Terrorism and the Laws of War

Do the laws of war apply to the US-led "war on terror"? There are several positions. (1) The laws of war do apply and to the same extent that they apply in regular wars. (2) The laws of war do not apply; the US military has a free hand. (3) The laws of war apply but in modified form.1 This disagreement matters because the laws of war, if they do apply, could interfere with current US policy. If position (1) is correct, and a captured al Qaeda suspect is considered a prisoner of war ("POW"), he has the right to receive humane treatment, to have contact with humanitarian organizations, and to have various procedural protections in case he is tried for war crimes.2 At the end of the "war," he must be repatriated. All or many of these consequences conflict with current US policy.3 Some people take position (2). They argue that because the "war on terror" is a special kind of war, the ordinary laws of war-which were designed for regular interstate wars, not wars against terrorist organizations-have no or limited relevance.4 On this view, US authorities can treat al Qaeda suspects however they want, subject only to the minimal constraints in general human rights treaties. I will argue for a position somewhere between (2) and (3). The laws of war might sensibly be applied to conflicts between states and international terrorist organizations, though most likely in a highly modified form. Currently, there is no reason to think they should be applied to the conflict with al Qaeda, but this may change with time. My argument has three steps. First, I discuss the purposes of the laws of war, and argue that humanitarian considerations provide only an ambiguous rationale for limiting the weapons and tactics of warfare. Second, I discuss why some weapons and tactics are outlawed while others are not, and argue that humanitarian ideals cannot, by themselves, explain the pattern. The best explanation focuses on the enforceability of laws. I identify two conditions under which belligerents would agree on a law of war, and would be willing to comply with their agreement. The symmetry condition requires that the laws of war generate military advantages for neither belligerent. The reciprocity condition requires that each belligerent have the ability to retaliate when the other belligerent violates the laws of war. Third, I discuss the extent to which these conditions apply to the war on terror. I argue that at present they do not apply at all, but they have applied in other conflicts between governments and international terrorist organizations and could apply to the conflict between the US and al Qaeda in the future. At the outset, I should make clear that my focus is on the law, and not other considerations that might influence tactics used against enemy states or terrorist organizations. My question is whether the laws of war provide nations with a reason for curtailing strategies and tactics. I do not address the question whether independent moral or pragmatic reasons exist for behaving in ways that are not controlled by international law. For example, one might think that the US has good moral or pragmatic reasons for treating captured al Qaeda members humanely even if one concludes that it is not constrained to do so by the laws of war. I. THE PURPOSE OF THE LAWS OF WAR Laws of war have existed since ancient times. The Greeks recognized a rule prohibiting armies from pursuing defeated enemy armies. Soldiers in the Middle Ages granted quarter to enemy soldiers who threw down their weapons. Laws of war were, until recently, not formally codified in treaties or conventions, but had evolved as custom. By the end of the nineteenth century, the major states agreed that the laws of war that were then recognized ought to be more clearly specified in treaty instruments. Conventions were called in The Hague, and then in Geneva; these conventions yielded, at intervals, instruments that together record the modern laws of war. …