It's time to rewrite the rewrite the laws of war.
That's the provacative position taken by Defense Tech pal Phil Carter in Slate today. He reviews two new reports on the conflict in Iraq, which reveal just how confused U.S. commanders were in treating prisoners there. Phil writes:
Should the 20th-century laws of war change to reflect 21st-century methods of war? [The laws] posed tangible problems for commanders on the ground in Iraq, faced with the need to gather intelligence about insurgents who were killing their soldiers. In some cases, commanders appear to have decided that the ends justified the means that military necessity justified the use of potentially unlawful detention and interrogation practices.
It's easy to condemn such choices as inhumane and immoral from the relative safety of New York City or Los Angeles. And we should condemn barbaric abuses like those depicted in the photographs from Abu Ghraib. But doing so does little to address the practical problems faced by our soldiers in Iraq and Afghanistan, where issues arise every day that don't fit neatly into either our moral or legal paradigms. The modern laws of war, consisting of the four Geneva Conventions, were written in 1949 to apply to state-on-state conflicts that would look like World War II. Since World War II, our nation has fought two conventional wars (Korea and Desert Storm) and a long list of unconventional or ambiguous wars. The laws of war don't apply so cleanly to places like Somalia, Kosovo, Afghanistan, and Iraq. Our enemies, like al-Qaida and the Iraqi insurgents, have adapted to overwhelming U.S. battlefield superiority by adopting unconventional tactics that generally break international law.
And the laws of war don't give our field commanders a good way to respond to this unconventional threat while still staying within bounds themselves. The central challenge of counterinsurgency is the proper calibration of force: Too much will alienate the population; too little will allow an insurgency to survive. Good intelligence enables commanders to find the right level of force, but such intelligence is very difficult to get in Iraq, because of our enemies' zeal and the cultural barriers that prevent us from understanding family and tribal networks.
A better legal framework is needed to help commanders in these kinds of ambiguous situations, one that gives commanders the flexibility on the ground to do what has to be done while not stepping on our values in the process.
