Traditions of War: Occupation, Resistance, and the Law (review)

To paraphrase a description from Michael Herr's Dispatches, this book does to your understanding of the law of war what flares do to your night vision. It also illustrates the strengths and weaknesses of doctoral dissertations re-worked as books: fresh slants on familiar topics, burdened with verbosity and jargon. In this case, there is a personal agenda, as well.

Wading through "normative frameworks," "hegemonic discourse," and "taxonomical analysis," one discovers that Doctor Nabulsi has a startling idée fixe. She argues that traditional law of war consciously structures battlefield law to wrongfully restrict combatant status to members of national armies, excluding civilians who take up arms against those occupying national armies. Upon capture, she urges, such civilians merit POW status, just like soldiers of occupying forces. She is not writing about levées en masse.

To accept the author's position that civilians who fight an occupying army should be considered lawful combatants, rather than unprivileged belligerents accorded only protected person status upon capture, would stand Geneva law on its head. 1977 Additional Protocol I to the 1949 Geneva Conventions takes significant steps in that direction—a principal reason why the U.S. will not ratify that Protocol.

The writer's unlawful combatant/POW argument is interspersed with lengthy sections relating law of war history and attacks on established polities that have shaped battlefield law for more than a century. These sections are well-told, often rich in military history, and are the strongest sections of the book. They are accompanied, however, by dense didactic assertions regarding law of war schools of thought, as well as screeds against the British, against Hugo Grotius, and against Francis Lieber—primary framers of modern law of armed conflict (LOAC). Although she doesn't make the connection out loud, they are also leading proponents of the position that insurgents are unlawful combatants not entitled to POW status.

It explains much to know that the author, an Oxford lecturer, is a former PLO member and confidant of Yasir Arafat—that is, a member of a prime exemplar group excluded by modern LOAC from POW eligibility. She argues that states should have long ago found a solution to the unlawful combatant/POW issue. But they have. The post–World War II High Command Case (U.S. v. von Leeb) does much to clarify who is and is not a lawful combatant entitled to POW status. Article 4 of Geneva Convention III refines and expands the von Leeb formulation. The author simply does not agree with the POW Convention's solution, although it is ratified by 189 of the world's 191 States. Her case is not strengthened by muddying, for example, what constitutes occupation, who is a lawful combatant (p. 16), what constitutes a lawful reprisal (p. 17), and who may be lawful objects of reprisals (p. 27). She sometimes applies nineteenth-century examples to modern LOAC issues as if there had been no intervening development of LOAC, apparently depending on the reader's lack of LOAC expertise to not discern the tactic.

Her lengthy discussion of the eighteenth- and nineteenth-century Republican tradition of war is informative and interesting, but it cannot make the case for twenty-first-century protections for unlawful combatants. Although a fresh view of European martial history, her yeoman effort to fit square pegs into round holes fails, and the book is wanting as law of war scholarship.