IHL huge success?

According to a 2007 BBC Article, the establishment of the Geneva Conventions and Additional Protocols have been a huge success in establishing and sustaining a distinction between civilians and combatants during conflict. However, I would have to argue that I do not agree. I think that it is overly optimistic of Imogen Foulkes, the author, to claim that IHL has established a norm in which civilians are not targeted by fighters. Especially as recent estimates of Iraqi civilian causalities are extremely high in comparison to US troop causalities. If the US was making a sustained effort to distinguish between Iraqi fighters and innocent civilians, then the estimates should not be as high. Also, the US is experiencing increasing pressure at home to resolve the current problem, which means that it may use increasingly harsh means to achieve its 'victory.' (Downes, 2006; and Valentino et al, 2006). If the norm of identifying yourself as a combatant was as strong as this article believes, the fighters in Iraqi would distinguish themselves from the civilian population, however, they do not. I also think that the violation of IHL is increasing as a result of US open deviance from the IHL regime as per my previous post. Also, in terms of internal conflicts, state's claim that their sovereignty is dominant and international norms and regulations are secondary to national security needs.

I do not understand how different standards can apply to internal and international conflict. Also, how is the IHL regime going to adapt to the changing nature of war and conflict? As non-state actors increasingly play a role, but do no adhere to the regime, what will happen to the regime?

Combining Two: Brazen Disregard and the Martens Clause

On page 135, Byers writes,

Previous administrations at least paid lip-service to the existence of normative constraints by concealing and denying their covert operations. The Bush Administration… lets the mask slip, to the discredit of the nation and… at the peril of the soldiers whom so many of the rules are designed to protect.

Open violation by the world’s unipolar power (Layne, 2006) of the customary norms, rules of war and IHL that structure the international system precipitates a general downward trend in respecting the individual and potential increase of anarchy in battle. It is realized that a different Administration may bring back the importance of the Geneva Conventions, but undoing the damage may take some time.

Historically, a hegemon supports a regime as it sees the big picture strategy, which is in its best interest, and is willing to take the ‘negatives’ to maintain that regime (Kindleberger 1951, and Krasner, 1976). It is commonly believed that protecting human rights at the domestic and international level is important and in accordance with American values. This is demonstrated by the aid distributed by the US government to countries to facilitate thgovernment reforms to enhance democracy. The American nation was founded on the principles of civil liberties and restricting state invasive interference in the lives of people. However, Bush indicates that national security is more important than respecting the foundations of the nation he is currently leading. Despite historical evidence, which indicates Americans are more focused on domestic than foreign affairs, and want to safe guard their rights over national security issues (Jordan et al, 1999), Bush seems to disregard the norms of the US. Even if Bush and his Administration openly disregard the Geneva Conventions and IHL, he should at least abide by the Martens Clause which states if the rules of war can not be agreed upon, the state should follow its own national laws as per below:

in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public. [emphasis added by me] [Hague Conventions of 1899 and 1907].

The US government of the time ratified the treaty. In cases of disagree, this Clause permits a return to national laws and security, which is interesting as the US Constitution in the Judicial section, note not Executive, it states:

Article 3 - The Judicial Branch: Section 3 - Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

This indicates that if a person commits acts of treason (attacking or going to war on the US government) then the Judicial Branch of the government has the right and authority to deal with that person. I do not understand how Bush thinks he has the authority to bypass the founding fathers of this nation, which as a result damages the prospects that American soldiers or civilians caught in a conflict will be treated with the norms of IHL.

As a result of this open disregard of IHL and the basic principles of the US norms, Bush is indicating the soldiers are no longer valuable once they are captured or detained by ‘enemy combatants.’ I highly doubt the American people would agree that their individual rights and the protection of their armed forces are secondary issues in the realm of global norms. If Bush and his Administration were truly concerned about ‘national security’ in this GWOT, then he would allot greater funding to the surveillance of ports and other infrastructure of the state. However, Bush is currently fear-mongering by seeking an ‘easy’ and unethical way through his declared GWOT. In his belief of American preponderant position in the political, economic, and military spheres of the globe he forgets that for every action there is a reaction. Terrorists and other actors may increasingly have justification for ignoring or leaving the IHL regime because the US has openly left.

Apparently I have a very negative view of the prospects of IHL if the hegemon of the system openly violates and indicates it does not support the regime, indicating that the regime will begin to crack and crumble.

Johnson's Noncombatants

In Johnson's Mortality and Contemporary Warfare, Chapter 4, he discusses the issue of the possible justifications and (im)morality in attacking noncombatants.

