‘War in the Home’: An Exposition of Protection Issues Pertaining to the Use of House Raids in Counterinsurgency Operations

Abstract

House raids represent the genre of military acts which fall within the grey zone of war and peace – counterinsurgency, post-conflict operations, or phase IV operations (a.k.a. Operations Other Than War) – in which the Geneva Conventions and their Protocols may reveal protection gaps. This article reviews accounts of the execution of house raids contained in the military literature and compares them to the testimony of soldiers and observers recorded in the media. It assesses the relevant provisions of humanitarian law as pertaining to the necessity, distinction, and proportionality of actions. Further, it highlights the specific human rights and humanitarian standards addressing terror, arbitrary intrusion into the home, violations of honor, and humiliation. The conclusion emphasizes the importance of taking into account gender and cultural considerations to properly address the interests of family members – i.e., women, children, and the elderly who are most affected by house raids.

Keywords:

• Children
• counterinsurgency
• honour
• house raids
• human rights
• humiliation
• women

Acknowledgements

The author is greatly indebted to the editors of the journal for their wise critique and commentary, in conjunction with their kind patience and understanding. Warm thanks are also given to two anonymous readers for their balanced response to the presentation of human rights perspectives in military affairs.

Notes

1. According to the U.S. Operational Law Handbook (Grimes, Rawcliffe & Smith 2006: 66) : ‘As a matter of U.S. policy (CJCSI 5801.01), U.S. forces will comply with the law of war during the conduct of all military operations and related activities in armed conflict, however such conflicts are characterized, and unless otherwise directed by competent authorities, will apply law of war principles during all operations that are characterized as Military Operations Other Than War.’

2. For a discussion on the challenges in applying human rights in situations of armed conflict, see Lubell (2005).

3. U.S. Operational Law Handbook (Grimes, Rawcliffe & Smith 2006: 50): ‘The United States interprets human rights treaties to apply to persons living in the territory of the United States, and not to any person with whom agents of our government deal in the international community.’ See also p. 47: ‘If a specific human right falls within the category of customary international law, it should be considered a “fundamental” human right. As such, it is binding on U.S. forces during all overseas operations. Customary international law is considered part of U.S. law, and fundamental human rights law operates to regulate how State actors (in this case the U.S. armed forces) treat all humans. If a “human right” is considered to have risen to the status of customary international law, then it is likely considered binding on U.S. state actors wherever such actors deal with human beings.’

4. Since the U.S. is not a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms, one may refer to the American Declaration of the Rights and Duties of Man, Article IX, which addresses intrusion into the home: ‘Every person has the right to the inviolability of his home.’ Article XXVIII sets forth a limitation standard which implies a necessity standard: ‘The rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy.’ The Inter-American Commission on Human Rights held that the Declaration acquired binding force upon the U.S. with the adoption of the revised OAS Charter. See Case No. 2141 (United States) Res. 23/81, OAS/Ser. L/V/II.52, Doc. 48., Mar. 6, 1981. Nonetheless, the U.S. position is that the American Declaration is not a treaty, was not drafted with the intent to create legal obligations, and is not binding on the United States.

5. It is suggested that when a government acts like an enemy of the people, the latter refuses to provide intelligence to the former. Some accounts indicate irregular execution of house raids as reactive acts of frustration on account of faulty intelligence, revenge, or even as a means of combating boredom (Riley 2005, Goodman 2005, Arnove 2005). Indeed, this brings up images from Vietnam of soldiers raiding villages after undergoing heavy combat losses, among which the My Lai massacre remains the most nefarious example. The Geneva Convention, Article 33 also prohibits reprisal against the person and his property as well as pillage. Protocol I, Section 6 prohibits attacks on civilians by way of reprisals.

6. Captain Hazelton, quoted by Adam Davidson, ‘Are Baghdad's local mercenaries attacking more for the money than the ideology?’ Market Place (National Public Radio), November 21, 2003. Audio available at URL: http://marketplace.publicradio.org/shows/2003/11/21_mpp.html, cited by Conetta (2005).

7. The officers set forth that the key difference in targeting during conflict as opposed to post-conflict operations is that the former focuses on the delay, disruption, destruction, or defeat of enemy forces, whereas the latter seeks to strengthen local capabilities.

