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‘Do the Laws of War Need to be Revised?’

Professor Sir Adam Roberts



Professor Roberts’s talk fell into two parts:           1.   Reasons why the laws of war need changing
                                                                            2.   Reasons why they do not need changing

1.  Reasons Why the Laws of War Need Changing

There are numerous and serious reasons at the present time that suggest a need for some kind of change or amendment of the laws of war:


i.  The involvement of ‘non-state actors’ who in many cases do not accept an obligation to observe the rules of the laws of war themselves, or would have difficulty in doing so because they do not possess certain essential attributes of a state. The 1949 Geneva Conventions are based principally round the idea of war between recognised states: the prevalence today of conflicts in which non-state entities (including transnational terrorist networks) play a key role has been interpreted by some as meaning that the Geneva framework stands in need of updating.


ii. Cases where actors deliberately exploit the adversary’s breaches of the laws of war for their own ends (e.g. killing civilians in schools, mosques etc.). Such actors, who may be states or non-state belligerents, sometimes deliberately create situations in which their adversary is tempted to violate the rules – e.g. by themselves deliberately (and illegally) locating their military assets in or near protected premises such as schools or mosques, which the adversary then attacks. This opportunistic approach to the law of armed conflict is sometimes referred to as ‘lawfare’.


iii. The treatment of detainees. This has long been a difficult issue, even in relation to those whose entitlement to PoW status is not in doubt. For example, the requirement of 1949 Geneva Convention III (Article 118, paragraph1) that all prisoners of war shall be repatriated at the end of hostilities has proved problematical in cases where some prisoners do not want to go home, as in the Korea case in 1953. In effect it has already been modified by the practice of states.


            The case for some modest variation from the provisions of 1949 Geneva Convention III is widely accepted. One example concerns the rights of PoWs to receive e.g. musical or scientific instruments etc. as per Geneva III (Article 72). GW Bush has never been criticised for his decision of January 2002 refusing to allow such access. Again, a common law process of modification of treaty law has been involved.


            The big issue relating to the adequacy or otherwise of the existing law concerns the uncertainty of the status of detainees in the ‘war on terror’. The 1949 Geneva Conventions have been interpreted by some people (including some but not all spokespersons for the International Committee of the Red Cross) as requiring that everyone is either a civilian detainee or a prisoner of war – no third choice possible.  Today this view of what the Geneva law allegedly requires does not makes sense, as some ICRC spokespersons have accepted.  There is a need for explicit allowance for terrorist suspects who may fit neither the category of civilian not that of prisoner of war. (To some extent the Geneva framework already allows for such a category of person: 1977 Additional Protocol I, Article 75 covers such people, and will be mentioned further below.)


iv. Problems arising from new technologies such as cluster bombs etc. which cause random innocent deaths. The UK MoD announced earlier this year that it is ceasing to use certain cluster munitions, but there remains a need for an international agreement on the subject. The obvious framework for negotiation on this is the 1980 UN Convention on Certain Conventional Weapons. The ICRC has been taking forward the question of a Protocol to the 1980 Convention as well as a number of other measures to address this important issue.


v. Occupation law. The assumption behind the laws of military occupation is that most governments are civilised. That is partly the basis of the rule, which is found in the law of The Hague as well as that of Geneva, that an occupying power should not make drastic changes in the legal system of the occupied territory.  The question has been raised whether this rule is appropriate in a case which an occupying power is administering territory previously ruled by a vile regime which is not, in any case, going to be permitted to return.  Is the international legal framework in need of revision in such cases if it is to be relevant to contemporary circumstances?

2.  Reasons Why the Laws of War Do Not Need Changing

Against the above considerations, there are also some solid reasons for not seeking a major formal revision of the existing international legal framework.


i. Dearth of proposals for what an amended body of law would contain. In the matter of particular weapons, there are specific proposals for new law. However, those who insist the laws need changing in a general way to take into account the special problems thrown up by the ‘global war on terror’ have never produced a single specific proposal.


ii. Sometimes demanding change is a way of justifying the failure to apply the law as it is. Thus motives and conduct of advocates of change are questionable.


