Regulating Unconventional Conflicts - Essay Example

?Regulating Unconventional Conflicts The world’s largest and most powerful empires, from the ancient Roman and Qing empires to the modern world’s British Empire, were created and maintained through war and armed conflicts. Invasion to increase the sovereign’s landholdings and achieve world domination was the name of the game. States build fortresses to defend themselves from marching legions. With the same motive of self-preservation, states also forge alliances to help them ward off potential invaders. Fast forward to the 21st century, sovereign states are no longer threatened by wars waged by an invading enemy. The threat does not come from a charging cavalry but from a small group of individuals, specifically armed civilians, clandestinely operating to undermine an entire country or its economy. There is no declaration of war. The enemy simply launches an attack from within where majority of the casualties are innocent civilians. This is the era of unconventional warfare. Unlike war and belligerency which are governed by specific set of rules under the United Nations conventions and treaties, there exist no specific rules in international law that apply to unconventional conflicts.1 Unlike terrorists, the community of nations adheres to laws that govern the conduct of war, including but not limited to the Geneva Conventions of 1949, the Hague Conventions, and the 1977 Protocols to the Geneva Conventions. These basic laws are then complemented and supplemented by the human rights conventions and treaties. The absence of specific rules that apply to unconventional conflicts like terrorism give rise to the debate as to whether or not unconventional conflicts can be legally regulated without conferring legal rights to terrorists. I submit to resolve the issue at hand in the negative. No, unconventional conflicts cannot be legally regulated without conferring legal rights to terrorists. Stated otherwise, existing international laws on warfare cannot be applied to unconventional conflicts without giving legal personality to terrorists and the legal rights appurtenant thereto. The four Geneva Conventions, all of which were adopted on August 12, 1949, find application to the surprise and unstructured warfare carried on by terrorists. The US court has had already set the precedent to this position through the controversial case of Salim Ahmed Hamdan Vs Donald H. Rumsfeld. The court ruled that Hamdan is entitled to the rights set forth in the common Article 3 of the four Geneva Conventions.2 In particular, these conventions are: first, the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; second, the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; third, the Convention Relative to the Treatment of Prisoners of War; and fourth, the Convention Relative to the Protection of Civilian Persons in Time of War.3 While the first three conventions govern the conduct of war between armed combatants and all those directly involved in the armed conflict, the last convention provides regulations as to how these combatants should conduct themselves with regard to unarmed civilians.4 The Geneva Conventions specifically declared under Article 2 thereof that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Moreover it bears stressing that the conventions also provide in Article 3 thereof that, “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.” In addition to the foregoing conventions, there are three Protocols to the Geneva Conventions, two of which were adopted in 1977 and one was recently adopted in 2005. In particular, Protocol I, which refers to the Protection of Victims of International Armed Conflicts, legitimized wars for national liberation which are “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of their self determination”. 5 At this point, we need to fix the meanings of different concepts that arise in discussions on armed conflict. On the one hand, there are the international conflicts which involve two or more sovereign states to which international laws on war specifically apply. On the other hand, there are the non-international conflicts which are usually of domestic nature but are recognized by other states because of its international repercussions.6 Each non-international armed conflict is unique in consideration of the political, social and cultural issues involved. They may fight for the same ideologies or displace refugees of the same race and ethnicity, but no two conflicts will be exactly alike. “There is no broadly-applicable blueprint that can override important local realities and dynamics.”7 However, they can all be classified into three categories, namely, rebellion, insurgency and belligerency.8 Rebellion and insurgency, which are commonly confused and often used interchangeably, both refer to movements aimed at overthrowing the recognized government. Anthony Cullen distinguished the two saying that rebellion is “a short-lived, sporadic threat to the authority of a state,”9 whereas insurgency is a rebellion that has attained some form quasi-government with a controlled territory and is able to sustain a long and protracted armed conflict. Both rebellion and insurgency employ guerrilla war tactics to achieve their ends. Guerilla groups advocate political ideologies to carry their armed struggle to the national, if not international arena.10 Whereas, rebellion is regarded as a common crime and rebels are dealt with by the state under their criminal laws, the status of insurgency provides “a window for the application of international humanitarian norms.”11 Subsequently, the insurgency is placed within the ambit of international laws of war as well as the international humanitarian laws.12 When an insurgency is recognized by the state it is fighting against and by the international community, the conflict progresses into belligerency.13 When an armed conflict is granted belligerency status, the warring parties are bound by the international laws of war as if they are two equally sovereign states. However, an armed conflict is elevated into the status of belligerency only when all of the criteria identified by Hersch are present. These four criteria are: (1) there must be an armed conflict within a sovereign state; (2) the combatants must occupy and control a considerable portion of the state’s territory; (3) the combatants must be organized with defined structure that warrants the existence of a de facto state14; and, (4) there must exist certain circumstances that would compel the international community to recognize its belligerency status.15 In view of the foregoing, terrorists do not fall under any of the recognized international or non-international armed conflicts which are governed by international laws of war. Acts of terrorism that target sovereign states is a class of its own. Nevertheless, international jurisprudence has seen cases wherein the laws of war are applied in the prosecution of these terrorists. A classic example is the Salim Ahmed Hamdan vs. Donald Rumsfeld wherein the US Supreme Court applied the provisions of the Geneva Conventions to the accused terrorist.16 Terrorists clearly violate the state’s sovereignty as well as its citizens’ human rights whenever they conduct activities such as bombings and hi-jacking