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Adil Haque Suggests Reforms to the Laws of War

Adil Haque
Adil Ahmad Haque

The laws of war were primarily designed to regulate armed conflicts between states. Yet in contemporary warfare, combatants often wear no uniforms, conceal their weapons, and intermingle with civilian populations. These changes in the nature of warfare have exposed gaps and ambiguities in the law of armed conflict that leave civilians without adequate legal protection. In his forthcoming book, Law and Morality at War (Oxford University Press, 2015), Associate Professor Adil Ahmad Haque draws on moral and legal philosophy to propose specific reforms to better protect civilians caught in the crossfire.  

 

What sparked your interest in the legal and moral issues raised by armed conflict?

These issues are forced upon us by the world in which we live. As a teenager, the wars in the former Yugoslavia awakened me both to the atrocities that occur during armed conflict and to the promise of international criminal law as a means of responding to war crimes. Still, I assumed at the time that the laws of war were settled and only enforcement was necessary. That assumption was shattered by the mass targeting of civilians by Al Qaeda on September 11, 2001, and by the subsequent use of torture by the United States. Suddenly it seemed that no legal principle was truly secure. Most recently, the insurgencies and counterinsurgencies in Iraq, Afghanistan, and elsewhere revealed that some of the most important legal constraints—those governing target verification, discrimination in the choice of weapons and tactics, precautions in attack, and proportionality—are among the least understood.  

How do you define a “just war”? 

War can never be wholly just, since war inevitably infringes the human rights of civilians and inflicts undeserved suffering on combatants. At best, the resort to war can be morally justified as the lesser of two evils, for example when the only alternative is acquiescing in aggression or genocide. In addition, particular military operations can be morally justified only if they target combatants and military objectives and if they avoid inflicting disproportionate harm on civilians. My job is to work out the details of those constraints. How certain must you be that someone is a combatant before using lethal force? How precise must be your weapons? What risks and precautions must you take during a military operation to avoid harming civilians? When is harm to civilians proportionate? Law can never make war just, but by better understanding the moral function of the law we can make war far less unjust than it is now.  

What do you see as the most significant violation of the laws of war in contemporary armed conflicts and how would you correct that?

We have to fight on two fronts. We have to defend the absolute prohibition on targeting civilians, which is primarily under attack by non-state armed groups. At the same time, we have to insist that state armed forces more carefully verify their targets, use more precise weapons, reduce the risk they impose on civilians (even if that means placing their own soldiers at greater risk), and inflict harm on civilians only when necessary to prevent substantially greater harm to others. In addition, we have to insist on civilian protection for individuals (some of whom are morally reprehensible) who support non-state armed groups and criminal organizations but who perform no combat function. The distinction between civilians and combatants is the most important moral and legal constraint on the conduct of armed conflict, and it must be preserved.  

You argue that what constitutes a war crime should be defined more broadly. Would that require an expansion of the international criminal tribunal system?

Not necessarily. War crimes are primarily prosecuted at the national level, in military tribunals. International criminal tribunals exist only to prosecute war crimes that states are unwilling or unable to prosecute themselves. That is as it should be. States bear primary responsibility for training their armed forces in the law of armed conflict and for enforcing their compliance with the law. The better states become at their job, the less work international tribunals will have.  

You make a number of specific proposals for how the law of armed conflict should be interpreted, applied, and reformed. Have you had any reaction to your proposals from military lawyers or government officials?

I’ve been fortunate to discuss my work with a number of important policy makers, from the Obama Administration’s top lawyer on the targeted killing program to a senior lawyer for the U.S. Army Judge Advocate General for Law of War Matters. I’ve also benefitted from conversations with a former Legal Advisor to the International Committee of the Red Cross as well as the Air Force lawyer who oversaw the NATO bombing campaign in Kosovo. I’ve been impressed with the seriousness with which practitioners engage my arguments and proposals, and the depth of their desire for answers to the hard questions I address. Many practitioners hunger for serious scholarship that is theoretically sophisticated but oriented toward urgent practical issues. Fortunately, Rutgers-Newark has a long tradition of producing scholarship of precisely that kind, and I’m proud to be a part of that tradition.  


Posted 1/2/14