However, upon reading the section about the nondiscriminatory attacks on Tutsi and Hutu refugees, what appears to be severely lacking is a focus on the Hutu fighters usig Hutu refugees as shields. On page 140, the first full paragraph, Johnson alludes to the Hutu fighters using human shields as protection, but focuses more on the immoral nature of the Tutsis killing the Hutu refugees after it was realized that the Hutu fighters were using human shields. However, this mentioning is minimal and not specific. There is greater discussion about the wrongs done by the Tutsi fighters. However, to me the Hutu fighters have the greater blame, if such a word can be utilized, as they introduced the noncombatants into the conflict. Upon not being able to distinguish between combatants and noncombatants, the Tutsi fighters became non-discriminant in their targeting.

Please correct me if I am wrong.

Interplay of norms: Democracy and Protecting State Sovereignty

A norm is 'collective expectations of the appropriate behavior of an actor with a particular identity.' (as per our class discussion)

BBC News published an article today, 'West 'embraces sham democracies', in which it is stated 'HRW said Pakistan, Thailand, Bahrain, Jordan, Nigeria, Kenya and Russia had been falsely claiming to be democratic.' This article also cites HRM as accusing the US and EU member states of accepting less than democratic regimes.

This report brings to light the interplay between two primary norms that are fighting for supremacy: democracy and state sovereignty, in the international system. These two concepts are primary elements that structure the international regime (as defined by Krasner, 1983) of politics, economics, and law. However, these two norms may restrict state behavior in the international system. Democracy (political openness) has become the expected regime type (Simmons et al, 2006) and as "[Vaughan] Lowe points out, state responsibility is a fundamental, primary norm, on which other norms are built.' (Percy, 2007).

First, democracy.
The USA and EU member states 'push' for democracy and NGOs such as Freedom House and the Center for International Development and Conflict Management rank states according to their compliance with the norm of a 'democratic' regime. There is 'Western' condemnation of a state that denies its citizens democratic freedoms. However, if a state holds questionable elections or denies elections or is clearly not pursuing a democratic regime, aside from tailored criticism, not much is done by other states to enforce democratic practices (other than withholding financial aid). The pursuit of a democratic regime, I think can be labeled as a regulative and constitutive norm, if that is possible. I think democracy is a regulatory norm because sometimes aide is withheld from a state by another state or an IO unless it implements greater democratic reforms. This can be seen in application of the Washington Consensus implement by the IMF and World Bank. Those states that do not comply are made to justify why they are not complying and then reform themselves. However, this weak, voluntary form of compliance does not have universal support and only functions in those countries that agree to the terms of the IO loans. There are also other states that in times of financial crisis seek their own path to stability, ignoring international pressures to conform.

Second, state sovereignty.
As the state structure is the norm by which the international system is structured, maintaining this norm is essential even if the dominant states of the system do not agree with the regime type of a weaker state. International laws and IHL are structured on the state structure. Both regimes expect/rely on the state to enforce the norms that develop. However, states adapt and utilize international laws and IHL to their own advantage as and when necessary. For example, the US's continued usage of Guantanamo Bay, usage of 'secret' prisons in less than democratic states, and reported violations of Iraqi civilian right by US soldiers/PMFs - are all explained in terms of securing and protecting state sovereignty (national security). State is a norm based on the constitutive nature of a norms as the state is often used to identified a group.

State sovereignty is enshrined as the key norm which international law seeks to ensure regardless of regime type and strength. However, it appears that a state's sovereignty is strengthened by its ability to put into place democratic practices. For a state to increase its legitimacy within the international system it has to implement greater political reforms that lead to democracy. States may choose to open or not to open. If a state chooses not to create a democratic regime, it is exercising its sovereignty. However, capital flows and international trade may be effected forcing the state to chose to follow the norm of democracy over protecting its sovereign self-interest of retaining corrupt or more authoritarian regimes. As per HRW claims in the article, democratic states are accepting less then democratic regimes in non-democratic states enable to secure the norm based system based on states.

• Feedback will be appreciated as I feel that my thoughts are jumbled and not pulled together into a coherent argument/fashion.
• Do you see an interplay between state sovereignty and democracy?

Humanitarian Worldview

Martha Finnemore (1999) notes that the 'humanitarian worldview asserts that individuals have status and worth independent of their relationship to states.' (152) This is true, but then what entity will protect the individual? The 'liberal' views of democracy and the market are based on the the idea of the individual. Is this dominant form of individualism different in times of war? This quote makes me think of Karl Polanyi (1944) and his view that the market is embedded in the social structures of the state, without this embeddedness social disintegration would occur. If the humanitarian worldview separates the individual from the state, who is to protect the individual? Currently there is not really an IGO or NGO strong enough to override a state.
Sarah Percy (2007) notes that one of the reasons anti-mercenary laws and other weak laws exist is that the legal language may at times be too precise: "[Vaughan] Lowe points out, state responsibility is a fundamental, primary norm, on which other norms are built. Tinkering with state responsibility for the sake of creating law on mercenaries would have disrupted the entire system of international law." (386) In some ways this quote strengthens my concern or discomfort with the quote from Finnemore. Yes the individual's rights should be respected, however, in states suffering from conflict, what mechanism should be put into place other than state structures to protect the individual? Finnemore does not present an alternative, she just notes the humanitarian worldview.

