CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

increase the likelihood of such misconduct, must ensure that their training, especially of
junior commanders, is cognisant of the threat. This is not, however, the set of
circumstances of greatest concern; we know such conduct is wrong and we know what
we must do to minimise it (we will never entirely eradicate it).
The issue of most concern, then, is how to strike the right balance between judicious use
of force, soldiers’ individual accountability for its use (and culpability for its misuse)
and operational imperative. There are essentially three mechanisms: the law
(International, domestic and military); military ethos discipline and training (of which a
key part is the warrior code discussed above – see p279); and RoE.
The main source of international legal restraint is the considerable body of IHL dating
back to the first signing of the Geneva Convention in 1864, key to which are the 4
Geneva Conventions of 1949 (which for the first time extended the protection of IHL to
civilians), and the 2 APs of 1977. However, and notwithstanding the extensions
afforded by the APs to circumstances beyond inter-state war, they offer little help in
asymmetric warfare (except in relation to how regular combatants must treat civilians).
Colin Gray reminds us that
(t)he modern law of armed conflict was not written to define and protect the
rights of the irregular, and possibly occasional warrior. The legal context has
been changing in favour of a greater inclusivity, but irregular warfare in all its
forms remains a notably under-regulated field of strategic behaviour. Since such
warfare is especially prone to register abominable behaviour, the weakness of
the relevant law of war is particularly regrettable. 134
The obvious retort is that we could hardly expect most irregulars to abide by the rules in
any case: the legally-bound vs unrestricted is one of the asymmetries we have identified
as likely to be sought and exploited in this form of warfare. But Gray’s point can be
extended: IHL as it stands offers little guidance to regulars fighting asymmetric
opponents, either. There is an unsurprising tendency, then, in counter-terrorist
operations and the so-called post-conflict phases of interventions such as that in Iraq, to
rely on the laws of peace. As Gray also argues ‘Governments must treat terrorists as
criminals because the conflict is very much about the respective legitimacy of two the
sides in the eyes of society ……. (Nevertheless,) terrorism is warfare and terrorist are
297