5 Responses

1. A propaedeutic:

   The use of ‘network’ language is midleading and inappropriate because it appears to assimilate Hizbu’llah to al-Qaeda, a fundamental analytical mistake, as any number of experts on Islamism and politics in the Middle East have explained (most recently, Professor Juan Cole over at his blog, Informed Comment). Like the notion of civil society, the concept ‘network’ means many things to many people, and has become all-the-rage of late in the social sciences: see, for example, Manuel Castells, The Information Age: Economy, Society and Culture, Vol. 1: The Rise of the Network Society (1996), and most recently, Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006). To make matters worse, it has become a rather amorphous analytical concept within Islamic Studies proper, as in miriam cooke [sic] and Bruce Lawrence, eds., Muslim Networks: from Hajj to Hip Hop( 2005).

   It behooves us to properly characterize Hizbu’llah as best we can: Islamist social movement (e.g., jihadi movement to fight oppression and in resistance to Zionism; ‘jihad’ is of course used here in the sense of the ‘lesser jihad‘ that is defensive in nature, akin to a religiously sanctioned notion of just war, hence Islamic just war theory), welfare organization and political party. It is not in any way ‘a super-powered terrorist network,’ even if we concede that it resorts to what are at best described as ‘terrorist tactics.’ Such emotionally charged hyperbolic rhetoric precludes a dispassionate moral and legal examination of the issues and evidence.

   Hizbu’llah emerged as a direct response to the Israeli occupation of Lebanon, and views its war of resistance and attrition as successful in getting Israel to withdraw from Lebanon. Moreover, and more fundamentally, ‘Hizbu’llah’s reluctance to grant Israel recognition is rooted in its rendition of the origins of the Israeli state, which it unequivocally portrays as a “rape” or “usurpation” of Palestinian land, thereby rendering it a state which is “originally based on aggression.” [....] Hizbu’llah does not just anathematise Israel on account of the circumstances of its establishment, but also because of its contemporary political and military activity. [....] [T]he Judaisation of Palestine is not the final end of the Zionist project, but is merely the first step towards the establishment of “Eretz Israel” (the Land of Israel), or the Judaisation of the entire region. [T]he ultimate Zionist objective is to realise the Jewish biblical dream of expanding from the Nile to the Eurphrates, which is symbolized by the two blue lines on either side of the Star of David on the Israeli flag.’ (from Amal Saad Ghorayeb’s 2002 book)

   In the past, Hizbu’llah has launched Katyusha rockets into northern Israel to deter Israel from shelling civilian targets in Lebanon.

   A few more thoughts before handing it over to the legal experts: It may help to keep in mind what Stephen Poole has said about ‘asymmetric warfare,’ defined here by Robert R. Tomes: ‘A simple theoretical construct underlies the theory and practice of counterinsurgency warfare. It is the essence of what today’s theorists and strategists term asymmetric warfare: although an asymmetric distribution of resources and abilities actually favors counterinsurgent forces, they are often inappropriately wielded. The conflict is asymmetric because there is a “disproportion of strength between the opponents at the outset, and from the difference in essence between their assets and liabilities.”’

   And now Poole:
   
   ‘”Asymmetric warfare” is the term employed by the US military for fighting people who don’t line up properly to be shot at: on the one side you have battalions of American infantry, marines, tanks and aircraft; and on the other you have terrorists, or guerrillas, or militants, or insurgents. But the more revealing asymmetry lies in the giving of names in the “war on terror”. We are soldiers; you are terrorists. Asymmetric warfare means: we are fighting a war; but you are not. And so when we capture you, do not expect to be a prisoner of war. You will be a terrorist suspect, an illegal combatant, a ghost detainee. And so the deliberate blurring of categories in the phrase “war on terror” led straight to Abu Ghraib.’

   Or, as Chris Bertram wrote over at Crooked Timber:

   ‘Of course the reason people don’t line up to be shot at, wearing proper uniforms, distinguishing themselves from the civilian population, and so on, is that it would be suicidal so to do. And here lies a real difficulty for conventional just war theory. If recourse to war is sometimes just—and just war theory says it is—but it may only be justly fought within the jus in bello restrictions, then it looks as if an important means to pursue justice is open to the strong alone and not to the weak. Faced with a professional army equipped with powerful weaponry, people who want to fight back have no chance unless they melt into the civilian population and adopt unconventional tactics. If those tactics are morally impermissible because of the risks they impose on non-combatants, then it looks as if armed resistance to severe injustice perpetrated by the well-equipped and powerful is also prohibited. And that looks crazy.

   Needless to say this is a problem that is simply ignored by the many blogs that drone on incessantly about jus in bello violations by the weak (and, in the face of those violations, parrot the synthetic moral outrage of the spokespeople for strong states). On the other side, though, it hardly seems to be satisfactory to say that non-conventional forces should be subject to weakened jus in bello restrictions, since the restrictions are there to protect those who have immunity from attack and whose immunity is not removed or diminished by the fact that one side or the other are militarily disadvantaged. So I was interested to read a recent paper by David Rodin, “The Ethics of Asymmetric War” in The Ethics of War (eds Sorabji and Rodin). Rodin proposes to address the problem by strengthening the jus in bello constraints on the strong. In particular he suggests that they be restrained from attacking “grey area” targets (targets that have potentially military uses by serve important civilian functions, such as TV stations, and power plants), that before an attack is authorised they be required to establish with a far higher degree of certainty than at present that a proposed target is indeed legitimate, and, third, that they be made to take “exceptionally rigourous” steps to ensure that civilians are not exposed to collateral harm and also to ensure that the environment in which those civilian live is not damaged and degraded.’

