Defeat: Meanings, Consequences, Law, and Doctrine
Victory. Defeat. Two seemingly straightforward words that capture the big-picture objectives and results of war. As many current and recent conflicts over the past few decades demonstrate, however, the reality is anything but straightforward. For example, as media reported in the past few weeks, Israel Defense Forces (IDF) Chief of Staff Lieutenant General Herzi Halevi told IDF troops that they have “defeated the military wing of Hamas.” Following that statement, Hamas continued to fire rockets at Israel, and hostilities inside Gaza have persisted, suggesting that defeat may be a more complicated concept than the dictionary definition of “to win victory over.”
In more traditional State-on-State conflicts, victory and defeat are identifiable not merely in concept, but often in fact as well. Inter-State wars may end with the unconditional surrender of one party to the conflict, or with the total defeat of one side, known in the law as debellatio (see here for a discussion of debellatio in the Nagorno-Karabakh conflict and here for an interesting exploration of debellatio in non-international armed conflict (NIAC)). Peace agreements can represent a negotiated end to a conflict, but may often be dictated by the victorious or stronger party at that moment in the conflict.
Conflicts with non-State groups, particularly terrorist groups, present an entirely different phenomenon, in which identifying the end of the conflict and the accomplishment of stated objectives can be extraordinarily difficult. The United States eventually defined its goals in the conflict with al Qaeda as seeking to “disrupt, dismantle, and ensure a lasting defeat of al Qaeda and violent extremist affiliates.” Similarly, the United States and the United Kingdom both spoke of defeating the Islamic State of Iraq and Syria (ISIS). And yet, as one terrorism expert noted regarding the lack of clarity about what victory would mean in the United States’ conflict with al Qaeda, “[i]n this war, no one seems to know what winning is.” Reports suggesting that both Israel and Hamas view the fighting in Gaza as an insurgency, and one that may have no end in sight, present the same questions. What is defeat, actually? And what is the impact, or import, of these uncertainties about defeat and victory for key international law questions?
Doctrine and Definitions
One useful approach is to look at military doctrine. According to Army Field Manual 3-90-1, the predecessor to the Army’s more recent manual, the term “defeat” describes
[A] tactical mission task that occurs when an enemy force has temporarily or permanently lost the physical means or the will to fight. The defeated force’s commander is unwilling or unable to pursue that individual’s adopted course of action, thereby yielding to the friendly commander’s will and can no longer interfere to a significant degree with the actions of friendly forces. Defeat can result from the use of force or the threat of its use.
This definition encompasses both physical defeat and psychological defeat. The former occurs when the enemy no longer has the military capability to fight; the latter describes the enemy’s loss of will to fight because of mental exhaustion or low morale that leaves them unable to achieve their mission. Of particular note in considering the meaning of defeat in a conflict with a terrorist group, this doctrinal definition of defeat rests on a notion of collective action, the idea that the opposing forces in a conflict have a leader who makes decisions for the group and personnel who abide by that commander’s decisions. As this prior doctrine explained, defeat “manifests itself in some sort of physical action, such as mass surrenders, abandonment of significant quantities of equipment and supplies, or retrograde operations.”
However, the decentralized nature of terrorist groups—and the difference between such groups and State forces fighting on behalf of and based on allegiance to a sovereign entity—raises hard questions about how well this corporate notion of defeat translates to such conflicts. For example, Israel’s Defense Minister, Yoav Gallant, stated recently that Hezbollah “is a battered and broken organisation, without significant command and fire capabilities, with a disintegrated leadership following the elimination of Hassan Nasrallah” and other top commanders. The conflict continues, however, with Hezbollah firing hundreds of rockets in the following days and the IDF engaging in raids and firefights aimed at dismantling scores of launching sites and weapons caches in houses throughout villages in southern Lebanon.
These doctrinal definitions are useful but may not fully track the realities of conflicts with terrorist groups or other non-State armed groups. Decentralized groups continue to act—and are designed to do so—without regular command and control, and often appear to lay dormant when waiting for the next opportunity to strike. In direct contrast to the doctrinal explanation of defeat above, terrorist groups may launch spectacular attacks as a last gasp rather than a sign of strength and often withdraw in order to regroup rather than as a signal of their intent to give up the fight.
Legal Questions and Challenges
The concept of defeat and the uncertainties regarding its meaning and import in NIACs, particularly conflicts with terrorist groups, are relevant to two legal issues in particular: first, how to understand the parameters of self-defense against such groups (see here for a detailed discussion of this question); and second, how to identify the end of the conflict as a legal matter.
Under customary international law and the UN Charter, a State can use force in self-defense in response to an armed attack or imminent armed attack. The force used must be necessary, meaning that there are no non-forceful means available to deter or repel the attack, and proportionate—in terms of the extent of the use of force—to the goal of ending or repelling the attack. This law (the jus ad bellum) is about the resort to force; that is, it seeks to prevent or limit war by regulating and constraining the start of war. It does not include rules or obligations about ending war. As a result, the parameters for the lawful use of force in self-defense—necessity and proportionality, which are about the scope and extent of force used—are among the only tools international law offers to think about limiting or ending the use of force once it is lawfully pursued.
