Law and War

Following some semblance of rules against an unruly enemy proves that the state behaves differently than its enemy.

Waris Husain June 19, 2014
The writer is an adjunct professor at the Howard University School of Law and holds a Juris Doctorate and LLM specialising in international law. He tweets @warishusain

It has often been said that all is fair in love and war; but as Pakistanis know, what is fair is not always legal, and what is legal is not always fair. So, to discuss the Pakistani military’s offensive in the border region demands an exploration of what is ‘legal’ in instances of war. Though some will be quick to argue that requiring the military to follow certain rules would incapacitate them in a fight for their lives, they should consider that a military subjecting itself to some rules of combat actually furthers their counterterrorism strategy of winning over a population that has witnessed the lawlessness of terrorists.

There has been debate among Pakistani constitutional scholars and writers concerning what form, if any, of Pakistan’s law would apply to the military operation. Yet, if one looks outward to international law, it presents a long-established set of rules for countries fighting wars, called international humanitarian law.

The most pertinent conflict described in these treaties for Pakistan is the ‘non-international armed conflict’, involving the army battling organised insurgents that exercise control over territory.

Pakistan’s military must (or may already) consider the three major rules of war: distinction, proportionality, and necessity. This generally means that military personnel can use deadly force if such would be necessary to gain a military advantage over a declared enemy. Second, the force used by the military must proportionally balance potential military advantage versus harm to civilians. Finally, the military must distinguish enemies from civilians and avoid civilian casualty.

Despite the long history of these principles, enforcement at the international level is highly unlikely, especially considering the fact that most members of the international community are content that Pakistan is taking any form of action to confront terrorism. However, militaries across the world are trained in humanitarian legal principles and have established internal enforcement mechanisms to ensure their respect.

This is even truer for counter-insurgency operations which occupy a physical and metaphysical space; not only must the counter-insurgent stomp out the enemy, they must build positive relationships with the inhabitants of that area to prevent enemy resurgence. Early signs that these principles are being considered by the Pakistani brass, at least rhetorically, can be seen in the ISPR statement that proclaimed civilians would be evacuated from the conflict areas and IDP camps would be established.

However, the Geneva Conventions not only require protection for civilians but also establish some rules for dealing with the enemy, including taking prisoners of war when feasible and abiding by the prohibition on torture. This begs the philosophical question of reciprocity; namely, why should the military provide any of these protections to terrorists who brutally disregard these rules in killing of civilians and Pakistani military personnel alike?

If one believes that the Pakistani state is engaged in a deeper conflict beyond military offensives then one must recognise the eternal problem of building a narrative to battle extremists. The effects of this problem resonate in those who argue that rules are somehow futile during times of conflict. Excusing lawless behaviour as a means to combat terrorists, who are themselves engaged in lawless activity, seems to create a never-ending cycle of devolution into anarchistic brutality.

Following some semblance of rules against an unruly enemy proves that the state behaves differently than its enemy and is rightfully engaged in a fight for something greater than a short-term military advantage. As such, ‘taking the high road’ by following humanitarian principles can allow Pakistan to occupy the moral vantage point over an enemy that attempts to spread itself amongst the public partly with stories of abuse by the state.

Such a perspective would require action not only in the border regions, but also in the urban centres across Pakistan that have played host to a variety of domestic and international terrorist groups. In order to win this expansive conflict, some non-military arms of the state need to mobilise in pursuit of the enemy, but with respect for laws. This would certainly include police and other counterterrorism forces. In cases outside of active military zones, humanitarian law would be superseded by Pakistani constitutional law, which provides protection for civilians including due process.

Published in The Express Tribune, June 20th, 2014.

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John B | 7 years ago | Reply

I see everyone agrees with the analysis so far. In that case people should also agree with US Guantnamo Bay detention facility and CIA's rendition program which protects the US security interest.

The fact is we are dealing with the ethical questions between civilized armies that operate within the code of conduct and as such one could expect the treaties of armed conflict to be observed. We should not have any doubt that PAK army will observe all the civilized code of conducts, barring a few rotten apples and incidences. One cannot be certain of the enemy, however.

The enemy we are dealing with in Pakistan or elsewhere have no code of conducts in conflicts. As such, there is no legal obligation other than the moral and ethical one to obey.

Armed conflict within one's national borders have long term socio-economic consequences and one should be prepared for a long haul.

Prakash | 7 years ago | Reply

Well said, author.

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