Law and War

International law is of a vital importance to the military in planning operations, shaping equipment procurement, and most importantly conduct in war. Just war theory has traditionally divided into two parts: the decision to go to war ( jus ad bellum); and the conduct of war itself ( jus in bello). We now are paying much more attention to a third consideration of  jus post bellum, justice after the war.

Jus Ad Bellum

The first major intervention of the post Cold War period was designed to oust Iraqi forces from Kuwait, which had been invaded in  August 1990. That intervention  stood up well to classical just war theory. A sovereign nation had been invaded, and there was a clear breach of international law. Politicians like to talk of war as t being the action of last resort. Yet when you look at the alternatives to war (economic sanctions, blockades,  diplomatic action and negotiated settlement) they can be spun out endlessly without conclusive failure. Diplomatic options had to be backed by a credible threat of force against a fixed deadline. When that deadline expired, war was legitimate rather than a last resort.

Just war theory also requires that war be a proportionate response to a situation. Was the value of Kuwait's independence worth all the deaths that would follow a military intervention? Making this assessment is particularly difficult.   New weapon systems reduced the risks of unnecessary deaths on all sides.  A just war seeks only to restore things to the state they were before the act of aggression. Again, the limited aims of expelling Iraqis forces from Kuwait were sustained. A further push to Baghdad, now argued for by some commentators, would have turned a just war into an act of aggression. The UN confirmed the legitimacy and legality of the intervention because of the invasion of one state by another. The result of adhering to the rules was that a wide coalition of nation acted together. Most importantly the alliance included key regional states, which eased the logistics problems and made the prospect of subsequent stability greater.

Twelve years later the United Nations came to a different conclusion about an intervention against Iraq. The conditions for a just war intervention did not exist. The inspectors provided an option short of war which could achieve the aims of disarmament.  When the United States with a mixed bag of allies, including the United Kingdom, went ahead with the intervention the consequences were much less beneficial.

 As a military specialist, I take comfort from the fact that Just War theory, and International Law come up with the right military solutions. In the first Gulf War, the limited military operation was successful and did not cause long term chaos in the region. The legitimacy makes it easier to build coalitions. One could have argued that it would also have been legitimate to intervene in 1988 after Halabja (the gassing of the Kurds), or in 1992 after the putting down of the Kurds and Marsh Arabs.

These humanitarian interventions are much more difficult to place in the traditional just war and international legal framework. The Kosovo air campaign in 1999 lacked the UN Security Council stamp of approval, and was an intervention by NATO in the internal affairs of a state. Yet the ethnic cleansing of the Kosovo Albanians by the Serbs led to a widespread international consensus for the NATO action. The just war tests of proportionality and a reasonable chance of success still had to be applied. The experience of Kosovo has led to a much greater readiness to consider humanitarian intervention as legitimate. International law is moving on in this respect, but there remain concerns about the criteria for such intervention.

The precedent set by the 2003 Iraq war is of a different kind. The US national security strategy advocates the need for the pre-emptive use of force when a potential enemy may be developing hostile offensive capabilities – particularly weapons of mass destruction. The fact that Iraq had no such weapons does not change the arguments that are being made by some about Iran, or Syria, or North Korea. Here international law and just war theory come up again with the right strategic advice. Diplomacy and coercion provide better outcomes than the superpower zapping regimes of which it disapproves. If nations could claim justification for intervention on the basis of pre-emptive self defence, we could expect much more conflict in the future.

Jus in Bello

Once a fighting conflict starts, the laws of war come into play. While states do not tend to declare war formally these days, it is always clear when battle is engaged. The need to protect civilians, use proportionate force, handle prisoners of war appropriately, operate under the Geneva Conventions and protocols is well understood. These constraints rightly affect targeting and overall planning, and indeed now shape weapon procurement and force planning. One senior German NATO commander, speaking about the Kosovo air campaign, said that the nation that gave  most difficulty over target selection was the United Kingdom. "You had more military lawyers breathing down our necks than any other nation." That is a good reputation to have. 

While the laws of war were important in the past to constrain the savagery of war, they are even more important now in the era of rolling news. If we are conducting humanitarian interventions, we must demonstrate that we are operating within a legal framework. Most interventions will also move into a phase of post-conflict reconstruction and nation building. This is also made easier if the fighting war has been conducted with precise targeting, minimum casualties and preservation of the civilian infrastructure. 

Jus Post Bellum

If there is any lesson to be learned from Iraq, it must be that  planners might have done better to think about jus post bellum at an early stage of planning. Here we are in greater difficulty in charting a course. The legal responsibilities of occupying powers are clear, but were formulated in the days of all out war between states. The model of post war Germany or Japan does not really seem to work for a war which claims to have the aim of establishing democracy in the Middle East. Yet the norms of international law and domestic law can give adequate guidance to our diplomats and  military in such circumstances. Using disproportionate force as collective punishment is illegal, but is also counter-productive in trying to stabilise Iraq. Abusing prisoners and detaining them without recourse to the law is similarly flawed, and worsens the insurgency. Not providing the necessary security to protect Iraqis rebounds on the occupiers as looting grows to criminality to terrorism to wide spread insurgency. Rebuilding a country in situation where the general population views the occupying forces as oppressors is impossible.

The argument is sometimes made that the  rule of law hampers too much the work of the security forces in an insurgency situation. There is discussion now of death squads to eliminate insurgent and terrorist leaders. Yet every such short term tactical victory leads to long term strategic failure. Following the legal framework  prevents such abuses from worsening the problem.

War on Terror

The declaration by President Bush of a "War on Terror" following the attacks of 9/11 has brought a new set of uncertainties into international law.  There has been a move away from fundamental rule of law principles justified by the war on terror. It is of course not a war in a technical sense; and  if it were, the laws of war would apply. Detainees in Guantanamo Bay would be Prisoners of War with consequential rights.

The current US administration appears to have adopted a new approach to international law, which might be called the Humpty Dumpty approach from the character in Alice through the Looking Glass . As he said: "When I use a word, it means just what I choose it to mean -- neither more nor less."  In this way, the prisoners in Guantanamo are called illegal combatants without rights as POWs or as accused persons under civil law. Torture is redefined to be so narrow as to allow abuse under interrogation. Yet torture does not produce reliable information, and ends in a spiral of misinformation and doubt as well as a legal and moral morass.

Even in the UK, the government justifies indefinite detention without trial at Belmarsh, or extradition to the US without checks or reciprocity because of the terror threat. From a military security point of view, this is again the short term tactical approach taking precedence over the long term strategic aim. If you want to reduce terrorism, you must not suspend the rule of law for a class of people. Repression increases support for terrorism, and it is that  broadening support that allows the terrorist to flourish. 

Conclusion

Experience in interventions, fighting wars and countering insurgency over the past century has demonstrated the continuing importance of   the just war principles. What is morally and ethically right, is also the only approach to security problems in the long term. Since our legal framework comes from what is just, moral and ethical, it is scarcely surprising that preserving the rule of law is so important in the handling of security problems.

Liberal Democrats must to continue to shout whenever justice and freedom are under threat.  It is not only right morally, but  it is also right for  future security as well as liberty.

Lord Garden KCB is a Lib Dem Defence spokesman in the Lords, and visiting professor at the Centre for Defence Studies, King's College London. He is a former air marshal and Director of Chatham House.