Friday, July 2, 2010

Rules of Engagement I: International Scale

(Update: I've expanded on this since then: Pt.s II, III, IV, V, VI. Followed up: here.)

Rules of Engagement are an under-examined but crucial aspect of a civilization. Every human being has the capacity for violence and destruction, but as societies we have slowly crafted a series of rules as to when we consider it acceptable to use that violence. A man beating another man to take his cell phone is banned by law; a man fighting off an attacker is presented.

Usually, if you ask the question "Am I allowed to use force?" the answer is usually no. For the average civillian, questions of force and violence are simple, because we have removed most of the need for force and vested it in a number of uniformed force officials: police, agents, and soldiers. But having vested broader powers of force into police, agents, and soldiers means that those classes of individuals have a more complex relationship to force.

These rules of engagement range from the rules that govern the individual's conduct, to a weak set of international laws that govern when nations can go to war. They are a protection primarily to civillians (who need protection since their right to force is much more circumscribed), and furthermore to the practioners of force (who need protection since they are uniquely targetted).

When we come across instances of unsanctioned violence, we have a tendency to examine the individuals who perpetrated the violence -- their motivations and failures in judgment. We sometimes neglect, however, to examine the rules of engagement around them to question whether the rules were clear and correct. For some of instances of violence, obviously, responsibility does end with the individual -- Charles Manson (to pick an arbitrary example) bears absolutely all of the responsibility of his actions. Lately, however, I've spotted a handful of examples where I feel like we missed opportunities to discuss our rules of engagement.

Take, for instance, the international scale. The strongest limits on the use of power by a particular nation are the Geneva Conventions and Protocols. The Geneva Conventions and Protocols govern what can or can't be done by a military power over those who are wounded, captured, shipwrecked, or civillian in a time of war. These protocols are actually enforcable in the International Criminal Court of Justice, although the US does not recognize their enforcement jurisdiction. This is one of the strongest attempts to enforce Just War theory.

Just war theory puts forward a number of stipulations as to limitations on war, both Jus ad bello (criteria for war) and Jus in bello (behavior in war). Jus in bello has a number of restrictions on it, but there are very few restrictions on the Jus ad bello principles:

  • Just cause: The reason for going to war needs to be just and cannot therefore be solely for recapturing things taken or punishing people who have done wrong; innocent life must be in imminent danger and intervention must be to protect life. A contemporary view of just cause was expressed in 1993 when the US Catholic Conference said: "Force may be used only to correct a grave, public evil, i.e., aggression or massive violation of the basic human rights of whole populations."
  • Legitimate authority: Only duly constituted public authorities may wage war.
  • Probability of success: Arms may not be used in a futile cause or in a case where disproportionate measures are required to achieve success;
  • Last resort: Force may be used only after all peaceful and viable alternatives have been seriously tried and exhausted or are clearly not practical. It may be clear that the other side is using negotiations as a delaying tactic and will not make meaningful concessions.
  • Proportionality: The anticipated benefits of waging a war must be proportionate to its expected evils or harms. This principle is also known as the principle of macro-proportionality, so as to distinguish it from the ''jus in bello'' principle of proportionality.

I have removed "Comparative Justice" because is demands that one side suffer more than the other; attempts to apply that could very much trend toward Genocide. I've also removed Right Intention because I think it is redundant with Just Cause.

So my question is, what restrictions (theoretically) internationally exist on the American President to determine when he goes to war? The focus on the American President because he is the official within the government who is tasked with the ability to wage war -- he is the police and the military personified. When it comes to these restrictions a separate debate is the effectiveness of these restrictions, how they work in practice.

Officially, we only have a direct restriction on the President to enforce one of the Jus ad bello principles. The War Powers Act, by limiting the ability of the President to deploy troops without a mandate from Congress, theoretically posits that the President derives his authority to wage war from Congress; that's the "legitimate authority" established by the Constitution. Unfortunately, by attempting to legally separate "police actions" from "war," the President's use of force becomes unencumbered by those restrictions. The emphasis should not be on the terminology: it should be on the force itself.

In the future, I think it is pretty clear that eventually, we will come up with a formal way to constrain the President's war powers along the lines of Just War theory in a way that doesn't simply rely on voters punishing the President (which historically is almost never the case -- apologies to Lyndon Johnson). We have a lot more robust attention to the President's conduct in war than the President's conduct in deciding on war. Eventually, we'll make it the case that when the President initiates an unjust war, it is not just bad judgment or a personal failing, but rather a crime.

Update: Cleaned up some formatting because I'm relinking to it.

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