8. See ‘The State of Things: Talking Points from CPT Iraq,’ December 14, 2004, available at URL: http://www.cpt.org/iraq/CurrentSituationReport.htm.

9. Cited in Ricks (2006: 418).

10. ‘[The] counterinsurgency force must have two skills that are not required in conventional warfighting: first, it must be able to see issues and actions from the perspective of the domestic populations; second, it must understand the relative value of force and how easily excessive force, even when apparently justified, can undermine popular support. Likewise, whilst stabilisation and reconstruction operations imply a more benign environment, nonetheless it is critical that the actions of the military should not serve to alienate the local population. The alternative doctrinal approach concentrates on attrition, through the destruction of the insurgent, and thus sees the population as at best a distraction to this primary aim, and in extremis a target for repression.’

11. Indeed, Professor William Hays Parks (2001) emphasizes the importance of adequate training as a means of improving the likelihood of respect for the laws of war:

Armies execute operations as they have trained. If a government sends a unit inadequately trained in the law of war to a peace operation, or on a humanitarian intervention mission, or into combat, the likelihood that the unit will violate the law of war increases. The United States Army learned this the hard way in Vietnam as a result of the My Lai massacre on March 16, 1968. Canada, with some of the most experienced peacekeeping forces in the world, suffered the same experience exactly a quarter century later when, on March 16, 1993, personnel in one Canadian unit tortured and murdered a Somali civilian in their hands. As was the case in the My Lai incident, lack of adequate law of war training was identified as a factor in this crime. This does not change application of the law of war, but it does reflect the likelihood of respect for it.

12. ‘Army Units in Iraq Modify What They Learned in MOUT Training,’ Stars and Stripes, August 8, 2003, available at URL: http://www.estripes.com/article.asp?section=104&article=16261&archive=true

13. ‘Army Units in Iraq Modify What They Learned in MOUT Training,’ Stars and Stripes, August 8, 2003, available at URL: http://www.estripes.com/article.asp?section=104&article=16261&archive=true.

14. Watzman served as an Israeli Infantry reservist in the West Bank. He recalls, ‘we usually have a Palestinian to help us. He was called “the pointer” because his job was to enter the house with us and identify the man we were after. He was a collaborator – a Palestinian serving the Israeli cause. Most of my friends hated going on theses raids. We'd surround the house and break in after midnight, waking everyone inside. Women would scream, children cry. As often as not, the man we were after had been tipped off and fled. If he was there, it was worse, because he'd be armed and dangerous. The pointer made some of us feel safer. It seemed logical that the terrorist would hold his fire if he saw that he might hit a Palestinian.’ He describes how the pointer eventually became the human shield in house raids.

15. In Murray v. Ministry of Defense (1988) Weekly Law Reports 692, pp. 699H–701A, cited in para. 33 of the ECHR Grand Chamber judgement, App. no. 14310/88.

16. Malone v. The United Kingdom 8691/79 [1984] ECHR judgment (August 2, 1984), Leander v. Sweden, ECHR judgment (March 26, 1987), and Rotaru v. Pomania, ECHR judgment (May 4, 2000).

17. In the event of erroneous intelligence, the U.S. Army offers compensation and repair of property. Thus, it may be deemed that such actions are carried out in keeping with base-minimum international legal standards (right to life and property), which unfortunately do not sufficiently address the scope of harm in house raids. The U.S. has declared immunity for its soldiers for civil and criminal liabilities, which raises a host of questions pertaining to the legitimacy of the system. Further, delays receiving compensations present additional problems.

18. Further, France and the U.K. assert that their commanders have a duty to protect the safety of troops under their command, or to preserve their military situation, and that it cannot be overridden by presumption that a person is a civilian and not a combatant in cases of doubt.

19. The ICRC calls for ‘careful assessment of conditions and restraints’ concerning attack of a civilian when in doubt.

20. Inter American Commission on Human Rights, Third Report on Human Rights in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1 (February 26, 1999), cited in Henckaerts & Doswald-Beck (2005: 22). Direct participation means act of war, which by nature or purpose is likely to cause actual harm to personnel.

21. Henckaerts & Doswald-Beck cite Dukic Case, ICTY, Karadzic and Mladic Case, and Galic Case.

22. One may refer to the Martens Clauses in Protocol II, Preamble, para. 5: ‘In cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of public conscience,' and Protocol I, Art. 1(2): 'In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.' See Coupland (2001: 981).

