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Perspective and the Importance of History

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Yearbook of International Humanitarian Law 2011 - Volume 14

Part of the book series: Yearbook of International Humanitarian Law ((YIHL,volume 14))

Abstract

In the wake of the al Qaeda 9/11 attacks and ensuing Coalition military operations in Afghanistan, Iraq, and Yemen, government officials, military members, academicians, and international lawyers referred to the “changing character of war” while characterizing the conflicts as “asymmetric” warfare, as if this was the first time in which opposing armed forces with dissimilar capabilities, strategic goals, and tactical choices faced one another: that is, 9/11 was the first time the international community faced asymmetric threats or global acts of terror by armed non-State actors. History suggests otherwise.

Senior Associate Deputy General Counsel, International Affairs Division, Office of General Counsel, U.S. Department of Defense, 2003–2010; Special Assistant for Law of War Matters, Office of The Judge Advocate General of the Army, 1979–2003; Charles H. Stockton Chair of International Law, U.S. Naval War College, 1984–1985; Colonel, U.S. Marine Corps Reserve (Retired). This article is dedicated to the memory of Dr. Avril McDonald, Managing Editor, Yearbook of International Humanitarian Law, (1997–2007) respected colleague, wise counselor, and good friend.

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Notes

  1. 1.

    See, e.g., Schmitt 2007, at pp. 11–48; Murphy 2011 and Heintschel von Heinegg 2011, at pp. 463–480. Reviewing “asymmetric warfare” on Google provided a list that ran into the hundreds of references. “Changing face of warfare” did not begin with 9/11: see Durham and McCormack 1999. It is not the author’s intent to single out his respected colleagues in a negative way but to offer their works as representative of the level of discussion and use of the term “asymmetric” and phrase “changing character of war”.

  2. 2.

    Tophoven 1985, at p. 8.

  3. 3.

    GSG9 was created from an existing civilian law enforcement agency due to German constitutional restrictions on extraterritorial deployment of German military forces.

  4. 4.

    State-sponsored transnational terrorism was detailed in Sterling 1981. In addition to supporting the Palestinian Liberation Organization and other Palestinian terrorist organizations, Libya’s Muammar Qaddafi provided funding, weapons, and training to the JRA, the German Baader-Meinhof Gang, the Italian Red Brigades, Nicaragua’s Sandanistas, the Moro National Liberation Front in the Philippines, Dhofario rebels in Oman, and the Provisional Wing of the Irish Republican Army (PIRA). Livingston 1982, at pp. 17–18.

  5. 5.

    Parks, “Crossing the Line”, U.S. Nav. Inst. Proc. (November 1986), pp. 40–52; and “Lessons from the 1986 Libya Airstrike”, 36 New England Law Review (Summer 2002), 755–766. The author was the legal adviser for the military aspects of the airstrike.

  6. 6.

    Trofimov 2007, at p. 7.

  7. 7.

    Parks 2010, at p. 387. The December 29, 1992 attack on the Hotel Aden was directed against 100 U.S. military personnel billeted there, all of whom departed the previous day.

  8. 8.

    The JAG school is the principal military institution for education of judge advocates from each of the four U.S. military services and friendly governments.

  9. 9.

    A contrast in discriminate force application between conventional military forces and SOF was not new. The precedent was established by SOF working with organized resistance movements in industrial espionage in Axis-occupied nations during World War II, where concern for civilian casualties was substantially greater than in attacks on Germany; see, e.g., Michel 1972, at pp. 212, 216–217. Attacks by organized resistance movements generally were more efficient in precision and effectiveness. See Parks 2003, at pp. 536–538, and (e.g.) Foot 1966, at p. 266, fn. 34, and pp. 505–517.

  10. 10.

    A small but representative sample is Fall 1961; Galula 1964, and Trinquier 1961; Cluterbuck 1966; McCuen 1966; Kitson 1971; Horne 1977; and Marighella1985, as well as the writings of Mao Tse-Tung (discussed infra) and Lartéguy 1962 and Lartéguy 1963. All but the later books (Kitson 1971, Horne 1977) and the English-language edition of Marighella were virtually mandatory reading for serious students of counterinsurgency in the 1960s. Colonel Trinquier’s “modern warfare” is an equivalent to the present day’s use of “changing character of war” and “asymmetric warfare”, in particular in its arguments as to the obsolescence or inapplicability of the law of war.

