Trying to Change the Rules

In an initiative spearheaded by the Institute for National Security and Counterterrorism, experts are starting to consider whether the so-called “rules of war” still work.

Bill Banks is not one to allow matters to work their way out over time. “It’s not my nature to lay back and let things take their course,” he says. “I’m a Type-A sort of guy.”

Lately, though, Banks, a professor of law and public administration and an expert on security law, has been developing a higher grade of patience. As director of Syracuse University’s Institute for National Security and Counterterrorism (INSCT), Banks has decided to spearhead an international, multi-year effort to amend the so-called “rules of war.” It’s going to take years, and will involve people and phases that Banks cannot foresee. “It’s an open-textured project right now,” he says. “We’re only at the stage of identifying others who are interested in the challenges that are posed here.” In other words, he’s taking it one step at a time.

Beginning with The Hague Convention of October 1907, and expanded over time by three Geneva Conventions and other treaties, there has been a body of generally accepted practices in armed conflict—the “rules of war.” These rules seek to minimize civilian casualties, set humane standards for the treatment of prisoners, define and prohibit torture, and otherwise bring some propriety to the otherwise ruthless practices of warfare.

When those rules were conceived, warfare was conducted largely by state-sponsored armies at conflict on clearly delineated battlefields. Today, most war is “asymmetric,” conducted between state and non-state actors, with the latter compensating for their material disadvantages by employing methods that fall outside the traditions of previous eras. Often, state actors find it difficult to respond without violating the rules themselves. “Part of the problem,” Banks says, “is that there is no framework for conducting conflicts like this.”

The Israeli-Hezbollah conflict in summer 2006 was like that, and, in its wake, Banks had conversations with Boaz Ganor, his counterpart at the International Institute for Counter-Terrorism in Herzliya, Israel (with which INSCT has a partnership); and with Mitchel Wallerstein, dean of Maxwell and an international security expert himself. They agreed the rules of war no longer cover the dominant form of warfare in the 21st century. Someone should attempt to update them. INSCT, with its Israeli partners, is well-positioned to take that on.

Since then, Banks has been developing broad circles of associates, endeavoring to engage the experts who will in turn develop the concepts that might one day underlie proposed revisions of the rules of war. It’s an ever-evolving germination process, involving white papers, video conferences, and case-study task forces.

And, on October 8, a major, day-long conference in Washington, D.C., titled “New Battlefields, Old Laws: From the Hague Conventions to Asymmetric Warfare.” Here was a chance for many of the key collaborators to gather and give their ideas a public airing. For one day, the “rules of war” question enjoyed the spotlight.

What the conference demonstrated is that the “rules of war” question is, in fact, a collection of questions—a cornucopia of battlefield-method issues all begging to be addressed. Some presenters focused on the unacceptable practices that non-state combatants employ: among them, using civilians as “shields” against attack; donning medical insignia to gain site access; and avoiding any distinctive appearance, such as uniforms. “The idea of the uniform is more or less becoming out of fashion on the battlefield,” said Colonel Daniel Reisner, former head of the International Law Department of the Israel Defense Forces.

Others described evolving methods used by the states actors—the United States especially—as creating confusion about “rules of war.” They cited Guantanamo Bay, Abu Ghraib, and alleged secret questioning centers. They challenged the use of private security contractors. They said the U.S. cannot be seen as skirting convention.

“As important as actually complying with the law is the perception that we comply with the law,” said David M. Crane, a professor of law at SU, “because as our sons and daughters go into conflict we want the other side to also treat our soldiers, sailors, marines, and airmen equally under the laws of armed conflict.”

But will they? Boaz Ganor, like some of the other presenters, was optimistic. Despite their extreme methods, he explained, non-state combatants ultimately depend on constituencies. Even they derive authority and power from seeming to abide by humanitarian standards. “I believe that asymmetric laws will pose a dilemma for the [non-state entities] and they would have to choose between risking their interests and their terrorist activities,” he said.

What next? Papers to further develop the conference’s major ideas. A future conference in another corner of the globe. The engagement of other scholars and possible collaborators.

And so it goes. Experts and their ideas, spinning around one another, destined to take a shape that world leaders can someday agree on. How soon? Five years? Ten years? Bill Banks is taking it as it comes. “If we followed a script now that we’d already written,” he says, “we’d be boxing ourselves into outcomes that we shouldn’t even try to predict.”