Harvard law professor Gabriella Blum and South Texas College of Law professor Geoffrey Corn.
Differing Visions of the Future of Warfare
Would a vintage tank on display at a local museum be a legitimate target for attack if warfare broke out? Of course not, but if the Army provided a docent in uniform to explain the history of the tank to tour groups, that person could be considered an enemy soldier according to today’s interpretation of the rules of warfare.
This is exactly why they need to be reexamined, according to Harvard law professor Gabriella Blum, former head of the counter-terrorism desk in the international law department of the Israeli Defense Forces. Blum was one of two prominent legal scholars invited to a Washington, DC forum to debate the legal uncertainties posed by the applicability of human rights standards to situations where the law of war is applied.
The Jan. 25 program was titled “Mind the Gap: International Human Rights Law and the Law of Armed Conflict.” (For audio cast, click here). Sponsored by The Catholic University of America’s Military and National Security Law Students Association and The American Society of International Law, in cooperation with the American Bar Association’s Standing Committee on Law and National Security, the symposium tackled head on a thorny legal question: To what extent are human rights standards applicable in armed conflicts? For example, does human rights law preclude combatants in war from killing each other’s soldiers, regardless of their role, function, or degree of threat?
Speaking first, Blum made her case that one of the fundamental creeds of warfare—that all soldiers are potential military targets for an opposing force—is a relic that needs to be abandoned. “It’s obvious that not all soldiers are dangerous,” said Blum, observing that soldiers in retreat do not pose the same threat as those on attack. She argued that the blurring of the traditional distinct line between civilian and combatant, as evidenced by the rise of military contractors such as Blackwater, should prompt a reformulation of the basic principles of war. In deciding who to engage in an armed conflict Blum said the paradigm should not be civilian vs. soldier, but rather threatening vs. non-threatening.
South Texas College of Law professor Geoffrey Corn, former professor of international and national security law at the Army JAG School, took a very different view. Blum’s proposed rules of engagement made little sense, he argued, because they failed to take into account that soldiers in combat act in group volition; they are agents of the opposing state and do not make individual moral decisions. For that reason, they must be presumed dangerous at all times and therefore legitimate targets of the use of deadly force as a first resort, not as a last.
“If we’re really interested in humanity, the best ways to [honor] that is to bring the enemy to submission as quickly and efficiently as possible,” said Corn. “I don’t think the changing nature of warfare requires a change in paradigm.”
Before a packed room, the two professors did an articulate and thought-provoking job of delineating quite different visions of how conflicts should be fought in the future. The question of the place of human rights in a violent fire zone is currently a hot one and was the subject of lectures at the US Naval War College last May.
The initial exchange of view between Corn and Blum was expanded upon by the commentary of Harvey Rishikof, professor of law and national security studies at the National Defense University, National War College in Washington, D.C.; and Jamie A. Williamson, legal delegate, International Committee of the Red Cross, Regional Delegation for United States and Canada.