Scott Holcomb & Mark Ribbing
One of the most striking developments of the post-Cold War era has been the shift in our understanding of war itself. This most ancient of human behaviours has literally taken on a new definition. The 1985 edition of Websterâ€™s Ninth New Collegiate Dictionary described war as â€œa state of usu.
open and declared armed hostile conflict between states or nations.â€ How shopworn that formulation seems today.
Warfare in the 21st century is increasingly the domain of non-state actors - of tribes, cells, clans, and networks. As the nature of war undergoes significant change, so, too, must the laws of war. Of course, the very notion that warfare â€” an activity that necessarily entails premeditated homicide and the intentional destruction of property â€” could be channeled or civilised by statute has always been a bit problematic. Yet there is a long and distinguished history of such legislation, and it has made a difference.
These laws, which include the Geneva Conventions, the Hague Regulations, and other treaties, have been developed and refined over the centuries to reflect changes in warfare and humanitarian standards. The last major revision to the laws of war took place in Geneva in 1949, more than a half-century ago. Today, the world needs new rules of war that reflect a world in which â€œcombatantsâ€ may wear jeans and sweatshirts instead of uniforms with distinctive insignia. The US, as the worldâ€™s superpower and greatest military force, should lead the charge to revise the laws of war to address todayâ€™s threats.
Because terrorists present a continuing threat, nations must be allowed to detain those who are reasonably suspected of enacting or abetting such plots. However, baseline standards for detention must be established, including periodic reviews of each suspectâ€™s case. Congress attempted to address these issues by passing the Military Commissions Act of 2006. This law, signed by President Bush last month, attempts to define unlawful enemy combatants and describe standards for detention and treatment. This unilateral approach to revising international law is misguided, because it may set a precedent for other nations to reinterpret the Geneva Conventions in their own interests to the detriment of United State troops. In addition, some of its more dubious provisions â€” including denial of habeas corpus rights â€” have already prompted significant domestic and international criticism. The law may not even survive scrutiny by the Supreme Court.
It is time for a more effective approach to redefining the Geneva accords. If America hopes to persuade other nations of the legitimacy of its counterterrorism campaigns, it must work to rebuild its moral authority by helping to create internationally accepted standards. An American call for a full modernisation of the Geneva Conventions - one that would create multilateral standards for the treatment, detention, and prosecution of enemy combatants - might be a good place to start. â€” The Christian Science Monitor