Introduction: Targeting in an Asymmetrical World

This is the introduction to a collection of articles to be published in the Valparaiso University Law Review. The articles address the challenges presented by non-traditional warfare and non-traditional combatants in the contexts of the War on Terror and the trend toward multilateral and humanitarian interventions. Two of the contributions, those of Jonathan Hafetz and David Frakt, detail the hybrid model, part criminal law, part law of war, that the United States developed for addressing the status of detainees in the War on Terror. Two of the contributions, those of Rachel VanLandingham and Iain Pedden, propose international models for addressing the challenges of the new warfare, while Laurie Blank advocates a new focus on enforcement at both the national and international levels to address violations of the principle of distinction. Read together, the articles in this collection present a convincing argument that the United States needs to work with other states and international organizations to forge international solutions to the international problems posed by the new warfare. Thomas Friedman has recently observed that “the world is flat”— that is, as far as global economic competition is concerned—the playing field is increasingly level.1 This is not the case in the realm of warfare. On the contrary, as armed conflict increasingly involves non-state actors opposed to state actors, or intervention in failed states by coalitions that draw on the capabilities of the major military powers, the disparity in military power and technology among the parties to armed conflict has ∗ Professor, Valparaiso University School of Law. 1 THOMAS FRIEDMAN, THE WORLD IS FLAT: A BRIEF HISTORY OF THE TWENTY-FIRST CENTURY 46–47 (2005). Telman: Introduction: Targeting in an Asymmetrical World Produced by The Berkeley Electronic Press, 2012 698 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 increased markedly.2 Unable to beat state militaries at their own game, non-state actors and the armed forces of weak states resort to tactics that skirt or distort the laws of armed conflict, and as they do so, states struggle to respond in a manner that is both militarily effective and consistent with the Law of Armed Conflict (“LOAC”). The result is a blurring of the distinction at the center of LOAC between combatants and non-combatants.3 In asymmetrical warfare, every targeting decision is fraught with uncertainties because the lines separating those who lawfully may be targeted from those who may not have grown ambiguous. This Issue offers various proposals to address the increasing challenge of targeting in the context of asymmetrical warfare. Taken together, the contributions to this Issue suggest that states, confronted with threats to their armed forces and to civilians from non-conventional forces, have improvised, creating ad hoc legal regimes to address the challenges of what one of our contributors has called the “new warfare,” in which armed conflict “now takes place everywhere—in cities, refugee camps and other historically non-military areas” rather than on traditional battlefields.4 Part I of this Introduction lays out the framework created by the Geneva Conventions (“the Conventions”)5 and their Additional Protocols (“AP I” and “AP II” respectively)6 within which targeting decisions are made. It also addresses the recent efforts by the International Committee of the Red Cross (“ICRC”) to provide 2 See Michael N. Schmitt, Asymmetrical Warfare and International Humanitarian Law, 62 A.F. L. REV. 1, 3–7 (2008) (describing the various asymmetries relevant to contemporary warfare). 3 See GARY D. SOLIS, THE LAW OF ARMED CONFLICT, INTERNATIONAL HUMANITARIAN LAW IN WAR 251 (2010) (calling distinction “the most significant battlement concept a combatant must observe”). 4 Laurie Blank & Amos Guiora, Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare, 1 HARV. NAT’L SEC. J. 45, 45 (2010). 5 See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 2, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the Treatment of Prisoners of War, art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]. 6 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II]. Valparaiso University Law Review, Vol. 46, No. 3 [2012], Art. 1 http://scholar.valpo.edu/vulr/vol46/iss3/1 2012] Introduction 699 guidelines for state actors confronting non-combatants who directly participate in hostilities. In Part II, this Introduction summarizes two contributions to this Issue that highlight ways in which the United States has primarily relied on domestic mechanisms in attempting to devise strategies that can address the problems that have arisen in asymmetrical conflicts—such as those in Iraq and Afghanistan. Finally, in Part III, the Introduction summarizes three contributions to this Issue that propose ways forward through transnational mechanisms that will enable states to address the challenges of the new warfare without violating LOAC principles or compromising national security. Read together, the contributions to this Issue present a convincing argument that the United States needs to work with other states and international organizations to forge international solutions to the international problems posed by the