Introduction
The law as it currently exists The problem: all guerrilla movements may be
illegal A better formulation of the law Law should match reality Problems with the new formulation can be
managed
Jus ad Bellum / Jus in Bello
Jus ad Bellum– “Just War” The motivations for entering a conflict are
considered ‘just’ by the international community
Jus in Bello– “Just Means” The methods used in a war – the tactics,
strategies, etc. are considered ‘just’ by the international community
ICTY : Extending Jus in Bello
With the formation of the ICTY and specifically the Tadic decision Jus in Bello can be applied to put an individual in jail
Jus in Bello : Responsibly Attacking Only Justifiable Targets 1. Duty to discriminate
Justifiable targets Combatants vs. Non-Combatants
2. Duty of Proportionality Means employed must be proportional to the
objective. Killing a fly with a hand grenade
Defining the Duty to Discriminate
During an armed conflict individuals can be broken into three categories represented below.
Group A = Clearly legal targets : enemy soldiers, paramilitary
Group B = Ambiguous targets : regime collaborators, informants, spies, sympathizers
Groups C = Illegal targets : uninvolved civilians, innocent bystanders
Group C: Illegal targets (Innocent bystanders, Uninvolved civilians etc.)
Group B : Ambiguous targets (Collaborators, informants, spies, sympathizers)
Group A : Clearly legal targets. (soldiers, paramilitary, etc.)
Legitimate targets during armed conflict.
What is a Justifiable Target?
Currently a justifiable target is governed by Common Article 3 of the 1949 Geneva Convention and 1977 Protocol II
Restricts justified targets in an internal armed conflict to individuals taking an active part in the conflict
Group C = clearly illegal targets : Uninvolved civilians and innocent bystanders
Group A = legal targets: armed soldiers, paramilitary
Group B = Ambiguous targets: collaborators, informants, spies
Defining the Duty of Proportionality
Means employed be a guerrilla must be proportional to the objective.
Example An insurgent may launch a coordinated attack on
the military barracks. The insurgent may not drive a truck of explosives
into the station and blow up the block
Putting the Two Together
Group C = clearly illegal targets : Uninvolved civilians and innocent bystanders
Group A = legal targets: armed soldiers, paramilitary
Group B = Ambiguous targets: collaborators, informants, spies
Casualties from insurgent attack
The casualty spillover into Group B implicates both a duty to discriminate and the duty of proportionality.
1. Are the ambiguous victims combatants or non-combatants?
2. Were they killed pursuing a legitimate target with proportional means
Problems with the Current Approach
Duty to Discriminate Armed Combatants are not the only legitimate
threat to an insurgency,
The relative strength of a regime compared to a guerrilla force can make regime informants and collaborators as deadly as armed combatants
Sphere of guerrilla violence that is legally justifiable should be proportional to availability of other means of effecting change and brutality of the regime.
RegimeBrutality
Availablealternatives toviolence
RegimeBrutality
Availablealternatives toviolence
Justifiable guerrilla violence
Justifiable guerrilla violence
Measuring Alternatives to Violence and Regime Brutality
Measure as empirically as possible Neutral organizations such as Amnesty
International produce such reports
Average reports from half a dozen organizations
Discriminating Targets
During an armed conflict individuals can be broken into three categories represented below.
Group A = Clearly legal targets : enemy soldiers, para-military, etc
Group B = Ambiguous targets : regime collaborators, informants, sympathizers
Groups C = Illegal targets : uninvolved civilians, innocent bystanders
Group C: Illegal targets (Innocent bystanders, Uninvolved civilians etc.)
Group B : Ambiguous targets (Collaborators, informants, sympathizers)
Group A : Clearly legal targets. (soldiers, spies, para-military, etc.)
Legitimate targets during armed conflict.
What is a Justifiable Target?
Restrict justifiable targets to Group A? Problematic because often
a collaborator or informant can be as dangerous as a soldier.
Individuals can fluidly move between rings
X might be a combatant one minute, lay down his rifle and become a civilian the next, before picking up his rifle again.
Group C = clearly illegal targets : Uninvolved civilians and innocent bystanders
Group A = legal targets : soldiers, paramilitary, etc.
Group B = Ambiguous targets: collaborators, informants, spies
Legitimate targets during armed conflict.
Restrict justifiable targets to Group A plus a defined set of the “most threatening” individuals from Group B?
Problematic because the threat from Group B will vary depending on brutality of regime and alternative available means of dissent
Example : If U.S. government is informed that individual X is handing out leaflets calling for a revolution, X may not be able to board an airplane as easily and may have his/her phone tapped. Thus the justifiable targets in the U.S. would be narrower
If the North Korean government is informed that individual Y is doing the same thing, Y could be killed. So the justifiable targets A in North Korea would be broader
Group C = clearly illegal targets : Uninvolved civilians and innocent bystanders
Group A = legal targets : soldiers, paramilitary, etc.
Group B = Ambiguous targets: collaborators, informants, spies
Duty to Discriminate VariesGroup C: Illegal targets (Innocent bystanders, Uninvolved civilians etc.)
Group B : Ambiguous targets (Collaborators, informants, sympathizers)
Group A : Clearly legal targets. (soldiers, spies, para-military, etc.)
