AMERICA, AFGHANISTAN AND THE LAW OF WAR OF INTERNATIONAL LAW
By Professor Louis Rene BeresAfghanistan's government alleges multiple violations of humanitarian international law by American aerial bombardments. Yet, the Taliban practice of intentionally placing its military forces and assets in the midst of civilian populations is the only real war crime in this conflict. Although it is certainly true that the Law of War is designed to protect all noncombatants from armed attack, this body of rules also makes it perfectly clear that responsibility for harms must ultimately rest with the side that engages in "perfidy."
Deception can be an essential and acceptable virtue in warfare, but there is a meaningful distinction between deception or ruse and perfidy. The Hague Regulations in the Laws of War allow "ruses" but disallow treachery or perfidy. The prohibition of perfidy is reaffirmed in Protocol I of 1977, and it is widely and authoritatively understood that these rules are binding on the basis of general and customary international law.
What, exactly, are the differences between permissible ruses and perfidy? The former include such practices as the use of camouflage, decoys, mock operations and ambush. False signals, too, are allowed; as an example, the jamming of communications.
Perfidy, on the other hand, includes such treacherous practices as improper use of the white flag; feigned surrender or pretending to have civilian status. It also constitutes perfidy to shield military targets from attack by placing or moving them into densely populated areas or to purposely move civilians near military targets. Indeed, it is generally agreed that such treachery represents an especially serious violation of the Law of War, what is known as a "Grave Breach." The legal effect of such perfidy - the practice now engaged in by the Taliban in Afghanistan - is this: Exemption (in this case, for the United States of America) from the normally operative rules on targets. Indeed, even if the Taliban had not intentionally engaged in treachery, any Taliban link between protected persons and military activities would place all legal responsibility for civilian harms squarely upon Afghanistan.
The recent harms to civilians in Afghanistan caused by American bombs are tragic and deeply regrettable, but the legal responsibility for this tragedy lies entirely with those whose perfidious conduct brought about such harms. Moreover, the United States has the indisputable right of self-defense against terrorist attacks originating from Afghanistan, both the post-attack right codified at Article 51 of the UN Charter and the customary legal right called "anticipatory self-defense." This country has the right and the obligation under national and international law to protect Americans from criminal acts of terrorism. Should we decide to capitulate to perfidy and restrict essential bombardments accordingly, the United States would surrender this basic right and undermine this basic obligation. The net effect of such capitulation would be to make victors of the Taliban, an effect that would assuredly increase rather than diminish the overall number of civilian victims, in Afghanistan and in the United States.
"Just wars," we learn from the seventeenth-century legal philosopher Hugo Grotius (a major source for Thomas Jefferson in writing the Declaration of Independence). "arise from our love of the innocent." Recognizing this, the United States - confronted by Taliban-related terrorists who now seek to soften our country for much larger forms of civilian destruction - must continue to use all applicable military force within the boundaries of humanitarian international law. Although perfidious provocations by the Taliban might elicit American actions that bring harms to noncombatant populations in Afghanistan, it is these provocations, not America's response, that would be in serious violation of international law.
International law is not a suicide pact. Faced with a terrorist adversary that persistently follows an announced strategy of unrestrained barbarism, Washington cannot permit egregious Taliban manipulations of civilian populations to preclude needed uses of military force. Rather, we must now make the entire international community aware that perfidy is a crime under international law, and that it is the practitioners of perfidy, not those who are strategically disadvantaged by such a practice, that must be identified as war criminals.
In the final analysis, the United States and its allies have no alternative to maintaining lawful self-defense operations against the Taliban. Such operations need not be injurious to noncombatant populations so long as the Taliban do not seek to hide behind these populations as human shields. Bound by the laws of war of international law, these terrorists, whenever they choose to commit perfidy, are the responsible party for all resultant harms done to Afghan civilians.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with the Law of War. He has been a consultant on this matter in both Washington and Jerusalem. He is the academic advisor for the Freeman Center For Strategic Studies.