â€” Nick Sutton (@suttonnick) September 7, 2015
The world of warfare has changed and its rules need to catch up
My wife and I were recently watching the excellent More4 drama series Saboteurs, about the Nazi effort to build an atomic bomb and the Allied operations to stop them, principally by putting the Norwegian factory producing the heavy water needed for the atomic reactor out of action. At one point, the Norwegian commandos take off their winter white camouflages before beginning their assault into the factory wearing their regular fatigues â€“ something my wife commented was a bit of a strange thing to do. And on one level it was: the uniforms were much more obvious to the German guards (or should have been). On the other hand, their action was in line with a very old tradition of war: that soldiers can be readily identified by their enemies and distinguished from civilians.
So what, you might ask. The point is to illustrate the revolution thatâ€™s taken place over the last seventy years in the nature of the kind of wars fought, and particularly fought by Western powers. Which is a problem because the rules of war â€“ largely written by Western powers â€“ are designed to regulate the sort of conflicts which are now very rarely fought and are not designed for the sort of conflicts which are: intervening in civil wars or failed states and fighting groups which exist in a legal twilight zone; armies without states (or at least, without a widely-recognised state).
Which is where the deaths of two British jihadists in Syria, at the hands of an RAF drone, comes in. Britain is not at war with Syria, nor in targeting ISIL operatives is it acting under a UN mandate. There may well have been evidence to connect the two to a terrorist plot against Britain but even if so, does that justify their immediate deaths? Does it make a difference that they were fighting in a civil war zone? Indeed, what was their status in Syria? What rights and responsibilities does the government have in protecting its law-abiding citizens? For that matter, under the HRA, what responsibilities does it have to its law-breaking jihadist ones in Syria or elsewhere? How do you even â€˜go to warâ€™ against any entity other than a state never mind something as amorphous as ISIL?
These questions, and many others like them, lie at the heart of the problem of trying to provide a legal basis for governments to intervene in civil wars and failed states, and against non-governmental armies, militias or terrorist organisations. Not the least of the problems is in regulating when countries can intervene. At what point do security or humanitarian concerns override the sovereignty of the state in question?
What is really needed is a greatly updated Geneva Convention, to regulate and provide the mechanisms for legitimising the actions of states intervening in these situations. This is diplomatically difficult stuff because to do that confers a legitimacy on the non-state parties, and hence gives rights not simply to treatment but to recognition as something close to an equal. Many would understandably baulk at the notion that terrorists should be considered a legal entity, never mind a proto-state (that some terrorists have been successful in transforming themselves in to proto- then fully-fledged states will increase rather than diminish that reticence). Itâ€™s also asymmetric: the parties to a new Convention would have obligations to their enemies that the organisations theyâ€™re fighting against in many cases not themselves honour.
Yet the alternative is the kind of legal quagmire that now exists, where rules are made up on the hoof on the basis of what seems appropriate at the time. Public opinion might accept that but human rights groups â€“ and potentially the courts â€“ will not. A drone strike against a jihadist fighting for ISIL and planning attacks against the UK may well be justified, even when in another country, but what hoops should be jumped through first to be sure? And how do you extrapolate from that specific example to create a framework for the general case?
Put simply, how can the international community come up with a set of rules that allows states to lawfully and effectively protect their populations against external threats, and to protect vulnerable and innocent civilians in countries afflicted by conflict, while simultaneously not giving the green light to states to use those same rules to oppressive ends?
Finding an answer to that question will be no simple task but in Human Rights legislation makes it essential all the same. In the first place, and in the absence of an international agreement, parliament needs to pass domestic legislation to do the same job.