Monday, February 27, 2017

Do Wars Against Terrorist Groups Last Forever ? When Does War End?

When do we declare a war over?  For traditional state versus state armed conflicts, this is usually a simple question,  There is usually a cease fire or a peace treaty.  We watch the signing ceremony and declare the war over.

For the kinds of armed conflict we have engaged in more recently against non-state actors, the end of war is a more date to determine  We are unlikely to see a signing ceremony involving ISIS or al Quida.  Indeed, we may never even see a formal agreement with the Taliban.  Success in an armed conflict with non-State actors is more likely to be reflected in reducing that actor's ability to cause us harm, and not any formal agreement.

The issue of when war ends is an important one.  In wartime, we can target enemy combatants with lethal force. In peacetime that is murder.  In wartime, we can detain the enemy with no trial as prisoners of war.  In peacetime, they must be released.

The Harvard Law School Program on International Law and Armed Conflict has just issued a Report that attempts to address the question of when war ends.  As the authors of the Report explain in a Lawfare post international law as it now stands is inadequate:

[I]nternational law, as it now stands, provides insufficient guidance to ascertain the end of many armed conflicts as a factual matter (when has the war ended?), as a normative matter (when should the war end?), and as a legal matter (when does the international-legal framework of armed conflict cease to apply in relation to the war?). The current plurality of legal concepts of armed conflict, the sparsity of international humanitarian law (IHL) provisions that instruct the end of application, and the inconsistency among such provisions (sometimes, even within a single legal instrument) thwart uniform regulation and frustrate the formulation of a comprehensive notion of when wars can, should, and do end.
The Obama Administration took the position that armed conflict still existed when the capacity of a terrorist organization to launch a strategic strike against the U.S. was coupled by the will to do so, and assessed that under this standard, we are still engaged in war with al Quida.  The Harvard Report suggests four other approaches to the issue:
In light of the sparsity of legal doctrine in this particular area, we put forward, drawing from existing international law and scholarship, four theories on when a NIAC ends and when the international-legal framework of armed conflict ceases to apply in relation to it:
  • The two-way-ratchet theory (as soon as one of the constituent elements of the NIAC—sufficiently intense hostilities or sufficient organization of the non-state armed group—ceases to exist);
  • The no-more-combat-measures theory (upon the general close of military operations as characterized by the cessation of actions of the armed forces with a view to combat);
  • The no-reasonable-risk-of-resumption theory (where there is no reasonable risk of hostilities resuming); and
  • The state-of-war-throwback theory (upon the achievement of a peaceful settlement between the formerly-warring parties).
Under some of these theories, the Obama Administration’s position on the continuation of an armed conflict with terrorist organizations holds; on others, it fails. What approach the Trump Administration might take remains to be seen.
This is a report that should be taken seriously.  The lead author is Gabriella Blum, the Rita Hauser Professor of Human Rights and Humanitarian Law.  Unlike many academics in this field, she has actually given legal advice on Law of Armed Conflict issues to military leaders.  Before joining the Harvard Faculty, she served for seven years as a Senior Legal Advisor in the International Law Department of the Military Advocate General’s Corps in the Israel Defense Forces, and for another year, as a Strategy Advisor to the Israeli National Security Council.

The Obama Administrations' discussion of the problem can be found here.You can find the entire Harvard Report here.  A good summary on Lawfare is here.

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