iii. In the case of the occupation of Iraq, the decision in advance to change the whole legal and governmental system of a country in very short time has been catastrophic. One cannot know for certain, but greater respect for the existing legal framework of The Hague and Geneva would probably have resulted in more prudent and effective policy.


iv. In cases where there is a genuine need to vary the application of international rules, mechanisms for such variation exist already within the present international legal framework. For example, the UN Security Council has in my view the necessary authority to stipulate how international rules should be applied or varied in particular cases. It also has authority to give approval for a transformative programme – as was eventually done over Iraq. 


v. Regarding the status and treatment of detainees – which is the key issue – the existing rules have sufficient relevance and flexibility to be able to perform a useful function in governing the treatment of the various kinds of security detainees taken in the ‘war on terror’.


In campaigns against terrorism, attempts to ignore or side-step rules of international law relating to detainees tend of cause very adverse reactions in key communities, and are often counterproductive. For example, in 1970–72, internment without trial in Northern Ireland, and the holding of detainees outside any framework of international law, led to more recruitment to the IRA. In March 1972 the Heath Government decided to adopt a more legally defensible course. Even though ‘terrorists’ are different from ordinary Prisoners of War, and are quite properly not detained as such, it is often better to accept that their status and treatment must in important respects be under existing law.


The US position regarding detainees has not been one of complete rejection of international legal standards. President Bush has said the US will follow the Geneva rules. However he has simultaneously said that they are not viewed as fully applicable in these cases as a matter of law. Moreover, the rules have not been formally applied in all cases – and they have been plainly ignored in respect of secret renditions to Poland, Romania etc.


Ways forward are available to enable law to be applied to the status and treatment of detainees. These avenues include: (a) clear minimal rules to apply to all detainees, such as those laid down in the four 1949 Geneva Conventions, common Article 3, which relates to civil wars.  Although the ‘war on terror’ is not a civil war the US Supreme Court has said that these rules in common Article 3 are ‘bedrock’ principles which must be applied. (b) The law of Geneva has already made provision for those who don’t count either as civilians or as Prisoners of War: 1977 Geneva Protocol I, Article 75, covers exactly these cases. Again, the US Supreme Court has drawn attention to the rules in this article. Even though it has never been a party to the 1977 Protocol I, the US government has in the past said it will implement Article 75. However, the present Administration has tried to hide its possible commitments under this Article, and has been reluctant to admit that it is complying with Article 75’s provisions even when it is in fact doing so. (c) Earlier this summer, the decision of a military tribunal at Guantanamo not to proceed with the cases before it because the detainees involved in the cases had not been officially determined to be ‘unlawful combatants’ is evidence of the degree of fury among US military lawyers about the amateurism and incompetence of the Bush administration’s handling of detainee issues. The 1949 Geneva Convention III contains valid procedures for classifying detainees, and the failure to follow this existing rule is what led to the refusal of the tribunal to deal with these Guantanamo cases. Finally (d) the war on terror raises issues where human rights law can useful supplement the provisions of Geneva law. A key issue here is the provision of some kind of review process to ensure that the holding of detainees is justifiable. Human rights law contains some provisions and procedures which may be useful here, without having to embark on the writing of completely new law.


vi. In general, the ‘war on terror’ has been waged without much understanding of history either of terrorism or of the laws of war. The US government has paid too little attention to the avenues open under the existing legal framework of the Geneva Conventions in relation to a wide range of matters, by no means confined to detainee issues. 


Conclusion: even if the law is imperfect, it can be better used if the parties so want.  Some bits of the law of war are clearly outdated (as also are parts of the UN Charter) but now is not the best moment to try to change them through formal negotiation. A common law process of practical implementation combined with evolutionary change may be more effective. The main exception – i.e. an area where formal international agreement might be attainable – is on the possession and use of cluster munitions. Another possible area for further development could be the status and treatment of security detainees.

Questions and Discussion

1. Can a Guantanamo detainee challenge his status? 

Ans: The status of detainees at Guantanamo is reviewed regularly, and many have been released or transferred as a result. This is not the same thing, however, as a detainee have a right of challenge. There certainly ought to be procedures providing for this. This is because in the long history of counter-terrorism it has often happened that individuals have been held on the basis of inadequate or erroneous information. As for Guantanamo, there is evidence that some may have been detained for quite incidental reasons: for example, having been in the wrong place and the wrong time, or having been handed over by a commercial rival. Thus there is a case for a right of appeal, but it is not a simple matter. Since allegations of complicity in terrorism are hard both to prove and to disprove, there are real difficulties in devising a fair and effective procedure for how any challenges to detention might best be determined.