  11. 11.

    See, e.g., Birtle 1998. A belated sequel is U.S. Army Center of Military History 2010.

  12. 12.

    General Orders No. 100 was preceded by Dr. Lieber’s essay, “Guerrilla Parties Considered with Reference to the Laws and Usages of War”, contained in Hartigan 1983, at pp. 31–44.

  13. 13.

    Throughout the Viet Nam War the Marine Corps actively engaged in the full-time protection of the civilian population, placing a squad of volunteer Marines (Combined Action Platoons, or CAP), in virtually every village in its area of operations. The CAP program is described in West 1972.

  14. 14.

    See, e.g., Farwell 1973.

  15. 15.

    Callwell 1896. London: His Majesty’s Stationery Office. The word “commando”, subsequently embraced by the British in World War II in its designation of units specially organized, equipped, and trained for raids (today referred to as “direct action missions”), was derived from Boer commando units. A key publication from that conflict is Reitz 1930. Law of war principles relating to the conflict were delivered by Dr. Thomas Baty as lectures at Oxford and published in Baty 1900.

  16. 16.

    Foot 1973, at pp. 57–69.

  17. 17.

    Representative works in an area rich with materials are Foot 1977; Hæstrup 1978; and Stafford 1980.

  18. 18.

    Incorrect statements with respect to the law of war by Bush Administration officials in the period immediately following the September 11, 2001, al Qaeda attacks might have been avoided had these individuals taken the time to read and understand the contents and history of Article 4A(2), and seek advice and assistance from subject-matter experts provided, of course, that they were interested in using the law of war for anything other than a political tool. The author’s personal experience is that they did not.

  19. 19.

    See, e.g., Osanka 1962. British campaigns are described in Newsinger 2002 and, with respect to the 1948–1960 “Emergency” in Malaya (now Malaysia), the official history of that conflict by Short 1975. An excellent history of the beginning of the decolonialization period (1945–1949) is Bayly and Harper 2007.

  20. 20.

    The movie was based upon Denton 1973. Denton subsequently authored a comprehensive non-fiction account—Denton 1983. The trial transcripts were destroyed, preventing confirmation of the defense counsel’s closing statement. The movie version closely follows the 1907 account by the surviving co-defendant, Witton 1982, at pp. 118–130.

  21. 21.

    Ambassador Bunker, Thayer Award Address, U.S. Military Academy, as printed in the Congressional Record (May 28, 1970), pp. E4731–4733, at 4732, and cited in Sorley 2011, at p. 1999.

  22. 22.

    Leberman 2011, at p. 153.

  23. 23.

    Moloney Spaight 1911, at pp. 41–72.

  24. 24.

    With respect to Malaya, one failure was to properly investigate the alleged murder of twenty-four (possibly twenty-five) Chinese civilians at Batang Kali during the night of December 11–12, 1948, by soldiers of the Scots Guards. See Short 1975, at pp. 166–169, and Short 2010, at pp. 338–354); and Ward and Mirsflor 2009. A critical analysis of British operations in Iraq and Afghanistan is Ledwidge 2011.

  25. 25.

    Callwell 1896, at p. 99.

  26. 26.

    Oxford University Press 1979, at p. 132.

  27. 27.

    Ibid. at p. 3206.

  28. 28.

    Attributed to Joint Publication 1-02 2006. The current edition of JP 1-02 does not contain the term or definition of asymmetric warfare, having replaced it with irregular warfare, a topic beyond the author’s remit for this volume.

  29. 29.

    For an overview, see Blacker 1954, and Laquer 1977.

  30. 30.

    Article 51(2) 1977 Additional Protocol I, which states in part “Acts or threats of violence for the primary purpose of which is to spread terror among the civilian population are prohibited”.

  31. 31.

    Griffith 1963, at pp. 96–101.