23. Adnan al-Dulaimi characterized the raids on his house as ‘an act of humiliation,’ quoted by Associated Press, ‘US Troops Raid Top Iraq Sunni Homes,’ Al Jazeera, Sept. 29, 2005, available at: http://english.aljazeera.net/NR/exeres/0F62CE03-2387-4571-8CA6-92239781925C.htm. See also Reed (2004).

24. Sample U.S. ROE cards from peacekeeping missions include reference to the duties as pertaining to upholding the dignity of persons:

1. Treat all persons with dignity and respect.

2. Use of force must be proportionate to the level of perceived threat.

3. If possible, warnings should be provided prior to the use of force.

4. Treat everyone, including civilians and detained hostile forces/belligerents, humanely.

5. Respect private property. Do not steal. Do not take ‘war trophies.’

6. You may not intentionally attack civilians or property that is exclusively civilian or religious in character, except if the property is being used for military purpose and engagement is authorized by your commander.

See: https://jagcnet.armuy.mil/JAGCNETInternet/Homepages/AC/CLAMO-Public.ns

25. See: http://www.humiliationstudies.org/whoarewe/humiliationdefinition.php

26. For a progressive discussion of mens rea elements for establishing responsibility under international criminal law, see May (2006).

27. Prosecutor v. Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic, International Criminal Tribunal for the former Yugoslavia, Case No. IT-96-23-1 (June 12, 2002), paragraph 161, cited by Erikksen (2004).

28. In comparison, James Johnson, of the Office of the Prosecutions of the Special Court for Sierra Leone, described repercussions due to the release of photographs of Charles Taylor in handcuffs. This was viewed as humiliating treatment, even by his enemies in Sierra Leone. Statements made at the seminar ‘Testing the Boundaries of International Humanitarian Law,’ British Institute of International and Comparative Law, June 1–2, 2006.

29. ‘Activists Call on Army, Police to Respect Women's Rights,’ Report IRIN, February 8, 2006. available at: http://electroniciraq.net/news/2266.shtml

30. Indeed, the risk of negative consequences from violation of religious mores is well known within counterinsurgency theory. Joes (2004: 157) sets forth that ‘Outraging sexual or religious mores… will nearly always increase recruits for the guerrillas and hence increase casualties among government troops.’ He cites the U.S. Marine Corps, Small Wars Manual, p. 1–31d (U.S. Government Printing Office 1940): ‘Members of the United States forces should avoid any attitude that tends to indicate criticism or lack of respect for the religious beliefs and practices observed by the native inhabitants.’

31. See also Article 12 of the Universal Declaration of Human Rights: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’ See also Chappell v. The United Kingdom, European Court of Human Rights judgment of March 25, 1987.

32. Translation by United Nations Office for Constitutional Support, October 2005, available at URL: http://www.washingtonpost.com

33. The U.S. Soldier's Manual instructs soldiers to respect a country's people, honour, family rights, and customs.

34. Cited by Badken (2005). He noted that financial compensation for damaged property did not compensate the emotional distress suffered as a result of the trauma of the raid.

35. Canada's Code of Conduct sets forth that respecting civilian property differentiates the disciplined professional force from the band of marauders. Failure to respect the rule can lead to the civilian population turning against the army, jeopardizing the mission, and prolonging the conflict. Indeed, one news report noted that signs in a Sunni neighbourhood read ‘No more house raids’ and ‘Join the Jihad’ (Wagner et al. 2004; see also Spinner 2005).

36. Figure attained from Simpson (2006). State Department statistics cited in The Washington Post, available at: http://www.washingtonpost.com/wp-dyn/content/article/2006/09/26/AR2006092601721.html

37. ‘British Launch Iraq Police Purge,’ BBC News, Sept. 21, 2006, available at: http://news.bbc.co.uk/2/hi/uk_news/5384294.stm. Hence, the U.S. COIN Manual (December 2006: 6:97) calls for a strict code of conduct as well as a proper salary to police to inhibit corruption and other abuses.

38. In Palestine, militants state that they launch attacks on Israel precisely in response to raids by Israelis. See Johnston (2006).