hostages, execution without trial, and humiliating or degrading treatment (ICRC, 2006).

In addition, the Hague Tribunal set up to prosecute war crimes in the former Yugoslavia (ICTY) has set pertinent standards, including opening up subordinates to criminal charges, clarifying the level of knowledge expected from superiors, and punishing sexual violence.  Especially applicable to current warfare in Iraq, the ICTY says that persons can be prosecuted for destruction of  towns not justified by military necessity, attack of undefended towns or buildings, seizure of, destruction, or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science, or plunder of public or private property (International Criminal Tribunal for the Former Yugoslavia, 2006).  These guidelines ensure that military forces in Iraq do not fight their opposition through random bombing, attacks on religious buildings, or destruction of infrastructure.

Asymmetric warfare

Along with the evolution of rules of war, the idea of war and the definition of a combatant has changed over time, introducing doubt as to whether the established rules still apply.  Western militaries have slowly been redefining what warfare is since the 1980s, developing the idea that terrorism has changed the face of war, making it asymmetric, and therefore unable to be fought under the same rules of engagement.  The US based Center for Defense Intelligence (CDI) identifies modern Asymmetric warfare as fourth generation, characterized by small groups of people or loose knit organizations employing threats or attacks on infrastructure and civilians to fight.  They are most often not associated with governments or nations.  Nations are currently fighting these fourth generations using third generation warfare which is characterized by the goal “to collapse the opponent’s will to fight early (ideally, even before becoming decisively engaged) by introducing chaos into his intelligence/surveillance-evaluation/command-action/ reaction processes. This can be done by anticipating the actions of the opponent and preempting his intentions” (Corbin, 2001).  The US has most noticeably conducted war under the definition of third generation warfare, preemptively striking Iraq to destroy weapons of mass destruction.

There is no doubt that the war in Iraq is asymmetric, but it is important to remember that this means that the enemy has neither a face nor a center of operations.  Essentially, these are human beings blending into civilian populations, acting outside of the government to impede the disarmament process.  Offenses against them carry great potential to affect innocent civilians through mistaken imprisonment and identity, and death.  Because occupying forces do have an identity and a center of operations, they are easy to attack, as well as find and prosecute for war crimes.  It may seem that soldiers of national armies are facing legal encirclement because they are not able to use the same tactics as terrorists (Goldsmith, 2005).

Admiral The Lord Boyce claims that the soldiers are facing a legal encirclement that extends beyond disciplinary actions and extends into issues of health and safety and working time directives.  He stated that the encirclement was due also to the media attention on soldiers and disciplinary actions taken, and a “culture of litigation and blame culture” (House of Commons, 2003).  The alleged consequences of this encirclement is to undermine command control and jeopardize the ability of forces to accomplish missions (Ibid.) However, it is precisely because of the new warfare and media attention that soldiers are in more need of laws and regulations to dictate what is acceptable behavior.

Need for Encirclement

Evidence suggests that the war in Iraq has taken a great toll on both the civilian population of Iraq, and soldiers themselves.  Two and a half percent of the Iraqi population has died as a result of the conflict, and deaths have increased due to the deterioration of health facilities, food and water supplies and other infrastructure (Burnham, G. et al, 2006).  Modern warfare also exacts a toll on soldiers themselves, as is evidenced by a recent study of US soldiers.  Eighteen percent of soldiers reported having Post Traumatic Stress Disorder (PTSD), 48% reported seeing the death of a woman or child and 28% reported being responsible for the death of a non-combatant (Hoge et al, 2004).  The clearly defined laws regulating warfare that include not hurting noncombatants and not destroying infrastructure put soldiers in a stressful situation where the tactics they use often result in the violation of laws protecting humanity.  However, it is having clearly defined rules and practicing clean warfare that can prevent the damaging psychological strain on soldiers. A United Kingdom study found that PTSD can be greatly mitigated by clearly defined successful missions with short time spans (Hughes, 2005).

Unfortunately, clearly defined missions with measures of success are more and more difficult to execute.  The United Kingdom’s mission in Iraq has changed with time, undermining the strength of ideology driving the war and confusing the goal of occupation.  The Attorney General warned that blurred prescriptions jeopardize the war’s legality. When deciding to enter Iraq, the Attorney General argued that entering the war must be predicated on proportionality where actions must be pursuant to achieve the objectives set forth in resolutions and must be proportional to those objectives.  For example, entering Iraq for the objective of disarmament cannot be construed as supporting a regime change unless this is specifically written into the resolution (Goldsmith, 2005).

In fact, the resolution to support a regime change was made, but the resolution itself was vague and did not help clarify the mission or strengthen ideology. At end of official occupation in June of 2004, with the election of an interim government, the United Kingdom became party to the UN Security Council resolution to transform Iraq into a democracy.  This event increased the uncertainty of the mission in Iraq and added to the ambiguity of success statements (Roberts, 2005).  Due to the psychological consequences on soldiers it is imperative that legal encirclement is used to put pressure on leaders to create clear assignments and definitions for the continued military presence in Iraq.

