Kenneth Anderson, reviewing three books on POWs in Lawfare. November 28, 2011, http://www.lawfareblog.com/2011/11/prisoners-in-war/
Three Books on Combatants, Civilians, and Prisoners of War:Prisoners in War
Ed. Sibylle Scheipers (Oxford 2010);The Treatment of Combatants and Insurgents under the Law of Armed Conflict
Emily Crawford (Oxford 2010); Civilian or Combatant? A Challenge for the 21st Century Anicee Van Engeland (Oxford 2011).
As historical practice, determining the status of individuals as combatants under the laws of war has not been the center of legal and political controversies. There has always been friction around the legal edges of ‘who is what and on what basis’ – witness the controversies over unprivileged belligerency with respect militias and fighting bands in border regions in the American Civil War. But at the very least, since the rise of mass conscription armies beginning with the Napoleonic Wars and the rise of armies comprised of male citizens in democratizing societies, the focus both political and legal has been upon the substantive treatment of combatants taken prisoner in war.
Coincident with the American Civil War and the international humanitarian law movement with the Red Cross movement at its center, there has been a “continuous increase in the political relevance of prisoners in war” particularly since the emergence of POW camps in the second half of the 19th century. And yet, beginning with the wars of national liberation and de-colonialization following the Second World War, accelerating following the Vietnam War, and finally accelerating again in the counterterrorism wars following 9/11, legal and political focus has shifted to the definitional and boundary questions. Exactly who is covered by these legal regimes for prisoners and detainees in war? Who is a combatant, what are the categories of legal combatancy, and what are the legal categories of person detained in armed conflict?
The three books under brief review here all take up aspects of the definitional questions – intermingled necessarily, of course, with substantive treatment questions. Prisoners in War, edited by Sibylle Scheipers and published as part of a series from Oxford University’s Programme on the Changing Character of War, addresses the evolution of the legal status of “prisoner of war.” It is outstanding. It is an eminently readable volume – one of those rarities among edited works with chapters by a long list of authors – owing in large part to the historical organization of the material, making it roughly traceable across periods in the regulation of armed conflict. The organizing theses are two: the increasing political relevance of POWs in wars of mass mobilization armies, and exclusion of participants in hostilities who do not fit the legal categories of interstate war from the increasingly enhanced protections for lawful POWs.
The final chapters of the book point out that today’s detainees in the post-9/11 war on terror “embody both tendencies, the development of which, however, is by no means a novel phenomenon.” If there is a moment of historical pivot in each of these theses, it is found not in modern times in response to Al Qaeda but in the 19th century, in the publication of the American Civil War’s Lieber Code and the formation of the Red Cross movement and adoption of versions of the Hague Regulations. These developments are taken up by Stephen C. Neff’s fluid and authoritative chapter, which shows the evolution of POW treatment away from the pre-Napoleonic regimes of “redistribution” of captured prisoners to the modern practices of “holding” or “internment.” Redistribution meant one of the three practices: persuasion of the largely mercenary captives to switch sides; exchange; and removal from the conflict through “parole.” Although all of these practices persist long into the 19th century – the Union in the Civil War relied extensively on parole – they declined as combatants became more genuinely attached to their sides and thus more motivated to fight.
As Scheipers points out in her fine introduction, however, internment to the end of hostilities is under considerable pressure in the wars against terrorist groups. The most obvious example is the status of the Guantanamo detainees, but it extends much further to detainees taken in Iraq and Afghanistan in the course of those conflicts. Much of the U.S. policy of finding ways of turning as many detainees over to someone – home countries, local authorities, anyone available – can be seen as a return to much earlier practices of divesting oneself of captives. It is a stretch, but not so much of one, to conceive of today’s repatriation of many Guantanamo detainees as a form of ancient parole – but with the problem not merely of lack of enforcement as such, but a lack of any shared view as to the legitimacy of parole as a practice with its own norms of conduct, and above all an obligation not to return to the fight.
Contemporary practices thus partake of the pre-19th century, insofar as there is today an intense desire not to intern but instead to turn over to someone else, whether a home country or, really, anyone – and to grant what amounts to parole to Saudi Arabia or elsewhere. The motives driving this effort to find alternatives to internment by the state at war – the United States – however, are the same ones that arose in the 19th century onwards, the political salience of prisoners. In the case of Guantanamo, this results in a fervent desire to lessen that salience by sending as many of them as possible elsewhere. Today, as this is written, the Obama administration and the Congress are locked in legislative battle over how and where to deal with detainees; this volume of essays will give one a very good historical idea of why the problem is legally and politically so intractable when the circumstances are deemed, for purposes of detention, non-international armed conflict.
Emily Crawford’s The Treatment of Combatants and Insurgents under the Law of Armed Conflict offers a forceful solution to this otherwise apparently intractable problem. If we finally do away with the distinction between the laws of war in IAC and NIAC, then many, though not all, of the status problems go away and what is left is a unitary process for dealing with those who participate in armed conflict. This volume is a published dissertation, and it does a good job of walking through the ways in which IAC and NIAC rules and standards differ, and the legal evolution of those differences. Crawford correctly points out that there has been a long-run convergence both in military practice and in opinio juris on important substantive rules of treatment–certainly including the regulations governing the US military–as between IAC and NIAC. Much, though not all, of what remains of the difference is stuff particular to the boundary issues, such as whether a prisoner can be prosecuted for insurrection or rebellion or taking up arms as such.
