Rethinking the Law and Ethics of Undercover Warfare

Authors

• Raphael Bitton, Sapir College School of Law

Abstract

This paper offers a new ethical and legalframework for undercover warfare. It begins by criticizing the traditional reasoning for the duty to wear unform. It demonstrates the insufficiency of the principle of 'distinction'. which dominates current discourse. It argues, instead, that the rationale for the duty to wear unforms is based on a new principle in international law that this paper advocates: the principle of accountability. The active form of global accountability requires some degree of states' transparency about their military activity. This allows other states to respond by exercising passive form of accountability and punish violations of international law. By wearing uniforms, a military unit indirectly reports who did what, when and where. Wearing unforms, for that reason, is an important element in promoting accountability for violations of International Humanitarian Law (IHL). It assists states in solving a cooperation problem as it decreases incentives for violation by reducing monitoring and punishment costs. As accountability has a purely instrumental value, it therefore follows that combatants can theoretically meet an accountability threshold by various means other than wearing uniforms. Given accountability's instrumental nature and IHL's presumed efficiency, it follows that promoting accountability for compliance with IHL, including through the duty to wear unforms, is in the best interest of the states. Both utilitarian and Rawlsian concepts of global justice show that accountability can be acceptable to all states. Analyzing various methods of undercover warfare, this paper (contrary to the dichotomous view in current discourse) offers a view ofcover as a normative continuum. Accordingly, elite soldiers fighting terror by using civilian clothes, typically use a legitimate shallow cover on this spectrum. In contrast, spies and treacherous killers employ illegitimate deep cover. The deeper the cover, the less the actor is accountable. Depriving deep cover combatants of legal rights is therefore better grounded.

Disciplines

Comparative and Foreign Law | Human Rights Law | International Law | Law | Military, War, and Peace

Recommended Citation

Raphael Bitton, Rethinking the Law and Ethics of Undercover Warfare, 2 Cardozo Int’l & Compar. L. Rev. 593 (2019).
Available at: https://larc.cardozo.yu.edu/ciclr/vol2/iss3/2