Ambiguity of goals and laws governing war also threatens the physical safety of soldiers in Iraq.  Asymmetric warfare in Iraq is conducted by armed opposition seeking to undermine the establishment of democracy.  This opposition is driven by individuals with a grievance against occupation forces and an Iraqi government established with the help of coalition forces.  The ideology driving the conflict is rooted in a distrust of the intentions of US, the main contributor of coalition forces, and other states by default.  The distrust is likely to increase with every breach of conventions by coalition forces, and for every ambiguity in mission and goal for being in Iraq.  In reports on a classified US National Intelligence estimate, indefinite detention of suspects and the Abu Ghraib abuse scandal among other US actions has served to exacerbate the terrorism threat (Mazzetti, 2006).   Aggravating the opposition unfailingly results in increased coalition fatalities.  Encirclement has the potential to prevent the offenses that put soldiers at risk from retaliatory opposition attacks.

Another reason that legal encirclement is important is to protect non combatants from the changing nature of the military.  The face of the military is moving away from national forces and more towards mercenaries.  These Private Military Companies (PMC) contribute so many forces, they are second behind the pentagon in providing coalition forces to the pentagon, and the United Kingdom is known to employ at least seven.  PMCs are employed to save money, but they are also useful in deflecting national criticism when things go wrong, and when casualties incur.  They were famously implicated in the Abu Gharaib prison scandal (Walker ; Whyte, 2005).

However, PMCs are more difficult to prosecute for war crimes because they do not fall under all national laws.  They are regulated in the United Kingdom by section 4 of the 1870 Enlistment Act, but more recent legislation aimed at curtailing the selling of technology and weapons by citizens to foreigners does not necessarily apply to PCMs.  In 2003 DynCorp Aerospace Ltd. was accused of violating these laws, although no action was taken (Walker ; Whyte, 2005).  With the Abu Ghraib prison incident and the DynCorp accusations it is clear that PMCs are both a liability to nations utilizing them, and a threat to non combatants.  Harder to trace and prosecute, PMCs are more likely to act with impunity and more willing to break Geneva and ICTY Conventions to accomplish stated goals.

Conclusion

Ultimately, legal encirclement is the necessary tool to minimize the ambiguities of modern warfare and ensure the maximum protection of both soldiers and non combatants.  Soldiers today have both more laws and regulations governing their warfare, and more trouble identifying who their enemy is and where their center of operation is located.  As a consequence, soldiers face more stress and danger in war, and non combatants are more vulnerable to mistaken attack.  Legal encirclement helps by defining the purpose and rules of engagement, helping to alleviate soldier’s psychological stress, and helping the credibility of the positive intentions of the mission in the eyes of their enemies.  This helps reduce casualties and secure successful missions, further helping the soldiers.  In turn, the rules protect non combatants by promoting careful consideration of evidence before conviction, ensuring proper treatment of prisoners held to determine guilt, and prevention of willful destruction of infrastructure that affects the lives of civilians, as well as reducing the death of innocents.

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Bibliography

Burnham, G. et al (2006, October 21).  The Human Cost of the War in Iraq: A mortality study 2002-2006. Supplement to The Lancet study “Mortality after the 2003 Invasion of Iraq.” The Lancet, 368, 9545: 1421-28.

Corbin, M. (2001, October 1).  “Reshaping the Military for Asymmetric Warfare.”  The Terrorism Project.  Washington, DC: Center for Defense Information.  Accessed November 28, 2006 from http://www.cdi.org/terrorism/asymmetric.cfm

Goldsmith, P. (2005, July 1).  Attorney General’s Advise on the War in Iraq: Resolution 1441, 2003.  International and Comparative Law Quarterly, 54, 3: 767  Oxford: Oxford University Press.

Hoge, C.W., et al. (2004). Combat duty in Iraq and Afghanistan, mental health problems, and barriers to care. New England Journal of Medicine, 351:13-22.

House of Commons (2006, February 9).  Examination of Witnesses: Admiral the Lord Boyce. Select Committee on Armed Forces Minutes of Evidence. UK Parliament.  Accessed November 28, 2006 from http://www.publications.parliament.uk/pa/ cm200506/ cmselect/cmarmed/828/6020902.htm

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International Criminal Tribunal for the Former Yugoslavia (ICTY) (2006).  ICTY at a Glance. United Nations. Accessed November 28, 2006 from http://www.un.org/icty/glance-e/index.htm

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Kafala, T. (2003, July 31) “What is a War Crime” BBC News Online. Accessed November 27, 2006 from http://news.bbc.co.uk/1/hi/world/europe/1420133.stm

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Mazzetti, M. (2006, September 24).  Spy Agencies say Iraq War Worsens Terrorist Threat.  New York Times. Accessed November 28, 2006 from http://www.nytimes.com/2006/09/24/world/middleeast/24terror.html?ex=1316750400;en=da252be85d1b39fa;ei=5088;partner=rssnyt;emc=rss

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Roberts, A. (2005, January 1). The end of occupation: Iraq 2004.  International and Comparative Law Quarterly, 54, 1: 27.  Oxford: Oxford University Press.

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Walker, C. ; Whyte, D. (2005, July 1).  Contracting out War?  Private Military Companies, Law and Regulation in the United Kingdom. International and Comparative Law Quarterly, 54, 3: 651.  Oxford: Oxford University Press.