   Finally, to shake things up a bit (and it is not that I always agree with him), I would suggest readers look at recent books by the English philosopher Ted Honderich, specifically, After the Terror (2004 ed.), and Terrorism for Humanity: Inquiries in Political Philosophy (2003). And several related essays on terrorism are availabe at his website.

   7.31.2006
   at 7:57 am EST Seamus

2. Addendum to Propaedeutic:

   There is a helpful discussion of Hizbu’llah available now at Middle East Reports Online: ‘Hizbullah: A Primer,’ by Lara Deeb

   Available at http://www.merip.org/mero/mero073106.html

   7.31.2006
   at 11:58 am EST Seamus

3. Roger,
   
   Your post about what military types call asymmetrical warfare poses the ultimate question for modern day warriors – how do you fight and win against such an enemy?

   Some of your readers may be interested in considering this question from the strategic through tactical military perspective. If so, they might want to take a look at the
   
   following book “Learning to Eat Soup with a Knife: Counterinsurgency Lessons from Malaya and Vietnam” by LTC John Nagl.

   Nagl was a classmate of mine from Command and Staff College who is (I believe) currently commanding a US Battalion in Iraq. I did not know him personally, but I do know his work is highly respected within the military.

   Nagl reminds us that while aspects of the current fight are indeed “new”, the basic problem of unconventional warfare is certainly not (in fact, the quote used in the title is attributed to T.E. Lawrence). Such conflicts (perhaps more than any others) require a carefully conceived and executed application of not just military power, but all components of national power, sometimes referred to within the military as the “DIME” – the four pillars of national power leveraged to achieve strategic objectives: Diplomatic, Informational, Military, and Economic.

   I don’t think Nagl offers all the answers to the question you pose, but he does use history to remind readers that over-emphasis of the “M” component of the DIME is never effective against such an opponent.

   7.31.2006
   at 1:19 pm EST Geoffrey Corn

4. The post on asymmetrical warfare was very interesting. It is a term that is prominent in U.S. military thinking these days because it does reflect the use of “unconventional” tactics to compensate for a disparity in military capability. From a legal perspective, this is particularly troubling. Asymmetrical warfare in this context essentially refers to a confrontation with an enemy who seeks to gain advantage by exploiting his opponent’s efforts to comply with the law of armed conflict. This may be tactically logical, but because it eviscerates the ability to distinguish between “warrior” and “civilian”, the civilian population invariably pays the heaviest price.

   It is worth noting that the legal dilemmas associated with “asymmetrical warfare” have long been understood. Historically, the response has generally taken the form of one of two approaches. The first was to rely on sanction – either in the form of increased application of combat power or post-capture punishment – in the hopes of deterring such tactics. Unfortunately (or perhaps fortunately, depending on perspective), this approach rarely achieves the objective, which is not surprising considering the resolve of such an enemy to confront overwhelming military disparity to begin with.

   The second approach is one rarely discussed: extending prisoner of war status to non-state “warriors” by special agreement. Although this might seem like an outrageous proposition, particularly during a period of history when the lack of entitlement to this status is constantly emphasized, there is an appealing logic to the approach. This logic is not derived from the “treatment” that will result for captured personnel. Instead, it is derived from the fact that such a grant of status carries with it “combatant immunity” for pre-capture warlike acts.

   Combatant immunity is the ultimate “quid pro quo” principle of the law of war. It is based on a simple premise: if you conduct yourself as a “lawful” combatant – which requires you to respect the law of armed conflict and facilitate the ability of your enemy to distinguish you from the civilian population – you get the reward of immunity for your warlike acts upon capture. If, however, you violate the law of armed conflict and are subsequently captured, your misconduct falls outside the “blanket of combatant immunity”, and you are subject to criminal sanction. Compliance with the jus in bello becomes a self-interest of every warrior in the fight.

   While it is understandable why States have never consented to extending prisoner of war status to non-international armed conflicts, it is also ironic that it is precisely these conflicts in which the dangers to the civilian population resulting from unconventional tactics (including abusing the law of armed conflict) is most significant. But, without combatant immunity, members of a non-state paramilitary force have far less incentive to respect the law.

   Although Additional Protocol II includes a procedure for entering into such special agreements, they are indeed rare, and to my knowledge have never been contemplated between a State and an opponent characterized as a “terrorist” group. Extending the benefits of prisoner of war status to such individuals is without question a “lightening rod” issue, particularly for the United States (which has objected to this concept since it rejected Additional Protocol I). It is also probably never a feasible option for some non-state groups, but as the prior post indicates, not all such groups “are built alike.” But as armed forces struggle to address the challenges of the asymmetrical battlefield, it is at least worth contemplating whether such initiatives might just increase respect for the jus in bello during such conflicts, and in so doing mitigate the asymmetry as it relates to the law.

   7.31.2006
   at 1:56 pm EST Geoffrey Corn

5. Professor Alford,

   As it pertains directly to your post, I suspect you would be interested in Dr. Avi Bell’s piece, ‘Human Rights Watch’s Q&A on Lebanon War: Selective and Distorted Application of International Law,’ found at NGO Monitor: Promoting critical debate and accountability of human rights NGOs in the Arab-Israeli Conflict (The Jerusalem Center for Public Affairs/Institute for Contemporary Affairs

   An exchange of letters followed in The New York Sun between Professor Bell and Kenneth Roth, Executive Director of Human Rights Watch. The Sun followed with its own editorial castigating Roth and HRW.

   Some readers may be relieved to learn that several impending deadlines preclude me from commenting, although I admit the temptation is rather strong.

   Perhaps you and/or Opinio Juris readers want to comment….

   8.01.2006
   at 7:21 pm EST Seamus

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