which unnecessarily shed unarmed and innocent civilian blood.17 Terrorists can and should be held accountable for their crimes against humanity. This is made possible by the broad and general scope of the concept of armed conflict under the conventions. International tribunals are given enough elbow room to determine whether or not a certain act falls within the purview of armed conflict under the conventions and international laws.1819 A case in point is the Salim Ahmed Hamdan vs. Donald Rumsfeld case.20 Hamdan is accused as one of the perpetrators of the September 11 attacks on the World trade Center. A terrorist attack which shocked not only the global superpower called the United States but also the entire world. The case put to test the issue of whether or not terrorists can be classified as armed combatants and as such fall under the ambit of international laws of war. The facts of the case, which involved several countries, are uncontroverted. In response to the 9/11 attacks, acting under authority of the US congress, the President ordered the invasion of Afghanistan which US believed was harboring the terrorists.21 The US launched Operation Enduring Freedom. In the course of the invasion, the US armed forces worked with the local militia to hunt down members of the Al Qaeda terrorist group. In 2001, the Afghan militia captured Hamdan, a national of Yemen, and turned him over to the US military. A year later, Hamdan was moved to the Guantanamo prison in Cuba where he was held with no specified crime charge. The US government legitimized his detention by declaring him as an “enemy combatant”. It was only after a year when he was deemed eligible for a military commission trial but still with unspecified crimes. After another year, Hamdan was charged with being a conspirator “to commit ... offenses triable by military commission." Hamdan filed a petition for habeas corpus and mandamus, arguing that the military commission does not have the jurisdiction to hear his case on two grounds, namely: “(1)neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.”22 The District Court for Western District of Washington granted the petition which was later reversed by the court of appeals arguing that “Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable… and that Hamdan's trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.”23 However, on petition for certiorari to the Supreme Court, in a 5-3 decision dated June 29, 2006, the judgment was reversed and the case was remanded. The Supreme Court ruled that “the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions … the offense with which Hamdan has been charged is not an "offens[e] that by ... the law of war may be tried by military commissions." It declared that the Geneva Conventions’ “Common Article 3's requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements.”24 It is indeed unfortunate that the terrorist was able to hide under the mantle of international human rights policies. The suspected terrorist used to his advantage the laws of war, specifically, the third Geneva Convention which governs the treatment of prisoners of war. Nevertheless, I do agree with the court’s ruling in the case of Hamdan. Even the American bar Associated lauded the Supreme Court for upholding the rule of law.25 The US Supreme Court, which operates on the principles of democracy and supremacy of the law, is bound to uphold the right to due process of the accused.26 The case did not rule on the merits of the charges against Hamdan. It did not rule on Hamdan’s guilt. The court merely declared that either Hamdan was guilty or innocent, terrorist or enemy combatant, criminal or a prisoner of war, the accused is entitled to the right to due process. The court anchored its judgment on the common Article 3 of the Geneva conventions which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”27 This right to due process is so engrained in our democratic principles such that to violate the same to exact vengeance is abominable. Ruling otherwise, the US government would be trampling upon the very principles on which America is built. The US would be reduced into an executioner, which conduct mock trials and then convict the accused. At this point, I shall reiterate my position that unconventional conflicts cannot be legally regulated without conferring legal rights to terrorists. At the current international set-up, whenever these terrorists are prosecuted under the laws of war, the international tribunal has also conferred unto them the appurtenant rights provided by the Geneva Conventions. The provisions of the UN Declaration of Human Rights apply to all persons which include those accused of crimes who are accorded special protection from unlawful prosecution and persecution.28 Indubitably, there is an apparent need for the adoption of specific set of international laws that govern modern unconventional warfare. The community of nations must adapt to the changing times. The threats, as well as the manner by which these threats are carried, change overtime. They must be attuned to the dynamics of the threats to its sovereignty and the liberty of its citizens. There is a clear and present need to formulate international laws that would regulate unconventional conflicts without conferring legal rights to terrorists. Bibliography Brooks, Rosa Ehrenreich. “War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror.” University of Pennsylvania Law Review 153 (2004): 675-760 Bush, George W. “Presidential Address to a Joint Session of Congress.” (Sept. 20, 2001): at http://www.globalsecurity.org/military/library/news/2001/09/mil-010920-usia01.htm]. Cassesse, Antonio. “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law.” EJIL 12 no. 5 (2001): 993-1001 Cullen, Anthony. The Concept of Non-International Armed Conflict in International Humanitarian law. http://assets.cambridge.org/97805217/60485/excerpt/9780521760485_excerpt.pdf Greco, Michael. Statement Re: US Supreme Court Decision in Hamdan v Ramsfeld, available at http://www.abanow.org/2005/06/statement-re-u-s-supreme-court-decision-in-hamdan-v-rumsfeld/ Guillaume, Gilbert. “Terrorism and International Law.” International and Comparative Law Quarterly 53 (July 2004): 537-548 Hans-Peter Gasser, “Acts of terror, “terrorism” and international law.” IRRC 84 no. 847 (2002): 547-570 Higgins, Rosalyn. “The General International Law of Terrorism”, in R Higgins and M Flory International Law and Terrorism (London Routledge 1997), at 28 Lippman, Mathew “The New Terrorism and International Law.” Tulsa Journal of Comparative & International Perrit, Henry H. Jr, ‘Making International Criminal Law Realistic’, Chicago-Kent College of Law (2004); 1-14 Roberts, Adam & Guelff, Richard Eds. Documents on the Laws of War, Third Edition (Oxford University Press, 2000). Sadat, Leila Nadya. “Terrorism and the Rule of Law.” Washington University Global Studies Law Review 3 no. 135 (2004): 135-155 Slomanson, William R. Fundamental Perspectives on International Law. Sixth Edition (Cengage Learning, 2010) The Hague Conventions The Geneva Conventions US 548, Salim Ahmed Hamdan, Petitioner v Donald H Rumsfeld, Secretary of Defense; “Has the Bush Administration’s Experiment with Military Commissions Come to an End?” Case Note: Hamdan v Rumsfeld (2006): 372-406 Read More