War is an inescapable reality of human society and is characterized as a continuation of national policy in the pursuit for specific end. War has also played a central role in the formation of international order and its maintenance. States use armed conflict for national policy goals. Since the 1949 Geneva Conventions and the two Protocols of 1977 became International Humanitarian Law (IHL), they remain a relevant reference for regulating the conducts and behaviors of the armed conflicts. The core values of the international law of armed conflict or IHL allows states balance between the demands of military necessity and those for humanity. In the wake of armed conflict, the established IHL and the international customary law, requires states and non-state armed groups distinction between combatants and civilians. However, the changing nature of warfare poses a multitude of challenges to the applicability of the international law of armed conflict. Some of the changes by the contemporary armed conflict generate violations of the laws of armed conflicts. The United States’ use of military force to achieve policy goals has limited its compliance to the laws of war, which is a detrimental to the mission of International Humanitarian Law. The United States’ practice of engaging armed conflict and its compliance to the IHL is often thwarted that the current framework of the IHL cannot be applied in all situations of armed conflicts.
Law of Armed Conflict provides the framework for informed operational and decision-making process that establishes certain limitations on the scope and the nature of the use of force by the belligerent parties; and imposes affirmative obligations related to the conduct of the States or non-state armed forces. The development of the International Humanitarian Law and liberal ideologies have increased by the results of the development of military technology that enabling advance intelligence capabilities that allow the warring parties achieve precision in targeting their enemies. On the other hand, the development of the International Humanitarian Law has reduced the willingness to sacrifice human lives and wealth to war. However, the decrease of the international armed conflict does not mean it is gone, but transformed to irregular warfare. States engage to a war that is not always based on the IHL principles of necessity, humanity, distinction, and proportionality, but also a progression to achieve political goals. For this reason, the United States’ post-cold-war foreign policy and war on terrorism have minimized its compliance with the laws of war. The degree of the United States’ compliance with laws of armed conflict has significantly decreased since the first Gulf War of 1990(Operation Desert Storm).
The theory of Proportionality is one of the principles of jus ad bellum for determining whether resort to war is justified, and requires states comply IHL with the demands of Proportionality. Principle of Proportionality plays a central role in both jus in bello and jus adbellum. War is held as the last resort being declared by a proper authority and intentions of its success; its end is regarded to be proportional to the means it is used. the assessment of whether the expected collateral damage to civilian and civilian objects is excessive in relation to the directly anticipated military advantage. The UN Security Council has the authority to determine whether the use of force is warranted on a particular event. The UN Security Council consists of five “permanent member” states along with ten elected “non-permanent member” states. The Security Council is the primary authority responsible for international peace and security, and therefore has the authority to enforce International Humanitarian Law. In the wake of 1990 Gulf war, the United States and its allies fulfilled all legal elements to use force against the Iraqi government for its military occupation in Kuwait. The Security Council adopted Resolution 678to authorize member states to use of necessary force against Iraqi government for its violation of the IHL. The decision came after many failed attempts of non-military force by the Security Council against Iraq.
Post-Cold War U.S. Foreign Policy and Military Interventions
Since war is a goal-oriented of political activity, the political reality in the Middle East plays a crucial role of U.S. military interventions in the region. After the Six-Day War of 1967, Arab-Israel armed conflict, US-Iraq diplomatic relationship strengthened in the face of Iran. The United States unequivocally supported Iraq on Iraq-Iran war which opened an opportunity for the U.S. foreign policy to become a stakeholder of the power-struggle in the Middle East as a global “superpower.” When Saddam Hussein forces invaded Kuwait in 1990, Saddam Hussein accused Kuwait and the United Arab Emirates of over-producing oil and dispute over Rumaila oil field in Iraq. U.S. had a close alliance with the UAE and Kuwait, and thus, allowed the United States lobby in the Security Council for international intervention against Iraqi forces’ occupation in Kuwait, and therefore, triggered the adoption of Resolution 678 of the Security Council, for the coalition forces to militarily engage against Iraq forces in Kuwait.
The legitimacy of 2003 Operation Iraqi Freedom/ Operation New Dawn (2003 Iraq War) has political interpretations that are rarely discussed in the mainstream foreign policy forums. U.S. charge of “non-compliance” on Iraq in 2003 did not justify an automatic response of the use of force. The justification of this war was not widely accepted as a legitimate among the international community, including some of the U.S. key allies, given the length of legitimacy time which had passed and not restored. Saddam Hussein’s government demonstrated positive gestures of compliance to the Security Council, and the report of the International Atomic Energy Agency (IAEA) concluded that there was not enough evidence of non-compliance. However, due to the political calculations of U.S. foreign policy to the Middle East, the United States has regarded going forward with its decision to use of force on Iraq regardless of Security Council’s denial of approval of a resolution to attack Iraq. Thus, the 2003 invasion on Iraq clashed with the esteemed and longstanding standards set forth by the Jus ad Bellum principle of IHL. On the other hand, the scale of Iraq invasion coupled the destruction of unnecessary civilian lives and civilian objects, which falls under the principle of Proportionality. The effect of civilian lives and objects by the United States in Iraq haunts Iraqi people until today.
As recent as Aug. 29, the U.S. military launched an armed drone strike in a densely populated residential area near Kabul airport, destroying a white Toyota sedan- which U.S. Dept. of Defense claimed “prevented” car bomb on U.S. troops and civilians at the Kabul Airport. However, a later New York Times REPORT revealed that the drone strike mistakenly targeted an aid worker and killed 10 innocent civilians. This event brings into question U.S. identification and verification practices and their assessments of proportionality before launching a strike and post-strike assessments of civilian casualties and assurances given to the public. 2017 Gopal and Khan’s “uncounted” data reveals that the United States’ air strikes against ISIS exceeded 31 times greater than what the coalition forces reported, which exceeds the proportionality of the combatant targets. Additionally, the insufficient analysis of the target that caused the destruction of property and lives of Basim Razzo and his brother’s houses is another breach of the principle of Distinction dilemma (Khan & Gopal, 2017). Another event involves the principle of proportionality, is 2011 U.S. intervention in Libya; was not only a low-cost military victory with massive civilian casualties, but also an abject failure that led Libya into a failed state until today with countless human rights violations.
Finally, despite the challenges and political pitfalls by the states to the international humanitarian law, IHL contributed the reduction of war and the maintenance of the global peace and security. It is clear that the recent US interventions in the Middle East and East Africa highlights the use of drones, and the practice of precision warfare are beyond the scope of the current LOAC framework. It is necessary to consider further development of International Humanitarian Law in regard to the irregular weapons and practices by the States and non-state actors.