The legality of reciprocity in the war against terrorism.

• Author: Sabel, Robbie

Modern international humanitarian law has no satisfactory solution to the dilemma posed by a regular army in combat with an irregular force that deliberately targets civilians. In the past, the laws of war allowed an army to attack enemy civilians as a reciprocal measure to an attack on its own civilians. Modern humanitarian law has attempted to outlaw such measures of reciprocity. The question is posed as to whether the attempt to outlaw such reciprocity has in fact contributed to the protection of civilians or perhaps has encouraged irregular forces to attack civilians. The article also presents the cruel and arbitrary nature of reciprocal attacks against civilians and suggests that a more humanitarian approach might be to permit such action against the governmental organs controlling irregular forces.

1. RECIPROCITY IN THE WAR AGAINST TERRORISM

   A troubling issue of law and morality is evoked by the question of reciprocity in an armed conflict where a regular army, complying with the laws of war, combats irregular fighters who deliberately attack civilians. This issue is compounded by the modern tendency to merge the laws of armed conflict with the international law of human rights. As a result of this merging, one finds that international organizations tend to automatically presume that any civilian death in an armed conflict is a violation of law. Where there are many civilian deaths the presumption of a violation of law tends to become a definite conclusion that there was such a violation. Civilian deaths caused by irregular forces, however, are often excused by explaining that the irregular forces do not possess accurate weapons, and that because of their inferior force, they are not capable of combating armed forces. Hence, it is legitimate for them to attack the soft underbelly of their enemy, namely civilians.

   One of the much touted and admired aspects of international law of human rights is that it is void of any aspect of reciprocity. The norms of human rights are absolute norms; human beings are entitled to such rights by virtue of their humanity and not by virtue of reciprocity, nor by virtue of state behavior, existence of an international element, and not even by virtue of State recognition of such rights. Human rights are seen by some as a "secular religion, something which is metaphysical and cannot be proved, but often taken on faith...." (1) As a consequence of the blurring of the classical differentiation between these two branches of international law, the absence of the element of reciprocity has also increasingly become a modern feature of the laws of armed conflict. It is pertinent to question, however, whether the lofty principle of the absence of reciprocity has in fact contributed to the protection of civilians in armed conflict. (2)

   Democratic states are faced with the question as to what measures of enforcement can be legally applied against irregular forces deliberately targeting civilians, exploiting the fact that the regular army of a democratic state will be complying with the laws of war. (3) There can be little utility in analyzing what rules of international law are applicable to such groups although this issue is much debated in academic journals. (4) The very raison d'etre of armed groups using terror tactics is to achieve their political aims by means that flout norms of law and humanitarian behavior. It is highly unlikely that Osama Bin Laden or his colleagues consult legal textbooks on international law prior to engaging in their nefarious activities. There is no universally accepted definition of terrorism, however, the U.N. General Assembly has defined terrorism as "criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes." (5) The U.N. General Assembly further declared that such acts of terrorism "are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them." (6) The international legal community has, over the years, created an impressive network of treaties that require states to prosecute or extradite persons who have committed acts of terrorism. (7) However, the reality is that there has been a dearth of actual prosecutions. The International Criminal Court by its nature can have only a very limited effect and the increasing reliance on the principle of universal jurisdiction seems to have been used mainly as a political tool to demonize Israel and the United States, rather than to prosecute individuals from groups that deliberately target civilians. (8) The U.N. Security Council has recognized that, in addition to criminal prosecutions, states have a right of self-defense against terrorism, a right that includes the use of armed force. (9) At what point the right of self-defense kicks in would seem to be dependent on the scale and intensity of the hostilities. (10)

   On the assumption that a state is involved in armed conflict with an armed group that deliberately attacks civilians, the question then arises as to whether a state can take countermeasures that would otherwise be illegal in order to prevent further attacks against its civilians. It can be argued that the laws of war are inadequate when they purport to deal with a situation when one party, which is a regular army, implements the laws of war and the other party, which is not a regular army, deliberately acts against the laws of war and bases its military tactics on the exploitation of the fact that the army facing it abides by these laws of war. (11) International law, and in particular laws of armed conflict, have very limited means of enforcement and the desire for mutuality is one of the elements that motivate hostile parties to respect the laws of armed conflict. Countermeasures are a recognized act of enforcement in international law and the International Law Commission ("ILC") draft on the subject reads:

   The wrongfulness of an act of a State not in conformity with an...