  32. 32.

    Griffith 1961, at p. 100.

  33. 33.

    See, e.g., Parks 2001, at pp. 339–385.

  34. 34.

    Griffith 1963, at p. 101.

  35. 35.

    Griffith 1961, at p. 100.

  36. 36.

    Special Operations Forces missions or tasks are (1) Unconventional Warfare; (2) Direct Action; (3) Special Reconnaissance; (4) Foreign Internal Defense; (5) Counter-Terrorism; (6) Counter-Proliferation of weapons of mass destruction; (7) Civil Affairs Operations; (8) Psychological Operations; and (9) Information Operations. Historical SOF missions have been (1) through (4). Counterinsurgency is a subset of (1).

  37. 37.

    Kemp 1986. This mission was the precedent for PIFWC (Persons Indicted for War Crimes) operations performed by NATO special operations forces on behalf of the International Criminal Tribunal for the Former Yugoslavia in the late 1990s pursuant to the Dayton Accords and UN Security Council Resolutions 1031 and 1088.

  38. 38.

    See Dewar 1984; Kemp 1994; Hoe and Morris 1994; and Jones 2005.

  39. 39.

    See, e.g., Olson 2009.

  40. 40.

    For example, Hartcup 1988; Nissen 1987; and Pritchard 1989.

  41. 41.

    ICTY, Prosecutor v. Dusko Tadić, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-I, 2 October 1995, Opinion of Judge Cassese, at para 99.

  42. 42.

    Continental Shelf (Libyan Arab Jamahiryah v Malta) Judgment (1985) ICJ Rep 13, at para 27 [emphasis provided], further citing the North Sea Continental Shelf, Judgment (1969) ICJ Rep 3 as the “’classic’ approach” in determining customary international law. Henckaerts and Doswald-Beck 2005, at pp. xxxii. In his critique of the ICRC Study, Professor Ian Scobbie comments “In its account of methodology employed, the [ICRC] Study asserts that its approach in assessing whether a given proposition was customary law was a ‘classic one’, as delineated by the International Court in various cases but ‘in particular in the North Sea Continental Shelf cases’. In reality, however, there appears to be a divergence between the rhetorical reaffirmation of views set out in the North Sea Continental Shelf and the less stringent methodology which actually appears to have been employed.” Scobbie 2007, at p. 27.

  43. 43.

    Denunciations have been expressed by officials of the United States, Belgium, and Canada, for example. Personal knowledge of the author.

  44. 44.

    E.g., Parks 2003; and Parks 2009, at pp. 247–306.

  45. 45.

    See, for example, Letter of William J. Haynes II, General Counsel, Department of Defense, and John B. Bellinger III, Legal Adviser, Department of State (November 3, 2006), to Dr. Jakob Kellenberger, President, International Committee of the Red Cross, reprinted at Bellinger and Haynes 2007. Non-official critique includes Parks 2005, at p. 211; Aldrich 2005, at p. 507; Turns 2006; and the very comprehensive Wilmshurst and Breau 2007.

  46. 46.

    Andradé 1990, at Appendix 1.

  47. 47.

    As previously noted, NATO SOF were operating pursuant to United Nations Security Council Resolutions 1032 and 1088. PIFWC operations are known to have resulted in the capture of 23 indicted individuals. Two died resisting capture attempts.

  48. 48.

    Utinsky 1948, at p. 92.

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  1. International Affairs Division, Office of General Counsel, U.S. Department of Defense, Butte, MT, 59701, USA

    W. Hays Parks

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  1. , CNWS-ILD, United States Naval War College, 686 Cushing Road, Newport, 02841-1207, Rhode Island, USA

    Michael N. Schmitt

  2. , Chatham House, The Royal Institute of International Aff, St. James´s Square 10, London, SW1Y 4LE, United Kingdom

    Louise Arimatsu

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Parks, W.H. (2012). Perspective and the Importance of History. In: Schmitt, M., Arimatsu, L. (eds) Yearbook of International Humanitarian Law 2011 - Volume 14. Yearbook of International Humanitarian Law, vol 14. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-855-2_12

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