In a new anthology, Professor William Banks and colleagues illuminate the legal issues posed by conflicts with non-state combatants
William C. Banks, director of SU’s Institute for National Security and Counterterrorism (INSCT), has brought out a new anthology of essays concerning the ongoing struggle to extend the rule of law to the sphere of human activity perhaps least suited to abide by it: warfare. In New Battlefields, Old Laws: Critical Debates on Asymmetric Warfare (Columbia University Press, 2011), Banks and an international group of distinguished colleagues, including SU professors David Crane L’80 and Renée de Nevers, confirm in detail something many already suspect: The task of implementing laws of armed conflict, already enormous, has taken a turn toward the gargantuan in the 21st century. A proliferation of non-state combatants (as varied as Hezbollah in Lebanon, the Zetas drug cartel in Mexico, and the Lord’s Resistance Army in East-Central Africa), wielding an arsenal of non-traditional weapons (suicide bombers, improvised explosive devises, child soldiers, and attacks from within urban neighborhoods) is enough to create nostalgia for old-fashioned Geneva Convention(al) wars. And then there is the fate of civilian human rights in all this, a subject Banks refuses to put on the backburner. Banks, who is Board of Advisors Distinguished Professor of Law in the College of Law and Professor of Public Administration in the Maxwell School, recently sat down with SU Magazine’s David Marc to answer some questions.
How is the U.S. Constitution faring 10 years after 9/11?
Ten years out gives us a chance to reflect, and I think reflection demonstrates the Constitution has taken something of a beating. At the same time, the Constitution is proving resilient, and it will perhaps emerge even stronger than it was. When I say, “It took a beating,” I’m thinking of particular efforts in the early part of the last decade where the executive branch pushed very hard at strategies and tactics in the “Global War on Terrorism.” The courts eventually upheld many of these initiatives and, in so doing, compromised some constitutional protections we always presumed we had. For the first time we found ourselves running a detention center offshore, where we admitted we weren’t following traditional wartime protections for detainees. We also found ourselves detaining persons, including American citizens, on our own soil in military brigs for extended periods of time, and then promising to conduct, for those individuals, military commission trials rather than traditional civilian or military trials. During much of the Bush administration, executive power was used in an aggressive way to shape the scope of counterterrorism. For the most part, those policies have continued in the Obama administration. Most of the Obama administration’s departures from Bush administration policy have been rhetorical and subtle, rather than substantive.
In a legal system based on precedent, do these developments present special dangers in the long run, no matter how effective or ineffective they may be under immediate conditions?
They do. One of the things that students of the Constitution pay attention to is this: How have the other institutions of government reacted to judicial decisions? Certainly, the tone of national security policies began to change during the latter years of the second Bush term and the Obama rhetoric is considerably different from that used by the Bush administration, but in the latter Bush years and the Obama years, the pattern of fairly aggressive use of executive power to shape the scope of counterterrorism remains.
Were you surprised to the degree to which Obama upheld Bush’s constitutional innovations, or did he have little choice in that matter?
I wasn’t really surprised; I was disappointed. National security policies tend not to be decided along partisan lines very often. Of course in 2009, Obama had a lot of momentum and support to make new initiatives and he chose to make only some—and they were pretty modest. So again, it was a bit of a disappointment to me that he didn’t make more changes, but it was not a big surprise.
Leaving the home front, how do you feel we are doing on the Geneva Conventions?
The laws of war have really begun to evolve in the last decade. They’ve had to. The genesis of our “new battlefields, old wars” project here at INSCT was the 2006 war in Lebanon between Hezbollah and Israel. We began to see Hezbollah using apartment buildings and other structures to hide out among the civilian population so the Israelis wouldn’t attack them, or if the Israelis did hit them, world attention would be focused on criticism of the Israelis, rather than on the Hezbollah for hiding in such a fashion—shooting and then cowering among civilians. In the five years since, we’ve run a number of workshops and major conferences, we’ve written papers, and now published this book, which asserts that the Geneva Conventions are not up to the task of dealing with the new battlefields. They simply don’t provide a sufficient blueprint for warfare between a state and a non-state actor that’s willing to disobey the laws of war to gain advantage over a stronger party. What I think is happening now is not so much that the Conventions are changing—they’re not—but state practice in response to the Conventions is evolving more in keeping with the nature of the wars we’re fighting.
