24 Jan 2010

“Proportionality in Modern Asymmetrical Wars”

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I would give the following paper by Amichai Cohen, International Law professor at Ono Academic College, Israel, a gentlemanly C.

Excerpt

Armed conflicts of this type have sometimes been termed “asymmetrical” –- an adjective used principally with reference to the fact that the protagonists are a state, with all its might and force, and an organization with few heavy arms and a limited number of fighters. But such conflicts are also asymmetrical in a more complicated sense: they are fought between a state, in possession of sound reasons for following the laws of armed conflicts (LOAC) or international humanitarian law (IHL), and a high incentive and organizational obligation to do so, on the one hand, and on the other hand, an organization that almost never follows these rules and has very little incentive to do so.

States involved in these conflicts mostly attempt to follow, or are expected by the international community to follow, IHL as detailed in customary international law, in the Geneva Conventions, and in other sources of applicable international law. However, it has become increasingly difficult to abide by these laws, mainly because of the novel nature of the problems that constantly arise. This brief review will only deal with two of the most prominent of such problems:

    The first is how to apply the rule forbidding indiscriminate attacks on a civilian population when the enemy deliberately operates from within that environment. Direct attacks against civilians are of course always forbidden. However, what are
    the appropriate norms that a state should apply when the only possible way of fighting the enemy involves risking the lives of civilians whom the enemy is using for its own protection?

    A second problem arises from the fact that non-state actors are not susceptible to the range of formal and informal sanction which may be used against states. Since international law is not policed effectively, non-state actors may readily assume
    that their violations of the laws of war, including those mentioned above, will not be punished by law. For example, they may target civilians of the state actor in the knowledge that there exists very small chance that they will be punished for
    doing so by any international judicial body. Consequently, while one side to the conflict behaves in accordance with IHL, the other considers itself to be free of the limitations imposed by these rules.

Read the whole thing.

My criticism is that, although Professor Cohen does a workmanlike academic job of dividing alternative perspectives into models, his fundamental approach is fundamentally far too abstract, unempiric, and ahistoric.

Restricting consideration of the practical responses to terrorism, guerrilla warfare, and violations of the laws and customs of war to a small number of very recent, poorly handled examples which occurred under the leadership of democratic governments, which obviously failed satisfactorily to implement or articulate clear policies, was a fundamental mistake.

The world did not suddenly spring into existence in 1993. “Assymetrical warfare” and the cynical exploitation of the chivalrous instincts and humanitarian values of honorable and civilized armies by outlaws and barbarians has always been part of the human experience. Military commanders from Classical Antiquity down to WWII frequently dealt with decisive effect with the same problems without scandalizing posterity by cruelty and excesses.

Professor Cohen is too satisfied with the classification of perspectives into “models,” and too cautious and timid about identifying explicitly the major and important role played in the fraudulent framing of the issue as presented to the public by dishonest and ideologically biased humanitarian organizations and the media.

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