Legitimate targets during armed conflict where regime brutality is low and available alternative means exist.
Line determining acceptable target should thus be flexible and correspond to regime violence towards dissidents and legal alternative means available.
Group C: Illegal targets (Innocent bystanders, Uninvolved civilians etc.)
Group B : Ambiguous targets (Collaborators, informants, sympathizers)
Group A : Clearly legal targets. (soldiers, spies, para-military, etc.)
Legitimate targets during armed conflict where regime brutality is relatively high and alternative means of dissent are relatively low.
Extending Things and Examples
What the Iraq Insurgency looks like
Insurgent violence after the Interim Government should be illegal as media sources are a viable option and the government’s brutality index against any specific demographic is relatively low
InsurgentViolence
Violent RegimeRepression
AlternativeMethods ofExpressingDissent
What would be a justifiable pattern of violence for Iraq Insurgency
Extending Things and Examples
LegitimateInsurgentViolence
Violent RegimeRepression
AlternativeMethods ofExpressingDissent
Contrast the Iraqi insurgency with the KLA insurgency
Extending Things and Examples
1974
Gra
nt of
Auto
nomy
1989
Rep
eal o
f Auto
nomy
1997
Paj
iziti
et. al
1998
Jash
ari
InsurgentViolence
Violent RegimeRepression
AlternativeMethods ofExpressingDissent
The insurgent violence in Kosovo could thus be justified
Extending Things
Under this rubric, events such as Abu Graib and Guantanimo Bay should be taken very seriously as they could be used to justify a broader sphere of violence against the United States
Extending Things and 9/11
Theoretically, this rubric could be used to justify an event like 9/11 if it had happened in different country with an astronomical Brutality Index In a situation where a regime’s brutality index was inconceivably
high and all other channels of dissent (this would have to extend very far such as appearing in public) were closed.
This scenario would be extremely unlikely; however, it is possible. Consider Nazi Germany – Under this theory, it could be
justifiable if a German Jew flew a plane into a Nazi building. He/she would point out the regime’s systematic murder of
approximately 6,000,000 civilian Jews and the utter lack of any means of opposing the State’s policy.
Moving from Law to Political Science : Policy Incentives
AvailableChannels forExpressingDiscontent
Likelihood ofInsurgency
Insurgency is less likely to occur in societies with open channels for expressing dissent and organizing opposition to a regime.
Instead, other less risky means of effecting change will be employed
Policy Incentives cont.
RegimeBrutality
Likelihood ofInsurgency
Conversely, as regime violence towards dissidents increases, the likelihood of an armed insurgency increases.
- If individuals know that they will be arrested for passing out pamphlets, they will pursue their goals via other means. Why not pass out Kalishnikovs?
Linking justifiable guerrilla violence with regime brutality provides an incentive for the regime to deal with opposition responsibly and humanely.
Linking This Theory To Jus Ad Bellum War
RegimeBrutality
Availablealternatives toviolence
Justifiable guerrilla violence
RegimeBrutality
Availablealternatives toviolence
Justifiable guerrilla violence
An Increased Brutality index
Justifies
Increased guerrilla violence
When :
The law would then justify conflicts against repressive violent governments.
An insurgency against such a government is more likely to be Jus Ad Bellum
Problems
What if alternative means of expressing dissent are blocked by a private party? 2004 pre-election America several accusations against media
conglomerates that refused to air specific programs criticizing the government about to seek reelection
Should that justify violence towards a private party? The Government? How to tell what role and to what degree the government is responsible?
Problems Continued
Similarly, what if brutality is carried out privately? Or through subtle government non-action? Violence towards African-Americans in Southern U.S.
Governmental blacklist which costs an individual his job
How is this measured?
Should this be part of the calculus?
Problems Continued
If there is a flexible line, how is that judged immediately and not retroactively?
Group C: Illegal targets (Innocent bystanders, Uninvolved civilians etc.)
Group B : Ambiguous targets (Collaborators, informants, sympathizers)
Group A : Clearly legal targets. (soldiers, spies, para-military, etc.)
????????????
Solutions
Hold the government accountable for inaction where private suffocation of media outlets or private violence towards a specific group is apparent. Build this into the brutality index in a
responsible way. Would encourage the government to control
violent private groups and allow for a more transparent media
Solutions Continued : Where is the line?
)
????????????
In any system, drawing a useful line between justifiable and illegal targets difficult.
This approach offers a more realistic reflection of justifiable targets because it factors in the varying threat similar targets pose to an insurgency and the varying degree of risk insurgents face against different governments.
Group C = clearly illegal targets : Uninvolved civilians and innocent bystanders
Group A = legal targets : soldiers, paramilitary, etc.
Group B = Ambiguous targets: collaborators, informants, spies
Justifiable Targets
Solutions Continued : Why a more realistic approach is important.
)
????????????
If the line is not realistically drawn and the insurgent cannot accomplish his/her objective without violating international law, then the deterrent effect of the law is moot.
Creating laws that better reflect the reality of an insurgent’s position can help ensure that the laws are followed.
Group C = clearly illegal targets : Uninvolved civilians and innocent bystanders
Group A = legal targets : soldiers, paramilitary, etc.
Group B = Ambiguous targets: collaborators, informants, spies
Justifiable targets
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