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Thursday, April 29, 2004

More on International Law in Falluja


Juan Cole has responded to my post (I emailed him too), defending his position that the U.S. is violating international law in Falluja. Before I address his specific points, a word on the larger issue. Cole believes that the U.S. is the "Occupying Power" in Iraq, and hence under the terms of the Fourth Geneva Convention, is responsible for ensuring adequate security, health care, food, religious materials, and so on, to the Iraqis. But the U.S. is not the occupying power in Falluja. U.S. troops cannot even enter without being shot at. So again, Cole's position places an impossibly heavy burden on U.S. forces, demanding that they fulfil the duties of a government in an area that the don't control in any meaningful way.

The U.S. Army's field manual The Law of Land Warfare, quotes the 1907 Hague Convention as offering a definition of occupation that accords much more closely with common sense:
Military Occupation
Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised. (HR, art. 42.)

So, I don't think that U.S. troops can reasonably asked to perform the duties of Occupiers in Falluja. But if U.S. actions aren't illegal, are they immoral, or a tactical error? Well, it does seem like using bombs and airborne artillery against the insurgent troops may be a tactical error, if it causes a lot of civilian casualties. Cole says U.S. forces should "clearing Fallujah neighborhood by neighborhood rather than by aerial bombardment." This would presumably get more U.S. soldiers killed, but fewer Iraqi civilians. I don't think that morality demands this trade-off in wartime, or even that asking U.S. troops to die to protect enemy civilians is necessarily moral itself. Still, in a war where the aim is partly humanitarian (to help the Iraqis), it's clearly a much closer call.

On to Cole's specific points. Cole acknowledges that "some interpretations of Article 3 do exclude guerrilla wars from consideration," since the article after all refers to conflict "not of an international character." For example, this is the interpretation of the Red Cross. But, says Cole, the International Criminal Court has defined "not of of an international character" to include "a resort to armed force between states." If so, ignoring the plain language of the treaty reflects badly on the ICC, not the U.S., and is an example of why we haven't signed on to the ICC.

Cole further argues that the conflict in Falluja resembles a civil war, and hence article 3 applies. But if so, very little of the Geneva Convention applies, since the convention mainly governs conflicts between states that have signed the treaty! I don't think this is a legalistic point. The Geneva convention wasn't handed down from on high, or mandated by the World Government, it is a treaty we signed, and respect because we expect our enemies to respect it too.

Finally, Cole refers to me as "somebody." But I am somebody! I am the Chef. The Ragout Chef! Chef Ragout!


 
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