Movie: Three Kings...norms v laws; self interest v rules of law.

Three Kings:

Watch the film for evidence of "norms" at work. To what extent is the behavior of the actors interest-based versus rule-based? How do you know the difference? Explain in the context of the supplementary readings.

IHL is frequently inhibited by the more powerful norm of state sovereignty. States do not want their internal affairs affected by an outside force and strive to protect their sovereignty through customary and international law. This nexus between IHL and intervention is depicted in the movie Three Kings. In this film, the US and allies have just signed a ceasefire with Iraq ‘concluding’ the Gulf War. However, in this film, this treaty creates a space where the interplay between the established rules of war and the self-interest of specific US soldiers interact.

It is assumed that the US military is highly organized and ethical (despite the recent events of Abu Ghraib). However, in this film, the self-interests of four US soldiers enable them to utilize a ceasefire to pursue ‘looting.’ Upon finding a ‘butt map,’ the soldiers do not report to their superiors as per the established chain of command as they believe they will be able to gain financially (and illegally). The US soldiers believe that because the ceasefire has been signed they can go into Iraqi territory and do just about whatever they want as long as they do not engage the ‘enemy’ (Iraqi troops) or interfere with the domestic population. During the course of the film, only one Iraqi commander attempts to stop the US soldiers, which provokes hostilities and shots being fired. As long as the US soldiers did not see any human rights violations, they were prepared to break rules in order to pursue self interested financial gain. However, once they witness the severe human rights violations, the soldiers break the rules of the treaty, the norms of non-interference, and attempt to protect the villagers and their financial interest through thievery.

What is interesting while watching the film, is that as long as the US troops did not interfere with the domestic affairs of Iraq, the Iraqis were prepared to ignore the rule breaking of the US soldiers. Ward Thomas writes that ‘state actors are more likely to be governed by the norm (than international law)’ (43). However, even though government policy is not to interfere in the domestic affairs of a state, the soldiers, once they were aware of the human rights violations were unable to comply with non-interference in domestic affairs. Also despite the stronger affect of norms on state actors, the soldiers (ranging from highly trained and organized to uneducated) did not follow rules of the ceasefire once noncombatants were targeted.

Also, at the end of the film, when the Iraqi refugees were almost across the border, and the rule following US soldiers finally found the four ‘looting’ soldiers, the aim became primarily to arrest the rule breaking soldiers, without regard for the safety and welfare of the Iraqi refuges. However, like the rule breaking soldiers, once the issue of gold bullion was mentioned, the gold became a bartering chip for the lives of the Iraqi refugees. The self-interest of the soldiers enforced the breaking of the norm that prohibited interference in domestic affairs. The self interest, rule following, interpretation of the rule, or the selflessness of the soldier affects the on the ground actions, while governments far removed make decisions according to norms and international law.

One Young Hero Versus the Mighty Military (Rubbish)

In respond to Bobbie Morgan’s ‘One Young Hero Versus the Mighty Military,’ (26 January 2006).

The article link above does not present a logical argument as it is emotionally based and does not take into the laws and norms of war. Bobbie Morgan uses the term ‘Just War Theory’ to avidly support Lt. Watada’s declaration that he would not fight in Iraq as it was an illegal war.

Briefly and simply, Just War Theory is primarily broken into two parts: jus ad bellum and jus in bello. According to jus ad bellum, it is a government that wages war, not individuals; and jus in bello drives the fair treatment of noncombatants in a war through international monitoring of the actions of the combatant government policies and individual soldiers’ actions.

What Morgan does not acknowledge is that legally, the soldier does not have the ‘right’ to deny his deployment. Lt. Watada believes that the Iraq war is illegal, however, it is the government, his employer, not the individual soldier that decides if a country will go to war. It is up to the state to justify its declaration of war to the international community. Soldiers can decide their individual behavior during war, such as restricting excessive force and fair treatment of the noncombatants. For example, if Lt. Watada had seen Abu Ghraib human rights violations, and had spoken out against his peers, then he would be justified according to the principles of jus in bello for speaking out. However, Lt. Watada freely signed up to the US military, which meant that he agreed to the job of being a US soldier, which means carrying out assigned missions. There have been and will continue to be many military people that do not want to be deployed on missions. However, it is their job. If this man wanted to retain his decision making abilities about whether the US was making accurate decisions about jus ad bellum he should have become a politician, not a soldier.

The military is an organization structured on a hierarchical structure with the decision making at the top of the pyramid, the President. A military would not be able to function if it allowed its soldiers to declare that they thought the military's actions were illegal.