The Relevant Portions of “Law in the Service of Terror–The Strange Case of the Additional Protocol” by Douglas Feith [The National Interest, Fall 1985]

May 21, 2004

In response to overwhelming interest (well, okay, moderately whelming interest, e.g., Matthew Yglesias and Mark Kleiman) in the 80’s era legal writings of Douglas J. Feith, now famous, alas, for his many alleged follies and foibles as the Undersecretary of Defense for Policy, here’s the relevant portions of his article “Law in the Service of Terror — The Strange Case of the Additional Protocol” from the inaugural issue of Irving Kristol’s The National Interest (Fall 1985)

But first, if you want background separate from Mr. Feith’s version, note that the “Additional Protocol” in question is Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) which entered into force in December 1979.

In particular, Mr. Feith was aghast at Articles 43 and 44 of the Additional Protocol which, though it might not be obvious from the dry legalese, formally extends the prisoner of war and legal combatant protections of the Geneva Conventions to any terrorist/guerrilla forces that plausibly can argue it fights for a political purpose and merely makes an honest effort, whenever possible, to distinguish themselves from the civilian population—though arms must always be carried openly whenever combat is joined (see especially Article 44.3). (NB: Mr. Feith was not arguing against the Additional Protocol’s “Part IV” protections of the civilian population—Articles 48-57—that were linked to by Mark Kleiman in his post.)

SECTION.-COMBATANT AND PRISONER-OF-WAR STATUS

Article 43.-Armed forces

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

Article 44.-Combatants and prisoners of war

1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.

2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) During each military engagement, and

(b) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c).

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

5. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.

6. This Article is without prejudice to the right of any person to be a prisoner of war pursuant to Article 4 of the Third Convention.

7. This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict.

8. In addition to the categories of persons mentioned in Article 13 of the First and Second Conventions, all members of the armed forces of a Party to the conflict, as defined in Article 43 of this Protocol, shall be entitled to protection under those Conventions if they are wounded or sick or, in the case of the Second Convention, shipwrecked at sea or in other waters.

Also, remember that the article was written in 1985. “Terrorism” in the article is virtually synonymous with “national liberation warfare,” another term that’s freely used in the article since it was freely used in the UN forums at the time. The diplomatic conference leading to the Additional Protocol earns scorn from Mr. Feith for including the following groups, which as a sign of those times, were mostly from sub-Saharan Africa and not the Middle East:

So the Diplomatic Conference lost little time in adopting a resolution that invited the participation of “national liberation movements” from around the world. The following groups accepted and, though they lacked entitlement to vote, participated in rewriting the international community’s humanitarian law: African National Congress (South Africa); African National Council of Zimbabwe (Rhodesia), Angola National Liberation Front (FLNA); Mozambique Liberation Front; Palestine Liberation Organization; Panafricanist Congress (South Africa); People’s Movement for the Liberation of Angola (MPLA); Seychelles People’s United Party; South West Africa People’s Organization; Zimbabwe African National Union; and Zimbabwe African People’s Union

———————————————-

Well, that’s enough of my introduction. Here’s Mr. Feith’s introduction:

Were there nothing more to it than destruction and brutality, terrorism would not command the world’s attention as it does. It is gripping because its purpose is grand: the getting (or keeping) of political power. To fail to recognize terrorism as political method—more than simple madness or simple crime—is to preclude appreciation of why terrorist organizations do much of what they do.

Such organizations devote a great deal of effort to participating in international conferences, cultivating relations with governments, and capitalizing on their own earnest invocations of international law as the source and the sign of their struggles’ legitimacy. It seems bizarre that a group willing to murder children as a means of conveying a message should concern itself with what people think of its legal or moral grounding. But such is the case.

That terrorist organizations take international law seriously (which is not at all to say that they comply with it) is evident from the history of the Geneva Diplomatic Conference on the Reaffirmation and Development of Humanitarian Law Applicable in Armed Conflict—hereafter the Diplomatic Conference—which met from 1974 to 1977 under the auspices of the International Committee for the Red Cross (ICRC).

The record of the Diplomatic Conference sheds light on how terrorism, law, and politics tie together. It calls attention to the gulf that divides Western liberal political culture from that of totalitarian and most Third World powers with respect to conceptions of law and of human rights. It reveals the pitfalls of dialogue in the absence of common values, common interests, and common usage of words. And it opens for examination the negotiating techniques Westerners routinely employ in international forums, techniques rooted in the conviction that consensus is more important than principle.

———————————————
Most of Mr. Feith’s 10-page article is devoted to summarizing the debates in the Diplomatic Conference, often quoting the various representatives. Though Mr. Feith pretty obviously has disdain for the PLO representative and, to a lesser extent, the Swiss representative that he quotes, his own argument really only comes on last page of the article. I now reprint the key portions of this final page (I am trying to adhere to fair use here.):

Slowly over centuries, humanitarian law strove to mitigate war’s harm to civilians through demanding discrimination between combatants and non-combatants. Now comes the Diplomatic Conference and, in the name of “developing” humanitarian law, through a single subordinate clause, lays waste to the legal and moral achievement of ages. That clause, of course, is Article 44(3): “Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself…” (emphasis added). The “cannot” is a masterstroke of amoral draftsmanship.

There is much that is unconstructive in the goings-on of multilateral diplomatic forums around the world. But for truly malign perverseness, it would be hard to top the Diplomatic Conference. The Official Record tells a sinister and sad tale. What makes it sinister is the harm done to potential victims of war and terrorism through prostitution of the law. Beyond that, what makes it sad is the role played by the Westerners. The stakes were higher at the Diplomatic Conference were higher than at a typical UN forum. The subject matter was no ordinary diplomatic resolution, but a treaty with actual potential for affecting the safety and well-being of war victims. The Westerners, from the outset, demonstrated appreciation of the stakes, astuteness in substantive analysis, and skill in pleading. But on issue after issue, when confronting the “Socialist” and Third World states’ resolute attachment to patently harmful proposals, the Westerners backed down. They usually put up a good fight for a while, but they either signed on or slunk into the shadow of an abstention. At any of several junctures, they could have walked out and rendered the whole exercise academic (for without the major Western powers, no humanitarian agreement would have much standing in the world). But they stayed. Representatives of tyrannies upheld their convictions—stood on their principles, as it were—while the representatives of states where law really governs exalted the necessity for flexibility and compromise above all other principles. Thus with nary a negative vote, the assembly issued up a pro-terrorist treaty masquerading as humanitarian law.

Postscript:

The United States signed Protocol I and II in December 1977. The discussion of whether to submit either or both of the items to the Senate for advice and consent on ratification is currently under discussion within the [Reagan] administration. It will hinge on whether the unacceptable elements are remediable through US reservations and clarifications.

So ends Mr. Feith’s article, and so ends my post on it. I hope it helps those who were interested.

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One Response to “The Relevant Portions of “Law in the Service of Terror–The Strange Case of the Additional Protocol” by Douglas Feith [The National Interest, Fall 1985]”


  1. I really enjoyed reading your post, keep up creating such interesting articles!


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