Armed Groups and the Law

Title

Armed Groups and the Law

Editor(s)

Jeffrey Norwitz ed.

Files

Description

In the tumultuous opening decade of the twenty-first century, the debate over which legal regime should be applied to armed groups leaped from its historical position in the pages of military manuals and academic journals to the front pages of leading newspapers and cable news services. As the violence by armed groups metastasizes and takes on new and ever-more-virulent forms, the legal system and its practitioners have struggled to keep up. There is every reason to believe that the United States is approaching a tipping point on the matter, and will soon be compelled to give the legal regime as much attention as has been given to strategies and policies for responding to the threats.

National security and defense strategists have long referred to the “spectrum of conflict,” which stretches from low-level crime or civil disturbances in an otherwise “peaceful” situation at one end to unrestricted war between states at the other. Bookstores and leading journals are increasingly filled with dark and disturbing assessments documenting the emergence of a “new generation” of warfare operating in the middle of the spectrum—one characterized by strategies and tactics that blur the distinction between combatants and civilians, and that are often deployed in densely populated urban centers where avoiding collateral injury or damage to civilians and civilian objects is particularly difficult, and one that has now spread throughout what has been labeled the “arc of instability,” with deadly forays into New York, Bali, Madrid, and London. The proponents and perpetrators of this new generation of warfare, which some believe now represents the dominant warfare paradigm, and which might soon be utterly transformed by the addition of weapons of mass destruction, pose a daunting challenge to our existing legal regime.

We find ourselves with a legal regime for large-scale violence that is seen by some as binary and yet, ironically, complete. On the one hand, we have a “warfare” paradigm for formal belligerencies and insurgencies, while on the other we rely on a law enforcement paradigm for violence at the low-level end of the spectrum of important consequences for issues regarding the use of force against members of armed groups, as well as their capture, detention, interrogation, and punishment. The warfare paradigm is principally grounded in the Hague Rules, the Four Geneva Conventions, and a body of customary international law, while the law enforcement paradigm is set out in a complex web of international conventions, bilateral treaties, and national laws. The warfare paradigm distinguishes between combatants and civilians; prescribes penalties for “war crimes,” while otherwise immunizing lawful combatants for killing the enemy; and includes provisions for detention of enemy combatants and even civilians. The law enforcement paradigm consists of a broad set of criminal proscriptions, together with a body of international and national laws governing the extraterritorial application of national law, extradition, the rights of the accused, trial procedures, and, more recently, the relationship between national and international courts.

This chapter seeks to provide the reader with an introduction to the legal principles applicable to armed groups, with the more specific aim of providing the reader with the necessary background to evaluate three issues. The first is the extent to which members of armed groups may be targeted—that is, whether they can be killed by members of the armed forces of a state without benefit of prior due process of law. The second issue concerns the long-term detention of members of armed groups and the legal standards applicable to their capture, classification, interrogation, treatment, and release. The final issue focuses on the criminal liability of members of armed groups, either under the law of war or the ordinary international and national criminal laws typically applied in peacetime.conflict. The choice has

Title of Book

Armed Groups: Studies in National Security, Counterterrorism, and Counterinsurgency

ISBN

9781884733529

Publication Date

6-1-2008

Document Type

Book Chapter

Publisher

U.S. Naval War College

City

Newport, RI

Keywords

collateral damage, Geneva Conventions, warfare, weapons of mass destruction

Disciplines

International Law | Military, War, and Peace