The real problem with the laws of war, however, is not what they fail to restrain but what they authorize. The primary function of International Humanitarian Law is to legalize remarkable levels of "good" military violence that regularly kill and injure non-combatants. IHL highlights a handful of key principles: the distinction between combatant and civilian, the obligation to use force only for military necessity, and the duty to jeopardize civilians only in proportion to the military value of a target.
Even when these principles are applied conscientiously—and often they aren't—they still allow for remarkable levels of civilian carnage, which the Pentagon has long primly (and conveniently) referred to as "collateral damage," as if it were a sad sideline in the prosecution of war. And yet civilian deaths in modern war regularly are the central aspect of those wars, both statistically and in other ways. Far from being universally proscribed, the killing of high numbers of civilians in a battle zone is often considered absolutely legal under those laws. In the pungent phrase of Professor David Kennedy of Harvard Law School, "We should be clear—this bold new vocabulary beats ploughshares into swords as often as the reverse."
The relative weakness of the laws of war when it comes to preventing atrocities is not simply some recent debasement perpetrated by neoconservative Visigoths. Privileging the combatant and his (it's usually "his") prerogatives has been the historical bone marrow of those laws. In the Vietnam War, for instance, the declaration of significant parts of the South Vietnamese countryside as "free-fire zones," and the "carpet bombing" of rural areas by B-52s carrying massive payloads were also done under cover of the laws of war.
IHL has certainly changed in some respects. A century ago, the discourse around the laws of war was far more candid than today. Jurists once regularly referred to "non-uniformed unprivileged combatants" simply as "savages" and the consensus view in mainstream scholarly journals of international law was that a modern army could do whatever it wanted to such obstreperous, lawless people (especially, of course, in what was still then the colonial world). On the whole, the history of IHL is a long record of codifying the privileges of the powerful against lesser threats like civilians and colonial subjects resisting invasion.
Even though the laws of war have usually been one more weapon of the strong against the weak, a great deal of their particular brand of legalism has seeped into antiwar discourse. One of the key talking points for many arguing against the invasion of Iraq was that it was illegal—and that was certainly true. But was the failure to procure a permission slip from the United Nations really the main problem with this calamitous act of violence? Would U.N. authorization really have redeemed any of it? There is also a growing faith that war can be domesticated under a relatively new rubric, "humanitarian intervention," which purports to apply military violence in precise and therapeutic dosages, all strictly governed by international humanitarian law.
Here is where the WikiLeaks disclosures were so revealing. They remind us, once again, that the humanitarian dream of "clean warfare"—military violence that is smoothly regulated by laws that spare civilians—is usually a sick joke. We need to wean ourselves from the false comfort that the law is always on the side of civilians. We need to scrap our tendency to assume that international law is inherently virtuous, and that anything that shocks our conscience—that helicopter video or widespread torture in Iraq under the noses of US soldiers—must be a violation of this system, rather than its logical and predictable consequence.
Let's be clear: what killed the civilians walking the streets of Baghdad that day in 2007 was not "war crimes," but war. And that holds for so many thousands of other Afghan and Iraqi civilians killed by drone strikes, air strikes, night raids, convoys, and nervous checkpoint guards as well.
Who, after all, writes the laws of war? Just as the regulations that govern the pharmaceutical and airline industries are often gamed by large corporations with their phalanxes of lobbyists, the laws of war are also vulnerable to "regulatory capture" by the great powers under their supposed rule. Keep in mind, for instance, that the Pentagon employs 10,000 lawyers and that its junior partner in foreign policy making, the State Department, has a few hundred more. Should we be surprised if in-house lawyers can sort out "legal" ways not to let those laws of war get in the way of the global ambitions of a superpower?
It's only fair that the last words on the laws of war go to Private Bradley Manning, now sitting in a prison cell in Ft. Leavenworth, Kansas, awaiting court-martial for allegedly passing troves of classified material to WikiLeaks, documents that offer the unvarnished truth about the Afghan War, the Iraq War, and Guantánamo. They are taken from the instant-message chatlogs he wrote under the handle of "bradass87" to the informant who turned him in. The young private saw very clearly what so many professors and generals take pains to deny: that the primary function of the laws of war is not to restrain violence, but to justify it, often with the greatest lawyerly ingenuity.
(02:27:47 PM) bradass87: i mean, we're better in some respects… we're much more subtle… use a lot more words and legal techniques to legitimize everything…
(02:28:19 PM) bradass87: but just because something is more subtle, doesn't make it right
Chase Madar, a TomDispatch regular and author of a new book, The Passion of Bradley Manning (OR Books), is a lawyer in New York. To listen to Timothy MacBain's latest two-part Tomcast audio interview in which Madar discusses the Manning case and his new book, click here for part 1 and here for part 2, or download it to your iPod here. Madar tweets @ChMadar https://twitter.com/#!/chmadar. Follow TomDispatch on Twitter @TomDispatch and join us on Facebook. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.