Overall, Crawford takes the view that “humanitarianism” ought to prevail, and on seemingly all these issues, her view seems to endorse the most prisoner-favorable treatment. But this embroils her in a serious methodological weakness, because it leaves her unable to give any real attention to reasons why a state might believe not only that it would, but also should, enforce legal norms of the kind that might very well preclude an amnesty or an agreement to treat bygones as bygones, even when they include taking up arms against the state. If your method of analysis starts from a generalized humanitarianism, it will be hard to take seriously a state’s claims for why it might see itself as both entitled and morally obligated to treat “insurgents” as, well, “rebels.” That is to say, it can be hard to see why a state might insist that it ought to maintain to the distinction between interstate and internal armed conflict.
One possible approach is to maintain the distinction between the two types of conflict for purposes of the boundary and status issues–such as preserving the possibility, as the law today does, of domestic prosecution for rebellion–while agreeing that the substantive rules for each ought to be essentially the same. The idea would be to offer the same basic treatment, while preserving for status and boundary purposes two distinct bodies of law. This is what the convergence of the rules means for militaries such as the U.S.’s. But this does not seem to be what Crawford has in mind when she moves to treat insurgents as no different from interstate combatants on the basis of an all embracing principle of humanitarianism. Crawford seems to have assumed away the most important questions of why a state might think itself entitled to act as the law currently permits. Indeed, her willingness to collapse the distinction between IAC and NIAC does so on grounds far broader than those needed merely to adopt certain parallel rules of substantive treatment and abolishes the distinction between state authority and insurgency. She thereby uses the law jus in bello to make an implicit judgment of equivalence between two such sides in jus ad bellum.
Put in the language of just war ethics, to abolish the distinction between IAC and NIAC is to answer the question of “just authority” by saying that states and insurgents both have equally just authority as a matter of course, at least as measured by the ability to hold insurgents liable for their acts in domestic law. By contrast, one might have thought that states start out with a deep presumption of “just authority,” whereas rebels acquire it only under special conditions. While there are frequently good, prudent, and charitable reasons to support amnesties at the end of civil wars, it is not merely from Hobbesian self-interest that sovereigns insist that they ordinarily have authority that others do not; it is a moral argument traditionally respected by international humanitarian law in its cautious approach to calls for non-liability for insurgents. Not every situation is Libya or Syria; and it is not merely the coarse self-interest of states that provides moral warrant for the presumption of state legitimacy against violent insurrection or rebellion.
If Crawford uses sweeping assumptions about the principle of humanitarianism in jus in bello to rewrite important principles of jus ad bellum concerning states and insurgents, Anicee van Engeland’s Civilian or Combatant? A Challenge for the 21st Century goes all-in for the principle of generalized humanitarianism. This is a pity, frankly, because the polemical and conclusory writing of this book obscures much of its useful discussion of the negotiations and diplomacy that surrounded the adoption of the 1977 Additional Protocols. But the book’s conclusion is nothing if not categorical:
“In humanitarian law there are no good sides or bad sides, no political agenda, and no higher good; the sole purpose is to protect civilians and even combatants from the foolishness of war.”
It is true that within international humanitarian law, there are no good sides or bad sides. But that is not because there are never, in principle, good or bad sides. The IHL enterprise partakes deliberately of a suspension of public judgment as to sides, causes, and reasons for fighting, for the highly specific and frankly morally limited purpose of humanitarian relief in the immediate moment. But that’s where the truth of this statement ends. For one thing, the declaration of “no political agenda” is belied by her closing phrase–“the foolishness of war”–which is a political judgment that war is “foolishness.” That is morally only sometimes true–and sometimes it is not true at all. More broadly, it is a fantastic conceit and egoism of the humanitarian community that its value of humanitarianism is somehow “higher” than any other, including the value that one side might have against the other in a conflict; just cause still matters. Oftentimes wars have no sense, no justice on any side; but oftentimes they do. Impartiality is not a higher value than partiality in a just cause; this is a moral foundation lost to van Engeland’s assumption of the superior virtue of impartial humanitarianism.
Van Engeland is unfortunately not alone in this. The humanitarian community has operated for decades now mostly from the assumption that its angelic stance of studied neutrality is the highest and most admirable moral position to assume with respect to armed conflict. It is not. We are not better off in a world in which everyone wants to be the ICRC and no one wants to be Churchill. Indeed, all things being equal (i.e., when you are not the ICRC and so overriding activities of humanitarian relief are not at issue), deliberate refusal to make judgments about the rights and wrongs, or wrongs and wrongs, of armed conflict is flight from moral responsibility, not recourse to a higher value.
The utilitarian imperative of delivery of aid indeed requires and justifies a suspension of public judgment as to rights and wrongs in war–even as to things about which we might think it ordinarily both a right and even a duty to make private, and public, judgment. Humanitarianism’s refusal to judge is morally justified by humanitarian imperatives. Nonetheless, as a form of judgment, it must finally be reckoned an impoverished ethic.
(Slightly edited for style and clarity.)