I may be jumping ahead, but is this the way to connect the increasing use of private military contractors?
The fact that contractors are so present and so numerous on the battlefield now is another sign of the evolving nature of warfare and another threat to its effective control and its need to protect civilian populations. Even in the U.S., we conclude that the civilian contractor population is not as accountable to our standards as are the uniformed military.
For one thing, they can’t be court marshaled; for another, they haven’t committed any crimes under U.S. jurisdiction. They’re given tasks to perform and there are no clear laws governing their conduct in the physical space in which they are performing those tasks.
There have been efforts to extend jurisdictional control over the crimes they might commit abroad, but they aren’t subject to court marshal, that’s true, except in rare circumstances. They’re subject to contractual relationships with the U.S. government and not to an employment relationship, which is very different. We, the United States, are probably better than any other nation at providing blueprints for our contractors in the security realm. Other nations use contractors, too. Some are completely untethered from the state and simply have a contract that says, in practical effect, for example, “Go make a mess in Somalia.” So the battle space—the non-conventional battle space we think of today—has become very dynamic and complex, and that is in part because the contract population is so prevalent.
In some ways it seems as if the rules of espionage now apply to war in general; kidnapping, for example.
All kinds of dirty tricks go on to be sure. When I said that custom or state practice is changing, I meant that it’s changing in regard to both conventional combat and those activities that you wouldn’t traditionally think of as part of combat.
Is the state showing itself to be a resilient entity in meeting these challenges to it?
I think some of us are worried about the state because there is a risk that as the contractors become increasingly powerful and have more weaponry and technology at their disposal, they could steal the game and become dominant players or not amenable to control by state parties. And then, we’re all in trouble.
One scenario for Syria, to name a current hot spot, is that while the Arab League and other countries attempt to influence events with trade sanctions and other state measures, a non-state actor uses its agility to step in and impose order, much as Hezbollah did in Lebanon. Would that be an example of diminished state authority?
It would. And I think we may see that in the countries where the Arab Spring took place and in other parts of the world. We may see it in Somalia.
Ironically, Syria was behind so much of what Hezbollah did in Lebanon. Is it a case of “what goes around, comes around?”
Yes, “what goes around comes around,” or “the chickens are coming home to roost,” or whatever the proper metaphor is. Assad is being incredibly defiant in the face of all this.
What are non-state actors after? What constitutes victory in their kind of war?
I think the decade-long objective of Al-Qaida, as stated in their fatwas and in their web materials is the removal of U.S. and Israeli forces from the region, altogether. The extent to which that remains their primary objective is hard to know, given the scattered nature of Al-Qaida at the moment. But those materials are still up there on the web.
Were you surprised that there wasn’t any noticeable presence of support for Al-Qaida in the Arab Spring? Or was the Arab Spring created by a small but vocal liberal middle class?
I think the latter. I think you’re correct to characterize it that way. I wasn’t surprised to see so little of Al-Qaida there. If they regroup in some way and have an impact, I think it will come in the middle distance when some of these states, Egypt for example, have established a clearer path toward their future.
“Child soldiers” are the subject of an essay by Hilly Moodrick-Even Khen in the book. Is this something new or an old problem that is getting new publicity?
I think that the child soldier problem is not a new one and I suspect it is receiving more attention now, as it should. I think that, in addition to the phenomenon as described in our book chapter, there’s a lot of tension properly being focused on kids and their treatment as soldiers and combatants in several African states, in the light of such conflicts as there have been in Sierra Leone, Nigeria, Congo, and other places where things are in a protracted conflict-ridden state. There have been some good efforts made by the UN and other NGOs, as well as the United States working through Africom, to acquire those conflicts and then rid these cultures of those who would exploit kids. But I think it remains a serious problem.
