Protective Parity and the Laws of War

Abstract

Traditionally, protective schemes in the law of war are tightly coupled to rigid status categories. The contours of these status categories (and the content of corresponding protective schemes) reflect the dual normative commitments of this body of law: military necessity and humanitarianism. Formal protection varies along a number of axes (including combatant status, nationality, territory, and the character of the conflict) because it is thought that these factors roughly track the vulnerability of and the security challenges posed by specific status groups. In early law of war treaties, specific status categories are defined in terms that encourage protection-seeking states (and at times individuals) to orient their behavior in ways that promote the objectives of humanitarian law. Protection, in these treaties, is a carrot for rule-regarding behavior - harsh, summary treatment at the hands of the enemy, the stick. Such an approach, by design, includes coverage gaps.

Beginning with the 1949 Geneva Conventions, this understanding of status has been in decline. Over the last half century, protective schemes have converged and coverage gaps have closed. From the human rights perspective, these developments are all to the good. The humanization of humanitarian law reflects the progressive trajectory of international law in which universal human rights trump parochial state interests. From the traditionalist perspective, the law of war has lost its compass. Protection of unlawful combatants (1) undermines the humanitarian ambitions of the law of war by compromising the protection of innocent civilians; and (2) undermines political and institutional support for the law of war by imposing on states obligations that are inconsistent with various security imperatives. Both views are flawed. Protection should, contra the human rights view, accommodate the realities of the battlefield. On the other hand, humane treatment of the enemy, irrespective of pre-capture conduct, furthers the military objectives of the capturing state.

My argument is that humanitarian protection in time of war should not vary by detainee status category - what I will call protective parity. The paper has a descriptive and a prescriptive dimension. Through an analysis of the legal situation of unlawful combatants, I illustrate that (1) protective schemes are converging; and (2) although the protective significance of POW status is declining, there are some persistent gaps in coverage. The unique protective significance of POW status (and the claims that justify this extra increment of protection) suggests that POWs are systematically over-protected (even if only to a modest extent) and unlawful combatants are systematically under-protected. To make this case, I offer a cluster of offensive claims and one defensive claim. On the offensive side, I argue that various claims for expanding or contracting humanitarian protection do not track status categories. In this way, the claims that undergird these ostensibly competing schools of thought support protective parity. Consider the following related points. If protective schemes compromise legitimate security interests (think of the policy arguments advanced by the United States to justify its treatment of the detainees in Cuba), then some status categories (e.g., POWs) are systematically over-protected. That is, these security-based claims, if valid, would apply irrespective of whether the detainees were properly classified as POWs or not. If humane treatment of the enemy increases battlefield effectiveness (because poor treatment discourages surrender, encourages reprisals, decreases troop morale, and decreases political support for the war effort), then some status categories (e.g., unlawful combatants) are systematically under-protected. On the defensive side, I argue that protective parity is consistent with the principle of distinction. Even if irregularization undermines distinction, the question is how best to encourage fighters to distinguish themselves from the civilian population. I maintain that protective status categories are an inefficient way to incentivize individual combatants because these categories necessarily trade on collective considerations - such as the organizational characteristics of the fighting force. The rule of distinction would be better served by an individualized war crimes approach that accorded all fighters substantial humanitarian protection and punished (in accord with basic requirements of due process) individual bad actors.

Keywords: International law