Israeli and American scholars are cooperating in an effort to modify international law to better suit the realities of modern warfare. Leading researchers from the International Institute for Counterterrorism and the Maxwell School of Citizenship and Public Affairs in the University of Syracuse met at the Interdisciplinary College in Herzliya this week to plan what might eventually lead to amendments to the Geneva Conventions.
The conference, titled "New Battlefields, Old Laws," aimed to find ways to revitalize the old international agreements, which were written in response to the wars of last century, and adapt them to the present international war on terror.
"The brainchild for this conference was a dinner conversation between [ICT director] Boaz Ganor and [Maxwell School Dean] Mitchel Wallerstein last summer in Chicago, during the Lebanon war," said Professor William Banks, international expert on constitutional law, national security law and counterterrorism.
"Policy people and law people at our two institutes recognize that the existing framework for conducting war was never written to contemplate these kinds of conflicts," he said.
The meeting between the deans of the two schools led to a series of international videoconferences, in which primary avenues for research were identified. The conference in Herzliya was the next step, bringing together experts in the fields of law, political science, philosophy, public policy and history in an attempt to arrive at an interdisciplinary approach. Participants included former minister of internal security and security cabinet member Uzi Landau.
"From the start, we had in mind the goal of fine-tuning the Geneva Conventions and Hague protocols, which were written 50 to 100 years ago, and adapting them to the asymmetric battlefield without throwing the baby out with the bathwater," said Ganor.
Asymmetric conflicts refer to battles between nation states and non-state entities (NSEs) such as terrorist organizations.
"The Geneva Conventions are one of the greatest humanitarian achievements in history," said Ganor. "Having said that, we don't consider it a sacred cow and feel that we have the moral right to reexamine them, especially in light of the current threats to both of our countries."
The conference discussed a variety of topics ranging from the moral justification for the use of military force in asymmetric conflicts to the role of private security companies such as those used by the US in Iraq. Other issues included the use of human shields, the targeting of civilian infrastructure, the provision of sanctuary by states to non-state combatants and even the legal status of unmanned vehicles.
The main achievement of the conference, according to Ganor, was the designing of what he calls "The Grid." The Grid identifies four major groups within an asymmetric conflict situation: the standard military, legitimate non-state entities, illegitimate non-state entities and the civilian population. The difference between legitimate and illegitimate NSEs is their readiness to accept the laws, norms and regulations of war.
"Up until now, there was no such thing as a legitimate NSE. We are arguing that once we create the legal distinction and accompany the dichotomy with a system of incentives and disincentives, it will give organizations the motivation to strive for legitimacy," said Ganor. "There is a normative difference between someone who deliberately targets soldiers and someone who aims to murder innocent civilians. Accordingly, there will be a difference in the reaction to such attacks and the treatment of the perpetrators." The proposed amendments mean that those who abide by the rules of war will be treated correspondingly as prisoners of war under the same laws. With the establishment of a legal framework for NSEs, many wartime dilemmas may be solved.
However, human rights attorney Michael Sfard, who works with Amnesty International and other humanitarian organizations, criticized the move. "The acceptance of this proposal would mark the end of humanitarian law," he said. "The best thing about war regulations is their simplicity: They state that you are either a soldier or a civilian. Adding a third group into the mix would greatly increase the number of innocent civilian casualties."
The leaders of the conference are aware of the criticism the endeavor is likely to encounter. "The human rights community in particular has raised concerns as to the ability of either Israelis or the Americans to be objective about this, given the military activities that both countries are engaged in," said Wallerstein.
"I expect that the proposals will be opposed by those who see this superficially, as an attempt by the United States and Israel to gain legitimacy for their actions. However, after the first wave of rejection, I believe that those who posses the historical, philosophical, legal, policy-oriented mental gravitas will see this as viable suggestion," said Ganor.
The next step for the group is to take the material discussed in the conference, expand on it, send it out for review in the international academic community and present the results in a similar conference scheduled to take place in Washington, D.C., this October - the 18th of which will be the 100-year anniversary of the signing of the Hague Convention of the laws of war.
After that, it is up to the international community to decide whether to accept the proposals. "The question will be, how does this get taken up by governments, and that is somewhat unpredictable. Even if it is endorsed by governments, knowing how international relations, international diplomacy works, we're probably talking about a few years before this is turned into law," said Wallerstein.