Why do these private armies want child soldiers? Are they trying to recruit “soldiers for life?” Is the idea to create loyal soldiers by ripping children apart from their families and making them dependent on the army?
I think they are finding the vulnerable kids and ripping them apart from their families and their tribes. The tribes are the social structures that matter, and if they get children apart from the tribes while they’re still at an impressionable age, it’s easier to make them become subservient to command and to do whatever they’re told.
Do you see any continuity between contemporary child soldiers and ideologically based precedents such as Hitler Youth or the Young Pioneers? Or do you see it as a phenomenon specific to the culture of poverty in the Global South?
I think the latter. The most documented stories we know here in Syracuse come from Sierra Leone through the work of my colleague, David Crane, on the Sierra Leone war crimes prosecution. Then, of course, we’ve also had the Sudanese “Lost Boys” in this community, and they’ve told their stories on film and in other ways. I think that cultural depravity really does account for this. In Sierra Leone, the kind of remediation that was done in community-based healing was a real success, in relative terms. It couldn’t bring back the severed limbs and the broken bones and the people who were killed, but a lot of families and tribal units were brought back together through this kind of remediation that the UN helped to support.
Since we’re talking about West Africa, I wonder if you see the prosecution of President Bahgbo of Cote d’Ivoire as a good thing, or if it will have the effect of making other sitting heads of state wary of cooperating with international law bodies?
I think it’s probably a positive breakthrough because you have the International Court of Justice operating alongside the International Criminal Court (ICC), and that is giving the ICC greater legitimacy and acceptance around the world. Even the U.S. has begun to sing a somewhat different tune regarding the ICC. I think that if the ICC is able to reach people with [cases] like this one, the momentum toward “no impunity” for the worst heads of state is building up.
Where are we in terms of codified international law? Do we have basic documents in place that can continue to be kept up and revised, or do “new battlefields” create the need for whole new codes that will require approval by the international community?
There are two areas in which to consider this: domestically and internationally. Taking the international first, five years into this “new battlefields, old laws” project, I feel more optimistic than I did in 2006 that the states can adapt their legal regimes to these asymmetric conditions. It may not take treaty-based revisions to get it done. As I said earlier, state practice is evolving. Our counterinsurgency campaign in Afghanistan, which has been waged through our armed forces—the United States Army, principally—has shown itself capable of mingling so-called “soft power” tactics with very aggressive counterterrorism, achieving a fair degree of success in many areas. I think that’s not only the U.S., but many partners in that Afghan campaign have come a long way in protecting the people while winning the counterterror battle—and that’s not an easy thing to do. So I’m somewhat optimistic there. I knew it was a long shot to persuade nations to actually write a new Geneva Convention in 2006, and I think it’s still a long shot, but perhaps it’s less necessary than I would have predicted five years ago.
If non-state actors refuse to obey laws, it seems pointless to try to write laws to govern them. Is the situation hopeless?
One idea is to provide incentives, to offer them deals they can’t refuse. Offer them financial rewards. Offer them opportunities to have their detainees treated according to Geneva Conventions standards in return for similar treatment.
So where codified law fails, more basic laws, such as reciprocity, may be used to impose order?
Yes, and there are some small signs that such tactics pay off in some circumstances. But that can work both ways. States can avoid breaking the international treaties they’ve signed by hiring military contractors who may use force in ways not permitted for our trained military. There’s even a danger of military contractors becoming dominant players in wars against non-state actors. Then states may lose control over the battlefield, and we’re all in trouble.
Do you think the Oklahoma City bombing had the effect of tempering an extreme nationalistic approach to counterterrorism?
So many people assumed right away that it was an Arab or Muslim male who was responsible for that attack. That attack certainly got the attention of the Clinton administration and led to some significant changes. But now, I think you can look across the board, at the way we do investigations, the way we police our borders and airports, the way we handle immigrations, the way local police and federal intelligence authorities cooperate with one another, and you can see it’s a different paradigm than it was in 2000. It’s still maturing; it doesn’t have a fully formed content. But the outlines are there.