With necessity and proportionality as the primary guideposts, assessing the lawfulness of the use of force thus begins with the State’s objective in responding to the armed attack or imminent armed attack that triggered the right of self-defense. Here is where the meaning of defeat ties directly to the law. The most traditional conception of such objectives is to halt or repel the attack, but State practice over the past few decades demonstrates a wider range of stated objectives, including preventing future attacks (such as the U.S. response to the 1998 Embassy bombings), degrading or destroying an adversary’s capabilities (such as the U.S. and UK objective with respect to ISIS, or Turkey responding to the Kurdistan Workers’ Party (PKK) in 2008), or defeating that adversary (such as the United States’ eventual goal with respect to al Qaeda). If a State determines that the defeat of a terrorist group or other non-State armed group is necessary to put an end to that group’s attacks on the State, then understanding what “defeat” means and what it entails is critical for analyzing the extent of force that can be used in self-defense.
In the absence of a robust understanding of defeat itself, as highlighted above, consideration of the type of actions that are necessary or effective in defeating terrorist groups can be a helpful substitute. For example, killing or capturing the leaders of such groups is a common tactic carried out in an effort not only to prevent future attacks but to defeat the group. As President Barack Obama’s top counterterrorism advisor stated a few months after the killing of Osama bin Laden, “[i]f we hit Al Qaeda hard enough and often enough, there will come a time when they simply can no longer replenish their ranks with the skilled leaders that they need to sustain their operations.” Israel’s elimination of Ismail Haniyeh, Mohammed Deif, and Yahya Sinwar appears to fall within this line of thinking as well.
As another example, destroying or neutralizing the military capabilities of such groups, including weapons, command and control centers, communications networks, missile and rocket launchers, tunnels, and other facilities and equipment are an integral part of defeating such groups. As Prime Minister David Cameron noted in describing the United Kingdom’s objectives in fighting ISIS: “[W]e want to defeat the terrorists, by dismantling their networks, stopping their funding, targeting their training camps and taking out those plotting terrorist attacks against the United Kingdom.”
Such examples help us to assess whether certain actions or campaigns are tied to an objective that falls within a reasonable understanding of necessity and proportionality in a given instance. If defeat is necessary to repel or deter attacks, and a certain action is a reasonable step in pursuing that defeat, then it would fall within the parameters of the lawful use of force in self-defense. But they do not help us identify the end point of that use of force, because in the absence of the complete surrender or elimination of a terrorist or non-State group, or other recognizable manifestation of defeat, it is extraordinarily difficult, if not nearly impossible, to determine that the group has been defeated when we do not have an identifiable grasp of what defeat is or looks like.
The meaning of defeat and the attendant uncertainties are also relevant to a consequential determination within the law of armed conflict (LOAC) such as assessing when LOAC ceases to apply in a given conflict situation. In international armed conflict (IAC), the Geneva Conventions (GC) mark the end of application of LOAC, and thus the end of armed conflict, with phrases such as “cessation of active hostilities” (GCIII, art. 118) and “general close of military operations” (GCIV, art. 6). In 1949, the drafters of the Geneva Conventions considered the “general close of military operations” to be “when the last shot has been fired.” In contrast, treaty law provides little or no framework for identifying the end of NIAC, the relevant paradigm for any conflict between a State and a non-State armed group.
The International Criminal Tribunal for the former Yugoslavia proclaimed that LOAC applies to such conflicts until “a peaceful settlement is achieved” (para. 70), a notion that may be simply inapt in a conflict with a terrorist group. Although some have proposed and analyzed other possible approaches as well (see here and here, for example), no settled framework exists in treaty or customary law. Surely the defeat of the adversary would mean the end of the conflict, but the lack of a workable understanding of defeat in the context of terrorist groups and similar actors hampers that otherwise sensible way to identify the end of NIAC. No less, the difficulty of articulating a meaning of defeat, let alone marshaling the facts to support that definition, makes the task of delineating between when LOAC applies and when it no longer applies—the core legal issue—that much more difficult.
Conclusion
The uncertainties and difficulties we face in understanding and identifying what defeat looks like in certain types of conflicts can present significant obstacles to a fulsome and effective application of international law, whether in the scope of self-defense or the end of application of LOAC in NIAC, as the United States’ conflict with al Qaeda and affiliated groups demonstrates all too well. Although the nature of terrorist groups and other similar non-State armed groups may continue to leave “defeat” as an elusive concept, we must continue to seek ways to navigate this indeterminacy in understanding and implementing the law.
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Professor Laurie Blank is a Clinical Professor of Law, the Director of the Center for International and Comparative Law, and the Director of the International Humanitarian Law Clinic at Emory University School of Law.
Photo credit: Levi Clancy