2. How come there was a clear recognition of a category of detainees distinct from both Civilians and Prisoners of War as early as the 1970s? How come the foresight about this? 

Ans: This matter was included in 1977 Protocol I, Article 75, because of wide international concern about the status and treatment of various categories of belligerent in cases of guerrilla warfare (including in the Vietnam War), and also early 1970s terrorism (such as that of the PLO).


3. The occupation of Japan after 1945 avoided the mistake of trying change everything all at once (e.g. the army was kept in place to work on repairing dockyards etc).  Was this not a better approach? 

Ans: Yes, but the post-1945 occupations of Axis countries were stated by the Allies to be outside the existing rules of law because the purpose was to change the whole structure of the society. In Germany and Japan this approach was notably successful.  In accordance with the terms of the UN Charter, Article 107, the UN was not involved in decisions about how these territories should be managed. It might be thought a disturbing precedent that occupations not governed by existing international rules and institutions should have been so successful, but actually, as your question indicates, the occupying powers were far less radical in their approach to restructuring society than the US has been in Iraq. They sought to work with existing forces and institutions, not to recreate a new order from scratch.


4. Is ‘war on terror’ an appropriate term?  Is it not just a matter of dealing with global criminality? Ans: The term ‘war on terror’ has serious faults, and it would have been preferable to adopt a different term, such as ‘international campaign against terrorism’. However, to suggest that the choice is between viewing as a war and viewing it as a problem of criminality may be to over-simplify the problem posed by terrorist campaigns. Terrorism is not simply a criminal problem, since military action is often needed to cope with it (e.g. in Afghanistan) and both its motives and its manifestations are different from ordinary crime.  In discussion it was pointed out that ‘ordinary’ crime is about personal interests, whereas terrorism is for political purposes.  But is not this exactly the point?  The military are often needed to cope with crime (e.g. drugs etc) but by thinking of terrorism as crime helps to preserve the ‘purity’ of the laws of war as something different.  Ans: yes, but it is difficult to maintain two different but overlapping categories.  Training soldiers to observe two or more different sets of rules is very difficult.  In Afghanistan, the Canadians, the Dutch and the British all have separate agreements with the Afghan government about the rules to be observed.  This Babel-like arrangement has arisen partly because of a failure within NATO to work out a clear laws-of-war based set of rules regarding the status and treatment of detainees.


5.  Where do militias who attack UK camps (e.g. in southern Iraq) fit into the picture?  Can we keep to ‘our’ rules no matter what? 

Ans:  Militias are clearly combatants of a kind, but in this case there are two problems that affect their status and how they are viewed. Firstly, they do not necessarily fall into the category of the armed forces of a state, nor that of a national liberation movement. Secondly, their operations may in some cases fail to comply with the laws of war – e.g. because of disguising themselves as, or locating their military assets among, civilians.  The UK forces are involved in a conflict with militia units, and the laws of war do not stand in the way of efficient military combat against an adversary – whether a militia or otherwise. There is a difficulty if an attack on the militias would necessarily involve also civilian casualties: decisions have to be made in such cases drawing on a mixture of legal, moral, military and prudential considerations. It is wrong to see the laws of war as necessarily being an obstacle in such cases. Furthermore, where there is a framework for detaining criminals, e.g. under local law, there is nothing in the Geneva Conventions to stop this.


6.   What about negotiating with ‘terrorists’?  Can some new laws emerge from this? 

Ans: The question of whether there should be negotiations with any terrorist or terrorist-supporting bodies has to be decided on a case-by-case basis. I would agree with those who are doubtful about negotiations with al-Qaeda. There have been many cases of negotiations with terrorists, whether about interim matters such as how warnings of imminent bomb explosions are to be identified, or about a future peace agreement. It is certainly better not to think of terrorists as simply ‘evil’, and the Northern Ireland case shows that negotiating is not always absurd.  We have to think historically here – unlike Blair.


Rev’d AR 10 Aug. 2007